Cochise farmers get more time to secure groundwater use

Farmers and residents within the new Douglas Active Management Area will have six more months to claim their right to keep using groundwater from higher-producing wells.

Gov. Katie Hobbs signed a bill on Monday that will move the deadline to secure grandfathered rights to September 1. The original deadline was March 1.

The act will apply retroactively: All applications filed after Feb. 29 will be considered by the Arizona Department of Water Resources.

Rep. Gail Griffin, R-Hereford, introduced House Bill 2016 in January as an “emergency measure” to give Douglas AMA water users additional time.

“Residents in the Douglas basin must navigate a complex web of red tape to obtain a grandfathered right,” Griffin said in a statement. “This makes it challenging for residents to take the steps necessary to defend their own interests.”

Water users with wells that can pump more than 35 gallons per minute, called “non-exempt wells,” must apply if they want to keep using them.

There are 1,067 registered non-exempt wells in the Douglas AMA, according to ADWR. Some individuals and entities own several.

The agency expected to receive 300 to 400 applications, but by March 1 had only received 151, public information officer Shauna Evans said in an email.

The agency will do additional outreach now that the deadline has been extended.

What are grandfathered rights?

Most well owners within the Douglas basin already held these rights.

A certificate of grandfathered rights to groundwater shows the user was legally pumping from that well before 1980. It was necessary after the Legislature created an Irrigation Non-expansion Area in the basin. Without a certificate, users had no right to use the well.

Only wells pumping 35 gallons per minute or less — residential wells usually don’t exceed 15 gpm — are exempt.

But because the Douglas Basin changed from INA status to an Active Management Area, some well owners will need to apply for renewal.

Without a certificate, owners can’t use the water from wells that are not exempt from the regulation.

There’s another catch to farming under an AMA.

If, for some reason, producers were not irrigating a piece of land five years before the AMA was approved, they cannot put it back into irrigation, unless they prove there was a “substantial capital investment” made on the land within a year of the election.

ADWR has said there is no set criteria to decide if there was a “substantial” investment, and decisions are made on a case-by-case basis.

Because farmers need to submit this proof along with the grandfathered right application, the extension will grant them extra time.

By law, well owners had to apply no later than 15 months after the new voter-approved Douglas AMA was established in December 2022. That time frame was extended to 21 months with HB2016.

Hobbs said in a statement the approval of that deadline extension shows her “commitment to supporting rural communities in managing their groundwater.”

State appoints Douglas AMA advisors

The Douglas AMA is the sixth and newest in the state. Its goal is “to support the general economy and welfare of water users in the basin by reducing the rate of aquifer depletion.”

The AMA is meant to reduce groundwater use, though the amount and methods are not yet determined.

Around August, ADWR will issue its first informal draft of the Douglas AMA management plan. By statute, a plan needs to be approved by the end of the year. Water users won’t have to implement conservation requirements until 2027.

Five volunteer citizens will provide input to ADWR before the management plan is adopted. They are appointed by the governor, a condition that upset many residents and farming advocates who say such a topdown approach is undemocratic and who fear appointed individuals will be out of touch with local needs.

Members of the Groundwater Users Advisory Council, or GUAC, won’t have decision-making power.

“I’m confident that these local leaders who have volunteered to serve on the Groundwater Users Advisory Council will provide invaluable input as the water conservation programs are developed for the basin,” Hobbs said.