A lawsuit instigated by the Town of Marana against Pima County regarding wastewater treatment facilities — and Marana's much-sought control of effluent — moved further toward conclusion last week, when Maricopa County Superior Court Judge J. Kenneth Mangum ruled Pima County shall continue to own and operate its north Marana treatment facility, and that Marana's attempt to annex the treatment facility property was "defective and unlawful."
The decision "means that Marana's attempt to take the wastewater treatment plant failed in court," County Administrator Chuck Huckelberry said Tuesday. "It also means they have terminated the (intergovernmental agreement) with the county to provide wastewater treatment services."
"We achieved what we set out to do," Town Manager Gilbert Davidson said. "The case confirms Marana's right to operate our own wastewater utility, allowing us to achieve our goal to make beneficial use of all our water resources."
The Town of Marana plans "to move ahead with plans to construct a wastewater treatment facility within town limits," it said in a Thursday release.
"We have a great amount of work ahead of us to design and build a system that reflects our overall water management goals, our desire to contribute to conservation, and to make sure we are growing our community in the right areas, and putting in infrastructure that will encourage growth," Davidson said.
Earlier, the court had affirmed Marana has the "right to be in the wastewater business," and "awarded the town ownership of most of the pipes within its municipal boundaries," the release said. "Following construction of a wastewater treatment facility, Marana will join the majority of cities across the country that operate and manage wastewater systems."
At stake in the case for both parties — control over treated water. "I don't think it's ever been over sewers or sewer treatment facilities," Huckelberry said.
More questions may remain, among them a disagreement over who would pay legal fees associated with the case, how and if Pima County would recover investment costs in the North Marana plant should Marana divert wastewater from it, and whether Marana can become the federal "designated management agency" for wastewater treatment within town limits.
Mangum's ruling was dated June 7, and filed June 16, the day after Pima County responded to a May 5 settlement proposal from the town. In that settlement letter, Marana offered to relinquish any claim to the north Marana facility, located near Luckett Road just south of Pinal County, as part of an overall settlement. The Pima County Supervisors voted to reject the town's offer June 15.
In its offer, Marana also agreed to set aside its ordinance intended to annex the facility, an attempt formally overturned by the Mangum ruling.
In the May 5 settlement offer, Marana insisted on its legal right to divert Marana-originating wastewater flows from the north Marana plant to another facility "at any time without compensation to Pima County."
In its June 15 response, the county said it "cannot agree" with that claim "until the full capital cost contributed by Pima County ratepayers to the present MWTF is recovered through additional future connection fees, or the town fully compensates the county for our capital improvement costs."
In his ruling, Mangum notes Pima County "has not recovered its investment" in the treatment facility. As examples, the judge wrote Pima County has invested $22.7 million in the plant "to increase its capacity to 700,000 gallons per day," while collecting $6 million in connection fees.
"Our citizens are county residents as well, and we have been paying into the overall system," Davidson said. "Marana is not separate from the county. All of us have been paying for the improvements at the plant."
In its settlement offer, Marana suggested Pima County and the town "each bear their own attorneys fees and costs related to this litigation." The county disagreed. "The county did not initiate the litigation; it was initiated by the town, and we have expended considerable ratepayer funds in defending the action brought by Marana … The county believes Marana should be responsible for the county's attorneys fees in this matter."
On July 5, Huckelberry plans to ask the Pima County Supervisors if they wish to pursue recovery of attorneys fees incurred by the county, estimated near $200,000.
"We're the party that A, didn't file it; and B, substantially prevailed," Huckelberry said.
Pima County is currently the federal Clean Water Act "designated management agency" for wastewater treatment in most of the county; Sahuarita operates its own wastewater treatment facilities. The county will "continue to provide wastewater services, subject to an agreement for our actual cost of service both for any Marana customer connected to the Ina Road treatment facility, or the smaller Marana wastewater treatment facility," Huckelberry said.
"We believe the town operating a separate wastewater treatment system is not supported by any financial analysis that is required to justify the viability of a stand-alone wastewater treatment system and (designated management area) within Pima County," the county wrote in its settlement response.
"State law is very clear," Davidson said. "This is the only county that's allowed to be in the wastewater business. Elsewhere in the state, cities and towns operate their own wastewater systems. Marana desires to be treated similar to other cities and towns in Arizona, that's the bottom line."
Huckelberry said Marana must get a federal 208 plan amendment, and the county "will continue to oppose" it, Huckelberry said. Marana would then have to become a designated management area, "then they have to finance and build the plant," Huckelberry said. "It's a long way away."
Marana is pursuing a 208 plan amendment, and is seeking status as a designated management area, Davidson said.
Marana and the county entered an intergovernmental agreement in 1979 that gave the county authority to operate and manage wastewater facilities in Marana. Marana exercised its option to end the agreement in July 2007, asking the county to transfer "certain facilities" to Marana within six months. When the county declined to do so, Marana filed its lawsuit.
Huckelberry called the lawsuit "one of the more absurd wastes of our combined ratepayers' tax money."
"It's unfortunate that the county was not able to sit down with us over the last four years and settle on a win-win scenario," Davidson said. "There were many" such scenarios. "The county wouldn't meet with us, and we had to be able to defend our community and its future, to make sure were able to manage our own resources. He's correct in that sense."