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THE GROUNDWATER / SURFACE WATER DILEMMA – Distinction

June 19, 2010

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

The Groundwater/Surface Water Distinction

The argument asserted in this article, namely that Arizona adopt conjunctive water management reform, requires a basic understanding of the two dominant classes of water—groundwater and surface water—and the Arizona legal doctrines that govern them. The definition and applicable law pertaining to groundwater will first be explored, followed by surface water. Next, this section will introduce the relationship between groundwater and surface water and the problems associated with disparate treatment of the two classes, illustrated by Arizona statutory and case law.

Groundwater

Groundwater is water that flows to the surface from underground aquifers, which are geological units that yield usable quantities of natural water to springs, or are tapped into for agricultural, municipal, or industrial use through manmade wells. [FN1] In short, groundwater is all water beneath the surface of land that does not flow in underground streams, which historically, before regulatory legislation existed, belonged to anyone owning the land overlying the groundwater source. [FN2] In Arizona, groundwater is statutorily defined as “water under the surface of the earth, regardless of the geological structure in which it is standing or moving,” but excluding water that flows in underground streams with ascertainable beds and banks. [FN3] Today in Arizona, individuals and municipalities are pumping groundwater in excess of the amount in which nature replenishes it. [FN4]

Until the enactment of the Arizona Groundwater Management Act of 1980, [FN5] landowners were at liberty to freely pump groundwater from above land that was being put to a “beneficial use.” [FN6] The Groundwater Management Act was a monumental occurrence in the history of Arizona water law, preserving certain rights of active users before its enactment and placing restrictions and use limitations for new groundwater users, which will be discussed in greater detail later. Groundwater pumping is now governed by the reasonable use doctrine, which permits overlying landowners to obtain as much groundwater as can be “reasonably” used for the land. [FN7] This subsequently relieves these landowners from liability when another user’s supply is diminished as a result of such pumping. [FN8] Unfortunately, the lacking oversight and determination of what constitutes “reasonable,” as an always ambiguous term in the law, contributes significantly to the depletion of water resources.

Surface Water

“‘Surface water’ means the waters of all sources, flowing in streams, canyons, ravines, or other natural channels, or in definite underground channels, whether perennial or intermittent, floodwater, wastewater or surplus water, and of lakes, ponds, and springs on the surface.” [FN9] Surface water is a distinct class of water, which is generally derived from falling rain or melting snow which is diffused over the surface of the ground while maintaining this diffused state or condition. [FN10]

Arizona employs the prior appropriation doctrine, a first-in-time, first-in-right methodology, in governing surface water rights and uses. [FN11] The Gila River Adjudication began in the 1970s to judicially settle and determine issues pertaining to the use of surface water deriving from the Gila River, one of the most important water resources in Arizona [FN12] The Gila River adjudication is among the longest and most complex litigations in the history of Arizona, costing millions of dollars in attorneys’ fees and resulting in the passage of the Arizona Water Settlements Act in 2004 to settle disputes and inconsistencies between Indian tribes, intrastate water users, Arizona state law, and federal law. [FN13] A great bulk of water rights litigation in the past few decades has focused on the rights and claims of various Indian tribes. Arizona has arguably done a successful job of handling the resolution of matters concerning the Indian tribes, but  numerous uncertainties still remain. While the litigation has addressed many issues, the problems of the groundwater and surface water distinction endure, leaving questions of when the two are intermixed, and how to classify the water at issue and apply the appropriate law.

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