By Evan Bolick, Rose Law Group Litigator
Yesterday the Arizona Supreme Court issued an important ruling relating to water rights. Here’s a link to the opinion – and a brief summary of the highlights below.
- MAIN QUESTION – Is ADWR required to consider unquantified federal reserved water rights when determining the adequacy of developers’ water supplies? MAJORITY says no.
- Acknowledges that counties may (but are not required) to make developers demonstrate they have an adequate water supply. This requires (1) a showing that there is water legally and physically available to satisfy 100 year demand needs; and (2) developer shows it has the financial capability to construct water facilities making water capable for use.
- Physical availability requires a hydrology study and does NOT require consideration of unquantified federal reserved water rights.
- Court of appeals erred in considering projected declines in groundwater supply when considering physical availability.
- Legal availability also does not require consideration of unquantified federal reserved water rights.
- Legal availability should be interpreted in accordance with ADWR’s prior construction/regulations.
- CC&N’s are compelling evidence of legal availability of a 100 yearwater supply and can be supplemented by ACC orders and regulations.
- In adopting the water statutes, legislature struck a balance between consumer protection from unscrupulous developers and property right to develop land.
- Requiring ADWR to consider unquantified federal reserved water rights when considering legal, physical, or continuous availability would require ADWR to engage in too speculative of an analysis.
- If we want more rigorous assessment, consideration of unquantified federal reserved water rights, or stronger consumer protections, legislatureshould amend the statute.
- Does not decide, but heavily suggests, that quantified federal reserved water rights need to be considered in a legal availability analysis.