ARIZONA DEPARTMENT OF WATER RESOURCES Surface Water Permitting Unit

1. ARIZONA DEPARTMENT OF WATER RESOURCESSurface Water Permitting Unit SURFACE WATER

2. Mission Statement To ensure a long-term, sufficient, and secure water supply for the State by promoting, allocating, and comprehensively managing, in an environmentally and economically sound manner, the rights and interest of the State’s surface water resources for the citizens of Arizona.

3. Surface Water 2 Surface Water Definition: “The waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, floodwaters, wastewater, or surplus water, and of lakes, ponds, and springs on the surface…” (Arizona Revised Statutes § 45-141)

4. History • 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 senior to 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.

5. Public Water Code 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 unless: • The water is from the mainstream of the lower Colorado river, in which case a contract with the Secretary of the Interior is required. • The person or the person’s predecessor-in-interest, lawfully appropriated the water prior to March 17, 1995 and the person or the person’s predecessor-in-interest has filed with the Department a “Statement of Claim of Right to Use Public Waters of the State of Arizona”. • The water is stored in a stockpond constructed after June 12, 1919 and before August 27, 1977 and the person or the person’s predecessor-in-interest has filed with the Department a “Claim of Water Right for a Stockpond and Application for Certification”.

6. Beneficial Use The Public Water Code provides that beneficial useshall be the basis, measure and limit to the use of water within the state, Arizona Revised Statute § 45-141(B). Beneficial uses are: • domestic (which includes the watering of gardens and lawns not exceeding one-half acre), • municipal • irrigation • stockwatering • recreation • wildlife including fish • nonrecoverable water storage pursuant to section § 45-833.01 • mining Arizona Revised Statute § 45-151(A)

7. Types of Filings • Application for Permit to Appropriate Public Water of the State of Arizona or to Construct a Reservoir

8. Application for Permit to Appropriate Public Water of the State of Arizona or to Construct a Reservoir • Filing an “Application for Permit to Appropriate Public Water of the State of Arizona or to Construct a Reservoir” is the first step in obtaining a surface water right. If the application is approved, a permit is issued which authorizes the construction of the necessary works to capture or divert surface water and put it to beneficial use. • The permit holder has two years to begin construction of the diversion works and up to 5 years to put the water to beneficial use. • Upon evidence that the works have been constructed and the water has been put to beneficial use the permit holder files an “Application for Certificate of Water Right (Proof of Appropriation)” which is the second and final step in obtaining a surface water right. If the second application is approved, a Certificate of Water Right is issued evidencing a perfected surface water right. • All permits and certificates list the extent and purpose of the right, are endorsed with a priority date that relates back to the file date of the application and are for specific uses at specific places of use. (Arizona Revised Statute § 45-151, et seq.)

9. Types of Filings • Application for Permit to Appropriate Public Water of the State of Arizona or to Construct a Reservoir • Application for Permit to Appropriate Public Water of the State of Arizona for Instream Flow Purposes

10. Application for Permit to Appropriate Public Water of the State of Arizona for Instream Flow Purposes • An instream flow application is defined as “..an application for a permit to make an appropriation of water for purposes of recreation or wildlife, including fish, in a specific stream reach without diverting the water from the stream.” • Filing an “Application for Permit to Appropriate Public Water of the State of Arizona for Instream Flow Purposes” is the first step in obtaining a surface water right for instream flow purposes. The applicant must submit a minimum of five years of streamflow measurement data at the time the application is filed. Approval of the application results in the issuance of a permit. • The permit holder has four years to demonstrate that the instream flow water right is being used in a manner consistent with the terms of the permit. • Upon evidence that the water has been put to beneficial use the permit holder files an “Application for Certificate of Water Right (Proof of Appropriation) for Instream Flow Purposes” which is the second and final step in obtaining a surface water right. If the second application is approved a Certificate of Water Right is issued evidencing a perfected surface water right. • All permits and certificates list the extent and purpose of the right, are endorsed with a priority date that relates back to the file date of the application and are for specific uses at specific places of use. (Arizona Revised Statute § 45-152.01, et seq.)

11. Types of Filings • Application for Permit to Appropriate Public Water of the State of Arizona or to Construct a Reservoir • Application for Permit to Appropriate Public Water of the State of Arizona for Instream Flow Purposes • Claim of Water Right for a Stockpond and Application for Certification

12. Claim of Water Right for a Stockpond and Application for Certification The Stockpond Registration Act of 1977 (Arizona Revised Statute § 45-271, et seq.) provides that an owner of a stockpond has a valid water right in the stockpond and is eligible to file with the Department a “Claim of Water Right for a Stockpond and Application for Certification”upon evidence of the following: • The stockpond was constructed after June 12, 1919 and prior to August 27, 1977. • The stockpond is used exclusively for watering of livestock and/or wildlife. • The stockpond has a maximum capacity of 15 acre-feet • The stockpond was not the subject of water rights litigation or protest prior to August 27, 1977. The Department issues a Certificate 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. (Arizona Revised Statute § 45-271, et seq.)

13. Types of Filings • Application for Permit to Appropriate Public Water of the State of Arizona or to Construct a Reservoir • Application for Permit to Appropriate Public Water of the State of Arizona for Instream Flow Purposes • Claim of Water Right for a Stockpond and Application for Certification • Statement of Claim of Right to Use Public Waters of the State of Arizona 

14. Statement of Claim of Right to Use Public Waters of the State of Arizona • Under the Water Rights Registration Act, a person who before March 17, 1995 was using public waters of the state based on state law may claim the right by filing a “Statement of Claim of Right to Use Public Waters of the State of Arizona” for both pre and post June 12, 1919 claims. • The act of filing a Statement of Claim does not create a water right nor does it constitute an adjudication of the claim; no judicial determination regarding the right and priorities of the claimant has been made. (Arizona Revised Statute § 45-181, et seq.)

15. Court Decreed Rights Decreed rights are surface water rights which have been determined through judicial action in a state or federal court. Some of the majors decrees are: • Globe Equity No. 59 (also known as the “Gila Decree”) was entered in the United States District Court, in and for the District of Arizona (Tucson), on June 29, 1935. • The Kent Decree (Hurley v. Abbott) was entered in Territorial District Court in 1910. It established rights to the Salt River from diversions occurring at that time from Granite Reef and Joint Head diversion dams, which generally conforms to the present Salt River Project water service area. • The Benson v. Allison Decree was enter in State Superior Court in 1917. It established rights to the lower Agua Fria River, the Salt River below Joint Head Diversion Dam, and the Gila River from the Salt River confluence to the Buckeye Irrigation Company canal heading. • The Little Colorado River system contains one major decree known as the “Norviel Decree”, which is comprised of four judicial actions involving rights to the Little Colorado River from the vicinity of St. Johns to the headwaters of the river. • The Concho Decree determined the relative rights to the use of the waters of Concho Springs and Concho Creek in Apache County.

16. Request Changes to Certificates and Claims • Application to Sever and Transfer a Water Right or Claim

17. Application to Sever and Transfer a Water Right or Claim • A change in the place of use of a surface water right is referred to as a “sever and transfer” of the right. The sever and transfer may also involve a transfer of ownership, changes in beneficial uses and point of diversion. • A person requests a sever and transfer by filing an “Application to Sever and Transfer a Water Right or Claim” with the Department. • The applicant must obtain the approval of the 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. This approval must be submitted with the application. • An applicant must obtain the approval of the Director to sever and transfer a surface water right or claim. • Priority dates are maintained. (Arizona Revised Statutes § 45-172)

18. Request Changes to Certificates and Claims • Application to Sever and Transfer a Water Right or Claim • Change in Beneficial Use

19. Change in Beneficial Use Add a new use • A person may add a new beneficial 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. Change an existing use • A person may change an existing beneficial use to a different beneficial use by filing a “Change in Beneficial Use” with the Department. In most cases, 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, Arizona Revised Statute § 45-156 (B). When a change in use has been effected, the new use retains the same priority date as the old use.

20. Request Changes to Certificates and Claims • Application to Sever and Transfer a Water Right or Claim • Change in Beneficial Use • Request for Assignment of Surface Water Filings

21. Request for Assignment of Surface Water Filings • Pursuant to Arizona Revised Statute § 45-164, the Arizona Department of Water Resources maintains a registry of applications, permits, and certificates of water right. • 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 Filings”.

22. Request Changes to Certificates and Claims • Application to Sever and Transfer a Water Right or Claim • Change in Beneficial Use • Request for Assignment of Surface Water Filings • Amendments

23. Amendments Amending an Application, Permit, Certificate or Claim • Amendments are reviewed on a case by case basis. • Requests for an amendment must be made on official amendment forms and filed with the Department.

24. Thank you For any additional questions please contact the Arizona Department of Water Resources, Surface Water Permitting Unit at 602.771.8621