Arizona Laws 45-463. Type 1 non-irrigation grandfathered right associated with retired irrigated land; appurtenancy; ownership
A. In an initial active management area, a person who owns land which was legally entitled to be irrigated with groundwater and who retired such land from irrigation after January 1, 1965 but prior to the date of the designation of the active management area in anticipation of a non-irrigation use has the right to withdraw from or receive for such land three acre-feet of groundwater per acre per year upon showing that:
Terms Used In Arizona Laws 45-463
- Active management area: means a geographical area that has been designated pursuant to article 2 of this chapter as requiring active management of groundwater or, in the case of the Santa Cruz active management area, active management of any water, other than stored water, withdrawn from a well. See Arizona Laws 45-402
- Certificate of exemption: means a certificate which was issued by the state land department or Arizona water commission under prior statutory law for the purpose of describing specific uses and amounts of water which could not be enjoined if found to constitute the transfer or transportation of groundwater. See Arizona Laws 45-461
- Date of the designation of the active management area: means :
(a) With respect to an initial active management area, June 12, 1980. See Arizona Laws 45-402
- Development plan: means a plan for the non-irrigation use of land in connection with which land has been or will be retired from irrigation for the bona fide purpose of conserving or using water for such non-irrigation use which would otherwise be used to irrigate the retired land. See Arizona Laws 45-461
- Director: means the director of water resources, who is also the director of the department. See Arizona Laws 45-101
- Grandfathered right: means a right to withdraw and use groundwater pursuant to article 5 of this chapter based on the fact of lawful withdrawals and use of groundwater before the date of the designation of an active management area. See Arizona Laws 45-402
- Groundwater: means water under the surface of the earth regardless of the geologic structure in which it is standing or moving. See Arizona Laws 45-101
- Non-irrigation grandfathered right: means a grandfathered right determined pursuant to section 45-463, 45-464, 45-469 or 45-472. See Arizona Laws 45-402
- Non-irrigation use: means :
(a) With respect to areas outside an active management area and with respect to an active management area other than the Santa Cruz active management area, a use of groundwater other than an irrigation use. See Arizona Laws 45-402
- Owner: means :
(a) With respect to an irrigation grandfathered right or a type 1 non-irrigation grandfathered right, the owner of the land to which the right is appurtenant. See Arizona Laws 45-461
- Person: means an individual, public or private corporation, company, partnership, firm, association, society, estate or trust, any other private organization or enterprise, the United States, any state, territory or country or a governmental entity, political subdivision or municipal corporation organized under or subject to the constitution and laws of this state. See Arizona Laws 45-402
- Same ownership: means ownership by the same person or entity or by successor persons or entities as a result of succession to heirs and personal representatives, corporate and partnership reorganizations, mergers, dissolutions, divestitures, partnerships, partitions, joint ventures, foreclosures, receivership or bankruptcy, purchase of capital stock, sale pursuant to United States Code, title 11, or similar succession, but not by outright sale to a bona fide purchaser for value where no portion of or beneficial interest in the successor in interest is retained by the original owner, its shareholders, partners, limited partners or beneficiaries. See Arizona Laws 45-461
- Subsequent active management area: means an active management area established after June 12, 1980 pursuant to article 2 of this chapter. See Arizona Laws 45-402
- town: means a city or town incorporated or chartered under the constitution and laws of this state. See Arizona Laws 45-402
1. The land has been held under the same ownership since it was retired.
2. A development plan for the proposed non-irrigation use existed at the time the land was retired.
B. In a subsequent active management area, a person who owns land which was legally entitled to be irrigated with groundwater and retires such land from irrigation prior to the date of the designation of the active management area in anticipation of a non-irrigation use has the right to withdraw from or receive for such land the lesser of three acre-feet of groundwater per acre per year or the average annual amount of groundwater which was used per acre during the five years preceding the time the land was retired upon showing that:
1. The land has been held under the same ownership since it was retired.
2. A development plan for the proposed non-irrigation use existed at the time the land was retired and is filed with the director within ninety days after the active management area is designated.
C. The development plan requirements of this section are deemed fulfilled if the land retired from irrigation has been described in an application for a certificate of exemption or if the land retired from irrigation is owned in conjunction with non-irrigation uses existing or for which substantial capital commitments have been incurred for the non-irrigation development of such land as of the date of the designation of the active management area.
D. The right to withdraw or receive groundwater pursuant to this section is a non-irrigation grandfathered right associated with retired irrigated land, or a type 1 non-irrigation grandfathered right.
E. A type 1 non-irrigation grandfathered right is appurtenant to the acre of retired irrigated land associated with the right, is owned by the owner of the land to which the right is appurtenant and may be leased with the land.
F. At the request of a city or town in the Tucson active management area that holds a type 1 non-irrigation grandfathered right under subsection A of this section, the director, in determining whether to designate or redesignate the city or town as having an assured water supply pursuant to section 45-576, shall include four and one-half acre-feet of groundwater for each acre of retired irrigated land to which the right is appurtenant, multiplied by the number of years between the year of retirement and the year of the request, minus the quantity of groundwater withdrawn from the land between June 12, 1980 and the year of the request, except that:
1. No groundwater may be included for any acre of retired irrigated land for any year after the land is developed for any municipal or industrial use.
2. The amount of groundwater that is included under this subsection shall not exceed four and one-half acre-feet for each acre of retired irrigated land to which the right is appurtenant multiplied by the number of years between the year of retirement and December 31, 2025 minus the quantity of groundwater withdrawn from the land between June 12, 1980 and December 31, 2025.
3. The net amount of groundwater included under this subsection shall not exceed two million acre-feet.
4. The city or town, before making the request of the director, shall extinguish any irrigation grandfathered rights or type 1 non-irrigation grandfathered rights held by the city or town and appurtenant to land acquired or contracted for by the city or town after June 12, 1980 in the same sub-basin.
G. In determining whether to designate a city or town as having an assured water supply pursuant to section 45-576, the director shall not consider the exercise of the right to withdraw groundwater under subsection F of this section to be the withdrawal of groundwater available from natural or artificial groundwater recharge.