INTRODUCTION BOOKS, GUIDES AND MANUALS  LAW REVIEW ARTICLES JOURNAL AND PERIODICAL & NEWS SERVICE ARTICLES LEGAL NEWSLETTERS, LOOSELEAF SERVICES AND NEWSPAPERS OTHER INTERNET RESOURCES

Primary authority consists of sources of information issued by a branch of the government in it lawmaking capacity.  All three branches of Arizona state government have contributed to the body of legal materials that govern groundwater use.  The legislative branch passes statutes, such as the GMA, which dictate how resources are managed.  In turn, the executive branch and its agencies are charged with implementing the legislature's policy and seeing that individuals and organizations comply with the mandates of the law.  To promote policy implementation, the executive branch often drafts a number of rules and regulations that become a body of administrative law.  Finally, the judicial branch is responsible for interpreting the law when its meaning is in dispute, and the decisions issued by the courts affect the behavior of groundwater users.  The main sources of primary groundwater law authority are (1) statutes, both state and federal (statutory law), (2) rules and regulations (administrative law), (3) court decisions (caselaw), and (4) documents produced by government bodies that reflect legislative history.

A Note on Searching for Sources of Primary Authority

There are a variety of different ways for searching for sources of primary authority, and often the best way is to begin a search by consulting sources of secondary authority (any informational source not written by a governmental agency acting in its lawmaking capacity).  For example, I began by consulting the Arizona Environmental Law Manual, which in turn led me to the relevant statutory and administrative sections.  The Arizona Environmental Law Manual and several law review articles helped me locate some the major groundwater caselaw in Arizona.  As for the legislative history, browsing through the Arizona Revised Statutes section(s) on legislative history allows the reader to locate helpful information in the State Session Laws and House and Senate Journals.  Searching on the electronic databases (Westlaw, Lexis, World Cat, Legal Trac, and PAIS) revealed several sources of legislative history as well.

Arizona Revised Statutes (A.R.S.) Title 45 Waters

This is the statutory codification of the 1980 Groundwater Management Act.  Obviously, every section of the statute is in some way relevant to the administration of groundwater law in Arizona.  However, the first three chapters are particularly informative.  Their contents are listed below.

Chapter 1. Administration and General Provisions.

    Article 1. Department of Water Resources, Section 45-101.
    Article 2. Arizona Resources Advisory Board, Section 45-121.
    Article 3. Bodies of Water, Section 45-131.
    Article 4. Public Nature and Use of Surface Water, Section 45-141.
    Article 5. Appropriation of Water, Section 45-151.
    Article 6. Rights to Water, Section 45-171.
    Article 7. Water Rights Registration, Section 45-180.
    Article 8. Reservoirs and Canals, Section 45-201.
    Article 9. General Adjudication of Water Rights, Section 45-231.
    Article 10. Registration of Stockponds, Section 45-271.
    Article 11. Exportation of Water From This State, Section 45-291.
    Article 12. Water Conservation Plumbing Requirements, Section 45-311.

Chapter 2. Groundwater Code.

    Article 1. Administration, Section 45-401.
    Article 2. Active Management Areas, Section 45-411.
    Article 3. Irrigation Non-Expansion Areas, Section 45-431.
    Article 4. Groundwater Rights and Uses in General, Section 45-451.
    Article 5. Grandfathered Groundwater Rights in Active Management Areas, Section 45-461.
    Article 6. Groundwater Rights and Uses Within Service Areas, Section 45-491.
    Article 7. Groundwater Withdrawal Permits, Section 45-511.
    Article 8. Transportation of Groundwater, Section 45-541.
    Article 8.1. Withdrawals of Groundwater for Transportation to Active Management Areas, Section 45-551.
    Article 9. Management, Section 45-561.
    Article 10. Wells, Section 45-591.
    Article 11. Financial Provisions, Section 45-611.
    Article 12. Enforcement, Section 45-631.
    Article 13. Artificial Groundwater Recharge, Section 45-651.
    Article 14. Aquifer Replenishment Projects, Section 45-671.
    Article 15. Certificate of Groundwater Oversupply, Section 45-701.

Chapter 3. Underground Water Storage. (These provisions were signed into law in 1986 as part of the "Underground
                                                              Water Storage Act".)

    Article 2. State Demonstration Projects for Underground Storage and Recovery of Central Arizona Project Water,
                   Section 45-831.
    Article 3. Indirect Groundwater Storage and Recovery, Section 45-851.
    Article 4. Annual Storage and Recovery Projects, Section 45-881.

Chapter 4. Water Exchanges.

    Article 1. General Provisions, Section 45-1001.
    Article 2. Enrollment of Water Exchange Contracts, Section 45-1021.
    Article 3. Permits For Water Exchanges, Section 45-1041.
    Article 4. Water Exchanges Pursuant to Notice, Section 45-1051.
    Article 5. Enforcement, Section 45-1061.
 

Arizona Revised Statutes (A.R.S.) Title 49 The Environment.

The provisions of the Environmental Quality Act of 1986 are codified in this title.  The Arizona Department of Environmental Quality, which is in charge of monitoring and enforcing groundwater quality standards was established by this law.  The laws in this title also govern the regulation of underground storage tanks (USTs).  Listed below are some of the statute's parts most applicable to Arizona groundwater law.

Chapter 1. General Provisions.

    Article 1. Department of Environmental Quality, Section 49-101.

Chapter 2. Water Quality Control.

    Article 1. General Provisions, Section 49-201.
    Article 3. Aquifer Protection, Section 49-241.
    Article 4. Enforcement, Section 49-621.
    Article 7. Water Quality Appeals, Section 49-321.

Chapter 6. Underground Storage Tank Regulation.

    Article 1. General Provisions, Section 49-1001.
    Article 6. Underground Storage Tank Informal Appeals and Underground Storage Tank Policy Commission,
                   Section 49-1091.
 

Arizona Administrative Law Statutes

The following statutes are important because they grant citizens judicial review of executive agency actions.  Since executive agencies (the Department of Water Resources and the Department of Environmental Quality) make critical decisions affecting water users' rights, these statutes provide people with relief from agency decisions that adversely impact water rights.

Arizona Revised Statutes (A.R.S.) Section 12-901 et seq.  Administrative Review Act.

Arizona Revised Statutes (A.R.S.) Section 41-1001 et seq.  Administrative Procedure in Rulemaking.

Arizona Revised Statutes (A.R.S.) Section 41-1061 et seq.  Administrative Procedure in Contested Cases.
 

Federal Statutes

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 6972

Resource Conservation Recovery Act (RCRA), 42 U.S.C. 6991

An attorney dealing with groundwater law should at the very least be aware of these two federal statutes, which address groundwater contamination liability.  Although state law addresses this issue, sometimes federal law will trump the state provisions or apply concurrently with state law.

Arizona Administrative Code

The Arizona Administrative Code (A.A.C.) contains the regulations issued by the executive agencies charged with carrying out the terms of environmental statutes.  In Arizona, the Department of Water Resources (ADWR) is in charge of administering the provisions of the Groundwater Management Act (GMA) and the Department of Environmental Quality (ADEQ) is responsible for carrying out the terms of the Environmental Quality Act (EQA).
 

Arizona Administrative Code Title 12. Natural Resources.

Chapter 15. Department of Water Resources.

All of the articles in this chapter are important because they collectively define the scope of ADWR's scope of                  regulatory power.  Article 2. Procedural Rules is especially useful for lawyers who have to appear before the department to contest its action in a certain matter.
 

Arizona Administrative Code Title 18. Environmental Quality.

The ADEQ's scope of regulatory power is contained within this part of the code.  Chapter 12 is worth noting because it contains all the rules and regulations governing underground storage tanks.
 

Code of Federal Regulations

As mentioned above, some federal laws apply to the regulation of groundwater quality.  The following federal regulations, which appear in the Code of Federal Regulations (CFR), are applicable to underground water storage.  The CFR can be accessed on Westlaw and Lexis, and certain parts of the sections below are available on the EPA's web site dealing with underground storage tank regulations.

40 CFR 264

40 CFR 280

United States Supreme Court

Most of the caselaw that affects Arizona groundwater management comes from the Arizona Supreme Court.  However, in Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982), the Supreme Court held that groundwater is an article of interstate commerce and may be regulated under the commerce clause.  This is an important case to be aware of because it stands for the proposition that the federal government may strike down a state's groundwater management scheme if it is considered to unduly burden interstate commerce.
 

United States District Court for the District of Arizona

Cherry v. Steiner, 543 F. Supp. 1270 (1982).

This is the second case to challenge the constitutionality of the GMA. (The first case was Chino Valley II - see below.)  The court relied heavily on the Arizona Supreme Court's decision in Chino Valley II to deny plaintiffs' claim that the GMA was an unconstitutional exercise of legislative authority.  In applying rational basis scrutiny, the court held that the GMA did not violate plaintiffs' due process rights (the provisions were rationally related to legitimate public purposes) not did it violate equal protection (the statute does not arbitrarily discriminate between water users--its classifications are rationally related to the statute's objectives).  The court's decision supports the GMA as a legitimate use of Arizona's state police power.

Supreme Court and the Court of Appeals of the State of Arizona

Even though groundwater law is primarily statutory in Arizona, a series of cases are important because of their historical significance, interpretation of the GMA, and impact on common law doctrines of water law.  The following cases are among the most important to be aware of.  They appear in chronological order.
 

Farmers Investment Company v. Bettwy, (FICO), 113 Ariz. 520, 558 P.2d 14 (1976).

The Arizona Supreme Court interpreted the reasonable use doctrine to hold that a groundwater user could not withdraw groundwater from neighboring lands when such withdrawals were (1) depleting a common groundwater resource, and (2) the waters were transported away from the withdrawal site for use elsewhere.  This decision more or less compelled the legislature to enact the GMA because it seriously threatened the ability of municipalities and mining interests to obtain sufficient water supplies.  Agricultural interests benefited from this decision in the short run, but their advantage was severely limited by the passage of the GMA, which was a reaction to the court's decision in this case.
 

Town of Chino Valley v. City of Prescott, (Chino Valley II), 131 Ariz. 78, 638 P.2d 1324 (1981).

This case represents the first constitutional challenge to the GMA.  The constitutional claim was raised under claim of state constitutional law (I think).  The Town of Chino Valley originally challenged the law in an earlier action that the Arizona Supreme Court held was premature and declined to consider.  That case was Chino Valley v. State Land Department, 119 Ariz. 243, 580 P.2d 704 (1978).  Therefore, this case is commonly referred to as Chino Valley II.  Here, the court held that there is no right of ownership in groundwater prior to its capture.  A person who own lands over groundwater only has a right to use the water, but possesses no proprietary interest in the water.  Therefore, the GMA was held not to result in any unconstitutional taking of property, since no private right of ownership in groundwater exists.
 

Seven Springs Ranch v. State of Arizona ex rel. Arizona Department of Water Resources, 156 Ariz. 471, 753 P.2d 161 (1987).

This is an important case for the ranching community.  Plaintiffs were ranchers who leased state land for grazing.  The Arizona Court of Appeals held that they did not have standing to challenge the validity of the GMA under the Enabling Act and State Constitution because the ranchers were not asserting their own legal rights.  The court held that the GMA represented a legitimate exercise of the state police power and the Department of Water Resources' drawing of groundwater basin lines without the involvement of citizens did not exceed this power.
 

Arizona Water Company v. Arizona Department of Water, 160 Ariz. 66, 770 P.2d 370 (1988).

The Arizona Court of Appeals accorded the Department of Water Resources much deference in determining which users are eligible for nonirrigation grandfathered water rights.  The plaintiff challenged DWR's treatment of its application but was given no relief by the court.
 

Arizona Public Service Co. (APS) v. Long, 160 Ariz. 429, 773 P.2d 988 (1989).

The importance of this case lies not in its holding, which did not resolve the case's main legal issue, but in the issue presented before and considered by the Arizona Supreme Court.  The case deals with the question of whether and how effluent, wastewater, can be regulated by the state.  The court held that effluent is neither groundwater nor surface water and, thus, cannot be regulated pursuant to any of the state laws that address those two sources of water.  However, the court held that municipalities could sell their effluent.
 

In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 175 Ariz. 382, 857 P.2d 1236 (1993).

This Arizona Supreme Court decision has been heavily criticized as an example of lawmakers' and judges' ineffective reliance on legal principles that treat surface water and groundwater differently.  In this case, the court reaffirmed a 1931 ruling that relied on an antiquated theory of hydrogeology.  Critics argue that the court's refusal to recognize the interaction of surface and subsurface water resources perpetuates environmental injury.
 

Home Builders Association of Central Arizona v. City of Scottsdale, 179 Ariz. 5, 875 P.2d 1310 (1993).

Although the validity of the GMA was not at issue here, this case illustrates the strong influence the statute has on public policy.  The City of Scottsdale responded to the GMA's requirement that it demonstrate a 100 year assured water supply by levying a development fee for all new developments in order to fund the acquisition of future water resources.  The claim hinged on a state statute that addresses development fees.  The Arizona Court of Appeals showed great deference to Scottsdale's plan, in part because it found the scheme to be related to a beneficial use--compliance with the assured water supply mandate of the GMA.
 

Arizona Water Users Association v. Arizona Department of Water Resources, 181 Ariz. 136, 888 P. 2d 1323 (1994).

The Arizona Court of Appeals held that the Department of Water Resources could count recovered effluent in determining municipal compliance with agency limitations on water use.  The court held that such practice does not violate any of the GMA's provisions and does not overrule the Long decision, because "counting" effluent is not the same as regulating it.

Arizona Session Laws

Senate Bill (SB) 1001. "Groundwater Management." 1980 Session Laws, Thirty-Fourth Legislature, Fourth Special Session, Chapter 1. 1980.

This is the text of the law as it was passed by the Arizona Legislature.  It provides perhaps the best reference for determining legislative intent, since it contains the exact language that the legislators agreed upon at the time it was signed into law, free of future amendments.
 

Legislative Journals

Journal of the Senate, Thirty-Fourth Legislature, Fourth Special Session. 1980, pp. 1-19.

Here is the groundwater management bill as it originated in the Senate.  The names of the legislators who sponsored the bill is here, as are the names of those involved with the Groundwater Management Study Commission.

Journal of the House of Representatives, Thirty-Fourth Legislature, Fourth Special Session. 1980, pp. 1-14.

The bill appears in the House Journal as well, with essentially all the same information contained in the Senate Journal.
 

Other Sources

Arizona Groundwater Management Study Commission. Draft Report of the Tentative Recommendations. July 1979.

This document provides an excellent source of legislative history since the legislature relied on the findings presented in this report during the process of drafting the GMA.  The draft report provides a thorough account of the commission's duties and its findings.
The report is available in the University of Arizona Law Library.
 

Summary, Groundwater Management Act: briefing presented to the Arizona Groundwater Management Study Commission and the Arizona State Legislature. June 5, 1980.

This document is a legislative history gem.  It highlights the tentative provisions of the GMA, which was signed into law one week after this document was presented to the legislature.  The legislators presumably relied on this report in coming to their respective decisions.  Besides its value in reflecting legislative intent, it also provides a great flow chart on page 18 captioned "Administrative Structure."  In addition, the report is written in easily understandable language and neatly outlines the major provisions of the GMA.