Low Flows: How to Solve the Crisis Facing Arizona's Rivers

By Michael Combrink

Published September 5, 2022

As I float through a slow turn in the Verde River past an unnamed gravel beach, an American bald eagle stands tall and proud, a large trout gripped in its talons. Five yards behind the eagle a turkey vulture sits on the gravel. With visions of fish for dinner, the vulture is clearly thinking about theft. The bald eagle coolly surveils the vulture, aware of its presence and disdainful of its apparent desire. Quickly, the vulture sweeps in to grab the fish with its talons. The bald eagle rises, wings spread, talons out, and easily bats away the vulture. Gracefully beating its wings, the eagle eventually flies out of sight, following the curve of the river. This lush and narrow strip of riparian habitat winds its way through the parched steppe climate of central Arizona. Precious in a parched and arid land, riparian areas provide vital habitat for native species, and a retreat for recreationalists looking to escape the heat. Unfortunately, Arizona’s current laws and policies are creating an unsustainable future for its rivers.[1] From the Salt, Verde, and the San Pedro Rivers, to the grandest of them all, the Colorado, Arizona rivers face major threats: surface water diversions; shortages from groundwater pumping; and increased municipal use not the least among them.[2]

Arizona water law comes from the doctrine of “prior appropriation,” developed in the mid-1800s by goldminers in California. Miners trespassed on federal lands to mine for gold, for which they possessed no legal right to mine.[3] For these miners, the first priority was to establish a legal scheme that granted them access to water to operate sluice mines: the law of first in time, first in right. This practice spread across the West with unfortunate consequences.[4] Those with senior rights to water often have access to large amounts of it and have little incentive to operate efficiently with the resource or further, conserve it.[5] This has a profound effect on rivers because unused, appropriated water, can be forfeited, thus creating a perverse incentive to use up every last drop, regardless of actual need.[6] For Arizona rivers needing protection, the legal system of prior appropriation, derived from 200 year old mining practices, needs to be updated with a focus on efficient usage and environmental conservation.

Groundwater use in Arizona is largely unregulated.[7] Arizona’s 1980 Groundwater Management Act only covers small portions of the state.[8] To be fair, the state’s most populous areas are within Active Management Areas.[9] Even in these areas, however, “exempt” wells are unregulated by the Act.[10] In the rest of the state, there is no limit on the number of wells or the amount each can pump.[11] The science is clear:groundwater pumping can negatively affect river health, even to the point of depletion.[12] Case in point, the Santa Cruz River in Tucson—used for agriculture since 1200 B.C. by the Hohokam people, then by Spanish colonists, farmers in Pima County, and the residents of Tucson—ran dry in the 1950s because of increased and unregulated groundwater pumping.[13]

Despite these threats, there are actions that each of us can take to help protect Arizona’s flowing rivers. Doing our best to conserve water will result in more access to water for wildlife and the environment in general — protecting the invaluable systems of life like the Verde River.[14] Luckily, reducing water use in residential homes is generally easy, simple, and results in saving money — an activity every Arizonan can agree on.[15] Fixing leaks, installing low-flow toilets, and turning the faucet off while brushing your teeth can create real water savings.[16] Some cities, like Tucson, offer free water audits that review your usage and suggest ways to save.[17]

While residential water conservation is all well and good, there is simply no beating around the fact that agriculture uses an astounding 74 percent of the state’s available drinking water.[18] With that said, there are several water conservation techniques available for increased adoption within the agricultural sector as well.[19] Best practices include, but are not limited to: replacing flood irrigation with drip irrigation systems, rotating the type of crops planted in the same field, no tilling, and developing a schedule of irrigation using weather sensing and soil analyzing technology.[20] Lastly, Arizona law allows for the state or local governments to file instream flow rights, which maintains water in the river or stream for wildlife or recreational purposes specifically.[21]

The value of Arizona’s flowing rivers is ecologically immeasurable. The San Pedro and Verde rivers are two of the few free-flowing rivers remaining in the state.[22] Their value, however, is not ecological alone. A 2019 study valued the economic impact of outdoor recreation in Arizona on or along a body of water at $13.5 billion.[23] This water-based recreation industry funds nearly 114,000 jobs, creates $4.5 billion in household income, and $1.8 billion in tax revenue.[24] Certainly, ensuring Arizona’s rivers flow makes economic as well as ecological sense.

Beyond the dollars and cents, ensuring the continued health of Arizona’s rivers and lakes is simply good stewardship. Caring for our lands and waters is a duty of all Arizona and American citizens. By protecting rivers, we save unique habitats, like that of the American bald eagle, and provide meaningful opportunities for residents to connect with, understand, and grow to appreciate our beautiful Arizona environment. If we act now, Arizonans in 100 years, and beyond, can enjoy the same free-flowing rivers that so many of us use and love today.

[1] Protecting Arizona Rivers Supports a Vibrant State, Western Resource Advocates, https://westernresourceadvocates.org/projects/arizona-rivers/ (estimating that up to 35% of the state’s rivers have already “disappeared”). [2] Rebecca Toy, A Legendary Arizona River is Under Threat, Nat’l Geographic (July 13, 2021), https://www.nationalgeographic.com/travel/article/a-legendary-arizona-river-is-under-threat?loggedin=true; Ian James, Dry Wells, Lower Flows Raise Alarm About the Verde River’s Future, AZCentral (Sept. 6, 2021), https://www.azcentral.com/in-depth/news/local/arizona-environment/2021/09/06/groundwater-pumping-verde-river-risk-arizona/7695748002/; Matt Rice, Why the Lower Colorado is America’s #1 Most Endangered River, Am. Rivers (June 23, 2017), https://www.americanrivers.org/2017/06/lower-colorado-endangered-river/.

[3] Amanda Waters & Erica Spitzig, Water Rights Based on State Law, in Am. Bar Ass’n, Water Rights and Environmental Regulation 12 (Robert H. Abrams & Latravia Smith eds., 2018) https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/331398370/Chapter%201.pdf; Cf. 30 USC §22 et seq. The practice of entering federal lands to discover and mine minerals was codified by Congress in the General Mining Act of 1872.

[4] Surface Water, Ariz. Dep’t of Water Res., https://new.azwater.gov/surface-water; see also Rica Fulton, Prior Appropriation and Water in the West, Water Keeper Alliance (Aug. 27, 3:31 PM), https://waterkeeper.org/news/prior-appropriation-and-water-in-the-west/.

[5] Adam Schempp, Western Water in the 21st Century, Env’t L. Inst., June 2009, at 6, https://www.eli.org/sites/default/files/eli-pubs/western-water-21st-century-eli.pdf.

[6] Sharon Megdal, et. al., The Forgotten Sector: Arizona Water Law and the Environment, 1 Ariz. J. L. & Pol’y 233, 266 (2011), https://wrrc.arizona.edu/sites/wrrc.arizona.edu/files/Megdal_Tom-2011-AZ%20Water%20Law.pdf.

[7] Active Management Areas, Ariz. Dep’t of Water Res., https://new.azwater.gov/ama.

[8] Id.

[9] Ian James & Rob O’Dell, Megafarms and Deeper Wells are Draining the Water Beneath Rural Arizona — Quietly, Irreversibly, AZCentral (Dec. 5, 2019), https://www.azcentral.com/in-depth/news/local/arizona-environment/2019/12/05/unregulated-pumping-arizona-groundwater-dry-wells/2425078001/.

[10] Governor’s Water Augmentation, Innovation and Conservation Council, Issue Brief: Exempt Wells (2020), https://new.azwater.gov/sites/default/files/ISSUE%20BRIEF%20-%20Exempt%20Wells%20-%20Final.pdf.

[11] Ian James & Rob O’Dell, supra note 9.

[12] Alison Steinbach, Recent UA Study Confirms Groundwater Pumping is Drying Up Arizona Rivers, AZCentral (July 21, 2019), https://www.azcentral.com/story/news/local/arizona-environment/2019/07/21/ua-study-explores-groundwater-pumping-and-surface-water-connections/1735959001/.

[13] The Santa Cruz River Heritage Project – A Brief History, City of Tucson, https://www.tucsonaz.gov/water/SCRHP-history.

[14] How to Conserve Water, The Wildlife Trusts, https://www.wildlifetrusts.org/actions/how-conserve-water.

[15] Start Saving, EPA, https://www.epa.gov/watersense/start-saving.

[16] Id.

[17] Sign Up for a Free Water Audit to Save Water and Money, City of Tucson, https://www.tucsonaz.gov/newsnet/sign-free-water-audit-save-water-and-money-4.

[18] Conservation, Ariz. Dep’t of Water Res., https://new.azwater.gov/conservation/agriculture.

[19] Id.

[20] Id.

[21] A.R.S. § 45-152.01.

[22] Alison Steinbach, supra note 12.

[23] The Economic Contributions of Water-Related Outdoor Recreation in Arizona, Audubon, March 2019, at ii. https://nas-national-prod.s3.amazonaws.com/audubon_az_water-based_rec_economics_2019-04-08.pdf.

[24] Id.