Wed, May 22

Water 103: Policy and Proceedings

Without a doubt the largest users of water in the state are the farmers. At last count they were estimated to use about 68 percent of the water in the state.

The second largest user is the cities and towns. They currently use about 25 percent of the water.

The third major party is the mines, which combined with other industries, use about 7 percent of the water. The copper mine’s economic engines have propelled many water rights issues to the forefront.

Last in use but not in importance are the native Indian tribes who posses 25 percent of the land in the state, but use less than 1 percent of the water.

The conflicting interest and changing agendas of these key players have been the moving force behind most of the key legal proceedings and legislative policies that affect water in the state.

To understand water issues in the state and in Yavapai County, one needs to be aware of the key pieces of the legislative and legal puzzle that make up our water laws.

All laws and legal proceedings address one of four categories of water. They are surface water law, groundwater law, effluent water law, and the "Law of the River" that governs water in the Colorado River.

In 1864, Arizona’s first territorial legislature adopted the rule known as the right of prior appropriation. This doctrine simply states "first in time, first in right." It means that the holder of the oldest claim is entitled to the full amount of water legally allocated to them before any subsequent claim holder receives any of their allotment.

This doctrine is still the primary rule governing surface water rights in the state.

Appropriations of surface water were not recorded until an act in 1893 that required the posting and recording of surface water withdrawals.

In 1912 Arizona became a state and seven years later enacted the Public Water Code, which except for some small changes is essentially the same today. It set forth the procedures for establishing a water right and required, among other things, that appropriations be registered with the water authority in place at the time. The state’s water authority has changed several times over the years. The current presiding authority is the Arizona Department of Water Resources.

The 1919 Public Water Code also stated "the waters of all sources, flowing in streams, canyons, ravines, or other natural channels, or in definite underground channels … belongs to the public and are subject to appropriation and beneficial use." The statement about underground channels is what brings issues of subflow and groundwater into play when discussing surface water rights.

What is deemed to be surface water and what is deemed to be groundwater is important because the law treats the two categories differently. The right of prior appropriation controls surface water, while groundwater is generally for the taking. There are, however, exceptions and limits for the taking of groundwater

The first major piece of state-enacted legislation to deal with the state’s groundwater was the Critical Ground Water Code of 1948. It gave the State Land Commissioner the power to designate Critical Groundwater Areas where new irrigation wells would be prohibited. The code did not, however, restrict the amount of groundwater that could be pumped by existing wells. This feeble legislation was the result of federal pressure to address the state’s groundwater prior to the approval of the Central Arizona Project.

Of all the water legislation that has affected Yavapai County, and the all other large municipal areas of the state for that matter, it is Arizona’s 1980 Groundwater Management Act. It has so great an impact that the subject will be dealt with separately in a later segment of this series.

A close second in its impact to the county’s water problems is the 1973 Endangered Species Act. One of the most far-reaching and controversial pieces of federal legislation ever enacted, its restrictions will have to be addressed in any regional solution to our water problems.

The latest legislative act to have an impact, and the one that eventually precipitated the conflict between the Verde Valley and Prescott, is the 1991 Groundwater Transportation Act. This act forbade the transportation of groundwater from one basin to another with three exceptions. In one of these exceptions, Prescott was given legislative approval to pump groundwater from the Big Chino aquifer.

As the state legislature and the Congress have impacted our water, so have the courts.

The 1908 U.S. Supreme Court ruling in Winters vs. United States established Native American water rights. It stated that in creating tribal reservations the congress also set aside enough water to meet the needs of those reservations.

This ruling established that any adjudication of water rights in a state would include the Indian tribes. If any state was ever affected by this ruling, it has been Arizona where 25 percent of the land is Indian reservation.

In 1910, a Federal District Court Judge in Arizona, Edward Kent, handed down what is known as the Kent Decree. It established, among other things, the right of the Salt River Valley Water Users Association, an entity of the Salt River Project (SRP), to the surface water in the Salt River watershed. The decree set up a hierarchy of rights based on the oldest claims getting the priority allotment.

The Colorado River Compact of 1922, eventually settled by the U.S. Supreme Court in 1963, established Arizona’s entitlement of 2.8 million acre feet (maf) of water from the lower basin of the Colorado River and established the need for a system to deliver that allocation.

The settlement of the Colorado River Compact in 1963 would lead to the final congressional approval of the Central Arizona Project (CAP). Funded in 1968, the $4.3 billion project has enabled the state to take advantage of its full allotment of Colorado River water by delivering 1.5 maf of water to the Phoenix and Tucson metropolitan areas.

The two cities have fueled their growth on the basis of this allotment. Ironically, this water in which the state has invested so much is, in fact, a junior claim on the Colorado River’s water, to be received during times of drought, only after California and Nevada have received their allotments.

The CAP allotments would also play a role in the eventual water fight within the county.

For anyone keeping score, an acre foot of water is the amount of water it takes to cover one acre of land, one foot deep — about 325,851 gallons.

Another critical case was Bristol v. Cheatham (II) that reversed an earlier ruling and established that the right to use ground water was a property right subject to the doctrine of reasonable use. This doctrine allowed a land-owner to pump as much water as could be put to reasonable and beneficial use on the "land from which it was taken."