Groundwater Policy - Sahraweb.sahra.arizona.edu/education2/azwater/docs/lesson5b/...Management Act...

Arizona Water Issues © 2012 - The University of Arizona – HWR203

Groundwater Policy

1

GW ? SW

• How much groundwater does Arizona have?

• What distinguishes GW from SW flows?

• Who should be allowed to use that water?

• For what purposes should GW be used?

• How much should be withdrawn now? and,

• How can Arizona keep track of GW

withdrawals?

GW Issues in AZ

Arizona Water Issues 2© 2012 - The University of Arizona – HWR203


“To whomever the soil belongs, he owns also to the sky and to the depths.”

-English Law, 152 Eng. Rep 1235 (1843) [Cech, 2002]

Early English Common Law

Rule of Capture or Absolute Ownership

Groundwater doctrine which provides a landowner unrestricted use of water obtained from beneath their property.

3


Other US Doctrines

Correlative Rights (shared use) Principle• provides allocations of groundwater to all users, thus reducing or restricting pumping.

Groundwater law is determined by state

Doctrine of Prior Appropriation• awards priorities based on the date a well was drilledand groundwater was put to beneficial use.

Conjunctive Use• attempts to manage both most efficiently.• assumes that surface and groundwater are connected

- groundwater “is tributary” to the stream

4


Arizona – GW law history

• Early: absolute right of capture• 1904-06: Howard v. Perrin 200 US 71 -

Percolating waters are not appropriable

• 1931 … Subflow - Maricopa Co. Municipal Water Conservation District v. Southwest Cotton Company

• 1950’s: “American” rule of reasonable use -Landowner has free use at point of extraction

• 1970’s: FICO v. Bettwy (& City of Tucson) Water may not be pumped from one parcel to another underlain by common aquifer

• 1980: Groundwater Management Act (GMA) ***• 1981: Chino Valley v. Prescott – Not an unjust taking -

ones right to GW is to its “right of use”, not to the water itself

• 1999: federal reserved rights may extend to GW5

“There were three issues over which great struggle ensued:

1. Who should have the right to pump groundwater and how much?

2. What methods should be used to reduce the groundwater overdraft?

3. Should groundwater management occur at the state or local level? Agriculture always has been the biggest groundwater user. Farmers

wanted to keep things as they were, and proposed anyone who wanted to initiate pumping should have to purchase an existing right.

The Mines proposed that each acre in a groundwater basin receive a “quantified right” to water. Agriculture wanted farmlands to be purchased and taken out of production, thus reducing groundwater pumping. The mines and cities felt everyone’s pumping should be reduced by the same percentage. Farmers, the biggest water consumers, would take the biggest hit.”

History of Water Management in Arizona, ADWR web site

AZ GW Issues – 70’s



Arizona adopted the Groundwater Management Act in 1980

The act reallocated groundwater resources in the state based on use and has a goal of “safe yield” by the year 2025.

Safe yield is where the amount of groundwater withdrawn equals total aquifer recharge.

Pinal : Planned depletion

7


GWMA - GoalsThe Code has three primary goals, to:• Control severe overdraft occurring in many parts of

the state.• Provide a means to allocate the state's limited

groundwater resources to most effectively meet the changing needs of the state; and

• Augment Arizona's groundwater through water supply development.

The Code established three levels of water management:• The lowest level of management - applied statewide• Irrigation Non-Expansion Areas (INAs)• Active Management Areas (AMAs)

8


GWMA – Key Provisions• Scheduled preparation of a series of five

water management plans for each AMA• Prohibited irrigation of new agricultural lands

within AMAs.• Established a program of GW rights and permits.• Developed conservation targets and other

water management criteria.• Defined a program requiring developers to demonstrate

a 100-year assured water supply for new growth.• Required users to meter/measure water pumped

from all large wells – exempted small private wells• Initiated reporting of annual water withdrawal and use

Fourth Water Mgmt Plan info: ADWR9


Types of AZ GW rights

Non-exempt wells (>35gpm)• Grandfathered rights

– Irrigation rights (1975-1980)– Type 1 rights

• Newly retired non-irrigation, < 3af/ac, tied to land

– Type 2 rights• Previously retired non-irrigation,

transferable within AMA

• Service area rights– Utility pumping can increase

• Withdrawal permits– Various types of uses

TAMA historical pumping

10


Assured Water Supply

A developer must demonstrate that:• Water of sufficient quantity and quality is available to sustain

the proposed development for 100 years,• The proposed use is consistent with the management plan

(e.g., it adheres to conservation requirements and it does not hinder achievement of safe-yield), and

• The water provider has the financial capability to construct water delivery and treatment systems to serve the proposed development.

Alternatively, the developer can locate the proposed development within the service area of a city, town, or private water company with a Designation of Assured Water Supply from ADWR.

Forces consideration of alternative supplies: effluent, CAP, conservation11

• Reasonable and beneficial use unrestricted• GW may not be transported away from a

GW basin; limited transfers within sub-basins• Adequate Water Supply

– Sufficient water supplies for 100 yrs– May be entirely pumped groundwater– Without this designation, developer must disclose this

lack of adequate water supply in all promotional items

GW Management Outside of AMA’s


• Prohibits most transfers of GW betw. hydrologicallydistinct GW sources.

• Exceptions relate to pre-existing transfers to PhxAMA from 3 basins (circled).

modifying GW law subject to more political rather than legal concerns.

GW Transportation Act of 1991



SubflowIn a landmark case, Maricopa Co. Municipal Water Conservation District

v. Southwest Cotton Company (1931), the Arizona Supreme Court identified characteristics of an underground stream and adopted a test to determine the appropriability of a stream's "subflow."

The Court defined "subflow" as "those waters which slowly find their way through the 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."

The Court described the test of appropriability of the subflow with a question: "does drawing off the subsurface water tend to diminish appreciably and directly the flow to the surface stream?" If so, the water is appropriable "subflow," otherwise underground waters are not appropriable

Still TBD: are wells located outside the subflow zone that are pumping water from a stream or its subflow based on its cone of depression intercepting appropriable water?

14


Saturated floodplain Holocene alluvium

• SW Cotton/Gila II-IV (1993-2000): wells in the saturated floodplain Holocene alluvium (SFHA) tap appropriable subsurface water 198 Ariz. 330, 9 P.3d 1069

Questions:• Can saturation be assumed or must it be proven?• Do stream banks saturated by effluent count?• Are wells that penetrate confining layers included?• Should saturation be determined today or under pre-development conditions?

• Did not discuss how the floodplain is determined15

Gila River near Safford

Arizona Water Issues © 2012 - The University of Arizona – HWR203 16

The exempt well dilemma


Registered wellsADWR

Pinal/Picacho Basin Detail



AZ GW Management Issues

• GMA only applied to high use basins• Each AMA treated differently• Native American Water Rights not quantified• Basin transfer and Water Banking not clear• Separation of surface and groundwater is not always

distinct.• Proliferation of wells near streams• Inconsistency betw. ADWR rules & evolving GW law• Some would say that there are too many ways to

satisfy safe yield requirement.

19

• 1952: McCarren Amendment – allowed Federal rights to be adjudicated in a state court

Extra Slides



Interactive GW-SW regulation

Future issues:• Find ways to preserve GW use while minimizing the impact on

flowing streams.• Develop better methods for recovering stored water.

– Who loses if less comes out than is put in?• Clarify the rights of the water recharger and existing adjacent

GW users.– How do you limit predatory pumping of common waters?

• Re-examine the role of the private water company in water management.– Cross fire between ADWR (maximiaze conservation) and AZ Corporate

Commission (minimize rates)• NOT: develop more intractable GW legislation

21


Interactive Groundwater/Surface water regulation in AZ, M.J. Pearce, SWH 2(4)

What was this article about?Recall for us how prior appropriation works?What is an “assured water supply”?What is “safe yield”?What is the “Saturated Floodplain Holocene Alluvium” (SFHA)?Why is it important?What are some major provisions of the 1980 GWMA?Which branches of government have become involved in GW-SW

appropriation issues?What other water supplies are being considered because of the 1980

GWMA?What are some advantages to Arizona’s GW recharge program?

22

Reclaimed Water

• APS vs. Long – case involving conflict between rancher and PV

nuclear plant’s use of discharged waste water– AZ Supreme Court: neither GW or SW

• A public resource, subject to regulation• Up to legislature to determine rules• Can be sold & traded• See: Arroyo, 2009


“Final” Map - SPBased on:• Geology

– NRCS soil survey maps of floodplain Holocene alluvium

• Hydrology– “Fully saturated”

• History– 1935 aerial photos

• Cone of depression– Cannot affect FHA


Wet Beaver Ck @ Verde


AGS DM-RM-3dGreen = Holocene

Yellow = Pleistocene


Subflow

http://www.supreme.state.az.us/wm/bulletin/InterlocutoryAppeals.htm

26

100%subflow

mixed GW-subflow

Groundwater Policy - Sahraweb.sahra.arizona.edu/education2/azwater/docs/lesson5b/...Management Act...

Documents

Transcript of Groundwater Policy - Sahraweb.sahra.arizona.edu/education2/azwater/docs/lesson5b/...Management Act...