The Arizona Department of Environmental Quality may not be allowed to intervene in the ongoing dispute between the Town of Marana and Pima County over rights to control wastewater services.
On June 10, the Pima Association of Governments in a 4-3 vote denied Marana an environmental permit to operate the facility. After the rejection, Marana Mayor Ed Honea said they will take the case to ADEQ.
Last week, Mark Shaffer, spokesman for ADEQ, said even though PAG did not vote unanimously to deny the permit, the state agency may not be able to reverse the decision.
“Under Arizona’s Continuing Planning Process, which the Federal Clean Water Act requires states to develop, ADEQ only becomes involved after the Designated Planning Agency, in this case PAG, approves a plan amendment. If PAG does not forward the plan amendment to us, we don’t see clear authority for us to act outside PAG’s decision,” Shaffer explained.
“Neither the Clean Water Act nor our Continuing Planning Process envisioned denials proceeding to ADEQ. Historically, the process ends upon (regional) denial without ADEQ even formally seeing the amendment,” he continued. “We are researching what legal authority or obligations we may have at this point to review PAG’s decision.”
Marana Town Manager Gilbert Davidson said they weren’t surprised by PAG’s rejection.
“We certainly were aware that the county was against and has been actively encouraging other jurisdictions to be against it, so it wasn’t a surprise to me,” he said. “What did surprise me is it’s an administrative process, it’s a permit. Either you comply with the requirements to get the permit or you don’t. They started the meeting saying we met all the technical criteria. The reason they voted it down was political.”
If there is a public process where an entity complies with requirements, Davidson said, that entity should be allowed to proceed.
Davidson noted Marana is asking ADEQ to take the minutes from the PAG meeting and review the technical data in the application just as it would have done had the permit been approved by the regional authority.
“I think that we’ve proven that we are very much committed to being able to take back our portion of the wastewater system,” Davidson said. “Our council has given clear policy direction that we are going to operate this system. When you have the spirit of nothing is going to get in our way, we are going figure out how to make it work. No matter what obstacle put in front of us, we are going to work around it.”
Rodney Campbell, a spokesman for the Town of Marana, said the issue is unprecedented because no other counties in Arizona have control of wastewater systems.
“We have a legal right to manage a wastewater system. ADEQ should see that there are politics involved, and they need to continue processing the technical portion of the permit,” Davidson said.
The permit sought by Marana is a planning permit required by the Clean Waters Act. It makes sure the water being put in a sewer system complies with federal standards.
Whether in court or at the regional level, the Town of Marana has been fighting Pima County since 2008 to take over control of its own sewer system.
Davidson estimated the court battle could be extended another two to five years after the latest round of appeals filed by Marana.
The Town of Marana is appealing attorneys’ fees and the judge’s ruling that designated which pipes in the sewer system would be under Marana’s control, and which pipes in the regional system would be under Pima County control.
“We are asking the Court of Appeals to look at that issue because we feel it doesn’t make sense to take a wastewater system and give one entity one pipe and give another entity another pipe and think it’s going to work,” said Davidson. “One person needs to own this whole thing. Like in a divorce, you aren’t going to cut the house in half. You are going to sell the whole asset.”
At the center of the controversy is control, not over pipes, but water.
With Pima County owning and maintaining the sewer system, the Town of Marana’s has to work with the county to grow.
Pima County officials say Marana’s plans to manage its owner sewer system will mean increased rates, will negatively affect economic development efforts and fragment the region’s wastewater treatment system.
Davidson said the town has had 19 businesses or developers over the last three years that have been “critically” affected because the county has not managed the system or managed capacity to meet growing demands.
The Arizona Legislature gave Marana a boost by passing a law that enables cities and towns to acquire all or part of a county sewage system and provides the requirements for doing so.
With the law in place, the Town of Marana passed a $1.9 million sewer budget for the 2011-2012 fiscal year. However, that budget may go toward more legal fees than actually running the Marana sewer system.