Arizona Municipal Water Users Ass'n v. Arizona Department of Water Resources

888 P.2d 1323, 181 Ariz. 136, 165 Ariz. Adv. Rep. 7, 1994 Ariz. App. LEXIS 101
CourtCourt of Appeals of Arizona
DecidedMay 17, 1994
Docket1 CA-CV 91-0581
StatusPublished
Cited by5 cases

This text of 888 P.2d 1323 (Arizona Municipal Water Users Ass'n v. Arizona Department of Water Resources) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona Municipal Water Users Ass'n v. Arizona Department of Water Resources, 888 P.2d 1323, 181 Ariz. 136, 165 Ariz. Adv. Rep. 7, 1994 Ariz. App. LEXIS 101 (Ark. Ct. App. 1994).

Opinion

OPINION

TOCI, Judge.

This appeal involves a dispute between the Arizona Department of Water Resources (“the Department”) and the Arizona Municipal Water Users Association (“the Association”), a non-profit corporation composed of a *137 number of Arizona cities and towns, 1 as to how the Groundwater Code is to be interpreted.

According to a groundwater management plan authorized by statute, the Department establishes a municipal water provider’s total gallons per capita per day (“GPCD”) requirement. This GPCD requirement limits the total amount of water that such provider is legally entitled to “withdraw, divert or receive” during the year. In simple terms, if the total amount of water used by a municipal provider from all sources, including groundwater, exceeds the provider’s GPCD requirement, the provider is out of compliance with the management plan to the extent that groundwater usage makes up the excess. Although the management plan includes water from all sources in determining whether a municipal provider has exceeded its GPCD requirement, groundwater usage is counted last. According to the management plan:

This is consistent with the intent of the Groundwater Code that other available sources of water be used before groundwater is used. It also allows the Department to determine whether, and to what extent, the provider has failed to reasonably reduce its per capita use of groundwater. If the total amount of water used by the provider during the year exceeds the amount of water reasonably necessary for its use, as reflected in its total GPCD requirement, the provider has failed to conserve the groundwater included in the excess.

Arizona Department of Water Resources, Management Plan for the Second Management Period, 1990-2000: Phoenix Active Management Area 264 (1991) (“Second Management Plan”).

The basic question for decision is whether, in calculating if a municipal provider of groundwater is in compliance with the limitations for groundwater usage that have been placed upon it by the Department, recovered effluent is to be included or excluded from consideration. If recovered effluent is excluded from the calculation, a municipal provider may use more groundwater in meeting its requirements and still remain in compliance with the plan.

I. STATUTORY BACKGROUND

In 1980, the legislature found that the depletion of the state’s underground water resources threatened the economy and general welfare of the state. Ariz.Rev.Stat.Ann. (“A.R.S.”) § 45-401(A) (1994). In the interest of protecting and stabilizing the general economy and welfare, the legislature enacted the Groundwater Code to “conserve, protect and allocate the use of groundwater resources of the state and to provide a framework for the comprehensive management and regulation of the withdrawal, transportation, use, conservation and conveyance of rights to use the groundwater in this state.” A.R.S. § 45-401(B). To further this policy, the legislature delineated four initial active management areas (“AMA”) 2 where groundwater overdraft was most severe.

The legislature directed the Department to develop a forty-five year conservation and management program and to implement such program through a series of five management plans for each initial AMA. A.R.S. § 45-563 (1994). The water management goal for the Phoenix, Prescott, and Tucson AMAs is “safe yield” 3 by January 1, 2025. A.R.S. § 45-562(A) (1994). To achieve this *138 management goal, the legislature required the Department to include in each AMA management plan a “continuing mandatory conservation program for all persons withdrawing, distributing or receiving groundwater designed to achieve reductions in withdrawals of groundwater.” A.R.S. § 45-563.

For the first management period, 1980 to 1990, the Groundwater Code required the Department to establish for each initial AMA a “conservation program for all non-irrigation uses of groundwater.” A.R.S. § 45-564(A)(2) (1994). The term “ ‘non-irrigation use’ means a use of groundwater other than irrigation use”; this term includes municipal uses. A.R.S. § 45-402(26). For municipal uses, “the program shall require reasonable reductions in per capita use” of groundwater. A.R.S. § 45-564(A)(2). Complying with this legislative mandate, in 1984, the Department adopted the First Management Plan for the Phoenix AMA.

Under the First Management Plan, large municipal water providers were required to either maintain or reduce the GPCD consumption of groundwater by their customers. In other words, the customer’s per capita requirements established the limit on usage under the First Management Plan. In determining whether a municipal water provider exceeded its GPCD limit, the Department did not count effluent 4 “withdrawn, diverted, or received by the municipal provider for non-irrigation use.” Arizona Department of Water Resources, Management Plan for First Management Period, 1980-1990: Phoenix Active Management Area 79 (1984). The First Management Plan remained in effect until the effective date of the Second Management Plan. A.R.S. § 454564(C).

In 1986, the legislature enacted the Underground Water Storage Act (“Storage Act”), A.R.S. sections 45-801 through 45-895 (1994), to help reduce overdraft of water resources, to provide water in times of shortage, and to increase the water supply for future growth and development. A.R.S. § 45-801 (1994). The Storage Act requires that the Department must issue a permit before an underground storage and recovery project may be operated. A.R.S. § 45-804(A) (1994). A permit holder may recover water that has been stored underground, A.R.S. section 45-807 (1994), but the holder may use or exchange the recovered water “only in the manner in which it was permissible for the holder to use or exchange the water before it was stored underground,” A.R.S. section 45-808 (1994). By means of storage accounts, the Department monitors the amount of water each project stores and recovers. A.R.S. § 45-809 (1994).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Rojers
169 P.3d 651 (Court of Appeals of Arizona, 2007)
Arizona Water Co. v. Arizona Department of Water Resources
91 P.3d 990 (Arizona Supreme Court, 2004)
Arizona Water Co. v. Arizona Department of Water Resources
73 P.3d 1267 (Court of Appeals of Arizona, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
888 P.2d 1323, 181 Ariz. 136, 165 Ariz. Adv. Rep. 7, 1994 Ariz. App. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-municipal-water-users-assn-v-arizona-department-of-water-arizctapp-1994.