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HomeMy WebLinkAbout06/20/2007 Special Council Meeting Agenda Packet SPECIAL COUNCIL MEETING NOTICE AND AGENDA Council Chambers 11555 W. Civic Center Drive, Marana, Arizona 85653 June 20, 2007, at or after 6:00 p.m. Ed Honea, Mayor Herb Kai, Vice Mayor Council Members Russell Clanagan Patti Comerford Tim Escobedo Carol McGorray Roxanne Ziegler ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA. Revisions to the agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in italics. AS A COURTESY TO OTHERS. PLEASE TURN OFF OR PUT IN SILENT MODE ALL PAGERS AND CELL PHONES. Welcome to this Marana Council meeting. Regular Council meetings are usually held the first and third Tuesday of each month at 7:00 p.m. at the Marana Town Hall, although the date or time may change, or Special Meetings may be called at other times and/or places. Contact Town Hall or watch for posted agendas for other meetings. This agenda may be revised up to 24 hours prior to the meeting. In such a case a new agenda will be posted in place of this agenda. If you are interested in speaking to the Council during Call to the Public, Public Hearings, or other agenda items, you must fill out a speaker card (located in the lobby outside the Council Chambers) and deliver it to the Town Clerk prior to the convening of the meeting. All persons attending the Council meeting, whether speaking to the Councilor not, are expected to observe the Council Rules, as well as the rules of politeness, propriety, decorum and good conduct. Any person interfering with the meeting in any way, or acting rudely or loudly will be removed from the meeting and will not be allowed to return. To better serve the citizens of Marana and others attending our meetings, the Council Chambers are wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of special services as a result of their disability, such as assistive listening devices, agenda materials printed in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such special services are available upon prior request to the Town Clerk at least 10 working days prior to the Council meeting. Copies of the agenda are available the day of the meeting in the lobby outside the Council Chambers or online at www.marana.com. by linking to the Town Clerk page under Agendas, Minutes and Ordinances. For questions about the Council meetings, special services or procedures, please contact the Town Clerk, at 382-1999, Monday through Friday from 8:00 a.m. to 5:00 p.m. Posted no later than June 19,2007,6:00 p.m., at the Marana Municipal Complex, the Marana Operations Center and at www.marana.com under Town Clerk, Agendas, Minutes and Ordinances. SPECIAL COUNCIL MEETING NOTICE AND AGENDA Council Chambers 11555 W. Civic Center Drive, Marana, Arizona 85653 June 20, 2007, at or after 6:00 p.m. SPECIAL MEETING A. CALL TO ORDER AND ROLL CALL B. PLEDGE OF ALLEGIANCE AND INVOCATION/MOMENT OF SILENCE c. APPROVAL OF AGENDA D. CALL TO THE PUBLIC At this time any member ofthe public is allowed to address the Town Council on any issue not already on tonight's agenda. The speaker may have up to three minutes to speak. Any persons wishing to address the Council must complete a speaker card located outside the Council Chambers and deliver it to the Town Clerk prior to the commencement of the meeting. Pursuant to the Arizona Open Meeting Law, at the conclusion of Call to the Public, individual members of the council may respond to criticism made by those who have addressed the Council, may ask staff to review the matter, or may ask that the matter be placed on a future agenda. GENERAL ORDER OF BUSINESS E. PRESENTATION 1. "Water 101": General legal and historical overview of water rights and resource considerations affecting the Town of Marana (Frank Cassidy) F. EXECUTIVE SESSION 1. Executive session pursuant to A.R.S. ~ 38-431.03(A)(3), (4), (6) and (7) for legal advice with the Town Attorney concerning water rights issues and to consult with and instruct the Town Attorney and the Town Manager concerning (i) the Town's position regarding various pending contract and property acquisition negotiations with the goal of securing additional Town water resources, (ii) the 1979 intergovernmental agreement between the Town of Marana and Pima County relating to sewer service within the Marana town limits and to direct the Town Manager and Town Attorney with respect to that agreement, and (iii) Town legal issues arising out of the 1979 intergovernmental agreement between the City of Tucson and Pima County relating to wastewater management and effluent ownership. G. ADJOURNMENT TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: June 20, 2007 AGENDA ITEM: E.1 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: "Water 101": General legal and historical overview of water rights and resource considerations affecting the Town of Marana DISCUSSION This is a PowerPoint presentation overview of water rights and resource considerations affecting the Town of Marana. It provides the Council with the necessary general legal and historical background for tonight's executive session on water resource issues. RECOMMENDATION None. A TT ACHMENT(S) Three slides per page handout of the PowerPoint presentation. SUGGESTED MOTION None. {FC0215.DOC/} - I - 6/15/20073:16 PM FJC Town Council Presentation: Marana Water Overview Status and Options June 20, 2007 Frank Cassidy, Town Attorney Part One: Public Session Introductory principles o It is not possible to "own" water in Arizona, but one may own the beneficial use of water o Arizona water law is divided into separate bodies of law " Surface water law , Groundwater law Surface water law o First in time is first in right The first person to make beneficial use of surface water has the highest priority rights to that water, even with respect to later up-stream users o Water need not be flowing on the surface to be surface water A well may be pumping underground flow of a nearby water course This "subflow" is also considered to be surface water under Arizona law 1 Surface water law o When is water pumped from a well "subflow" (surface water)? Wells drawing water from within the saturated floodplain Holocene alluvium are presumed to be drawing surface water * Wells drawing water from outside this area are presumed to be drawing groundwater ~MAftuvit.tm ...... ~wnu.SUrl-~Wetft ~~~ 2 Surface water law o Water rights are determined by giant lawsuits referred to as "adjudications" Little Colorado River Adjudication Gila River Adjudication Include the surface water claims of about two-thirds of the State Surface water law o The Santa Cruz River & tributaries are in the Gila River Adjudication Tributary to the Gila River System Whether the Santa Cruz ought to be separated is a pending issue Water courses are litigated starting at the top reach of each water course It will probably be at least 20 years Santa Cruz River surface rights are determined 3 Groundwater law o Marana is in the Tucson AMA c AMA = active management area o In an AMA: All new subdivisions required to show a 100-year AWS Most satisfy their AWS requirement by connecting to a water company with an AWS designation from ADWR '" AWS = assured water supply c, ADWR = Az Dept of Water Resources 10 Groundwater law o A water company gets an AWS determination from ADWR by showing that it has: physically available water, " the legal right to that water, and the ability to replenish as much water as it is drawing out of the ground (a gallon of water recharged for every gallon pumped from the ground) Groundwater law o Water recharge options "Managed" recharge projects o 50% recharge credits for percolation '" Water at upstream gauge minus water at downstream gauge minus evaporation o Recovery wells may pump the amount of water cred its '" Effluent percolation is reduced due to the "schmutzdeck" (a film deposited by effluent on the channel invert) 4 Groundwater law o Water recharge options "Constructed" recharge projects Constructed water percolation basins (' Multiple basins flooded at different times and permitted to dry out AvOids the creation of a schmutzdeck Owner receives credit for percolation 100% credit for effluent 95% for CAP water Recovery wells may pump the amount of water credits Groundwater law o Direct delivery of surface water or treated effluent does not create a replenishment obligation o Water deliveries by a provider without an AWS designation: * Do not require replenishment * Do not satisfy a developer's AWS requirement Groundwater law o Special issues related to effluent General rule: The owner of a wastewater treatment plant (WWTP) owns the beneficial use of any effluent coming out of the WWTP Effluent abandoned into a watercourse is subject to appropriation like any other surface water (' BUT recharged surface water may not be stored long-term; it must be recovered by the end of the next calendar month 15 5 Groundwater law o Special issues related to effluent ~ Prior in time/prior in right with respect to other effluent appropriators Appropriators' rights are contingent on the WWTP owner's continued abandonment of the effluent Appropriative rights are lost when the WWTP owner uses the previously abandoned effluent before it leaves the WWTP site Groundwater law o Effluent acquisition and AWS The extent to which effluent acquisition helps AWS designation depends upon the length of the effluent acquisition contract , One acre-foot is added toward AWS designation for each 100 acre-feet of effluent acquired and recharged in a constructed recharge faCility 17 Groundwater law o Effluent acquisition and AWS Long-term acquisition of effluent is counted toward AWS designation based on the term of the effluent contract and the term of the constructed recharge project's license o Example: A 20 year contract to purchase tO,OOO acre-feet per year of effluent recharged in a constructed recharge project licensed for 25 years will give an AWS value of 500 acre-feet 6 Marana water history 19 Pima Farms Co. v. Proctor (1926) o Facts Proctor and Pima Farms were competing Santa Cruz River surface water appropriators . Proctor was first in time & downstream Pima Farms was upstream of Proctor, began appropriating water later in time, and was pumping subsurface flow from wells along the Santa Cruz River Pima Farms Co. v. Proctor (1926) o Facts Proctor's original two wells were drawing water at 55 and 39 feet, respectively, in 1913 Pima Farms' pumping increased Proctor's depth to water by about 22 feet in each well (to 77 and 61 feet, respectively) 7 Pima Farms Co. v. Proctor (1926) o Court's rulings Pima Farms could continue to pump even though it affected Proctor's prior appropriation 4 But Pima Farms was required to provide Proctor water for what it cost him before Pima Farms' appropriation Impliedly acknowledged Pima Farms' appropriative right to 29,100 acre-feet of subsurface Santa Cruz River flow Pima Farms certificate of surface water right (1943) o Confirms Pima Farms' rights to 29,190 acre-feet of surface water o Right is tied to specific identified lands o Allows withdrawal from certain specified wells ("diversion" points) o All specified wells are upstream of the Rillito narrows 23 8 Deed from Cortaro Farms Co. to CWUA (1946) Transferred "all subterranean percolating waters contained within, underlying and which can or may be produced from" the 19,827-acre area then served by CWUA Reserved "such water as may be used by the owners and inhabitants of the ... land for domestic and other purposes that may be produced from wells of the capacity of not to exceed fifty (50) gallons per minute" Current CMID/CWUA information o Cortaro-Marana Irrigation District (CMID) now delivers to land owners the surface water formerly delivered by the Pima Farms Co. o CWUA is the "agent" for CMID o CMID/CWUA operates groundwater wells below the Rillito narrows Most water delivered to northwest Marana farms is from groundwater wells 26 1997 Marana/CMID IGA Gives Marana access to CMID's historic surface water rights BUT the surface water rights continue to be held by CMID "Town and District shall cooperate to put the appropriative rights to full beneficial [use] and to the extent the full appropriative right is no longer needed for meeting agricultural water needs, then the Parties shall take such actions as are prudent to utilize the appropriative right for non-agricultural purposes." 9 1997 Marana/CMID IGA "To the extent requested by District, Town agrees to seek recognition of this renewable resource for purposes of proving an Assured Water Supply for lands within the District and to utilize this renewable resource for municipal water deliveries, to the extent such surface water right is actually recognized by ADWR, recognizing that the legal character of appropriative rights may limit the application of this renewable resource." 1997 Marana/CMID IGA o Creates a Trust (CMID is Trustee) * Holds five CMID wells o Wells used solely for irrigation are not placed in Trust; they remain owned by CMID o When no longer needed for irrigation, the Town has a right of first refusai to purchase them * Holds all current and future Town wells within the District boundaries Pays for Trust well operations and maintenance costs o Town responsible for O&M costs of everything other than the wells and directly associated equipment 29 1997 Marana/CMID IGA o Water purchase provisions Requires Marana to buy from CMID the first 20,000 acre feet of water used within the District Sets the price per acre foot and the method for annual price adjustments 10 1997 Marana/CMID IGA o Non-potable water service Both CMID and Marana have the right to provide "non-potable, non-irrigation water service within the District" Recognizes that "[h]aving the District serve large non-potable, non-irrigation water users may assist and benefit Town in complying with GPCD requirements for Town Service Area" Provides that "District shall work with Town where it can assist in meeting these [GPCD] requirements..." 31 1997 Marana/CMID IGA o Deed reservations provisions Recital 1.3.7: CMID is to deliver water to Marana "in amounts that approximate no less than the annual municipal water customer demand within the District" both to provide CMID "with a source of revenue to assist it in fulfilling its primary function and avoid conflict with the District's 50 gpm deed restriction" (Emphasis added) 32 1997 Marana/CMID IGA o Deed reservations provisions '112.2.3: "The Town, by entering into this Agreement, does not agree or admit that the deed restriction applies to municipal wells; and District does not agree or admit that the deed restriction does not apply to municipal wells. Town shall not drill, acquire, own or operate a well within the District in excess of 50 gpm during the term of this Agreement except as provided by this Agreement" 11 1997 Marana/CMID IGA o Deed reservations provisions '112.2.5: "In the event the wells revert due to the material breach of this Agreement by the District or due to an action initiated directly or indirectly by the District, then District shall not enforce the 50 gpm pumping restriction against Town and no further consideration shall be due and owing for the purchase of the District's municipal water system." " 1979 Marana/Pima County sewer service IGA o Pima County provides, administers & manages sewer service within the Marana town limits o Provides for termination upon six months' notice 35 1979 Marana/Pima County sewer service IGA o Upon termination, all sewer facilities located in the town limits are: + Owned by the Town Except any facilities "relating to flow- through sewer facilities," which "shall remain vested in County" " A "flow-through sewer" is "a sewer for transmission of sewerage from the upstream property, traversing the subject property (Town of Marana), to connect with downstream facilities" 12 1979 Tucson/Pima County IGA o Transferred ownership of all Tucson sewer assets to Pima County o Acknowledged Tucson's ownership of all water assets o Effluent from all Pima County WWTPs recognized as a water asset o Contractually modifies normal Arizona water law regarding effluent ownership 1979 Tucson/Pima County IGA o Tucson ownership and "unilateral control" of metropolitan WWTP effluent Except Pima County parks and recreation uses get 10% from metro WWTPs o Tucson "unilateral control" but not ownership of non-metropolitan WWTP effluent No limitation out of non-metropolitan plants for parks and recreation uses 1979 Tucson/Pima County IGA o Authorized Tucson to use any and all effluent generated from all Pima County WWTPs to settle then pending water litigation with the Indian tribes .~ Tribes contended that groundwater pumping in the Tucson area had significantly affected their historic water rights 13 Southern Arizona Water Rights Settlement Act of 1982 (SAWRSA) o Settled Indian water rights litigation o Made 28,200 acre-feet per year of effluent available to the Secretary of the Interior in trust for the tribes o Does not identify which WWTPs the 28,200 acre-feet is to be taken from 40 Southern Arizona Water Rights Settlement Act of 1982 (SAWRSA) o Has historically been interpreted by Tucson to require each Pima County WWTP to set aside a proportionate share of all effluent for SAWRSA o To date, the only substantial beneficial use of SAWRSA has been in connection with the Santa Cruz Managed Recharge Project (discussed below) 2000 amendment to 1979 Tucson/Pima County IGA o Set aside 10,000 acre-feet of effluent per year for conservation purposes The 10,000 acre-feet is not taken from any particular WWTP " Interpreted by Tucson as a proportionate effluent output set-aside from each WWTP o Tucson largely relinquished "unilateral control" of non- metropolitan WWTP effluent " 14 2000 amendment to 1979 Tucson/Pima County IGA o Established "water in/water out" Water providers would be given an opportunity to take ownership of the effluent associated with their water deliveries Subject to allocations for SAWRSA, the conservation effluent pool, and Pima County's 10% Has resulted in Pima County effluent IGAs with Oro Valley and Metropolitan Water 2000 MaranalTucson IGA o Tucson Water serves areas east of Interstate 10 o Marana transfers to Tucson water resources used to serve these customers oS-year term ended in December '05 o Retroactive extension soon to be presented for Council approval Marana-relevant water status and projects 45 15 Marana CAP contracts o 47 acre-feet acquired from CMID o 1,481 acre-feet acquired from Flowing Wells Irrigation District Currently pending recommended approval from CAWCD and final approval from the Secretary of the Interior Marana CAGRD membership o Marana has a member service area agreement with the Central Arizona Water Conservation District (CAWCD) to be a member of the Central Arizona Groundwater Replenishment District (CAGRD) o Marana's agreement does not contain a quantity restriction, but the water cost is high and will continue to rise over time 47 Marana CAGRD membership o About CAGRD Created by the Arizona legislature as a mechanism for member lands and water providers to purchase water resources necessary to meet AWS requirements . Acquires and recharges all excess CAP water as it flows down the CAP canal, and any other available surface water Charges members using a statutory formula calculated based on the member's groundwater usage 16 Santa Cruz Managed Recharge Project (effluent only) o Operated by CMID by IGA among Pima County and most major area water providers, including Marana o Extends from approximately the Ina Road bridge to the Trico Road bridge o Recharged 18,591 acre feet of effluent in 2005 (50% credit: 9,295) o 35,147 acre feet of effluent flowed past the Trico Road bridge and into Pinal County in 2005 High Plains Constructed Recharge Project (effluent only) o Located near Santa Cruz River and Sanders Road o Recharges CMID-appropriated effluent Maximum 600 acre feet per year o Recharged 178.3 acre feet in 2005 as a pilot project o Permit now renewed as permanent facility by Pima County & Marana so High Plains Constructed Recharge Project o Now includes Pima County effluent and CMID appropriated effluent Recharged Pima County effluent accumulates long-term storage credits Recharged CMID appropriated effluent does not accumulate long-term storage credits; must be recovered the earlier of " The end of the month after it is recharged C) The end of the calendar year o Working on increasing the capacity to 1,200 acre-feet per year 17 Avra Valley Constructed Recharge Project (CAP only) o Located near the Santa Cruz River and the Marana Regional Airport o Operated by the State and CAWCD o Covers approximately 40 acres o Recharges approximately 10,000 acre-feet of CAP water per year o Any water provider with CAP may recharge at this facility, subject to available capacity Lower Santa Cruz Replenishment Project (CAP only) o Located adjacent to the Marana Regional Airport o Operated by the State and CAWCD o Recharges CAP water Permitted for 60,000 acre feet/year Recharged about 45,000 af in 2005 o Covers approximately 120 acres Lower Santa Cruz Replenishment Project o Any water provider with CAP may recharge, subject to available capacity # One percent of this facility's capacity (600 acre-feet per year) is guaranteed for Marana's recharge needs " A portion of the Arizona Water Bank's Nevada interstate water is recharged here for times of shortage on the Colorado River 18 Current Marana Water Utility statistics and outlook o Estimated total potable water demand at existing service area build-out: 30/000 acre-feet per year o December, 2006 demand: about 1/600 acre-feet per year for 4/552 equivalent dwelling units (EDUs) 55 19 TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: June 20, 2007 AGENDA ITEM: F.1 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: Executive session pursuant to A.R.S. ~ 38-431.03(A)(3), (4), (6) and (7) for legal advice with the Town Attorney concerning water rights issues and to consult with and instruct the Town Attorney and the Town Manager concerning (i) the Town's position regard- ing various pending contract and property acquisition negotiations with the goal of securing additional Town water resources, (ii) the 1979 intergovernmental agreement between the Town of Marana and Pima County relating to sewer service within the Marana town limits and to direct the Town Manager and Town Attorney with respect to that agreement, and (iii) Town legal issues arising out of the 1979 intergovernmental agreement between the City of Tucson and Pima County relating to wastewater management and effluent ownership DISCUSSION To be provided in executive session. RECOMMENDATION To be provided in executive session. A TT ACHMENT(S) None. SUGGESTED MOTION To be discussed in executive session. {FC02/6.DOC /} - 1 - 6/15/20073:16 PM FJC