A Water Lawyer's Prayer
By Michael Combrink
Published March 22, 2023
“Oh lord, may this change in water law happen to someone else’s clients.”
- Robert Glennon
On January 9, 2023, Arizona Governor Katie Hobbs declared that water is one of Arizona's most precious resources, and the water shortage currently facing the state is "the challenge of our time."[1] Requesting bipartisan local, regional, and statewide solutions to the many water issues facing our state, the Governor focused on water as a specific priority of her administration and requested action this legislative session.[2]
Invoking some of the storied names from water policy history in Arizona, such as Jon Kyl and Bruce Babbitt, Governor Hobbs requested bold solutions and innovations.[3] Stressing the need for action, Governor Hobbs described the water shortages and needs facing Arizona.[4] On January 1, the federal government imposed tier 2 mandatory water cuts on the Colorado river, reducing Arizona's allocation of the river by 21%, or 592,000 acre feet (AF) this year alone.[5] Additionally, with climate change and the current drought facing Arizona, the state must steel itself for increased shortages in the future.[6] The Governor then explained, based upon an Arizona Department of Water Resources (ADWR) report, that portions of West Valley in Phoenix are short of their Assured Water Supply (AWS) by as much as 15%.[7]
Governor Hobbs then outlined her priorities for addressing water challenges.[8] First, she plans to establish the Governor's Office of Resiliency, tasked with addressing issues in water, energy, and land use in Arizona.[9] Second, via executive order, Governor Hobbs created the Governor's Water Policy Council, with the expressly delegated task of expanding the Arizona Ground Water Management Act to cover the rest of the state, especially in rural Arizona.[10] Describing how a Saudi Arabian owned conglomerate is pumping unlimited ground water to grow "water intensive crops" in La Paz County and send them across the globe, Arizona's water "should be used to support Arizonans, not foreign business interests."[11] Perhaps unsurprisingly, this was one of the few parts of the speech that received unanimous applause from both Democrats and Republicans in the House.[12] Third, the Governor's budget plan appropriates funds to allow rural communities to create Active Management Areas (AMA) across the state. And finally, she requested that members of the Legislature put forth innovative, visionary, and bipartisan solutions to the water shortages facing Arizona.[13]
It is March 21st and the legislature has been in session for almost 90 days and the landscape on water legislation is for the most part set. The House Natural Resources, Energy & Water Committee and the Senate Committee on Natural Resources, Energy and Water are where water related bills are often assigned.
Perhaps the most consequential water bill that is currently moving through the process is HB 2026, otherwise titled on farm efficiency fund; appropriation.[14] HB 2026 would provide $30 million to the Water Irrigation Efficiency Program run by the University of Arizona Cooperative Extension.[15] This program provides grants to farmers who invest in water efficiency programs in their agricultural operations, such as subsurface drip irrigation.[16] These grants provide up to $1,500 per acre for agricultural operations who can show an increase of 20% or more in the efficiency of their water use.[17] Additionally, the program funds and conducts research on water efficient irrigation and agricultural practices.[18] The long-term benefits from studying, applying, and increasing water efficiency in agriculture could be tremendous, especially considering that agriculture in Arizona accounts for almost 74% of the total water consumption.[19] This bill has been passed by the House and has committee approval in the Senate, but is currently awaiting Rules committee approval in the Senate.[20]
Additionally, HB 2443 provides for the extension of the Navigable Stream Adjudicatory Commission.[21] This commission has been in place since the 1970s, ever since litigation commenced over whether Arizona’s rivers and streams were considered navigable under the public trust doctrine.[22] While the Commission has ruled that no rivers and streams are considered navigable under the legal definition, the decisions on the Gila, Salt, and Verde Rivers were appealed.[23] HB 2443 has passed out of the House and is currently awaiting a vote of approval by the entire Senate.[24]
For infrastructure, several bills are advancing which provide appropriations for water projects across the state. HB 2448 provides $25,000,000 to help settle a lawsuit between the Ak-Chin Indian Community and the Central Arizona Drainage District and Maricopa-Stanfield Irrigation and Drainage District.[25] These funds will be provided to the districts to build groundwater delivery infrastructure.[26] Currently, HB 2448 has passed out of the House and two Senate committees, and is currently awaiting Rules committee approval.[27] Moreover, SB 1469 provides $41,916,000 to the City of Page to provide for an expansion of an existing wastewater treatment plant, construction of a pipeline, and an intake pump station to provide water for the city pipeline.[28] This appropriation is significant because the exceedingly low level of water in Lake Powell puts Page at a considerable risk of losing its water if the lake level drops below the intake valves at Glen Canyon Dam.[29] Currently, SB 1469 has passed out of the Senate and is awaiting committee approval in the House.[30] Finally, HB 2763 appropriates $4,371,100 to Mohave County to design and construct the Mohave Wash Recharge Basin. [31] This recharge basin has the potential to intercept and store up to 185 acre-feet per year of stormwater into aquifers north of Kingman.[32] Currently, HB 2763 is awaiting a committee hearing in the Senate after having successfully passed out of the House.[33]
On the other side of the spectrum, however, are bills that deal primarily with the regulation of water. There is HB 2535 which prohibits municipal regulation of any pre-existing wells within unincorporated areas that are annexed into a municipality.[34] This blanket ban on regulation[35] could prevent jurisdictions from being able to regulate wells for safety and health but could also impede conservation efforts in the future. Then there is SB 1432, which closes a loophole within the Assured Water supply statutes that regulate the 100 year water supply requirement in law.[36] The legislation would require anybody who is developing at least “six or more residences within an AMA in an unincorporated area of a county” to apply for and receive the certificate of assured water supply from the ADWR.[37] Since statute does not require such people to obtain certificates of assured water supply, closing this loophole will both provide greater protection to groundwater within AMAs but also to homebuyers in unincorporated areas. SB 1432 has passed out of the Senate and is awaiting committee approval in the House.[38]
Additionally, HB 2561 would essentially require the city of Scottsdale to provide water (while being reimbursed for the full reasonable “costs of providing and delivering water”), to the Rio Verde Foothills.[39] The legislation also has other provisions that would govern how the intergovernmental agreement would work between the city and the county serving the unincorporated area, sunsets by the end of 2025, and includes an emergency provision.[40] While it is certainly unfortunate that the Rio Foothills does not currently have a secure and affordable supply of water since being cut off by Scottsdale, requiring jurisdictions to provide water to communities that are not their own, through statutory measures, could impact and impair short to medium-term sustainability planning and conservation efforts. HB 2561 failed to pass out of the House by a 27 to 30 vote on March 9, but is up for reconsideration and must be voted on within 14 days, so likely will see further action before March 28 [CW1] .[41] Finally, HB 2376 prohibits the "sale[], lease[] or sublease[] of agricultural state land to a foreign entity."[CW2] [42] While the legislation is billed as prohibiting foreign groundwater mining in Arizona, it does not apply to privately held land, and it also does nothing to curtail or otherwise reduce the amount of groundwater pumping on agricultural land in Arizona.[43] HB 2376 passed out of the House on a 43-17 vote and is currently awaiting committee approval in the Senate.[44]
With almost 90 days of session so far this year, water legislation this year has been significant, although perhaps not to the degree matched by the severity of water shortages facing the state. Investing in agricultural water efficiency is perhaps the most important priority for Arizona, since agriculture uses the majority of water in the state, and the inefficiency of flood irrigation is well known and documented. We cannot, however, stop growing food. Not only does our state rely upon the food grown throughout Arizona, but much of the nation and world does as well. Additionally, investing in water infrastructure and stormwater capture and recharge projects are much needed developments — and these efforts should be commended. This session, however, has not been as ambitious as it could be. One of the simplest ways to reduce water could be to require all new construction within the state to utilize low-flow toilets. Such legislation could save up to 13,000 gallons of water per year, per toilet![45] While all the water legislation this year still needs to avoid the many veto points inherent within the legislative process, if passed, many of these bills could have a positive impact on the water supply in Arizona. If we are to continue to thrive as a state for decades and centuries into the future, however, Arizona will need much bolder and innovative action on water from the Legislature.
[1] Katie Hobbs, Governor, State of the State Address at the Ariz. House of Representatives Opening Session (Jan. 9, 2023), https://azgovernor.gov/office-arizona-governor/news/2023/01/transcript-governor-hobbs-2023-state-state-address.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] H.R. 2026, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[15] Id.
[16] University of Arizona - Cooperative Extension, Water Irrigation Efficiency Program, https://extension.arizona.edu/water-irrigation-efficiency-program (last visited Feb. 16, 2023).
[17] Id.
[18] Id.
[19] Ariz. Dep’t Water Res., Conservation, https://new.azwater.gov/conservation/agriculture (last visited Feb. 24, 2023).
[20] H.R. 2026, supra note 14.
[21] H.R. 2443, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[22] Ariz. Navigable Stream Adjudication Comm’n, https://www.ansac.az.gov/ (last visited Feb. 24, 2023).
[23] Id.
[24] H.R. 2443, supra note 20.
[25] H.R. 2448, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[26] Id.
[27] Id.
[28] S. 1469, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[29] Brahm Resnik & Dylan Dulberg, Northern Arizona May See Drinking Water Cutoff as Lake Powell Continues to Dry Up, 12 News (June 19, 2022), https://www.12news.com/article/news/local/water-wars/arizona-water-crisis-cutoff-drinking-water-supply-lake-powell-page/75-c2f25f52-bbdc-4adb-a427-3412ab90d84f.
[30] S. 1469, supra note 24.
[31] H.R. 2763, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[32] H.R. 2763 H. Engrossed Fact Sheet, 56th Legis., 1st Reg. Sess. (Ariz. 2023).
[33] H.R. 2763, supra note 28.
[34] H.R. 2535, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[35] Id. (stating "a well drilled . . . in an unincorporated is not subject to municipal regulation if the unincorporated area where the well is located is annexed by a city or town after the well has been drilled").
[36] S. 1432 Fact Sheet, 2023 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[37] Id.
[38] S. 1432, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[39] H.R. 2561, 56th Leg., 1st Reg. Sess. (Ariz. 2023) (the bill is drafted so narrowly it is unclear if any other community impacted by water shortages would be affected by this legislation).
[40] Id. (emergency measures become active as law immediately upon signature of the governor).
[41] Id.
[42] H.R. 2376 H. Engrossed Fact Sheet, 2023 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[43] H.R. 2376, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[44] Id.
[45] Water Sense, Residential Toilets, Env. Prot. Agency (last accessed on Mar. 16, 2023), https://www.epa.gov/watersense/residential-toilets#:~:text=By%20replacing%20old%2C%20inefficient%20toilets,the%20lifetime%20of%20the%20toilets.