Sat, Sept. 21

Verde water cases to get hearings

Salt River Project's case against three Verde Valley water users is scheduled for two hearings this month.

The case against the Kovacovich and Wiertzema families and NJB Ranch, owned by the Jordan family, all in the Camp Verde area, stems from SRP's contention that wells the three operate are drawing water from the subflow zone of the river.

Under state law, water in a stream's subflow zone, although flowing underground, beneath and beside the stream channel, is treated the same as surface water flowing in the channel. The rights to surface water are on a "first in use, first in right" basis.

SRP originally filed suit on 11 Verde Valley users in 2004 for taking water historically used by SRP and other downstream users. Eight of the cases have settled out of court.

On April 15, the court in Maricopa County will hear arguments from the attorneys for the three families, asking that the court, essentially, put an end to SRP's suit.

The Kovacovich, Wiert-ema and Jordan families have argued throughout the proceedings that SRP's suit is forcing them to spend outrageous sums of money to determine issues that should be left to the larger statewide adjudication case, such as the complex issue of where surface water ends and groundwater begins.

The basis of their request for summary judgment is that their wells are not taking subflow, and they are being singled out from the broader statewide adjudication case.

They also argue that the court had previously stated it would not allow such suits unless there was "clear and convincing evidence" that the wells were taking surface water. The disputed wells are all more than 200 feet deep.

If the judge in the case, Eddward Ballinger, rules in favor of the three defendants, the case could come to an end. If he rules in SRP's favor, the parties are scheduled for a three-day hearing at the end of the month to determine the fate of their wells.

Among the numerous arguments of the three families is the contention that their wells, although drilled through, or drilled adjacent to, the subflow zone, are too deep to be taking water from the subflow.

To that, SRP has argued there is no definitive limit to the depth of the subflow if there is not a clearly defined, non-permeable layer separating the subflow from groundwater.

In the case of the Verde wells, SRP argues they are drawing from the Verde Formation, a permeable layer of limestone rock beneath the river's subflow, which when drawn from has the effect of drawing down water above it, in the subflow.

The argument over whether or not the Verde Valley families are being singled out, and that there is "clear and convincing evidence" they are drawing subflow, may be more a matter of semantics than substance.

The previous judge in the statewide adjudication case had ruled that all wells located in the subflow of a stream, regardless of depth, were subject to having a surface water right, except those where the owner could prove the water coming from the well was coming from formations below an "impervious formation."

The two sides are arguing over the language used for the burden of proof in the phrase "clear and convincing."

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