Arizona’s top water bureaucrat, Tom Buschatzke, attempted to justify his agency’s illegal rule that has shut down new home construction in some of Maricopa County’s fastest-growing and most affordable areas.
But no matter how he spins it, his argument fails — both legally and as a matter of sound water policy.
The Arizona Department of Water Resources’ new “unmet demand” rule, unilaterally imposed without legislative approval and without allowing those most impacted to have a voice in the rulemaking process, is now driving up housing costs for all Arizonans and threatening our state’s economic growth.
Yet writing in these pages, Director Buschatzke boldly asserts that Gov. Katie Hobbs “designated me to defend Arizona residents’ right to enjoy an assured water supply.”
Buschatzke is working outside Arizona law
No. Despite Buschatzke’s apparent desire to act as a mini czar with unilateral power to determine this state’s water policy, his authority — like all government power — is constrained by Arizona law.
And that law is crystal clear: When regulatory agencies like ADWR attempt to impose sweeping policies — such as halting all new home construction across large parts of the Valley — they must do so through formal rulemaking, allowing for public input.
Instead, Buschatzke sidestepped this requirement and imposed his homebuilding moratorium with the stroke of a pen. The Goldwater Institute, where I work, is now suing the agency to halt the illegal rule.
This may shock career bureaucrats like Buschatzke, but Arizona is not a command-and-control, Soviet-style government. We live in a republic.
That means administrative agencies must act with authorization from our elected lawmakers.
The Arizona Legislature has codified this basic principle of democratic government in state law, which says that administrative agencies can only impose rules that are “specifically authorized” by state law.
Groundwater law doesn’t justify ‘unmet demand’
Buschatzke’s legal defense collapses on this front, too. He claims that his actions are justified under Arizona’s Groundwater Management Act. Yet, he cannot point to a single provision granting him the broad power he now asserts — because no such provision exists.
On the contrary, the law is clear: To demonstrate an assured water supply, homebuilders must show a 100-year groundwater supply for the “proposed use” of a subdivision.
In other words, if builders want to develop homes, they must prove they have enough water for that project for 100 years — a requirement that homebuilders have historically shown and can show now.
Buschatzke’s so-called “unmet demand” rule turns this requirement on its head. He argues that if a projected groundwater shortfall exists anywhere in a management area, then no groundwater can be considered available for any use across the entire region.
This interpretation is not just legally indefensible — it’s absurd. It violates the law and defies common sense.
Homebuilders replenish most of what they pump
Homebuilders in Arizona don’t just prove a 100-year water supply — they also replenish virtually every gallon of groundwater they use across metro Phoenix. And this has been the requirement since 1995.
No other water user faces this requirement. Semiconductor factories, for example, are exempt from the “unmet demand” rule and can pump unlimited amounts of water without replenishing a drop.
Meanwhile, homebuilders are forced to replace almost everything they use — yet they’re the ones being shut down.
Buschatzke also claims that his policy is not “new.”
Yet his agency’s rule marks the first time in Arizona’s history that the government has prohibited new home construction on groundwater in specific areas of Maricopa County — sadly, the very areas where affordable housing is most needed.
This is about affordable housing, the rule of law
If you care about unelected bureaucrats dictating Arizona’s water policy, you should be alarmed by ADWR’s “unmet demand” rule.
If you care about affordable housing, you should be outraged by ADWR’s reckless policy, which — at the governor’s direction — will continue pricing thousands of Arizonans out of homeownership.
And if you care about the rule of law, you should be deeply troubled by Buschatzke’s defiant defense of his agency’s lawlessness.
Buschatzke promised a “fight” over these rules.
When you trample the rights of Arizonans — and crush the dreams of everyday families trying to achieve homeownership — that’s a fight we’re ready to take.
See you in court.
Jon Riches is the vice president for litigation at the Goldwater Institute.
This article was originally published by the Arizona Republic.
