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SIERRA VISTA - An environmental group has two federal agencies and two state agencies in its sights for allegedly failing to protect the San Pedro River.
The Army and the U.S. Fish and Wildlife Service have earned the ire of the Center for Biological Diversity, which contends Fort Huachuca officials have failed to meet their contractual obligations with USFWS.
The center also accuses the Arizona Department of Water Resources and state Attorney General's Office of engaging in fraud or not investigating fraudulent actions.
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Phoenix physician Robin Silver informed the two federal entities in March the center intended to sue if there was no reopening of the biological opinion.
On Saturday, Silver said the 60-day period that both organizations had to respond to the center's intent letter filed in mid-March is over.
"They had 60 days to respond and they didn't," he said. "We will file the suit on May 31."
Garrison Commander Col. Jonathan Hunter said Saturday that there will be no comments about the lawsuit until it has been filed and Army officials can review the document.
Hunter said during an interview in March that he disagreed with Silver's and the center's view that the fort is expanding beyond what is authorized in the agreement. He said then that the post expects to grow by a couple of hundred employees, as well as additional students who are trained on the fort while in a temporary duty status, meaning they are not permanently assigned to the installation.
In the center's March notice, Silver said the fort's population expanded by 2,851 people.
The agreement the post and U.S. Fish and Wildlife Service entered into binds the Army to limit its growth, he said.
The biological opinion was signed by the two federal agencies on Aug. 23, 2002. The fort is bound not to expand by more than 500 between that date and 2011, Silver said.
He said that because the post broke its contractual obligations, the center wants the Army and Fish and Wildlife Service to re-negotiate the agreement.
Silver denies he wants the post closed, but admits he does not want it to expand.
On May 13, Secretary of Defense Donald Rumsfeld released his proposed Base Realignment and Closure Commission list.
The post was not on the list to close, but the Pentagon's plan made a slight reduction of jobs on the installation - 167 civilian positions lost.
Another issue for Silver is that the fort as failed to "significantly lower" its groundwater pumping deficit for 2003 and 2004, which Hunter said is not true.
Hunter said the fort has taken many actions to save water.
"The fort's record of water conservation, mitigation and reuse is excellent," Hunter said in a March 19 Herald/Review article.
Bob Strain, chairman of the Upper San Pedro Partnership and Sierra Vista's mayor pro tem, said the fort and partnership are doing good work in conserving water.
Although the partnership's actions may not be fast enough for Silver, the group's actions are leading to reduced water use in the Sierra Vista Subwatershed, which includes the fort, Sierra Vista, Bisbee, Huachuca City, Tombstone and many parts of Cochise County's unincorporated areas, Strain said.
State agencies targeted, too
The center also is aiming its efforts at ADWR and the state's Attorney General's Office. On Friday, the Center for Biological Diversify, through Silver, inferred the two state agencies are failing to meet their duties in protecting the river.
In a letter to Attorney General Terry Goddard and ADWR Director Herb Guenther, Silver said the state water regulatory agency continuing to give certificates of adequacy in the Sierra Vista Subwatershed is fraud.
Silver contends continued growth in the subwatershed is stopping water from reaching the river.
"There is not adequate water," he said.
The state's Attorney General's Office is a partner to the fraud because it will not investigate the dishonest certification of water adequacy, according Silver's Friday letter.
Goddard said he had a conflict of interest in investigating the issue, but Silver said a review of state law shows he can look into ADWR's practices.
The center filed the same concerns last year with both agencies, Silver said. Friday's letter is bringing the issue the agencies attention again.
Under the state's Consumer Fraud Act, Goddard can look into ADWR's improper actions, Silver said.
In 1984, ADWR went on record saying there wasn't a sufficient supply of water in the subwatershed and refused to issue certificate of adequacy, he said.
But in 1993, under pressure from then Gov. Fife Symington, the decision was reversed, Silver said.
If there was inadequate water in 1984 to 1993, there is inadequate water now in light of the expanded growth in the subwatershed, he added.
Any resident who lived in the region prior to 1985 has water rights, Silver said. But those who moved in after 1985 may see water use reduced once the federal water rights issue is finalized, he said.
ADWR's change of position in 1993 "didn't do a service to anyone," Sliver said.
He believes the problems would not be as large as they are today if an Active Management Area had been established in the subwatershed.
ADWR has refused on at least two occasions to designate the region an AMA, which would restrict development and require developers and others to inform potential builders and buyers there is no 100-year guarantee of water.
Strain, who was in Tucson on Saturday attending a meeting about Tucson's water problems, said it is interesting that the Pima County community is part of an AMA and ADWR is providing the necessary certificates of water adequacy.
Most of Tucson's water supply is from a municipal utility, unlike most wells in the Sierra Vista Subwatershed that are operated by private water companies or owned by residents. Tucson is in the process of preparing for water bond issues, which could involve forced conservation.
Tucson is suffering from land subsidence and is not receiving its share of Central Arizona Project water, Strain said.
"It is still growing, faster than we are (in the Sierra Vista Subwatershed)," he said.
Threatening to sue state agencies
Silver said continued growth will lead to the eventual death of the San Pedro River, the Southwest's last ribbon of life for many species. The river must continue to flow, especially in the hot, dry summer months, he said.
Growth will continue until certificates of water adequacies are stopped, Silver said.
"Damages to individual property owners will also be substantial if ADWR fails to stop falsely representing the adequacy of future supply in the Fort Huachuca area. If the fraud is not stopped, federal infrastructure loans, underwriting and loan guarantees will continue, water restriction will become necessary and the San Pedro River will undoubtedly die," said Silver, who owns property along the waterway.
Like he did in March, Silver warned the two state agencies they face a possible lawsuit.
"With this notice please be advised of our intention to pursue citizen legal action in Superior Court if the Arizona attorney general continues refusing to investigate and halt ADWR's ongoing violations of the Consumer Fraud Act," Silver's Friday letter states.
SENIOR REPORTER Bill Hess can be reached at 515-4615 or by e-mail at bill.hess@svherald.com.
Ezai I. Martinez wrote on Jun 24, 2009 7:58 PM: