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Estate Planning for Your Pet

July 14, 2010

Estate Planning for your PetBy John R. Becker, Esq.
Becker & House, PLLC
Certified Estate and Trust Law Specialist

Several years ago Elizabeth lost her husband to cancer.  With her children grown and living out of state, Elizabeth rescued a small dog from the local animal shelter to help fill her lonely days.  “Chomper” became an important part of Elizabeth’s family and added so much joy to Elizabeth’s life.  Unfortunately, Elizabeth is now faced with her own potentially fatal health issues and is concerned about what will become of Chomper, her beloved pet and companion, when she passes on.

Pets have become family members to many of us and often we want to insure that if something were to happen to us, they would be cared for in the manner in which they have become accustomed to.

When we perform estate planning services for our clients, we discuss their property, and who is to receive it.  We discuss their minor children, and who is to act as guardian for those minor children.  Additionally, we discuss our clients’ pets, and who is going to care for those beloved pets should our clients become incapacitated or upon their deaths.

Arizona actually has two statutes that allow the creation of a trust for the purpose of holding funds to be used for the care of a person’s pet.  Typically, the establishment of a pet trust is not necessary.  However, the identification of a proper caregiver is essential.  You should determine who you wish to act as caregiver in your place as well as name at least one alternate caregiver.

Our clients are also provided with a pet information sheet for each of their pets.  This document lists the pet’s veterinary information as well as its daily care information, including its usual food, likes and dislikes, and any behavioral information important for the care of that pet.

At Becker & House, we take pride in our legal services for clients, especially in estate planning and estate administration.  As part of that planning, we want to make certain that the beloved pets of our clients are properly cared for upon their passing.  Knowing that Chomper will continue to receive the care Elizabeth has given him, Elizabeth will be able to rest a little easier.

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THE GROUNDWATER / SURFACE WATER DILEMMA – Introduction

June 20, 2010

THE GROUNDWATER/SURFACE WATER DILEMMA IN ARIZONA: A LOOK BACK AND A LOOK AHEAD TOWARD CONJUNCTIVE MANAGEMENT REFORM  by Allison Evans

Introduction

The scarcity of water supplies and ever expanding population have placed Arizona at the forefront of the long ensuing national dilemma concerning the need and appropriate form of legislation and regulation to preserve and utilize water resources. The continued support and survival of expanding urban and rural areas in the water-deprived State of  Arizona *270 depend greatly on what choices are made regarding water management, including the maintenance of agriculture and other industries, and sufficient future environmental and riparian protection. A multitude of debate and controversy surrounds this issue, matched with varying propositions and ideas for resolution taking a wide range of  policy and management forms attempting to divide the limited resource between competing users. While much remains uncertain in the world of water law, one distinct failure in Arizona stands clear: the refusal to recognize groundwater and surface water under a unified legal system.

This article addresses this looming problem by beginning with an overview of the distinguishable types and sources of water—groundwater and surface water—which are the key components in understanding Arizona’s water controversy and developing solutions for the future. Next, the article will lay further foundation for addressing the issue by comparing neighboring states and their various approaches to regulating water rights. Then, a brief discussion of the history of water law and regulation in Arizona, highlighting the major policy choices, statutory implementations, and case law that is responsible for the position the State of Arizona is in today, will follow. Next, the discussion will detail the failures and consequences of Arizona’s history and legislative and judicial action concerning water rights, and the various past, present, and future problems that have occurred and will occur as an unfortunate result. The article will conclude by emphasizing the importance and feasibility of implementing a comprehensive conjunctive management system in Arizona to remedy the vast array of water rights problems. The issues concerning water supply rights in Arizona are undeniably complex and multi-faceted, and therefore first require a general understanding of the different types of regulated water sources, namely groundwater and surface water, and the policies and history that govern them.

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THE GROUNDWATER / SURFACE WATER DILEMMA – Distinction

June 19, 2010

THE GROUNDWATER/SURFACE WATER DILEMMA IN ARIZONA: A LOOK BACK AND A LOOK AHEAD TOWARD CONJUNCTIVE MANAGEMENT REFORM  by Allison Evans

The Groundwater/Surface Water Distinction

The argument asserted in this article, namely that Arizona adopt conjunctive water management reform, requires a basic understanding of the two dominant classes of water—groundwater and surface water—and the Arizona legal doctrines that govern them. The definition and applicable law pertaining to groundwater will first be explored, followed by surface water. Next, this section will introduce the relationship between groundwater and surface water and the problems associated with disparate treatment of the two classes, illustrated by Arizona statutory and case law.

Groundwater

Groundwater is water that flows to the surface from underground aquifers, which are geological units that yield usable quantities of natural water to springs, or are tapped into for agricultural, municipal, or industrial use through manmade wells. [FN1] In short, groundwater is all water beneath the surface of land that does not flow in underground streams, which historically, before regulatory legislation existed, belonged to anyone owning the land overlying the groundwater source. [FN2] In Arizona, groundwater is statutorily defined as “water under the surface of the earth, regardless of the geological structure in which it is standing or moving,” but excluding water that flows in underground streams with ascertainable beds and banks. [FN3] Today in Arizona, individuals and municipalities are pumping groundwater in excess of the amount in which nature replenishes it. [FN4]

Until the enactment of the Arizona Groundwater Management Act of 1980, [FN5] landowners were at liberty to freely pump groundwater from above land that was being put to a “beneficial use.” [FN6] The Groundwater Management Act was a monumental occurrence in the history of Arizona water law, preserving certain rights of active users before its enactment and placing restrictions and use limitations for new groundwater users, which will be discussed in greater detail later. Groundwater pumping is now governed by the reasonable use doctrine, which permits overlying landowners to obtain as much groundwater as can be “reasonably” used for the land. [FN7] This subsequently relieves these landowners from liability when another user’s supply is diminished as a result of such pumping. [FN8] Unfortunately, the lacking oversight and determination of what constitutes “reasonable,” as an always ambiguous term in the law, contributes significantly to the depletion of water resources.

Surface Water

“‘Surface water’ means the waters of all sources, flowing in streams, canyons, ravines, or other natural channels, or in definite underground channels, whether perennial or intermittent, floodwater, wastewater or surplus water, and of lakes, ponds, and springs on the surface.” [FN9] Surface water is a distinct class of water, which is generally derived from falling rain or melting snow which is diffused over the surface of the ground while maintaining this diffused state or condition. [FN10]

Arizona employs the prior appropriation doctrine, a first-in-time, first-in-right methodology, in governing surface water rights and uses. [FN11] The Gila River Adjudication began in the 1970s to judicially settle and determine issues pertaining to the use of surface water deriving from the Gila River, one of the most important water resources in Arizona [FN12] The Gila River adjudication is among the longest and most complex litigations in the history of Arizona, costing millions of dollars in attorneys’ fees and resulting in the passage of the Arizona Water Settlements Act in 2004 to settle disputes and inconsistencies between Indian tribes, intrastate water users, Arizona state law, and federal law. [FN13] A great bulk of water rights litigation in the past few decades has focused on the rights and claims of various Indian tribes. Arizona has arguably done a successful job of handling the resolution of matters concerning the Indian tribes, but  numerous uncertainties still remain. While the litigation has addressed many issues, the problems of the groundwater and surface water distinction endure, leaving questions of when the two are intermixed, and how to classify the water at issue and apply the appropriate law.

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THE GROUNDWATER / SURFACE WATER DILEMMA – The Relationship

June 18, 2010

THE GROUNDWATER/SURFACE WATER DILEMMA IN ARIZONA: A LOOK BACK AND A LOOK AHEAD TOWARD CONJUNCTIVE MANAGEMENT REFORM  by Allison Evans

The Relationship and Interconnectedness between Groundwater and Surface Water

Although the distinction between groundwater and surface water may appear to be relatively simple, the two are undeniably interconnected. Separate regulation for the two types has proved difficult and problematic as *273 they often merge and connect. [FN14] Nonetheless, separate regulatory administration for groundwater and surface water has been a historical and continuous defining characteristic of water law in Arizona.

Pumping and withdrawal of groundwater supplies often diminishes surface water supplies, causing it to percolate in aquifers, while diversion of surface water often leads to depletion of groundwater supplies. [FN15] On the other hand, surface water levels may increase when groundwater use is restricted and percolation decreases, illustrating the undeniable relationship between the two. [FN16]

The distinction between groundwater and surface water is further complicated by the concept of subflow. Subflow is defined as “those waters which slowly find their way through sand and gravel constituting the bed of the stream, or the lands under or immediately adjacent to the stream, and are themselves a part of the surface stream.” [FN17] Arizona common law prohibits “surface appropriators to protect their source of surface waters from depletion by groundwater pumping unless that pumping draws from the relatively narrow category of ‘subflow.’ More distant pumping within a common aquifer is governed by the relatively unfettered doctrine of reasonable use.” [FN18] This concept of “subflow,” which is a complete legal, not scientific, creation, has further compounded and confused the separate notions between groundwater and surface water. It is a particular class of groundwater that is treated as surface water and subject to the prior appropriation doctrine. [FN19]

For example, Arizona does not only apply the doctrine of prior appropriation to surface water, but also to the subflow category. The concept of subflow has played a critical role in the development of water law in Arizona from 1931 through today. The attempt has been to define *274 those areas where pumping has so vastly depleted surface flow of streams to require the application of the same law that regulates the stream itself, blurring the line between groundwater and surface water concepts. [FN20] The Arizona Supreme Court has also acknowledged the deficiencies inherent in the concept of subflow established by Southwest Cotton. [FN21] Nonetheless, it refused to abandon this longstanding framework, which has served as the backdrop for all Arizona water rights regulation. [FN22]

A common problem in states that fail to integrate use regulations for groundwater and surface water occurs in the form of denying relief to plaintiffs in many well-interference cases when wells are rendered dry from surface water diversions. [FN23]

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THE GROUNDWATER / SURFACE WATER DILEMMA – Conjunctive Management

June 17, 2010

THE GROUNDWATER/SURFACE WATER DILEMMA IN ARIZONA: A LOOK BACK AND A LOOK AHEAD TOWARD CONJUNCTIVE MANAGEMENT REFORM  by Allison Evans

Different Approaches of States

An Introduction to Conjunctive Management

States have chosen varying paths and differing forms of water management policies. Specifically, these policies concern whether to recognize the interconnectedness between the two troubling types of water. The difficulty of this distinction has led to comprehensive regulation known as coordinated or conjunctive water management. [FN24] Conjunctive management is a long-standing recommendation to improve water use, particularly in southwestern states, and to preserve both groundwater and surface water resources under a comprehensive system that can be implemented in differing, malleable forms to mold to each individual state’s unique needs. [FN25] Conjunctive systems protect water quality, maintain ecological and riparian needs, improve security of supplies, lessen problems associated with droughts, and eliminate costly and environmentally damaging surface water distribution systems. [FN26]

*275 A key feature of conjunctive management systems involves the transfer and storage of surface water, which is limited and precious in Arizona, to underground aquifers. Plentiful surface water, when available, is generally used instead of groundwater supplies, allowing groundwater supplies to accumulate and be “banked” for future use. [FN27] Conversely, in times of drought and surface water shortages, the stored groundwater supplies are tapped while surface water can replenish and, in turn, maintain environmentally friendly conditions. [FN28] Thus, by recognizing the interconnected relationship of the sources, conjunctive systems function to control both surface water and groundwater sources, and their availability by utilizing both aboveground and underground storage facilities in conjunction with each other. [FN29]

States implementing features of conjunctive water management policies have been met with attractive and positive results. [FN30] This is true regarding the availability of water sources and feasibility in implementation of such systems. [FN31] Successful conjunctive management, however, requires comprehensive statutory law and the creation of institutional bodies to maintain the system and manage oversight to ensure proper functioning to enforce water rights. Conjunctive management would also require Arizona to relax its rigid distinction between groundwater and surface water. [FN32] Although the future of legal water regulation in Arizona is uncertain, the best path points toward recognition and acceptance of the need for conjunctive management and the initiation of legislation in the direction of comprehensive controls on both groundwater and surface water. Such reform is crucial to prevent critical water loss and to maintain adequate water levels for riparian area protection.

State Comparisons

The methods adopted in neighboring states in the West and Southwest provide useful tools and comparisons to determine the best way to address effective water rights and controls in Arizona. States that have adopted a *276 true conjunctive management policy, like Nevada and Utah, in which groundwater and surface water are not distinguished from one another, give priority in rights to the early users. [FN33] In Nevada and Utah, true unified conjunctive management states, water is dealt with under a single, uniform system in which no necessity exists for a legal distinction between groundwater and surface water. [FN34] Other states, such as Idaho and Wyoming, employ a form of “integrated management,” in which groundwater and surface water are generally regarded as two separate systems. [FN35] Here, management is integrated, and permit regulation and application over one type of water is reviewed to establish the effects on the other type, ensuring no adverse effects, major conflicts, or problems arise as a result. [FN36]

New Mexico is an example of a state that, like Arizona, has separate management for groundwater and surface water rights, but in contrast employs conjunctive controls in special and specific areas that have higher critical needs for such management; this is known as a hybrid approach. [FN37] Finally, there are five states, including Arizona, that rely solely on separate management to regulate groundwater and surface water as two entirely separate legal systems with their own unique needs and controls. [FN38] There are historical and political reasons explaining each state’s distinctive method of managing water rights, but it is unclear whether each state has adopted the approach that is best suited to meet its needs.

Federal Law

Federal reserved rights law pertaining to water declines to treat groundwater and surface water rights separately. [FN39] Thus, when determining how to protect water, the two categories are not distinguished, and the United States Supreme Court defined both as “integral parts of the hydrological cycle.” [FN40] This has created some problems when trying to incorporate Arizona water rights in the face of conflicting federal water law, specifically in regards to Indian lands. In United States v. New Mexico, the Court addressed and partially resolved the issue by holding that the reserved *277 rights doctrine will always supersede state water laws, creating even less cohesiveness in Arizona water rights implementation. [FN41]

Of critical importance is that the five states employing separate management ( Arizona, California, Nebraska, Oklahoma, and Texas) have experienced vast depletion in levels of surface water flow in recent years. [FN42] In Arizona specifically, major water courses also lost any intermix between groundwater and surface water as a result of excessive groundwater pumping, causing extreme drops in the water table. [FN43] Such occurrences cause concern for Arizona’s continued journey along the path of separately regulating groundwater and surface water, and require a shift towards some form of conjunctive management.

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