n.a.
Chapter 18
WATER AND OTHER RESOURCES*
Art. I. In General, Sections 18-1 - 18-20
Art. II. Groundwater Management, Sections 18-21 - 18-30
ARTICLE I. IN GENERAL
Sec. 18-1. Conversion of wells from agricultural to domestic
use.
(a) Policy. It is the policy of the Salt River Pima-Maricopa
Indian Community that wells drilled within the community for
agricultural irrigation or for any other nondomestic purposes
will be constructed in such a manner as to allow for conversion to
domestic purposes with minimal reconstruction costs so as to
assure the members of the Salt River Pima-Maricopa Indian
Community an uninterrupted supply of domestic water.
(b) Restriction on issuance of permits. The building official shall
not issue a building and construction permit pursuant to section
10.100 of the Zoning Code for the drilling or construction of a
well to supply water for agricultural irrigation or for any other
nondomestic use unless the plans and specifications indicate and
the permit requires that the well be constructed in such a way
that it can be readily converted to use supplying domestic water.
Such wells shall have such protections against contamination as
are required in wells constructed for domestic water supply. (Ord.
No. SRO-96-85, Sections 1, 2, 1-23-85)
Secs. 18-2 - 18-20. Reserved.
*Editor's note - The creation of Ch. 18 from SRO-96-85 and SRO-94-85
has been at the discretion of the editor.
Cross references - Cutting timber without permit, Section 6-106;
pesticides, Section 13-51 et seq.; hunting and fishing licenses, Section
15-11 et seq.; development and real property, Ch. 17.
ARTICLE II. GROUNDWATER MANAGEMENT*
Sec. 18-21. Short title.
This article may be referred to as the "Groundwater Management
Code." (Ord. No. SRO-94-85, Section 1, 1-23-85)
Sec. 18-22. Policy.
The groundwaters of the Salt River Pima-Maricopa Indian Community
are in one groundwater basin underlying the Salt River
Pima-Maricopa Indian Community. The owners of the land have
a right to the reasonable and beneficial use of such waters to the
extent that such use does not defeat the right of other landowners
to reasonable and beneficial use of such waters. It is the policy of
the Salt River Pima-Maricopa Indian Community that use of
such groundwater should be subject to an equitable system of
control, distribution, allocation and regulation so as to achieve
the maximum beneficial use and conservation of such waters in
recognition of the drain on the water resource and the changing
state of the art of the use of water and ability to determine
the usable extent of the resource. It is the goal of the Salt River
Pima-Maricopa Indian Community that groundwater use will be limited to
replenishable supplies. (Ord. No. SRO-94-85, Section 2, 1-23-85).
Sec. 18-23. Scope of regulation.
This code shall regulate all groundwater within the Salt River
Pima-Maricopa Indian Community. (Ord. No. SRO-94-85, Section 4,
1-23-85)
Sec. 18-24. Violation and penalty.
Any permittee who violates the conditions of the permit or the
provisions of this code shall be subject to the forfeiture of the
permit after notice and hearing as provided for in section 18-27.
The Salt River Pima-Maricopa Indian Community shall have the
jurisdiction to provide injunctive relief in order to prevent the
use of groundwater in violation of this code upon a petition of the
groundwater administrator. The Salt River Pima-Maricopa Indian
*Cross reference - Pollution of domestic water, Section 13-2.
Community Court shall have the jurisdiction over civil actions
brought by the groundwater administrator against permittees
for civil damages resulting from the violation of the permit
issued, or for using groundwater without a permit and such damage
shall include the value of the water used in violation of this
code, the cost of investigations and attorneys' fees and all hearing
and court costs incurred. (Ord. No. SRO-94-85, Section 10, 1-23-85)
Section 18-25. Definitions.
Groundwater means all water which is taken by well and pump
or any like method from underground water sources except when
such water is so taken by the Salt River Pima-Maricopa Indian
Community for domestic water purposes of the members and
Indian residents of the Salt River Pima-Maricopa Indian Community.
Groundwater administrator shall be the Salt River Pima-Maricopa
Indian Community director of the community development department
or the director's designee or designees.
Reserved water rights means those rights to use of waters
recognized as reserved in accordance with the principles enunciated
in Winters v. United States, 207 U.S. 564 (1908), Cappaert v.
United States, 426 U.S. 128 (1976), and subsequent cases, which
rights have either an immemorial priority or a priority date as of
the establishment of the reservation. (Ord. No. SRO-94-85, Section 3,
1-23-85)
Section 18-26. Permits; standards of issuance and use.
(a) Required. No groundwater may be used for any purpose
unless the user has received a groundwater use permit from the
groundwater administrator.
(b) Establishment of presumptive right.
(1) Within sixty (60) days of the enactment of this code, the
groundwater administrator shall send by certified mail
notice of the enactment of this code, together with a copy of
the code to each user of groundwater within the Salt River
Pima-Maricopa Indian Community. Mailing of such notice
shall be conclusive proof of receipt of notice.
(2) Any person using groundwater at the time of the enactment
of this article shall have a presumptive right to the
use of such groundwater, in the amount used, for the term
of any contract or other instrument which forms the basis
of the groundwater use, or if there is no such contract or
interest, for a period of five (5) years. Such user shall apply
for a groundwater use permit within one hundred eighty
(180) days of the enactment of this code. Failure to apply
within such time shall result in the user's loss of any
presumptive right. The presumptive right created by this
section may be defeated by a fair showing that (1) the
amount of water used for the purpose used exceeds the
amount of water required to achieve the purpose intended,
or (2) the purpose for which the water is used is wasteful of
the resource in terms of other feasible uses. If a finding
under subsection (1) is made, a groundwater use permit
shall be issued for such an amount of groundwater as is
reasonable and necessary for the use, provided the applicant
submits to the groundwater administrator an amended
application in the amount found to be reasonable and necessary
for the use. If the use has been found to be wasteful
under subsection (2), a permit may be issued only if the
applicant submits to the groundwater administrator an
amended application for an amount of water reasonable
and necessary for a feasible alternative use. An amended
application under subsection (2) shall be treated as an
application under section (c).
(c) Permits for new use.
(1) Any member of the Salt River Pima-Maricopa Indian Community
or any other person who holds a contractual right
which requires the use of water for its enjoyment or any
alloted landowner of the land for which a groundwater
permit is being sought may apply for a groundwater use
permit. The application shall be on a form provided by the
Salt River Pima-Maricopa Indian Community and shall
provide information sufficient to enable the groundwater
administrator to make a decision in regard to the issuance
of a permit and to enable the groundwater administrator
to impose reasonable use criteria on any issued permit.
(2) a. A groundwater use permit may be issued for a period
of five (5) years if the use to which the water is to be
put is agricultural and the land on which the water is
to be used is not subject of a contract or other instrument.
b. If the water is to be used for agricultural purposes and
the land is subject of a contract or other instrument,
then the permit may be issued for a period equal to
that of the term of the contract or other instrument.
c. If the use to which the water is to be put is other than
agricultural, the term of any groundwater use permit
shall be coexistant with the term for which the use
shall be reasonably required by the applicant, but in
no event longer than the term of any contract or other
instrument under which the use arises.
(3) The amount of water permitted to be used under each
groundwater use permit shall be determined by the need
proven, and the available groundwater resources for all
potential uses within the community lands subject of this
code.
(d) Use permits conditional. All groundwater use permits
shall be issued conditioned on a term of use; the nature of the use
permitted; and the amount of water to be used per week, month
or year, depending on the nature of use; the parcel or tract of land
within which the use will take place; and upon such other reasonable
conditions as the groundwater administrator shall determine
is necessary to carry out the policies of this code.
(e) Actual and potential use permits. Groundwater use permits
may be issued for actual and potential uses. Groundwater use
permits issued for potential uses shall be limited in time so that
water resources will not be reserved beyond a reasonable period
of time. For good and sufficient cause shown, extension in time
may be granted.
(f) Permits conditioned on available water. All groundwater
use permits shall be conditioned on the right of the groundwater
administrator to change the amount or permitted use of groundwater
depending on changing quantities of available groundwater.
Any such change by the groundwater administrator shall
be based upon clear and convincing evidence that the change
is required to ensure the future availability of the resource, and
shall be subject to the notice, hearing and appellate procedures of
this code. (Ord. No. SRO-94-85, Section 5, 1-23-85)
Sec. 18-27. Application procedure.
(a) Any application for a groundwater use permit pursuant to
section 18-26(b) or (c) of this code shall be made to the groundwater
administrator with an application fee as provided by the rules
and regulations. The groundwater administrator shall determine
whether and under what conditions a groundwater use permit
shall be issued after a hearing has been held. The hearing shall
be noticed by certified mail or delivered notice to all landowners
owning land which is within the Salt River Pima-Maricopa Indian
Community and within one mile of the perimeter of the land
within which the water use is to be made, and all of the land
within which the water use is to be made, and all persons having
a right to use land which is within the community and within one
mile of the perimeter of the land within which the water use is to
be made pursuant to a valid contract or other instrument, and by
notice in the Salt River Pima-Maricopa Indian Community newspaper.
Notice shall be given no less than ten (10) days prior to
such hearing. Mailing of notice shall be conclusive proof of receipt
of notice. The hearing shall be conducted by the groundwater
administrator in an informal manner with rules adopted pursuant
to this code calculated to assure full disclosure of all relevant
information. Professional attorneys shall not be permitted to represent
parties at any such hearing. The groundwater administrator
shall hear all relevant issues and within five (5) days after the
hearing is concluded, shall issue a written decision. The decision
will contain the findings of act relied on by the groundwater
administrator for the decision as well as the decision. The findings
of fact and decision shall be distributed to the applicant and
any other land user or community member who files a notice of
appearance pursuant to subsection (b) hereof.
(b) A decision of the groundwater administrator may be appealed
to the Salt River Community Court by the applicant, any
community member or other person having the right to the use of
land within the community, who files a notice of appearance with
the groundwater administrator before the hearing is adjourned.
(c) Appeals shall be taken from any decision of the groundwater
administrator in the following manner:
(1) Notice of appeal. Written notice of appeal shall be given
within five (5) days after the day the written and executed
decision is filed with the secretary of the Salt River
Pima-Maricopa Indian Community. The notice of appeal shall
state all the grounds for appeal relied on by the appellant.
The notice of appeal shall not be amended once it is filed.
The appellee may file a short written response to the grounds
for appeal within ten (10) days after the notice of appeal is
filed. The notice of appeal and response shall be mailed to
the opposing party on the day it is filed. If the appellant is
the applicant for the groundwater use permit, the appellee
shall in all cases be the groundwater administrator. If the
appellant is a person who filed a notice of appearance, the
appellee shall in all cases be the applicant. The applicant
for the groundwater permit shall in all cases be permitted
to appeal. No more than three (3) persons who filed notice
of appearance, in addition to the applicant for the permit,
shall be permitted to appeal the decision of the groundwater
administrator. The first three (3) such notices of appeal
shall conclude filings.
(2) Costs. There shall be posted with the clerk of the Salt
River Pima-Maricopa Indian Community Court a cash fee
of twenty-five dollars ($25.00) to cover costs of the court.
(3) Grounds for appeal. The court shall determine the appeal
upon the findings of face and decision entered in the case
by the groundwater administrator.
(4) Findings of fact. The findings of face shall be presumed to
be without reversible error. The presumption may be overcome
by a sworn written statement presented to the court
at the time of the filing of the notice of appeal which
establishes on the basis of the statement, any one or more
of the following grounds.
a. That a witness ready and willing to testify at the time
of the hearing on behalf of the appellant was not allowed
by the groundwater administrator to take the
witness stand and testify, and such testimony would
have materially altered the decision of the groundwater
administrator.
b. That the groundwater administrator refused to admit
documentary or physical evidence, and such evidence
would have materially altered the decision of
the groundwater administrator.
c. That after the hearing the appellant discovered material
evidence which, with reasonable diligence, could
not have been discovered and produced at the hearing,
and such evidence would have materially altered the
decision of the groundwater administrator.
In the event the court finds the presumption is overcome
pursuant to this subsection, the court shall remand the
case back to the groundwater administrator for the limited
purpose of hearing only the excluded or new evidence and
any evidence presented in rebuttal to such evidence. The
hearing will be held within ten (10) days after the order of
the court prior to its decision to give the court such parties
and appellee. At the conclusion of such remand hearing,
the groundwater administrator shall within ten (10) days
of the hearing, make and enter such amended findings of
fact and decision as the groundwater administrator deems
necessary, or in the event the groundwater administrator
determines that the evidence adduced at the remand hearing
requires no amendment, the groundwater administrator
will issue a decision reaffirming its prior findings of
fact and decision. The findings of fact and decision will be
transmitted to the court and such findings of fact and
decision will not be subject to a separate appeal.
(5) Decision. The court shall determine whether the decision
is supported by the finding of fact and the law. Any party
to the case may request an opportunity to appear before
the court prior to its decision to give the court such parties
view of the case. The other party or parties shall be given
adequate notice of the hearing and an opportunity to present
such party or parties view of the case. Such views shall
be presented orally by the parties and shall only deal with
the ground relied on by the appellant as set out in the
notice of appeal. The hearing shall be limited to one hour
and the time will be equally divided between the appellant
and the appellee. If the court finds that the decision is
incorrect, it shall issue a new decision correctly stating the
decision. Such decision shall be final and not subject to
rehearing, review or appeal. (Ord. No. SRO-94-85, Section 6,
1-23-85)
Sec. 18-28. Records of application, permit and proceedings.
A complete record of all applications, actions taken thereon,
and any permits issued shall be maintained by the Salt River
Pima-Maricopa Indian Community and shall be open for public
inspection at the office of the groundwater administrator. (Ord.
No. SRO-94-85, Section 7, 1-23-85)
Sec. 18-29. Records of water usage.
Each permittee shall maintain a complete record of groundwater
withdrawal and usage. The record shall be maintained
contemporaneously with withdrawal and use and shall contain the
amount of water withdrawn on a weekly basis; the use to which it
was put; the location of the use; the amount and cost of electrical
power in connection with the withdrawal; and such other information
as shall reasonably be required by the groundwater administrator.
A true and complete copy of such records certified by
the permittee to be accurate shall be filed by the permittee with
the groundwater administrator on the fifteenth day of each month
for the prior month. (Ord. No. SRO-94-85, Section 8, 1-23-85)
Sec. 18-30. Rule-making authority.
The groundwater administrator shall prescribe, subject to the
approval of the community council, rules and regulations, not in
conflict with the ordinances of this community, necessary to perform
the groundwater administrator's functions under this article.
(Ord. No. SRO-94-85, Section 9, 1-23-85)
APPENDIX A
ZONING*
*Editor's note - The zoning regulations, Ord. No. SRO-39-76, adopted
Dec. 20, 1975, are not set out herein, but are available under separate
cover.
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