# Opposition Brief — Phelps Dodge Corp. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 941

## Text

Supreme Comm, U.S
{ FILES
APR 10 2001
No. 00-1464
In The

Supreme Court of the United States

¢

PHELPS DODGE CORPORATION and
ARIZONA PUBLIC SERVICE COMPANY,

Petitioners,

THE UNITED STATES, et al.,

Respondents.

*

On Petition For Writ Of Certiorari
To The Supreme Court
Of The State Of Arizona

¢

RESPONSE OF ASARCO INCORPORATED
IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI

e

LAUREN J. CASTER
Counsel of Record

TiMOTHY BERG

THERESA Dwyer

FENNEMORE CRAIG, P.C.

3003 North Central Avenue,
Suite 2600

Phoenix, Arizona 85012-2913

(602) 916-5000

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

my
y,
LE AN SAE SNELL ILE! ELIE LET TIT AYRE LOTT AE TNL LORE TEI EN TE ATI SEE BORAENTBESS. AE RERUN. BON oS RE Et Sn rua ann VJ NNN OE SW AG aae e n aa aona

QUESTION PRESENTED

Did the Supreme Court of Arizona effect a taking of

private property without just compensation in violation
of the Fifth and Fourteenth Amendments to the Constitu-
tion of the United States, by declaring that there is “ ‘no
legally recognized property right in potential, future
groundwater use,’” when Arizona statutes and that

court’s prior decisions establish the existence of such a
property right?

ii
PARTIES TO THE PROCEEDINGS

Respondent ASARCO Incorporated (“ASARCO”)
~ supplements the Petition for Writ of Certiorari’s descrip-
tion of the Parties to the Proceedings to add that it is a
claimant in the adjudication below in the Maricopa
County Superior Court concerning water rights in the
Gila River System and Source. ASARCO filed claims for a
variety of water rights in the Gila River Adjudication,
including claims to Type 1 and Type 2 grandfathered
groundwater rights recognized and defined under Ari-
zona Revised Statutes (“A.R.S.”) § 45-463 and § 45-464.

1 ASARCO has lodged examples of its Statements of
Claimant for Type 1 and Type 2 grandfathered groundwater
rights with the Clerk of the Court, and respectfully asks this
Court to take judicial notice of these documents. Lodging of
Respondent ASARCO Incorporated, Exhibit A. ASARCO filed
these Statements of Claimant with the Arizona Department of
Water Resources pursuant to A.R.S. § 45-254. Filing of a
statement of claimant is the mechanism by which water users
assert water right claims in the Gila River Adjudication.
ASARCO’s Statements of Claimant constitute records of the
Arizona Department of Water Resources, and are matters of
record in the case below.

Courts may take judicial notice of the records and reports of
administrative bodies. See, e.g., Massachusetts v. Westcott, 431
U.S. 322, 323 n.2 (1977); Barron v. Reich, 13 F.3d 1370, 1377 (9th
Cir. 1994); cf. Fed. Rule Evid. 201(b). Moreover, matters of record
in the case are a proper subject for judicial notice. See United
States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir.), cert. denied, 484
U.S. 830 (1987). Accordingly, this Court may take judicial notice
of the ASARCO’s Statements of Claimant.

iii

CORPORATE DISCLOSURE

ASARCO, a New Jersey corporation,is—a—wholly
owned subsidiary of Grupo Mexico S.A. de C.V. This
disclosure is made pursuant to Rule 29(6), Rules of the
Supreme Court of the United States.

iv

TABLE OF CONTENTS

Page
QUESTION PRESENTED............. ica aaa ee ee
PARTIES TO THE PROCEEDINGS ...............-. ii
CORPORATE DISCLOSURE: . ....2...52...5054.4. iii
TAMEG CR CII iain vce hsdpa iv
TARE OF AIRS... ee v
Sravuies WANN 8 es 1
STATEMENT OF THE CASE...............00-.000: 1
SUMMARY OF ARGUMENT.............0-.-0000e- 1
Pn RRS ee NE EES Miers ne er 3

I. ARIZONA STATUTES RECOGNIZE THAT
FUTURE GROUNDWATER USE IS A VESTED
eg 8g er rere rer eer 3

II. THE OPINION BELOW, TAKEN LITERALLY,
WOULD REVOKE STATUTORY PROPERTY
RIGHTS AND EFFECT A TAKING IN VIOLA-
TION OF THE FIFTH AND FOURTEENTH
AMEE S -ovccccscccsceressesteesxess 7

Ill. THE OPINION BELOW, READ LITERALLY,
WOULD EFFECT A TAKING OF VESTED
RIGHTS RECOGNIZED IN PRIOR JUDICIAL
oe OUT RS EU T ET EE PEL eo SLT eter ess 11

SAORI Nb anes Catvetaenentsadaedasepiduaens 14

Vv

TABLE OF AUTHORITIES

Page
Cases dis
Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994) .......... ii
Board of Regents of State Colleges v. Roth, 408 U.S.
it ) DER ER EC OEE Ee ee ore ret Cy Ee Pere yr eee 7
Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973) ...... 8
Bott v. Commission of Natural Resources, 327 N.W.2d
Poe CU BOEDs akan sakicasnaeacsenpenwsaarees 10, 11

Bristor v. Cheatham, 255 P.2d 173 (Ariz. 1953) ..6, 9, 10, 12
Cherry v. Steiner, 716 F.2d 687 (9th Cir. 1983), cert.

Gemind, 466 US. Fl (UDGG) «a o.c ain 5004 ck bdendaeass 8
Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226
(RPE cards cad Sad pon sales eae seakkeasbaaue bxsaaereks 7

Cortaro Water Users’ Ass’n v. Steiner, 714 P.2d 836
(Ariz. App. 1985), approved on this ground and
rev'd on other grounds, 714 P.2d 807 (Ariz. 1986) ...3, 5

Farmers Investment Company v. Bettwy, 558 P.2d 14
a . , | Baer eM Myf pLOb NG UIP Reve ree aenD 11

Hughes v. Washington, 389 U.S. 290 (1967) ............ 8

In re General Adjudication of All Rights to Use Water
in Gila River Sys. & Source, 857 P.2d 1236 (Ariz.
FOWADA 0 8 no 04c0 chndenn ances awe oir eee epeneas 42; 13

In re General Adjudication of All Rights to Use Water
in the Gila River Sys. & Source, 9 P.3d 1069 (Ariz.
i ETP TOE e rte Pree ee ee ee roe ree ee

In ve Crpety, 32 FSG 235 GAGS. AO ao osha cc ncexiacs 13

Jarvis v. State Land Dept., 479 P.2d 169 (Ariz. 1970),
modified on other grounds, 550 P.2d 227 (Ariz.
SPP aia caken oN dean vba ad oe ayaa LAe ao 12

vi

TABLE OF AUTHORITIES - Continued

Page

Massachusetts v. Westcott, 431 U.S. 322 (1977).........ii
McKinley v. Reilly, 393 P.2d 268 (Ariz. 1964), appeal

dismissed, 381 U.S. 276 (1965) .........--2eeeeeeees 13
Oregon ex rel. State Land Bd. v. Corvallis Sand &

Gravel Co., 429 US. S63 (9B77) oc cscccccccscecsccess 8
Reynolds v. State of Georgia, 640 F.2d 702 (5th Cir.),

cert. Gented, Ge US. GED CHGS) oo ccvetidzccsccchsas 8

Ricks Exploration Co. v. Oklahoma Water Resources
Bd., G95 P.2G GB CORR. 19GG). oo cccccccsassccwecess 4

Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw.
1977), aff'd in part, vacated in part, 753 F.2d 1468

(Sts Che, 10GB c cc cccvccenvvaeevesvadserecdesniekes 8
Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir. 1989)...... y
Russell v. Texas Co., 238 F.2d 636 (9th Cir. 1956)...... 4
San Carlos Apache Tribe v. Superior Court, 972 P.2d

879 Gicks, TODD) 0 ccsezsccenecssuccuustvidusnseanaes 3
Sotomura v. County of Hawaii, 460 F. Supp. 473 (D.

Baw. 1976) . ey
STATUTES
ee Eo 6 hd coda nehdesenadine besaensineedesees ii
Pe | ep eeErT Pe SOMO ph er 1
ee hbk caren dst dcdbisecnahinchsctevaanse 6
I A 405.66 540 dhedabtinecukasskeendseueous 3
PN ee EE oan 06 act Sebsdsesceddcdveeccenacteunnen 5
PR EG Bhd od bivb censachecctccanveareciswes ii, 5
i I ois cd E cc caccctectbedcucdccceasnes ii, 5, 6
PE SvikcnndsddnsdecnssvckssecsnsrardeWnnd 5
eh bd bd nas ckGe 5s bbN ess 64a ce 5p néed oebens 6
Be I 6555 i 0 eid ac eenn ss cécéoustesiereeutes 4
P= SE BPP EPSOPOTUTTTYT CCT OTETET Te eer re re 4
PR EE ccncarociedccquabaksecbaraigessarsenas 4
Ee RG do pdiced en dssi sed ccntedassexabweukne 4

TE IER TERY Poe TELE FOUR re 4

Vili

TABLE OF AUTHORITIES - Continued

Page
RULES
ta: i Ds, GE i ce ex deetass id iehen caaiessates ii
Rule 29(6), Rules of the Supreme Court of the
SE IEE. ea apm

14

CONCLUSION

Based on the foregoing reasons, the Court should

grant the writ.

Respectfully submitted,

LauREN J. CASTER

Counsel of Record
TimotHy BERG
THERESA DwyeR
FENNEMORE CRAIG, P.C.
3003 North Central Avenue
Suite 2600
Phoenix, AZ 85012-2913
(602) 916-5000

Attorneys for ASARCO Incorporated

App. 1

U.S. Const. Amendment V

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.

d Se

U.S. Const. Amendment XIV

| Section 1. All persons born or naturalized in the United
: States, and subject to the jurisdiction thereof, are citizens
| of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
| United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal pro-
tection of the laws.

Section 2. Representatives shall be apportioned among
the several States according to their respective numbers,
counting the whole number of persons in each State,
excluding Indians not taxed. But when the right to voie at
any election for the choice of electors for President and
Vice President of the United States, Representatives in

ae Pe ee a ene ee eee

App. 2

Congress, the Executive and Judicial officers of a State, or
the members of the Legislature thereof, is denied to any
of the male inhabitants of such State, being twenty-one
years of age, and citizens of the United States, or in any
way abridged, except for participation in rebellion, or
other crime, the basis of representation therein shall be
reduced in the proportion which the number of such male_
citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representa-
tive in Congress, or elector of President and Vice Presi-
dent, or hold any office, civil or military, under the
United States, or under any State, who, having previously
taken an oath, as a member of Congress, or as an officer
of the United States, or as a member of any State legisla-
ture, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress
may by a vote of two-thirds of each House, remove such
disability.

Section 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for
payment of pensions and bounties for services in sup-
pressing insurrection or rebellion, shall not be ques-
tioned. But neither the United States nor any State shall
assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all
such debts, obligations and claims shall be held illegal
and void.

App. 3

Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.

App. 4

Ariz. Rev. Stat. 45-254. Statement of claimant; filing;
information to be included; verification; failure to file;
fees

A. Each potential claimant who is served shall present
in writing the particulars of his claim on the court-
approved statement of claimant form and shall file the
statement of claimant form with the court within ninety
days of the date of service, unless otherwise ordered by
the court. The court may extend the time for good cause.
A duplicate of each statement of claimant shall be made
available by the clerk of the court to the director.

B. The statement of claimant form may be filed by a
person on behalf of its members or users and shall consti-
tute the required filing of its members or users.

C. The statements of claimant shall include the follow-
ing information, where appropriate:

1. The name and mailing address of the potential claim-
ant.

2. The name of the specific river, stream, tributary, wash
or other source from which the right to divert or make
use of water is claimed.

3. The quantities of water and the periods of time dur-
ing the year for which use is claimed.

4. If distributing works are used or required, the date of
beginning and completion of construction or of enlarge-
ments and the dimensions of the ditch as originally con-
structed and as enlarged.

5. If the use is for irrigation, the amount of land
reclaimed the first year and in subsequent years, and the

App. 5

amount and general location of the land, the character of
the soil and the kind of crops cultivated.

6. The legal description of the point or points of diver-
sion and place of use of the waters to the nearest forty-
acre tract or by other appropriate description and such
map or plat showing the relative points of diversion and
place of use as may be required.

7. The purpose and extent of use.

8. The time of the initiation of the right and the date
when water was first used for beneficial purposes for the
various amounts and times claimed in paragraph 3 of this
subsection.

9. The legal basis for the claim.

D. The statement of claimant shall be verified by the
claimant or the person authorized to file as provided in
subsection B of this section.

E. After the date by which statements of claimant are
required to be filed as set forth in the summons or in an
order of the court, the filing of a statement of claimant or
an amendment is permitted under the following circum-
stances:

1. At any time up to ninety days before the publication
of the director’s final report pursuant to section 45-256,
subsection B for a subwatershed or federal reservation
within the river system and source, a person may file a
statement of claimant or an amendment to a statement of
claimant with the director without leave of the court.

2. After the expiration of the ninety day period pre-
scribed by paragraph 1 of this subsection and before the

App. 6

conclusion of hearings by the master for a subwatershed
or federal reservation within the river system and source,
a person may assert a claim for a water use within the
subwatershed or federal reservation without leave of the
court by filing the original of the statement of claimant or
amended statement of claimant with the director and a
notice of filing with the court. After the conclusion of
hearings on an existing claim, an amendment to that
existing statement of claimant may only be permitted as
prescribed by paragraph 3 of this subsection. If a state-
ment of claimant or an amendment to a statement of
claimant is filed after the expiration of the ninety day
period and except as provided in section 45-258, other
parties may object to the elements of the claim or
amended claim.

3. After the master has completed hearings on a sub-
watershed or federal reservation within the river system
and source and has filed a report with the court for the
entire subwatershed or federal reservation pursuant to
section 45-257, a person may not assert a late claim for a
water right within that subwatershed or reservation as a
matter of right. A person may request the court’s permis-
sion to intervene in the adjudication and file a statement
of claimant with the director. The court may grant the
motion if it finds that the intervention would not unduly
delay or prejudice the adjudication of the rights of the
original parties. An amendment to an existing statement
of claimant after the filing of the master’s report for the
entire subwatershed or federal reservation is permitted
only by leave of the court in its discretion and on motion
of the party seeking an amendment. Except as provided
in section 45-258, other parties may object to the elements

App. 7

of a claim or an amended claim filed pursuant to this
paragraph.

F. On entry of the final decree pursuant to section
45-257, any potential claimant who is properly served
and who failed to file a statement of claimant as pre-
scribed by this article for any water right or whose
motion for permissive intervention was finally denied by
the court is barred and estopped from subsequently
asserting any right that was previously acquired on the
river system and source and that was not included in a
statement of claimant and forfeits any rights to the use of
water in the river system and source that were not
included in a properly filed statement of claimant.

G. On the effective date of this amendment to this sec-
tion, all statements of claimant previously filed in an
adjudication pending under this article are deemed to be
timely filed. An objection to the timeliness of any state-
ment of claimant that was filed before the effective date
of this section in an adjudication pending under this
article is not permitted.

H. The fee for filing a statement of claimant by an
individual is twenty dollars and by a corporation, munic-
ipal corporation, the state or any political subdivision, an
association or partnership is two cents for every acre-foot
of water claimed, or twenty dollars, whichever is greater.
The director shall review the statements of claimant and
the amount of fees paid as to each and report to the court
or master the sufficiency of the fees paid with respect to
each statement of claimant. A claim shall not be consid-
ered by the court or the master unless all fees with
respect to such claim have been fully paid in accordance

App. 8 —

with the provisions of this article. Fees shall not be
imposed upon any Indian tribe, community or allottee
personally appearing in the general adjudication to assert
claims to water.

Ariz. Rev. Stat. 45-453. Groundwater rights and uses in
areas outside active management areas; amounts; trans-
portation; irrigation non-expansion areas

In areas outside of active management areas, a person
may:

1. Withdraw and use groundwater for reasonable and
beneficial use, except as provided in article 8.1 of this
chapter.

2. Transport groundwater pursuant to articles 8 and 8.1
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.

Ariz. Rev. Stat. 45-454. Exemption of small non-irriga-
tion wells; definitions

A. Withdrawals of groundwater for non-irrigation uses
from wells having a pump with a maximum capacity of
not more than thirty-five gallons per minute which were
drilled before April 28, 1983 or which were drilled after
April 28, 1983 pursuant to a notice of intention to drill

ee ee

TT i

a ee

App. 9

which was on file with the department on such date are
exempt from the provisions of this chapter, except that:

1. Wells drilled before June 12, 1980 which are not aban-
doned or capped or wells which were not completed on
June 12, 1980 but for which a notice of intention to drill
was on file with the Arizona water commission on such
date are subject to subsections F, G and H of this section
and must be registered pursuant to section 45-593. If two
or more wells in an active management area are exempt
under this paragraph and are used to serve the same non-
irrigation use at the same location, the aggregate quantity
of groundwater withdrawn from the wells shall not
exceed fifty-six acre-feet per year.

2. Wells drilled between June 12, 1980 and April 28,
1983, except as provided in paragraph 1 of this subsec-
tion, and wells drilled after April 28, 1983 pursuant to a
notice of intention to drill which was on file with the
department on April 28, 1983 are subject to subsections C,
E, F and G of this section.

B. Withdrawals of groundwater for non-irrigation uses
from wells having a pump with a maximum capacity of
not more than thirty-five gallons per minute drilled on or
after April 28, 1983, except wells drilled after April 28,
1983 pursuant to a notice of intention to drill which was
on file with the department on such date, are exempt
from the provisions of this chapter, except that:

1. Such wells are subject to subsections C through G of
this section.

2. In an active management area, other than a subse-
quent active management area designated for a portion of

App. 10

a groundwater basin in the regional aquifer systems of
northern Arizona, withdrawals of groundwater from
such wells for non-irrigation uses other than domestic
purposes and stock watering shall not exceed ten acre-
feet per year.

3. Ina subsequent active management area that is desig-
nated for a portion of a groundwater basin in the regional.
aquifer systems of northern Arizona, groundwater with-
drawn from such wells may be used only for domestic
purposes and stock watering.

C. A person shall file a notice of intention to drill with
the director pursuant to section 45-596 before drilling an
exempt well or causing an exempt well to be drilled.

D. The registered well owner shall file a completion
report pursuant to section 45-600, subsection B.

E. In an active management area only one exempt well
may be drilled or used to serve the same non-irrigation
use at the same location, except that a person may drill or
use a second exempt well to serve the same non-irriga-
tion use at the same location if the director determines
that all of the following apply:

1. Because of its location, the first exempt well is not
capable of consistently producing more than three gallons
per minute of groundwater when equipped with a pump
with a maximum capacity of thirty-five gallons per min-
ute.

2. The second exempt well is located on the same parcel
of land as the first exempt well, the parcel of land is at
least one acre in size, all groundwater withdrawn from

App. 11

both exempt wells is used on that parcel of land and there
are no other exempt wells on that parcel of land.

3. Combined withdrawals from both wells do not
exceed five acre-feet per year.

4. If the second exempt well is drilled after January 1,
2000, the county health authority for the county in which
the well is located or any other local health authority that
controls the, installation of septic tanks or sewer systems
in the county has approved the location of the well in
writing after physically inspecting the well site.

5. Use of two wells for the same non-irrigation use at
the same location is not contrary to the health and wel-
fare of the public.

F. An exempt well is subject to sections 45-594 and
45-595. |

G. Groundwater withdrawn from an exempt well may
be transported only pursuant to the provisions of articles
8 and 8.1 of this chapter.

H. A person who owns land from which exempt with-
drawals were being made as of the date of the designa-
tion of the active management area is not eligible for a
certificate of grandfathered right for a type 2 non-irriga-
tion use for such withdrawals.

I. In this section:

1. “Domestic purposes” means uses related to the sup-
ply, service and activities of households and private resi-
dences and includes the application of water to less than
two acres of land to produce plants or parts of plants for

App. 12

sale or human consumption, or for use as feed for live-
stock, range livestock or poultry, as such terms are
defined in section 3-1201.

2. “Stock watering” means the watering of livestock,
range livestock or poultry, as such terms are defined in
section 3-1201.

Ariz. Rev. Stat. 45-462. Grandfathered groundwater
rights; persons included; certificate of exemption
amount is legal use

A. In an active management area, a person who was
legally 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 withdraw 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
determined to be illegal merely because the groundwater
legally 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 section 45-464, subject to any modifica-
tion as a result of a finding on appeal of a factual mistake
by the state land department or Arizona water commis-
sion in computing the amount of the authorized with-
drawal.

App. 13

D. The right to withdraw or receive and use groundwa-
ter 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 sections
45-463, 45-469 and 45-472.

2. Non-irrigation grandfathered rights not associated
with retired irrigated land as determined pursuant to
section 45-464.

3. Irrigation grandfathered rights as determined pur-
suant to section 45-465.

Ariz. Rev. Stat. 45-463. Type 1 non-irrigation grand-
fathered right associated 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
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.

App. 14

B. In a subsequent active management area, a person
who owns land which was legally entitled to be irrig 1ted
with groundwater and retires such land from irrigation
prior to the date of the designation of the active manage-
ment «rea 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
average 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 man-
agement 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
exemption or if the land retired from irrigation is owned
in conjunction with non-irrigation uses existing or for
which substantial capital commitments have been
incurred for the non-irrigation development of such land
as of the date of the designation of the active manage-
ment area.

D. The right to withdraw or receive groundwater pur-
suant to this section is a non-irrigation grandfathered
right associated with retired irrigated land, or a type 1
non-irrigation grandfathered right.

App. 15

E. A type 1 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.

F. At the request of a city or town in the Tucson active
management area that holds a type 1 non-irrigation
grandfathered right under subsection A of this section,
the director, in determining whether to designate or
redesignate the city or town as having an assured water
supply pursuant to section 45-576, shall include four and
one-half acre-feet of groundwater for each acre of retired
irrigated land to which the right is appurtenant, multi-
plied by the number of years between the year of retire-
ment and the year of the request, minus the quantity of
groundwater withdrawn from the land between June 12,
1980 and the year of the request, except that:

1. No groundwater may be included for any acre of
retired irrigated land for any year after the land is devel-
oped for any municipal or industrial use.

2. The amount of groundwater that is included under
this subsection shall not exceed four and one-half acre-
feet for each acre of retired irrigated land to which the
right is appurtenant multiplied by the number of years
between the year of retirement and December 31, 2025
minus the quantity of groundwater withdrawn from the
land between June 12, 1980 and December 31, 2025.

3. The net amount of groundwater included under this
subsection shall not exceed two million acre-feet.

4. The city or town, before making the request of the
director, shall extinguish any irrigation grandfathered

ee

App. 16

rights or type 1 non-irrigation grandfathered rights held
by the city or town and appurtenant to land acquired or
contracted for by the city or town after June 12, 1980 in
the same sub-basin.

G. In determining whether to designate a city or town
as having an assured water supply pursuant to section
45-576, the director shall not consider the exercise of the
right to withdraw groundwater under subsection F of this
section to be the withdrawal of groundwater available
from natural or artificial groundwater recharge.

Ariz. Rev. Stat. 45-464. Type 2 non-irrigation grand-
fathered right not associated with retired irrigated land;
determination of amount; definition; ownership

A. In an active management area, a person who owns
land from which groundwater was being legally with-
drawn 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, sub-
ject 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, less the amount of any right
obtained by the person pursuant to section 45-463.

App. 17

(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
obtained by the person pursuant to section 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 section
45-463 by the person withdrawing groundwater from
such land which has not been subtracted by the person
withdrawing the groundwater 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
pursuant to section 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 use as of the
date of the designation of the active management area.

2. A city, town or private water company withdrawing
groundwater from within its service area pursuant to a
certificate of exemption.

3. Any other non-irrigation user.

aaa

App. 18

D. Ifa person has been using groundwater for less than
one year during the twelve months immediately preced-
- ing the date of the designation of the active management
area, the amount of the grandfathered right pursuant to
this section is the annual amount determined by the
director to be reasonable for a full year to meet the
requirements for a facility owned by such person in exis-
tence as of the date of the designation of the active
management area.

E. Ifa person has received a certificate of environmental
compatibility pursuant to title 40, chapter 2, article 6.2 for .
the construction of an electrical generating facility within
a subsequent active management area for which expendi-
tures or financial commitments for land acquisition,
water development, materials, construction or engineer-
ing in excess of five hundred thousand dollars have been
made before the date of the notice of the initiation of
designation procedures or the call for the election for the
area, the amount of the grandfathered right pursuant to
this section is the annual amount determined by the
director to be reasonable to meet the operational require-
ments for the facility for a full year.

F. The right to withdraw groundwater pursuant to this
section is a non-irrigation grandfathered right not associ-
ated with retired irrigated land, or a type 2 non-irrigation
grandfathered right.

G. A type 2 non-irrigation grandfathered right may be
leased. Except as provided in subsection H of this section,
the owner or lessee of a type 2 non-irrigation grand-
fathered right may withdraw groundwater pursuant to
the right only from a location within the same active

App. 19

management area in which the certificate of grand-
fathered right is issued.

H. Beginning July 1, 1994, the holder of a type 2 non-
irrigation grandfathered right issued in the Tucson active
management area prior to July 1, 1994, may withdraw
groundwater pursuant to the right only from a location
within the same active management area in which the
well or wells listed on the certificate of grandfathered
right on July i, 1994, are located. If no well is listed on the
certificate of grandfathered right on July 1, 1994, the
holder of the right may withdraw groundwater pursuant
to the right only from a location within the same active
management area in which the land from which the origi-
nating withdrawals were made is located. For purposes
of this subsection, the term “originating withdrawals”
means the withdrawals of groundwater on which the
issuance of a type 2 non-irrigation grandfathered right
was based.

I. If the user of a type 2 non-irrigation grandfathered
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 pur-
suant to section 45-476.

Ariz..Rev. Stat. 45-465. Irrigation grandfathered right;
determination of acres entitled to and amount; appurte-
nancy

A. In an active management area, a person who owns
land which was legally irrigated in whole or in part with

App. 20

groundwater at any time during the five years preceding
January 1, 1980 for initial active management areas or the
date of the notice of the initiation of designation pro-
cedures or the call for the election 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 section 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 section
45-402, within the active management area.

2. Determine the irrigation water duty, as defined in
section 45-402, for each farm unit in an active manage-
ment area, pursuant to sections 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 management areas or the date of the notice of the
initiation of designation procedures or the call for the
election for subsequent active management 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 1, 1980 for initial active

App. 21

management areas or the date of the notice of the initia-
tion of designation procedures or the call for the election
for subsequent active management areas, which are capa-
ble of being irrigated and which have not been retired
from irrigation for a non-irrigation use pursuant to sec-
tion 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 groundwater which may be used per year for
the irrigation of each irrigation acre in the farm. If the
farm is located in an active management area other than
the Santa Cruz active management area and is irrigated
solely with groundwater, the- amount of groundwater
used by the farm for irrigation shall be accounted for
pursuant to section 45-467, subsection C. If a farm is
located in an active management area other than the
Santa Cruz active management area and is irrigated with
a combination of surface water and groundwater, the
amount of groundwater used by the farm for irrigation
shall be accounted for pursuant to section 45-467, subsec-
tion D. If a farm is located in the Santa Cruz active
management area, the amount of water, other than stored
water, withdrawn from a well and used by the farm for
irrigation purposes shall be accounted for pursuant to
section 45-467, subsection E or F.

C. The right to use groundwater pursuant to this section
for the irrigation of an irrigation acre is an irrigation
grandfathered right and is appurtenant to that acre. An
irrigation grandfathered right is owned by the owner of

eae

the land to which it is appurtenant and may be leased for
an irrigation use with the land to which it is appurtenant.

App. 22

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 irri-
gation 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
groundwater 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 ground-
water which may be used or is used is the amount of
groundwater withdrawn by the groundwater user, mea-
sured at the point of withdrawal, and the amount of
groundwater received by the groundwater user from an
irrigation district or other source.

Ariz. Rev. Stat. 45-474. Conveyance of type 2 non-irri-
gation grandfathered 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 pro-
cessing use.

App. 23

2. A type 2 non-irrigation grandfathered right that is
used for purposes of electrical energy generation may be
conveyed only for an electrical energy generation use.

3. A type 2 non-irrigation grandfathered right in a sub-
sequent active management area that is used for purposes
of demonstrating and providing an assured water supply
pursuant to section 45-576 in an initial active manage-
ment area may be conveyed only for the same use and
only with the approval of the director. The director shall
not withhold approval of a conveyance under this para-
graph if the right is no longer needed to provide the
assured water supply that it was used to demonstrate.

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.

Ariz. Rev. Stat. 45-492. Withdrawals by cities, towns
and private water companies within service areas; con-
tract to supply groundwater

A. Except as provided in subsection D of this section, in
an active management area, a city, town or private water
company shall have the right to withdraw and transport
groundwater within its service area for the benefit of
landowners and residents within its service area, and the
landowners and residents are entitled to use the ground-
water delivered, subject to:

App. 24

1. The provisions of articles 8 and 8.1 of this chapter
relating to transportation of groundwater.

2. Conservation requirements developed by the director
pursuant to article 9 of this chapter.

B. Claims of landowners to irrigation grandfathered.
rights or type 1 or 2 non-irrigation grandfathered rights
shall be subject to the provisions of article 5 of this
chapter.

C. A city, town or private water company may contract
to supply groundwater to a city, town or private water
company in the same active management area if it is
consistent with the management plan for the active man-
agement area and section 45-576 and is approved by the
director.

D. In an active management area, a city, town or private
water company whose service area has qualified as a
member service area under title 48, chapter 22, or as a
water district member service area under title 48, chapter
28, has the right to withdraw and transport groundwater
within its service area for the benefit of landowners and
residents within its service area, and the landowners and
residents are entitled to use the groundwater delivered,
subject to the provisions of subsection A of this section
and, to the extent the groundwater delivered is consid-
ered excess groundwater as defined and used in title 48,
chapter 22 or 28, as applicable, subject to the payment by
the city, town or private water company of the replenish-
ment tax levied from time to time by a conservation
district under title 48, chapter 22, or a water district
under title 48, chapter 28, whichever is applicable. A city,
town or private water company shall be deemed to have

App. 25

failed to pay the replenishment tax only if the conserva-
tion district or the water district provides notice to the
department of a delinquency in the payment of the
replenishment tax pursuant to section 48-3781, subsection
G or section 48-4982, subsection G, as applicable.

Ariz. Rev. Stat. 45-513. Dewatering permit; definition;
priorities for use of groundwater; conditions on direc-
tor; duration of permit

A. Except as provided in subsection F of this section, a
person who is engaged in or proposes to engage in the
extraction and processing of minerals shall be issued a
dewatering permit for the beneficial use of the land for
mineral extraction, for metallurgical processing and for
compliance with applicable environmental controls. For
purposes of this section, “dewatering” means the with-
drawal of groundwater from pits, from in, under and
around ore bodies in proximity to pits and from under-
ground workings. Dewatering does not include process
water and tailing water recovered from or pumped from
beneath tailing ponds.

B. A person who is engaged in or proposes to engage in
the extraction and processing of minerals may recover
from or pump from beneath tailing ponds process water
and tailing water without obtaining a permit under this
article, if that water is recycled into the extraction or
metallurgical process or is withdrawn to comply with
applicable environmental controls. Such a person may not
drill or cause to be drilled a well for the purpose of
pumping or recovering process water or tailing water

App. 26

from beneath tailing ponds for recycling into the extrac-
tion or metallurgical process without first filing a notice
of intention to drill under section 45-596.

C. Groundwater withdrawn pursuant to a dewatering
permit shall be used in the following order of priority:

1. To meet mineral extraction, metallurgical processing
and environmental control requirements of the permittee.

2. To a city, town, private water company or farm and
any other person whose respective ability to withdraw
groundwater has been adversely affected by a dewatering
permit. Such water shall be equitably allocated by the
director without costs but subject to the conditions set
forth in subsection D of this section among such persons
adversely affected by such dewatering. A person who
receives an allocation of water under this paragraph shall
reduce his groundwater withdrawals by the amount of
water he receives under this paragraph. A person receiv-
ing water under this paragraph does not thereby forfeit
or abandon his right to withdraw groundwater.

3. For municipal, commercial, domestic and industrial
needs of communities and residential areas directly
related to the mineral extraction and metallurgical pro-
cessing operation of the permittee.

4. To irrigate land owned or controlled by the permittee
which is entitled to the use of groundwater for irrigation.

5. To the director for such distribution as will best
achieve the goals and purposes of the management plan
for the active management area.

6. For such other legal purpose as the permittee elects.

App. 27

D. Groundwater made available to the director for dis-
tribution or allocation under this section is subject to the
following conditions:

1. The permittee shall deliver the groundwater to the
boundary of his property but shall not be obligated to
deliver it further.

2. The permittee shall not be required to treat the chemi-
cal quality of the groundwater for distribution or alloca-
tion.

3. The permittee shall not be required to make the
groundwater available if dewatering ceases, or if all or
any portion of the groundwater is needed for a purpose
having a higher priority as specified in subsection C of
this section.

4. The person actually using the groundwater distrib-
uted or allocated by the director shall be responsible for
paying any withdrawal fees required under section
45-611.

5. If the director sells water, proceeds shall be applied as
follows:

(a) To cover costs, if any, of the director in delivering
water to other users.

(b) To cover the permittee’s cost in transporting water to
the boundary of his property.

(c) To the active management area for general purposes
as determined by the director.

E. A permit issued pursuant to this section shall be
granted for a period of up to fifty years, subject to

App. 28

renewal under the same criteria used in granting the
original permit.

F. Beginning January 1 of the calendar year following
the year in which a groundwater replenishment district is
required to submit its preliminary plan pursuant to sec-
tion 45-576.02, subsection A, paragraph 1, and except for
an application to renew a dewatering permit, on receiv-
ing a permit application the director shall not issue a
permit for a well in the district unless at the time the
application for the permit is filed:

1. The director has determined that the district’s plan
for operation is consistent with achieving the manage-
ment goal, according to section 45-576.03, subsection E,
and the designation has not expired.

2. The master replenishment account, as established in
section 45-858.01, does not have a debit balance in an
amount in excess of the amount allowed under section
45-576.01, subsection A, paragraph 3.

Ariz. Rev. Stat. 45-514. Mineral extraction and metal-
lurgical processing permit; conditions for issuance;
duration of permit

A. Except as provided in subsection D of this section, a
person who is engaged in or proposes to engage in the
extraction and processing of minerals shall be issued a
permit to withdraw groundwater in the required amount,
if all of the following apply:

App. 29

1. The amount of groundwater available for mineral
extraction, metallurgical processing and compliance with
applicable environmental controls under a dewatering
permit is insufficient.

2. Uncommitted municipal and industrial central Ari-
zona project water is not available at the point where the
operator’s wellhead or distribution system would other-
wise be, at a cost which does not exceed the current
municipal and industrial central Arizona project delivery
rates.

3. Other surface water of adequate quality or effluent of
adequate quality is not available at the point where the
operator’s wellhead or distribution system would other-
wise be, at a cost, including treatment costs, which does
not exceed by twenty-five per cent the cost the operator
would otherwise incur in withdrawing groundwater.

4. The applicant does not own or lease type 2 non-
irrigation grandfathered rights originally based on with-
drawals of groundwater for the extraction or processing
of minerals that the applicant is not using or leasing and
that can be used at the proposed location without impos-
ing an unreasonable economic burden on the applicant.

B. A permit issued pursuant to this section shall be
granted for a period of up to fifty years, subject to
renewal under the same criteria used in granting the
original permit.

C. If, during the duration of a mineral extraction and
metallurgical processing permit, the director determines

App. 30

that uncommitted municipal and industrial central Ari-
zona project water is available or surface water of ade-
quate quality or effluent of adequate quality is available
to the permittee at a cost comparable to groundwater, the
director may require the permittee to use such water in
lieu of groundwater.

D. Beginning January 1 of the calendar year following
the year in which a groundwater replenishment district is
required to submit its preliminary plan pursuant to sec-
tion 45-576.02, subsection A, paragraph 1, and except for
an application to renew a mineral extraction and metal-
lurgical processing permit, on receiving a permit applica-
tion the director shall not issue a permit for a well in the
district unless at the time the application is filed:

1. The director has determined that the district’s plan
for operation is consistent with achieving the manage-
ment goal, according to section 45-576.03, subsection E,
and the designation has not expired.

2. The master replenishment account, as established in
section 45-858.01, does not have a debit balance in an
amount in excess of the amount allowed under section
45-576.01, subsection A, paragraph 3.

45-515.

App. 31

Ariz. Rev. Stat. 45-515. General industrial use permits;
conditions for issuance; duration of permit

A. Except as provided in subsection D of this section,
the director shall issue a permit to withdraw groundwa-
ter from a point outside of the exterior boundaries of the
service area of a city, town or private water company for
a general industrial use outside of the exterior bound-
aries of such service area if the director determines that
all of the following apply:

1. Uncommitted municipal and industrial central Ari-
zona project water is not available at the point where the
operator’s wellhead or distribution system would other-
wise be, at a cost which does not exceed the current
municipal and industrial central Arizona project rates.

2. Other surface water of adequate quality or effluent of
adequate quality is not available at the point where the
operator’s wellhead or distribution system would other-
wise be, at a cost, including treatment costs, which does
not exceed by twenty-five per cent the cost the operator
would otherwise incur in withdrawing groundwater.

3. Irrigation grandfathered rights appurtenant to acres
of land in reasonable proximity to the intended general
industrial use are not available for purchase at a reason-
able price or cannot be acquired by eminent domain and
the applicant does not own or lease grandfathered rights
that the applicant is not using or leasing, that may be
used for the intended general industrial use and that can
be used for the intended general industrial use without
imposing an unreasonable economic burden on the appli-
cant.

App. 32

4. The intended general industrial use, if located within
three miles of the exterior boundaries of thé service area
of a city, town or private water company, has been denied.
service by the city, town or private water company at the
customary rate in the customary manner. The require-
ment of this paragraph does not apply to an expanded
animal industry use.

5. The management plan for the active management
area can be adjusted to accommodate the intended gen-
eral industrial use consistent with the achievement of the
management goal for the active management area.

6. There is an assured water supply for the intended use
at the intended point of withdrawal. The director may
waive this requirement if the director is unable to deter-
mine if there is an assured water supply because of
hydrogeologic conditions underlying the point of with-
drawal. For purposes of this section, “assured water sup-
ply” means that sufficient groundwater of adequate
quality will be available to the applicant to satisfy the
projected general industrial use for the duration of the
permit.

7. If anew well or replacement well at a new location is
to be constructed, a permit for the well has been issued
pursuant to section 45-599.

B. A permit issued pursuant to this section shall be
granted for a period of up to fifty years, subject to
renewal under the same criteria used in granting the
original permit.

C. If, during the life of the permit, the director deter-
mines that uncommitted municipal and industrial central

App. 33

Arizona project water is available or other water or efflu-
ent of adequate quality is available at a cost comparable
to groundwater, the director may require the permittee to
use such water in lieu of groundwater.

D. Beginning January 1 of the calendar year following
the year in which a groundwater replenishment district is
required to submit its preliminary plan pursuant to sec-
tion 45-576.02, subsection A, paragraph 1, and except for
an application to renew a general industrial use permit,
on receiving a permit application the director shall not
issue a permit for a well in the district unless at the time
the application is filed:

1. The director has determined that the district’s plan .
for operation is consistent with achieving the manage-
ment goal, according to section 45-576.03, subsection E,
and the designation has not expired.

2. The master replenishment account, as established in
section 45-676, does not have a debit balance in an
amount in excess of the amount allowed under section
45-576.01, paragraph 3.

Ariz. Rev. Stat. 45-563. Management plans in active
management areas; management periods; general provi-
sions

A. The director shall develop a management plan for
each initial active management area for each of five man-
agement periods pursuant to the guidelines prescribed in
sections 45-564 through 45-568 and shall adopt the plans
only after public hearings held pursuant to sections

App. 34

45-570 and 45-571. The plans shall include a continuing
mandatory conservation program for all persons with-
drawing, distributing or receiving groundwater designed
to achieve reductions in withdrawals of groundwater.

B. The director shall develop a management plan for the
Santa Cruz active management area for the third, fourth
and fifth management periods pursuant to the guidelines
prescribed in sections 45-566, 45-566.01, 45-567, 45-567.01,
45-568 and 45-568.01 and shall adopt the plans only after
public hearings held pursuant to sections 45-570 and
45-571. The plans shall include a continuing mandatory
conservation program designed to achieve the manage-
ment goal of the active management area for all persons
withdrawing water, other than stored water, from a well
and all persons distributing or receiving water, other than
stored water, from a well. The plans shall also include
criteria for the location of new wells and replacement
wells in new locations consistent with the management
goal of the active management area.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0969%3A2. Public record. Not legal advice.