Gila adjudication lawsuit negotiates nearly 60,000 competing water rights claims

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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 Gila adjudication, which began in 1974, includes the water rights to pump and divert water not only from the Gila River but all of its tributaries as well. It started as a fight over surface water rights that include taking water from streams and rivers. It evolved to include subflow zones, which are areas where a well is pumping water that would otherwise make its way to a river.

“It might be the most complicated court case in history,” Director of the Kyl Center Sarah Porter says. “I think that very complication is one of the reasons why it’s not very well known, not nearly as well known as it should be.”

The adjudication currently has 57,000 claims made by over 32,000 parties. The majority of the claims, Porter says, are people claiming relatively small amounts of water. Federal rights over water for national monuments, tribes, mining companies, farmers, ranchers, cities and towns are also covered by the adjudication.

The current rule for surface water is based on a doctrine called prior appropriation, which translates to first come, first served. Created during the gold rush days, the first person to come and divert water from a stream or river has a senior right compared to a later comer. During a shortage, it’s important to know who’s first in line if there’s not enough water for everyone who wants it.

“We have a different way of regulating ground water in Arizona,” Porter says. “Outside of our active management areas, you can drill a well anywhere for beneficial use, except for these subflow zones. In this adjudication, the court has said that wells that are in the subflow zone are going to be treated as if they are drawing surface water. They will need to get in line for a surface water right as if they were diverting water straight from the stream.”

A possible resolution could include wells being shut off, meaning some people might no longer have access to water and some development plans could be canceled. The Kyl Center is working with water experts and lawyers who represent parties in the adjudication to avoid that outcome.

“New wells are still being drilled,” Porter says. “I think that’s the most troubling fact of the adjudication. It was filed 44 years ago in 1974… Between 1974 and today we’ve seen the number of wells in the Verde Valley, which is one of the hot spots for this issue, about tripled. The other big hot spot for this issue, the Sierra Vista area, the number of wells is more than five times [higher] than in 1974.”

The Kyl Center’s mission is to highlight creative solutions to the adjudication that will hopefully result in an increase in settlements. Porter says a report will be coming out that includes a solution set of ideas.

TED SIMONS: WATER IS A SCARCE RESOURCE IN ARIZONA, SOMETHING PEOPLE ARE WILLING TO FIGHT FOR AND HAVE BEEN DOING SO 44 YEARS IN THE CASE OF THE HEE LA ADJUDICATION. COMPETING WATER RIGHTS CLAIMS FROM THE PARTIES. RECENTLY A REPORT WAS RELEASED ENTITLED, THE PRICE OF UNCERTAINTY. THE GILA -- THIS IS NOT WELL KNOWN. THIS IS ONE OF THE MOST COMPLICATED COURT CASES EVER HEARD.

TED SIMONS: IT MAY BE THE MOST COMPLICATED IN HISTORY. Its NOT WELL KNOWN AS IT SHOULD BE. THIS IS WATER RIGHTS FROM THE GILA RIVER AND TRIBUTARIES AS WELL.

SARAH PORTER: IT MIGHT BE THE MOST COMPLICATIST IN HISTORY. ANY RIVER WE CAN THINK OF NOT THE COLORADO RIVER IS NOT A TRIBUTARY OF THE GILA RIVER. THE ARIZONA SUPREME COURT SAID WHEN A WELL IS PUMPING WATER THAT WOULD OTHERWISE MAKE ITS WAY TO THE RIVER, THE WELL HAS TO BE BROUGHT INTO THE ADJUDICATION. THE FIRST PERSON THAT DIVERTS WATER FROM THE RIVER HAS A SENIOR RIGHT TO A LATER COMER AND DIVERTER. WE HAVE THAT DOCTRINE FOR PRIOR APPROPRIATION IS THAT WE HAVE TIMES OF SHORTAGE. WE NEED TO KNOW WHO IS FIRST IN LINE IF THERE IS NOT ENOUGH FOR EVERYONE THAT HAS TO TAKE IT OFF THE SYSTEM. WE HAVE A DIFFERENT WAY OF REGULATING GROUND WATER OUTSIDE OF THE MANAGEMENT AREAS WHERE IN 1980, WE WERE IN CERTAIN AREAS. OUTSIDE OF THAT, YOU CAN PRETTY MUCH DRILL A WELL FOR BENEFICIAL USE. THE COURT HAS SAID THAT WELLS THAT ARE IN THE SUB FLOW ZONE WILL BE TREATED AS THOUGH THEY ARE DRAWING SUB FLOW. THEY HAVE TO GET IN LINE FOR A SURFACE WATER RIGHT AS THOUGH THEY WERE DIVERTING OFF OF THE STREAM. THEY HAVE TO HAVE SENIORITY OR PRIORITY ASSIGNED.

TED SIMONS: WE HAVE A MAP OF HOW MUCH ARIZONA IS INVOLVED HERE. GIVE US A COLOR.

SARAH PORTER: THERE ARE TWO COLORS, DARK BLUE BLOB AND LIGHT BLUE ON THE MAP. THE LIGHT BLUE IS GILA WATER SHED AND THE DARK BLUE IS THE COLORADO WATERSHED. THE GILA RIVER STARTS IN NEW MEXICO AND CROSSES ACROSS THE STATE TO YUMA. THERE ARE 57,000 CLAIMS IN THIS CASE. 32,000 PLUS PARTIES. THE VAST MAJORITY FOR A RELATIVELY SMALL AMOUNT OF WATER. IT'S A LOT OF PEOPLE CLAIMING SMALL AMOUNTS. I SHOULD ADD THAT THE ADJUDICATION INCLUDES FEDERAL RIGHTS FOR NATIONAL MONUMENTS, RIGHTS THAT TRIBES CLAIM FOR WATER, MINING COMPANIES, FARMERS, RANCHERS, CITIES, TOWNS, A LOT OF DIFFERENT TYPES OF CLAIMS.

TED SIMONS: WITH THAT IN MIND, COULD RESOLUTION OF THIS RESULT IN WELLS BEING SHUT OFF, PEOPLE WITH WATER NO LONGER GETTING WATER, DEVELOPMENT PLANS LITERALLY GOING UP IN DUST?

SARAH PORTER: IT COULD. WE HOPE THAT IT DOESN'T. THE KYLE CENTER, WE ARE WORKING ON THIS 40 SOMETHING-YEAR-OLD ADJUDICATION WITH THE HELP OF LAWYERS THAT REPRESENT PARTIES OF ADJUDICATION. WE THINK IT'S A TERRIBLE OUTCOME. NOBODY WANTS THE OUTCOME. THERE ARE WAYS TO SETTLE, AND WE ARE FOCUSED ON WAYS TO SETTLE IT.

TED SIMONS: YOU ARE FOCUSING ON THAT. IS IT IN THE NEAR FUTURE?

SARAH PORTER: WE ARE SEEING WHAT YOU -- YOU KNOW, SUGGESTED MIGHT HAPPEN, HAPPEN IN THE CASE OF SIERRA VISTA WHERE A DEVELOPER WANTED TO DO A LARGE DEVELOPMENT, AND HAS BASICALLY BEEN TOLD IT CAN'T BECAUSE THERE IS A CONTENTION ON THE PART OF THE BUREAU OF RECLAMATION, THAT THE WATER IS THE SUB FLOW OF THE SAN PEDRO RIVER. WE ARE WAITING FOR THE SUPREME COURT TO SPEAK, AND A DEVELOPMENT HAS BEEN PUT ON HOLD UNTIL THE COURT FIGURES OUT HOW WE GO AHEAD.

TED SIMONS: IT SOUNDS AS THOUGH NEW WELLS ARE STILL BEING DRILLED.

SARAH PORTER: IT WAS FILED 44 YEARS AGO IN 1974. THE ISSUE WAS RAISED, WHAT ABOUT TAKING OUT WELLS PART OF THE FLOW OF THE RIVER. IT TOOK TO 2000 FOR THE ARIZONA SUPREME COURT TO ISSUE A DECISION. YES, THE WELLS SHOULD BE BROUGHT INTO THE ADJUDICATION. BETWEEN 1974 AND TODAY, WE HAVE SEEN THE NUMBER OF WELLS IN THE VERDE VALLEY, ONE OF THE HOT SPOTS. THE NUMBER OF WELLS HAS TRIPLED. THE UPPER SAN PEDRO, THE NUMBER OF WELLS IS FIVE TIMES THERE WERE IN 1974, THOUSANDS OF WELLS, 2,000 MORE WELLS HAVE GONE IN, IN THE UPPER SAN PEDRO. IT ISSUED ITS DECISION AND DEPARTMENT OF WATER RESOURCES CAME OUT WITH THE FIRST DELINEATION OF THE SUB FLOW ZONE. WE HAVE NOT STOPPED THE DRILLING OF WELLS. AS A STATE, WE DON'T HAVE A POLICY YET. THE ADJUDICATION ISN'T COMPLETED. WE DON'T GIVE PEOPLE NOTICE WHEN THEY TAKE OUT THE PERMIT TO DRILL A WELL THAT THEY MAY NOT HAVE THE RIGHT TO DRILL THE WATER.

TED SIMONS: THE IMPACT ON INDUSTRY AND BUSINESS, HALF OF THEM DON'T KNOW THIS THING EXISTS. THE FACT OF THE UNCERTAINTY, WHO IN THEIR RIGHT MIND -- I SHOULDN'T ASK THAT. SOME PEOPLE WOULD DO ANYTHING WHERE WE ARE SEEING THE IMPACT.

SARAH PORTER: I'M SEEING THE CASE IN SIERRA VISTA IN PUEBLO DELL SOL. UNCERTAINTY SHOULD THWART THE DEVELOPMENT COMMUNITIES HOPE FOR. AT THE SAME TIME, I SEE THERE ARE COMMUNITIES AND RESIDENTS AND LEADERS WHO WANT TO JUST AS MUCH AS NO SERPENTTY OVER ECONOMIC GROWTH, EVEN IF THAT'S WHAT THE COMMUNITY WANTS.

TED SIMONS: WE ARE RUNNING OUT OF TIME HERE. WHAT'S NEXT, TIMETABLE ON ALL OF THIS?

SARAH PORTER: WHAT THE KYLE CENTER IS DOING, WE ARE TRYING TO HELP HIGHLIGHT CREATIVE SOLUTIONS COMING UP. WE ARE COMING OUT WITH A REPORT THAT'S A SOLUTION SET OF IDEAS THAT OUR ADJUDICATION REFORM COMMITTEE HAS COME OUT WITH OFFERED AS POTENTIAL SOLUTIONS TO ADJUDICATION. WE HOPE IN THE NEAR FUTURE WE SEE SETTLEMENTS.

TED SIMONS: LET'S HOPE SO. SARAH PORTER FOR THE KYLE CENTER. THANK YOU VERY MUCH.

Sarah Porter: Director, Kyl Center for Water Policy

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