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June 15, 2010


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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