An Arizona homebuilders organization, with an assist from the Goldwater Institute, is challenging a state agency’s moratorium on new home construction in parts of the Valley with dwindling groundwater supplies.
Models released by the Arizona Department of Water Resources, known as ADWR, last year found that groundwater levels are too low in the Valley to issue certificates of assured water supply — a necessary requirement for prospective homebuilders in areas outside the service of designated water providers.
That largely affects Queen Creek and Buckeye.
Goldwater attorney Jon Riches represents the Home Builders Association of Central Arizona. In a hearing Monday, he told Maricopa County Superior Court Judge Scott Blaney that ADWR overstepped its authority by creating rules that he argues only the Legislature has the power to make.
“It’s stopped new home construction in some of the fastest growing and most affordable areas of Maricopa County, and if an administrative agency is going to do that they’ve got to be able to point to state law that allows them to do that,” Riches said.
Arizona Senate President Warren Petersen (R-Gilbert) and House Speaker Steve Montenegro (R-Goodyear) backed the Home Builders Association’s case by filing a brief in support of their argument with the court.
Attorneys for ADWR argued the agency is performing its statutory duty by monitoring groundwater levels and, in effect, creating moratoriums on new construction in areas where adequate water supplies are lacking.
Attorney Emily Petrick argued the complaint against ADWR “is really a complaint about the statute itself,” referring to state law outlining ADWR’s duties.
ADWR is asking the court to dismiss the case.
“Under plaintiffs’ interpretation, ADWR would be forced to ignore overallocation in an affected area, and new development could threaten water security for existing 100 year assured water supply development,” Petrick said.
Blaney is taking the matter into consideration, but he did say from the bench that judges “abhor” motions to dismiss and noted that they’re rarely granted.
One of ADWR’s rules is called the “Depth-To-Water Rule.” It states that in order for the agency to consider groundwater “available,” modeling must show that the water levels won’t drop more than 1,000 feet below ground level in the Phoenix metro region.
It’s by that rule that ADWR won’t issue certificates of assured water supply to builders.
One of the Homebuilders Association's complaints is that the Depth-to-Water Rule isn’t location specific. In other words, if water levels drop too low anywhere in the Valley, ADWR won’t issue certificates to any other part.
EDITOR'S NOTE: This story has been updated to correct which cities in areas outside the service of designated water providers are largely affected.
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