New well permits safe — for now
Arizona residents can continue to get well permits without fear of immediate change from a recent Supreme Court ruling.
It probably will be six months before the Arizona Department of Water Resources (ADWR) comes up with a new test for wells that tries to determine whether they actually use surface water, department Chief Hydrologist Greg Wallace told the Yavapai County Water Advisory Committee.
The Supreme Court ruling will have far-reaching impacts on Arizona wells near rivers and streams. In Yavapai County, the Verde Valley will be most affected, because so many wells are near the Verde River.
Basically, the ruling will require wells near streams to submit to the state’s "first in time, first in right" surface water law.
Arizona has separate water laws for surface water and groundwater. But courts dating back to the 1930s have had a difficult time figuring out where surface water ends and groundwater begins.
The Supreme Court has come up with two major standards for where surface water begins: within the saturated Holocene-era alluvium (clay, sand, etc. deposited by running water), and the cone of depression test.
Wells within the saturated Holocene alluvium are using surface water, and therefore are now subject to the surface water rights doctrine. The court left it up to ADWR to create maps that show which wells sit within that alluvium. ADWR has hired a registered hydrologist to generate detailed maps, Wallace said.
Wells outside the alluvium still could be subject to surface water laws, if they meet the cone of depression test. Again, the court left it up to ADWR to find an appropriate test. The agency is compiling a list of top water experts who could help.
ADWR will ask the court to approve its new surface water testing procedures before implementing them, Wallace said. He hopes that request will take place in about six months.
If a well’s water quality is different from a nearby stream, it will be hard to prove the well is using surface water, Wallace told the committee.
And the well must take water directly from a stream to be using surface water, Wallace said. That’s different than water that eventually diminishes a stream, he noted.
County water committee members said they want their technical administrative committee and local Natural Resources Conservation District offices to consider creating a fact sheet about the court ruling and its impact on wells.
ADWR is hoping a coalition can develop such a fact sheet, since ADWR has been sued in the past for allegedly giving legal advice, said Herb Dishlip, ADWR assistant director for statewide planning.
Many Arizona well owners received letters from the courts two decades ago, warning them to file a surface water claim. They already are among the approximately 70,000 people and companies that are party to the Gila River system adjudication procedure, Dishlip noted.
New well owners will periodically receive summons from the court asking them to join the massive adjudication process, Dishlip said.
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