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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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