LAW Files

How Federal Policies Affect the Allocation of Water

Use of the nation's freshwater resources attracts particular scrutiny in times of drought. When water is scarce, people are more aware of its importance. The mechanisms that govern the allocation and use of water are complicated, however. To examine how society uses its water resources, this Congressional Budget Office analysis addresses several major questions:
What are this country's water sources, and how is the water used?
What determines the underlying allocation, and does that allocation maximize water's potential benefits to society as a whole?
What policies might the federal government consider toward that end? View Document.

Arizona at the Crossroads: Water Scarcity or Water Sustainability

Authored by Karen Smith of the Grand Canyon Institute (24 pages), the report focus is on statewide water issues and the challenges Arizona faces concerning water resources. The analysis looks more closely at the economics of water supply and demand and suggests five specific recommendations for legislative action that, if enacted, will place Arizona firmly on the path of more sustainable water use. View Document.

Intergovernmental Agreement for the Sale of Water and Cost Participation (BCWR/Prescott/Prescott Valley)

This Intergovernmental Agreement for the Sale of Water and Cost Participation is dated  December 7, 2004, by and between the City of Prescott  and the Town of Prescott Valley. This agreement authorized the purchase of the JWK Ranch (later renamed the Big Chino Water Ranch) for the purpose of transporting water from the Big Chino aquifer to the Prescott Active Management area for use by Prescott and Prescott Valley. 

 View Document.

Tragedy of the Commons

Seminal essay by Garret Hardin addressing the necessity of social control of shared public resources. View Document.

2014-07-29 Arizona Water Rights Fact Sheet

Arizona's water law is based on the doctrine of prior appropriation, but it is administered based on a bifurcated system where surface water is regulated separately from ground water. There are basically four categories of water supplies available in Arizona: Colorado River water, surface water other than Colorado River water, ground water, and effluent. Each water supply is managed in a different manner. Colorado River water is allocated through the law of the river and Arizona's water banking program, surface water rights are based on "first in time, first in right," and groundwater rights vary depending on location. The Arizona water code is located in Title 45 of the Arizona Revised Statutes. Published by ADWR. View Document.

2014-07-29 Summary of Arizona Water Law and Management

Non-technical introduction to Arizona Water Law, from the ADWR Arizona Water Atlas, Appendix C, 14 pages. View Document.

2014-07-30 Layperson’s Guide to Arizona Water

This Layperson's Guide provides an overview of Arizona's complex and evolving water story – its history as well as the state's future challenge of providing water from a limited supply to a rapidly growing population – and some of the unique management strategies Arizona has developed to protect and extend its most precious resource. It is part of a series of guides published by the U of A. View Document.

2014-07-30 Overview of the Arizona Groundwater Management Code

Non-technical summary of the groundwater code. By ADWR, 4 pages. View Document.

A Critique of the Student Note Entitled “The Battle to Save the Verde: How Arizona’s Water Law Could Destroy One of Its Last Free-Flowing Rivers”

It is undoubtedly a rare thing for a Student Note to evoke such a visceral reaction that it prompts a detailed critique on its merits and underlying bias. The Note entitled, "The Battle to Save the Verde: How Arizona's Water Law Could Destroy One of Its Last Free-Flowing Rivers," published by the Arizona Law Review in Spring 2009, is such a Note. Like other published Notes, it is offered as an objective work of legal scholarship designed to influence the bar, the bench and other readers on the relative merits of an existing legal controversy—in this case, the Big Chino Water Ranch Project (Project).
But, in fact, as this critique will demonstrate, the Note is an advocacy piece for opponents of the Project that is both inaccurate and incomplete, thereby failing to fairly and objectively evaluate the legal validity of the issues presented. Each of these flaws alone is sufficient to mar the credibility of the Note but, in concert, render the Note wholly unreliable. Written by Colleen Auer, Deputy Town Attorney, Town of Prescott Valley. View Document.

Administrative Code for Arizona Department of Water Resources

Arizona Administrative Code, Title 12 Chapter 15: Department of Water Resources. Describes the regulations used by ADWR to administer Arizona water law. View Document.

Arizona Rivers Navigability Status

Summary report from American Whitewater: "The Arizona Navigable Stream Adjudication Commission ("ANSAC") has determined that, with the exception of the Colorado River, none of Arizona's watercourses is navigable. Ownership of the streambeds of non-navigable watercourses rests with either the federal government or private parties. Although the public likely enjoys recreational rights on waters above federally-owned streambeds, it has no such right to access waters above privately-owned streambeds." View Document.

Assured and Adequate Water Supply 101

Slides from a presentation by ADWR explaining the Assured Water Supply and the Adequate Water Supply programs. 27 pages. View Document.

Enhancing the Understanding and Importance of Granting Instream Flow Water Rights in Arizona

Because of the rising demand for water supplies in urbanized, agricultural, and industrialized Arizona, water has been diverted from many rivers and streams to serve socio-economic needs. These diversions have often resulted in diminished stream flows and, when not properly managed, have had a negative impact on the riparian resources of Arizona's rivers and streams. To achieve a better economic and environmental balance in water allocations between instream and offstream uses, a more comprehensive understanding of the values of instream flows and the laws and regulations that affect allocations of these flows is needed. View Document.

In Search of Subflow: Arizona’s Futile Effort to Separate Groundwater from Surface Water

Article from the Arizona Law Review by Robert Glennon analyzes the Gila Adjudication effort to define subflow. View Document.

Instream Flow Water Rights: Arizona’s Approach

Paper by Herb Dishlip, then Director of ADWR, presented at a symposium in 1988. View Document.

Legal Implications of Rainwater Harvesting for Existing Surface Water Right Holders

Summary of rainwater harvesting policies and water laws in Arizona, New Mexico, Texas, and Colorado. 28 pages. View Document.

Managing the Interconnecting Waters:The Groundwater-Surface Water Dilemma

States confront a difficult and complex task when defining and managing the hydrological connection between groundwater and surface water. The issue has broad management implications. At stake is the ownership and control of water, a driving issue in western politics. By Joe Gelt of the U of A WRRC. View Document.

Proposition 400

Contents of successful initiative requiring effluent from new subdivisions be dedicated to safe yield. View Document.

Proposition 401

Contents of successful initiative requiring a public vote on certain public projects costing over $40M. View Document.

Rainwater Harvesting Policy in the Southwest

A legal review of rainwater harvesting policies in Colorado, Utah, Arizona, and New Mexico. 2010. 26 pages. View Document.

Response to Critique…

We don't like bullies. Adults shouldn't abuse children, and lawyers shouldn't pick on law students—unfairly. Yet, that's what happened in these pages in February, when Colleen M. Auer, an attorney in Arizona, attacked a former student of ours, Meredith Marder, for her Note, The Battle to Save the Verde: How Arizona's Water Law Could Destroy One of Its Last Free-Flowing Rivers, 51 Ariz. L. Rev. 175 (2009). View Document.

The Adjudication That Ate Arizona Water Law

One does not "get out" of the Gila adjudication. It is a sort of judicial black hole into which light, sound, lawyers, water—even Judge Goodfarb—indeed, whole forests of paper, will disappear. The only way out is out the other end. By U of A Law Professor Joe Feller View Document.

The Battle to Save the Verde: How Arizona’s Water Law Could Destroy One of Its Las Free-Flowing Rivers

This Note explores a battle for water in the Southwest that may ultimately destroy one of Arizona's most precious rivers. This struggle pits the doctrine of reasonable use against the doctrine of prior appropriation and exposes the need to reconcile the uniquely Arizonan concept of "subflow," which purports to synthesize the laws of ground and surface water, with scientific reality. The characters in this complicated battle include rural municipalities that plan to pump from the river's headwaters, a major metropolitan utility company with century-old rights to the river, and an environmental advocacy organization seeking to protect endangered species. The plight of the Verde River exemplifies what has become a common tale in the United States—multiple parties with valid rights to the same water under different laws. Its resolution will likely require some difficult decisions about resource allocation, rural and urban growth, and the courts' willingness to side with science in the face of impossibly high stakes and a river in peril. By Merideth Marder, published in the Arizona Law Review. View Document.

The Prop 400 Process

In 2005, Prescott voters passed the Reasonable Growth Initiative, also known as Prop 400. This citizen initiative had four provisions that applied to proposed annexations of 250 acres or more. On November 8, 2005, city council officially added the initiative's provisions, with supplementary language, to Article I, Section 4 of the city charter, where it states, 

     "The people of the City of Prescott believe it is in the best interest of the city to establish additional local requirements for annexation to ensure that any future expansion of the city's boundary does not undermine the city's efforts to attain safe-yield or otherwise threaten the water supply of city residents."

What is best plan for managing non-Active Management Areas?

When the state's urban dwellers think of rural water resources – if they think of them at all – they most likely think of recreational opportunities, like fishing, boating and camping. (See above.) Residents of rural areas of the state, however, are confronting a wide range of water issues, with ensuring sufficient supplies the most critical. Whatever rural water management strategy is adopted must reflect the physical, social and cultural characteristics unique to the non-urban regions of Arizona. Prepared by the U of A WRRC. View Document.

Why has integrated management succeeded in some states but not in others?

A brief survey of the legal framework for groundwater and surface water management in the Western states. This is followed by some hypotheses, based on historical trends, to explain why integrated management has been adopted in some states, but not in others. Author: Barbara Tellman, U of A -WRRC. View Document.