*1 Dеfendants-Appellants, corporation, P.2d 988 Appellees. Cross SERVICE COMPA PUBLIC ARIZONA NY, corporation; River Salt an Arizona RANCHES, Arizona T an A TUMBLING Improvement Project Agricultural & and partnership; T. Gladden William District, political subdivision a Power wife; Gladden, husband and L. Nicole improvement agricultural dis and an M. Glad- L. and Sharon David Gladden den, Arizona; River of Salt of the State trict wife, Plaintiffs-Ap- husband Association, an Valley Water Users’ pellants, Phoenix, City corporation; of Arizona v. corporation; municipal Arizona an City PHOENIX, Glendale, municipal an Arizona munici- an Arizona of CITY OF Scottsdale, Glendale, City corporation; City Ari corporation; pal an an of of City corporation; City of municipal municipal corporation; of zona Arizona corpora municipal Scottsdale, Tempe, municipal Arizona cor- an an Arizona Mesa, tion; City munici City Tempe, an Arizona poration; of an Arizona Youngtown, Mesa, corporation; pal City Town of municipal corporation; corporation; municipal municipal corporation; Arizona an an Arizona Tolleson, municipal City an Arizona Youngtown, Arizona mu- an Town of corporation; Tolleson, Edi Southern California City nicipal corporation; corporation; Company, a California corporation; son municipal Ari- Arizona an Company Mexi of New Public Service Company, Ari- an Public Service zona co, corporation; El Paso New Mexico a Project corporation; River Salt zona corporation; Company, Texas Electric a Improvement Agricultural and Power Au Public Power California Southern District, municipal corpora- Arizona an pow joint thority, a California Public tion; Edison Com- Southern California Agency, agency; a Power ers M-S-R corporation; pany, Public a California joint powers agency; аnd Mexico, California Company of New Service Department and Power of of Water corporation; El Paso Elec- Mexico New City Angeles, a of Los California corporation; Company, a Texas tric corporation, municipal Defen Department and Power of Water Indispensable dants/Plaintiffs/Other Parties-Appellees, Angeles, City mu- a California of Los nicipal corporation; Califor- Southern Authority, a Califor- nia Public Power v. agency; joint powers Public M-S-R nia Homes, LONG; Long F. John F. John pow- joint Agency, a California Power Inc., corporation; and John an Arizona Defendants-Appellees. agency, ers Inc., Long Properties, Arizona F. an Defendants-Appellants. corporation, SERVICE COMPA- PUBLIC ARIZONA NY, corporation; Arizona Southern an COMPA- ARIZONA PUBLIC SERVICE Company, a Califor- Edison California NY, corporation, Defen- an Arizona corporation; Com- Public Service nia pany Appellants, dants-Plaintiffs Cross Mexico, a New Mexico New Compa- corporation; Electric El Paso Department corporation; Company; ny, a Texas Edison California Southern City Los and Power of Company New Mexi- of Water Public Service corpo- municipal Angeles, Company; Depart- co; California El Paso Electric ration; Public California Southern and Power of ment of Water joint Authority, a California Power Angeles; California and Southern Los Defendants, Cross-Ap- Defendants, agency, Authority, powers Power Public pellants, Appellants, Cross v. RANCHES, Homes, an Arizona LONG; Long A TUMBLING F. F. John John partnership; T. William Gladden Inc., corporation; and John Arizona an wife; Gladden, Inc., husband Nicole L. Long Properties, Arizona F. *2 David L. Gladden and M. Sharon Glad-
den, wife, Plaintiffs, husband
Cross-Appellees.
No. CV-86-0634-T.
Supreme Arizona, Court of
En Banc.
April 17, 1989.
Reconsideration Denied June
Jennings, Strouss & Salmon John B. Weldon, Jr., Stephen E. Crofton and M. Lewis, Phoenix, Worthen, Byron J. Kevin Young School, Provo, Utah, Brigham Law defendants/plaintiffs/Other Indispens- (1) questions posed: are Project effluent. Two parties/appеllees Salt River able Dist., contract to sell ef- Improvement Power Can the Cities Agricultural & than those fluent for use on lands other Valley River Water Users’ Ass’n. Salt *3 original appropriation? involved in the by Bill Stephens Bill & Associates Ste- (2) dump sewage ef- And once the Cities L. phens, Anger H. and Karen William fluent into a stream and such effluent is Tarr, Phoenix, defendants/plain- for users, appropriated by downstream must Glendale, Phoenix, tiffs/appellees Cities of dumping continue such ad infini- the Cities Scottsdale, Mesa, Tempe, Youngtown and question answer the first in the tum? We Tolleson. negative. affirmative and the second in the Cardón, Streich, by Lang, Weeks & P.A. cross-ap- The Utilities have also filed II, Hawgood, Marcia Horn Yavi- William S. language by peal regarding certain used Pontius, tiz, Kirby Dale E. Paula G. in judgment. the trial court its In view of Phoenix, defendants/appellants/cross- for holdings our in our this Long appellees Long, F. John F. John opinion, cross-appeal is moot. Long Properties. Homes and John F. Galbraith, Lewis and Roca Tom Jessi- II. RECUSAL ISSUE Napolitano, ca H. Youle and Janet Robbins appeal While this is limited to state wa- Green, & P.A. Robert H. Green and issues, Longs previously ter law at- Imbornoni, Nelson, Douglas Brian C. P.C. tacked the contracts involved here on mu- Nelson, Phoenix, by Douglas plain- C. for nicipal grounds City in the case of law tiffs/appellants/cross-appellees A Tum- Ariz. Long, Phoenix v. Ranches, Gladden, bling T William T. David (App.1988). In that case the trial court Gladden, L. Nicole L. Gladden and Sharon summary judgment and entered Division M. Gladden. Appeals affirmed the Two of the Court of Platt, Snell & Wilmer Warren E. Rob- ruling appeal. Because two of the on Gibbs, ert B. Hoffman and Martha E. Phoe- Two, in judges participated of Division who nix, defendants/appellees/cross-appel- for case, opin- including that the author of this Service, Dep’t lants Arizona Public of Wa- ion, sitting Supreme jus- аre also Court Angeles; ter & of Los El Power Paso Elec. appeal, petition tices in this and because a Co., Mexico, Public Service Co. of New Long, City for review of Phoenix v. Co., Southern Edison California Southern pending supra, had been filed and was Authority. California Public Power Supreme at the time oral before the Court Dean, City Atty. by Frederick S. Tucson case, Longs argument was heard Tucson, Humphrey, Loretta for amicus cu- suggesting filed a motion that the Division riae. Pri- judges should recuse themselves. Two Fennemore, Johnson, Craig by W. court, James argument this in confer- or to oral Bryan, Cave, & McRoberts McPheeters ence, Longs’ motion and considered the Ferris, Dept, Kathleen Arizona of Water unanimously rejected it the issues because Rieke, Resources Elizabeth A. Chief Long, su- Phoenix v. involved Litiga- Stirling, Counsel and Scot C. Chief (whether a con- City could make pra, tor, Phoenix, for amicus curiae Arizona length binding that would be tract Dept, of Water Resources. were the contracts of time and whether comply competi- failure to invalid for
HOWARD, Appeals Judge. Court of bidding requirements) are not involved tive Gordon and The reason Justices here. THE I. ISSUES is set forth in themselves Holohan recused reproduced appen- is by appellee case involves the sale the order which This appellee Utilities of dix.1 Cities to date, policy judicial on that issue should be on the court’s no Arizona case has discussed that record,
1. To opportunity publish judge’s possible disqualification we take this because of a ' order,” litigation. Believing appendix which not the "recusal financial interest in the
III. FACTS B. The Parties Tumbling T Ranches owns the Enter- A. The Contracts Ranch, prise ap- located on the Gila River litigation This concerns two contracts for proximately 20 miles southwest of Buck- sale effluent. The first was eye, Arizona. The up- Sаlt River into in 1973 entered when the were Utilities tributary alleged stream of the Gila. It is planning a power nuclear project be lo- that much on water used (Palo Verde). cated in Arizona Enterprise Because the Ranch is from di- obtained version of Gila River required Utilities were stream under to secure an ade- flow appropriative rights decreed adjudicated quate supply of water for the construction *4 in Tumbling and established A 1958. operation plant, of the they contracted in years asserts that recent of the most Tolleson) (except with Cities City the the satisfy water diverted to appropriative its purchase option sewage an to obtain rights been sewage has treated effluent pow- effluent once the various of the units by Tolleson) discharge the (except Cities plant began operation. er agreement The from municipal plants the Cities’ treatment was options, structured as four one for the located on Salt River at Avenue 23rd each of the originally planned Palo Verde Avenue, and 91st above the confluence of generators, 140,000 totalling per feet acre part the Salt and Gila Rivers. smaller year. agreement The terminates four treated effluent also been allegedly has years after the op- exercise of fourth the by plant. contributed Tolleson’s tion, is exercisable until December Hassayampa own The Gladdens the The 1999. Utilities the first exercised Ranch, approximately located 10 miles options February two and December Buckeye. southwest The ranch strad- 70,000 1982 for total of feet. acre As a Hassayampa dles the River its con- above of the result deletion of the fourth reactor Hassayampa fluence the Gila. The changes in design cooling allegedly Ranch’s comes reactors, for systems remaining Palo by from Buсk- stream diverted Verde’s water needs plans under current eye Irrigation Company appropri- based on 64,050 appear to be in range acre rights adjudicated Again, it ative 1917. year. per feet supplied is that most asserted of the water agree- Utilities Buckeye The entered into a second by Irrigation for its Company purchase sewage Hassayampa ment for effluent use on the Ranch has been sewage discharged treated effluent City of approximately with the Tolleson the 23rd Cities from Avenue and Ave- 91st later, eight years Under that plants and from nue Tolleson’s treatment agreement Tolleson committed to the has plant. 9,282 Utilities additional feet of acre plant. effluent from its treatment system of the location Because by pipe- The transported effluent is from delivery utilized to effect of effluent line approximately Utilities, 50 miles west of is no the effluent Cities ap- for cooling agent discharged Phoenix use as a at the for longer into the stream Any return propriation the ranches. Generating Utilities’ Palo Verde Nuclear down- after the Utilities is made As Station. indicated in Phoenix v. the ranches. stream from supra, Long, entering since into the ef- purchase contracts, fluent Utilities Long corpora- John F. two of his $290,000,000 spent some to construct Homes, tions, Long F. John John Inc. and pipeline delivery both a for the effluent Inc., Properties, Long parties are also F. from the the Palo plants treatment appeal. Longs profess do this site, and treat the plant appropriative rights Verde to further any junior own damaged by be effluent so that it can used a coolant. that would the sale of sew- but, applies. only explains importantly, more the standards this court reasons for recusal in accordance with city’s customers major developers of age effluent2 but are adopted by city. that property policies in the real the water use residential commercial Thus, that have not been advised Phoenix area. while we changed from rights have been these water agree that parties rights municipal irrigation rights to at treat their treatment they must be apparent purposes, originates from a combination of plants characterized one treated as such. As ground and stream water. The water both ap- parties in its brief filed by the Cities to the various is distributed have, through cus- peal, the water their ser- industrial users within individual tom, municipal uses. converted to been from The stream water comes vice areas. 45-172. But see Rivers, initially and is and Verde Salt water filtration distributed to the Cities’ Valley Users’ As-
plants by the Salt River IN THE THE IV. PROCEEDINGS (the Association). The Associa- sociation TRIAL COURT finance, oper- organized in 1903to tion was separately litigation involves two This ate, a federal reclamation and maintain *5 consolidated filed actions which were later (the River Reclamation project Salt Eventually of the trial court. by order the Project). appropriative The Tumbling parties T and the both the receiving the Association lands water from summary judg- Longs filed motions for adjudicated in 1910. were filing of responses After and the ment. delivers water to the Association by summary judgment cross-motions agree- Cities under various domestic water Service, Cities, and the the Arizona Public agreements pro- generally ments. These Project, judge issued a Salt River the trial cultivation, go the vide that as lands out of summary entry granting decision minute Cities, landowners, rather than individual judgment in favor of the Cities Utilities pay the Association the annual assessment effluent which is ground on the that the acreage longer irri- for urban which is no not the sales contracts is the turn, gated. appurtenant water surface wa- regulation under the acreage this urban is delivered the Asso- of the State of ter or laws ciation to the Cities’ various water filtra- the contracts were there- Arizona and that plants. agreements, the tion Under these We affirm the decision fore not void. agents Cities receive this water as for the entirely on the same the trial court but landowners and deliver it to the land to grounds. appurtenant. which it is The Cities receiv- ing water from the Association under the THE OF V. CONTENTIONS agreements domestic water include Phoe- THE PARTIES nix, Glendale, Scottsdale, Tempe and Mesa.
Thus,
argue that the sale of the
appropriative rights through
Longs
sewage ef-
groundwater component of the
which the Cities receive the stream water
performance
component
municipal
of their
re-
fluent is invalid because
would violate stat-
quirements
generally originated
the effluent contracts
have
transportation
on this
irrigation rights.
utory restrictions
once the wa-
45-
groundwater.
45-541 to
ters have been introduced into the Cities’
§§
They
that the
systems, there is no indication in the
545.
contend
put to
element of the effluent must be
record that the use of the water is limited
and beneficial reuse for the ben-
any specific
parcel
lot or homeowner’s
reasonable
land from which it was with-
right
originally appurtenant.
was
efit of the
which the
drawn, and,
possible,
if
Rather,
part of each
reuse is not
the water becomes
whole,
must be returned to the common
city’s
supply as a
to be used
effluent
argument,
regard.
Tumbling
parties
the time of oral
filed a motion
in that
At
2. The A
T
have
disposi-
the motion.
In view of our
we denied
Longs’ appeal of stream water
to dismiss the
tion,
opin-
it further in this
we will not address
issues,
standing
contending
Longs
lack
ion.
supply, by discharging it into a stream and
bi-product
as “a noxious
of the treatment
allowing
percolate
it to
ground.
into the
which the cities
must
endangering
withоut
health and
Tumbling
The A
parties argue
that
violating any
without
pollu-
federal or state
allowing the
appropriable
Cities to sell
wa-
63,
tion laws.”3
Sewage
something
is
which the
Statutory Regulations
B.
hands,
disposed
on its
and which must be
agree
judge’s
We
with the trial
conclu-
cause
way
in such a
that it will not
sion that
effluent is not
damage
often be
to others.
It would
regulation under the Surface Water Code
efficiency if it
height
considered the
or the Groundwater Code. The 1980
man-
disposed of in some other
could be
Groundwater
“effluent” as
Code defines
discharging it into a stream.
ner than
which,
being
“water
after
withdrawn
state, where the conserva-
Even in this
groundwater or diverted as surface
impor-
for
is so
tion of water
domestic, municipal
has been used for
tant,
not care to hold that in
we would
purposes
industrial
and which
available
city
could not
disposing of
any purpose, whether or not
for reuse for
adopt
completely
means that would
some
improve
treated to
its
water has been
think,
might,
consume it.
It
we
be di- quality.”
agree
A.R.S. 45-402. We
places,
any
verted to waste
or to
chosen
judge
only
the trial
that one can
conclude
place
it would not become a nui-
where
something
by this definition that effluent is
sance,
any
without
consideration
groundwater or
water.
other than
surface
might
demands of water users who
be
legislature
Another indication that
disposition in
benefitted
its
some oth-
something
considered effluent to
other
providing
place,
er manner.
such a
than
or surface water is A.R.
city might acquire
to dis-
45-515,
provide
S.
45-514 and
§§
charge
on the lands of
permits
groundwater may
be con-
person willing
to suffer such use
his
availability
upon
ditioned
of either ef-
lands,
why
and we see no reason
*7
Furthermore,
fluent or surface water.
right might
gained by
city
not be
in
legislature
expressly
has
authorized more
right
consideration of the landowner’s
to
municipal
dispose
entities
of effluent
to
sewage
any
in
use or
sales,
45-494(2)(c),
without
see A.R.S. §
way.
lawful
suggesting that such effluent is either sur-
Wyoming
The waters of
in
no other can beneficially any part See use all or Roswell, Reynolds City supra; right any period v. Bow- to withdraw for of five Association, years relinquish Big er v. Horn Canal successive shall such Wyo. junior right portion rights thereof. The re- state, appropriator, using linquished waste his “takes shall revert to the and Thayer rights chance” on continued flow. the shall waters affected such Rawlins, (Wyo.1979). P.2d to the To hold become available require lawfully extent are not claimed or otherwise and the Cities to continue by existing appropriators. discharge used deprive to effluent would the ability of their Cities to of effluent added.) (Emphasis apply These statutes economically the most and environmen- appropriator when fails to withdraw tally manner, sound as discussed above. some or all of the water to which he is Moreover, holding con- such would be entitled. That is not the case here. trary spirit purpose Arizona CONCLUSION law, promote which is to the benefi- cial use of water and to eliminate waste of summary, we hold that the effluent in precious resource. question groundwater is neither nor sur- by appropri- face water. Whether diverted We therefore hold that the Cities ground, ation or withdrawn from the after discharge discontinue the ef- by municipalities loses its use violating fluent without of those original groundwater character as or sur- persons previously or entities which have becomes, instead, just face water and what appropriated right appropriate it. The statute describes—effluent. only effluent comes into existence when 45-402(6). expendi- A.R.S. The Cities’ § geological if that effluent flows if ture of tens not hundreds of millions 45-141(A). structures described A.R.S. § lines, purification plants dollars for sewer “producer” of the effluent is a Because equipment does not transform the wa- appropriator, appro- senior those who have change groundwater or ter and it back into priated gain right compel the effluent no It remains effluent. surface water. discharge. continued dealing Neither statutes with Right E. Abandonment appro- groundwater dealing nor those Use the Water regu- priation of surface water control or disposition of late the Cities’ use or ef- statutory of our One more area Thus, fluent. the Cities are free to con- scheme relative to surface waters must be of that effluent tract for covered. Did the abandon the еf utilities, having purchased and the fluent previously dumping into effluent, may right to use the continue 45-141(C) river bed? A.R.S. states: § use it. right When the owner of a to the use of is neither water ceases or the water while fails water, it is cer- appropriated years, for five successive nor surface state, cease, right tainly to the use shall In this the constitution water. doctrine, riparian see having shall revert to the and shall abolished the Const, 17, 1, nor again appropriation. Ariz. art. neither stream free from private property added.) pro (Emphasis 45-188 lawfully appropri- regulation. Those who vides: only ate or water have withdraw Any person entitled to divert or with- the law. The to use it in accordance with through public waters of the state draw *10 legislature regulate or control the is free authorized under invite use and of effluent. We 45-151, decree, previous posses- court § need. its attention to that use who sion or continued beneficial Thus, appropriators the downstream thereof, or who volun- abandons the use rights cause, Tumbling T have limited to such as fails, without tarily sufficient 3(C)(3)(c) in- long defines “financial against as the Cities Subsection as the Cities. So legal dispose “ownership eq- choose to of the effluent dis- a or terest” as bed, charge into the stream the effluent Such an uitable interest of substance.” “flowing in a becomes and is water any “interest of consists of in- substance” stream” 45-141 is and under A.R.S. sub- corporation § closely in and in a terest a held ject appropriation by downstream users. “interest, corporation is an publicly held appropriators, As such first in between likely to value of which is be increased the point of time is first in under A.R.S. any or decreased to material extent the 45-151(A), Tumbling may and A well § Id., litigation.” of the subsection outcome appropriative against any as 3(C)(3)(d). However, junior appropriators. other such disqualification as second test for cannot appropriators downstream force the result of financial involvement is con- discharge Cities to continue to 3(C)(1)(c), provides in tained Canon which point at the in stream or in the same judge a disqualify shall himself when change stream at all. The thus or he she owns an interest that “could be the location of their sewer lines and of substantially affected the outcome of purification their water and treatment proceeding.” plants or effluent in some their violating any other manner without obli- addition, 38-503(B) 3. re- A.R.S. § gation duty or owed the downstream quires officers, including judges, to appropriators. disqualify any in themselves matter in interest.” which have a “substantial judgment We therefore affirm This is defined interest “other than trial court. as remote a interest.” See A.R.S. FELDMAN, CAMERON, J., V.C.J., 38-502(11). regard With stock inter- § LACAGNINA, Appeals Court ests, a “remote is defined as interest” Judge, concur. holding per of “less than three cent” of the stock, corporation’s providing the dividends APPENDIX payments judge by other to the or made (Order Supreme corporation percent Entered do not exceed five Court on 29, 1987) judge’s income.
December total annual 38-502(10)(e). Subsequent argument case, 1. in Justice William A. Holohan received an in- always posi- The Court has taken the heritance of stock in one shares of stringent requirements tion the more corporate parties. He informed the Court Conduct Code Judicial must be of this and has now confirmed informa- applied disqualification. as the for test 8, tion memorandum dated December also noted that the Court has from 1987. The information Justice Holo- adopted by of Judicial test our Code Con- Gordon, han caused Frank X. Chief Justice stringent is different from not as duct participation Jr. to reassess his the case applicable judges to federal standard owns, because he his own name and also by virtue of 28 which re- U.S.C. § grandchil- in his for his name as custodian quires disqualification judge has where dren, corpo- stock in the a small amount of interest, equitable “ownership legal of a corporate parties. parent rate of one of the litigation. party however small” in a Frank, 455(b)(4). Id. See also Commen- pro-
2. The Code of Judicial Conduct tary Disqualification, on 1972 UTAH separate judicial vides two tests dis- rule, federal which L.REV. 384. The qualification as the result of financial inter- results, “draconian” in its has been se- est. The first contained in Canon test is Nevels, verely criticized. Bias and 3(C)(1)(c) of the Arizona Code of Judicial Conduct, Lead to Dissimilar judge They that a shall Interest: Should provides Qualification Prac- himself he “has a financial Results Judicial recuse when tice?, proceeding.” 27 ARIZ.L.REV. party interest ...
HAIRE, Appeals Judge, Court of concurring part and dissenting in Noting 5. the difference between the part: rule, federal rule and the state members of past this Court have in partici- sat on or extent, large To a I concur in the result pated though in cases even owned by majority, reached but not in the small publicly amounts of stock in held legal analysis majority uses to corporate parties, long so as their interests My major arrive in that disagree- result. could not have substantially been affected by ment with the result majori- reached by the outcome of long the case and so as ty concerns resulting surface water issues the value of their stock could not have been from practice the Cities’ historical of dis- increased or decreased to material ex- charging effluent into the Salt River Chan- by tent the result of the case. Cases of I nel. would hold that usually this sort have been involving those by sale is included with- operations the routine corpo- business of a concept of full beneficial use of party. rate surface precluded by water and is not Ari- The nature quite of the instant case is zona’s surface .water different operations. from routine business codes, and that therefore the con- quite possible corporate party It is that a tracts do not violate Arizona might substantially this case affected or surface water law.1 I would judge’s outcome or that the value of a city’s further hold that a surface water corporate party might share in a be in- appropriative rights could be diminished if creased or decreased to some material ex- city consumptive has failed to make full Therefore, tent the result of this case. appropriated five suc- both Justice Holohan and Chief Justice years provided by cessive 45- §§ Gordon have recused themselves and will 141(C) and 45-188. Accordingly, would participate further in the decision of judgment reverse the entered the trial this matter. court and remand this matter for further Judge Froeb, partici- Donald F. who also consideration of the surface water aban- pated in the argu- case at the time of oral donment issues. ment, previously notified the Court that my disagreement Much of with the ma- one of employment his relatives had taken jority occurs as a result of a difference party that, with a connected to the case and approach presented to the issues result, as a he felt he must also recuse appeal. majority focuses on the end Further, himself. Justice Moeller was product rights gained rather than on the judge trial who heard the case at the trial imposed the limitations on the Cities court level. appropriations. reason of their initial In light therefore, foregoing, question, Without Arizona’s surface water IT IS ORDERED pursuant to art. governs code appropriations, those 3 of Constitution, the Arizona Chief subjeсts prior appropriation them to the Judge Ray L. Haire of Division One of the and beneficial use doctrines. Since the wa- Appeals Court of Judge Chief Michael ter when taken is to beneficial use Lacagnina Judge A. Lawrence Howard limitations, whether, the real issue becomes Appeals Division Two of the Court of limitations, consistent with beneficial use designated partic- are to sit on the case and components the water ef- ipate in the decision. fluent can be sold the Cities. The ma- IT IS FURTHER ORDERED that issue, jority fails to resolve this basic but argument case will be rescheduled for oral product, sewage rather focuses on end possible at the earliest date. regard and treats it without December, day principles governing Dated this 29th the use and necessarily 1. The conclusions which I applicable state in this dissent and are not to other cate- concerning gories broadly effluent are limited to ef- of effluent as defined in A.R.S. litigation, 45-402(6). fluent of the nature involved in this
441
means water un-
“4.
‘Groundwater’
groundwater and surface
of the effluent’s
regardless of
of the earth
premise the
der the surface
From this
components.
water
in which it
is
geologic
not
structure
concludes that effluent is
majority then
moving.
does
regulation
standing
Arizona’s
or
Groundwater
subject
under
flowing in under-
codes.
include water
groundwater and surface water
streams with ascertainable beds
ground
many
I
Because am convinced
and banks.”
majority
legal
reached
conclusions
law, groundwa-
decisional
prior
In
Arizona
erroneous,
forth
accordingly
I have set
are
the,
generally
“percolat-
referred to as
ter is
sup-
legal analysis that
in some detail
doc-
subject
and is not
to the
ing” water
in this
conclusions I have reached
ports the
prior appropriation.
Bristor
trine of
See
appeal.
227,
Cheatham, 75 Ariz.
COMPONENTS
provisions
apparent from the
It
EFFLUENT
45-141(A)
all
that Arizona not
A.R.S. §
legal rights of the
determining the
sub-
appearing
In
on the surface are
waters
See,
effluent that
parties relating to the
ject
appropriation.
e.g., Fourzan v.
con-
litigation,
140,
(1934)
initial
Curtis,
is the
of this
722
43 Ariz.
29 P.2d
given.to the different
sideration must be
spring waters are not
(developed
of water that contribute
classifications
Sheep Company v.
appropriation); Espil
prin-
effluent. The
the fluid content of the
Doney Parks
Users’
Bill &
Water
Black
are from two sources—
cipal contributions
201,
Association, Ariz.App.
groundwa-
surface waters and
appropriable
(1972)(diffused
waters are not sub-
surface
that, whether
majority
concludes
ters.
premise
appropriation).
With
ject
appropriation or withdrawn
diverted
mind,
urged
and Utilities
origi-
its
ground, the water loses
from the
among
sewage effluent is not
that because
use
the cities
nal character after
specifically de-
appropriable waters
instead, just
For the
effluent.
becomes
45-141(A), the effluent must
scribed
§
following
disagree.
I
reasons
privately owned and not
be considered as
dispo-
on use and
subject to the limitations
dissent,
“appropri-
I use the terms
In this
use and
imposed by the beneficial
sition
waters”,
“surface water”
able surface
They initial-
doctrines.
prior appropriation
interchangeably,
to de-
“stream water”
sewage effluent should
ly contend that
that are
types
limited
of waters
scribe the
something separate
apart
as
perceived
the doc-
prior appropriation and
subject to
and surface water
law,
from
under Arizona
trine
beneficial
and,
originates
which it
components from
45-141(A):
to A.R.S.
pursuant
§
parties
rights of the
accordingly, that the
sources, flow-
The waters of all
“A.
application
by the
should not be determined
streams,
or other
canyons, ravines
ing in
or
from surfаce
principles derived
channels,
under-
or in definite
natural
apparently
majority
groundwater law.
channels,
perennial or
ground
whether
it.
reject
I
contention. would
accepts this
intermittent, flood,
surplus wa-
waste or
lakes,
ter,
springs on
ponds and
and of
Arizona
First,
premise of
fundamental
surface,
are
belong
is characterized
law is that water
appropriation and beneficial
subject to
or otherwise
surface
chapter.”
in this
provided
use as
retains that
capture and
at the time of its
returned to
until it is either
character
used in this
“groundwater” is
The term
(or
other surface
stream
some
Ari-
used in
same sense as
in the
dissent
ground.2
source)
into the
percolates
Act of
Management
zona’s Groundwater
irri-
water diverted
45-101(4):
opinion, surface
my
in A.R.S.
as defined
identity.
45-
ing
§§
legislation
surface water
enact-
its
recognize
pursuant to
also,
45-141(D).
seq.;
be stored
et
see
certain surface
ed in
los-
underground percolation without
through
*13
gation
waters).3
purposes
oped
does not lose its character
principles relating
as surface water once it is diverted from a
developed
applicable
water are also
to wa-
Rather,
stream.
it continues to be surface
imported
system
ter
into the stream
from
water, fully subject
prior appropriation
Thayer
See
v.
system.4
another stream
governing
and
beneficial
limitations
Rawlins,
City
(Wyo.1979);
tutes stream and the ef- though groundwater component the ef- of applying concept fect of that to define the groundwater passing fluent remains after parties litigation, the of to this will through municipal wastewater collection be addressed more detail later in this system, groundwater and treatment the dissent. purport code does not to limit the subse- quent ground- reuse or other Summarizing, reject I would the conten- support argument, To water. Tucson sewage tion that the fluid content of ef- that, appropriable contends unlike surface something newly fluent is created rather water, groundwater private .property, is being than groundwater combination of which, lawfully possession once reduced and surface if my opinion, water. —i.e., having been withdrawn for use in sewage contracts for the sale the Cities’ compliance groundwater with the code— upheld, effluent are to be it must be on the disposed be reused or otherwise basis that under the laws of this state regard groundwater without further governing appropriative rights, beneficial code. use, groundwater management, groundwater sale of the surface and com- court, adopting position The trial ad-
ponents pre- effluent is not Utilities, vanced the Cities and the held cluded. (including groundwa- that effluent bоth components)
ter and surface water is not subject regulation under Arizona surface SALE OF THE GROUNDWATER groundwater or laws. The court’s COMPONENT OF THE upon following conclusion was based SEWAGE EFFLUENT (1) groundwater observations: code’s Longs argue provisions that the sale of the definition of effluent and groundwater component ef- use of effluent or surface water as a sub- leg- performance groundwater imply fluent is invalid because the stitute for of the effluent contracts would violate stat- islature assumed or intended that effluent something utory transportation groundwater restrictions on the of was other than or water; (2) groundwater. legislature to surface en- See A.R.S. 45-541 has §§ They regulate sewage that -545. contend that effluent must be acted statutes ef- standpoint put to reasonable and beneficial reuse for fluent from a health and has non-municipal expressly of the land from which it was authorized entities benefit effluent, and, possible, including by if withdrawn reuse is not sale, indicating must returned to the common all without that effluent regulation discharging under the supply by it into a stream also to be codes; ground. groundwater and surface by allowing percolate it to into the (3) recognition effluent as a Department legislative has Water Resources resource, coupled groundwater valuable water in the code’s ef- definition of comprehensiveness groundwater legislative fluent which indicates a intent code, suggests legislature longer that if the had that effluent is no to be considered regulation, groundwater, intended to effluent to surface water or a combi- First, it would have said so. nation of both. note that the defi- nition is limited the use of the word Although I find some merit in the trial groundwater “effluent” in the code. When concerning groundwa- court’s observations context, considered in that apparent it is ter, legislature I do not believe that the definition was included because groundwater intended that component subsequent sections of the completely regula- of effluent be free from encourage the code use of wheth- tion under the code. For ex- composed groundwater, er surface wa- ample, suppose I see no reason to *15 ter, both, or a combination of over new 45-452(A), prohibits A.R.S. which the use groundwater withdrawals. The definition “any irrigation of water” for the of new necessary identify precision was acreage management areas, in active does lower-quality types groundwater of prohibit groundwater such use of the surface water which must be utilized be- component degree of effluent to the same given ground- fore consideration is to new Nevertheless, type as other of water. water withdrawals. agree I with the result reached the trial groundwater component court as to the of The use of lower-quality such surface groundwater preferred effluent and if I would hold is it “is avail- Management transpor- I Groundwater Act’s able.” assume that the word “available” only apply physical legal tation restrictions to the initial was used both a and a groundwater imply use for sense. I find from is withdrawn. it difficult to this which groundwater lawfully legislative Once has been with- definition a intent to diminish used, any resulting groundwa- impact provisions drawn and of surface water code may disposed govern legal ter effluent be of without that would otherwise regard “availability” In to those restrictions. of surface water. this 45-451(B) regard, I note that ex- A.R.S. § court, begin Like the I my analysis trial provides: chapter [groundwa- pressly “This groundwater with the of code’s definition shall not be construed to affect ter code] which, effluent as being “water after with- appropriative decreed and groundwater drawn as or diverted as sur- rights].” [surface water, domestic, face has been used for However, notwithstanding municipal purposes my or industrial failure to and which finding agree judge’s is with the trial of a any purpose, available for reuse for legislative intent to treat effluent without whether or not the water treated has been improve regard component the nature of its wa- quality.” its 45-402(6). parts, legislative I intent in the The trial ter find no court considered groundwater code to the reuse or legis- this definition to be evidence that the groundwater of effluent lature intended or assumed other that effluent govern the something other than to the same restrictions that groundwater either groundwater’s initial withdrawal and first or surface water. Ample support for this conclusion can use. dissent, In I previously noted groundwa- found in those sections of the my opinion that in the nature of water specifically refer to effluent. ter code that groundwater or surface water is estab- example, A.R.S. 45-514 and -515 lished when it is diverted or For withdrawn §§ groundwater condition the issuance of supply, from the common and that use change permits for mineral extraction alone cannot the nature of the wa- withdrawal use, general respectively, industrial Although agree ter. trial with the upon lack of surface water or judge’s conclusion available ultimate ground- adequate quality. groundwater preclude code does not effluent effluent, encourages nothing code thus the use groundwater sale of I see (as appropriators. Tumbling effluent well as available waters from stream sources) place groundwater parties of new concede that have no vested other addition, ownership right groundwater portion 45- in the withdrawals. A.R.S. §§ -495(2)(b) 494(2)(c) provide that certain of the Cities’ acknowl- districts, withdraw, edging principle may that unlike surface deliver, only publicly and distribute limited amounts which is owned even after irri- newly appropriatоr, withdrawn diversion areas, gation property legally within their service also becomes whoever deliver, purchase, ground. contract to and distribute extracts from beneath unspecified quantities Department of surface water and v. Arizona Collier Water purpose. pro- Resources, effluent for the same These 150 Ariz. relating preferred (App.1986); Valley City visions Town Chino Prescott, by irrigation districts and min- 131 Ariz. 638 P.2d ing industry demonstrate an intent to allow municipalities transport to sell and avail- imply cases do The above-cited able effluent for use in locations which groundwater private property becomes ordinarily not be within their service would However, I legally once it is withdrawn. areas. rely private ownership concept do not on a *16 agree Long parties
I parties with the that the to determine the foregoing express legislative groundwater portion rec- statutes this case. While ognition important of effluent as an water of the Cities’ effluent becomes stream wa- However, accept discharged I resource. cannot ter after it is into the Salt Riv- that, by encouraging er, “developed” “import- assertion the use of it constitutes or ground- may effluent as a “substitute” for ed” new stream water. Downstream users withdrawals, (the Cities) developers these require water sections evidence not of legislative “equate” discharge a intent to developed used water to continue to it groundwater groundwater system. City, with in situ and into the stream See subject Irrigating to both to identical restrictions. To County Denver v. Fulton of 47, contrary, groundwater 144 Company, code re- Ditch 179 Colo. 506 P.2d peatedly preference (1972); Rawlins, Thayer City reveals a for the reuse 594 of Therefore, groundwater, permitting appro- of (Wyo.1979). reuse under P.2d 951 no groundwater priative rights against circumstances where can result new prohibited. discharge withdrawаls would be from the Cities’ historical groundwater effluent into the River. Salt Furthermore, I note that even where the legislature subject Consequently, Tumbling parties’ has seen fit to the all-in- the A T category ground- only possible of “water” to the claim to the used clusive Cities’ restrictions, transportation groundwater upon suggestion code’s water based to its specifically, tracing has excluded effluent from that the Cities’ effluent back virtually impossi- those restrictions. several sources would be 45-494.01(B) fact, complain in (limiting the amount of wa- ble. In the Utilities did summary judgment may transported annually ter that to their cross-motion for be require a herculean acreage added to the of an that such a task would service area district). sum, In I have found effort. nothing in the code even to preserve developed a claim to order to suggest transportation that its restrictions water, person that wa- who has allowed apply any portion of the were meant to commingled appropriable ter to be sewage effluent. Cities’ identify public water must be able not portion that he claims is
My concern in this area is whether of the water final See, Cities, appropriation. e.g., Herri- of their historical reason Co., 19 any way obligated to con- man Irr. Co. v. Min. practices, are Butterfield (1899); 537, 540 discharge groundwater Utah 57 P. their used tinue Irrigating County Denver v. Fulton for the benefit of down- into the Salt River 144 der Arizona’s Admit- Company, Ditch Colo. P.2d surface water laws. Tumbling parties argue, A T tedly, statutory provisions prior The no Ari- therefore, that to the extent that the Cities’ expressly zona decisions state that effluent cannot be traced to its various is, not, subject or is to Arizona’s sources, rights commingled in the waters previously surface water code. I have dis- according defined to stream water must be rejected judge’s cussed and the trial hold- agree. рrinciples. ing code’s definition purposes ground- of effluent for groundwater portion of the Cities’ implied legislative water code intent effluent, however, should be traceable to entirely exempt surface water effluent supports proposi- its source. Case law imposed ownership from limitations on the ac- tion that effluent can be broken down Arizona’s sur- use surface water cording compo- to its constituent water judge The trial also face water code. necessary it is not nents. examination, upon based his decision identify particular particles several statutes that indicate that effluent origin. Supreme theAs Colorado Court purchased He stated in and sold. observed Fulton: expressly indi- that these statutes do question quality not in- “With purchase cate that such or sale would be volved, argument accept we Denver’s procedures to the administrative fungible that water is or is to be treated generally applica- par- statutory limitations fungible the same as a article. The changes place or the ticles of do not have to be identi- ble to use Colorado, existing Ari- coming rights acquired fied as from Western under or not con- but rather whether zona law. tained can be divided volu- Longs Tumbling parties and the percentage metrically. A of the effluent trial strongly disagree with the both *17 discharged plant be by the Metro can statutory provi- judge’s analysis of these imported water.” 506 P.2d considered as particular, they In contend that the sions. at 150. judge when he referred to stat- trial erred obligated statutorily are The Cities regulating effluent from a health utes for the amounts of surface water account nothing in standpoint and then stated that groundwater to their munici- delivered an intent to also these statutes indicates pal A.R.S. 45-468. The customers. See § groundwater or regulate effluent undеr the
proportion
the water that was with-
of
I
their
agree
codes.
surface water
provide an
groundwater
would
drawn
provisions in
and find several
contentions
groundwater
adequate
com-
measure
indicating
Depart-
the health code
ponent
the effluent.
of
regulatory powers per-
ment of Health’s
taining
were not intended
to effluent
groundwa-
that the sale of the
I conclude
regulating surface
supplant this state’s law
sewage ef-
component of the Cities’
ter
Thus,
rights.
A.R.S.
and is not
is
under Arizona law
fluent
valid
department of health
36-1869 directs the
regulation under Arizona’s
§
cooperate with
services to “confer and
Management Act.
I next
Groundwater
in the formula-
of water resources
director
pro-
validity
of the contractual
consider
plans
quality
to the
tion of
relative
the surface water
for the sale of
visions
A
of this state.”
safety of the waters
sewage
component of the
effluent.
legisla-
expression of the
much more direct
THE
WATER
THE SALE OF
SURFACE
is
found
A.R.S.
ture’s
intent
THE SEWAGE
COMPONENT OF
laws
36-1857(B),
indicates that
§
controlling pollu-
EFFLUENT
purpose of
passed for the
purpose of
used for the
tion cannot be
stated,
judge in
the trial
previously
As
rights:
defeating appropriative
concluded that
entry decision
his minute
administering this article ...
In
component
“B.
surface water
shall:
regulation un-
the council
subject to
was not
effluent
45-141(A);
require
present
any
“1. Not
or future A.R.S.
Adams v. Salt River
divert,
Association,
appropriator
Valley
or user of water
Users’
53 Ariz.
Water
374,
(1939);
diverting, exchange,
cease
cease ex-
my
conclusion that Arizona’s
appropriator in the sense that he
do
impose
code does not
limitations on the sale
*18
the
pleases
with it what he
or what
own-
groundwater component
of the
of the ef-
property may generally
er of
do. But it
fluent.
now consider the extent of the
recognized that the
of such
is alsо
use
limitations that
the surface water code’s
ownership and
water is
sale.
prior appro-
doctrines of beneficial use and
Valley
River
Brewster v. Salt
Water
priation impose on the sale of the surface
Assn., 27 Ariz.
tor purpose reason of the for which the Rights Water in the Nineteen Western appropriation was made. 8-20, (1971); Trelease, States 522-46 When perspective, viewed from this Concept of Reasonable Beneficial Use in appeal real issue in this concerns the limits Streams, Wyo.Law the Law of Surface imposes doctrine of beneficial use (1957). noted, previously Journal As upon disposition effluent legislature Alaska has defined beneficial If disposition Cities. incorporates use. That definition some effluent sale cannot be considered to be general concerns, usually expressed in the concept within the of beneficial use of wa- law, case “any as follows: beneficial use is appropriated by municipality, ter the trial use of water that is reasonable and benefi- judge’s decision as to the surface water appropriator, cial to the component and at the same of the effluent must be re- hand, versed. On the other if it is time is consistent deter- with the interests of the appropriated mined that beneficial use of sup- in the best utilization of water might include the of sew- ply.” What constitutes a beneficial use salе, age ques- then one further necessarily depends on the circumstances tion must be addressed: whether the Cities County of each case. Denver might portion have lost or abandoned a Sheriff, Colo. appropriative right by their historically dis- course, express Of to the extent that statu- charging their surface water effluent into exists, tory guidance the courts must abide River, the Salt where it have become by the terms of the statute. In the ab- subject to the claims appro- of downstream sence of statutory guidance, the details of priators. specific practices permitted what are within parameters statutorily the broad autho-
Although the doctrine of beneficial use is
*19
45-141(B)
rized uses must
determined
the
adopted in
be
as the “ba-
§
sis,
[appro-
courts. Since the doctrines of beneficial
measure and limit to the use of
water,” Arizona,
priable
prior appropriation
concepts
unlike
are
surface]
See,
statutes,
(1971);
e.g.,
appropriating
§
5.
Alaska
46.15.260
cal subdivision thereof first
the
Compiled
(Footnote
right.”
South Dakota
Laws Annot.
water shall have the better
46-1-6(6) (1967); Texas Water Code Annot.
omitted).
§
(Vernon 1972).
§
Title
5.002
45-151(A)
permitted
ap-
The
§
uses listed in
parently tire not exclusive. See A.R.S.
45-151(A) provides:
6. A.R.S.
45-181(1):
Any person
"A.
or the state of Arizona or a
"1. ‘Beneficial use’ includes but is not lim-
may
political
appropriate
subdivision thereof
to,
domestic, municipal,
ited
use for
recrea-
domestic,
unappropriated water for
munici-
wildlife,
fish,
tion,
agricultural,
including
watering,
power,
pal, irrigation, stock
mining, stockwatering
power purposes.”
fish,
recreation, wildlife, including
artificial
added.)
(Emphasis
groundwater recharge pursuant
chapter
to
any specific
Note the absence of
reference to
uses,
mining
for his
article 13 of this title or
manufacturing or industrial uses.
delivery
personal use or for
to consumers.
politi-
person
of Arizona or a
The
or the state
inception
tant,
their
reflected the social
we would not care to hold that in
placed
and economicvalues
on various uses
disposing
sewage
city
could not
largely
of water in a
undeveloped and arid
adopt some means
completely
that would
west, any
decision made
this court
think,
might,
consume it.
It
we
be di-
should
necessarily
also
reflect these same
places,
verted to waste
any
or to
chosen
values.
place where it would not become a nui-
sance,
any
without
consideration of the
prior
courts
other
demands of
might
water users who
jurisdictions
be
have reached inconsistent re-
disposition
benefited
its
sults when faced
some other
questions involving
with
providing
manner.
In
place,
beneficial use
a
such a
municipality of its
appropriated
city might acquire
right
discharge
insofar as concerns the
disposition
use and
sewage
sewage
on
effluent.
the lands of
person
Thus,
in Wyoming
willing
Ranch v.
lands,
suffer such a use of his
Hereford
Co.,
Packing
Hammond
(Wyo.
of in
way
such a
that it will not cause
has
returned to the stream where it
been
damage to others.
It would often be
*20
by
susceptible
is
of further beneficial use
height
considered the
efficiency
of
if it
appropriators. This
disposed
could be
other
further use
of in some other man-
by discharging
by
ner than
it
must be had under state control
those
into a stream.
state,
rights
Even in
acquired
this
where the conserva-
who
under
have
the state
impor-
tion of water for
is so
laws.”7
The Colorado
club,
part
had sold another
to some
Irrigation
golf
contrary result
Pulaski
Trinidad,
farmers,
discharged the
and had
remainder
City
70 Colo.
Ditch Co. v.
granting
(1922).
city
Upon
the Hondo river.
the
early
In
times the
into
which would likewise have been almost
ues for
applied
five
As
to this
consumptive
tally
in nature.
occurred,
if abandonment has
the Cities
Cities
not do so.
did
Rather their initial
right
would continue to have the
to with-
consumptive
considerably
use was
less
and
draw
make normal use of their full
They
than total.
returned to the river a
appropriation, but would not be entitled to
part
initially
substantial
of the waters
di-
consumptive
by
increase their
discon-
verted. Under well established western
tinuing
discharge
por-
of the abandoned
principles,
water law
this lack of total con-
rights
appropriative
tion of their
into the
sumptive
use could
the Cities to a- Salt River Channel.
right
loss of the
to later resume a total
reasons,
foregoing
For the
I do not ac-
consumptive use. This loss would occur if
cept
majority’s
conclusion that Ari-
consumptive
the lack of total
use was con-
po-
zona’s abandonment statutes have no
statutory
peri-
tinued for the
abandonment
application
plans
tential
to the Cities’
by
authority:
As
a
od.
stated
noted water
change
their method of
of ef-
“Where,
by prior appropria-
after use
discharge
fluent and to discontinue the
tor,
discharged
water is
into a stream for
the effluent into the channel of the Salt
purpose
drainage
or as a conve-
River.10
it,
disposing
nient method of
...
works an abandonment of such
Likewise, my conclusions on the aban-
discharged
and the water thus
becomes a
necessarily require
donment issue
would
stream,
part
of the natural
and is
rejection
argument
through
reappropriation
rights
and to the same
application
princi-
waste water
therein,
naturally flowing
as the water
ples
at
time discontin-
Cities could
by
and can not afterward be taken out
river,
discharge
ue the
of effluent into the
original appropriator
injury
to the
defeating
thereby
rights
that down-
rights
other
which have attached and
appropriators might
previous-
stream
vested to it. The authorities hold that in
ly acquired
in
water abandoned
formerly appropri-
all cases where water
45-141(C)
pursuant
to A.R.S.
§§
ated, or which has been under the control
45-188. See
Boulder v. Boulder
any person,
permitted
to flow down
Company,
Hand Ditch
192 Colo.
Left
the natural channel of a stream below
219,
(1976); Metropolitan
P.2d 1182
557
point
appropriator,
of diversion of the
1
Sewage Disposal District No. v.
Denver
express
...
it works an immediate and
Irrigation Com-
Farmers Reservoir and
permitted
abandonment of all the water
36,
179 Colo.
pany,
escape;
subsequent appropria-
so to
rights
deprived
Garcia,
178,
tors can not be
of their
Lambeye
v.
18 Ariz.
appropriated by
and to this water
them
(1916)
Wedgworth Wedg-
P.
attempt upon
part
an
of the first
(1919),
worth,
518,
Ariz.
I to leave Wedgworth find and Lam- rights. satisfy those beye, support or other Arizona law to conclusion that where the holder of an es- right part
tablished water has abandoned totally consumptive
of his to make a appropriated his
use of he consumptive
thereafter increase his use to the detriment of downstream users who acquired appropriative rights in may have FARM STATE MUTUAL AUTOMOBILE the unconsumed water. COMPANY, an Illinois INSURANCE recognizes majority corporation, Plaintiff-Appellee, the 1921 45-141(A) makes amendment to A.R.S. § surplus appropriable waste or waters Sylvester DIMMER and Germaine D. J. are
downstream users when these waters wife, Dimmer, However, husband flowing in a natural channel. Defendants-Appellants. view, majority’s appro- the downstream priator gain rights against only would oth- 9794. No. CA-CIV users, against er downstream and not words, majori- Cities. In other under the Arizona, Appeals Court ty’s view downstream users could not 1, Department C. Division require discharge the Cities to continue the Nov. its unconsumed water into river. agree initially rights against no 27, 1989. Denied Jan. Reconsideration Cities could be obtained the downstream Denied June 1989.* Review discharged waters. users discharge me that if the appears clear to continue for the statu- by the Cities were to constitute an abandon-
tory period so as to
* Court, J., Moeller, Supreme grant voted to review.