Laws regulating the drilling of wells in Arizona

The Arizona Ground Water Code (“GWC”) is codified at A.R.S. § 45-401 – 45-704. Article 10 of the GWC, A.R.S. § 45-591 – 45-606, and deals specifically with wells in Arizona. As with most statutes, the regulations adopted under the authority of the statutes provide the detailed rules for implementing the statutes. In Arizona, Title 12 of the Arizona Administrative Code (“AAC”), titled Natural Resources, contains the regulations for drilling wells in Arizona.

R12-15-801.17 defines “monitoring wells” as “”…a well designed and drilled for the purpose of monitoring water quality within a specific depth interval.” By this definition, the monitoring wells proposed by Excelsior in the MOU are wells subject to these regulations.

R12-15-803.A provides that, “A person shall not drill or abandon a well, or cause a well to be drilled or abandoned, in a manner which is not in compliance with A.R.S. Title 45, Chapter 2, Article 10, and the rules adopted thereunder.” This is a reference to A.R.S. § 45-591 – 45-606 cited above.

A.R.S. § 45-591 makes a distinction between an “existing well” and a “new well.” "Existing well" means a well which was drilled before June 12, 1980 and which is not abandoned or sealed or a well which was not completed on June 12, 1980 but for which a notice of intention to drill was on file with the Arizona water commission on such date. Every other well is a “new well.” 

A.R.S. § 45-593 provides, “A. On or before June 12, 1982, a person who owns an existing well which is or has been used to withdraw or monitor water shall register the well on a registration form provided by the director. The registration form shall include:…E. This article shall not be construed to legalize any well existing on June 12, 1980, the effective date of this article, which was not in accordance with prior statutory law.”

A.R.S. § 45-594 provides, “A. The director shall adopt rules establishing construction standards for new wells and replacement wells, the deepening and abandonment of existing wells and the capping of open wells. B. All well construction, replacement, deepening and abandonment operations shall comply with the rules adopted pursuant to this section…”

Therefore, even if some of the wells are determined to be “existing wells,” the fact that there will need to be modifications to the wells to use for the purposes intended will bring those wells within the permitting standards of the GWC.

The rules for drilling wells in Arizona are different, depending on whether the location of the well is in an Active Management Area (“AMA”) or not. To pump groundwater from a new well outside of an AMA the applicant must file a Notice of Intent to Drill, Deepen, Replace, or Modify a Well, Form No. DWR 55-40 (A.R.S. § 45-596). The well must be drilled by a well driller that is licensed by the Arizona Department of Water Resources (“ADWR”) and has a valid license issued by the Registrar of Contractors that is of the type to construct the well described in the application (A.R.S. § 45-596 (11)). The notice the well driller must file includes:

1. The name and mailing address of the person filing the notice.

2. The legal description of the land on which the well is proposed to be drilled and the name and mailing address of the owner of the land.

3. The legal description of the location of the well on the land.

4. The depth, diameter and type of casing of the proposed well.

5. Such legal description of the land on which the groundwater is proposed to be used as may be required by the director to administer this chapter.

6. When construction is to begin.

7. The proposed uses to which the groundwater will be applied.

8. The name and well driller's license number of the well driller who is to construct the well.

9. The design pumping capacity of the well.

10. If for a replacement well, the maximum capacity of the original well and the distance of the replacement well from the original well.

11. Proof that the director determines to be satisfactory that the person proposing to construct the well holds a valid license issued by the registrar of contractors and that the license is of the type necessary to construct the well described in the notice of intention to drill. 

12. If any water from the proposed well will be used for domestic purposes as defined in section 45-454, evidence of compliance with the requirements of subsection F of this section.

13. If for a second exempt well at the same location for the same use pursuant to section 45-454, subsection I, proof that the requirements of that subsection are met.

14. If for a well to obtain geophysical, mineralogical or geotechnical data within a single section of land, the information prescribed by this subsection for each well that will be included in that section of land before each well is drilled.

15. Such other information as the director may require.

See A.R.S. § 45-596.C.

On receiving a notice of intention to drill and the fee required by this section, the director shall endorse on the notice the date of its receipt.  The director shall then determine whether all information that is required has been submitted and whether the requirements of subsection C, paragraphs 11 and 12 and subsection I of this section have been met.  If so, within fifteen days of receipt of the notice, or such longer time as provided in subsection J of this section, the director shall record the notice, mail a drilling card that authorizes the drilling of the well to the well driller identified in the notice and mail written notice of the issuance of the drilling card to the person filing the notice of intention to drill at the address stated in the notice.  On receipt of the drilling card, the well driller may proceed to drill or deepen the well as described in the notice of intention to drill.  If the director determines that the required information has not been submitted or that the requirements of subsection C, paragraphs 11 and 12 or subsection I of this section have not been met, the director shall mail a statement of the determination to the person giving the notice to the address stated in the notice, and the person giving the notice may not proceed to drill or deepen the well. A.R.S. 45-596.D.

A.R.S. § 45-596.I provides, in relevant part, “…the director shall not approve the drilling of the well if the director determines that the well will likely cause the migration of contaminated groundwater from a remedial action site to another well, resulting in unreasonably increasing damage to the owner of the well or persons using water from the well.  In making this determination, the director of water resources shall follow the applicable criteria in the rules adopted by the director of water resources pursuant to section 45-598, subsection A and shall consult with the director of environmental quality.” The same section includes lengthy definitions of what is meant by “Remedial Action Site.”

If it turns out that the wells would be built within an AMA, the restrictions are more stringent.

There are rules for installing water measuring devices at A.R.S. § 45-604, and rules dealing with well inspections, cross-contamination, and remedial measures pursuant to A.R.S. § 45-605. That statute provides that the director of the ADWR, in consultation with the director of ADEQ, may inspect wells to determine if there is the possibility of vertical cross-contamination of groundwater by hazardous substances and may take appropriate remedial actions to prevent or mitigate the cross-contamination. The director of the ADWR is authorized to conduct appropriate remedial actions regarding vertical cross-contamination. The director of the ADWR is required to provide notice to the director of ADEQ of the results of the inspection, including copies of the ADWR's records and documents and the analysis of any samples taken. If it is determined that the well results in vertical cross-contamination, the director of the ADWR, upon receiving permission from the well owner or operator and approval from the director of the ADEQ, may take appropriate remedial actions, including well modification, abandonment or replacement, or provision of a replacement water supply. Note that the owner’s denial of permission does not preclude ADEQ from proceeding under WQARF, which is discussed below, as ADEQ has independent authority in the event of any kind of water contamination.

A.R.S. § 45-606 provides for money to be continuously appropriated for the ADWR to perform its duties under these statutes.