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BALLOT INITIATIVE COULD SHUT OFF WATER TO TUCSON

VA HOSPITAL -- An initiative to repeal the city's garbage

fee and limit new water connections could force

the city to cut off water to the VA.

 

 

Story here... http://www.az
starnet.com/metro/200150

Story below:

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Water-initiative foes warn of UA, VA shut-offs

By Rob O'Dell
Arizona Daily Star
Tucson, Arizona

An initiative to repeal the city's garbage fee and limit new water connections could force the city to cut off water to the University of Arizona and two hospitals, opponents of the proposal charged Thursday.

The opposition contends an initiative provision prohibiting Tucson Water from supplying city water to other "distributors" will force the city to shut off water to the UA, University Medical Center and the VA hospital because they are considered "water providers" under state law.

The question is whether the two terms are synonymous.

Larry Hecker, who is heading the "No on Proposition 200" campaign, acknowledged the UA's water is never likely to be actually cut off but warned the conflict will prompt a costly lawsuit, paid for by taxpayer dollars, to sort everything out.

Others questioned what impact the debate over semantics will have.

An independent expert in water law said the city has the ability to just decide it doesn't consider those institutions water distributors and leave their water service alone.

If the city does that, Michael McNulty, an attorney with Lewis and Roca, said the only threat to their city water supply would be if a citizen files and wins a lawsuit.

John Kromko, the former state lawmaker who authored the proposition, said the opposition is "grasping at straws" and trying to confuse voters, hoping that prompts them to vote no.

"Nobody would consider the UA a water distributor any more than an apartment complex is a water distributor," Kromko said.

University of Arizona President Robert Shelton said he doesn't know what the effect would be on the university, but he has formed a team to look into it.

Pepe Mendoza, assistant public affairs officer for the VA hospital, said he was unaware of any impacts on that facility.

Proposition 200 would repeal the city's controversial $14-a-month garbage pickup fee, prohibit use of "toilet-to-tap" drinking water and limit future water connections when city supplies run low, which would, in turn, limit home-building.

The battle hinges on the definition of water "distributor," the term used in the initiative, and whether that is the same as a "water provider," which the UA, UMC and the VA hospital are all considered.

All three entities regulate the water in their system they get from Tucson Water, but they don't resell or distribute it to outside agencies.

The problem is the term water "distributor," cited in Kromko's initiative, is not included or defined in state law, McNulty said.

"It's not a legal term at all," McNulty said, adding that "it's hit or miss" on how you would define distributor.

A similar term that is used in state law is "water provider."

Arizona Department of Water Resources Director Herb Guenther said the agency considers distributor to mean the same as water provider.

"We regulate them as providers" because they provide water to more than one user, even if they are providing that water to themselves, Guenther said.

Guenther said a court will eventually decide whether the two terms mean the same thing, but the state believes they do.

Because of the state's interpretation that the two terms are the same, Tucson Water has to strongly consider it may have to cut off the UA and the two affected hospitals, said Tucson Water Director David Modeer.

"There's no such thing as a distributor so they would be considered water providers," Modeer said, adding he doesn't think the state would force the city to rule the entities were "distributors."

Kromko counters that the prohibition on distributors was intended to stop the selling of water to other water agencies, such as Metro Water.

"That's just the most bogus charges," Kromko said. "It doesn't make any sense."

Modeer said the ultimate decision will be made by Tucson City Attorney Mike Rankin.

Rankin said it is "arguable" that the term distributors applies to the UA and the hospitals. The initiative would take effect about 30 days after it's approved, Rankin said.

The initiative doesn't define "distributor" — meaning it needs to be interpreted, Rankin said, making it likely a court will make the final decision. "Either way we decide, somebody's going to sue," he said.

McNulty, the water attorney, said the opponents could make a decent argument that a provider is a distributor. But depending on the city's decision, the outcomes could be different, he said, adding "the issue is how does the fight start."

If the city rules the two terms mean the same thing, the UA and the VA hospitals would likely seek an injunction to block any interruption in their service while the courts hashed out the decision, McNulty said.

However, if the city ruled they were not "distributors," a lawsuit would have to be filed by a citizen to cut off the water, he said.

The University of Arizona also has water rights it could fall back on if its water were cut off, although Shelton said he doubts the university could pump enough groundwater by the end of the year to meet all of its campus needs.

Additionally, having the UA meet all its water needs out of the regional aquifer is not a desirable outcome, said Hecker, the opposition campaign leader.

He said Tucsonans would be best served by keeping the matter out of court because "relying on courts and lawyers to decide is bad public policy."

 

Contact reporter Rob O'Dell at 573-4240 or rodell@azstarent.com.

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Larry Scott  --