Whoever said 'water is for fighting over' was right.

Little more than half a year following voter approval of Cochise County groundwater protections, the question of whether to repeal the Douglas AMA may be headed to the ballot.

According to Cochise County Recorder David Stevens, signatures turned into his office by the “Save Our Water” initiative have been verified, and, barring any successful challenges, the question of whether to repeal the newly-enacted Douglas Groundwater Active Management Area will be on the ballot in November, 2023.

The Douglas AMA (DAMA) was approved by the majority Douglas Groundwater Basin voters in November of 2022 through ballot Proposition 422— which marked the first time in Arizona history that local voters enacted local groundwater protections.

Prop. 422 was initiated by local residents concerned with the rapid expansion industrial agriculture, much of which is based out-of-state, and groundwater consumption in the Douglas Basin. The measure converted the existing Douglas Irrigation Non-Expansion Area (INA) into an active management area (AMA), with the resultant active management area covering the entire groundwater basin. The previous INA had only covered a portion of the basin. The basin and voter-approved DAMA extends, roughly, from the intersection of Highways 191 and 181 north of Elfrida, south to the U.S. Mexico border, encompassing the towns of Elfrida, McNeal, Douglas, and portions of Bisbee.

The "Save Our Water" campaign's application for a statutory measure initiative petition was accepted by the Cochise County Elections Department on May 8, 2023. According to the application, the campaign had approximately two months, ending July 7, to gather 1,310 signatures of registered voters residing within the basin in order to place the question of whether to repeal the DAMA on the ballot in November, 2023.

According to Stevens, his office completed the process verifying the "Save Our Water" petition signatures on July 13. Stevens said his office performed a verification on a random sample of 106 signatures. His office found that, of that sample, 83 signatures were valid, and 23 were rejected. From this sampling, Stevens extrapolated a 21-percent rejection rate, which, applied to the 2,173 signatures submitted by the initiative, resulted in an expected 1,658 valid signatures.

Potential challenges to signature validity

Stevens said that any challenge to the validity of the “Save Our Water” initiative’s petition signatures would have to come within twenty calendar days (beginning Friday, July 14). As such, according to Stevens, the deadline for any challenge to "Save Our Water" signatures is 5 p.m, August 2.

[Please note: in Cochise Regional New's earlier reporting on this issue, Stevens stated that the period for signature verification challenges was only five days.]

The verification of the DAMA repeal initiative petition signatures comes almost a year after opponents of Prop. 422 sought, unsuccessfully, in the summer of 2022, to challenge the 2,240 signatures submitted by Arizona Water Defenders, the group which advanced the voter initiative which resulted in the creation of the Douglas AMA.

That challenge, rejected as baseless by a Cochise County Superior Court judge, was advanced by Heather Floyd and Sonya Gasho. Gasho and Floyd headed "Rural Water Assurance," a campaign which worked throughout 2022 to oppose Prop. 422 and its sister initiative, Prop. 420, which sought to create an AMA in the neighboring Willcox Groundwater Basin (this was ultimately rejected by voters of that basin).

Review of available campaign finance records show that Rural Water Assurance was financed largely by out-of-state and local industrial-scale growers and well drilling companies. Gasho served concurrently as president of the Cochise County chapter of the Arizona Farm Bureau, the influential agricultural industry lobby group.

Now that the shoe is on the other foot, with the potential DAMA repeal question heading to the ballot in November, it is unclear whether there will be any challenge to the "Save Our Water" signatures. Arizona Water Defenders disbanded following the November 2022 election, and its former chair, Ash Dahlke, did not respond to CRN's request for comment on any potential challenges.

Questions of legal validity

Beyond any question of petition signature validity, some wonder if the proposed "Save Our Water" initiative even has legal authority to overturn the Douglas AMA. This poses a broader, and potentially higher hurdle, for those who would seek to repeal the voter-approved Douglas AMA.

"I intend to review this further, but my thoughts right now are that there is no legal basis upon which to just try to invent new proceedings in the absence of constitutional or statutory authority," said attorney John Mackinnon, who represented the Arizona Water Defenders campaign. "This ["Save Our Water" petition] does not appear to track the statutory AMA process, to actually be an initiative as that process is constitutionally authorized, nor to strictly comply with the requirements for that procedure."

The Prop. 422 initiative petition and ballot language was strictly prescribed by Arizona Groundwater Code, and the vote on the issue was something provided for under Arizona law-- specifically, Arizona Revised Statutes Title 45, Chapter 2, Section 415 (ARS 45-415), which allows for the local initiation of groundwater active management areas through a ballot measure.

Arizona Groundwater Code was created largely through the passage of the Arizona Groundwater Management Act of 1980.

Kathy Ferris was one of the primary architects of the 1980 Groundwater Management Act. She has served as both counsel and executive director of the Arizona Department of Water Resources (DWR), the entity tasked with overseeing the state’s groundwater active management and irrigation non-expansion areas-- all of which, along with ARS 45-415, were created through the passage of the Groundwater Management Act. Ferris is currently a practicing attorney, Arizona water law expert, and senior research fellow at Arizona State University's Kyle Center for Water Policy. She, like MacKinnon, sees no legal basis for the "Save Our Water" attempt to repeal the Douglas AMA.

Ferris told CRN that Arizona Groundwater Code provides no legal basis for a repeal of a groundwater active management area.

"The statute is very clear about who can file a petition to create and AMA, but there is no discussion of any filling of a petition to de-create one, so I don't think there's authority to do this," said Ferris.

Further, Ferris pointed out, under Arizona Groundwater Code (ARS 45-417), there is a legal process through which a certain percentage of groundwater users within a voter-approved AMA may petition the Arizona Department of Water Resources to re-draw the boundaries of an AMA, but that the "Save Our Water" initiative does not seek this avenue available under the law.

Indeed, the "Save Our Water" initiative language contained in the campaign's initiative application cites the law that was used by voters to initiate the Douglas Active Management Area, but cites no law under which it seeks to "de-establish" it. The initiative states:

"DE-ESTABLISH THE DOUGLAS ACTIVE MANAGEMENT AREA AND RESTORE THE DOUGLAS IRRIGATION NON-EXPANSION AREA.

"This initiative intends to repeal Proposition 422 as approved on November 8, 2022 by electors residing within the DOUGLAS ACTIVE MANAGEMEN AREA (AMA) in Cochise County, Arizona. Pursuant to ARIZONA REVISED STATUTE TITLE 45, SECTION 45-415, Proposition 422 established the Douglas AMA. This initiative intends to de-establish the DOUGLAS AMA and restore the DOUGLAS IRRIGATION NON-EXPANSION AREA (INA) exactly as it previously existed, including all prior irrigation rights and restrictions against irrigation on unirrigated land as described in the original terms and conditions governing the DOUGLAS INA." (sic)

Ferris told CRN she believes the Arizona Department of Water Resources and the Arizona Attorney General's Office should inform Cochise County that the "Save Our Water" initiative is not supported by statute.

DWR Communications Director Doug MacEachern did not respond to requests for comment.

Arizona Attorney General's Office Communications Director Richie Taylor declined to comment.

For his part, Cochise County Recorder Stevens told CRN he had similar questions about the language of the initiative, as no statutory authority is cited as its basis. Because of these concerns, Stevens referred his questions as to the legality of the petition to the Cochise County Attorney's Office (CCAO).

"When it first came out, I asked some very similar questions-- because this is not a normal case," said Stevens.

Stevens stated that he referred his questions to CCAO Civil Division Deputy County Attorney Paul Correa. According to Stevens, he did receive guidance in response these questions, though he declined to tell CRN what that guidance had been, citing attorney-client privilege. When asked whether he, the client, would waive this privilege and share Correa's conclusions, Stevens declined, referring further inquiry to Correa.

Correa did not respond to CRN's request for comment.

"I follow the process. Anybody can come in and pull paperwork to start and initiative-- so I'm doing my job," said Stevens. "Now, whether it's legal or not, that's up to somebody else [...] depends on whether it goes to court or not. If it goes to court, it'll be up to a judge."

"Save Our Waters"

According to the "Save Our Water" initiative application on file with the Cochise County Elections Department, one woman serves as both chair and treasurer of the campaign: Ann Waters.

Waters, to those familiar with the politicking that has surrounded the AMA issue for the past few years, should be no stranger. She was a vocal opponent of Prop. 422 in the period leading up to the November 2022 election, and has been one of the loudest voices since the election (particularly on Facebook) railing against the perceived injustices of the DAMA's implementation.

The voter-approved Douglas AMA is far from being fully implemented. Under Arizona Groundwater Code, once voters approve the creation of an AMA, a lengthy process to establish the AMA's goals and management plan is initiated. Under the law, this process requires a number of public hearings, agency studies, and shareholder input. The last public hearing and opportunity public for public input relative to the active management area's proposed goal was only just held on June 26.

Nevertheless, despite the fact that the DAMA is still largely nascent, Waters said she launched the repeal initiative because she believes the DAMA has hurt small growers, while doing nothing to slow the water use of industrial-scale growers.

Waters told CRN that she moved to the area from Wisconsin, purchasing her home in the McNeal area in 2001. Her home sits on about 40 acres, and is surrounded by several smaller parcels she owns. In total, according to DWR records, the property Waters purchased has grandfathered irrigation rights covering about 83 acres.

The irrigation rights attached to Waters' property had been "grandfathered" in through the creation of the Douglas Irrigation Non-Expansion Area, following the passage of the Groundwater Management Act of 1980.

When the Groundwater Management Act passed into law, all those within the bounds of the Douglas INA who were able to demonstrate they had been irrigating their property within the five years prior to the creation of the INA were granted "grandfathered irrigation rights."

As such, when Waters purchased her property in 2001, she purchased these INA grandfathered irrigation rights with it.

According to Waters (who told CRN she has a background in journalism), she spent the first few years at her new home trying to decide what to grow with her irrigation rights. A few years into her decision-making process, around 2003, said Waters, a severe freeze caused some of her property's water infrastructure to begin leaking. A while later, said Waters, she disconnected the electricity to her irrigation well pump. Waters said she never fixed the leaks caused by the freeze, and that some time after she had disconnected the electricity to her well pump, the power company removed the service line.

As such, Waters said, she has never used her irrigation rights-- over the roughly two-decade span in which she has owned them.

"And then, one day the AMA happened," said Waters, apparently describing notice given by DWR relating to the upcoming November 2022 vote on Prop. 422. "And I got the post card, saying 'too bad, you can't do anything to your pump, you can't pump anything, you're screwed.'"

The Cochise County Board of Supervisors called for the election on Prop. 422 in early September, 2022.

Under Arizona Groundwater Code (ARS 45-416), when electors residing within a groundwater basin initiate an election on whether to create a new groundwater active management area, a freeze on the irrigation of new acres goes into effect on the day the election is called for by the county board of supervisors. This means that any land not irrigated within the five years preceding the call for elections cannot be irrigated, pending the outcome of the election.

Further, under Arizona Groundwater Code (ARS 45-452(G)(2)), once an area that had formerly been an irrigation non-expansion area has been designated as a groundwater active management area by a majority of voters in the area, grandfathered irrigation rights issued under the former INA will be retained only by those rights-holders who are able to demonstrate irrigation, or "substantial capital investment" in either the improvement of the land or irrigation infrastructure, in the year preceding the call for election implementing the new AMA.

In a nutshell: because Waters had not used, or invested in, her grandfathered irrigation rights during the more than two decades in which she owned them, she stood to lose them once voters of the Douglas Basin decided to convert the Douglas INA into the Douglas AMA.

This, said Waters, hit her where it hurts: property value.

"When you buy your property, you get a deed for your property and you are given a certificate of irrigation rights, that came with your deed. I received a letter from the Arizona Department of Water Resources, along with my certificate of irrigation, that told me 'keep this in a safe place because this adds value to your property.' I still have that letter-- I kept it," said Waters. "Taking away my water rights, my irrigation rights, conversely, takes away value from my property."

Though Waters said she had not used her irrigation rights or improved her property or irrigation infrastructure prior to the Cochise County Board of Supervisors' call for an election on Prop. 422-- and would, therefore, not be able to keep her unused irrigation rights should she apply for new rights under the AMA-- she, and others in the community, were deeply angered when DWR unveiled details of their irrigation rights application process. Following voter approval of the Douglas AMA, the agency announced they would charge between $500 and $10,000 to review applications for grandfathered irrigation rights under the new Douglas AMA (the cost depending on the complexity of the system of irrigation rights to be reviewed). This proclamation on the part of DWR raised the ire of supporters and opponents of DAMA alike, and has likely been the one issue that has produced unity in recent years.

As a result of this public outrage, Waters and other opponents of the AMA gained momentum in their mission to overturn the new groundwater protections.

Waters told CRN that she is believes there is no water crisis in the Douglas Basin and that she is deeply skeptical of the motives, or "agenda," behind the creation of the Douglas AMA-- to include the "agendas" of DWR personnel unknown-to-her, responsible for drawing the groundwater basin map, which includes portions of more-liberally minded Bisbee.

Deeper still, Waters told CRN she believes "big money globalist donors" were behind the Prop. 422 campaign. Though Waters declined to identify what "big money globalist donors" she was referring to, how much she believes they gave the Arizona Water Defenders Prop. 422/Prop. 420 campaign, or what a "globalist" is, it is easy to imagine the kind of informational sphere opposition to the Douglas AMA is currently operating in.

Review of campaign finance records filed by Arizona Water Defenders Political Action Committee, which operated from the summer of 2021 to early 2023, discloses that the PACs largest individual donors were campaign personnel themselves. This included PAC chair Ash Dahlke, who is a professor at Cochise College, and Cheryl Knott, a Pearce resident and associate professor a the University of Arizona. Dahlke and Knott contributed, between them, more than $8,000. Other campaign personnel who donated included Arizona Water Defenders Treasurer Rebekah Wilce (Elfrida public library branch manager) and campaign researcher MaryAnn Capeheart, a Bisbee resident.

[Full disclosure: I, an Elfrida-area resident, was part of the Arizona Water Defenders campaign through the course of 2021. I did not donate any money to the campaign.]

Campaign finance records do disclose that the Arizona Water Defenders PAC received a $1,500 donation from non-profit advocacy group Rural Arizona Action, but that the vast majority of the campaign's overall funding came in the form of smaller donations from area residents.

It took the Arizona Water Defenders campaign close to a year to gather all of the signatures it needed to place Propositions 422 and 420 on the ballot. This included the more than 2,200 signatures the campaign gathered in the Douglas Basin. According to Dahlke, he group employed no paid petition circulators, relying entirely on local volunteers.

In contrast, Waters' "Save Our Water" AMA repeal initiative campaign was able to gather more than 2,100 signatures in just eight weeks.

Waters told CRN that she assembled a group of 22 petition circulators who worked tirelessly to gather the signatures needed to get her DAMA repeal initiative on the ballot.

Though Waters asserts her signature gathering efforts were largely powered by volunteers, she told CRN that there was a paid petition circulator among them.

"We had one paid circulator whose employer sent her to help us get signatures and paid her her regular salary," said Waters.

Waters declined to disclose the identity of the paid cirulator's employer.

Waters claims to have raised approximately $1,300 thus far, from two donors. She declined to disclose the identity of the donors.

Neighbors living the water crisis react

Retired School teacher Elaine Bailey purchased her home in the the Elfrida area in 2018. The area surrounding her home has seen rapid growth of industrial-scale agriculture and well drilling in recent years. As a result, Bailey said she has had to lower her well pump. It is now at its lowest depth, and if their water level drops any further, she will need a new well-- which she cannot afford.

Bailey believes that a repeal of the newly-enacted Douglas AMA is a move in the wrong direction.

"What am I going to do-- what are you going to do-- when the time comes when we run out of water?" asked Bailey. "My home will not be worth shit! I don't have an extra $500,000 to just walk away and buy another place. [...] That's not fair. We're in Arizona here, in the desert. There's got to be some control on the water."

Bailey said she is well aware of how contentious the water issue has become, and is familiar with Waters and her gripes with the AMA.

"People can easily create a frenzy on misinformation-- and the things is that it's your responsibility to know. What do you need, someone to sit with you and explain every little thing? If you don't understand something-- find out," said Bailey of Waters and others who are now complaining they were blindsided by Arizona water law and the AMA.

Chris DeMatteo is a rancher and neighbor of Waters' in McNeal. His 30-acre property and home is just under three miles to the east of Waters. DeMatteo's property is situated immediately across the street from a large agricultural property which he says has seen the drilling of several new wells in recent years.

Following a wave of agricultural well-drilling, DeMatteo said, his well ran dry. He now has to haul water, both for his household needs and for his cattle, horses, and other animals.

DeMatteo is not happy about the effort to repeal the AMA.

"I think it's a bunch of crap-- they've got million-dollar wells next door, across the street, and the rest of us are just trying to survive over here. You know, we actually have to have water brought into us now, and any other water we need, we have to haul for ourselves," said DeMatteo. "Our well is about 300-and-something feet deep, and they wanted $18,000 to go down another hundred feet. So, the guys across the street-- they've got million-dollar wells over there. They're probably 1,000, 1,500-feet deep."

DeMatteo said that many of his neighbors' wells have run dry, and that only a few homes remain in the area with their own functioning wells.

Emily Owens' family property and home is in the same area, about three miles east of Waters’ place, also right across the street from the area where she and DeMatteo say many new agricultural wells have been dug.

Owens told CRN she is an animal trainer, raised in a ranching family, who has been working in the area for nearly two decades. She said she bought her home in 2016, principally because it had a good well.

"I though 'this is perfect.' It's way off the highway, I can protect my son. You know, and I'm also an animal trainer. Nice life. Nice big well-- big fat well.... until that jerk across the street..... I'm sorry, I don't like that guy."

At some point in 2021, said Owens, she and her other neighbors began noticing an uptick in agricultural well drilling around them-- counting at least seven well rigs at work at various times and locations in the area. Four months after the rigs appeared, "boom!" said Owens, DeMatteo's well ran dry, then-- "boom! boom! boom!"-- Owens' well ran dry, then another neighbor's well ran dry...

Owens said the rapid loss of wells among her neighbors was hard, and they helped each other out, procuring tanks and trailers to make sure they could begin hauling water to their homes. She said she got an estimate for deepening her well, and was told it would cost $42,000. Now she hauls water herself, using two 250-gallon water tanks.

"I sold my livestock-- all my animals. All gone-- chickens, goats, cows, pigs, horses," said Owens. "My favorite horse. I broke him, I'd had him for 21 years-- and I sold him because I was afraid I couldn't afford the water. Horses can drink four gallons in one minute, in the summer. So, you can imagine how much water he'd go through. I sold him to a guy in Huachuca whose got a nice big ranch, and a nice big well. I sold him dirt cheap-- that's a $5,000 horse I let go for $400. I sold my pot-bellied pigs, and I sold all of my show dogs. I had a husky, two German shepherds, border collie, two Queensland heelers-- that were trained. I worked really hard with those dogs, and I had to sell them all."

"But you know what is really sad about it? When you finally get a letter from the school, telling you 'we are concerned about all the kids' hygiene, because they can't take a bath, because there's no water."

Owens has seen a lot of families leaving the McNeal area as groundwater dwindles. She and her family are leaving too-- and they don't know what to do with property that has no water; their property value is severely diminished without a well, and she doubts they could find a renter who would want to have to haul their own water.

"I've been a horse trainer down here for 18 years, so I know a lot of people-- and I've watched almost all of them go."

"I just want water for my son," she added. "If he can have water, maybe he can have a pool-- play in the sprinkler. The horse can have water. And I can grow a frickin' apricot tree without worrying about the bill."

Of Waters and her attempt to restore her unused irrigation rights through her "Save Our Water" AMA repeal initiative, Owens offered a blunt assessment:

"I'm sorry about your life, but you've got to share the love a little with your neighbors. It's called being neighborly. I think she's being a little selfish. I mean, I've paid thousands just to help my neighbors haul water, bring in water. I've done it. Pulling flat-bed trailers, all that. [...] I just thought that was the neighborly thing to do, because that's how I grew up."

[Full disclosure: I volunteered my time in support of Prop. 422.]