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State senate approves exception to water law

House Speaker Rusty Bowers crafted legislation to decriminalize unwittingly using water that belongs to another entity. (Capitol Media Services photo by Howard Fischer)

House Speaker Rusty Bowers crafted legislation to decriminalize unwittingly using water that belongs to another entity. (Capitol Media Services photo by Howard Fischer)

PHOENIX – State senators approved legislation Tuesday crafted by House Speaker Rusty Bowers who said on Tuesday will help keep thousands of Arizonans out of jail.

Himself included.

HB 2475, approved on a 17-13 party-line vote seeks to create an exception to laws that make it a crime when a well owner “uses water to which another is entitled.’’ Violators can end up jailed for up to four months and face a $750 fine.

The problem, Bowers told colleagues, is that people drill wells in hopes of hitting groundwater.

But what they don’t – and can’t – know, he said, is whether they’ve actually tapped into a subsurface flow. And that water, like surface water, is allocated according to different laws.

Most significantly, he pointed out that the state remains in the middle of a multi-decade legal process to determine who has the rights to certain surface waters. And that, said Bowers, could mean subsurface flows actually belong to tribes or other entities.

Bowers said that may be the case with the new well he drilled two years ago.

“We don’t know where that water comes from,’’ he testified during hearings earlier this year. “It could be coming from the river, being forced up by capillary action.’’

More to the point, Bowers said it would be wrong “to hold me criminally liable because I’m now getting water.’’

The speaker said, though, it’s not just about him.

“There are tens of thousands of people like the Bowers family that now have wells all through the Verde Valley, the San Pedro,’’ he said, people who are at risk if it’s later determined that the water they’re getting comes from the subsurface flow and is not theirs.

“What we don’t want is somebody that says, ‘Ah ha!’ those 10,000 people in the Verde Valley who have these wells, and if it is adjudicated by modeling to say that’s subflow, they are criminals and will be treated accordingly,’’ Bowers said. “Well, I don’t want that to happen.’’

Sandy Bahr, president of the local chapter of the Sierra Club, said HB 2475 is a bad idea because it perpetuates the distinction that there’s really no connection between groundwater and surface flows.

“We’ve seen rivers and streams literally pumped dry,’’ she said.

Bahr said she appreciates that the measure has been amended to say the criminal penalty would not apply if the person who owns the well was using subflow “without knowledge.’’ And Bowers said those who inadvertently tap into a subflow can still be sued in civil court and either to pay a fee to the rightful owners of the water or be forced to stop pumping.

But Bahr said there needs to be better recognition of the fact that the state has a role in protecting the water.

Sen. Juan Mendez, D-Tempe, had his own concerns about eliminating criminal penalties.

“I can’t understand how you can unwittingly kill a river,’’ he said.

The measure now goes back to the House, which had approved a similar but not identical version.

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