State Capitol News
10:23 am
Thu September 13, 2012

New Water Ruling Settles One Question and Raises Others

There's an old saying in Arizona: Whiskey is for drinking and water is for fighting. And Arizonans have been doing that in the courts now for decades, trying to figure out who is entitled to the water that runs through the rivers and streams.

In general, the rule is prior appropriation: Whoever puts it to use first for a beneficial purpose, like drinking or agriculture, has the right. What the courts have been doing since the 1970s is weighing various claims. But in the middle of that, the state Land Department floated a new theory. It argued that federal lands come with reserved water rights -- rights that trump everyone else, even if the water isn't being used. More to the point, the agency said when the federal government gave Arizona nearly 11 million acres at statehood to hold in trust, it also conveyed those rights. University of Arizona law professor Robert Glennon called it a bold argument.

"They want water kind of retroactively for nine million acres of land," Glennon said. "Just think about how disruptive that would be, Howie, both to claims of some tribes and also to the existing cities and farms and mines that are using water."

But Deputy Land Director Vanessa Hickman said the state did not make the argument lightly. She said her agency has a constitutional mandate to maximize proceeds from the 9.3 million acres of trust land that remain to generate more dollars for the public schools and other beneficiaries, ranging from prisons to universities.

"It would have been very advantageous to the trust to have the federal reserved water rights because it would have put us in line for priority rights to water for our 9.3 million acres of land," Hickman said. "And to really achieve the greatest value potential from the land that we manage and put them into production, the access to water would be a huge benefit."

But the court, in its ruling, brushed aside claims by the state that denying the water rights would somehow damage the whole purpose of the federal government giving all that land to the state: to support public schools and other government functions. Justice John Pelander, writing for the court, said that the land department has somehow managed to produce revenues for the state for the last century leasing and selling property without water rights. Hickman conceded the point.

"But I think that more land is sold and more land is put into production, we all know how much more valuable access to water becomes," she said. "And so the fact is, perhaps, 100 years ago, people weren't focused on water as much as they are today. And we understand what great value this could bring to the trust to have water associated with all of our land."

But Glennon said a contrary ruling would have caused havoc for pretty much everyone else in the state who has made a claim on -- and may be currently using -- that water.

"There wouldn't have been much left. When you start to talk about 9 million acres and you have water for it, that's a heck of a lot of water," he added. "I don't care whether you talk about it for agricultural use, Howie, or municipal use. It would have been a staggering amount of water."

The fight, however, is not over. Hickman said while the court rejected her agency's theory of federally reserved water rights, it still intends to pursue claims, this time based on that prior appropriation theory that the state was using the water before anyone else. 

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