The Arizona Supreme Court has declined to hear the Town of Marana’s case relating to a ballot measure that would have allowed the municipality to own and operate a wastewater facility without seeking voter approval in next year’s town elections. 

This marks the latest development in the battle between Pima County and Marana over control of the Marana Wastewater Reclamation Facility. 

In 1988, Marana voters approved the Town’s involvement in the wastewater business, but a recent ruling by the Arizona Court of Appeals deemed that ballot question too vague, meaning Marana must now revise the question and again collect voter support before it can own and operate a wastewater facility. 

Town Manager Gilbert Davidson said he expects to receive that support come Marana’s election season in March 2013.

“Marana has a proven track record with how we run our other systems,” he said. “We have good infrastructure, we are responsive to the needs of the community with our homeowners and businesses. We’ve created a solid foundation. When we lay out why this is important for our future, anyone in the community who cares about our ability to grow and add services and amenities will be supportive of this.”

Davidson added that while it would have been convenient if the Supreme Court had overturned the Court of Appeals’ decision, he is not surprised it was dismissed.

“We knew there was a slim chance they would take the case,” he said. “Less than four percent of the cases get a chance to be heard with the Supreme Court. We looked at it as a necessary step we needed to utilize as part of the judicial process. It didn’t cost the Town any more to take that step. We just needed to exhaust all options first.”

Preparing for the possible case dismissal, staff brought the issue before Town council in early November to suggest placing the revised ballot question on the March 12 ballot.

Council voted 6-0 in favor of the motion, with councilman Herb Kai abstaining due to a conflict of interest on the matter. 

Town staff has now modified the ballot question to address some of the specifics omitted in the 1988 version.

The original question read: “Shall the Town of Marana be authorized to construct, purchase, acquire, lease, own and operate a municipal wastewater and sewer system?”

The revised question reads: “Shall the Town of Marana be authorized to acquire and operate the Marana Wastewater Reclamation Facility (located in the southeast quarter of Section 14, Township 11 South, Range 10 East, G&SRB&M) and the wastewater facilities, setback areas, access rights, and current and future sewage conveyance system and service area connected to or associated with it?”

Even if Marana receives voter support, it will still have to convince a judge at the Maricopa County Superior Courts that the Town has the constitutional right to own the reclamation facility under Senate Bill 1171, which initially gave Marana the power to control and operate the facility with payment, but which has since been challenged in a lawsuit by Pima County. That court case is set to resume around February of next year.

Pima County Administrator Chuck Huckelberry agrees there was no surprise with the Supreme Court case dismissal relating to the ballot question, but questions the Town’s overall strategy of acquiring the wastewater facility.

“Pima County’s position all along has been that we would have preferred to find a reasonable settlement to the issues at hand rather than pursuing costly and unnecessary litigation – a sentiment only strengthened by the fact that just this week, we received a check from the Town of Marana for nearly $204,000 to cover our legal expenses,” he said. “That money certainly could have been put to better use.”

Huckelberry continued to say that if the Town should receive voter support for facility ownership, the County would continue to pursue payment from Marana for the facility’s value, which Huckelberry assesses to be $27 million. 

“We are still in court on the question of the constitutionality of the state law (SB1171) that allowed Marana to appropriate Pima County’s wastewater treatment plant for just the outstanding debt of the facility, about $16.2 million,” said Huckelberry. “We believe this is not in the best interest of our taxpayers, considering the full-vested value of the facility is $27 million. Marana took over the facility in January 2012, but has paid just $46,000 as an interest payment. We continue to be perplexed about why the Town has not made efforts to pay off even what the state indicated they should pay, let alone the full value of the facility.”

Arizona Senator Frank Antenori was the sponsor behind SB1171. A proponent of a Town-run facility, Antenori wrote in an Explorer column that, “Outside Pima County, every city and town in Arizona has a right to operate and manage its own public sewer utility and has final decision-making authority over its own land uses. Allowing Marana to operate and manage the public sewers in Marana will give it this same right and responsibilities.”

Huckelberry sees things differently.

“If we consider practices, the trend nationally is to consolidate smaller systems, which are extremely expensive to operate, in favor of large regional systems. Not only do greater economies of scale lead to more reasonable costs, but those costs can also be spread over a larger number of ratepayers. Those larger systems also allow for more comprehensive planning for the use of water resources across the region than would be available under a patchwork quilt of small providers.”

Huckelberry argues that smaller facilities can only cover their operating expenses and upgrades by raising rates on taxpayers, and mentioned his surprise that Marana has denied the County’s previous negotiations to give the Town 90 percent of the facility’s effluent for free.

The Town of Marana has refuted the claim that rates will increase, predicting savings for residents and business owners with a Town-operated facility.

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