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BLM - SPRNCA ADJUDICATION
The decision from this trial will effect water in the San Pedro River Valley
for anyone who lives here. If the Court decides in favor of the BLM it is a
death knell for Sierra Vista and FT Huachuca, it is that important.
Depends on who is doing the "study". The question to ask is "Where can I see the "cone of depression"?"--ED
Shar Porier, Herald/Review August 8, 2019
SIERRA VISTA — “Arizona’s water myth is that people believe they can pump ground water without affecting surface water.”
That assessment by hydrologist T. Allen J. Gookin’s was made some years ago, as legal proceedings to determine the San Pedro River’s navigability as a waterway before the Arizona Navigable Stream Adjudication Commission.
For decades, the meandering river has been the subject of numerous studies and has been proclaimed by many scientists as probably, the most studied river in the Southwest.
A host of federal, state and local governments and agencies, along with environmental groups, have all come to the same basic conclusion in their analyzations over the past three decades — the root of the health of the river grows up from the aquifer.
Now, a new study by Laura E. Condon, University of Arizona Department of Hydrology and Atmospheric Sciences, and Reed M. Maxwell, Groundwater Modeling Center at the Colorado School of Mines, offers another substantiation of the connection.
The authors produced the report, “Simulating the sensitivity of evapotranspiration and stream flow to large-scale water depletion.”
“Groundwater pumping has caused marked aquifer storage declines over the past century,” according to the report. “In addition to threatening the viability of groundwater-dependent economic activities, storage losses reshape the hydrologic landscape, shifting groundwater surface water exchanges and surface water availability. A more comprehensive understanding of modern groundwater-depleted systems is needed as we strive for improved simulations and more efficient water resources management.”
Their study hinged on isolating impacts of “decreased groundwater storage on the hydrologic landscape and start to unravel the hydrologic differences between modern, depleted, groundwater systems and natural watersheds.” They produced a modeling simulation which shows the impact groundwater levels to land surface disturbances.
In their research, they found roughly 200 cubic miles of water was withdrawn from aquifers across the United States over the 20th century. Depending on a finite source with an infinite–use state of mind leads to groundwater losses. Combined with varying climate conditions, the problem is exacerbated.
“The long–term storage losses caused by a century of groundwater development can be viewed as a large–scale reshaping of the integrated hydrologic landscape. This will influence watershed response to both natural and human perturbations moving forward. This study seeks to isolate the impact of decreased groundwater storage on the hydrologic landscape and start to unravel the hydrologic differences between modern depleted groundwater systems and natural watersheds,” they say.
Hydrologist Laurel Lacher stated in a 2011 report, “In general, the simulations predict that in the absence of any major water use changes in the basin, much of the San Pedro and Babocomari rivers will cease to have perennial baseflow over the next century due to widespread impacts of projected ground water pumping.”
USGS hydrologist Bruce Gungle and other USGS researchers noted in a 2017 report, “It should be obvious that a watershed perennially in deficit will likely never see an increase in natural water discharge to the river. Even if groundwater pumping were to stop today and the groundwater budget balance was positive for decades to come, the effects of the pumping over the past century would eventually capture surface flow from the river.”
The study continues, “Even if pumping were immediately stopped the cone of depression would continue to propagate for decades or more. Without significant mitigation measures, it is likely too late already to prevent declining water levels from reaching the San Pedro Riparian National Conservation Area from Charleston to Tombstone.”
However, hydrologists have concurred and have cautioned continuous groundwater pumping from the aquifer will turn the San Pedro River’s perennial reaches to intermittent or ephemeral and will end up dry like the Santa Cruz River to the west.
For the San Pedro Basin Aquifer, the study becomes one more affirmation of the importance of groundwater to surface water. Numerous modeling and ground-based data all show the connectivity of the basin aquifer and the river and various ways to sustain them are being tried.
For instance, Sierra Vista set up the Environmental Operations Park which recharges Sierra Vista’s A–quality treated effluent. The project helped raise “groundwater levels in a critical area that is both supporting San Pedro River flows and protecting the river from municipal groundwater pumping centers. Through the park’s 11 recharge basins, an average of 2,000 acre–feet is recharged annually, plus another 700 acre-feet of incidental recharge occurs across its wetlands.”
Cochise County constructed its first water recharge project off State Highway 92 in Palominas in 2014. The $1.1 million, 280–acre project was constructed with a recharge goal of 98–acre feet annually. However, monitoring records from July 2015 to July 2018 indicate a total of only 82.1–acre feet has been recharged.
Cy Miller, of JE Fuller Hydrology and Geomorphology, provided an update of county data collected from a number of monitoring sites for the Cochise Conservation and Recharge Network (CCRN) to the Upper San Pedro Partnership during the June meeting.
“Groundwater levels generally declined over the monitoring period from 2014. Palominas recharge facility showed an increase (mound) in groundwater elevations following Hurricane Odile in September 2014 at monitoring wells near the facility, but followed regional declines thereafter. Additional continued monitoring is recommended to provide a record from which hydrologic modeling methods can be refined,” he added. ("2014 monitoring" what about annual monitoring for the following 4 years??--ED_
Though the report acknowledged CCRN annual monitoring records show less runoff than the models predicted, the historical period of record does show high flows in other locations in the Sierra Vista Subwatershed. So other stormwater projects could “take advantage of available water in the best predicted locations and downstream of the greatest magnitudes of runoff.”
Stormwater recharge facilities are dependent on precipitation which varies from year to year, he continued. “CCRN anticipates that recharge project benefits will be relevant over the long-term, regardless of annual local precipitation variability.”
Shar Porier Herald/Review May 19, 2019
PHOENIX — After weeks of testimony in the water rights claim adjudication for the preservation of the San Pedro Riparian National Conservation Area (SPRNCA), the final day of hearings came May 16 with Leslie Arianna Brand, a well-credentialed avian research ecologist.
Under questioning by U.S. Department of Justice (DOJ) attorney Jenifer Najjar, Brand rebutted testimony given by Freeport Minerals, Inc., defense witness Steve Carothers, who had claimed many avian species would turn to the invasive tamarisk, also known as salt cedar, along the flood plain and mesquite bosques in the uplands to survive if the cottonwood and willow galleries died.
She called upon her experience of studying the San Pedro Riparian National Conservation Area (SPRNCA) bird species, the cottonwood and willow forest and the interaction of them with the flow of the San Pedro River.
Boquillas Ranch was her home base for around 12 months in a span of three years. Her time and studies on the riparian area provided the basis for her concerns for bird species, the cottonwood and willow canopies and river flow, which are all interrelated.
She took 2,700 surveys, with help from students, of all the birds seen or heard along all 40 miles of the SPRNCA.
Carothers only studied the southern section, she said.
“I was out there sunup to sundown walking the river,” Brand stated. “Having that kind of context adds to the reliability of my findings. There’s a whole different ecosystem in the northern SPRNCA.”
Brand said while some species may be able to find suitable habitat in the tamarisk stands and mesquite bosques, those that require nesting higher above ground would not.
The canopies offer a variety of heights to many nesting and migrant birds and so should be preserved by protecting the river flow.
Cottonwoods and willows sprout and grow along the floodplain of the San Pedro river and need water to be within 10 to 15 feet of their root systems.
“The statements Dr. Carothers made were overly narrow,” she added. “You have to look at avian richness, density, uniqueness and nesting success. In order to have the diversity of birds, you must have the cottonwood and willow forests and that means you have to have the water to support the most intact such forest in the U.S.”
The riparian area hosts one-third of all the birds in the U.S., she noted. “And, it’s two to three times higher in species richness than any other southwest river.”
Her studies showed tamarisk did not contribute to avian diversity, and if the trees declined, it would not impact any avian species.
She suggested birds would not be able to reproduce as well in tamarisk, or even in mesquite, as brown–headed cowbirds parasitize nests by laying eggs in the nest of another species.
The cowbird eggs hatch quicker than most species and so get most of the food. The larger nestlings are also known to nudge the other hatchlings out of the nests, reducing food competition.
“Birds are most productive in the canopy,” she emphasized. “Nests in canopies have the lowest parasitism rates.”
The canopies of the willows are the preferred nesting sites for the endangered southwestern willow flycatcher making it essential to maintain perennial river flow, Brand added.
As the river flow changes to intermittent or ephemeral, tamarisk takes over. Its roots go deeper, and it’s hard to kill. It quickly takes over what would be floodplain for the seedlings of willow and cottonwoods along the intermittent reaches, she explained.
“Mesquite is important, but it cannot replace the canopies. It’s a rare ecosystem and it needs both for the different avian species,” she said.
While answering questions from Michael Foy, attorney for the Salt River Project, which sides with the federal government, she stated the riparian would lose many species without the canopies and the perennial flows.
Water birds would be hardest hit with any decline, though insect-eating birds would also suffer from the lack of a food source.
After a few questions from Freeport Minerals, Inc., attorney Brian Heiserman, the trial concluded. A verdict is expected sometime next year.
Shar Porier, Herald/Review May 19, 2019
PHOENIX — “We don’t know how much water is needed and we believe the BLM doesn’t know either.”
Sierra Vista City Manager Chuck Potucek did not mince words during testimony in the adjudication hearing on the United States water rights claim for the San Pedro Riparian National Conservation Area (SPRNCA) when he testified on behalf of the city Apr. 29.
Though attorneys for the Department of Justice (DOJ), Salt River Project (SRP) and San Carlos Apache Tribe objected to the court hearing any of Potucek’s testimony, Special Master Judge Mark Brain allowed him to continue and said he would “sort it all out” during his decision making process.
Sierra Vista and Pueblo del Sol attorney Bill Sullivan stated Rule 701 governing a lay witness permitted such testimony, as it did when rancher John Ladd, former supervisor Pat Call and Castle and Cooke vice president Rick Coffman were on the stand.
According to the American Bar Association, the rule states, “…a lay witness may provide an opinion that is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue and is not based on scientific, technical, or other specialized knowledge.”
With over 30 years as an employee of the city, Potucek’s testimony was pertinent to the case before the court, Sullivan added.
“Our position is the Bureau of Land Management should follow the enabling legislation and use just what is needed to protect and enhance the river,” Potucek said. “I believe the best way to preserve the SPRNCA is through a cooperative effort.”
Part of the problem Potucek sees is the lack of proper resource management as BLM staff “never had the best management practices for conservation” defined. He could not see how the government could lay a claim to an amount of water without such a plan in place and added, “There was a lack of a clear vision for the SPRNCA. The BLM never really articulated what the conservation area would look like.”
Potucek provided an overview of the water conservation efforts the city has championed, the city’s position on increased development and the scientific work of the Upper San Pedro Partnership (USPP), a consortium of cities, county, conservation agencies and state and federal agencies, including the BLM.
He said the BLM listened to what was said in USPP meetings, but due to “constraints in funding, or the administration, or lack of resources, or management changes” there was little input to the consortium from the federal agency. “Their role has been fairly passive.”
Through USPP scientific studies, the federally mandated group tried to reduce water consumption through voluntary methods, helped develop regulations to control water use, acquired land and retired agricultural wells through a cooperative effort, he explained.
Representatives of Fort Huachuca and the Department of Defense, the Department of the Interior, Bureau of Reclamation and U.S. Geographical Survey worked with representatives with The Nature Conservancy, Arizona Audubon, Hereford Natural Resource Conservation District and Friends of the San Pedro, as well as Arizona Game and Fish, Arizona Department of Environmental Quality and Arizona State Land Department.
“There were a lot of thoughts and ideas to preserve the river and stop the expansion of the cone of depression,” he added. “But, due to constraints in funding, or lack of a policy, or the administration, or management changes, we haven’t seen any response from the BLM.”
He was questioned on the Environmental Operations Park, the wastewater treatment system serving the city, which provides an environment for wildlife and trickles into the aquifer and river as grade A effluent, one step below what is considered safe drinkable water.
The city tracks the wastewater coning into the system, how much is recharged and how much ends up as incidental recharge from incidental infiltration.
“BLM is aware of the activities at the EOP and the recharge basins and the efforts to reach a sustainable yield, but they seem more interested in water being pumped,” Potucek continued.
The city is currently looking into using effluent from a plant to be built on the site of the 6,959-unit Tribute development to benefit the river and help create a mound of water to offset the cone of depression, according to Potucek.
“The city is a cooperating agent with the BLM. I believe working together is more effective,” he said. “No one agency has all the expertise or funding available to meet the needs of the SPRNCA.”
Potucek also pointed out the city was the first in the nation to achieve the adoption of the standards of the Environmental Protection Agency’s WaterSense program, to protect the future of the water supply by offering people a simple way to use less water with water-efficient products, new homes and services.
Joe Sparks, San Carlos Apache Tribe attorney, said it was “logical” to reason though the recession put some 4,000 people out of work and caused an exodus, there were still more people in the city today than there were in 1988 when the SPRNCA was established. It was also logical to reason adding some 14,000 people more to the population would increase the use of underground water pumping.
However, Potucek noted strides in water conservation have helped reduce the amount of groundwater pumpage and expects the Tribute developer to put in place Environmental Protection Agency Water Sense policy as agreed.
Potucek also said per capita water use in the city had dropped from 180 gallons per day per person to 130 gallons per day, and credits the education of the public on water consumption and water saving fixtures and policies for the decrease.
“Our situation in the basin requires a multi-pronged strategy,” Potucek said.
Sparks also brought up inherent problems with treated effluent, grade A or not, like salt from water softeners, chemicals in detergents, phosphates, nitrates and hormones.
There were no ordinances preventing the release of any of those possible contaminants, responded Potucek. In response to questions asked by Jeff Heilman, attorney for the Salt River Project, noted, “Funding is a challenge and that’s why groups should work together. I understand BLM’s challenge for funding. The administration does not want to increase budgets. Given the scope of the problem and the magnitude of what we’re talking about here, I think funding is going to be a necessary component for enhancing and preserving the river.”
Shar Porier, Herald/Review May 15, 2019
PHOENIX — Since January, the federal government has been at odds with local governments and industry and recently reinvigorated the case to gain water rights for the continued preservation of the San Pedro Riparian National Conservation Area (SPRNCA).
With the court case in its final days, the U.S. Department of Justice, on behalf of the Department of the Interior and Bureau of Land Management, tried to cast doubt to the defense witnesses conclusions that vegetation has increased along the SPRNCA.
Justin Huntington, research professor at the Desert Research Institute, a member of the NASA/USGS Landsat team and principal of Huntington Hydrologic, took the stand Tuesday as the next to the last witness for the federal government in the trial.
He was questioned by DOJ attorney Dave Gehlert about the vegetation in the SPRNCA based on normalized difference vegetation index (NDVI). It is a simple indicator used to analyze remote sensing measurements from a satellite and assess whether an area being observed contains live green vegetation or not.
Huntington said there has not been a significant increase in SPRNCA vegetation.
His research showed there was some evidence of mesquite encroachment into grasslands of the terraces. However, he speculated losing the grass as a water user could balance out the water use of the mesquite.
“I saw no increase in riparian vegetation in the riparian,” he said. “I evaluated change in NDVI within the entire riparian corridor of the SPRNCA, including the floodplain of the entrenched active channel, and on the pre-entrenchment terraces — the whole riparian corridor with the floodplain excluded.”
The evaluation addressed NDVI for 1988, the year the SPRNCA was established, through 2017, the most recent year for which NDVI data was available, he said. “NDVI increased slightly over the whole riparian corridor and decreased slightly on the terraces, but neither change is statistically significant,” he said.
NDVI measures the chlorophyll in vegetation which reflects more near-infrared and green light compared to other wavelengths, Huntington said. It can assess whether the target being observed contains live green vegetation or not. Healthy vegetation absorbs most of the visible light that hits it, and reflects a large portion of the near-infrared light. Unhealthy or sparse vegetation reflects more visible light and less near-infrared light, so it makes it relatively easy to “see” how vegetation is responding to the climate, to temperatures.
He chose one cloud-free satellite image a year in the dry months of May or June to assess the vegetation index.
“I used an approach that paired multiple data sources, including remotely sensed satellite and aerial imagery, Geographic Information System (GIS) data, and ground-based field observations,” he said.
“This approach was chosen due to the large area that the riparian corridor occupies in the SPRNCA, along with the long time period required to adequately assess vegetation change, ideally about 30 years of continuous data.”
While there was some increase in vegetation in the southern reaches, the northern reaches appeared to have lost some, he added. It indicates vegetation growing in areas away from the active floodplain and on the pre-entrenchment terrace is not increasing as much in the south and is declining more in the north. Groundwater pumping may have an effect on the northern reaches.
“It is plausible that NDVI declines are being expressed in the north more so than in the south, since the predominant effects of the regional cone of depression will be manifested in the northern reaches of the SPRNCA due to groundwater gradients
n the regional aquifer,” he said.
Huntington rebutted the testimony of Chris Garrett, an eco-hydrologist with SWCA Environmental Consulting, who said there was an extensive increase in vegetation within the SPRNCA.
It was a matter of the size of the pixel used in the imaging process, explained Huntington. Garrett used large pixels which made it hard to define detail. He used smaller pixels, which allowed him to “see” gaps in the canopy and the plant life popping up in them.
He also viewed the entire SPRNCA, while Garrett kept to a narrow band near the river “which effectively ignores the terraces and most of the mesquite trees that are the largest water users in the SPRNCA. The evaluation of measured riparian width does not capture plant density, cannot show the plants are using more water. It illustrates how much of the riparian community was excluded from the quantified NDVI analysis.”
Further, it was not possible to determine water use of the vegetation through NDVI, which Garrett said it could, Huntington said. If there is more vegetation, Garrett surmised it would use more water. Huntington said he was wrong.
“NDVI is not a good measure for water use,” he said. “None of the Garrett report’s findings allow for a conclusion that either riparian vegetation has increased within the SPRNCA, or that riparian vegetation uses more water since the SPRNCA was established.”
Shar Porier Herald/Review April 7, 2019
PHOENIX – The Department of Justice has found a replacement witness for rebuttal of defense testimony in the water rights trial for the San Pedro Riparian National Conservation Area and now seeks to have the replacement approved by the judge.
DOJ environmental and natural resources attorneys Lee Leininger and David Negri filed a motion March 25 to substitute Jim Fogg, former U.S. Bureau of Land Management hydrologist and member of the National Riparian Service Team, to rebut testimony of witnesses for the defense on water needs for the SPRNCA. The substitution is needed as expert witness Dave Goodrich, a hydraulic engineer with the U.S. Department of Agriculture Research Southwest Watershed Research Center is too ill to testify.
Fogg’s live testimony is warranted because “the subject matter is complex and requires detailed explanation of the rebuttal evidence,” the motion states.
The DOJ asked for a nine-month delay to replace Goodrich with another expert during the trial in February and March when it became apparent Goodrich would not be able to testify. Special Master Judge Mark Brain denied the requests.
The DOJ attorneys’ motion laid out 15 points of rebuttal testimony, most of them aimed at statements made by defense witness hydrologist Rich Burtell, with Plateau Resources, Inc., during the fourth week of the ongoing trial.
However, Freeport Minerals defense attorneys Sean Hood and Brian Heiserman filed a response of their objections to the live testimony of Fogg and 15 “vague” points he would cover. They say the DOJ’s new witness will be offering new testimony on issues not covered by Goodrich’s reports and depositions.
“At least 11 of the 15 subjects would entail completely new or different opinions that were never disclosed and are well beyond Dr. Goodrich’s opinions. At least three subjects reflect opinions that directly contradict Dr. Goodrich’s deposition testimony, which the Government cannot do,” the Freeport attorneys state.
Hood and Heiserman allege the government is trying to “plug holes” in its case which have been present since discovery. Further, it would be improper to fix its case with testimony “that is actually new and different.”
For instance, the motion notes Fogg will rebut Burtell’s testimony “regarding a SPRNCA water budget and cyclical changes in the available water within the SPRNCA.”
Freeport attorneys countered and stated Goodrich “never addressed these topics or challenged Burtell’s stated opinions” during the deposition phase of discovery, even though he had the opportunity to do so.
Along similar lines, Fogg is to rebut the testimony of defense expert Matt Lindburg, chief engineer with Brown and Caldwell, an environmental engineering and consulting firm, who contended the government’s “streamflow claims exceeded the amount necessary to preserve the function and ecological health of the SPRNCA.”
Goodrich did not evaluate streamflow claims in his deposition, according to Hood and Heiserman. In fact, he deferred to the government’s expert witness, riparian ecologist Mark Dixon, his deposition showed.
Attorneys William Sullivan, representing Pueblo Del Sol Water Co. and Sierra Vista; and Robert Anderson, representing Liberty Utilities; stated in their objection, “No rebuttal report was filed by Dr. Goodrich rebutting the Brown and Caldwell opinions. Nor did the United States indicate in the Joint Pretrial Statement that Dr. Goodrich would rebut the foregoing opinions.”
Also, the DOJ attorneys indicate Fogg will “opine on the National Riparian Service Team’s 2012 assessment of the health of the SPRNCA” and rebut conclusions of the Brown and Caldwell expert terrestrial and aquatic biologist Steve Carothers by drawing from the team’s report.
Even though the report was discussed by the defense witnesses, Goodrich offered no comments on the riparian report, making the rebuttal improper, state the Freeport attorneys.
Sullivan and Anderson, Arizona State Land attorneys Carrie Brennan and Kevin Crestin and Cochise County deputy attorney Sarah Ransom all concurred with Freeport’s grounds to deny the substitution of Fogg for Goodrich.
If Brain accepts the motion, the defense attorneys “reserve the right to request appropriate relief, without limitation and an opportunity for experts to evaluate and respond to Fogg’s testimony.”
If the judge grants the U.S. motion and allows Fogg to testify, it could lead to additional court dates so the defense attorneys have time to review his statements to develop more questions.
BLM water rights claim
The U.S Bureau of Land Management (BLM) is seeking rights to groundwater and surface water “in a quantity sufficient to fulfill the purposes of the San Pedro Riparian National Conservation Area” as directed by the federal government back in 1988.
To meet this obligation, the BLM is now seeking a claim to ground and surface water to sustain the riparian area through an adjudication process.
Court hearings in Phoenix ran Jan. 28 through Feb. 14 and Feb. 25 through March 14.
The adjudication proceeding is scheduled to begin again on April 29 and 30 and May 13-16 to hear from witnesses scheduled during the six-week trial which ended March 14. Some witnesses were on the stand for more time than was scheduled and the DOJ needed time to replace Goodrich.
Shar Porier Herald/Review 3/16/2019
PHOENIX — It is a valid conclusion that the effects of human development are affecting groundwater and river flow, particularly at Charleston.
At least David Romero, hydrologist and expert witness for the U.S., thinks so. He said as much in the adjudication of the government’s water rights claim for the preservation of the San Pedro Riparian National Conservation Area (SPRNCA) during Thursday’s court proceedings.
His second day of testimony under questioning by the defense attorneys for Freeport Minerals, Inc., the city of Sierra Vista, Cochise County and the Arizona State Land Department, resulted in an affirmation of results of his modeling. He included recharge data from Sierra Vista’s Environmental Operations Park (EOP), which does help somewhat with river flows in the Charleston area and does help recharge the regional aquifer.
“There will be continued depletion of river flow, even with the EOP recharge,” he stated.
However, he did not calculate the county’s recharge efforts with the Palominas Recharge Project or the Horseshoe Draw erosion control and infiltration project. When questioned by Deputy County Attorney Sarah Ransom, Romero said he might have driven by the Palominas project, but he did not include any data. She also took issue with his inclusion of 16,800 acre-feet of water used for mining in Bisbee and in Cananea, Mexico. Mining in Bisbee has ceased, and the Cananea mining operation allegedly takes water from another aquifer.
All in all, according to Romero, the EOP and continued pumping of groundwater has affected the river by reducing water levels in the river.
Freeport attorney Sean Hood asked why the Bureau of Land Management (BLM), the agency tasked by congressional mandate to protect and preserve the SPRNCA, did not decide to add flow to the river, via pumping of groundwater, at the intermittent reaches at Palominas or Tombstone.
Water there would help the river, he posed.
Romero said Charleston was considered due to the population of the desert sucker fish. The added emergency flow would boost and help maintain the population.
Hood did get Romero to agree to the uncertainty and inherent error in modeling particularly with determining the regional aquifer could drop more than the 1.5 foot predicted in the model if 300 acre feet were pumped.
Hood also said Romero’s modeling was flawed since he did not include any precipitation and flood flows.
Expert witness Matt Lindburg, chief engineer with Brown and Caldwell, an environmental engineering and consulting firm, was tasked with researching the U.S. stream flow claims for Freeport, et al. He did not visit the SPRNCA, but did review reports by the U.S. Geological Survey (USGS), Arizona Department of Water Adequacy, the National Riparian Service Team report conducted in 2012, and other reports.
Lindburg said there was decline in streamflow at the Palominas, Charleston and Tombstone gauges, where depth to water is measured, since the establishment of the SPRNCA in 1988. He found it interesting that the streamflow decline seemed to occur as the riparian vegetation boomed.
In the National Riparian Service Team, hired by the BLM to rate the health of the SPRNCA, noted in its 2012 report vegetation was healthy and most of the river was found to be in proper functioning condition.
“The BLM’s basis for its streamflow claims do not correlate to the riparian ecosystem’s needs,” he said. “In fact, the function and ecological health of the SPRNCA has improved since its establishment, while the streamflows have declined.”
Lindburg also said the BLM’s water rights claim is more than needed to maintain the SPRNCA. Further, streamflow permanence can be achieved with different volumes of water.
“There’s a disconnect between need and claims,” he added. “The NRST report supports my analysis,” he continued. “The claim should be for the needs of the SPRNCA and no more.”
Under questioning by the U.S., he said though he is not an expert in riparian vegetation or a biologist, he would stand by his review of the information and the recommendation that the claim for water rights should be reduced.
Water rights trial extended
With the four-day testimony of Rich Burtell, Plateau Resources, Inc., called by Freeport et al, last week, some witnesses had to be shifted to other dates.
Delay of the trial was already in motion due to the U.S. losing its hydrological witness, David Goodrich, due to health concerns. Special Master Judge Mark Brain agreed to allow the U.S. to find another hydrologist to rebut the testimony of Burtell.
Jim Fogg, who has been acting as a consultant to the U.S., will be the rebuttal witness.
Fogg is familiar with SPRNCA, and was part of the National Riparian Service Team the BLM hired back in 2012 to study the San Pedro River and the riparian area. The team walked the 40-mile length of the SPRNCA, and visited the St. David Ciénega to determine the health of the riverine system.
Matching up dates to fit into busy schedules was not an easy task, but the attorneys and Brain reached agreement to proceed with the trial and on April 29-30 and May 13-16.
The U.S. has avian expert Arianna Brand and Justin Huntington, research professor at the Desert Research Institute and principle of Huntington Hydrologic.
Sierra Vista and Pueblo Del Sol Water Company will call Sierra Vista City Manager Chuck Potucek.
John Bodenchuk will address land issues within the SPRNCA boundary for the Arizona State Land Department.
Shar Porier, Herald/Review March 13, 2019
PHOENIX – One thing made clear in witness testimony in the trial over the U.S. water rights claim for the San Pedro Riparian National Conservation Area (SPRNCA) is modeling differences abound and results lie in the hands of the modeler.
Modeling is a process of feeding information into a program to assimilate certain contexts which can provide a forecast of future conditions. In the case of the water rights for SPRNCA, modeling has been performed for decades by numerous scientists, state and federal agencies and local governments. The U.S. Geological Survey has done numerous studies and modelings.
During Wednesday’s court hearing on the government’s water rights claims, another expert explained his modeling criteria. Certified professional hydrologist Dave Romero, president with Balleau Groundwater, Inc., has been active in groundwater assessments for the past 23 years and has performed many analyses for clients.
One of his tasks as requested by the U.S. was to determine the impact on the regional groundwater system if the Bureau of Land Management (BLM), which manages the SPRNCA, were to pump 300 acre feet, almost 98 million gallons, of water into the river in the Charleston reach of the San Pedro.
Under questioning by U.S. Department of Justice attorney Lee Leininger, Romero said if such “emergency” augmentation pumping was done for just one year in June or July over a period of 30 days, an additional 5 cubic feet per second would be added to the river’s flow. It would also draw the aquifer down 1 ½ feet and could create a lesser cone of depression which would easily be recovered in the monsoon.
However, if this was done annually, there could be problems, Romero added.
“It’s a balancing act,” he said. “It does represent a slight loss to the river flow, as groundwater which would support the river would be used for the stream flow. But, the stream would lose less than one-tenth of cubic flow per second.”
He reviewed modeling studies and statistics of the river in the Charleston reach as well as low-flow analyses and noted a decrease in flow over an 80-year period from 1935 to 2015.
The piezometers, which defense witness hydrologist Jeff Weaver said were insufficient to monitor depth to groundwater, Romero said were efficient and he was able to inspect a few while out on the SPRNCA. Piezometers monitor depth of groundwater and have transducers to collect data and are generally hand-rammed up to 30 feet into the ground. While they can get clogged with debris or sediment and knocked out in a flood, BLM has staff to handle such situations, Romero said.
Defense expert witness Amy Hudson’s modeling produced the same outcome as Romero’s. Groundwater pumping has captured groundwater that would be available to the river and riparian plants in the SPRNCA, Romero said.
He said pumping does impact the regional groundwater, the subflow zone and the river itself.
“Pumping changes the system,” Romero testified under direct questioning from Dave Gehlert, a U.S. Department of Justice attorney. “It can create a cone of depression. Water that would go to streamflow and transpiration will be affected.”
A review of a USGS model indicated it did not consider the calibration of streamflow or baseflow.
“It just assessed trends,” Romero said.
Romero also reviewed a study by hydrologist Laurel Lacher and reached the same conclusions on pumping effects on the aquifer.
“The effects of human development are affecting groundwater and the river,” he said.
Sierra Vista’s Environmental Operations Park (EOP) has helped decrease river flow loss, he noted. However, it does not overcome the effect of groundwater pumping for the public use of water, Romero said..
Romero chose Charleston for the area of study because of a study by federal witness William Miller, president and senior aquatic ecologist for Miller Ecological Consultants, Inc., who found more of the native desert sucker fish in the reach. In fact, the reach held 94 percent of the fish.
There is a problem with all the various modeling reviews and it is due to the lack of flood flows and bank storage being factored into the modeling programs, as defense attorney Sean Hood, representing Freeport Minerals, Inc., pointed out.
Romero agreed and said flood flows should be factored into an analysis.
He will be back on the stand Thursday and will be questioned by Deputy County Attorney Sara Ransom.
Shar Porieer, Herald/Review March 12, 2019
PHOENIX – Expert hydro-geologist Jeff Weaver with Brown and Caldwell, an environmental consulting firm, was hired by the defense in the San Pedro Riparian National Conservation Area (SPRNCA) federal water rights claim to refute the science involved in setting the claim.
Monday, Weaver said he reviewed Arizona Department of Water Resources and U.S. Geological Survey (USGS) reports conducted for the U.S. Bureau of Land Management (BLM) and found there was insufficient data for a complete review of groundwater needs and the federal government failed to assess the groundwater interaction with surface flows in the SPRNCA.
“The data should be there to support the claim,” he declared.
During direct questioning by Pueblo Del Sol Water Co. and City of Sierra Vista attorney William Sullivan, Weaver provided a view of the USGS report which indicated evapotranspiration, the process of plants taking up water and releasing it as moisture into the atmosphere, does have an impact on the flow of the San Pedro River.
“It becomes a detriment to the river,” he added.
He stated the study should have indicated the various reaches. These are river divisions with similar characteristics, but which differ from areas up- or down-stream.
“Was the reach gaining or losing?” he said. “Much more analysis is required. This is very simplistic.”
The depth to the alluvial aquifer was not clearly established and water from stormwater runoff was included in the assessment.
“This is important water,” Weaver continued. “It is water that seeps into the river banks which can then be used by the river in the dry months. This is a dynamic water system.”
He went on to explain there are dead-end pathways in the aquifer, meaning there are pockets which have little or no interaction with the regional aquifer.
“There are complexities in geology and restrictions can interfere with the flow,” he said. “Water gets stuck in these pores and can’t get out.”
This can also lead to a draw down in the cavity if a well is pumping from that water source, he said.
Tuesday, U.S. Department of Justice attorney Dave Gehlert questioned his remarks on the reports he reviewed.
Weaver explained he did not participate in an earlier Brown and Caldwell study and was only hired to review certain reports and studies to provide his advice. Part of his assignment was to assess the Sierra Vista Environmental Operations Park (EOP) and its effect on groundwater and river flow.
He developed a modeling system to see what impact the EOP had on the riparian system, how recharged water infiltrated the area around the park. His findings showed treated effluent from the EOP was having a beneficial effect and added around 2 cubic feet per second to the river flow.
A problem he encountered concerned the determination of how much water the vegetation in the riparian system was using. He said he did not know how the claim was made with no scientific data to explain how the amount was reached.
Questioning by Jeff Heilman, Salt River Project attorney, revealed this was the first water rights case in which Weaver was a participant. Weaver also revealed he had not looked at the existing resource management plan for the SPRNCA or the environmental impact statement.
When Joe Sparks, attorney for the San Carlos Apache Tribe, asked a few questions about the cone of depression, the EOP, Weaver was unable to answer them, as the subjects were not in his scope of work.
The U.S. had a few minutes to question its expert witness, hydrologist Dave Romero, president of Balleau Groundwater, Inc., who provided information on the augmentation pumping of groundwater to boost the river flow at Charleston.
Romero explained the pumping could add 5 cubic feet per second to the river at this perennial stretch by pumping 300 acre-feet of groundwater over a 30-day period. This would happen during the driest time, June or July when flows are low. This practice would be beneficial to the native fish, the desert sucker. And it may not be necessary to pump that much water or augment the flow every year.
Romero will continue testimony on Wednesday.
Two more witnesses are on the schedule for this week.
For the defense, Matt Lindberg, a professional engineer experienced in management of multi-disciplinary projects involving agricultural and water resource planning.
For the U.S., Justin Huntington, research professor at the Desert Research Institute, will explain his conclusion that there has been no statistically significant change in the amount of vegetation since the SPRNCA’s establishment.
On Thursday, more trial dates could be set as requested by the federal government so Arianna Brand and an as-yet-unidentified rebuttal hydrologist can be heard.
Since defense hydrologist Rich Burtell questioning took up all of last week, the need for a few extra days was agreed upon by both sides.
Special Master Judge Mark Brain gave some dates when he will be unavailable and counsel will try to work between those dates.
The trial could resume in April, May or even June.
Shar Porier, Herald/Review March 11, 2019
PHOENIX – Two expert scientists from Brown and Caldwell, a consulting firm in environmental matters, provided another side of the debate in the amount of water needed for the San Pedro Riparian National Conservation Area (SPRNCA).
Brown and Caldwell experts Ann Redmond, a certified environmental professional in natural resource consulting; and Jeff Weaver, hydrologist/geologist, provided a report on their assessment of the Bureau of Land Management’s claim for water and determined the SPRNCA was not managed and water needs were overstated.
Redmond explained she had worked extensively in Florida on successful restorations of wetlands. Her career has taken her across the country and the ocean to Guam. She takes a long-term approach to mitigation efforts and considers a clear vision of a project essential to success.
A clear vision, as she put it, was lacking in the BLM’s resource management plan (RMP) currently in use as part of the Safford District RMP in 1989. She reviewed a number of the blossoming SPRNCA plans from 1989 to 1994 which sought to provide a roadmap to a successful follow through on the congressional order to protect and enhance the SPRNCA.
Questioned by attorney Bill Sullivan, representing Pueblo Del Sol Water Company and the city of Sierra Vista, she stated, “You have to think about the whole watershed and the likelihood of sustainability over time. It didn’t articulate a vision for the future or how much water is needed to sustain the SPRNCA.”
She continued and said the U.S. should develop a plan and should lay out objectives in a reach by reach basis from south to north. Sub-plans for each reach would be appropriate, given the different classifications: proper functioning and functional at risk conditions.
U.S. Department of Justice attorney David Negri objected to her testimony as some of her criticisms were not provided in her statement.
“It’s an undisclosed opinion,” he said.
Special Master Judge Mark Brain sustained the objection and said he would sort it all out when he reviews all the testimony given in the trial.
Negri began to discredit her testimony as she had not taken part in any federal government RMPs.
“So you have never worked for the BLM, National Park Service, National Forest Service?” he asked. “You have never helped develop a federal management plan?”
Redmond nodded in agreement. She had not participated in a federal plan.
But, she said, “I review all RMPs that come to me in Florida. We developed state resource management plans and were under inter-agency review.”
However, she reaffirmed her opinion, “You have to have the scientific data to back up the water rights claim. I don’t see it. There is no long-term vision or organizing principles for management. There is no way to scientifically determine how much water is needed.”
Once Negri, attorney Michael Foy of the Salt River Project, and attorney Joe Sparks, with the San Carlos Apache Tribe, were finished with their questions, Weaver was called to the stand right at the end of the day.
Tuesday, the defense will continue with Weaver.
SHAR PORIER Herald/Review Mar 6, 2019
PHOENIX – The San Pedro River and its surrounding riparian area relies on water from the regional aquifer, the alluvial aquifer and monsoonal flood events. Everyone agrees on that, but that’s where the agreement ends.
The debate continues on just how much water the San Pedro National Riparian Conservation Area (SPRNCA) needs and both sides in the adjudication for the federal water rights claim have their own ideas on how much or how little is actually needed.
Wednesday, the trial to determine those water rights resumed and defense expert hydrologist/geologist Rich Burtell, of Plateau Resources, Inc., found himself back in the hot seat again facing San Carlos Apache Tribe attorney Joe Sparks.
Sparks continued to question Burtell’s determination reagrding the quantity of water needed to continue allowing the riparian area to thrive with its diversity of wildlife.
Burtell’s studies covered many years of his own research and that of dozens of others. In his scientific opinion, the river does not need the amount of water the U.S. Bureau of Land Management (BLM) wants to claim. He blames any change in streamflow on the proliferation of cottonwood and willow stands, one of the most unique aspects of the SPRNCA, and other greenery living on the riverbanks, floodplain and terraces.
Whatever documents or assertions Sparks could throw at him, Burtell would not say pumping groundwater from the aquifer was to blame for any decline in streamflow. His point was the riparian area is a victim of its own success and climate change.
Burtell and the federal attorneys also disagree on the period of record – the length of time of continuous, reliable observations of the effect of weather elements pertaining to a certain location.
The U.S. Department of Justice, Salt River Project and San Carlos Apache Tribe attorneys want Special Master Judge Mark Brain to rule in their favor on the timeline prior to the establishment of the SPRNCA, from 1954 to 1988, the year the SPRNCA was established. By evidence submitted, the 34-year span was wetter and, therefore, their determination of groundwater, storm runoff and water levels in monitoring wells should be what is granted, they argue.
The defendants – Freeport Minerals, Pueblo Del Sol Water Company, Liberty Utilities, Cochise County, Sierra Vista and the Arizona State Land Department— say the period of record should be set from 1981 to 2015 based on their experts’ studies. Their evidence shows a more varied climatic record which includes times of drought and times of more precipitation, and therefore they claim it is not necessary to subsidize water which finds its way into the SPRNCA.
Burtell spent the entire day answering questions posed by Sparks, Salt River Project attorney Jeff Heilman and, at the end of the day, U.S. Department of Justice attorney Lee Leininger. They picked away at his deposition and studies, but he did not change his position.
Heilman said in regard to climate change and drought, “All the conditions on the SPRNCA could change, so the river could change. Right?”
Burtell replied, “There would still be sufficient water to meet the purpose of the reservation.”
The hydrologist noted water consumption has declined in the Sierra Vista Subwatershed and Sierra Vista’s Environmental Operations Park and other recharge projects helped make up for groundwater pumping to the extent that the deficit would be overcome.
In questioning on the various wells the BLM wants in the claim, the very real, very necessary use of water from those wells to fight wildland fires was also touched upon by Heilman, and Burtell agreed the use of water for that purpose was important to the SPRNCA.
It is not known who will follow Burtell to finish out the last day of the week. The weeks-long trial is scheduled to end next week.
Shar Porier Herald/Review Mar 5, 2019
PHOENIX – San Carlos Apache Tribe attorney Joe Sparks lived up to his name as he questioned defense expert witness Rich Burtell in court Tuesday in rebuttal questioning during the proceedings to determine federal water rights for the San Pedro Riparian National Conservation Area (SPRNCA).
Burtell, the hydrological/geological witness for Freeport Minerals, Inc., continued on the stand countering the evidence now admitted to the court provided by David Goodrich, a hydrologist who backed out of live testimony at the trial due to ill health.
Monday, U.S. Department of Justice attorney Lee Leininger filed a motion for a delay so the government could find another highly credentialed hydrologist familiar with the issues in the SPRNCA.
Judge Mark Brain denied the motion and accepted all of Goodrich’s reports, studies and some of his deposition into evidence which Freeport Minerals, Inc., attorney Sean Hood sought to render questionable during his questioning of Burtell.
Burtell believed his own time period of record from 1981 to 2015 was better suited to set the level of water rights for the SPRNCA since it included a dry spell as well as times of heavier precipitation. It was more representative of long-term precipitation conditions, Burtell said. He noted the government’s period of record from 1954 to 1988 was lacking in such accurate climatic information.
He also stood by his assertion that the vegetation increase along the river, the floodplain, the terraces and the uplands was the reason streamflows declined, not the pumping of groundwater.
His opinions were based on studies he performed and on those completed by other scientists over the past 19 years, even including a few by Goodrich.
Goodrich agreed the streamflow in the Babocomari was methodically flawed due to a reliance on data from Walnut Gulch, according to Burtell and the pretrial statement.
All in all, Burtell determined the SPRNCA did not need as much water as the federal government wanted to claim.
Following questioning, Burtell faced off with Sparks and had some difficulty understanding the questions Sparks was asking.
Sparks’s initial question was “We’ve met before haven’t we, Mr. Burtell?”
Burtell answered, “On many occasions.”
Sparks followed up with: “Is that a yes? I wanted to make sure that word was in your vocabulary.”
That set the tone of the rebuttal. The two had met more than a few times during hearings for the Gila River water rights adjudication.
Sparks asked questions about the chemical makeup of the regional aquifer, the geology of the regional aquifer and alluvial aquifer, whether tritium was in the water, even some questions from his testimony in the Fort Huachuca water rights claim.
The attorney asked him for details about the Sierra Vista Subwatershed, but Burtell was unsure of the specifics and said he would have to review his deposition to be sure.
Things were a bit testy during questioning about how much water was needed for irrigation of crops, when Judge Brain interjected and told Sparks, “Ask another question.”
Sparks wanted to know about the precipitation gauges used to measure rain and he did not seem to understand Burtell’s answers in another terse exchange.
Brain then stepped in and called it a day.
Burtell will continue his testimony Wednesday as Sparks concludes his questioning and the federal government attorney takes over.
Shar Porier Herald/Review Mar 4, 2019
PHOENIX – Though the U.S. Department of Justice attorneys requested a delay in the trial over water rights in the San Pedro Riparian National Conservation Area (SPRNCA) to find an expert hydrologist to replace their witness, who is unable to attend the trial for health reasons, the judge on Monday said, “Motion denied.”
DOJ attorney Lee Leininger, with the environmental resources division, filed the motion to delay on Friday. Hydrologist David Goodrich was the government’s expert to testify regarding the hydrology and related riparian water needs of the SPRNCA.
Attorneys Michael Foy and Jeff Heilman for the Salt River Project and Joe Sparks, attorney for the San Carlos Apache Tribe, appealed to Special Master Judge Mark Brain to approve the delay.
“Good cause exists for the continuance of trial in order to replace Dr. Goodrich. He is a preeminent research scientist with broad knowledge of hydrology and desert ecosystems. His testimony was critical to the United States' case,” stated Leininger in the motion.
The defense attorneys for Freeport Minerals, Inc., Arizona State Lands Department, Cochise County, Sierra Vista, Pueblo Del Sol Water Company and Liberty Utilities all opposed any more delays in the trial, which has been delayed multiple times over many years.
Goodrich was too ill to testify in court and the judge said he understands the predicament. However, Brain ruled Goodrich’s reports, statements and some of his deposition could be admitted. He said he would review highlighted points of Goodrich’s deposition.
“We’ll sort through it,” Brain said.
Defense expert hydrologist takes the stand
With that business out of the way, the defense’s expert hydrologist, Richard Burtell of Plateau Resources, Inc., took the stand. He is familiar with the SPRNCA from his time in the Arizona Department of Water Resources when he conducted studies, including one on unmetered well water use in the Sierra Vista subwatershed. He has also performed studies with Plateau Resources for Freeport Minerals.
Burtell explained how the government’s basis of a time period from 1954 to 1988 was not a complete snapshot of the conditions of the SPRNCA. It left out periods of higher rainfall, he testified.
Burtell’s time period from 1981 to 2015 represented the effects dry and wet periods on the SPRNCA and provided a more accurate account of subflow and streamflow, he said. According to his studies of the river and riparian area, there have been periods of drought, but those events are cyclical and are followed by periods of some heavy precipitation.
“There are climatic variables that should be realized,” he added.
As others before him, he stated any reduction of streamflow was due to the increase in vegetation and was not due to the pumping of groundwater. The floodplains with the cottonwoods and willows were taking water from the subflow zone, as were the mesquite up on the terraces. In fact, he considered the spread of the hardy, deep-rooted mesquite more of a problem.
“Mesquite growth gobbles up the water,” he said. “You don’t see vegetation growing under them because they take all the water. There’s only so much water in this system. If more vegetation is consuming water, there isn’t enough left for streamflow.”
He also noted when the trees leaf out along the river in the spring, there is a drop in the water table which continues through fall.
The U.S. Geological Survey (USGS) staff study found a decline in baseflow and the researchers attributed it to evapotranspiration, he continued.
“If regional pumping is having an effect on the river, data doesn’t support it,” he added.
Burtell rebutted statements and studies completed by Goodrich, who also found fault in the repositioning of the Tombstone rainwater gauge. In documents and depositions submitted as evidence, Goodrich claimed the new location, near a mesquite tree, would not provide an accurate measure of rainfall. The USGS staff used data from the gauge in reports, as did Fort Huachuca. Burtell provided the figures as recorded and there was no real difference in the readings from the previous location.
Also, Burtell found fault with Goodrich’s failure to include rainfall in his studies.
“He subjectively excluded certain base flows because it dealt with flood flow,” Burtell testified. “I get the impression the BLM almost ignores storm runoff. They have to establish the relationship of baseflow to storm runoff. They can’t just say it’s regional pumping causing the decline.”
Burtell will continue his time on the stand Tuesday to continue his testimony on his findings and will eventually face federal attorneys waiting to question his methods and results.
Shar Porier, Herald Review 3-3-2019
PHOENIX — Testimony from lay witnesses as to the efforts of Sierra Vista, the county and local developers to reduce water consumption, recharge the aquifer and slow flood flows before reaching the river were determined by Special Master Judge Mark Brain to be inadmissible during two days of testimony on Wednesday and Thursday.
Brain stated, “I don’t see how the city has much to do with what Congress set aside for the needs of the SPRNCA. But, it will be subject to my review.”
He acknowledged the continual objection of the attorneys representing the U.S. even though Sarah Ransom, county attorney; Sean Hood, Freeport Minerals, Inc. attorney; and Carrie Brennan argued the U.S opened the door for such testimony when it claimed groundwater pumping was impacting the river.
They also noted the U.S. attorneys did not object to the statements of Castle & Cooke vice president Rick Coffman, who had been dismissed the day before, and Pat Call, former member of the county board of supervisors during their depositions. The two were testing as lay witnesses, which are people who base their statement on experience and personal knowledge.
Dave Gehlert, attorney for the U.S., objected to testimony from Call, who has been deeply involved with recharge projects aimed at helping the river.
Call was explaining the various completed projects for recharge and sediment control and those still in the study phases, which drew numerous objections from Gehlert, Salt River Project attorneys Jeff Heilman and Michael Foy and San Carlos Apache Tribe attorney Joe Sparks. They had objected the day before to statements made by Castle & Cooke, Inc., vice president Rick Coffman and he was excused from the proceedings.
Gehlert said, “I understand your desire to give them some leeway … in regards to testimony. But, I think the conservation efforts in terms of the reservation are clearly distinct. They don’t have any regard to the water needs of the SPRNCA.”
However, Brain, who was interested in the subject, allowed Call to speak on the projects due to his decades of experience on water issues which included the establishment of the Babocomari and Sierra Vista Subwatershed Overlay Districts.
“The river is critical habitat and we want to protect it,” said Call. “The river used to be our river before it was the Bureau of Land Management’s. I and others were probably conceived along that river.”
Call talked about the first, award-winning recharge project off Palominas Road constructed in 2014. The Palominas Recharge Project collects monsoon sheetflow from the Huachuca Mountains in a 10-acre basin and slows the flows through a channel of 13 concrete check dams which allows for some recharge into the aquifer before it travels on to the San Pedro River.
The completed Horseshoe Draw project and the future Riverstone and Bella Vista projects were also discussed, as was the efforts to water a golf course with treated effluent from the future Tribute residential development in Sierra Vista.
Call went on to talk about the water conservation requirements of new construction, the success of Sierra Vista’s Environmental Park (EOP), a host of similar subjects in the city’s and county’s pursuit of protecting the river and dealing with the expansion of the cone of depression.
He, too, told the court of the increase in vegetation along the river which made it impossible to walk trails he once walked as child and the increased wildland fire risk which goes along with the increase scrub vegetation on the terraces.
However, Gehlert, in his questioning of Call, got him to say the recharge water was not “new water,” but water that came from the ground originally in the case of the EOP. Though the EOP provides some recharge through treated effluent and does daylight just above the river, the basis of its origination is the aquifer.
When Gehlert asked Call where effluent comes from, he quipped, “How graphic do you want me to be?”
Stormwater as well may end up in the river, with some possible recharge, said Gehlert and Call agreed.
In other testimony, county right-of-way agent Teresa Murphy answered questions on the county property in and easements through the SPRNCA, equaling 122.25 acres, and how she researched the ownership back to the early 1900s. Hereford Road, for instance, became county property in 1905.
Rancher Lincoln Dahl, who owns land and leases public land around St. David for his cow/calf operations, told of his experience with the river flow. The member of the St. David Irrigation District uses river water for irrigation and explained the district’s dam is built in November and then removed in May prior to the monsoons. The removal is necessary so the dirt to build it is not lost during the seasonal floods.
“The water stops flowing when the trees begin to leaf out,” he explained. “There has been a definite increase in mesquite in the uplands.”
Dahl, who has been operating the ranch for over 10 years, flies over his land to check on cattle because of the dense vegetation along the river.
Bayless-Carlink Ranch owner Andrew Smallhouse, who operates a cow/calf and a feed grain operation, provided a glimpse of the river farther downstream in Reddington and gave his take on the increase in vegetation on his trips to Sierra Vista, the Hereford Natural Resource Conservation District, the San Pedro Natural Resource Conservation District as a member of the Reddington natural Resource Conservation District. He said his parents used to drag him to the meetings when he was a child.
He continues the ranching operation his ancestors started in Cochise County in 1884 and still uses river water to irrigate fields and water stock.
“We want to make the ranch sustainable for future generations. I hope my kids will continue it,” he added.
He related a statement made by his father, who said, “We’ll get our water back when the mesquites lose their leaves.”
Smallhouse indicated he has also seen an increase of mesquite on the terraces above the river.
“I don’t think (the BLM) manages the SPRNCA at all,” he added.
The trial continues Monday with a decision about a delay for the U.S. to find an expert hydrologist to testify in the place of David Goodrich, who has fallen ill.
Once the issue is settled, the defense plans to call its expert hydrologist, Rich Burtell of Plateau Resources, Inc., who may rebut Goodrich’s deposition and studies.
"Water Conservation Efforts, Recharge Projects Outside SPRNCA Hold No Weight in Court"
Shar Porier, Herald Review 2-27-2019
PHOENIX – It did not take the U.S. Department of Justice attorney long to shut down questioning of Castle & Cooke, Inc., Senior Vice President Rick Coffman as he shared information on Castle & Cooke’s efforts to help the San Pedro River.
During Wednesday’s proceedings in the trial over the U.S.’s water rights claim in a federally protected stretch of the San Pedro, Coffman began explaining the efforts he and his company have made to conserve water through a number of development methods which earned the Environmental Protection Agency’s WaterSense approval, and serving on water conservation boards. The idea behind the activities was to create a public consciousness to conserve water within the San Pedro Watershed.
Castle & Cooke is the developer for the Tribute development, which could add several thousand people to the Sierra Vista population, he added.
“We wanted to make Tribute to accommodate growth, but also to conserve and protect the river,” said Coffman.
As he began explaining how well a toilet rebate program worked and the water harvesting grants awarded, Salt River Project attorney Jeff Heilman interrupted Coffman and said other efforts to conserve water weren’t relevant to the case at hand. Coffman was speaking of things outside the San Pedro Riparian National Conservation Area (SPRNCA) and, therefore, the comments were inadmissible.
U.S. attorney Dave Gehlert agreed, as did the San Carlo Apache Tribe attorney, Joe Sparks.
Sierra Vista and Pueblo Del Sol Water Co. attorney William Sullivan argued, “We believe this is a response to the comments by the government of groundwater pumping harming the river.”
Cochise County Deputy Attorney Sarah Ransom agreed with Sullivan and told the judge, “Keep in mind, the Bureau of Land Management placed us in this issue. They claim groundwater pumping is affecting the stream flow. The information Mr. Coffman and Mr. (Pat) Call will offer goes directly to this point.”
Ransom also said the U.S. had opportunity to object to the lay witnesses during the deposition phase. They did not.
“The court needs to know what the people are doing for the river,” added Ransom.
Sparks stated, “The needs of the SPRNCA are the needs of the SPRNCA. Its water comes from groundwater.”
As the attorneys battled back and forth, a low groan could be heard from Special Master Judge Mark Brain.
He then said, “Conserving water outside the SPRNCA is great, but it’s not pertinent. I’ll rule on the objections and sort it out.” (Residents of Sierra Vista will be directly effected if the ruling gives the BLM 70,000 AF annually. The water conservation efforts ARE a vital part of conservation to maintain the river flow. This Judge is off base--ED)
Coffman continued explaining Tribute’s wastewater system will be of a grade that produces a high-quality byproduct and the treated effluent could be used for landscaping needs, watering the golf course and helping build a water mound which would offset the cone of depression beneath Sierra Vista.
With Gehlert and Heiserman continuing to go at the defense and the judge, Coffman was asked to step down from the witness box.
the Herald/Review’s coverage of the trial will resume in Sunday’s edition, as county right-of-way agent Teresa Murphy testifies on land ownership issues within the SPRNCA and Pat Call, the former county supervisor and newly appointed Sierra Vista justice of the peace, also offers testimony
By Shar Porier Herald/Review Feb 26, 2019
PHOENIX – The loss of an important witness on the hydrology of the San Pedro Riparian National Conservation Area (SPRNCA) in the U.S. water rights claim adjudication has dealt a blow to the government’s case.
Monday, it was revealed why David Goodrich, a research hydrologic engineer with the U.S. Department of Agriculture (USDA) based in Tucson, was absent for the past four weeks. U.S. Department of Justice attorney Lee Leininger told the court Goodrich was too ill to testify.
Special Master Judge Mark Brain acknowledged the seriousness of the illness and will set a deadline for the U.S. government’s search for someone to replace him on Friday.
A lot riding on Goodrich’s testimony
Goodrich was scheduled to testify at the beginning of the trial in January. His testimony was the basis for the water rights claim. He is well-known for numerous published studies and co-authored reports while with the USDA at the Tucson Southwest Watershed Research Center.
According to the pre-trial documents of the federal government, he was to provide opinions on the quantity of stream flow and groundwater conditions when the SPRNCA was ratified by federal legislators. He studied the Babocomari River, a tributary to the San Pedro River, at the Walnut Gulch experimental watershed for 30 years and documented the effects of storm intensity and runoff characteristics.
Goodrich was to attest to the “condition of the riparian eco-hydrology, riparian water use and the sustainability of the riparian corridor in the face of declining base flows,” according to court documents.
Also, he was counted on to rebut the testimony of the defense expert witness Richard Burtell, Plateau Resources, LLC.
Defense objects to delay tactic
Why it took so long for the U.S. to acknowledge the loss of the expert witness was a question asked Monday by defense council Sean Hood, with Freeport Minerals. He opposed the delay in no uncertain terms.
It is not the first time the U.S. has asked for a delay. In court records from August 18, 2018, Hood provided a list of the times the government has asked for a time delay in the recent SPRNCA adjudication – nine times since 2008. Those delays for depositions placed an undue burden on the defense in time and cost and delayed the trial.
Those same statements were made again Monday as the U.S. sought to delay the trial.
Defense expert witness has to wait
Hood was ready to put the defense expert Burtell, who has also performed studies on the SPRNCA, on the stand Monday to discuss his findings and rebut those of Goodrich.
Now that another expert witness may be called for the U.S., Hood expressed concerns about discovery, what new information Goodrich’s replacement could submit, the time needed to depose this new witness and the time for his team and their experts to review the deposition. It was more time and money.
Witnesses wait to testify for the U.S.
The U.S. still has some witnesses who can add to the case for its water claims while waiting for another eco-hydrologist to fill in for Goodrich.
Leslie Arianna Brand, an avian ecologist familiar with the SPRNCA, will discuss the importance of the riparian to a multitude of avian species, both migratory and year-round residents, and the need to preserve and enhance the habitats the cottonwood and willow stands provide. She will also rebut the claims of Steve Carothers, a witness for the defense.
Certified professional hydrologist Dave Romero will offer testimony supporting the government’s claim. He will explain the need to pump 300 acre feet annually from existing production wells upstream from the Charleston gauge to support the river flow in the perennial reaches. Also, he will talk about his modeling study which indicates groundwater pumping is having an impact on river flows and explain how he believes the Sierra Vista Environmental Operations Park does not overcome that impact.
Justin Huntington, of Huntington Hydrologic and a research professor at the Desert Research Institute, will argue there is no “significant” increase in the vegetation within the SPRNCA since its establishment. He will rebut the claim of Chris Garrett, who said the vegetation has increased.
Defense witnesses to be called
Burtell has performed many studies concerning the San Pedro River and Sierra Vista Subwatershed. They include a study of private well and commercial water use in the subwatershed in 2012. In March 2013, he prepared a report on the navigability of the San Pedro River for Freeport Minerals. His work goes back to 2005 on an Arizona Department of Water Resources study on the need to make the subwatershed an active management area. He contends any drop in streamflow is due to evapotranspiration from the increase in vegetation since the SPRNCA was established.
Arizona State Land Department will call Andrew Smallhouse and Lincoln Dahl, ranchers and farmers, to provide firsthand knowledge of the historical changes in the SPRNCA and testify to changes they have seen.
Sierra Vista and Pueblo Del Sol have scheduled Ann Redmond, managing scientist at Brown and Caldwell, to give her observation of the SPRNCA. She sees a clearly articulated, habitat-based vision for the SPRNCA as being of great importance for the future. The existing management plan the U.S. Bureau of Land Management (BLM) currently uses is “inadequate to properly establish the reserved water right for SPRNCA,” court documents state. She will discuss possible management activities which could result in reduced water claims and how identification of specific management goals and management activities associated with them are critical to determining water claims.
BLM is currently reviewing a new resource management plan for the SPRNCA and a final draft may be completed in May. The plan cannot bear any weight on the water rights claim since it is not completed nor approved.
Matt Lindburg, an engineer engaged in managing and participating in multi-disciplinary projects in agriculture and water resource planning, indicated he believes the function and ecological health has improved since the SPRNCA was established. He is expected to say the U.S. has failed to show the water rights claim is necessary to meet the purposes of the SPRNCA.
Jeff Weaver, a hydro-geologist and groundwater modeler, will discuss various deficiencies due to a lack of sufficient data and failure to assess the groundwater interactions with surface flows of the river. He will also go over the difference between estimating capture and projecting impacts on the river’s baseflow from regional pumping.
Sierra Vista City Manager Chuck Potucek and Castle and Cooke Arizona, Inc., vice president Rick Coffman are slated to discuss water conservation measures and recharge projects within the Sierra Vista Subwatershed.
Pat Call, of the county Board of Supervisors, will talk about his involvement and experience in water management and water conservation practices in the county to include the Babocomari Overlay District, enactment of water conservation requirements of new development and the adoption of water supply adequacy legislation. His experience on the Upper San Pedro Partnership and forming the Cochise Conservation and Recharge Network will also be discussed.
With the fluctuating witness schedule, it is difficult to know who will be called next, but Cochise Deputy County Attorney Sarah Ransom said Call would be on the stand Wednesday or Thursday.
Shar Porier, Herald/Review 2-25-2019
PHOENIX – “This is not an attempt to restart the trial.”
So assured U.S. Department of Justice attorney Lee Leininger Monday as court for the adjudication of federal water rights claims for the San Pedro Riparian National Conservation Area got resumed after a one-week break in Special Master Judge Mark Brain’s courtroom.
One of the expert witnesses, hydrologist David Goodrich, was in ill health and unable to testify, Leininger explained. Goodrich had performed studies on the riparian and provided extensive comments in his deposition. He was to testify in January, but was pushed back to the end of the case.
“So, we have a water rights case with no water rights expert,” Leininger stated. “With no prospect of him being able to testify, we would like the court to allow us to search for and hire a new hydrologist. We’ve begun that process.”
He asked for a nine-month delay.
Sean Hood, Freeport Minerals defense attorney, objected to the request and said, “It is critical, your honor, that you evaluate this motion to understand what the scope of Dr. Goodrich’s testimony would be.”
Hood stated documents showed Goodrich was being brought in as a surrogate for the original hydrologist in the case, Steve Swanson, formerly with the U.S. Bureau of Land Management’s (BLM) national operations center.
The defense had no objection with submitting Goodrich’s written documentation, though Hood would have liked to question Goodrich.
“This is not the first time this situation has come up,” said Hood.
He related an analogy that suggested how the court should proceed -- an Aravaipa case back in 2015. Arizona Department of Water Resources did a report with testimony from Michael Johnson, chief engineer and assistant director. During the trial, Johnson became unavailable.
“Nobody called a timeout and said, ‘Let’s come back next year.’ The court said, ‘We’ve got a report. We’ve got a deposition transcript. And all that was submitted for your consideration. What we know is you are more than capable of evaluating expert opinions when information is given to you in that fashion.”
In that instance, Brain adopted Johnson’s flow recommendations, Hood recalled.
Hood went on to allege the U.S. wanted a re-do of the case because Goodrich did not look at the augmentation claim, the point source claims, and did not support the government’s stream flow claims at the Babocomari gauge. At the time, Goodrich said two years of data from Walnut Gulch was inadequate.
Had the U.S. suggested to the defense that someone else would review Goodrich’s studies and deposition and if they asked for a little time, Hood would not have objected to a delay.
“They’re asking for nine months because they want to redo the hydrology,” growled Hood. “And what that means is if we get a new report and new opinions addressing all these insufficiencies, this case starts from scratch.”
It would mean the expert witnesses the defense hired would have to review the new information which would lose time and cost money. To do that when the trial was in its halfway point showed prejudice to the defense, Hood noted.
“The government does not get a redo on all these issues. Nine months is not to talk about these reports. Nine months is about a redo on the hydrology,” he alleged.
Cochise County deputy civil attorney Sara Ransom agreed with Freeport and suggested the government made a mistake by not weighing recharge efforts and by not cooperating with the county on recharge potential from future projects in the pre-development stage.
“We’ve done a lot to help maintain this river,” she said. “The problem is every time we try to talk to local BLM staff, ask them to work with us, they say, ‘We can’t talk to you because of the litigation.’ We don’t want them to have fears about sitting down with the county and other representatives to find a way to keep this river flowing.”
The defense attorneys representing Arizona State Land Department, Liberty Utilities and Sierra Vista and Pueblo Del Sol Water Company agreed.
Brain recessed court before lunch so the two sides could reach some compromise. He was not in favor of granting a long continuance, as other trials in the Gila River Adjudication were scheduled.
Upon returning, Leininger said he would get a motion to the court by Friday indicating what the government would do.
Though Richard Burtell, hydrologist for the defense, was to testify Monday and Tuesday on the Goodrich documents, Hood said he did not want to put him on the stand with no knowledge of what the government was going to do. So, his testimony was delayed.
With no other witness ready to go, they agreed court should resume on Wednesday with other defense witnesses. County Supervisor Pat Call is to be on the stand Wednesday and possibly Thursday.
Shar Porier, Herald/Review 2-16-2019
PHOENIX – Arizona Department of Water Resources (ADWR) is now measuring depth to groundwater in “hundreds” of wells in the Upper San Pedro basin.
The survey of basin wells, which began Feb. 4, is the first such basin survey of the area since 2006, according to ADWR spokeswoman Sally Stewart Lee.
The “basin sweep” project includes surveying wells from the border with Mexico to north of Benson. It covers the areas in and around Hereford, Sierra Vista, Huachuca City, Charleston, Fairbank, Tombstone, Saint David, and Benson, as well as other remote locations.
Lee added, “A basin sweep is an intensive effort to measure as many accessible wells as possible in order to provide a comprehensive picture of the groundwater system across the basin. Basin sweeps are conducted by trained staff within ADWR’s Field Services section.”
It includes wells of “various ownership,” she said.
The data collected will be used for analysis of water-level trends, groundwater modeling, water-level change maps, hydrologic reports and water resource planning and management, Lee continued.
Once all the data is collected and processed, the public will be able to view the outcome on the ADWR website, she said.
When asked if the survey was connected with the ongoing adjudication hearing for federal water rights claims in the San Pedro Riparian National Conservation Area, she said that no, the “sweep is being conducted independently of the adjudication process.”
According to Lee, such sweeps are conducted in Active Management Areas (AMAs) on a rotating five-year interval, while sweeps in other portions of the state are conducted at periodic times. ADWR just recently completed a basin sweep of the Pinal AMA.
The Upper San Pedro basin sweep started the week of Feb. 4 and is expected to conclude in early to mid-March. ( The Upper San Pedro basin has NOT been designated an active management area by the ADWR.
ADWR regulates all groundwater wells in Arizona. Well regulations are vital to the proper management and protection of our groundwater. Well construction standards help prevent contamination of the well and the surrounding groundwater. Prior to drilling a new well, or deepening or modifying an existing well, a person must file a Notice of Intent to Drill with the Department. Forms are available on the website site and must be submitted to the Department accompanied by the appropriate filing fee. Authority to deepen an existing well or drill a new well will be valid for one year. After that, a new Notice of Intent must be filed. A licensed well drilling contractor must perform the work.
Shar Porier, Herald/Review 2/15/2019
SIERRA VISTA – In the trial over the U.S. government’s claim of water rights from the San Pedro River, a number of experts in the fields of biology, hydrology and ichthyology on both sides have weighed in on the importance of sustaining the ecosystem of the San Pedro Riparian National Conservation Area (SPRNCA).
The U.S. attorneys claim the amount of water being sought is needed to support stream flows, maintain natural hydrologic processes, conserve resources, protect and enhance the SPRNCA. It includes numerous seeps, springs and ponds within the SPRNCA.
The government says it is only seeking the amount of water needed to sustain the abundance of wildlife, both plant and animal.
One big issue being discussed at trial has been depth to groundwater for vegetation and how much river flow is affected by water use of vegetation, especially the canopies of cottonwood and willow trees. The trees take their water from the baseflow in the riparian area.
U.S. Bureau of Land Management (BLM) studies determined the vegetation needs 12,735 acre feet per year to maintain proper health, as is stated in its third amendment statement of claim. That is but one area where the amount of water needed annually is being determined as part of the overall claim.
The water needs of the trees
The roots of willow and cottonwood galleries need water to be within 5 to 15 feet, respectively, to survive, stated riparian ecologist Mark Dixon, a witness for the U.S. To sustain them, he suggested it’s wise to request a claim allowing a safety margin in depth to groundwater to ensure their health.
Just how long a cottonwood could survive if the level dropped below that point has not been studied, stated Steven Carothers, SWAC aquatic and terrestrial biologist, hired by Freeport Minerals. Though the water level of the baseflow could drop far enough to compromise the trees, a surge of stormwater could bring the water levels back up high enough to restore contact with the roots.
During testimony for the U.S., former BLM SPRNCA manager Bill Childress said the shade the trees provide would reduce
evaporation from the river and keep the area near the river cooler, a plus for the fish.
Water needs for the fish
Testimony showed the two remaining native species of fish are the longfin dace and the desert sucker. Of the two, the longfin dace has proven to be an adaptive species with far higher numbers than the desert sucker, according to fish counts done by J.A. Stefferud over a period of decades. The desert sucker had the highest counts in the Charleston area, where the flows remain perennial.
U.S. witness William Miller, fisheries expert and owner of Miller Ecological Consultants, said more water in the river means the native fish have a better opportunity to survive, especially during the summer months when it is dry and hot. The BLM’s proposed plan to add water from the underground aquifer during the months prior to the monsoon would help the fish.
Both sides agreed non-native fish counts done by Stefferud show no one species is gaining a foothold. Also, the non-native fish tend to populate deeper, stiller water, like the ponds created by beaver dams.
Beavers, good or bad
Beavers and their dams were brought into the limelight as both sides, although agreeing on their importance to the ecosystem, discussed their possibly problematic ponding.
The U.S. witnesses expressed their viewpoints in favor of the beaver and their dams. The ponds create habitat for many types of plants and provide the riffling water needed by the longfin dace for reproduction, as well as deeper pools for the desert sucker. The dams can also slow the river and collect sediment.
Witnesses for the defense questioned the logic of promoting dams and ponds since the slower, deeper water provides habitat for non-native fish, which puts the natives at risk. Carothers pointed out the decline of the desert sucker began after beaver were introduced.
However, on cross-examination, Carothers agreed the desert sucker showed decline in years when the beaver were not present.
At the end of three weeks of testimony, both sides provided foundations for their arguments on the water needs of the SPRNCA.
The back and forth of testimony and rebuttal will continue on Monday, Feb. 25, in Maricopa County Superior Court.
Witnesses to come
For the U.S. government, avian ecologist Leslie Brand will provide relevant context regarding the regional importance of the SPRNCA from her experiences.
Hydrologist Dave Romero will explain the reason for the requested water rights claim and will try to show groundwater pumping has captured groundwater that would be otherwise available to the river and the riparian area.
David Goodrich, U.S. Department of Agriculture research hydrologic engineer, will discuss water issues within the San Pedro River basin.
Institute, will explain his conclusion that there has been no statistically significant change in the amount of vegetation since the SPRNCA’s establishment.
For the defense
Rich Burtell, Plateau Resources.
Rick Coffman, vice president of Castle & Cooke.
Chuck Potucek, Sierra Vista city manager.
Pat Call, Cochise County Supervisor.
Andrew Smallhouse, rancher.
No information provided: Matt Lindburg, Jeff Weaver, Ann Redmond, Theresa Murphy, John Bodenchuk, and Lincoln Dahl.
PHOENIX – Steven Carothers, SWAC aquatic and terrestrial biologist, agreed with the National Riparian Service Team’s (NRST) evaluation of the San Pedro Riparian National Conservation Area (SPRNCA), which rated all but one reach as being in proper functioning condition.
Called as a witness Tuesday for the defense in trial over the federal government’s water rights claim, Carothers said he reviewed the NSRT’s report on the SPRNCA, along with other studies, and conducted site visits to four locations – Hereford, State Highway 90, Charleston and Fairbank.
This gave him the information necessary to conclude the riparian is in “excellent” health with its cottonwood and willow canopies, mesquite bosques and general vegetation in and around the river, Carothers testified. He called the SPRNCA a remarkably beautiful riparian forest.
Studies have shown the vegetation in the SPRNCA has tripled in the past 60 years, he said. As a result, more water would be taken up by the trees, bushes and other plants in and around the river.
He also found numerous areas where seeds of cottonwood sprouted and young trees are gaining footholds along the river. Willows, too, showed signs of new growth with new sprouts springing from older roots.
“Trees will senesce as the river moves,” stated Carothers. “That’s good.”
He also pointed out in response to a study which stated trees were showing stress from lack of water that a single tree amidst a stand of healthy peers does not mean the tree is stressed. Cottonwood has very brittle wood and is easily damaged in high winds.
“They call them the widowmaker,” said Carothers. “You don’t want to camp under them.”
So, to find a cottonwood which looks rather stressed is not unusual. If the trees are water stressed, the entire stand will begin to show signs through loss of leaves at the same time.
SPRNCA cottonwood trees may be used in research as scientists and researchers at Northern Arizona University try to ready for climate change and prolonged drought, he testified. The cottonwoods in the SPRNCA have a genetic quirk which allows them to handle dry conditions better than some of the cottonwoods which grow in more northern climes.
As the terraces dry, mesquite moves in because the bushes can thrive in areas of low water due to their deep root structure. It is not unusual to find mesquite growing in areas where cottonwoods are failing. Carothers found great value in the mesquite bosques, as they provide habitat and sustenance for wildlife.
Tamarisk may be a problem, but trying to eradicate it may prove difficult. He related an effort in northern Arizona which loosed a specific beetle to combat the invasive tree. Within a season, the trees were decimated. What is not known is the beetle’s southward spread or their predilection for new tastes.
“The SPRNCA is the only riparian system that has not seen an invasion of the beetle,” said Carothers. “I don’t know if they will come this far south. It’s something that terrorizes me.”
He was clear about the threat of non-native fish on the native longfin dace and desert sucker
Predator species have the upper fin, because the natives are not used to being the prey. They do not recognize the danger. The invaders also compete for food and exploit fish habitats.
Even though beavers are considered a foundation species, meaning they alter the environment for the good of the community, the large wood-eaters do impact the native fish by pooling water, which gives non-natives who like still waters a place to thrive. Research showed the desert sucker numbers dropped dramatically after beavers were re-introduced to the SPRNCA. The fish rebounded when the beaver numbers dropped over the past three years.
“Still, they are remarkably important to a stream,” he added. “Their dams trap sediment and they give lentic and lotic plants a place to grow. They need to be a part of the SPRNCA. They’re too important.”
Carothers will spend more time Wednesday on the stand as the government’s attorneys try to refute his statements.
Shar Porier, Herald/Review 2-11-2019
PHOENIX – The San Pedro River is said to be one of the most-researched rivers in the West and there are ample studies to prove the point.
A 2007 U.S. Geological Survey (USGS) study was just one of the reports used for a new modeling effort to determine the extent of the impact to the aquifer if the U.S. Bureau of Land Management (BLM) put retired agricultural wells back in service to help river flows during dry times.
Amy Hudson, principal hydrogeologist and geochemist at Tetra Tech, was on the stand to discuss her modeling study Monday as the third week of the adjudication proceedings for the federal government’s water rights claims for the San Pedro Riparian National Conservation Area (SPRNCA) got underway.
She explained she used a few USGS reports and added new data to determine if the BLM were to go ahead and pump groundwater from the aquifer, there would be ramifications, including a new cone of depression.
Though in the beginning the BLM sought some 11,050 acre feet of groundwater annually to preserve flows in the San Pedro River during the dry months, the agency dropped the amount to just 300 acre feet a year.
Her study had already been performed prior to that determination, but the information she provided was important enough for her to be heard and Freeport Minerals attorney Sean Hood called her to the stand.
Hudson explained the USGS modeling did not include water from precipitation, flood events and bank storage, which made the USGS report somewhat inaccurate. Her modeling included the added water in the mix and led her to conclude pumping more water from the aquifer could result in the lowering of the depth to groundwater which would result not just in reduced river flow, but could impact the riparian forests, the vegetation on terraces and could leave springs, like Lewis Springs, high and dry. The impact would be felt throughout the SPRNCA.
“The extinction depth is 19.5 feet for the riparian woodland and 46 feet for mesquite,” she noted. “So, if groundwater dropped below those depths, the vegetation would be affected.”
Mesquites will use soil moisture as often as possible, but will send roots down 13 feet or more to reach groundwater, said Chris Garrett, ecological hydrologist with SWCA Environmental Consulting, in previous testimony. Giant sacaton roots can reach down over 11 feet to gain access to groundwater, he explained. Cottonwoods and willows extend roots down 10 feet.
Hudson also looked at the effect the reclaimed water from Sierra Vista’s Environmental Operations Park and determined it is positively impacting the groundwater and the base flow by creating a mound of water helpful to the alluvial aquifer and the river flow.
Base flow and the alluvial aquifer
According to the USGS, “Base flow in the upper San Pedro River is derived from groundwater discharge to the river from the regional and alluvial aquifer. The regional aquifer is defined as having recharge zones away from the river, primarily at mountain fronts and along ephemeral channels. The alluvial aquifer is recharged mainly from stormflow.”
A 2010 USGS study explains the alluvial aquifer as “relatively thin (less than 50 feet thick), ranges in width from a few feet to nearly two miles” and consists of “unconsolidated gravel, sand, and silt deposited by flood flows.” These “deposits form a prolific, but limited unconfined aquifer.”
These floodplain deposits were divided into two hydrogeological units — pre-entrenchment and post-entrenchment alluviums.
“The older, pre-entrenchment alluvium consists of clay, silt, and fine sand deposited during the Holocene before river channels in the area became entrenched during the late 1800s,” the 2010 USGS study states. “Compared to the post-entrenchment alluvium and underlying basin fill deposits, the pre-entrenchment alluvium has relatively low permeability. The younger, post-entrenchment alluvium consists of more permeable sand and gravel, but is generally only a few feet thick in most areas.”
Cananea, Mexico, a wild card
Since the renewed mining in Cananea, Mexico, more water used in the process will also have an impact on the river and its flows, Hudson said. With the addition of agricultural uses south of the border, the river could see more decline.
Pumping groundwater to help fish
When asked by Salt River Project attorney Jeff Heilman if the pumping of groundwater into the river would help a river stretch, Hudson said there were a number of variables and she could not provide an answer.
San Carlos Apache Tribe attorney Joe Sparks said the fish need water 24 hours a day, seven days a week, and maybe the vegetation on the terraces could get by without water for a while without actually killing them. Then, pumping could be possible. She said that determination would need to be done by a biologist.
Testimony will resume Tuesday morning in the weeks-long, precedent-setting water rights trial.
Shar Porier, Herald/Review 2-10-2019
PHOENIX — Does a personal perspective devoid of scientific foundation carry much weight in court?
Special Master Judge Mark Brain allowed the testimony of rancher John Ladd based on his personal observations of the progression of vegetation prior to the establishment of the San Pedro Riparian National Conservation Area (SPRNCA) and after during Thursday’s proceedings in the adjudication of water rights claims by the federal government.
Answering questions posed by Carrie Brennan, a lawyer with the Arizona State Land Department, Ladd explained his family has ranched on some 16,000 acres of private and federal land for over 100 years from the border with Mexico near Naco, Arizona, north to State Highway 92. Their land spreads east to west on both sides of the San Pedro River.
As a child, the river was his playground and cattle roamed the river’s grassy uplands.
“I grew up recreating there,” Ladd said.
He said there was plenty of flow in the river 50 years ago and he suspected the increase in vegetation, particularly the cottonwoods, has “sucked the river dry.”
The increase in vegetation included the encroachment of mesquite, acacia and other scrub brush. Once, they were able to round up cattle on horseback in the area above the river. By the mid-2000s, the scrub brush and mesquite had taken over to the extent roundups on horseback became nearly impossible.
With the increased brush and dry conditions, concerns about wildland fires ended in the Ladds clearing fire breaks across the pasture lands.
Ladd also told of rounding up cattle that strayed from south of the border onto American lands.
“I knew a lot of the Mexican ranchers, so we’d round them up and take them back,” he explained.
He also said the Bureau of Land Management (BLM) hired cowboys from Willcox to come and round up Mexican cattle, which were then auctioned off. BLM received money from the sales.
After 20 years working as an engineer in Phoenix, Ladd returned to the ranch to help his father in 1989, a year after the SPRNCA was established.
Grazing continued on lands within the SPRNCA until 2003 when the BLM placed a moratorium on it, leaving many ranchers in a lurch. The Ladds lost leases to lands south of Highway 92. A few ranchers on the northwestern most areas of the SPRNCA were allowed to continue.
“They said a study showed the cattle were impacting the river,” he said.
The grazing leases were suspended for what was to be 15 years. Just recently their hopes were raised as the BLM moved forward with a new resource management plan with a couple of alternatives which would reinstate some acreage for grazing.
During questioning by Cochise Deputy County Attorney Sarah Ransom, Ladd told of efforts to restore grasslands. In order to get rid of the encroaching mesquite and acacia to reestablish grasslands on Ladd lands, father and son began to eliminate them — first through bulldozing, then through plant-specific chemicals.
“We clear and try to restore about five percent (around 800 acres) of land every year. We’ve done about 6,000 acres so far,” he noted.
While he takes pride in the rangeland restoration, Ladd said he finds even more in the 600-acre Horseshoe Draw Project completed in a joint effort of Cochise County, the Cochise Conservation and Recharge Network CCRN), the Hereford Natural Resource Conservation District (HNRCD), the Arizona Department of Water Quality and private donors.
Floodwater cut a deep, narrow channel which ended up depositing great amounts of sediment into the river. To stop the erosion, a massive basin was constructed to collect and slow the water, which is then channeled into a drainage system. This allowed sediment and E.Coli to be trapped in the basin to prevent them from making it down to the river.
“It eliminated the erosion problem for us,” said Ladd. “And it lets some water percolate into the ground to recharge
A former BLM hydrologist called him to ask about the change in water flow to the river. The hydrologist was concerned the project would result in decreased flows, stated Ladd. The recharge would still provide water to the river through groundwater.
To prevent any development, the Ladds established conservation easements on certain lands, including 2,500 acres bought from the BLM and another 1,200 from the county.
“I think conservation easements are a good thing,” Ladd continued. “And we now have solar pumps on the stock tanks. They quit pumping when the sun goes down.”
Lee Leininger, an attorney for the U.S., asked if Ladd knew how much water the BLM was asking in the claim for water rights and Ladd replied 44,000 acre feet annually, which has been reported in the press. He also asked Ladd if he had read the water claim documents and Ladd replied, no.
The BLM, since its initial claim to 44,300 acre feet of water per year, has since lowered its request to 33,150 acre feet annually.
Ladd told Leininger, “The Horseshoe Draw project could provide the U.S. with some of the water it’s claiming.”
In addition to lifting the grazing moratorium, Ladd suggested establishing an off-road vehicle area for people.
“I don’t care for it, but some people do,” he added.
Salt River Project attorney Michael Foy asked a number of questions on his background in sciences and noted Ladd had none.
With no time left at the end of the day for rebuttal by the defense, court was adjourned. It was not clear if Ladd would be called back for further testimony when the trial resumes Monday.
Shar Porier, Herald/Review 2-7-2019
PHOENIX – A technology using special satellite imaging can provide a snapshot of anywhere on Earth’s surface, including the San Pedro Riparian National Conservation Area (SPRNCA).
Thanks to the technology named “Landsat,” Chris Garrett, an ecological hydrologist with SWCA Environmental Consulting, was able to compile images of the SPRNCA and track the increase in vegetation and the changing course of the San Pedro River over decades.
Garrett continued his testimony Wednesday as an expert witness for Freeport Minerals in the adjudication of water rights claimed by the U.S. Government to protect the SPRNCA and was questioned by Freeport attorney Sean Hood. Freeport are among several groups contending the federal Bureau of Land Management’s assertion that they need more than 33,000 acre feet of water per year to protect the riparian area. The BLM originally claimed 44,300 acre feet were necessary, but have since backed off that claim and lowered the number to 33,150 acre feet.
NDVI, normalized difference vegetation index, is a simple graphical indicator which measures the chlorophyll in vegetation which reflects more near-infrared and green light compared to other wavelengths, he explained. It can assess whether the target being observed contains live green vegetation or not. Healthy vegetation absorbs most of the visible light that hits it, and reflects a large portion of the near-infrared light. Unhealthy or sparse vegetation reflects more visible light and less near-infrared light.
The imaging technique was used to assess where new growth has popped up over the years over the length of the SPRNCA. NDVI cannot lead conclusively to evidence of groundwater use, he added.
In addition to the satellite data, Garrett also reviewed numerous studies done on the SPRNCA and prior to its establishment to get an idea of how much growth of cottonwoods, willows, mesquite, and even grasses like sacaton, have spread around the river, its floodplain and the terraces above.
He also reviewed numerous aerial and ground photographs to see how the river, its landscape and the vegetation have changed to get an idea of where groundwater might be a source for the expansion.
Then, he went out into the field himself to see just what was happening in the SPRNCA.
“I needed to get on the ground and confirm what I had been seeing through the images,” Garrett said.
That the SPRNCA now boasts canopies of cottonwoods and willows and invasive mesquite bosques are known factors of water use, but just where that water comes from can be difficult to determine, Garrett continued.
The U.S. Geological Survey defines evapotranspiration as “the water lost to the atmosphere from the ground surface, evaporation from the capillary fringe of the groundwater table, and the transpiration of groundwater by plants whose roots tap the capillary fringe of the groundwater table.”
Garrett noted the determination of groundwater, which to him is any water not flowing in the river, use comes with caveats.
“It doesn’t mean they’re using just groundwater,” he said. “It could be groundwater or moisture from the soil.”
And just because a tree has dead branches does not necessarily mean its roots are no longer reaching the groundwater supply. He saw trees damaged by lightning which showed stress.
The different species of trees all use water from soil moisture which can be deposited by summer and winter rains. The tap roots will seek out water in the ground during dry spells, but those are limited in the depth they can reach.
Plants will take up water from the easiest source to use the least amount of energy, he continued.
Cottonwoods will take 10 percent of the moisture in the soil and 90 percent from the groundwater table. Willows use groundwater almost exclusively. Mesquites will use soil moisture as often as possible, but will send roots down 13 feet or more to reach groundwater, he said. Giant sacaton roots can reach down over 11 feet to gain access to groundwater, he explained.
“For quantifying water use, you need to know what type of plants there are. Plants use water differently in different places. They’re site-specific,” he told Davis Gehlert, U.S. attorney for the government, on cross examination.
Gehlert asked if anyone had taken the data from NDVI to determine water use and Garrett replied, “No.”
Then he said to Garrett, “So, we just established you have not used the data to quantify absolute water use.”
“Correct,” stated Garrett.
Court was ended for the day and Garrett will be back on the stand when the trial resumes Thursday morning.
Chris Garrett, Consultant, explained his report on the expansion of the vegetation within the SPRNCA over the past 60 years.
Shar Porier, Herald/Review 2-6-2019
PHOENIX – William Miller, a fisheries expert and owner of Miller Ecological Consultants, was back on the stand for the second straight day Tuesday in the adjudication of U.S. government water rights claims to protect and preserve the San Pedro Riparian National Conservation Area (SPRNCA).
Freeport Minerals attorney Sean Hood tried his best to get Miller to admit there was a correlation between the reintroduction of beaver and the decline in the native desert sucker fish population, but Miller held fast to his original statement, given in a prior deposition.
Hood asked Miller about the deposition from June 2018 and asked Miller if he thought there was a correlation between the decline of the desert sucker and the beavers. A spreadsheet showing the desert sucker counts from 2014 to 2016 indicated a boost in population as the number of beaver dams dropped in the same time period to just one.
Prior to the beaver reintroduction, the desert suckers numbered in the hundreds according to the chart, Hood pointed out.
Miller said, “No. They occurred at the same time, but I don’t know if they are related. I haven’t looked at anything in particular. I didn’t look into the hydrological data.”
During dry times prior to the monsoons, the stream flow can be reduced or even stop, creating individual pools, Miller added. Those conditions can prevent the desert sucker from moving upstream or downstream to find cooler water.
After Hood was finished, Joe Sparks, attorney for the San Carlos Apache Tribe, asked Miller about the various factors which could lead to a decline in the desert sucker population.
The fish prefer rippled waters, rapids and flowing streams and need gravelly bottoms to feed on the algae and phytoplankton, Miller said. Heavy sediment can cover the gravel, cutting off the food supply and smothering eggs with the result of reducing the population. Warmer water temperatures can also affect populations of both the desert sucker and the longfin dace, also a native species.
U.S. Justice Department attorney David Negri also followed up with Miller and asked if human intervention, such as use of groundwater, could have impacted the fish population.
Miller said water use could cause fragmentation of the stream flows, which could affect the fish.
Chris Garrett, ecological hydrologist with SWCA Environmental Consulting, was the first witness called for Freeport Minerals, who are among several contesting the size of the BLM’s water claim. He compiled a report on the SPRNCA vegetation through aerial photographs,of the San Pedro River from 1935 to 2003. He found there was a “constant theme of riparian vegetation increases both before and after the designation of the riparian area” along the river, floodplain and entrenchment terraces.
His report was based on photographs and others’ studies. He did not do any ground-level visual inspection, but relied on overlays of photos and a grid of 114 transects of the SPRNCA.
Before the end of the day’s testimony, he said the increased vegetation along the river and the floodplain “probably used groundwater” to grow. However, the mesquite trees on the terraces use soil moisture more than groundwater.
Garrett will continue his testimony when the trial resumes Wednesday morning.
BLM Attorney pulling some shenanigans with evidence
Shar Porier, Herald/Review 2-5-2019
PHOENIX – When U.S. Department of Justice attorney David Negri on Monday tried to enter information into the record which was previously submitted as a spreadsheet, the Freeport Minerals and Arizona State Land Department objected with a firm: “No way.”
On the stand Monday in the trial for the U.S. government’s claim for water rights to preserve the San Pedro Riparian National Conservation Area (SPRNCA), Negri intended to submit information from fisheries expert witness William Miller which he said had already been entered, just in a different form.
It was a part of the report by Miller, fisheries expert and owner of Miller Ecological Consultants, already in the record. However, since it had been converted from a table into a graph, Freeport attorney Sean Hood, Arizona State Land Department attorney Carrie Brennan and Pueblo Del Sol/Sierra Vista attorney William Sullivan objected. They all voiced concern they had not seen this evidence in the current form and wanted time to validate the data to be sure they were the same.
Negri argued it should be admitted.
Judge Mark Brain told Negri, “If the defense attorneys show the details are wrong, it will make your witness look bad.”
In addition, the slides Negri showed did not have appropriate numbering so Brain called a recess for 15 minutes to give Negri time to get the numbering of the exhibits in order.
Symone Hetzel, a paralegal working with the U.S. government who pulls up the different exhibits on screen, said she would get copies made so comparisons could be made. The court provided the printed copies.
Also contended was four years of data from 2000 through 2003 which was supposed to be entered some six months ago. Brennan and Hood took issue with the late entry and Negri was scolded by the judge.
“This should have been done months and months ago,” noted Brain.
Miller’s testimony supports BLM’s claims for water
Miller performed surveys of the hydraulics, hydrology, native and non-native fish populations and beaver dams along the San Pedro River within the SPRNCA.
His findings indicate native fish species – specifically, the longfin dace and the desert sucker – appear to be holding their own even though non-native species have been introduced. Indications are the two native species are doing well in the river.
Times when the fish are most susceptible are during the dry months of May, June and October, Miller stated. This is when the flow slows and the heat rises. This constricts the river channels and can cause problems for the fish, especially the longfin dace, as they prefer shallower water.
Most of the desert sucker species – 94 percent – thrive in the areas of deeper water in the perennial, mid-section of the river – the Charleston area.
As far as stream flow goes, the request of the BLM for water rights based on flows prior to the establishment of the SPRNCA better serves the aquatic conditions of the river.
“It provides a better aquatic habitat,” he said. “The Freeport figures are not sufficient to protect the habitats.”
Freeport Minerals suggested the BLM has overstated water needs and claimed the environment would do just as well with less water.
Miller flatly disagreed with Freeport’s assertion.
When asked if Freeport’s levels of water would help the river rebound from dry spells or continued drought like the current trends, Miller said, “No. With Freeport’s levels, the populations would not rebound. Fish need water.”
Miller also stated the native and non-native fish are existing together with neither impacting the others’ numbers. Currently, there are more native than non-native fish in the river. He determined nearly 90 percent of the fish in the river, predominantly in the wetter midsection of the river, are the two native species.
Beavers do not harm native species
Miller also inventoried existing beaver dams, active and abandoned, and determined the wood-crunching rodents do not interfere with the native fish species.
He also pointed out there were several pooled areas not built by beavers which were serving the fish population well.
Miller will again be on the stand when testimony in the weeks-long trial, now entering its second week, resumes Tuesday.
Shar Porier, Herald/Review 2-3-2019
PHOENIX — The afternoon in court Thursday in the ongoing, precedent-setting San Pedro Riparian National Conservation Area (SPRNCA) water rights trial began with the testimony of longtime Bureau of Land Management biology specialist Jeff Simms, who has spent many days over the years walking the San Pedro River and tracking the numerous species he saw.
Birds, butterflies, dragonflies, frogs, toads, turtles, beavers and other mammals, reptiles and fish all scrabble for a niche in the SPRNCA.
His specialty is the finned creatures and he has monitored the decline of the native desert sucker and longfin dace, fish that have lived there for millennia. He also has been keeping an eye on the reintroduced endangered desert pupfish and endangered Gila topminnow.
During questioning by U.S. Attorney Dave Gehlert, Simms explained the problem with illegally introduced, non-native fish, such as the green sunfish, western mosquitofish, carp, bullhead and catfish. These are probably fish dumped in the river for sport fishing.
Efforts were made to eradicate the “sport fish,” but time and other priorities prevented ridding the San Pedro River of them, he continued.
It is not just non-natives contributing to the decline of the native fish populations, Simms said. There were three massive fish kills in the river in July of 2000, 2011 and 2015 before the monsoons in Fairbanks when the water was at its lowest, he reported.
“We found dead fish for a quarter of a mile,” Simms said. “Some were gulping for air, others were nonreactive.”
Hydrogen sulfide is naturally produced from decaying organic matter or it can be released from sewage, he said. As water levels and stream flow drop and temperatures rise, organic matter decays and the chemical compound can seep into the soil. It can be harmful to fish as water temperatures rise. The pools where the dead fish were found were stagnant and that could have resulted in the fish kill.
Proper-functioning river flows are essential to not just the endangered fish, but to the amphibians who lay eggs in water, which hatch as tadpoles. Then there are the many species of dragonflies which also need water for egg laying and the naiads swimming about before they morph into adults.
One notable butterfly found along the SPRNCA is the now-protected Monarch.
“The San Pedro is a Monarch migratory support area,” Simms added.
During cross examination by Freeport Minerals attorney Brian Heiserman, Simms stated the problem with native fish reintroduction and reestablishment and the eradication of non-native species, “Without the complete renovation of the San Pedro River, even down into Mexico, the recovery prospect of native fish is low. I’m concerned that native fish could not be successfully stocked until the non-native species is gone.”
Judge Mark Brain presiding over the SPRNCA Water Trial
Shar Porier, Herald/Review 1-31-2019
PHOENIX – The adjudication of water rights claimed by the U.S. Bureau of Land Management (BLM) for the San Pedro Riparian National Conservation Area (SPRNCA) continued Wednesday with more testimony from riparian ecologist Mark Dixon.
Dixon, now a professor of biology at the University of South Dakota, conducted two studies of the health of the SPRNCA in 2016 and 2017 of some 300 cottonwood and willow trees and other riparian vegetation. During his site visits, Dixon testified, he did find indications of possible water-related stress on some of the trees. These signs included dead branches, tips of branches dying off, yellowing leaves and smaller-than-normal leaf sizes.
He told U.S. attorney Dave Gehlert and the court how important the depth to groundwater is to the cottonwoods, which can send roots down nearly 10 feet deep. Willows’ root systems reach down a little more than three feet. To sustain the galleries of cottonwoods and willows along the San Pedro River, Dixon suggested it was wise to provide a claim allowing a safe margin to ensure their health.
Both species need an open, moist environment to germinate seeds and grow from seedlings to saplings, he added. Open areas are often scoured by winter floods, which can provide the flat, damp environment for the seeds when disbursed.
He also agreed with the warning of the National Riparian Service Team (NRST), hired back in 2012 by the BLM to assess the health of the riparian area. These specialists in botany, birds, fish, hydrology, geology and ecological balance, stated in their report that when evidence of severe decline begins to show, it is probably too late to do much about it.
However, when Dixon was cross-examined by Freeport McMoRan Inc. attorney Sean Hood, some irregularities in the science began to show.
Dixon said he assessed trees which looked stressed, but did not investigate if the trees had been infected by insects or if there was some sort of damage to the root system caused by other mechanisms. He did not inspect other trees within the same canopy. He made judgment calls on the yellowing and smaller leaves and did not use a scientific measure to determine his findings.
Hood also asked about the effect on stream flow due to evapotranspiration of the trees and vegetation. Evapotranspiration is defined by Webster’s as “the process by which water is transferred from the land to the atmosphere by evaporation from the soil and other surfaces and by transpiration from plants.” Hood asked Dixon if more trees meant more evapotranspiration and Dixon said it did, though Dixon could not say definitively the trees drawing water from the ground would affect the river flow.
A communication revealed by Hood from Gehlert to Dixon indicated the subject of the BLM using retired agricultural wells to assist river flow should be “ignored.”
Dixon said, “I can’t make a determination on that.”
Hood also referred to the NRST and the members completed. The team determined all but one of the reaches surveyed along the 40-mile river and uplands were in proper functioning condition, with the exception of the St. David reach. It was noted as functioning at risk.
Dixon noted the St. David reach was deemed to be a Class 3 reach, meaning it had healthy tree stands, although they were the invasive, non-native tamarisk, also known as salt cedars. Tamarisk can survive in low-water or drought conditions, while cottonwoods and willows cannot.
Hood also asked if a decline in trees could be caused by climate change and increasing drought which cycles every 7 to 10 years rather than by groundwater pumping. Dixon said, “No.”
Dixon was asked what role disease could play in forest decline and said he did not know.
Trial testimony resumes Thursday morning, before the sides are given a break Friday through Sunday.
Trial attorney's at the end of the trial day.
Shar Porier, Herald/Review 1-30-2019
PHOENIX – Do the water needs of the cottonwood stands, willow galleries and other riparian vegetation affect the amount of water flowing in the San Pedro River?
That was a question posed Tuesday by Fennemore Craig attorney Brian Heiserman, representing Freeport McMoRan Copper and Gold Inc., during court proceedings in the ongoing water rights trial for the San Pedro Riparian National Conservation Area (SPRNCA).
Heiserman was questioning former U.S. Bureau of Land Management (BLM) SPRNCA manager William Childress’s rationale for wanting additional water to cover the trees’ health, along with water to sustain the river flow.
Childress explained the claim was made for the health of the entire riparian system – the vegetation, the river, the seeps, the springs, the ponds and any other natural occurring waters. Some of the increase was to cover the needs of evapotranspiration, which is defined by Webster’s dictionary as “the process by which water is transferred from the land to the atmosphere by evaporation from the soil and other surfaces and by transpiration from plants.”
However, there was a sticking point. Heiserman pointed out the BLM was setting its water rights claim based on the state of the SPRNCA in 1988, a BLM decision based on the congressional legislation which established it. In 1988, there were fewer cottonwoods, willows and plants lining the river.
Heiserman also suggested the BLM should have provided figures for the minimum use of water needed to maintain the SPRNCA, but did not.
Liberty Water Corp. attorney Robert Anderson pushed a little harder for an answer and asked, “With an increase in vegetation, wouldn’t there be a decline in the flow of the river? Isn’t evapotranspiration taking water out of the system?”
Childress said it was hard to determine, and that there are a variety of dynamics at work with canopies. Trees shade the water and prevent evaporation, as well as keep the environment cooler.
Cochise County Deputy Attorney Sarah Ransom asked Childress if the Sierra Vista Environmental Operation Park had a positive impact on the river.
Childress answered, “No. It’s daylighting at Curry Draw and is not going into the aquifer.”
Not enough time had passed since its operation began to determine if it was helping the aquifer or the base flow of the river, he said.
Childress stated that during his time from 2002 to 2008 as manager, he heard of proposed projects near the SPRNCA, but did not have any direct involvement in them since they were not on public land.
Childress said the BLM had the responsibility of preserving, protecting and enhancing the SPRNCA, “not to deal with water conservation. We were to protect all resources within the (SPRNCA).”
Mark Dixon, now a biology professor with the University of South Dakota, worked on a few San Pedro River studies with Julie Stromberg, a plant ecologist and botanist specializing in riparian and wetland ecosystems.
Sufficient streamflow and groundwater are requirements for a healthy riparian system and the BLM has a rightful claim to enough water to sustain the system’s life, he noted.
Back in the 1880s, the San Pedro could hardly be called a river, he explained. It was more of a swamp, or a wetlands. Over time, the river became entrenched and downcutting from erosion left banks high and dry. Now, its flows are intermittent at some points, ephemeral at others, and perennial in several reaches.
Dixon said different plants and trees need different levels of water for proper health. Terraces provide the needed grounding sites for reproduction and expansion. Seeds from the cottonwoods and willows need open space and moist soil to germinate and enough moisture to grow to saplings. As the river meanders, shifting water away from cottonwoods, the trees decline and can die. New ones need to grow to take their place. Willows are also sensitive to groundwater decline.
When bank vegetation and the deciduous trees die off, Tamarisk, also called Salt Cedar, can take over, he continued. These non-native invasive trees are more drought-tolerant.
Dixon said his research in the SPRNCA indicated it was in good shape, with over 40 percent of its reaches considered Class 3, a positive level of health. This is a condition of health galleries of cottonwood and willows.
Testimony in the trial, scheduled to last several weeks, will continue Wednesday.
Shar Porier Herald/Review 1-29-2019
PHOENIX – The long-awaited water rights adjudication finally got underway Monday with both sides taking a stand on the amount of water needed to sustain and enhance the San Pedro Riparian National Conservation Area (SPRNCA).
David Gehlert, an attorney for the U.S. Department of Justice’s Environment and Natural Resources Division, began opening statements representing the U.S. Bureau of Land Management (BLM) and said, “The biodiversity of the SPRNCA is astounding. We need to ensure there is a sufficient supply of water to protect it.”
The BLM is under a 1988 congressional directive to protect, conserve and enhance the SPRNCA and is seeking to establish a set amount of groundwater and surface water to move ahead with its proposed resource management plan and fulfill that legislative mandate. The agency is asking for 44,000 acre feet a year.
Pueblo Del Sol and Liberty Water companies, Freeport McMoRan Copper and Gold, Inc., Sierra Vista, Cochise County and others are contesting the BLM’s request. They represent concerns for the future of company wells and even private wells, believing it would take far less water to fulfill the SPRNCA directive to provide its needs.
As Gehlert pointed out, the SPRNCA’s “biodiversity rivals anything in the United States.” It provides an environment where wildlife flourishes – 600 species of plants, 80 species of mammals, 41 species of reptiles and 5 million birds of 350 species. The American Bird Conservancy has declared it a global birding site. The fish population, meanwhile, has plummeted over the years from 13 species to two. (Is that because the fish species are small and have been eaten by all the 5 million birds that frequent the SPRNCA??-ED)
The cottonwood and willow stands are also tied in to the SPRNCA’s health and provide an important environment in which all these animals and plants live, added Gehlert. There needs to be enough water available for them to survive during the summer months until the monsoon brings the rain. He suggested “the ecosystem could collapse” if groundwater pumping continues.
Mike Foy, with the Salt River Project, said it was a “complex case.” The vegetation in the SPRNCA is also “unique and vulnerable. When the underground sources get too low, the cottonwoods and willows will be lost and tamarisk will take over,” he said. Tamarisk is an invasive tree which can take over native streamside plants when the ecosystem is disrupted, as in the case of declining water levels.
By ensuring the SPRNCA has all of its water needs met, it also ensures its continued existence and that of all the flora and fauna which call it home.
San Carlos Apache Tribe attorney Joe Sparks told Special Master Mark Brain, who is presiding over the trial, “The tribe cares about the adjudication. At the end of all this, there will be enforceable decrees for the water needed for the SPRNCA. We are an ancient people and the San Pedro River is part of its ancestry. Congress was doing the right thing for the right reason.”
Sparks added floodwaters are important to the sustainability of the cottonwood trees, as the seeds are disbursed in spring, but germinate in the summer floods.
There are some 8,000 exhibits entered into the court record.
Sparks said, “That’s cruel and unusual punishment for the court. We’ll pare them down to just the exhibits necessary.”
Freeport attorneys Brian Heiserman and Sean Hood objected to a government plan to pump water from old Tenneco wells to the river. (This has been a plan for years that makes no sense. The wells are along the river so they would pump water out of the aquifer to the surface to keep the water in the river running--ED) The mining company determined the riparian vegetation is taking up too much groundwater. BLM has managed SPRNCA to the benefit of the vegetation, which consumes water which would flow into the river. The question was raised, “Is it pumping or is it trees?” impacting the river.
Representing Cochise County, which owns 122 acres within the SPRNCA, Deputy County Attorney Sarah Ransom stated, “Cochise County is passionate about protecting the river. The government needs to prove the water is needed.”
She explained to Brain the efforts made by the county with water conservation development requirements and its recharge projects. She suggested the BLM failed to evaluate how the recharge projects will help the river.
“The BLM needs to work with its partners,” Ransom continued. “The BLM’s claims exceed the use of the whole watershed. Their claim is one of gluttony.”
Speaking for PDS, attorney William Sullivan offered his full support for the preservation of the SPRNCA. He said the BLM should be required to demonstrate how a lesser amount of water would hurt it.
“A lesser quantity would satisfy their needs,” he stated.
The trial will continue through Thursday for the first week of testimony, with five more weeks to go. The judge estimated he would have a ruling sometime in 2020.
"Presumed" "Simulated" "Estimated" "Potential" "theoretical impacts" "Assumptions" "Hypothetical" are not words that instill confidence in any person when these reports are supposed to be detailed and scientific. So how are the people who's wells are going to be
effected by this adjudication have any faith in the final decision??--ED
shar Porier, Herald/Review 1/4/2019
PHOENIX — The U.S. Bureau of Land Management (BLM) is pursuing water rights for the San Pedro Riparian Conservation Area (SPRNCA) and the establishment of a subflow zone to protect the San Pedro River.
The agency is asking for 44,000 acre-feet annually to be set aside for purposes of its mandated land and river management and protection of the subflow zone, according to court documents.
A subflow zone is defined as water hydraulically connected to the surface flow of perennial or intermittent streams or rivers.
In order to determine how BLM’s requests affect the rights of well owners and water companies within the Sierra Vista Subwatershed, Maricopa County Superior Court Judge Mark Brain, appointed as the special master in the adjudication, requested the Arizona Department of Water Resources (ADWR) perform a subflow depletion test on the San Pedro River.
The request was made in October 2017.
At the time, Brain stated, “A subflow depletion test must be established to provide the clear and convincing evidence required by the Arizona Supreme Court to overcome the ‘strong initial presumption’ that a well located outside the subflow zone is pumping percolating groundwater.”
He required subflow depletion tests be performed “prior to the entry of the final decree to define the water rights of claimants to appropriable water and after the issuance of the final decree for enforcement purposes under the continuing jurisdiction of the court.”
Complying with the court‘s request, ADWR filed the report on Dec. 20.
ADWR determined subflow depletion is defined as the “movement of water from the subflow zone resulting from the pumping of certain wells located outside of the subflow zone.”
Excerpting from previous studies, the agency established the subflow zone as “the lateral extent of the saturated floodplain Holocene alluvium on either side of a perennial or intermittent stream.” ADWR developed maps delineating subflow zones for the San Pedro River, the Babocomari River and Aravaipa Creek.
ADWR advised, “Wells located within the subflow zone are presumed to be withdrawing subflow, and those wells and their associated potential water rights (PWRs) would be subject to the adjudication court’s jurisdiction.”
If a well is within the limits of the subflow zone, it would be subject to the adjudication, and the owner “would have the burden of establishing that the perforations of its well are below an impervious formation that would prevent its well from creating drawdown within the subflow zone.”
Additionally, a well owner may have to prove the well is outside the mapped extent of the subflow zone.
Also to be considered are wells that impacted the cone of depression in the Sierra Vista area. A cone of depression results when water pumped from an aquifer lowers the water table near the wells. Groundwater flows towards the wells and into the cone of depression which changes the natural direction of groundwater flow.
Those wells may be included in the adjudication, as ruled by a previous special master Stanley Goodfarb in 2005. He directed ADWR to utilize a test that could “reasonably, reliably, economically and expediently calculate the drawdown occurring at the subflow zone boundary resulting from a well located outside the subflow zone.”
ADWR noted certain wells that have minimal drawdown at the subflow zone boundary would be excluded from the adjudication. This would include “de minimus potential water rights for certain stock pond, stock watering, and wildlife uses of surface water.”
The findings indicated that overall, flow from the subflow zone to the aquifer remained relatively constant. However, “there is no question that the subflow zone is being impacted by the decrease in water flowing to the subflow zone from the regional aquifer.” (Based on what proof? Where are there earth fissures due to groundwater withdrawl around wells--ED)
During a simulated period from 1986 to 2012, the ADWR study showed the magnitude and direction of flow patterns in and near the subflow zone were “significantly altered in some areas due to nearby well pumping.”
ADWR noted, “The collection of accurate withdrawal data for tested wells will be critical for the development and utilization of the subflow depletion test. Estimated annual volumes withdrawn, or at least an estimated average annual volume pumped, will be necessary for the calculations.”
A potential subflow depletion test was investigated to see how it could be used for enforcement after a decree is made. ADWR discovered “calculating the volume of water leaving the subflow zone as a result of a cone of depression test well’s pumping will be technically challenging; it may even prove to be infeasible for some wells, and will require an extensive effort to apply.”
The reports stated, “This analysis was designed to evaluate the theoretical impacts of pumping specific wells on the flow of water to and from the Babocomari and San Pedro River subflow zone and the regional aquifer system.”
ADWR continued, “Even if analyses are successfully conducted using more detailed zonation, the effort required to analyze each well will be extensive and the assumptions made in selecting the detailed zones may unacceptably bias the results.”
In an order issued by Brain, he found two critical issues:
One, that the “pumping from a hypothetical well causes a greater reduction in the water flowing from the aquifer to the subflow zone than it does on the amount of water flowing from the subflow zone to the aquifer.”
Two, “Flow patterns near the subflow zone were significantly altered due to pumping” and “the problems of isolating the impacts on pumping on the subflow zone among a group of wells.”
Brain scheduled a status conference on Jan. 11 when parties can present their positions on the proposed subflow deletion test and the cone of depression test.
He stated, “The purpose is to identify key issues that must be resolved to implement an efficient and fair process with respect to wells located outside the boundaries of the subflow zone.”