Salt River Project Historic Water Use Agreements
Starting in October, 2017 the Salt River Project (SRP) contacted many Verde Ditch shareholders by mail regarding entering into Historic Water Use Agreements. According to SRP, these agreements are intended to help prevent potential water rights disputes and help protect the flow of the Verde River.
SRP’s efforts are a continuation of discussions we began with them in 2005. At the Verde Ditch Company annual shareholder meeting in October 2017, Master of the Verde Ditch, Judge David Mackey, encouraged the interested parties to continue to work together to find common ground.
While the Verde Ditch Commissioners cannot give Verde Ditch users legal advice regarding SRP’s Historic Water Use Agreement or their water rights issues, we do encourage ditch users to carefully consider SRP’s invitation and then each user should make the decisions they feel are best for their particular situations.
As Verde Ditch commissioners we are continuing our historic use research and ask you to assist us in gathering any historic information you have or are aware of. These can include items such as maps, documents, agreements and any other evidence you feel might be relevant. Currently we are contacting long time Verde Valley residents in hopes that they can provide us with history regarding water use in the past. If you know someone that may have knowledge of the history of the Verde Valley please contact us.
SRP’s efforts are a continuation of discussions we began with them in 2005. At the Verde Ditch Company annual shareholder meeting in October 2017, Master of the Verde Ditch, Judge David Mackey, encouraged the interested parties to continue to work together to find common ground.
While the Verde Ditch Commissioners cannot give Verde Ditch users legal advice regarding SRP’s Historic Water Use Agreement or their water rights issues, we do encourage ditch users to carefully consider SRP’s invitation and then each user should make the decisions they feel are best for their particular situations.
As Verde Ditch commissioners we are continuing our historic use research and ask you to assist us in gathering any historic information you have or are aware of. These can include items such as maps, documents, agreements and any other evidence you feel might be relevant. Currently we are contacting long time Verde Valley residents in hopes that they can provide us with history regarding water use in the past. If you know someone that may have knowledge of the history of the Verde Valley please contact us.
Verde Valley Water Certainty Initiative – Historic Water Use Agreements
Frequently Asked Questions (FAQ)
SRP is working with Verde Valley water users to help avoid future disputes over water use. More than 85% of lands irrigated today in the Verde Valley have evidence of Historic Water Use. SRP is willing to work with individual landowners to document these uses. Agreeing on long‐standing Historic Water Uses would be a great step toward a more secure water future. This could help prevent potential water rights disputes as well as help to protect the flow of the Verde River.
Q. What is the SRP Water Use Summary and why did I receive it?
The Water Use Summary is landowner specific summary prepared by SRP, which shows the area of Historic Water Use (HWU) based upon historic records such as maps, reports and photographs. In Arizona, water rights are appurtenant to specific land. The historic records provide the evidence to support, or sometimes dispute, ongoing water use. Currently SRP is working on Water Use Summaries with shareholders of the Verde Ditch Company (VDC), and intends to expand this opportunity to other ditch systems in the future.
Q. What is Historic Water Use and why is it important?
Historic Water Uses are those documented water uses:
Having Historic Water Use should be important to many landowners, because irrigated property generally has higher property values than non‐irrigated property. If those water uses are questionable, it can impact property value and sometimes cause problems during real‐estate transactions.
- which began on a particular parcel prior to June 12, 1919; or
- commenced after June 12, 1919 under a certificate of water right issued by the State of Arizona; or
- commenced after June 12, 1919 under a valid severance and transfer of a pre‐1919 water right or a post‐1919 certificate.
Having Historic Water Use should be important to many landowners, because irrigated property generally has higher property values than non‐irrigated property. If those water uses are questionable, it can impact property value and sometimes cause problems during real‐estate transactions.
Q. What is a Historic Water Use Agreement?
It is an agreement between SRP and a landowner where the two parties agree to the other’s historic uses. The HWU Agreement will provide landowners with greater legal certainty regarding the use of Verde River water on their property. The HWU Agreements will be recorded with the county, providing notice to existing and future landowners during the sale of a property.
Q. What does the Historic Water Use Agreement say?
SRP agrees to recognize and confirm a landowner’s Historic Water Use on the acres specified on a map. SRP agrees not to contest water use on those acres in the Adjudication and other forums. The landowner agrees not to expand water use beyond the recognized acres. The landowner also agrees not to contest SRP’s rights to store and use water within our project boundary.
Q. Who is eligible to participate in a Historic Water Use Agreement?
Right now SRP is focusing its efforts with those landowners on the Verde Ditch where there are no questionable uses. SRP will reach out to eligible landowners by mail.
Q. If I am eligible to participate, what is the process?
Eligible landowners will receive an invitation letter in the mail to call or email SRP. SRP will call the landowner to schedule a meeting, either in Camp Verde or in Tempe. At the meeting SRP will share the maps and photographs which show the areas Historic Water Use. SRP will share the HWU Agreement with the landowner. The landowner can take the agreement home and review it with family members, an attorney, etc. If the landowner wants to enter into the agreement they need to have a notary witness their signature, then return the agreement to SRP. SRP will then have the agreement recorded with Yavapai County and provide a recorded copy to the landowner. The landowner is in the driver’s seat the whole time. They choose if they want the agreement and when to sign.
Q. I’m interested in executing an agreement, who should I contact?
SRP is reaching out to landowners on a ditch‐by‐ditch basis, however, if individuals are interested in discussing a Historic Water Use Agreement for parcels they own they can contact us regarding eligibility.
Q. Did landowners under other ditches get a Water Use Summary?
Not yet. Verde Ditch Company landowners have been the first to receive Water Use Summaries, however, other Verde Valley ditches and water users have expressed interest in the process and SRP will begin to work with them next.
Q. As a landowner, is my participation in this process mandatory?
Absolutely not. This is a completely voluntary process, although there are significant benefits to doing so. For landowners with mutually recognized Historic Water Uses, signing an HWU Agreement with SRP will provide greater legal certainty for the water rights related to their property.
Verde Valley: Surface Water Rights Summary
The right to use water has often been a source of misunderstanding and conflict between cities, agricultural users, mining interests, and even neighbors throughout the western U.S. However, out of these conflicts emerged the core principles that guide western U.S. water laws today.
This summary is intended to provide a few of the basic concepts of surface water law in Arizona. This summary addresses general principles only and does not address specific nuances that can arise in particular situations. It summarizes general issues of water rights based upon state law only. It does not include a discussion of rights based upon federal law, such as federal reserved water rights, tribal claims, the evolving Arizona law of “subflow,” cones of depression or capture of underground water.
This summary is intended to provide a few of the basic concepts of surface water law in Arizona. This summary addresses general principles only and does not address specific nuances that can arise in particular situations. It summarizes general issues of water rights based upon state law only. It does not include a discussion of rights based upon federal law, such as federal reserved water rights, tribal claims, the evolving Arizona law of “subflow,” cones of depression or capture of underground water.
The Doctrine of Prior Appropriation
Early in its history, Arizona adopted the doctrine of Prior Appropriation to govern the use of surface water. In the western United States, water was (and is) a scarce and unpredictable resource. Western settlers quickly realized the limits of the surface water supply and the need for a system of allocation to help ensure those first diverting water were not adversely impacted by subsequent water users. The Prior Appropriation Doctrine is premised on “First in Time, First in Right”.
Prior Appropriation means generally that the person who utilizes surface water for a beneficial use first is entitled to their entire share based upon a historic beneficial use before the next person in the watershed receives whatever is left. Whether the water user is upstream or downstream from other water users is irrelevant when determining the “priority,” or the place-in-line, for water.
The Prior Appropriation doctrine also provides that surface water is "appurtenant to" or belongs to the land on which the beneficial use was established. This means that, absent forfeiture or abandonment, senior rights have priority for use over any junior rights. This system of priority extends to all users within each watershed. Senior users have first right to continue application of water on that specific parcel of land. Only under special conditions can surface water rights be transferred from one parcel of land to another. Therefore, a senior right in Camp Verde may have priority over users upstream or downstream that have junior rights, but only for the property with the historical use
Prior Appropriation means generally that the person who utilizes surface water for a beneficial use first is entitled to their entire share based upon a historic beneficial use before the next person in the watershed receives whatever is left. Whether the water user is upstream or downstream from other water users is irrelevant when determining the “priority,” or the place-in-line, for water.
The Prior Appropriation doctrine also provides that surface water is "appurtenant to" or belongs to the land on which the beneficial use was established. This means that, absent forfeiture or abandonment, senior rights have priority for use over any junior rights. This system of priority extends to all users within each watershed. Senior users have first right to continue application of water on that specific parcel of land. Only under special conditions can surface water rights be transferred from one parcel of land to another. Therefore, a senior right in Camp Verde may have priority over users upstream or downstream that have junior rights, but only for the property with the historical use
Establishment of a Legal Right to Surface Water
Prior to 1893, a person could acquire a surface water right simply by applying the water for a beneficial purpose and posting a notice of the appropriation at the point of diversion. Many of these notices were also recorded at the county courthouse. In 1893, a statute was passed prescribing the form of notice that was required. On June 12, 1919, the Arizona Public Water Code was enacted providing a formal process to establish a water right and provide legal notice. The 1919 code, with certain modifications, is still in effect today. This law provides that a person must apply for and obtain a permit in order to appropriate surface water after 1919.
Evidence Used to Determine an Historic Water Use
Water rights acquired after 1919 are relatively well documented because the person acquiring the right had to go through the statutory appropriation process with a state agency. Such agency documentation does not exist for pre-1919 rights because no application process was in place prior to adoption of the 1919 code.
Historic documents such as land patents, irrigation survey maps, and government reports are key pieces of evidence that help identify lands of “historic water use” for those lands irrigated before the 1919 Water Code. Throughout the last 100 years in Arizona, including the Verde Valley and Salt River Valley, there have been several efforts to describe and quantify the extent of irrigation and other water uses. For the Verde Valley, these include but are not limited to:
There are other historical documents that memorialize water uses for portions of lands in the Verde Valley.
Historic documents such as land patents, irrigation survey maps, and government reports are key pieces of evidence that help identify lands of “historic water use” for those lands irrigated before the 1919 Water Code. Throughout the last 100 years in Arizona, including the Verde Valley and Salt River Valley, there have been several efforts to describe and quantify the extent of irrigation and other water uses. For the Verde Valley, these include but are not limited to:
- Hancock Survey (1914): Harry L. Hancock, Court Water Commissioner, completed a survey of the Verde River and its tributaries to identify irrigation in the Verde Valley. This survey provided documentation on what lands were irrigated prior to 1914.
- Phelps Survey (1920): The H.D. Phelps survey mapped areas of cultivation in the Middle and Upper Verde Valley in conjunction with a lawsuit concerning smelter smoke damage to crops. This survey is particularly valuable since it represents a picture of land use closest to the passage of the 1919 Water Code.
- Holmquist Survey & Fairchild Aerial Photography (1934): In the 1930’s, the U.S. Bureau of Reclamation requested a survey of lands in the Verde Valley as part of a dam site study. This became known as the Holmquist Survey. This survey included 1934 aerial photographs of portions of the Verde Valley. The combination of the irrigation survey and the photographs are helpful for identifying irrigation and other water uses.
There are other historical documents that memorialize water uses for portions of lands in the Verde Valley.
Adjudicating Water Rights
General stream adjudications are judicial proceedings to determine the extent and relative priority of all water rights within an entire river system. Arizona is undertaking a general stream adjudication of both the Gila River and the Little Colorado River systems encompassing approximately 2/3’s of the State. All water uses in the Verde River Watershed are the subject of the Gila River General Stream Adjudication currently pending in the Superior Court of Maricopa County. This case commenced in 1974 and will ultimately decide the nature, extent and relative priority of all surface water rights in the Gila River Basin and the Little Colorado basin.
The Arizona Department of Water Resources (ADWR) serves as the technical arm of the adjudication court to investigate and verify all water claims. For various reasons, progress in the adjudication has been slow. Consequently, certain parties to the adjudication have taken an active role in working together with claimants in an attempt to identify and resolve potential conflicts outside of litigation.
The Arizona Department of Water Resources (ADWR) serves as the technical arm of the adjudication court to investigate and verify all water claims. For various reasons, progress in the adjudication has been slow. Consequently, certain parties to the adjudication have taken an active role in working together with claimants in an attempt to identify and resolve potential conflicts outside of litigation.
Conclusion:
Water will always be a paramount concern for all Arizona residents and property owners. While the claims to use surface water have long been the source of debate and disagreement, water issues also provide an opportunity for human ingenuity and people working together to provide a basis for resolution of conflicting claims rather than litigation. Understanding the right to use water will help create solutions to these issues and provide greater certainty for current users and those that will follow.
Water will always be a paramount concern for all Arizona residents and property owners. While the claims to use surface water have long been the source of debate and disagreement, water issues also provide an opportunity for human ingenuity and people working together to provide a basis for resolution of conflicting claims rather than litigation. Understanding the right to use water will help create solutions to these issues and provide greater certainty for current users and those that will follow.
A record of the MOU outcome can be found here:
For any SRP related questions, please contact:
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Lucas Shaw
Water Rights Analyst SRP | Water Rights | Mailstop PAB56T P.O. Box 52025, Phoenix, AZ 85072-2025 P: (602) 236-3228 | M: (623) 850-1313 |