Wins, losses for parties in wastewater case - The Explorer: Pima Pinal

Wins, losses for parties in wastewater case

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Posted: Wednesday, December 1, 2010 12:00 am | Updated: 8:12 am, Thu Mar 24, 2011.

Pima County and Marana are sorting wins and losses from the latest ruling on Marana’s long-running lawsuit against the county regarding wastewater treatment.

There are wins and losses for each.

In a Nov. 17 ruling, Maricopa County Superior Court Judge J. Kenneth Mangum writes, “the county argues that it prevailed on all or most cases. The town argues in response that it prevailed at the Motion for Summary Judgment stage, and that its right to take control of the non-pass-through sewer system was not conceded by the county. The Court concludes that overall, the county was the successful party …”

“I think the documents are pretty self-evident,” County Administrator Chuck Huckelberry said Tuesday. The ruling reads, “the county substantially prevailed in the litigation. I think that’s the words of the judge, and not us. I would say that’s probably correct.”

“I think we won,” Marana Town Attorney Frank Cassidy said Monday. “Really, the whole point of this was to set off on our own way, to have our own wastewater system. Most of the system has been determined to be ours, we are acknowledged to have the right to operate a wastewater system, and that gives us the green light to move forward.

“We are entitled to be in the wastewater business,” Cassidy said.

The lawsuit is all about water, Cassidy said. Marana wants to accept sewage, clean it up and use the effluent to recharge aquifers, gaining credits that help it assure potable water supplies moving forward.

“We understand their quest for water and water resources, but we believe the option they’re pursuing will ultimately be very costly to Marana residents,” Huckelberry said. “I wouldn’t declare victory on anything, because we’ve unnecessarily wasted ratepayer and taxpayer money. That itself is a loss.”

Mangum denied Pima County’s motion for a new trial in the case. Any decision to appeal that ruling “will be before” the board of supervisors “at a future executive meeting,” Huckelberry wrote in a Nov. 24 memo to the board.

“The county’s motion for a new trial sought to undo the main part of the case, which was our right, if you will, to have a divorce,” Cassidy said Monday. “The county tries to play that down, and says ‘oh, that’s no big deal.’ They’ve tried four times to undo that ruling, and every time they were denied.”

Each party made claims of the other for reimbursement of legal fees. Marana’s claims were all denied; Pima County has been awarded $170,282 for reimbursement of some of its expenses (see related story).

Cassidy acknowledges “the county’s done well” on the division of property. The county gets to retain the Marana Wastewater Treatment Plant off Luckett Road, and retains possession of the “spine” pipes, the major lines moving sewage and treated effluent through the community.

“In terms of the number of pipes and miles, it’s a small percentage of the overall pipes in Marana,” Cassidy said. While Marana would have ownership of smaller feeder lines into the main pipes, “we didn’t expect for the county to get the spine pipes.”

Marana’s control of smaller pipes that don’t “flow through” are “exactly what the 1979 intergovernmental agreement said they could have, and nothing more,” Huckelberry said. “We were always prepared to give that to them. They wanted the flow-through pipes, and systems, which are pumping stations, as well as the treatment plant. And we said ‘no’.”

The court denied Marana’s motion that would require the county to continue providing treatment services at regional system rates. Mangum ruled that, currently, there is not discriminatory treatment of Marana residents.

“When we first filed the suit, we were concerned that by filing the suit, the county would immediately begin charging … increased rates for Marana residents,” Cassidy said.

“As it turns out, the county didn’t start to charge a differential rate,” Cassidy said.

All of Pima County, with the exception of Sahuarita, is within a wastewater designated management area. For Marana to serve customers, “we would have to be the DMA,” Cassidy said, and the town has begun a federally established process to create its own designated management area for wastewater treatment. Marana’s federal 208 permit amendment has been opposed by Pima County government.

“That’s a participatory process, where the region makes the decision, not Marana,” Huckelberry said.

Over the last several years, there have been “20 meetings of subcommittees” from the Pima Association of Governments negotiating with Marana on its 208 application. “We expect to finish that process in the next couple of months,” Cassidy said.

If Marana operates its own treatment facility, “the resource is advanced … because we will get ownership of all of that effluent,” Cassidy said.

“We’re not in a position to let that much water be wasted,” Cassidy said. “We need to take care of every drop we can.”

What happens next?

“We don’t really know,” Huckelberry said. “We’re still, as we’ve indicated, willing to provide service to the town at, frankly, no extra cost. But if they cause us to incur cost by separating the systems, or by doing other things … we’ll obviously have to have that reimbursed by Marana residents, and that’s unnecessary.”

Huckelberry maintains there is room to talk. “Always has been. Continues to be.”

Marana must pay $170K to county

Marana has been ordered to pay Pima County $170,282 in legal fees incurred by the county for part of its defense of Marana’s lawsuit concerning wastewater.

In a Nov. 17 ruling, Maricopa Superior Court Judge Kenneth Mangum concludes that amount of fees claimed is “reasonable, especially because of the lowered hourly fee.”

Any appeal of the $170,000 award “would be up to the mayor and council,” Marana Town Attorney Frank Cassidy said. “We will have an executive session of our own on that point,” he said.

Pima County had asked for greater reimbursement of its legal expenses, but Mangum denied. On certain items within the case, “Marana’s claims were made in good faith and were substantial,” Mangum writes, and thus reimbursement was not mandated.

Marana had asked the county to pay “in the neighborhood of $450,000” in legal fees it incurred for prevailing arguments, Cassidy said. The court did not award those fees.

“We recognized we did not win all stages of the litigation, and asked for reimbursement of attorneys fees pursuing the portions of the litigation we won,” Cassidy said. Cassidy said Marana has spent “in the neighborhood of $1 million” on legal fees in the case.

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