Hung Out To Dry: Arizona Legislature Rejects Proposed Groundwater Regulations

By Danika Marzillier.

INTRODUCTION

Early in 2021, the Arizona legislature was set to hear several bills that would impose regulations on groundwater pumping in rural areas. However, these bills never made it out of committee, or were lost on a vote in the House. The intent of this proposed legislation was to help begin to manage groundwater pumping in rural Arizona in light of the hot and dry years predicted to face the Southwest.

 

In Arizona’s metropolitan areas, the Groundwater Management Act governs the pumping and use of groundwater and is largely considered one of the most comprehensive and extensive groundwater management plans. However, rural areas are subject to much less strict rules. Without management of these areas, small farmers, dependent on groundwater pumping to support their livelihood, are worried about their wells, and their source of income, drying up.

 

GROUNDWATER MANAGEMENT IN ARIZONA

The Groundwater Management Act of 1980 (“GMA”) heavily regulates Arizona’s metropolitan areas via five active-management areas (“AMAs”)—Prescott, Phoenix, Pinal, Tucson, and Santa Cruz. Each AMA is required to carry out its regulation of groundwater pumping and recharge to be consistent with the primary management goal. For the Phoenix, Prescott, and Tucson AMAs, the goal is to achieve safe-yield by 2025. Safe-yield is accomplished when the water withdrawn and water replaced are balanced each year.

 

In contrast, outside of the AMAs, groundwater is governed by a “reasonable use” policy. People are allowed to take as much water out of the groundwater as they want to, so long as the use is considered reasonable. But this does not mean that groundwater outside the AMAs is completely unregulated. Wells still need to abide by well-spacing rules and need to be permitted, as well ensure that there is “adequate water supply” disclosed in the public report regarding the well. This does not guarantee that there is adequate water but rather that the adequacy or inadequacy is disclosed. 

 

PROPOSED REGULATIONS

While the GMA is still considered a pioneering piece of legislation, it is beginning to show its age as the water situation in Arizona continues to become more and more stressed. Groundwater naturally has a slow rate of recharge, sometimes taking decades to replenish the supplies that are currently being removed via pumping. This is an issue as groundwater is the only water source in some rural parts of the state.

 

Several new pieces of groundwater legislation have been proposed in order to address diminishing groundwater supplies in rural Arizona. One such bill, which received bipartisan support in an informal hearing but never proceeded to vote, would create voluntary programs that would allow rural communities to tailor solutions to their specific needs. The goal of these voluntary programs is to help communities better monitor and understand their current supply and rates of replenishment.

 

Representative Regina Cobb reintroduced two proposals this year, after they were never put up for vote last year. The first of these proposals would enable the Department of Water Resources to look at future projected groundwater use, not just current use, in making decisions regarding the future growth of irrigated farmlands. A proposal like this allows water resource managers to address the areas where aquifers are declining, but agricultural areas are continuing to grow, while still allowing the local community to have input on best management practices.

 

An additional proposed bill would allow counties to create “rural management areas” if water supplies are at risk. Due to opposition that blocked the bill from passing the committee, the bill was revised this year to only include four counties along the Colorado River in northern and western Arizona. Concerned citizens in these areas do not want there to be more well permits issued in areas that are already water stressed. Many of the areas are in this position because of increased pumping by larger farms, which causes harm and drying up of wells to smaller parties that generally have shallower and smaller wells. Furthermore, due to the interconnected nature of surface and groundwater, excessive groundwater pumping can also lead to the drying up of surface waters like rivers.

 

REGULATORY SOLUTIONS

Water management in Arizona is extremely important as water stress is likely to continue as water supplies decrease due to climate change, over water allocation, and use. However, regulation of water involves the interests of hundreds of parties, making ongoing litigation concerning water rights extraordinarily complex. When considering water management laws, legislators need to consider the interests of their constituents, the environment, and industry. Additionally, people in rural areas tend to shy away from bill proposals regarding “management” or regulation of groundwater, as they don’t want to be controlled by big government. However, people in these areas understand the need for adequate water supply, as their livelihoods depend on this land and its accompanying water source.

 

Therefore, a locally-led initiative is most likely to garner support from the community because small farmers can take part in their own solution. County-level regulation alone is not enough. But interaction between county, state, and federal governments would be a good start in providing the tools local governments need to secure a more sustainable future for groundwater users. Management could be something as simple as asking larger water users to measure and report the quantity of water they are pumping, as this is not currently measured. This would give the Department of Water Resources an idea of how rapidly groundwater is being pumped out of an aquifer annually. After all, the first step towards regulating or managing groundwater is understanding how much is being used and the rate of decline.

 

Without water in Arizona, the land that many of these small farmers rely on is worth next to nothing, making water one of the most valuable resources for farming communities. It is imperative that this issue becomes more of a spotlight issue, seeing as this problem will only get worse in the coming years. Legislators need to understand the importance of regulating water use and supply in this state, preferably sooner rather than later.

"Late Day Dusty Desert Road 5666 B" by jim.choate59 is licensed under CC BY-NC-ND 2.0

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By Danika Marzillier

J.D. Candidate, 2022

Danika Marzillier is a Staff Writer on the Arizona State Law Journal. She did her undergraduate in Earth and Environmental Sciences at Lehigh University in Pennsylvania. In her free time she enjoys hiking, her favorites being Humphrey’s Peak and a 21-mile rim-to-river-to-rim loop hike at the Grand Canyon. Most importantly, Go Birds!

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.