An obscure, long-running lawsuit regarding water rights in Arizona affects every water right claimed on the Gila and Little Colorado Rivers and their tributaries in the state. Because of the uncertainty surrounding who owns which water rights, securing water for environmental purposes faces an uphill battle. To facilitate innovative and market-driven deals to secure water for specific purposes (like water for in-stream flows that benefit wildlife and fish) Arizona needs to determine who has the legal right to what water.
Called the General Stream Adjudications, the eventual court decision (or negotiated settlement) will also determine if and when it is permissible to withdraw water from wells adjacent to rivers and streams.
Water in much of the West is governed by the doctrine of prior appropriation, meaning the first person to put the water to “beneficial” use is the first person in line to receive that water. This doctrine applies to surface water rights within Arizona (not groundwater or Colorado River supplies). When water rights are known and quantified, with a priority date (the earlier the better), there is transparency and certainty in the system. Parties can negotiate and work out deals to lease and transfer water when it is known who has what water right.
As the Kyl Center for Water Policy’s 2018 publication The Price of Uncertainty states: “When people, businesses and communities don’t know how much water they have a right to, they cannot plan for their future water needs or ensure their long term water sustainability. And this uncertainty constrains actions, threatening sound water stewardship and economic growth.”
Stanford’s Water in the West program put out a scorecard on the various states in the Colorado River Basin and how their laws promote or hinder environmental water transactions. Arizona received the lowest score for two main reasons: “First, the statutory framework is not well developed, creating legal and procedural uncertainty. Second, surface water rights in Arizona are not well-defined and quantified, making transfers more difficult.”
Another issue is that the Arizona Department of Water Resources (ADWR) does not have adequate funding for staff who are needed to collect and analyze mountains of hydrological and historical data—information that is needed for continued progress on the lawsuit or to reach a negotiated settlement. ADWR serves as the independent technical advisor to the Adjudication Court, and many aspects of the case simply cannot move forward until ADWR completes certain tasks. This helps the court make accurate and informed determinations for would-be water rights holders. Other proactive steps the state can take include equipping the judges and courts handling these water rights cases with the personnel they need to move cases along through the judicial process.
Conservation organizations like Audubon are interested in working with water rights holders to find win-win solutions for people and birds. However, we need more certainty surrounding water rights to be able to find potential solutions in our increasingly arid climate. If we want to improve the outlook for birds and habitat associated with rivers, we need to resolve the uncertainty that surrounds water rights in Arizona.