Water Law
Justice Holmes observed more than 70 years ago that "[a] river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it." New Jersey v. New York, 283 U.S. 336, 342 (1931). The wisdom of his statement is even more apparent today. Increasing urban demand in many cases conflicts with traditional uses of water, such as agriculture, fisheries, and hydropower production. In some regions of the country, unquantified and previously unutilized tribal water demands introduce further uncertainty and complexity.Fennemore Craig offers a varied and sophisticated water law practice to its clients.
Permitting and Compliance
The firm advises clients on compliance with regulatory and permitting matters involving federal, state and local laws, rules and policies, including the assured water supply program, water conservation requirements, Central Arizona Project issues, and the environmental implications of exercising water rights. Our attorneys assist clients in formulating strategies to protect and utilize water rights. We have negotiated and documented numerous water rights conveyances, water service agreements and water infrastructure instruments. We frequently conduct due diligence in connection with transactions involving the acquisition of water rights.
- James Johnson, Margaret Gallogly, and Robert Anderson were lead counsel in putting together a joint water supply study and agreement to do a comprehensive groundwater modeling of hydrologic conditions in the Hassayampa Basin west of Phoenix. To the knowledge of the people involved, this is the first cooperative effort of its kind in the United States, and it is hoped that it will be a paradigm for future cooperative efforts. Computer model has now been accepted by the State, and parties are negotiating appropriate use of the model.
- James Johnson, Margaret Gallogly, and Robert Anderson negotiated for development interests on the formulation of the Third Plan of Operations for the Central Arizona Groundwater Replenishment District. The goal was to clarify the projected demands on the District, its supplies and financial resources, and to develop and test alternatives for timely meeting the District’s responsibilities to different water using interests.
- Margaret Gallogly and Robert Anderson represented master-planned community developers in negotiating revisions to the assured water supply rules and in revision of replenishment obligations in the Pinal Active Management Area.
- James Johnson, Margaret Gallogly, and Robert Anderson developed and implemented strategy for obtaining water supplies for master-planned communities, including providing advice on sources of supply, obtaining permits, negotiating with municipality for service agreements, and obtaining certificates of assured water supply. This representation is on-going and includes multiple communities.
- Robert Anderson represented a landowner in securing certificates of assured water supply upfront for a 3200-acre master-planned community (rather than a phased basis).
- James Johnson and Robert Kramer were lead counsel in the negotiations of water related issues involved in the sale of a major Arizona master planned community.
Legislation and Regulation
Fennemore Craig has a long history of representing clients in drafting and negotiating water legislation. For example, its attorneys were among the principal draftsmen of Arizona’s Groundwater Management Act and the legislation giving rise to the Central Arizona Groundwater Replenishment District.
Litigation
The firm has experience in intra- and interstate water rights litigation. In addition to serving as trial counsel, our attorneys have been involved in negotiations to settle controversies. In some instances these efforts have produced important agreements among Indian and non-Indian claimants. Some of these agreements have received congressional approval.
Our attorneys also advise clients on water resource planning, and the interplay between utilization of water resources and the impact of various environmental laws. Significant recent activities include:
- Representation by Larry Caster of a client in successfully defending a 1935 federal water right decree in the context of the Gila River Adjudication. See In re General Adjudication of All Rights to Use Water in Gila River System and Source,, 127 P.3d 882 (Ariz.), reconsideration denied, 134 P.3d 375 (Ariz. 2006), cert. denied, 127 S. Ct. 928, 931 (2007).
- Representation by Larry Caster of clients opposing a claim by the Arizona State Land Department in both Adjudications to a federal reserved water right for millions of acres of state trust lands. The Special Master’s Report in those proceedings is awaiting review by the Superior Court. See Report of the Special Master, In re State Trust Lands, Contested Case No. W1 104, In re General Adjudication of All Rights to Use Water in Gila River System and Source, and Contested Case No. CV 6417 104, In re General Adjudication of All Rights to Use Water in Little Colorado River System and Source (Sept. 28, 2007).
- Representation by Larry Caster of clients in litigation over the United States’ claim to federal reserved water rights for Fort Huachuca, a military installation in southeastern Arizona. Argument on cross-motions for summary judgment was completed recently. In re Fort Huachuca, Contested Case No. W1 11 605, In re General Adjudication of All Rights to Use Water in Gila River System and Source. Attorney Larry Caster is active on behalf of clients in efforts to resolve various federal water right claims through settlement as well.
Additional Information
