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On May 24, 2023, Arizona Department of Water Resources ("ADWR") filed a technical report containing a revised watershed map and proposed schedule for the completion of subflow zones for three watersheds. The new watershed map is based on the United States Geological Survey's Hydrologic Unit Code ("HUC") system. The HUC system approximates the drainage area that contributes water to a given point in a stream. Images of the historical and revised watershed maps may be accessed here.
On March 25, 2024, the Special Master issued a report proposing revisions to the HSR boundary map for the Gila River Basin and a sequence for issuance of future HSRs in both the Gila River and Little Colorado River Basins. In her report, the Special Master recommended that ADWR generally follow six-digit hydrologic unit boundaries when investigating HSRs. See PDF 36 of Report. The Special Master also recommended that ADWR create a "Salt River Valley HSR" that encompasses the Phoenix metropolitan area. This proposed HSR would comprise sixteen ten-digit hydrological units that, in total, cross multiple six-digit hydrologic units. See PDF 41 of Report.
Objections to the Special Master’s March 25, 2024 Report were received by September 23, 2024. The Honorable Judge Scott Blaney will oversee the resolution of these objections.
Significant process has been made toward the settlement of the water rights claims of the Hopi Tribe, Navajo Nation, and San Juan Southern Paiute Tribe. On May 24, 2024, a unanimous Navajo Nation Council and the Navajo Nation President approved the proposed Northeastern Arizona Indian Water Rights Settlement. The Hopi Tribe and San Juan Southern Paiute Tribe have also approved the proposed settlement. Because the proposed settlement relies on the provision of federal funds and approval by the United States Department of the Interior, Congress must now ratify the settlement.
The proposed settlement would resolve all Hopi, Navajo, and San Juan Southern Paiute claims to surface water from the Little Colorado River Basin; claims to groundwater from the Navajo Aquifer, Coconino Aquifer, and nearby alluvial aquifers; and claims to surface water from the Gila River Basin. The proposed settlement would also settle claims to the Upper and Lower Basins of the Colorado River. A summary of the proposed settlement created by the Navajo Nation can be found here. An overview of the proposed settlement provided by the Kyl Center for Water Policy can be found here.
On July 8, 2024, Senator Mark Kelly introduced a bill proposing approval of the Northeastern Indian Water Rights Settlement Agreement. On the same day, Representative Juan Ciscomani introduced an identical bill to the House of Representatives. On September 25, 2024, the leaders of the Hopi Tribe, Navajo Nation, and San Juan Southern Paiute Tribe testified before the Senate Committee on Indian Affairs as to the importance of the settlement.
Parties now await Congressional action. If Congress enacts the settlement, parties will gather again to sign any necessary revisions. After, the Department of the Interior will review the settlement. Following Department approval, the parties to the agreement will provide broad notice of the agreement and notice of the opportunity to object to the agreement. The Court will then consider objections to the settlement agreement and decide whether to issue a decree binding all parties to the Adjudications to certain terms of the settlement.
Silver Creek WatershedAs of October 2023, thirty-one contested cases in the Silver Creek Watershed have been initiated for the first time or re-initiated after a lengthy stay. Two of these contested cases have been resolved, eleven of the cases have been dismissed, and sixteen cases remain ongoing.
On April 2, 2024, the Governor of the Gila River Indian Community (“the Community”) sent a letter to ADWR seeking enforcement of its rights under the Globe Equity Decree and the Gila River Indian Community Water Rights Settlement Agreement. In his letter, the Governor asserted that twelve wells operated by ASARCO in the San Pedro River subflow zone are preventing the Community from obtaining the quantity of water to which it is entitled.
The letter reads that “ASARCO’s actions violate A.R.S. § 45-112(A)(3) . . . [which] prohibits the diversion of water to which another party has a superior right.” Further, the letter states that ADWR has a non-discretionary duty under Arizona Revised Statutes section 45-105(B)(8) to investigate complaints pertaining to the withdrawal of surface water that violates state law.
On July 24, 2024, ADWR requested direction from the Special Master as to whether the Adjudication Court has exclusive jurisdiction over the enforcement of the Community’s decreed rights under Arizona Revised Statute section 45-257(B)(3). The Special Master declined to provide direction on the ground that the Court does not have jurisdiction over an ongoing, purely administrative matter.
After decades of on and off negotiations with neighboring water users, the Yavapai-Apache Nation has reached a settlement regarding its water rights. On June 26, 2024, the Yavapai-Apache Nation Tribal Council voted to ratify the Yavapai-Apache Nation Water Rights Settlement Agreement. An overview of the settlement can be found here. If enacted by Congress and subsequently recognized in an adjudication decree, this settlement will permanently resolve the Yavapai-Apache Nation’s rights to water in the Verde River Watershed and the Gila River Adjudication.
On July 10, 2024, Senator Mark Kelly introduced a bill proposing Congressional approval of the agreement. Representative David Schweikert introduced a similar bill on July 8, 2024. The Senate Committee on Indian Affairs held a hearing to consider the bill on September 25, 2024. Testimony from that hearing by the Yavapai-Apache Nation chairwoman can be found here.
Parties are now waiting for Congress to act. If Congress enacts the settlement, parties will gather again to sign any revisions. After, the Department of the Interior will review the settlement. Following Department approval, the parties to the agreement will provide broad notice of the agreement and notice of the opportunity to object to the agreement. The Court will then consider objections to the settlement agreement and decide whether to issue a decree binding all parties in the Gila River Adjudication to certain terms of the settlement.
On August 14, 2024, the Special Master addressed C-Spear LLC and St. David Irrigation District’s Motion to Preclude Participation of Gila River Indian Community and United States Pursuant to the Gila River Indian Community Water Rights Settlement Agreement. The Special Master granted the parties’ motion in part.
The Court held that, under ¶ 28.1.3 of the Gila River Indian Community Water Rights Settlement Agreement, the Community is “precluded from pursuing objections to the water rights attributes in the Movants’ statements of claimant.” However, the Special Master ruled that the Community may object that “Movants’ proposed changes in points of diversion are injurious to the water rights of the Community.”
In re Subflow Technical Report, W1-103Groundwater Flow Model for the Upper San Pedro Groundwater Basin
On July 18, 2022, the Special Master ordered that ADWR must file a technical report for a groundwater model that will serve as the basis for the cone of depression and subflow depletion tests in the San Pedro River Watershed. The purpose of the cone of depression test is to identify those wells that are subject to the Adjudication Court’s jurisdiction because of the likelihood that at a future date, given continuous pumping, their cones of depression will intersect the subflow zone, causing water to leave the zone. The purposes of the subflow depletion test are to determine whether a well’s cone of depression currently intersects the subflow zone, to quantify the flow from the subflow zone that results from pumping, and to identify the fraction of the water produced by the well that is subflow, as opposed to percolating groundwater.
On February 20, 2024, ADWR filed its technical report, titled "Groundwater Flow Model of the Upper San Pedro Groundwater Basin." The report describes the creation of a groundwater flow model proposed to serve as the basis for cone of depression and subflow depletion tests. The report begins with a description of the various environmental, geological, hydrological, and cultural factors that shape the parameters of the proposed model. The report then describes the software and data used to set model parameters, the process of model calibration, and potential limitations of the model. ADWR then demonstrated the use of the model in a cone of depression test performed on two hypothetical wells. For one of those wells, ADWR conducted a subflow depletion test, simulating outflow from the subflow zone due to pumping.
In response to objections filed to ADWR’s technical report, the Special Master issued an order instructing ADWR to file an addendum to its technical report that clarifies various aspects of the report. The Special Master seeks clarification regarding the basis for certain parameters and assumptions in its model, the geographical orientation of the model, and the rigor of the model’s calibration. The Special Master has set a deadline of December 13, 2024 for the addendum.
In re Subflow Technical Report, W1-106
Subflow Zone DelineationThe delineation of the subflow zone for the Verde River Watershed is divided into two phases, each phase initiated by the filing of a technical report by ADWR. The first phase concerns the mainstem of the Verde River Watershed, and the second phase concerns the remainder of the watershed.
On October 24, 2023, the Special Master resolved all objections to ADWR’s “mainstem” technical report. On January 22, 2024, the Special Master resolved some of the objections to ADWR’s “remainder” technical report, setting the remaining objections for trial in August 2024. Following the resolution of all objections to the “mainstem” and “remainder” technical reports, ADWR will create a revised technical report incorporating the Special Master’s recommended changes.
The Special Master held the trial concerning remaining objections to the “remainder” technical report on August 21–22 and 26–27, 2024. An order resolving those objections and setting a deadline for the revised, combined subflow technical report is forthcoming.
De Minimis Technical ReportOn August 29, 2022, ADWR filed a technical report recommending that certain domestic, stockpond, and stock and wildlife watering uses should be eligible for summary adjudication procedures. Objectors presented a series of stipulated agreements to the Special Master that provide an alternative methodology to the one that ADWR used in its technical report. The Special Master approved the stipulations and vacated a trial concerning the objections to ADWR’s report. The Special Master’s final report regarding summary adjudication procedures will be filed by the end of 2024.
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