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Surface Water

Surface Water Rights

Surface Water Rights

Surface Water - Answers To Frequently Asked Questions

1. What is the definition of surface water?

Arizona Revised Statutes § 45-101 defines surface water as “waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, floodwaters, wastewaters, or surplus water, and of lakes, ponds and springs on the surface.”

2. What is the Public Water Code?

Early in its history, Arizona adopted the doctrine of prior appropriation to govern the use of surface water. This doctrine is based on the tenet of “first in time, first in right” which means that the person who first puts the water to a beneficial use acquires a right that is better than later appropriators of the water. Prior to June 12, 1919, a person could acquire a surface water right simply by applying the water to a beneficial use and posting a notice of the appropriation at the point of diversion. On June 12, 1919, the Arizona surface water code was enacted. Now known as the Public Water Code, this law provides that a person must apply for and obtain a permit in order to appropriate surface water.

3. What is beneficial use?

The Public Water Code provides that beneficial use shall be the basis, measure and limit to the use of water within the state, A.R.S. § 45-141(B). Per A.R.S. § 45-151(A) beneficial uses are: domestic (which includes the watering of gardens and lawns not exceeding one-half acre), municipal, irrigation, stockwatering, water power, recreation, wildlife including fish, nonrecoverable water storage, and mining uses.

4. What quantities of water are considered reasonable for the various beneficial uses?

The quantity of water that is reasonable for a particular beneficial use depends on a number of factors, including the location of the use. For that reason, the Arizona Department of Water Resources will determine the quantity of water that may be appropriated for the beneficial uses on a case by case basis.


5. What types of surface water right filings are made with the Arizona

Department of Water Resources to appropriate or claim water rights?

1. Applications for Permit to Appropriate Public Water of the State of Arizona or to Construct a Reservoir (33’s, 4A’s, 3R’s).

A permit from the state is necessary to use or divert surface water in this state unless one of the following applies: 1) the water is from the mainstream of the Colorado river, in which case a contract with the Secretary of the Interior is required; 2) the person or the person’s predecessor-in-interest, lawfully appropriated the water prior to June 12, 1919 and the person or the person’s predecessor-in-interest has filed a statement of claim for the appropriation with the state; or 3) the water is stored in a stockpond constructed after June 12, 1919 and before August 27, 1977.

Prior to 1972, an application to appropriate surface water was assigned a number with the prefix “4A” and an application to construct a reservoir was assigned a number with the prefix “3R”. After 1972, the two applications were consolidated. A person now applies for a permit to appropriate public water by completing an application form, “Application for Permit to Appropriate Public Water or to Construct a Reservoir”, and submitting it to the Arizona Department of Water Resources (Department) with proper filing fee. These applications are now assigned a number with the prefix “33”.

The Department is required to approve an application made in proper form unless the proposed use conflicts with vested rights, is a menace to public safety, or is against the interests and welfare of the public.

An application to appropriate public water moves through a number of administrative steps culminating in the Department’s approval or rejection of the application. If the application is approved, a permit to appropriate is issued to the applicant. A permit authorizes the permit holder to construct the diversion works and put the water to a beneficial use. After approval of a permit the permit holder has two years to construct the diversion works and one year to put the water to beneficial use (unless additional time is justified and allowed by the Department), A.R.S. § 45-160. After the permit holder submits proof of the appropriation, through the “Application for Certification (proof of appropriation)”, the Department issues the permit holder a Certificate of Water Right (CWR) with a priority date that relates back to the date of the application. A CWR evidences a perfected surface water right that is superior to all other surface water rights with a later priority date, but junior to all rights with an earlier (older) priority date. All permits and certificates are for specific uses at specific places and are endorsed with the priority date and extent and purpose(s) of the right(s). The right must be beneficially used or it may be subject to abandonment and forfeiture.

2. Applications for Permit to Appropriate Public Water of the State of Arizona For Instream Flow Purposes (33’s).

An application for a permit to appropriate public water for instream flow purposes may be filed for the purposes of recreation or wildlife, including fish, in a specific stream reach without diverting the water from the stream. A person applies for a permit to appropriate public water for an instream flow use by completing an application form, “Application for Permit to Appropriate Public Water of the State of Arizona Instream Flow Maintenance” and submitting it to the Arizona Department of Water Resources (Department) with the proper filing fee and streamflow study as described in the instructions included with the application form. These applications are assigned a number with the prefix “33.”

The Department is required to approve an application made in proper form unless the proposed use conflicts with vested rights, is a menace to public safety, or is against the interests and welfare of the public.

An application to appropriate public water for instream flow purposes, moves through a number of administrative steps culminating in the Department’s approval or rejection of the application. After the permit holder submits proof of the appropriation (through the “Application for Certification - Instream Flow (Proof of Appropriation)”), the Department issues the permit holder a Certificate of Water Right (CWR) with a priority date that relates back to the date of the application. A CWR evidences a perfected surface water right that is superior to all other surface water rights with a later priority date, but junior to all rights with an earlier (older) priority date. All permits and certificates are for specific uses at specific places and are endorsed with the priority date and extent and purpose(s) of the right(s). The right must be beneficially used or it may be subject to abandonment and forfeiture. The application form and instructions can be found by clicking this link: APPLICATION FOR PERMIT TO APPROPRIATE PUBLIC WATER OF THE STATE OF ARIZONA FOR INSTREAM FLOW PURPOSES Acrobat Icon PDFs

3. Claim of Water Right for a Stockpond and Application for Certification (38’s)

Stockponds are artificially constructed ponds used for watering livestock and wildlife. Many Stockponds were constructed after June 12, 1919 without compliance with the permit requirements of the Public Water Code. Recognizing the large number of “unpermitted stockponds, the Legislature enacted legislation in 1977 granting water rights to the owners of those unpermitted stockpond that were in existence at that time. This legislation, known as the Stockpond Registration Act of 1977, provides that an owner of a stockpond has a valid water right in the stockpond and is eligible upon evidence of the following:

 

1. The stockpond was constructed after June 12, 1919 and prior to August 27, 1977.
2. The stockpond is used exclusively for watering of livestock and/or wildlife.
3. The stockpond has a maximum capacity of 15 acre-feet.
4. The stockpond was not the subject of water rights litigation or protest prior to August 27, 1977.

An owner of a stockpond that meets the criteria described above may file with the Department a “Claim of Water Right for a Stockpond and Application for Certification”. Upon receipt of a claim of water right for a stockpond, the Department assigns the claim a number with the prefix “38”.

The Department is required to issue notice of the claim to water users who might be affected by the use of water. Affected persons may file a written protest to the claim. The Department may conduct an investigation of the claim, including an inspection of the stockpond, and may hold a hearing to determine any material fact in dispute. The Department issues a certification of the water right if it finds that the facts stated in the claim are true and entitle the claimant to a water right for the stockpond.

The priority date of a water right granted by the Stockpond Registration Act of 1977 depends on the date the owner of the stockpond files a claim of water right for the stockpond. If the owner files a claim of water right prior to March 17, 1996, the priority date is the date of construction. Otherwise, the priority date is the date of filing of the claim.

A water right granted by the Stockpond Registration Act of 1977 is junior to the following water right: 1) any water right issued pursuant to an application to appropriate filed with the State Land Department or its predecessors prior to August 27, 1977; 2) rights to the use of the mainstream waters of the Colorado River; 3) rights previously acquired or validated by contract with the United States, court decree, or other adjudication; and 4) rights acquired prior to June 12, 1919 and registered under the statement of claim procedure(“36” filings) described below.

4. Statement of Claim of Rights to Use Public Waters of the State of Arizona (36’s).

When the Public Water Code was adopted on June 12, 1919, it did not address surface water rights existing prior to its enactment. Under the Water Rights Registration Act (A.R.S. § 45-180, et seq.) a person who before March 17, 1995 was using and claimed the right to use public waters of the state based on state law may file a “Statement of Claim” for both pre and post June 12, 1919 claims. Statements of Claim may be filed up to 90 days before the Director files the final hydrographic survey report for the watershed or federal reservation in which the claimed right is located (A hydrographic survey report is a report prepared by the director pursuant to A.R.S. § 45-256 for those subwatersheds and federal reservation that are part of a general stream adjudication).

The act of filing a Statement of Claim does not create a water right nor does it constitute an adjudication of the claim. While the Statement of Claim itself is admissible in evidence as a rebuttal presumption of the truth and accuracy of the information contained in the claim, no judicial determination regarding the right and priorities of the claimant has been made. A claim made under the Water Rights Registration Act is subject to challenge. A Statement of Claim filed under the Water Rights Registration Act is assigned a number with the prefix “36”.

6. What needs to be done when purchasing a piece of property that has a surface water right or claim?

Pursuant to A.R.S. § 45-164, the Arizona Department of Water Resources (Department) maintains a registry of applications, permits, and certificates of water right. In order for the Department to maintain a current registry of water right filings, any person who conveys real property to which a water right, claim, or filing is associated and who intends to assign the water right, claim, or filing to the new owner must complete and file with the Department a “Request for Assignment of Surface Water Applications and Claims” form.

A person who has purchased or is purchasing real property may contact the Department to find out if there are any water rights, claims, or filings associated with the land. This is accomplished most easily by providing a legal description that includes the section, township, and range of the property and/or a parcel number. The Department will conduct a search of the registry database and provide you with the water rights information.

7. Is it possible to use a surface water right or claim at a different location than that listed on the Certificate of Water Right or Statement of Claim?

A change in the place of use of a surface water right is referred to as a “severance and transfer” of the right. In most cases, a person must obtain the approval of the Director in order to sever and transfer a surface water right. In addition, the person must also obtain the approval of irrigation district, agricultural improvement district, or water users’ association if water is used on land within their boundaries or is in the same watershed or drainage area.

Approval by the Director is not required for the severance and transfer of an irrigation water right appurtenant to lands within the boundaries of an irrigation district to other lands within the boundaries of the same irrigation district for agricultural use. Such a severance and transfer may be accomplished by excluding from the boundaries of the irrigation district the lands to which the right is appurtenant and including within the boundaries of the district the land to which the right is to be transferred. Only the consents of the irrigation district and the owners of the lands affected by the severance and transfer are required.

When the approval by the Director is required, a person wishing to sever and transfer a water right must file an “Application for Severance and Transfer” with the Director. The Director is required to give notice of the application by publication once a week for three consecutive weeks in a newspaper of general circulation within the county in which the watershed or drainage area is located. Interested persons are given the opportunity to file written objections to the proposed severance and transfer within 30 days after the last publication of the notice. In appropriate cases, including cases in which an objection has been filed, the Director may hold a hearing.

The Director may not approve an application for severance and transfer of a water right if the transfer would interfere with vested or existing rights to the use of water; if the water right sought to be transferred was not lawfully perfected under the laws of the territory or the state of Arizona; or if the water right sought to be transferred has been forfeited or abandoned.

8. Is it possible to use a surface water right for a purpose other than that listed on the Certificate of Water Right or Statement of Claim?

A person may add a new use only by applying for and obtaining a permit to appropriate the water for the new use. The application will be processed in the same manner as any other permit to appropriate surface water and the priority date of the new water right will be the date the application was filed.

A person may change an existing use to a different use by filing a “Change of Use” application with the Department. If the existing use is for irrigation, domestic or municipal use, the use may not be changed without the approval of the Director. If the change contemplates generating hydroelectric energy or power of over twenty-five thousand horsepower, approval will not be granted unless authorized by an act of the legislature, § 45-156 (B). When a change in use has been effected, the new use retains the same priority date as the old use.

9. How do I amend an application, permit, Certificate of Water Right or claim?

Amendments to documents filed with the Arizona Department of Water Resources (Department) will be limited and will be reviewed on a case by case basis. Requests for an amendment must be made on official amendment forms. The Department will not accept requests for amendments that are not made on the proper form. There is no fee for amending an application, permit, Certificate of Water Right or Claim.

10. What is the Arizona Department of Water Resources Public Notice Watershed Subscription Service?

The Department mails a notice of applications processed by the surface water rights unit to subscribers of the Public Notice Watershed Subscription Service. Subscribers receive summary notifications twice monthly (the 1st day and the 15th day). If no activity occurs, no summary notifications are mailed out. In order to subscribe to this service a “Public Notice Subscription Service” form needs to be filled out and submitted to the Department.

 



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