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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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THE GROUNDWATER / SURFACE WATER DILEMMA – History of AZ Water Law

June 16, 2010

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

A Brief History of Arizona Water Law

The history and development of Arizona water law is illustrative of Arizona’s stance in today’s realm of water rights. This history further reveals both problems and future solutions for the preservation of adequate water supplies and protection of riparian areas. Before acquiring statehood, the Howell Code was enacted in the mid-nineteenth century over the territory of Arizona. [FN44] A provision within the Code laid out the first-in-time, first-in-right concept that is still in effect today. [FN45] This prior appropriation doctrine can generally be summed up as “finders-keepers,” giving superior water rights to those who first diverted surface water over those who later attempted to divert it. During this time, groundwater was largely inaccessible. [FN46]

The next important development in the history of Arizona water law occurred in the early 1930s with the Arizona Supreme Court decision in the Southwest Cotton case, which established the beneficial use doctrine. [FN47] The decision had severe consequences on groundwater levels in Arizona. It allowed overlying landowners to pump groundwater from below if the *278 water was put towards a “beneficial use,” which went largely undefined and unregulated. [FN48] The court also created an ongoing topic of controversy and confusion by drawing a distinction between subflow and percolating waters (which was ambiguously defined), [FN49] holding that percolating waters would not be subject to the prior appropriation doctrine. [FN50] The development and use of technologically-advanced, high-powered pumps closely followed this decision. Such advancements brought large amounts of groundwater to the surface, resulting in extreme levels of depletion. [FN51] Over time, the need for regulated management and control grew, but did not truly appear until the 1980s. By the 1970s, various forces joined together to demand the implementation of a modern scheme and the abolishment of the antiquated system of groundwater law, which was plaguing Arizona and threatening its future. The result was the Groundwater Management Act of 1980 (Act). [FN52]

The Groundwater Management Act

The Act, [FN53] likely one of the most important legislative enactments in the history of Arizona, brought with it three primary goals. First, it sought to control the severe overdraft that had been occurring and increasing since the mid 1930s; second, it sought to provide a reasonable and identifiable method of appropriately allocating the limited ground water resources throughout Arizona; and finally, it sought to establish water supply development procedures. [FN54]

A system of quantified rights was laid out in the Act, preserving uses of existing groundwater pumpers within certain regions known as Active Management Areas (AMAs), [FN55] which are densely populated areas where the overdraft is most severe, and placing restrictions on a majority of new groundwater users in such areas. [FN56] The Act further created the Arizona *279 Department of Water Resources (ADWR), a new state agency to oversee water regulations. [FN57] Requirements were implemented and aimed at maintaining supplies and ensuring conservation, and had a minimal effect on a few long-established mines and farms, industries critical to Arizona’s economy. [FN58]

Although the specific management of each AMA is subject to variations in creation and enforcement, the overall goal is generally attaining a “safe yield,” which means “to achieve and thereafter maintain a long term balance between the annual amount of groundwater withdrawn within an active management area and the annual amount of natural and artificial recharge in the active management area.” [FN59]

In short, the goal is, by the end of the applicable period, to reduce depletion of groundwater within the given AMA. Outside of AMAs, which require permits before pumping is permitted, groundwater may generally be pumped and withdrawn if used reasonably and for a beneficial purpose, much like surface water in Arizona. [FN60] Users, however, are required to file a notice with the State of Arizona. [FN61] Many common law principles still predominate outside the AMAs, most importantly the doctrine of reasonable use, and rural areas are largely excluded from any of these regulations. [FN62]

A lack of uniformity in enforcement exists between AMAs and rural areas across Arizona—areas that face the gravest threat of depleting water supplies. Ironically, as a result these are the areas open to the most abuse and freedom to pump. In these rural areas, there is no stated management goal or specific, identifiable plan mandating the utilization of renewable supplies. [FN63] Thus, there are generally few or no limits on amounts of groundwater that can be pumped.

[FN64] Although the Groundwater Management Act was a giant step in the right direction towards implementing a modern and effective management system for handling *280 water rights in Arizona, adjudication of water rights remains a costly and uncertain realm, fraught with various problems.

The Central Arizona Project

Another major development of Arizona water rights is the Central Arizona Project (CAP). CAP began in 1968 after the passage of the Colorado River Basin Project Act by Congress. [FN65] Arizona had fought a long battle, mainly with the State of California, to obtain water supplies from the Colorado River. [FN66] Construction on the 336 mile canal began in 1973 which diverted water from the Colorado River to central and southern Arizona, a momentous and massively expensive undertaking costing roughly 3.5 billion dollars. [FN67] Some Arizona cities began receiving water
supplies from CAP in 1985, but construction was not substantially completed until 1994. CAP now serves as the largest renewable source of water supplies in the entire state. [FN68]

Unfortunately, the benefits of CAP have not proven to be as successful as expected. First, the Colorado River Basin Project Act established that Arizona would have junior priority rights to other states, such as California, who had diversion works in place prior to 1968. [FN69] This means that Arizona will be one of the first states associated with the project to suffer a shortage in times of need, always being subordinate to the rights and needs of California. [FN70]

Additionally, doubts exist as to whether the hydrologic capacity of the canal ditch will be able to carry Arizona’s allotment of CAP water. [FN71] The flow of the Colorado River has been highly overestimated, and the effects of global warming will lead to significant reductions in water levels. [FN72] Further, a large allotment of CAP water is used in resolving various federal Indian *281 water rights disputes, and a large quantity of CAP water remains unused. [FN73] Finally, CAP largely ignores Arizona’s rural areas. It appears that CAP will not pose a long-term solution to sustaining adequate water supplies, and presents many troubling concerns for the future, similar to the effects of the Groundwater Management Act.

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THE GROUNDWATER / SURFACE WATER DILEMMA – Failures and Consequences

June 15, 2010

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

Failures and Consequences of the Bifurcated System

One of the main failures of the Groundwater Management Act is that it does not recognize the undeniable interdependence of groundwater and surface water. This leaves users whose groundwater supplies are eradicated by surface water diversion with no available legal remedy, and vice-versa. [FN74] An unintended effect of this vast legislation that focuses extensively on groundwater rights, but largely ignores surface water rights, has been an increase in the importation and depletion of surface water supplies, mostly from streams. [FN75] A debate continues over whether the AMAs are actually capable of achieving their safe-yield goals, with some scientists labeling the notion as “an oversimplification of the information that is needed to understand the effects of developing a groundwater system.” [FN76] The underlying reasoning is that the AMA goals do not recognize the inevitable ties between groundwater and surface water levels. Safe yields produced from groundwater use threaten surface water supplies and, consequently, the ecosystems that depend upon them. [FN77] Thus, groundwater pumping marches on at a high rate, leading to an interception of water that would ultimately reach important river sources and maintain or increase flows and levels. [FN78]

Another shortcoming resulting from this failure to distinguish between the two types of water is that underground storage, one of the cornerstones of conjunctive management, was arguably not given enough weight in passing the Act. Under the Act, such storage and recovery is permitted, but is not mandatory. [FN79] Large metropolitan areas under the AMAs, such as Phoenix, have been greatly disconnected from surface water systems and *282 supplies, whose flows depend
on reservoir controls, losing the ordinary connection between aquifers and flowing channels. [FN80] Although the use of CAP water is encouraged over the continued depletion of groundwater supplies, it is not certain that such efforts will be sufficient to meet the severity and enormity of the overdraft problem. [FN81]

While Phoenix has a natural capacity for recharge programs deriving from surface water sources into available underground storage, Arizona is lacking in legislation and financing to take advantage of this promising option. [FN82] Other basins around Arizona do have the integrated characteristics of taking into account both types of water supplies. [FN83] Recharge efforts and considerations only look to increases in groundwater recharge and decreases in discharge, entirely ignoring surface water supplies and level. Moreover, the great majority of groundwater uses are legally permissible and thus not subject to reduction despite the consistently large overdrafts. [FN84] Overall, the Act fails to address and specifically define the limits on how much groundwater users can pump, while still meeting the ultimate goals of the Act. Part of this failure is due to the maintenance, and in some instances, expansion, of common law protections to historic pumpers. [FN85]

The failure of the Act to address surface water systems, coupled with the rulings of the Arizona Supreme Court, have preserved strict adherence to the prior appropriation doctrine. The main feature of the prior appropriation doctrine can be summed up as first-in-time, first-in-right, meaning the earliest diverters of surface water supplies have superior rights to later diverters or claimants. [FN86] If there is a shortage and a senior user complains, the later users will be prohibited from future use.

While the doctrine appears to be relatively straightforward, adjudication can be complex. This occurs because senior diverters must establish their dominant right and rely on a showing of their historical use, which can be difficult to accurately document and prove. [FN87] Such realities cast doubt on the continued loyalty to the prior appropriation doctrine, posing questions as *283 to whether the system truly produces equitable and just results. In response to an increased recognition of such possible deficiencies, many states have devised “general adjudication procedures designed to bring all water users in a given watershed together in a single litigation that will adjudicate the priority and scope of their rights.” [FN88]

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THE GROUNDWATER / SURFACE WATER DILEMMA – The Gila River Adjudication

June 14, 2010

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

The Gila River Adjudication

The Gila River Adjudication was initiated in 1974 when the Salt River Valley Water Users Association filed a petition for an adjudication of water rights to the Salt River. [FN89] The case was consolidated as a general adjudication of all water rights in the Salt, Verde, Gila, Agua Fria, Upper Santa Cruz, and San Pedro River watersheds, and has yet to produce a final judgment, while surviving a complete overhaul of statutory law and various Arizona Supreme Court decisions. [FN90] The Gila River provides Arizona with nearly twenty percent of the overall water used in Arizona, with the remaining eighty percent deriving from both groundwater pumping and the Colorado River. [FN91]

In 1979, the Arizona legislature reformed the rules governing water rights adjudication. [FN92] This required all claimants of water rights of the river system to file a “statement of claimant,” which led to a consolidation of numerous petitions tried before the Maricopa County Superior Court in a single proceeding in 1981. [FN93]

The following years produced little progress stemming from the innumerable parties involved in the matter and the conflicts between the bifurcated system of rights. In 1983, the United States Supreme Court ruled that both federal and state courts could hear matters concerning Indian claims, but required federal actions to be stayed or dismissed pending state court adjudications. [FN94] In 1986, an Arizona order was issued that laid out a series of procedural requirements demanding resolution before adjudication of individual claims could begin, including a rule that federal and Indian reserved water rights could extend both to groundwater and surface water, *284 basically giving tribes priority in their right disputes. [FN95] By 1990, some of the Arizona courts’ conclusions were overruled, while others were affirmed near the end of the twentieth century. [FN96]

Today, although some arguable strides have been made, no apparent end is in sight to this expensive, lengthy, and incredibly complicated litigation. There is little evidence to suggest that future adjudication will proceed smoothly. [FN97] One of the most critical decisions from the Gila adjudications came on July 27, 1993. The Arizona Supreme Court rendered a decision that upheld the prior appropriation doctrine, and actually expanded it to apply to water that was pumped from wells as appropriable surface water, or, instead, as percolating groundwater not subject to the priority doctrine. [FN98] Thus, the court continued to adhere to the arguably antiquated and useless notion of subflow discussed above. [FN99] The legally created concept of subflow makes water rights issues significantly more complex and difficult to adjudicate, particularly in rural areas that are not subject to the stricter and more defined rules in AMAs. [FN100]

The decision has proved to be controversial and is the subject of much debate. It is argued that the affirmed rulings of the Southwest Cotton case are outdated and even detrimental to the future of Arizona water, containing internally inconsistent and contradictory definitions of water types. [FN101] The case also established the enforcement of overriding rules of federal reserved rights pertaining to water law, which imposes an entirely different set of policies and definitions concerning the character and relatedness of groundwater and surface water, one that contrasts with Arizona law. The ruling was another firm reminder of the judicial and legislative determination in Arizona to continue distinguishing between groundwater and surface water, leaving a dim outlook over the need to address the relation between groundwater wells, aquifers, and above surface streams. [FN102]

*285 Further, while the purpose of the Gila adjudication was to solve problems and enforce water rights, the opposite result has emerged, largely because of the failure of comprehensive administrative oversight in Arizona. In the Gila adjudication of 1993, the Arizona Supreme Court stated the following:

Finally, we recognize that the line between surface and groundwater drawn by the Southwest Cotton court and reaffirmed by this court today is, to some extent, artificial and fluid It is important to remember that the Southwest Cotton court did not create an all-encompassing set of common law principles Since Southwest Cotton, many have criticized Arizona’s adherence to a bifurcated system of water management. Now, sixty years later, similar arguments are made that Southwest Cotton misinterpreted our statutes and constitution. We recognize compelling arguments in favor of unified management of Arizona’s water resources. Nonetheless the Arizona legislature has not significantly altered the opinion we reach. [FN103] The court reaffirmed the concept of subflow, although expressly recognizing its deficiencies, and stressed that an overhaul of the bifurcated system was solely in the hands of the Arizona legislature. [FN104]

Along with legislative reform, Arizona is in need of creating new positions within its governmental bodies to handle water rights. These positions would include water superintendents and an administrative process for enforcing unlawful water use and general water rights to avoid abuse and depletion of resources. Depending solely on adjudication requires substantial expenses and massive delays with no foreseeable resolution. It also allows the original problems to persist while the suit is pending. The lack of enforcement and oversight by vaguely defined and limited state departments and the bogged down judicial system has culminated in a simple lack of regulation and resolution to most water right issues. [FN105] Conjunctive management would help solve many of these problems

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THE GROUNDWATER / SURFACE WATER DILEMMA – The Future

June 13, 2010

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

The Future and Need for Conjunctive Management

Arizona has been gradually taking steps towards implementing the features of a conjunctive management system. As noted at the Australian government’s Connected Water website, “[i]nstitutional factors such as the rules governing water
use and the [organizational] arrangements for water management are likely to play important roles in determining whether, when, and how conjunctive management programs develop and perform.” [FN106] To solve its problems, Arizona will have to change long-standing principles and develop conjunctive management to address its unique needs. [FN107]

In 1993, likely in response to positive results from other states using conjunctive systems, the legislature established the Central Arizona Water Conservation District. [FN108] Moreover, and, most notably, the legislature created the Arizona Water Banking Authority (Bank) in 1996. [FN109] The Bank’s water is stored in underground facilities and delivery and storage fees are paid for transporting unused CAP water to be used instead of the constantly decreasing groundwater supplies. [FN110] These two creations taken together have produced promising results, accumulating more than one million acre-feet of water storage credits by 1997. [FN111] This is the most important step Arizona has taken in implementing features of a conjunctive management system. Many argue, however, that the Bank will only serve as temporary relief, and the storage capabilities from CAP will render the length of the benefits significantly short. [FN112] As surface water supplies are greatly limited in Arizona, the future of conjunctive management features rests on the ability to preserve supplies derived from the Colorado River. [FN113] *287 However, the majority of these conjunctive management policies are primarily occurring in central and southern regions of Arizona. This is to address the densely populated areas of Phoenix and Tucson, exhibiting the requisite features of extensive groundwater basins, large surface water projects, and the pumps, canals, and ditches necessary to transport and deliver water over long distances. [FN114] It is important to note that, “by 2002, only 2.2 million acre-feet had been artificially recharged for future urban uses.” [FN115] Further, “most recharge projects use temporarily available CAP supplies that will be eliminated by 2030.” [FN116]

Arizona already has infrastructure that is suitable to accommodating the implementation of conjunctive storage policies, including the Central Arizona Project and the Salt River Project, making the shift to such long-term focused projects seem less burdensome and even more attractive. [FN117] The further availability of large, underwater basins should support the necessity of focusing Arizona’s policies on long-term underground storage and preservation. Arizona must divert funding and resources appropriately to serve rural communities as well. In reality a very minute number of such rural areas in Arizona have water conservation programs in effect; thus, state funding and intervention are of importance. [FN118]

While certain storage related issues have been strongly dealt with in the conjunctive sphere, defining water rights statutorily requires modification. Groundwater rights remain flawed, and surface water rights remain uncertain. One possible solution is that surface water could be managed under comprehensive regulatory schemes that are already in place, such as the Groundwater Management Act, subject to some reformation and amending. [FN119] The legislature must take action and institute reforms in statutory water rights policies if Arizona intends to resolve its water problems, as the Arizona Supreme Court has suggested. [FN120] It appears that *288 Arizona has finally recognized the need and utility of shifting towards a conjunctive management policy to address its various needs regarding the water conundrum. Nonetheless, various steps in the future must be taken to truly solve Arizona’s problems.

Positive Results of Conjunctive Management in Arizona

If Arizona continues to recognize the need to change its long-standing loyalty to the bifurcated system of water law, surface water flow will improve and have beneficial economic consequences. Otherwise, groundwater levels will continue to be abused by over-pumping and surface water rights holders will be confronted with uncertain supplies. On the other hand, a limit on groundwater pumping could also have a negative impact on various long-standing businesses relying on their historic rights. [FN121] Ignoring the need for more conjunctive management driven policies will reduce revenues associated with popular sites for visitors because those sites will suffer from depleting lakes and streams, minimizing water-related use activities such as boating and fishing. [FN122]

Excessive groundwater pumping would continue to have devastating environmental consequences on riparian areas, lowering water levels to a point that is insufficient to maintain life and vegetation in numerous areas across Arizona. This is especially true in rural locations and in Tucson, due to the diminishment of the San Pedro River and Tanque Verde Wash. [FN123] Commentators agree that the best method of preserving riparian areas in connection with water rights is adherence to a system of conjunctive policies that strictly recognizes the connection between groundwater and surface water. On the other side of attempting to address environmental concerns is the expansive economic and population growth, and the amount of water required to sustain both. Arizona must implement systems that will cater to both expansion and environmental protection.

Riparian areas and endangered ecosystems are at the forefront of environmental concerns associated with excessive groundwater pumping and failed water management policies resulting in lowered river and surface water levels. [FN124] Phoenix regional rivers have felt adverse effects and reductions in water levels resulting from users who divert surface water, creating an effect that negatively impairs the ecosystem of the Colorado *289 River. [FN125] Decreased water levels and flows in river systems force native plants, wildlife, and fish to compete with species that can better adapt and survive these “dewatered” conditions. [FN126] A large concern is the impact water problems will have on the willowcottonwood forests, which support one of the most diverse and plentiful ecosystems in Arizona. [FN127]

Explosive growth in the southern Sierra Vista area posed a serious threat to depleting the San Pedro River and its ecosystem. Various interested parties, however, collaborated to create a solution. This led to the development of the local Water Interests Group, which outlined detailed proposals and stated water right management goals for the Sierra Vista area. [FN128] One of the features of the Water Interest Group’s plan included “coordinated management of groundwater and surface water resources as may be appropriate to achieve the management goals.” [FN129] This represents an example of small local areas addressing the inherent flaws in the Arizona water rights approach and forming new promising solutions. Arizona should take notice of the underlying rationale of Sierra Vista’s Water Interests Group and implement similar goals.

Arizona did take some active steps in response to riparian concerns in the mid-1990s with the creation of the Riparian Area Advisory Committee (Committee) to make recommendations on how to address water needs coupled with riparian protections. [FN130] The Committee specifically studied the interrelationship between groundwater and surface water, but the recommendation was to enable local entities to enact and respond individually, as opposed to enacting major changes to state law in the form of taking on comprehensive conjunctive management reforms. [FN131] Nonetheless, this represented an important step in the right direction, with the State of Arizona taking a serious look into the benefits and possibilities that would arise were it to consider and decide to adopt a state-wide conjunctive management policy.

Although an argument can be made for enacting management policies at a local level, this would not effectively solve the wide array of problems *290 facing Arizona in regards to the water crisis. Instead, enactment of legislation at the state level is necessary to address a problem of such magnitude. Comprehensive legislation must be enacted to establish minimum standards of groundwater withdrawals to achieve the safe-yield goal of the Groundwater Management Act. Such standards would have to vary depending on the nature and needs of the specific area involved.

One suggested approach is to create districts throughout Arizona based upon various factors, including availability of recharge systems, population, industry, and available surface water and groundwater basin supplies. [FN132] This would effectively combine features of broad state legislation and fluid oversight with the benefits of local adaptation and enforcement to suit unique needs of each district. [FN133]

Of course, a mandatory feature of a reform to Arizona water law would require blurring the commitment to the groundwater surface water distinction. Conjunctive management would manage groundwater and surface water under a single system and mandate seasonal storage of groundwater in underground basins, while being constantly mindful of the effects of groundwater use and surface water use alike. [FN134] Unlike the current Act, legislation should mandate and promote storage and recovery instead of simply permit it as an ongoing effort to sustain withdrawal of groundwater supplies. Also, groundwater use needs to be linked to aquifer conditions. Storage and recharge are critical to meet the needs of the expanding population of Arizona, which shows no signs of slowing in the future.

Arizona is naturally equipped to handle such processes because of its institutional frameworks and infrastructure. This foundation would efficiently support a system of commingling groundwater and surface water and recharging it in underground storage, if proper financing and legislation is passed. [FN135] Such conjunctive use of surface water and groundwater in regional aquifers would provide a sustainable water supply and maintain surface water levels and, in turn, environmental quality.

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THE GROUNDWATER / SURFACE WATER DILEMMA – Conclusion

June 12, 2010

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

Conclusion

Arizona faces a future fraught with uncertainties, complexities, and possible solutions in the expansive and daunting realm of water rights and regulation. This article addresses some of the problems associated with Arizona’s failures in addressing the future maintenance of water supplies. To sustain a healthy economy and environment, the commitment to a bifurcated system that fails to distinguish between groundwater and surface water must end. An unavoidable and unfortunate
truth is “jurisdictions which fail to recognize the direct interrelationship between surface and groundwater resources are only postponing the inevitable requirement to regulate the two sources as an integrated system.” [FN136] While regional renewable water supplies are arguably sufficient for the time being, rural areas continue to suffer. Continued expansive growth in Arizona will eventually cost a multitude of economic and environmental hardships in the absence of legislative reforms and policy decisions aimed at long-term solutions. Arizona has undoubtedly enacted some innovative and comprehensive regulations and systems to address water rights issues, including the Groundwater Management Act, the Central Arizona Project, and the Arizona Water Banking Authority. None of these, however, can achieve its ultimate goal. Problems will continue unless Arizona takes action to complete a true unified system of conjunctive management focused on long-term storage and recharge projects affecting both groundwater and surface water.

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THE GROUNDWATER / SURFACE WATER DILEMMA – References

June 11, 2010

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

References

[FNa1]. J.D. Candidate 2010, Phoenix School of Law; B.A., The University of Arizona, 2006.
[FN1]. A. DAN TARLOCK, JAMES N. CORBRIDGE, JR. & DAVID H. GETCHES, WATER RESOURCE MANAGEMENT:
A CASEBOOK IN LAW AND PUBLIC POLICY 538, 541 (5th ed. 2002); ARIZ. REV. STAT. ANN. §
49-201(2) (2009).
[FN2]. Joe Gelt, Managing the Interconnecting Waters: The Groundwater-Surface Water Dilemma, http://ag.arizona.edu/azwater/arroyo/081con.html (last visited Nov. 28, 2009).
[FN3]. ARIZ. REV. STAT. ANN. § 45-101(5) (2009).
[FN4]. Chris Avery, Carla Consoli, Robert Glennon & Sharon Medgal, Good Intentions, Unintended Consequences: The
Central Arizona Groundwater Replenishment District, 49 ARIZ. L. REV. 339, 340 (2007).
[FN5]. ARIZ. REV. STAT. ANN. § 45-101 (2009).
[FN6]. Avery, supra note 4, at 340.
[FN7]. Bristor v. Cheatham, 255 P.2d 173, 180 ( Ariz. 1953).
[FN8]. Id.
[FN9]. ARIZ. REV. STAT. ANN. § 45-101(9) (2009).
[FN10]. 78 AM. JUR. 2D Waters § 174 (2009).
[FN11]. Avery, supra note 4, at 339.
[FN12]. Avery, supra note 4, at 339.
[FN13]. S. Joshua Newcom, Peace on the Gila: Pending Gila River Indian Community Settlement Tied to CAP Repayment,
RIVER REP. (2001), http:// www.watereducation.org/userfiles/Summer01RR.pdf.
[FN14]. Tracy Stitt, Note, Evaluating the Preliminary Draft Articles on Transboundary Groundwaters Presented by Special
Rapporteur Chusei Yamada at the 56th Session of the International Law Commission in Geneva, 17 GEO. INT’L
ENVTL. L. REV. 333, 338-39 (2005).
[FN15]. Paula K. Smith, Coercion and Groundwater Management: Three Case Studies and a ‘Market’ Approach, 16 ENVTL.
L. 797, 805 (1986).
[FN16]. Black’s Law Dictionary defines percolating water as “[ w]ater that oozes or seeps through the soil without a
defined channel (such as rainwater or other water that has lost its status as part of a stream).” BLACK’S LAW DICTIONARY
1585 (7th ed. 1999).
[FN17]. Maricopa County Mun. Water Conservation Dist. No. 1 v. Sw. Cotton Co., 4 P.2d 369, 380 ( Ariz. 1931).
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[FN18]. In re the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. and Source, 989 P.2d 739, 749 (
Ariz. 1999).
[FN19]. Kevin L. Patrick & Kelly E. Archer, A Comparison of State Groundwater Laws, 30 TULSA L.J. 123, 127-28
(1994).
[FN20]. See In re Rights to Use Water in Gila River, 857 P.2d 1236, 1246-47 (criticizing Maricopa County Mun. Water
Conservation Dist. No. 1 v. Sw. Cotton Co., 4 P.2d 369, 380-81 ( Ariz. 1931), and holding that percolating waters are
not subject to appropriation).
[FN21]. Id.
[FN22]. In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. and Source, 857 P.2d 1236, 1243 ( Ariz.
1993).
[FN23]. See Paula K. Smith, Coercion and Groundwater Management: Three Case Studies and a ‘Market’ Approach, 16
ENVTL. L. 797, 805 (1986).
[FN24]. See Joe Gelt, Managing the Interconnecting Waters: The Groundwater-Surface Water Dilemma, http://ag.arizona.edu/azwater/arroyo/081con.html (last visited Nov. 28, 2009).
[FN25]. William Blomquist, Tanya Heikkila & Edella Schlager, Institutions and Conjunctive Water Management
Among Three Western States, 41 NAT. RESOURCES J. 653, 654 (2001).
[FN26]. Id.
[FN27]. Id. at 655.
[FN28]. Id.
[FN29]. Id.
[FN30]. Barbara Tellman, Why Has Integrated Management Succeeded in Some States but not in Others?, http://www.ucowr.siu.edu/updates/pdf/V106_A2.pdf (last visited Dec. 26, 2009); see generally Conjunctive Water Mgmt
.: A Solution to the West’s Growing Water Demand?: Hearing Before the Subcomm. on Energy and Res. of the H.
Comm. on Gov’t Reform, 109th Cong. (2006) [hereinafter Hearing].
[FN31]. See Tellman, supra note 30; see generally Hearing, supra note 30.
[FN32]. See Blomquist, supra note 25.
[FN33]. See Barbara Tellman, Why Has Integrated Management Succeeded in Some States but not in Others?, http://www.ucowr.siu.edu/updates/pdf/V106_A2.pdf (last visited Dec. 26, 2009).
[FN34]. Id.
[FN35]. Id.
[FN36]. Id.
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[FN37]. Id.
[FN38]. Id.
[FN39]. Cappaert v. United States, 426 U.S. 128 (1976).
[FN40]. Id. at 142.
[FN41]. See generally United States v. New Mexico, 438 U.S. 696, 714 (1978).
[FN42]. See Barbara Tellman, Why Has Integrated Management Succeeded in Some States but not in Others?, http://www.ucowr.siu.edu/updates/pdf/V106_A2.pdf (last visited Dec. 26, 2009).
[FN43]. Id.
[FN44]. See generally, Boquillas Land & Cattle Co. v. Curtis, 89 P. 504 (Ariz. Terr. 1907) (aff’d 213 U.S. 339 (1909)).
[FN45]. See Joe Gelt, Managing the Interconnecting Waters: The Groundwater-Surface Water Dilemma, http://ag.arizona.edu/azwater/arroyo/081con.html (last visited Nov. 28, 2009).
[FN46]. Id.
[FN47]. See generally Maricopa County Mun. Water Conservation Dist. No. 1 v. Sw. Cotton Co. 4 P.2d 369 (Ariz.
1931).
[FN48]. Id.
[FN49]. Id. at 377.
[FN50]. Charlotte Benson, Integrated Water Management When Surface and Groundwater are Legally Separate, http://www.ucowr.siu.edu/updates/pdf/V106_ A4.pdf (last visited Dec. 26, 2009).
[FN51]. Chris Avery, Carla Consoli, Robert Glennon & Sharon Medgal, Good Intentions, Unintended Consequences:
The Central Arizona Groundwater Replenishment District, 49 ARIZ. L. REV. 339, 340 (2007).
[FN52]. See id.; ARIZ. REV. STAT. ANN. §§ 45-101 to -116 (2009).
[FN53]. ARIZ. REV. STAT. ANN. §§ 45-101 to -116 (2009).
[FN54]. See Avery, supra note 4, at 341; see Bureau of Land Mgmt., Arizona Water Rights Fact Sheet (Aug. 15, 2001),
http:// www.blm.gov/nstc/WaterLaws/pdf/Arizona.pdf.
[FN55]. ARIZ. REV. STAT. ANN. § 45-411 (2009).
[FN56]. See Avery, supra note 4, at 341.
[FN57]. ARIZ. REV. STAT. ANN. § 45-102 (2009).
[FN58]. See Avery, supra note 4, at 341.
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[FN59]. See Kevin L. Patrick & Kelly E. Archer, A Comparison of State Groundwater Laws, 30 TULSA L.J. 123, 134
(1994); ARIZ. REV. STAT. ANN. § 45-562 (2009).
[FN60]. William Staudenmaier, Between a Rock and a Dry Place: The Rural Water Supply Challenge for Arizona, 49
ARIZ. L. REV. 321 (2007).
[FN61]. Joseph M. Feller, The Adjudication that Ate Arizona Water Law, 49 ARIZ. L. REV. 405, 407 (2007).
[FN62]. See Bureau of Land Mgmt., Arizona Water Rights Fact Sheet (Aug. 15, 2001), http://www.blm.gov/nstc/WaterLaws/pdf/Arizona.pdf.
[FN63]. William Staudenmaier, Between a Rock and a Dry Place: The Rural Water Supply Challenge for Arizona, 49
ARIZ. L. REV. 321, 330 (2007).
[FN64]. Id.
[FN65]. John B. Weldon & Lisa M. McKnight, Future Indian Water Settlements in Arizona: The Race to the Bottom of
the Waterhole?, 49 ARIZ. L. REV. 441 (2007).
[FN66]. Jon Kyl & Ryan A. Smith, Water Law and Policy Conference, 49 ARIZ. L. REV. 209, 211 (2007).
[FN67]. Id. at 211-12.
[FN68]. Id. at 212.
[FN69]. 43 U.S.C.A. § 1521(b) (2006).
[FN70]. Patrick Schiffer, Herbert R. Gunther & Thomas G. Carr, From a Colorado River Compact Challenge to the Next
Era of Cooperation Among The Seven Basin States, 49 ARIZ. L. REV. 217, 219-20 (2007).
[FN71]. Robert Jerome Glennon, “Because That’s Where the Water Is”: Retiring Current Water Uses to Achieve the
Safe-Yield Objective of the Arizona Groundwater Management Act, 33 ARIZ. L. REV. 89, 98-99 (1991).
[FN72]. Id. at 99.
[FN73]. Id.
[FN74]. See Paula K. Smith, Coercion and Groundwater Management: Three Case Studies and a ‘Market’ Approach, 16
ENVTL. L. 797, 845 (1986).
[FN75]. Id. at 848-49.
[FN76]. See Jan Bush, Subhrajit Guhathakurta & Judith M. Dworkin, Examination of the Phoenix Regional Water Supply
for Sustainable Yield and Carrying Capacity, 46 NAT. RESOURCES J. 925, 936 (2006).
[FN77]. Id.
[FN78]. Meredith K. Marder, The Battle to Save the Verde: How Arizona’s Water Law Could Destroy One of its Last
Free Flowing Rivers, 51 ARIZ. L. REV. 175, 176-79 (2009).
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[FN79]. See Smith, supra note 15, at 868.
[FN80]. See Bush, supra note 76, at 937.
[FN81]. See Smith, supra note 15, at 845.
[FN82]. See Bush, supra note 76, at 954, 957.
[FN83]. Id. at 936.
[FN84]. Id. at 938.
[FN85]. See generally Robert Jerome Glennon & Thomas Maddock, III, In Search of Subflow: Arizona’s Futile Effort to
Separate Groundwater from Surface Water, 36 ARIZ. L. REV. 567 (1994).
[FN86]. See Joe Gelt, Managing the Interconnecting Waters: The Groundwater-Surface Water Dilemma, http://ag.arizona.edu/azwater/arroyo/081con.html (last visited Nov. 28, 2009).
[FN87]. See Glennon, supra note 85, at 569.
[FN88]. Glennon, supra note 85, at 569.
[FN89]. In re the Rights to Use the Gila River, 830 P.2d 442 (Ariz. 1992).
[FN90]. Id.; Joseph M. Feller, The Adjudication that Ate Arizona Water Law, 49 ARIZ. L. REV. 405, 407 (2007).
[FN91]. See EIGHTY-FIFTH ARIZONA TOWN HALL, ARIZONA’S WATER FUTURE: CHALLENGES AND OPPORTUNITIES
(Oct. 31-Nov. 3, 2004), http:// www.aztownhall.org/pdf/85th_report.pdf.
[FN92]. See 1979 Ariz. Sess. Laws, ch. 139, § 39 (codified as amended at ARIZ. REV. STAT. ANN. §§ 45-251 to
45-258 (2006)).
[FN93]. See Feller, supra note 90.
[FN94]. Arizona v. San Carol Apache Tribe, 463 U.S. 545 (1983).
[FN95]. In re the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 989 P.2d 739, 745-49
(Ariz. 1999).
[FN96]. Id.
[FN97]. See Feller, supra note 90.
[FN98]. In re the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 989 P.2d 739 (Ariz.
1999).
[FN99]. Id.
[FN100]. See William Staudenmaier, Between a Rock and a Dry Place: The Rural Water Supply Challenge for Arizona,
49 ARIZ. L. REV. 321 (2007).
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[FN101]. Maricopa County Mun. Water Conservation Dist. No. 1 v. Sw. Cotton Co. 4 P.2d 369, 377 (Ariz. 1931).
[FN102]. See Robert Jerome Glennon, “Because That’s Where the Water Is”: Retiring Current Water Uses to Achieve the
Safe-Yield Objective of the Arizona Groundwater Management Act, 33 ARIZ. L. REV. 89, 98-99 (1991).
[FN103]. In re Rights to Use Water in Gila River, 857 P.2d 1236, 1246-47 (Ariz. 1993).
[FN104]. Id.
[FN105]. See Joseph M. Feller, The Adjudication that Ate Arizona Water Law, 49 ARIZ. L. REV. 405, 407 (2007).
[FN106]. Connected Waters, Institutional Arrangements, http://www.connectedwater.gov.au/framework/institutional_arrangements.html (last visited Oct. 6, 2009).
[FN107]. Id.
[FN108]. See ARIZ. REV. STAT. ANN. §§ 48-4401 to -4404 (2000).
[FN109]. See William Blomquist, Tanya Heikkila & Edella Schlager, Institutions and Conjunctive Water Management
Among Three Western States, 41 NAT. RESOURCES J. 653, 663 (2001).
[FN110]. See Jon Kyl & Ryan A. Smith, Water Law and Policy Conference, 49 ARIZ. L. REV. 209, 213 (2007).
[FN111]. See Joseph M. Feller, The Adjudication that Ate Arizona Water Law, 49 ARIZ. L. REV. 405, 407 (2007); Jack
A. Vincent, What Lies Beneath: The Inherent Dangers of the Central Arizona Groundwater Replenishment District, 38
ARIZ. ST. L.J. 857, 868 (2006) (a storage credit is earned by a person or entity that recharges excess water into an
aquifer with the expectancy that it will tap that resource at a later date).
[FN112]. See Margaret Bushman LaBianca, The Arizona Water Bank and the Law of the River, 40 ARIZ. L. REV. 659,
679 (1998).
[FN113]. See generally Jan Bush, Subhrajit Guhathakurta & Judith M. Dworkin, Examination of the Phoenix Regional
Water Supply for Sustainable Yield and Carrying Capacity, 46 NAT. RESOURCES J. 925, 936 (2006) (discussing that
although Phoenix has acquired a large and robust current water supply, the city needs to come up with new water supply
policies instead of new water resources, and implement policy and management reforms, to avoid considerable economic
and environmental costs in the future).
[FN114]. Jan Bush, Subhrajit Guhathakurta & Judith M. Dworkin, Examination of the Phoenix Regional Water Supply
for Sustainable Yield and Carrying Capacity, 46 NAT. RESOURCES J. 925, 936 (2006).
[FN115]. Id. at 953.
[FN116]. Id. at 954.
[FN117]. Id. at 955.
[FN118]. See William Staudenmaier, Between a Rock and a Dry Place: The Rural Water Supply Challenge for Arizona,
49 ARIZ. L. REV. 321, 335 (2007).
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[FN119]. ARIZ. REV. STAT. ANN. § 45-101 (2009).
[FN120]. In re All Rights to Use Water in Gila River, 857 P.2d 1236, 1246-48 (Ariz. 1993).
[FN121]. See Joe Gelt, Managing the Interconnecting Waters: The Groundwater-Surface Water Dilemma, http://ag.arizona.edu/azwater/arroyo/081con.html (last visited Nov. 28, 2009).
[FN122]. Id.
[FN123]. Id.
[FN124]. Id.
[FN125]. See Jan Bush, Subhrajit Guhathakurta & Judith M. Dworkin, Examination of the Phoenix Regional Water Supply
for Sustainable Yield and Carrying Capacity, 46 NAT. RESOURCES J. 925, 935 (2006).
[FN126]. Id.
[FN127]. Id. at 934.
[FN128]. See Joe Gelt, Managing the Interconnecting Waters: The Groundwater-Surface Water Dilemma, http://ag.arizona.edu/azwater/arroyo/081con.html (last visited Nov. 28, 2009).
[FN129]. Id.
[FN130]. Id.
[FN131]. Id.
[FN132]. See Paula K. Smith, Coercion and Groundwater Management: Three Case Studies and a ‘Market’ Approach, 16
ENVTL. L. 797, 868 (1986).
[FN133]. Id.
[FN134]. Id. at 870.
[FN135]. See Jan Bush, Subhrajit Guhathakurta & Judith M. Dworkin, Examination of the Phoenix Regional Water Supply
for Sustainable Yield and Carrying Capacity, 46 NAT. RESOURCES J. 925, 953 (2006).
[FN136]. See Kevin L. Patrick & Kelly E. Archer, A Comparison of State Groundwater Laws, 30 TULSA L.J. 123,
154-55 (1994).
3 Phoenix L. Rev. 269

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