The Morrison Institute’s Kyl Center for Water Policy at ASU has been working to resolve the Gila adjudication by presenting creative solutions to increase the amount of settlements and describe what business and industry look for when they consider investing in sites in Arizona.
The story was previously shown on the May 21 episode of Horizon.
TED SIMONS: GOOD EVENING, AND WELCOME TO THIS SPECIAL WATER EDITION OF
"ARIZONA HORIZON." I'M TED SIMONS. WATER IS OBVIOUSLY A SCARCE RESOURCE IN ARIZONA, SOMETHING PEOPLE ARE WILLING TO FIGHT FOR, AND HAVE BEEN DOING SO FOR 44 YEARS IN ONE PARTICULAR CASE. THAT'S HOW LONG THE GILA ADJUDICATION HAS BEEN GOING ON. IT'S A LAWSUIT THAT INVOLVES MORE THAN 32,000 PARTIES, AND ALMOST 57,000 COMPETING WATER RIGHTS CLAIMS. THE KYL CENTER HAS BEEN WORKING TO RESOLVE THE CASE, AND CORRECTLY RELEASED A REPORT. WE SPOKE WITH THE AUTHOR OF THE STUDY, SARAH PORTER, AND DIRECTOR OF THE KYL CENTER. GOOD TO SEE YOU AGAIN.
SARAH PORTER: GOOD TO SEE YOU TOO.
TED SIMONS: THE GILA ADJUDICATION – THIS IS NOT VERY WELL-KNOWN. THIS IS ONE OF THE MOST COMPLICATED COURT CASES I HAVE EVER HEARD.
SARAH PORTER: IT MIGHT BE THE MOST COMPLICATED COURT CASE IN HISTORY, AND THAT IS ONE OF THE REASONS WHY IT'S NOT AS WELL-KNOWN AS IT SHOULD BE.
TED SIMONS: OKAY. THIS IS WATER RIGHTS, WHAT, TO PUMP AND DIVERT WATER FROM THE GILA RIVER AND ALL OF ITS TRIBUTARIES AS WELL.
SARAH PORTER: THAT'S RIGHT. ANY RIVER WE CAN THINK OF THAT IS NOT THE COLORADO RIVER IS PROBABLY A TRIBUTARY OF THE GILA RIVER. THIS COVERS THE WATER RIGHTS IN A VAST PART OF THE STATE. THE ADJUDICATION STARTED OUT AS A FIGHT OVER SURFACE WATER RIGHTS. WE HAVE A SEPARATE WAY OF REGULATING GROUNDWATER. THAT'S COVERED BY THE 1980 GROUNDWATER MANAGEMENT ACT. BUT IN A LAND MARK DECISION IN THIS ADJUDICATION, THE ARIZONA SUPREME COURT SAID THAT WHEN -- WHEN A WELL IS PUMPING WATER THAT WOULD OTHERWISE MAKE ITS WAY INTO A RIVER, THEN THAT WELL HAS TO BE BROUGHT INTO THE ADJUDICATION.
TED SIMONS: THESE ARE THE SUB-FLOW ZONES?
SARAH PORTER: EXACTLY.
TED SIMONS: DIFFERENT LAWS THEN FOR GROUNDWATER AND DIFFERENT LAWS FOR SURFACE WATER?
SARAH PORTER: RIGHT. FOR SURFACE WATER, THE RULE WE HAVE -- AND THIS GOES WAY BACK TO THE GOLD RUSH DAYS, IS THE FIRST PERSON THAT DIVERTS WATER FROM A STREAM OR RIVER HAS A SENIOR RIGHT, AND THAT'S REALLY KEY, A SENIOR RIGHT TO A LATER COMER AND DIVERTER, AND THE REASON WE HAVE THAT DOCTRINE, IS THAT WE DO HAVE TIMES OF SHORTAGE, AND SO WE NEED TO KNOW, WHO IS FIRST IN LINE TO GET WATER IF THERE'S NOT ENOUGH WATER FOR EVERYONE? WE HAVE A DIFFERENT WAY OF REGULATING GROUNDWATER IN ARIZONA OUTSIDE OF OUR ACTIVE MANAGEMENT AREAS, WHERE IN 1980 WE STARTED REGULATING GROUNDWATER IN CERTAIN AREAS. OUTSIDE OF THAT, IT'S PRETTY MUCH YOU CAN DRILL A WELL FOR A BENEFICIAL USE EXCEPT IN THESE SUBFLOW ZONES. IN THIS ADJUDICATION, THE COURT HAS SAID WELLS IN THE SUB-FLOW ZONE, THEY HAVE TO GET A LINE FOR -- FOR A SURFACE WATER RIGHT AS IF THEY WERE DIVERTED WATER RIGHT OFF OF THE STREAM. SO THEY HAVE TO GET SENIORITY, OR PRIORITY ASSIGNED.
TED SIMONS: WE HAVE A MAP TO SHOW HOW MUCH OF ARIZONA IS INVOLVED HERE. GIVE US A COLOR DELINEATION.
SARAH PORTER: THERE ARE TWO COLORFUL BLOBS ON THIS MAP. AND THE LIGHT BLEW IS THE GILA WATERSHED, THE DARK BLUE IS ANOTHER ADJUDICATION. ARIZONA HAS TWO OF THESE, BUT THE GILA WATERSHED IS MENTION, THE GILA RIVER CROSSES ALL THE WAY ACROSS THE STATE AND REACHES THE COLORADO RIVER AROUND YUMA, AND THERE ARE 57,000 CLAIMS IN THIS CASE. THERE ARE 32,000-PLUS PARTIES. THE VAST MAJORITY OF THESE CLAIMS ARE FOR A RELATIVELY SMALL AMOUNT OF WATER, SO IT'S A LOT OF PEOPLE CLAIMING SMALL AMOUNTS, BUT I SHOULD ALSO ADD THE ADJUDICATION INCLUDES FEDERAL RIGHTS LIKE WATER FOR NATIONAL MONUMENTS. IT INCLUDES RIGHTS THAT TRIBES CLAIM FOR WATER. IT INCLUDES MINING COMPANIES. IT INCLUDES FARMERS, RANCHERS, CITIES, TOWNS. IT'S REALLY A LOT OF DIFFERENT TYPES OF CLAIMS.
TED SIMONS: WITH THAT IN MIND, COULD THE RESOLUTION OF THIS WHOLE THING, COULD THIS RESULT IN WELLS BEING SHUT OFF? DEVELOPMENT PLANS, LITERALLY GOING UP IN DUST?
SARAH PORTER: YES, IT REALLY COULD. WE HOPE THAT IT DOESN'T. AND THE KYL CENTER, WE'RE WORKING ON THIS 40-SOMETHING YEAR OLD ADJUDICATION WITH THE HELP OF LAWYERS WHO REPRESENT PARTIES IN THE ADJUDICATION AND WATER EXPERTS, BECAUSE WE THINK THAT WOULD BE A TERRIBLE OUTCOME. NOBODY WANTS THAT OUTCOME. THERE ARE WAYS TO SETTLE THE ADJUDICATION, AND WE'RE REALLY FOCUSING ON FINDING WAYS TO SETTLE IT.
TED SIMONS: YOUR STUDY WAS KIND OF LIKE THE IMPACT OF ALL OF THIS ON INDUSTRY AND BUSINESS, HALF OF THEM DON'T EVEN KNOW THIS THING EXISTS.
SARAH PORTER: THAT'S RIGHT.
TED SIMONS: AND THE FACT OF THE UNCERTAINTY, I MEAN WHO IN THEIR RIGHT MIND -- WELL, I SHOULDN'T ASK THAT -- BUT STILL, YOU ARE TALKING ABOUT MASSIVE UNCERTAINTY. YOU ARE TALKING ABOUT NO WATER.
SARAH PORTER: YEAH, IT'S -- IT'S -- AS OUR SURVEY SHOWS, IT'S NOT CERTAINTY THAT COMPANIES AND REAL ESTATE DEVELOPERS ARE WILLING TO LIVE WITH, SO AS -- WE'RE AT A POINT IN THE ADJUDICATION, WHERE WE'RE SORT OF SEEING THE IMPACTS. WE'RE SEEING THAT CASE IN SIERRA, THE WATER COMPANY IN THAT CASE, SO WE'RE STARTING TO SEE IT, AND UNCERTAINTY MAY REALLY BEGIN TO THWART THE ECONOMIC DEVELOPMENT THAT COMMUNITIES HELP FOR. AT THE SAME TIME, I SEE IN THE VALLEY, THAT THERE ARE COMMUNITIES AND RESIDENTS AND LEADERS WHO REALLY WANT TO – TO HAVE SUSTAINABLE WATER USE IN THE VERDE VALLEY, AND THERE IS A REAL TURN TOWARDS ECOTOURISM AS PART OF THE FUTURE ECONOMIC DEVELOPMENT OF THAT AREA, AND JUST AS MUCH AS THERE'S NO CERTAINTY OVER WATER FOR ECONOMIC GROWTH, THERE IS ALSO NO CERTAINTY OVER WATER PLANS FOR LONG-TERM SUSTAINABILITY EITHER. EVEN IF THAT'S WHAT A COMMUNITY WANTS.
Sarah Porter: Director, Kyl Center for Water Policy
