Bill Text: AZ HB2477 | 2019 | Fifty-fourth Legislature 1st Regular | Chaptered
Bill Title: Adjudication statutes; unconstitutional provisions; repeal
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2019-04-30 - Chapter 155 [HB2477 Detail]
Download: Arizona-2019-HB2477-Chaptered.html
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House Engrossed |
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State of Arizona House of Representatives Fifty-fourth Legislature First Regular Session 2019
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CHAPTER 155
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HOUSE BILL 2477 |
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AN ACT
amending sections 37-321.01, 45-141, 45-151, 45-153, 45-156, 45-162, 45‑164, 45-187, 45-188, 45-189, 45-251, 45-256, 45‑257 and 45-261, Arizona Revised Statutes; repealing section 45-262, Arizona Revised Statutes; amending section 45-263, Arizona Revised Statutes; relating to waters.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 37-321.01, Arizona Revised Statutes, is amended to read:
37-321.01. Rights to water used on state land; definition
A. A permit or certificate for the right to use water on state land for stock watering or stockpond purposes, or for domestic use on a ranch or farm, shall be issued in the name of the state of Arizona except as follows:
1. If the place of use is located on state land, but the point of diversion is located on patented land, the certificate or permit shall be issued to the owner of the patented land.
2. If the place of use is located on state land, but the point of diversion is located on land owned by the United States, the permit or certificate shall be issued to the lessee of the state land.
3. If the water right was perfected under the law applicable at the time that the right was initiated by the lessee or its predecessors in interest for use on land that was owned by the United States before that land was designated for transfer to the state of Arizona, the certificate or permit shall be issued to the lessee of the state land.
B. The commissioner and the person or persons asserting that a permit or certificate should be issued as prescribed by this section may stipulate as to the ownership of a water right. The stipulation or agreement shall be accepted by the department of water resources.
C. An application for a certificate to appropriate water for use on state land as provided in subsection A of this section shall not be approved nor shall a permit or certificate be issued pursuant to this section by the director of the department of water resources, until the commissioner has been given the opportunity to review and object to the permit or certificate. Section 45‑164, subsection C applies to any objections made pursuant to this subsection.
D. No person shall have any legal interest in or the right to lease state land based solely upon ownership of a water right acquired or confirmed under this section or section 45‑257, subsection D c.
E. No water right for stock watering or stockpond purposes, or for domestic uses on a ranch or farm that is acquired by a lessee pursuant to subsection A, paragraph 3 of this section, may be severed from its place of use on state land and transferred for use on other land without prior written consent of the commissioner. The commissioner may withhold consent if the commissioner finds that the use of state land for grazing purposes is dependent upon the water right that is proposed to be transferred. A lessee's successor in interest or the state shall pay compensation to a lessee of state land who is entitled to a domestic, stock watering or stockpond water right pursuant to subsection A, paragraph 3 of this section, if the lessee is denied reasonable use of the water right because of a refusal by the commissioner to consent to the severance and transfer of the right from its place of use on state land. Compensation shall be determined by appraisal and may be reviewed by the state board of appeals by the procedure for appraising improvements on state land. On payment of the compensation, the department of water resources shall reissue the water right in the name of the person or entity making the payment.
F. For the purposes of this section, "certificate" includes certificates issued pursuant to title 45, chapter 1, article 5 or article 10.
Sec. 2. Section 45-141, Arizona Revised Statutes, is amended to read:
45-141. Public nature of waters of the state; beneficial use; reversion to state; actions not constituting abandonment or forfeiture
A. The waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, flood, waste or surplus water, and of lakes, ponds and springs on the surface, belong to the public and are subject to appropriation and beneficial use as provided in this chapter.
B. Beneficial use shall be the basis, measure and limit to the use of water. An appropriator of water is entitled to beneficially use all of the water appropriated on less than all of the land to which the water right is appurtenant, and this beneficial use of the water appropriated does not result in the abandonment or forfeiture of all or any portion of the right.
C. Except as otherwise provided in this title or in title 48, when the owner of a right to the use of water ceases or fails to use the water appropriated for five successive years, the right to the use shall cease, and the water shall revert to the public and shall again be subject to appropriation. This subsection or any other statutory forfeiture by nonuse shall not apply to a water right initiated before June 12, 1919.
D. Underground water storage, pursuant to chapter 3.1 of this title, for future beneficial use of waters appropriated pursuant to this chapter does not constitute an abandonment or forfeiture.
E. The following water exchange arrangements or substitutions do not constitute an abandonment or forfeiture of all or any portion of a right to use surface water:
1. Exchanging surface water for groundwater, effluent, Colorado river water, including water delivered through the central Arizona project, or another source of surface water pursuant to chapter 4 of this title.
2. Substituting groundwater, effluent, Colorado river water, including water delivered through the central Arizona project, or another source of surface water for surface water.
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 state of Arizona or a political subdivision thereof may appropriate unappropriated water for domestic, municipal, 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 state of Arizona or a political subdivision thereof first appropriating the water shall have the better right.
B. To effect the beneficial use, the person, the state of Arizona or a political subdivision thereof 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 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 45-153, Arizona Revised Statutes, is amended to read:
45-153. Criteria for approval or rejection of applications; restrictions on approval
A. The director shall approve applications made in proper form for the appropriation of water for a beneficial use, but when the application or the proposed use conflicts with vested rights, is a menace to public safety, or is against the interests and welfare of the public, the application shall be rejected. An administrative hearing may be held before the director's decision on the application if the director deems a hearing necessary.
B. An application may be approved for less water than applied for if substantial reasons exist but shall not be approved for more water than may be put to a beneficial use. Applications for municipal uses may be approved to the exclusion of all subsequent appropriations if the estimated needs of the municipality so demand after consideration by and upon order of the director.
C. If the director approves an application for the appropriation of water for use on land owned by the state of Arizona, a permit or certificate shall be issued as prescribed by section 37‑321.01. If the director approves an application for the appropriation of water for use on land owned by the United States, a permit or certificate shall be issued as prescribed by section 45‑151, subsection E.
D. 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 45-156, Arizona Revised Statutes, is amended to read:
45-156. Legislative authorization for appropriation of water to generate power; change in use
A. An application for appropriation of waters of a stream within the state for generating electric energy in excess of twenty‑five thousand horsepower, or an application for a permit to build a dam for generating hydroelectric energy on a stream within the state in excess of twenty‑five thousand horsepower, shall not be approved or granted unless authorized by an act of the legislature.
B. Except as otherwise prescribed by this section, a change in the use of water appropriated for domestic, municipal or irrigation uses shall not be made without approval of the director, and if the change contemplates generating hydroelectric energy or power of over twenty‑five thousand horsepower, approval shall not be granted unless authorized by an act of the legislature.
C. The provisions of subsections A and B of this section requiring legislative authorization for the appropriation or use of water to generate electric energy in excess of twenty‑five thousand horsepower and for the building of a dam for generating hydroelectric energy in excess of twenty‑five thousand horsepower shall not apply to the generation of electricity by facilities constructed prior to January 1, 1985 as part of a federally authorized reclamation project or by an agricultural improvement district organized pursuant to title 48, chapter 17.
D. Subsection C of this section shall not affect the priority dates for facilities constructed prior to January 1, 1985, or the following components and appurtenant works:
1. New Waddell dam.
2. Cliff dam.
3. Increase in storage capacity of Roosevelt dam.
4. Modification of Stewart mountain dam.
E. The failure to obtain the approval of the director as prescribed by subsection B is not grounds for enjoining a previously effected change in use, does not result in the abandonment or forfeiture of the associated water right and does not result in the assignment of a later date of priority for that right, provided that a change in use shall not be recognized if the director has denied an application for such change prior to January 1, 1995. If there is no application pending or if the director has taken no final action with respect to a change in use effected without the director's approval, a court of competent jurisdiction may approve, modify or deny the change in use in order to complete an adjudication of water rights pursuant to article 9 of this chapter.
Sec. 6. Section 45-162, Arizona Revised Statutes, is amended to read:
45-162. Certificate of water right; time limitation on use of water for power purposes
A. When it appears to the satisfaction of the director that an appropriation has been perfected and a beneficial use completed in accordance with the provisions of this article, the director shall issue to the applicant a certificate signed by the director and attested by the seal of the department. The certificate shall set forth the name and address of the owner of the right, the priority of date and the extent and purpose of the right and, if the water is for irrigation purposes, a description of the legal subdivisions of land to which the water is appurtenant. On receiving the certificate, the owner may transmit the certificate and the recording fee to the county recorder of the county in which such right is located, who shall record the certificate in a book kept for that purpose and immediately transmit the certificate to the owner.
B. Certificates for rights to the use of water for power development shall limit the right or franchise to a period of forty years from the date of application, subject to a preferred right of renewal under the laws existing at the date of expiration of the franchise or right. The right acquired by the appropriation shall date from filing the application with the director, and delays in the processing or granting of an application to appropriate or an application for a permit to construct or enlarge a reservoir do not affect the validity of the appropriation or the date of priority assigned to the appropriative right.
Sec. 7. Section 45-164, Arizona Revised Statutes, is amended to read:
45-164. Registry; reporting
A. The director shall establish and maintain a registry of applications, permits and certificates of water right filed or issued pursuant to this chapter and statements of claim filed pursuant to article 7 of this chapter.
B. A person who has filed an application or a statement of claim or a person to whom the director has issued a permit or a certificate of water right shall notify the director of a change in name or mailing address or an assignment pursuant to section 45‑163. A person to whom an application, permit, certificate of water right or statement of claim is assigned shall notify the director of the assignment and shall furnish information as required by the director to keep the registry current and accurate. The director shall have continuing jurisdiction and shall issue revised permits and certificates as necessary.
C. If an appropriator of water filed an application for a permit to appropriate water pursuant to this article or an application for certification under article 10 of this chapter but the permit or certificate was issued or subsequently reissued to the United States or the state of Arizona, an appropriator of water may file a written application with the department to request that a permit or certificate be reissued in accordance with either section 37‑321.01, subsection A or section 45‑151, subsection E. Within thirty days after receiving the application, the department shall provide notice of the application to the state or federal agency that owns the land on which the water is used and, if applicable, to the owner of patented land from which the water is diverted or on which the water is stored. A person who is entitled to this notice from the department may file written objections to the application within forty-five days after the department mails the notice. If no timely objection is received by the department, the director shall approve or deny the application within ninety days from the date of filing of the application. If an objection is received, and on written request of either the applicant or the objector, an administrative hearing shall be held on the application and objections. If a request for a hearing is not received, the director shall grant or deny the relief sought in the application based upon the application and objections filed. A final decision of the director is subject to judicial review as provided in section 45‑114, subsection B in the superior court in the county that has jurisdiction over the water right as part of a general adjudication conducted pursuant to article 9 of this chapter, or if the right is not subject to a general adjudication in the superior court pursuant to title 12, chapter 7, article 6. The form of the application and objection shall be prescribed by the director, but the department shall not charge a fee for processing an application.
D. 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. 8. Section 45-187, Arizona Revised Statutes, is amended to read:
45-187. No rights acquired by adverse use or adverse possession
Beginning on May 21, 1974, No rights to the use of public waters of the state may be acquired by adverse use or adverse possession as between the person and the state, or as between one or more persons asserting the water right, but nothing contained herein affects shall be deemed to diminish or enhance the validity of a claim filed under this article based on prior adverse use or adverse possession originating prior to the effective date of chapter 164 of the laws of 1919.
Sec. 9. Section 45-188, Arizona Revised Statutes, is amended to read:
45-188. Future rights acquired through appropriation; rights within service area of agricultural or municipal provider
A. Any person who is entitled to divert or withdraw public waters of the state through an appropriation initiated on or after June 12, 1919 and evidenced by a certificate of water right issued under article 5 of this chapter, a court decree, or previous possession or continued beneficial use and who intentionally abandons the use thereof or who voluntarily fails, without sufficient cause, to beneficially use all or any part of the right to withdraw for any period of five successive years shall relinquish such right or portion thereof. The rights relinquished shall revert to the state, and the waters affected by such rights shall become available for appropriation to the extent they are not lawfully claimed or used by existing appropriators.
B. Any person who is entitled to divert or withdraw public waters of the state through an appropriation initiated before June 12, 1919 and evidenced by a notice of appropriation, a court decree, previous possession or continued beneficial use or any other action taken in accordance with federal, state or territorial law existing at the time of the appropriation and who intentionally abandons its use relinquishes that right. The rights relinquished revert to the state, and the waters affected by those rights become available for appropriation to the extent they are not lawfully claimed or used by existing appropriators.
C. Water rights appurtenant to lands within the exterior boundaries of an irrigation district, water users' association, ditch company or similar provider of water for agricultural and municipal uses, or within the service area of a municipal provider or a private water company, are not subject to abandonment or forfeiture if the water provider and its agents maintain an operable water delivery system within that district or service area with the total capacity to deliver the amount of water appropriated.
D. B. If a use or claim is subject to forfeiture by nonuse, failure by the appropriator to use water within a five year period does not result in a forfeiture of the associated water right if water use is resumed before the occurrence of the earlier of any of the following:
1. The initiation of proceedings pursuant to section 45‑189 to determine whether the right has been forfeited or abandoned.
2. The filing by a third party of a statement of claimant in a general adjudication instituted pursuant to article 9 of this chapter that asserts the right to use water from the stream in which the subject nonuse has occurred.
3. The assertion by a third party of written objections in response to an application by the appropriator to sever and transfer the right pursuant to section 45‑172.
Sec. 10. Section 45-189, Arizona Revised Statutes, is amended to read:
45-189. Reversion of rights due to nonuse; notice; hearing; order; exception
A. When it appears to the director that a person entitled to the use of water has not beneficially used all or a portion of the water right for a period of five or more consecutive years, and it appears that the right has or may have reverted to the state because of such nonuse, as provided by section 45‑141 and section 45‑188, subsection A, the director shall notify such person to show cause at an administrative hearing why the right or portion of the right should not be declared relinquished.
B. The notice shall contain:
1. The time and place of the hearing.
2. A description of the water right, including the approximate location of the point of diversion, the general description of the lands or places where such waters were used, the water source, the amount involved, the purpose of use, the apparent authority upon which the right is based and the factual basis for the notice to show cause.
3. A statement that unless sufficient cause is shown the water right will be declared relinquished.
C. The notice shall be served at least thirty days before the hearing.
D. The director shall make an order determining whether such water right has been relinquished and give notice to each party of the order by serving such persons at their last known addresses.
E. For the purposes of this section, section 45‑141, subsection C and section 45‑188, subsection A, the following reasons shall be sufficient cause for nonuse:
1. Drought, or other unavailability of water.
2. Active service in the armed forces of the United States during military crisis.
3. Nonvoluntary service in the armed forces of the United States.
4. The operation of legal proceedings.
5. Federal, state or local laws imposing land or water use restrictions, or acreage limitations, or production quotas.
6. Compliance with an applicable conservation requirement established by the director pursuant to chapter 2, article 9 of this title.
7. With respect to a water right appropriated for an irrigation use, either of the following:
(a) Pendency of a proceeding before a court or the director to change the permitted use from irrigation to municipal or other uses pursuant to a court decree or section 45‑156 or to sever the right from the land to which it is appurtenant and transfer it for municipal use pursuant to section 45‑172.
(b) After a change in the permitted use from irrigation to municipal pursuant to a court decree or section 45‑156 or 45‑172, insufficient demand for the water by the municipal users.
8. The reconstruction, replacement, reconfiguration or maintenance of water storage or distribution facilities, using reasonable diligence including the failure to divert or store water as a result of those activities.
9. An agreement between the holder of a reservoir right and the United States, this state or any city, county or other municipal or governmental entity to leave a minimum pool of water in the reservoir for the benefit of the public for recreation, fish and wildlife purposes.
10. Use of the water appropriated on less than all of the land to which the right is appurtenant.
11. An agreement between the operator of a reservoir and a person entitled to the use of water stored in the reservoir allowing the water to be withdrawn over a period of time exceeding five years.
12. A written agreement between two or more appropriators of water pursuant to which one or more of the appropriators agrees to forbear the exercise of its water right, in whole or in part, for the benefit of one or more appropriators within the same river system and source if the appropriator who forbears exercise of the right continues the beneficial use associated with the right.
13. 8. Any other reason that a court of competent jurisdiction deems would warrant nonuse.
F. 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. 11. Section 45-251, Arizona Revised Statutes, is amended to read:
45-251. Definitions
In this article, unless the context otherwise requires:
1. "Domestic use" means a single appropriative water right serving a residence, or multiple residences up to a maximum of three residential connections, for household purposes with associated irrigation of lawns, gardens or landscape in an amount of not more than one-half acre per residence. Domestic use does not include the use of water delivered to a residence or multiple residences by a city, town, private water company, irrigation provider or special taxing district established pursuant to title 48.
2. "General adjudication" means an action for the judicial determination or establishment of the extent and priority of the rights of all persons to use water in any river system and source.
3. "Person" means an individual, a partnership, a corporation, a municipal corporation, the state of Arizona or any political subdivision, the United States of America, an Indian tribe or a community or any other legal entity, public or private.
4. "Potential claimant" means all persons claiming water rights or on whose behalf claims to water rights are asserted.
5. "Prior decree" means any judgment or decree that is entered by a court of competent jurisdiction and that applies to the water right claim or use that is subject to adjudication.
6. "Prior filing" means a notice of appropriation recorded with the county recorder or the recorder's predecessor, an application to appropriate filed pursuant to section 45‑152, a statement of claim filed pursuant to article 7 of this chapter or a claim of water right filed pursuant to article 10 of this chapter, any or all of which reasonably relate to the water right claim or use that is subject to adjudication.
7. "River system and source" means all water appropriable under section 45‑141 and all water subject to claims based on federal law.
8. "Small business use" means a single appropriative water right serving one business, with associated irrigated acreage, if any, in an amount of not more than one-half acre and a total quantity of use of not more than three acre-feet per year.
9. 8. "Small water use claim" means any claim for a stockpond, stock watering use or water well that is identified in a statement of claimant filed in the adjudication pursuant to section 45‑254 and the claim is for any of the following specific conditions:
(a) A stockpond having a capacity of not more than fifteen acre feet that is used solely for watering livestock or wildlife and that contains water that is appropriable under section 45‑141, subsection A.
(b) Any well that is equipped so that it has a maximum pumping capacity of not more than thirty-five gallons per minute.
(c) A stock watering use by livestock and wildlife where the place of stock watering use is either directly from a naturally occurring body of water, such as an undeveloped spring, cienega, seep, bog, lake, depression, sink or stream, or from a developed facility that is not a stockpond or reservoir and that is served by a diversion of water that is appropriable under section 45‑141, subsection A, including a drinker, trough, pipeline, spring box or other developed facility.
10. 9. "Stockpond" means an on-channel or off-channel impoundment of any size that stores water that is appropriable under section 45‑141, subsection A and that is for the sole purpose of watering livestock and wildlife.
11. 10. "Stock watering use" means the consumption of water by livestock and wildlife, either:
(a) Directly from a naturally occurring body of water, such as an undeveloped spring, cienega, seep, bog, lake, depression, sink or stream.
(b) From small facilities, other than a stockpond, that are served by a diversion of water that is appropriable under section 45‑141, subsection A.
Sec. 12. Section 45-256, Arizona Revised Statutes, is amended to read:
45-256. Technical assistance of director; report
A. The court or the master shall request technical assistance from the director in all aspects of the general adjudication with respect to which the director possesses hydrological or other expertise. In rendering such technical assistance, the director shall expeditiously:
1. Identify the hydrological boundaries of the river system and source and the names and addresses of all reasonably identifiable potential claimants. In identifying potential claimants, the director, at a minimum, shall identify as far as reasonably possible the current record owners of all real property within the geographical scope of the adjudication.
2. Locate, procure and make available all public and other records relevant to determination of any factual or legal issues.
3. Conduct a general investigation or examination of the river system and source.
4. Investigate or examine the facts pertaining to the claim or claims asserted by each claimant.
5. Make a map or plat on a scale not less than one inch to the mile adequate to show with substantial accuracy the course of the river system and source, the location of the ditch or canal diverting water from such river system and source, and the legal subdivisions of lands that have been irrigated or are susceptible to irrigation from the ditches and canals already constructed. Unless a prior decree provides otherwise, irrigation water quantities shall be assigned in the director's report based on the following on‑farm water duties:
(a) A water duty of six acre‑feet per acre per year for lands located below three thousand feet in elevation.
(b) A water duty of five acre‑feet per acre per year for lands located from three thousand feet through five thousand feet in elevation.
(c) A water duty of four acre‑feet per acre per year for lands located above five thousand feet in elevation.
Transportation losses from the point of diversion to the field shall be in addition to the on‑farm water duty determined pursuant to this paragraph. Irrigation water quantities that are assigned by the director as prescribed by this paragraph shall be presumed correct by the master and the court and shall be incorporated in the decree, unless rebutted by a preponderance of the evidence offered by a claimant who has made a proper objection under subsection B of this section.
6. Identify water quantities for diversions and reservoir facilities. Unless a prior decree provides otherwise, the rate of water diversions shall be measured by the maximum theoretical capacity of the diversion facilities, and reservoir storage quantities shall be identified based on the maximum controlled capacity of the reservoir. Water quantities for diversions and reservoir facilities that are assigned by the director as prescribed by this paragraph shall be presumed correct by the master and the court and incorporated in the decree, unless rebutted by a preponderance of the evidence offered by a claimant who has made a proper objection under subsection B of this section.
7. 6. Take such other steps and gather such other information as may be necessary or desirable for a proper determination of the relative rights of the parties.
B. The technical assistance rendered by the director shall be set forth in summary form on a claim by claim basis in a report prepared by the director and filed with the court or the master, which shall then be available for inspection by any claimant. The report shall list all information that is obtained by the director and that reasonably relates to the water right claim or use investigated. The report shall also include the director's proposed water right attributes for each individual water right claim or use investigated as prescribed by this article. If no water right is proposed in connection with an individual water right claim or use, the director's recommendations shall so indicate. Any claimant may file with the court or the master written objections to the report or any part of the report within one hundred eighty days of the date on which the report was filed. An objection shall specifically address the director's recommendations regarding the particular water right claim or use investigated. The court or master shall summarily dismiss with prejudice objections that do not comply with this subsection. Each claimant who has filed timely written objections that comply with this subsection shall have a fair and reasonable opportunity to present evidence in support of or in opposition to those recommendations of the director. Any claimant may present evidence in support of the claimant's claim.
C. Those portions of the report that do not contain the director's recommendations for the water rights claims and uses investigated shall not be summarily admitted into evidence but may be offered into evidence for any purpose relevant to the determination of a water right claim or use that is subject to adjudication. The appropriator and any other claimant who has filed an objection to the water right as prescribed by subsection B of this section shall have a fair and reasonable opportunity to present evidence in support of or in opposition to those portions of the director's report before the conclusion of hearings on the water right. If admitted into evidence over an objection, those portions of the report shall not be given any presumption of correctness.
D. Information that is included in the director's report and that describes a water right claim or use of five hundred acre-feet or less per year for any type of use claimed shall be summarily admitted into evidence. If no conflicting evidence is offered, the director's proposed attributes of the water right shall be deemed correct and incorporated into the decree. If conflicting evidence is presented, the director's proposed attributes of the water right shall be given the weight deemed appropriate by the master and the court consistent with this article.
E. Information that is included in the director's report and that describes a water right claim or use of more than five hundred acre-feet per year shall not be summarily admitted into evidence. If offered into evidence and if admitted over objection, it shall be given no presumption of correctness.
F. Claimants who are in agreement with those parts of the report that describe the claimants' water right claims or uses are not required to file objections to the report and may rely on the report as evidence of their water right. If the owner of a water right claim or use provides evidence in support of the report, that evidence shall be presented after all evidence has been introduced by the objectors.
G. On request of any party, the director shall present evidence concerning the facts stated in the report. This section shall not be construed to prevent the court or the master from issuing a protective order on a showing of good cause.
H. Before filing the report with the court or the master as provided in subsection B of this section, the director shall prepare a preliminary report. The director shall give notice to each water claimant that the preliminary report is available for inspection and comment. Upon expiration of the period provided for timely comment, the director shall revise the preliminary report as may be appropriate and shall file the report with the court or the master in accordance with subsection B of this section. At least one hundred twenty days before the final report is to be filed, the director shall file with the court a notice stating the date on which the final report is to be filed. The director shall adopt such rules as may be necessary to ensure that adequate notice is given, that the preliminary report is sufficiently available for inspection by the water claimants and that provisions are made for adequate time and procedure for comment on the preliminary report.
Sec. 13. Section 45-257, Arizona Revised Statutes, is amended to read:
45-257. Hearings; report of master; final judgment by court; administration and enforcement of decree
A. The master shall:
1. After due notice, conduct such hearings and take such testimony as shall be necessary to determine the relative water rights of each claimant. The determination of water rights of all small water use claims in any specific subwatershed shall be deferred until all other claims in that subwatershed are determined by the superior court in the course of the adjudication, except that for a claimant who asserted a small water use claim and who asserted other water use claims in the same subwatershed that are not small water use claims, the claimant's small water use claim shall be determined in conjunction with the determination of that claimant's other claims. This paragraph does not preclude the superior court or the master from approving settlements of small water use claims at any time during the course of the adjudication.
2. Subject to paragraph 1 of this subsection, for all determinations, recommendations, findings of fact or conclusions of law issued, prepare and file with the court a report in accordance with rule 53(g) of the Arizona rules of civil procedure, which shall contain those determinations, recommendations, findings of fact and conclusions of law. Each claimant may file written objections with the court to any rule 53(g) report within the later of sixty days after the report is filed with the court or before May 17, 1995. If the report covers an entire subwatershed or federal reservation, each claimant may file with the court written objections to the report within one hundred eighty days of the date on which the report was filed with the court.
3. Maintain under his control all records and documents at such locations as may be designated by the court.
B. The court, on review of the report and in accordance with subsection A, paragraph 1 of this section and rule 53 of the Arizona rules of civil procedure, shall:
1. Determine the extent and priority date of and adjudicate any interest in or right to use the water of the river system and source, provided that when rights to the use of water or dates of appropriation have previously been determined in a prior decree of a court, the court shall accept the determination of such rights and dates of appropriation as found in the prior decree unless such rights have been abandoned. Except if otherwise provided in an applicable prior filing, certificate of water right or prior decree, the decreed capacity of a reservoir includes the right to continuous filling and refilling in priority throughout the year.
2. Establish, in whatever form determined to be most appropriate by the court, one or more tabulations or lists of all water rights and their relative priorities on the river system and source.
3. Refer the final judgment or decree to the director for administration and enforcement under the continuing jurisdiction of the court.
4. Make appropriate orders to ensure that the entire record of the general adjudication is preserved in an accessible and usable form.
5. Record a certified copy of the final judgment or decree in each county within the geographical scope of the general adjudication which shall constitute constructive notice of the contents of the judgment or decree.
C. Claimants may enter into agreements regarding the attributes, satisfaction or enforcement of their water rights in relation to each other. An agreement shall be binding only among the parties to that agreement. On request of all parties to the agreement, an agreement shall be incorporated by reference into the final judgment or decree without modification. Any modification to an agreement is valid only if agreed to by all parties to the agreement and is binding only among the parties to that agreement.
D. C. If ownership of a right to use water for stock watering or stockpond purposes or for domestic use on a ranch or farm on state land is disputed in a general adjudication of the rights to use the waters of a river system and source, the water right shall be adjudicated in the name of a claimant other than the state if both of the following apply:
1. The point of diversion and the place of use, or the perfection of the water right by the appropriator, comply with section 37‑321.01, subsection A.
2. The state land commissioner has been afforded the opportunity to resolve the claim.
E. In the event that the state and a private claimant that claims ownership of the water right under subsection D of this section dispute the ownership of the right to use water on state land, the evidentiary presumptions of section 45‑261 shall not apply to the resolution of the dispute. Following the determination of ownership by the master or court, the evidentiary presumptions of section 45‑261 shall apply to the determination of the remaining attributes of the water right.
F. If ownership of a right to use water on land owned by the United States is disputed in a general adjudication of the rights to use the waters of a river system and source, that water right shall be adjudicated in accordance with section 45‑151, subsections E and F.
Sec. 14. Section 45-261, Arizona Revised Statutes, is amended to read:
45-261. Presumption in favor of prior filings and decrees
A. Except as otherwise specifically provided in this article and to the extent that water rights have not been forfeited or abandoned, the director, the master and the court shall apply the following evidentiary rules in determining the attributes of water rights claimed pursuant to this article:
1. The court shall accept information in an applicable prior decree as prescribed by section 45‑257, subsection B, paragraph 1.
2. Information in an applicable prior filing shall be presumed correct unless reported by the director to be clearly erroneous.
3. 2. If information in a prior decree conflicts with information in one or more applicable prior filings, the court shall accept the information in the prior decree as prescribed by section 45‑257, subsection B, paragraph 1.
4. If information in applicable prior filings conflicts, the information most favorable to the claimant shall be presumed correct unless reported by the director to be clearly erroneous.
5. 3. If there is no information in any applicable prior filing or decree or if the court finds that information contained in an applicable prior filing regarding a water right attribute is clearly erroneous, the court shall determine the attribute. In making a determination pursuant to this subsection, the court may use the director's report, statement of claimant information, information obtained in claimant interviews, aerial photographs, satellite technology, historical records, maps, technical data or other relevant information in evidence.
B. The presumption in favor of information contained in an applicable prior filing may be rebutted by any party who has filed a proper objection pursuant to section 45‑256, subsection B and on a showing of clear and convincing evidence.
C. B. If there is a conflict in applicable prior filings regarding the ownership of a water right and multiple parties have filed applicable statements of claimant, the presumption in favor of information in applicable prior filings does not apply to the determination of ownership. any claimant may offer that information to support or refute a claim of water right ownership. All other attributes of the water right shall be determined pursuant to the presumptions in this section.
D. C. Section 45‑256, subsections D and E apply to the evidentiary weight given to the following determinations made by the director:
1. That information contained in a prior filing is clearly erroneous as it relates to the water right claim or use being investigated.
2. That no water right was initiated or perfected under the applicable federal, state or territorial law.
3. That a water right was forfeited or abandoned.
E. D. The director's report shall contain the basis for determinations made pursuant to subsection D of this section.
Sec. 15. Repeal
Section 45-262, Arizona Revised Statutes, is repealed.
Sec. 16. Section 45-263, Arizona Revised Statutes, is amended to read:
45-263. State law applicable
A. State law, including all defenses available under state law, applies to the adjudication of all water rights initiated or perfected pursuant to state law.
B. The public trust is not an element of a water right in an adjudication proceeding held pursuant to this article. In adjudicating the attributes of water rights pursuant to this article, the court shall not make a determination as to whether public trust values are associated with any or all of the river system or source.
APPROVED BY THE GOVERNOR APRIL 30, 2019.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 30, 2019.
