ADWR Director Rejects AZ Water Transfer to Nevada

A proposal that would have allowed a company to pump water from rural northwestern Arizona to Nevada was rejected by the director of Arizona Department of Water Resource. ADWR Director Herb Guenther’s action was the latest move in an ongoing controversy that has raised the issue whether Arizona law is effective at prohibiting the interstate transfer of water. It is a situation with broad implications.
Guenther’s decision was in accord with the recommendation of an administrative law judge who conducted a three-day hearing on the issue in March.

The next move could be up to the applicant Wind River Resource whether to seek a rehearing, file a new application or challenge the denial in court.

The controversy is being played out in a remote, rugged and sparsely populated corner of Arizona, in the far northwest part of the state, an area where Arizona, Nevada and Utah lie in close proximity. Sides in the controversy are drawn along the Arizona-Nevada border, with the Arizona Strip communities of Beaver Dam, Littlefield and Scenic on one side. Population in that area is estimated to be between 4,000 and 5,000, mostly retirees and ranchers. On the other side of the dispute, ten miles away and across the stateline, is the rapidly growing town of Mesquite, Nevada.

At issue is whether WRR, a Nevada-based Arizona limited liability company, can export groundwater from Beaver Dam Wash in the Littlefield area across the stateline to Mesquite, Nevada. The broader issue has to do with Arizona’s ability to prevent other such incidents occurring, not only along its border with Nevada, but also along borders shared with the neighboring states of California, Utah and New Mexico.
Opposing the application are mostly residents in the Beaver Dam or Littlefield areas, owners of the area’s businesses, houses and land. They fear for their water supplies. Favoring the application are developers in Mesquite, Nevada, and Scenic, Arizona

Whatever legal action Arizona takes must abide by a U.S. Supreme Court ruling that held that groundwater is an article of interstate commerce subject to congressional regulation. States, therefore, cannot regulate it in a manner that interferes with the Commerce Clause. Passed seven years after the Supreme Court decision, an Arizona law sets conditions allowing water to be transported out of Arizona.

Arizona Revised Statutes § 45-292 states, “A person may withdraw, or divert, and transport water from this state for a reasonable and beneficial use in another state if approved by the director pursuant to this article.” According to statute, the ADWR director decides whether to approve the application after considering such matters as potential harm to the public welfare of Arizona citizens; Arizona’s water supplies and its current and future demands statewide and in particular the proposed source area; and the availability of alternative sources of water in the other state.

On November 1, Thomas Shedden, the administrative judge who conducted the three-day hearing, issued his recommendation that the Wind River application be denied. He said the company was deficient in updating key aspects and in submitting hydrological studies showing the pumping’s likely impact on the Mormon Wells area. He also said the company provided inaccurate information.

Shedden said that as a result ADWR lacked sufficient information to determine whether Wind River had in fact complied with Arizona’s law determining whether exported water would be used for a “reasonable and beneficial” use in another state. Further, Shedden dismissed as premature Wind River’s argument that the Arizona law requiring the state to grant permission to export water is unconstitutional.

Shedden submitted his recommendation to Guenther who then decided whether or not to approve the application. He essentially accepted the recommendation with few changes.

In response to the situation Republican Rep. Trish Groe of Lake Havasu City proposed earlier this year legislation making it more difficult to transfer water outside of Arizona. The bill did not pass.

WRRC Has Role in Newly Funded Transboundary Aquifer Assessment

The passage of the FY 08 omnibus appropriations bill will enable the University of Arizona’s Water Resources Research Center, along with the water institutes in New Mexico and Texas, to begin work on the new United States-Mexico Transboundary Aquifer Assessment Program. The bill includes $500,000 in the U. S. Geological Survey budget for start-up funding for the program. Authorized in Public Law 109-448 at the end of 2006, the transboundary program directs the USGS and the designated state water institute programs to develop and carry out a systematic assessment of priority transboundary aquifers, in collaboration with Mexican partners.

The program is authorized for a total of 10 years and $50 million. Arizona’s priority transboundary aquifers are the Santa Cruz River Valley and the San Pedro aquifers; both underlie Arizona and Sonora, Mexico. To ensure effective use of the federal dollars, the WRRC is coordinating bi-national discussions to plan an integrated scientific approach to assess the priority aquifers.

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