Arizona’s Groundwater Management Act at Forty: Tackling Unfinished Business

30 Pages Posted: 2 May 2020

See all articles by Kirsten H. Engel

Kirsten H. Engel

University of Arizona - James E. Rogers College of Law

Esther Loiseleur

affiliation not provided to SSRN

Elise Drilhon

affiliation not provided to SSRN

Date Written: April 27, 2020

Abstract

Forty years ago, motivated by dropping water tables and land subsidence, Arizona lawmakers enacted the 1980 Groundwater Management Act. At the time, the Act was hailed as the most far-reaching state legislation to control rampant groundwater depletion ever enacted. Despite the rhetoric, however, the Act never dealt with Arizona’s groundwater usage in a comprehensive manner and today its shortcomings are starkly apparent. The Act addressed the groundwater crisis only in the State’s most populous areas, leaving the remainder of the State to the unregulated Wild West of groundwater use, a veritable “tragedy of the commons” perpetuated by the lax “reasonable use” doctrine. Furthermore, it left untouched in the law the hydrologic fallacy that ground and surface waters are distinct. The result is as predictable as it is tragic; plunging water tables in many of Arizona’s rural areas are forcing homeowners and businesses to either drill deeper wells or relocate. Riparian areas are being lost, and with them, Arizona’s unique desert ecosystems.

This Article argues that Arizona lawmakers must return to the drafting table to complete the work they started in 1980—the creation of a groundwater management code, based in science, that will ensure the equitable and sustainable use of groundwater across the entire State for current and future generations. It suggests two options for such future legislation, one embodying a property rights approach and the other a government regulation approach. Under the former, legislation would establish the framework for a groundwater market according to which existing and future groundwater users could purchase and trade the right to pump groundwater. Under the latter, Arizona could balance the powerful state and local interests in groundwater management through an expanded Act that follows “cooperative localism,” a term coined in this Article to refer to a division of governing authority between state and local government in which local governments plan and implement state-imposed groundwater protection requirements. Cooperative localism would provide for local planning in pursuit of a statewide safe yield goal implemented on a basin-by-basin basis.

Today’s groundwater crisis comes at a time when scientists warn that climate change will likely exacerbate current drought conditions, thus placing additional pressure on Arizona’s declining groundwater resources. It also comes at a time when Arizona can expect future reductions in Colorado River supplies as a result of the recently enacted multistate Drought Contingency Plan.

Keywords: Groundwater Management Act, tragedy of the commons, surface water, groundwater market, cooperative localism, climate change, drought, drought contingency plan

Suggested Citation

Engel, Kirsten H. and Loiseleur, Esther and Drilhon, Elise, Arizona’s Groundwater Management Act at Forty: Tackling Unfinished Business (April 27, 2020). 10 Arizona Journal of Environmental Law & Policy 187 (2020); Arizona Legal Studies Discussion Paper No. 20-21. Available at SSRN: https://ssrn.com/abstract=3587160

Kirsten H. Engel (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-621-5444 (Phone)

Esther Loiseleur

affiliation not provided to SSRN

Elise Drilhon

affiliation not provided to SSRN

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