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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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