The answers to these questions are provided for informational purposes only. They are not intended to provide comprehensive guidance and are not intended to serve as legal advice. If you have legal questions about your specific circumstances, you should consult with an attorney.
ELECTION TO DESIGNATE AMA FOR THE WILLCOX BASIN
PURSUANT TO THE CERTIFIED 2022 GENERAL ELECTION RESULTS OF GRAHAM AND COCHISE COUNTIES- Proposition 420, calling for the designation of the Willcox AMA, failed to pass with 31 yes votes and 82 no votes in Graham County and 1,461 yes votes and 2,443 no votes in Cochise County. The prohibition on new irrigation has been lifted.
On August 30, 2022, in response to a petition that was filed by residents pursuant to A.R.S. § 45-415, the Board of Supervisors of Cochise County and Graham County called for an election, to be held on November 8, 2022, on whether to designate the Willcox Groundwater Basin as an active management area (“AMA”).
NOTICE: Pursuant to A.R.S. § 45-416, only those lands that were legally irrigated in the five years preceding that date (August 30, 2022) may be irrigated within the basin. “Irrigate” means to apply water to two or more acres of land to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock, or poultry. A.R.S. § 45-402. This prohibition will remain in effect until the results of the election are certified.
If the election results in the designation of an AMA, the prohibition on irrigation of new acres within the basin (with certain limited exceptions) would remain in effect permanently. Additionally, if an AMA is designated, a person may withdraw groundwater from a well having a pump with a maximum capacity greater than 35 gallons per minute (“non-exempt well”) only if the person holds a right or permit to withdraw the groundwater. Generally, within an AMA, a person may withdraw groundwater for a non-irrigation use from a well having a pump with a maximum pump capacity of 35 gallons per minute or less (“exempt well”) without a right or permit. However, there are some limitations on the use of exempt wells within AMAs.
If the election does not result in the designation of an AMA, the prohibition on the irrigation of new acres within the sub-basin will be lifted.
ADWR has received a number of questions about possible water-related regulations that would be administered by ADWR if the Willcox Groundwater Basin is designated as an AMA. The answers to these questions are provided for informational purposes only. They are not intended to provide comprehensive guidance and are not intended to serve as legal advice. If you have legal questions about your specific circumstances, you should consult with an attorney.
Please note that ADWR has prepared a separate FAQ regarding the pending election to designate the Douglas Groundwater Basin as an AMA. Because the Douglas Groundwater Basin contains an Irrigation Non-Expansion Area and the Willcox Groundwater Basin does not, some of the answers provided in that FAQ differ from the answers provided below.
On August 16, 2022, ADWR held an informational meeting regarding the proposed AMAs for the Willcox and Douglas Basin. The recording and presentation from that meeting can be found here
1. Q: What is an AMA?
A: Active Management Areas, or AMAs, are areas within the state that are subject to certain statutory and administrative regulations regarding the withdrawal and use of groundwater, or in the case of the Santa Cruz AMA, the withdrawal and use of any water, other than stored water, withdrawn from a well. Currently, there are five AMAs in Arizona – Prescott, Phoenix, Pinal, Tucson, and Santa Cruz. All five AMAs were designated by statute.
Each AMA must have a management goal, which guides water management in the AMA. The management goals for the existing AMAs are set forth in statute. The Director of ADWR is required to adopt a management plan for each AMA that is updated on a periodic basis and that must be designed to assist the AMA in reaching or maintain its management goal. Management plans for existing AMAs can be viewed on ADWR’s website.
Another feature of AMAs is that they are subject to assured water supply requirements for new subdivisions. Within an AMA, a developer of a proposed subdivision (six lots or more) must have a 100-year assured water supply in order to obtain plat approval and offer lots for sale. A developer may demonstrate an assured water supply by either (1) obtaining a commitment of water service from a water provider that has been designated by ADWR as having an assured water supply, or (2) obtaining a certificate of assured water supply from ADWR by demonstrating that the subdivision will have a 100-year assured water supply.
2. Q: What lands fall within the boundaries of the new AMA proposed by the petition?
A: The petition proposes to designate the Willcox Groundwater Basin as an AMA through election. The Willcox Groundwater Basin is located in portions of Cochise County and Graham County. A map of the boundaries of the basin is provided below.
3. Q: Are there new prohibitions on water use that would become effective before the election?
A: If an election on the question of whether to designate the Willcox Groundwater Basin as an AMA is called by the Board of Supervisors of Cochise County, persons may only irrigate those acres of land within the proposed AMA which were legally irrigated at any time during the five years preceding the call for the election. A.R.S. § 45-416.
“Irrigate” means to apply water to two or more acres of land to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock or poultry.
The limitation on the acres that may be irrigated within the area would continue until the final results of the election on whether to designate the Willcox Basin as an AMA are certified by the Board of Supervisors of Cochise County and the Board of Supervisors of Graham County. If the election results in the designation of an AMA, this prohibition would remain in effect, as described more fully in the response to Question No. 4 below. If the election does not result in the designation of an AMA, this prohibition would be lifted.
4. Q: If an AMA is designated, what land may be irrigated?
A: In a subsequent AMA (an AMA established after 1980), only acres of land that were legally irrigated at any time prior to the five years preceding the call for an election may be irrigated with any water, except as provided below.
Acres of land that were not irrigated during the relevant five-year time period may be irrigated with a decreed or appropriative (surface) right established before the date of the call for the election.
Acres of land not irrigated during the relevant five-year time period may be irrigated if a substantial capital investment (SCI) has been made to bring the land into irrigation within a particular window time. SCI is discussed below at Question No. 7.
5. Q: If an AMA is designated, who would be allowed to withdraw groundwater?
A: Within an AMA, a person may withdraw groundwater from a well having a pump with a maximum capacity greater than 35 gallons per minute (“non-exempt well”) only if the person holds a right or permit to withdraw the groundwater.
Generally, a person may withdraw groundwater for a non-irrigation use from a well having a pump with a maximum pump capacity of 35 gallons per minute or less (“exempt well”) without a right or permit. However, there are some limitations on the use of exempt wells within AMAs. Some of these limitations include:
- Only one exempt well may be used to serve the same use at the same location.
- Withdrawals from an exempt well for a commercial purpose are limited to 10 acre-feet per year.
6. Q: How does someone obtain a right or permit to withdraw groundwater if an AMA is designated?
A: If an election results in the designation of an AMA, individuals and entities seeking to claim a grandfathered right would be required to apply for a certificate of grandfathered right no later than fifteen months after the date of the designation of the AMA, in accordance with A.R.S. § 45-476.
Grandfathered rights are withdrawal rights based on historic pumping (the five-year period preceding the call for the election or the five-year period preceding the designation of the AMA, depending on the type of right).
The three types of grandfathered rights are:
1. Irrigation Grandfathered Rights, which allows the holder to irrigate acres of land that had been irrigated within the five-year time period preceding the call for the election. Land without an Irrigation Grandfathered Right may not be irrigated with groundwater. An Irrigation Grandfathered Right may not be sold apart from the associated land.
2. Type 1 Non-Irrigation Grandfathered Rights, which is associated with land permanently retired from farming and converted to a non-irrigation use: e.g., building a new industrial plant or a subdivision. This right, like an Irrigation Grandfathered Right, may be conveyed only with the land. The maximum amount of groundwater that may be pumped each year using a Type 1 right is three acre-feet per acre, though it may be less.
3. Type 2 Non-Irrigation Grandfathered Rights, which can only be used for a non-irrigation purpose. The right is based on historical pumping of groundwater for a non-irrigation use and equals the maximum amount pumped in any one year in the five-year period preceding the designation of the AMA. Examples of non-irrigation uses include industry, livestock watering, and golf courses. Type 2 rights are the most flexible because they may be sold separately from the land or well. In addition, the owner of a Type 2 right may, with ADWR approval, withdraw groundwater from a new location within the same AMA. It is possible to lease a portion of a Type 2 right, but if the right is sold, it may not be divided; instead, the entire right must be sold.
Cities, towns, private water companies and irrigation districts would be required to obtain a service area right to withdraw groundwater for delivery to landowners and residents within their service area.
If an AMA is designated, groundwater withdrawal permits may be obtained through application to ADWR if certain criteria are met. Groundwater withdrawal permits allow pumping in specific circumstances, usually for non-irrigation uses, that are set forth in statute. These permits are for a limited period of time. Examples, include the following:
- Hydrologic testing permits
- Poor quality groundwater withdrawal permits
- Temporary permits for electrical energy generation in emergency situations
- Mineral extraction and metallurgical processing permits
- Drainage and dewatering permits
- General industrial use permits
7. Q: What happens if someone has made investments to begin irrigation, but has not started irrigating before restrictions are in place?
A: In a subsequent AMA, land that was not irrigated during the five years preceding the call for the election “is deemed to have been in irrigation if substantial capital investment has been made for the subjugation of such land for an irrigation use including on-site irrigation distribution facilities and a well or wells the drilling and construction of which were substantially commenced before the date of the ... call for the election.” A.R.S. § 45-452(G)(1).
Substantial capital investment (SCI) must have been made in the five years preceding the call for the election on whether to designate the AMA. If an AMA is created, property owners who believe they qualify for consideration of SCI may apply to ADWR, and ADWR will evaluate each application on a case-by-case basis.
Examples of documentation previously used by ADWR to make determinations on applications for the consideration of substantial capital investment (SCI) in granting a Notice of Groundwater Authority ("60") in an INA or Certificate of Grandfathered Groundwater Right ("78") in an AMA can be found on ADWR’s website here
. These examples are being provided for informational purposes only. Please note that the standard for establishing SCI in statute differs depending on the location of the lands associated with the application. Therefore, some or all of these examples may not be relevant to all applications in a future AMA.
Because the inquiry is very fact-specific, ADWR cannot make SCI findings or provide SCI interpretations prior to the designation of an AMA.
8. Q: If an AMA is designated, will groundwater users be required to meter and report groundwater withdrawals?
A: Within AMAs, with a few narrow exceptions, persons withdrawing groundwater from non-exempt wells (wells having a maximum pump capacity greater than 35 gallons per minute) are required to measure their groundwater withdrawals with a measuring device and method that is approved by ADWR and must report the groundwater withdrawals to ADWR.
Persons withdrawing groundwater from exempt wells (wells having a pump with a maximum pump capacity of 35 gallons per minute or less that are used for a non-irrigation use) generally are not required to measure and report the groundwater withdrawals.
9. Q: If an AMA is designated, will persons who withdraw groundwater be required to pay a withdrawal fee?
A: Under the current statutes, there is no requirement for persons withdrawing groundwater in a subsequent AMA (an AMA formed after 1980) to pay a groundwater withdrawal fee. There are other fees that may apply within a subsequent AMA, including, for instance, a water quality assurance fee applicable to persons who own a Type 1 or Type 2 Non-irrigation Grandfathered Right or who holds a groundwater withdrawal permit for beneficial use (See A.R.S. § 45-616).
10. Q: If an AMA is designated, how will the management goal and management plan be established?
A: If a new AMA were designated by election, the Director of ADWR would propose a management goal for the AMA and the number of years in which the goal is to be achieved. A.R.S. § 45-569(A).
The Director of ADWR would be required to promulgate an initial management plan for the AMA not later than two years after the designation of the AMA. The Director may provide for subsequent management plans to be promulgated during the time set for achieving the management goal. A.R.S. § 45-569(B).
Prior to adopting the management goal and the management plan, the Director would appoint an area director for the AMA, and the Governor would appoint members to a groundwater users advisory council (GUAC) for the AMA. The GUAC would consist of five members chosen to represent users of groundwater in the AMA on the basis of their knowledge of, interest in and experience with problems relating to the development, use and conservation of water. The area director and the GUAC would provide input to the Director regarding the proposed management goal and management plans. A.R.S. § 45-421(1).
Additionally, prior to adopting a management plan, the Director would conduct a public hearing on the proposed goal and proposed management plan in accordance with A.R.S. § 45-570. Local residents would have an opportunity to provide oral or document evidence for or against the adoption of the management plan, including the management goal.
11. Q: If an AMA is designated, how will water duties be determined?
A: Within AMAs, the calculation of water duties is made, at least in part, with reference to requirements contained in the management plans for the AMAs. Because ADWR would adopt management plans in accordance with the process described in response to Question No. 10 above, ADWR cannot provide information about how water duties would be determined at this time.
12. Q: Who is allowed to vote in the election?
A: Registered voters residing within the boundaries of the proposed AMA are eligible to vote. More specific questions about voting eligibility should be directed to state or local election officials.
Answers To Questions Presented at the Public Meeting
Question: What changes would occur to the rules about transportation of groundwater if an AMA is designated?
Answer: As a general matter, outside of AMAs, groundwater may not be transported away from a groundwater basin. There are certain exceptions, which can be viewed at A.R.S. § 45-544(B), all of which are subject to the payment of damages to injured landowners. One exception allows transportation occurring as of January 1, 1993, to continue and expand so long as it is done by the same person for the same purpose. Another exception allows a city, town or private water company whose service area is in two adjacent basins and who served customers in both basins as of July 1, 1993 to transport groundwater between the basins. Another exception allows water to be transported for mineral extraction and processing. (There are additional exceptions for transportation from certain basins into initial AMAs that are not applicable here.) Groundwater may be transported away from AMAs in accordance with the following:
- Subject to certain limitations on use:
- Pursuant to an IGFR
- Pursuant to a Type 1 Grandfathered Right (with additional limitations not relevant to the Douglas or Willcox Groundwater Basins) Subject to the payment of damages to injured landowners:
- Pursuant to Type 2 Grandfathered Right
- By a city, town, private water company, or irrigation district within its service area
- Pursuant to a groundwater withdrawal permit
- From an exempt well
Question: If an AMA is established, what limitations on drilling, deepening or replacing an exempt well in an AMA apply?
Answer: Exempt wells are wells that are used for a non-irrigation use and that have a pump capacity of 35 gallons per minute or less. Within an AMA, exempt wells would continue to be subject to certain statewide requirements, including requirements that the well owner file a notice of intention to drill with ADWR, use a licensed well driller, comply with construction standards established by ADWR, and file completion reports with ADWR. As is currently the case outside of AMAs, applicants for exempt wells that are located on a parcel of land of five or fewer acres that will be used for a domestic purpose must submit a site plan that, among other things demonstrates that well will not be drilled within 100 feet of a septic tank or sewer system and demonstrates approval by the county health authority. A.R.S. § 45-596(F). Within an AMA, there are some limitations on the use of exempt wells, including the following: Only one exempt well may be used to serve the same use at the same location. Withdrawals from an exempt well for a commercial purpose are limited to 10 acre-feet per year.
Question: What are the well-spacing requirements within AMAs?
Answer: In AMAs, non-exempts wells may be drilled, replaced or deepened only with the approval of the Director. Those applications are subject to rules governing the location of new wells and replacement wells to “prevent unreasonably increasing damage to surrounding land or to other users from the concentration of wells.” A.R.S. § 45-598(A). Those rules may be viewed at R12-15-1301, et seq. https://apps.azsos.gov/public_services/Title_12/12-15.pdf
Question: If an AMA is designated, will there be an opportunity for people to challenge applications for grandfathered rights based on substantial capital investment?
Answer: If an AMA is designated, the Director of ADWR will establish a directory of all applications that are received for a certificate of grandfathered right and will provide a notice of the availability of the registry after the deadline for filing applications has passed. Any person residing in the AMA will be permitted to file a written objection to any application and request a hearing on the application within 180 days of the date of the Director’s notice. Objections may be made only on the basis that the information in the application is incorrect or insufficient to issue a certificate. Procedures for holding the hearings are set forth in A.R.S. § 45-480.
Question: What water quality standards does ADWR evaluate when considering an application for assured water supply?
Answer: The Department evaluates water quality for Assured Water Supply applications under A.A.C. R12-15-719. Under that rule, the applicant can demonstrate water quality by certifying that the applicant or the proposed water provider will be regulated as a public water system by the Arizona Department of Environmental Quality (ADEQ) or another government entity with equivalent jurisdiction, unless ADEQ or another government entity with equivalent jurisdiction has determined that the water system is in significant non-compliance with water quality requirements. If the applicant or proposed water provider will not be regulated by ADEQ or another government entity with equivalent jurisdiction, then the applicant must submit a lab analysis to ADWR demonstrating that the water meets water quality requirements in accordance with A.A.C. Title 18, Chapter 4, or that the water will meet these requirements after treatment that is required by law. In addition, if the well or proposed wells from which the water will be withdrawn are within a mile of a WQARF site or Superfund site, the applicant must submit a contaminant migration and mitigation analysis, demonstrating that the water supply will continue to meet the requirements in A.A.C. Title 18, Chapter 4 for 100 years.
Last updated on December 7, 2022