45-452

45-452. No new irrigated acreage in active
management areas; central Arizona project water; exemption

A. In an initial active management area, except as provided in subsections B, H, I
and J of this section and sections 45-172, 45-465.01 and 45-465.02, only acres of land
which were legally irrigated at any time from January 1, 1975 through January 1, 1980,
which are capable of being irrigated, which have not been retired from irrigation for a
non-irrigation use pursuant to section 45-463 or 45-469 and for which the irrigation
grandfathered right has not been conveyed for a non-irrigation use, may be irrigated with
any groundwater, effluent, diffused water on the surface or surface water, except that
this does not prohibit irrigation with surface water used pursuant to decreed or
appropriative rights established before June 12, 1980. In an initial active management
area, land which was not irrigated at any time from January 1, 1975 through January 1,
1980 is deemed to have been in irrigation if the director finds that either of the
following applies:

1. In areas of an initial active management area not designated as critical
groundwater areas under prior statutory law prior to the date of the designation of the
active management area, land is deemed to have been in irrigation if substantial capital
investment has been made for the subjugation of such land for an irrigation use including
on-site irrigation distribution facilities and a well or wells the drilling and
construction of which were substantially commenced prior to the date of the designation
of the active management area.

2. In areas of an initial active management area which were designated as critical
groundwater areas under prior statutory law, land is deemed to have been in irrigation if
substantial capital investment has been made in the twelve months before June 12, 1980
for the improvement of the land and on-site irrigation distribution facilities, including
the drilling of wells, for an irrigation use. This paragraph does not allow irrigation
of land which could not have been legally irrigated under prior statutory law.

B. In an initial active management area, a person who owns acres of land which may
be irrigated pursuant to subsection A of this section may apply to the director to
permanently retire all or a portion of such acres from irrigation and to irrigate
conjunctively with central Arizona project water the same number of substitute
acres. The director may approve the substitution of acres if the director determines
that all of the following exist:

1. The substitute acres were legally irrigated during the period of September 30,
1958 to September 30, 1968, or such other period as the United States secretary of the
interior may designate.

2. The acres to be retired from irrigation and the substitute acres are located
outside of the exterior boundaries of the service area of a city, town or private water
company and such acres are located within the same irrigation district and the same
sub-basin.

3. The substitution of acres is necessary to enable the irrigation district within
which the acres are located to more efficiently deliver central Arizona project water.

4. Central Arizona project water available to the irrigation district within which
the acres are located will be adequate to supply the substitute acres.

5. The substitution of acres will benefit the management of the active management
area in which the acres are located.

C. Any acres permanently retired from irrigation pursuant to subsection B of this
section relinquish their irrigation grandfathered rights, and such rights are deemed to
be appurtenant to the substitute acres. Groundwater withdrawn or received for the
irrigation of the substitute acres pursuant to an irrigation grandfathered right shall be
reduced by the amount of central Arizona project water received for such acres.

D. The service area of the irrigation district in which the acres are located shall
be modified to permanently delete the acres permanently retired from irrigation and
include the substitute acres.

E. If a person retires land from irrigation pursuant to subsection B of this
section, groundwater shall not be withdrawn from such retired land for any purpose unless
pursuant to a groundwater withdrawal permit or unless withdrawn by a city, town or
private water company within the service area of such city, town or private water
company.

F. The director may reverse the substitution of irrigated acres as provided by
subsections B through E of this section under the following conditions and procedures:

1. Title to the retired acres and substitute acres has reverted involuntarily, or
voluntarily in lieu of foreclosure or forfeiture, to a previous owner or owners of the
retired and substitute acres.

2. The current owner of the retired acres must apply to the director in writing
stating:

(a) The history of the original substitution of acres under subsections B through E
of this section.

(b) The circumstances regarding the reversion of title to the current owner or
owners.

(c) Why reversal of the substitution of acres is necessary.

3. The director must find that reversing the substitution of acres:

(a) Will benefit the management of the active management area.

(b) Is necessary to prevent unreasonable hardship to the current owner of the
retired acres.

(c) Will not cause unreasonable hardship to the current owner of the substitute
acres, if owned separately from the retired acres.

4. If the director decides to reverse the substitution of acres:

(a) The originally retired irrigation acres regain their original irrigation
grandfathered rights, but groundwater withdrawn or received for the irrigation of those
acres pursuant to an irrigation grandfathered right shall be reduced by any amount of
central Arizona project water received for such acres.

(b) The substitute acres relinquish all irrigation grandfathered rights that were
transferred to them under the original substitution of acres.

(c) The service area of the irrigation district in which the acres are located
shall be modified to delete the substitute acres and include the originally retired
irrigation acres.

(d) Groundwater may not thereafter be withdrawn from the substitute acres for any
purpose unless pursuant to a groundwater withdrawal permit or unless withdrawn by a city,
town or private water company within its service area.

G. In a subsequent active management area, except as provided in subsections H, I
and J of this section or section 45-172, only acres of land which were legally irrigated
at any time during the five years preceding the date of the notice of the initiation of
designation procedures or the call for the election, which are capable of being
irrigated, which have not been retired from irrigation for a non-irrigation use pursuant
to section 45-463 or 45-469 and for which the irrigation grandfathered right has not been
conveyed for a non-irrigation use, may be irrigated with groundwater, effluent, diffused
water on the surface or surface water, except that this does not prohibit irrigation with
surface water used pursuant to decreed or appropriative rights established before the
date of the notice or the call. In a subsequent active management area, land is deemed to
have been in irrigation if the director finds that either of the following applies:

1. In areas of a subsequent active management area which were not irrigation
non-expansion areas, land is deemed to have been in irrigation if substantial capital
investment has been made for the subjugation of such land for an irrigation use including
on-site irrigation distribution facilities and a well or wells the drilling and
construction of which were substantially commenced before the date of the notice of the
initiation of designation procedures or the call for the election.

2. In areas of a subsequent active management area which were irrigation
non-expansion areas, land is deemed to have been in irrigation if the director finds that
substantial capital investment has been made in the twelve months before the date of the
notice of the initiation of designation procedures or the call for the election, for the
improvement of the land and on-site irrigation distribution facilities, including the
drilling of wells, for an irrigation use. This paragraph does not allow irrigation of
land which could not have been legally irrigated under section 45-437.

H. In an active management area, a state university engaged in the teaching and
study of and experimentation in the science of agriculture may irrigate not more than
three hundred twenty acres of land for such purposes with not more than five acre-feet of
groundwater per acre per year. Water produced from any well pursuant to this subsection
shall not be leased, sold or transported off the irrigated land operated by the state
university. The right to withdraw and use groundwater pursuant to this subsection does
not require a withdrawal permit, is not a grandfathered right, shall not give rise to a
grandfathered right and may not be conveyed to any other user.

I. In an active management area, a correctional facility under the jurisdiction of
the state department of corrections may irrigate with groundwater, effluent, diffused
water on the surface or surface water up to a total of ten acres of land that otherwise
may not be irrigated pursuant to subsection A or G of this section if the irrigation is
for the purpose of producing plants or parts of plants for consumption by inmates at the
correctional facility as part of a prisoner work program and if the correctional facility
notifies the director of water resources in writing of the location of the acres of land
to be irrigated prior to their irrigation. The actual number of acres of land that a
correctional facility may irrigate pursuant to this subsection shall be calculated by
subtracting the number of acres of land the correctional facility may already irrigate
under subsection A or G of this section from ten. The amount of water that a
correctional facility may use during a year to irrigate acres of land pursuant to this
subsection shall not exceed an amount calculated by multiplying the number of acres of
land that are actually irrigated by the correctional facility during the year pursuant to
this subsection, by four and one-half acre-feet of water. The right to withdraw and use
groundwater pursuant to this subsection does not require an irrigation grandfathered
right, is not a grandfathered right, shall not give rise to a grandfathered right, and
may not be conveyed to any other user.

J. During the second management period, acres of land in an active management area
which have been retired from irrigation for a non-irrigation use pursuant to section
45-463 or 45-469 or for which the irrigation grandfathered right has been conveyed for a
non-irrigation use pursuant to section 45-472 may be irrigated with effluent, other than
effluent recovered pursuant to a recovery well permit issued under chapter 3.1 of this
title or effluent given or received pursuant to a water exchange under chapter 4 of this
title, and shall retain its appurtenant type 1 non-irrigation grandfathered right where
the following conditions are met:

1. The land to be irrigated lies within the boundaries of an incorporated city or
town.

2. The governing body or manager of the city or town has consented in writing to
the irrigation of the land with effluent.

3. The effluent proposed for irrigation of the land cannot be reasonably
beneficially used otherwise.

4. The owner of the land gives written notice to the director of intention to
irrigate the land with effluent and receives written approval from the director before
commencing irrigation. The notice shall set forth the legal description of the land to
be irrigated, the certificate number of the type 1 non-irrigation grandfathered right
appurtenant to the land, the source of effluent and the reasons the effluent cannot be
reasonably beneficially used otherwise, and shall be accompanied by a copy of the written
consent of the city or town in which the land to be irrigated is located.

K. A person who may irrigate with effluent land to which a type 1 non-irrigation
right is appurtenant under subsection J of this section may relinquish the right to
irrigate all or a portion of the land by giving the director written notice that the
person relinquishes the right. The notice shall include a legal description of the acres
to be relinquished. The relinquishment is effective upon receipt of the notice by the
director.

L. If a person who may irrigate with effluent land to which a type 1 non-irrigation
grandfathered right is appurtenant under subsection J of this section conveys all or a
portion of the land to a successor owner, the successor owner shall not irrigate the land
prior to providing written notification to the director of the successor owner's
intention to irrigate the land and receiving approval from the director pursuant to
subsection J of this section.

M. Section 45-114, subsections A and B govern administrative proceedings, rehearing
or review and judicial review of final decisions of the director under this section. If
an administrative hearing is held, it shall be conducted in the active management area in
which the use is located.