about arizona land and water trust...the handbook would not have been possible without the generous...

Benefiting Landowners and Desert Rivers: A Water Rights Handbook for Conservation Agreements in Arizona

About Arizona Land and Water TrustArizona Land and Water Trust protects southern Arizona’s western landscapes,

working farms and ranches, water, and wildlife habitat. Since its inception in 1978,

the Trust has protected more than 30,000 acres of working landscapes, water,

habitat, and cultural resources through partnerships with landowners, government

agencies, and other conservation organizations. In 2007, the Trust launched its

Desert Rivers and Riparian Heritage Initiative to develop and implement water

stewardship tools that will sustain the rural livelihoods and riparian habitats that

enrich Arizona’s natural and cultural landscapes.

WATERL ANDARIZONA

T R U S T

AND

WATERL ANDARIZONA

T R U S T

AND

3127 N. Cherry Ave.Tucson Arizona 85719Phone: 520.577.8564Fax: 520.577.8574www.alwt.org

Notes:

Benefiting Landow

ners and Desert R

ivers: A W

ater Rights H

andbook for Conservation A

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rizona Land and Water Trust

AcknowledgementsThe handbook would not have been possible without the generous support of the Nina Mason Pulliam Charitable Trust, an anonymous family foundation, and the RBC Blue Water Project.

This handbook is the result of almost two years of collaboration with a diverse group of organizations and individuals. Without their unique perspectives, contributions, and advice, we could not have offered as comprehensive an overview. While the information presented in this handbook grew out of discussions with our partners, it does not necessarily reflect the opinions or viewpoints of any individual, agency, or organization. The viewpoints, analysis, and opinions expressed in the handbook are those of Arizona Land and Water Trust, which also takes responsibility for possible errors and/or omissions.

Principal Authors: Aaron Citron, Project Manager, Arizona Land and Water Trust Dustin Garrick, Consultant

Production Credits: Design and Illustration: Printing and Binding: Copy Editing:Denise Barnes – Dabfab Design Spectrum Printing Company, LLC June Hussey Arizona Lithographers Wheatmark, Inc.

Photos:Cover: Late October along the San Pedro River near the ghost town of Fairbank, Arizona (Photo: David Putnam)Inside cover: Irrigated Agriculture Along the San Pedro River (Photo: John H. Hoffman - Flight: Lighthawk) Above: Stock Tank on the Sands Ranch (Photo: Arizona Land and Water Trust)

Arizona Land and Water Trust would like to thank:

47 Ranch Dennis Moroney

Arizona State Parks Jay Ream Bob Sejkora

Babacomari Ranch Ben Brophy

Bridle Bit Ranch Brad DeSpain Bob Honea

Ganado Group Tom Rolston

Headquarters West, Ltd. Charlie Havranek

Kauttu Valuation Jeff Kauttu

The Nature Conservancy Jean Calhoun Dave Harris Diana Imig

Pima County Harlan Agnew Pima County Attorney’s Office Christina Biggs Real Property Division Kathy Chavez Wastewater Reclamation Department James DuBois Wastewater Reclamation Department Julia Fonseca Office of Conservation Science and Environmental Policy

Pima County (cont.) Joe Kellner Natural Resources, Parks and Recreation Rita Leon Real Property Division David Scalero Regional Flood Control District Mike Stofko Real Property Division

Santa Lucia Ranch Jon Rowley Peggy Rowley

Sonoran Institute Amy McCoy

Steven Weatherspoon, PLLC Steven Weatherspoon

Tucson Audubon Society Dr. Paul Green Kendall Kroesen Scott Wilbor

The University of Arizona Kathy Jacobs School of Geography and Development Robert Glennon James E. Rogers College of Law Sharon Megdal Water Resources Research Center Joanna Nadeau Water Resources Research Center

Will Murray Company Will Murray

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Benefiting Landowners and Desert Rivers: A WATER RIGHTS HANDBOOK FOR CONSERVATION AGREEMENTSIN ARIZONA

WATERLANDARIZONA

T R U S T

AND

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Benefiting Landowners and Desert Rivers: A WATER RIGHTS HANDBOOK FOR CONSERVATION AGREEMENTSIN ARIZONA

Date Printed: January, 2010

Suggested Citation:Arizona Land and Water Trust, Citron A. and D. Garrick, 2009. Benefiting Landowners and Desert Rivers: A Water Rights Handbook for Conservation Agreements in Arizona. Arizona Land and Water Trust: Tucson, AZ. First Edition.

DisclaimerThis handbook is presented and intended as a general guide to certain methods and strategies for using water resources for conservation and related purposes, including ranching and farming. While the handbook necessarily discusses water-related legal issues and precedents, it is not offered as a definitive or authoritative legal resource. The law of water and water rights in Arizona is complex and, in many circumstances, uncertain or dependent on the specific set of facts involved. Accordingly, the statements and conclusions presented here concerning the law are not intended as legal advice on any issue or question. The assistance and opinions of a competent water law practitioner should be obtained before any decisions are made or actions are taken with respect to legal issues related to the existence and use of water or water rights.

Printed on recycled paper

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ForewordDesert water—our streams and rivers, springs, ponds and pools—allows both human and natural communities to survive in the arid Southwest. The working landscapes that span our watersheds are part of an intricate system of natural and man-made elements that define our way of life by supporting and protecting rural communities, biodiversity, cultural resources and sweeping western vistas. Arizona Land and Water Trust believes that even in the face of prolonged drought, growth pressures and a changing climate, we can work together to sustain this intricate system. By offering additional tools to support the stewardship practices already in place, and creating new tools and incentives for willing landowners, we can protect the working landscapes that also support our shared natural systems and sustain our rural communities.

This handbook is intended to offer useful information to those working on the land, at the intersection of working landscapes and natural communities. It is not intended to create additional stresses on the landowner’s limited water resources but to identify tools that will support working landscapes and natural systems as they adapt into the future.

While our intended audience is primarily landowners, we hope the information provided here is also useful to organizations, agencies, policy makers, consultants and advisors. The handbook is meant to be used as a reference resource that helps to clarify some of the complexities of understanding water rights in Arizona. We hope it will also assist in framing stewardship opportunities, both on the ground, where ranchers and farmers are sustaining their businesses, and across the state, where people are engaging in discussions about how to plan for the future.

The handbook is intended to provide a point of beginning as we look to partner with willing landowners who are strengthening a system that is fragile but still in place: locally-produced food, rural communities, and vast, protected working landscapes. This is a system that also produces effective groundwater recharge, protects water quality and water supplies, and provides wildlife habitat. Thus, it protects our quality of life in Arizona.

We hope that this handbook will not only offer useful information, but also initiate dialogue on a topic that is often difficult to discuss: how do we sustain our current way of life and plan for the future? Soon we will begin the next phase of this work—our “Listening Tour”. We invite you to join us and we look forward to your feedback.

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Table of ContentsACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inside Front Cover

FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INTRODUCTION: DESERT STREAMS AND RIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SECTION 1: WATER RESOURCES AND WATER RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Water Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Management Jurisdictions: Arizona Department of Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Types of Water Rights in Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Surface Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Types Of Surface Water Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Types Of Groundwater Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Characteristics of Water Rights in Conservation Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

SECTION 2: CONSERVATION TOOLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25The Pulse of a Desert River: Connections Between Groundwater and Surface Flows . . . . . . . . . . . . . . . . 26Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Surface Water Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Groundwater Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Land Agreements that Provide Riparian Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

SECTION 3: PRACTICAL GUIDANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Valuation and Appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Drafting: Specificity and Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46Stewardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

END NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

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Special FeaturesBabacomari Ranch: Ben Brophy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Arizona Land and Water Trust and Pima County: A Partnership to Protect Pima County’s Critical Western Landscapes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10A Note on Measurement Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Artificial Recharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 47 Ranch: Dennis Moroney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Case Study: Cienega Creek Instream Flow Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Effluent: A Third “Source” of Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Case Study: Marana High Plains Effluent Recharge Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38Scaling Up: Landowners, Communities, and Watersheds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

List of FiguresLandowner-Based Conservation Philosophy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Gaining and Losing Streams: Depicting the Three Major Hydrologic Reach Types and Corresponding Vegetation Patterns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

AppendicesAPPENDIX 1: Water Rights Due Diligence Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52APPENDIX 2: Water Rights Stewardship Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54APPENDIX 3: Arizona Water Budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55APPENDIX 4: Arizona Stream Adjudications Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56APPENDIX 5: Active Management Areas and Irrigation Non-Expansion Areas Map . . . . . . . . . . . . . 57APPENDIX 6: Status of Instream Flow Applications in Arizona Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58APPENDIX 7: Contacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

List of TablesTypes of Surface Water Filings by Prefix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Colorado River Rights and Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Grandfathered Groundwater Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Other Groundwater Use in AMAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Inventory of Water Rights Types by Prefix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

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Introduction

Desert Streams and RiversOur Shared Riparian Heritage and Common Future

Arizona farmers and ranchers would likely agree with the Pulitzer-prize winning American author, Wallace Stegner, when he wrote “Water is the true wealth in a dry land.” Forging a sustainable livelihood in the desert is an enduring challenge, albeit not an impossible one. The extremes of our desert environment have always rewarded adaptability and resilience.

One’s livelihood need not depend on water to be passionate about water conservation, however. Every Arizonan is a stakeholder when it comes to protecting our state’s precious, natural water supply. Desert rivers are vital to Arizona’s iconic cultural and natural landscapes and ecosystems. If we care enough to preserve forever the rural character and ecological integrity of Arizona’s vanishing western landscapes, rivers and streams, then we must begin by working together to protect our desert rivers today.

Arizona Land and Water Trust’s Desert Rivers and Riparian Heritage Initiative charts a path toward a collaborative vision of healthy working rivers: rivers that work for rural communities and landowners while remaining functional riparian ecosystems.

Functional floodplains are the linchpin in the connection of land and water. Floodplains act as giant sponges that absorb seasonal floodwaters into the ground, sustaining river-aquifer systems during drier times. Ranchers and farmers are often the primary custodians of this connection. A vision of healthy working rivers supports traditional land uses while ensuring floodplains remain intact and contribute to aquifer replenishment, water quality, and healthy habitat.

Along desert rivers, landowners in rural communities facing growth and drought are tightly connected to the health of the watershed. The central goal of the Desert Rivers Initiative is to find landowners willing to work towards this vision to achieve more reliable streamflow and floodplain function in a way that also meets the interests of the landowner.

Streamflow incentives (agreements to preserve or enhance the flow components of a healthy working river) and floodplain health incentives (agreements to maintain or modify management practices on private lands to conserve the floodplain health needed for aquifer recharge, riparian habitat and productive agricultural lands and rural communities), are available and can be combined to meet the goals of the Desert Rivers and Riparian Heritage Initiative.

Win-win partnerships have already been successfully forged for this purpose in many Arizona locales. As you read some of these success stories in this handbook, you will see that a voluntary movement towards sustainability has begun, spearheaded at the most local level by landowners of working ranches and farms.

Sycamore Spring at the 47 Ranch (Photo: Arizona Land and Water Trust)

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As water needs increase in our developing desert, Arizona Land and Water Trust works with landowners, other foundations, conservation groups, and government officials to ensure that interests in favor of improved instream flows are aligned and have a strong voice in statewide water discussions. Arizona Land and Water Trust also supports efforts to develop sustainable funding sources in order to ensure that sufficient water for agricultural, instream, and municipal needs will be available into the future.

The following chapters compile valuable information about water resources and water rights, conservation tools, best practices, and practical guidance. Section 1 presents an overview of water resources and water rights in Arizona. It addresses and describes sources of water, types of water claims and rights, and the management jurisdictions that frame opportunities for land stewardship and riparian protection. Section 2 lists conservation tools and connects them with potential incentives

Top:A View in the Vicinity of the O’Maras Mine (Photo: David Putnam)

Bottom:Headwaters of the Santa Cruz River in the San Rafael Valley (Photo: Kelly E. Mott Lacroix, Arizona Department of Water Resources)

Aquifer: An underground layer of permeable rock, sediment (usually sand or gravel), or soil that yields water. The pore spaces in aquifers are filled with water and are interconnected, so that water flows through them.

Family Farms and Ranches

FloodplainHealth

RiparianHabitat

WaterQuality

AquiferRecharge

Landowner-Based Conservation Philosophy

Babacomari Ranch: Ben BrophyOver the past seventy-five years (fifteen years during my tenure), we have employed many practices to defend our ranch from drought and erosion. While their harmful impacts are all too frequent in this portion of southeastern Arizona, we are committed to mitigating their impacts the best we can. With the goal of capturing the greatest amount of the limited annual rainfall we receive, we have methodically employed range improvements to each ecological site on the ranch with the assistance of rangeland specialists from the Natural Resources Conservation Service (NRCS). By restoring grasslands through both mechanical and chemical brush control practices in our uplands and adding new fencing and grazing strategies to our riparian bottomlands, we are losing less water to runoff and mitigating erosion by improving or stabilizing plant communities. Our efforts, with the assistance of the NRCS, are readily apparent, especially in the riparian zone along the Babacomari Creek, because we are better able to react to mother nature and manage our resources accordingly.

Left: Cattle on the Babacomari Ranch (Photo: Frank McChesney, Babacomari Ranch)

Above:Water Tank on the Babacomari Ranch (Photo: Frank McChesney, Babacomari Ranch)

and benefits for eligible property owners. Section 3 summarizes a set of best practices for incorporating water rights into conservation agreements at every stage, from due diligence to stewardship.

We hope this handbook will lead to partnership-based solutions that provide benefits to both landowners and ecosystems. Some tools might employ direct financial or tax benefits, while others might reimburse landowners who volunteer to engage in management practices that benefit our natural resources. Regardless of the methods and tools used, a shared and forward-thinking perspective might have significant, long-term benefits for everyone. ■

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Arizona Land and Water Trust and Pima County: A Partnership to Protect Pima County’s Critical Western Landscapes

Southern Arizona has been undergoing unprecedented growth. Vast stretches of open rural ranchland are being converted to seemingly endless numbers of five- to forty-acre ranchettes. This pattern of unregulated development impacts scenic views, fragments wildlife habitats, lowers our groundwater table, and reduces air quality. In the face of these changes, Arizona Land and Water Trust (the Trust) has tried to find ways to relieve some of these mounting pressures and help to keep landowners on their land.

In 1998, Pima County began preparing a multispecies habitat conservation plan, the nationally acclaimed Sonoran Desert Conservation Plan (SDCP). As part of the planning process, the County identified more than two million acres of land as biological core or important riparian areas meriting some level of protection under the SDCP.

The Trust, understanding that it would not be possible to protect two million acres of land, led the effort to prioritize land for protection should funding become available for conservation.

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Ranch (2,700 acres). These lands contain significant water resources and protect areas in the Santa Cruz and San Pedro River watersheds.

The protection of these lands contributes significantly to the overall goal of the Sonoran Desert Conservation Plan as well as the Trust’s goal of protecting Southern Arizona’s western landscapes, working farms and ranches, water, and wildlife habitats.

The Trust joined with partners including The Nature Conservancy, Sky Island Alliance, and the Coalition for Sonoran Desert Protection to create habitat conservation priorities.

The Habitat Protection Priorities map was adopted by both the eighty-five-member Citizens’ Steering Committee for the Sonoran Desert Conservation Plan and the Pima County Board of Supervisors as the focus of County conservation efforts. The Trust’s Habitat Protection Priorities for Eastern Pima County call for protection of the community’s richest biological resources on both private and state land. The Trust continues to partner with Pima County and landowners to protect these lands in perpetuity by negotiating land acquisitions with willing sellers. Funding to acquire and protect the conservation priorities comes from the May 2004 Conservation Bond that raised $112 million for habitat conservation.

Since the adoption of the Habitat Protection Priorities, the Trust has assisted in the acquisition and permanent protection of 29,255 acres of high-priority private lands using 2004 Conservation Bond funds. The most recent lands protected by the Trust and Pima County are the Sopori Ranch (4,135 acres), Sands Ranch (5,040 acres), Clyne Ranch (880 acres), and Empirita

Opposite from top:Six Bar Ranch: Edgar Canyon (Photo: Josh Schacter)

Six Bar Ranch: Butterfly (Photo: Josh Schacter)

Large Cottonwood Tree at the Sopori Ranch (Photo: Joseph Belfiore)

Above:Inspecting a Stock Pond on the Sands Ranch (Photo: Arizona Land and Water Trust)

Left:Looking Across Rancho Seco Towards the Cerro Colorado Mountains (Photo: Trilby DuPont, Arizona Land and Water Trust)

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Section 1

Water Resources and Water RightsWater Sources, Arizona Management Jurisdictions, and Water Rights

This section introduces the various permits, claims, rights, and other interests that can be acquired in the use of water in Arizona. These are discussed across four elements:

• Water Sources• Management Jurisdictions• Types of Water Rights• Characteristics of Water Rights in

Conservation Agreements

Water SourcesLandowners can acquire and hold several different types of water rights and claims in Arizona. There are various types of water rights. In particular, groundwater pumped from a well and surface water are subject to different laws. Within these two water sources, water rights have different attributes depending upon the management jurisdiction where the water is acquired or used. Management jurisdictions, such as Active Management Areas (AMAs), irrigation districts, tribal reservations, and a range of others, may affect water allocation and water rights.

In many areas, surface water and groundwater are physically and hydrologically connected by interactions between streams and underground aquifers. Groundwater discharge supports surface water flows in many regions, and surface water recharges aquifers. Under Arizona law, however, surface water and groundwater are distinct. Subflow is a source of water that exists at the interface of groundwater and surface water, although in Arizona it retains the legal character of surface water.

Municipal effluent, water treated for reuse, is commonly thought of as a third source of water. Effluent is owned by the entity that treats and releases it.1 However, once effluent is released into a natural stream channel, it takes on most of the legal characteristics of surface water, and water rights to effluent can be acquired in much the same way as rights to other surface water. Municipalities treating and discharging effluent can own and sell effluent and have no obligation, absent a contractual agreement with a water user, to continue to discharge it to satisfy the claims of downstream users. Effluent is widely used to recharge aquifers. It has become increasingly common for water treatment plants to release treated effluent directly into stream beds to simultaneously support riparian habitat and to provide for aquifer recharge along the way downstream.

The term “water rights” is viewed differently by different people. Many surface water users rely on claims to the surface water because most surface water rights in Arizona are not yet adjudicated by Opposite:

Monitoring a Conservation Easement at Sycamore Canyon on the Diamond C Ranch (Photo: Arizona Land and Water Trust)

Left: Aravaipa Creek(Photo: Kelly E. Mott Lacroix, Arizona Department of Water Resources)

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the courts. What people often refer to as water “rights” actually encompasses a wide variety of different interests in water. Many water rights and claims exist that may not be supported by an actual source of water. Such rights are frequently called “paper water rights,” as opposed to “wet water rights.” Lacking a water supply to back up the paper claim, these water rights may not stand up to future legal scrutiny.

Different users can hold a wide variety of interests in water. For clarity, the general term “water rights” will be used in this handbook for purposes of discussion. Water rights refers broadly to a variety of legal and administrative rights, allocations, certificates, and claims to the use of water from various sources. While water rights are managed and regulated in different ways than most other types of property, they share many of the attributes of real property and are dealt with in much the same way. Water rights, especially groundwater rights, must be conveyed by deed.2 All surface waters in the state of Arizona “belong to the public,”3 but surface water rights are still appurtenant to—or must be conveyed with—the land on which they are used, unless they are severed and transferred per a particular legal process.4 Both surface

water and groundwater are regulated by Arizona Department of Water Resources (ADWR) and other local management jurisdictions. Arizona’s reliance on groundwater led to the 1980 Groundwater Management Act, managing the “withdrawal, transportation, use, conservation and conveyance of rights to use the groundwater in this state.”5 When an entity acquires a water right, it holds a right to the use of the water subject to a set of regulations, conditions, and rules. This sort of a property right is known as a “usufructory right.” The regulations, conditions, and rules applicable to water rights depend upon the source, location, and management jurisdiction of the right.

Water rights in Arizona are conveyed in much the same way as real property. That is, they generally can be bought and sold by a deed or similar instrument. Many water rights are, however, connected, or appurtenant, to the land on which they are put to use and cannot be conveyed separately from the land itself. Most water rights transactions are overseen by ADWR and other administrative and government agencies. In some cases, a transfer of ownership or change of use must be filed with, reviewed, and approved by the appropriate regulatory body.

Groundwater Overdraft:Groundwater has traditionally been the primary source of water for many Arizona communities. When the rate of withdrawals has increased faster than an aquifer can be recharged, the aquifer is said to experience “overdraft.” Pumping from such aquifers is sometimes referred to as groundwater “mining.” Overdraft may reduce the quantity and quality of the water in the aquifer. As water is pumped from an aquifer, the land overlying the aquifer may subside. Land subsidence can result in a drop in surface elevation and is frequently combined with cracks in the soil and fissures. 6

Cattle and Antelope on the Babacomari Ranch (Photo: Frank McChesney, Babacomari Ranch)

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While this handbook may offer a basic understanding of how water rights can be incorporated into win-win conservation agreements, an attorney experienced in Arizona water law should always be consulted before making any decisions regarding water rights.

Management Jurisdictions: Arizona Department of Water ResourcesSeveral regulatory bodies and management areas and jurisdictions affect the allocation and regulation of water in Arizona. Federal and state agencies, irrigation districts, municipal water providers, and local governments all have different roles and legal authority. ADWR was created in 1980 with the passage of the Groundwater Management Act to “secure long-term dependable water supplies for Arizona’s communities.” A state-wide agency, ADWR is the primary regulatory authority over most water rights matters. The state calls upon ADWR to perform the following functions:

• Administer and enforce Arizona’s groundwater code and surface water rights laws (except those related to water quality),

• Negotiate with external political entities to protect Arizona’s Colorado River water supply,

• Oversee the use of surface and groundwater resources under state jurisdiction, and

• Represent Arizona in discussions of water rights with the federal government.

ADWR also “explores methods of augmenting water supplies to meet future demands, and develops policies that promote conservation and equitable distribution of water” while providing support to the courts in the adjudication of surface water rights.7 The Department’s regulatory authority varies across the state’s geography. Active Management Areas (AMAs), however, are the focus of much of the agency’s regulatory activities and administrative resources relating to groundwater within and around the urban areas in central and southern Arizona. See Appendix 5.

General Stream Adjudications In 1974, a process known as the “general

stream adjudication” was initiated to formally establish the nature, extent, and priority of all surface water rights. Each potential claimant had an opportunity to state the particulars of his or her claims in the appropriate superior court. The adjudication of the Little Colorado River and the Gila River, involving tens of thousands of claimants, is ongoing. (See Stream Adjudications Map in Appendix 4.) The Gila River Watershed encompasses nearly 85 percent of Arizona’s population, and over 83,000 claims have been filed by more than 24,000 water users. Water pumped from wells located near stream channels may directly affect surface flows in neighboring associated streams and rivers. Water that is associated with surface flows in this way is called subflow and it may be treated legally as surface water. 8 Such water withdrawn from wells in the subflow zone may also be considered in the general stream adjudications. For example, in the San Pedro Watershed, the adjudication court has determined that the extent of the saturated Holocene alluvium delineates the subflow zone. There is a legal presumption that water pumped from within this zone will be considered as surface water in the general stream adjudications. ADWR is providing technical assistance to support the judicial process.9 This adjudication process is still pending, but several due diligence practices (see Section 3 of this handbook) have been developed to help water rights holders make preliminary determinations of a surface water claim’s anticipated extent and priority once the adjudications are complete.

Types of Water Rights in Arizona

Surface WaterDefinition – Surface water is defined in Arizona as “the waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, flood, waste or surplus water, and of lakes, ponds and springs on the surface.”10

Active Management Area: Created by the 1980 Groundwater Management Act (the “Act”.) Water rights in AMA’s are based on historic groundwater uses during the five years prior to the groundwater Act’s passage in 1980. Certain water rights may be transferred within the AMA, but generally water may not be transported outside the boundaries of the AMA. The use, transportation, and administration of water within an AMA is regulated differently than in areas outside of an AMA. (See Appendix 5)

Measurement units for water are reported in terms of rate, volume, and conveyance or pumping capacity. Flow rates refer to the volume of water flow over an interval of time. Rate of flow is reported in cubic feet per second (cfs). Streamflows are commonly described in these units. A hydrograph represents the flow, in cubic feet per second, over the course of a season or year. However, other water rates are relevant for groundwater, such as groundwater pumping rates, which are reported in gallons per minute (gpm). In the United States, water volume is reported in acre-feet. An acre-foot is 325,851 gallons, describing the quantity of water needed to cover an acre of land to a depth of one foot. An acre-foot of water is the approximate quantity of water (325,851 gallons) needed by a typical suburban family for a year.11 In Arizona and much of the desert southwest, where water conservation measures have been put in place, a typical family uses only about one-quarter to one-half of an acre-foot per year.12

Above:Stock Pond on the Clyne Ranch (Photo: Arizona Land and Water Trust)

Subflow, as described above, may also be treated as surface water and governed according to the prior appropriation doctrine. This water may be subject to the general adjudication process.

Appropriation and Allocation – Surface water rights are allocated based on a priority system. The first entity to use water beneficially is the last to lose access to it during periods of insufficient surface flows. This priority system is based upon the principle of “first in time, first in right.”13 Earlier established water rights are more “senior” than later-established “junior” rights. The most senior water rights are the most secure and are generally more valuable than junior rights.

In order for a water right to be perfected, the appropriated water must be shown to be for a “beneficial use.”14 In Arizona, water can be used beneficially for “domestic, municipal, irrigation, stock watering, water power, recreation, wildlife, including fish, nonrecoverable water storage … or mining uses, for his personal use or for delivery to consumers.”15 Note that Arizona recognizes the preservation of river flows for the benefit of fish, wildlife, and recreation as a beneficial use.16 Instream flow rights are surface water rights that remain in the stream—or in situ—in order to maintain the streamflow necessary to preserve wildlife, fish, and recreation.

Forfeiture, Abandonment, and Relinquishment Surface water users can lose their surface water rights after a period of sustained non-use. Authorized beneficial water uses must be maintained without gaps of longer than five years in order to avoid forfeiture. With certain exceptions, if a right is not put to its registered, beneficial use for five or more consecutive years, the water “shall revert to the public and shall again be subject to appropriation.”17 A right to claimed waters may be relinquished if a statement of claim is not filed by the user pursuant to the Water Rights Registration Act.18

Similarly, water users must be sure to file a Statement of Claimant with ADWR for any water claims that might be subject to

A Note on Measurement Units

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adjudication. Once adjudication is complete and a judgment has been rendered, if a water user has failed to file such a Statement of Claimant, they will relinquish any right in the river system not properly claimed before the court.19

Changes and Transferability – Once a surface water right is appropriated, the water user can change its point of diversion, time of use, or beneficial use. Changes in the place, time, or type of use may be subject to administrative review. A change of the place of use of a surface water right is referred to as a “severance and transfer” of that right. The sever-and-transfer process, discussed in greater depth in Section 2, generally requires the approval of the director of ADWR. Applications for changes of the beneficial use, but not the place of use, will be considered under the doctrine of “no injury” to other water users and must also be approved by the director of ADWR. A change of use, or sever-and-transfer application will be approved only if ADWR determines that the requested change will not affect, infringe upon, or interfere with any other vested or existing rights.20

Types of Surface Water Rights(1) Diversions. Common Law Rights and Statutory Rights. Surface water rights along rivers

other than the Colorado are created pursuant to the prior appropriation doctrine. Some of these water rights were established before Arizona became a state in 1912 and adopted the Arizona Public Water Code in 1919. 21 Two broad types of surface water diversion rights exist based on the timing and procedure used to establish them: common law rights (pre-1919 claims) and statutory rights.

(1a) Common Law Rights. Prior to the passage of the 1919 Public Water Code, surface water rights were established by filing a notice of intent to divert at the county recorder’s office. The right was subsequently “perfected” by developing the diversion works and applying the water to a beneficial use. Water rights could also be established after diverted surface waters were put to a beneficial use, without filing a notice of intent to divert, but instead by merely posting a notice of the appropriation at the point of diversion.

(1b) Statutory Rights. The Arizona Public Water Code provides that, in order to establish a new right, a person must apply for and obtain a permit from ADWR or its predecessors prior to developing a diversion or putting surface water to use. A certificate of water right is issued upon proof to ADWR that the water has been put to

Cienega on the Babacomari Ranch (Photo: Frank McChesney. Babacomari Ranch)

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a beneficial use. Today, this administrative oversight continues, and an application must be filed with ADWR to establish a new surface water use.

Types of Surface Water Filings by Prefix*“33” Application for new use or for instream flow

use. Prior to 1972, applications to appropriate surface water were assigned the prefix 4A and applications to construct a reservoir were assigned the prefix 3R. Since 1972, the applications have been consolidated into the 33 application.

“36” Statement of Claim of Rights to Use Public Waters of the State of Arizona. Claims to surface water rights and surface water storage rights based on pre-1919 common law rights.

“39” Statement of Claimant in the ongoing adjudications, including supporting evidence and detail for 36 Statement of Claim of Right to Use Public Waters of the State of Arizona. Number 39 Statement of Claimant filings are required to avoid relinquishment of water rights.22

“38” Claim of water right for a stock pond.

* ADWR classifies all surface water filings with two-digit prefixes.

(2) Colorado River: Central Arizona Project and “On-river” Users. The Colorado River drains a broad territory that includes two countries, seven U.S. states, and several tribal lands, communities, and reservations. The river is allocated by interstate compacts, tribal settlements, federal statutes, interstate accords, court decrees, and a treaty with Mexico, collectively known as the “Law of the River.” Allocations within each state are governed through a complex priority system, and Arizona has a six-tier system of water allocations for different types of Colorado River water rights within the state, including contracts for irrigation and tribal and municipal water use delivered through the Central Arizona Project. Water diversions from the Lower Colorado River can be made only pursuant to a contract with the Secretary of the Interior. The contracts specify the amount and priority of the

water diversions consistent with the Law of the River.

Colorado River Rights and ContractsPriority 1 Rights established prior to

1929 Priorities 2 and 3 Rights or contracts established

prior to 1968 Priority 4 Central Arizona Project and

post-1968 contractsPriorities 5 and 6 Excess water or water to be

stored in artificial recharge basins

GroundwaterDefinition – Groundwater is water stored in pores in sands, gravels, and underground aquifers and replenished through natural and artificial recharge. Specifically, Arizona defines groundwater as “water under the surface of the earth regardless of the geologic structure in which it is standing or moving. Groundwater does not include water flowing in underground streams with ascertainable beds and banks.”23

Regulation of Groundwater Use – Groundwater management and regulation in certain areas of the state changed significantly following the passage of the Arizona Groundwater Code (“the Code”) in 1980. The Code quantified existing uses and created a set of management jurisdictions called Active Management Areas (AMAs) and associated goals that govern a land area that covers only 13 percent of the state but comprises 85 percent of its total water use.24 (See AMA/INA map in Appendix 5.) On lands outside of an AMA, groundwater can be pumped subject to the reasonable use doctrine, which entitles landowners to pump a reasonable amount of water for beneficial use onto the overlying property without wasting that water. A landowner must file a Notice of Intent to Drill with ADWR before constructing a new well anywhere in the state. Groundwater basins in AMAs that surround the central Arizona urban centers, including Phoenix, Tucson, and Prescott, are today managed and regulated according to a set of standards created by the Code.25 Subject to certain significant exceptions, groundwater uses in AMAs are

Artificial Recharge In order to make use of its entire Colorado River allocation and to assist in demonstrating assured water supplies, Arizona has been recharging its aquifers with water from various sources. Much of Arizona’s Colorado River allocation is transported through the Central Arizona Project and released into recharge basins near central Arizona’s urban centers. Effluent supplies, and some surface water, are also used for artificial recharge. These recharge basins allow the water to seep down through the soil into the aquifer. Artificial recharge replenishes the groundwater that has been, and continues to be, pumped from these aquifers.

Artificial recharge projects provide opportunities for innovative public–private partnerships. Rural landowners may be able to enter into incentive-based agreements that would allow recharge facilities to be placed on their lands in return for financial and physical benefits. The Marana High Plains Effluent Recharge Project in Pima County (see Case Study on page 38) is a clear example of a win-win agreement between a rancher and Pima County.

Colorado River in the Imperial National Wildlife Refuge (Photo: Kelly E. Mott Lacroix, Arizona Department of Water Resources)

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limited to quantities pumped between the years of 1975 and 1980. The Code also established Irrigation Non-Expansion Areas (INAs) in certain parts of the state. No expansion in the use of groundwater for irrigation purposes is permitted in INAs.

Changes and Transferability – Groundwater rights inside AMAs are managed very differently than groundwater rights outside of AMAs. A landowner outside an AMA may use groundwater per the reasonable use doctrine. Under certain circumstances, water may be transferable. 26 However, groundwater can only be removed from a hydrologic basin in particular circumstances and subject to a variety of restrictions. 27

A landowner inside an AMA can only use groundwater pursuant to a grandfathered right, a groundwater permit, or a service area right. Small, exempt wells can also be used to pump groundwater within AMAs.

Types Of Groundwater Rights(1) Groundwater Rights in Active Management Areas. The 1980 Arizona Groundwater Code was created to protect aquifers from groundwater overdraft in areas where levels of groundwater pumping exceeds artificial and natural recharge.28 The Code created four AMAs in central Arizona. A fifth AMA was subsequently carved out of the Tucson AMA in 1994 due to the unique hydrologic and political conditions of the Upper Santa Cruz Watershed. The primary goal of three of the four initial AMAs (Tucson, Phoenix, and Prescott) was to reach “safe yield,” a balancing of groundwater withdrawals with recharge, by 2025.29 The Pinal AMA has a “planned depletion” goal meant to allow development of non-irrigation uses while preserving existing agricultural economies for as long as is feasible, “consistent with the necessity to preserve future water supplies for non-irrigation uses.”30 The Santa Cruz AMA was created to “facilitate binational negotiations for coordinated management of the Santa Cruz River.”31 Its goal is to “maintain a safe-yield condition in the active management area and to prevent local water tables from experiencing long-term declines.”32 In order to meet this goal, surface and groundwater rights in the Santa Cruz

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Grandfathered Groundwater Rights33

Irrigation Grandfathered Right34

Acres irrigated prior to the 1980 Groundwater Code may continue to be irrigated but water use is based on the water duty (authorized quantity per acre) or other conservation requirements. Under certain conditions, up to 10 acre-feet per year are allowed to be used for residential or stock-watering use as well.

Type 1: Non-Irrigation Right on Retired Irrigation Lands35

Generally, three acre-feet per acre for non-irrigation use on lands associated with prior irrigation. Type 1 rights are created by retiring Irrigation Grandfathered Rights and putting the groundwater to a non-irrigation use. The groundwater must be withdrawn from the retired irrigation lands.

Type 2: Non-Irrigation Right Not Tied to Retired Irrigation Land36

A non-irrigation use prior to 1980. Permitted quantity is generally associated with the maximum use during any one year out of the five preceding the Code’s adoption. Type 2 rights are not tied to any particular piece of land. They are the only grandfathered rights that may be marketed within the AMA and separated from the land where it was established.

Groundwater Extinguishment Credits

Groundwater extinguishment credits are created by retiring Irrigation Grandfathered Rights or Type 1 or Type 2 rights. Groundwater credits are a marketable asset for landowners because the credits can enable groundwater pumping in the AMA for assured water supply purposes.37

Other Groundwater Use in AMAs

Exempt well38 Non-irrigation uses of groundwater from a well with a maximum pump capacity of not more than 35 gallons per minute, up to 10 acre-feet per year for commercial uses. Exempt wells are usually dedicated to domestic uses. Irrigation of less than two acres is considered a domestic use and permitted from exempt wells.

Service Area39 Cities, towns, private water companies, and irrigation districts have the right to withdraw and transport groundwater for use within their service areas, subject to certain limitations.

Groundwater Withdrawal Permit (Mining and Industrial Permits)

Authority to withdraw groundwater for mining, industrial, and certain other uses, may be obtained by seeking a permit from the Director of the Arizona Department of Water Resources.40

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AMA are subject to coordinated planning and management. 41

Water rights in AMAs were granted under the Code based upon the established water uses in each distinct region prior to the Code’s passage. The established uses prior to the Code’s passage are said to have been grandfathered in, while new uses are restricted or prohibited. Within AMAs, ADWR requires annual reporting of groundwater pumped from nonexempt wells—those with a capacity of more than 35 gallons per minute.

The 1980 Groundwater Code also established two Irrigation Non-Expansion Areas (INAs), the Joseph City and Douglas INAs. These areas were created to limit agricultural pumping outside of the major urban areas encompassed by the AMAs. No new land can be irrigated in these areas. All pumping from a nonexempt well must be reported annually to ADWR. In 1982, ADWR designated a third INA, called the Harquahala INA.

Characteristics of Water Rights in Conservation AgreementsWater rights in Arizona come in all shapes and sizes. In seeking partnership-based solutions that provide benefits to both landowners and ecosystems, it is generally easiest to break each particular water right down to its basic components then determine the best way to manage or use the right in a conservation agreement.

Water rights are defined by a set of key attributes. Some of these attributes—such as

Irrigation Non-Expansion Area: Created by the 1980 Groundwater Management Act. When an area is designated an INA, a restriction is placed on increasing the number of irrigated acres in the area. Much like in AMAs, certain irrigation uses that were established prior to the creation of the INA have been grandfathered in. However, no new irrigation will be permitted.

Safe Yield: A term used to indicate a long-term balance between groundwater withdrawals and natural and artificial recharge. This state of aquifer sustainability and balance is the goal of four of the five AMAs.

Upper Gila River Near Clifton, Arizona (Photo: Kelly E. Mott Lacroix, Arizona Department of Water Resources)

source, reliability, and transferability—will frame opportunities and incentives for willing landowners to consider how to incorporate water rights into conservation agreements. Key attributes include:

• Source,• Type of use,• Quantity,• Time or season of use,• Place of use,• Priority (Reliability), and• Transferability.

Source – The sources of water include surface water, groundwater, and effluent. The source of a water right refers to the particular surface water system, storage project, groundwater basin or AMA, or wastewater treatment facility from which the water in question originates. The source will dictate the type of water right or subset of water rights permitted or claimed and the potential uses of the water right.

Type of Use – The allowable use of a water right depends on several factors, such as the water source, jurisdiction, or historic uses. Surface water rights and claims must fulfill a permitted beneficial use, including municipal, irrigation, or fish and wildlife purposes. Groundwater rights in AMAs, on the other hand, may be restricted to certain uses, such as irrigation in the case of Irrigation Grandfathered Groundwater Rights, or the non-irrigation uses authorized for Type 1

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and Type 2 rights. A water right’s existing purpose will frame opportunities and incentives to include the right in a conservation agreement. Several of the conservation tools and incentives discussed in the next section of the handbook will describe mechanisms that maintain or change the purpose of a water right to achieve a conservation benefit.

Quantity – The quantity of a water right is a critical factor to consider when developing a conservation plan or land stewardship strategy affecting water rights. Quantity is measured in terms of both rate and volume (see the box “A Note on Measurement Units”). The rate and volume are dependent upon the water source and type of water right. For example, an exempt well for groundwater pumping has an allowable maximum pump capacity of 35 gallons per minute with a volumetric limit of 10 acre-feet per year for commercial purposes. Limits for surface water diversions, on the other hand, vary according to the historic rate and volume of beneficially applied uses, such as irrigated acres or an irrigation water duty (water quantity per irrigated acre). Most groundwater uses in the AMAs are also subject to the conservation requirements established in ten-year management plans.

Time or Season of Use – The season of use refers to the time of year when a water right is validly applied. For surface water rights, the authorized time of use might be during a crop’s growing season, if the right’s purpose is irrigation. For other water uses, the water right might authorize continuous access and use. The time of use provides an interesting opportunity for win-win conservation agreements. A landowner’s modifying the time of use or temporarily fallowing a portion of land during drought seasons can preserve agricultural water supplies while enhancing riparian habitat.

Place of Use – A water right’s place of use is limited by its historic use and the source and jurisdiction from which the right is claimed. Place of use generally relates to surface water only. (For groundwater restrictions, see Transferability section.) For surface water contracts and rights, the place of use is typically prescribed in terms of the cadastral

47 Ranch: Dennis MoroneyDennis Moroney of the 47 Ranch near McNeal, Arizona, partnered with the Arizona Department of Environmental Quality, the Arizona Department of Agriculture, The University of Arizona Range Management Program, and three neighboring ranchers to install five hundred rock and wire check dams in the summer of 2008 to slow runoff, trap silt, and allow for greater groundwater infiltration. “The benefit of the check dams isn’t for me,” said Moroney, “it’s for my kids.” Moroney has also been sure to consider wildlife water needs when planning for agricultural water use on the ranch. Moroney recently worked with Arizona Game and Fish Department and the Natural Resources Conservation Service to construct a new dirt tank that will be used both to improve agriculture and to improve habitat for the endangered Chiricahua leopard frog. In 2007, Dennis Moroney also partnered with Arizona Land and Water Trust and the Arizona Game and Fish Department to place a conservation easement on 960 acres of the 47 Ranch.

“From the standpoint of land health, paying attention to the water cycle is critical to my sense of values.”

Top:Rock and Wire Check Dam on the 47 Ranch (Photo: Dennis Moroney, 47 Ranch)Bottom:Stock Pond on the 47 Ranch (Photo: Dennis Moroney, 47 Ranch)

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location (township, range, and section). Changes to the place of use or diversion may provide an option for riparian protection, as discussed in the next section.

Priority (Reliability) – The priority of a water right refers to the status of the water right during times when water supplies are insufficient to meet all demands on a water source. Due to the variability in water availability, a water right’s priority will determine its reliability and suitability for conservation objectives that require a secure water supply. Priority varies by water source and water rights type. Groundwater rights do not usually hold a priority date. Instead, the reliability of groundwater rights is determined by well-pumping capacity and depth to the water table. Surface water rights are governed by a priority system that defines security based on the date when the water was first appropriated and applied to a beneficial use. The due diligence practices described in Section 3 are crucial for evaluating the priority and reliability of the water right in the context of upstream and downstream water uses.

Transferability – A water right’s transferability refers to the ability to transfer the right to another location or use. This factor fundamentally affects

Line Tank on Sopori Ranch (Photo: Arizona Land and Water Trust)

Irrigation Water Duty: The amount of water, measured in acre-feet per acre, that can be applied to irrigated land, based on crops historically grown from 1975 to 1979. Water duties tend to decrease with each subsequent AMA management plan.

the options for protecting or modifying a water right to achieve a conservation benefit. For example, specific criteria determine whether a surface water right’s place of use or type of use can be changed to benefit rivers and streams. Groundwater rights, on the other hand, are generally limited to uses on the land where the right was established. Groundwater is managed depending upon whether it is withdrawn from within an AMA. Groundwater may be used off the land from which it is withdrawn with certain exceptions: (A) Groundwater cannot generally be transported out of a groundwater basin. Only under particular circumstances and subject to a variety of restrictions can groundwater be transported outside a groundwater basin. (B) Groundwater withdrawn in an AMA pursuant to an Irrigation Grandfathered Right must be used on the land to which the grandfathered right relates. It should be noted that physical constraints might make water transfers impractical or impossible. For example, the lack of infrastructure to physically transport water to another location might tie an otherwise transferable water right to the land and make any attempted transfer unreasonably difficult or cost prohibitive. ■

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