The Forgotten Sector: Arizona Water Law and the Environment

Abstract

Arizona is renowned for its geographic diversity and natural environment. Yet, the water needs of the environment have often been overlooked as the demands for water of the state’s population and economy have grown. Over time, many riverine and riparian areas in Arizona have suffered significant degradation. According to one study, a majority of Arizona’s stream lengths have a “most-disturbed” water quality condition. Invasive nonnative species and surface water and groundwater withdrawals have negatively impacted riparian vegetation, streambed, and habitats. Many studies have shown that the increased invasion of non-native species is driven by altered hydrological patterns. Water withdrawal in certain areas appears to be the primary culprit for the poor ecological state of Arizona’s streams and rivers. This Paper examines the extent to which environmental water needs are--or are not--recognized in Arizona water law. Like many states, Arizona manages surface water and groundwater under two different legal regimes. Arizona’s surface water law is grounded in the prior appropriation doctrine of “first in time, first in right.” Under this doctrine, the only means of protecting environmental water needs is through the use of instream flow rights. In 1980 Arizona adopted the landmark Groundwater Management Act (GMA), which introduced groundwater regulation to regions of the state designated as Active Management Areas, thereby adding a body of groundwater law to existing state surface water law. The GMA established rights to use groundwater, water conservation programs, and an assured water supply program related to growing communities. In addition to creating new programs, the GMA recognized the municipal, industrial and agricultural sectors as water-using sectors. At present, Arizona’s surface water law and groundwater law do not consider the water needs of the environment. While environmental considerations have sometimes been taken into account during the development of Arizona’s water supplies, this has been done on an ad hoc basis through voluntary efforts. This Paper focuses on the status of Arizona water law in terms of the environment and establishes that the environment is indeed the “forgotten” water-using sector. This Paper examines federal law, state law, and state policy that affect how environmental water needs are recognized and addressed in Arizona. In addition to highlighting the lack of consideration for environmental needs, the Paper identifies many problems caused by the absence of such consideration. Also, the Paper discusses ways in which existing and new laws could be used to protect the environmental sector in Arizona. It may be that in addition to instituting change in Arizona’s law, improving public awareness about environmental water needs and laying the groundwork for comprehensive state water planning will move Arizona forward to recognizing the environment as a water-using sector. Part II of this Paper presents the reasons that the environment can no longer be treated as the forgotten sector in Arizona law and policy. Part III describes the known supplies and uses of water in Arizona. Part IV discusses federal protections that affect Arizona’s waters. Part V discusses elements of Arizona water law that are relevant to environmental water needs. Part VI describes opportunities within the given legal context to help the environment gain a place at the table as a water-using sector. Finally, Part VII offers some concluding remarks.