Arizona Right to Locate Underground Storage Facility In a Natural Stream
In Arizona, like California and Nevada, "'the right to running water exists without private ownership of the soil . . . .'" Hill v. Lenormand, 2 Ariz. 354, 357, 16 P. 266, 268 (1888).
Thus, "when a person acquires land he takes it subject to any water rights which might have been initiated according to the law." England v. Hing, 8 Ariz. App. 374, 378, 446 P.2d 480, 484 (1968), vacated on other grounds, 105 Ariz. 65, 459 P.2d 498 (1969).
The Arizona Legislature recognizes a right to locate an underground storage facility (USF) in a natural stream:
Although the waters which naturally flow in the natural channel of a stream have been previously appropriated and put to beneficial use by others, the channel may be used to carry water of another or used for the location of an underground storage facility pursuant to chapter 3.1 of this title, if such use can be made without diminishing the quantity of water which naturally flows therein the use of which has been appropriated. A.R.S. 45-173(A).
The Fifth Amendment to the United States Constitution states in relevant part: "Nor shall private property be taken for public use, without just compensation." the Due Process Clause of the Fourteenth Amendment applies the Takings Clause to the states. See Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104, 122, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978).
Similarly, Article 2, Section 17, of the Arizona Constitution provides in relevant part: "No private property shall be taken or damaged for public or private use without just compensation having first been made . . . ." South West's appeal relies upon both the state and federal constitutions.
While Arizona was developing its statutes and policies on water storage, it decided to deviate from the riparian law of water rights enacted in most states.
The Arizona Constitution repudiates the concept of riparian water rights and follows the law of prior appropriation. See Ariz. Const. art. 17, 1.