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Sat, Aug. 24

State court ruling will have <br>major impact on well users

A recent Arizona 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 there.

Basically, the ruling will require wells near streams to submit to the state’s surface water law.

Some Yavapai County Water Advisory Committee members estimated that half or even all of the 6,600 Verde Valley wells could be affected by the court ruling, depending on how the Arizona Department of Water Resources implements the ruling.

The affected wells likely include all the production wells that serve Verde Valley municipalities, said Herb Dishlip, the Arizona Department of Water Resources (ADWR) assistant director for statewide planning.

"It’s going to be a major impact to folks along the river, and folks that think they are safe may not be safe," committee member Andy Groseta said Wednesday during a committee discussion of the ruling. "This is probably the biggest bombshell to drop on the Verde Valley."

The ruling is part of the gargantuan Gila River General Stream Adjudication, which has been in court for decades. While a separate ongoing adjudication process is covering the Little Colorado River system, the court ruling also affects it.

The ruling will affect wells along the major rivers that originate in Arizona such as the Gila, Verde, Salt, San Pedro, and Little Colorado. Among the Verde River Basin tributaries, Dishlip estimated that the area along Oak Creek would have the highest number of affected wells.

The ruling does not affect Prescott Active Management Area wells nearly as much as the Verde Valley, Dishlip said. However, it likely will affect Yavapai County wells near perennial and intermittent stream sections, including parts of Granite Creek, Lynx Creek, the upper Agua Fria River, and the Hassayampa River.

The Supreme Court upheld a lower court definition of where surface water begins and groundwater ends.

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 committee’s technical advisory group explained in a summary of the ruling.

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 "first in time, first in right" water rights doctrine. Holocene is the present geologic period, dating back only 11,000 years since the last glacial period.

Right now, no maps in Yavapai County identify the Holocene alluvium. ADWR will conduct a hydrographic survey and identify wells it thinks sit within that alluvium, Dishlip said. Well owners will have an opportunity to protest when the department publishes its report, he said.

Wells outside the alluvium still could be subject to surface water laws, if they meet the cone of depression test. The court left it up to ADWR to find an appropriate test.

The court stated that wells are in surface water if the "cone of depression caused by its pumping has now extended to a point where it reaches an adjacent subflow zone and by continual pumping will cause a loss of such subflow as to affect the quantity of the stream."

ADWR may convene a blue-ribbon task force of top hydrologists to help it develop parameters for the cone of depression test, Dishlip said.

When the state defines wells that meet the cone of depression standard, the ruling could end up affecting every Verde Valley well, committee Coordinator John Munderloh said.

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.

Some attorneys are advising everyone else with a well to file a surface water claim; some aren’t.

Before the court ruling, Arizona residents could drop a well anywhere without owning surface water rights. And "exempt" small residential wells were exempt from proving that water was even available, always receiving a state permit.

There has been talk about leaving exempt wells out of the number affected by the ruling, but that hasn’t happened yet, Dishlip said.

Still, he has a hard time believing the state would go out and cap existing wells.

Committee members worried Wednesday about people who seek new well permits, and how they will be warned about the uncertain future. It can cost $50,000 to $1 million to drill a well, Dishlip noted, so it’s not an action someone takes lightly.

Dishlip said ADWR will still issue well permits for now, but its legal counsel is warning it to be careful not to give legal advice, so officials haven’t decided what to tell people, if anything.

Committee members brainstormed about ways they can help inform the public about the court ruling and its impacts. Well permit approvals do go through the county government system, so that may be one opportunity to inform the public.

Committee members will talk more about it during next month’s meeting, when ADWR experts come to explain the issues more.

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