Appendix — Cherry v. Steiner
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83-1327 FEB 20 1904
ALEXANDER L. STEVAS.
CLERK
No. 83-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
CLIFTON N. CHERRY, et ux., et al.,
Petitioners
v.
WESLEY E. STEINER, et al.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDICES
Daniel J. McAuliffe
Mark Wilmer
Robert B. Hoffman
SNELL & WILMER
3100 Valley Bank Center
Phoenix, Arizona 85073
Attorneys for Petitioners
Appendix A -
Appendix B -
Appendix C -
Appendix D -
APPENDICES
TABLE OF CONTENTS
Opinion of the United States Court of
Appeals for the Ninth Circuit...............
Opinion and Order of the United
States District Court for the District of
PN scintssisidecusadtssdieensnaousnabaacuidais
Order of Court of Appeals On Petition
FF CITI ccditviccosnsncinnetisnscvcenisircbenaies
The 1980 Arizona Groundwater Man-
agement Act (including 1981 Amend-
APPENDIX A - OPINION OF THE UNITED
STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A-|
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFTON N. CHERRY,
et ux., et al.,
Plaintiffs- No. 82-5765
Appellants,
D.C. Civ. No.
i |. 81-719-PHX
WESLEY E. STEINER,
Et al. OPINION
Defendants-
Appellees
Appeal from the
United States District Court
for the District of Arizona
Honorable C.A. Muecke, Presiding
Argued and Submitted:
May 11, 1983
BEFORE: PECK,.* FLETCHER, AND PREGERSON, Cir-
cuit Judges.
FLETCHER, Circuit Judge:
Various Arizona landowners appeal an order of the dis-
trict court granting summary judgment for defendants in a
suit challenging the constitutionality of the Arizona Ground-
water Management Act of 1980 (the Act), Ariz. Rev. Stat.
Ann. §§ 45-401 to 45-637 (West Supp. 1982). Plaintiffs’ cen-
tral contention is that prior to the enactment of the Act,
*Honorable John W. Peck. Senior United States Circuit Judge for
Sixth Circuit, sitting by designation.
A-2
they owned the groundwater beneath their property and that
the Act’s imposition of conditions upon and enjoyment of
that groundwater is constitutionally infirm. We have juris-
diction under 28 U.S.C. § 1291 (1976) and affirm.
Plaintiffs are several married couples, two corporations,
and a private water company. All own land in the State of
Arizona within the Upper Aqua Fria Subbasin of the Pres-
cott Initial Active Management Area. They allege that there
are substantial quantities of groundwater beneath their sev-
eral properties and that the Act has diminished the value of
the land by taking their ownership in the water without
compensation. They further allege that the Act establishes
arbitrary classifications which are not rationally related to
the goals of the legislation, that the law contains impermis-
sible irrebuttable presumptions, and that the legislation is
void for making an impermissible reference to certain
extrinsic documents not in existence at the time of enact-
ment of the Act. They seek to enjoin State officials from
enforcing the statute and quieting title in their names to the
groundwater underlying their properties.
The defendants are Wesley E. Steiner, Director of the Ari-
zona Department of Water Resources, who is charged with
enforcement of the Act, and other public officials responsible
for the filing of maps, that designate the groundwater man-
agement areas established by the legislation. In response to
the complaint, the defendants deny that the statutory
scheme offends any consitutional provisions or makes any
impermissible extrinsic reference. They assert that the law is
the result of a valid exercise of the State’s police power.
They specifically deny that the plaintiffs have any ownership
interest, according to Arizona law, in percolating ground-
water underlying their realty.
The district court exercised jurisdiction under 28 U.S.C. §
1331 (Supp. IV 1980). Upon cross-motions for summary
judgment, the district court determined that there were no
A-3
issues of disputed fact and granted defendants’ cross-motion
for summary judgment. Plaintiffs took this timely appeal.
We are indebted to the district court for its careful exposi-
tion of the Arizona statutes and case law in respect to rights
in groundwater. 543 F.Supp. 1270 (D. Ariz. 1982). We find
the district court’s analysis persuasive and in most respects
adopt the opinion of the district court as the opinion of this
court. See, e.g., Pfizer Inc. v. International Rectifier Corp..,
685 F.2d 357, 358 (9th Cir. 1982). We find it necessary to
address only the following issues in greater detail:
(a) whether the Supreme Court's dismissal of the appeal in
Chino Valley v. Prescott, 457 U.S. 1101, 102 S.Ct. 2897, 73
L.Ed.2d 1310 (1982), dismissing appeal from 131 Ariz. 78,
648 P.2d 1324 (1981) (Chino Valley 11), forecloses the con-
stitutional challenges raised in this case; (b) whether the dis-
trict court improperly relied on the law of states other than
Arizona and other sources in determining the plaintiffs’ con-
Sstitutionally protected property rights; and (c) whether the
Act is void for having made an improper reference to extrin-
sic documents. We examine these issues in turn.
A
The defendants assert that most of the issues plaintiffs
raise have been decided against them by the United States
Supreme Court in Chino Valley Il. In Chino Valley II, the
Supreme Court summarily dismissed an appeal from the
Arizona Supreme Court for “want of a substantial federal
question.” 457 U.S. at 1101, 102 S.Ct. at 2898. The Arizona
Supreme Court affirmed the denial of an injunction to pre-
vent the City of Prescott from withdrawing water from
under its land and transporting it elsewhere. As part of its
holding it sustained the constitutionality of the Act. See 131
Ariz. at 82, 638 P.2d at 1328. The defendants contend that
the Supreme Court’s summary dismissal of the appeal from
the decision constitutes a decision by the Court that the Act
is in all relevant respects constitutional and that that deci-
A-4
sion is binding on this court as to each of the constitutional
claims raised here. We disagree.
A party challenging the constitutionality of a state statute
in state court may appeal an adverse holding as of right to
the Supreme Court of the United States. See 28 U.S.C.
§ 1257(2) (1976). If the Supreme Court grants plenary review
of the state court decision, the decision the Court makes as
to the constitutionality of the statute is, of course, binding
on this and every other court in the land. See United States
ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir.
1970). Even a summary disposition by the Supreme Court
can have such binding effect but only if the issue was (1) ac-
tually decided in the state court, (2) necessary to the state
court’s decision, (3) presented in the jurisdictional state-
ment, and (4) necessarily decided by the Court in making
its summary disposition. See, ¢.g., Mandel v. Bradley, 432
U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977):
Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d
223 (1975). We agree with appellants that the district court
should have determined whether any of the constitutional
issues raised in this case were addressed in Chino Valley 11
and, if so, whether under Mandel, they were decided by the
Court.
We conclude, however, that the district court's failure to
consider the extent to which Chino Valley 11 constituted a
binding precedent does not require reversal. Our indepen-
dent examination persuades us that none of the.constitu-
tional issues raised in this case, whether or not they were
addressed in Chino Valley 11, meet all four Mandel criteria.
We first consider the procedural posture in which the rele-
vant issues were raised in Chino Valley II. In Chino Valley
II, the Town of Chino Valley and others sought to enjoin
the City of Prescott from withdrawing huge quantities of
water from the acquifer beneath land Prescott owned in
Chino Valley and from pumping it to customers 17 miles
away in Prescott. 131 Ariz. at 79, 638 P.2d at 1325. Prescott
moved for dismissal on the ground that Ariz. Rev. Stat.
A-5
§ 45-541(A) authorized it to withdraw groundwater and
transport the water to its customers. /d. at 680, 638 P.2d at
1326. The trail court granted the motion, but gave leave to
plaintiffs to amend their complaint to pray for damages. /d.
Chino Valley did not amend but instead appealed, asserting
that the Act was unconstitutional. /d.
The Arizona Supreme Court affirmed the dismissal of the
injunction. The court went on to state that “appellants” posi-
tion that the 1980 Act violates the Fifth and Fourteenth
Amendments .. . as a taking of private property without due
process of law and just compensation cannot be sustained.”
131 Ariz. at 82, 638 P.2d at 1328. It is unclear why the Ari-
zona court reached out for the constitutional issues since the
trial court had limited its order to a denial of the injunction
and specifically authorized an amendment of the complaint
to pray for damages. The plaintiffs in Chino Valley 1] then
appealed to the United States Supreme Court, raising in the
jurisdictional statement not only the issues addressed by the
Arizona Supreme Court, but also new ones.
With this background in mind, we proceed to apply the
Mandel criteria to Chino Valley 11. The only legal issues that
were necessary to the Supreme Court’s summary dismissal
were the federal constitutional issues, for it is only as to
those issues that the Chino Valley appellants had a right of
appeal to the Supreme Court. See 28 U.S.C. § 1257(2)
(1976). Moreover, the only federal constitutional issues that
the Arizona Supreme Court itself purported to decide were
whether the Act violated the due process clause of the four-
teenth amendment and whether the Act violated the takings
clause of the fifth and fourteenth amendments. See 131 Ariz.
at 82, 638 P.2d at 1328. Both of these issues were presented
to the Supreme Court in the jurisdictional statement in
Chino Valley 11.
Although the issue of the overall constitutionality of the
Act under the due process and takings clauses therefore
meets three of the four Mandel criteria, it fails to satisfy the
second, but perhaps most significant, criterion: to wit, that
A-6
the issue be necessary to the state court decision. This crite-
rion requires us to look behind what the Arizona Supreme
Court said in Chino Valley II to determine what actually
was necessary to the decision. See Kastigar v. United States,
406 U.S. 441, 454-55, 92 S.Ct. 1653, 1661-1662, 32 L.Ed.2d
212 (1972) (“broad language . . . unnecessary to the Court’s
decision . . . cannot be considered binding authority”). In’
considering the state court opinion, we are not free, of
course, to craft a different analysis by which the state court
could have resolved the case before it, but for whatever rea-
sons chose not to use. Nonetheless, we must carefully deter-
mine exactly what the state court necessarily decided in
order to dispose of the particular case before it and what,
being unnecessary to the disposition at hand, was in reality
mere obiter dictum.
In Chino Valley II, as we have explained, the plaintiff
sought only injunctive relief in its complaint. The suit was
not one for a declaratory judgment regarding the constitu-
tionality of the Act. Nor did the plaintiff seek to recover
damages were the requested injunction to be denied. Thus,
despite the broad statements of the Arizona court in its
opinion, the only question necessary to the court’s disposi-
tion of the case was whether a refusal to grant prospective
relief against persons withdrawing and transporting water
pursuant to the Act violated due process or effected a taking.
Since the district court’s denial of an injunction did not pre-
clude Chino Valley from recovering damages, affirmance of
that denial required nothing more than a determination that
refusing to provide injunctive relief from the Act was con-
stitutional. Any broader holding as to the constitutionality
of section 45-541(A) of the Act (which provides, inter alia,
that groundwater withdrawn under certain circumstances
may be transported without payment of damages) under the
takings and due process clauses was thus not necessary to
the disposition of Chino Valley I].
For this reason, the Supreme Court’s summary dismissal
for want of a substantial federal question in Chino Valley Il
is not binding as to the issues raised in the declaratory judg-
A-7
ment action before us. Accordingly, the district court was
correct in dealing with the merits of the constitutional chal-
lenges presented in this case.
The plaintiffs assert that the judgment of the district court
should be reversed because the district court erroneously
relied on principles of logic and the property rules of other
jurisdictions to decide what federally protected rights Ari-
zona property owners had prior to the enactment of the
Groundwater Management Act of 1980. We cannot agree.
The due process and takings clauses of the United States
Constitution protect “property” rights created by an
independent body of law, usually state law. Paul v. Davis,
424 U.S. 693, 710-11, 96 S.Ct. 1155, 1164-1165, 47 L.Ed.2d
405 (1976): see Parratt v. Taylor, 451 U.S. 527, 529 n.1, 101
S.Ct. 1908, 1910 n. 1, 68 L.Ed.2d 420 (1981). In this case,
then, a crucial question is the extent of the property rights to
groundwater possessed by Arizona landowners under Ari-
zona law prior to the enactment of the Act.
In making this determination the district court relied pri-
marily on the Arizona Supreme Court's exposition of
Arizona groundwater rights in Chino Valley II, 131 Ariz. 78,
638 P.2d 1324 (1981), appeal dismissed, 457 U.S. 1101, 102
S.Ct. 2897, 73 L.Ed.2d 1310 (1982). See 543 F.Supp. at
1277.' After correctly concluding that the Act did not
unconstitutionally deprive landowners of their property
rights described in Chino Valley II, the district court then
proceeded to consider whether the description of property
rights in the Chino Valley I] decision was itself “a radical
departure from prior law [that did] violence to [the land-
owners’] property rights.” 543 F.Supp. at 1277. This was a
completely appropriate question to consider, for a state can-
' In that case, the Arizona court stated that “there is no right of owner-
ship of groundwater in Arizona prior to its capture and withdrawal from
the common supply and that the right of the owner of the overlying land
is simply to the usufruct of the water.” Chino Valley 11, 131 Ariz. at 82,
638 P.2d at 1328.
A-8
not validly effect a taking of property by the simple expedi-
ent of holding that the property right never existed. Hughes
v. Washington, 389 U.S. 290, 296-97, 88 S.Ct. 438, 442-443,
19 L.Ed.2d 530 (1967) (Stewart, J., concurring); see
Demorest v. City Bank Farmers Trust Co., 321 U.S. 36,
42-43, 64 S.Ct. 384, 388-389, 88 L.Ed. 526 (1944); Chicago,
Burlington & Quincy R.R. Co. yv. Chicago, 166 U.S. 226,
241, 17 S.Ct. 581, 586, 41 L.Ed. 979 (1897). In deciding that
the Chino Valley II decision marked no radical change in
Arizona rules of property, the court examined Arizona cases
prior to Chino Valley II, “the experience of other states,”
and principles of “logic.” 543 F.Supp. at 1277-78.
We have examined the Arizona cases and agree with the
district court that Chino Valley 1] was not a “startling” and
“unpredictable” change in Arizona property law, if it repre-
sents any change at all. ? We do not read the district court's
reference to the practice in other states and to logic to serve
other than as a means of more fully understanding the rules
that had been established under prior Arizona decisional
law.
Cc
Finally, the plaintiffs urge us to reverse the judgment
below on the ground that the Act made an invalid reference
to extrinsic documents thereby voiding the entire bill and
that the district court improperly applied the enrolled bill
doctrine to preclude an inquiry into the alleged flaw.
Although we conclude that the enrolled bill doctrine was
improperly applied in this case, we agree with the district
2 The question of constitutionality of the Chino Valley I] decision was
raised in the jurisdictional statement before the Supreme Court. However.
since the issue was not one of the validity of a statute under the Constitu-
tion but one of the validity of a court decision under the Constitution,
the question was in the court's discretionary jurisdiction. See 28 U.S.C.
§ 1257(3) (1976). We consider it, like the other issues raiséd here, as
having been left unaddressed by the Court in the summary dismissal.
A-9
court that the Act does not suffer the defect alleged by the
appellants. *
Arizona has adopted the common law rule that a statute
is void if its meaning depends on a document not part of the
statute, which document does not exist at the time of the
enactment of the statute, unless the statute contains a proper
delegation of authority to a designated agency. See State
Compensation Fund vy. de la Fuente, 18 Ariz. App. 246, 251,
501 P.2d 422, 427-28 (1973); see also State ex rel. Weiks v.
Tumwater, 66 Wash.2d 33, 34-35, 36, 400 P.2d 789, 791-92
(1965), In this case, nearly all of the provisions of the Act
apply to what are designated as “active management areas.”
Initial active management areas are defined in Ariz. Rev.
Stat. Ann. § 45-41 1(A), but the definition is simply in terms
of “the maps filéd in the Office of the Secretary of State on
the effective date of this [Act].” Ariz. Rev. Stat. Ann.
§ 45-411(B) (West Supp. 1982). The Act does not delegate
authority to anyone to designate the initial active manage-
ment areas. Therefore. if on the date of enactment of the Act
the maps were not in existence and on file in the Office of
the Secretary of State, much if not all of the Act would be
void under Arizona law. ¢
The district court did not address plaintiffs’ argument on
the merits. Rather, the court simply concluded that the
enrolled bill doctrine, which “precludes judicial inquiry
from going behind the legislation to examine the circum-
stances under which it was passed,” prohibited the court
“from inquiring into the manner in which the [Act] was
enacted.” 543 F.Supp. at 1279. This was error.
While the enrolled bill rule fully applies to challenges
raised against the validity of an Arizona statute, Hernandez
3 Although this issue is one of state law, it must be addressed since it
could avoid the need to address the federal constitutional issues. See
Schmidt v. Oakland Unified School District, 457 U.S. 594, 595 (1982).
‘ That maps may now be on file is irrelevant to this question. The Ari-
zona legislature intended, indeed explicitly provided, that the areas be
defined by maps “in the Office of the Secretary on the effective date.”
A-10
v. Frohmiller, 68 Ariz. 242, 259, 204 P.2d 854, 865 (1949);
see also Field v. Clark, 143 U.S. 649, 672-73, 680, 12 S.Ct.
495, 497-500, 36 L.Ed. 294 (1892), it has no application to
plaintiffs’ contention that the bill is void on its face under
the rule of de la Fuente. The enrolled bill doctrine is
intended to forestall judicial inquiry into procedural irregu-
larities occuring prior to the enactment of bills, not inherent
defects in bills as enrolled. The challenge here is based not
on whether there was truly a vote of the majority in favor of
the Act, or whether the Act was reported out of “X” com-
mittee as the parliamentary rules of the Arizona legislature
may require, but whether the enrolled bill, itself. is void.
The bill, as enrolled, refers to certain extrinsic documents. If
those documents (maps on file in a particular office) did not
exist on the date of enactment, the provisions of the bill
dependent on those documents are void. To determine
whether the duly enrolled bill is valid, the court must look
at the documents from which the enrolled bill itself purports
to derive its meaning.
The enrolled bill doctrine, therefore, does not foreclose
our inquiry; upon inquiry, however, we conclude that the
bill is valid. The plaintiffs state in their briefs that the maps
describing the four initial active management areas were, in
fact, on file in the Secretary's office on June 12, 1980, the
date on which the governor of Arizona signed the bill into
law. The landowners conceded as much at oral argument.
Consequently, the bill, as enrolled, was not void for an
improper reference to extrinsic documents. *
5 To the extent that plaintiffs argue that the bill was invalidly enacted
because the legislature had only working copies, not final maps, before it
when it voted on the bill, the challenge falls within the enrolled bill doc-
trine and is not within the jurisdiction of the courts to redress. Bascd on
separation of powers considerations, the doctrine precludes judicial
inquiry into procedural defects that take place before the executive has
signed the bill. See Field v. Clark, 143 U.S. 649, 672 (1892) (“respect due
to coequal and independent departments requires the judicial department
... to accept ... all bills authenticated” by leaders of both houses and by
the executive as having been validly enacted).
A-I1
We affirm the judgment of the district court sustaining the
validity of the Act.
AFFIRMED.
APPENDIX B - OPINION AND ORDER OF THE
UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
ARIZONA
B-|
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
CLIFTON N. CHERRY, et al..,
Plaintiffs, No. CIV 81-719
PHX CAM
VS.
WESLEY E. STEINER, et al... OPINION and ORDER
Defendants.
With their suit, plaintiffs seek a ruling that the 1980 Ari-
zona Groundwater Code violates due process and equal
protection in contravention of the fifth and fourteenth
amendments to the United States Const:tution. Their action
prays for an order enjoining State officials from enforcing
the statute and quieting title in their names to the ground-
water underlying their properties.
The plaintiffs are several married couples, two corpora-
tions and a private water company, all of whom own land
within the Upper Aqua Fria Subbasin of the Prescott Initial
Active Management Area. They allege that there are sub-
stantial quantities of groundwater underlying their several
properties, and that the legislation has diminished the value
of the land by taking their ownership in the water without
compensation. They further allege that the Code establishes
arbitrary classifications which are not rationally related to
the goals of the legislation, that the law contains impermis-
sible irrebuttable presumptions, and that the legislation was
passed in a manner which constitutes an impermissible dele-
gation of legislative responsibility to an unauthorized third
party.
The defendants are Wesley E. Steiner, Director of the Ari-
zona Department of Water Resources, who is charged with
enforcement of the statute, and other public officials respon-
sible for the filing of maps, which designate the groundwater
management areas established by the legislation.
B-2
In response io the complaint, the defendants deny that
the statutory scheme offends any constitutional provisions.
They assert that the law is the result of a valid exercise of
the State’s police power. They specifically deny that the
plaintiffs have any ownership interest, according to Arizona
law, in percolating groundwater underlying their realty.
The lawsuit is a matter in controversy arising under the
Constitution of the United States, conferring this Court with
jurisdiction pursuant to 28 U.S.C. §1331. This Court is also
empowered to render a declaratory judgment, if appropriate,
by the parties’ invocation of 28 U.S.C. §2201.
For the reasons set forth below, the Court finds and con-
cludes that there are no material facts in dispute, and that
the legislation is a permissible exercise of the State's police
power and does not offend the Constitution. Accordingly,
the defendants’ Motion for Summary Judgment is granted,
while the plaintiffs’ Motion for Summary Judgment is
denied.
Groundwater in Arizona
During the 1930's, the shortage of groundwater in the
State became a matter of concern. It was not until 1948
though, that legislation was passed dealing with the prob-
lem. The Groundwater Code of 1948 was promulgated
under threat from the United States Department of Interior
that the Central Arizona Project would not be built unless
Arizona took steps to regulate its groundwater. At the time,
the Code was viewed as a temporary measure. Nevertheless,
with minor changes it remained the law until the 1980 law
was enacted.
The Code of 1948 authorized the State Land Commission
to designate “critical groundwater areas,” within which there
would be no further expansion of agricultural irrigation with
groundwater. Existing agricultural wells were permitted to
continue pumping.
The constitutionality of the Code was upheld in South-
west Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764
B-3
(1955). In so doing, the Arizona Supreme Court rejected
allegations similar to the ones that have been raised in this
suit — that the 1948 Code took property without compensa-
tion, was violative of equal protection and was an unauthor-
ized delegation of legislative responsibilities.
Previously, in a rehearing of a decision which held that all
groundwater was subject to prior appropriation, the Arizona
Court had reinstituted the common law rule, in holding that
a landowner had the right to the reasonable use of the
groundwater underlying his property. Bristor v. Cheatham,
(Bristor 11), 75 Ariz. 227, 255 P.2d 173 (1953).
The temporary nature of the 1948 Code was underscored
in the Jarvis trilogy, which attempted mediation, among
special interests for the State's finite bank of groundwater. In
Jarvis v. State Land Department (Jarvis 1), 104 Ariz. 527,
456 P.2d 385 (1969), the City of Tucson was enjoined from
transporting water to the city for municipal use from wells
in a critical groundwater area. The injunction was modified
in Jarvis 11, 106 Ariz. 506, 479 P.2d 169 (1970), so as to
allow the city to purchase land within the critical ground-
water area, retire the land from cultivation and irrigation,
and transport groundwater from the farmlands to the
municipal service area in an “amount equal to the annual
historical maximum use upon the lands so acquired.” 106
Ariz. at 511, 479 P.2d at 174.
Jarvis I] exemplified the flexibility in the reasonable use
doctrine by permitting the transportation of groundwater off
of the land from which it is pumped for beneficial use else-
where. In Jarvis //1/, 113 Ariz. 230, 233, 550 P.2d 227, 230
(1976), the Court interpreted “annual historical maximum
use” to mean “consumptive use,” reducing the amount
available to the City of Tucson by approximately 50 percent.
The transportation of mined groundwater was again
addressed in Farmers Investment Co. v. Bettwy, 113 Ariz.
520, 558 P.2d 14 (1976). The court held that the doctrine of
reasonable use prevented the transportation of water away
from “the land from which the groundwater is being
B-4
pumped,” where the supply of other groundwater users who
overlie the common source of supply is being lowered and
depleted. Recognizing the potential economic impact of
such a decision, the opinion stated that the courts would not
prefer one economic interest over another, but that “the
Legislature is the appropriate body to designate when and
under what circumstances such economic interest will pre-
vail.” /d., 113 Ariz. at 527, 588 P.2d at 21.
In its next session, the Arizona Legislature passed a bill
which provided that one could file an application for a Cer-
tificate of Exemption for the amounts of groundwater then
being used by that person or entity. These 1977 amend-
ments to the Groundwater Code of 1948 further provided
that once an exemption was obtained, the transporter could
transport as much water off the property as was originally
being used thereon, without the threat of injunction. The
transporter could be sued for damages, however, if it dam-
aged other landowners who owned land over the same
groundwater basin or aquifer.
The 1977 amendments were challenged on the grounds
that such a scheme constituted the taking of property with-
out just compensation and that restriction of the remedy
available violated the principle of separation of powers.
These arguments were rejected and the constitutionality of
the legislation was upheld in Town of Chino Valley v. State
Land Department , (Chino Valley 1), 119 Ariz. 243, 580 P.2d
704 (1978).
The 1977 amendments recognized the necessity of a com-
prehensive overhau! of the Groundwater Code. To this end,
the legislation established the Groundwater Management
Study Commission and provided that this Commission
would draft a recommendation which would become the
State’s Groundwater Code unless the legislature passed its
own bill before the end of 1981.
The legislature recognized that no major legislation could
be passed over the objection of any major class of water
users. Consequently, the Study Commission was made up of
B-5
representatives of the major types of water users:
agricultural, mining, urban and Indian interests. The Com-
mission held public hearings and workshops, and solicited
input through mailings.
The Commission developed a Draft Report, which pro-
vided a _ proposal for comprehensive groundwater
management. The two agricultural representatives on the
Commission dissented.
In light of the dissents and the objections of irrigators at
the public hearings, the Commission decided to make fur-
ther revisions in hopes of bringing agriculture into the group
supporting the bill. Negotiations with agricultural interests
were conducted, resulting in the production of “Concepts
for Agreement Integrated Package.” The Commission
accepted the Concepts package and, without dissent,
directed the package be put into statutory language.
On June 5 and 6, 1980, the Commission and both houses
of the legislature held public hearings on the bill. On the
6th, the Commission recommended the amended draft to
the legislature by a vote of 19 ayes, | no, and 4 abstentions.
On June 9, hearings were held by committees of the joint
legislature. The bill was passed by the legislature in special
session on June |1, and signed into law by the Governor the
next day.
The Groundwater Code of 1980
The Code commences by recognizing that the people of
Arizona are very dependent on groundwater as a source of
their water supply. Also acknowledged are the facts that the
withdrawal of groundwater is and has been in great excess of
the safe annual yield and that this threatens the State's wel-
fare. A.R.S. §45-401. (All subsequent references to A.R.S.
sections will list only the section number.)
Ae
In response, the Code announces its intentions as seeking
to conserve, protect and allocate groundwater and provide a
framework for management and regulation of the
B-6
withdrawal, transportation, use, conservation and convey-
ance of rights to use the groundwater. §45-401 B.
One of the principal features of the legislation is the estab-
lishment of Active Management Areas (AMA), §45-402(2),
which are geographic areas where groundwater supplies are
imperiled. In these areas, groundwater use is subject to close
scrutiny and intensified regulation. An AMA encompasses a
relatively distinct hydrological body or related body of
water, termed a groundwater basin or sub-basin. §45-412(B).
The Code established four initial AMA’s: Tucson, Phoe-
nix, Prescott, and Pinal. §45-411(A). The plaintiffs in this
suit are landowners within the Prescott AMA, which
includes the Little Chino and Upper Agua Fria Subbasins.
Plaintiffs correctly assert that there are no administrative
means for modifying the boundaries of the initial AMA’s.
This was legislatively accomplished and can be modified
only by the legislature.
The Groundwater Code also provides for the future clas-
sification of additional AMA's. §45-412. A subsequent AMA
could be established only after hearings were held, and any
such decision would be judicially reviewable.
An elaborate system of management of groundwater in
the AMA’s is established. Uses of groundwater in the areas
are permitted to continue and are called “grandfathered
rights.” There are three categories of grandfathered rights:
irrigation rights, §45-465, Type | non-irrigation rights,
§45-463, and Type 2 non-irrigation rights, §45-464. An irri-
gation right is measured in acres of land which may con-
tinue to be irrigated and is determined by historical use.
Holders of irrigation rights are encouraged to convert their
land to non-irrigation uses. §45-472. The right to use
groundwater for a non-irrigation purpose by virtue of having
retired irrigated land is a Type | non-irrigation right.
§45-463.
Type 2 non-irrigation rights are all remaining non-
irrigation uses of groundwater in existence when an AMA is
designated, e.g., mines, and industry. Withdrawal from
B-7
domestic wells and withdrawals by cities, towns and private
water companies from outside their service areas or within
their service areas pursuant to a certificate of exemption is
considered to be within Type 2 uses. §45-464(C).
Service areas are those areas being served water by a pub-
lic or private water company. §45-402 (25). Municipalities
and water companies may withdraw enough water within
their service areas to serve their customers, although they
are restricted from extending their service areas and the
types of services that they provide. §45-493(A) and (B).
The Code also established two irrigation non-expansion
areas, which are not subject to active management, but in
which new land may not be irrigated. These areas have been
determined to be capable of supporting existing irrigation
uses at current rates of withdrawal, but could not safely sup-
port expanded withdrawals. §45-431.
Within AMA’s, the Code generally prohibits new uses of
groundwater. §45-491, ef seg. While new withdrawals for
domestic uses are permitted, §45-492, no additional indus-
trial uses will be allowed, except where designed to require
maximum conservation, §45-497. Industrial users will be
required to purchase and retire irrigated lands if available.
Id. Further, there is a prohibition against putting new land
into irrigation with any kind of water. §45-493(C).
Recognizing that grandfathered rights or the purchases
from water comipanies within service areas may not provide
sufficient water, a system for obtaining permits to withdraw
additional quantities of water has been established.
§45-512-19. The permits may be issued only for limited pur-
poses and after certain requisites have been satisfied.
The Code contains strong management tools. Subdivided
lands within an AMA may be sold only after the developer
has demonstrated that there is sufficient water to satisfy the
needs in the subdivision for the next 100 years. §45-576. In
addition, a subdivider must show that the projected water
use is consistent with the management plans for the AMA,
which have been established by the Director of the Depart-
B-8
ment of Water. Jd. The assurance of a supply of water need
be demonstrated despite the fact that the subdivision will be
served by a water company, although if the subdivision is to
receive Central Arizona Project water, the director may
deem the water assurance requirement met. §45-576(E).
The problem of transportation of groundwater has also
been addressed by the legislation. In Farmers Investments,
113 Ariz. 529, 558 P.2d 14 (1976), the Arizona Supreme
Court held that the City of Tucson and Anamax Mining
Company could be enjoined from withdrawing groundwater
from lands that they owned and transporting the water to
land other than from which the waters are taken. However,
the Code permits such transportation of amounts of water
equal to the historical use. The new law does recognize the
reasonable use doctrine and provides that if such mining
and transportation does lower the water table so as to
diminish the water available to another landowner whose
land overlies the common water table, the transporter is
subject to damages. §45-544(2). While transportation of
groundwater is regulated from areas both within and with-
out AMA’s, transportation from within AMA’s is regulated
more strictly and depends upon the use for which the water
is intended and the type of water rights possessed by the
party withdrawing the groundwater. §§45-541-44.
Chapter | of the groundwater legislation creates the
Department of Water Resources, §45-102, within which is
the Arizona Water Commission. §45-121. The director of
the department succeeds to the power previously held by the
Groundwater Commission. Presently, the director is Wesley
Steiner, a defendant in this suit. The director is required to
promulgate and implement groundwater management plans.
The Code provides for five management periods: four,
ten-year periods and one, five-year period. §§45-564-68. The
director is to develop a plan for each AMA for each period.
In successive periods, the conservation requirements
become progressively more stringent. Throughout the course
of the management program, groundwater use is to be cur-
B-9
tailed through the imposition of irrigation water duties,
§45-402. and increased conservation by cities and industry.
§45-544-68.
Management programs in the future provide for augmen-
tation of water in each AMA and the imposition of
withdrawal fees on users. /d. Further, the State will be
allotted funds for the purchase and retirement of grand-
fathered irrigation rights and will exercise contro! over the
location or redrilling of wells. /d.
In summary, probably the biggest innovation in the Code
is the establishment of AMA's. Previous water uses are per-
mitted to continue although through a series of controls and
regulation, increased use is prohibited, and users are encour-
aged to convert land to uses less dependent on groundwater.
Transportation of groundwater and alienation of water
rights are dealt with in a manner that also encourages con-
servation and putting groundwater to its most efficient use.
The Code creates a state agency charged with the manage-
ment of groundwater in Arizona.
The Cross-Motions for Summary Judgment
The parties have filed Cross-Motions for Summary Judg-
ment. They allege, and the Court agrees, that there are no
issues of disputed fact. Plaintiffs seek a determination that
the Code is unconstitutional on the grounds that the legisla-
tion constitutes a taking of property without just compensa-
tion, that it contains impermissible irrebuttable
presumptions, that its classifications violate the equal
protection clause, and that the Code makes an impermis-
sible delegation of legislative power to an unrestrained third
party. Plaintiffs further seek an order quieting title in the
groundwater underlying their properties.
With their motion, the defendants seek a ruling that the
legislation is constitutional and was a valid exercise of the
State's police powers.
B-10
DUE PROCESS TAKING
The principal argument advanced by the plaintiffs is that
the Code takes their property without due process of law.
This argument is premised upon the assumption that a land-
owner owns the groundwater that underlies his property.
Plaintiffs argue that the imposition of any conditions upon
their use and enjoyment of their groundwater by state action
is constitutionally infirm.
The death knell for this argument sounded after this suit
was filed, when the Arizona Supreme Court announced its
decision in Town of Chino Valley v. City of Presoctt, 13)
Ariz. 78, 638 P.2d 1324 (1981), appeal dismissed.
US., , 102 S.Ct. 2897, 73 L.Ed.2d 1310 (1982). That
case, Chino Valley II, raised essentially the same issues that
have been presented to this Court. Most importantly, the
decision explicitly held that there is no right of ownership in
groundwater prior to its capture. A landowner whose land
overlies groundwater has only the right to use of the water,
but maintains no proprietary interest in the actual water.
131 Ariz. at 82, 638 P.2d at 1328.
Federal courts look to state law for the definition of prop-
erty rights. 28 U.S.C. §1652. Additionally, a federal tribunal,
when interpreting state law is bound by the interpretation of
the law by that state’s courts. Erie Railroad Company v.
Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188
(1938). The Arizona Supreme Court has stated that there is
no propriety interest in percolating groundwater. That court
has further declared that any language in previous decisions,
which suggested that there was a property interest in ground-
water, was only dicta. 131 Ariz. at 81, 638 P.2d at 1327.
The only interpretation of Arizona law open to this Court
is that a landowner has no interest in underlying ground-
water prior to its capture. Without an interest in the per-
colating water, the plaintiffs may not assert a wrongful
taking of their property; Chino Valley 11 emasculates their
due process argument.
B-11
The plaintiffs have attempted to circumvent the impact of
Chino Valley II by alleging that the Supreme Court’s deci-
sion, itself, has unconstitutionally destroyed property rights.
They rely on some old case law for the proposition that
when a court decision works an unpredictable change in
state law, this gives rise to a federal question as to whether
the court has impermissibly taken property without due pro-
cess. Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17
S.Ct. 581, 41 L.Ed. 979 (1896); Pease v. Peck, 59 U.S. (18
How.) 595, 15 L.Ed. 518 (1855).
Plaintiffs allege that previous Arizona decisions have
established a landowner’s proprietary interest in the ground-
water underlying the property e.g., Howard v. Perrin, 8 Ariz.
347, 76 P.2d 460 (1904), aff'd. 200 U.S. 71 (1906). They
argue that the Chino Vallev I] decision was a radical depar-
ture from prior law and thus does violence to their property
rights. “
This argument must fail for several reasons. Initially, the
status of the law in Arizona regarding groundwater as pri-
vate property was not as clear as the plaintiffs would have
this Court believe. In Southwest Engineering Company v.
Ernst, 79 Ariz. 403, 291 P.2d 764 (1955), the Arizona
Supreme Court analyzed its prior decisions dealing with
groundwater, including Southwest Cotton, supra, and Bristor
I], supra, cases upon which the plaintiffs base their conten-
tions of proprietary rights in groundwater. The Ernst court
found that while prior decisions may have decided that
landowners had an interest in water underlying their
property, that those cases dealt only with disputes between
individuals and that “the question was left open as to the
right of the state against individuals to regulate the con-
sumption of water in the interest of the general welfare.” 79
Ariz. at 408, 291 P.2d at 767. Recognizing the weighty pub-
lic concern over the depletion of groundwater sources, the
Ernst court concluded by stating: “we cannot say that the
exercise of such choice, controlled by considerations of
social policy which are not unreasonable, involves a denial
of due process.” 79 Ariz. at 410, 291 P.2d at 769. In ren-
B-12
dering its decision, the Court in Ernst rejected a due process
taking argument similar to this one.
Besides recognizing that the future use of groundwater
was a matter of legislative concern, the decisions upon
which the plaintiff rests are not as unequivocal as plaintiffs’
protests. One of the state’s preeminent authorities on water
law has stated this about the Bristor 1] decision,
Bristor did not accept the doctrine of ‘absolute own-
ership,” and appropriation theory was expressly rejected
by the court on rehearing. The court distinguished cor-
relative rights doctrine and put it aside in favor of
‘reasonable use’ doctrine, which in operational terms
includes exercise of the state’s police power. .. . Clark,
R.E., Groundwater Management Law and _ Local
Response, 6 Ariz. L. Rev. 178, 197 (1964-65).
In the Bristor I] decision, the Court also recognizes that
the overlying owner's right is to the use of the water, not the
water itself. 75 Ariz. at 234, 255 P.2d at 180.
Not only is the plaintiffs’ reliance upon selected passages
of Arizona case law misplaced, the plaintiffs, in asserting an
absolute right to ownership of groundwater, ignore the
actions of legislatures and courts throughout the country.
Water, particularly in the West, is becoming increasingly in
demand and valuable. Recognizing the potential public
shortages of water, legislatures, through the use of their
police power, have passed legislation restricting private use.
This Court is unaware of any such police power actions
which have been found unconstitutional. '
Finally, the plaintiffs’ assertions of ownership of per-
colating groundwaters must fail on the basis of logic.
' See Crookston Cattle Co. v. Minnesota Department of Natural
Resources, 300 N.W. 2d 769, 774 (Minn. 1980); Village of Tequesta v.
Jupiter Inlet Corp., 37\ So. 2d 663, 670 (Fla. 1979), cert. denied, 444 U.S.
965 (1979), Baeth v. Hoisveen, 157 N.W. 2d 728, 732 (N.D. 1968), Wil-
liams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962), appeal dis-
missed, 375 U.S. 7 (1963).
B-13
Groundwater is “water under the surface of the Earth
regardless of the geological structure in which it is standing
or moving. It does not include water flowing in underground
streams with ascertainable beds and banks.” §45-101(4).
Groundwater knows no boundaries and may flow under the
land of several landowners. It would be impossible to accord
to each overlying landowner the right to the underlying, per-
colating water, as withdrawal by one owner necessarily inter-
feres with the enjoyment of the like privilege of other
owners.
Plaintiffs’ claims of an unconstitutional taking of their
property is based upon a misreading of Arizona law. Fur-
thermore, the claim ignores the experience of other states
and is logically unsound. The State has the power, within
constitutional limitation, to impose such restraints upon pri-
vate rights as are necessary for the common good.
IRREBUTTABLE PRESUMPTION
The plaintiffs also argue that the legislation establishes
irrebuttable presumptions in its categorization of Active
Management Areas (AMA's) and is thus violative of due
process. They note that the legislation contains no explana-
tion as to why the four AMA’s were so designated. They
point out that in order to designate a subsequent AMA, the
State would need to make certain findings and hold hear-
ings. Plaintiffs reason that because the legislation contains
no findings in regard to the initial AMA’s, that this denom-
ination constitutes an irrebuttable presumption.
While it is true that the new statute itself is silent as to the
basis for the AMA designations, the legislative history is full
of support for this legislative categorization. Initially, it need
be noted that the four initial AMA’s account for 69 percent
of the total groundwater overdraft in the state and include
80 percent of the State’s population. Looking toward the
future, the State expects its largest population increases
within these areas.
Despite such solid factual footing, the Code cannot be
threatened by an irrebuttable presumption argument, as this
B-14
doctrine is probably no longer viable in this circuit,
deLaurier v. San Diego Unified School District, 588 F.2d
674, 683, n. 16 (9th Cir. 1978). Additionally, the doctrine
never applied to legislative decisions regulating the private
sector of the economy. Weinberger v. Salfi, 422 U.S. 749, 95
S.Ct. 2457, 45 L.Ed.2d 522 (1975); Mourning v. Family Pub-
lication Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36
L.Ed.2d 318 (1973).
Although plaintiffs argue irrebuttable presumption, their
lack of a reply to the defendants’ reference to these cases
seems to recognize the inevitable failure of such position.
DELEGATION OF LEGISLATIVE AUTHORITY
It is next alleged that the legislature abdicated its non-
delegatable responsibility, when it enacted legislation which
incorporated maps of the four initial AMA's, which had not
yet even been prepared. Plaintiffs argue that the legislature
and the Governor could not have had any idea of what they
were enacting if they did not have these maps before them
at the time of their respective acts. Further, plaintiffs con-
tend that it is an impermissible delegation of the legislative
responsibility to permit an unauthorized third party, the
State Water Commission, to prepare such a critical part of
the legislation.
The defendants respond by avowing that the legislature
and the Governor were working from smaller, more com-
pact maps, with the identical boundaries as set forth on the
maps later filed with the Secretary of State.
Regardless of the situation, such inquiry by a court is pro-
hibited by the Enrolled Bill Doctrine. This policy precludes
judicial inquiry from going behind the legislation to exam-
ine the circumstances under which it was passed. See e.g.,
Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294
(1892). Arizona courts have also recognized that the separa-
tion of powers doctrine, and the respect the judiciary should
give to the enactments of a coordinate branch of govern-
ment, prevent them from examining alleged procedural
B-15
defects or irregularities in the passage of legislation. Hernan-
dez v. Frohmiller, 68 Ariz. 242, 204 P.2d 854 (1949).
The Enrolled Bill policy prevents this Court from
inquiring into the manner in which the Code was enacted.
DUE PROCESS AND EQUAL PROTECTION
Plaintiffs have alleged that a variety of provisions of the
Code are arbitrary and not rationally related to legitimate
legislative goals, rendering the legislation violative of the
equal protection and due process clauses.
Legislative acts adjusting the burdens and benefits of eco-
nomic life come to the courts with a presumption of
constitutionality. //odel v. Indiana, 452 U.S. 323, 101 S.Ct.
2376, 2382, 69 L.Ed. 2d 4 (1981). Plaintiffs have the burden
of overcoming this burden. They must establish that the leg-
islature’s classifications are purely arbitrary and not ration-
ally related to a legitimate legislative purpose. Usery v.
Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49
L.Ed.2d 752 (1976).
The plaintiffs attack on the Code is broad-based. They
argue that the classification of certain areas as AMA’s is dis-
criminatory, that the boundaries for these areas are not
rationally justifiable, and that the distinctions drawn
between different types of water users is irrational. Plaintiffs
contend that there is no justification for distinction between
private and public water companies, or between mining and
other industrial use permits. They allege that the implemen-
tation of irrigation water duties will discriminatorily impact
upon them.
It is not this Court's task to weigh the wisdom of the leg-
islature’s work. Whether a more attractive alternative exists
is not of concern, but only whether there exists a rational
basis for the Code’s provisions. For each and every sugges-
tion of constitutional infirmity made by the plaintiff, the
defense has provided a rational explanation for that provi-
sion.
B-16
The designation of Active Management Areas was based
upon the recommendation of the Arizona water commission
that these areas required active management so as to meet a
goal of safe-yield. The commission held public hearings and
solicited public input through mailings. It considered the
works and opinions of experts in the fields of demography
and hydrology. It established four AMA's which account for
69 percent of the State’s groundwater overdraft and 80 per-
cent of the State’s population. The three AMA's with safe
yield goals account for 45 percent of the overdraft and 77
percent of the population in Arizona. The Arizona Depart-
ment of Economic Security has forecasted that the State's
population will explode most profoundly in the area encom-
passed by the Phoenix, Tucson and Prescott AMA's.
Pursuant to the 1948 Groundwater Code, ten Critical
Groundwater Areas were designated. Every previously desig-
nated Critical Groundwater Area was included in either an
AMA or an Irrigation Non-Expansion Area under the new
Act. The Arizona Supreme Court found that the establish-
ment of Critical Groundwater Areas was constitutional in
Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 412, 291
P.2d 764, 770 (1955), under a similar constitutional analysis.
The defendants have documented the existence of a
sound hydrological basis for the boundaries which establish
AMA’s. In any case, the equal protection clause does not
apply to the differing treatment accorded geographical areas.
McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101,
1105, 6 L.Ed.2d 393 (1961).
The plaintiffs claim that the distinctions made between
the types of water users is discriminatory. A statute is not
invalid because it draws distinctions between classes and
treats those classes differently, so long as the distinctions are
based upon legitimate differences between the classes and
bear a reasonable relationship to the purpose of the legisla-
tion.
According to depletion or consumptive use rates, irriga-
tion consumes 89 percent of the total water in the state. The
B-17
increasing competition between farming. mining and urban
uses for groundwater was recognized in the Jarvis trilogy.
Arizona courts have long recognized that reconciling these
competing uses was a task for the legislature. Ernst, 79 Ariz.
at 411, 291 P.2d at 770. Water users have long been on
notice that the State would at some point have to intervene
to regulate prospective uses of a dwindling resource in the
face of increased use. The Code does so in a structured prin-
cipal manner with the state’s general welfare as its talisman.
The plaintiffs have claimed that the Code in several
places prefers municipal water companies over private com-
panies and is therefore violative of equal protection. Courts
have upheld the differentiation between private and public
utilities where such distinction is justified by the aims of the
legislation. Springfield Gas and Electric Co. v. City of
Springfield, 257 U.S. 66, 42 S.Ct. 24, 66 L.Ed. 131 (1921);
Southern California Edison Co. v. United States, 415 F.2d
758. cert. denied, 396 U.S. 957, 90 S.Ct. 427, 24 L.Ed.2d 420
(9th Cir. 1969).
The distinctions in the Code are clearly justified. Private
companies are frequently formed by subdividers to provide
services for their developments. In some instances, they are
under-financed, and generally, the motives of the developer
are not so much publicly oriented as they are to-assist in the
sale of lots in the subdivision. Public companies frequently
are forced to later take over private companies. Further, pri-
vate companies are far more constrained than public com-
panies in the raising of revenues through bonds.
One of the primary goals of the Code is to prohibit urban
development in areas where adequate water supplies do not
exist. Public companies are more able to plan for the future
than their private counterparts. They have a sounder eco-
nomic base and a legal obligation to plan for and assure ade-
quate water supplies. Any distinctions made between these
entities by the Code are completely rational and therefore
justified.
B-18
Also heard, is the complaint that mining receives a
different treatment from other industrial water users in the
obtaining of use permits. Defendants point out that unlike
most other water users, mining companies do not have any
flexibility in where they locate; they mine where the ore is
available. Furthermore, mining accounts for only 2.7 per-
cent of the total groundwater pumping in the State, while
making a very significant contribution to the economy.
Finally, the mining industry's use of water is the least inten-
sive per acre of land of any economic enterprise in the State
outside of stock grazing. The defendants properly point out
that any distinctions conferred on the mining industry in its
obtaining use permits is certainly justified by the unique
position it occupies.
The quantity of water which may be used by irrigators
will be limited by irrigation water duties to be set by the
Director of the Department of Water Resources. These
determinations are to be made upon an analysis of each
individual farm unit. §45-402.10. Such an analysis may take
into account the unique situation of each tract of land and is
to be based upon historical use. Irrigators, unlike other
water users, have the availability of variances, flexibility
accounts and credits. to mitigate hardships that water duties
may occasion. Additionally, irrigators are the only group of
water users for whom conservation is not mandatory.
Plaintiffs, however, have argued that the system of water
permits is discriminatory. This argument, like their others,
must fail. The Ernst case established that the legislature
could validly prohibit the irrigation of new land. Presently,
the irrigation of crops in the State consumes more than the
entire dependable water supply of the State. The legislature,
therefore, has a valid basis, indeed responsibility, for lim-
iting the development of land for new irrigation.
The State has not prohibited existing uses. Instead, it has
provided that all existing irrigation may continue subject
only to the imposition of use duties designed to promote
reasonable groundwater conservation. The state has
B-19
designed a rational method of attaining a legitimate govern-
mental goal. The Code is not constitutionally discrimi-
natory.
MOTION TO STRIKE
Plaintiffs have submitted a Motion to Strike many of the
affidavits and exhibits that the defendants have introduced
in support of their Cross-Motion for Summary Judgment.
They allege that many of the documents are irrelevant or
immaterial, that they have not been authenticated or that
the materials were never considered by the legislature. Plain-
tiffs also allege that some of the affidavits should be stricken
in that they are not made on the basis of personal knowl-
edge. Finally, they present an estoppel argument, contending
that because they voluntarily withdrew a notice of deposi-
tion in the face of a defense motion for protective order,
that none of the information sought from the deponent
should be permitted to be introduced.
During the discovery stages of this case, plaintiffs noticed
the deposition of Kathleen Ferris, Chief Counsel for the
Department of Water Resources and past Executive
Director of the Groundwater Management Study Commis-
sion. The defendants filed a Motion for Protective Order,
siating that Ferris was a member of the defense counsel
team in this lawsuit, that some of the anticipated ques-
tioning was protected by the attorney-client privilege, and
that the information sought by the plaintiffs was irrelevant
under the Enrolled Bill Doctrine. Upon receipt of the
Motion for Protective Order, plaintiffs voluntarily withdrew
their notice of deposition, without the Court ever acting.
Plaintiffs now argue that defendants should not be per-
mitted to introduce evidence that they earlier argued was
irrelevant under the Enrolled Bill Doctrine. They contend
that the consideration of such evidence would offend
notions of estoppel.
Initially, it must be remembered that the Court was never
forced to face the request for protective order. Plaintiffs
voluntarily abandoned their intent to depose Ferris, thereby
B-20
mooting the Motion for Protective Order. The Court knows
of no doctrine that prohibits a party from arguing in the
alternative at various states of the litigation. There certainly
was no law of the case established previously.
Furthermore, it would be ridiculous to allow plaintiffs to
put the rationality of the legislation of the Code in question,
and then tie the hands of the defendants behind their backs
by prohibiting them from presenting a case for its rational
basis. The Motion to Strike on the basis of estoppel is
denied. ;
Parts of the documentation by the defendant was intro-
duced in response to the plaintiffs’ argument that there was
an impermissible delegation of legislative authority in the
preparation, passage and signing of the legislation. Although
defendants have posited that such an inquiry is barred by
the Enrolled Bill Doctrine, they have presented evidence for
the purpose of showing that the Code followed proper legis-
lative channels in its preparation and adoption. The Court
has agreed that judicial inquiry into the legislative process is
impermissible. Consequently, none of the materials
presented by the defendants in this regard have been consid-
ered. The plaintiff's Motion to Strike is, therefore, granted to
the extent that it sought exclusion of materials which go
behind the bill to show that the legislation was properly
drafted and passed.
The other materials in support of the defendants’ Motion
for Summary Judgment may properly be considered. The
plaintiffs have opened the door regarding whether there
existed a rational basis for the Groundwater Code. The
defendants have responded with the materials on which the
legislation is based. The fact that the legislature did not con-
sider each page of the studies and reports is not grounds for
holding such information inadmissible. The materials are
relevant and material. The foundation objections are so
vague as to not constitute proper objections. The authentica-
tions objections are legally frivolous. The Motion to Strike
on these grounds is denied.
B-21
Based upon the foregoing discussion of the facts and law,
IT IS ORDERED that the defendants’ Cross-Motion for
Summary Judgment is granted, while the plaintiffs’ Cross-
Motion for Summary Judgment is denied.
IT IS FURTHER AND FINALLY ORDERED that the
plaintiffs’ Motion to Strike is granted in part and denied in
part.
DATED this 19th day of July 1982.
C. A. Muecke
Chief Judge
APPENDIX C - ORDER OF COURT OF APPEALS ON
PETITION FOR REHEARING
C-1
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFTON N. CHERRY,
et ux, et al.,
Plaintiffs-
Appellants,
No. 82-5765
vs. ‘
WESLEY E. STEINER, ORDER
etal.
Defendants-
Appellees.
Before: PECK.* FLETCHER, and PREGERSON, Circuit
Judges.
The panel in this case has voted to deny the petition for
rehearing.
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a
vote on the suggestion. Fed. R. App. P. 35(b).
The suggestion for rehearing en banc is hereby rejected.
*Honorable John W. Peck. Senior United States Circuit Judge for the
Sixth Circuit. sitting by designation.
APPENDIX D - THE 1980 ARIZONA GROUNDWATER
MANAGEMENT ACT (INCLUDING
1981 AMENDMENTS)
.
a
D-1
ARTICLE 1. ADMINISTRATION
§ 45-401. Declaration of policy
A. The legislature finds that the people of Arizona are
dependent-in whole or in part upon groundwater basins for
their water supply and that in many basins and sub-basins
withdrawal of groundwater is greatly in excess of the safe
annual yield and that this is threatening to destroy the
economy of certain areas of this state and is threatening to
do substantial injury to the general economy and welfare of
this state and its citizens. The legislature further finds that it
is in the best interest of the general economy and welfare of
this state and its citizens that the legislature evoke its police
power to prescribe which uses of groundwater are most
beneficial and economically effective.
B. It is therefore declared to be the public policy of this
state that in the interest of protecting and stabilizing the
general economy and welfare of this state and its citizens it
is necessary to conserve, protect and allocate the use of
groundwater resources of the state and to provide a frame-
work for the comprehensive management and regulation of
the withdrawal, transportation, use, conservation and con-
veyance of rights to use the groundwater in this state.
§ 45-402. Definitions.
In this chapter, unless the context otherwise requires:
1. ‘‘Accounting period’’ means the calendar year,
except such other twelve-month period as may be other-
wise agreed upon by the director and the owner of a farm
or a district on behalf of its landowners.
2. ‘*‘Active management area’’ means a geographical
area which has been designated pursuant to article 2 of this
chapter as requiring active management of groundwater.
3. ‘‘Animal industry use’’ means the production,
growing and feeding of livestock, range livestock or poul-
D-2
try, as such terms are defined in § 24-101. Animal industry
use is included in the term and general treatment of indus-
try in this chapter, unless specifically provided otherwise.
4. “City” or “‘town”’ means a city or town incorporated
or chartered under the constitution and laws of this state.
5. ‘“*Convey’’ means to transfer the ownership of a
grandfathered right from one person to another.
6. “‘Effluent’’ means water which, after being with-
drawn as groundwater or diverted as surface water, has
been used for domestic, municipal or industrial purposes
and which is available for reuse for any purpose, whether
or not the water has been treated to improve its quality.
7. ‘Exempt well’’ means a well having a pump with a
maximum capacity of not more than thirty-five gallons per
minute which is used to withdraw groundwater for domes-
tic purposes, including the non-commercial irrigation of
not more than one acre of land.
8. “‘Expanded animal industry use’’ means increased
water use by an animal industrial enterprise on the land in
use by the enterprise on June 12, 1980 or on immediately
adjoining land, excluding irrigation uses.
9. ‘*Farm’’ means an area of irrigated land under the
same ownership which is served by a water distribution
system common to the irrigated land and to which can be
applied common conservation, water measurement and
water accounting procedures.
10. ‘‘Farm unit’? means one or more farms irrigated
with groundwater which are contiguous or in proximity to
each other with similar soil conditions, crops and cropping
patterns.
11. ‘“*Grandfathered right’’ means a right to withdraw
and use groundwater pursuant to article 5 of this chapter
based on the fact of lawful withdrawals and use of
groundwater prior to the date of the designation of an
active management area.
D-3
12. **Groundwater basin’’ means an area which, as nearly
as known facts permit as determined by the director pursu-
ant to this chapter, may be designated so as to enclose a
relatively hydrologically distinct body or related bodies of
groundwater, which shall be described horizontally by sur-
face description.
13. ‘Initial active management area’’ means the Tucson,
Phoenix, Prescott or Pinal active management area estab-
lished by § 45-411.
14. “‘Irrigate’’ means to apply water to two or more
acres of land to produce plants or parts of plants for sale or
human consumption, or for use as feed for livestock, range
livestock or poultry, as such terms are defined in § 24-101.
15. “Irrigation acre’’ means an acre of land, as deter-
mined in § 45-465, subsection B, to which an irrigation
grandfathered right is appurtenant.
16. ‘Irrigation district’’ means a political subdivision,
however designated, established pursuant to chapter 4 or 6
of this title.
17. “Irrigation grandfathered right’’ means a grand-
fathered right determined pursuant to § 45-465.
18. “Irrigation non-expansion area’’ means a geograph-
ical area which has been designated pursuant to article 3 of
this chapter as having insufficient groundwater to provide a
reasonably safe supply for the irrigation of the cultivated
lands at the current rate of withdrawal.
19. ‘Irrigation use’’ means the use of groundwater on
two or more acres of land to produce plants or parts of
plants for sale or human consumption, or for use as feed
for livestock, range livestock or poultry, as such terms are
defined in § 24-101.
20. “‘Irrigation water duty’’ or ‘‘water duty’’ means the
amount of water in acre-feet per acre that is reasonable to
apply to irrigated land in a farm unit during the accounting
period, as determined by the director pursuant to §§ 45-564
D-4
through 45-568.
21. “*Non-irrigation grandfathered right’’ means a grand-
fathered right determined pursuant to § 45-463, 45-464, 45-
469 or 45-472.
22. “*‘Non-irrigation use’’ means a use of groundwater
other than an irrigation use.
23. ‘*Person’’ means an individual, public or private
corporation, company, partnership, firm, association, so-
ciety, estate, trust, any other private organization or enter-
prise, the United States, any state, territory or country or a
governmental entity, political subdivison or municipal cor-
poration organized under or subject to the constitution and
laws of this state.
24. ‘‘Private water company’’ means any entity which
distributes or sells groundwater, except a political subdi-
vision or an entity established pursuant to this title which
is not regulated as a public service corporation by the Ari-
zona corporation commission under a certificate of public
convenience and necessity. A city or town is not a private
water company.
25. ‘Service area’’ means:
(a) With respect to a city or town, the area of land actu-
ally being served water by the city or town plus:
(i) Additions to such area which contain an operating
distribution system owned by the city or town primarily
for the delivery of non-irrigation water.
(ii) The service area of a city, town or private water
company that obtains its water from the city pursuant to a
contract entered into prior to the date of the designation
of the active management area.
(>) With respect to a private water company, the area of
land of the private water company actually being served
water by the private water company plus additions to such
area which contain an operating distribution system owned
by the private water company primarily for the delivery of
D-5
non-irrigation water.
26. ‘Service area of an irrigation district’? means:
(a) With respect to an irrigation district which was en-
gaged in the withdrawal, delivery and distribution of
groundwater as of the date of the designation of the active
management area, the area of land within the boundaries
of the irrigation district actually being served water by the
irrigation district at any time during the five years preceed-
ing the date of the designation of the active management
area plus any areas as of the date of the designation of the
active management area within the boundaries of the irri-
gation district which contain an operating system of canals,
flumes, ditches and other works owned or operated by the
irrigation district. The service area may be modified pur-
suant to § 45-494.01.
(b) With respect to an irrigation district which was not
engaged in the withdrawal, delivery and distribution of
groundwater as of the date of the designation of the active
management area:
(i) The acres of member lands within the boundaries of
the irrigation district which were legally irrigated at any
time from January 1, 1975 through January 1, 1980 for
initial active management area or during the five years
preceding the date of the designation of the active manage-
ment area for subsequent active management areas.
(ii) Any areas as of the date of the designation of the
active management area within the boundaries of the irri-
gation district which contain an operating system of canals,
flumes, ditches and other works for the withdrawal, deliv-
ery and distribution of water.
27. ‘*Sub-basin’’ means an area which, as nearly as
known facts permit as determined by the director pursuant
to this chapter, may be designated so as to enclose a rela-
tively hydrologically distinct body of groundwater within
a groundwater basin, which shall be described horizontally
by surface description.
D-6
28. ‘‘Subsequent active management area’’ means an
active management area established after June 12, 1980
pursuant to article 2 of this chapter.
29. ‘*Subsidence’’ means the settling or lowering of the
surface of land which results from the withdrawal of
groundwater.
30. ‘*Transportation’’ means the movement of ground-
water from the point of withdrawal to the point of use.
31. ‘*Type 1 non-irrigation grandfathered right’’ means
a non-irrigation grandfathered right associated with retired
irrigated land and determined pursuant to § 45-463, 45-469
or 45-472.
33. ‘*Type 2 non-irrigation grandfathered right’’ means
a non-irrigation grandfathered right not associated with
retired irrigated land and determined pursuant to § 45-464.
33. ‘*Well’’ means a man-made opening in the earth
through which water may be withdrawn or obtained from
beneath the surface of the earth.
§ 45-403. Designation of groundwater basins and sub-
basins; hearing
A. Within eighteen months of the effective date of this
section’, the director shall propose boundaries for all ground-
water basins and sub-basins of groundwater basins in this
state not included within initial active management areas
established pursuant to § 45-411.
B. Within twenty-four months of the effective date of this
section’, the director shall hold public hearings to consider
the final boundaries of groundwater basins and sub-basins
in this state not included within initial active management
areas established pursuant to § 45-411. The director shall
give reasonable notice of the hearing appropriate to the
circumstances which shall include the publication once each
week for two consecutive weeks in a newspaper of general
circulation in each county in which the proposed ground-
* June 12, 1980.
D-7
water basin is located. Any notice shall contain the time
and place of the hearing, the legal description and a map
clearly identifying and describing all lands to be included in
the proposed groundwater basin and any sub-basin and any
other information the director deems necessary.
C. The hearings shall be held at the county seat of the
county in which the major portion of the land in the pro-
posed groundwater basin is located as soon as practicable
but no less than thirty days and no more than sixty days
after the first publication of the notice of the hearing. At
the hearing, the director shall present the factual data in his
possession in support of the proposed action. Any person
may appear at the hearing, either in person or by representa-
tive, and submit oral or documentary evidence for or against
the proposed action. In making his determination, the
director shall give full consideration to public comment and
to recommendations made by local political subdivisions.
§ 45-404. Findings upon hearing; maps; order for boun-
daries of groundwater basin; review and modification of
boundaries
A. Within sixty days after the hearing, the director shall
make and file in his office written findings with respect to
matters considered during the hearing. For each ground-
water basin, the director shall prepare and file in his office:
1. A map clearly identifying all lands included within
the groundwater basin and its sub-basins.
2. Factual data justifying the boundaries of the ground-
water basin and sub-basins.
3. An order designating the boundaries of each ground-
water basin and its sub-basins.
B. The findings and order shall be published in the
manner and for the length of time prescribed for the pub-
lication of notice of the public hearing and the order is
effective when published for the final time. The materials
required by subsection A of this section and a transcript of
a eT
D-8
of the hearing are public records of.the department and
shall be available for examination by the public during
regular business hours.
C. The director shall file a true copy of the map in the
office of the county recorder of the county or counties in
which the groundwater basin is located.
D. The director may, as conditions require and factual
data justify, review and modify the boundaries of any
groundwater basin or any sub-basin of a groundwater basin
except for groundwater basins and sub-basins of a ground-
water basin that are included within an initial active manage-
ment area. The review and modification of boundaries of a
groundwater basin or sub-basin included within a subse-
quent active management area or irrigation non-expansion
area shall follow procedures set forth in §§ 45-417 and
45-438. Any modification of boundaries designated pursu-
ant to this article shall follow as closely as practicable the
procedural requirements § 45-403 and this section.
§ 45-405. Rehearing; appeals from decisions of the direc-
tor; assignment of appeals
A. The director shall, by regulation, provide an oppor-
tunity for rehearing or review of any decision of the director.
B. Except as otherwise provided in this chapter, appeals
from a decision of the director shall be conducted pursuant
to title 12, chapter 7, article 6' and shall extend to all ques-
tions of law and fact presented by the record.
C. A hearing held by the director or hearing officer
shall be stenographically reported. If the person appeals a
decision of the director or hearing officer, a transcript
shall be made.
D. If no hearing was held, the court shall remand to the
director for purposes of conducting a hearing, unless the
' Section 12-901 etgeq.
D-9
party appealing waives such remand and consents that the
matter be decided by the court on the record before it.
E. No new or additional evidence in support of or in
opposition to a finding, order, determination or decision
of the director shall becheard by the court except if, in the
discretion of the court, justice demands the admission of
such evidence.
F. Each appeal under this section shall be assigned to a.
judge whom the chief justice of the supreme court has spe-
cifically designated, pursuant to § 45-406, to hear appeals
under this section.
§ 45-406. Designation of judges; publication of designated
judges
A. The chief justice of the supreme court, within sixty
days after the effective date of this section,' shall designate
at least one judge, but not more than five judges, of the
superior court to hear appeals perfected under § 45-405.
The chief justice of the supreme court shall also specify the
particular county or counties for which each designated
judge will be available for assignment.
B. The supreme court shall publish in the rules of the
supreme court the name ef each designated judge and the
county or counties in which each designated judge will be
available for assignment.
C. The presiding judge for the county in which an
appeal has been perfected under § 45-405 shall assign the
appeal to the appropriate judge desigiiated by the chief
justice of the supreme court and shall advise in writing the
presiding judge and clerk of the superior court in the
county in which the designated judge ordinarily sits about
the assignment.
* June 12, 1980.
D-10
§ 45-407. Stay of director’s decision; precedence of appeals;
review by the court of appeals
A. The decision of the director shall not be stayed pend-
ing appeal, except that the judge to whom the appeal has
been assigned may stay the decision of the director with or
without bond upon a showing of good cause. In determin-
ing whether good cause exists under the circumstances, the
court may consider:
1. The public interest will not be adversely affected by a
stay.
2. The stay will not harm others.
3. There is a high probability that the appellant will suc-
ceed on the merits.
4. The appellant will suffer irreparable harm before a
decision on the merits can be rendered.
B. For the benefit of the people of this state, appeals
perfected under § 45-405 have precedence, in every court,
over all other civil proceedings.
C. The final decision of the superior court is appealable
in the same manner as in civil actions generally and shall be
governed by the rules of appellate procedure.
ARTICLE 2. ACTIVE MANAGEMENT AREAS
§ 45-411. Initial active management areas; maps
A. Four initial active management areas are established
on the effective date of this section.' The four initial active
management areas are:
1. The Tucson active management area which includes
the upper Santa Cruz and Avra valley sub-basins.
2. The Phoenix active management area which includes
the east Salt river valley, west Salt river valley, Fountain
hitis, Carefree, lake Pleasant, Rainbow valley and Hassa-
yampa sub-basins.
D-i1
3. The Prescott active management area which includes
the little Chino and upper Agua Fria sub-basins.
4. The Pinal active management area which includes the
Maricopa-Stanfield, Eloy, Aguirre valley, Santa Rosa valley
and Vekol valley sub-basins.
B. The boundaries of the initial active management areas
are shown on the maps filed in the office of the secretary
of state on the effective date of this chapter.'
C. A true copy of the maps identifying the initial active
management areas shall be on file in the department and
shall be available for examination by the public during
regular business hours. A true copy of the map of each
initial active management area shall also be filed in the
office of the county recorder of the county or counties in
which the active management area is located.
/
' June 12, 1980.
§ 45-412. Subsequent active management areas; criteria;
review of groundwater basins not subject to active manage-
ment
A. The director may designate an area which is not in-
cluded within an initial active management area, pursuant
to § 45-411, as a subsequent active management area if the
director determines that any of the following exists:
1. Active management practices are necessary to preserve
the existing supply of groundwater for future needs.
2. Land subsidence or fissuring is endangering property
or potential groundwater storage capacity.
3. Use of groundwater is resulting in actual or threatened
water quality degradation.
B. An active management area designated pursuant to
this section may include more than one groundwater basin
but shall not be smaller than a groundwater basin or include
D-12
only a portion of a groundwater basin, except for the re-
gional aquifer systems of northern Arizona.
C. The director shall periodically review all areas which
are not included within an active management area to deter-
mine whether such areas meet any of the criteria for active
management areas as prescribed in this section.
§ 45-413. Hearing on designation of subsequent active
management areas and boundaries; notice; procedures
A. If the director proposes to designate a subsequent
active management area pursuant to § 45-412, subsection
A, the director shall hold a public hearing to consider:
1. Whether to issue an order declaring the area an active
management area.
2. The boundaries and any sub-basins of the proposed
active management area.
B. The director shall give reasonable notice of the
hearing under the circumstances which shall include publi-
cation once each week for two consecutive weeks in a news-
paper of general circulation in each county in which the
proposed active management area is located. Any notice
shall contain the time and place of the hearing, the legal
description and a map clearly identifying and describing all
lands to be included in the proposed active management
area and any sub-basins and any other information the
director deems necessary.
C. The hearing shall be held at a location within the pro-
posed active management area as soon as practicable but no
less than thirty days and no more than sixty days after the
first publication of the notice of hearing. At the hearing,
the director shall present the factual data in his possession
in support of the proposed action. Any person may appear
at the hearing, either in person or by representative, and
submit oral or documentary evidence for or against the
proposed action. In making his dé@termination, the director
shall give full consideration to public comment and to
D-13
§ 45-414. Findings upon hearing; order for active manage-
ment area; publication
A. Within thirty days after the hearing, the director shall
make and file in his office written findings with respect to
matters considered during the hearing. If the director de-
cides to declare an area an active management area, the
director shall make and file an order designating the active
management area.
B. The findings and order shall be published in the man-
ner and for the length of time prescribed for the publication
of notice of the public hearing, and the order is effective
when published for the final time. All factual data compiled
by the director, a transcript of the hearing, a copy of the
findings and a map identifying the lands included in the
active management area are public records of the depart-
ment and shall be available for examination by the public
during regular business hours.
C. The director shall file a true copy of the map in the
office of the county recorder of the county or counties in
which the active management area is located.
§ 45-415. Local initiation for active management area; pro-
cedures
A. A groundwater basin which is not included within an
initial active management area may be designated an active
management area upon petition by ten percent of the regis-
tered voters residing within the boundaries of the proposed
active managenient area, as of the most recent report com-
piled by the county recorder in compliance with § 16-168,
subsection G, and a subsequent election held pursuant to
the general election laws of this state. The form of the peti-
tion shall be the same as for initiative petitions, and the
applicant for such petition shall comply with the provisions
of § 19-111.
D-14
B. Upon application for a petition number with the clerk
of the board of supervisors or county election officer, the
director shall transmit a map of the groundwater basin to
the county recorder of each county in which the proposed
active management area is located. The map shall be on a
scale adequate to show with substantial accuracy where the
boundaries of the groundwater basin cross the boundaries
of county voting precincts. The director shall also transmit
to the county recorder all other factual data concerning the
boundaries of the groundwater basin that may aid the
county recorder in the determination of which registered
voters of the county are residents of the groundwater basin.
C. Any registered voter of a county whose residency in
the groundwater basin is in question shall be allowed to
vote. The ballot shall be placed in a separate envelope, the
outside of which shall contain the precinct name and num-
ber, the signature of the voter, the residence address of the
voter, and the voter registration number of the voter, if
available. The voter receipt card shall be attached to the
envelope. The county recorder shall verify the ballot for
proper residency of the voter before counting. Such verif-
ication shall be made within two days following the elec-
tion, and the voter receipt card shall be returned to the
voter. Verified ballots shall be counted using the procedure
outlined for counting absentee ballots. If residency in the
groundwater basin is not verified, the ballot shall remain
vuhopened and shall be destroyed.
D. Except as provided in subsection E of this section, all
election expenses incurred pursuant to this section are the
responsibility of the county involved.
E. If a groundwater basin is located in two or more
counties, the following procedures apply:
1. The petition shall be filed with the clerk of the board
of supervisors or county election officer of the county in
which the plurality of the registered voters in the ground-
water basin resides.
| gC —
D-15
2. The number of registered voters required to sign the
petition shall be ten per cent of the registered voters residing
within the boundaries of the proposed active management
area, as of the most recent report compiled by the county
recorder in compliance with § 16-168, subsection G, within
the county in which the plurality of the registered voters in
the groundwater basin resides.
3. The election shall be called by the board of supervisors
of the county in which the petition is filed, and the board
shall immediately notify the. board of supervisors of any
other county included in the groundwater basin of the date
of the election. The election shall be held not less than sixty
days or more than ninety days from the date of call. The
board of supervisors so notified shall then call the election
in their county for the same date and follow the procedures
for conducting the general elections in this state.
4. All election expenses incured pursuant to this subsec-
tion are the responsibilities of the counties involved on a
proportional basis considering the number of registered
voters of each county that are residents of the ground-
water basin.
F. The ballot shall be worded, ‘‘should the (insert name
of basin) groundwater basin be designated an active man-
agement area?’’ Followed by the words ‘‘yes’’ and ‘‘no’’.
Opposite each such word there shall be a square in which
the voter may make a cross indicating his preference.
§ 45-416. Limitation on number of irrigated acres
‘A. If the director initiates the procedure for designating
a subsequent active management area or the board of super-
visors calls an election to establish an active management
area, an irrigation user may not increase the number of his
irrigated acres within the proposed active management area
in excess of the highest number of acres he has irrigated
within the proposed active management area at one time in
one year in the five years preceding the initiation of desig-
D-16
nation procedures by the director or the call for the election
by the board of supervisors.
B. The limitation on the numbgr of irrigated acres shall
continue in effect until the director makes a final determin-
ation pursuant to § 45-414 or the final results of an election
to establish an active management area pursuant to §
45-415 are certified by the board of supervisors of the coun-
ty or counties in which the proposed subsequent active
management area is located.
§ 45-417. Review and modification boundaries of subse-
quent active management area
A. The director may review and modify the boundaries
of a subsequent active management area or any of its sub-
basins as conditions require and factual data justify.
B. The director shall review the boundries of a subse-
quent active management area or any of its sub-basins upon
receipt of a petition signed by persons who together with-
draw not less than one-fourth of the groundwater with-
drawn in the active management area or by request of the
groundwater users advisory council in the active manage-
ment area.
C. Before modifying the boundaries of a subsequent
active management area or any of its sub-basins the direc-
tor shall give notice of and hold a hearing on the proposed
modifications pursuant to the procedures prescribed by §
45-413. After the hearing, the director shall prepare written
findings pursuant to § 45-414.
§ 45-418. Area director; appointment; term; qualifications;
compensation
A. The director shall appoint an area director for each
active management area. For reasons of economy and effi-
ciency in administration, one person may be the area direc-
tor for more than one active management area. The area
director shall serve at the pleasure of the director.
D-17
B. The area director is exempt from the state personnel
system and is entitled to received compensation as deter-
mined pursuant to § 38-611.
§ 45-419. Duties of area director
The area director shall:
1. Assist the director in the development of the manage-
ment plan for the active management area and implement
the plan under the director’s supervision.
2. Have such other duties as the director may assign and
shall be responsible to the director for the performance of
such duties.
3. Furnish technical and clerical services and such other
assistance to the groundwater users advisory council as is
required, to the extent funds are made available for such
assistance.
§ 45-420. Groundwater users advisory councils; appoint-
ment; representation of water users; term; compensation
A. There shall be a groundwater users advisory council
in each active management area consisting of five members.
Members of the council shall be appointed by the governor
to represent the users of groundwater in the active manage-
ment area and on the basis of their knowledge of, interest in
and experience with problems relating to the development,
use and conservation of water.
B. Members of the council shall serve without compen-
sation, except that each member shall be reimbursed for
travel and subsistence while engaged in business of the
council in the same manner as is provided by law for state
officers.
§ 45-421. Administrative duties of the groundwater users
advisory councils.
The groundwater users advisory ccouncil shall:
1. Advise the area director for the active management
D-18
area, make recommendations on groundwater management
programs and policies for the active management area and
comment on proposed management plans for the active
management area before they are adopted by the director.
2. Keep the minutes of its meetings and all records, re-
ports and other information relative to its work and pro-
grams in permanent form indexed and systematically filed.
3. Elect from its members a chairman and vice-chairman
for terms of two years expiring on the third Monday of
January of each even numbered year.
4. Designate the person or persons who shall execute all
documents and instruments on behalf of the council.
5. Manifest and record its actions by motion, resolution
or other appropriate means.
6. Make a complete record of its proceedings which shall
be open to public inspection during regular business hours
in the branch office of the department in the active man-
agement area.
ARTICLE 3. IRRIGATION NON-EXPANSION AREAS
§ 45-431. Initial irrigation non-expansion areas
The Douglas critical groundwater area and the Joseph
city critical groundwater area, delineated in the orders of
the state land commissioner dated May 5, 1965 and Decem-
ber 16, 1974, respectively, are designated as initial irrigation
non-expansion areas on the effective date of this chapter
and are governed by the provisions of this article.
A. The director may designate an area which is not in-
cluded within an active management area as a subsequent
irrigation non-expansion area if the director determines
that both of the following apply:
D-19
1. There is insufficient groundwater to provide a reason-
ably safe supply for irrigation of the cultivated lands in the
area at the current rates of withdrawal.
2. The establishment of an active management area pur-
suant to § 45-412 is not necessary.
B. An irrigation non-expansion area established pursu-
ant to this section may include more than one groundwater
sub-basin but shall not be smaller than a groundwater sub-
basin or include only a portion of a groundwater sub-basin.
§ 45-433. Local initiation for designation; procedures
A. The designation of a subsequent irrigation non-
expansion area may be initiated by the director or by peti-
tion to the director signed by either:
1. Not less than twenty-five irrigation users of ground-
water, or one-fourth of the irrigation users of groundwater
within the boundaries of the groundwater basin or sub-
basin specified in the petition.
2. inks par so Of thd cum cea enti neal
the boundaries of the groundwater basin or sub-basin speci-
fied in the petition as of the most recent report compiled by
the county recorder in compliance with § 16-168, subsection
G. The form of the petition shall be the same as for an ini-
tiative petition and the applicant for such petition shall
comply with the provisions of § 19-111. If a groundwater
basin or sub-basin is located in two or more counties, the
number of registered voters residing within the boundaries
of the groundwater basin or sub-basin, as of the most
recent report compiled by the county recorder in compli-
ance with § 16-168, subsection G, within the county in
which the plurality of the registered voters in the ground-
water basin or sub-basin resides.
B. Upon receipt of a petition pursuant to subsection A,
paragraph 2 of this section, the director shall transmit the
petition to the county recorder of each county in which the
ea
D-20
groundwater basin or sub-basin is located for verification
of signatures. In addition, the director shall transmit a map
of the groundwater basin or sub-basin to the county recor-
der of each such county included. The map shall be on a
scale adequate to show with substantial accuracy where the
boundaries of the groundwater basin or sub-basin cross the
boundaries of county voting precincts. The director shall
also transmit to the county recorder all other factual data
concerning the boundaries of the groundwater basin or sub-
basin that may aid the county recorder in the determination
of which registered voters of the county are residents of the
groundwater basin or sub-basin.
§ 45-434. Limitation on number of irrigated acres
A. If procedures are initiated, whether by the director or
by petition, for designating an irrigation non-expansion
area, an irrigation ee
irrigated acres within the proposed irrigation non-
expansion area in excess of the highest number of acres he
has irrigated within the proposed irrigation non-expansion
area at one time in one year in the five years preceding the
notice of the initiation of designation procedures by the
director or the filing of the petition by the registered voters.
B. The limitation on the number of irrigated acres shall
continue in effect until the director makes a final determin-
ation pursuant to § 45-436.
§ 45-435. Hearing on designation of subsequent irrigation
non-expansion areas and boundaries; notice; procedures
A. If the director finds that an area which is not included
within an active management area meets the criteria speci-
fied in § 45-432, or a petition is filed pursuant to § 45-433,
the director shall hold a public hearing to consider:
1. Whether to issue an order declaring the area an irriga-
tion non-expansion area.
2. The boundaries of the proposed irrigation non-expan-
sion area.
D-21
B. The director shall give reasonable notice of the hear-
ing under the circumstances which shall include the publica-
tion once each week for two consecutive weeks in a news-
paper of general circulation in each county in which the
proposed irrigation non-expansion area is located. Any
notice shall contain the time and place of the hearing, the
legal description and a map clearly identifying and describ-
ing all lands to be included in the proposed irrigation non-
expansion” area and any other information the director
deems necessary. ‘
C. The hearing shall be held at a location in the county
in which the major portion of the proposed irrigation non-
expansion area is located no less than thirty days, but no
more than sixty days after the first publication of the notice
of the hearing. At the hearing, the director shall present the
factual data in his possession in support of or in opposition
to the proposed action. Any person may appear at the hear-
ing, either in person or by representative, and submit oral
or documentary evidence for or against the proposed ac-
tion. In making his determination, the director shall give
full consideration to public comment and to recommen-
dations made by local political subdivisions.
§ 45-436. Findings upon hearing; order for irrigation non-
expansion area; publication
A. Within thirty days after the hearing, the director shall
make and file in his office written findings with respect to
matters considered during the hearing. If the director de-
cides to declare an area an irrigation non-expansion area,
the director shall make and file an order designating the
irrigation non-expansion area.
B. The findings and order shall be published in the man-
ner and for the length of time prescribed for the publication
of notice of the public hearing, and the order effective
when published for the final time. All factual data com-
piled by the director, a transcript of the hearing, a copy of
D-22
the findings and a map identifying the lands included in the
irrigation non-expansicn area are public records of the
department and shall be available for examination by the
public during regular business hours.
C. The director shall file a true copy of the map in the
office of the county recorder of the county or counties in
which the irrigation non-expansion area is located.
§ 45-437. Irrigated acreage; water measuring device; trans-
portation
A. In an initial irrigation non-expansion area established
pursuant to § 45-431, only acres of land which were legally
irrigated at any time between Jafhuary |, 1975 and January
1, 1980 may be irrigated, and an irrigation user or his suc-
cessor may irrigate in any one year only the highest number
of acres the user irrigated in any one year in the five years
between January 1, 1975 and January 1, 1980.
B. In a subsequent irrigation non-expansion area estab-
lished pursuant to § 45-432, only acres of land which were
irrigated at any time during the five years preceding the
notice of the initiation of the procedures to designate the
irrigation non-expansion area may be irrigated, and an irri-
gation user or his successor may irrigate in any one year
only the highest number of acres the user has irrigated in
any one year in the five years preceding the notice of the
initiation of the procedures to designate the irrigation non-
expansion area.
C. In an irrigation non-expansion area:
1. Each person withdrawing groundwater from a non-
exempt well shall use a water measuring device approved by
the director and shall file a report on a calendar year basis
with the director on a form provided by the director no
later than March 31 of the following year.
2. Transportations of groundwater are subject to the
provisions of article 8 of this chapter.’
' Section 45-541 et seq.
D-23
§ 45-438. Review and modification of boundaries of irri-
gation non-expansion areas
A. The director may review and modify the boundaries
of an irrigation non-expansion area as conditions require
and factual data justify.
B. The director shall review the boundaries of an irriga-
tion non-expansion area upon receipt of a petition signed
by persons who together withdraw not less than one-fourth
of the groundwater withd. awn in the irrigation non-expan-
sion area.
C. Before modifying the boundaries of an irrigation non-
expansion area, the director shall give notice of and hold a
hearing on the proposed modifications pursuant to the
procedures prescribed by § 45-435. After the hearing, the
director shall prepare written findings pursuant to § 45-436.
§ 45-439. Conversion from irrigation non-expansion area
to active managment area; director; local initiation;
procedures
A. The director may designate an irrigation non-expan-
sion area as an active management area if the director de-
termines that the irrigation non-expansion area meets any
of the criteria for designating an active management area
specified in § 45-412, subsection A.
B. Any action taken under this section is subject to the
procedures for notice and hearing prescribed by §§ 45-413
and 45-414.
C. An irrigation non-expansion area may be designated
an active management area upon petition and election pur-
suant to § 45-415 by the registered voters residing in the
groundwater basin which is or includes the irrigation non-
expansion area.
D-24
ARTICLE 4.
GROUNDWATER RIGHTS AND USES IN GENERAL
§ 45-451. Groundwater rights and uses in active manage-
ment areas
A. In an active management area, a person may with-
draw and use groundwater only in accordance with the
provisions of article 5 through 12 of this chapter.'
B. This chapter shall not be construed to affect decreed
and appropriative water rights.
' Sections 45-461 et seq., 45-491 et seq., 45-511 et seq., 45-541 et
seq., 45-561 et seq., 45-591 et seq., 45-611 et seq., 45-631 et seq.
§ 45-452. No new irrigated acreage in active management
areas; central Arizona project water; agricultural experi-
mentation; definition
A. In an initial active management area, except as pro-
vided in subsections B and H of this section, only acres of
land which were legally irrigated at any time from January
1, 1975 through January 1, 1980, which are capable of be-
ing irrigated, which have not been retired from irrigation
for a non-irrigation use pursuant to § 45-463 or 45-469 and
for which the irrigation grandfathered right has not been
conveyed for a non-irrigation use, may be irrigated with
any water. In an initial active management area, land which
was not irrigated at any time from January 1, 1975 through
January 1, 1980 is deemed to have been in irrigation if the
director finds that either of the following apply:
1. In areas of an initial active management area not
designated as critical groundwater areas under prior statu-
tory law prior to the date of the designation of the active
management area, land is deemed to have been in irrigation
if substantial capital investment has been made for the
subjugation of such land for an irrigation use including on-
site irrigation distribution facilities and a well or wells the
a.
D-25
drilling and construction of which were substantially
commenced prior to the date of the designation of the
active management area.
2. In areas of an initial active management area which
were designated as critical groundwater areas under prior
statutory law, land is deemed to have been in irrigation if
substantial capital investment has been made in the twelve
months before June 12, 1980 for the improvement of the
land and on-site irrigation distribution facilities, including
the drilling of wells, for an irrigation use. This paragraph
does not allow irrigation of land which could not have been
legally irrigated under prior statutory law.
B. In an initial active management area, a person who
owns acres of land which may be irrigated pursuant to sub-
section A of this section may apply to the director during
the central Arizona project contracting period, but no later
than January 1, 1985, to permanently retire all or a portion
of such acres from irrigation and to irrigate conjunctively
with central Arizona project water the same number of sub-
stitute acres. The director may approve the substitution of
acres if the director determines that all of the following exist:
1. The substitute acres were legally irrigated during the
period of September 30, 1958 to September 30, 1968, or
such other period as the United States secretary of the inter-
ior may designate.
2. The acres to be retired from irrigation and the substi-
tute acres are located outside of the exterior boundaries of
the service area of a city, town or private water company
and such acres are located within the same irrigation district
and the same sub-basin.
3. The substitution of acres is necessary to enable the
irrigation district within which the acres are located to
contract for and deliver central Arizona project water.
b
4. Central Arizona project water available to the irriga-
tion district within which the acres are located will be ade-
D-26
quate to supply the substitute acres.
5. The substitution of acres will benefit the management
of the active management area in which the acres are located.
C. The director shall give notice of an application to
substitute acres pursuant to subsection B of this section
once each week for two consecutive weeks in a newspaper
of general circulation in the county or counties in the active
management area in which the irrigation district is located.
The notice shall state that written objections to the substitu-
tion of acres may be filed by persons residing in the active
management area in writing with the director within thirty
days after the last publication of notice and that objections
are limited to whether the application meets the criteria for
substitution of acres as set forth in subsection B of this
section. An objection shall state the name and mailing
address of the objector, be signed by the objector, his agent
Or attorney and clearly set forth reasons why the
substitution should not be allowed. In appropriate cases,
including cases where a proper written objection has been
filed, the director may hold a hearing. The director shall,
thirty days prior to the date of the hearing, give notice in
the manner described in this section. A hearing shall be
conducted as provided in § 45-480, subsection B.
D. Any acres permanently retired from irrigation pur-
suant to subsection B of this section relinquish their irriga-
tion grandfathered rights, and such rights are deemed to be
appurtenant to the substitute acres. Groundwater with-
drawn or received for the irrigation of the substitute acres
pursuant to an irrigation grandfathered right shall be re-
duced by the amount of central Arizona project water
received for such acres.
E. The service area of the irrigation district in which the
acres are located shall be modified to permanently delete
the acres permanently retired from irrigation and include
the substitute acres.
D-27
F. If a person retires land from irrigation pursuant to
subsection B of this section, groundwater shall not be with-
drawn from such retired land for any purpose unless pur-
suant to a groundwater withdrawal permit or unless with-
drawn by a city, town or private water company within the
service area of such city, town or private water company.
G. In a subsequent active management area, except as
provided in subsection H of this section, only acres of land
which were legally irrigated at any time during the five
years preceding the date of the designation of the active
management area, which are capable of being irrigated,
which have not been retired from irrigation for a non-irri-
gation use pursuant to § 45-463 or 45-469 and for which the
irrigation grandfathered right has not been conveyed for a
non-irrigation use, may be irrigated with any water.
H. In an active management area, a state university
engaged in the teaching, study of and experimentation in
the science of agriculture may irrigate not more than three
hundred twenty acres of land for such purposes with not
more than five acre-feet of groundwater per acre per year.
Water produced from any well pursuant to this subsection
shall not be leased, sold or transported off the irrigated
land operated by the state university. The right to withdraw
and use groundwater pursuant to this subsection does not
require a withdrawal permit, is not a grandfathered right,
shall not give rise to a grandfathered right and may not be
conveyed to any other user.
§ 45-453. Groundwater rights and uses in areas outside
active management areas; amounts; transportation; irriga-
tion non-expansion areas
In areas outside of active management areas, a person
may: Ly
1. Withdraw and use groundwater for reasonable and
beneficial use.
D-28
2. Transport groundwater pursuant to article 8 of this
chapter.’
3. Use groundwater for irrigation purposes within the
exterior boundaries of an irrigation non-expansion area
only pursuant to article 3 of this chapter.’
' Section 45-541 et seq.
? Section 45-531 et seq.
§ 45-454. Exemption of small domestic wells
Withdrawals of groundwater for domestic purposes in-
cluding the non-commercial irrigation of not more than one
acre of land from wells having a pump with a maximum
capacity of not more than thirty-five gallons per minute are
exempt from the provisions of this chapter except that:
1. A person withdrawing groundwater from an exempt
well shall register the well with the director pursuant to §
45-593.
2. A person shall file notice of intention to drill with the
director pursuant to § 45-596 before drilling an exempt well
or causing an exempt well to be drilled and an exempt well
shall comply with the well construction standards prescribed
pursuant to § 45-594.
§ 45-455. Application to state lands
This chapter applies to all lands owned by the state of
Arizona and any of its political subdivisions.
ARTICLE 5. GRANDFATHERED GROUNDWATER
RIGHTS IN ACTIVE MANAGEMENT AREAS
§ 45-461. Definitions
In this article, unless the context otherwise requires:
. “Certificate of exemption’’ means a certificate which
was issued by the state land department or Arizona water
commission under prior statutory law for the purpose of
describing specific uses and amounts of water which could
D-29
not be enjoined if found to constitue the transfer or trans-
portation of groundwater.
2. ‘‘Development plan’’ means a plan for the non-
irrigation use of land in connection with which land has
been or will be retired from irrigation for the bona fide
purpose of conserving or using water for such non-
irrigation use which would otherwise be used to irrigate the
retired land.
3. **Owner’’ means:
(a) With respect to an irrigation grandfathered or a type
1 non-irrigation grandfathered right, the owner of the land
to which the right is appurtenant.
(b) With respect to a type 2 non-irrigation grandfathered
right, the owner of the land from which groundwater is
withdrawn pursuant to the right.
4. *‘Same ownership’? means ownership by the same
person or entity or by successor persons or entities as a
result of succcession to heirs and personal representatives,
corporate and partnership reorganizations, mergers, disso-
lutions, divestitures, partneships, partitions, joint ventures,
foreclosures, receivership or bankruptcy, purchase of
capital stock, sale pursuant to United States Code, title 11 .
or similar succession, but not by outright sale to a bona fide
purchaser for value where no portion of or beneficial inter-
est in the successor in interest is retained by the original
owner, its shareholders, partners, limited partners or bene-
ficiaries.
5. ‘*Water duty acres’’ means the acres of land in a
farm, as determined pursuant to § 45-465, subsection B,
which are used in calculating the maximum amount of
groudnwater which may be used pursuant to an irrigation
grandfathered right.
§ 45-462. Grandfathered groundwater rights; persons in-
cluded; certificate of exemption amount is legal use
D-30
A. In an active management area, a person who was le-
gally withdrawing and using groundwater as of the date of
the designation of the active management area or who owns
land legally entitled to be irrigated with groundwater as
determined pursuant to this article has the right to with-
draw or receive and use groundwater as determined by the
director pursuant to this article.
B. For purposes of determining grandfathered rights
pursuant to this article, a groundwater use shall not be de-
termined to be illegal merely because the groundwater le-
gally withdrawn is or has been transported.
C. The amount of groundwater use described by an
application for a certificate of exemption is recognized as a
legal use for purposes of determining grandfathered rights
pursuant to § 45-464, subject to any modification as a result
of a finding on appeal of a factual mistake by the state land
department or Arizona water commission in computing the
amount of the authorized withdrawal.
D. The right to withdraw or receive and use ground-
water pursuant to this article is a grandfathered right. There
are three categories of grandfathered rights as follows:
1. Non-irrigation grandfathered rights associated with
retired irrigated land as determined pursuant to §§ 45-463,
45-469 and 45-472.
2. Non-irrigation grandfathered rights not associated
with retired irrigated land as determined pursuant to §
45-464.
3. Irrigation grandfathered rights as determined pursu-
ant to § 45-465.
§ 45-463. Type 1 non-irrigation grandfathered right asso-
ciated with retired irrigated land; appurtenancy; ownership
A. In an initial active management area, a person who
owns land which was legally entitled to be irrigated..with
groundwater and who retired such land from irrigation
D-31
after January 1, 1965 but prior to the date of the designa-
tion of the active management area in anticipation of a
non-irrigation use has the right to withdraw from or receive
for such land three acre-feet of groundwater per acre per
year upon showing that:
1. The land has been held under the same ownership
since it was retired.
2. A development plan for the proposed non-irrigation
use existed at the time the land was retired.
B. In a subsequent active management area, a person
who owns land which was legally entitled to be irrigated
with groundwater and retires such land from irrigation
prior to the date of the designation of the active manage-
ment area in anticipation of a non-irrigation use has the
right to withdraw from or receive for such land the lesser of
three acre-feet of groundwater per acre per year or the aver-
age annual amount of groundwater which was used per
acre during the five years preceding the time the land was
retired upon showing that:
1. The land has been held under the same ownership
since it was retired.
2. A development plan for the proposed non-irrigation
use existed at the time the land was retired and is filed with
the director within ninety days after the active management
area is designated. |
C. The development plan requirements of this section
are deemed fulfilled if the land retired from irrigation has
been described in an application for a certificate of exemp-
tion or if the land retired from irrigation is owned in con-
junction with non-irrigation uses existing or for which sub-
stantial capital commitments have been incurred for the
non-irrigation development of such land as of the date of
the designation of the active management area.
D. The right to withdraw or receive groundwater pursu-
D-32
ant to this section is a non-irrigation grandfathered right
associated with retired irrigated land, or a type | non-irri-
gation grandfathered right.
E. A type | non-irrigation grandfathered right is appur-
tenant to the acre of retired irrigated land associated with
the right, is owned by the owner of the land to which the
right is appurtenant and may be leased with the land.
§ 45-464. Type 2 non-irrigation grandfathered right not
associated with retired irrigated land; determination of
amount; ownership
A. In an active management area, a person who owns
land from which groundwater was being legally withdrawn
and used for a non-irrigation purpose as of the date of the
designation of the active management area has the right to
withdraw annually:
1. If the person holds a certificate of exemption, the
greater of:
(a) The amount of groundwater established in proceed-
ings on the application for certificate of exemption, subject
to any modification as a result of a finding on appeal of a
factual mistake by the state land department or Arizona
water commission in computing the amount of the author-
ized withdrawal, less the amount of any right obtained by
the person pursuant to § 45-463. —
(b) The maximum amount of groundwater legally with-
drawn from such land and used by the person in any one of
the five years preceding the date of the designation of the
active management area, less the amount of any right ob-
tained by the person pursuant to § 45-463.
2. If the person does not hold a certificate of exemption,
the maximum amount of groundwater legally withdrawn
from such. land and used by the person withdrawing the
groundwater in any one of the five years preceding the date
of the designation of the active management area, less the
amount of any right obtained pursuant to § 45-463 by the
D-33
person withdrawing groundwater from such land which has
not been subtracted by the person withdrawing the ground-
water in calculating the amount of another right pursuant
to this section.
B. If the calculation in subsection A of this section
results in an amount greater than zero, that amount is a
grandfathered right in addition to any right obtained pur-
suant to § 45-463.
C. For the purposes of this section, ‘‘person’’ includes:
1. A city, town or private water company which owns
land outside of the service area of such city, town or private
water company from which groundwater was being legally
withdrawn for a non-irrigation gse as of the date of the des-
ignation of the active management area.
2. A city, town or private water company withdrawing
groundwater from within its service area pursuant to a cer-
tificate of exemption.
3. Any other non-irrigation user.
D. If a person has been using groundwater for less than
one year during the twelve months immediately preceding
the date of the designation of the active management area,
the amount of the grandfathered right pursuant to this sec-
tion is the annual amount determined by the director to be
reasonable for a full year to meet the requirements for a fa-
cility owned by such person in existence as of the date of the
designation of the active management area.
E. The right to withdraw groundwater pursuant to this
section is a non-irrigation grandfathered right not associa-
ted with retired irrigated land, or a type 2 non-irrigation
grandfathered right.
F. A type 2 non-irrigation grandfathered right is owned
by the owner of the land from whicch the groundwater is
withdrawn and may be leased with such land.
G. If the user of a type 2 non-irrigation grandfathered
D-34
right is different from the owner of the right, either the
owner, or the user of the right on behalf of the owner, may
apply for a certificate of grandfathered right pursuant to
§ 45-476.
§ 45-465. Irrigation grandfathered right; determination of
acres entitled to and amount; appurtenancy
A. In an active management area, a person who owns
land which was legally irrigated at any time during the five
years preceding January 1, 1980 for initial active manage-
ment areas or the date of the designation of the active man-
agement area for subsequent active management areas,
which is capable of being irrigated and which has not been
retired from irrigation for a non-irrigation use pursuant to
§ 45-463 or 45-469, has the right to use groundwater for the
irrigation of such land as determined pursuant to
subsection B of this section.
B. The director shall compute the maximum amount of
groundwater which may be used pursuant to this section
as follows:
1. Determine the farm units, as defined in § 45-402,
within the active management area.
2.' Determine the irrigation water duty, as defined in §
45-402, for each farm unit in an active management area,
pursuant to §§ 45-564 through 45-568.
3. Determine the water duty acres for each farm within
the farm unit. The water duty acres are the highest number
of acres in the farm, taking land rotation into account,
which were legally irrigated during any one year in the five
years preceding January 1, 1980 for initial active manage-
ment areas or the date of the designation of the active man-
agement area for subsequent active mariagement areas.
4. Determine the irrigation acres for each farm within
the farm unit. The irrigation acres are the acres in the farm
which were legally irrigated at any time during the five
years preceding January |, 1980 for initial active manage-
D-35
ment areas or the date of the designation of the active man-
agement area for subsequent active management areas,
which are capable of being irrigated and which have not
been retired from irrigation for a non-irrigation use pur-
suant to § 45-463 or 45-469.
5. Multiply the water duty acres for each farm within the
farm unit by the irrigation water duty for the farm unit and
divide that amount by the number of irrigation acres in the
farm. The result shall be the maximum amount of ground-
water which may be used per year for the irrigation of each
irrigation acre in the farm. If the farm is irrigated solely
with groundwater, the amount of groundwater used by the
farm for irrigation shall be accounted for pursuant to §
45-467, subsection C. If a farm is irrigated with a combin-
ation of surface water and groundwater, the amount of
groundwater used by the farm for irrigation shall be ac-
counted for pursuant to § 45-467, subsections D and E.
C. The right to use groundwater pursuant to this section
for the irrigation of an irrigation acre is an irrigation grand-
‘fathered right and is appurtenant to that acre. An irrigation
grandfathered right is owned by the owner of the land to
which it is appurtenant and may be leased for an irrigation
use with the land to which it is appurtenant.
D. A person who owns or leases irrigation acres may use
the total amount of groundwater allowed by the irrigation
grandfathered right for such acres for the irrigation of all
or a portion of such acres.
E. If the irrigation water duty for the farm unit in which
an irrigation acre is located is reduced by the director
pursuant to article 9 of this chapter, the amount of ground-
water which may be used for the irrigation of such acre
pursuant to the irrigation grandfathered right under this
section is reduced accordingly.
F. For purposes of this chapter, the amount of
groundwater which may be used or is used is the amount of
D-36
groundwater withdrawn by the groundwater user, measured
at the point of withdrawal, and the amount of groundwater
received by the groundwater user from an irrigation district
or other source.
§ 45-466. Limitations on use of irrigation water duty; deli-
veries of water in excess of irrigation water duty
The irrigation water duty shall be used to determine the
maximum amount of groundwater which may be used pur-
suant to § 45-465 and debits and credits to the operating
flexibility account as set forth in § 45-467. The irrigation
water duty shall not be applied to diminish surface water
delivered to lands pursuant to appropriative surface water
rights or decreed surface water rights.
§ 45-467. Withdrawals in excess of irrigation grandfathered
right; withdrawals less than irrigation grandfathered right;
operating flexibility account; conveyances; variance
A. A person who is entitled to use groundwater pursuant
to an irrigation grandfathered right may:
1. Use groundwater in excess of the amount allowed by
the right in an amount determined pursuant to subsection F
of this section.
2. Use less than the amount allowed by the right in one
accounting period and use the remaining amount allowed
by the right in a succeeding accounting period or periods.
B. The director shall establish rules and regulations for the
maintenance of an operating flexibility account for each
farm in an active management area.
C. If a farm is irrigated solely with groundwater, the
director shall:
1. Register a debit to the account in dhy accounting per-
iod in which the amount of groundwater used for the irri-
gation of the irrigation acres in the farm is greater than the
current irrigation water duty for the farm multiplied by the
water duty acres in the farm.
D-37
2. Register a credit to the account in any accounting per-
iod in which the amount of groundwater used for the
irrigation of the irrigation acres in the farm is less than
current irrigation water duty for the farm multiplied by the
water duty acres in the farm.
D. If a farm is irrigated with surface water and ground-
water, and uses of water by the farm from all sources for
irrigation purposes in the accounting period:
1. Exceed the amount of the current irrigation water
duty for the farm multiplied by the water duty acres in the
farm, the amount of groundwater used up to the amount of
the excess shall be registered as a debit to the account.
2. Are less than the amount of the current irrigation
water duty for the farm multiplied by the water duty acres
in the farm, the amount of water not used which would
have been groundwater shall be registered as a credit to the
account.
E. A person who uses a combination of surface water
and groundwater for irrigation purposes may credit against
his use of groundwater in an accounting period surface
water released from storage facilities into a surface water
distribution system to avoid spilling, if such surface water is
actually applied to the person’s land and would cause a
debit to be incurred. The credit allowed under this subsec-
tion shall be applied only against the person’s operating
flexibility account debits which otherwise would have been
incurred that year and shall not be used to discharge debits
from prior years or accumulate credits for future years.
F. The maximum excess amount of groundwater that
may be used pursuant to this section is equal to fifty per
cent of the current irrigation water duty for the fam
multiplied by the water duty acres in the farm. The oper-
ating flexibility account may not be in arrears at any time in
excess of this amount. Groundwater equal to the credit
balance in the operating flexibility account may be used at
any time.
D-38
G. If an irrigation grandfathered right is conveyed for
an irrigation use purusant to § 45-472, each acre conveyed
shall carry with it a proportional share of any debits or
credits in the operating flexibility account for the farm. If
an irrigation grandfathered right is conveyed for a non-
irrigation use pursuant to § 45-472, each acre conveyed
shall carry with it a proportional share of any debits in the
operating flexibility account for the farm.
H. A person using groundwater pursuant to an irrigation
grandfathered right who is operating under a variance to
the irrigation water duty pursuant to § 45-574:
1. May accumulate a maximum debit in an amount equal
to fifty per cent of the current irrigation water duty for the
farm multiplied by the water duty acres in the farm.
2. Shall accumulate credits pursuant to subsection C, D
or E of this section.
I. A person using groundwater pursuant to an irrigation
' grandfathered right shall file a report with the director each
year which shall include the amount of groundwater used
pursuant to the irrigation grandfathered right and such
other information as the director shall require. The director
may consolidate the reporting requirements of this section
with the reporting requirements of § 45-632.
§ 45-468. Accounting of water by persons delivering a
combination of surface water and groundwater for irri-
gation uses
A. A person delivering a combination of surface water
and groundwater for irrigation uses shall prior to the begin-
ning of each accounting period estimate the amount of
groundwater that will be withdrawn and delivered during
the next accounting period and shall make such estimate
available to the director. The estimate may be modified
from time to time as conditions warrant.
B. Within ninety days following the end of each account-
ing period a person who delivers a combination of surface
D-39
water and groundwater for uses by cities, towns, private
water companis, industries, farms or other users shall pro-
vide the director with an accounting for water during the
past accounting period which shows the following:
1. All surface water provided to each class of user and
each farm.
2. All groundwater provided to each class of user and
each farm.
C. If a person delivers a combination of surface water
and groundwater to users, the amount of groundwater
charged to each user pursuant to the accounting in subsec-
tion B is the amount delivered directly to each user and a
pro rata amount of any additional amount of groundwater
which is commingled with surface water and delivered to all
classes of users.
§ 45-469. Right to retire irrigation grandfathered right for
non-irrigation use; development plan approval; amend-
ment of plan prior to retirement; amount which may be
withdrawn; service area determined
A. A person who owns land legally entitled to be irrigated
with groundwater pursuant to an irrigation grandfathered
right which is located within an active management area
and outside of the exterior boundaries of the service area of
a city, town or private water company has the right to retire
such land from irrigation in anticipation of a future non-
irrigation use and shall not forfeit or abandon the right to
withdraw from or receive for such land the amount of
groundwater calculated pursuant to subsection F of this
section for a non-irrigation use if:
1. The land is held in the same ownership.
2. A development plan for the proposed non-irrigation
use exists and is approved by the director within a reason-
able time before or after the land is retired.
B. The director shall approve the development plan
D-40
required by subsection A of this section if it appears that
the land:
1. Has been or will be retired for the bona fide purpose
of conserving or using water for a non-irrigation use which
would otherwise continue to be used for irrigation of such
land.
2. Has not been sold or taken out of production primar-
ily because it would have been uneconomical to continue to
withdraw water for irrigation.
C. The director shall not investigate the legality, other
than pursuant to this chapter, feasibility or other factors in-
volved in the proposed development plan and shall not dis-
approve a development plan on such grounds.
D. A development plan may be amended and the
director shall approve amendments if the criteria of this
section are met.
E. A person proposing to retire irrigated land which is
located inside or outside of an active management area may
apply to the director for approval of a proposed develop-
ment plan prior to the retirement of such land.
F. The amount of groundwater which may be withdrawn
or received annually per acre pursuant to this section is the
lesser of:
1. The current maximum amount of groundwater which
may be used pursuant to the irrigation grandfathered right
for the acre at the time it is retired, as calculated pursuant
to § 45-465, subsection B.
2. Three acre-feet multiplied by the water duty acres in the
farm in which the acre to which the right is appurtenant is
located divided by the number of irrigation acres in the farm.
G. The right to withdraw or receive groundwater pursu-
ant to this section is a non-irrigation grandfathered right
associated with retired irrigated land, or a type 1 non-irriga-
tion grandfathered right as described in § 45-463.
D-41
H. Whether the land to which an irrigation grandfathered
right is appurtenant is within the exterior boundaries of the
service area of a city, town or private water company shall
be determined as of the date the development plan is filed
with the director acording to the most current map of the
service area of the city, town or private water company
available for public inspection on that date as required
by § 45-498:
1. In the city clerk’s office for a city.
2. In the town clerk’s office for a town.
3. In the appropriate county recorder’s office for a pri-
vate water company.
§ 45-470. Use of type 1 non-irrigation grandfathered right
by original owner
A. The original owner of a type | non-irrigation grand-
fathered right pursuant to § 45-463 or 45-469 may:
1. Use groundwater withdrawn pursuant to the right for
any non-irrigation use:
(a) On the land to which the right is appurtenant.
(b) On any other land, subject to the provisions governing
transportation of groundwater in article 8 of this chapter,'
except that, if the land to which the right is appurtenant is
included within the exterior boundaries of the service area
of a city, town or private water company, use groundwater
on other land only if the use on other land was commenced
prior to the date of the designation of the active manage-
' ment area or is pursuant to a development plan filed with
the director prior to the inclusion of the land within the
exterior boundaries of the service area of the city, town or
private water company.
2. Pursuant to § 45-473, convey retired irrigated land
with the appurtenant type 1 non-irrigation grandfathered
' Section 45-541 et seq.
D-42
right. Any land not conveyed shall retain its appurtenant
type 1 non-irrigation grandfathered right.
B. For the purposes of this section, ‘‘original owner’’
means:
1. The person who acquired and retired land from irriga-
tion prior to the date of the designation of the active man-
agement area pursuant to § 45-463 and any person or entity
who holds such land under the same ownership as defined
by § 45-461.
2. The person who retires legally irrigated land after the
date of the designation of the active management area pur-
suant to § 45-469 and any person or entity who holds such
land under the same ownership as defined by § 45-461.
§ 45-471. Use of type 2 non-irrigation grandfathered right
by owner
A. The owner of a type 2 non-irrigation grandfathered
right pursuant to § 45-464 may use groundwater withdrawn
pursuant to the right for any non-irrigation purpose at any
location, subject to the provisions governing transportation
of groundwater in article 8 of this chapter, except that, if
the right is based on withdrawals of groundwater:
1. For the extraction or processing of minerals, the own-
er may use groundwater withdrawn pursuant to the right
only for the purpose of mineral extraction or processing.
2. For the generation of electrical energy, the owner may
use groundwater withdrawn pursuant to the right only for
electrical energy generation.
B. If a type 2 non-irrigation grandfathered right is
leased, the lessee may use groundwater withdrawn pursuant
to the right subject to the provisions of subsection A of this
section
§ 45-472. Conveyance of irrigation grandfathered right;
within service area; outside service area; change to nOn-irri-
D-43
gation grandfathered right; forfeiture of right to convey to
non-irrigation use
A. The owner of an irrigation grandfathered right may
convey the right only with the land to which the right is
appurtenant.
B. If the land to which an irrigation grandfathered right
is appurtenant is within the exterior boundaries of the
service area Of a city, town or private water company:
1. The irrigation grandfathered right may be conveyed
only for an irrigation use, except for expanded animal in-
dustry use or as provided in paragraphs 2 and 3 of this sub-
section. If an irrigation grandfathered right is conveyed for
an irrigation or expanded animal industry use, the full
amount of the right is conveyed. The amount of ground-
water conveyed pursuant to the right:
(a) For an irrigation use may be withdrawn by the new
owner of the right only from the land to which the right is
appurtenant and used on that land or on continguous irriga-
tion acres under common ownership within the service area
of the city, town or private water company, except that, if the
groundwater was delivered by an irrigation district to the
previous owner of the right, the irrigation district may con-
tinue to deliver groundwater to the new owner pursuant to
the right for use on the land to which the right is appurtenant
or on continguous irrigation acres under common ownership
within the service area of the city, town or private water
company. For purposes of this section, irrigation acres which
are separated by a road, highway, easement or right-of-way
from the land to which the irrigation grandfathered right is
appurtenant are deemed to be contiguous.
(b) For an expanded animal industry use may be withdrawn
by the new owner of the right only from the land to which
the right is appurtenant and used on that land or on any
other land, subject to the provisions of article 8 of this
chapter relating to transportation of groundwater. If the
groundwater was delivered by an irrigation district to the
D-44
previous owner of the right, the irrigation district may
continue to deliver groundwater to the new owner pursuant
to the right. If any portion of the amount of groundwater
conveyed is withdrawn by the new owner and used on other
land, no additional groundwater may be withdrawn for use
on the land to which the right is appurtenant.
2. The irrigation grandfathered right may be conveyed
to an industry engaged in the generation of electrical energy
for the purpose of electrical energy generation, except that,
if the facility for the generation of electrical energy is not
subject to title 40, chapter 2, article 6.2,' the conveyance is
subject to the approval of:
(a) The appropriate city or town, if the irrigation grand-
fathered right to be conveyed is appurtenant to land within
the exterior boundaries of the service area of a city or town.
(b) The director, if the irrigation grandfathered right to
be conveyed is appurtenant to land within the corporate
limits of a city or town and within the exterior boundaries
of the service area of a private water company.
3. If an irrigation grandfathered right is conveyed for a
non-irrigation use pursuant to paragraph 2 of this subsec-
tion, the amount of the right that is conveyed is the lessor of:
(a) The current maximum amount of groundwater
which may be used pursuant to the right, as calculated
pursuant to § 45-465, subsection B.
(b) Three acre-feet per year multiplied by the number of
water duty acres in the farm in which the acre to which the
right is appurtenant is located divided by the number of
irrigation acres in the farm.
4. The new owner of an irrigation grandfathered right
conveyed pursuant to paragraph 2 of this subsection may
withdraw the amount of groundwater conveyed pursuant
to that right, as determined in paragraph 3 of this subsec-
tion, only from the land to which the right is appurtenant
and use the groundwater on that land, but may not use the
' Section 40-360 et seq.
D-45
groundwater on other land, except that, if the ground-
water was delivered by an irrigation district to the previous
owner of the right, the irrigation distict may continue to
deliver groundwater to the new owner pursuant to the
right for use on the land to which the right is appurtenant.
C. If the land to which an irrigation grandfathered right
is appurtenant is included within the exterior boundaries of
the service area of a city, town or private water company
subsequent to the date of the designation of an active man-
agement area, the owner of the right may, with the approval
of the director and consistent with the provisions of this
chapter, convey the grandfathered right for a non-irrigation
use, Other than an expanded animal industry use, on the land
to which the right is appurtenant, upon a showing that ade-
quate water service is unavailable at rates comparable to
rates charged similar classes of water users within such serv-
ice area. The amount of the right conveyed is determined
pursuant to subsection B, paragraph 3 of this section.
D. If the land to which an irrigation grandfathered right
is appurtenant is outside of the exterior boundaries of the
service area of a city, town or private water company:
1. The irrigation grandfathered right may be conveyed
for an irrigation use or a non-irrigation use. If an irrigation
grandfathered right is conveyed for an irrigation or an
expanded animal industry use, the full amount of the right
is conveyed. If an irrigation grandfathered right is conveyed
for a non-irrigation use, other than an expanded animal
industry use, the amount of the right that is conveyed is the
lesser of:
(a) The current maximum amount of groundwater
which may be used pursuant to the right as calculated pur-
suant to § 45-465, subsection B.
(b) Three acre-feet per year multiplied by the number of
water duty acres in the farm in which the acre to which the
right is appurtenant is located divided by the number of
irrigation acres in the farm.
D-46
2. The amount of groundwater conveyed pursuant to the
right, as determined in paragraph | of this subsection, may
be withdrawn by the new owner of the right only from the
land to which the right is appurtenant and used on that land
or on any other land, subject to the provisions of article 8
of this chapter’ relating to transportation of groundwater,
except that, if the groundwater was delivered by an irriga-
tion district to the previous owner of the right, the
irrigation district may continue to deliver groundwater to
the new owner pursuant to the right. If any portion of the
amount of groundwater conveyed is withdrawn by the new
owner and used on other land, no additional groundwater
may be withdrawn for use on the land to which the right is
appurtenant, except that, if the new owner is an industry, it
may withdraw a portion of the amount of groundwater
conveyed for use on other land and withdraw the remainder
of the amount of groundwater conveyed for municipal and
industrial use on the land to which the right is appurtenant
for purposes directly related to the industry’s industrial
operation.
E. For purposes of this section, ‘‘land to which the right
is appurtenant’’ means the acre or group of contiguous
acres conveyed with an irrigation grandfathered right.
F. If an irrigation grandfathered right is conveyed for a
non-irrigation use, the new owner’s right to withdraw or
receive groundwater is a non-irrigation grandfathered right
associated with retired irrigated land, or a type | non-irri-
gation grandfathered right. All subsequent conveyances of
that right are governed by § 45-473.
G. The amount of a type | non-irrigation grandfathered
right shall be determined at the time it is established and
shall remain fixed at that amount.
H. If an irrigation grandfathered right has not been
retired in anticipation of a future non-irrigation use and has
* Section 45-541 et seq.
D-47
not been exercised for five consecutive years, the right may
not be conveyed for a non-irrigation use.
§ 45-473. Conveyance of type 1 non-irrigation grand-
fatherd' right; use by new owner; appurtenancy; within
service area; outside service area
A. The owner of a type | non-irrigation grandfathered
right may convey the right only for a non-irrigation use
and only with the land to which it is appurtenant. For pur-
poses of this section, a type 1 non-irrigation grandfathered
right means a non-irrigation grandfathered right asso-
ciated with retired irrigated land pursuant to § 45-463 or
45-469 or an irrigation grandfathered right which was con-
veyed for a non-irrigation use pursuant to § 45-472.
B. If a type 1 non-irrigation grandfathered right is con-
veyed, the full amount of the right is conveyed.
C. If the land to which a type | non-irrigation grand-
fathered right is appurtenant is within the exterior boun-
daries of the service area of a city, town or private water
company, the amount of ground water conveyed pursuant
to the right may be withdrawn by the new owner of the
right only from the land to which the right is appurtenant.
The groundwater may be used on the land to which the
right is appurtenant, but may not be used on other land
unless the use on other land was commended prior to the
date of the designation of the active management area or
was commenced by the original owner of the right pursu-
ant to a development plan filed with the director prior to
the inclusion of the land within the exterior boundaries of
the service area of the city, town or private water company.
D. If the land to which the type | non-irrigation grand-
fathered right is appurtenant is outside of the exterior
boundaries of the service area of a city, town or private
water company, the amount of groundwater conveyed
pursuant to the right may be withdrawn by the new owner
of the right only from the land to which the right is appur-
D-48
tenant and used on that land or on any other land, subject
to the provisions of article 8 of this chapter relating to
transportation of groundwater. If any portion of the
amount of groundwater conveyed is withdrawn by the new
owner and used on other land, no additional groundwater
may be withdrawn for use on the land to which the right is
appurtenant, except that, if the new owner is an industry,
it may withdraw a portion of the amount of groundwater
conveyed for use on other land and withdraw the remain-
der of the amount of groundwater conveyed for municipal
and industrial use on the land to which the right is appur-
tenant for purposes directly related to the industry’s indus-
trial operation.
E. For purposes of this section, ‘‘land to which the
right is appurtenant’’ means the acre or group of conti-
guous acres conveyed with a type 1 non-irrigation grand-
fathered right.
F. If groundwater was delivered by an irrigation district
to the previous owner of a type 1 non-irrigation grand-
fathered right, the irrigation district may contiue to deliver
groundwater pursuant to the right to the new owner of the
right.
' So in original. Probably should read ‘‘grandfathered’’.
§ 45-474. at ea ett
right; amount
A. The owner of a type 2 non-irrigation grandfathered
right may convey the right for any non-irrigation use except
that:
1. A type 2 non-irrigation grandfathered right that is
used for purposes of mineral extraction or processing may
be conveyed only for a mineral extraction or processing use.
2. A type of 2 non-irrigation grandfathered right that is
used for purposes of electrical energy generation may be
D-49
conveyed only for an electrical energy generation use.
B. A type 2 non-irrigation grandfathered right may not
be conveyed for an irrigation use.
C. If a type 2 non-irrigation grandfathered right is con-
veyed, the full amount of the right is conveyed.
§ 45-475. Determinationn' of exterior boundaries of serv-
ice area for purposes of conveyances
For purposes of conveyances of irrigation grandfathered
rights and type 1 non-irrigation grandfathered rights,
whether land to which the right is appurtenant is within the
exterior boundaries of the service area of a city, town or
private water company shall be determined as of the date of
the closing of the conveyance transaction according to the
most current map of the service area of the city, town or
private water company available for public inspection on
that date as required by § 45-498:
1. In the city clerk’s office for a city.
2. In the town clerk’s office for a town.
3. In the appropriate county recorder’s office for a pri-
vate water company.
' So in original. Probably should be ‘‘Determination’’.
§ 45-476. Application for certificate of grandfathered right
A. A person claiming the right to withdraw or receive
and use groundwater pursuant to a grandfathered right
shall file an application for a certificate of grandfathered
right with the department not later than fifteen months
after the date of the designation of the active management
area on a form provided by the department.
B. The application for a certificate of grandfathered
right not based upon prior proceedings on a certificate of
exemption shall include the following:
1. The name and mailing address of the applicant.
D-50
2. The name of the active management area within which
the withdrawal of groundwater pursuant to the claimed
grandfathered right is being or has been made.
3. If the application is for a type 1 non-irrigation grand-
fathered right:
(a) The legal description and a map of the retired irri-
gated land in respect of which the right is claimed.
(b) The date when the irrigated land was retired.
(c) Such evidence as the director shall require that the
retired irrigated land has been held under the same owner-
ship since it was retired and that a development plan for the
proposed non-irrigation use existed at the time the land was
retired.
(d) If in a subsequent active management area, the
amount of groundwater used per acre for the retired irri-
gated land each year during the five years preceding the
time the land was retired.
4. If the application is for a type 2 non-irrigation grand-
fathered right:
(a) The maximum amount of groundwater legally with-
drawn from land owned by the applicant and used in any
one year during the five years preceding the date of the
designation of the active management area.
(b) If the person withdrawing groundwater from the
land owned by the applicant has made application for a
type 1 non-irrigation grandfathered right, a copy of the
application.
5. If the application is for an irrigation grandfathered
right:
(a) The legal description and a map of all land owned
by the applicant which was legally irrigated at any time
during the five years preceding January 1, 1980 for initial
active management areas or the date of the designation of
the active management area for subsequent active manage-
ment areas and the highest number of acres legally irri-
D-51
gated with groundwater at one time in any one year during
the five-year period.
(b) The type of crops grown on such land and the crop-
ping patterns used during the five-year period.
(c) The irrigation methods and devices currently being
used in the irrigation of such land.
6. The location of each well from which groundwater is
being or has been withdrawn by the applicant to irrigate
such land.
7. The sworn statement that the information contained
in the application is true and correct to the best knowledge
and belief of the applicant.
8. Any other information the director may require.
C. A person or his successor claiming the right to use
groundwater pursuant to a grandfathered right, described
in whole or in part by a certificate or exemption, shall file
an application for a certificate of grandfathered right as
provided in subsection D and shall automatically be en-
titled to a certificate or certificates of grandfathered right
for the portion of the grandfathered right claimed which is
evidenced by the certificate of exemption or established by
the proceedings on the certificate of exemption. Notice of
the application is not required and hearings shall not be
held. If the applicant claims grandfathered rights in
addition to the amount of use described in the certificate
of exemption, application for such additional amount
shall be made pursuant to subsection B, and such applica-
tion is subject to the notice, objection and hearing
provisions applicable to applications made pursuant to
that subsection.
D. The application for a certificate of grandfathered
right based upon prior proceedings upon an application for
a certificate of exemption shall include the following: —
1. The name and mailing address of the applicant.
2. The name of the active management area within
D-52
which the withdrawal of groundwater pursuant to the
claimed grandfathered right is being or has been made.
3. The total amount of groundwater to be withdrawn
annually under the certificate of exemption.
4. The number of retired irrigated acres described in the
application for a certificate of exemption.
5. Such evidence as the director shall require that the
retired irrigated land has been held under the same owner-
ship since it was retired.
6. The number of the certificate of exemption and a
copy of the certificate of exemption.
7. The sworn statement that the information contained
in the application is true and correct to the best knowledge
and belief of the applicant.
8. Any other information the director may require.
§ 45-477. Waiver and relinquishment of grandfathered right
A person who claims the right to withdraw or receive
and use groundwater pursuant to a grandfathered right
but who fails to file an application for a certificate of
grandfathered right as provided in this article is deemed to
waive and relinquish any right to withdraw or receive and
use groundwater pursuant to this article.
§ 45-478. Notice of requirement to apply for certificate of
grandfathered right
A. Within ninety days of the date of the designation of an
active management area, the director shall give notice of the
requirement to apply for a certificate of grandfathered right
to the clerk of the board of supervisors of the county or
counties in which the active management area is located
and to the mayor of each city or town, to each private water
company and to the presiding officer of each political sub-
division established pursuant to chapter 4, 5, 6 or 7 of this
title' located in the active management area.
' Section 45-901 et seq., 45-1201 et seq., 45-1501 et seq., or 45-1901
et seq.
D-53
B. The director shall mail by January 1, following the
date of the designation of the active management area, a
copy of a written notice of the requirement to apply for a
certificate of grandfathered right to each owner of real
property within the active management area listed on the
tax rolls of the county, except owners of real property loca-
ted in vacant subdivisions or located within the service area
of cities, towns and private water companies, along with a
declaration that it is the duty of the recipient to forward the
notice to the beneficial owner of the property. The notice
shall include a statement that a person who fails to apply
for a certificate of grandfathered right within an active
management area waives and relinquishes any right to with-
draw or receive'and use groundwater pursuant to a grand-
fathered right.
C. The director shall also notify owners of real property
located within service areas of cities, towns and private
water companies and irrigation districts who utilize their
own well, according to the registration of the well pursuant
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.