December 2014, Issue 89: Editor’s Notes

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Some of Arizona’s most influential water planners want to expedite the state’s general stream adjudications. A push from the legislature will help make this happen.

In a recent Arizona Republic op-ed piece, former Arizona Senator John Kyl and water lawyer Grady Gammage, Jr., outline actions for working towards water sustainability in Arizona. They conclude that the state’s number one priority should be to “resolve competing claims to surface water and make pending stream adjudications more efficient.” This bold and encouraging statement is not altogether surprising; it follows the release of ADWR’s Strategic Vision for Water Supply Sustainability, which targets the completion of the state’s two general stream adjudications — including Indian water rights claims — within 10 years. This is no simple task, as the Gila River and Little Colorado River adjudications involve tens of thousands of parties and individual claims:

Gila River Adjudication Little Colorado River Adjudication
No. of parties (approximate) 30,000 5,000
No. of claims (approximate) 83,000 15,000

In 1985, the U.S. Supreme Court ruled that Arizona state courts have jurisdiction over federal / Indian water claims as part of general stream adjudicationproceedings. This ruling led to the settlement of numerous Indian claims over the past three decades. Despite progress on the federal side, however, to date, no non-federal, non-Indian water-right claims have ever been resolved in Arizona’s Gila and Little Colorado River basins, except on an interim basis pending finalization of the general stream adjudications.

One big reason for the gridlock is the pending resolution of the “subflow” issue. Arizona has different legal structures for groundwater and surface water rights. In addition, the Court acknowledges a third type — subflow — defined as “waters which slowly find their way through the sand and gravel constituting the bed of the stream, or the lands under or immediately adjacent to the stream, and are themselves a part of the surface stream” (Arizona Supreme Court, Southwest Cotton, 1931). After decades of debate on how to apply this standard, the Adjudication Court determined that subflow is confined to the “saturated floodplain Holocene Alluvium” associated with perennial or intermittent streams.

As the Court’s technical advisor, ADWR shoulders several burdens. One is mapping subflow zones along all streams and major tributaries in both basins. In June 2009, the agency released the first report delineating subflow zones for the San Pedro River as part of the Gila River adjudication. However, many entities took issue with its methodology and findings. The process has been ongoing, with several key milestones achieved in 2014 — a revised report was submitted, public comments were provided, and a hearing was held. Despite this progress, the Court has yet to approve the delination. ADWR is also tasked with developing a methodology to assess surface water capture by wells located outside of the subflow zone (the “cone of depression test”). In addition, the agency must prepare hydrographic survey reports for all 10 watersheds in the two basins. Unfortunately, in the past few years, due to budgetary constraints, only a handful of ADWR staff have been assigned to adjudication support.

The benefits of completing the general stream adjudications are obvious. Achieving this milestone will finalize the quantity, extent, location, and priority of surface water rights across most of the state, giving certainty to claimants/holders and enabling statewide planning. It will also facilitate protection of instream flows in environmentally critical areas. However, accomplishing this enormous task in any reasonable timeframe will require increased and sustained funding of ADWR from the state legislature to resolve these cases that, in the words of Gammage and Kyl, have been “languishing in the courts for almost 40 years.”

Juliet M. McKenna, MS, PG