WSP07982

• File Number: 8021
• Description: Section D General Correspondence - Western States Water Council
• State: CO
• Basin: Statewide
• Date: 1/8/1993
• Author: Western States Water
• Title: Western States Water 1993 - Issues 973-1024
• Water Supply Pro - Doc Type: Publication

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TIIE WEEKLY NEWSLETfER OF TIIE WESTERN STATES WATER COUNCIL

Creekview Plaza, Suite A-201/942 East 7145 So./ Midvale, Utah 84047 / [phone] / FAX (801) 255-%42

editor - Tony Willardson

typist

carrie curvin

UllGA110NIWATER RIGHTS
Ground Water/Arizooa

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The Arizona Supreme Court has vacated a state
trial court's order defining appropriable ground water .
in the state and remanded the matter to the trial judge
for a new determination (In Re the General
Adjudication...[of] the Gila River System..., Ariz. Sup.
Ct., No. WC-90-0001-IR, July 27, 1993). The case
dealt with the second of six issues accepted for
interlocutory review in 1991. The issue was whether
the trial court erred in adopting its '50%/90-day' test
for determining whether underground water is subject
to appropriation under Arizona statutes. The test
found ground water appropriable if its withdrawal
reduced the flow of any surface water source by half
of the total volume pumped over a 9O-day period.

The Arizona Supreme Court's decision relied
heavily upon its 60 year old ruling in a case called
Southwest Cotton, which held that ground water is
appropriable n it tends to 'diminish appreciably and
directly...the flow of the sur1ace stream.' The court
found no such connection under the Southwest Cotton
facts. In its recent decision, the court recognized that
the Southwest Cotton ruling led to other decisions
implying a lack of connection between ground water
and sur1ace water in Arizona But, the ruling has been
relied upon for many years, it noted, and thus
deserved substantial deference.

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The Arizona Supreme Court found that the
'50%/90-day' rule formulated by the trial court was
arbitrary and inconsistent with Southwest Cotton and
therefore could not be used. However, the court said
that insufficient facts were brought before it to allow it
to articulate a different rule. The court also said, 'We
recognize the line between sur1ace and ground water

chairman- Dave Kennedy
executive director - Craig Bell

drawn by...SouthwestCotton...and reaffirmed...today is,
to some extent, artificial and fluid.... However, we do
not feel free to redraw or erase that line.' But, the
CO.llrt indicated a Willingness to consider' expanding
uponSoutJJwest . Cotton, saying, 'Differences in
geology and hydrology from location to location may
require that different criteria be given more or less
emphasis depending on the area..' It said further;
'Part of a [well's) production may be appropriable
subflow and part of it may not.'

WATER OUAUTY

Clean Waer Act-Reauthorizalio

EPA Administrator Carol Browner said recently that
the agency will likely provide Congress with proposed
legislation to reauthorize the Comprehensive
Environmental Response, Compensation, and Uability
Act, the Clean Water Act, and, at a minimum, a
revolving loan fund program for the Sate Drinking
Water Act. Among the agency's CWA priorities are
expanded flexibility in the state revolving loan fund,
control of diffuse sources of pollution, pollution
prevention, watershed protection, and wetlands. The
Senate Environment. Committee.nopes to have a bill
on the Senate ,floor by the end of this year,whilila bill
has not yet been introduced in the House.. The
implications of. EPA's intended actions .on CWA
reauthorization timing are unclear.

WATER RESOURCES

UtahI\..ilIIe Del Dam .

In anticipation of the dedication of the U.S. Army
Corps of Engineers' Little Dell Dam former Utah
Senator Jake Garn said, 'If I have to crawl on my
hands and knees, I'll be there.... After 25 years, I feel