PHOENIX — A new law signed 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.
That exception bothered several lawmakers.
Rep. Noel Campbell, R-Prescott, said he has no problem immunizing those who already 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 law 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 it was 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,” by claiming “I didn’t know this was against the law,” Blanc said.
And Rep. Kirsten Engel, D-Tucson, said the law “undercuts private property rights.”
The legislation was pushed by House Speaker Russell Bowers, R-Mesa. He argued that those who drill wells don’t — and can’t — know whether they’ve tapped into a subsurface flow. 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 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.”
Bowers said he drilled a new well two years ago himself. “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.”
Bowers said there are “tens of thousands of people” who face similar risk.