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THE GROUNDWATER / SURFACE WATER DILEMMA – The Relationship

June 18, 2010

THE GROUNDWATER/SURFACE WATER DILEMMA IN ARIZONA: A LOOK BACK AND A LOOK AHEAD TOWARD CONJUNCTIVE MANAGEMENT REFORM  by Allison Evans

The Relationship and Interconnectedness between Groundwater and Surface Water

Although the distinction between groundwater and surface water may appear to be relatively simple, the two are undeniably interconnected. Separate regulation for the two types has proved difficult and problematic as *273 they often merge and connect. [FN14] Nonetheless, separate regulatory administration for groundwater and surface water has been a historical and continuous defining characteristic of water law in Arizona.

Pumping and withdrawal of groundwater supplies often diminishes surface water supplies, causing it to percolate in aquifers, while diversion of surface water often leads to depletion of groundwater supplies. [FN15] On the other hand, surface water levels may increase when groundwater use is restricted and percolation decreases, illustrating the undeniable relationship between the two. [FN16]

The distinction between groundwater and surface water is further complicated by the concept of subflow. Subflow is defined as “those waters which slowly find their way through sand and gravel constituting the bed of the stream, or the lands under or immediately adjacent to the stream, and are themselves a part of the surface stream.” [FN17] Arizona common law prohibits “surface appropriators to protect their source of surface waters from depletion by groundwater pumping unless that pumping draws from the relatively narrow category of ‘subflow.’ More distant pumping within a common aquifer is governed by the relatively unfettered doctrine of reasonable use.” [FN18] This concept of “subflow,” which is a complete legal, not scientific, creation, has further compounded and confused the separate notions between groundwater and surface water. It is a particular class of groundwater that is treated as surface water and subject to the prior appropriation doctrine. [FN19]

For example, Arizona does not only apply the doctrine of prior appropriation to surface water, but also to the subflow category. The concept of subflow has played a critical role in the development of water law in Arizona from 1931 through today. The attempt has been to define *274 those areas where pumping has so vastly depleted surface flow of streams to require the application of the same law that regulates the stream itself, blurring the line between groundwater and surface water concepts. [FN20] The Arizona Supreme Court has also acknowledged the deficiencies inherent in the concept of subflow established by Southwest Cotton. [FN21] Nonetheless, it refused to abandon this longstanding framework, which has served as the backdrop for all Arizona water rights regulation. [FN22]

A common problem in states that fail to integrate use regulations for groundwater and surface water occurs in the form of denying relief to plaintiffs in many well-interference cases when wells are rendered dry from surface water diversions. [FN23]

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