Key Regulations Impacting Land & Water Use

Due to water adjudication decisions and the need to supply water resources to downstream users, including the San Carlos Apache Tribal Nation, limitations are placed on the amount and quality of water that can be used from, and must be returned to, the river. Approval is required from national (EPA, USACE, BLM), state (ADWR), and/or local (irrigation district) regulatory authorities prior to diverting, withdrawing, impounding, or disturbing any surface water. The size of the project or the volume of water to be used may determine what regulatory agency needs to be contacted. Before any digging, diking, or water use, contact your local irrigation district (for smaller projects) or ADWR (for larger projects)

Federal Laws Impacting Land and Water Use

Clean Water Act 

(33 U.S.C. §1251 et seq.) (1972) 

The Clean Water Act (CWA), passed in 1972, is the basic mechanism for regulating pollution into the waters of the United States, aiming “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into waters and wetlands of the United States, and requires a permit before dredged or fill material may be discharged, unless the activity is exempt (e.g. certain farming and forestry activities). This section of the CWA is administered by the U.S. Army Corps of Engineers (USACE), and enforced by the U.S. Environmental Protection Agency (EPA). USACE permits are required for any work that can influence river channel hydraulics and flood protection, and could include: the use of fill for development, water resource projects (such as dams and levees), filling or draining of wetland soils, and infrastructure construction. During the permit process, USACE considers the views of other federal, state, and local agencies, interest groups, and the general public to allow for fair and equitable decisions that allow for reasonable use of private property, while offsetting detrimental impacts to the river channel.

In 2015, EPA and USACE published the final Clean Water Rule defining the “Waters of the United States” (WOTUS) that are protected under the CWA. The rule does not establish regulatory requirements, but clarifies the scope of protected waters and aims to simplify the implementation of the CWA. The final Clean Water Rule definition of “Waters of the United States” can be found in the June 29, 2015 Federal Register notice.

Information on permit applications with the USACE can be found HERE. 

National Environmental Policy Act 

(2 U.S.C. §4321 et seq.) (1969) 

The National Environmental Policy Act (NEPA), passed in 1970, requires an assessment for any activities taking place on federal land or being conducted by federal agencies that are thought to have an impact on the environment. For an activity that is determined to require NEPA compliance, one Federal agency takes the lead advisory role in the assessment process (and has primary decision-making responsibilities), while other related agencies provide supporting roles. The first step in the NEPA compliance process is an “environmental assessment”, an initial and basic review of environmental impacts; if the environmental assessment reveals that the proposed activity would negatively impact the environment, then a more in-depth analysis is required – the findings of which are prepared as an “environmental impact statement” (EIS). In this process, the lead agency prepares a notice of intent in the Federal Register (which then allows for public comment), followed by a defined “purpose of need” for the action (a critical step that allows for the proposal and scoping of alternatives). In addition to effects on the environment, social and economic impacts must also be accounted for in the EIS. Once a draft EIS is developed, and after it has been open for public comment for at least forty-five days, a final report is published. At this point, the U.S. Council on Environmental Quality (in conjunction with EPA) determines whether the activity can proceed as originally intended or whether one of the proposed alternatives is a more environmentally sound path. With large tracts of federal land (USFS and BLM), NEPA processes could influence areas of the Upper Gila River Watershed.

Generally applied to federally constructed projects (e.g., buildings, highways, parkland purchases, or other federal activities), NEPA will only influence your plans on private land if your project will result in major alterations to sensitive areas along the river.

More information on NEPA is available through EPA.

Endangered Species Act 

(16 U.S.C. § 1531 et seq.) (1973)

The Endangered Species Act (ESA) is administered by the U.S. Fish and Wildlife Service (USFWS), and is intended to protect critically imperiled species from extinction. Twenty-two endangered species are found in the Upper Gila Watershed, seven of which have USFWS-designated critical habitat in the watershed, including the southwestern willow flycatcher and four fish species: Gila chub, loach minnow, spikedace, and razorback sucker. As the Gila River and its riparian lands support these endangered species, the removal and/or alteration of riparian vegetation may require USFWS permitting and approval prior to work commencement. 

Arizona State Water Laws with Potential Impact on Land Use

The volume of water available to you in a given season or year is controlled by established groundwater and surface water policies. In the western U.S., surface water is allocated based on “prior appropriation,” often described as “first in time, first in right,” a water management system where the first owners and utilizers of the water resource are given senior rights over newer users. These legislative mandates are controlled through federal agencies and additional state legislative requirements.

If a land has been previously decreed then groundwater pumping and/or surface water flows are allowed to be used on the land, with the water rights tied to the land parcel. This water must be put to a “reasonable or beneficial use,” which can include domestic, municipal, irrigation, stock watering, water power, recreation, and wildlife uses. If decreed water is not used for five years, water allocations can be decreased according to the Arizona Land Abandonment clause. If the land is lost (e.g., due to flooding and shifting of the river channel) the water right can be lost, but if the land is reclaimed the water right remains intact (9th circuit court).

Additional detail about legislation governing surface water and groundwater use in the Upper Gila River Watershed can be found in the Arizona Cooperative Extension bulletin, Wet Water and Paper Water in the Upper Gila River Watershed, available here.

For more information on the legislation that outlines the rules and boundaries of the Gila River maintenance area impact zone, review:

Arizona Revised Statute 45-2603

Arizona Revised Statute 45-2641