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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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