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Illegal cattle grazing the Verde at Duff Springs
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November '09 Newsletter, Yavapai Group
Hearing Judge Recommends Pipeline Permit
by Gary Beverly
Administrative Law Judge Shedden has issued his decision to ADWR Director Herb Guenther: Approve Prescott's permit to add Big Chino water to its Assured Water Supply portfolio.
In other words, we lost!
BUT: It ain't over.
Prescott shouldn't break out the champagne yet. There are many significant challenges facing Prescott, and our chances get better as we go along.
The decision is pretty much what we expected. Understand that the purpose of the hearing was to determine if ADWR erred in granting Prescott's application. The Admin. Law Judge decided that ADWR did follow their rules. Guenther has been handed a softball; expect him to finalize the draft permit in less than the 30 days he's allowed.
The base problem is that AZ water law is really awful -- that is a lengthy discussion in itself. State law and the administrative rules that implement that law are written by developers in the service of growth. Arizona water law codifies the managed depletion of a finite resource. It is actively anti-environmental -- that is it prohibits ADWR from considering the effects of withdrawals on natural systems. That's why we lost.
What we won is that we established a legal record that is the basis for further legal claims. The pipeline faces many remaining hurdles:
1. The Taxpayer Protection Initiative has passed. Likely, the first issue for the voters is this pipeline. We have a very strong opportunity to kill it there.
2. Objectors/SRP has filed a 7 count claim in Maricopa Superior Court. The Yavapai-Apache Nation (YAN) and Ft McDowell Yavapai Nation (FMYN) have joined this suit and added a few counts of their own. This is very, very significant because the tribes have federal water rights that are governed by federal law, not by the flawed state law we are struggling with in these hearings. Here's a very cursory summary of that suit; winning any one of these would possibly kill the project before it damages our River:
a. That ARS 45-555E is unconstitutional. This is the law that allows Prescott, alone of all the cities in AZ, to transfer water between basins. This count will be argued in Feb or so, and our attorneys feel they have an excellent case. A favorable decision here would kill the pipeline and probably throw the issue into the legislature for another battle. Any decision will be appealed to death. This issue alone will be in the courts for 5-10 years.
b. That ADWR erred in refusing status as objectors to SRP, the Ft McDowell Yavapai Nation (FMYN), and the Yavapai-Apache Nation (YAN). These counts are under current argument. ADWR has asked for dismissal (refused) appealed to the Superior Court for a special action (refused), and appealed that to the AZ Supreme Court (refused).
c. That PV isn't mentioned in 45-555E so they can't be a partner in the pipeline.
d. That the amount of water awarded to Prescott is far in excess.
3. Additional appeals and claims will be filed in Maricopa Superior Court.
4. The Verde River is a federally protected river, under the care of the USFWS, enabled by the Endangered Species Act. We haven't even begun any legal actions in this area. CBD intends to stand behind their Letter of Intent to Prescott to sue under the ESA if the pipeline is built. We know that there are many other national conservation groups that are extremely concerned about the Verde: Sierra Club, TNC, Audubon, American Rivers, etc.
5. Prescott still has to finance the project. As legal challenges mount, the financing will cost more. Investors do tend to avoid projects with substantial legal challenges. As legal processes grind through the courts, the project costs more.
6. The BOR water resources study may offer an alternative.
Now I am not a lawyer, but I don't think this pipeline will ever be built. However, the pipeline is only the most immediate threat to the base flow of our River. We will be struggling to protect the Upper Verde for decades.
Drought Watch
Another dry month is about to come to a close and severe short-term drought conditions continue to persist across much of Arizona. Weather across the state was unusually warm and dry with most locations observing less than 25% of average precipitation for October. A storm system pushed across the state on October 28th, but was exceptionally dry, bringing only wind, much cooler temperatures, and very little precipitation.
Given that unusually dry conditions have continued to plague the state again this month, drought conditions may be worsening. Your observations of new impacts or updates of previously reported impacts are critical in monitoring and characterizing this current situation. Please consider visiting AZ DroughtWatch (http://azdroughtwatch.org) to update past reports or create new ones. Your observations will be reported directly to the Governor's Drought Task Force and used in updating the Arizona Drought Status map and the National Drought Monitor map.
Taxpayer Protection Initiative
Proposition 401 was approved by voters by a 2-to-one vote. Yes votes were 66%. The first application of this new provision will likely be a vote on the Big Chino Pipeline. Ex-Mayor Wilson claims there is a way around the vote of the citizens to fund such projects and there there were not enough signatures to have placed the initiative on the ballot. None of this is true. We've got our work cut out for us!
Yavapai Group News
MEMBERSHIP REPORT:
569 members in Yavapai Group as of September 2009
**ELECTIONS - PLEASE VOTE - BALLOTS DUE DEC 1**
The Sierra Club is a democracy; we are now holding elections for state and local leaders. The Yavapai Group has three Excomm positions up for elections. Ballots and voting instructions are contained in the latest issue of Canyon Echo, available for downloading at http://arizona.sierraclub.org/echo/2009/Oct09Echo_color.pdf
IRON KING MINE:
Nothing new. If you would like to help with monitoring this Superfund Cleanup at the Iron
King Mine, contact Doris Cellarius, 928-78-6724 (doris@cellarius.org).
Verde Update
US FISH & WILDLIFE SERVICE RELEASES FOCUS PLAN FOR VERDE RIVER:
USFWS has released a strategic plan guiding their actions on the Upper Verde: "Our vision is a Verde River watershed with flowing water in its river and streams, biologically diverse habitats, and land uses that encompass a variety of social, environmental, and cultural needs and values." The plan covers the Verde River upstream from Bartlett Reservoir including tributaries such as Fossil Creek and Sycamore Creek. USFWS will implement the plan by working with others in partnership and by supporting the existing plans already underway. Notably, the goal for the Upper Verde is to "restore the full suite of self-sustaining native fish, amphibian, and aquatic reptile populations that were historically present in the Verde River and its tributaries." One action to achieve that goal is to complete the Stillman Lake renovation project.
UPPER VERDE RIVER WATERSHED PROTECTION COALITION:
The UVRWPC Board, composed of representatives from Prescott, Prescott Valley, Chino Valley, Yavapai County, and the Prescott Yavapai Tribe, voted to place Gary Beverly on the Safe Yield subcommittee. Gary replaces Joanne Oellers, who has resigned for personal reasons, in the conservationist seat. The Safe Yield committee is now preparing a report to the Board describing what they can do to help the Prescott AMA achieve Safe Yield by 2025. Filling the environmental seat allows us an opportunity to voice our concerns to the Board for the protection of the base flow and water quality of the Upper Verde River.
ILLEGAL OHV ACCESS TO VERDE RIVER:
In spring, 2007 the Sierra Club confronted Prescott NF with detailed evidence that illegal OHV (off highway vehicles, including motorcycles, ATV's, and 4WD trucks) traffic had damaged the riparian corridor of the Upper Verde in dozens of places. Now, two years later, we are pleased to report that the problem is nearly resolved. We recently inspected the trailheads and the length of the river and found only one illegal OHV incident, which we have reported to PNF. This progress resulted from PNF assigning a Forest Protection Officer to monitor the trailheads, issue citations, and improve signage. Also, very importantly, Drake Cement has donated time, equipment, and materials to "harden" the trailheads with enormous boulder barriers. This demonstrates that persistence and patience will prevail, especially if we work with others in a constructive manner.
ILLEGAL CATTLE GRAZING ALONG VERDE RIVER:
On our last hike through the Verde River corridor, we found 25 head of cattle, including 4 calves, had been grazing the Verde River riparian zone near Duff Spring for many weeks. This is a violation of the grazing agreements ranchers have with the PNF, and it causes substantial damage to the vegetation. We could find no broken fences or open gates. This was more than one cow "leaking" into the river; this was a herd! We submitted photos with ear tags to PNF. This year, we have also found cattle in the river near Sycamore Creek, near Bear Siding, and at Perkinsville Bridge.
Given this record of repeated grazing violations along the full length of the Verde River this year, the Sierra Club is now extremely concerned that this is a broader issue than just one occasional fence problem. We are concerned that PNF is not adequately monitoring the Verde corridor and and is not enforcing the current terms of grazing leases. We understand that PNF is understaffed, but we will continue to insist that the Upper Verde receive the protection and management it needs and deserves.
If you notice cattle in the riparian area, please take a photo (include a brand if possible), note the location (GPS coordinates preferred), and send to Gary Beverly gbverde@cableone.net
ECOLOGICAL FLOWS STUDY
The Nature Conservancy and the US Geological Survey have announced plans for a 4 year Ecological Flows Study on the Upper Verde River. The study idea derives from the widespread knowledge that the Upper Verde base flow is threatened by increasing water withdrawals from Big Chino and Little Chino aquifers. As the base flow decreases, the habitats of various fish, birds, amphibians, mammals, and vegetative cover will diminish. The study will quantify those changes as base flow decreases. This is a non-political science based effort designed to develop information that can be used to formulate rational public policy on the river and it's habitats. Plausibly, future water resource decisions would include considerations for the effects on the Verde watershed habitats.
CWAG News
Watch USBR planner Leslie Meyers' Oct. 10 CWAG talk. The video of Leslie Meyers' talk is up on vimeo at: http://www.vimeo.com/7175978
A 60 minute version will start airing on Access 13 this Sunday the 25th and run through the week of 11/15 in the usual CWAG time slots:
Prescott - Sunday 2:00 p.m. and Tuesday 6:00 a.m.
Prescott Valley - Tuesday 7:00 p.m. and Friday 1:00 p.m
Prescott National Forest News
COMMUNITY FOREST TRUST/FORUM:
We held a joint meeting with the Verde Front in Jerome on November 4 to review the planning process leading to a Strategic Recreation Plan for the Prescott National Forest. We are continuing our strategy of cooperative helpful watchfulness on PNF lands.
MOTOR VEHICLE ACCESS
We are continuing to examine the recently released MVUM (map showing which PNF roads and trails are permitted motorized access).
GRAZING IN VERDE RIPARIAN ZONE:
See report in Verde Update section above.
This page was last updated on November 7, 2009