SlightlySick™ University

This section will review the major court decisions from the 1960’s to the 1990 Fort McDowell Indian Community Water Rights Act.

Supreme Court Decision: Arizona v. California (1963)

Along with determining the Colorado River rights of Arizona, Nevada, and California, the decision also quantified federal reserved rights of the five Indian reservations along the lower Colorado River: Chemehuevi, Cocopah, Colorado River, Fort Mohave, and Quechan (Fort Yuma).

1. Court granted the reservations enough water to irrigate all practicably irrigable acreage within their boundaries.

2. Water was to come from the Lower Basin states’ Colorado River apportionments. Under this standard, five Indian reservations with a total population of 10,000 were granted approximately 900,000 AF of water.

3. Indians became major players in the water rights game.

4. Upheld Arizona’s entire 2.8 MAF allotment of Colorado River water, plus the entire discharge of the Salt and Gila River systems.

5. Central Arizona Project (CAP) had the funding to begin construction.

Colorado River Basin Project Act Funding (1968)

1. Authorized the construction of the CAP system to bring a portion of Arizona’s Colorado River allocation to central Arizona.

2. In 1971, CAWCD was created to oversee construction, operation and management of the CAP system.

3. CAP delivers approx. 1.5 MAF of Colorado River water to central Arizona each year.

Minute 242 (1973)

1. Obligated the US to improve the quality of Colorado River water delivered to Mexico which was not addressed in the Mexican Treaty in 1945

Southern Arizona Water Rights Settlement Act - SAWRSA (1975)

Act provided a framework for a comprehensive agreement to resolve many of the water issues facing Arizona and Indian communities in the state.

2006 Modifications:

1. Tohono O’odham Nation in Arizona will receive 37,800 AF annually of water from CAP

2. US Government also would provide the districts an additional 28,200 AF annually from any source

3. All water will be provided without cost to the Tohono O’odham Nation

4. $15M trust fund to develop its water resources

5. City of Tucson contributed 28,200 AF annually of effluent to be used by the Secretary to facilitate deliveries to the Community

In December 2004, the Arizona Water Settlements Act Title III of the Act amended the 1982 SAWRSA and provided a mechanism to implement the settlement – the amendment identified the source of the settlement water as CAP Non-Indian Agricultural priority water.

The Community may lease its CAP water with the CAP service area

Ak-Chin Indian Community (1978 and 1984)

1. The Community was awarded annual entitlement to 75,000 AF (85,000 AF in wet years) of water delivered via the CAP and other Colorado River water.

2. In 1992 (San Carlos Apache Settlement Agreement) allows the Community to lease any unused CAP water to off-reservation users within the Tucson, Pinal, and Phoenix AMAs.

Salt River Pima-Maricopa Settlement Agreement (1988)

1. Gave the Community an annual entitlement to 122,400 AF of water (from Salt, Verde, Colorado Rivers and groundwater) plus storage rights behind Bartlett and modified Roosevelt Dams

2. Can pump groundwater only until the East Salt River sub-basin in the Phoenix AMA achieves safe-yield

3. The Community leased 13,000 AF CAP allocation to the Phoenix valley cities

Parties in Agreement: SRP, RWCD, Roosevelt Irrigation District, Chandler, Glendale, Mesa, Phoenix, Scottsdale, Tempe, Gilbert, CAWCD, US and State of Arizona

Fort McDowell Indian Community Water Rights Act (1990)

Under the settlement, the Fort McDowell Indian Community received 36,350 AF per year of water from the Verde River and CAP as well as sufficient money to develop agricultural and other beneficial uses of water on the reservation.

The act specifies two major actions: (1) Community to utilize its water rights under the 1910 Kent Decree more fully, the Secretary of the Interior is directed to contract with SRP, for a period not to exceed 25 years, for the utilization of up to 3,000 AF of the existing storage entitlement of the US and SRP behind Bartlett and Horseshoe Dams. (2) Secretary is authorized to acquire for the tribe 13,933 AF of water from one or a combination of the following sources: (a) CAP water permanently relinquished by the Harquahala Valley Irrigation District (HVID) and/or (b) CAP M&I water and CAP Indian Priority water permanently relinquished by the City of Prescott, the Yavapi-Prescott Tribe, the Camp Verde Yavapi-Apache Tribe, the Cottonwood Water Company and the Camp Verde Water Company. Any water acquired from these sources shall be done with their consent.

Secretary may use water acquired from HVID with its original CAP agricultural priority or may convert it, at a rate of 1 AF per eligible CAP acre, to a maximum of 33,263 AF of CAP Indian Priority water.

As consideration for the ‘fair market value’ of water relinquished by HVID, the Secretary would: (1) credit HVID with an appropriate share of its outstanding CAP debt, and (2) offset the annual repayment requirements of the CAWCD in amounts which ‘total the balance of the fair value of water acquired and not accounted for (by the credit of HVID debt) until such value is exhausted.’

If at least 7,000 AF of CAP water is acquired from the second sources, the Secretary may acquire, from willing sellers, land and water rights in the Big Chino Valley of the Verde River watershed in an amount sufficient to replace the water acquired. The bill authorizes appropriations, not to exceed $30M, to pay for the costs of acquiring the replacement water and of constructing necessary diversion, collection, and transmission facilities to deliver the replacement water to the parties from which the Secretary acquired CAP water.

The Bill would allow the Community to lease its CAP water.

Secretary would amend the tribe’s CAP contract to authorize a 99-year lease of up to 4,300 AF/yr to the City of Phoenix commencing on January 1, 2001.

The tribe may lease water (up to 18,233 AF) for its fair market value for a term not to exceed 100 years for use in Pima, Pinal or Maricopa Counties.

The United States shall not impose upon the Community operation, maintenance, and replacement charges specified in the Community’s CAP contract for any leased water

For the purpose of the CAP contract between the US and CAWCD, the costs associated with the delivery of CAP water leased by Phoenix shall be nonreimbursable and, therefore, excluded from the District’s repayment obligation. Except for these two provisions, no water received by the Community or its members under the agreement may be sold, leased, transferred, or in any way used off the reservation

Establishes the Fort McDowell Indian Community Development Fund: $2M paid by Arizona and $23M to be paid by the US for use in the design and construction of facilities to put to beneficial use the Community’s water entitlement and other economic and community development projects.

Secretary is authorized to provide the Community with a 40-year, interest free loan of $13M under the Small Reclamation Projects Act of 1956 for the purpose of constructing facilities for the conveyance and delivery of water on the reservation.

Arizona Water Law 101: History and Timeline

Before we begin to discuss the present state of water affairs in Arizona it is neccessary to understand the development of water law, and applicable legislation, which predicates the status of water affairs today. In this lecture a host of topics will be addressed, in brief, so as to allow a further understanding of the evolution of water rights law, most specifically pre-1960’s water legislation.

National Reclamation Act / SRP Creation (1902 / 1903)

Due to drought which occurred on the Salt River in the late 1890s, the Act provided government loans to ‘reclaim’ the West with irrigation projects. The creation of the Theodore Roosevelt Dam, as well as, federal purchase of all of the private canals (in Central Arizona) with landowners pledging more than 200,000 acres of their land as collateral for a government loan to build a massive water storage and delivery system. In addition, the Feds built the Granite Reef Diversion Dam. In 1917, operation of the canal system was turned over to the Salt River Valley Water Users’ Association (SRP) created in 1903.

Supreme Court Decision: Winters v. United States (1908)

Recognized Indian Water Rights regardless of whether a tribe had used the water or not. Water Rights were established at the time the reservation was created. The state in which the reservation is located must fulfill the tribal water right. Established Federal Reserve Right to water. Federal Reserve Right: These rights implicitly reserve an unknown quantity of water and provide that the government has such future use of water as will be necessary to fulfill the purposes for which the federal land reservation was made.

Hurley v. Abbott: Kent Decree (1910)

Establishes the basis for water rights in Arizona on the Salt River. Established who had surface water rights in the Salt River watershed for water users who diverted water above Joint Head Dam, an old diversion near present day Sky Harbor Airport, however decree never addressed water rights along the Verde River.

Colorado River Compact (1922)

Apportioned Colorado River between Upper (Wyoming, Colorado, Utah and New Mexico) and Lower (California, Arizona, Nevada) Basin states. Demarcation between Upper and Lower is set at Lee’s Ferry located in northern Arizona’s canyon country close to the Utah border. Keystone to the “Law of the River” and had estimated annual Colorado River flow at 16.4 MAF (Million-Acre-Feet) per year, however average flow based on current estimates is 13.5 MAF per year.

Colorado River Compact, Summation

Beginning the in early 1900s the Colorado Basin states were anxious about securing their share of the Colorado River. Considering the fact that California, then and now, was seeing incredible growth, they were early in the game to establish their water rights on the Colorado, to the detriment, or perceived detriment, of the other basin states.

Further alarm grew out of a US Supreme Court decision which ruled (c. 1922) that the law of prior appropriation applied regardless of state lines. Delph Carpenter, a Colorado attorney, asserted that the states must reach an agreement in regards to Colorado River appropriations and would serve as a panacea for future River litigation.

W.S. Norviel of Arizona played a prominent role in the beginning negotiations as a fierce supporter of Arizona rights to the Colorado. He insisted that the Lower Basin states receive all the water of their tributaries, plus half the river’s flow at Lee’s Ferry which almost stopped negotiations. Ultimately one (1) MAF was allowed in order to quiet Norviel.

Even after signing the Compact, all the states but Arizona ratified it. Arizona’s Governor Hunt faulted the Compact for not allocating water directly to the states, instead of to the basins. As per the Compact, the law of prior appropriation would not apply between the basins, but if enforced within basin, Arizona would be competing with rapidly growing California.

The proposed Boulder Canyon Project, which included construction of the All American and a high dam on the lower river, intensified animosity between Arizona and California. The project would increase California’s access to the River thereby ‘potentially’ hurting the water rights of Arizona. Despite all arguments and even after litigation, the project passed.

In the early 1940s (same time groundwater pumping was reaching its height, in terms of technology) Arizona ratified the Colorado River Compact and began to discuss the CAP. Beginning in 1952 the US Supreme Court case, Arizona v. California began. Finally after 11 years was resolved by the following: (1) Colorado River water was apportioned, California received 4.4 MAF, Arizona 2.8 MAF, and Nevada 300,000 AF and each state was awarded all the water in their tributaries.

Additionally, Arizona v. California opened the door to federal participation in Colorado River affairs, something the drafters of the 1922 Compact did not want. Also, the decision interpreted the Boulder Canyon Act as empowering the Secretary of the Interior to act as water master of the Lower Colorado River, to apportion future surpluses and shortages among the states and even among users within the states. Issues not covered in the Compact include: environmental concerns, as well as, Indian Water Rights, which were negotiated much later.

Boulder Canyon Project Act (1928)

Further divided the Lower Basin’s allotment with 4.4 MAF going to California, 2.8 to Arizona, and 300,000 to Nevada, with Arizona and California agreeing to split any excess equally. Authorized the construction of the Hoover Dam and the All-American Canal.

The Mexican Water Treaty (1945)

Entitled Mexico to 1.5 MAF of Colorado River water, however during severe droughts the US may reduce its allotment to Mexico “in the same proportion as consumptive uses in the United States is reduced.”

The problem of water in Arizona first came about with the invention of better groundwater pumps in the 1940s which led to ‘overdrafting:’

Overdrafting is defined as the process of extracting groundwater beyond the safe yield of the acquifer. The problem first started in Tucson in the Avra Valley. Tucson, unlike Phoenix with SRP, did not have a direct surface water allocation; as such, Tucson pumped much of the water from the, then, perennial Santa Cruz River. In the late 1970s, courts started issuing injunctions against Tucson from excessive groundwater pumping in the Avra Valley.

McCarran Amendment (1952)

General stream adjudications, when brought in state court, allow state courts to adjudicate the water rights of Indian Tribes and federal agencies based on federal law, along with water rights of other persons, based on state law.

Essentially, the amendment waives the sovereign authority of an Indian tribe and the federal government provided the adjudication is comprehensive, i.e. that it includes all of the water rights on a river system.

This ends our journey through early Water Right’s history. The next class will start with Sumpreme Court Decision: Arizona v. California (1963).

Arizona Water Law 101: Terminology

In order to have an understanding of the topics covered in this class it is necessary for you to know and understand the terms and acronyms used. As such, the below list represents, some but not all, of the terms used in ‘water world.’

Water Terminology

Acre-Foot (AF): One acre-foot is the volume of water sufficient to cover an acre of land to a depth of 1 foot, 43,560 cubic feet, approximately 325,851 gallons. For practical purposes, 1 AF is enough water to meet the consumptive use of an average household (4-5 people) for one year.

Active Management Area (AMA): An initial active management area is a geographical area which has been designated by the legislature as requiring active management of groundwater….other than stored water, withdrawn from a well. A.R.S. § 45-201(1).

Assured Water Supply (AWS): Under A.R.S. § 45-576 a developer may not offer to sell of lease in an AMA subdivided lands (six or more lots under 36 acres in size) unit it first demonstrates to the Department that it has a water supply that meets certain criteria. In this regard, the developer has two options: (1) the developer may obtain a certificate of assured water supply from the Department, or (2) the developer may obtain water service from a water provider whose service area has a designation of assured water supply. Either the developer applying for a certificate of assured water supply or the water provider applying for designation must demonstrate that it has a water supply that meets the following criteria: (1) the supply is of “adequate quality,” (2) the supply will be continuously available to meet the water needs of the proposed use for at least 100 years, (3) the projected use is consistent with the management plan of the AMA, (4) the projected use is consistent with achievement of the management goal of the AMA, and (5) financial capability has been demonstrated to construct the water facilities necessary to make the supply of water available for the proposed use, including the delivery system and any storage facilities or treatment works.

Effluent: Means water that has been collected in a sanitary sewer for subsequent treatment in a facility that is regulated pursuant to A.R.S. § 49-361 and 49-362. Such water remains effluent until it acquires the characteristics of ground or surface water. A.R.S. § 45-101(4).

Grandfathered Rights: A grandfather right is a right to withdraw and use groundwater within an AMA based on the fact of lawful withdrawals and use of groundwater prior to June 12, 1980 for all initial AMAs. There are three types of grandfathered rights: (1) Irrigation grandfathered rights, (2) Type 1 non-irrigation grandfathered rights, and (3) Type 2 non-irrigation grandfathered rights.

Groundwater: 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. A.R..S. § 45-101(5)

Irrigation Grandfathered Right (IGFR): Confers the right to irrigate specific plots of land that had been irrigated with groundwater between 1975 and 1980. Land without an IGFR may not be irrigated with groundwater. An IGFR may not be sold apart from the associated land.

Type 1 IGFR: Is associated with land permanently retired from farming and converted to a non-irrigation use, e.g. building of a new industrial plant or a subdivision. This right, like an IGFR, may be conveyed only with the land. The maximum amount of groundwater that may be pumped each year using a Type 1 right is three (3) acre-feet (AF) per acre.

Type 2 IGFR: Can only be used for non-irrigation purpose. The right is based on historical pumping of groundwater for a non-irrigation use and equals the maximum amount pumped in any one year between 1975 and 1980. Examples of non-irrigation uses include industry, livestock watering, and golf courses. Type 2 rights are the most flexible because they may be sold separately from the land or well. In addition, the owner of a Type 2 right may, with ADWR approval, withdraw groundwater from a new location within the same AMA. It is possible to lease a portion of a Type 2 right, but if the right is sold, it may not be divided; instead, the entire right must be sold.

Safe-yield: Is a groundwater management goal which attempts to achieve and thereafter maintain a long-term balance between the annual amount of groundwater withdrawn in an AMA and the annual amount of natural and artificial recharge in the AMA. A.R.S. § 45-561(12).

Surface Water: The waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, floodwater, wastewater or surplus water, and of lakes, ponds and springs on the surface. For the purposes of administering Title 45, surface water is deemed to include Central Arizona Project water. A.R..S. § 45-101(9).

Arizona Water Law is dictated by Title 45 of the Arizona Revised Statutes and can be found by clicking here.

This class is brought to you by EPU Investmentsan Arizona based consultancy and asset management firm.

Arizona Water Law 101

Welcome to Arizona Water Law 101, this class is presented by EPU Investments an Arizona based consultancy and asset management firm. This class is being offered as a special lecture series and will provide the student with a general overview of Arizona, and in particular, Arizona Colorado River Water Law. As such, this will include a general overview of water law including (in no particular order):

1. What are water rights?

2. How do water rights impact me?

3. Differences between ground water and surface water

4. Arizona Water Law Terminology

5. Various Water Rights Settlement Agreements

It is our hope that at the end of this lecture series the reader has a greater understanding and appreciation of water rights and its impact in our everyday lives.

The image depicted is a Map of Arizona showing various AMA-INA locations.