By Matthew Holloway |
According to a recent letter from the Goldwater Institute, Governor Katie Hobbs’ administration has imposed a regime of regulation that has ground the development of new home construction in the fast-growing areas of Maricopa County to a halt. Now, the organization is challenging the validity of the newly established rules.
A press release this week from Goldwater stated that the action conducted by the Arizona Department of Water Resources (ADWR), which lacks the approval of the Arizona legislature or a formal regulatory approval process, is “driving up housing costs for all Arizonans and threatens to stifle economic growth in our state.”
Goldwater went on to characterize the ADWR’s move as “one of the most significant bureaucratic overreaches in Arizona’s history.” In its letter to the agency, it urged leaders to reverse course.
Jon Riches, Goldwater’s Vice President for Litigation, explained in his letter:
“ADWR has imposed two AMA-Wide rules that have prevented HBACA (Home Builders Association of Central Arizona) members from obtaining Certificates of Assured Water Supply. The first of these invalid rules provides that, if groundwater modeling predicts that a well may not be able to fully satisfy projected demand in any location within the Phoenix AMA Model domain within the next 100 years, then there is no groundwater available throughout the entire model domain (‘AMAWide Unmet Demand Rule’). The second invalid rule provides that if modeling predicts that depth-to-water will exceed 1,000 feet in any location within the Phoenix AMA in the next 100 years, then there is no physical availability of water anywhere within the Phoenix AMA model domain (‘AMA-Wide Depth-to-Water Rule’).”
Goldwater noted that the AMA-Wide Unmet Demand Rule doesn’t exist under Arizona law and was not adopted through the legal rulemaking process. It argued that under previous rulings in Arizona courts, the policies are “rules” and are legally subject to Administrative Procedure Act’s (“APA”) rulemaking process. Specifically, it cites “an agency policy as a rule subject to the Administrative Procedures Act’s rulemaking process as one that ‘is generally applicable, and … implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of an agency.’”
Furthermore, the rule was reportedly created under what Goldwater refers to as a “flawed concept,” the eponymous “unmet demand,” which establishes that if a groundwater shortage is projected by models at any location within a given management area, then zero groundwater across that area will be considered available for any use.
“The model further compounds this issue by arbitrarily placing wells throughout the management area that do not move over the course of 100 years, far in excess of the life expectancy of most wells,” Goldwater writes.
”If water in a hypothetical well is projected to dip below a certain depth in the East Valley, the agency declares a water shortage for developments in entirely unrelated areas like the West Valley.”
In the release, the Goldwater Institute expressed concern that the Hobbs administration took this action unilaterally, effectively defying both the legislative and judicial branches of the Arizona government in what amounts to a massive overreach of her executive authority.
Matthew Holloway is a reporter for AZ Free News. Follow him on X for his latest stories, or email tips to Matthew@azfreenews.com.
