Run into the Ground? How to Manage the Difficulties of Groundwater Regulation in Arizona

Irrigation

In the summer of 2022, Arizona lawmakers delivered a water augmentation fund totaling over $1 billion, after the federal government warned the seven states that utilize the Colorado River that the states would have to make major utilization cutbacks.^[1] Democrats managed to secure $200 million for a water conservation grant fund, but one of the glaring problems with the bill was the lack of groundwater pumping regulation. Rural counties have been pushing for groundwater protection programs for several years, as unchecked groundwater pumping has threatened some smaller communities’ opportunity to grow. Despite momentum from the public in support of groundwater regulation, the Arizona Legislature faced significant pushback from private water companies’ interests, agricultural associations, and homebuilders which led to the regulation not being included in the water bill.^[2]

Old History with New Implications

Arizona’s groundwater pumping problem is nothing new. Due to the limited supply of surface water, groundwater resources were overexploited as early as the 1930s.^[3] This can be attributed to Arizona’s typical treatment of groundwater as subject to reasonable use, which means that anyone pumping groundwater can pump as much as they can possibly put towards a “reasonable use” above ground. In order to combat the overuse of groundwater, Arizona established a permitting system for groundwater collection under the Groundwater Management Act (“GMA”) in 1980. However, the GMA only regulates certain areas, and the rural areas outside of the GMA’s reach continue to utilize the reasonable use doctrine, which means that landowners can draw water without limit, as long as they put the water to a reasonable and beneficial use. This creates a highly competitive environment in which builders, developers, and commercial agriculture entities can draw as much water as they want, creating an environment in which the deepest well often wins. Arizona is already combatting the steady decrease in flow from the Colorado River, and the depletion of groundwater resources could quickly become a severe hindrance in Arizona’s ability to meet its water needs.

Rural Regulation

The rural problem in Arizona stems from the initial regulation of groundwater through the GMA. In its original adoption in 1980, the GMA established five Active Management Areas (“AMA”) of groundwater regulation, covering about 80% of the state’s population.^[4] However, the original five AMA’s cover a relatively small portion of the state’s actual land mass, which means that while a large part of the population is regulated in their groundwater usage, entities such as commercial agriculture are unlikely to fall within the designated zone of regulation. The impact of this structure is immense. First, since the relative impact of groundwater usage in relation to population is small, it is hard to muster statewide support for the issue, as it involves a smaller number of voters. Second, because of the condition of Arizona’s water resources, the longer the groundwater is pumped without restraint, the larger the future impact will be on Arizona’s economy and water regulation. Having to get water from outside sources, such as a desalination plant in the Sea of Cortez, is vastly more expensive than utilizing in-state resources, such as groundwater.^[5] This predicament leads to the ultimate question: What can be done?

The Solution to Groundwater Greed

Several options exist to curb the glaring problem of unregulated groundwater pumping. The first involves utilization of the GMA which has already been an option that Arizona has taken advantage of recently. In 2022, for the first time since 1980, the Arizona Department of Water Resources designated the water basins around Douglas and Kingman as AMAs.^[6] This was achieved through a localized ballot initiative, which means that only the voters who would be impacted by the groundwater regulation get to vote on it. This type of community-based regulation is the ideal solution to the groundwater problem in Arizona. It allows the people who are impacted by the unlimited usage to have a direct say in the problem. However, as is evidenced by the lone example of local regulation under the GMA in over 40 years, it is remarkably difficult to get this measure on the ballot and passed.

The second solution would be statewide legislation that overrides the GMA, but, as was apparent in the 2022 water bill, the private entity opposition to this regulation makes wide-ranging legislation difficult.^[7] The bill was not a complete solution either, as it sought to direct funding to the groundwater problem, while innovative and new ideas for groundwater use were under-utilized. The legislature thus faces the acceptance of a halfway solution in the water bill, mostly through new funding, and a broader systemic revamping that would face significant difficulties in gaining partisan support. The legislature could either accept suggestions from the Governor’s Water Council or formulate an entirely new form of regulation, which would replace the 1980 GMA. Again, both solutions are likely to face problems in drumming up support on both sides of the aisle, so if one party does not have a significant majority, legislation could be dead in the water.

A final solution lies with the Governor’s office. Governor Katie Hobbs has already begun to utilize her resources by formulating the Governor’s Water Policy Council by executive order on January 9, 2023.^[8] This Council was charged with analyzing and recommending updates to the GMA, which could include expanding the reach of the Act to include all of the landmass of Arizona. There is also a Rural Groundwater Committee that is a subsidiary of the Governor’s Water Policy Council which is tasked with the specific issue of the regulation of rural groundwater. This committee has come up with a litany of solutions to the problem, including voluntary groundwater monitoring by the entities involved, a separate program that allows local areas to regulate groundwater in their region, and a limitation on new wells in rural areas.^[9] However, all of these suggestions and alternative solutions point to a single course of action. Similar to the formation of the Water Policy Council in general, the only way that rural areas will be protected from unlimited groundwater pumping at this point is through executive action. This has been acknowledged by many directly involved with the Rural Groundwater Committee, including by outside environmental organizations.^[10] Thus, Governor Hobbs must expand enforcement of the GMA to rural communities, or declare an emergency based on the looming water crisis in Arizona.

Conclusion

The legislature of Arizona has fallen short on the issue of groundwater pumping in rural Arizona communities. While local action establishing new AMAs under the GMA has seen recent success, it is the first example of that particular strategy working in over 40 years. This ties the hands of the Arizona population and government. Governor Hobbs needs to take executive action in order to address the looming emergency that the groundwater pumping problem will likely contribute to if it continues unchecked. Governor Hobbs needs to either expand the enforcement of the GMA to include rural communities, or declare an emergency related to the water depletion in rural groundwater resources and regulate using her emergency powers. One thing is for certain. If no one acts soon, it will be entirely too late to head off the impending crisis that unchecked groundwater pumping has placed in Arizona’s future.