New Arizona water law provides legal protections to well owners

PHOENIX — A law signed Thursday by Gov. Doug Ducey is designed to provide legal protections to those who drill wells into underground streams they are not legally entitled to tap.

The measure repeals existing laws that make it a crime when a well owner “uses water to which another is entitled.” That law has subjected violators to up to four months in jail and a $750 fine.

Now, that criminal penalty will be available only when someone knew they were breaking the law.

That exception bothered at least one Republican lawmaker.

Rep. Noel Campbell of Prescott argued during floor debate that the law will create a situation where those who seek to drill wells will not do the proper research to determine whether they’re likely to hit a subsurface flow. Then, if it turns out they tapped into someone else’s water, it would be only a civil matter.

The legislation was pushed by House Speaker Rusty Bowers, R-Mesa. He argued that those who drill wells don’t — and can’t — know whether they’ve tapped into a subsurface flow. And that water, like surface water, is allocated not based on who owns the land but on different laws about who has the right to use it.

Bowers said the state is still trying to determine who has the rights to certain surface and subsurface waters.

He said some of the water rights at issue could turn out to belong to tribes. Bowers said there’s no reason to subject well drillers to criminal liability. Those include Bowers himself, who said he drilled a new well 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 there are “tens of thousands of people” who face similar risk, especially in the Verde Valley and in the San Pedro watershed.

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