9th Circuit orders feds to revisit Fort Huachuca groundwater pumping

For the third time in three decades, the federal government will be
forced to reassess the biological impact of pumping groundwater to serve
a military fort in Southern Arizona. 

A Ninth Circuit panel ruled
Monday that the U.S. Fish and Wildlife Service and the U.S. Army
“provided little evidence and relied mostly on speculation” in analyzing
how much water it will save while pumping from the San Pedro River
basin to Fort Huachuca, 13 miles outside Sierra Vista. 

The panel ordered
the Army and Fish and Wildlife to reevaluate their water savings
analysis and issue a new biological opinion on the impact of groundwater
pumping in the San Pedro River watershed. 

The San Pedro, the
last undammed, free flowing river in the Southwest, is home to at least
four endangered species. The fort draws more groundwater from the San
Pedro watershed than anything else. 

To pump groundwater, the
government must produce a biological opinion in compliance with the
Endangered Species Act to assess the effects of the action on any
endangered species in the area. The Center for Biological Diversity has
successfully sued Fish and Wildlife twice over “arbitrary and
capricious” approvals of Fort Huachuca’s groundwater pumping, once in
2002 and again in 2011. Federal judges in Arizona ruled in both cases
that Fish and Wildlife relied on unspecific and insufficient promises of
mitigation by the military base.

The center sued
again in 2020, challenging a 2014 biological opinion in which Fish and
Wildlife promised not to allow irrigation on a nearby area of land to
compensate for water pumped out of the river. The center pointed out
that the land in question, called the preserve petrified forest, hasn’t
been irrigated since 2006, and argued that any potential water saving
from not allowing irrigation would be purely hypothetical 

A panel
of three Ninth Circuit judges concurred in a ruling written by U.S.
Circuit Judge Kenneth Lee, a Donald Trump appointee. 

“Even though
the land at issue in the (preserve petrified forest) easement has
remained largely dormant since 2005, the (biological opinion) assumed
that, but for the easement, someone would have resumed agricultural
irrigation on 480 acres of the land beginning on Jan. 1, 2014,” Lee
wrote in the ruling. “Thus, the (biological opinion) credited the
easement with 2,588 acre-feet per year of water savings, turning the
fort’s groundwater deficit into a surplus from 2014 onward.”

To
receive credit for a water easement to offset use, the government must
show in its biological opinion that benefits from water conservation
effects are “reasonably likely” to occur. 

Fish and Wildlife
argued that it’s responsible for proving only that conservation measures
are reasonably likely to occur, not conservation effects. In that case,
outlawing irrigation on the easement would count as a conservation
effort, despite it making no material difference in water used. 

The
panel rejected that logic. Because there was no evidence at the time
the opinion was issued, that irrigation on the easement was likely to
occur, there would be nothing for Fish and Wildlife to mitigate, so no
mitigation effects would result.

The center also asked that Fish
and Wildlife revisit its decision that groundwater pumping won’t
jeopardize the endangered Mexican garter snake. The panel declined the
request.

If the Babocomari River, a tributary of the San Pedro,
dries up, the center says the snake population could be irreparably
harmed. 

Attorneys for the center argued in the May appeal hearing
that the snakes will travel only up 600 feet from a water source, and
wouldn’t be able to travel the up to 10 kilometers required to move from
the Babocomari River watershed to other flowing water. 

Fish and
Wildlife countered that 600 feet is the distance snakes will travel
laterally from a water source — not how long they can travel along a
body of water. 

The panel agreed with the lower court, which found
that Fish and Wildlife complied with the law in making its finding
regarding the snake.

“The decision of what is the best measurement
to support a conclusion is typically left up to the service,” Lee
wrote. “For our purposes, that is enough to maintain its jeopardy
determination.”

The decision leaves it unclear whether the snakes
would survive if the entire Babocomari were to run dry, but the panel
indicated that it wouldn’t matter to the decision.

“Because the
population of garter snakes in that area is already low, any decreased
base flows would not affect enough garter snakes to tip the species into
jeopardy,” Lee wrote. “That is a rational and appropriate conclusion
that does not warrant a remand.”

Fish and Wildlife and the Justice
Department both declined to comment. Neither the Center for Biological
Diversity nor the Army have replied to requests.

The panel was
rounded out by U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama
appointee, and U.S. Circuit Judge Daniel Collins, a Trump appointee.