Groundwater Management In Arizona

1. Groundwater Management In Arizona Nicole D. Klobas Deputy Chief Counsel August 21, 2019

2. Arizona Water Supply

3. Arizona’s Water Use By Sector

4. What Is Groundwater? • Arizona statute (A.R.S. § 45-101): • “‘Groundwater’ means water under the surface of the earth regardless of the geologic structure in which it is standing or moving.” • “Groundwater does not include water flowing in underground streams with ascertainable beds and banks.”

5. Groundwater or Surface Water? • Arizona Supreme Court (1931): • The “subflow” of a surface stream is surface water and not groundwater. • The Court defined subflow as “those waters which slowly find their way through the sand and gravel constituting the bed of the stream, or the lands under or immediately adjacent to the stream, and are themselves a part of the surface stream.”

6. Groundwater or Surface Water? Presumptions: • Arizona Supreme Court (1931): Water pumped from a well is presumed to be groundwater and not surface water. • The presumption can be rebutted with clear and convincing evidence that the pumping diminishes “directly and appreciably” the flow of a surface stream. In that case, at least some of the water pumped from the well is subflow. • Arizona Supreme Court (2000): A well located within the “subflow zone” of a surface stream, as established by the adjudication court, is presumed to be pumping subflow and is to be included in the general stream adjudication. • The presumption can be rebutted by a preponderance of the evidence.

7. Groundwater vs. Surface Water • Since territorial days, Arizona courts and Legislature have applied different laws to surface water and groundwater. • Surface water has been governed by the doctrine of prior appropriation (first in time, first in right).

8. Groundwater Law Prior to 1980 • Prior to 1980: Groundwater was governed by common law rule that groundwater is the property of the overlying landowner. • Only two restrictions on use of groundwater under common law: • Groundwater must be put to a reasonable use. • Groundwater may not be transported away from the overlying land if it will cause injury to other lands. • Regulations enacted during 1940’s: • 1945 – Legislature passed law requiring all irrigation wells to be registered. • 1948 – Legislature passed law prohibiting irrigation of new lands with groundwater within ten “critical groundwater areas.”

9. Groundwater Law Prior to 1980 1950s -1970s: • Groundwater withdrawals continued to increase. • Federal government continued to pressure Arizona to enact effective groundwater legislation as a condition for financing construction of the CAP. • Arizona Supreme Court issued decisions limiting transportation of groundwater by mines and City of Tucson.

10. 1980 Groundwater Management Act • Formed the Arizona Department of Water Resources • Established Active Management Areas (AMAs) • Prescott AMA • Phoenix AMA • Pinal AMA • Tucson AMA • Santa Cruz AMA • Established Irrigation Non-expansion areas (INAs) • Joseph City INA • Harquahala INA • Douglas INA

11. 1980 Groundwater Management Act • The Act is still in effect today (with certain amendments). • The constitutionality of the Act has been upheld by the Arizona Supreme Court and Federal Courts. • The Act imposes certain regulations state-wide, but most regulations are limited to areas designated as “irrigation non-expansion areas” and “active management areas.”

12. Well Drilling Requirements • “Notice of Intent” before drilling or modifying any well • Licensed Well Driller is Required • AZ well driller list: http://www.azwater.gov/DrillersList/ • Meet minimum well construction standards • If constructed after 1980, well should be registered (after a well drilling card was completed) • For questions call Wells & Permitting Unit: 602-771-8527

13. Transportation of Groundwater ADWR staff with residents of McMullen Valley (2016)

14. Irrigation Non-Expansion Areas

15. Groundwater Withdrawals in AMAs In an AMA, a person may withdraw groundwater only: • from an exempt well (pump capacity ≤ 35 gpm and groundwater used for non-agricultural purpose) OR • pursuant to a groundwater withdrawal authority.

16. Exempt Wells (≤ 35 gpm) • Only one exempt well may be used to serve the same use at the same location. • Exempt well withdrawals for a commercial purpose limited to 10 acre-feet per year. • May not be drilled on land within 100 feet of the distribution system of a water provider with a designation of assured water supply without the provider’s consent (with certain exceptions). • Before drilling, deepening or replacing an exempt well, a person must file a Notice of Intent (NOI) to drill with ADWR and obtain a drilling card. • Must be drilled by a licensed well driller and must be constructed in compliance with ADWR’s well construction standards. • Impacts on other wells are not considered.

17. Non-Exempt Wells • In an AMA, a person may withdraw groundwater from a non-exempt well only pursuant to one of the following withdrawal authorities: • A grandfathered groundwater right. • A groundwater withdrawal permit. • A service area right. • A person withdrawing groundwater from a non-exempt well must: • Meter the withdrawals and report the amount withdrawn each year to ADWR. • Pay a groundwater withdrawal fee of up to $5.00 per acre-foot to ADWR. • Before drilling a new non-exempt well, a person must obtain a well permit from ADWR.

18. Change in Well Information • When ownership of a well changes anywhere in the state, a Change of Ownership form must be filed with ADWR. • ADWR has an online tool to find well registry owner information, associated water rights, and pumping data.

19. Well Spacing Rules • An application for a permit to drill a new non-exempt well in an AMA must be denied if the proposed well would cause unreasonably increasing damage to surrounding land and other water users. • ADWR has adopted rules defining unreasonably increasing damage: • The probable impact of the withdrawals from the proposed well on any well of record will exceed 10 feet of additional drawdown after the first 5 years of operation of the proposed well (unless the impacted well owner consents); or • The proposed well will likely cause the migration of contaminated groundwater to another well (unless the impacted well owner consents); or • The proposed well is in an an area of known subsidence and will likely cause additional land subsidence.

20. Well Spacing Rules – Replacement Wells in the Same Location • A proposed non-exempt well that will replace an existing non-exempt well is exempt from the well spacing rules if: • The replacement well will be located within 660 feet from the original non-exempt well. • The replacement well will not annually withdraw an amount of water in excess of the maximum annual capacity of the original well.

21. Grandfathered Groundwater Rights • Grandfathered Groundwater Rights are groundwater withdrawal rights based on historic pumping (1975-1980) • 3 types of grandfathered groundwater rights: • Irrigation grandfathered rights • Type 1 non-irrigation grandfathered rights • Type 2 non-irrigation grandfathered rights

22. Irrigation Grandfathered Rights (IGFR) • An IGFR is a right to use groundwater to irrigate 2+ acres of land for agricultural purposes. • Only acres of land irrigated with groundwater from 1975-1980 have an IGFR. An IGFR is appurtenant to the land and cannot be used off the land. • Lands in an AMA that were not irrigated between 1975-1980 cannot be irrigated with any water (except pre-1980 surface water rights).

23. Non-Irrigation Grandfathered Rights • Type 1: • A right to withdraw groundwater for a non-irrigation purpose on retired IGFR land. • A type 1 right is appurtenant to the retired IGFR land and there are restrictions on where the groundwater may be pumped and used. • Generally limited to 3 acre-feet per acre. • Type 2: • A right to withdraw groundwater for a non-irrigation use anywhere in the AMA. • Type 2 rights were issued to persons withdrawing groundwater for non-irrigation uses between 1975-1980. • Maximum annual volume of a type 2 right is the highest volume pumped by the person in any year from 1975-1980.

24. Groundwater Withdrawal Permits • A person may apply to the Department for a groundwater withdrawal permit. • Groundwater withdrawal permits allow the permit holder to withdraw groundwater for a non-irrigation use for a prescribed period of time if certain conditions are met. • Types: • Hydrologic testing permits (10 af or less/up to 1 year) • Poor quality groundwater permits • Temporary electrical energy generation permits for emergency situations • Mineral extraction permits • Drainage and dewatering permits • General industrial use permits

25. Service Area Rights • A service area right is a right of a city, town, private water company or irrigation district to withdraw groundwater for delivery to customers within its service area. • The right expands as the service area expands.

26. AMA Management Plans & Goals 5 Management Periods through 2025 *Safe-yield is a long-term balance between the amount of groundwater being withdrawn in the AMA and the amount of natural and artificial recharge in the AMA. • 5 Management Goals • Phoenix, Prescott & Tucson AMAs: • To achieve safe-yield* by the year 2025 • Pinal AMA • To preserve Agriculture economy for as long as feasible, while considering the need to preserve groundwater for future non-irrigation uses • Santa Cruz AMA • To maintain a safe-yield* condition in the AMA and to prevent local water tables from experiencing long term declines • 5 Management Plans • Contain the details for the implementation of the Groundwater Management Act in each AMA • Conservation Programs for each sector (Ag., Muni., Ind.) • Increasing conservation measures in each subsequent Plan • Progressing toward the AMA’s Management Goal

27. Assured Water Supply Program • Inside AMAs • Established 1980; adopted 1995 • 100-year AWS Demonstration is required for ADRE to issue Subdivision Public Report: • Certificate of Assured Supply, or • Commitment of Service by a water provider with Designation of Assured Supply • Requires Public Notice Process

28. Underground Water Storage and Recovery Program • The Underground Water Storage and Recovery program (a.k.a. the “Recharge Program”) allows persons with surplus non-groundwater supplies to store the water underground and recover it at a later time for the storer’s use. • This is an increasingly important tool in the management of Arizona’s water supplies, particularly in meeting the goals of the 1980 Groundwater Management Code.

29. Underground Water Storage and Recovery Program A permit from ADWR is required to: • Store water underground. • ADWR will not issue a permit if the storage will cause unreasonable harm to land or other water uses. • An APP permit from ADEQ is required for effluent and certain types of surface water. • Recover stored water. • A recovery well must comply with ADWR’s well spacing rules. • The water recovered will be considered the same type of water that was stored.

30. Lakes Bill • With certain exceptions, a person shall not use water other than effluent to fill or refill a body of water for landscape, scenic, or recreational purposes • Body of water: has a surface area > 12,320 square feet and is filled after 1987. • Exception: a recreational facility open to the public and owned or operated by a governmental entity. (Ex: Lake Pleasant)

31. Water Exchanges • Arizona law allows a person to exchange water with another person - allows greater feasibility to use supplies without physical transport. • Both parties to the exchange must have the right to use the water they give. • The Giver Rule: water a party receives in an exchange is considered the same type of water the person gave. • Must either obtain a permit from ADWR or file a notice with ADWR, depending on the type of water. • Public notice and an opportunity to object required if any of the water is surface water (other than CAP water).

32. Arizona’s Water Management Success Population increased 6 fold Gross domestic income increased 19 fold Water consumption reduced 100,000 acre-feet

34. ADWR Online Tools • Imaged Records: Provides users access to view ADWR’s files, including: Wells-55, Groundwater Rights, Surface Water, Assured and Adequate Water Supply, Community Water System, and Statement of Claimant/Adjudication:https://infoshare.azwater.gov/docushare/dsweb/HomePage • ADWR Live Queries and Reports: Provides queries and reports to extract live data regarding Groundwater Rights, Surface Water Rights and Claims, and Adjudication Statement of Claimants: https://new.azwater.gov/gis • Wells Registry Web: Provides several different ways to search and obtain well information (well registry numbers, owner information, associated water rights, and pumping data): https://gisweb.azwater.gov/waterresourcedata/ • Surface Water On-line Noticing: Provides the ability to view notices of surface water applications. Customized Email Subscription Service available:http://www.azwater.gov/eforms/forms/SW_PermittingPublicNotice/Permitting_Public_Noticing.aspx

35. ADWR Online Tools • Groundwater Site Inventory (GWSI): Provides several different ways to search and obtain groundwater levels (including index wells and automated sites), accurate well locations, and view hydrographs https://gisweb.azwater.gov/waterresourcedata/ • Assured and Adequate Water Supply (AAWS) Web Application:Provides the ability to obtain data relating to the Assured and Adequate Water Supply program and an interactive mapping tool to determine existing and approved demands: https://new.azwater.gov/aaws • Hydrology eLibrary: Provides the ability to download maps, reports, or data generated by the Department: https://new.azwater.gov/hydrology/e-library

36. Questions? Shauna Evans Public Information Officer Phone: 602.771.8079 Email: smevans@azwater.gov Website: www.azwater.gov Twitter: @azwater