By Alexander Kolodin |
Across rural Arizona, wells are going dry. Unmitigated groundwater pumping is depleting aquifers and leaving rural communities helpless.
In places like Sunizona and Salome, large industrial users are to blame. As corporate interests come in and drill thousands of feet deep, everyday residents on the surface are left with dwindling supplies.
Meanwhile, in areas like Prescott and Paulden, it is the proliferation of domestic wells that is putting strain on the local aquifers. As new residents move in, they drill faster than nature can keep up, adding hundreds of new wells without considering the impact to existing residents.
Rural groundwater is a “tragedy of the commons”
All of these challenges reflect one simple fact: Arizona’s groundwater basins are limited, subterranean resources with multiple landowners on the surface.
If anyone with a well can access the common supply, then there is nothing stopping people from pumping themselves—or each other—dry. That’s what legal scholars call the “tragedy of the commons.”
Lack of private property rights is the problem
The cause of this tragedy is not the large industrial users or new residents themselves, but rather the legal system that allows new users to come in, drill new wells, and pump more groundwater without having to demonstrate a water right first.
This is not accidental. It is the consequence of the “beneficial use” doctrine discussed in Part 1, which eliminated John Locke’s “no harm” principle and the “right to exclude” others from the groundwater beneath our feet.
As Arizona Justice Duke Cameron explained in his 1976 dissent, beneficial use “encourages wasteful over-consumption and proclaims a right that cannot be protected.”
“Two adjacent landowners may pump each other dry to the detriment of themselves and everyone else,” noting that “access to water is not based on ‘first in time, first in right’ … [but] rather … by a race for consumption controlled … by … the physical ability to extract water from the common supply.”
“To the small or family farmer,” he concluded, “[T]he right to water then becomes a cruel illusion, proclaimed by law, but unobtainable in practice.”
People know something is wrong
Rural residents understand intuitively that the lack of property rights is the cause of this situation, but no one has been willing to articulate their desired solution in clear terms—until now.
When rural residents say things like “we were here first,” “they’re coming into the basin,” and “they’re taking our water,” they are not asking for more bureaucratic regulation or government control; they are calling for prior appropriation.
Under prior appropriation, whoever is there first wins
Qui prior est tempore potior est jure. It means: “First in time, first in right,” and it represents the system of property law used in western states to effectively allocate shares of surface water, like streams and rivers, to landowners based on who was there first.
Under prior appropriation, when a user diverts water first, the user receives a senior right and can force others to cut back in times of need—avoiding the tragedy of the commons in streams and rivers.
When it’s applied to groundwater, senior users can prevent others from drilling new wells if there isn’t enough to go around, thereby protecting existing rights and upholding John Locke’s “no harm” principle.
This is exactly what residents in places like Prescott and Paulden have been asking for.
Arizona had a chance to adopt prior appropriation
Between 1931 and 1969, nearly all western states—including Utah, Colorado, Nevada, Wyoming, and New Mexico—applied prior appropriation to groundwater. But Arizona did not, making it the only state in the broader Colorado River basin that does not recognize priority rights to groundwater.
When the Court was evaluating Bristor v. Cheatham in 1953, it had a chance to adopt prior appropriation, but it chose beneficial use instead, leading to the bifurcated system we have today.
This was the ‘original sin’ of Arizona groundwater law
From this misguided decision, all other groundwater challenges have followed.
From the growth of industrial agriculture in Sunsites and Salome to the proliferation of domestic wells in Prescott and Paudlen, all of Arizona’s most pressing challenges can be traced back to this fateful decision.
Had the Court established prior appropriation, many of these challenges could have been avoided. Residents in Sunizona and Salome could have stopped new industrial operations from coming in, while residents in Prescott and Paulden could have stopped new residential wells from being drilled.
Unfortunately, it’s too late to adopt prior appropriation today. Doing so would require a complete legal overhaul and would likely take years to implement.
And even if it could be implemented, there are very real questions about how it would work, such as whether thousands of well owners could be forced to cut back if a single, shallow well owner went dry. Additionally, prior appropriation is subject to the “use it or lose it” rule, which is not ideal for finite groundwater resources if the goal of adopting a new framework is to promote conservation.
Despite these challenges, some form of private property rights is needed; without them, there is little that rural residents can do to stop the tragedy of the commons from occurring in their basins.
Restoring private property rights is the only way
To truly address the tragedy of the commons, we must recognize it for what it is and explore solutions that are specifically designed to address it.
Ultimately, Arizona will be required to choose between two fundamentally different futures: one ruled by centralized bureaucratic control, or one that restores real, enforceable rights to the groundwater beneath the surface, allowing landowners to protect and conserve their supplies for future generations.
Without such a solution, the right to water will remain nothing more than a cruel illusion, “proclaimed by law, but unobtainable in practice.”
Alexander Kolodin serves Legislative District 3 in the Arizona State House and has been practicing election law in Arizona for over a decade. He is currently running to be Arizona’s next Secretary of State.
