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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
AMENDED
Harquahala non-expansion area; groundwater transportation
Purpose
Allows a person that owns outlined land within an active management area (AMA) to permanently relinquish all or a portion of an irrigation grandfathered right in exchange for a physical availability exemption credit. Allows the Director of the Arizona Department of Water Resources (ADWR), on application by a city or town, to designate a portion of the city or town that is located both in the area delineated for exemption and in the Phoenix AMA as having an assured water supply. Allows a municipal provider that applies for a new designation of assured water supply pursuant to adopted rules in the Phoenix AMA that relies on a member service area agreement to elect for all parcels of member land in the municipal service area to retain a replenishment obligation. Allows a prescribed entity that owns land eligible to be irrigated in the Harquahala Irrigation Non-Expansion Area (INA) to withdraw groundwater for transportation, as outlined.
Background
Irrigation Grandfathered Rights
An irrigation grandfathered right is granted to a person who owns land within an AMA which was legally irrigated in whole or in part with groundwater at any time during the five years preceding January 1, 1980, for initial AMAs, or the date of the notice of the initiation of designation procedures or the call for the election for subsequent AMAs (A.R.S § 45-465). Non-irrigation use is a use of groundwater other than irrigation use. Irrigation use is the use of groundwater on 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).
Assured Water Supply
A person who proposes to offer subdivided lands for sale or lease in an AMA must apply for and obtain a certificate of assured water supply from the Director of ADWR before presenting the plat for approval to the city, town or county in which the land is located, if required, and before filing with the State Real Estate Commissioner a notice of intention to offer such lands for sale or lease, unless the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply (A.R.S § 45-576).
In an AMA, a city, town or private water company or irrigation or water conservation district may withdraw groundwater only pursuant to the established groundwater rights, except as provided by a grandfathered right or as otherwise stated (A.R.S. § 45-491).
Current statute prohibits the groundwater rights and uses of service areas from being construed to enlarge the authority of an irrigation or water conservation district to withdraw and distribute groundwater for municipal or industrial purposes (A.R.S. § 45-497).
Groundwater Replenishment Obligation
For each active
AMA in which member lands or member service areas are or may be located, the irrigation
or water conservation district must replenish groundwater in an amount equal to
the groundwater replenishment obligation for that AMA. If a parcel of member
land is included in the service area of a municipal provider that is not a
member service area but that has been designated as having an assured water
supply, the parcel of member land has no parcel replenishment obligation, and
the irrigation or water conservation district has no groundwater replenishment
obligation attributable to that parcel of member land for as long as the
designation remains in effect. Additionally, if a parcel of member land is
included in the service area of a municipal provider that is a member service
area and that has been designated as having an assured water supply, the parcel
of member land has no further parcel replenishment obligation (A.R.S.
§ 48-3771).
Groundwater Withdrawal from the Harquahala INA
A groundwater replenishment district may lease the use of one or more of the wells from an irrigation district located entirely within the Harquahala INA to withdraw groundwater from a depth to 1000 feet, at an established rate. The state or a political subdivision of the state that owns land eligible to be irrigated in the Harquahala INA may withdraw groundwater from the land for transportation to an initial AMA for its own use or use by the Arizona Water Banking Authority as prescribed (A.R.S. § 45-554).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Physical Availability Exemption Credit
1. Allows a person who owns land within an AMA that may be irrigated with groundwater pursuant to an irrigation grandfathered right to permanently relinquish all or a portion of the irrigation grandfathered right in exchange for a physical availability exemption credit if:
a) the irrigation grandfathered right has been exercised in at least one of the last five calendar years; and
b) the person's use of the irrigation grandfathered right complies with the Groundwater Code and the applicable management plan.
2. Requires the volume of groundwater that may be withdrawn and used annually per acre to be the lesser of either:
a) the maximum amount of groundwater that a person may use pursuant to an irrigation grandfathered right for the acre at the time it is relinquished; or
b) if
the irrigation grandfathered right is relinquished by December 31, 2035, two
acre-feet multiplied by the retired irrigation acres in the farm or portion of
the farm, or if the irrigation grandfathered right is relinquished on or after
January 1, 2036, one and
five-tenths of an acre-foot multiplied by the retired irrigation acres in the
farm or portion of the farm.
3. Requires the Director of ADWR to identify all of the following when issuing a physical availability exemption credit:
a) the volume of groundwater that may be withdrawn and used as calculated;
b) the number and location of the acres that are associated with the relinquishment;
c) the wells that have been used to serve the irrigation grandfathered right; and
d) the owner of the land at the time of the relinquishment, which must be the holder of the physical availability exemption credit.
4. Requires the volume of groundwater calculated, on request of the holder of a physical availability exemption credit and for purposes of an application for an assured water supply, to be exempt from the requirement to demonstrate that the groundwater supply is physically available if:
a) the proposed groundwater use associated with an application for an assured water supply must be on one or more of the following locations:
i. the retired irrigation acres;
ii. land that is under common ownership and contiguous to the retired irrigation aces, including land separated by a barrier, road, highway, easement or right-of way; or
iii. land within one mile of the exterior boundary of the retired irrigation acres;
b) the applicant for an assured water supply proposes to withdraw groundwater from one or more of the following locations:
i. wells that were used to serve the irrigation grandfathered rights;
ii. wells located within one mile of any well that was used to serve the irrigation grandfathered right;
iii. wells located on the acres associated with the relinquishment; or
iv. wells located within one mile of the acres associated with the relinquishment; and
c) the applicant demonstrates, using a method of analysis approved by the Director of ADWR, that groundwater can be withdrawn to serve the proposed use for 100 years without exceeding the depth of the aquifer or the irrigation grandfathered right, whichever is less.
5. Requires the entire parcel, for the purposes of land within one mile of the exterior boundary of the retired irrigation acres, to be included.
6. Prohibits the Director of ADWR from considering other withdrawals of groundwater that exceed the depth of the aquifer or the applicable depth-to-static water level during that 100-year period.
7. Allows the applicant, for groundwater withdrawals located within one mile of any wells that was used to serve the outlined irrigation grandfathered right, to rely on the Director of ADWR's most recent assured water supply projection to satisfy this requirement.
8. Requires the Director of ADWR, on request from the holder of an irrigation grandfathered right, to make a determination to grant a physical availability exemption credit within an overall time frame of 90 days pursuant to prescribed licensing timeframes.
9. Requires the overall time frame to include 30 days for an administrative completeness review and 60 days for a substantive review.
10. Allows the time frame to be extended by mutual agreement.
11. Allows some or all of the credit, on notice to the Director of ADWR by the holder of a physical availability exemption credit, to be assigned to a municipal provider or to a subsequent owner of the land associated with the relinquishment.
12. Requires the Director of ADWR, if only a portion of a physical availability exemption credit is applied to a certificate of assured water supply or a designation of assured water supply issued, to identify the volumes remaining for the physical availability exemption credit.
13. Requires the physical availability exemption credit associated with the certificate, after the issuance of a certificate of assured water supply based on a physical availability exemption credit, if a municipal provider that serves land associated with the relinquishment becomes a designated provider, to be used to support the designation.
14. Requires the applicable depth-to-static water level for each AMA, for the purposes of seeking an exemption from the physical availability requirement for an assured water supply, to be:
a) in the Pinal AMA, 1,100 feet below land surface; or
b) in all other AMAs, 1,000 feet below land surface.
Assured Water Supply for Outlined Exemption Area
15. Allows the Director of the ADWR, on application to the ADWR by a city or town, to designate a portion of the city or town that is located both in the area delineated for exemption and in the Phoenix AMA as having an assured water supply if:
a) the portion of the city or town seeking an assured water supply designation is located entirely within an irrigation district or water conservation district;
b) the city or town seeking an assured water supply designation has contracted with the irrigation district or water conservation district for a term of not less than 100 years under which the city or town will receive water that the landowners in the district have the right to use on their lands and will treat and deliver the water for exclusive use on irrigation or water conservation district lands for municipal use;
c) sufficient surface water or effluent of an adequate quality will be continuously available to satisfy the portion of a city's or town's proposed water needs for up to 100 years; and
d) the city or town demonstrates the financial capability to construct the water facilities, including delivery systems, storage facilities and treatment works, necessary to make the supply of water available for the proposed use.
16. Allows the Director of the ADWR to accept evidence of the construction assurances to satisfy the outlined requirement.
17. Allows the Director of the ADWR to review the determination that a portion of a city or town has an assured water supply.
18. Allows the Director of the ADWR to determine that a portion of a city or town does not have an assured water supply.
Replenishment Obligation for Outlined Member Land
20. Requires an irrigation or water conservation district, for parcels of member land that retain a replenishment obligation, to replenish groundwater in an amount equal to the obligation applicable to that parcel of member land.
21. Requires the municipal provider, if a municipal provider's service area contains member lands and the municipal provider applies to become designated as having an assured water supply, to notify the irrigation or water conservation district whether it chooses to assume the member lands' replenishment obligation under the municipal provider's designation member service agreement.
22. States that the outlined regulations do not authorize new member lands to be enrolled within the municipal provider's service area after the service area is designated as having an assured water supply.
23. Requires the designation of assured water supply and member service area agreement for the municipal provider, if a municipal provider chooses to allow parcels of member land within its service area to retain the parcel replenishment obligation, to provide that the parcels of member land retain the parcel replenishment obligation for the lesser of either:
a) 10 years from the date of commencement of the first term of the designation; or
b) the first term of the designation.
24. Requires the municipal provider, on the lesser of the outlined conditions, to begin to assume an escalating percentage of the groundwater delivered to parcels of member land and any associated parcel replenishment obligation and provide the information to the water conservation district in the annual reports.
25. Allows the municipal provider, in the first year of reporting, to assume at least 10 percent of the total reported groundwater delivered to each parcel of member land.
26. Requires the municipal provider, in each successive year, to assume at least an additional 10 percent so that within 10 years all reported groundwater delivered and parcel replenishment obligations are assumed by the municipal provider and the parcels of member land to have no further parcel replenishment obligation.
27. Requires the municipal provider, after a municipal provider assumes all groundwater deliveries from all parcels of member land to cease submitting reports to the irrigation or water conservation district for parcels of member land while the municipal provider's designation of assured water supply remains valid.
28. Allows, if a municipal provider assumes the parcel replenishment obligation of member lands pursuant to a designation of assured water supply that relies on a member service area agreement, any groundwater allowance or extinguishment credits, as provided in rules adopted by ADWR, associated with the member lands assumed by the municipal provider to be used as follows:
a) if the parcel replenishment obligation and reported groundwater delivered to the member lands are entirely assumed on the initial designation of an assured water supply, the remaining extinguishment credits or groundwater allowance associated with the member lands may be used by the municipal provider as authorized pursuant to a member service area agreement; or
b) if the parcel replenishment obligation and reported groundwater delivered to the member lands are assumed in stages as provided, the municipal provider may use the groundwater allowance and extinguishment credits for the member lands in the same manner as authorized in the applicable agreement and notice of municipal reporting requirements if the groundwater is being reported as delivered to member lands, and thereafter, any remaining extinguishment credits or groundwater allowance may be used by the municipal provider as authorized under the member service area agreement.
Groundwater Transportation from Harquahala INA
29. Allows a prescribed entity that owns land eligible to be irrigated in the Harquahala INA, rather than the state or a political subdivision of the state, to withdraw groundwater from the land for transportation to a location and for outlined purposes, rather than to an initial AMA for its own use or use by the Arizona Water Banking Authority:
a) by a public service corporation, if all costs associated with withdrawing, transporting and delivering groundwater away from the Harquahala INA are collected from the customers of the public service corporation's multi-county water conservation district where the transported groundwater is used;
b) if before the withdrawal of groundwater from the Harquahala INA or the general effective date, whichever is later, the eligible entity has demonstrated compliance with outlined criteria using a hydrological study;
c) if before the withdrawal of groundwater from the Harquahala INA or the general effective date, whichever is later, the eligible entity installs water measuring devices, or other similarly reliable and accessible methods as approved by ADWR to determine the volume of groundwater withdrawn from all relevant wells and transported out of the Harquahala INA by pipelines, canals or conduits; and
d) if before the withdrawal of groundwater form the Harquahala INA or the general effective date, whichever is later, the eligible entity submits a monthly report to ADWR containing the:
i. volume of groundwater the entity withdrew from the Harquahala INA in the preceding month;
ii. volume of groundwater the entity transported out of the Harquahala INA in the preceding month; and
iii. end use or destination of groundwater the entity transported out of the Harquahala INA in the preceding month.
30. States that the entities eligible to transport groundwater away from the Harquahala INA include:
a) the state;
b) a political subdivision of the state; and
c) a public service corporation that is regulated by the Arizona Corporation Commission and that holds a certificate of convenience and necessity for water service.
31. Requires the Director of ADWR to adopt rules to implement the transportation of groundwater withdrawn from the Harquahala INA, including for the reporting of the transported groundwater.
32. Requires the Director of ADWR to prescribe the contents of the hydrological study that is submitted with the application.
33. States that the locations and purposes eligible to receive groundwater transported away from the Harquahala INA include:
a) an initial AMA for use by an eligible entity or the Arizona Water Banking Authority; and
b) any location in La Paz County for use by an eligible entity.
34. Requires ADWR, by July 1 of each year, to submit a report to the Governor, the President of the Senate and the Speaker of the House of Representatives, and to provide a copy of the report to the Secretary of State, that includes the:
a) total amount of groundwater all eligible entities withdrew from the Harquahala INA in the preceding year;
b) total amount of groundwater each eligible entity withdrew from the Harquahala INA in the preceding year delineated by entity;
c) total amount of groundwater all eligible entities transported from the Harquahala INA in the preceding year;
d) total amount of groundwater each eligible entity transported from the Harquahala INA in the preceding year delineated by entity;
e) end use or destination of all groundwater all eligible entities transported from the Harquahala INA in the preceding year; and
f) end use or destination of all groundwater all eligible entities transported from the Harquahala INA in the preceding year delineated by destination or end use.
Turf Installation
35. Prohibits a person in an AMA on any applicable property, on or after January 1, 2026, from installing turf pursuant to any new development or redevelopment construction project that requires a building or landscaping permit, plan check or design review or that disturbs more than 50 percent of the parcel or parcels where the project occurs,
36. States that the prohibition on installing turf does not prohibit the installation of turf on an applicable property:
a) in a recreational use area or other space that is regularly used for civic or community purposes, including property used for playgrounds, sports fields, cemeteries or schoolyards; or
b) for stormwater management.
Municipal Turf
37. Prohibits a municipality that is located in an initial AMA, notwithstanding any other law, from adopting or enforcing any provision that directly or indirectly establishes either:
a) minimum turf requirements, except for turf that is located in a recreational use area or other space and that is regularly used for civic or community purposes, including property used for playgrounds, sports fields, cemeteries or schoolyards; or
b) a program that mandates the installation of plants that are not included on the most recent relevant AMA's low water use and drought tolerant plant list published by ADWR.
Miscellaneous
38. Exempts ADWR from rulemaking requirements for one year for the purposes of groundwater transportation from the Harquahala INA.
39. Requires ADWR to amend adopted rules for the incorporation of extinguishment credits and groundwater allowance associated with member land in a designation of assured water supply consistent with outlined regulation.
40. Defines municipal provider, well and applicable property.
41. Makes technical and conforming changes.
42. Becomes effective on the general effective date.
Amendments Adopted by the Committee
1. Allows a prescribed entity that owns land eligible to be irrigated in the Harquahala INA to withdraw groundwater from the land for transportation to a location and for outlined purposes if before the withdrawal of groundwater from the Harquahala INA or the general effective date, whichever is later, the eligible entity has demonstrated compliance with outlined criteria using a hydrological study.
2. Makes technical changes.
Amendments Adopted by the Committee of the Whole
· Stipulates that a public service corporation that is regulated by the Arizona Corporation Commission and that holds a certificate of convenience and necessity for water service, rather than for water service in an initial AMA, is eligible to transport groundwater away from the Harquahala INA.
Amendments Adopted by Additional Committee of the Whole
1. Adds the ability for a person that owns land within an AMA that may be irrigated with groundwater pursuant to an irrigation grandfathered right to permanently relinquish all or a portion of the irrigation grandfathered right in exchange for a physical availability exemption credit if the outlined conditions are met.
2. Prescribes requirements necessary for a physical availability credit to be used to withdraw groundwater from the land for non-irrigation use.
3. Prescribes various requirements for the Director of ADWR when determining the existence of an assured water supply on non-irrigation lands.
4. Adds the ability for the Director of ADWR, on application to ADWR by a city or town, to designate a portion of the city or town that is located both in the area delineated for exemption and in the Phoenix AMA as having an assured water supply if outlined conditions are met.
6. Outlines prohibitions on turf installation for individual persons and for the adoption or enforcement of municipal turf requirements.
7. Defines terms.
8. Makes technical and conforming changes.
House Action Senate Action
NREW 2/13/24 DPA 7-2-0-1 NREW 3/13/24 DPA 4-3-0
3rd Read 2/26/24 33-23-3-0-1
Prepared by Senate Research
May 14, 2024
RA/slp