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Claims for Water Rights for Instream Flow
On December 17, 2018, the court issued its decision in In re Aravaipa Canyon Wilderness Area, Contested Case No. W1-11-3342, that quantified the United States’ claim for federal reserved water rights for instream flow in the Aravaipa Canyon Wilderness Area. The court determined that the minimal amount necessary to accomplish the purpose of the reservation is based on a complete statistical description of monthly flows measured at the eastern border of the wilderness area. In addition, relying upon expert testimony, the court determined the United States’ federal reserved water rights to large flood flows.
The United States also asserted claims under state law for instream flow rights in the area of Redfield Canyon. By order dated December 13, 2018, abstracts for water rights in the name of the United States to instream flow were added to the catalog of proposed water rights. Earlier this year abstracts based on claims filed by The Nature Conservancy were completed and added to the catalog of proposed water rights. The total amount of water subject to proposed water rights for instream flow brought under state law and added to the catalog of proposed water rights in 2018 exceeds 50,000 acre-feet.
Wells in the Gila River Watershed
In a report filed December 6, 2018, the Arizona Department of Water Resources (ADWR) provided an assessment of the number of wells in the San Pedro River watershed. It found that 1,010 wells for major uses and 2,599 wells for domestic use were analyzed in the San Pedro I HSR. Since the release of the HSR in 1991, ADWR estimates that 283 new wells pump water for major uses and 2,756 new wells pump water for domestic uses. The reliance on the use of wells to access water in the watershed is highlighted by ADWR’s statement, based on aerial surveys, that the St. David Ditch is the only active surface water diversion on the main stem of the San Pedro River north of the Sierra Vista Subwatershed (1). The Pomerene Water Users Association, the other organization that had diverted and supplied water for irrigation to multiple users in the past, reported during a September 14, 2018 status conference in In re Pomerene Water Users Association, Contested Case No. W1-11-1676, that it had terminated and the St. David Irrigation District had claimed the Pomerene diversion structure and canal.
This general adjudication requires consideration to be given to wells. The identification of the wells in the San Pedro River watershed subject to the adjudication has evolved into three separate proceedings. In the first proceeding, the boundaries of the subflow zone were determined. Wells within those boundaries are included in the general adjudication and are presumed to be pumping subflow. This step concluded in 2017 with the establishment of the subflow zone. In its report, ADWR estimated that there are 1,334 wells in the subflow zone. The second and third proceedings focus on wells located outside the subflow zone.
The second proceeding involves an assessment of the wells located outside of the subflow zone, and, more specifically, of the cones of depression developed by those wells at steady state. Wells with cones of depression determined at steady state that reach the subflow zone may be included in further adjudication proceedings depending on the measurable impact of their pumping. In 2018, three proposed methodologies were the subject of a hearing to determine a reasonable test to be applied to wells outside the subflow zone. On November 14, 2018, the Special Master issued a final report recommending the use of MODFLOW as the appropriate model to be employed to assess cones of depression at steady state for purposes of exercising the court’s continuing jurisdiction over the class of wells located outside of the subflow zone. Objections to the report are due on May 13, 2019, which will be considered and ruled on by Judge Brain. The third proceeding focuses on the development of a subflow depletion test.
On December 6, 2018, ADWR filed its initial subflow depletion report. A status conference was scheduled for January 11, 2019. The purpose of the status conference was to give ADWR an opportunity to provide a brief presentation of its report to the parties and to allow the parties to address procedural issues at the initial stage of the proceedings. On January 2, 2019, the United States moved for a stay of the proceedings necessary to the development of the subflow depletion test due to the lack of appropriations for the Department of Justice. It represented that the Justice attorneys are prohibited from working, even on a voluntary basis except in very limited circumstances. On January 7, 2019, the stay was granted and the order setting the status conference vacated.
(1)In its report, ADWR did note that there are numerous active surface water diversions on Aravaipa Creek.
Issue of Broad Legal Importance Regarding Proof of Conveyance of Water Rights
In several contested cases involving claims for water rights for irrigation use, the objection has been made to the priority date proposed in the HSR on the ground that the landowner has the obligation to produce the deeds and other documents demonstrating the passing of title to the land and the appurtenant water rights from the original beneficial user to the landowner. This objection raises a legal issue that may affect numerous claimants in this general adjudication because the priority dates for many water rights are based on beneficial uses initiated by claimants’ predecessors-in-interest. The Special Master designated the issue of whether the claimant seeking a water right has the burden of producing the set of deeds that conveyed title to the land from the original user of the water to the claimant currently asserting a water right as one of broad legal importance. Alternatively, the issue can be phrased: does the presumption exist that water rights have been conveyed with the land so that a claimant objecting to an Apparent Date of First Use identified in a watershed file report must carry the burden of proving that water rights were severed from the land. If the answer is in the affirmative, are there periods of time for which this presumption does not exist. Briefing is due February 11, 2019.
Catalog of Proposed Water Rights
The catalog of proposed water rights can be found on ADWR’s website with the proposed abstracts that have been prepared to date. During the 2018 calendar year, 106 proposed abstracts for water rights have been completed and added to the catalog.
In re Hopi Reservation HSR: The trial on the water rights of the Hopi Tribe has been bifurcated into two phases: past and present uses and future uses. The 35-day trial on the past and present uses of water on the Hopi Reservation began on September 11, 2018, and concluded with the final set of closing arguments on December 18, 2018. The trial on future uses of water on the Hopi Reservation will begin on June 1, 2020.
Link here to the calendar of proceedings.
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