423 P.3d 348
Ariz.2018Background
- Pueblo Del Sol Water Company (Pueblo) sought an ADWR “adequate water supply” designation to serve the planned Tribute development in Cochise County (outside an AMA), which would raise Pueblo’s groundwater pumping substantially.
- The San Pedro Riparian National Conservation Area (SPRNCA), managed by BLM, has an asserted federal reserved water right (priority date 11/18/1988) that remains unquantified and is pending in the Gila River General Stream Adjudication.
- ADWR (and its ALJ) found Pueblo’s application met §45-108(I): water would be continuously, physically, and legally available for 100 years and Pueblo has financial capability; Plaintiffs (BLM, Silver, Gerrodette) objected based on potential conflict with SPRNCA’s unquantified federal right.
- The superior court vacated ADWR’s decision, ruling ADWR must consider unquantified federal reserved rights in assessing legal availability; the court of appeals reversed in part and remanded, directing ADWR to consider the unquantified federal right under the physical-availability regulation.
- The Arizona Supreme Court granted review and held that ADWR is not required to consider unquantified federal reserved water rights under either its physical-availability or legal-availability regulations, affirming ADWR and the ALJ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ADWR must consider unquantified federal reserved water rights under the physical-availability regulation (A.A.C. R12-15-716) | ADWR must account for SPRNCA as an existing use that could be affected by projected declines; thus physical availability should include BLM’s unquantified right. | R12-15-716 requires measuring how existing uses reduce the supply available to the applicant, not measuring the applicant’s impact on existing uses; Pueblo met the regulation’s prongs. | Court: No. The regulation requires accounting for declines caused by existing uses on the applicant’s available supply; Pueblo satisfied the physical-availability criteria. |
| Whether ADWR must consider unquantified federal reserved water rights under legal-availability regulation (A.A.C. R12-15-718) and §45-108(I) | "Legally available" requires evaluating all legal claims that could limit future use, including unquantified federal reserved rights for SPRNCA, to protect consumers. | "Legally available" is ambiguous; legislative history shows §45-108 adopted ADWR’s preexisting regulatory definitions—so a CC&N and reasonable-use showing suffices; unquantified federal rights are speculative and the Gila Adjudication exclusively quantifies those rights. | Court: No. §45-108 does not require ADWR to consider unquantified federal reserved water rights; ADWR’s regulation defining legal availability (preexisting at enactment) governs. |
| Whether ADWR must treat unquantified federal reserved rights at face value (i.e., presume enforceability) | Plaintiffs: ADWR should not ignore the reservation’s congressionally created priority and purposes. | Defendants: Treating unquantified rights as conclusive is speculative and exceeds ADWR’s authority; quantification is for the adjudication. | Court: No. ADWR need not accept unquantified claims at face value; a quantified right or enforceable injunction would have to be acknowledged. |
| Entitlement to attorney fees under A.R.S. §12-348 or the private-attorney-general doctrine | Plaintiffs claimed fees for prevailing on public-interest issues. | Defendants opposed fees since Plaintiffs did not prevail. | Court: Denied. Plaintiffs did not prevail on the merits; private-attorney-general criteria not met. |
Key Cases Cited
- Cappaert v. United States, 426 U.S. 128 (1976) (federal reserved water rights reserve only the amount necessary to accomplish the reservation’s purpose and can protect surface or groundwater)
- In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source (Gila III), 195 Ariz. 411 (1999) (federal reserved water rights can apply to groundwater when necessary to fulfill reservation purposes; injunctions must be tailored)
- Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017) (federal reserved rights doctrine applies where other waters are inadequate to accomplish reservation purposes)
- In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source (Gila V), 201 Ariz. 307 (2001) (background on prior-appropriation and seniority principles for surface water)
- Davis v. Agua Sierra Res., L.L.C., 220 Ariz. 108 (2009) (distinguishing legal regimes for surface water and groundwater in Arizona)