She Has Sold Us Out (Part 2): how Gail Griffin has placed special interests over Arizona's future water security
Part 2: killing any hope for rural local groundwater control
In recent years, Arizona State Representative Gail Griffin has gained a reputation as being perhaps the biggest obstacle our state faces to any attempt at reigning in our growing water crisis.
Even as homes and municipal wells run dry in her own district-- as roads are torn apart by earth fissures caused by unchecked and rapacious groundwater use-- the Hereford-based lawmaker has sat as head of the Arizona House of Representatives' water committee and killed every common sense attempt at legislation to secure our future water supply.
Given this track record, Cochise Regional News has conducted an investigation of the lawmaker's activities, in the hope that we can help shed some light on Griffin, her values and motivations.
What we have found is the story of how one inveterate lawmaker, from a sparsely populated rural district, has held water policy for the entire state hostage-- for the clear benefit of the special interests who serve her interests.
This is the second part of a three-part series. If you have not yet read Part 1, please do so-- this will make a lot more sense. [Read Part 3.]
Part 2: killing any hope for rural local groundwater control
Before Kingman-based Representative Regina Cobb departed the Arizona Legislature, she took another crack at legislation intended to place some control of water resources in local hands. This legislation was an attempt at creating local groundwater controls through “rural management areas” (RMAs).
Cobb's legislation along these lines was quite weak, no doubt in an effort to gain some support from Griffin, but it would have provided a modicum of local water resource control and protection. Still, no such bill was allowed a hearing through Griffin's NREW committee.
At the outset of the 2023 legislative session, State Representative Leo Biasiucci (Republican, based in Mohave County, representing LD 30), who had partnered with Cobb in past water legislation attempts, introduced a bill intended to help Arizona communities seeking to protect their water resources.
The bill, HB2731, would have amended Arizona Groundwater Code to provide for the creation of “local groundwater stewardship areas” (LGSAs). The proposed LGSA law was a more fulsome evolution of where Cobb's proposed RMA legislation left off.
Arizona Groundwater Code was created largely through the passage of the Arizona Groundwater Management Act of 1980. Though the state has seen sustained increase in demands on water resources over the four decades since the bill's passage, there has been little-to-no legislative action to modernize the law.
The 1980 Groundwater Management Act created three primary tools for Arizona groundwater protections: groundwater "active management areas" (AMAs), "irrigation non-expansion areas" (INAs), and the Arizona Department of Water Resources (DWR)-- which is the entity tasked with enforcing regulations of the state's AMAs and INAs.
INAs essentially freeze all new irrigation of acreage within their boundaries, and require non-exempt water users (such as growers using wells which produce more than 35 gallons per minute) to meter and report their water usage.
AMAs are more stringent and offer the fullest extent of groundwater protections under Arizona law.
These provide for a freeze on irrigation of new acreage, permitting requirements for new non-exempt wells, spacing requirements for non-exempt wells, potential caps on groundwater withdraws by irrigation rightsholders and/or implementation of irrigation best practices, as well as management plans which (depending on the plan) may call for phased non-exempt groundwater use reductions over a set period of time.
The Groundwater Management Act of 1980 created four initial AMAs, and two initial INAs. In 1981, a third INA was created.
Aside from legislative action which created the Santa Cruz AMA by separating it from the Tucson AMA in the 1990s, there were no new groundwater protection designations in the state until 2022.
In November of that year, voters in Cochise County's Douglas Groundwater Basin (which included one of the initial INAs, the Douglas INA) approved Proposition 422, which called for the designation of the entire groundwater basin as a groundwater active management area.
A second initiative, Prop. 420, which sought to create an AMA in the Willcox Groundwater Basin (which is adjacent to the Douglas Basin), was rejected by residents of that basin in the same election.
Together, the Douglas and Willcox basins comprise the entirety of Cochise County's Sulphur Springs Valley. The Douglas Basin extends from the U.S./Mexico border, to a point about ten miles north of Elfrida. The Willcox basin extends from the northern border of the Douglas Basin and travels northward to a point in Graham County, north of U.S. Interstate 10.
The initiatives were an entirely local effort conducted by area residents for the protection of their groundwater resources. Voter approval of Prop. 422 marked the first time in state history where local residents created an AMA through referendum. [Full disclosure: I volunteered my time in support of Props. 422 and 420.]
In December 2022, DWR designated Mohave County's Hualapai Valley as an INA. This designation came following a request from the Mohave County Board of Supervisors to DWR to take action to protect area groundwater.
Mohave County supervisors had stated public support for several of the pieces of Cobb's legislation, intended to protect their groundwater, but which were ultimately killed in the legislature by Griffin [see Part 1 of this series]. As such, local concern over the water situation and previously-discussed rapacious activities of developers and out-of-state investors had grown quite severe. That pressure, coupled with glaring legislative inaction, reached a point where executive action was taken.
Though Mohave County finally gained some measure of protection through appealing to DWR, the agency seems to have long been asleep at the wheel.
Arizona Groundwater Code requires DWR to conduct periodic reviews of conditions in areas of the state not currently under active groundwater management in order to determine whether further designations are required. Though the state has seen rapid expansion of groundwater use over the past decade (largely carried out by out-of-state interests flooding into Arizona to exploit unregulated groundwater resources-- see Part 1), public records requests submitted by CRN to the Arizona Department of Water Resources in 2021 found that no such statutorily-required reviews had been conducted by the agency in at least the six years prior.
This lack of action coincided with efforts in the Willcox Groundwater Basin in 2015 to gain some level of groundwater protection. Records obtained by CRN show that the agency was fully aware of rapid groundwater depletion and its effects (such as earth fissures and land subsidence, which are due to aquifer depletion and compaction) in that basin at that time, yet conducted no reviews and took no action to implement groundwater protections.
Minnesota-based industrial dairy Riverview LLP was also making headlines around this time for the sheer amount of land it was purchasing and number of new wells it was drilling in order to grow feed for their dairy operations in the Willcox Groundwater Basin.
Over time, Riverview's operations spread into the then-Douglas INA, with the mega-dairy buying up the land and irrigation rights of many local family farms.
During this same time period, industrial-scale nut growers, such as California-based Trinut, also began buying up land and water rights in the Willcox and Douglas groundwater basins.
In both basins, residential and smaller irrigation/business wells began running dry. Earth fissures continued to open up, swallowing blacktop and miles-long stretches of land in the Sulphur Springs Valley.
It was against this backdrop that local residents in Cochise County set out, in 2021, to initiate voter referenda (ballot propositions 420 and 422) on the creation of AMAs in the Douglas and Willcox groundwater basins. By the time of the AMA referenda vote in November 2022, public concern-- and controversy (largely driven by industry-funded opposition groups)-- over industrial agricultural water use had reached a fever pitch.
While Prop. 422 was approved by Douglas Basin voters, its Willcox Basin counterpart, Prop. 420, was rejected by voters in that area. As such, the November 2022 election on these two items created the Douglas AMA in the southern half of the Sulphur Springs Valley, and left the Willcox Basin in the north to continue on with no groundwater protections whatsoever.
Existing in a regulatory vacuum, the Willcox Basin has been in a state of free fall for years. Industrial-scale growers from California and Minnesota are, by far, the dominant agricultural interests in the area, occupying tens of thousands of acres of land, and drilling scores of irrigation wells (some of which are half a mile deep). Residents continue to lose their homes, and fissures continue to split the land and roads. In June of this year, a number of Willcox's municipal wells ran dry.
Despite this dire reality, many of the voices critical of Props. 422 and 420 held that Arizona law governing AMAs are too stringent for local agricultural economies and that AMAs, which are administered solely by DWR, do not allow for enough local control of groundwater conservation policy.
Cochise County Supervisor Peggy Judd, whose district covers the majority of the Willcox Basin, was one of the most vocal proponents of this position, and she urged her constituents to vote against the groundwater protections of an AMA.
Others, such as local representatives of the Arizona Farm Bureau Federation and other influential industry lobby groups, made similar claims in their opposition to the voter initiatives.
Biasiucci, a Republican whose Legislative District 30 covers Mohave County (the site of much of the rapacious activity discussed in Part 1 of this series), sought to address this local groundwater control issue in 2023 through HB2731, the “Local Groundwater Stewardship Area” bill. HB2731's Senate counterpart, SB1306, was sponsored by Senate Majority Leader Sonny Borrelli, also an LD 30 Republican.
The LGSA legislation was crafted largely by a group of Arizona stakeholders calling themselves the "Rural Stakeholder Working Group." This broad, bipartisan, coalition consisted of county supervisors, mayors, and residents of Mohave, La Paz, Coconino, Yavapai, and Cochise counties, along with representatives of various water conservation groups.
Steve Kisiel and Mark Spencer, residents of the Willcox Basin in Cochise County, were part of the group. Kisiel is a retiree. Spencer is a small business owner and Cochise County Republican Committee precinct committeeman. Both were involved in advocating for the creation of an AMA in the Willcox Basin through Prop. 420.
Kisiel told CRN that the working group had incorporated solutions meant to address concerns relating to local groundwater control into the LGSA legislation-- such as those concerns raised by Judd and representatives of the Farm Bureau during the AMA campaigns.
Due to the incorporation of these solutions, said Spencer, the resultant LGSA designation, as laid out by HB2731, would likely have gained far more support in the Willcox Basin than had the AMA initiative.
The legislation called for authority to designate Local Groundwater Stewardship Areas under Arizona Groundwater Code, as an option for groundwater regulation alongside AMAs and INAs.
As imagined by HB2731, LGSAs would still be overseen and administered by the Arizona Department of Water Resources, but control over water policy would be a strictly local matter.
As proposed, LGSAs could be implemented by petitioning the agency, either by local residents or a county board of supervisors. Elections would not be required, as current law requires for local implementation of an AMA.
In order to fund this new water conservation tool, HB2731 called for certain portions of the state lottery fund to be allocated annually to a new Arizona Department of Water Resources (DWR) Local Groundwater Stewardship Fund.
Contrary to the assertions of the legislation's opponents (including Griffin), the bill sought no new taxation or apportionment of tax revenues for the implementation of the new water conservation program.
As proposed by HB2731, non-exempt wells within an LGSA would be subject to metering and permit requirements. Metering reports and permit applications would be submitted to DWR, as in an AMA.
Unlike an AMA, however, control of LGSA policy would be an explicitly local matter; goals and management practices would be set by the local county board of supervisors and an LGSA advisory committee comprised of various local stakeholders.
Under the LGSA legislation, at least six of the nine-member board must be locally-based within the LGSA.
When an AMA is created, on the other hand, a Groundwater Users Advisory Council (GUAC) is appointed by the governor. This GUAC is tasked with advising DWR on its development of management plans for the AMA. Under current law, there is no guarantee that AMA GUAC members will be local AMA stakeholders.
LGSAs, as imagined by HB2731, would have worked more as a bottom-up form of groundwater control, with DWR serving in a more collaborative capacity, alongside the LGSA advisory committee and local county supervisors. Under current laws, INAs and AMAs are administered in a very top-down fashion, with policy and implementation resting in the hands of DWR.
Also unlike an AMA or INA, HB2731 allowed that an LGSA shall be reviewed by the county board of supervisors every ten years in order to assess, on the basis of hydrological and other data, whether groundwater protections are still required. If, during such a review, it is found that regulation is no longer required, the county board may rescind the LGSA designation.
The LGSA legislation also sought to provide community protections from real estate developers who may, in an ethically-dubious search for profit, seek to develop land for residential purposes without an assured water supply.
In early 2023, the City of Scottsdale, citing severe ongoing drought and the dwindling Colorado River, cut off water to the Rio Verde Foothills residential development it had been sharing its water with. The move caused national headlines and a great deal of soul searching in-state regarding Arizona's legacy as a sunbelt Shangri-la for realtors and developers. [See also the Queen Creek water issues discussed in Part 1 of this series.]
HB2731 sought to head off future "Rio Verde" catastrophes, stipulating that subdivision plats may only be approved by a county board of supervisors within an LGSA, on recommendation of the LGSA committee, if either: DWR had determined that the proposed subdivision had an adequate assured water supply, or the subdivider had obtained a written commitment of water provision from a municipality or private water company with an assured water supply.
Despite all the stakeholder support and political momentum behind the LGSA legislation, neither HB2731 or its Senate counterpart, SB1306, ever received a hearing or vote in the Arizona legislature. Both died in committee, with no action of any kind taken, at the close of the 2023 session.
In the House, the LGSA's committee of jurisdiction was the Natural Resources, Energy and Water Committee (NREW) chaired by Gail Griffin.
In the Senate, the bill's committee of jurisdiction was the Senate Natural Resources, Energy and Water Committee, chaired by Senator Sine Kerr (Republican, District 13).
SB1306 was never even transmitted to Kerr's committee. HB2731 was sent to Griffin's NREW committee in early February 2023, and there it sat-- no hearing, no debate, no vote-- until the end of session in the summer of that year.
Following the death of the LGSA legislation, Rural Stakeholder Working Group member Kisiel told CRN that he had been told Kerr was following Griffin's lead and would have only granted SB1306 a hearing had Griffin done so in the House.
As such, the fate of badly needed groundwater protections-- crafted by this diverse group of Arizona officeholders and residents feeling the pain of the water crises in their communities-- rested solely in the hands of Griffin, a career real estate agent whose campaign finance reports read like a directory of the very industries the LGSA legislation sought to rein in.
Given the role of the Riverview mega dairy and the activities of other, often out-of-state, industrial agricultural entities that served as impetus the LGSA legislation, it should be noted that Kerr and her husband, Bill Kerr, are owners of Kerr Family Dairy in Buckeye.
The Kerrs both have long history of involvement in the United Dairymen of Arizona and the Arizona Fam Bureau Federation. As recently as 2022, Kerr reported that her husband was serving as a board member of United Dairymen of Arizona (a registered lobby group), and as board president of the Dairy Council of Arizona.
According to legislative records, a lone individual named Heather Floyd registered opposition to the 2023 LGSA legislation in the Senate.
According to Cochise County Elections Division records, in May 2022 Floyd, “a public relations specialist,” co-founded the Rural Water Assurance (RWA) political action committee.
Floyd's RWA co-founder was Sonia Gasho, who was, at the time, president of the Cochise County Farm Bureau, which is the local branch of the Arizona Farm Bureau Federation.
According to Arizona Corporation Commission (ACC) records, the Riverview mega dairy's Cochise County public relations coordinator, Moiria White, has served treasurer of the Cochise County Farm Bureau since September 2017.
RWA's purpose through the 2022 elections cycle was opposition to local attempts to implement groundwater controls in the Douglas and Willcox groundwater basins through props. 420 and 422.
In the summer of 2022, Gasho and Floyd even filed an unsuccessful, and baseless, lawsuit seeking to prevent basin residents from even voting on the AMA initiatives.
Review of RWA's campaign finance reports shows that the group was funded largely by industrial-scale growers/irrigators, out-of-area investors, and well drilling companies.
Griffin, for her part, also claims longtime membership in the Arizona Farm Bureau.
Review of Griffin campaign finance reports show that AGPAC (the political action committee of the Farm Bureau), along with lobbyists employed by the Farm Bureau, are among Griffin's most substantial campaign donors.
Griffin also receives frequent campaign funding from ADPAC (the political action committee of the United Dairymen of Arizona), according to records.
The Arizona Farm Bureau Federation is a powerful lobby group in Phoenix.
According to Arizona Secretary of State lobbyist records, Yuma grain farmer Tim Dunn served as a registered lobbyist for the Arizona Farm Bureau from 1997 through 1998, and again from 2002 through 2014.
Dunn, who entered the Arizona House of Representatives in 2018 (Republican, District 25), is currently chair of the Arizona House of Representatives' Land, Agriculture, and Rural Affairs Committee. He is also a member of Griffin's House Natural Resources, Energy and Water (NREW) Committee.
In 2021, Dunn, with Griffin's support, introduced and saw to the passage of legislation strengthening Arizona's “Right to Farm Law,” which protects agricultural entities from nuisance claims brought by Arizona residents impacted by their operations.
Dunn's bill mandated the award of attorney's fees against any Arizona resident who unsuccessfully sued an agricultural entity over a nuisance imposed by agricultural operations on their home, and also prohibited any municipality from designating any agricultural practice as a nuisance.
The Dunn bill was transmitted from the House (with Griffin's support) into the Senate, and passed into law in final form under sponsorship of Senator Kerr.
In the face of the influx of often out-of-state industrial agriculture confronting Arizonans, the Dunn/Kerr legislation effectively barred most Arizona residents from seeking relief in the courts for nuisances such as feedlot stench, industrial noise, dust storms, and possibly issues relating to groundwater depletion, such as earth fissures or depleted wells.
Legislative records show the bill was strongly opposed by a wide array of many Arizona residents, municipalities, and the League of Arizona Cities and Towns.
Still, despite this outpouring of opposition, the bill was passed and signed into law by then-Governor Doug Ducey, with legislative records showing registered support for the bill limited to a small group of Arizona Farm Bureau and United Dairymen of Arizona lobbyists, lobbyist Patrick Bray (representing both the Arizona Crop Protection Association and the Arizona Farm and Resources Group), along with representatives of one of the state's most influential growers, Hickman's Family Farms.
At the time of the Dunn/Farm Bureau “Right to Farm” Legislation, Hickman's Family Farms was in the midst of a protracted battle with residents of Tonopah. Hickman's, an industrial-scale egg producer, had built a 4-million-hen hatchery near the town and residents claimed that both the hatchery's fecal stench and release of ammonia into the air was destroying their homes and making them ill.
According to Cochise County Elections Division records, the Rural Water Assurance PAC, co-founded by then-Cochise County Farm Bureau president Gasho, for the purpose of opposing local residents' efforts to protect their groundwater, also received funding from Hickman's.
Hickman's and their lobbyists (some of whom also lobby for the Farm Bureau) have been among Griffin's candidate committee donors as well.
Though the Arizona Farm Bureau clearly already has strong allies (such as Griffin, Kerr, and Dunn) in the Arizona Legislature, Arizona Secretary of State (AZSOS) lobby records show the group is not shy when it comes to spreading cash around in order to maintain its influence.
According to lobby records, the group has treated Griffin and Kerr to “food and beverages” valued at more than $130 each, per sitting.
The group frequently treats lawmakers to “Ag Fest” on the Senate lawn, chips in for legislator “family picnics” held at a Phoenix area country club (to the tune of more than $2,500 per event), and treats lawmakers to annual “Ag Dinners” (valued, according to lobby records, at least $3,000 per event).
According to AZSOS lobby records, the Arizona Farm Bureau is also active in the American Legislative Exchange Council (ALEC). As previously discussed [see Part 1 of this series], ALEC is a private organization funded by corporations and special interest groups, which creates and advocates for “model legislation” to be introduced by member lawmakers in their state assemblies. The bills are often written by corporate/special interest lobbyists, crafted for the benefit of their financial bottom line.
As previously discussed, ALEC holds events at luxury resorts at locations around the country. Member lawmakers' travel and lodging expenses relating to these events are paid for through funding provided by the organization's various private sector special interest underwriters.
Griffin has long reported membership in the group [see Part 1], and, as recently as 2022, both Griffin and Kerr reported receiving “$1,000 to $25,000” each, in paid travel, food and lodging expenses for an ALEC even held in Utah in 2021. This appears to be a reference to the July 2021 ALEC Annual Meeting, held at Salt Lake City's Grand America luxury hotel.
Additionally, from January of 2021 through the majority of 2023 Kerr was listed as one of two ALEC legislative co-chairs in Arizona.
For 2023, Griffin disclosed another “$1,000 to $25,000” in gifts of travel, meal, and lodging expenses related to an ALEC event held in Florida. This event was likely the ALEC annual meeting, held at the JW Marriott Grande Lakes luxury resort (complete with water park) in Orlando in July of that year.
According to AZSOS lobby records, the Arizona Farm Bureau continues to lavish perks on Arizona ALEC-member lawmakers.
For example, in November 2023, the influential Arizona agricultural lobby group sponsored a dinner for ALEC-member lawmakers at the very upscale “Morton's, The Steakhouse” restaurant in Scottsdale, as part of ALEC's annual “States and Nation Policy Summit.”
During the 2022 elections cycle, Arizona Beef Council executive director and Arizona Cattlefeeder's Association lobbyist Basilio Aja also founded a political action committee in Cochise County, in order to oppose the local AMA initiatives. The PAC was called Food Resource Group (FRG).
The AMA voter initiatives were largely a response to the Riverview mega dairy's intensive groundwater use in growing feed for their cattle.
According to Cochise county Elections Division records, Aja served as chair of FRG, and Patrick Bray (also a registered lobbyist for the Arizona Cattlefeeder's Association, and former executive director of the Arizona Cattlegrower's Association) served as treasurer.
The address given by Aja and Bray in FRG filings with the Cochise County Elections Division was the Phoenix address of the Arizona Cattlefeeder's Association and the Arizona Beef Council, 916 W. Adams Street. This same address is also given in Arizona Secretary of State lobbying records for the Arizona Farm and Ranch group. Aja and Bray are the sole listed lobbyists for this entity.
Review of Arizona Secretary of State (AZSOS) campaign finance records disclose that both Aja and Bray have been substantial donors to Griffin's candidate committee.
Furthermore, AZSOS records show that Bray and Aja, acting as lobbyists, have both treated Griffin to meals on numerous of occasions-- at times treating the head of the House water committee to “food or beverages” of more than $80 in value per sitting.
But, that is small change-- a token only illustrative of the friendly nature of the relationship between Bray, Aja and Griffin.
AZSOS lobby records show that Aja and Bray's Arizona Farm and Ranch Group have thrown numerous “receptions” and dinners for lawmakers at lavish Phoenix-area restaurants (at times reporting well over $4,000 in reportable lobbying expenditures per event); have purchased lunches for unnamed Arizona House members and their staff (at more than $1,300 per lunch); and have contributed to special interest “family picnic” and “ballgame” events for Arizona legislators.
But, Griffin, above other lawmakers seems to hold a special place in the heart of Aja and Bray.
According to lobby records, the only Arizona lawmaker for whom Aja and Bray (from 2019 to present) have made any expense related to a fundraiser held for the exclusive benefit of a specific lawmaker, has been Gail Griffin.
According to AZSOS records, the location of this Aja/Bray-supported “Gail Griffin Fundraiser” was “916 W. Adams Street” in Phoenix. This is also the address given for Aja and Bray's Arizona Farm and Ranch Group, as well as the “Food Resource Group” political action committee the pair created in Cochise County in order to fight local voters' groundwater conservation initiatives in 2022.
For her part, it seems Griffin has been only too happy to advance the special interests of industrial agriculture and the “cattlefeeder's” lobby in Cochise County.
Following the November 2022 election and voter approval of the Douglas AMA, Griffin introduced a number of bills intended to weaken groundwater protections.
Also following the 2022 election-- at a time when opponents of the voter-approved Douglas AMA were advancing a legally-dubious effort to repeal the groundwater protections-- Griffin lent her voice in apparent support of misinformation regarding the AMA.
For example, in public commentary regarding the AMA, Griffin repeatedly stated that management of the AMA would be “complicated,” due to the fact the groundwater basin extends into Mexico. This statement, from the area's longtime legislator, coincided with, and lent credence to, misinformation circulating at that time, which held that the Douglas AMA would unfairly tie the hands of American water users and allow users on the Mexican side of the border to suck the aquifer dry.
The Douglas Basin does extend for a short distance into Sonora, Mexico (to include the area of Agua Prieta). However, review of satellite imagery clearly shows that the vast majority-- if not all-- of the industrial-scale agriculture drawing from the aquifer (the vast majority of which is on the U.S. Side of the border) is on the Arizona side of the border.
Griffin's work to spread misinformation has not been limited to countering the attempts of her own constituents to protect their groundwater in Cochise County.
Following the end of the 2023 legislative session, Griffin authored an op-ed that appeared in a number of local newspapers, including those in Mohave and Cochise counties.
The op-ed contained numerous false claims regarding the LGSA legislation championed by rural residents and community leaders across the state. This misinformation included erroneous assertions that LGSAs would result in taxation, and permanently place control of groundwater in the hands of bureaucratic appointees.
This, said Rural Stakeholder Working Group member Kisiel, was a sign of Griffin's "bad faith" and her intent to continuously block any legislation seeking to safeguard water resources-- including that which would give local communities control over their own water resources.
"We are tired of her bad faith opposition, and ask for a fair hearing and debate on this legislation," said Kisiel.
According to Kisiel, he and other Cochise County residents are now asking the Office of Governor Katie Hobbs (a Democrat) and the Arizona Department of Water Resources to exercise their executive authority to designate the county's remaining unprotected groundwater basins as AMAs or INAs.
Following the end of the 2023 legislative session, Cochise County Republican Committee precinct committeeman and Rural Stakeholders Working Group member Mark Spencer noted that Griffin's obstruction is likely going to result in an outcome that she certainly does not want-- and which has already rejected by Willcox Basin voters.
"Groundwater concerns and the rights of all landowners need to be heard and debated in our legislature," said Spencer. "Yes, the proverbial 'sausage making' can be a messy process, but if we don't want unilateral action by Governor Hobbs-- something she has been gearing up for, [where] we will end up with AMAs or INAs under the current [groundwater code]-- something this valley has already rejected as a solution,” said Spencer.
“If the LGSA legislation can be worked out, this would give our state and rural communities a much better option, and hopefully turn the Governor from implementing groundwater controls under the only currently existing statute-- again, this being the AMA or INA," he added.
For her part, Cochise County Supervisor Peggy Judd said she was disappointed that Griffin refused to grant the LGSA legislation a hearing during the 2023 session.
Surprisingly, given that Judd had previously opposed all other attempts at groundwater regulation in the Willcox Basin, she told CRN that she would have supported the creation of an LGSA in her district.
"If the people ask for it, I would support it," said Judd. "It would be better suited to protecting the economy of our agricultural community."
Judd is definitely not a liberal, or even a centrist. Judd is a former Republican Arizona State Representative and an organizer of the "Willcox Tea Party." She has made national headlines in recent years for her attendance at the January 6, 2021 U.S. Capitol protest-turned-insurrection; her apparent belief in Q Anon and other conspiracy theories; involvement in the embarrassing ouster of former Cochise County Elections Director Lisa Marra (who was also a Republican); for her refusal to certify the 2022 Cochise County elections results; and for her criminal indictment relating to her refusal to certify the county's 2022 elections results. [Note: Judd is not running for re-election this cycle.]
But, the reality of water-- particularly in southern Arizona-- is, or damn well should be, enough to cut across even the most hardened of partisan walls.
Judd's 3rd Supervisory District in the Willcox Groundwater Basin is, at this point, a carcass being devoured, largely by out-of-state industrial agriculture intent on lapping up what remains of the area's completely unregulated groundwater supply. Given that reality, even Judd has come to believe that some sort of groundwater regulation is needed to save her community.
Following the 2023 legislative session, Judd told Cochise Regional News she's frustrated by the fact that Griffin has stood in the way of such efforts.
"I don't really want to talk about her. She's my friend-- I mean, I don't always agree with her in everything," said Judd. "I sure hope she begins to see what the people want. She needs to look for that. She needs to look real hard."
Judd, Kisiel, and Spencer told CRN that they took part in a meeting with local growers and agricultural advocacy groups (including representatives of RWA and the Arizona Farm Bureau) in early August 2023. The meeting was meant to hash out the details of LGSA legislation they hoped would be introduced in the 2024 session.
Judd, Kisiel, and Spencer all told CRN that they left the meeting with the belief there was support for such legislation in the agricultural community, and were hopeful a new LGSA bill would be debated and passed in the 2024 session-- should Griffin allow the bill a hearing.
As it turned out, this optimism was unfounded. No such hearing took place during the 2024 legislative session. Rather, Griffin and her Senate water committee counterpart, Kerr, launched the new year with a slew of bills intended to weaken existing water law, undermine the Douglas Active Management Area approved by Douglas Groundwater Basin voters in 2022-- and, most importantly, to ensure that citizens are never again able to matters into their own hands in order to protect their groundwater.
The most egregious of these bills was SB1221.
As introduced by Griffin in the House and Kerr in the Senate, the bill was a byzantine 15-page prescription of hoops and magical incantations that groundwater basin residents would have to jump through, and chant in magical order (possibly while standing on one leg and patting their heads), in order to possibly gain little-to-no groundwater protections-- or even less.
The bill was clearly written by, or for, special interests who do not wish to see ground water regulation in Arizona. Given carveouts and caveats to regulation contained in the bill, those special interests were clearly real estate development and industrial-scale agriculture-- both of which are near and dear to Griffin's heart.
SB1221, as introduced, allowed for the creation of Basin Management Areas (BMAs). These BMAs would serve, alongside the AMAs and INAs created by the Groundwater Management Act of 1980, as areas of groundwater regulation under the purview of the Arizona Department of Water Resources.
Under the bill, residents of a groundwater basin could petition DWR for a BMA designation. The petitioners would need to gather the signatures of at least fifteen percent of the residents of the subject basin.
However, the drinking water source of each signer must be established in order for their signature to be counted. If a signatory's source of household drinking water was found to be from a source other than the subject acquirer, or if their drinking water source could not be verified, their signature would not be counted.
Per SB1221, if such a petition were accepted by DWR, the director of the agency would then be required to determine whether the subject basin meets both of the following criteria: A.) the presence of land subsidence due to groundwater withdrawal that is endangering property or aquifer storage capacity (this subsidence must be shown, conclusively, to be caused by groundwater withdrawal), and B.) whether there has been accelerated groundwater decline over the preceding five years.
Where this later item is concerned, per SB1221, the DWR director would be required select and measure data from ten index wells within the basin. In order to meet the bill's definition of “accelerated decline,” each of the selected index wells must show a drop of ten or more feet annually.
To put this in perspective: according to the most current DWR index well data analyzed by the Arizona State University Kyle Center for Water Policy, covering the annual rate of groundwater change between 2019 and 2020 in the Willcox Basin, the median rate of groundwater level change reported by DWR index wells was -3.4 feet per year.
This data was gathered across 33 index wells. Two of those wells showed a slight elevation in groundwater level (two feet or less). Four wells reported static levels, and 27 showed decrease in groundwater levels.
Among those declining wells, the maximum decrease reported was nearly 23 feet, and the minimum was about three and a half feet.
Review of data for each of these index wells shows that, during the course of 2019, only two reported decrease in groundwater levels at ten or more feet for that year. In fact, the vast majority of DWR Willcox Basin index wells reported a decline of less than five feet for this year.
As such, under these circumstances, it is unlikely that even the Willcox Basin-- where earth fissures have been swallowing roads and residential, municipal, and small business/farm wells have been running dry at alarming rates for at least a decade-- would meet the necessary criteria to gain “Basin Management Area” designation, regardless of how many residents sign a petition.
But, let's say, for argument's sake, that a BMA petition has survived all of these hurdles. The next step, as prescribed by SB1221, would be for the DWR director to perform a cost/benefit analysis of the proposed BMA, in order to determine whether “the probable benefits to businesses directly affected by the proposed water management outweigh the costs” [emphasis mine].
If the cost/benefit analysis shows net benefit to businesses, the petition would then be sent on to the affected county board (or boards, if the proposal affects more than one county) of supervisors. A unanimous vote of all of the affected boards of supervisors members would then be required.
In this context, it is worth noting that the Willcox Basin's supervisor, Peggy Judd, long opposed any form of groundwater legislation, including the 2022 AMA initiatives. Additionally, both of the Rural Water Assurance political action committee co-founders, Heather Floyd and Sonia Gasho, have attempted runs at this supervisory seat.
Per SB1221, should a BMA petition survive unanimous approval of relevant boards of supervisors, DWR would then be required to hold three meetings. Two of these meetings would be publicly held in the affected basin, and the third would be held as a joint legislative meeting of the Arizona House and Senate water committees, which are currently chaired by Griffin and Kerr.
As prescribed by SB1221, at each of these meetings, any party (whether they reside within the affected basin or not), may provide counterfactual data or arguments against the proposed BMA, including “any secondary modeling challenging the modeling” completed by DWR.
Once all of these meetings are held and competing modelings presented, the DWR director is to then consider whether he still believes that all relevant criteria are met-- those criteria again being: A.) subsidence due to groundwater withdrawal, B.) accelerated index well decline, C.) cost/benefit analysis demonstrating benefit over loss to affected businesses.
If the DWR director decides that the proposed BMA still meets all of the necessary requirements, it would then be enacted (providing the BMA designation survives any legal challenges-- and SB1221 explicitly provided for such judicial review).
Aside from this bureaucratic rigmarole, SB1221 provided minimal groundwater regulation for a designated basin.
In broad strokes, a BMA would be like a more permissive and industry-friendly Irrigation Non-Expansion Area. There would, nominally, be a freeze on new water rights-- but the structure for gaining and expanding existing rights would be quite lax, with the bill providing several potential avenues for this.
One example: under SB1221, grandfathered irrigation rights could be gained or expanded for any piece of property for which a groundwater user has made any “substantial capital investment” in the year prior to the BMA petition. While Arizona Groundwater Code relating to AMAs and INAs contains similar language, the proposed BMA law explicitly broadened the definition of “substantial capital investment” to mean pretty much any investment or “improvement” relating to the subject acreage, not restricted to improvements relating to irrigation infrastructure, as is the case with AMAs and INAs.
The bill also sought to ensure that industrial-scale irrigators retained their rights to use at least as much water as they had been using at the time of the BMA's creation. The bill stated that rightsholders would gain a “certificate of groundwater rights consistent with the higher of either” the average or median, of their agricultural groundwater use during the ten years preceding BMA designation [emphasis mine].
Where real estate developers were concerned, SB1221 provided that residential or “mixed use” developments shall be provided certificates of groundwater rights “equal to the projected water demand of the development at buildout.”
The bill contained no requirement of assured water supplies for such developments.
Like an AMA or INA, the proposed Basin Management Area bill stated that applicable groundwater users must provide some reporting of their annual groundwater use to DWR. However, the bill stated no need for any actual water flow metering device, and allowed that users could essentially use any method of estimating water use they like.
Lastly, SB1221 explicitly stated that any groundwater withdrawal reporting made to DWR by a user in a BMA would be exempt from public disclosure, including disclosure through Arizona Public Records Law. As such, members of the public (or press) would have no way of knowing how much of their groundwater was being consumed by industrial agriculture or other non-exempt users.
In an AMA or INA, mandated groundwater use data and reporting (made through statutorily-prescribed methods) is subject to publication and public disclosure through public records requests.
These are just some of the highlights of SB1221, as introduced by Griffin and Kerr (you can read the full introduced text here). The bill goes on to describe further hoops residents and boards of supervisors may jump through (including further unanimous supervisory votes and a public election process) if they wish their “Basin Management Area” to become an “Active Basin Management Area.”
In broad strokes, in even the most stringent regulatory scenario allowed by the bill, such basins would only be permitted to adopt certain very industry-friendly management goals, and any management plan calling for reductions in water use among rightsholders could result in no more than a two-percent reduction in groundwater use per year, and up to a cumulative maximum reduction of ten percent over the lifespan of the management area.
There is one last detail of SB1221 I'd like to call attention to: the bill stated that no area designated as a BMA could be re-designated-- even by voter referenda-- as an INA or AMA. So, once a groundwater basin and its residents get on the weak and industry-friendly path of a “Basin Management Area,” they would be locked in.
Legislative records show that support for the bill was largely registered by industry representatives and lobbyists. This list read like a who's who of Griffin campaign finance reports.
These included: Food Resource Group PAC's Aja (on behalf of the AZ Cattlefeeder's Association) and Bray (on behalf of the Arizona Crop Protection Association and the Arizona Farm and Ranch Group); Rural Water Assurance PAC's Floyd and Gasho; multiple lobbyists representing the Arizona Farm Bureau Federation; lobbyists of the Arizona Cotton Grower's Association, Western Grower's Association, the United Dairymen of Arizona; and Russell Smoldon [see Part 1 of this series], speaking as a lobbyist for the Arizona Municipal Power User's Association.
According to legislative records, a much larger group registered opposition to the bill.
These opponents included representatives of numerous counties and municipalities (to include the City of Willcox, Coconino County, Mohave County, and La Paz County), the Arizona Attorney General's Office, former lawmaker Regina Cobb [see Part 1], numerous conservation advocacy groups, dozens of Arizona residents (including many Willcox Basin residents), and even influential Willcox Basin farmer and Cochise County Republican Precinct Committeeman Ed Curry.
In June of this year-- despite this overwhelming outpouring of public opposition to SB1221-- the bill failed in the House by only a very narrow margin. 29 members voted in favor, 28 voted against, and three members abstained.
Such is the power of these special interests and their lobbyists in Phoenix.
[Read Part 3.]
Beau Hodai, Cochise Regional News— October 2, 2024