Water? I Hardly Know Her!

By Alexandra Nathe.

Fresh water is the Earth’s most precious commodity, and its scarcity has been asserted to be the root of every major social challenge. Drought conditions are consistently prevalent in the deserts of the Southwest and are becoming worse with climate change. Consequently, desert residents, including Arizonans, are constantly working to conserve the little water they have access to. In February, Arizona Governor Doug Ducey signed a bill that should work to aid these conservation efforts.

Modifying “Use It or Lose It”

Arizona water law is exceedingly complex, and this bill only touches on a small portion of it.Regardless, this bill creates significant change in Arizona water law by modifying the traditional “use it or lose it” clause. A major benefit of water rights is that once an individual has them, they have them indefinitely, and can pass them down from generation to generation. These rights come with the caveat that right holders must use all of the water they are allotted or risk forfeiture of their rights. As a result, water users generally end up using more water than they actually require. While this clause was initially necessary to ensure that the people who held rights to water actually exercised those rights, a lot has changed in the desert since it was enacted. 

Arizona is now a hotter and drier place with a constantly growing population. This residential expansion has led to an ever-increasing demand that rivers, streams, and springs cannot possibly meet. Climate change has led to less snowpack and embarrassingly weak monsoon seasons that fail to replenish rivers. Further, as the Colorado River, which supplies much of the Southwest with water, is fed by snowmelt, the downstream states—including Arizona—are at risk of not receiving their portion of the river. 

Recognizing the disparity between supply and demand, this bill allows Arizona farmers, ranchers, and other water users to leave water in rivers and streams without the risk of losing their rights to it. All water users need to do is file a Notice of Conservation Plan with the Arizona Department of Water Resources, and they will gain protection of their water rights for up to ten years. Ideally, this bill will incentivize water users to conserve water on their land and leave as much water in the already low-flowing rivers and streams as possible.

While it is possible that some users may take advantage of this program and simply file a conservation plan to avoid forfeiture while making no steps to conserve, it would still guarantee that what previously would have been wasted water will be left in rivers and streams. Notably, this bill received unanimous bipartisan support at the legislature, suggesting that the uncertainty created by climate change is an issue that concerns all desert dwellers equally and requires everyone to aspire to a more sustainable lifestyle.

Teamwork Makes the Dream Work 

This bill is a perfect example of the type of behavior that makes a state a good neighbor. The Colorado River supplies over forty million people living in Arizona, California, Colorado, Nevada, New Mexico, Utah, Wyoming, and Mexico with a crucial supply of water. As the river levels drop, every water recipient must find a way to use less than the amount of water they were promised over a century ago. Some states are prioritizing their residents’ water supply instead of working to ensure equitable apportions to all users. For example, a recently proposed bill in Utah bolsters a long-pursued pipeline that would transport billions of gallons of water from Lake Powell—a critical reservoir that feeds the Colorado River—to a region near St. George, Utah. This pipeline would allow Utah an additional 400,000 acre-feet of water on top of the one million acre-feet it typically uses. While Utah is legally entitled to use this additional portion, it is not a practical demand on the already depleted supply.

States that rely on the Colorado River need to work together to negotiate a new plan to protect this water source from total depletion. As John Fleck, the director of the University of New Mexico’s Water Resources Program, poignantly said, “[t]he goal of renegotiating is figuring out how to use less, not staking out political turf to try to figure out how to use more.” Similarly to Arizona’s modification of their “use it or lose it” clause, Colorado and New Mexico have also eased up on water right forfeiture requirements. While these efforts do not directly affect the Colorado River, leaving more water in streams and other rivers for recreational or city use will lower the demand for Colorado River supply. 

Water sustainability is an issue that impacts every human being. The only way a significant long-lasting impact will occur is if there is a multistate effort to reduce consumption and create innovative conservation methods. Arizona’s water law modification may have a minor impact on the water shortage, but every flood begins with a single drop of rain.

"Grand Canyon: Bright Angel Creek - Cottonwood Campground 0171" by Grand Canyon NPS is licensed under CC BY 2.0

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By Alexandra Nathe

J.D. Candidate, 2022

Alex is a 2L Staff Writer from Tucson, Arizona. She earned her Bachelor of Science and Master of Engineering degrees from the University of Arizona before traitorously moving to Phoenix to pursue a Juris Doctor focused on Patent Law. She can often be found doing yoga, hiking, and searching for the best Happy Hour in Downtown Phoenix.

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.