First Regular Session H.B. 2013
PROPOSED
SENATE AMENDMENTS TO H.B. 2013
(Reference to House engrossed bill)
Page 1, between lines 1 and 2, insert:
"Section 1. Section 45-101, Arizona Revised Statutes, is amended to read:
45-101. Definitions
In this title, unless the context otherwise requires:
1. "Appropriator" means the person or persons initiating or perfecting the right to use appropriable water based on state law, or the person's successor or successors in interest.
2. "Department" means the department of water resources.
3. "Director" means the director of water resources, who is also the director of the department.
4. "Ecological water" means water sufficient to sustain freshwater ecosystems and the wildlife habitat and human livelihoods and well‑being that depend on those ecosystems.
4. 5. "Effluent" means water that has been collected in a sanitary sewer for subsequent treatment in a facility that is regulated pursuant to title 49, chapter 2. Such water remains effluent until it acquires the characteristics of groundwater or surface water.
5. 6. "Groundwater" means water under the surface of the earth regardless of the geologic structure in which it is standing or moving. Groundwater does not include water flowing in underground streams with ascertainable beds and banks.
6. 7. "Interstate stream" means any stream constituting or flowing along the exterior boundaries of this state, and any tributary originating in another state or foreign country and flowing into or through this state.
7. 8. "Riparian area" means a geographically delineated area with distinct resource values, that is characterized by deep-rooted plant species that depend on having roots in the water table or its capillary zone and that occurs within or adjacent to a natural perennial or intermittent stream channel or within or adjacent to a lake, pond or marsh bed maintained primarily by natural water sources. Riparian area does not include areas in or adjacent to ephemeral stream channels, artificially created stockponds, man-made storage reservoirs constructed primarily for conservation or regulatory storage, municipal and industrial ponds or man‑made water transportation, distribution, off-stream storage and collection systems.
8. 9. "Sanitary sewer" means any pipe or other enclosed conduit that carries, among other substances, any water-carried wastes from the human body from residences, commercial buildings, industrial plants or institutions.
9. 10. "Surface water" means the waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, floodwater, wastewater or surplus water, and of lakes, ponds and springs on the surface. For the purposes of administering this title, surface water is deemed to include central Arizona project water.
Sec. 2. Section 45-105, Arizona Revised Statutes, is amended to read:
45-105. Powers and duties of director
A. The director may:
1. Formulate plans and develop programs for the practical and economical development, management, conservation and use of surface water, groundwater and the watersheds in this state, including the management of water quantity and quality.
2. Investigate works, plans or proposals pertaining to surface water and groundwater, including management of watersheds, and acquire, preserve, publish and disseminate related information the director deems advisable.
3. Collect and investigate information on and prepare and devise means and plans for the development, conservation and utilization of all waterways, watersheds, surface water, groundwater and groundwater basins in this state and of all related matters and subjects, including irrigation, drainage, water quality maintenance, regulation of flow, diversion of running streams adapted for development in cooperating with the United States or by this state independently, flood control, utilization of water power, prevention of soil waste and storage, conservation and development of water for every useful purpose.
4. Measure, survey and investigate the water resources of this state and their potential development and cooperate and contract with agencies of the United States for such purposes.
5. Acquire, hold and dispose of property, including land, rights‑of‑way, water and water rights, as necessary or convenient for the performance of the groundwater and water quality management functions of the department.
6. Acquire, other than by condemnation, construct, improve, maintain and operate early warning systems for flood control purposes and works for the recovery, storage, treatment and delivery of water.
7. Accept grants, gifts or donations of money or other property from any source, which may be used for any purpose consistent with this title. All property acquired by the director is public property and is subject to the same tax exemptions, rights and privileges granted to municipalities, public agencies and other public entities.
8. Enter into an interagency contract or agreement with any public agency pursuant to title 11, chapter 7, article 3 and contract, act jointly or cooperate with any person to carry out the purposes of this title.
9. Prosecute and defend all rights, claims and privileges of this state respecting interstate streams.
10. Initiate and participate in conferences, conventions or hearings, including meetings of the Arizona water resources advisory board, congressional hearings, court hearings or hearings of other competent judicial or quasi‑judicial departments, agencies or organizations, and negotiate and cooperate with agencies of the United States or of any state or government and represent this state concerning matters within the department's jurisdiction.
11. Apply for and hold permits and licenses from the United States or any agency of the United States for reservoirs, dam sites and rights‑of‑way.
12. Receive and review all reports, proposed contracts and agreements from and with the United States or any agencies, other states or governments or their representatives and recommend to the governor and the legislature action to be taken on such reports, proposed contracts and agreements. The director shall take action on such reports, if authorized by law, and review and coordinate the preparation of formal comments of this state on both the preliminary and final reports relating to water resource development of the United States army corps of engineers, the United States secretary of the interior and the United States secretary of agriculture, as provided for in the flood control act of 1944 (58 Stat. 887; 33 United States Code section 701‑1).
13. Contract with any person for imported water or for the acquisition of water rights or rights to withdraw, divert or use surface water or groundwater as necessary for the performance of the groundwater management functions of the director prescribed by chapter 2 of this title. If water becomes available under any contract executed under this paragraph, the director may contract with any person for its delivery or exchange for any other water available.
14. Recommend to the administrative heads of agencies, boards and commissions of this state, and political subdivisions of this state, rules to promote and protect the rights and interests of this state and its inhabitants in any matter relating to the surface water and groundwater in this state.
15. Conduct feasibility studies and remedial investigations relating to groundwater quality and enter into contracts and cooperative agreements under section 104 of the comprehensive environmental response, compensation, and liability act of 1980 (P.L. 96‑510) to conduct such studies and investigations.
16. Dispose informally by stipulation, agreed settlement, consent order or alternative means of dispute resolution, including arbitration, if the parties and director agree, or by default of any case in which a hearing before the director is required or allowed by law.
17. Cooperate and coordinate with the appropriate governmental entities in Mexico regarding water planning in areas near the border between Mexico and Arizona and for the exchange of relevant hydrological information.
B. The director shall:
1. Exercise and perform all powers and duties vested in or imposed on the department and adopt and issue rules necessary to carry out the purposes of this title.
2. Administer all laws relating to groundwater, as provided in this title.
3. Be responsible for the supervision and control of reservoirs and dams of this state and, when deemed necessary, conduct investigations to determine whether the existing or anticipated condition of any dam or reservoir in this state is or may become a menace to life and property.
4. Coordinate and confer with and may contract with:
(a) The Arizona power authority, the game and fish commission, the state land department, the Arizona outdoor recreation coordinating commission, the Arizona commerce authority, the department of health services, active management area water authorities or districts and political subdivisions of this state with respect to matters within their jurisdiction relating to surface water and groundwater and the development of state water plans.
(b) The department of environmental quality with respect to title 49, chapter 2 for its assistance in the development of state water plans.
(c) The department of environmental quality regarding water plans, water resource planning, water management, wells, water rights and permits, and other appropriate provisions of this title pertaining to remedial investigations, feasibility studies, site prioritization, selection of remedies and implementation of the water quality assurance revolving fund program pursuant to title 49, chapter 2, article 5.
(d) The department of environmental quality regarding coordination of databases that are necessary for activities conducted pursuant to title 49, chapter 2, article 5.
5. Cooperate with the Arizona power authority in the performance of the duties and functions of the authority.
6. Maintain a permanent public depository for existing and future records of stream flow, groundwater levels and water quality and other data relating to surface water and groundwater.
7. Maintain a public docket of all matters before the department that may be subject to judicial review pursuant to this title.
8. Investigate and take appropriate action on any complaints alleging withdrawals, diversions, impoundments or uses of surface water or groundwater that may violate this title or the rules adopted pursuant to this title.
9. Report to and consult with the Arizona water resources advisory board at regular intervals.
10. 9. Adopt an official seal for the authentication of records, orders, rules and other official documents and actions.
11. 10. Provide staff support to the Arizona water protection fund commission established pursuant to chapter 12 of this title.
12. 11. Exercise and perform all powers and duties invested in the chairperson of the Arizona water banking authority commission as prescribed by chapter 14 of this title.
13. 12. Provide staff support to the Arizona water banking authority established pursuant to chapter 14 of this title.
14. 13. In the year following each regular general election, present information to the committees with jurisdiction over water issues in the house of representatives and the senate. A written report is not required but the presentation shall include information concerning the following:
(a) The current status of the water supply in this state and any likely changes in that status.
(b) Issues of regional and local drought effects, short‑term and long‑term drought management efforts and the adequacy of drought preparation throughout the state.
(c) The status of current water conservation programs in this state.
(d) The current state of each active management area and the level of progress toward management goals in each active management area.
(e) Issues affecting management of the Colorado river and the reliability of this state's two million eight hundred thousand acre‑foot allocation of Colorado river water, including the status of water supplies in and issues related to the Colorado river basin states and Mexico.
(f) The status of any pending or likely litigation regarding surface water adjudications or other water related litigation and the potential impacts on this state's water supplies.
(g) The status of Indian water rights settlements and related negotiations that affect this state.
(h) The status and health of this state's ecological water.
(h) (i) Other matters related to the reliability of this state's water supplies, the responsibilities of the department and the adequacy of the department's and other entities' resources to meet this state's water management needs.
Sec. 3. Section 45-151, Arizona Revised Statutes, is amended to read:
45-151. Right of appropriation; permitted uses; water rights in stockponds; federal lands
A. Any person, the this state of Arizona or a political subdivision thereof of this state may appropriate unappropriated water for domestic, municipal, ecological water, irrigation, stock watering, water power, recreation, wildlife, including fish, nonrecoverable water storage pursuant to section 45‑833.01 or mining uses, for his personal use or for delivery to consumers. The person, the this state of Arizona or a political subdivision thereof of this state first appropriating the water shall have the better right.
B. To effect the beneficial use, the person, the this state of Arizona or a political subdivision thereof of this state appropriating the water may construct and maintain reservoirs, storage facilities pursuant to chapter 3.1 of this title, dams, canals, ditches, flumes and other necessary waterways.
C. A water right in a stockpond, certified pursuant to article 10 of this chapter, shall be recognized as if such water had been appropriated pursuant to this article.
D. The validity of and the right to exercise a water right obtained in accordance with state law shall not be diminished, impaired or otherwise affected because other water is or may be available to the appropriator from an alternative right or source to satisfy the same use.
E. The right to water appropriated on lands owned by the United States shall be held by the person who first effects the beneficial use of the water appropriated and by the person's successor. This subsection shall does not be construed to preclude the United States from being the holder of a right if the United States first effects the beneficial use.
F. A water source that is located on land owned by the United States and that has been or may be appropriated under state law may be beneficially used on any land whether or not owned by the United States.
Sec. 4. Section 45-172, Arizona Revised Statutes, is amended to read:
45-172. Transfer of water rights; application; limitations; required consent
A. A water right may be severed from the land to which it is appurtenant or from the site of its use if for other than irrigation purposes and with the consent and approval of the owner of such right may be transferred for use for irrigation of agricultural lands or for municipal, ecological water, stock watering, power and mining purposes and to the state or its political subdivisions for use for recreation and wildlife purposes, including fish, without losing priority theretofore established, subject to the following limitations and conditions:
1. Except as otherwise provided in this section no such severance or transfer shall be made unless approved by the director, and the approval of the director shall prescribe the conditions of the approval.
2. Vested or existing rights to the use of water shall not be affected, infringed upon nor on or interfered with, and in no event shall the water diverted or used after the transfer of such rights exceed the vested rights existing at the time of such severance and transfer, and the director shall by order so define and limit the amount of water to be diverted or used annually subsequent to such transfer.
3. The water rights sought to be transferred shall have been lawfully perfected under the laws of the territory or the state of Arizona and shall not have thereafter been forfeited or abandoned.
4. No such severance or transfer of water rights shall be permitted or allowed from lands within the exterior boundaries of any irrigation district, agricultural improvement district or water users' association without first having obtained the written consent and approval of such irrigation district, agricultural improvement district or water users' association.
5. No right to the use of water on or from any watershed or drainage area which that supplies or contributes water for the irrigation of lands within an irrigation district, agricultural improvement district or water users' association shall be severed or transferred without the consent of the governing body of such irrigation district, agricultural improvement district or water users' association. All proposed applications for the severance and transfer of a right to use water of or from any watershed or drainage area which that supplies or contributes water for the irrigation of lands within any irrigation district, agricultural improvement district or water users' association shall be submitted to the governing body of such irrigation district, agricultural improvement district or water users' association prior to before the filing of such application with the director. Within forty‑five days after the receipt of the application such governing body shall reject or approve the proposed application. Failure of such governing body to approve or reject the proposed application within forty-five days after receipt shall constitute approval of the proposed application by such governing body. No application for the severance or transfer of a right to the use of water of or from any watershed or drainage area which that supplies or contributes water for the irrigation of lands within any irrigation district, agricultural improvement district or water users' association shall be accepted for filing by the director unless accompanied by the written consent of the governing body of such irrigation district, agricultural improvement district or water users' association to the proposed application or by satisfactory evidence that such governing body failed to either accept or reject the proposed application within forty-five days after receipt by such governing body.
6. A 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 may be accomplished by the exclusion of lands to which a water right is appurtenant from within the boundaries of an irrigation district, and the inclusion in lieu of other lands within the boundaries of such irrigation district. Such severance and transfer of a water right shall require the consent of only the irrigation district within which the affected lands are situated and of the owners of the lands affected by the severance and transfer. No proceedings before nor or approval by the director shall be required to accomplish such severance and transfer.
7. An application for severance and transfer of a water right shall be filed with the director. The director shall give notice of the application by publication once a week for three successive weeks in a newspaper of general circulation in the county or counties in which the watershed or drainage area is located. The notice shall state that any interested person may file written objections to the proposed severance and transfer with the director within thirty days after the last publication of the notice. In appropriate cases, including cases in which an objection has been filed, an administrative hearing may be held before the director's decision on the application if the director deems a hearing necessary.
B. Section 45‑114, subsections A and B govern administrative proceedings, rehearing or review and judicial review of final decisions of the director under this section.
Sec. 5. Section 45-2113, Arizona Revised Statutes, is amended to read:
45-2113. Fund grants; applications
A. The commission shall grant monies from the fund consistent with the application guidelines developed pursuant to section 45‑2105. The commission shall establish a procedure by which monies may be granted annually which shall include that includes a maximum of six months between the receipt of the proposal by the commission and the disbursement of monies. The commission shall give priority in funding to the following:
1. Projects for which matching monies or assets of comparable value, including in-kind contributions, will be provided by other sources.
2. Projects that provide for the continued maintenance of the portion of the river and stream and associated riparian habitat including ecological water that are enhanced by the project.
3. Projects that include broad based broad‑based local involvement.
4. Projects that directly benefit perennial or intermittent rivers or streams or that otherwise increase the supply of water.
B. The commission shall require as a condition of approval of any proposal all of the following provisions:
1. Allowing access for inspection and evaluation of the project.
2. Controlling the expenditure of and accounting for any monies granted by the commission
3. Requiring that those persons responsible for the project submit all pertinent information and research gained from the project to the commission.
4. Requiring that any person receiving a grant spend no more than five percent of the grant on costs of administration.
C. The commission shall provide for public involvement regarding the applications submitted to the commission, which shall include notice to any person who requests notice of applications and which shall provide a reasonable opportunity for comment on the application which shall not be less than forty‑five days.
D. On receipt of an application the commission shall notify cities, towns, counties, natural resource conservation districts, special districts and Indian communities affected by the proposal and shall provide a reasonable opportunity for comment on the application which shall not be less than forty‑five days.
E. Any person, state agency or political subdivision of this state may submit a request for funding from the fund for purposes prescribed by this section. A federal agency is not eligible for funding from the fund. Requests for funding shall be made to the commission. Requests for funding submitted to the commission may be accompanied by expressions of support from affected cities, towns, counties, natural resource conservation districts, special districts or Indian communities.
F. As a condition of approval by the commission, the applicant shall commit to work jointly with the affected cities, towns, counties, natural resource conservation districts, special districts and Indian communities that have contacted the commission pursuant to subsection D of this section on all aspects of the proposal's implementation and monitoring, unless the jurisdiction chooses not to participate.
G. Monies in the fund may only be spent only to finance programs located in this state.
H. Monies in the fund may be spent for any of the following:
1. Granting monies to entities for the acquisition of central Arizona project water or effluent that will protect or restore rivers or streams consistent with state water law. No An entity may not exercise the right of eminent domain to acquire water or water rights using monies derived from this fund.
2. Granting monies to assist in developing, promoting and implementing water conservation programs, that are directly related to the purposes of this chapter, and that are outside of the active management areas.
3. Granting monies in support of research and data collection, compilation and analysis that are directly related to the purposes of this chapter, except that no more than five percent of the monies deposited in the fund in any fiscal year may be spent for this purpose. Before the approval of any such project, the commission shall consult with the department of water resources and the state land department to determine whether any research of a similar nature has been or is in the process of being performed and is already available. The commission shall not approve a proposal if either department determines that sufficient data exists and notifies the commission in writing.
4. Granting monies for the development and implementation of capital projects or specific measures consistent with the purposes of this chapter.
I. Monies in the fund may not be spent for:
1. Any project that includes the planting of mesquite, tamarisk or other nonnative high water usage trees that consume water to a degree that is detrimental to water conservation efforts, but may be used for removal of mesquite, tamarisk or other nonnative high water usage trees that consume water to a degree that is detrimental to water conservation efforts.
2. Any remedial action purposes undertaken pursuant to the comprehensive environmental response, compensation, and liability act of 1980, as amended (P.L. 96‑510; 94 Stat. 2767; 42 United States Code section 9601) or title 49, chapter 2, article 5.
Sec. 6. Survey of status of waters of this state; delayed repeal
A. The director of water resources shall:
1. Establish a set of standard measures, using the best available science, to define ecological water needs in this state. The standard measures established by the director of water resources shall include criteria for examining the relationship between ecological water and groundwater and surface water in this state.
2. On or before December 31, 2021, publish a preliminary survey of the status of the waters of this state, including the following:
(a) A watershed by watershed description of the waters of this state.
(b) A description of all segments or areas in each watershed that do not meet the requirements of ecological water as defined in section 45‑101, Arizona Revised Statutes.
(c) A determination of the appropriate methods and steps necessary to monitor, maintain, improve and restore the ecosystems of each watershed.
(d) A recommendation of any statutory changes that are needed to facilitate actions supporting the ecological water needs of this state.
3. Provide for notice and comment of the preliminary survey by:
(a) Posting on the department of water resources' website the preliminary survey prescribed by subsection A, paragraph 2 of this subsection, copies of all notices required by section 41-1022, Arizona Revised Statutes, and all proposed rulemakings.
(b) Notifying by first class mail, fax or e-mail each person who has made a timely request to the department of water resources for notification of the preliminary survey prescribed by subsection A, paragraph 2 of this section or for notification of all proposed rulemakings under section 41-1022, Arizona Revised Statutes.
(c) Holding an open meeting and taking public comment not sooner than sixty days after the department of water resources provides notification under subdivisions (a) and (b) of this paragraph.
(d) Responding in writing to all public comments, whether received at the hearing or otherwise, that are received by a date announced by the director of water resources in the initial notice.
4. Post the final survey and responses to all public comments received on the department of water resources' website for a period of not less than six months.
B. This section is repealed from and after September 30, 2022."
Renumber to conform
Amend title to conform