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In a new ruling Wednesday, the state Court of Appeals acknowledged that state law requires the Arizona Department of Water Resources to "periodically review'' whether to create what are known as "active management areas'' in parts of the state which now have minimal to no limits on groundwater pumping. Such a designation would give the state the power to impose new restrictions on pumping.

The court did not dispute arguments by two environmental groups that it has been more than 20 years since the state agency conducted such a review of the area.

But appellate Judge Kent Cattani, writing for the unanimous three-judge panel, pointed out that the Legislature, in writing the law, never spelled out how often such reviews must be conducted. Nor did they define the term "periodically'' in the state Groundwater Code.

"This phrasing thus leaves the department discretion to determine how frequently to conduct reviews,'' Cattani wrote.

Wednesday's ruling drew an angry reaction from Robin Silver, a co-founder and board member of the Tucson-based Center for Biological Diversity, one of the groups that filed suit.

"We understand why the court ruled,'' he said, even if, as he contends, it is "laughable that 'discretion' is more than 20 years.''

His harshest comments were reserved for Democratic Gov. Katie Hobbs, who has oversight of the Arizona Department of Water Resources, including the authority to replace Tom Buschatzke, its director.

"Why would a governor who professes to care about water fight an active management area for an area whose central area is going dry and whose aquifer is over-allocated?'' Silver asked. "The governor has made a choice to aggressively try to help the river die. That's on her.''

He also said Hobbs has sided with developers on other issues in the area, arguing that there is sufficient water for a planned 7,000-home development in Sierra Vista.

"What has she done environmentally?'' Silver asked. "She's done absolutely nothing.''

There was no immediate response from the governor.

The 2024 lawsuit contends the Arizona Department of Water Resources has failed to carry out its "mandatory duty'' to conduct a review to determine if there needs to be some sort of state management to "preserve long-term, reliable groundwater supplies'' in the San Pedro basin.

The lawsuit separately argues that Hobbs, by failing to tell the agency to conduct a review, has violated her constitutional duty to "take care that the laws be faithfully executed.''

What a study would determine, the lawsuit says, is if the basin needs to be designated as an "active management area.''

The state's 1990 groundwater code initially set up four such AMAs, in the Tucson, Phoenix, Pinal County and Prescott areas. There are now eight, with one formed by a vote of residents of the Douglas area and the others designated by ADWR based on studies about factors including water use and potential water quality degradation.

In filing suit, the Center for Biological Diversity and the San Pedro Alliance said those conditions are present in the area, and that the law requires the state to act.

Cattani, in the eight-page opinion, agreed that the San Pedro River, at the heart of the basin, is unique, being the last undamned, free-flowing river in the desert Southwest.

"It is an arid region, and groundwater is the sole source of water for inhabitants of the basin, which includes Sierra Vista, Benson, Bisbee, Tombstone, Huachuca City, and the Fort Huachuca Military Reservation,'' he wrote. "Public and private water use over the past century has contributed to the degradation of the San Pedro River ecosystem and the alteration of the river's flow.''

Cattani also pointed out that the basin includes the San Pedro Riparian National Conservation Area, designated by Congress in 1988 "to protect the riparian area and the aquatic, wildlife, archeological, paleontological, scientific, cultural, educational, and recreational resources of the pubic lands surrounding the San Pedro River.'' And he noted that Congress reserved water "sufficient to fulfill the purposes'' of the conservation area.

But none of that, the judge wrote, entitles the challengers to a court order to compel a public official to perform an act specifically required by law.

The key to getting that legal relief, he said, is that the act that someone wants a court to force someone to perform has to be purely "ministerial.'' That means the law specifically describes what the official must do and "nothing is left to the public official's discretion.''

But Cattani said the law requiring the ADWR director to "periodically'' conduct a review to look for areas to regulate hardly meets that test. The key is the failure of lawmakers to define how often that has to occur, he said.

"The Legislature did not specify a frequency for review under (the law), although it could have done so,'' he wrote. "The omission of a fixed time period thus indicates that the Legislature did not intend to prescribe a particular frequency and instead left the matter to the department's discretion.''

Challengers said that may be true. But they argued that ADWR's responsibility to control and supervise Arizona's groundwater, coupled with worsening water conditions in the basin, means the court should conclude that "periodically'' in this case necessarily denotes something that should be done more frequently than every 20 years.  

The appellate court was not convinced.

"Nothing in the statute requires the department to take into account area conditions before it decides whether to conduct a review to determine if conditions in the area meet the criteria for active management,'' Cattani wrote. "And we may not read such a requirement into the statute.''

The judge also noted that even if ADWR won't create a new active management area, that isn't the only option. Cattani said the law allows the Legislature itself to do that — or even local voters, as happened in the Douglas area.