ALJDEC decisions subject to certification as final
20A-SW002-DWR · Department of Water Resources · 2023-02-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Decision of Director to Deny Amended Application to Partially Sever and Transfer Salt River Project Agricultural Improvement and Power District's Statement of Claim of Right No. 36-105209
No. 20A-SW002-DWR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 25, 2022, through July 28, 2022, with the record held open for post-hearing briefing
APPEARANCES: The Salt River Project Agricultural Improvement and Power District was represented by John B. Weldon, Jr., Mark A. McGinnis, and Michael K. Foy. The Arizona Department of Water Resources was represented by Nicole D. Klobas, Janet L. Miller, and R. Jeffrey Heilman.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
DEFINITIONS AND ABBREVIATIONS
To reduce length, this document uses the following definitions and abbreviations. To increase readability, the defined terms “cottonwood,” “cuckoo,” flycatcher,” and “willow” are not capitalized when used herein.
“ADWR” refers to the Arizona Department of Water Resources.
“AFY” refers to acre-feet per year.
“Application” refers to the application for severance and transfer filed by the District with ADWR on September 30, 2005.
“Association” refers to the Salt River Valley Water Users’ Association.
“August 2020 Decision” refers to the August 3, 2020 Decision of the Director to Deny Amended Application to Partially Sever and Transfer Statement of Claim of Right No 36-105209, which was admitted into evidence as Exhibit ADWR47A during the administrative hearing in this matter.
“AZGS” refers to the Arizona Geological Survey.
“Black Farm” refers to the Preserve property prior to the District’s acquisition of that property.
“Black Farm Well” refers to the irrigation well located on the Preserve, which is registered with ADWR as No. 55-896327.
“Claim” refers to Statement of Claim of Right No. 36-105209.
“Cottonwood” refers to the Fremont cottonwood tree, which has the scientific name Populus fremontii.
“Cuckoo” refers to the western population segment of the Yellow-Billed Cuckoo, a threatened bird species.
“District” refers to the Salt River Project Agricultural Improvement and Power District.
“First Amendment” refers to the District’s first amendment to the Application, dated November 29, 2006.
“Flycatcher” refers to the Southwestern Willow Flycatcher, an endangered bird species.
“Gila Adjudication” refers to the general adjudication of water rights currently pending in the Maricopa County Superior Court, captioned as In re General Adjudication of All Rights to Use Water in the Gila River System and Source, Cases Nos. W-1 through W-4.
“HCP” refers to a Habitat Conservation Plan.
“HSR” refers to the Hydrographic Survey Report issued by ADWR for the San Pedro River Watershed on November 20, 1991.
“JSOF” refers to the Joint Statement of Stipulated Facts filed by the parties on April 20, 2021.
“POD” refers to a point of diversion of water.
“Preserve” refers to the Black Farm Preserve, owned by the District on the south side of Aravaipa Creek just upstream from its confluence with the San Pedro River and operated for wildlife habitat purposes. For the time period prior to the District’s acquisition of the property, that same property is referred to as “Black Farm.” Some of the admitted exhibits refer to this same property as the “Stambaugh property.” Maps showing the location of that property appear as Exhibit 1 to the JSOF and in, among others, admitted hearing exhibits ADWR7A_0028 and ADWR47A_0016 and -002.
“Project” refers to the Salt River Federal Reclamation Project.
“S&T” refers to a severance and transfer of an existing water right, which involves moving the place of use of the right from one location to another pursuant to A.R.S. § 45-172.
“Second Amendment” refers to the District’s second amendment to the Application, dated May 13, 2011.
“SOC” refers to a Statement of Claimant filed in the Gila Adjudication pursuant to A.R.S. § 45-254.
“SRP” refers collectively to the District and the Association.
“U.S. F&WS” refers to the United States Fish and Wildlife Service, an agency of the United States Government.
“Willow” refers to the Goodding willow tree, which has the scientific name Salix Gooddingii.
FINDINGS OF FACT
Hearing, Witnesses, and Exhibits
An administrative hearing was held in this matter before the Arizona Office of Administrative Hearings in Phoenix, Arizona, commencing at 9:00 a.m. on July 25, 2022 and concluding at the end of the day on July 28, 2022.
Six witnesses testified during the hearing—four for the District, and two for ADWR. Keith Nelson testified remotely on behalf of ADWR. All other witnesses testified in person.
David Roberts testified on behalf of the District.
a. Mr. Roberts is the Associate General Manager for Water Resources at SRP. He has been in that position since 2016.
b. He has a bachelor’s degree in wildlife biology from Arizona State University.
c. He has been at SRP since 1986 and has worked on water and water rights issues during that entire time.
d. Among other things, Mr. Roberts was the person directly responsible for the Water Rights and Contracts group at SRP for 18 years.
e. Mr. Roberts participated in or supervised the preparation and submission of the Claim and the Application, all amendments thereto, and the District’s responses to requests for information from ADWR.
Gregg Ten Eyck testified on behalf of the District.
a. Mr. Ten Eyck is a Senior Project Manager for LRE Water in Denver, Colorado.
b. He has a bachelor’s degree in environmental engineering from Northwestern University and a master’s degree in civil engineering from Colorado State University.
c. He has over 45 years of experience working with surface water hydrology and water rights administration issues.
d. He is a registered professional engineer in Colorado and three other states.
e. Mr. Ten Eyck has testified as an expert witness before various tribunals, including in prior cases before OAH and before the federal district court in Arizona in the Globe Equity litigation relating to administration of a 1935 water rights decree on the mainstem of Upper Gila River in Arizona and New Mexico.
Jon Ford testified on behalf of the District.
a. Mr. Ford is a Senior Ground Water Geologist/Engineer with LRE Water in Denver, Colorado.
b. He has bachelor’s degrees in geological engineering and geophysical engineering from the Colorado School of Mines.
c. He has over 50 years of experience working with groundwater hydrology, geology, and geohydrology issues.
d. He is a registered geological engineer in Arizona, a registered professional engineer in Colorado, a registered professional geologist in Wyoming, and a certified professional geologist by the American Institute of Professional Geologists.
e. Mr. Ford has testified as an expert witness before various tribunals, including in a prior case before OAH and in numerous proceedings relating to subflow issues before the Superior Court and the Special Master in the Gila Adjudication.
Dr. Mark Dixon testified on behalf of the District.
a. Dr. Dixon has been a Professor at the University of South Dakota since 2006.
b. He has a bachelor’s degree in animal ecology from Iowa State University, a bachelor’s degree in zoology from Virginia Tech University, a master’s degree in wildlife biology from South Dakota State University, and a doctoral degree in zoology from the University of Wisconsin-Madison, with an emphasis in landscape ecology.
c. He has over 20 years of experience working as a riparian ecologist, which involves the study of ecological interactions within riparian areas.
d. Dr. Dixon has authored or co-authored numerous studies that analyze the habitat needs of riparian vegetation, including cottonwood and willow, within the San Pedro River Watershed where the Preserve is located.
e. Dr. Dixon has education and experience in the field of avian habitat needs, including a Ph.D. in zoology, and has been involved in bird population surveys and other studies that address the relationship between riparian vegetation and avian habitat needs.
f. Dr. Dixon previously testified as an expert witness for the United States Department of Justice before the Superior Court in the Gila Adjudication in a contested case involving the federal reserved water rights claims for the San Pedro Riparian National Conservation Area on the San Pedro River.
Keith Nelson testified on behalf of ADWR.
a. Mr. Nelson is a Principal Hydrogeologist, Research Hydrologist, and Modeling Section Manager at ADWR.
b. He did not participate in ADWR’s review, processing, or denial of the Application, and he did not prepare a written expert report in this matter.
c. Mr. Nelson reviewed the report prepared by Dr. Olga Hart and adopted her opinions and conclusions as his own.
d. Mr. Nelson did not review a draft of Dr. Hart’s report before it was submitted. He did not review that report until after Dr. Hart announced she was leaving ADWR.
e. Mr. Nelson testified that, when Dr. Hart left ADWR, he “received a bunch of her work that she did related to this case, and then [he] reviewed it.” He testified: “[S]o I basically just inherited her work.”
Elizabeth Logan testified on behalf of ADWR.
a. Ms. Logan started working at ADWR in 1989 and was the Manager of the Surface Water Section at ADWR from 2002 until March 2021.
b. She left ADWR in March 2021 and is currently the Water Rights Manager for the Arizona State Land Department.
c. She was responsible for ADWR’s review and processing of the Application.
d. Ms. Logan participated in drafting the August 2020 Decision.
More than 150 exhibits were admitted as evidence before or during the hearing.
a. Exhibits ADWR1 through ADWR54 were admitted prior to the hearing by stipulation between the parties.
b. All other admitted exhibits were admitted during the July 25, 2022, through July 28, 2022 hearing.
The parties submitted the JSOF on April 20, 2021, setting forth various facts to which they had stipulated.
The Salt River Federal Reclamation Project and Roosevelt Dam
The Association is an Arizona territorial corporation formed in 1903 for purposes of establishing a local entity to contract with the United States Government for the construction of the Project, including Roosevelt Dam.
The District is an agricultural improvement and power district formed as a political subdivision of the State of Arizona in 1936.
The Project is a federal Reclamation project established pursuant to the Reclamation Act of 1902.
Together, the District and the Association operate the Project.
SRP operates four reservoirs on the Salt River, two on the Verde River, and one on East Clear Creek.
Roosevelt Dam was constructed as part of the Project starting in 1903 near the confluence of the Salt River and Tonto Creek for the purpose of providing water for the irrigation of lands in the Phoenix area.
Roosevelt Lake, which is formed and impounded by Roosevelt Dam, has the largest storage capacity of any of the six Project reservoirs on the Salt and Verde Rivers.
a. Roosevelt Lake is important to SRP’s water operations for various reasons, including its relatively large storage capacity as compared to the other Project dams on the Salt and Verde Rivers. It is “the backbone of Salt River Project’s water supply system.”
b. Roosevelt Lake constitutes over 80 percent of the total storage capacity of the Project reservoirs on the Salt River and over 70 percent of the combined total storage capacity of the Project reservoirs on the Salt and Verde Rivers.
c. The possibility of future climate change increases the importance of Roosevelt Lake because most projections of climate change impacts predict larger variations in precipitation, with longer dry periods and larger but less frequent wet periods.
d. The current shortage of water in the Colorado River system also adds to the importance of Roosevelt Lake because a portion of the water stored behind Roosevelt Dam can be used by cities in the Phoenix metropolitan area to supplement water supplies for use outside the Project boundaries and help compensate for reduced availability of Colorado River water through the Central Arizona Project.
Roosevelt Dam also has significant hydroelectric generating capacity.
a. The ability to store water behind Roosevelt Dam affects the ability to generate hydroelectric power at Roosevelt Dam.
Flycatchers and Cuckoos at Roosevelt Lake
The water levels in Roosevelt Lake fluctuate over time based on inflows to the reservoir and releases for downstream water uses.
In the early 2000s, flycatchers were discovered nesting in areas near the water level at Roosevelt Lake during a period of relatively low water levels.
Flycatchers are an endangered species of bird that are protected under the Endangered Species Act.
The U.S. F&WS became concerned that raising the water level at Roosevelt Lake back up to the higher prior levels would impact the habitat for the flycatcher that had been created while the lake level was low.
The U.S. F&WS required SRP to prepare an HCP for flycatchers at Roosevelt Lake.
a. The Roosevelt HCP addressed, among other things, the possible impacts of continuing to operate Roosevelt Dam on various species of wildlife, including the flycatcher, the cuckoo, and other endangered and threatened species.
b. The Roosevelt HCP required SRP to take certain measures to mitigate the impact on flycatcher habitat that would be caused by the continued operation of Roosevelt Dam.
c. Absent those mitigation measures, SRP likely would have been prohibited from continuing to operate Roosevelt Dam in its normal manner.
Among several mitigation measures that SRP was required to take was the acquisition and management of replacement habitat for flycatchers.
a. The Roosevelt HCP required SRP to purchase at least 1,500 acres of replacement habitat.
b. The Roosevelt HCP requires that “[t]he acquired lands will be either currently occupied flycatcher habitat or habitat that is expected to support flycatchers in the future through improved management.”
The Roosevelt HCP specifically discussed the District’s purchase of Black Farm:
. . . Although the entire stretch of the San Pedro River between Winkelman and Mammoth could provide flycatcher habitat, two areas have known concentrations of flycatcher populations and have been the focus of research by SRP for restoration and conservation potential. One area is near the mouth of Aravaipa Creek and along the San Pedro River above Cooks Lake, where several parcels may be available for conservation. . . . An additional parcel of land near the mouth of Aravaipa Creek containing approximately 30 acres of riparian land that is potential habitat for flycatchers and cuckoos and irrigated land equivalent to about 65 acres is under contract by SRP and expected to close before the end of 2002. . . . Combined with SRP’s efforts, including the two parcels already being purchased, the annual increase in water supply to this portion of the river and its riparian habitat is estimated to total more than 2,000 AF.
In issuing the Roosevelt HCP, the U.S. F&WS was required to prepare an Environmental Impact Statement.
a. The U.S. F&WS prepared an Environmental Impact Statement for the Roosevelt HCP in December 2002.
SRP also was required to enter into an implementing agreement with the U.S. F&WS with respect to the Roosevelt HCP.
a. An implementing agreement is an agreement between the U.S. F&WS and a contracting party that requires the contracting party to undertake certain measures to address issues related to protecting an endangered species.
b. SRP and the U.S. F&WS entered into the implementing agreement on February 14, 2003.
The U.S. F&WS also was required to issue a Biological Opinion relating to the Environmental Impact Statement for the Roosevelt HCP.
a. The U.S. F&WS issued that Biological Opinion on February 21, 2003.
The U.S. F&WS also was required to issue a Record of Decision for the Roosevelt HCP.
a. The U.S. F&WS issued that Record of Decision on February 27, 2003.
The U.S. F&WS issued Incidental Take Permit No. TE 060125-0 to the District for flycatchers, cuckoos, and other species at Roosevelt Lake on February 26, 2003.
a. An Incidental Take Permit is a permit issued by the U.S. F&WS authorizing the permittee to “take” an endangered species, conditioned on compliance with certain mitigation requirements.
b. The Incidental Take Permit became effective on February 27, 2003 and expires on February 27, 2053.
Cuckoos also exist at Roosevelt Lake.
On February 27, 2020, the U.S. F&WS issued a notice in the Federal Register of a proposed designation of critical habitat for the cuckoo.
a. The proposed critical habitat designation for the cuckoo included the Preserve and the adjacent reach of Aravaipa Creek.
On April 21, 2021, the U.S. F&WS issued a notice in the Federal Register of a final designation of critical habitat for the cuckoo.
a. The final critical habitat designation for the cuckoo includes the Preserve and the adjacent reach of Aravaipa Creek.
The District’s Acquisition of the Preserve
As part of the HCP process, and to satisfy the requirement under the Roosevelt HCP to acquire and manage at least 1,500 acres of replacement habitat, the District searched for suitable property to purchase.
Among the replacement habitat properties that the District located was the “Stambaugh Property” (i.e., Black Farm) on Aravaipa Creek just upstream from the confluence with the San Pedro River.
The SRP management and staff recommended that Black Farm be one of the properties that the District should purchase as part of satisfying its obligation to acquire and manage at least 1,500 acres of replacement habitat under the Roosevelt HCP.
The Association Water Committee, the District Board of Directors, and the Association Board of Governors each approved the purchase of Black Farm in August 2002.
The District purchased Black Farm in January 2003, and that property became the Preserve.
a. The District purchased Black Farm because it had valuable characteristics for riparian habitat for flycatchers and cuckoos and because it “had some very valuable water rights associated with that property” that “could be severed and transferred for instream flows in Aravaipa Creek for creation and maintenance of habitat.”
b. The water rights associated with Black Farm were particularly valuable because of their early (1865) priority date and “because the earlier the right under the prior appropriation doctrine, the better the right and the ability to call out junior users in the case where [the District’s] rights are not being satisfied.”
c. If the District had not intended to enforce its water rights against upstream junior users, the early priority date would not have been important.
d. The District conferred with the U.S. F&WS when it was deciding which conservation habitat properties to purchase.
e. The District conferred with the U.S. F&WS specifically with respect to its purchase of Black Farm.
f. The U.S. F&WS approved the District’s purchase of Black Farm as replacement habitat for flycatchers and cuckoos that would be “taken” at Roosevelt Lake.
In addition to Black Farm, the District also acquired an interest in various other conservation properties in the San Pedro River Watershed, to satisfy its obligations under the Roosevelt HCP.
a. Those other properties include the Adobe Preserve, the San Pedro River Preserve, the Spirit Hollow Preserve, and the Stillinger Preserve.
In addition to those properties in the San Pedro River Watershed owned and operated by the District for wildlife habitat purposes, various other entities also have purchased land in that same watershed for similar purposes.
The District’s Operation of the Preserve
Since acquiring the property, the District has continued to operate and manage the Preserve.
a. The District employs a full-time caretaker who resides on the Preserve and manages the property and other nearby conservation properties.
b. The District has retired the irrigation on the Preserve, has discontinued using the irrigation well, and has planted native grasses.
c. The District also has continued to interact with the U.S. F&WS regarding the Roosevelt HCP and the operation of the District’s conservation properties, including the Preserve.
In 2004, the District was required to prepare a baseline inventory of the physical and ecological characteristics and conditions of the Preserve.
a. The District submitted that baseline inventory to the U.S. F&WS in September 2004.
b. That 2004 baseline inventory states, among other things, that the Preserve “is important for conservation because it possesses: [1] an annual surface water right from Aravaipa Creek in the amount of 1,692.5 acre-feet from January 1 to December 31, dating back to December 28, 1865, to be transferred to an instream flow right for purposes of sustaining riparian-related wildlife habitat[; and 2] riparian habitat associated with Aravaipa Creek that has the potential to provide wildlife habitat.”
c. That 2004 baseline inventory also states: “SRP acquired this property (1) to sever and transfer irrigation water rights from 107.8 acres of irrigated fields to instream flows for wildlife purposes and (2) to enhance riparian habitat along Aravaipa Creek for the southwestern willow flycatcher. . . .”
d. With respect to vegetation on the Preserve, the baseline inventory states: “SRP believes that this riparian community can be enhanced, over time, by eliminating livestock grazing and groundwater pumping from the irrigation well. However, it will take a recruitment event – spring flood flows – through this reach of the creek, along with these changes in management, to begin the recovery of riparian vegetation on the Property.”
e. That 2004 baseline inventory also noted the presence of mesquite on the Preserve and the presence of young willow trees in the area:
A young mesquite community (Prosopis velutina) can be found on the first terrace above the flood plain, south of the stream channel. Based on historical maps of cultivated lands (GRDM 1920), this area was under cultivation at one time. However, as recently as 1993, this portion of the Property had been scoured by flooding. It is not known when this area was taken out of production. However, the mesquites that currently exist here have not reached the stature of mature mesquite trees. Cattle grazing may have had an additional impact on this vegetation, although it is difficult to determine the degree of their effect. Groundcover is lacking here, consisting mainly of weedy annual grasses and forbs. Several seep willows are growing in areas that receive excess irrigation runoff from the adjacent agricultural fields. The possibility exists for these young trees to grow into a mature stand of mesquites in the future.
f. Figure 5 of that 2004 baseline inventory shows the location of the velvet mesquite community on the Preserve.
The District also was required to submit a management plan for the Preserve to the U.S. F&WS in 2004.
a. The District submitted that management plan to the U.S. F&WS in October 2004.
b. That 2004 management plan stated, among other things, that the District would discontinue use of the Black Farm Well and would apply for an S&T of the water right to instream flow purposes to protect and expand the habitat for wildlife on the Preserve.
The 2004 management plan was updated and resubmitted to the U.S. F&WS in May 2019.
a. That 2019 updated management plan states: “The Property was purchased primarily to secure the surface water rights, then sever and transfer those rights for purposes of augmenting the flow of Aravaipa Creek.”
b. That 2019 updated management plan also recognized that “the stream bottom [at the Preserve] has the potential to support flycatcher and cuckoo habitat.”
c. Among the management objectives for the Preserve listed in the 2019 updated management plan was to “[a]ugment stream flows in Aravaipa Creek and downstream at its confluence with the San Pedro by transferring 1692.5 acre feet of irrigation water rights to instream flows for the benefit of riparian habitat and associated wildlife, specifically flycatcher and cuckoo habitat.”
d. The 2019 updated management plan also recognized that “[t]he extant condition of this Property is the result of cumulative impacts occurring over long periods of time. Historic uses of the site for agriculture, grazing and settlement date back hundreds of years to Piman ‘rancherias.’ Long-term combined effects of clearing farmland, grazing, surface water diversion and groundwater withdrawals have resulted in the ecological stress and degradation that exists on the site today.”
e. That document also stated:
. . . Causes of the degraded riparian area in Aravaipa Creek can be partially attributed to historic diversion of water from the creek and, more recently, pumping of subflow from the alluvial aquifer for irrigation of cropland on the adjacent terraces. . . . Decades of surface water diversion and groundwater pumping have likely resulted in drawdown of the alluvial aquifer below Aravaipa Creek in the vicinity of the Property.
f. The 2019 updated management plan also discussed the District’s expectations for how long it might take for underground water levels beneath the Preserve to recover, even once the District stopped using the Black Farm Well and severed and transferred the water right to instream flows: “SRP intends to reduce groundwater withdrawals in this reach by transferring water rights to instream flows and capping the irrigation well on the Property. In time, this action will help to stabilize the water table.”
g. The document continued: “Recovery of the alluvial aquifer should help to provide the necessary conditions for plant maintenance, including a slowly receding water table after flooding, a persistent shallow depth to water throughout the year, and an ever-widening zone in which the water table is shallow enough to support riparian vegetation (ADWR 1994).”
h. Appendix A to the 2019 updated management plan was a map of “Habitat Zones” on the Preserve.
i. That map shows a “Velvet Mesquite Community” on the Preserve, in the vicinity of Aravaipa Creek.
j. The presence of the velvet mesquite community was part of the reason that the District purchased Black Farm.
The District is required to submit annual reports to the U.S. F&WS regarding its activities under the Roosevelt HCP.
a. Annual reports for the years 2004 to 2019 were admitted into evidence during the administrative hearing in this matter as Exhibits SRP42 and SRP77 through SRP91.
b. Each of those annual reports separately addresses each of the various conservation properties owned and operated by the District, including the Preserve.
For example, the annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2005 includes a section relating to the Preserve.
a. With respect to the Preserve, that 2005 annual report states: “This property was acquired for the primary purpose of severing and transferring the water rights to instream flow for wildlife purposes.”
Statement of Claim of Water Right No. 36-105209
A Statement of Claim is a filing that asserts an existing appropriative water right and is submitted to ADWR pursuant to A.R.S. § 45-182, which is part of the 1974 Water Rights Registration Act.
A map dated February 1869 shows that the Preserve lies partially on land that was originally used as the Camp Grant Military Reservation, established in 1865, and depicts cultivated fields located within portions of the Black Farm property.
On May 16, 1878, James Voss filed a claim of water right for Black Farm with Pinal County, Arizona, for a right-of-way for a ditch and claimed 300 inches of appropriable water from Aravaipa Creek for irrigation purposes.
On November 26, 1884, Isaac D. Putnam filed a claim with Pinal County, Arizona for 1,500 inches of appropriable water from Aravaipa Creek for irrigation of “Old Camp Grant Ranch” land located within portions of Black Farm.
In 1920, the State Water Commissioner prepared maps of surveys showing irrigated land and ditches taking water from the Gila River or its tributaries.
a. That 1920 map depicts cultivated fields within Black Farm at that time.
On February 23, 1978, Inez Black filed with ADWR Statement of Claim of Right No. 36-60269.
a. Statement of Claim of Right No. 36-60269 claims a right, with a priority date of November 20, 1884, to divert water from Aravaipa Creek for the beneficial use of irrigation on Black Farm.
b. By warranty deed dated March 28, 1979, the property associated with Statement of Claim of Right No. 36-60269 was sold to William M. and Gloria M. Stambaugh.
On December 18, 1979, the William M. Stambaugh Family Trust filed SOC No. 39-1976 with ADWR, claiming a right with a priority date of 1878 based on the Voss claim and the Putnam claim, to 325 AFY of water from Aravaipa Creek for irrigation use on Black Farm.
a. An SOC is a filing in the Gila Adjudication, which is different from a Statement of Claim.
b. The basis of right listed on SOC No. 39-1976 is Statement of Claim of Right No. 36-60269.
On November 20, 1991, ADWR noted in the HSR, as part of Watershed File Report No. 114-04-BDD-001, that there were irrigated lands located within Black Farm.
a. An HSR is a report issued by ADWR for the Gila Adjudication Court pursuant to A.R.S. § 45-256, which presents, among other things, ADWR’s investigation and examination of “the facts pertaining to the claim or claims asserted by each claimant.”
By warranty deed dated October 12, 1998, William M. and Gloria M. Stambaugh conveyed Black Farm to S.D.S. Farms, who then conveyed it to the District by warranty deed dated January 7, 2003.
On May 14, 2003, the District filed the Claim with ADWR.
a. The Claim asserted an irrigation right for the Preserve with a priority date of December 28, 1865 for 101.2 acres and January 1, 1969 for 6.6 additional acres.
b. As evidence of continuing irrigation use, the District attached to the Claim aerial photography dated 1935; January 22, 1947; January 21, 1955; January 13, 1964; November 18, 1969; February 3, 1970; July 17, 1971; September 30, 1978; July 4, 1983; October 8, 1984; May 24, 1987; and October 26, 1990.
c. In the Claim, the District claimed a total water duty per acre of 15.7 AFY.
d. A “water duty” is the amount of irrigation water applied.
e. The Claim stated: “The sources of water claimed are Aravaipa Creek and its tributaries and the subflow of Aravaipa Creek.”
f. The Claim further stated: “The water right has recently been satisfied by pumping subflow, but SRP reserves the right to resume direct diversions from Aravaipa Creek and the right to enforce our water rights against upstream, junior users. . . .”
In the May 2003 Claim, the District specifically and expressly informed ADWR that it intended to retain the ability to enforce its senior water rights for the Preserve against upstream junior users on Aravaipa Creek.
a. During the hearing in this matter, Mr. Roberts testified that it always has been SRP’s intent to retain the ability to enforce its senior water rights for the Preserve against upstream junior users on Aravaipa Creek.
Ms. Logan, the longtime Manager of the Surface Water Division at ADWR, agreed that the Claim was referenced on the face of the S&T Application.
a. Ms. Logan testified that, during her tenure at ADWR, Statements of Claim were generally included as part of the files for associated S&T applications.
b. Ms. Logan testified that, during her tenure at ADWR, the Surface Water Division staff typically would review the Statement of Claim as part of its review of any associated S&T applications.
c. Ms. Logan testified that ADWR’s staff reviewed the Claim during the process of reviewing the Application.
On July 30, 2003, the District received a letter from ADWR relating to the Claim.
a. In that letter, ADWR requested additional information regarding the Claim.
The District responded to ADWR’s request for information relating to the Claim by letter dated May 20, 2004.
With its May 20, 2004 letter to ADWR, the District submitted a revised version of the Claim.
a. In the May 2004 revision of the Claim, the District claimed a right to divert and beneficially use up to 1,692.5 AFY of appropriable water from Aravaipa Creek for the irrigation of 107.80 acres of land.
b. The May 2004 revision of the Claim stated that the places of use where the water is beneficially used for irrigation are lands located within the Northeast quarter of the Southeast quarter (NE1⁄4SE1⁄4) and the Southeast quarter of the Southeast quarter (SE1⁄4SE1⁄4), Section 9 and the Southeast quarter of the Northwest quarter (SE1⁄4NW1⁄4), the Northeast quarter of the Southwest quarter (NE1⁄4SW1⁄4), the Northwest quarter of the Southwest quarter (NW1⁄4SW1⁄4), . . . and the Northwest quarter of the Southwest quarter (NW1⁄4SW1⁄4), Section 10, all in Township 7 South, Range 16 East, Gila and Salt River Base Meridian, Pinal County, Arizona, now known as the Preserve.
c. The May 2004 revision of the Claim included three PODs.
d. The first POD was from Aravaipa Creek by gravity flow into a diversion canal utilizing an earthen dam located within the Southwest quarter of the Southwest quarter (SW1⁄4SW1⁄4), Section 5, Township 7 South, Range 17 East.
e. The first POD was located approximately four miles upstream from Black Farm.
f. A second POD diverted water directly from Aravaipa Creek via means of a surface diversion located within the Southeast quarter of the Northeast quarter (SE1⁄4NE1⁄4), Section 11, Township 7 South, Range 16 East.
g. The second POD was located approximately one mile upstream from Black Farm. The location of the second POD is depicted on a map attached to Exhibit ADWR12.
h. The channel of Aravaipa Creek at Black Farm is incised—i.e., the channel bottom is lower than the elevation of the surrounding land.
i. The surface PODs on Aravaipa Farm were some distance upstream from Black Farm, likely at least in part due to the need to get water to the highest portion of the farm fields. For a gravity flow irrigation system, the diversion of water needs to occur at an elevation higher than the highest point of the irrigated fields.
j. A third POD was the withdrawal of underground water from the Black Farm Well, located in the subflow zone of Aravaipa Creek within the Southeast quarter of the Northwest quarter (SE1⁄4NW1⁄4), Section 10, Township 7 South, Range 16 East, all in Gila and Salt River Base and Meridian, Pinal County, Arizona.
k. The third POD (i.e., the Black Farm Well) is located on Black Farm.
l. The May 2004 revision of the Claim stated: “The source of water claimed is Aravaipa Creek diverted either directly from the creek or through the use of a well located within the subflow zone of Aravaipa Creek.”
m. The priority dates of first beneficial use claimed in the May 2004 revision of the Claim are December 28, 1865 for the irrigation of 101.20 acres of land and January 1, 1969 for the irrigation of 6.6 acres of land.
n. The May 2004 revision of the Claim again stated: “The water right has recently been satisfied by pumping subflow, but SRP reserves the right to resume direct diversions from Aravaipa Creek and the right to enforce our water right against upstream, junior users. . . .”
o. Ms. Logan testified at the hearing that she did not review any of the information in the Claim at the time it was filed. She “put [it] into the registry.”
In the May 2004 revision to the Claim, the District again specifically and expressly informed ADWR that it intended to retain the ability to enforce its senior water rights for the Preserve against upstream junior users on Aravaipa Creek.
The parties to this OAH proceeding stipulated that the total water requirement for irrigation on the Preserve is 1,419.7 AFY.
Use of the historic surface diversions from the ditch was discontinued in the 1970s.
a. Use of the historic surface diversions was discontinued due to complaints raised by the San Carlos Apache Tribe.
b. Nothing in the record suggests that use of those diversions was discontinued due to a lack of surface flows at either of those locations.
Statements of Claimant
A Statement of Claimant (or “SOC”) is a filing that asserts a claim for a water right in the Gila Adjudication pursuant to A.R.S. § 45-254.
a. A Statement of Claimant is different from a Statement of Claim, see FOF Paragraph 47, supra, but both filings often contain the same or similar information.
After it acquired the Preserve, the District obtained assignments of SOCs that had been filed by prior owners, asserting rights to appropriable water in the Gila Adjudication.
Those SOCs were Nos. 39-1976, -1977, and -1978.
The District’s Water Rights in the Gila Adjudication
In the Gila Adjudication, the water rights asserted in the Claim were at issue in Contested Cases Nos. W1-11-3194 and W1-11-3201 (Consolidated).
a. Those contested cases related to SOCs Nos. 39-1976 and 39-1977, which were based on information contained in the Claim.
On July 31, 2019, upon stipulation, the Special Master in the Gila Adjudication approved the District’s proposed water right abstracts for Potential Water Rights Nos. 114-04-BDD-001-IR001 and 114-04-BDD-001-IR003 for the Preserve to be included in the Catalog of Proposed Water Rights created pursuant to Section 15 of the Rules for Proceedings Before the Special Master.
a. The Special Master’s order addressed the water rights asserted in the Claim.
b. Any objections to those claimed water rights in the Gila Adjudication were resolved and withdrawn by stipulation.
c. Any additional opportunity for parties to assert any subsequent objections to those claimed water rights in the Gila Adjudication is limited by the statutes and rules relating to the Gila Adjudication.
d. Each of the abstracts approved by the Special Master states that the source of the water is subflow from Aravaipa Creek and lists the Black Farm Well as the POD.
e. Each of those abstracts lists the priority date for the right as December 28, 1865.
f. In the August 2020 Decision, the Director relied upon the abstracts approved by the Special Master in making a determination as to various attributes of the District’s water rights for the Preserve.
The parties in this OAH proceeding stipulated that the irrigation water rights asserted in the Claim were lawfully perfected under the laws of the Territory of Arizona as required in A.R.S. § 45-172(A)(3).
Seniority of the District’s Water Rights
The Special Master in the Gila Adjudication determined that the District’s irrigation water rights for the Preserve have a priority date of December 28, 1865, the date of the establishment of the Camp Grant Military Reservation evidenced by General Order 17 dated December 28, 1865.
In the August 2020 Decision, the Director determined that the priority date for the portion of the District’s irrigation water rights for the Preserve that are included in the Application, as amended, is December 28, 1865.
a. No party appealed the ADWR Director’s finding on that issue.
1865 is the earliest known priority date of any appropriative water rights claim on Aravaipa Creek and is at least one of the earliest priority dates of any appropriative water rights claim in the entire San Pedro River Watershed.
Ms. Logan testified that she was not aware of any reason a person or party would want or need to have an instream flow water right if they did not intend to enforce that right against upstream junior users.
Ms. Logan testified that, to her knowledge, ADWR had never granted an S&T application for instream flow purposes where the instream flows did not already exist.
Ms. Logan testified that the only way for the holder of an instream flow right to ensure that water would be available for its nonconsumptive use would be to assert its senior right against upstream junior users.
The S&T Application
On September 30, 2005, the District filed the Application with ADWR to sever and transfer its irrigation water rights for the Preserve pursuant to A.R.S. § 45-172.
a. The Application expressly refers to the Claim (Statement of Claim 36-105209).
In compliance with A.R.S. § 45-172(A)(5), the District provided evidence that on May 5, 2005, the governing body of the San Carlos Irrigation and Drainage District consented to the Application.
The Application sought to sever and transfer 1,692.5 AFY from irrigation use to an instream flow use on Aravaipa Creek.
The proposed place of use for the 1,692.5 AFY of water to be severed and transferred in the Application was the reach of Aravaipa Creek that flows through the northern portion of the Preserve, beginning in the Southeast quarter of the Northwest quarter (SE1⁄4NW1⁄4), Section 10, Township 7 South, Range 16 East and ending in the Southeast quarter of the Northeast quarter (SE1⁄4NE1⁄4), Section 9, Township 7 South, Range 16 East, Gila and Salt River Base and Meridian, Pinal County, Arizona.
The Application proposed monthly distributions of the 1,692.5 AFY of water to be severed and transferred in acre-feet per month.
a. The monthly distributions were based on evapotranspiration maps in Reference Evapotranspiration Estimates for Arizona, Technical Bulletin 266, by Muluneh Yitayew.
The Application included various attachments.
a. One of those attachments was an affidavit by Mr. Roberts that addressed, among other things, the legal and factual bases for the District’s water rights at the Preserve. Attached to that affidavit were numerous supporting documents.
b. Another of those attachments was the excerpt from the Roosevelt HCP discussed in Paragraph II.23-25 above, which referred to “[a]n additional parcel of land near the mouth of Aravaipa Creek containing approximately 30 acres of riparian land that is potential habitat for flycatchers and cuckoos,”—i.e., the Preserve.
On August 30, 2006, ADWR issued a notice that the Application was deemed “administratively complete.”
a. An application is “deemed” administratively complete when ADWR fails to determine whether it is administratively complete within a statutorily prescribed time frame.
b. Ms. Logan testified that, if ADWR had acted on the Application prior to the expiration of the statutory time period, it perhaps could have performed a more thorough review of administrative completeness.
The August 30, 2006 Notice of Completeness states: “Per Arizona Revised Statutes § 41-1075, the Department may request additional information during the substantive review time frame.”
Ms. Logan testified that, if ADWR was uncertain whether the District intended to assert its senior instream flow rights against upstream junior users after the S&T was approved, ADWR could have asked the District that question.
In processing and reviewing the Application and making a decision to deny that Application, ADWR never asked the District whether it intended to assert its senior instream flow rights against upstream junior users after the S&T was approved.
Despite testifying that the ADWR staff had reviewed the Claim during the process of reviewing the Application, see FOF Paragraph 58, supra, Ms. Logan also testified that “ADWR had no idea that [the District’s] intent was to enforce in order to get water in that stretch of the creek.”
Ms. Logan testified, however, that ADWR knew that the District’s 1865 water right would allow it to call out every junior user upstream on Aravaipa Creek.
Amendments to the S&T Application
By letter dated November 29, 2006, the District amended the Application by filing the First Amendment.
The First Amendment amended the Application to reflect a partial S&T.
a. The First Amendment indicated that the water right for 6.6 irrigated acres (i.e., those acres for which the Claim asserted a priority date of January 1, 1969) would stay with the land to which that right was appurtenant.
b. In the First Amendment, the District reduced the quantity of water, and associated irrigated acres, to be severed and transferred from 1,692.5 AFY for the irrigation of 107.80 acres, to 1,588.8 AFY for the irrigation of 101.2 acres.
c. The First Amendment also amended the proposed places of use listed in the Application to include only those proposed places of use located within the reach of Aravaipa Creek that border the northern portion of the Preserve, beginning in the Northeast quarter of the Southeast quarter of the Northwest quarter (NE1⁄4SE1⁄4NW1⁄4) and ending in the Northeast quarter of the Southwest quarter of the Northwest quarter (NE1⁄4SW1⁄4NW1⁄4), Section 10, Township 7 South, Range 16 East, Gila and Salt River Base and Meridian, Pinal County, Arizona.
d. In the First Amendment, the District provided monthly flow quantities for the post-S&T instream flow right.
On October 29, 2010, ADWR requested additional information from the District regarding the Application.
ADWR’s October 2010 request for additional information stated: “ADWR has reviewed the Application, together with supporting documentation, to determine if the Application meets the substantive requirements of Arizona Revised Statute (A.R.S.) § 45-172 . . . .”
a. The words “beneficial use” do not appear in that statute.
The District responded to ADWR’s request for additional information by letter dated May 13, 2011.
a. Ms. Logan acknowledged during the hearing that the District had responded to each of the questions asked in ADWR’s 2010 request for additional information.
The District’s May 13, 2011 letter further amended the Application and constitutes the Second Amendment.
a. The Second Amendment included a reduction in historically irrigated land from 101.2 acres to 90.43 acres due to acres lost to flooding.
b. In the Second Amendment, the District reduced the quantity of water to be severed and transferred from 1,588.8 AFY to 1,419.7 AFY.
The Second Amendment revised the monthly distributions of the 1,419.7 AFY of water to be severed and transferred.
a. Those monthly distributions are as follows: January 39.8 AF, February 55.4 AF, March 82.3 AF, April 127.8 AF, May 180.3 AF, June 222.9 AF, July 207.3 AF, August 167.5 AF, September 146.2 AF, October 95.1 AF, November 61.0 AF and December 34.1 AF.
The District’s May 13, 2011 letter also informed ADWR of the presence of flycatchers in the area near the Preserve.
a. That letter stated: “. . . The Arizona Game and Fish Department (AGFD) detected breeding flycatchers at the confluence of Aravaipa Creek and the San Pedro River over an 8-year period from 1998 through 2005.”
b. It also stated:
. . . [F]lycatchers have been found to occupy and breed in habitat where surface flows are periodic but where moist soils persist during the breeding season (Paradzick 2005). . . . Therefore, conditions that would temporarily extend the presence of surface water or moist soils at the site during the breeding season would add to the attractiveness of the Black Farm reach of Aravaipa Creek to flycatchers.
Public Notice and Objections
Legal notice of the Application, as amended, was published in the Casa Grande Dispatch once per week for three consecutive weeks commencing January 17, 2013.
a. The last date of publication was January 31, 2013, which commenced a 30-day objection period.
The proposed form of public notice was attached to correspondence dated January 14, 2013 from ADWR to one of the newspapers.
a. As to the “Existing Source of Water,” that notice stated: “Aravaipa Creek, a tributary to the San Pedro River within the San Pedro River Watershed.”
b. As to the “Proposed Source of Water,” that notice stated: “No Change.”
c. That notice also provided that interested persons could file protests to the Application, as amended.
St. David Irrigation District, C-Spear Ranch, Bayless & Berkalew, Aravaipa Farm, and ASARCO LLC each filed objections during the 30-day objection period.
Each of those five objections was subsequently withdrawn based on agreements between the District and each objector that the District would not use its instream flow water rights at the Preserve to call out the objector’s junior rights.
a. If the parties who were objectors to the Application had assumed the District would not enforce its water rights against them, there would have been no reason for those agreements.
The St. David Irrigation District diverts and withdraws water from the San Pedro River upstream from its confluence with Aravaipa Creek.
a. Withdrawals and diversions of water by the St. David Irrigation District could not affect flows in Aravaipa Creek at the Preserve.
b. Any agreement by the District not to assert its senior water rights for the Preserve on Aravaipa Creek against St. David Irrigation District’s water rights on the San Pedro River upstream from the confluence with Aravaipa Creek could not affect flows in Aravaipa Creek at the Preserve.
C-Spear Ranch diverts and withdraws water from the San Pedro River upstream from its confluence with Aravaipa Creek.
a. Withdrawals and diversions of water by C-Spear Ranch could not affect flows in Aravaipa Creek at the Preserve.
b. Any agreement by the District not to assert its senior water rights for the Preserve on Aravaipa Creek against C-Spear Ranch’s water rights on the San Pedro River upstream from the confluence with Aravaipa Creek could not affect flows in Aravaipa Creek at the Preserve.
Bayless & Berkalew diverts and withdraws water from the San Pedro River upstream from its confluence with Aravaipa Creek.
a. Withdrawals and diversions of water by Bayless & Berkalew could not affect flows in Aravaipa Creek at the Preserve.
b. Any agreement by the District not to assert its senior water rights for the Preserve on Aravaipa Creek against Bayless & Berkalew’s water rights on the San Pedro River upstream from the confluence with Aravaipa Creek could not affect flows in Aravaipa Creek at the Preserve.
Because all of the objections have been resolved, the only entity challenging the District’s Application is ADWR.
a. No other water right holder participated in the hearing.
Past and Present Streamflow Data on Aravaipa Creek
The District last irrigated fields within the Preserve in March 2007.
In its May 13, 2011 response to ADWR’s request for additional information regarding the Application, the District referred to information from the “H. Schwalen Special Collection” regarding historical flows in Aravaipa Creek in the vicinity of the Preserve.
a. The relevant portions of the records from that historical collection of documents address flows during October 1920.
b. With respect to the reach of Aravaipa Creek adjacent to the Preserve, those records state:
Aravaipa Creek. Banks 8’ width 200’. This Creek was flowing at 2.14 [or 2.19] sec. ft. Had been a small flood Oct 20 in AM. Flow below junction in S.P. was 12.83 sec. ft. Ditch heading here – no flow diverted. Ditch heading 1⁄2 mi. below on W. side diverts .2 sec. ft.
c. Ms. Logan agreed that this document showed that there was water flowing on the surface in this reach of Aravaipa Creek at a rate of 2.14 or 2.19 cubic-feet per second in October 1920.
d. According to calculations by Steve Rascona, an ADWR hydrologist, the quantity of instream flow asserted in the Application for the month of October, in cubic-feet per second, was 1.7 cfs.
e. The records from the Schwalen Collection indicate that the flow in Aravaipa Creek adjacent to the Preserve in October 1920 was larger than the amount of an instream flow right for the month of October for which the District sought an S&T in the Application.
f. Ms. Logan could not recall if she had ever reviewed the records from the Schwalen Collection.
By letter dated May 28, 2019, the District provided streamflow measurements from August of 2013 through February of 2019, one measurement for each month of each year, taken at the proposed place of use listed in the Application, as amended.
In the August 2020 Decision, the ADWR Director determined, based on the streamflow measurements submitted by the District, that the flow in Aravaipa Creek at the Preserve in January 2017 was in excess of the 39.8 acre-feet requested for that month in the Application.
a. January is not a month when spring snow melt typically occurs in southern Arizona.
b. January is not part of the monsoon season in southern Arizona.
In the August 2020 Decision, the ADWR Director determined, based on the streamflow measurements submitted by the District, that the flow in Aravaipa Creek at the Preserve in August 2013 was in excess of the 167.5 acre-feet requested for that month in the Application.
In the August 2020 Decision, the ADWR Director determined, based on the streamflow measurements submitted by the District, that the flow in Aravaipa Creek at the Preserve in November 2015 was in excess of the 61.0 acre-feet requested for that month in the Application.
a. November is not a month when spring snow melt typically occurs in southern Arizona.
b. November is not part of the monsoon season in southern Arizona.
In the August 2020 Decision, the ADWR Director determined, based on the streamflow measurements submitted by the District, that the flow in Aravaipa Creek at the Preserve in December 2015 was in excess of the 34.1 acre-feet requested for that month in the Application.
a. December is not a month when spring snow melt typically occurs in southern Arizona.
b. December is not part of the monsoon season in southern Arizona.
As part of the Application process, the District provided two single-day historical streamflow measurements that were taken on October 22, 1920 (2.14 cfs) and August 29, 1942 (5.0 cfs) to demonstrate that the requested flow was historically available.
Aravaipa Creek is an unregulated river, and flood flows are unimpeded throughout its course to the San Pedro River.
A “perennial” stream is a stream that flows year-round in most years.
An “intermittent” stream is a stream that tends to flow part of the year in response to recurring events.
An ephemeral stream, “by definition, is a stream that flows only during and following storm events” and “in direct response to” such precipitation events.
The August 2020 Decision repeatedly refers to the reach of Aravaipa Creek adjacent to the Preserve as “ephemeral.”
Ms. Logan testified that the characterization of the reach of Aravaipa Creek adjacent to the Preserve as “ephemeral” was based on visual observation and “some research” done by Kevin Hadder, an ADWR employee.
a. Ms. Logan could not recall the content of that “research” by Mr. Hadder.
b. Ms. Logan did not know if that “research” by Mr. Hadder was ever memorialized in any written document.
Ms. Logan testified that she is aware of no statute specifying for how long a stream must flow after a storm event to not be considered “ephemeral.”
Ms. Logan testified that, to her knowledge, ADWR has adopted no rule, regulation, or substantive policy statement specifying for how long a stream must flow after a storm event to not be considered “ephemeral.”
Ms. Logan was not aware of any standard or rule of thumb that ADWR applies to determine how long a stream must flow after a storm event to not be considered “ephemeral.”
Ms. Logan testified that she is aware of no statute defining when streamflows are in “direct response to” precipitation events.
Ms. Logan testified that, to her knowledge, ADWR has adopted no rule, regulation, or substantive policy statement defining when streamflows are in “direct response to” precipitation events.
Ms. Logan was not aware of any standard or rule of thumb that ADWR applies to determine how long after a precipitation event a stream must flow to for that flow to be considered not “in direct response” to that precipitation event.
Even in its current depleted condition, Aravaipa Creek at the Preserve flows continuously for several months in some years.
Prior Technical Reports Regarding Aravaipa Creek
Subflow is water under the ground that it so closely connected to the surface stream that it is treated as appropriable water under Arizona law.
As part of the Application, the District submitted an affidavit from Jon Ford dated September 21, 2005.
a. That affidavit was submitted several years before ADWR made a final delineation of the lateral extent of the subflow zone in the San Pedro River Watershed.
b. In that 2005 affidavit, Mr. Ford determined that the Black Farm Well was located within the lateral limits of the subflow zone, that such well produced water from the floodplain alluvial aquifer, and that it was therefore withdrawing appropriable subflow.
The ADWR Director, acting as the technical adviser to the Gila Adjudication Court, issued a Revised Subflow Zone Delineation Report for the San Pedro River Watershed in May 2015.
a. ADWR’s delineation established a subflow zone for Aravaipa Creek in the reach adjacent to the Preserve, including the area in which the proposed place of use described in the Application, as amended, is located.
b. The ADWR Director’s delineation of the subflow zone was approved by the Gila Adjudication Court in an order dated July 13, 2017.
The Black Farm Well is located within the exterior boundaries of the subflow zone as delineated by ADWR and approved by the Gila Adjudication Court.
For there to be a subflow zone in a particular reach of a watercourse, that watercourse had to be perennial or intermittent (and not ephemeral) under predevelopment conditions.
a. “Predevelopment conditions” are generally described as conditions that existed before the effect of man, which would include diversions, dams, or withdrawals of underground water.
b. Because water was first appropriated for Black Farm in 1865, before any other diversions or withdrawals commenced on Aravaipa Creek, that appropriation was made under predevelopment conditions.
On April 12, 2011, Steve Rascona, an ADWR hydrologist, prepared a memorandum regarding various technical issues relating to the Application and the reach of Aravaipa Creek adjacent to the Preserve.
a. Ms. Logan testified that she had reviewed Mr. Rascona’s memorandum as part of her review and processing of the Application, but “not substantively.” She “sort of scanned it.”
b. Both Ms. Logan and Mr. Nelson testified that they did not know whether any of the ADWR management or staff had reviewed Mr. Rascona’s memorandum in connection with making a decision whether to grant or deny the Application.
c. Mr. Rascona’s April 12, 2011 memorandum recognized that “[t]he ADWR 2009 Subflow Zone Delineation Report for the San Pedro River Watershed concluded that pre-development streamflow conditions for the proposed new place of use were likely perennial or intermittent.”
d. Mr. Rascona’s memorandum further stated: “A 2000 geo-hydrologic assessment of Aravaipa Canyon prepared for the U.S. Fish and Wildlife Service classified Aravaipa Creek at its confluence with the San Pedro as intermittent (JE Fuller Hydrology & Geomorphology, 2000).”
e. Mr. Rascona’s memorandum also stated: “Since 1919, perennial flow has been recorded in Aravaipa Creek at USGS gage #09473000 located approximately 4 miles upstream of the proposed new place of use. There is historical evidence that intermittent or perennial flow has continued further downstream from the gage for several miles, however there is no record of perennial flow reaching the proposed new place of use.”
f. Mr. Rascona’s 2011 memorandum is dated six years after the District submitted the Application.
g. Mr. Rascona’s 2011 memorandum is dated eight years before ADWR denied the Application.
For eight years before it denied the Application on the grounds, in part, that the reach of Aravaipa Creek adjacent to the Preserve is “ephemeral” and “has always been historically dry,” ADWR had in its file a memorandum from its own hydrologist indicating that the reach was either intermittent or perennial.
With respect to the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, Mr. Nelson testified: “So there could be ephemeral reaches, but I would say it’s safe to say that most of – most of the reach is perennial or intermittent, as I understand it.”
Mr. Rascona’s 2011 memorandum also converted the monthly acre-foot flow numbers stated in the then-current version of the Application into cubic-feet per second.
a. Mr. Nelson testified that what Mr. Rascona did was a relatively simple calculation.
Among the documents cited in Mr. Rascona’s 2011 memorandum was a 2000 geo-hydrologic assessment of Aravaipa Canyon prepared for the U.S. F&WS by JE Fuller Hydrology & Geomorphology, Inc.
a. In that 2000 report for the U.S. F&WS, JE Fuller Hydrology & Geomorphology, Inc. divided Aravaipa Creek into various reaches.
b. The reach closest to the San Pedro River, where the Preserve is located, was designated as the “San Pedro Reach.”
c. That 2000 report defines the San Pedro Reach as extending 6.2 miles upstream from the San Pedro River confluence.
d. That 2000 report includes Table 2.1, entitled “Reach Descriptions Summary Table.”
e. Table 2.1 shows the “Flow Type” of the San Pedro Reach as “intermittent.”
f. That 2000 report for the U.S. F&WS states: “The San Pedro Reach runs from Section 8, T.7 S., R. 17 E., to the confluence with the San Pedro River. The total length of the reach is approximately 6.2 miles (10.0 km). Aravaipa Creek flows through this reach intermittently.”
g. That 2000 report for the U.S. F&WS also discusses the past and present impact of upstream water uses on the flow of Aravaipa Creek in the area of the Preserve.
h. Table 2.1 includes only one reach of Aravaipa Creek that is listed as “ephemeral,” but that is the “Klondyke Reach,” which is at the extreme upstream end of Aravaipa Creek many miles upstream from the Preserve.
A 2004 report prepared by two professors from the University of Arizona (Sally Stefferud and Peter Reinthal) for the United States Bureau of Land Management discusses the then-current flow regime in Aravaipa Creek.
a. That 2004 report states:
Depending upon the year and the season, perennial flow may be found up to 27 miles, from above the canyon to the confluence with the San Pedro River. However, in most years, flow disappears into the alluvial deposits after the valley bottom widens about 6 miles upstream of the San Pedro River.
b. That 2004 report for the Bureau of Land Management discusses early settlement in the area of the Preserve, including the establishment of Camp Grant where the Preserve is now located:
Aravaipa Creek supported extensive Native American occupation by Hohokam, Mogollon, and Salado cultures. . . . European settlement did not become significant until the mid-1800’s when Camp Grant was set up near the confluence with Aravaipa Creek and the San Pedro River, and later moved to the Upper Aravaipa Valley.
c. In addition, that 2004 report discusses the impacts of past upstream activities on the flows downstream in Aravaipa Creek:
The first documented era of ecological change in Aravaipa Creek accompanied European settlement, with ranches, farms, and mines established throughout the valley bottom and watershed. This resulted in the loss of the cienega, a downstream migration of the origin of perennial flow, extirpation of beaver, and changes in species composition, abundance and distribution of riparian vegetation (Minckley 1981, Hadley et al. 1991). Gradual drying of springs and tributary streams has also been reported.
Mr. Nelson agreed that upstream diversions and withdrawals of water have affected flows in Aravaipa Creek at the Preserve over time.
A chapter by Webb, Leake, and Turner in a 2007 publication entitled The Ribbon of Green: Change in Riparian Vegetation in the Southwestern United States refers to the reach of Aravaipa Creek adjacent to the Preserve as “intermittent” and notes the presence of young willow trees in the area:
In the intermittent reach of Aravaipa Creek at the Arizona Highway 77 crossing, the presence of young trees well illustrates the positive effects of the 1983 and 1993 floods on germination and establishment of native species (fig. 20.11). However, the recent death of young black willow trees demonstrates that this reach is not able to sustain growth of obligate riparian trees unless newly established individuals have significant time for roots to reach reliable groundwater.
Mr. Nelson testified regarding a December 6, 2018 report prepared by ADWR relating to development of a test to measure the depletion of subflow from wells.
a. That 2018 ADWR report, among other things, addresses wells located near Aravaipa Creek.
b. Figure 4-1 of that 2018 ADWR report is entitled “Wells Mapped in the 1991 San Pedro HSR.”
c. That Figure 4-1 includes the location of numerous diversion dams, instream pumps, and wells on Aravaipa Creek.
d. Each of those diversion dams, instream pumps, and wells on Aravaipa Creek are upstream from the Preserve, and the diversions and withdrawals of water at those facilities currently affects the surface flows in Aravaipa Creek in the vicinity of the Preserve.
e. Mr. Nelson did not consider any of these upstream uses when he reviewed Dr. Hart’s report and prepared to testify at the hearing.
f. Mr. Nelson did not know whether Dr. Hart considered any of those upstream uses when she prepared her report in this matter.
Recorded Observations of Past and Present Streamflows in Aravaipa Creek
The presence of the second POD approximately one mile upstream from Black Farm in the 1970s indicates that water was flowing in Aravaipa Creek at that location on a relatively reliable basis until at least the 1970s.
The annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2004 includes a section relating to the Preserve.
a. That 2004 annual report includes a photograph that shows water flowing on the surface in Aravaipa Creek at the Preserve on June 17, 2004.
b. Aravaipa Creek at the Preserve was flowing on the surface on one or more days in June 2004.
The annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2010 includes a section relating to the Preserve.
a. A photograph included in that report as Figure 19 shows water flowing on the surface in Aravaipa Creek at the Preserve in January 2010.
b. Aravaipa Creek at the Preserve was flowing on the surface on one or more days in January 2010.
The annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2011 includes a section relating to the Preserve.
a. Under a paragraph entitled “Habitat Conditions,” that 2011 annual report states:
This is the fifth year that native grasses received no supplemental water.
Though rainfall was spotty and weak at Black Farm during the monsoon season, higher portions of the Aravaipa watershed received substantially more moisture. With the first storm of the season occurring on July 4, Aravaipa Creek at Black Farm ran continuously throughout most of the summer.
b. A photograph included in that report shows water flowing on the surface in Aravaipa Creek at the Preserve on July 15, 2011.
c. An additional photograph included in that report shows water flowing on the surface in Aravaipa Creek at the Preserve on October 5, 2011.
d. Aravaipa Creek at the Preserve flowed “continuously throughout most of the summer” in 2011 and again was flowing on the surface in early October of that year.
The annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2013 includes a section relating to the Preserve.
a. Under a paragraph entitled “Habitat Conditions,” that 2013 annual report states:
. . . Despite predictions of a wet monsoon season, total rainfall accumulation was 5.01” (measured at Black Farm; normal is between 5.0” and 6.0”). . . . Aravaipa Creek started to flow at Black Farm on July 16 and flow has continued uninterrupted through at least October 16, 2013.
b. Aravaipa Creek at the Preserve flowed “uninterrupted” on the surface for at least three consecutive months in the summer and fall of 2013.
The annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2014 includes a section relating to the Preserve.
a. Under a paragraph entitled “Habitat Conditions,” that 2014 annual report states:
This is the eighth year that the native grasses have received no supplemental water. The spring and early summer were extremely dry but the grasses and fields responded vigorously to late monsoon moisture with abundant new growth and prolific seed. . . . Aravaipa Creek flowed uninterrupted at Black Farm since monsoons began in July 13 until February 10, 2014, at which time it went completely dry until February 17, 2014, when it returned to its previous discharge rate. . . .
b. A photograph included in that 2014 annual report shows water flowing on the surface in Aravaipa Creek at the Preserve on March 2, 2014.
c. Photographs from a separate ADWR exhibit show water flowing on the surface in Aravaipa Creek at the Preserve on March 11, 2014; May 14, 2014; July 17, 2014; August 14, 2014; September 18, 2014; October 20, 2014; November 13, 2014; and December 15, 2014.
d. Aravaipa Creek at the Preserve flowed “uninterrupted” on the surface for at least seven consecutive months through the summer and fall of 2013 and into mid-February of 2014, and it was again flowing on the surface in photographs taken in March, May, July, August, September, October, November, and December 2014.
The annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2015 includes a section relating to the Preserve.
a. Photographs included in that 2015 annual report show water flowing on the surface in Aravaipa Creek at the Preserve on September 24, 2015.
b. Photographs from a separate ADWR exhibit show water flowing on the surface in Aravaipa Creek at the Preserve on January 22, 2015; July 15, 2015; August 11, 2015; October 12, 2015; November 16, 2015; and December 21, 2015.
c. Aravaipa Creek at the Preserve was flowing on the surface in photographs taken in January, July, August, September, October, November, and December 2015.
Photographs from an ADWR exhibit show water flowing on the surface in Aravaipa Creek at the Preserve on January 19, 2016.
a. Aravaipa Creek at the Preserve was flowing on the surface on one or more days in January 2016.
Photographs from an ADWR exhibit show water flowing on the surface in Aravaipa Creek at the Preserve on January 17, 2017; July 11, 2017; August 18, 2017; and December 14, 2017.
a. Aravaipa Creek at the Preserve was flowing on the surface on one or more days in January, July, August, and December 2017.
Photographs from an ADWR exhibit show water flowing on the surface in Aravaipa Creek at the Preserve on January 17, 2018; August 13, 2018; and October 15, 2018.
a. Aravaipa Creek at the Preserve was flowing on the surface on one or more days in January, August, and October 2018.
The annual report submitted by the District to the U.S. F&WS regarding the Roosevelt HCP for the year 2019 includes a section relating to the Preserve.
a. Photographs included in that report show water flowing on the surface in Aravaipa Creek at the Preserve on September 17, 2019.
b. Photographs from a separate ADWR exhibit show water flowing on the surface in Aravaipa Creek at the Preserve on January 7, 2019.
c. Aravaipa Creek at the Preserve was flowing on the surface on one or more days in January and September 2019.
On January 7, 2019, the ADWR staff conducted a field investigation of the Preserve.
a. Ms. Logan was personally present for that field investigation.
b. Kevin Hadder from the ADWR Surface Water Permitting Unit prepared a report from that field inspection and provided that report to the District on or about March 11, 2019.
c. Various photographs taken during that inspection and included with Mr. Hadder’s report show water flowing on the surface in Aravaipa Creek at the Preserve on January 7, 2019.
d. January is not a month when spring snow melt typically occurs in southern Arizona.
e. January is not part of the monsoon season in southern Arizona.
f. Six months later, ADWR issued the August 2020 Decision denying the Application and stating that this reach of Aravaipa Creek is “ephemeral” and “has always been historically dry.”
During the hearing, Ms. Logan acknowledged that the Aravaipa Creek adjacent to the Preserve has not “always been historically dry” and that the statement in Paragraph 43 of the August 2020 Decision that it “has always been historically dry” was incorrect.
Past and Present Underground Water Levels at the Preserve
In the Application, as amended, the District proposed that it would measure the long-term response to the reduction in pumping from the Black Farm Well by installing four monitoring/piezometer wells.
a. The District installed four monitoring/piezometer wells in 2011, registered with ADWR as Well Nos. 55-912804, 55-912805, 55-912806 and 55-912807.
Based on his education, training, and experience and his work in this specific case, it is Mr. Ford’s professional opinion that the underground water level at Black Farm was higher under natural predevelopment conditions than it was in 1948.
a. The year 1948 is significant because that is when the Black Farm Well was drilled.
b. The April 2021 report by LRE Water (Mr. Ford and Mr. Ten Eyck) discusses the factors that resulted in the underground water at Black Farm being lower in 1948 than it was under predevelopment conditions.
c. Those factors included upstream diversions and withdrawals from wells.
Future Underground Water Levels and Stream Flows
Reports and Testimony by Jon Ford and Gregg Ten Eyck of LRE Water
Because ADWR denied the Application based on an alleged lack of beneficial use, the District retained Gregg Ten Eyck and Jon Ford from LRE Water to address issues relating to future underground water levels and stream flows in Aravaipa Creek adjacent to the Preserve.
Mr. Ten Eyck and Mr. Ford submitted their report in April 2021 and also submitted a response to the rebuttal report by ADWR’s witness (Dr. Olga Hart) in July 2021.
Mr. Ten Eyck and Mr. Ford worked cooperatively on both the LRE Water reports.
a. Each of them reviewed the entirety of each report before it was submitted, but they divided the portions of the work for which each of them was primarily responsible.
b. Mr. Ten Eyck’s work focused primarily on the geographic area upstream from the Aravaipa Gage, which is located approximately six miles upstream from the Preserve.
c. Mr. Ford’s work focused primarily on the geographic area between the Aravaipa Gage and the confluence with the San Pedro River.
d. The location of the Aravaipa Gage is depicted on several of the admitted exhibits, including on Figure 1 of LRE Water’s April 2021 report.
Mr. Ten Eyck and Mr. Ford each visited the Preserve and the surrounding areas in connection with their work in this matter, and each of them had been in that area on numerous prior occasions.
Mr. Ten Eyck’s Analysis and Opinions
During his visit to the Preserve and surrounding area, Mr. Ten Eyck took several photographs of the farms and other areas upstream from the Aravaipa Gage.
a. Mr. Ten Eyck also compiled numerous satellite images from Google Earth of the farms upstream from the Aravaipa Gage as part of his work in this case.
b. Those photographs and images were admitted as Exhibit SRP12.
c. Mr. Ten Eyck relied on those photographs and images in his work in this case.
Mr. Ten Eyck also relied upon Volume 6 of the HSR that ADWR prepared in 1991.
a. That 1991 publication included ADWR’s comprehensive evaluation of the water uses and water rights claims on Aravaipa Creek as they existed at that time.
Mr. Ten Eyck’s work was related primarily to the first task listed in LRE Water’s April 2021 report.
a. That task was summarized in the April 2021 report as follows: “Analysis of the increase in stream flow at the Aravaipa Creek stream gage upstream from Black Farm (Aravaipa Gage) that would occur as a result of full administration of water rights.”
Mr. Ten Eyck’s work assumed the full administration of water rights on Aravaipa Creek: “Our analysis assumes full administration of water rights, so that rights with senior priority dates will be satisfied before any junior appropriators are allowed to divert or withdraw water from the Creek or the associated subflow zone.”
a. For a variety of reasons, including the ongoing proceedings in the Gila Adjudication, full administration of water rights is not currently occurring on Aravaipa Creek or anywhere in the San Pedro River Watershed.
b. It is Mr. Ten Eyck’s professional opinion, based on his decades of experience in water rights administration, that full administration of water rights on Aravaipa Creek will occur once the Gila Adjudication proceedings in the San Pedro River Watershed are completed.
c. Under full administration of water rights, the holder of a senior right will be able to “call out” a junior user and require that junior user to stop diverting or withdrawing water until the senior right holder’s right is satisfied.
Full administration of water rights already is occurring on the mainstem of the Upper Gila River in Arizona and New Mexico, due in part to the existence of the 1935 Globe Equity Decree.
a. Mr. Ten Eyck testified regarding his experience with water rights administration under the Globe Equity Decree and the “call system” that was established and has been implemented by the federal district court and the Gila Water Commissioner appointed by that court with respect to the Upper Gila River mainstem.
b. A “call system” facilitates the enforcement of senior water rights against upstream junior users, allowing the senior right holders to “call out” the junior right holders and require that their withdrawals and diversions of water be curtailed or eliminated until the senior right is fully satisfied.
c. The Globe Equity call system is fully automated and is administered by the Gila Water Commissioner on a daily basis.
d. A call system prevents a senior right holder from needing to file separate lawsuits or similar actions against individual upstream junior right holders to assert its senior rights and ensure that such rights are fully satisfied.
Based on his education, training, and experience, and his work in this case, Mr. Ten Eyck concluded that “[f]ull administration of water rights would result in an increase in stream flows at the Aravaipa Gage of approximately 2,160 [AFY] above the long-term historical average.”
As part of his work in this case, Mr. Ten Eyck prepared Table 1 that appears in LRE Water’s April 2021 report, which table is entitled “Aravaipa Creek Irrigation Uses.”
a. That table sets forth Mr. Ten Eyck’s analysis of each claimed irrigation water right on Aravaipa Creek upstream from the Aravaipa Gage, including (1) information regarding the contested case for each of those water rights claims in the Gila Adjudication; (2) the number of acres involved in each of those claimed rights; (3) the diversion quantity for each of those claimed rights; (4) the irrigation efficiency and consumptive use of each of those claimed rights; and (5) the status of each of those claimed rights in the Gila Adjudication.
b. Most of the irrigation water rights claims on Aravaipa Creek upstream from the Aravaipa Gage already have been the subject of water rights abstracts approved by the Special Master in the Gila Adjudication.
“Consumptive use” is the quantity of water that is used by a crop through evapotranspiration.
a. A significant portion of the quantity of water diverted in excess of the consumptive use returns to the hydrologic system through seepage to underground aquifers or runoff into the surface stream.
b. Therefore, in his analysis in this case, Mr. Ten Eyck utilized only the consumptive use portion of the water uses upstream from the Aravaipa Gage.
“Irrigation efficiency” is the portion of the quantity of water that is applied to a field that is used or consumed in the growing of the crop.
Mr. Ten Eyck determined that each of the irrigation water rights claims shown on his Table 1 on Aravaipa Creek upstream from the Aravaipa Gage claimed a priority date that was junior to (later than) the 1865 priority date that has been approved by the Special Master for the District’s water right for the Preserve.
a. Therefore, each of those upstream claimed rights on Mr. Ten Eyck’s Table 1 is subject to a “call” by the District’s senior rights for the Preserve once full administration of water rights occurs on Aravaipa Creek.
Mr. Ten Eyck’s Table 1 did not include the water right claims by Aravaipa Farm upstream from the Aravaipa Gage.
a. The District had entered into a prior agreement with Aravaipa Farm, the terms of which included, among other things, the District’s agreement that it would not use its water rights at the Preserve to “call out” Aravaipa Farm’s upstream water rights and uses.
b. For that reason, Mr. Ten Eyck’s analysis assumed that Aravaipa Farm’s water uses upstream from the Aravaipa Gage would continue unabated after full administration of water rights, even though the District’s rights are senior in priority to Aravaipa Farm’s claimed rights.
In the April 2021 LRE Water report, Mr. Ten Eyck and Mr. Ford recognized that it is not possible to reliably predict future precipitation patterns and amounts and that such patterns and amounts likely will affect future underground water levels and stream flows in Aravaipa Creek at the Preserve, either positively or negatively.
a. Mr. Nelson testified that, to attempt to project future precipitation patterns, a modeler would need to make several assumptions and perform a risk analysis.
b. Dr. Hart’s report contains no projections of future precipitation.
c. Mr. Nelson submitted no projections of future precipitation.
A report prepared by JE Fuller Hydrology & Geomorphology, Inc. for the U.S. F&WS in 2000 determined that 2,600 AFY of water was “likely to be used for irrigation” on Aravaipa Creek.
a. The 2,600 AFY determined by the 2000 JE Fuller Hydrology & Geomorphology, Inc. report to be used for irrigation on Aravaipa Creek is generally consistent with the results of Mr. Ten Eyck’s 2021 analysis.
b. Because all of the claimed irrigation rights upstream from the Aravaipa Gage are junior to the District’s rights for the Preserve, if the quantity of water historically or currently used for irrigation upstream from the Aravaipa Gage is higher than the 2,160 AFY that Mr. Ten Eyck determined, the positive impacts of full administration of water rights on future underground water levels and stream flows at the Preserve would occur sooner and be greater in magnitude than those projected by Mr. Ford.
c. Figure 4-5 of the 2000 JE Fuller Hydrology & Geomorphology, Inc. report contains a map entitled Location of Wells in the Aravaipa Basin,” which includes “[m]ore than 350 wells” along Aravaipa Creek, all of which are upstream from the Preserve.
ADWR submitted no expert or other witness to rebut Mr. Ten Eyck’s conclusions in this matter.
a. To the best of Mr. Nelson’s knowledge, Dr. Hart did no analysis of any water uses upstream from the Aravaipa Gage.
b. Nothing in Dr. Hart’s report addresses or rebuts Mr. Ten Eyck’s analysis, conclusions, or opinions.
Mr. Ford’s analysis and opinions
Mr. Ford’s work was related primarily to the second task listed in LRE Water’s April 2021 report.
a. That task was summarized in the April 2021 report as follows:
Analysis of how much the underground water table would rise due to the additional stream flow and whether the flow in the Creek at Black Farm would be intermittent (flowing seasonally) or perennial (flowing year-round).
Based on his education, training, and experience, and his work in this case, Mr. Ford concluded that 2,160 AFY of additional stream flow at the Aravaipa Gage “would recharge the subflow zone along the Creek and, over time, would raise the underground water table in the vicinity of Black Farm to the bottom of the Creek channel so that groundwater would again discharge to the channel as stream flow.”
a. The surface flows that resulted from the additional 2,160 AF of water at the Aravaipa Gage would be in addition to the water that currently flows in the channel of Aravaipa Creek adjacent to the Preserve.
b. Mr. Ford opined that, if 2,160 AF of additional water was available at the Aravaipa Gage, water would begin to flow regularly in the reach of Aravaipa Creek adjacent to the Preserve in about six years.
c. Explaining his conclusions in layman’s terms, Mr. Ford testified that, “if you add 2,160 [AF], you’re going to keep filling the bucket, and eventually the bucket’s going to get full enough that it’s going to be above the creek bottom, and you’re going to have some flow.”
Mr. Nelson testified that, if 2,160 AF of additional water was available at the Aravaipa Gage, most of that water would flow downstream in Aravaipa Creek.
Mr. Ford prepared an illustrative diagram as a vehicle through which to discuss various issues relating to geology, groundwater hydrology, and surface water/groundwater interaction in this case.
Mr. Ford’s work involved determining the downstream impacts that would occur at the Preserve and in the adjacent reach of Aravaipa Creek, assuming that Mr. Ten Eyck’s opinion was correct that an additional 2,160 AFY of water would flow past the Aravaipa Gage under full administration of water rights.
To accomplish this task, Mr. Ford began by dividing the geologic formations in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro confluence into six groups.
a. Those groups are depicted on Figures 2A and 2B of LRE Water’s April 2021 report.
Mr. Ford explained that the Group 1 formations were the most important to his analysis because: (a) “The groundwater that passes through the other groups ultimately flows into Group 1”; (b) “[t]he formations in Group 1 are directly hydraulically connected to the Creek itself”; and (c) “[t]hese formations have been delineated as a portion of the San Pedro River subflow zone; therefore, they are presumed to contain appropriable water.”
Mr. Ford then developed a “mass balance” spreadsheet model based on the law of conservation of mass.
a. “Mass-balance” equations and the law of conservation of mass are basic principles and are the building blocks of all groundwater models.
b. All groundwater models are based on the scientific principle that all water has to go somewhere—either as surface flow; underground recharge; consumption by plants, animals, or humans; or evaporation.
Mr. Ford next quantified the amount of consumptive use of water for irrigation on the property owned by ASARCO, LLC, which is downstream from the Aravaipa Gage and adjacent to and upstream from the Preserve.
a. The District had entered into a prior agreement with ASARCO LLC, the terms of which included, among other things, the District’s agreement that it would not use its water rights at the Preserve to “call out” ASARCO LLC’s upstream water rights or uses.
b. For that reason, Mr. Ford’s analysis assumed that ASARCO LLC’s upstream water diversions, withdrawals, and uses would continue unabated after full administration of water rights, even though the District’s rights are senior in priority to ASARCO LLC’s rights.
c. Figure 3 and Tables 2 and 3 of the April 2021 LRE Water report address Mr. Ford’s analysis of the consumptive use of water by ASARCO LLC, which Mr. Ford assumed would continue in the future.
d. If the withdrawals and diversions by ASARCO LLC upstream from the Preserve are reduced or eliminated in the future, higher underground water levels and larger and more frequent stream flows in Aravaipa Creek at the Preserve will occur sooner and rise higher than Mr. Ford projected.
Based on Mr. Ten Eyck’s conclusions regarding the projected future flows at the Aravaipa Gage and his own analysis of the geologic formations and hydrologic conditions between the Aravaipa Gage and the San Pedro River confluence, Mr. Ford created Figures 7 and 8 of the April 2021 LRE Water report.
a. Those tables depict the expected future rise in the underground water table at the Preserve and the associated resumption of increased surface flow in Aravaipa Creek at the Preserve.
Following submission of the April 2021 LRE Water report, ADWR requested that the District provide it with certain additional information relating to that report.
The District complied with that request and provided a response on May 28, 2021.
In compiling information to respond to that request from ADWR, Mr. Ford uncovered certain inputting typographical errors in his calculations that were represented in Figures 7 and 8 of the April 2021 LRE Water report.
Mr. Ford corrected those inputting errors on his own volition, revised Figures 7 and 8, and provided those revised figures to counsel, who then provided them to ADWR.
The revised Figures 7 and 8 show the underground water levels at the Preserve will take somewhat longer to rise to the level of the bottom of the channel of Aravaipa Creek than was shown in the original Figures 7 and 8, but those levels still rise to the point where increased surface flow in the creek is resumed.
LRE Water’s response to Dr. Hart’s report
Dr. Olga Hart submitted a rebuttal report on behalf of ADWR on July 2, 2021, addressing some of the analysis and conclusions set forth in the April 2021 LRE Water report.
Dr. Hart’s report was directed almost exclusively toward the portions of the April 2021 LRE Report for which Mr. Ford was the primary author.
LRE Water submitted a response to Dr. Hart’s report in July 2021.
a. Because Dr. Hart’s report was directed almost exclusively toward the portions of the April 2021 LRE Water report for which Mr. Ford was the primary author, Mr. Ford was the primary author of the July 2021 LRE Water report.
Dr. Hart’s report presented six primary criticisms of the April 2021 LRE Water report.
Section 1 of the July 2021 LRE Water report lists those six criticisms by Dr. Hart and summarizes LRE Water’s responses to each of those criticisms.
a. LRE Water’s responses to each of those six criticisms by Dr. Hart are addressed in more detail in subsequent sections of the July 2021 LRE Water report.
Dr. Hart’s report did not disagree with Mr. Ford’s overall modeling approach.
a. Mr. Nelson (who testified in lieu of Dr. Hart during the hearing), referred to LRE Water’s work as “quite clever.”
b. With respect to LRE Water’s work, Mr. Nelson testified that “it could be a nice way of bridging, you know, these extraordinarily complex MODFLOW models on one hand and then our way on the other to provide a nice boost.”
c. Mr. Nelson testified; “I just want to extend my gratitude and appreciation for the LRE model and that the fact that they were able to distill something very complex into something that was cataloguing a good discussion here, and I appreciate the fact that they started simple and didn’t go complex.”
d. Mr. Nelson stated that the LRE model “provides a nice tool to create a future generation of the model so we can better understand the system.”
Relationship between Dr. Hart’s Criticism #1 and Criticism #3
Dr. Hart’s Criticism #1 and Criticism #3 related to aquifer thickness and the presence (or absence) of a thick low hydraulic conductivity basin fill clay layer beneath the alluvial aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
a. A thick low hydraulic conductivity basin fill clay layer is a thick layer of geologic deposits that typically consists of clay and has low hydraulic conductivity—i.e., it has little or no ability to hold or transport water. This layer is not aquifer material.
b. Mr. Ford determined that the aquifer in this reach of Aravaipa Creek is about 100 feet thick and that a thick low hydraulic conductivity basin fill clay layer exists beneath the alluvial aquifer in this reach.
c. In her report, Dr. Hart opined that the aquifer in this reach of Aravaipa Creek might be 400 feet or more thick and that no thick low hydraulic conductivity basin fill clay layer exists beneath the alluvial aquifer in this reach.
d. Dr. Hart’s report asserted that LRE Water’s modeling results were not “unique.”
An “aquifer” is “a geologic formation that will store and transmit water at enough of a rate that the water can be put to beneficial use.”
“Aquifer thickness” is a measure of the aquifer from top to bottom.
“Hydraulic conductivity” is a measured amount of how much water will flow through an aquifer.
The amount of water that will flow through a particular geologic formation is the product of hydraulic conductivity and aquifer thickness.
LRE Water’s response to Dr. Hart’s Criticism #1 regarding aquifer thickness
Dr. Hart’s Criticism #1 dealt primarily with aquifer thickness, and her Criticism #3 dealt primarily with the presence (or absence) of a thick low hydraulic conductivity basin fill clay layer beneath the alluvial aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
Sections 2 and 4 of the July 2021 LRE Water report address Dr. Hart’s Criticism #1.
With respect to Dr. Hart’s Criticism #1, Mr. Ford opined that, based on site-specific data from the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, the only plausible value for aquifer thickness was about 100 feet.
The only source that Dr. Hart cited to support her opinion that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence could be 400 or more feet thick was “state-wide depth to bedrock contours produced by the Arizona Geological Survey.”
a. Dr. Hart’s report cited no specific AZGS report, and her report contains no list of references.
b. Dr. Hart did not include any portion of any AZGS report upon which she relied in the appendix to her report.
c. ADWR did not provide any portion of any AZGS report upon which Dr. Hart relied as an exhibit in this proceeding.
Mr. Ford located what he believes to be the AZGS report upon which Dr. Hart relied.
a. That report is a 2007 report by Richard, Shipman, Greene, and Harris, entitled “Estimated Depth to Bedrock in Arizona.”
b. The narrative portion of that 2007 AZGS report is included as Appendix B to the July 2021 LRE Water report.
The 2007 AZGS report addresses aquifer thickness throughout the entirety of Arizona.
a. That 2007 AZGS report is not specific to Aravaipa Creek or the San Pedro River Watershed.
b. The narrative portion of that 2007 AZGS report contains no information upon which one could conclude that it was based on data specific to the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
In the Introduction section of that 2007 AZGS report, the authors state: “This report provides a snapshot of current understanding of the subsurface geometry of the boundaries of Tertiary basin fill, which is a major component of the necessary geologic framework model.”
The next section on the first page of that 2007 AZGS report is entitled “Definition of Bedrock and Basin.”
a. “Bedrock” includes “the geologic formations older than Tertiary,” i.e., “older than 66 million years old.” “They are typically rocks that are consolidated as opposed to the subflow zone, which is unconsolidated, and the basin fill, which is often unconsolidated but sometimes semi-consolidated.”
b. “Basin fill” is “the sediment that was deposited as the mountains were rising in Tertiary time, which was 3 to 66 million years ago.”
c. The authors of that 2007 AZGS report state that the distinction between basin fill and bedrock “becomes much less clearly defined when the basin fill material in question is consolidated to some degree. . . .”
d. Geologic deposits are “consolidated” when those deposits are compressed by pressure and heat so that they are altered chemically and held tighter together. In layman’s terms, “consolidated” deposits are “mashed together more.”
e. Water flows less freely through deposits that are more consolidated than it does through deposits that are less consolidated.
f. Based on his more than 50 years of experience as a geologist and his specific work in this case, Mr. Ford determined that the basin fill material in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence is consolidated to a considerable degree.
The 2007 AZGS report upon which Dr. Hart relied was not based on site-specific well boring logs.
a. Instead, that report was based primarily upon gravity-based subsurface models.
b. Gravity analysis is performed on the surface and does not use data from physical borings at the site.
The authors of that 2007 AZGS report acknowledged:
Gravity-based subsurface models only constrain the depth to bedrock within a range of possible values. Consequently, the depth to bedrock map does not give exact depths. Other data are required to better constrain the interpretations, for instance drilling logs, cuttings and core, surface mapping, and other geophysical data such as seismic refraction or magnetic field anomaly data.
a. The “depth to bedrock map” referred to in that statement is the map upon which Dr. Hart relied for her opinion that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence might be 400 or more feet thick.
b. The authors of the 2007 AZGS report upon which Dr. Hart relied recognized that their depth to bedrock estimates were not “exact.”
c. Those authors also recognized that “other data,” such as “drilling logs,” would be necessary to determine more exact depths to bedrock.
d. Dr. Hart’s report did not acknowledge these limitations of the 2007 AZGS report, as expressly recognized by the authors of that report.
e. “Drilling logs” are one source of data upon which Mr. Ford relied in reaching his conclusions regarding the thickness of the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
The authors of the 2007 AZGS report upon which Dr. Hart relied also stated that “[f]urther refinement of this map will require a basin by basin analysis. . . .”
a. Mr. Ford’s work in this case was even more geographically specific than a “basin by basin analysis.”
b. Mr. Ford’s work relied upon data from the specific reach of Aravaipa Creek that is at issue in this case.
The authors of the 2007 AZGS report upon which Dr. Hart relied also stated: “As discussed above the definition of ‘bedrock’ is subject to interpretation. These contours should be considered qualitative.”
a. In geology, a “contour” is a line on a map that represents that everywhere along the line has the same value.
b. The “contours” in the statement by the authors of the 2007 AZGS report are the same contours upon which Dr. Hart relied for her opinion that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence might be 400 or more feet thick.
c. In geology, something is considered “qualitative” when it is not precisely known but still has some value. “Qualitative” data allows one to assess regional trends.
d. “Qualitative” data is not particularly useful in addressing a relatively small, specific area.
The authors of the 2007 AZGS report upon which Dr. Hart relied also stated: “Horizontal accuracy of depth to bedrock contours cannot be rigorously quantified, but it is estimated to be in the range of +/- 1-3 km.”
a. One kilometer equals 0.62 miles, so three kilometers equals 1.86 miles.
b. The authors of the 2007 AZGS report upon which Dr. Hart relied acknowledged that each of the contours on their statewide map of depths to bedrock might be off by almost two miles.
c. Dr. Hart’s report did not acknowledge these limitations of the 2007 AZGS report, as expressly recognized by the authors of that report.
The authors of the 2007 AZGS report upon which Dr. Hart relied also stated: “Depth estimates are poorly constrained and should be considered highly uncertain, in the range of +/- 20-30 percent, except in the vicinity of wells penetrating bedrock.”
a. On the maps contained in the 2007 AZGS report upon which Dr. Hart relied, each contour represents estimated depth to bedrock at that location.
b. The authors of the 2007 AZGS report upon which Dr. Hart relied acknowledged that the depth to bedrock at each of the contours on their statewide map of depths to bedrock might be off by as much as 30 percent.
c. Thus, even assuming that the statewide 2007 AZGS report contains accurate information for the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, the authors of that report recognized that the actual depth to bedrock at a 400-foot contour might be as little as 280 feet.
d. Dr. Hart’s report did not acknowledge these limitations of the 2007 AZGS report, as expressly recognized by the authors of that report.
Figure C1 of Dr. Hart’s report includes the depth to bedrock contours from the 2007 AZGS report.
a. That figure demonstrates that, even assuming that the statewide 2007 AZGS report contains accurate information for the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, large portions of that reach (i.e., the portions of the reach that are outside the 400-foot contours) are shown to have a depth to bedrock of less than 400 feet.
b. Based on the map included as Figure C1 in Dr. Hart’s report, approximately 40 percent of the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence is outside the 400-foot depth to bedrock contours.
c. Based on the limitations of the 2007 AZGS report expressly recognized by the authors of that report, and even assuming that the statewide 2007 AZGS report contains accurate information for the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, the depth to bedrock at any location within the 400-foot contours could be as little as 280 feet.
d. Based on his education, training, and experience, his specific work on this case, and his review of site-specific data, Mr. Ford’s professional opinion is that, in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, the depth to bedrock contours on the statewide 2007 AZGS map upon which Dr. Hart relied are off by even more than 30 percent.
e. Based on the limitations of the 2007 AZGS report expressly recognized by the authors of that report, and even assuming that the statewide 2007 AZGS report contains accurate information for the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, the location of the 400-foot contours on that map could be off by almost two miles.
f. The portion of the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence that lies within the 400-foot depth to bedrock contours is only about two miles long.
g. Because the authors of the 2007 AZGS report recognized that the locations of the 400-foot depth to bedrock contours might be off by almost two miles and because those authors also recognized that the depth to bedrock at each of those contours might be off by as much as 30 percent, those contours do not provide a reliable basis for estimating depth to bedrock in that two-mile reach of Aravaipa Creek.
During his direct testimony, Mr. Nelson acknowledged that, in constructing a mode, empirical evidence is “absolutely” important.
Based on his education, training, and experience and his specific work on this case, Mr. Ford’s professional opinion is that the depth to bedrock contours on the statewide 2007 AZGS map upon which Dr. Hart relied are not a reliable basis upon which to determine the thickness of the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
In reaching his conclusion that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence is about 100 feet thick, Mr. Ford relied upon site-specific data taken from that reach of the creek.
Among other things, Mr. Ford relied upon information from a well driller’s log from Well No. 55-528303.
a. That well is located on one of the ASARCO LLC farm parcels just upstream from the Preserve.
b. Information from ADWR’s file for that well appears in Appendix C to the July 2021 LRE Water report.
c. In the log of that well, the geologic deposits beneath 90 feet below ground surface are described as “Gypsum Dry.”
d. That well log supports Mr. Ford’s conclusion that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence is about 100 feet thick.
Mr. Ford also relied upon information regarding two other wells near the Preserve for his conclusion that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence is about 100 feet thick.
a. Those two wells are Nos. 55-529427 and 55-610084.
b. Those two wells are located in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
c. Information from ADWR’s file for those two wells appears in Appendix D to the July 2021 LRE Water report.
d. Well No. 55-529427 was drilled to a depth of 92 feet.
e. Well No. 55-610084 was drilled to a depth of 140 feet.
f. The driller’s log for Well No. 55-610084 shows clay, a relatively impermeable deposit, beginning at 60 feet below ground surface and extending to the bottom of the well.
g. According to the driller’s log for Well No. 55-610084, the clay at that location becomes more dominant at 130 feet below ground surface.
Mr. Ford used a 2012 article by William R. Dickinson, entitled “Depositional Facies of the Quiburis Formation, Basin Fill of the San Pedro Trough, Southeastern Arizona, Basin and Range Province,” to determine which deposits were aquifers and which were not.
a. At the time the article was published in 2012, Dr. Dickinson was a Professor in the Department of Geosciences at the University of Arizona.
b. His 2012 article was specific to the portion of the San Pedro River Watershed that includes the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence, where the Preserve is located.
c. Dr. Dickinson’s 2012 article is reproduced in its entirety in Appendix E to the July 2021 LRE Water report.
Mr. Ford used Dr. Dickinson’s 2012 article, along with site-specific data, to prepare Figure 1 of the July 2021 LRE Water report.
a. The red dots and numbers on that Figure 1 represent the wells from which Mr. Ford took data upon which he relied in his analysis in this case.
b. The other colors on that Figure 1 are based on Dr. Dickinson’s 2012 article.
c. That Figure 1 compiles the information upon which Mr. Ford relied for his work in this case and shows that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence is about 100 feet thick.
d. Figure 1 also shows that Wells Nos. 55-529427 and 55-610084, two of the wells upon which Mr. Ford relied in his work in this case, are located just west of the Preserve and between the Preserve and the San Pedro River confluence.
Table 2 in the July 2021 LRE Water report is entitled “Wells with Depth and Driller’s Log Data, Vicinity of Black Farm.”
a. Like Figure 1, Table 2 compiles the information upon which Mr. Ford relied for his work in this case and shows that the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence is about 100 feet thick.
Dr. Hart criticized Mr. Ford’s use of an “Empirical Constant” in his model.
a. “An Empirical Constant” is a factor that “relates two different physical things in a proportionality constant.”
b, Empirical Constants are often used in the field of groundwater hydrology.
c. An example of a commonly used Empirical Constant is Pi (3.14192. . . .), which is the ratio of a circle’s circumference to its diameter.
d. In his analysis, Mr. Ford derived an Empirical Constant to address the relationship between various parameters and aquifer thickness.
To derive the value for his Empirical Constant, Mr. Ford used “trial and error” and “adjusted the empirical constant so that [he] got the best match between the water level observations that SRP had made and what [his] model shows.”
LRE Water’s response to Dr. Hart’s Criticism #3 regarding hydraulic conductivity
Dr. Hart’s Criticism #3 related to the presence (or absence) of a thick low hydraulic conductivity basin fill clay layer beneath the alluvial aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
Appendix C to the July 2021 LRE Water report contains some of the information upon which Mr. Ford relied for his conclusion that a thick low hydraulic conductivity basin fill clay layer exists beneath the alluvial aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
a. Among other things, that appendix contains information relating to Well No. 55-528303.
b. Mr. Ford obtained that information from ADWR’s file for that well.
c. That information includes a page from a report prepared by Errol L. Montgomery & Associates, Inc., a well-known consulting firm that does a significant amount of geology and hydrology work in Arizona.
d. That excerpt from the Errol L. Montgomery & Associates, Inc. report relating to the drilling of Well No. 55-528303 states that the well was drilled to 1,000 feet below ground surface.
e. That excerpt from the Errol L. Montgomery & Associates, Inc. report relating to the drilling of Well No. 55-528303 also states: “Because hydrogeologic conditions encountered were not favorable for groundwater development, the borehole was not cased.”
f. Based in part upon those statements by Errol L. Montgomery & Associates, Inc., Mr. Ford concluded that no significant quantity of water existed in the aquifer below about 100 feet in that well.
Appendix A to the July 2021 LRE Water report also contains some of the information upon which Mr. Ford relied for his conclusion that a thick low hydraulic conductivity basin fill clay layer exists beneath the alluvial aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
a. That Appendix A is an excerpt from a widely used groundwater textbook by Freeze and Cherry, entitled “Groundwater.”
b. Table 2.2 in that excerpt is entitled “Range of Values of Hydraulic Conductivity and Permeability.”
c. Mr. Ford used the information in that Table 2.2 to correlate the narrative descriptions in the well driller’s logs to specific ranges of hydraulic conductivity values.
d. The red markings on that table in Appendix A to the July 2021 LRE Water report show those correlations.
e. Those correlations constitute part of the basis for Mr. Ford’s opinion that a thick low hydraulic conductivity basin fill clay layer exists beneath the alluvial aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
LRE Water’s response to Dr. Hart’s Criticism #2 regarding period of record
Dr. Hart’s Criticism #2 relates primarily to results that she derived using a somewhat longer time period of record than LRE Water used in its model.
a. LRE Water’s response to Dr. Hart’s Criticism #2 is discussed in Section 7 of the July 2021 LRE Water report.
b. The LRE Water model used data from a period of nine years and one month.
c. Dr. Hart’s report extended that analysis for an additional 14 months.
d. Neither LRE Water nor Dr. Hart had data regarding water level elevations in monitoring well OW-2 for the 14-month period for which Dr. Hart extended her forecast.
e. Although Dr. Hart’s report indicates that the values in the extended portion of her forecast involve real water level data, those values are actually extrapolated from prior values.
f. Mr. Nelson testified that he did not know whether Dr. Hart had satellite images of the area upstream from the Aravaipa Gage for the additional 14 months for which she extended the LRE Water model.
g. LRE Water did not perform such an extrapolation or extend its model for the additional 14 months, in part because LRE Water (and Dr. Hart) lacked satellite image coverage of the area upstream from the Aravaipa Gage necessary to determine the amount of irrigation and the quantity of water diverted or withdrawn and used for irrigation in that area during that 14-month period.
LRE Water’s response to Dr. Hart’s Criticism #4 regarding increased future surface flows
Dr. Hart’s Criticism #4 relates to administration of water rights and impacts on surface flows.
a. Dr. Hart’s report opined that LRE Water “has not provided evidence that full administration of water rights in Aravaipa Creek will result in an increase in surface flow that is both immediate and equal to the volume of the extinguished pumping on Day 1 of the hypothetical scenario.”
b. LRE Water’s response to Dr. Hart’s Criticism #4 is addressed in Section 5 of the July 2021 LRE Water report.
c. During the hearing, both Mr. Ten Eyck and Mr. Ford discussed their extensive experience with full administration of water rights in Colorado.
d. Mr. Ten Eyck also discussed his experience with the call system on the Upper Gila River mainstem under the 1935 Globe Equity Decree.
e. Contrary to the unsupported assertions in Dr. Hart’s report, a properly functioning call system allows for full administration of water rights on a daily or weekly basis.
f. Mr. Ten Eyck and Mr. Ford both testified that, under call systems in Colorado, the court or the water master typically enforces calls against junior upstream users even if it might take months or years to restore underground water levels to the condition where water will flow downstream to the senior appropriator.
Dr. Hart’s Criticism #4 also was based, in part, upon her contention that the District had not shown that underground water levels at the Preserve had risen significantly in response to the District’s cessation of pumping from the Black Farm Well.
a. Because no monitoring wells were yet in place at the Preserve at the time when the District ceased pumping from the Black Farm Well, it was not possible to empirically show that underground water levels at the Preserve had risen significantly (or not) in response to the District’s cessation of pumping from that well.
b. The quantity of historic pumping from the Black Farm Well was at most 15 percent of the quantity of historic consumptive uses involved in Mr. Ten Eyck’s analysis of diversions and withdrawals upstream from the Aravaipa Gage.
c. Therefore, it is reasonable to expect that the impact on underground water levels and stream flows in Aravaipa Creek at the Preserve that will result from full administration of the District’s senior water right at the Preserve will be significantly larger and more immediate than the impact of the cessation of pumping from the single Black Farm Well.
Dr. Hart’s Criticism #4 also related to her speculation that some portion of the water that was not consumptively used by upstream junior right holders upon full administration of water rights would be consumed by increased riparian vegetation along Aravaipa Creek upstream from the Aravaipa Gage and therefore would not flow through to the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
a. Due to the narrow width of the Aravaipa Canyon between the upstream junior users and the Aravaipa Gage, it is not likely that a significant amount of riparian vegetation would grow in that area.
LRE Water’s Response to Dr. Hart’s Criticism #5 regarding future precipitation
Dr. Hart’s Criticism #5 related primarily to the uncertainty of future precipitation levels and the possibility of future climate change impacts.
a. LRE Water’s response to that criticism are addressed in Section 6 of the July 2021 LRE Water report and in Paragraph II.171 above.
LRE Water’s response to Dr. Hart’s Criticism #6 regarding relationship between upstream diversions and withdrawals and downstream flows
Dr. Hart’s Criticism #6 focused primarily on the relationship between increased upstream diversions and withdrawals and decreased flows over time.
a. The analysis by Mr. Ten Eyck and Mr. Ford fully addressed that relationship in the context of surface flows in Aravaipa Creek and underground water levels at the Preserve.
Mr. Nelson’s Criticism of the Empirical Constant used by LRE Water
LRE Water derived the concept of the empirical factor or empirical constant (EC) from Darcy’s Law. Darcy’s law can be written as Q=kiA where (Q) is the groundwater flow through a cross section of an aquifer, (A) is the area of the cross-section, (i) is the hydraulic gradient, and (k) is hydraulic conductivity.
The values used for Q (groundwater inflow) by LRE Water was generally flow from Aravaipa Gage, but LRE Water removed a certain threshold of flood flows from its analysis, which Mr. Ford could not identify at the hearing.
The hydraulic gradient (i) is the drop in the water table divided by some measured distance along the flow direction of the groundwater. Accordingly, the hydraulic gradient “is a measure of the gravitational force that causes the groundwater to flow through the aquifer.”
In three-dimensional models, the hydraulic gradient is not a single value because water moves in various directions on the x, y, and z axis. LRE Water only considered only the horizontal gradient.
The hydraulic gradient is a dynamic rather than constant variable that changes overtime. The EC keeps hydraulic gradient constant.
The hydraulic conductivity (k) is a physical property of the aquifer defined as the amount of water that will flow through a one-foot square under a hydraulic gradient of 1. It is an estimate.
If it is assumed that an aquifer has a rectangular cross section, as LRE Water assumes, the area of the cross-section (A) can be replaced with (wh), where (w) is the width of the aquifer and (h) is the aquifer thickness. If a cross-section is not rectangular, a correction factor (S) can be applied.
A unit conversion factor (C) can be applied to Darcy’s Law in order to harmonize the various units.
Accordingly, LRE Water rewrote the Darcy’s law equation Q=kiA as Q=(CkiSw)h. Accordingly, the conversion factor (C), hydraulic conductivity (k), hydraulic gradient (i), correction factor (S) and aquifer width (w) are all subsumed into the empirical constant (EC) and Darcy’s Law then becomes Q=ECh. Put another way, this equation holds that the flow (Q) equals EC times the aquifer thickness (h). Accordingly, aquifer thickness (h) must be known in order for the equation to produce accurate results.
The EC is “related to the subflow zone width, subflow zone hydraulic conductivity, the [hydraulic] gradient of the water table between monitoring well OW02 and where the [alluvial aquifer of Aravaipa] Creek meets the . . . the San Pedro River, and specific yield” of the alluvial aquifer. The EC is a composite of several hydrological attributes.
Mr. Ford testified that he tended to “lump” a number of values that he did not know precisely into the EC or “Q equals a whole bunch of stuff times h.”
“Because it is an artificial term, the value of the [EC] cannot be field verified, nor can plausible values or upper and lower bounds be estimated from literature or prior studies.”
In Mr. Nelson’s twenty-seven years doing groundwater modeling work he had never encountered someone using the concept of the EC in a groundwater model and he had not seen it in any literature.
Mr. Nelson testified that neither literature nor prior studies can be used to verify or determine the empirical constant because it is an amalgamation of a multitude of values that cannot be disaggregated. It is adjusted during the trial-and-error process, all the individual terms are changed at once while it is adjusted without regard to the individual components.
Values for individual components such as hydraulic conductivity and the hydraulic gradient cannot be determined and were not arrived at with data or literature. For instance, although LRE Water included hydraulic conductivity values for some of the basin fill and floodplain materials, the values in the model were simply part of the EC, which was arrived by trial and error.
LRE Water’s analysis of the floodplain alluvium and basin fill hydraulic conductivity are estimated as: (1) floodplain alluvium = 104 (highly permeable with high hydraulic conductivity); (2) basin fill sandstone and mudstone = 10-2 (somewhat permeable with low hydraulic conductivity); and (3) basin fill clay and silt with fine sand and gypsum = 10-4 (low permeability with very low hydraulic conductivity). LRE Water chose the center point to the wider ranges provided by the Freeze and Cherry textbook they relied on. The source itself, with LRE Water’s notations, indicates: (1) Floodplain alluvium = 102 to 106; (2) basin fill sandstone and mudstone = 1 to 10-3; and (3) basin fill clay and silt with fine sand and gypsum = 10-3 to 10-5. This is a much broader range than suggested; for instance, the hydraulic conductivity (k) of the floodplain alluvium ranges from 100 to 1,000,000 gallons per day per foot squared.
The values from Freeze and Cherry were not actually plugged into the model.
Although the EC is a composite of numerous variables, LRE did not calculate the value by determining these individual components. In fact, these variables cannot be isolated because there is no equation and, instead, the EC is determined via trial and error. This prevents verification of the EC even if field tested data were available.
Some of the variables subsumed into the EC, such as the hydraulic gradient, changes over time in response to water level changes at OW 2, at the subflow zone, or both. Despite the dynamic nature of the hydraulic gradient, the LRE Model keeps the EC invariant over time.
LRE Water concedes that “treating the EC as constant is not strictly correct,” but that the dynamic changes in the hydraulic gradient (i) and hydraulic conductivity (k) are so small they can be “ignored.”
LRE Water utilized the SRP observation well OW 2 to do the trial-and-error analysis to determine its EC value. Mr. Ford testified:
It was a trial-and-error approach once I entered all of the inflows and outflows into my spreadsheet model and calculated what the water table elevation would be. Then I just adjusted the empirical constant so that I got the best match between the water level observations that SRP had made and what my model shows.
LRE Water ultimately arrived at an empirical factor of 11.65 (corrected from 1.64 in the LRE Report) after a court-permitted information request for ADWR.
The LRE Model is “very sensitive” to the “artificially fitting parameter” (the LRE Water concept of an “empirical factor” or “empirical constant” (EC)). The LRE Model was refined by simply adjusting the EC such that the modeled groundwater elevations matched at a single well, SRP observation well OW 2. The fact that the LRE Model is “sensitive” to the EC means that “small percentage changes to the value of the [EC] means that small percentage changes to the value of the EC produce large changes” in modeled groundwater elevations.
Past, Present, and Future Wildlife Habitat
Dr. Dixon visited the Preserve twice in connection with his work in this case: First in October 2020, and again in July 2022. Through those visits, Dr. Dixon became familiar with the Aravaipa Creek stream channel in the vicinity of the Preserve, as well as the adjacent floodplain and upland terrace areas.
Prior to his work in this case, Dr. Dixon had visited riparian areas within the San Pedro River Watershed to study cottonwood and willow habitats.
In addition to the Preserve itself, Dr. Dixon also visited SRP’s nearby Adobe Preserve and the canyon section of Aravaipa Creek that is upstream from the Preserve.
As part of his work in this case, Dr. Dixon evaluated whether the Preserve could provide future cottonwood and willow habitat and concluded that “if the hydrology could be sufficiently restored, then it [the Preserve] could serve as – it could support riparian communities of cottonwood and willow.”
Dr. Dixon also evaluated whether the Preserve would provide suitable habitat for the flycatcher and cuckoo and concluded that it could provide suitable habitat for both species “if the hydrology can be sufficiently restored so that [the Preserve] could support cottonwoods and willows . . . .”
Cottonwood and willow habitat needs
Cottonwood and willow are found in riparian areas (i.e., ecosystems adjacent to a body of water such as a stream) throughout the San Pedro River Watershed, which is the watershed in which the Preserve is located.
Within riparian areas in the San Pedro River Watershed, cottonwood and willow tend to be located on the channel bank, in channel bars, or the adjacent floodplain, as opposed to the upland terrace area that is located farther from the stream.
Cottonwood and willow are both “pioneer” species, which means they colonize areas that have open space for vegetation as a result of an ecological disturbance such as a flood.
Pioneer species such as cottonwood and willow “require an open environment where they’re relatively free from competition in order to establish.”
In addition to being pioneer species, cottonwood and willow also are “hydromesic” species, which means that they have high water needs and require a reliable water source to survive.
Flood flows can create the disturbance that pioneer species such as cottonwood and willow require to recruit and grow.
Flood flows also enable both cottonwood and willow to disperse their seeds through a process called “hydrochory,” which involves seeds being “carried by flood flows and then . . . deposited on suitable gravel bars, sandbars as the flood flows recede.”
Due to the role that hydrochory plays in cottonwood recruitment, the existence of an upstream seed source (i.e., existing cottonwood trees) is helpful for purposes of facilitating cottonwood recruitment in a particular location.
Flood flows also are important to cottonwood and willow recruitment because flood events lead to saturated soil in the floodplain, which, in turn, provides moist substrate for germination and for early seedling growth.
Cottonwood and willow generally require flood flows of appropriate timing and size in order for large-scale recruitment events to occur.
Cottonwood and willow are obligate phreatophytes, which means that they are dependent upon groundwater as a water source.
Therefore, when the soil moistness created by a flood eventually disappears following a cottonwood or willow recruitment event, the trees must be able to access underground water to grow to maturity and survive over the long run.
For the trees to have reliable access to underground water, the capillary fringe—i.e., the saturated area near the water table—must be no deeper than the length of the tree’s roots.
Studies specific to the San Pedro Watershed have shown that a site is “unlikely to support healthy cottonwood/willow forests” if the depth to groundwater at that location is greater than 11.5 feet.
The threshold of 11.5 feet is a maximum tolerance threshold for cottonwood and willow; it is not an ideal depth to groundwater.
Based on a study of riparian vegetation in the San Pedro Watershed, the highest quality riparian sites with the healthiest cottonwood/willow forests were found at locations “that had groundwater levels that were less than 8 feet deep . . . .” Thus, for purposes of providing ideal habitat for cottonwood/willow, the general rule is that shallower is better.
In addition to requiring shallow groundwater levels, cottonwood and willow also require groundwater levels that do not significantly fluctuate throughout the year. In particular, sites where the depth to groundwater varies by more than one meter during the course of a year “tended not to have healthy cottonwood/willow forests growing on them,” while the “highest quality sites” were those at which depth to groundwater varies by less than one half of a meter during a typical year.
Intra-annual groundwater fluctuation is important because the roots of cottonwood and willow trees are more likely to be able to remain in contact with the saturated capillary fringe if intra-annual fluctuation is low, whereas trees could “lose contact with their water source” at sites where intra-annual fluctuation is higher.
In the San Pedro Watershed, streamflow permanence—i.e., “the percentage of the days of the year when you have surface flow of the stream”—also is correlated with suitable cottonwood and willow habitat.
Dr. Julie Stromberg, who is “one of the premier experts on riparian vegetation in the Southwest,” co-authored with Dr. Dixon a chapter in a report that analyzed the habitat needs and preferences of cottonwood, willow, and other riparian species in a portion of the San Pedro Watershed known as the San Pedro Riparian National Conservation Area.
The report described the results of a study that determined, among other things, that increased streamflow permanence was correlated with increased basal area for cottonwood and willow trees within the study area.
Higher basal area is a sign of “increased health, increased biomass, increased dominance” for the tree. Thus, the fact that basal area increased for cottonwood and willow in tandem with increased streamflow permanence “suggests that conditions for the . . . growth and survival of those species also tends to increase” alongside increased streamflow permanence. Further, streamflow permanence is related to the “integrity and abundance and health of these [cottonwood/willow] forests along the San Pedro.”
The data showed that 60% streamflow permanence is an “empirical threshold” for cottonwood/willow forests in the San Pedro—i.e., sites with streamflow permanence of less than 60% “tended not to be able to support . . . multi-aged, healthy cottonwood/willow forests, whereas sites with streamflow permanence of 60 percent or greater tended to be able to support those forests.”
The empirical threshold of 60 percent streamflow permanence represents the minimum requirement for healthy cottonwood-willow habitat, as opposed to the ideal degree of streamflow permanence.
Streamflow permanence of at least 95 percent has been documented to provide the best habitat conditions for cottonwood/willow forests. Therefore, streamflow permanence as close to 100 percent as possible (i.e., perennial flows) would be ideal for purposes of providing ideal cottonwood and willow habitat.
Cottonwood and willow habitat in and near the Preserve
In 2004, cottonwood and willow were observed within the Preserve, as documented in a report that was intended to describe the ecological characteristics of the Preserve as of that time.
The presence of cottonwood and willow at the Preserve in 2004 suggests that cottonwood and willow are able to periodically recruit and form saplings at the Preserve.
Dr. Dixon also observed firsthand, and viewed photographs of, mature cottonwoods along Aravaipa Creek immediately to the north of the Preserve.
The presence of cottonwood trees just across Aravaipa Creek from the Preserve demonstrates that the conditions in the area enabled cottonwood recruitment and survival, which “suggests that we also could have recruitment and longer-term survival at [the Preserve] as well” if appropriate conditions could be maintained.
During his visit to the Preserve in October 2020, Dr. Dixon also viewed a portion of Aravaipa Creek about half a mile downstream from the Preserve near the Highway 77 bridge.
Dr. Dixon observed and photographed cottonwood in the reach of Aravaipa Creek near the Highway 77 bridge.
The presence of cottonwood just downstream from the Preserve demonstrates that cottonwoods are able to periodically recruit and survive in that area.
A photograph taken in 1941 from the Highway 77 bridge looking up the Aravaipa Creek channel in the direction of the Preserve shows mature cottonwoods in the floodplain adjacent to Aravaipa Creek.
At least one of the cottonwood trees depicted in the 1941 photograph is “at least several decades old,” which means that particular cottonwood would have recruited “right around 1900 or a little bit before.”
The presence of that mature cottonwood tree just downstream from the Preserve in 1941 demonstrates that, around the turn of the twentieth century, hydrologic conditions were suitable for cottonwood recruitment and long-term survival in locations near the Preserve.
Aravaipa Creek has been impacted by several significant floods in recent decades, including floods that occurred in 1983, 1993, and 1995.
These flood events have enabled cottonwood recruitment to occur in the vicinity of the Preserve.
In an October 2002 photograph, for example, young cottonwood trees can be seen in the Aravaipa Creek channel near the Highway 77 bridge that is just downstream of the Preserve (i.e., the same location as in the 1941 photograph).
The cottonwood trees depicted in the 2002 photograph likely recruited during the 1983, 1993, or 1995 flood events that impacted Aravaipa Creek, and the existence of those trees “well illustrates the positive effects of the 1983 and 1993 floods on germination and establishment of native species” just downstream from the Preserve.
Current vegetation at the Preserve
Dr. Dixon did not observe cottonwood or willow at the Preserve during his October 2020 visit, which demonstrates that the cottonwood and willow that recruit at the Preserve are not surviving to maturity.
In the Aravaipa Creek channel portion of the Preserve and in the lower floodplain area adjacent to the channel, riparian vegetation is dominated by singlewhorl burrobrush, with scattered mesquite, seep-willow shrubs near the channel, and a few blue palo verde.
The mesquite that are located in the Aravaipa Creek floodplain at the Preserve are small and shrubby.
In addition to the small and shrubby mesquite that occurs within the lower floodplain, there also is a mesquite bosque comprised of dense, larger trees; the bosque is “back away from the channel” on the terrace.
Unlike cottonwood and willow, which are “pioneer” species that require disturbance to recruit, mesquite is a “competitor” species.
The water needs of mesquite are not as sensitive as those of cottonwood and willow, which enables it to grow in terrace and upland areas that are farther from the stream channel. Unlike cottonwood and willow, mesquite is not fully dependent on accessing water through the saturated capillary fringe and is able to extract water from other sources, such as soil moisture.
Future potential for cottonwood and willow at the Preserve
Cottonwood and willow are native to the reach of Aravaipa Creek within the Preserve.
The documented existence of a flood flow regime suitable for cottonwood recruitment just downstream from the Preserve shows that the flood flow regime at the Preserve also would be suitable for large-scale cottonwood and willow recruitment events.
During his October 2020 and July 2021 visits to the Preserve, Dr. Dixon observed open ecological space that would provide potential habitat for cottonwood and willow recruitment.
In addition to the existing ecological space that Dr. Dixon observed, more ecological space could become available for cottonwood and willow upon the occurrence of a flood or other disturbance event, including space in the Aravaipa Creek floodplain or channel bars within the streambed itself.
There is burrobrush and other vegetation growing in parts of the Aravaipa Creek channel and floodplain at the Preserve, but the existence of that vegetation would not be a major impediment to cottonwood or willow recruitment because that vegetation would be removed through suitable flooding events and, even if it was not removed, there is room for cottonwood and willow recruitment to occur alongside the existing vegetation.
Dr. Dixon observed “a healthy forest of cottonwoods and willow growing along” Aravaipa Creek in the canyon portion of Aravaipa Creek that is approximately ten miles upstream from the Preserve.
Because cottonwood and willow seeds spread downstream through the hydrochory process, the existence of cottonwood and willow upstream from the Preserve provides a potential source of cottonwood and willow seeds that could spread downstream and recruit at the Preserve.
The fact that cottonwood and willow are able to recruit, but not survive to maturity, at the Preserve suggests that the Preserve could provide suitable cottonwood and willow habitat if hydrological conditions at the Preserve improved.
The term “limiting factor” refers to the explanation for a species not developing at a particular location even when “all the other requisite processes and conditions are in place” at the location for purposes of providing habitat.
Dr. Dixon opined that “hydrologic conditions, in particular the groundwater levels, form that limiting factor that prevented cottonwood and willow from being able to survive and grow to maturity on the [Preserve].”
Dr. Dixon based his conclusion that excessively deep groundwater levels are the limiting factor for cottonwood and willow growth at the Preserve on the fact that mature cottonwoods exist near the Preserve and cottonwood and willow seedlings occasionally recruit in and near the Preserve—indicating all requirements for recruitment are satisfied—but the trees are not surviving to maturity, suggesting inadequate groundwater levels.
Accordingly, the reason that the Preserve does not currently support cottonwood or willow (despite having a suitable flood regime, available ecological space, and a source of seeds upstream) is that groundwater conditions at the Preserve are not suitable for cottonwood and willow.
To alleviate the limiting factor of excessively deep groundwater levels at the Preserve, depth to groundwater levels within the floodplain at the Preserve would need to reach the thresholds that have been identified in studies of the San Pedro Watershed as adequate to support cottonwood and willow habitat (i.e., no more than about 11.5 deep, and ideally no more than about 8 feet deep).
For purposes of promoting cottonwood and willow growth at the Preserve, Dr. Dixon would “like to see 8 feet or shallower” depth to groundwater because shallower depth to groundwater provides “a much better chance that you could have successful recruitment and longer-term survival” of cottonwood and willow at the Preserve.
At the hearing and in his expert report, Dr. Dixon opined on the potential for future cottonwood and willow growth at the Preserve under the hydrologic conditions that could be expected at the Preserve if junior water rights on Aravaipa Creek were curtailed, as those hydrologic conditions are described in LRE Water’s April 2021 report.
For purposes of Dr. Dixon’s trial testimony, the term “LRE projection” was used to describe LRE Water’s projected hydrological conditions at the preserve upon full administration of water rights. The “LRE projection” is that additional streamflow could be expected at Aravaipa gage upstream from the Preserve, and “[t]his additional streamflow would recharge the subflow zone along the Creek and, over time, would raise the underground water table in the vicinity of [the Preserve] to the bottom of the Creek channel so that groundwater would again discharge to the channel as streamflow.”
Sizable portions of the floodplain at the Preserve are no more than eight feet higher in elevation than the Aravaipa Creek channel.
Therefore, under the LRE projection conditions in which the underground water table in the vicinity of the Preserve is raised to the bottom of the Aravaipa Creek channel, the Aravaipa Creek floodplain area of the Preserve will include areas in which the depth to underground water is significantly shallower than the 11.5 feet threshold that indicates potentially suitable conditions for cottonwood and willow habitat.
The portions of the Preserve in which the depth to groundwater would be less than 11.5 feet under the LRE projection conditions (and particularly those portions where depth to groundwater would be less than 8 feet) “should be shallow enough . . . to provide good conditions for cottonwood and willow growth and survival.”
Because the LRE projection conditions would result in underground water levels in the floodplain at the Preserve that would be significantly shallower than the maximum depth that is suitable for cottonwood and willow in the San Pedro Watershed, underground water levels would no longer be a limiting factor for cottonwood and willow growth at the Preserve under those conditions.
Under the LRE projection conditions, the groundwater levels in the floodplain area within the Preserve also would be sufficiently stable for long-term cottonwood and willow survival.
Dr. Dixon opined that “the long-term prospects would be quite good” for cottonwood and willow at the Preserve under the LRE projection conditions, given that those conditions would alleviate the limiting factor that currently exists for cottonwood and willow growth and survival at the Preserve.
The increased permanence of Aravaipa Creek streamflows associated with the LRE projection conditions also would improve the Preserve’s suitability for cottonwood and willow habitat.
After the LRE projection conditions are achieved at the Preserve, a suitable flood event would be required before cottonwood and willow would begin to recruit at a large scale in the Preserve.
Under the LRE projection conditions, it is likely that cottonwood and willow would establish at the Preserve upon the occurrence of a suitable flood event.
While it is possible that a suitable flood event could occur shortly after the LRE projection conditions are restored at the Preserve, it is also possible that it could take years for cottonwood and willow seedlings to become established at the Preserve because major recruitment events tend to be infrequent in the San Pedro Watershed.
The mesquite bosque that currently exists on the Preserve would not interfere with future cottonwood and willow habitat because the bosque is located on the terrace, while cottonwood and willow will recruit in the floodplain and stream channel.
Flycatcher and cuckoo habitat needs
As part of his work in this matter, Dr. Dixon evaluated the habitat needs of flycatcher and cuckoo and evaluated whether the Preserve could provide ecological and conservation benefits to the flycatcher and cuckoo.
In evaluating the habitat needs of the flycatcher and cuckoo, Dr. Dixon conducted a literature review in addition to relying upon his extensive experience regarding avian habitat needs in riparian areas.
Flycatcher Habitat Needs
The flycatcher is protected as an endangered species under the Endangered Species Act.
In the San Pedro Watershed, there are several areas of occupied flycatcher habitat clustered along the San Pedro River, which is a desert watercourse with woody riparian vegetation.
Flycatchers tend to occupy wide floodplain areas that include riparian vegetation. In particular, flycatchers are generally found in dense riparian shrub and tree communities that are at least 10 meters wide and at least one tenth of a hectare in size.
Within this habitat, flycatchers tend to nest in young willow and salt cedar trees that have dense, even canopies and high stem density.
Young willow trees in particular are important for providing flycatcher habitat because young willows “provide high-quality nesting habitat for flycatchers.”
Flycatchers also do well near a permanent water source (e.g., a perennial stream), and flycatcher nests tend to occur near moist soil or surface water.
Except in drought years, flycatchers almost always breed near slow-moving surface water, still surface water, or saturated soil.
Surface water or moist soil is an important attribute of flycatcher breeding sites because it helps to cool the climate near the nests and draws insects that provide a food source for flycatchers.
Cuckoo Habitat Needs
The cuckoo is protected as a threatened species under the Endangered Species Act.
Critical habitat for the cuckoo has been designated pursuant to the Endangered Species Act.
Like the flycatcher, cuckoo habitat consists of riparian areas within wide, low gradient river floodplains.
The cuckoo favor large patches of cottonwood and willow.
Within these large patches, cuckoo nesting sites tend to be located within relatively small and dense “early successional” trees, particularly willow.
Cuckoo nesting sites also tend to be located where there is dense foliage at multiple canopy levels, as opposed to dense foliage at only one particular elevation within the tree column.
Based on bird surveys conducted during the breeding season in the San Pedro River Watershed, Dr. Ariana Brand authored a paper in which she evaluated the abundance of various bird species across different vegetation types.
The species abundance data presented by Dr. Brand demonstrated that cottonwood had the highest densities of cuckoo in the San Pedro River Watershed.
The data also show that cuckoo are able to use mesquite as habitat in the San Pedro Watershed.
Future potential for flycatcher and cuckoo habitat at the Preserve
Flycatcher
Under the hydrologic conditions associated with the LRE projection, there will be enough ecological space available to create riparian shrub and tree communities that are at least 10 meters wide and at least one tenth of a hectare in size, as favored by the flycatcher.
Once established, the riparian shrub and tree communities that grow in that ecological space could provide suitable habitat for the flycatcher.
Under the hydrologic conditions associated with the LRE projection, young willow trees could be reasonably expected to occur in the future at the Preserve.
Those young willow trees at the Preserve likely would provide nesting habitat for flycatchers.
Adobe Preserve, which is another SRP conservation property that is located approximately one mile from the Preserve, has willow trees, but they are primarily mature trees rather than the young willow favored by flycatchers for nesting.
Due in part to the maturation of willow trees at Adobe Preserve and other conservation areas that SRP operates in the San Pedro Watershed, the flycatcher population of those preserve areas has been “dwindling” and the preserves are “not providing the habitat quality and the flycatcher numbers that they did previously.”
Because other nearby habitats for the flycatcher are being impacted by the maturation of willow trees, the existence of young willow trees at the Preserve would “help in the whole system in terms of providing some badly needed habitat” for flycatchers.
Under the hydrologic conditions associated with the LRE projection, streamflows and saturated soil are expected to occur at the Preserve.
The increased streamflows at the Preserve that are expected under the LRE projection conditions “would be especially important . . . for providing high-quality flycatcher habitat” at the Preserve.
To the extent that some amount of streamflow is maintained year-round in Aravaipa Creek at the Preserve, those streamflows would improve the Preserve’s suitability as flycatcher habitat.
Cuckoo
The Preserve is located within Unit 27 of the designated critical habitat for the cuckoo.
Because the Preserve includes a low gradient stream and a floodplain, the Preserve could provide suitable habitat for the cuckoo if cottonwood and willow could be established at the Preserve.
Under the hydrologic conditions associated with the LRE projection, the Preserve could support cottonwood and willow with multiple canopy levels, as preferred by the cuckoo for nesting.
In the years following the initial establishment of cottonwood and willow at the Preserve, those trees would be younger, early successional trees, as preferred by the cuckoo.
The cottonwood and willow at SRP’s Adobe Preserve are primarily larger, mature trees.
The establishment of younger, early successional trees at the Preserve would offer a habitat benefit to the cuckoo above and beyond any habitat benefit provided by Adobe Preserve, because Adobe Preserve no longer has the young, dense trees favored by the cuckoo for nesting habitat.
Director’s Decision and Subsequent Proceedings
On August 3, 2020, the ADWR Director issued the Decision denying the Application, as amended.
In the August 2020 Decision, the ADWR Director found that the District is a political subdivision of the State of Arizona and, therefore, the Application falls within the scope of A.R.S. § 45-172(A).
a. No party appealed the ADWR Director’s finding on that issue.
In the August 2020 Decision, the ADWR Director found that the quantity of water claimed in the Application, as amended, did not exceed the District’s vested rights at the time of the severance and transfer pursuant to A.R.S. § 45-172(A)(2).
a. No party appealed the ADWR Director’s finding on that issue.
In the August 2020 Decision, the ADWR Director found that the proposed S&T of the Claim would not interfere with vested or existing rights under A.R.S. § 45-172(A)(2).
a. No party appealed the ADWR Director’s finding on that issue.
In the August 2020 Decision, the ADWR Director found that the water rights asserted in Claim No. 36-105209 have not been forfeited or abandoned pursuant to A.R.S. § 45-172(A)(3).
a. No party appealed the ADWR Director’s finding on that issue.
In the August 2020 Decision, the ADWR Director found that the water rights asserted in the May 2004 revision of the Claim are not appurtenant to lands within the exterior boundaries of any irrigation district, agricultural improvement district, or water users’ association for purposes of A.R.S. § 45-172(A)(4).
a. No party appealed the ADWR Director’s finding on that issue.
The District timely filed its Notice of Appeal of the Director’s decision on August 31, 2020, and set forth 12 separate issues as basis for their appeal.
Whether the Director properly considered the proposed beneficial use in evaluating the Application
Whether the Director properly determined that the District failed to demonstrate that the quantity of water the District seeks to put to wildlife use cannot be put to beneficial use for that purpose at the proposed place of use.
Whether the director properly determined that the wildlife use for which the District seeks the S&T and change in purpose of use requires dense vegetation.
Whether the Director properly determined that the District failed to demonstrate that the proposed place of use receives sufficient flow to support riparian vegetation.
Whether the Director properly determined that Aravaipa Creek at the proposed place of use is ephemeral and not perennial or intermittent.
Whether the Director properly determined that the District was required to provide a method for directly measuring the quantity of water to be put to beneficial use for wildlife and whether the Director properly determined that the District failed to provide a method for measuring the quantity of water to be put to beneficial use at the proposed place of use.
Whether the Director properly considered and determined that the District was required to demonstrate that the decrease in pumping from the well on its property has an effect on the hydrologic conditions within the subflow zone sufficient to effectuate the proposed beneficial use at the proposed place of use.
Whether the Director properly determined that the District failed to demonstrate that the decrease in pumping of water from the well on its property has an effect on the hydrologic conditions within the subflow zone or the proposed place of use.
Whether the Director’s authority under A.R.S. § 45-172 is limited to prescribing reasonable conditions for approval of the Application.
Whether the Director’s denial of the Application is an unconstitutional deprivation of SRP’s existing water right.
Whether the Director’s denial of the Application violates Article 17, Section 2 of the Arizona Constitution, which recognizes and confirms existing water rights at the time of statehood “for all useful or beneficial purposes.”
Whether the Special Master’s approval of stipulated water right abstracts for inclusion in the Catalog of Proposed Water Rights created pursuant to Section 15 of the Rules for Proceedings Before the Special Master constitutes an “adjudicated water right” or “conclusive determination” that divests the Director of authority to reject S&T applications based on that right.
After the Notice of Appeal was filed, the parties held an informal settlement conference on October 14, 2020.
On November 5, 2020, the parties requested that the hearing be rescheduled so that informal settlement discussions could continue.
The Administrative Law Judge granted that request by order dated November 5, 2020, and continued the hearing to March 15, 2021.
The hearing was subsequently reset for May 11, 2021.
A prehearing conference was held on March 19, 2021.
At that conference, the hearing was reset for May 10, 2021. That order also set various prehearing deadlines, to which the parties had agreed. Among those deadlines was the exchange of anticipated witness lists (April 5, 2021) and the exchange of proposed exhibits (April 13, 2021).
The parties submitted their witness lists and exhibits as agreed upon.
On April 26, 2021, ADWR filed a motion to (a) exclude all of the District’s exhibits that had not been submitted prior to the August 2020 Decision or (b) allow ADWR additional time to respond to the reports submitted by the District’s expert witnesses.
On that same date, the District filed a motion for summary judgment, contending, among other things, that the August 2020 Decision denying the Application was based on grounds not allowed under A.R.S. § 45-172(A).
Following briefing and argument, the Administrative Law Judge on April 29, 2021 granted ADWR’s motion to continue and set a prehearing conference for May 10, 2021.
At that May 10 prehearing conference, the parties agreed upon a revised prehearing schedule based on the Administrative Law Judge’s granting of the motion to continue. The hearing was reset for September 13, 2021.
According to the agreed-upon amended schedule, ADWR submitted its revised witness and exhibit lists on July 2, 2021, and the District submitted its revised lists on July 26, 2021.
ADWR responded to the District’s motion for summary judgment on May 28, 2021; the District submitted its reply on June 18, 2021; and oral argument was held on June 24, 2021.
On August 30, 2021, the Administrative Law Judge granted the District’s motion for summary judgment, denied all other pending motions as moot, and remanded the matter to ADWR for further action.
On September 29, 2021, the ADWR Director rejected the Administrative Law Judge’s decision on the District’s summary judgment motion and remanded the matter back to OAH “to resolve any outstanding motions, including ADWR’s Motion in Limine, and conduct an evidentiary hearing on disputes thereafter remaining.”
a. During her long tenure at ADWR, Ms. Logan had never encountered a situation in which the ADWR Director remanded a matter back to an Administrative Law Judge after the judge had made their initial decision.
Another prehearing conference was held on January 31, 2022, and the hearing was reset for July 25, 2022.
On March 11, 2022, the Administrative Law Judge denied the motions in limine filed by ADWR and the District.
The parties filed amended witness and exhibit lists on June 27, 2022, and the hearing commenced on July 25, 2022.
CONCLUSIONS OF LAW
Pursuant to A.R.S. § 41-1092(G)(1), SRP bears the burden of persuasion in this matter.
Pursuant to A.A.C. R2-19-119, SRP has the burden of proof and the standard of proof is a preponderance of the evidence.
A preponderance of the evidence is “[e]vidence which is of greater weight and more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Arizona Revised Statute § 45-172(A)
A.R.S. § 45-172(A) provides, in pertinent part, as follows:
A. A water right may be severed from the land to which it is appurtenant or from the site of its use if for other than irrigation purposes and with the consent and approval of the owner of such right may be transferred for use for irrigation of agricultural lands or for municipal, stock watering, power and mining purposes and to the state or its political subdivisions for use for recreation and wildlife purposes, including fish, without losing priority theretofore established, subject to the following limitations and conditions:
1. Except as otherwise provided in this section no such severance or transfer shall be made unless approved by the director, and the approval of the director shall prescribe the conditions of the approval.
2. Vested or existing rights to the use of water shall not be affected, infringed upon nor interfered with, and in no event shall the water diverted or used after the transfer of such rights exceed the vested rights existing at the time of such severance and transfer, and the director shall by order so define and limit the amount of water to be diverted or used annually subsequent to such transfer.
3. The water rights sought to be transferred shall have been lawfully perfected under the laws of the territory or the state of Arizona and shall not have thereafter been forfeited or abandoned.
4. No such severance or transfer of water rights shall be permitted or allowed from lands within the exterior boundaries of any irrigation district, agricultural improvement district or water users' association without first having obtained the written consent and approval of such irrigation district, agricultural improvement district or water users' association.
5. No right to the use of water on or from any watershed or drainage area which supplies or contributes water for the irrigation of lands within an irrigation district, agricultural improvement district or water users' association shall be severed or transferred without the consent of the governing body of such irrigation district, agricultural improvement district or water users' association. All proposed applications for the severance and transfer of a right to use water of or from any watershed or drainage area which supplies or contributes water for the irrigation of lands within any irrigation district, agricultural improvement district or water users' association shall be submitted to the governing body of such irrigation district, agricultural improvement district or water users' association prior to the filing of such application with the director. Within forty-five days after the receipt of the application such governing body shall reject or approve the proposed application. Failure of such governing body to approve or reject the proposed application within forty-five days after receipt shall constitute approval of the proposed application by such governing body. No application for the severance or transfer of a right to the use of water of or from any watershed or drainage area which supplies or contributes water for the irrigation of lands within any irrigation district, agricultural improvement district or water users' association shall be accepted for filing by the director unless accompanied by the written consent of the governing body of such irrigation district, agricultural improvement district or water users' association to the proposed application or by satisfactory evidence that such governing body failed to either accept or reject the proposed application within forty-five days after receipt by such governing body.
6. A severance and transfer of an irrigation water right appurtenant to lands within the boundaries of an irrigation district to other lands within the boundaries of the same irrigation district for agricultural use may be accomplished by the exclusion of lands to which a water right is appurtenant from within the boundaries of an irrigation district, and the inclusion in lieu of other lands within the boundaries of such irrigation district. Such severance and transfer of a water right shall require the consent of only the irrigation district within which the affected lands are situated and of the owners of the lands affected by the severance and transfer. No proceedings before nor approval by the director shall be required to accomplish such severance and transfer.
7. An application for severance and transfer of a water right shall be filed with the director. The director shall give notice of the application by publication once a week for three successive weeks in a newspaper of general circulation in the county or counties in which the watershed or drainage area is located. The notice shall state that any interested person may file written objections to the proposed severance and transfer with the director within thirty days after the last publication of the notice. In appropriate cases, including cases in which an objection has been filed, an administrative hearing may be held before the director's decision on the application if the director deems a hearing necessary.
Pursuant to A.R.S. § 45-172(A), a water right may be severed from the site of its use and may be transferred to the State or its political subdivisions for use for wildlife purposes “without losing priority theretofore established.”
a. The District is a political subdivision of the State of Arizona and, therefore, is entitled to sever and transfer a water right for use for wildlife purposes “without losing priority theretofore established.”
b. Approval of the Application, as amended by the First and Second Amendments, is authorized by and complies with A.R.S. § 45-172(A).
Approval of the Application, as amended by the First and Second Amendments, will not affect, infringe upon, or interfere with vested or existing rights.
a. The quantity of water sought to be severed and transferred by the District does not exceed the District’s vested rights at the time of the S&T.
b. Approval of the Application, as amended by the First and Second Amendments, is authorized by and complies with A.R.S. § 45-172(A)(2).
The water right asserted in the Claim was lawfully perfected under the laws of the State of Arizona and has not been forfeited or abandoned.
a. Approval of the Application, as amended by the First and Second Amendments, is authorized by and complies with A.R.S. § 45-172(A)(3).
The Application, as amended by the First and Second Amendments, does not seek an S&T from lands located within the exterior boundaries of any irrigation district, agricultural improvement district, or water users’ association.
a. Approval of the Application, as amended by the First and Second Amendments, is authorized by and complies with A.R.S. §§ 45-172(A)(4) and 45-172(A)(5).
The Application, as amended by the First and Second Amendments, received the consent of the governing body of any irrigation district, agricultural improvement district, or water users’ association to which water is supplied by the watershed or drainage area from which the S&T is sought.
a. Approval of the Application, as amended by the First and Second Amendments, is authorized by and complies with A.R.S. § 45-172(A)(6).
Notice of the Application, as amended by the First and Second Amendments, was properly published pursuant to A.R.S. § 45-172(A)(7).
a. Approval of the Application, as amended by the First and Second Amendments, is authorized by and complies with A.R.S. § 45-172(A)(7).
Based on Ms. Logan’s testimony during the hearing and the lack of any standard regarding what constitutes an “ephemeral” stream, the Director’s statement that the reach of Aravaipa Creek adjacent to the Preserve is “ephemeral” and his reliance upon that statement in rejecting the Application was not supported by the evidence.
“ADWR’s authority to deny a properly filed application for the severance and transfer of water rights is defined by the ‘limitations and conditions’ set forth in § 45–172(A).”
Based on the Arizona Supreme Court’s holding in McClennen and as stated in the Administrative Law Judge’s August 20, 2021 decision granting the District’s motion for summary judgment, the “limitations and conditions” set forth in A.R.S. § 45-172(A) are the exclusive criteria upon which ADWR may grant or deny an application for an S&T.
Nothing in A.R.S. § 45-172(A) requires that the applicant for an S&T demonstrate that a “beneficial use” of water currently exists at the proposed new place of use or will exist at the proposed new place of use following approval of the S&T application.
The Application satisfies each of the requirements for an S&T set forth in A.R.S. § 45-172(A).
Beneficial Use
As set forth supra, the Administrative Law Judge concludes that the District was not required to demonstrate that a “beneficial use” of water currently exists at its proposed new place of use or will exist at the proposed new place of use following approval of the Application.
Assuming, arguendo, that the District was required to demonstrate that a “beneficial use” of water currently exists at its proposed new place of use or will exist at the proposed new place of use following approval of the Application, the Administrative Law Judge makes the following conclusions.
The Administrative Law Judge finds that the depth to bedrock contours on the statewide 2007 AZGS map upon which Dr. Hart relied are not a reliable basis upon which to determine the thickness of the aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
Based on the evidence presented at the hearing, the Administrative Law Judge finds that a thick low hydraulic conductivity basin fill clay layer exists beneath the alluvial aquifer in the reach of Aravaipa Creek between the Aravaipa Gage and the San Pedro River confluence.
Based on the evidence presented at the hearing, the Administrative Law Judge finds that, while there may be some concerns with LRE Water’s concept of an “empirical constant”, that method effectively modeled groundwater elevations in Aravaipa Creek at and near the Preserve.
Based on the evidence presented at the hearing, the Administrative Law Judge finds that the LRE Water model is a scientifically reasonable means by which to project future underground water levels and stream flows in Aravaipa Creek at and near the Preserve.
Accordingly, the Administrative Law Judge concludes that full administration of water rights would result in an increase in stream flows at the Aravaipa Gage of approximately 2,160 AFY above the long-term historical average.
The addition of 2,160 AFY stream flow at the Aravaipa Gage would recharge the subflow zone along the Creek and, over time, would raise the underground water table in the vicinity of the Preserve to the bottom of the Creek channel so that groundwater would again discharge to the channel as stream flow.
Full administration of water rights on Aravaipa Creek would result in a suitable habitat for cottonwood and willow at the Preserve.
Suitable habitat for cottonwood and willow at the Preserve would result in suitable habitat for the flycatcher.
Suitable habitat for cottonwood and willow at the Preserve would result in suitable habitat for the cuckoo.
Accordingly, if the District was required to demonstrate a current or future “beneficial use,” the District has made such a demonstration based on the testimony and other evidence it presented at the administrative hearing in this matter.
ORDER
IT IS RECOMMENDED that the ADWR Director grant the Application, as amended.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
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-137160-45720000Done this day, February 14, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically or by mail to:
Thomas Buschatzke , Director
Department of Water Resources
By: OAH Staff-54864001
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