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Kyl & Morrison: Az has more rights than water

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Kyl & Morrison: Az has more rights than water

  • Lingering drought and demand from growing cities have lowered water levels on Lake Mead behind Hoover Dam. The U.S. Interior Department could declare a shortage on the Colorado River as early as 2017.
    USGSLingering drought and demand from growing cities have lowered water levels on Lake Mead behind Hoover Dam. The U.S. Interior Department could declare a shortage on the Colorado River as early as 2017.

The economic and social disruption caused by the extreme drought in California has prompted increasing questions about the water future of the West.

In Arizona, water planners continue to analyze future supply and demand. Beginning to think about a problem before it's a big problem can ensure solutions to tackle shortages are in place before they arrive. Because earlier generations of Arizonans foresaw similar crisis and opportunities, the state as a whole has sufficient water supplies to meet current demands.

Two recent studies, one by the Bureau of Reclamation covering the Colorado River watershed and the other by the Arizona Water Resources Development Commission covering in-state supply and demand, reach similar conclusions. While there are still some conservation and management methods that can extend our current supplies, in the long run, Arizona is going to need additional water sources.

Importing desalinated seawater, the most likely source, will be costly and energy-intensive both to produce and deliver — $1,040 per acre-foot, exclusive of delivery. (An acre-foot would meet the needs, roughly, of a family of five for a year.)

However, there are both things we must do and other things we could do to push that date further into the future (thus taking advantage of additional technological advances in desalination and, potentially, cloud seeding). Who pays the costs of new supplies depends in part on who needs more water. That, in turn, is defined by who has what rights to water.

Up to now, disputes among Arizona water users have been mitigated by the fact that, generally speaking, there has been enough to go around. Now that we are approaching the limits of what our streams and aquifers can provide, it becomes essential to know exactly what water rights each user has.

For example, if a particular user can project that it only has the legal right to a quantity that will meet its needs through the day after tomorrow, it must plan to pay for more — provided such supplies are available. A party whose legal rights secure its needs far into the future might be a temporary source for the user with inferior rights.

But no one can know how to plan or what to invest without knowing his rights. And that brings us to a problem Arizona must solve.

Many of our streams are "oversubscribed," that is, the volume of surface-water rights exceeds the yield of the river. This situation is stressed further by near-stream well owners withdrawing "sub flow" from the river without a legally confirmed surface-water right.

Likewise, there are claims that real groundwater, which can be used only by the landowner above, is being illegally withdrawn by nearby landowners. As a legal matter, it is not always clear who has the legal rights to water. The state is engaged in a process to determine all water rights to surface water, i.e., what falls as snow and rain and what springs from the ground to form streams and rivers.

Since 1974, state courts have been adjudicating the rights to surface water, but the process is far from complete. It is a complex and costly process requiring specialized technical expertise. The Arizona Department of Water Resources, the state entity assigned the job of assisting the courts, has not had sufficient resources (primarily personnel who can provide technical advice to the courts) to accomplish that task in recent years.

Although the parties have settled some major disputes, particularly the claims of some Indian tribes, other disputes will remain, and even the settlements must be confirmed in court.

Finally, resolution of surface-water claims may provide some guidance for resolving competing claims to groundwater that has hydrologic connections to flowing streams.

So, a first order of business is for the state government to fully support the state stream adjudication process, ongoing now for 40 years.

Second, the state and local governments, private parties, environmental groups and the federal government can work more closely and constructively on watershed management, including managing our state and national forests as recommended by the Ecological Restoration Institute at Northern Arizona University.

Some estimates show an increase of more than 10 percent of high-quality water run-off into our streams if small-diameter dense forest thickets are thinned and underbrush is allowed to burn. This will have the added benefits of job creation and reducing the risk of catastrophic wildfires in Arizona.

These are just two things that we can begin doing, not just talking about, to secure our water future.

Former U.S. Sen. Jon Kyl is senior of counsel at Covington & Burling LLP in Washington, D.C., and teaches at Arizona State University. Richard Morrison, chairman of the Morrison Institute for Public Policy board of advisers and an attorney with Salmon, Lewis & Weldon PLC in Phoenix, has concentrated on water and conservation issues for 30 years.

Morrison Institute for Public Policy is a leader in examining critical Arizona and regional issues, and is a catalyst for public dialogue. An Arizona State University resource, Morrison Institute uses nonpartisan research and communication outreach to help improve the state's quality of life.

Arizona's water future: Get involved

As part of the ongoing discussion of Arizona's water future, the Morrison Institute for Public Policy at Arizona State University has posted a report by retired water lawyer M. Byron Lewis that expands on themes offered in the Viewpoints column by Jon Kyl and Richard Morrison. The report is available on a special webpage: Arizona's Water Future.

Also on the website is a list of questions prepared by Kyl, Morrison, Lewis and Grady Gammage Jr., a Morrison Institute senior research fellow and past Central Arizona Project president, on water policy and water choices.

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