PHOENIX — State senators approved legislation Tuesday that House Speaker Rusty Bowers said will help keep thousands of Arizona well owners out of jail.
House Bill 2475, approved on a 17-13 party-line vote, would create an exception to laws that make it a crime when a well owner “uses water to which another is entitled.” Violators can end up jailed for up to four months and face a $750 fine.
People drill wells in hopes of hitting groundwater, Bowers noted. But what they don’t — and can’t — know, he said, is whether they’ve actually tapped into a subsurface flow. And that water, like surface water, is allocated according to different laws.
Most significant, he pointed out that the state remains in the middle of a multi-decade legal process to determine who has the rights to certain surface waters. That could mean subsurface flows actually belong to tribes or other entities, Bowers said.
He said that may be the case with the new well he drilled two years ago.
“We don’t know where that water comes from,” he testified during hearings earlier this year. “It could be coming from the river, being forced up by capillary action.”
Bowers said it would be wrong “to hold me criminally liable because I’m now getting water.”
It isn’t just about him, he said.
“There are tens of thousands of people like the Bowers family that now have wells all through the Verde Valley, the San Pedro,” he said, people who are at risk if it’s later determined that the water they’re getting comes from the subsurface flow and is not theirs.
“What we don’t want is somebody that says, ‘Ah ha!’ those 10,000 people in the Verde Valley who have these wells, and if it is adjudicated by modeling to say that’s subflow, they are criminals and will be treated accordingly,” Bowers said. “Well, I don’t want that to happen.”
Sandy Bahr, president of the local chapter of the Sierra Club, said HB 2475 is a bad idea because it perpetuates the distinction that there’s really no connection between groundwater and surface flows.
“We’ve seen rivers and streams literally pumped dry,” she said.
Bahr said she appreciates that the measure has been amended to say the criminal penalty would not apply if the person who owns the well was using subflow “without knowledge.”
Bowers said those who inadvertently tap into a subflow can still be sued in civil court and be made to pay a fee to the rightful owners of the water, or be forced to stop pumping.
But Bahr said there needs to be better recognition of the fact that the state has a role in protecting the water.
The measure now goes back to the House, which approved a similar but not identical version.