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Benefiting Landowners and Desert Rivers: A and Desert in ArizonaBenefiting Landowners Agreements for Conservation Water Rights Handbook

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ARIZONA

LANDAND WATER TRUST About Arizona Land and Water Trust

Arizona Land and Water Trust protects southern Arizona’s western landscapes,

working farms and ranches, water, and wildlife habitat. Since its inception in 1978,

the Trust has protected more than 30,000 acres of working landscapes, water,

habitat, and cultural resources through partnerships with landowners, government

agencies, and other conservation organizations. In 2007, the Trust launched its

Desert Rivers and Riparian Heritage Initiative to develop and implement water

stewardship tools that will sustain the rural livelihoods and riparian habitats that

enrich Arizona’s natural and cultural landscapes. Arizona Land and Water Trust Benefiting Landowners and Desert Rivers: A Water Rights Handbook for Conservation ARIZONA

LANDAND Agreements in Arizona WATER 3127 N. Cherry Ave. TRUST Tucson Arizona 85719 Phone: 520.577.8564 Fax: 520.577.8574 www.alwt.org Benefiting Landowners and Desert Rivers: A and Desert in ArizonaBenefiting Landowners Agreements for Conservation Water Rights Handbook

Notes:

ARIZONA

LANDAND WATER TRUST About Arizona Land and Water Trust

Arizona Land and Water Trust protects southern Arizona’s western landscapes,

working farms and ranches, water, and wildlife habitat. Since its inception in 1978,

the Trust has protected more than 30,000 acres of working landscapes, water,

habitat, and cultural resources through partnerships with landowners, government

agencies, and other conservation organizations. In 2007, the Trust launched its

Desert Rivers and Riparian Heritage Initiative to develop and implement water

stewardship tools that will sustain the rural livelihoods and riparian habitats that

enrich Arizona’s natural and cultural landscapes. Arizona Land and Water Trust Benefiting Landowners and Desert Rivers: A Water Rights Handbook for Conservation ARIZONA

LANDAND Agreements in Arizona WATER 3127 N. Cherry Ave. TRUST Tucson Arizona 85719 Phone: 520.577.8564 Fax: 520.577.8574 www.alwt.org Acknowledgements The handbook would not have been possible without the generous support of the Nina Mason Pulliam Charitable Trust, an anonymous family foundation, and the RBC Blue Water Project.

This handbook is the result of almost two years of collaboration with a diverse group of organizations and individuals. Without their unique perspectives, contributions, and advice, we could not have offered as comprehensive an overview. While the information presented in this handbook grew out of discussions with our partners, it does not necessarily reflect the opinions or viewpoints of any individual, agency, or organization. The viewpoints, analysis, and opinions expressed in the handbook are those of Arizona Land and Water Trust, which also takes responsibility for possible errors and/or omissions.

Arizona Land and Water Trust would like to thank:

47 Ranch Pima County (cont.) Dennis Moroney Joe Kellner Natural Resources, Parks and Recreation Arizona State Parks Rita Leon Jay Ream Real Property Division Bob Sejkora David Scalero Babacomari Ranch Regional Flood Control District Ben Brophy Mike Stofko Real Property Division Bridle Bit Ranch Brad DeSpain Santa Lucia Ranch Bob Honea Jon Rowley Peggy Rowley Ganado Group Tom Rolston Sonoran Institute Amy McCoy Headquarters West, Ltd. Charlie Havranek Steven Weatherspoon, PLLC Steven Weatherspoon Kauttu Valuation Jeff Kauttu Tucson Audubon Society Dr. Paul Green Principal Authors: The Nature Conservancy Kendall Kroesen Aaron Citron, Project Manager, Arizona Land and Water Trust Jean Calhoun Scott Wilbor Dustin Garrick, Consultant Dave Harris Diana Imig The University of Arizona Kathy Jacobs Pima County School of Geography and Development Production Credits: Harlan Agnew Robert Glennon Design and Illustration: Printing and Binding: Copy Editing: Pima County Attorney’s Office James E. Rogers College of Law Denise Barnes – Dabfab Design Spectrum Printing Company, LLC June Hussey Christina Biggs Sharon Megdal Arizona Lithographers Wheatmark, Inc. Real Property Division Water Resources Research Center Kathy Chavez Joanna Nadeau Photos: Wastewater Reclamation Department Water Resources Research Center Cover: Late October along the San Pedro River near the ghost town of Fairbank, Arizona (Photo: David Putnam) James DuBois Inside cover: Irrigated Agriculture Along the San Pedro River (Photo: John H. Hoffman - Flight: Lighthawk) Wastewater Reclamation Department Will Murray Company Julia Fonseca Will Murray Above: Stock Tank on the Sands Ranch (Photo: Arizona Land and Water Trust) Office of Conservation Science and Environmental Policy Acknowledgements The handbook would not have been possible without the generous support of the Nina Mason Pulliam Charitable Trust, an anonymous family foundation, and the RBC Blue Water Project.

This handbook is the result of almost two years of collaboration with a diverse group of organizations and individuals. Without their unique perspectives, contributions, and advice, we could not have offered as comprehensive an overview. While the information presented in this handbook grew out of discussions with our partners, it does not necessarily reflect the opinions or viewpoints of any individual, agency, or organization. The viewpoints, analysis, and opinions expressed in the handbook are those of Arizona Land and Water Trust, which also takes responsibility for possible errors and/or omissions.

Arizona Land and Water Trust would like to thank:

47 Ranch Pima County (cont.) Dennis Moroney Joe Kellner Natural Resources, Parks and Recreation Arizona State Parks Rita Leon Jay Ream Real Property Division Bob Sejkora David Scalero Babacomari Ranch Regional Flood Control District Ben Brophy Mike Stofko Real Property Division Bridle Bit Ranch Brad DeSpain Santa Lucia Ranch Bob Honea Jon Rowley Peggy Rowley Ganado Group Tom Rolston Sonoran Institute Amy McCoy Headquarters West, Ltd. Charlie Havranek Steven Weatherspoon, PLLC Steven Weatherspoon Kauttu Valuation Jeff Kauttu Tucson Audubon Society Dr. Paul Green Principal Authors: The Nature Conservancy Kendall Kroesen Aaron Citron, Project Manager, Arizona Land and Water Trust Jean Calhoun Scott Wilbor Dustin Garrick, Consultant Dave Harris Diana Imig The University of Arizona Kathy Jacobs Pima County School of Geography and Development Production Credits: Harlan Agnew Robert Glennon Design and Illustration: Printing and Binding: Copy Editing: Pima County Attorney’s Office James E. Rogers College of Law Denise Barnes – Dabfab Design Spectrum Printing Company, LLC June Hussey Christina Biggs Sharon Megdal Arizona Lithographers Wheatmark, Inc. Real Property Division Water Resources Research Center Kathy Chavez Joanna Nadeau Photos: Wastewater Reclamation Department Water Resources Research Center Cover: Late October along the San Pedro River near the ghost town of Fairbank, Arizona (Photo: David Putnam) James DuBois Inside cover: Irrigated Agriculture Along the San Pedro River (Photo: John H. Hoffman - Flight: Lighthawk) Wastewater Reclamation Department Will Murray Company Julia Fonseca Will Murray Above: Stock Tank on the Sands Ranch (Photo: Arizona Land and Water Trust) Office of Conservation Science and Environmental Policy ARIZONA LAND AND WATER TRUST

Benefiting Landowners and Desert Rivers: A WATER RIGHTS HANDBOOK FOR CONSERVATION AGREEMENTS IN ARIZONA

1 Benefiting Landowners and Desert Rivers: A WATER RIGHTS HANDBOOK FOR CONSERVATION AGREEMENTS IN ARIZONA

Date Printed: January, 2010

Suggested Citation: Arizona Land and Water Trust, Citron A. and D. Garrick, 2009. Benefiting Landowners and Desert Rivers: A Water Rights Handbook for Conservation Agreements in Arizona. Arizona Land and Water Trust: Tucson, AZ. First Edition.

Disclaimer This handbook is presented and intended as a general guide to certain methods and strategies for using water resources for conservation and related purposes, including ranching and farming. While the handbook necessarily discusses water-related legal issues and precedents, it is not offered as a definitive or authoritative legal resource. The law of water and water rights in Arizona is complex and, in many circumstances, uncertain or dependent on the specific set of facts involved. Accordingly, the statements and conclusions presented here concerning the law are not intended as legal advice on any issue or question. The assistance and opinions of a competent water law practitioner should be obtained before any decisions are made or actions are taken with respect to legal issues related to the existence and use of water or water rights.

Printed on recycled paper 2 Foreword

Desert water—our streams and rivers, springs, ponds and pools—allows both human and natural communities to survive in the arid Southwest. The working landscapes that span our watersheds are part of an intricate system of natural and man-made elements that define our way of life by supporting and protecting rural communities, biodiversity, cultural resources and sweeping western vistas. Arizona Land and Water Trust believes that even in the face of prolonged drought, growth pressures and a changing climate, we can work together to sustain this intricate system. By offering additional tools to support the stewardship practices already in place, and creating new tools and incentives for willing landowners, we can protect the working landscapes that also support our shared natural systems and sustain our rural communities.

This handbook is intended to offer useful information to those working on the land, at the intersection of working landscapes and natural communities. It is not intended to create additional stresses on the landowner’s limited water resources but to identify tools that will support working landscapes and natural systems as they adapt into the future.

While our intended audience is primarily landowners, we hope the information provided here is also useful to organizations, agencies, policy makers, consultants and advisors. The handbook is meant to be used as a reference resource that helps to clarify some of the complexities of understanding water rights in Arizona. We hope it will also assist in framing stewardship opportunities, both on the ground, where ranchers and farmers are sustaining their businesses, and across the state, where people are engaging in discussions about how to plan for the future.

The handbook is intended to provide a point of beginning as we look to partner with willing landowners who are strengthening a system that is fragile but still in place: locally-produced food, rural communities, and vast, protected working landscapes. This is a system that also produces effective groundwater recharge, protects water quality and water supplies, and provides wildlife habitat. Thus, it protects our quality of life in Arizona.

We hope that this handbook will not only offer useful information, but also initiate dialogue on a topic that is often difficult to discuss: how do we sustain our current way of life and plan for the future? Soon we will begin the next phase of this work—our “Listening Tour”. We invite you to join us and we look forward to your feedback.

3 Table of Contents

ACKNOWLEDGEMENTS �� Inside Front Cover

Foreword �� 3

INTRODUCTION: Desert Streams and Rivers �� 7

section 1: Water Resources and Water Rights �� 13 Water Sources �� 13 Management Jurisdictions: Arizona Department of Water Resources �� 15 Types of Water Rights in Arizona �� 15 Surface Water �� 15 Types Of Surface Water Rights �� 17 Groundwater �� 18 Types Of Groundwater Rights �� 19 Characteristics of Water Rights in Conservation Agreements �� 21

section 2: Conservation Tools �� 25 The Pulse of a Desert River: Connections Between Groundwater and Surface Flows �� 26 Tools �� 27 Surface Water Tools �� 29 Groundwater Tools �� 33 Land Agreements that Provide Riparian Benefits �� 36

section 3: Practical Guidance �� 41 Due Diligence �� 41 Valuation and Appraisal �� 44 Drafting: Specificity and Exhibits �� 46 Stewardship �� 47

EdNtesn o �� 49

4 List of Figures

Landowner-Based Conservation Philosophy �� 9 Gaining and Losing Streams: Depicting the Three Major Hydrologic Reach Types and Corresponding Vegetation Patterns �� 26

List of Tables

Types of Surface Water Filings by Prefix �� 18 Colorado River Rights and Contracts �� 18 Grandfathered Groundwater Rights �� 20 Other Groundwater Use in AMAs �� 20 Inventory of Water Rights Types by Prefix �� 43

Special Features

Babacomari Ranch: Ben Brophy �� 9 Arizona Land and Water Trust and Pima County: A Partnership to Protect Pima County’s Critical Western Landscapes �� 10 A Note on Measurement Units �� 16 Artificial Recharge �� 19 47 Ranch: Dennis Moroney �� 22 Case Study: Cienega Creek Instream Flow Permit �� 28 Effluent: A Third “Source” of Water �� 37 Case Study: Marana High Plains Effluent Recharge Project �� 38 Scaling Up: Landowners, Communities, and Watersheds �� 48

Appendices

APPENDIX 1: Water Rights Due Diligence Checklist �� 52 APPENDIX 2: Water Rights Stewardship Checklist �� 54 APPENDIX 3: Arizona Water Budgets �� 55 APPENDIX 4: Arizona Stream Adjudications Map �� 56 APPENDIX 5: Active Management Areas and Irrigation Non-Expansion Areas Map �� 57 APPENDIX 6: Status of Instream Flow Applications in Arizona Map �� 58 APPENDIX 7: Contacts �� 59

5 6 Introduction Desert Streams and Rivers Our Shared Riparian Heritage and Common Future

Arizona farmers and ranchers would likely Along desert rivers, landowners in rural agree with the Pulitzer-prize winning American communities facing growth and drought are author, Wallace Stegner, when he wrote “Water tightly connected to the health of the watershed. is the true wealth in a dry land.” Forging a The central goal of the Desert Rivers Initiative is sustainable livelihood in the desert is an enduring to find landowners willing to work towards this challenge, albeit not an impossible one. The vision to achieve more reliable streamflow and extremes of our desert environment have always floodplain function in a way that also meets the rewarded adaptability and resilience. interests of the landowner. One’s livelihood need not depend on water to Streamflow incentives (agreements to preserve be passionate about water conservation, however. or enhance the flow components of a healthy Every Arizonan is a stakeholder when it comes working river) and floodplain health incentives to protecting our state’s precious, natural water (agreements to maintain or modify management supply. Desert rivers are vital to Arizona’s iconic practices on private lands to conserve the cultural and natural landscapes and ecosystems. floodplain health needed for aquifer recharge, If we care enough to preserve forever the rural riparian habitat and productive agricultural lands character and ecological integrity of Arizona’s and rural communities), are available and can be vanishing western landscapes, rivers and streams, combined to meet the goals of the Desert Rivers then we must begin by working together to and Riparian Heritage Initiative. protect our desert rivers today. Win-win partnerships have already been Arizona Land and Water Trust’s Desert Rivers successfully forged for this purpose in many and Riparian Heritage Initiative charts a path Arizona locales. As you read some of these success toward a collaborative vision of healthy working stories in this handbook, you will see that a rivers: rivers that work for rural communities and voluntary movement towards sustainability has landowners while remaining functional riparian begun, spearheaded at the most local level by ecosystems. landowners of working ranches and farms. Functional floodplains are the linchpin in the connection of land and water. Floodplains act as giant sponges that absorb seasonal floodwaters into the ground, sustaining river-aquifer systems during drier times. Ranchers and farmers are often the primary custodians of this connection. A vision of healthy working rivers supports traditional land uses while ensuring floodplains remain intact and contribute to aquifer Sycamore Spring at the 47 replenishment, water quality, and healthy habitat. Ranch (Photo: Arizona Land and Water Trust) 7 As water needs increase in our developing The following chapters compile valuable desert, Arizona Land and Water Trust works with information about water resources and water landowners, other foundations, conservation rights, conservation tools, best practices, and groups, and government officials to ensure that practical guidance. Section 1 presents an interests in favor of improved instream flows are overview of water resources and water rights aligned and have a strong voice in statewide water in Arizona. It addresses and describes sources discussions. Arizona Land and Water Trust also of water, types of water claims and rights, supports efforts to develop sustainable funding and the management jurisdictions that frame sources in order to ensure that sufficient water for opportunities for land stewardship and riparian agricultural, instream, and municipal needs will protection. Section 2 lists conservation tools be available into the future. and connects them with potential incentives

Aquifer: An underground layer of permeable rock, sediment (usually sand or gravel), or soil that yields water. The pore spaces in aquifers are filled with water and are interconnected, so that water flows through them.

Top: A View in the Vicinity of the O’Maras Mine (Photo: David Putnam)

Bottom: Headwaters of the Santa Cruz River in the San Rafael Valley (Photo: Kelly E. Mott Lacroix, Arizona Department of Water Resources) 8 and benefits for eligible property owners. Section 3 Babacomari Ranch: Ben Brophy summarizes a set of best practices for incorporating Over the past seventy-five years (fifteen years during my water rights into conservation agreements at every tenure), we have employed many practices to defend our stage, from due diligence to stewardship. ranch from drought and erosion. While their harmful We hope this handbook will lead to partnership- impacts are all too frequent in this portion of southeastern based solutions that provide benefits to both Arizona, we are committed to mitigating their impacts landowners and ecosystems. Some tools might the best we can. With the goal of capturing the greatest employ direct financial or tax benefits, while others amount of the limited annual rainfall we receive, we have might reimburse landowners who volunteer to engage methodically employed range improvements to each in management practices that benefit our natural ecological site on the ranch with the assistance of rangeland resources. Regardless of the methods and tools used, specialists from the Natural Resources Conservation a shared and forward-thinking perspective might have Service (NRCS). By restoring grasslands through both significant, long-term benefits for everyone. ■ mechanical and chemical brush control practices in our uplands and adding new fencing and grazing strategies to our riparian bottomlands, we are losing less water to runoff and mitigating erosion by improving or stabilizing plant communities. Our efforts, with the assistance of the NRCS, are readily apparent, especially in the riparian zone along the Babacomari Creek, because we are better Water Riparian able to react to mother nature and manage our resources Quality Habitat accordingly.

Family Farms and Ranches

Aquifer Floodplain Recharge Health

Landowner-Based Conservation Philosophy

Left: Cattle on the Babacomari Ranch (Photo: Frank McChesney, Babacomari Ranch)

Above: Water Tank on the Babacomari Ranch (Photo: Frank McChesney, Babacomari Ranch) 9 Arizona Land and Water Trust and Pima County: A Partnership to Protect Pima County’s Critical Western Landscapes

Southern Arizona has been undergoing unprecedented growth. Vast stretches of open rural ranchland are being converted to seemingly endless numbers of five- to forty-acre ranchettes. This pattern of unregulated development impacts scenic views, fragments wildlife habitats, lowers our groundwater table, and reduces air quality. In the face of these changes, Arizona Land and Water Trust (the Trust) has tried to find ways to relieve some of these mounting pressures and help to keep landowners on their land. In 1998, Pima County began preparing a multispecies habitat conservation plan, the nationally acclaimed Sonoran Desert Conservation Plan (SDCP). As part of the planning process, the County identified more than two million acres of land as biological core or important riparian areas meriting some level of protection under the SDCP. The Trust, understanding that it would not be possible to protect two million acres of land, led the effort to prioritize land for protection should funding become available for conservation.

10 The Trust joined with partners including The Ranch (2,700 acres). These lands contain Nature Conservancy, Sky Island Alliance, and significant water resources and protect areas in the Coalition for Sonoran Desert Protection to the Santa Cruz and San Pedro River watersheds. create habitat conservation priorities. The protection of these lands contributes The Habitat Protection Priorities map significantly to the overall goal of the Sonoran was adopted by both the eighty-five-member Desert Conservation Plan as well as the Trust’s Citizens’ Steering Committee for the Sonoran goal of protecting Southern Arizona’s western Desert Conservation Plan and the Pima County landscapes, working farms and ranches, water, Board of Supervisors as the focus of County and wildlife habitats. conservation efforts. The Trust’s Habitat Protection Priorities for Eastern Pima County call for protection of the community’s richest biological resources on both private and state land. The Trust continues to partner with Pima County and landowners to protect these lands in perpetuity by negotiating land acquisitions with willing sellers. Funding to acquire and protect the conservation priorities comes from the May 2004 Conservation Bond that raised $112 million for habitat conservation. Since the adoption of the Habitat Protection Priorities, the Trust has assisted in the acquisition and permanent protection of 29,255 acres of high-priority private lands using 2004 Conservation Bond funds. The most recent lands protected by the Trust and Pima County are the Sopori Ranch (4,135 acres), Sands Ranch (5,040 acres), Clyne Ranch (880 acres), and Empirita

Opposite from top: Six Bar Ranch: Edgar Canyon (Photo: Josh Schacter)

Six Bar Ranch: Butterfly (Photo: Josh Schacter)

Large Cottonwood Tree at the Sopori Ranch (Photo: Joseph Belfiore)

Above: Inspecting a Stock Pond on the Sands Ranch (Photo: Arizona Land and Water Trust)

Left: Looking Across Rancho Seco Towards the Cerro Colorado Mountains (Photo: Trilby DuPont, Arizona Land and Water Trust) 11 12 Section 1 Water Resources and Water Rights Water Sources, Arizona Management Jurisdictions, and Water Rights

This section introduces the various permits, Municipal effluent, water treated for reuse, is claims, rights, and other interests that can be commonly thought of as a third source of water. acquired in the use of water in Arizona. These Effluent is owned by the entity that treats and are discussed across four elements: releases it.1 However, once effluent is released into a natural stream channel, it takes on most • Water Sources of the legal characteristics of surface water, and • Management Jurisdictions water rights to effluent can be acquired in much • Types of Water Rights the same way as rights to other surface water. • Characteristics of Water Rights in Municipalities treating and discharging effluent Conservation Agreements can own and sell effluent and have no obligation, absent a contractual agreement with a water user, Water Sources to continue to discharge it to satisfy the claims Landowners can acquire and hold several of downstream users. Effluent is widely used to different types of water rights and claims in recharge aquifers. It has become increasingly Arizona. There are various types of water rights. common for water treatment plants to release In particular, groundwater pumped from a well treated effluent directly into stream beds to and surface water are subject to different laws. simultaneously support riparian habitat and Within these two water sources, water rights to provide for aquifer recharge along the way have different attributes depending upon the downstream. management jurisdiction where the water is The term “water rights” is viewed differently by acquired or used. Management jurisdictions, such different people. Many surface water users rely on as Active Management Areas (AMAs), irrigation claims to the surface water because most surface districts, tribal reservations, and a range of others, water rights in Arizona are not yet adjudicated by Opposite: may affect water allocation and water rights. Monitoring a In many areas, surface water and groundwater Conservation Easement are physically and hydrologically connected by at Sycamore Canyon on interactions between streams and underground the Diamond C Ranch aquifers. Groundwater discharge supports (Photo: Arizona Land surface water flows in many regions, and surface and Water Trust) water recharges aquifers. Under Arizona law, however, surface water and groundwater are Left: distinct. Subflow is a source of water that exists Aravaipa Creek at the interface of groundwater and surface water, (Photo: Kelly E. although in Arizona it retains the legal character Mott Lacroix, Arizona of surface water. Department of Water Resources) 13 the courts. What people often refer to as water water and groundwater are regulated by Arizona “rights” actually encompasses a wide variety of Department of Water Resources (ADWR) and different interests in water. Many water rights other local management jurisdictions. Arizona’s and claims exist that may not be supported by an reliance on groundwater led to the 1980 actual source of water. Such rights are frequently Groundwater Management Act, managing the called “paper water rights,” as opposed to “wet “withdrawal, transportation, use, conservation water rights.” Lacking a water supply to back up and conveyance of rights to use the groundwater the paper claim, these water rights may not stand in this state.”5 When an entity acquires a water up to future legal scrutiny. right, it holds a right to the use of the water Different users can hold a wide variety of subject to a set of regulations, conditions, and interests in water. For clarity, the general term rules. This sort of a property right is known as a Groundwater “water rights” will be used in this handbook “usufructory right.” The regulations, conditions, Overdraft: for purposes of discussion. Water rights refers and rules applicable to water rights depend upon Groundwater has broadly to a variety of legal and administrative the source, location, and management jurisdiction traditionally been rights, allocations, certificates, and claims to the of the right. the primary source of use of water from various sources. While water Water rights in Arizona are conveyed in water for many Arizona rights are managed and regulated in different much the same way as real property. That is, communities. When ways than most other types of property, they they generally can be bought and sold by a deed the rate of withdrawals share many of the attributes of real property or similar instrument. Many water rights are, has increased faster and are dealt with in much the same way. Water however, connected, or appurtenant, to the than an aquifer can be rights, especially groundwater rights, must be land on which they are put to use and cannot be recharged, the aquifer conveyed by deed.2 All surface waters in the state conveyed separately from the land itself. Most is said to experience of Arizona “belong to the public,”3 but surface water rights transactions are overseen by ADWR “overdraft.” Pumping water rights are still appurtenant to—or must and other administrative and government from such aquifers is be conveyed with—the land on which they are agencies. In some cases, a transfer of ownership sometimes referred used, unless they are severed and transferred or change of use must be filed with, reviewed, and to as groundwater per a particular legal process.4 Both surface approved by the appropriate regulatory body. “mining.” Overdraft may reduce the quantity and quality of the water in the aquifer. As water is pumped from an aquifer, the land overlying the aquifer may subside. Land subsidence can result in a drop in surface elevation and is frequently combined with cracks in the soil and fissures.6

Cattle and Antelope on the Babacomari Ranch (Photo: Frank McChesney, Babacomari Ranch) 14 While this handbook may offer a basic General Stream Adjudications understanding of how water rights can be In 1974, a process known as the “general incorporated into win-win conservation stream adjudication” was initiated to formally agreements, an attorney experienced in Arizona establish the nature, extent, and priority of all water law should always be consulted before surface water rights. Each potential claimant making any decisions regarding water rights. had an opportunity to state the particulars of his or her claims in the appropriate superior Management Jurisdictions: Arizona court. The adjudication of the Little Colorado Department of Water Resources River and the Gila River, involving tens of Several regulatory bodies and management thousands of claimants, is ongoing. (See Stream areas and jurisdictions affect the allocation and Adjudications Map in Appendix 4.) The Gila regulation of water in Arizona. Federal and River Watershed encompasses nearly 85 percent state agencies, irrigation districts, municipal of Arizona’s population, and over 83,000 claims water providers, and local governments all have have been filed by more than 24,000 water users. different roles and legal authority. ADWR Water pumped from wells located near stream was created in 1980 with the passage of the channels may directly affect surface flows in Groundwater Management Act to “secure long- neighboring associated streams and rivers. Water term dependable water supplies for Arizona’s that is associated with surface flows in this way communities.” A state-wide agency, ADWR is is called subflow and it may be treated legally as the primary regulatory authority over most water surface water. 8 Such water withdrawn from wells rights matters. The state calls upon ADWR to in the subflow zone may also be considered in perform the following functions: the general stream adjudications. For example, in the San Pedro Watershed, the adjudication court Active Management • Administer and enforce Arizona’s groundwater has determined that the extent of the saturated Area: Created by the code and surface water rights laws (except Holocene alluvium delineates the subflow zone. 1980 Groundwater those related to water quality), There is a legal presumption that water pumped Management Act (the • Negotiate with external political entities to from within this zone will be considered as “Act”.) Water rights in protect Arizona’s Colorado River water supply, surface water in the general stream adjudications. AMA’s are based on • Oversee the use of surface and groundwater ADWR is providing technical assistance to historic groundwater resources under state jurisdiction, and support the judicial process.9 This adjudication uses during the five • Represent Arizona in discussions of water process is still pending, but several due diligence years prior to the rights with the federal government. practices (see Section 3 of this handbook) have groundwater Act’s been developed to help water rights holders make passage in 1980. ADWR also “explores methods of preliminary determinations of a surface water Certain water rights augmenting water supplies to meet future claim’s anticipated extent and priority once the may be transferred demands, and develops policies that promote adjudications are complete. within the AMA, but conservation and equitable distribution of generally water may water” while providing support to the courts Types of Water Rights in Arizona not be transported in the adjudication of surface water rights.7 outside the boundaries The Department’s regulatory authority Surface Water of the AMA. The varies across the state’s geography. Active Definition – Surface water is defined in Arizona use, transportation, Management Areas (AMAs), however, are as “the waters of all sources, flowing in streams, and administration of the focus of much of the agency’s regulatory canyons, ravines or other natural channels, or water within an AMA activities and administrative resources relating in definite underground channels, whether is regulated differently to groundwater within and around the urban perennial or intermittent, flood, waste or surplus than in areas outside of areas in central and southern Arizona. See water, and of lakes, ponds and springs on the an AMA. Appendix 5. surface.”10 (See Appendix 5) 15 Subflow, as described above, may also be treated as surface water and governed according to the prior appropriation doctrine. This water may be subject to the general adjudication process. A Note on Measurement Units Appropriation and Allocation – Surface water rights are allocated based on a priority system. The first entity to use water beneficially is the last to lose access to it during periods of insufficient surface flows. This priority system is based upon the principle of “first in time, first in right.”13 Earlier established water rights are more “senior” than later-established “junior” rights. The most senior water rights are the most secure and are generally more valuable than junior rights. In order for a water right to be perfected, the Measurement units for water are appropriated water must be shown to be for a reported in terms of rate, volume, and “beneficial use.”14 In Arizona, water can be used conveyance or pumping capacity. Flow beneficially for “domestic, municipal, irrigation, rates refer to the volume of water flow stock watering, water power, recreation, wildlife, over an interval of time. Rate of flow is including fish, nonrecoverable water storage … reported in cubic feet per second (cfs). or mining uses, for his personal use or for delivery Streamflows are commonly described to consumers.”15 Note that Arizona recognizes in these units. A hydrograph represents the preservation of river flows for the benefit of the flow, in cubic feet per second, fish, wildlife, and recreation as a beneficial use.16 over the course of a season or year. Instream flow rights are surface water rights that However, other water rates are relevant remain in the stream—or in situ—in order to for groundwater, such as groundwater maintain the streamflow necessary to preserve pumping rates, which are reported in wildlife, fish, and recreation. gallons per minute (gpm). In the United States, water volume is reported in acre- Forfeiture, Abandonment, and Relinquishment feet. An acre-foot is 325,851 gallons, Surface water users can lose their surface describing the quantity of water needed water rights after a period of sustained non- to cover an acre of land to a depth of use. Authorized beneficial water uses must be one foot. An acre-foot of water is the maintained without gaps of longer than five approximate quantity of water (325,851 years in order to avoid forfeiture. With certain gallons) needed by a typical suburban exceptions, if a right is not put to its registered, family for a year.11 In Arizona and much beneficial use for five or more consecutive years, of the desert southwest, where water the water “shall revert to the public and shall conservation measures have been put in again be subject to appropriation.”17 A right to place, a typical family uses only about claimed waters may be relinquished if a statement one-quarter to one-half of an acre-foot of claim is not filed by the user pursuant to the per year.12 Above: Water Rights Registration Act.18 Stock Pond on the Clyne Similarly, water users must be sure to file Ranch (Photo: Arizona a Statement of Claimant with ADWR for Land and Water Trust) any water claims that might be subject to 16 adjudication. Once adjudication is complete and other than the Colorado are created pursuant to a judgment has been rendered, if a water user has the prior appropriation doctrine. Some of these failed to file such a Statement of Claimant, they water rights were established before Arizona will relinquish any right in the river system not became a state in 1912 and adopted the Arizona properly claimed before the court.19 Public Water Code in 1919. 21 Two broad types of surface water diversion rights exist based Changes and Transferability – Once a surface on the timing and procedure used to establish water right is appropriated, the water user can them: common law rights (pre-1919 claims) and change its point of diversion, time of use, or statutory rights. beneficial use. Changes in the place, time, or type (1a) Common Law Rights. Prior to the of use may be subject to administrative review. A passage of the 1919 Public Water Code, surface change of the place of use of a surface water right water rights were established by filing a notice is referred to as a “severance and transfer” of that of intent to divert at the county recorder’s right. The sever-and-transfer process, discussed in office. The right was subsequently “perfected” by greater depth in Section 2, generally requires the developing the diversion works and applying the approval of the director of ADWR. Applications water to a beneficial use. Water rights could also for changes of the beneficial use, but not the place be established after diverted surface waters were of use, will be considered under the doctrine of put to a beneficial use, without filing a notice of “no injury” to other water users and must also be intent to divert, but instead by merely posting approved by the director of ADWR. A change a notice of the appropriation at the point of of use, or sever-and-transfer application will be diversion. approved only if ADWR determines that the (1b) Statutory Rights. The Arizona Public requested change will not affect, infringe upon, or Water Code provides that, in order to establish a interfere with any other vested or existing rights.20 new right, a person must apply for and obtain a permit from ADWR or its predecessors prior to Types of Surface Water Rights developing a diversion or putting surface water (1) Diversions. Common Law Rights and to use. A certificate of water right is issued upon Statutory Rights. Surface water rights along rivers proof to ADWR that the water has been put to

Cienega on the Babacomari Ranch (Photo: Frank McChesney. Babacomari Ranch) 17 a beneficial use. Today, this administrative oversight water diversions consistent with the Law of the River. continues, and an application must be filed with ADWR to establish a new surface water use. Colorado River Rights and Contracts Priority 1 Rights established prior to Types of Surface Water Filings by Prefix* 1929 “33” Application for new use or for instream flow Priorities 2 and 3 Rights or contracts established use. Prior to 1972, applications to appropriate prior to 1968 surface water were assigned the prefix 4A Priority 4 Central Arizona Project and and applications to construct a reservoir post-1968 contracts were assigned the prefix 3R. Since 1972, the Priorities 5 and 6 Excess water or water to be applications have been consolidated into the 33 stored in artificial recharge application. basins “36” Statement of Claim of Rights to Use Public Waters of the State of Arizona. Claims to Groundwater surface water rights and surface water storage Definition –Groundwater is water stored in pores rights based on pre-1919 common law rights. in sands, gravels, and underground aquifers and replenished through natural and artificial recharge. “39” Statement of Claimant in the ongoing Specifically, Arizona defines groundwater as “water adjudications, including supporting evidence under the surface of the earth regardless of the and detail for 36 Statement of Claim of Right geologic structure in which it is standing or moving. to Use Public Waters of the State of Arizona. Groundwater does not include water flowing in Number 39 Statement of Claimant filings are underground streams with ascertainable beds and required to avoid relinquishment of water banks.”23 rights.22 “38” Claim of water right for a stock pond. Regulation of Groundwater Use – Groundwater * ADWR classifies all surface water filings with two- management and regulation in certain areas of the digit prefixes. state changed significantly following the passage of the Arizona Groundwater Code (“the Code”) in (2) Colorado River: Central Arizona Project and 1980. The Code quantified existing uses and created “On-river” Users. The Colorado River drains a a set of management jurisdictions called Active broad territory that includes two countries, seven Management Areas (AMAs) and associated goals that U.S. states, and several tribal lands, communities, govern a land area that covers only 13 percent of the and reservations. The river is allocated by interstate state but comprises 85 percent of its total water use.24 compacts, tribal settlements, federal statutes, (See AMA/INA map in Appendix 5.) On lands interstate accords, court decrees, and a treaty with outside of an AMA, groundwater can be pumped Mexico, collectively known as the “Law of the subject to the reasonable use doctrine, which entitles River.” Allocations within each state are governed landowners to pump a reasonable amount of water through a complex priority system, and Arizona has for beneficial use onto the overlying property without a six-tier system of water allocations for different wasting that water. A landowner must file a Notice types of Colorado River water rights within the of Intent to Drill with ADWR before constructing a state, including contracts for irrigation and tribal new well anywhere in the state. Groundwater basins and municipal water use delivered through the in AMAs that surround the central Arizona urban Central Arizona Project. Water diversions from the centers, including Phoenix, Tucson, and Prescott, are Lower Colorado River can be made only pursuant today managed and regulated according to a set of to a contract with the Secretary of the Interior. The standards created by the Code.25 Subject to certain contracts specify the amount and priority of the significant exceptions, groundwater uses in AMAs are 18 limited to quantities pumped between the years of 1975 and 1980. The Code also established Irrigation Non-Expansion Areas (INAs) in certain parts of the state. No expansion in the use of groundwater for irrigation purposes is permitted in INAs.

Changes and Transferability – Groundwater rights inside AMAs are managed very differently than groundwater rights outside of AMAs. A landowner outside an AMA may use groundwater per the reasonable use doctrine. Under certain circumstances, water may be transferable. 26 However, groundwater can only be removed from a hydrologic basin in particular circumstances and subject to a variety of restrictions. 27 A landowner inside an AMA can only use groundwater pursuant to a grandfathered right, a groundwater permit, or a service area right. Small, Artificial Recharge exempt wells can also be used to pump groundwater In order to make use of its entire Colorado River allocation and to within AMAs. assist in demonstrating assured water supplies, Arizona has been recharging its aquifers with water from various sources. Much Types Of Groundwater Rights of Arizona’s Colorado River allocation is transported through (1) Groundwater Rights in Active Management the Central Arizona Project and released into recharge basins Areas. The 1980 Arizona Groundwater Code near central Arizona’s urban centers. Effluent supplies, and some was created to protect aquifers from groundwater surface water, are also used for artificial recharge. These recharge overdraft in areas where levels of groundwater basins allow the water to seep down through the soil into the pumping exceeds artificial and natural recharge.28 aquifer. Artificial recharge replenishes the groundwater that has The Code created four AMAs in central Arizona. been, and continues to be, pumped from these aquifers. A fifth AMA was subsequently carved out of the Tucson AMA in 1994 due to the unique hydrologic Artificial recharge projects provide opportunities for innovative and political conditions of the Upper Santa Cruz public–private partnerships. Rural landowners may be able to Watershed. The primary goal of three of the four enter into incentive-based agreements that would allow recharge initial AMAs (Tucson, Phoenix, and Prescott) was facilities to be placed on their lands in return for financial and to reach “safe yield,” a balancing of groundwater physical benefits. The Marana High Plains Effluent Recharge withdrawals with recharge, by 2025.29 The Pinal Project in Pima County (see Case Study on page 38) is a clear AMA has a “planned depletion” goal meant to allow example of a win-win agreement between a rancher and Pima development of non-irrigation uses while preserving County. existing agricultural economies for as long as is feasible, “consistent with the necessity to preserve future water supplies for non-irrigation uses.”30 The Santa Cruz AMA was created to “facilitate binational negotiations for coordinated management of the Santa Cruz River.”31 Its goal is to “maintain a safe-yield condition in the active management area and to prevent local water tables from experiencing Colorado River in the Imperial National Wildlife long-term declines.”32 In order to meet this goal, Refuge (Photo: Kelly E. Mott Lacroix, Arizona surface and groundwater rights in the Santa Cruz Department of Water Resources) 19 Grandfathered Groundwater Rights33

Irrigation Acres irrigated prior to the 1980 Groundwater Code may continue Grandfathered to be irrigated but water use is based on the water duty (authorized Right34 quantity per acre) or other conservation requirements. Under certain conditions, up to 10 acre-feet per year are allowed to be used for residential or stock-watering use as well.

Type 1: Non- Generally, three acre-feet per acre for non-irrigation use on lands Irrigation Right on associated with prior irrigation. Type 1 rights are created by retiring Retired Irrigation Irrigation Grandfathered Rights and putting the groundwater to a Lands35 non-irrigation use. The groundwater must be withdrawn from the retired irrigation lands.

Type 2: Non- A non-irrigation use prior to 1980. Permitted quantity is generally Irrigation Right associated with the maximum use during any one year out of the five Not Tied to Retired preceding the Code’s adoption. Type 2 rights are not tied to any Irrigation Land36 particular piece of land. They are the only grandfathered rights that may be marketed within the AMA and separated from the land where it was established.

Groundwater Groundwater extinguishment credits are created by retiring Irrigation Extinguishment Grandfathered Rights or Type 1 or Type 2 rights. Groundwater Credits credits are a marketable asset for landowners because the credits can enable groundwater pumping in the AMA for assured water supply purposes.37

Other Groundwater Use in AMAs Exempt well38 Non-irrigation uses of groundwater from a well with a maximum pump capacity of not more than 35 gallons per minute, up to 10 acre- feet per year for commercial uses. Exempt wells are usually dedicated to domestic uses. Irrigation of less than two acres is considered a domestic use and permitted from exempt wells.

Service Area39 Cities, towns, private water companies, and irrigation districts have the right to withdraw and transport groundwater for use within their service areas, subject to certain limitations.

Groundwater Authority to withdraw groundwater for mining, industrial, and Withdrawal Permit certain other uses, may be obtained by seeking a permit from the (Mining and Director of the Arizona Department of Water Resources.40 Industrial Permits)

20 AMA are subject to coordinated planning and source, reliability, and transferability—will management. 41 frame opportunities and incentives for willing Water rights in AMAs were granted under the landowners to consider how to incorporate Code based upon the established water uses in water rights into conservation agreements. Key each distinct region prior to the Code’s passage. attributes include: The established uses prior to the Code’s passage are said to have been grandfathered in, while new • Source, uses are restricted or prohibited. Within AMAs, • Type of use, ADWR requires annual reporting of groundwater • Quantity, Irrigation Non- pumped from nonexempt wells—those with a • Time or season of use, Expansion Area: capacity of more than 35 gallons per minute. • Place of use, Created by the The 1980 Groundwater Code also established • Priority (Reliability), and 1980 Groundwater two Irrigation Non-Expansion Areas (INAs), • Transferability. Management Act. the Joseph City and Douglas INAs. These areas When an area is were created to limit agricultural pumping Source – The sources of water include surface designated an INA, outside of the major urban areas encompassed water, groundwater, and effluent. The source a restriction is placed by the AMAs. No new land can be irrigated of a water right refers to the particular surface on increasing the in these areas. All pumping from a nonexempt water system, storage project, groundwater number of irrigated well must be reported annually to ADWR. In basin or AMA, or wastewater treatment facility acres in the area. 1982, ADWR designated a third INA, called the from which the water in question originates. Much like in AMAs, Harquahala INA. The source will dictate the type of water right or certain irrigation uses subset of water rights permitted or claimed and that were established Characteristics of Water Rights in the potential uses of the water right. prior to the creation Conservation Agreements of the INA have Water rights in Arizona come in all shapes and Type of Use – The allowable use of a water right been grandfathered sizes. In seeking partnership-based solutions depends on several factors, such as the water in. However, no new that provide benefits to both landowners and source, jurisdiction, or historic uses. Surface irrigation will be ecosystems, it is generally easiest to break water rights and claims must fulfill a permitted permitted. each particular water right down to its basic beneficial use, including municipal, irrigation, or components then determine the best way fish and wildlife purposes. Groundwater rights Safe Yield: A term to manage or use the right in a conservation in AMAs, on the other hand, may be restricted used to indicate a agreement. to certain uses, such as irrigation in the case of long-term balance Water rights are defined by a set of key Irrigation Grandfathered Groundwater Rights, between groundwater attributes. Some of these attributes—such as or the non-irrigation uses authorized for Type 1 withdrawals and natural and artificial recharge. This state of aquifer sustainability and balance is the goal of four of the five AMAs.

Upper Gila River Near Clifton, Arizona (Photo: Kelly E. Mott Lacroix, Arizona Department of Water Resources) 21 and Type 2 rights. A water right’s existing purpose will frame opportunities and incentives to include the right in a conservation agreement. Several of the conservation tools and incentives discussed in the next section of the handbook will describe mechanisms that maintain or change the purpose of a water right to achieve a conservation benefit.

Quantity – The quantity of a water right is a critical factor to consider when developing a conservation plan or land stewardship strategy affecting water rights. Quantity is measured in terms of both rate and volume (see the box “A Note on Measurement Units”). The rate and volume are dependent upon the water source and type of water right. For example, an exempt well for groundwater pumping has an allowable maximum pump capacity of 35 gallons per minute with a volumetric limit of 10 acre-feet per year for commercial purposes. Limits 47 Ranch: Dennis Moroney for surface water diversions, on the other hand, Dennis Moroney of the 47 Ranch near McNeal, Arizona, vary according to the historic rate and volume of partnered with the Arizona Department of Environmental beneficially applied uses, such as irrigated acres or an Quality, the Arizona Department of Agriculture, The irrigation water duty (water quantity per irrigated University of Arizona Range Management Program, and three acre). Most groundwater uses in the AMAs are also neighboring ranchers to install five hundred rock and wire subject to the conservation requirements established check dams in the summer of 2008 to slow runoff, trap silt, in ten-year management plans. and allow for greater groundwater infiltration. “The benefit of the check dams isn’t for me,” said Moroney, “it’s for my Time or Season of Use – The season of use refers to kids.” Moroney has also been sure to consider wildlife water the time of year when a water right is validly applied. needs when planning for agricultural water use on the ranch. For surface water rights, the authorized time of use Moroney recently worked with Arizona Game and Fish might be during a crop’s growing season, if the right’s Department and the Natural Resources Conservation Service purpose is irrigation. For other water uses, the water to construct a new dirt tank that will be used both to improve right might authorize continuous access and use. The agriculture and to improve habitat for the endangered time of use provides an interesting opportunity for Chiricahua leopard frog. In 2007, Dennis Moroney also win-win conservation agreements. A landowner’s partnered with Arizona Land and Water Trust and the modifying the time of use or temporarily fallowing a Arizona Game and Fish Department to place a conservation portion of land during drought seasons can preserve easement on 960 acres of the 47 Ranch. agricultural water supplies while enhancing riparian habitat. “From the standpoint of land health, paying attention to the water cycle is critical to my sense of values.” Place of Use – A water right’s place of use is limited by its historic use and the source and Top: jurisdiction from which the right is claimed. Place Rock and Wire Check Dam on the 47 Ranch (Photo: Dennis of use generally relates to surface water only. (For Moroney, 47 Ranch) groundwater restrictions, see Transferability section.) Bottom: For surface water contracts and rights, the place of Stock Pond on the 47 Ranch (Photo: Dennis Moroney, 47 Ranch) use is typically prescribed in terms of the cadastral 22 location (township, range, and section). Changes the options for protecting or modifying a water to the place of use or diversion may provide an right to achieve a conservation benefit. For option for riparian protection, as discussed in the example, specific criteria determine whether a next section. surface water right’s place of use or type of use can be changed to benefit rivers and streams. Priority (Reliability) – The priority of a water Groundwater rights, on the other hand, are right refers to the status of the water right during generally limited to uses on the land where the times when water supplies are insufficient to right was established. Groundwater is managed meet all demands on a water source. Due to depending upon whether it is withdrawn from the variability in water availability, a water within an AMA. Groundwater may be used off right’s priority will determine its reliability and the land from which it is withdrawn with certain suitability for conservation objectives that require exceptions: (A) Groundwater cannot generally a secure water supply. Priority varies by water be transported out of a groundwater basin. Only source and water rights type. Groundwater rights under particular circumstances and subject to do not usually hold a priority date. Instead, the a variety of restrictions can groundwater be reliability of groundwater rights is determined transported outside a groundwater basin. (B) by well-pumping capacity and depth to the water Groundwater withdrawn in an AMA pursuant table. Surface water rights are governed by a to an Irrigation Grandfathered Right must be priority system that defines security based on the used on the land to which the grandfathered date when the water was first appropriated and right relates. It should be noted that physical applied to a beneficial use. The due diligence constraints might make water transfers practices described in Section 3 are crucial for impractical or impossible. For example, the evaluating the priority and reliability of the water lack of infrastructure to physically transport right in the context of upstream and downstream water to another location might tie an otherwise water uses. transferable water right to the land and make any attempted transfer unreasonably difficult or cost Transferability – A water right’s transferability prohibitive. ■ refers to the ability to transfer the right to another location or use. This factor fundamentally affects

Irrigation Water Duty: The amount of water, measured in acre-feet per acre, that can be applied to irrigated land, based on crops historically grown from 1975 to 1979. Water duties tend to decrease with each subsequent AMA management plan.

Line Tank on Sopori Ranch (Photo: Arizona Land and Water Trust) 23 24

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