U.S. Water News Online
PHOENIX -- The Arizona Supreme Court has partially
overturned a lower court's ruling and said state regulators have
flexibility in how they impose water conservation mandates.
State regulators do not have to include conservation requirements
for water users in regional management plans and can leave that step
up to municipalities and other providers, the Supreme Court's
unanimous ruling said.
The Supreme Court's decision in a lawsuit filed by Arizona Water
Co. overturned the state Court of Appeals on the issue of whether
state law requires the Department of Water Resources to impose
conservation steps on water users.
However, the Supreme Court upheld another finding that the state
can include Colorado River water delivered by the Central Arizona
Water aqueduct in its calculations on whether providers are meeting
state mandates for conservation requirements on use of groundwater.
The Court of Appeals' 2-1 ruling on Aug. 12 said the state's 1980
groundwater law requires the Department of Water Resources to set
conservation requirements for "end users,'' not just providers.
The 1980 law is generally intended to bring groundwater use into
balance with recharge of aquifers.
The Arizona Water Co. sued the state, arguing that it was being
put in a bind by the department's mandate for conservation and an
Arizona Corporation Commission requirement that it meet its customers
The department had argued that the law did not require it to
mandate conservation steps for water users, and the Court of Appeals'
majority acknowledged there was "no specific statutory provision by
which the Legislature definitely ordered the department to create and
impose conservation measures for end users.''
However, the Court of Appeals said other provisions of the law add
up to the conclusion that lawmakers intended the department to have
that power in areas where the state regulates groundwater use.
The Supreme Court disagreed, saying that department has the
discretion &emdash; but not a duty &emdash; to impose conservation
requirement on users. Saying otherwise would amount to rewriting
state law, the justices said.
Arizona Water had argued that allowing the department to include
CAP water in its calculations would overstep its authority, but the
Supreme Court upheld the portion of the Court of Appeals ruling that
said including CAP water helps encourage conservation.
Regarding the CAP issue, the Court of Appeals had reached a
similar conclusion in a 1994 ruling in which it said the department
could include recovered effluent in its analysis of whether providers
were complying with groundwater use limits.
The case is Arizona Water Co. vs. Arizona Department of Water
Resources, CV-03 0321-PR.
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