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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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