A Critique of the Student Note Entitled 'The Battle to Save the Verde: How Arizona's Water Law Could Destroy One of Its Last Free-Flowing Rivers

• Date: 01 February 2010

40 ELR 10212 ENVIRONMENTAL LAW REPORTER 2-2010

A Critique of the

Student Note

Entitled “The

Battle to Save the

Verde: How

Arizona’s Water

Law Could Destroy

One of Its Last

Free-Flowing

Rivers”

by Colleen M. Auer

Colleen M. Auer is Deputy Town Attorney,

Town of Prescott Valley, Arizona.



Eective ma nagement of scarce water resources is one

of the most critical issues facing western states like A ri-

zona.Extensive regulations designed to address ground-

water overdraft in parts of the state strike a delicate

balance between competing groundwater and surface

water users. at balance is now under attack in a high

stakes controversy over a groundwater importation proj-

ect that pits two northern Arizona communities against

the third largest public power utility in the country and

other interests who claim their water rights (including

surface water rights in the upper Verde R iver) will be

adversely impacted by the project.

“[I]t’s better to be polite and impersonal in your criticisms

        

responding to their argum ents. It’s the right thing to do. It

makes y our article mor e persuasive. It makes you look better.

And it avoids turning your adversa ries into your enemies.”

—Eugene Volokh1

It is undoubtedly a rare thing for a Student Note to evoke

such a visceral reaction that it prompts a detailed critique

on its merits and underlying bias. e Note entitled, “e

         

” published by the

Arizona Law Review in Spring 2009, is such a Note. Like

other published Notes, it is oered as a n objective work of

legal scholarship designed to inuence the bar, the bench

and other readers on t he relative merits of an existing legal

controversy—in this case, the Big Chino Water Ranch Proj-

ect (Project).

But, in fact, as this critique will demonstrate, the Note

is an advocacy piece for opponents of the Project that is

both inaccurate and incomplete, thereby fa iling to fairly

and objectively evaluate the lega l validity of the issues pre-

sented. Each of these aws alone is sucient to mar the

credibility of the Note but, in concert, render the Note

wholly unreliable.

I. The Controversy

e subject of the Note is a pending legal controvers y over

whether the city of Prescot t, Arizona, can withdraw and

transport groundwater from the neighboring Big Chino

Sub-basin into the Prescott Active Management Area

(PRA MA) pu rsuant to the authority granted in Ariz. Rev.

Stat. Ann. (A .R.S.) §45-555(E); and, if so, how much water

can be legally imported by Prescott into the PRAMA

and subsequently shared with the town of Prescott Va lley

(Prescott Valley), also loc ated in the PR AMA.

Rich in history and genia l in nature, Prescott sits in Ari-

zona’s central mountains, 86 miles northwest of Phoeni x

1. E V, A L W: L R A, S-

 N, S P,  G  L R 256 (3d ed.

2007) (Eugene Volokh is a UCLA Professor of Law and noted authority in

academic legal writing).

        

       

  



         

     

law review that published the original note. It also raises several issues

about the standards to which legal publishers hold authors.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.