Michael Whiting defends elderly couple’s water rights

May 10, 2008

This article appeared in various newspapers throughout Arizona. It involves Michael Whiting defending water rights of a Senior Citizen couple on the Verde River in Arizona. Mr. Whiting is currently running for Apache County Attorney.

“Verde water well case gets deeper”

By Steve Ayers, Staff Reporter

Saturday, April 05, 2008

For the last four years, three Verde Valley property owners have fought a lonely and costly fight to protect their water rights.

The three defendants, all small property owners in comparison to the plaintiff, Salt River Project, have spent thousands of dollars defending their right to pump water that SRP claims is theirs. But recently the defendants, NBJ Ranch Ltd. Partnership, Kovacovich Investments Limited Partnership and the Wiertzema Family Trust discovered that some very big players in the statewide water rights battle are supporting their case.

According to NBJ attorney Michael Whiting, the costs to the defendants, if they are forced into a fight over determining the subflow beneath their property, will amount to hundreds of thousand of dollars in legal fees and hydrologic studies.

“The judge had previously said we would not get into a big subflow determination until the adjudication gets there. But here we are. We are headed exactly where we said we would go if we let this horse out of the corral. Now we are out in the middle of nowhere chasing a wild pony,” Whiting said.

At a hearing two weeks ago the judge in the case denied a motion by SRP for summary judgment, which means the subflow determination is still in question. (Whiting and his clients were very happy with the win).

“I think the people in the Verde Valley who have wells should be very concerned about the impact of this case,” Whiting said. ‘It is just bad news.”

Three Verde Valley residents who own and use commercial size wells, also known as non-exempt wells, have been fighting a costly court battle with Salt River Project for the last four years over their right to use those wells. The case revolves around the fine line between what is groundwater and what is surface water. For the time being residential well owners in the Verde valley are being left alone. However, depending on the outcome of the case and how the court handles it, the owners of some of the valley’s 7,240 “exempt” wells could find themselves in the thick of the water rights battle. Arizona Public Service, Phelps Dodge Corporation and the Roosevelt Water Conservation District filed a friend of the court brief in February.

They are urging the judge in the case, Edward Ballinger, to deny SRP’s request to turn off the defendants’ wells until a final determination of groundwater, surface water and subflow of the Verde River watershed is made as part of the statewide water rights adjudication case.

The statewide adjudication case, which will ultimately establish and prioritize water rights throughout Arizona, has been going on for more than 30 years and has no end in sight.

At stake in the SRP case, as far as the claim for the water rights, is the question of where does groundwater end and surface water begin.

But the bigger question being asked by APS, Phelps Dodge and RWCD: Should SRP have the right to litigate against smaller water right claimants when no determination has yet been made of the boundary between groundwater and surface water in the Verde Valley.

SRP claims that the defendants’ wells are taking water from the subflow beneath the river, which by law is surface water and which SRP claims the right to.

SRP is also arguing that it is up to the defendants to prove they are not taking water from the subflow.

The defendants wells are located in a zone adjacent to the river assumed by SRP to be part of the Holocene alluvium, a band of soil, sand and gravel through which the river’s subflow moves.

But the three defendants argue that their wells are sleeved through the subflow zone and that water they are pumping comes from beneath a layer of confining rock and is not connected to the subflow.

APS, Phelps Dodge and RWCD have told the court that if it proceeds with the case and passes judgment it would be making a “mini’ determination of the Verde’s subflow zone, something the judge had previously said he would avoid.

In their friend of the court brief they argue, “SRP is seeking to restrain certain well owners from pumping until such time as the court can complete an adjudication of all water rights in the watershed.”

The brief also cautions against having a larger claimant in the case challenge the claims of a smaller claimant.

“At the very inception of these injunctive proceedings many claimants raised the possibility of a party who has substantial claims…as well as substantial resources picking off individual well owners one-by-one.

“SRP’s…attempt…to shift the burden to an elderly couple in their seventies [Clive and Noel Jordan, owners of NBJ Ranch]…demonstrates the type of mischief that will ensue if this court continues down the path where SRP is attempting to lead it.”

Clive Jordan died April 3.

The vast majority of the 7,240 wells in the Verde Valley are located within the area that SRP has determined to be the subflow of the Verde and its tributaries.
To read the article on-line please cut and past this limk into your browser. http://campverdebugleonline.com/main.asp?Search=1&ArticleID=19656&SectionID=1&SubSectionID=1&S=21

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