ARIZONA STATE SENATE
Phoenix, Arizona
governor’s water management
commission amendments
Requires new
municipal and industrial groundwater users in Active Management Areas (AMAs) to
replenish all mined groundwater.
Modifies the authority and responsibilities of the Central Arizona
Groundwater Replenishment District. Establishes riparian area protection zones
and prohibits new wells in designated riparian areas. Decreases the allowable pump
capacity for new exempt wells in AMAs.
The
Governor’s Water Management Commission was appointed in June of 2000 to
evaluate water management regulations and activities within Arizona’s
AMAs. The Commission issued a final
report in December of 2001 recommending changes to laws, rules and policies to
facilitate the achievement of a long-term, reliable water supply. S.B. 1344 contains the statutory
recommendations made by the Commission.
The
1980 Groundwater Code was adopted as a comprehensive effort to manage the
State’s groundwater resources. The Arizona Department of Water Resources (ADWR)
administers and enforces the Groundwater Code.
Three
levels of groundwater management exist under the Code. The lowest level of management includes
general provisions that apply statewide.
The second level applies to Irrigation Nonexpansion Areas (INAs) and the
highest level of management, with the most restrictive provisions, is applied
to AMAs where groundwater overdraft is most severe. Five
AMAs have been created since the Code was adopted: Phoenix, Pinal, Prescott,
Tucson and Santa Cruz. According to
ADWR, the AMAs include 80 percent of Arizona’s population and account for 70
percent of the State’s groundwater overdraft.
In the Phoenix, Prescott and
Tucson AMAs, the groundwater management goal is safe-yield by the year
2025. Safe-yield means the long-term balance between the annual amount of
groundwater withdrawn in the AMA and the annual amount of natural and
artificial recharge. The management
goal of the Santa Cruz AMA is to maintain safe-yield and prevent local water
tables from experiencing long-term declines.
In the Pinal AMA, the goal is to allow the development of nonirrigation
water uses, extend the life of the agricultural economy for as long as feasible
and preserve water supplies for future nonagricultural uses.
In each AMA, new
subdivisions must demonstrate to ADWR that a 100-year assured water supply (AWS) is available to serve the subdivision
before home sales can begin. An AWS can
be demonstrated in one of two ways. The owner of the subdivision can prove
access to a renewable and sufficient water supply to receive a certificate of
AWS from ADWR, or the owner of a subdivision can receive service from a city,
town or private water company that has been designated by ADWR as having an
assured water supply.
The Central Arizona Water
Conservation District (CAWCD) is responsible for operating the Central Arizona
Project (CAP). In 1993, the Legislature
created a groundwater replenishment authority to be operated by the CAWCD. The replenishment authority of the CAWCD is
referred to as the Central Arizona Groundwater Replenishment District (CAGRD)
and membership in the CAGRD provides a method for landowners and water
providers to demonstrate consistency with AMA management goals under the
Assured Water Supply Rules.
The CAGRD must replenish (or
recharge) the amount of groundwater pumped by its members that exceeds the
pumping limitations imposed by the AWS Rules.
Recharge may be accomplished through the operation of underground
storage facilities or groundwater savings facilities. Water used for replenishment may be CAP water or another
renewable supply, but cannot be groundwater withdrawn from within an AMA.
Currently, there are two
types of CAGRD members: member service areas (the entire service area of a
city, town or private water company); or member lands (an individual
subdivision). S.B. 1344 creates a replenishment obligation for new users,
defined as limited member lands and limited member service areas.
The Arizona
Water Protection fund (AWPF) and Commission was created in 1994 to “develop and
implement measures to protect water of sufficient quality and quantity to
maintain, enhance and restore rivers and streams and associated riparian
resources” (ARS 45-2101). The AWPF
Commission consists of 17 members who represent a variety of land and water
uses and includes several members with technical expertise in water management
and riparian habitat conservation.
S.B. 1344 requires
the Commission to review the designated riparian area protection zones every
five years and submit any recommended changes to the Governor and the
Legislature.
S.B. 1344 is the
result of recommendations made by the Governor’s Water Management Commission,
and makes numerous changes to the Groundwater Code. There is no known fiscal impact on the state general fund
relating to the provisions of this bill.
Wells
Well Impacts
1. Requires ADWR to consider the cumulative impact of multiple wells, proposed or drilled by an applicant in approximately the same location. Includes wells proposed or drilled within the previous 12 months. Applies to exempt wells, nonexempt wells and recovery wells. Requires ADWR to adopt rules in order to implement this provision.
2. Prohibits the Director from considering the impact of new wells if: a) the existing exempt well owner does not file a written objection within 30 days of notice; b) the exempt well is within the service area of a municipal provider and the applicant agrees to connect the exempt well owner to the municipal provider’s distribution system; or c) the exempt well was drilled or applied for after January 1, 2003 (ARS 45-599, subsection C).
3. Requires a hydrologic study that shows no adverse impact will occur in order to obtain approval to drill a well within a riparian area protection zone after January 1, 2005. States that this does not affect surface water rights.
Mitigation
of Impacts to Exempt Wells
4. Outlines the steps to mitigate damage caused to an exempt well by pumping from either a nonexempt well or a recovery well. To qualify, an application for the nonexempt well or recovery well must have been filed after December 31, 2002; the hydrologic impact study must have incorrectly concluded the well would not damage the exempt well; and, the exempt well must have been applied for or drilled before January 1, 2003.
5. Requires mitigation costs to be borne by the new well owner.
6. Provides four mitigation options:
(a)
provide
access to another water supply (perhaps by connecting to the nearest municipal
provider).
(b)
deepen
the exempt well.
(c)
relocate
the exempt well.
(d)
pay
damages to the owner of the exempt well, as agreed to by the parties involved
or as determined by a court (capped at the remedy that costs the least of
remedies listed above).
7. Allows the exempt well owner to file a civil action to enforce mitigation in superior court within one year of discovery of the damage, or within 20 years after the nonexempt well permit is issued by the Director, whichever is earlier. The burden of proof is on the owner of the exempt well.
8. Declares that no further court action may be brought against the nonexempt or recovery well owner if damages are mitigated.
Exempt
Wells
9. Reduces the maximum allowable pump capacity for exempt wells from 35 gallons per minute (gpm) to 20 gpm for those drilled after January 1, 2003. Allows the Director to approve a variance (up to 35 gpm) if the applicant demonstrates a higher capacity is needed to provide adequate flow rates for the intended use.
10. Requires the Director to contact the owners of nearby exempt wells before determining whether to approve or reject an application for a new well.
11. Prohibits new exempt wells located within the boundaries of a riparian area protection zone. Exempts the following from the prohibition: existing exempt wells or if a notice of intent to drill is filed before January 1, 2005; wells used for stock watering; replacement wells; wells that can be shown to have no impact on the riparian area (requires a hydrologic study); and wells used for domestic purposes if withdrawals will not exceed two acre feet per year and pump capacity is less than 20 gpm.
12. Prohibits a new exempt well within a city service area unless the city has denied service to the well owner at the customary rate and manner within 60 days of the request.
13. Requires the installation of a meter for a new exempt well that receives a variance to pump more than 20 gpm, or if the well is located in a riparian area protection zone and is used for domestic purposes and withdraws less than two acre feet per year. Requires an annual report of the amount withdrawn (ARS 45-454, subsection B, paragraph 4 and subsection G; ARS 45-596, subsection I).
Riparian Area Protection Zones
14. Requires a map of riparian area protection zones to be filed with the Secretary of State. Requires the Water Protection Fund Commission to make recommendations regarding additions, additional protection or boundary modifications to the riparian area protection zones. Recommendations must be submitted to the Governor and Legislature at least every five years.
15. Requires a hydrologic study that shows no adverse impact will occur in order to obtain approval to drill a well after January 1, 2005 within a riparian area protection zone. States that this provision does not affect surface water rights.
16. Prohibits new exempt wells within the boundaries of a riparian area protection zone. Provides exemptions for: existing exempt wells if a notice of intent to drill is filed before January 1, 2005; wells used for stock watering; replacement wells; wells that can be shown to have no impact on the riparian area (requires a hydrologic study); wells used for domestic purposes if withdrawals will not exceed two acre feet per year, and wells with a pump capacity of less than 20 gpm.
17. Requires the Director to adopt rules establishing criteria for determining adverse impacts caused by withdrawals from wells within the boundary of a riparian area protection zone.
18. Allows new wells to be drilled in a riparian area protection zone pursuant to an irrigation grandfathered right or a type 1 nonirrigation grandfathered right if no other source of water is available at less than twice the cost of drilling and installing the well.
19. Requires a person who is allowed to drill an exempt well within a riparian area protection zone to install a meter and annually report the amount withdrawn to ADWR.
20. States that limitations on pumping in riparian areas do not affect existing surface water rights.
Limited Groundwater Right
21. Defines limited groundwater rights to mean a new use of groundwater that is not subject to a replenishment obligation under the AWS program. Exempts under certain circumstances existing metal mining and metallurgical recovery purposes and dairies from the replenishment obligation. Specific uses include:
(a)
type-2
non-irrigation grandfathered rights for which the type and place of use changes
after the effective date of the legislation.
(b)
retirement
of an irrigation grandfathered right to a type 1 nonirrigation grandfathered
right, except those used by dairies and cattle feedlots.
(c)
new
mineral extraction and metallurgical processing permits that are applied for on
or after the effective date of the legislation.
(d)
existing
mineral extraction and metallurgical processing permits that change the place
of use after the effective date of the legislation.
(e)
new
general industrial use (GIU) permits and existing GIU permits that change the
place of use after the effective date of the legislation.
22. Provides that limited groundwater rights do not include groundwater that is used (a) by designated providers; (b) by large untreated water providers; (c) for metal mining and metallurgical recovery processes; and (d) for irrigation purposes. For the Santa Cruz AMA, limited groundwater rights do not go into effect until after the Director of ADWR finds that the AMA is no longer in safe yield.
23. Imposes a phased-in, 100 percent replenishment obligation by 2025 for the Phoenix and Tucson AMAs (and by 2040 for the Pinal AMA).
24. Requires users of limited groundwater rights in the Prescott and Santa Cruz AMAs to comply with the replenishment obligation if the Director determines a sufficient renewable supply of water exists in that AMA. Outlines the process for making the determination.
25. Imposes similar replenishment obligations for new or expanded municipal providers who do not participate in the AWS program.
26. Requires a person who wishes to use a limited groundwater right to join CAGRD.
Central Arizona Groundwater Replenishment District
(CAGRD)
27. Authorizes the CAGRD to enroll a new class of members (limited member lands and limited member service area), de-enroll members and establish a replenishment reserve.
28. Declares the access of the CAGRD to excess CAP water for use in establishing the replenishment reserve to be equivalent to the access of the Arizona Water Banking Authority.
29. Outlines the process for a member service area to de-enroll from the CAGRD. Requires evidence of a substitute water supply and notice to the public. States that the member may have no outstanding financial obligation to the CAGRD. Allows re-enrollment under certain circumstances.
New
Replenishment Obligation
30. Defines limited member lands, limited member service area and limited service area and imposes a requirement to replenish limited groundwater uses in the Phoenix, Pinal and Tucson AMAs.
31. Provides qualifications for enrollment as limited member lands and limited member service areas and clarifies that membership in the CAGRD requires an acknowledgement of the obligation to replenish groundwater and to pay a replenishment assessment. Failure to pay the assessment may result in fines and the district may impose a lien against the property. Applies to groundwater users who do not have a renewable water supply, or are not subject to the AWS program.
Replenishment
Reserve
32. Requires the CAGRD to establish and maintain a replenishment reserve in the Phoenix, Pinal and Tucson AMAs with a target reserve volume equal to 20 years of replenishment obligation.
33. Directs the CAGRD to use replenishment reserve charges and fees to store water in each AMA to develop long term storage credits.
34. Requires the CAGRD to levy an annual replenishment reserve charge against existing member lands and member service areas for a period of 25 years, beginning in 2003.
35. Authorizes CAGRD to collect a one-time replenishment reserve fee from future member lands and member service areas. The fee is equal to twice the annual replenishment reserve charge. Future members pay the annual replenishment reserve charge for 23 years.
36. Exempts limited member lands and limited member service areas from the replenishment reserve requirements. Exempts member service areas that have already demonstrated a reserve water supply as a requirement of obtaining an AWS designation. Allows golf courses to choose to be excluded from the costs and benefits of the replenishment reserve.
Reporting
37. Requires a report on the state of the AMA describing water management conditions five years after a management plan is adopted for the AMA. Also requires a report every two years to the Legislature and the Governor by January 1 of each odd-numbered year.
38. Requires the CAGRD to submit a detailed plan of operation every ten years beginning in 2005. The plan must describe the activities in each AMA and include an estimate of the district’s current and projected obligations for the next 20 and 100 years.
39. Provides the ADWR Director with specific criteria for review and approval of CAGRD’s plan of operation.
40. Requires information on limited member lands and limited member service areas and the amount of water credited to a replenishment reserve account to be included in the CAWCD annual report.
41. Requires limited member lands and limited member service areas to file an annual report with the CAGRD and ADWR describing the amount of water used, the replenishment obligation, the amount of water stored for credit and long-term projected annual groundwater use.
Arizona Water Protection Fund (AWPF)
42. Authorizes the AWPF to acquire any type of water or water rights (currently limited to CAP and effluent) and to grant monies to acquire conservation easements.
43. Clarifies that monies from the AWPF cannot be used to acquire water or water rights by eminent domain.
44. Requires the Director and the AWPF chairman to develop an annual administrative budget. Expands the use of interest earned on the fund to include compensation to Commission members, and to pay the costs of conferences, outside advisors, consultants, aides and legislative liaisons.
45. Authorizes the AWPF Commission to review the riparian area protection zones established by the bill, and recommend any changes deemed necessary to the Governor and the Legislature. A report is due at least every five years.
Miscellaneous
46. Repeals Title 48, Chapter 28 that authorizes the formation of an AMA water district for water augmentation projects and financing alternatives. Criteria to form the district includes: a) the formation in an AMA with territory in at least three counties and b) a management goal of safe-yield.
47. Makes technical, clarifying and conforming changes.
48. Provides for a general effective date.
Prepared by Senate Staff
February 12, 2002