A.R.S. tit. 45 ch. 2 — Arizona Revised Statutes Title 45 Chapter 2 — Groundwater Code

45-401. Declaration of policy A. The legislature finds that the people of Arizona are dependent in whole or in part upon groundwater basins for their water supply and that in many basins and sub-basins withdrawal of groundwater is greatly in excess of the safe annual yield and that this is threatening to destroy the economy of certain areas of this state and is threatening to do substantial injury to the general economy and welfare of this state and its citizens. The legislature further finds that it is in the best interest of the general economy and welfare of this state and its citizens that the legislature evoke its police power to prescribe which uses of groundwater are most beneficial and economically effective. B. It is therefore declared to be the public policy of this state that in the interest of protecting and stabilizing the general economy and welfare of this state and its citizens it is necessary to conserve, protect and allocate the use of groundwater resources of the state and to provide a framework for the comprehensive management and regulation of the withdrawal, transportation, use, conservation and conveyance of rights to use the groundwater in this state. 45-402. Definitions In this chapter, unless the context otherwise requires: 1. "Accounting period" means the calendar year, except such other twelve-month period as may be otherwise agreed on by the director and the owner of a farm or a district on behalf of its landowners. 2. "Active management area" means a geographical area that has been designated pursuant to article 2 of this chapter as requiring active management of groundwater or, in the case of the Santa Cruz active management area, active management of any water, other than stored water, withdrawn from a well. 3. "Animal industry use" means the production, growing and feeding of livestock, range livestock or poultry, as such terms are defined in section 3-1201. Animal industry use is included in the term and general treatment of industry in this chapter, unless specifically provided otherwise. 4. "City" or "town" means a city or town incorporated or chartered under the constitution and laws of this state. 5. "Conservation district" means a multi-county water conservation district established under title 48, chapter 22. 6. "Convey" means to transfer the ownership of a grandfathered right from one person to another. 7. "Date of the designation of the active management area" means: (a) With respect to an initial active management area, June 12, 1980. (b) With respect to a subsequent active management area, the date on which the director's order designating the active management area becomes effective as provided in section 45-414 or the date on which the final results of an election approving the establishment of the active management area pursuant to section 45-415 are certified by the board of supervisors of the county or counties in which the active management area is located. 8. "Exempt well" means a well that has a pump with a maximum capacity of not more than thirty-five gallons per minute and that is used to withdraw groundwater pursuant to section 45-454. 9. "Expanded animal industry use" means increased water use by an animal industrial enterprise on the land in use by the enterprise on June 12, 1980 or on immediately adjoining land, excluding irrigation uses. 10. "Farm" means an area of irrigated land that is under the same ownership, that is served by a water distribution system common to the irrigated land and to which can be applied common conservation, water measurement and water accounting procedures. 11. "Farm unit" means: (a) With respect to areas outside an active management area and with respect to an active management area other than the Santa Cruz active management area, one or more farms that are irrigated with groundwater and that are contiguous or in proximity to each other with similar soil conditions, crops and cropping patterns. (b) With respect to the Santa Cruz active management area, one or more farms that are irrigated with water, other than stored water, withdrawn from a well and that are contiguous or in proximity to each other with similar soil conditions, crops and cropping patterns. 12. "Grandfathered right" means a right to withdraw and use groundwater pursuant to article 5 of this chapter based on the fact of lawful withdrawals and use of groundwater before the date of the designation of an active management area. 13. "Groundwater basin" means an area that, as nearly as known facts allow as determined by the director pursuant to this chapter, may be designated so as to enclose a relatively hydrologically distinct body or related bodies of groundwater, which shall be described horizontally by surface description. 14. "Groundwater replenishment district" or "replenishment district" means a district that is established pursuant to title 48, chapter 27. 15. "Groundwater withdrawal permit" means a permit issued by the director pursuant to article 7 of this chapter. 16. "Initial active management area" means the Phoenix, Prescott or Pinal active management area established by section 45-411, the Tucson active management area established by section 45-411 and modified by section 45-411.02 and the Santa Cruz active management area established by section 45-411.03. 17. "Integrated farming operation" means: (a) With respect to land within an irrigation non-expansion area, more than ten acres of land that are contiguous or in close proximity, that may be irrigated pursuant to section 45-437, that are not under the same ownership and that are farmed as a single farming operation. (b) With respect to land within an active management area, two or more farms that are contiguous or in close proximity, that collectively have more than ten irrigation acres and that are farmed as a single farming operation. 18. "Irrigate" means to apply water to two or more acres of land to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock or poultry, as such terms are defined in section 3-1201. 19. "Irrigation acre" means an acre of land, as determined in section 45-465, subsection B, to which an irrigation grandfathered right is appurtenant. 20. "Irrigation district" means a political subdivision, however designated, established pursuant to title 48, chapter 17 or 19. 21. "Irrigation grandfathered right" means a grandfathered right determined pursuant to section 45-465. 22. "Irrigation non-expansion area" means a geographical area that has been designated pursuant to article 3 of this chapter as having insufficient groundwater to provide a reasonably safe supply for the irrigation of the cultivated lands at the current rate of withdrawal. 23. "Irrigation use" means: (a) With respect to areas outside an active management area and with respect to an active management area other than the Santa Cruz active management area, the use of groundwater on two or more acres of land to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock or poultry, as such terms are defined in section 3-1201. (b) With respect to the Santa Cruz active management area, the use of water, other than stored water, withdrawn from a well on two or more acres of land to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock or poultry, as such terms are defined in section 3-1201. 24. "Irrigation water duty" or "water duty" means the amount of water in acre-feet per acre that is reasonable to apply to irrigated land in a farm unit during the accounting period, as determined by the director pursuant to sections 45-564 through 45-568 or as prescribed in section 45-483. 25. "Member land" means real property that qualifies as a member land of a conservation district as provided by title 48, chapter 22. 26. "Member service area" means the service area of a city, town or private water company that qualifies as a member service area of a conservation district as provided by title 48, chapter 22. 27. "Non-irrigation grandfathered right" means a grandfathered right determined pursuant to section 45-463, 45-464, 45-469 or 45-472. 28. "Non-irrigation use" means: (a) With respect to areas outside an active management area and with respect to an active management area other than the Santa Cruz active management area, a use of groundwater other than an irrigation use. (b) With respect to the Santa Cruz active management area, a use of water, other than stored water, withdrawn from a well, other than an irrigation use. 29. "Person" means an individual, public or private corporation, company, partnership, firm, association, society, estate or trust, any other private organization or enterprise, the United States, any state, territory or country or a governmental entity, political subdivision or municipal corporation organized under or subject to the constitution and laws of this state. 30. "Private water company" means: (a) With respect to areas outside an active management area and with respect to an active management area other than the Santa Cruz active management area, any entity that distributes or sells groundwater, except a political subdivision or an entity that is established pursuant to title 48 and that is not regulated as a public service corporation by the Arizona corporation commission under a certificate of public convenience and necessity. A city or town is not a private water company. (b) With respect to the Santa Cruz active management area, any entity that distributes or sells water, other than stored water, withdrawn from a well, except a political subdivision or an entity that is established pursuant to title 48 and that is not regulated as a public service corporation by the Arizona corporation commission under a certificate of public convenience and necessity. A city or town is not a private water company. 31. "Service area" means: (a) With respect to a city or town, the area of land actually being served water, for a non-irrigation use, by the city or town plus: (i) Additions to such area that contain an operating distribution system owned by the city or town primarily for the delivery of water for a non-irrigation use. (ii) The service area of a city, town or private water company that obtains its water from the city pursuant to a contract entered into before the date of the designation of the active management area. (b) With respect to a private water company, the area of land of the private water company actually being served water, for a non-irrigation use, by the private water company plus additions to such area that contain an operating distribution system owned by the private water company primarily for the delivery of water for a non-irrigation use. 32. "Service area of an irrigation district" means: (a) With respect to an irrigation district that was engaged in the withdrawal, delivery and distribution of groundwater as of the date of the designation of the active management area, the area of land within the boundaries of the irrigation district actually being served water by the irrigation district at any time during the five years preceding the date of the designation of the active management area plus any areas as of the date of the designation of the active management area within the boundaries of the irrigation district that contain an operating system of canals, flumes, ditches and other works owned or operated by the irrigation district. The service area may be modified pursuant to section 45-494.01. (b) With respect to an irrigation district that was not engaged in the withdrawal, delivery and distribution of groundwater as of the date of the designation of the active management area: (i) The acres of member lands within the boundaries of the irrigation district that were legally irrigated at any time from January 1, 1975 through January 1, 1980 for initial active management areas or during the five years preceding the date of the designation of the active management area for subsequent active management areas. (ii) Any areas of land that contain an operating system of canals, flumes, ditches and other works owned or operated by the irrigation district for the withdrawal, delivery and distribution of water, except that additional areas containing an operating system of canals, flumes, ditches and other works owned or operated by the irrigation district may not be added after December 31, 2027. 33. "Stored water" means water that is stored underground for the purpose of recovery pursuant to a permit issued under chapter 3.1 of this title. 34. "Subbasin" means an area that, as nearly as known facts allow as determined by the director pursuant to this chapter, may be designated so as to enclose a relatively hydrologically distinct body of groundwater within a groundwater basin, which shall be described horizontally by surface description. 35. "Subsequent active management area" means an active management area established after June 12, 1980 pursuant to article 2 of this chapter. 36. "Subsidence" means the settling or lowering of the surface of land that results from the withdrawal of groundwater. 37. "Transportation" means the movement of groundwater from the point of withdrawal to the point of use. 38. "Type 1 non-irrigation grandfathered right" means a non-irrigation grandfathered right associated with retired irrigated land and determined pursuant to section 45-463, 45-469 or 45-472. 39. "Type 2 non-irrigation grandfathered right" means a non-irrigation grandfathered right not associated with retired irrigated land and determined pursuant to section 45-464. 40. "Water district" means an active management area water district that is established under title 48, chapter 28 and that has adopted an ordinance or resolution to undertake water district groundwater replenishment obligations as defined and used in title 48, chapter 28, article 7. 41. "Water district member land" means real property that qualifies as water district member land of a water district as provided by title 48, chapter 28. 42. "Water district member service area" means the service area of the city, town or private water company that qualifies as a water district member service area of a water district as provided by title 48, chapter 28. 43. "Well" means a man-made opening in the earth through which water may be withdrawn or obtained from beneath the surface of the earth except as provided in section 45-591.01. 45-403. Designation of groundwater basins and sub-basins; hearing A. Within eighteen months of the effective date of this section, the director shall propose boundaries for all groundwater basins and sub-basins of groundwater basins in this state not included within initial active management areas established pursuant to section 45-411. B. Within twenty-four months of the effective date of this section, the director shall hold public hearings to consider the final boundaries of groundwater basins and sub-basins in this state not included within initial active management areas established pursuant to section 45-411. The director shall give reasonable notice of the hearing appropriate to the circumstances which shall include the publication once each week for two consecutive weeks in a newspaper of general circulation in each county in which the proposed groundwater basin is located. Any notice shall contain the time and place of the hearing, the legal description and a map clearly identifying and describing all lands to be included in the proposed groundwater basin and any sub-basin and any other information the director deems necessary. C. The hearings shall be held at the county seat of the county in which the major portion of the land in the proposed groundwater basin is located as soon as practicable but no less than thirty days and no more than sixty days after the first publication of the notice of the hearing. At the hearing, the director shall present the factual data in his possession in support of the proposed action. Any person may appear at the hearing, either in person or by representative, and submit oral or documentary evidence for or against the proposed action. In making his determination, the director shall give full consideration to public comment and to recommendations made by local political subdivisions. 45-404. Findings on hearing; maps; order for boundaries of groundwater basin; review and modification of boundaries A. Within sixty days after the hearing, the director shall make and file in the director's office written findings with respect to matters considered during the hearing. For each groundwater basin, the director shall prepare and file in the director's office: 1. A map clearly identifying all lands included within the groundwater basin and its sub-basins. 2. Factual data justifying the boundaries of the groundwater basin and its sub-basins. 3. An order designating the boundaries of each groundwater basin and its sub-basins. B. The findings and order shall be published in the manner and for the length of time prescribed for the publication of notice of the public hearing, and the order is effective when published for the final time. The materials required by subsection A of this section and a transcript of the hearing are public records of the department and shall be available for examination by the public during regular business hours. The findings and order of the director are subject to rehearing or review and to judicial review as provided in section 45-114, subsection C. C. The director shall file a true copy of the map in the office of the county recorder of the county or counties in which the groundwater basin is located. D. The director may, as conditions require and factual data justify, review and modify the boundaries of any groundwater basin or any sub-basin of a groundwater basin except for groundwater basins and sub-basins of a groundwater basin that are included within an initial active management area. The review and modification of boundaries of a groundwater basin or sub-basin included within a subsequent active management area or irrigation non-expansion area shall follow procedures set forth in sections 45-417 and 45-438. Any modification of boundaries designated pursuant to this article shall follow as closely as practicable the procedural requirements of section 45-403 and this section. 45-405. Judicial review of decisions of the director; assignment of actions for judicial review A. This section and sections 45-406 and 45-407 govern all actions for judicial review of decisions of the director under this chapter, except those decisions made pursuant to section 45-476.01, subsection E. An action for judicial review under this chapter extends to all questions of law and fact presented by the record. B. Administrative and public hearings shall be recorded manually or electronically. If the person seeks judicial review of a decision of the director, a transcript shall be made as provided by law. C. Each action for judicial review under this chapter shall be assigned to a judge whom the chief justice of the supreme court has specifically designated, pursuant to section 45-406, to hear actions for judicial review under this chapter. 45-406. Designation of judges; publication of designated judges A. The chief justice of the supreme court shall designate at least one judge, but not more than five judges, of the superior court to hear actions for judicial review under this chapter. The chief justice of the supreme court shall also specify the particular county or counties for which each designated judge will be available for assignment. B. The supreme court shall publish in the rules of the supreme court the name of each designated judge and the county or counties in which each designated judge will be available for assignment. C. The presiding judge for the county in which an action for judicial review has been filed under this chapter shall assign the action for judicial review to the appropriate judge designated by the chief justice of the supreme court and shall advise in writing the presiding judge and clerk of the superior court in the county in which the designated judge ordinarily sits about the assignment. 45-407. Stay of director's decision; precedence of actions for judicial review; review by the court of appeals A. The decision of the director shall not be stayed pending an action for judicial review, except that the judge to whom the action for judicial review has been assigned may stay the decision of the director with or without bond upon a showing of good cause. In determining if good cause exists under the circumstances, the court may consider whether: 1. The public interest will be adversely affected by a stay. 2. The stay will harm others. 3. There is a high probability that the appellant will succeed on the merits. 4. The appellant will suffer irreparable harm before a decision on the merits can be rendered. B. For the benefit of the people of this state, actions for judicial review under this chapter have precedence, in every court, over all other civil proceedings. C. The final decision of the superior court is appealable in the same manner as in civil actions generally and shall be governed by the rules of appellate procedure. 45-411. Initial active management areas; maps A. Four initial active management areas are established on the effective date of this section. The four initial active management areas are: 1. The Tucson active management area which includes the upper Santa Cruz and Avra valley sub-basins. 2. The Phoenix active management area which includes the east Salt river valley, west Salt river valley, Fountain Hills, Carefree, lake Pleasant, Rainbow valley and Hassayampa sub-basins. 3. The Prescott active management area which includes the Little Chino and upper Agua Fria sub-basins. 4. The Pinal active management area which includes the Maricopa-Stanfield, Eloy, Aguirre valley, Santa Rosa valley and Vekol valley sub-basins. B. The boundaries of the initial active management areas established under subsection A of this section are shown on the maps filed in the office of the secretary of state on the effective date of this chapter. C. A true copy of the maps identifying the initial active management areas established under subsection A of this section shall be on file in the department and shall be available for examination by the public during regular business hours. A true copy of the map of each initial active management area established under subsection A of this section shall also be filed in the office of the county recorder of the county or counties in which the active management area is located. 45-411.01. Exemptions from irrigation water duties, conservation requirements for distribution of groundwater and portions of groundwater withdrawal fee for portions of Phoenix active management area; fee; review A. Each person who is entitled to use groundwater pursuant to an irrigation grandfathered right under article 5 of this chapter on irrigation acres located within the area delineated for exemption under subsection E of this section is exempt, beginning January 1, 1989 through December 31, 2034, from any irrigation water duties or intermediate water duties established or required to be established for those irrigation acres in the management plans for the first, second, third, fourth and fifth management periods for the Phoenix active management area adopted pursuant to article 9 of this chapter. B. The Arlington canal company, the Buckeye water conservation and drainage district and the St. John's irrigation district, or their successors, are exempt, beginning January 1, 1989 through December 31, 2034, from any applicable conservation requirements for the distribution of groundwater established in the management plans for the first, second, third, fourth and fifth management periods for the Phoenix active management area adopted pursuant to article 9 of this chapter. C. No groundwater withdrawal fee shall be levied or collected pursuant to section 45-611 and no water quality assurance fee shall be levied or collected pursuant to section 45-616 for: 1. Groundwater withdrawn during calendar years 1989 through 2034 for irrigation use on irrigation acres within the area exempted from irrigation water duties and intermediate water duties under subsection A of this section. 2. Groundwater withdrawn and used in the area delineated for exemption under subsection E of this section during calendar years 1999 through 2034 for a non-irrigation use pursuant to section 45-519, subsection B, if the user of the groundwater pays a fee of $500 to the director by March 31 of each year following a year in which the groundwater was used. The director shall deposit, pursuant to sections 35-146 and 35-147, the monies collected under this paragraph in the water quality assurance revolving fund established by section 49-282. D. Except as provided in subsection G of this section, a water duty exemption fee of $.25 per irrigation acre per year shall be paid to the department for each irrigation acre in the exempted area. The water duty exemption fee shall be paid to the department not later than March 31 of each year from 1990 through 2035 for the preceding year by each person who owns irrigation acres within the exempted area as of December 31 of the year preceding the date the payment is due except that, if the Arlington canal company, the Buckeye water conservation and drainage district or the St. John's irrigation district, or a successor, delivers water to the irrigation acres during the year preceding the date payment is due, the fee shall be paid by the company or district delivering water to the irrigation acres. If a person who is required to pay a fee pursuant to this subsection fails to pay the fee for the calendar year in question on or before March 31 of the following year, the director may assess and collect a penalty of ten percent of the unpaid fee, without compounding, for each month or portion of a month that the fee is delinquent. The total penalty assessed under this subsection shall not exceed sixty percent of the unpaid fee. The director shall deposit, pursuant to sections 35-146 and 35-147, all monies collected by the department under this subsection in the water resources fund established by section 45-117. E. The boundaries of the exempted area under this section are delineated on a map of the Phoenix active management area filed in the office of the secretary of state on May 12, 1988. A true copy of the map filed in the office of the secretary of state shall be on file in the department and shall be available for examination by the public during regular business hours. F. The director shall review the hydrologic conditions within the area delineated on the map filed in the office of the secretary of state pursuant to subsection E of this section. The director shall consult with representatives of the Arlington canal company, the Buckeye water conservation and drainage district and the St. John's irrigation district, or their successors, and all cities and towns within the exempted area, on the scope of the review before beginning the review and on the status of the review periodically during the course of the review. The director shall submit a recommendation to the governor, the president of the senate and the speaker of the house of representatives not later than November 15, 2031 regarding extending the exemptions established in this section. G. A person who owns an irrigation grandfathered right appurtenant to ten or fewer irrigation acres located in the exempt area is exempt from the payment of a water duty exemption fee for the acres prescribed by subsection D of this section unless the irrigation acres are part of an integrated farming operation. The exemption provided by this subsection does not apply to the Arlington canal company, the Buckeye water conservation and drainage district or the St. John's irrigation district, or any successor, in any year in which the company or district delivers water to the irrigation acres. 45-411.02. Modification of boundaries of Tucson active management area; map A. Beginning July 1, 1994, the boundaries of the Tucson active management area are modified to exclude the portion of the upper Santa Cruz valley sub-basin included within the Santa Cruz active management area on that date. The modified boundaries of the Tucson active management area are shown on the map filed in the office of the secretary of state on June 10, 1994. B. A true copy of the map identifying the modified boundaries of the Tucson active management area shall be on file in the department and shall be available for examination by the public during regular business hours. A true copy of the map shall also be filed in the office of the county recorder in the counties in which the active management area is located. 45-411.03. Santa Cruz active management area; map A. Beginning July 1, 1994, the Santa Cruz active management area is established as an initial active management area which consists of a portion of the upper Santa Cruz valley sub-basin. The boundaries of the Santa Cruz active management area are shown on the map filed in the office of the secretary of state on June 10, 1994. B. A true copy of the map identifying the boundaries of the Santa Cruz active management area shall be on file in the department and shall be available for examination by the public during regular business hours. A true copy of the map shall also be filed in the office of the county recorder in the counties in which the active management area is located. 45-411.04. Declaration of policy and intent; Santa Cruz active management area A. The legislature finds that the hydrology and water resource management issues within the upper Santa Cruz river basin are unique due to the international nature of the river basin. The Tucson active management area includes areas beyond the one hundred kilometer border region established by treaties and agreements between the United States and Mexico relating to environmental issues. It is the finding of the legislature that a new active management area is needed in the immediate vicinity of the United States/Mexico border for the upper Santa Cruz river basin in order to facilitate binational negotiations for coordinated management of the water resources of the Santa Cruz river. It is the further finding of the legislature that the proposed boundaries designated for the Santa Cruz active management area are based on hydrologic parameters, such that the portion of the Santa Cruz river in Arizona has similar hydrologic characteristics with that portion of the Santa Cruz river in the State of Sonora, Mexico. B. The legislature also finds that the coordinated management of surface water rights and groundwater rights set forth in this enactment has been specifically designed to address the unique problems for water resource management that are described in subsection A of this section and that are posed by the hydrology of the upper Santa Cruz river. Coordinated management of surface water rights and groundwater rights is necessary in the area designated as the Santa Cruz active management area for public health, safety and welfare reasons. C. It is the express intent of the legislature that the creation of the Santa Cruz active management area is not to affect the definition of, or rights to, the surface waters and the groundwaters within this state, or to establish any precedent that could be used in a court of law to define, limit, or extend the rights of this state or the United States of America over the surface waters and groundwaters found within this state or to define or limit the legal distinction between surface water and groundwater in this state. D. The legislature finds that the varied water interests within the Santa Cruz active management area have sought the creation of this active management area to facilitate their own participation in the coordinated management of the water resources within this active management area and participation in the negotiations for binational coordination of water resource planning for the upper Santa Cruz active management area. While the coordinated management can include all naturally occurring waters within the basin, it is not the intent of any party in the Santa Cruz active management area or this legislature to modify or amend in any way the fundamental laws and rights to surface water and groundwater pursuant to the laws of this state. 45-412. Subsequent active management areas; criteria; review of groundwater basins not subject to active management A. The director may designate an area which is not included within an initial active management area, pursuant to section 45-411, as a subsequent active management area if the director determines that any of the following exists: 1. Active management practices are necessary to preserve the existing supply of groundwater for future needs. 2. Land subsidence or fissuring is endangering property or potential groundwater storage capacity. 3. Use of groundwater is resulting in actual or threatened water quality degradation. B. An active management area designated pursuant to this section may include more than one groundwater basin but shall not be smaller than a groundwater basin or include only a portion of a groundwater basin, except for the regional aquifer systems of northern Arizona. C. The director shall periodically review all areas which are not included within an active management area to determine whether such areas meet any of the criteria for active management areas as prescribed in this section. 45-413. Hearing on designation of subsequent active management areas and boundaries; notice; procedures A. If the director proposes to designate a subsequent active management area pursuant to section 45-412, subsection A, the director shall hold a public hearing to consider: 1. Whether to issue an order declaring the area an active management area. 2. The boundaries and any sub-basins of the proposed active management area. B. The director shall give reasonable notice of the hearing under the circumstances which shall include publication once each week for two consecutive weeks in a newspaper of general circulation in each county in which the proposed active management area is located. Any notice shall contain the time and place of the hearing, the legal description and a map clearly identifying and describing all lands to be included in the proposed active management area and any sub-basins and any other information the director deems necessary. C. The hearing shall be held at a location within the proposed active management area as soon as practicable but no less than thirty days and no more than sixty days after the first publication of the notice of hearing. At the hearing, the director shall present the factual data in his possession in support of the proposed action. Any person may appear at the hearing, either in person or by representative, and submit oral or documentary evidence for or against the proposed action. In making his determination, the director shall give full consideration to public comment and to recommendations made by local political subdivisions. 45-414. Findings upon hearing; order for active management area; publication A. Within thirty days after the hearing, the director shall make and file in the director's office written findings with respect to matters considered during the hearing. If the director decides to declare an area an active management area, the director shall make and file an order designating the active management area. B. The findings and order shall be published in the manner and for the length of time prescribed for the publication of notice of the public hearing, and the order is effective when published for the final time. All factual data compiled by the director, a transcript of the hearing, a copy of the findings and a map identifying the lands included in the active management area are public records of the department and shall be available for examination by the public during regular business hours. The findings and order of the director are subject to rehearing or review and to judicial review as provided in section 45-114, subsection C. C. The director shall file a true copy of the map in the office of the county recorder of the county or counties in which the active management area is located. 45-415. Local initiation for active management area; procedures A. A groundwater basin that is not included within an initial active management area may be designated an active management area on petition by ten percent of the registered voters residing within the boundaries of the proposed active management area, as of the most recent report compiled by the county recorder in compliance with section 16-168, subsection G, and a subsequent election held pursuant to the general election laws of this state. The form of the petition shall be the same as for initiative petitions, and the applicant for the petition shall comply with section 19-111. B. On application for a petition number with the clerk of the board of supervisors or county election officer, the director shall transmit a map of the groundwater basin to the county recorder of each county in which the proposed active management area is located. The map shall be on a scale adequate to show with substantial accuracy where the boundaries of the groundwater basin cross the boundaries of county voting precincts. The director shall also transmit to the county recorder all other factual data concerning the boundaries of the groundwater basin that may aid the county recorder in the determination of which registered voters of the county are residents of the groundwater basin. C. Any registered voter of a county whose residency in the groundwater basin is in question shall be allowed to vote. The ballot shall be placed in a separate envelope, the outside of which shall contain the precinct name and number, the signature of the voter, the residence address of the voter and the voter registration number of the voter, if available. The voter receipt card shall be attached to the envelope. The county recorder shall verify the ballot for proper residency of the voter before counting. Such verification shall be made within five business days following the election, and the voter receipt card shall be returned to the voter. Verified ballots shall be counted using the procedure outlined for counting early ballots. If residency in the groundwater basin is not verified, the ballot shall remain unopened and shall be destroyed. D. Except as provided in subsection E of this section, all election expenses incurred pursuant to this section are the responsibility of the county involved. E. If a groundwater basin is located in two or more counties, the following procedures apply: 1. The petition shall be filed with the clerk of the board of supervisors or county election officer of the county in which the plurality of the registered voters in the groundwater basin resides. 2. The number of registered voters required to sign the petition shall be ten percent of the registered voters residing within the boundaries of the proposed active management area, as of the most recent report compiled by the county recorder in compliance with section 16-168, subsection G, within the county in which the plurality of the registered voters in the groundwater basin resides. 3. The election shall be called by the board of supervisors of the county in which the petition is filed, and the board shall immediately notify the board of supervisors of any other county included in the groundwater basin of the date of the election. The election shall be held not less than sixty days or more than ninety days from the date of the call. The board of supervisors so notified shall then call the election in that county for the same date and follow the procedures for conducting the general elections in this state. 4. All election expenses incurred pursuant to this subsection are the responsibilities of the counties involved on a proportional basis considering the number of registered voters of each county that are residents of the groundwater basin. F. The ballot shall be worded, "should the (insert name of basin) groundwater basin be designated an active management area?" followed by the words "yes" and "no". 45-416. Limitation on number of irrigated acres A. If the director initiates the procedure for designating a subsequent active management area or the board of supervisors calls an election to establish an active management area, an irrigation user may irrigate within the proposed active management area 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. B. The limitation on the acres which may be irrigated shall continue in effect until the director makes a final determination pursuant to section 45-414 or the final results of an election to establish an active management area pursuant to section 45-415 are certified by the board of supervisors of the county or counties in which the proposed subsequent active management area is located. 45-417. Review and modification of boundaries of subsequent active management area A. The director may review and modify the boundaries of a subsequent active management area or any of its sub-basins as conditions require and factual data justify. B. The director shall review the boundaries of a subsequent active management area or any of its sub-basins upon receipt of a petition signed by persons who together withdraw not less than one-fourth of the groundwater withdrawn in the active management area or by request of the groundwater users advisory council in the active management area. C. Before modifying the boundaries of a subsequent active management area or any of its sub-basins the director shall give notice of and hold a hearing on the proposed modifications pursuant to the procedures prescribed by section 45-413. After the hearing, the director shall prepare written findings pursuant to section 45-414. 45-418. Area director; appointment; qualifications; compensation A. The director shall appoint an area director for each active management area. For reasons of economy and efficiency in administration, one person may be the area director for more than one active management area. The area director shall serve at the pleasure of the director. B. The area director is subject to title 41, chapter 4, article 4 and is entitled to receive compensation as determined pursuant to section 38-611. 45-419. Duties of area director The area director shall: 1. Assist the director in the development of the management plan for the active management area and implement the plan under the director's supervision. 2. Have such other duties as the director may assign and shall be responsible to the director for the performance of such duties. 3. Furnish technical and clerical services and such other assistance to the groundwater users advisory council as is required, to the extent funds are made available for such assistance. 45-420. Groundwater users advisory councils; appointment; representation of water users; term; compensation A. There shall be a groundwater users advisory council in each active management area consisting of five members. Members of the council shall be appointed by the governor to represent the users of groundwater in the active management area and on the basis of their knowledge of, interest in and experience with problems relating to the development, use and conservation of water. B. The term of office of each member is six years. The terms of two members shall expire on the third Monday of January each even numbered year, except that each third even numbered year the term of one member shall expire. C. Members of the council shall serve without compensation, except that each member shall be reimbursed for travel and subsistence while engaged in business of the council in the same manner as is provided by law for state officers. 45-421. Administrative duties of the groundwater users advisory councils The groundwater users advisory council shall: 1. Advise the area director for the active management area, make recommendations on groundwater management programs and policies for the active management area and comment to the area director and to the director on draft management plans for the active management area before they are promulgated by the director. 2. Keep the minutes of its meetings and all records, reports and other information relative to its work and programs in permanent form indexed and systematically filed. 3. Elect from its members a chairman and vice-chairman for terms of two years expiring on the third Monday of January of each even numbered year. 4. Designate the person or persons who shall execute all documents and instruments on behalf of the council. 5. Manifest and record its actions by motion, resolution or other appropriate means. 6. Make a complete record of its proceedings which shall be open to public inspection during regular business hours in the branch office of the department in the active management area. 7. Provide comment to the Arizona water banking authority with regard to draft plans for additional storage facilities and draft plans of operation in accordance with sections 45-2453 and 45-2456. 45-431. Initial irrigation non-expansion areas The Douglas critical groundwater area and the Joseph City critical groundwater area, delineated in the orders of the state land commissioner dated May 5, 1965 and December 16, 1974, respectively, are designated as initial irrigation non-expansion areas on the effective date of this chapter and are governed by the provisions of this article. 45-432. Subsequent irrigation non-expansion areas; designation; review A. The director may designate an area which is not included within an active management area as a subsequent irrigation non-expansion area if the director determines that both of the following apply: 1. There is insufficient groundwater to provide a reasonably safe supply for irrigation of the cultivated lands in the area at the current rates of withdrawal. 2. The establishment of an active management area pursuant to section 45-412 is not necessary. B. An irrigation non-expansion area established pursuant to this section may include more than one groundwater sub-basin but shall not be smaller than a groundwater sub-basin or include only a portion of a groundwater sub-basin. 45-433. Local initiation for designation; procedures A. The designation of a subsequent irrigation non-expansion area may be initiated by the director or by petition to the director signed by either: 1. Not less than twenty-five irrigation users of groundwater, or one-fourth of the irrigation users of groundwater within the boundaries of the groundwater basin or sub-basin specified in the petition. 2. Ten per cent of the registered voters residing within the boundaries of the groundwater basin or sub-basin specified in the petition as of the most recent report compiled by the county recorder in compliance with section 16-168, subsection G. The form of the petition shall be the same as for an initiative petition and the applicant for such petition shall comply with the provisions of section 19-111. If a groundwater basin or sub-basin is located in two or more counties, the number of registered voters required to sign the petition shall be ten per cent of the registered voters residing within the boundaries of the groundwater basin or sub-basin, as of the most recent report compiled by the county recorder in compliance with section 16-168, subsection G, within the county in which the plurality of the registered voters in the groundwater basin or sub-basin resides. B. Upon receipt of a petition pursuant to subsection A, paragraph 2 of this section, the director shall transmit the petition to the county recorder of each county in which the groundwater basin or sub-basin is located for verification of signatures. In addition, the director shall transmit a map of the groundwater basin or sub-basin to the county recorder of each such county included. The map shall be on a scale adequate to show with substantial accuracy where the boundaries of the groundwater basin or sub-basin cross the boundaries of county voting precincts. The director shall also transmit to the county recorder all other factual data concerning the boundaries of the groundwater basin or sub-basin that may aid the county recorder in the determination of which registered voters of the county are residents of the groundwater basin or sub-basin. 45-434. Limitation on number of irrigated acres A. If procedures are initiated, whether by the director or by petition, for designating an irrigation non-expansion area, an irrigation user may irrigate within the proposed irrigation non-expansion area only acres of land which were irrigated at any time during the five years preceding the date of the notice of the initiation of designation procedures. B. The limitation on the acres which may be irrigated shall continue in effect until the director makes a final determination pursuant to section 45-436. 45-435. Hearing on designation of subsequent irrigation non-expansion areas and boundaries; notice; procedures A. If the director finds that an area which is not included within an active management area meets the criteria specified in section 45-432, or a petition is filed pursuant to section 45-433, the director shall hold a public hearing to consider: 1. Whether to issue an order declaring the area an irrigation non-expansion area. 2. The boundaries of the proposed irrigation non-expansion area. B. The director shall give reasonable notice of the hearing under the circumstances which shall include the publication once each week for two consecutive weeks in a newspaper of general circulation in each county in which the proposed irrigation non-expansion area is located. Any notice shall contain the time and place of the hearing, the legal description and a map clearly identifying and describing all lands to be included in the proposed irrigation non-expansion area and any other information the director deems necessary. C. The hearing shall be held at a location in the county in which the major portion of the proposed irrigation non-expansion area is located no less than thirty days but no more than sixty days after the first publication of the notice of the hearing. At the hearing, the director shall present the factual data in his possession in support of or in opposition to the proposed action. Any person may appear at the hearing, either in person or by representative, and submit oral or documentary evidence for or against the proposed action. In making his determination, the director shall give full consideration to public comment and to recommendations made by local political subdivisions. 45-436. Findings upon hearing; order for irrigation non-expansion area; publication A. Within thirty days after the hearing, the director shall make and file in the director's office written findings with respect to matters considered during the hearing. If the director decides to declare an area an irrigation non-expansion area, the director shall make and file an order designating the irrigation non-expansion area. B. The findings and order shall be published in the manner and for the length of time prescribed for the publication of notice of the public hearing, and the order is effective when published for the final time. All factual data compiled by the director, a transcript of the hearing, a copy of the findings and a map identifying the lands included in the irrigation non-expansion area are public records of the department and shall be available for examination by the public during regular business hours. The findings and order of the director are subject to rehearing or review and to judicial review as provided in section 45-114, subsection C. C. The director shall file a true copy of the map in the office of the county recorder of the county or counties in which the irrigation non-expansion area is located. 45-437. Irrigated acreage; water measuring device; annual report of groundwater pumping; penalty; transportation; exemption A. In an initial irrigation non-expansion area established pursuant to section 45-431, except as provided in subsection E of this section, only acres of land which were legally irrigated at any time between January 1, 1975 and January 1, 1980 may be irrigated with groundwater, effluent, diffused water on the surface or surface water, except as provided in sections 45-172, 45-437.01, 45-437.02 and 45-437.03, and except that this does not prohibit irrigation with surface water used pursuant to decreed or appropriative rights established before June 12, 1980. 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 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 subsection does not allow irrigation of land which could not have been legally irrigated under prior statutory law. B. In a subsequent irrigation non-expansion area established pursuant to section 45-432, except as provided in subsection E of this section, only acres of land which were irrigated at any time during the five years preceding the date of the notice of the initiation of designation procedures may be irrigated with groundwater, effluent, diffused water on the surface or surface water, except as provided in sections 45-172, 45-437.01, 45-437.02 and 45-437.03, and except that this does not prohibit irrigation with surface water used pursuant to decreed or appropriative rights established before the date of the notice. Land which was not irrigated at any time during this five year period is deemed to have been in irrigation if the director finds that 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. C. Except as provided in subsection F of this section, in an irrigation non-expansion area: 1. Each person withdrawing groundwater from a non-exempt well for an irrigation use and each person withdrawing more than ten acre-feet of groundwater per year from a non-exempt well for a non-irrigation use shall use a water measuring device approved by the director. Each person withdrawing groundwater from a non-exempt well shall file a report on a calendar year basis with the director on a form provided by the director no later than March 31 of the following year. In filing a report, each person withdrawing ten or fewer acre-feet of groundwater per year from a non-exempt well for a non-irrigation use shall estimate the quantity of groundwater withdrawn. 2. Transportations of groundwater are subject to the provisions of articles 8 and 8.1 of this chapter. D. If a person, who is required under subsection C, paragraph 1 of this section to file an annual report for calendar year 1986 or any subsequent calendar year, fails to file a report for the calendar year in question on or before March 31 of the following year, the director may assess and collect a penalty of twenty-five dollars for each month or portion of a month that the annual report is delinquent. The total penalty assessed under this subsection shall not exceed one hundred fifty dollars. The director shall deposit, pursuant to sections 35-146 and 35-147, all penalties collected under this subsection in the state general fund. E. In an irrigation non-expansion 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 B 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 B of this section from ten. F. A person who withdraws groundwater from a non-exempt well for an irrigation use is exempt from subsection C, paragraph 1 of this section for those withdrawals if both of the following apply: 1. Groundwater withdrawn from the well for an irrigation use is used only on land that is owned by a person who has the right under subsection A or B of this section to irrigate ten or fewer contiguous acres of land at the place of the use. 2. Groundwater withdrawn from the well is not used on land that is part of an integrated farming operation. 45-437.01. Substitution of irrigated acreage in an irrigation district; central Arizona project water In an irrigation non-expansion area, a person who owns acres of land which may be irrigated pursuant to section 45-437 may apply to the director during the central Arizona project contracting period, but no later than January 1, 1995, 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 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. 2. Central Arizona project water available to the irrigation district within which the acres are located will be adequate to supply the substitute acres. 45-437.02. Flood damaged acres; substitution of acres; definitions A. In an irrigation non-expansion area, a person who owns acres of land which may be irrigated pursuant to section 45-437 may permanently retire those acres from irrigation and substitute for those acres the same number of acres in the same irrigation non-expansion area if the owner demonstrates to the director's satisfaction that all of the following apply: 1. The legally irrigated acres were damaged by floodwaters after being irrigated. 2. It is not economically feasible to restore the flood damaged acres to irrigation use. B. For purposes of this section: 1. "Floodwaters" means a temporary and erosive overflow of waters on lands not normally covered by water which occurred after January 1, 1975. 2. "Legally irrigated acres" means acres which may be irrigated pursuant to section 45-437. 45-437.03. Impediments to efficient irrigation; substitution of acres; definitions A. In an irrigation non-expansion ar