From the October 14, 2001 edition of 

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Benjie Sanders / Staff  Giovanni Panza and others are fighting an expansion of SaddleBrooke to the east, fearing that its wells will dry up Cañada del Oro wash.

Activists against SaddleBrooke expansion plan, saying it will dry up wash 

A little-heralded stretch of the Cañada del Oro in the Catalina Mountains is about to become the subject of a novel legal argument seeking to protect it from a development's ground-water pumping. 

As it passes through Tucson's Northwest Side, most of the Cañada is little more than a drainage ditch, carrying floodwater down barren, cement-lined riverbanks. 

But cottonwood and willow trees still thrive in a two-mile stretch at the base of the Catalinas in southern Pinal County. Those trees are now embroiled in a legal dispute over plans to expand the 3,000-home SaddleBrooke retirement community by another 740 homes and a new golf course. 

Next month, activists fighting the expansion will ask a state hearing officer to overturn a state agency's ruling that the development has an assured 100-year water supply. Under the state's 1980 Ground Water Management Act, all new developments must prove they have such a supply before they can sell homes. 

Calling itself the Cañada del Oro Watershed Defense Project, the group wants the state to find that this project will not only pump out the underlying aquifer, but that the pumping will dry up the spreading cottonwoods and willows overhanging the Cañada. 

Under most circumstances, this project would be a done deal. Pinal County has granted a rezoning for it, state law doesn't protect streams from pumping and Arizona rarely rules that a new development lacks an assured supply. 

But the opponents' attorney, former state Solicitor General Anthony Ching, will try to break legal ground by arguing that the stream and the aquifer are a public trust that cannot be damaged. 

It's one of several issues opponents will raise at the hearings starting Nov. 6. 

Marvin Cohen, attorney for developer Robson Communities, said this project isn't a good case for this issue. Its two wells lie too far underground - 1,100 feet - and too far from the wash - at least a half-mile west - to damage the trees and underlying shrubs and grasses, said Karl Polen, Robson's senior vice president. 

The Department of Water Resources is trying to stop the riparian issue from being discussed in the hearing, because the opponents didn't bring it up when they first filed an appeal of the department's decision. Ching replied in a brief that "it is lamentable" that the department should try to limit citizen appeals by applying such a restrictive interpretation of the law. 

Robert Glennon, a University of Arizona law professor, said he can't predict how the case will turn out. 

The Arizona Supreme Court first applied the Public Trust Doctrine when it declared Arizona's navigable riverbeds a public resource in the late 1980s. It did it again this year, finding that the Legislature violated the public trust by having a state commission make rulings that various streams aren't navigable. 

The Cañada isn't navigable, but "we don't know yet" whether a stream would have to be navigable to be subjected to the Public Trust doctrine, Glennon said. 

Leading the charge against SaddleBrooke is a couple living in the Cañada's shadow in a 110-year-old house that once belonged to a pioneering ranching family. 

Next to Giovanni Panza and Cate McCarthy's adobe house, a cottonwood- and willow-shaded stream is fed by a year-round spring and is filled with small native fish and turtles. 

"The sad thing is that we think we could have convinced Robson that there would have been just as much of a market to sell houses based on a healthy riparian area, with the wells farther back from the river, instead of based on golf courses," McCarthy said. 

"This could have been planned with a lot less impact," she said. "But we never had an opportunity to have any comment on this project because we didn't know about it until it came before the Planning and Zoning Commission for a public hearing." 

The lush riparian groves by their home lie a mile upstream from the nearest well and are unlikely to be affected by Robson's pumping, said Thomas Maddock, the acting head of the UA's hydrology and water resources department. 

But Panza and McCarthy said the live riparian areas a mile or so downstream will clearly be affected and that Maddock's statement doesn't account for the combined effects of pumping from new and existing wells there. 

No way, Cohen said. Polen sits on the Governor's Ground Water Management Commission, a body that recommends a change in state law to keep all wells at least a half-mile away from selected streams. 

This project's wells meet that standard. Cohen contends that the real threats to riparian areas are shallow wells, usually drilled by unregulated wildcat subdivisions and exempt from the groundwater law because they pump less than 35 gallons a minute. 

Glennon countered that a half-mile distance doesn't make it safe, he said: "We've dried up the Rillito and Santa Cruz with wells a heckuva lot farther away." 

A deeper well may take longer to affect surface water, he said. 

But if the stream and the aquifer are hydrologically connected, he said, the well depth is irrelevant. "If there is a saturated portion of land between the river and the area where the well is pumping, it's like a wet sponge," Glennon said. "The well starts to suck water down from the river." 

Cohen replied that the Cañada isn't a river - it's an intermittent wash. "That's an interesting issue for the portions of San Pedro that are flowing," he said. "But we're not dealing with a flowing river."