Local group staying afloat on water laws
There are two kinds of water in Arizona: Surface water and groundwater, said Clyde Halstead, senior assistant city attorney for the City of Prescott.
“They are legally distinct, even though you’ve probably heard a lot of seminars here that there’s really not much of a distinction between them,” Halstead said at the Saturday, Nov. 9, Citizens Water Advocacy Group meeting.
Halstead, who specializes in water and environmental law and litigation, said that when it comes to surface water, we all own it and more or less license or lease it for people to use, something that started in 1864 with the Howell Code. Nearly 50 years later though, surface water became over appropriated and in 1910, the Camp Decree was issued managing the appropriation of the Salt River and to some extent the Verde River, he said.
At the time, the Verde River wasn’t being used by too many people, but started being used heavily in the 1960s, resulting in the state legislature at the time writing a new law allowing for general adjudication of the stream rights in Arizona, Halstead said. The Salt River Project, the major water rights user, then filed the Gila Adjudication which involves all surface water in the state, he said. That manages the water in the Gila River and all its tributaries which are the Agua Fria, Verde, Santa Cruz, Salt and San Pedro rivers as well as all their tributaries, Halstead said.
That began in 1974 and is still ongoing.
“There are 25,000 individual parties for the lawsuit, there are 80,000 individual water rights claimed,” Halstead said. “It has, so far, spawned nine Arizona Supreme Court decisions, one United States Supreme Court decision. It’s been 45 years and we’ve almost got the procedures to figure out who should be in the case.”
Jurisdiction and whether people have been served correctly have been worked through, and now it’s getting down to whether wells should be in the adjudication or not, he said.
Regarding the Verde River, the subflow zone, the water that runs underground with the river, has been worked out, and it’s agreed that everyone who has a well in that zone are in the adjudication, Halstead said.
However, since the Arizona Supreme Court determined that wells existing outside the subflow zone but affecting the area by a certain level are in the adjudication, testing has to be done to determine who is and who is not in the adjudication, he said. It won’t be worked out anytime soon, Halstead said.
As for groundwater, it’s owned by the overlying land owner and regulated by the state, he said. There have been several attempts to regulate groundwater, resulting in the 1980 Groundwater Management Act, which Halstead said is the only groundwater regulation system he’s ever known.
There are three levels of groundwater management, he said. The first is nothing other than some regulations on how one can build a well and well spacing and the second is the Irrigation Non-expansion Area which stipulates that irrigation can’t be expanded, Halstead said. There are 43 Irrigation Non-expansion areas, he said.
The third level of management is the Active Management Area (AMA), Halstead said. The five that are in the state are Phoenix, Santa Cruz, Tucson, Pinal and Prescott, he said.
“They all have their own regulations, they all kind of work a little bit differently but the overarching scheme is the same: they all have a goal for that management area,” Halstead said. “For Phoenix, Tucson and Prescott, the goal is for us to reach and thereafter maintain safe yield as of 2025.”
Though outside of Tucson, none of the AMAs look like they will hit safe yield by then, the City of Prescott does have an assured water supply, he said.
The rules to obtain a certificate or designation of assured water supply is to show there is a 100-year supply of water that is legally, physically and continuously available, along with showing that there is a financial capability to provide the water, he said.
“The Assured Water Supply program is a way for those purchasing homes in the AMAs to be certain that water will exist for their home,” Halstead said. “We are the only one in our AMA that does have a designation of Assured Water Supply.”
Prescott’s supply consists of about 16,400 acre-feet of water, Halstead said. One acre-foot of water is 325,851 gallons of water.