45-464

45-464. Type 2 non-irrigation grandfathered
right not associated with retired irrigated land; determination of
amount; definition; ownership

A. In an active management area, a person who owns land from which groundwater was
being legally withdrawn and used for a non-irrigation purpose as of the date of the
designation of the active management area has the right to withdraw annually:

1. If the person holds a certificate of exemption, the greater of:

(a) The amount of groundwater established in proceedings on the application for
certificate of exemption, subject to any modification as a result of a finding on appeal
of a factual mistake by the state land department or Arizona water commission in
computing the amount of the authorized withdrawal, less the amount of any right obtained
by the person pursuant to section 45-463.

(b) The maximum amount of groundwater legally withdrawn from such land and used by
the person in any one of the five years preceding the date of the designation of the
active management area, less the amount of any right obtained by the person pursuant to
section 45-463.

2. If the person does not hold a certificate of exemption, the maximum amount of
groundwater legally withdrawn from such land and used by the person withdrawing the
groundwater in any one of the five years preceding the date of the designation of the
active management area, less the amount of any right obtained pursuant to section 45-463
by the person withdrawing groundwater from such land which has not been subtracted by the
person withdrawing the groundwater in calculating the amount of another right pursuant to
this section.

B. If the calculation in subsection A of this section results in an amount greater
than zero, that amount is a grandfathered right in addition to any right obtained
pursuant to section 45-463.

C. For the purposes of this section, "person" includes:

1. A city, town or private water company which owns land outside of the service
area of such city, town or private water company from which groundwater was being legally
withdrawn for a non-irrigation use as of the date of the designation of the active
management area.

2. A city, town or private water company withdrawing groundwater from within its
service area pursuant to a certificate of exemption.

3. Any other non-irrigation user.

D. If a person has been using groundwater for less than one year during the twelve
months immediately preceding the date of the designation of the active management area,
the amount of the grandfathered right pursuant to this section is the annual amount
determined by the director to be reasonable for a full year to meet the requirements for
a facility owned by such person in existence as of the date of the designation of the
active management area.

E. If a person has received a certificate of environmental compatibility pursuant
to title 40, chapter 2, article 6.2 for the construction of an electrical generating
facility within a subsequent active management area for which expenditures or financial
commitments for land acquisition, water development, materials, construction or
engineering in excess of five hundred thousand dollars have been made before the date of
the notice of the initiation of designation procedures or the call for the election for
the area, the amount of the grandfathered right pursuant to this section is the annual
amount determined by the director to be reasonable to meet the operational requirements
for the facility for a full year.

F. The right to withdraw groundwater pursuant to this section is a non-irrigation
grandfathered right not associated with retired irrigated land, or a type 2
non-irrigation grandfathered right.

G. A type 2 non-irrigation grandfathered right may be leased. Except as provided
in subsection H of this section, the owner or lessee of a type 2 non-irrigation
grandfathered right may withdraw groundwater pursuant to the right only from a location
within the same active management area in which the certificate of grandfathered right is
issued.

H. Beginning July 1, 1994, the holder of a type 2 non-irrigation grandfathered
right issued in the Tucson active management area prior to July 1, 1994, may withdraw
groundwater pursuant to the right only from a location within the same active management
area in which the well or wells listed on the certificate of grandfathered right on July
1, 1994, are located. If no well is listed on the certificate of grandfathered right on
July 1, 1994, the holder of the right may withdraw groundwater pursuant to the right only
from a location within the same active management area in which the land from which the
originating withdrawals were made is located. For purposes of this subsection, the term
"originating withdrawals" means the withdrawals of groundwater on which the issuance of a
type 2 non-irrigation grandfathered right was based.

I. If the user of a type 2 non-irrigation grandfathered right is different from the
owner of the right, either the owner, or the user of the right on behalf of the owner,
may apply for a certificate of grandfathered right pursuant to section 45-476.