By Ian Balitis.
The Arizona Megadrought
Ninety percent of the world’s population lives within six and a half miles of a surface freshwater body. This comes as no surprise considering the essential role water plays in human life. Access to drinking water is necessary for human survival. Approximately 98% of electricity production worldwide relies on water. The viability of agricultural food sources is dependent on water. Our reliance on water cannot be understated.
Unfortunately, Arizona currently faces its worst drought in 1,200 years. To add insult to injury, the COVID-19 pandemic spurred unprecedented population growth across Maricopa County, exacerbating the harmful effects of the megadrought. Put simply, water is at a premium in Maricopa County and, predictably, conflict has followed. On January 1, 2023, the City of Scottsdale followed through on years of threats and cut off water for approximately 500 homes in Rio Verde Foothills. Rio Verde residents promptly filed a lawsuit seeking restoration of their water services.
Rio Verde Foothills Residents Seek Relief
Rio Verde Foothills residents filed a complaint against the City of Scottsdale on January 12, 2023, seeking an order requiring the City to continue providing domestic water services. The residents’ legal theory rests on A.R.S. § 9-516(c), which prohibits a city with ownership of a public service corporation rendering utility services from discontinuing such service once established. Notably, the statute explicitly applies to utility services provided outside the boundaries of the city owner.
The residents’ complaint alleges the Plaintiffs qualify for permanent injunctive relief (continued water services as opposed to monetary damages) because: (1) they will suffer an irreparable injury; (2) monetary damages are inadequate; (3) the balance of hardships between the Plaintiffs and the City favors an equitable remedy; and (4) the public interest would not be disserved by a permanent injunction. While the outcome of the case remains uncertain, residents suffered a severe early blow when the Arizona Superior Court in Maricopa County denied their application for a temporary stay. The denial allowed the City of Scottsdale to continue refusing water services while the dispute is being resolved. The court concluded the residents had not provided evidence of irreparable harm because they failed to demonstrate they would be unable to obtain water from another source.
In fact, the community successfully implemented plans to acquire water from other cities in the weeks since the shutoff. However, the plans involve sending water haulers substantial distances and have led the average Rio Verde water bill to triple. Even worse, if the community is unable to develop a long-term plan to acquire reasonably priced water services, nearly 1,000 people will be left with homes in what could deteriorate into a ghost town.
In a letter to the Scottsdale Mayor and City Council, the Management Associate to the City Manager of Scottsdale, Stephanie Zamora, explained the City’s decision. Despite having provided Rio Verde Foothills water services for over 30 years, Scottsdale warned the community back in 2016 that it could not guarantee future service and recommended the community organize an alternative plan. These warnings persisted for over six years until the City decided it was done allowing Scottsdale taxpayers to fund Rio Verde’s water supply.
Further, although Zamora recognizes the community’s recent efforts to establish a long-term plan for water services, she contends that difficulties in obtaining necessary commitments from Edmonton Power Corporation (EPCOR) and the Maricopa County Board of Supervisors are a product of the community’s shady circumvention of the Arizona Assured and Adequate Water Supply (AAWS) Program. Under the Program, development authorization is conditioned on evidence the area has access to 100 years of uninterrupted water services. However, Rio Verde has been subdividing its land to skirt the scope of AAWS. This episode signals to the Arizona Department of Water Resources that AAWS, found at 12 A.A.C. 15 § 704(J), must be amended to close the loophole abused by Rio Verde Foothills for so many years.
What Happens Now?
While the City of Scottsdale’s decision to shut off water services to nearly 1,000 residents in the Rio Verde Foothills appears cruel at first glance, a closer look reveals there is more at play. The community circumvented rules designed specifically to ensure development isn’t jeopardized by a sudden unavailability of water services. Further, the community ignored repeated warnings from Scottsdale advising it to develop a long-term plan. Ideally, the parties will develop an agreement whereby the City can help facilitate the community’s transition to an alternate source of water services. If an amicable resolution fails, the residents’ lawsuit appears to be on shaky ground. Although Scottsdale appears to be in violation of A.R.S. § 9-516(c), Rio Verde’s water hauling alternative is clear evidence that its residents have not suffered irreparable harm and are not eligible for continued service.
By Ian Balitis
J.D. Candidate, 2023
Ian Balitis is a 3L staff writer for the Arizona State Law Journal. His legal interests include construction litigation and employment law. In his free time, Ian enjoys traveling and rooting for the Phoenix Suns.