Fri, Jan. 17

Water 104: Gila River Adjudication

The answer to both of those questions lies in what is known as the general stream adjudication, a legal proceeding of enormous impact.

The general stream adjudication, whose full title is “The General Adjudication of All Rights to Use Water in the Gila River System and Source,” is the most comprehensive judicial proceeding involving water ever initiated in Arizona.

It is a legal action designed to determine, once and for all, who has the right to what and how much water in the Gila River system. Keep in mind that the Verde River flows into the Salt River and the Salt River flows into the Gila River. Therefore, our watershed is a tributary of the Gila River.

The Gila adjudication has about 84,000 claims filed by about 24,000 parties and will affect every entity within the Gila River watershed that uses water, whether it be a lone residential well or the larger water systems owned by the cities, mines and farmers.

Unlike a class action lawsuit with one defendant and numerous claimants, this case places all parties in the role of being both claimant and defendant.

A similar adjudication is taking place within the Little Colorado River watershed. Between the two proceedings, virtually the entire watershed of the state is being adjudicated.

When completed they will quantify (say how much) and prioritize (decide the order of claims) of virtually all the water rights in the state. That is what adjudication does.

The proceedings began in 1974 when the Salt River Water Valley Users Association, better known as its parent company, SRP, filed a petition to determine the water rights in the Salt River above the Granite Reef diversion dam, excluding the Verde River. Two years later, SRP would file for adjudication on their Verde River claims.

State statutes allow for any party to seek adjudication of their water rights.

This move by SRP prompted several copper mines and other agricultural water users to also file petitions. Eventually, the scope of the claims, petitions and intervening motions took in most of the state’s watersheds.

In 1981, the Arizona Supreme Court consolidated the separate cases involving the Gila River into a single proceeding and moved the case to Maricopa County Superior Court.

During this time, two similar lawsuits were brought by Arizona Indian tribes in federal court. Their claim was that the state of Arizona had no right to adjudicate Indian water claims.

The first court to hear the Indian claims disagreed with the tribes and said the states did have the right to adjudicate their rights. A second court found in favor of the tribes. Eventually, the U.S. Supreme Court determined that Arizona had the right to determine the Indian’s water rights, but only if the adjudication was entirely comprehensive.

This made the Gila River case issue extremely more complex.

The court has been slowed by changes in the adjudication statutes in 1979 and again in 1995. Each time the law changed, the parties involved have challenged one portion or another, causing delays.

The Indian water rights issues have also been a cause for delay. To move the proceedings along many parties have been trying to resolve the Indian issues outside of court.

To date, several tribes including the Ak-Chin, Salt River Pima-Maricopa, Fort McDowell, the Salt River portion of the San Carlos Apache and the Yavapai-Prescott, have implemented congressionally enacted settlements.

The largest settlement still pending involves the Gila River Indian Community. Senators John McCain and John Kyl have submitted a bill in Congress to settle the tribe’s claims. It is reported to be the largest single water rights settlement in U.S. history. The settlement would allocate 653,500 acre-feet to the tribe. That is enough water to supply a city of 3 million people.

Despite the slow pace of the adjudication, many complex and tough issues have been decided. Various appellate courts and a “Special Water Master,” appointed by the court, have gone a long way toward sorting out claims and thorny legal issues.

The court is also deciding on a number of other smaller issues at the same time. It is one of these other issues the court is dealing with, which affects the wells in the Verde Valley.

During the proceedings, the Arizona Supreme Court accepted six interlocutory appeals. An interlocutory appeal is when a higher court asks a lower court to decide an issue which cannot be decided on the facts involved in a case, but whose resolution is needed to arrive at a final decision in the larger case.

In this case, the appeal regarding the Verde involved what test would be used to determine whether water in a particular well was coming from the subflow of the river. If a well is tapping into the subflow of the river or stream then the water being taken from that well is considered to be surface water and therefore appropriable by whomever has the right to that surface water.

In other words, that water would no longer be groundwater, and no longer free for the taking by the owner of the land that overlies it.

The test case for this appeal is based on issues in the San Pedro watershed in southern Arizona.

The court has determined that any well that taps into, or is determined to be drawing from the “saturated floodplain Holocene alluvium,” is appropriating surface water. It will be up to the Arizona Department of Water Resources (ADWR) to determine where the saturated floodplain is located and how deep it goes.

When the court refers to the Holocene alluvium, they are referring to the geologic formation formed by loose sand and rock that has been deposited beneath the river’s floodplain in the last approximate 10,000 years. In geologic terms that recent period of time is known as the Holocene period.

The court also said that although a well is tapping into the Holocene alluvium, if the well has a “de minimis” effect, meaning little or no effect on the flow of the river, it could be exempted from case.

The final decision concerning residential wells in the Verde Valley that tap into the subflow of the Verde River has yet to be issued.

As for the issues in the case that involve the Prescott area, one must remember that SRP, and its division the Salt River Valley Water Users’ Association claims to have the rights to the majority of, if not all of, the surface flow of the Verde River.

Consequently, SRP would claim that any pumping of the Big Chino that has a detrimental effect on the flow of water in the Verde River also has a detrimental effect on their water customers in the Phoenix area.

One thing is for sure — whatever the eventual outcome of the adjudication — it is not likely to be resolved anytime in the near future. All the decisions of the court, and the hydrologic findings of the ADWR, are all subject to the appeal process.

It is anybody’s guess how long it will take, but be sure that when it is completed most of the questions about water rights in Arizona will at last be answered.

The case has proved to be beneficial in one major aspect. The adjudication process has brought many warring parties to the negotiation table in an attempt to resolve their own differences rather than waiting to see how the court resolves the issues for them.

As we see how the Gila River adjudication is attempting to answer the surface water rights issues, we need to look at how the 1980 Groundwater Management Act attempted to answer the groundwater problems in the state.

Get ready for some mud slinging.

Next segment: The 1980 Ground Water Management Act: Arizona’s radical groundwater legislation.

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