The Bulletin relies on links so the entire document is available to our readers. The Active Cases page provides copies of orders issued in the cases currently in process.
Issues of Broad Legal Importance
On September 23, 2021, the Special Master issued a final report that determined that owners of wells located in the subflow zone must comply with the 1919 Arizona Surface Water Code and subsequent versions of that statute to obtain an appropriative water right with a priority date after June 12, 1919. Objections to the report were filed on November 22, 2021 and responses on January 4, 2022. The issue is now pending before Judge Brain, the water judge for the General Adjudication.
On November 18, 2021, the Special Master issued a final report that determined that when the owner of a right to use appropriable water with a priority date prior to June 12, 1919 ceases or fails to use the water appropriated for five successive years beginning after June 12, 1919, the right to the use shall cease, and the water shall revert to the public and shall again be subject to appropriation. Objections to the Report are due on January 18, 2022 and responses are due on February 17, 2022 for consideration by Judge Brain.
San Pedro Subwatershed
Benson Subwatershed
Claims for water rights for irrigation use in the St. David Irrigation District ("District") dominate the adjudication in the Benson subwatershed. In August 2019, the parties agreed that the case would be conducted in at least two phases. The first phase focused on three issues. The parties settled one issue, the Special Master decided one issue, and the third issue, was presented on a motion for summary judgment involving 109 wells. The motion was granted in part and denied in part because it presented questions of that would be resolved in the second phase of the case. In early January, the District orally outlined a proposed approach for the second phase of the case. The District will file a written proposal submitted in March for consideration by all parties. During the past several years, the District has received numerous petitions from landowners to have their lands incorporated into the District. As a result, the number of contested cases consolidated in In re St. David Irrigation District have steadily increased. Currently there are 141 cases consolidated in In re St. David Irrigation District.
During the September - December time period, cases outside the District have continued to be initiated in the Benson subwatershed to adjudicate claims for water use. Approximately three-quarters of the claims in the subwatershed are for domestic uses, stock watering, or stockponds. Due, however, to the direction in A.R.S. §45-257(A)(1), many of these "small water use claims," cannot be adjudicated until all other claims in that specific watershed are adjudicated. The cases that have been initiated recently and will continue to be initiated in 2022 involve claims for irrigation use. Most of the remaining cases that have not been initiated include claims for irrigation use from sources of water outside the subflow zone, future irrigation use, and claims that Arizona Department of Water Resources reported as not in use on the land.
San Pedro Riparian National Conservation Area
By order dated October 11, 2021, the Special Master initiated proceedings necessary to adjudicate the state law claims to instream flow and various point sources asserted by the United States in the San Pedro Riparian National Conservation Area ("SPRNCA"). The SPRNCA is a federal reservation set aside by Congress in 1988 that is located in southeastern Arizona in Cochise County. The SPRNCA contains a 40-mile stretch of the San Pedro River lined by cottonwood and willow trees near the river on the floodplain and upland terraces that contain grasses, mesquite trees, and other desert plants. The SPRNCA is a riparian ecosystem that contains two species of native fish and many species of migratory birds that use the cottonwood trees as they seasonally migrate between North and South America. It is also a popular area for recreation containing 14 trailheads, historic and cultural sites, and attracts birders from all over the world. The United States asserted a federal reserved right to streamflow, groundwater elevations, and various point sources they claim are necessary for the purposes of SPRNCA that is awaiting a decision from trial conducted in spring of 2019.
National Archives
The closure of the National Archives due to the ongoing Coronavirus pandemic resulted in numerous stays of initiated cases. Proceedings in the General Stream Adjudication require a determination of the attributes of an appropriable water right that includes the priority date attached to the right. In order to prove a certain priority date associated with a claim to appropriable water, a claimant must show that appropriable water was put to a beneficial use on the date claimed. During the past several years, claimants have used "Homestead Applications" filed under the Homestead Act of 1862 to settle objections raised to their claims based on a disputed priority date. The Homestead Act of 1862 allowed many people over the age of 21 or head of a household to apply for ownership of 160-acre parcels of land owned by the federal government. A person who settled on the land had to build a home, make improvements to the land, and farm the land before a patent would be issued to convey ownership of the land. Homestead applications include the farming activities completed on the land and a description of water use necessary to facilitate farming. The National Archives in Washington, D.C. holds homestead applications for land in Arizona that can be requested by claimants in the Adjudication seeking to prove their water right claims. The National Archives reopened in mid-November, 2021. Orders for homestead application documents can be completed online at the following website under "Federal Land Entry Files": https://www.archives.gov/forms. Other possible sources of historical information include:
- Ancestry.com's database: U.S., Homestead Records, 1863–1908
- Ancestry.com requires a subscription. However, access is free at all National
Archives research facilities nationwide and at many public libraries.
- Ancestry.com requires a subscription. However, access is free at all National
- FamilySearch.org's database: United States, Homestead Final Certificates, 1863–1909
- FamilySearch.org is free to access once you sign up for a free user account.
- Bureau of Land Management's General Land Office (GLO) Records
Link here to the calendar of Active Cases.
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