A new law signed Thursday by Gov. Doug Ducey is designed to provide legal protections to those who drill wells into underground streams they are not legally entitled to tap.
The measure repeals existing laws that make it a crime when a well owner “uses water to which another is entitled.” That law, until now, has subjected violators to up to four months in jail and a $750 fine.
Now, that criminal penalty will be available only when someone knew they were breaking the law.
But that exception bothered several lawmakers.
Rep. Noel Campbell, R-Prescott, said he has no problem immunizing those who already have put wells into the ground, only to find out that they have dipped into a subsurface flow that doesn’t belong to them.
Campbell, however, said he wanted a provision included in the legislation to tell those who have yet to drill a well that they would be subject to criminal penalties if they ended up tapping into someone else’s water. It was not included.
Rep. Isela Blanc, D-Tempe, said she fears the new law will create a loophole for the unscrupulous.
She pointed out that it would be a defense to criminal charges that the well was drilled without knowledge that it was actually taking water from a subsurface flow.
“That would make it very easy for certain groups or organizations or people to do something unethically and get away with it,” Blanc said, by claiming “I didn’t know this was against the law.”
And Rep. Kirsten Engel, D-Tucson, said the law “undercuts private property rights.”
The legislation was pushed by House Speaker Rusty Bowers, R-Mesa. He argued that those who drill wells don’t – and can’t – know whether they’ve actually tapped into a subsurface flow. And that water, like surface water, is allocated not based on who owns the land but on different laws about who has the right to use it.
Bowers said the state is still trying to determine who has the rights to certain surface and subsurface waters.
He said some of the water rights at issue actually could turn out to belong to tribes. Bowers said there’s no reason to subject well drillers to criminal liability if it turns out that what they’re pumping “contains one molecule of subflow.”
That includes Bowers himself who said he drilled a new well 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.”
But Bowers said there are “tens of thousands of people” who face similar risk, especially in the Verde Valley and the San Pedro watershed.