Arizona Water Law: A Parched Public Interest

Water is an essential and increasingly scarce resource in the west. Such scarcity has revealed the importance of considering the public interest in allocating water rights. Many states,
including Arizona, apply the doctrine of prior appropriation to allocate water rights. Arizona, through the Arizona Department of Water Resources, is statutorily required to review all water allocations with the public interest and welfare in mind during its initial appropriation of water rights. However, in reality, the majority of Arizona surface water has already been initially appropriated—increasing the popularity of severance and transfer agreements to change the use of water. Arizona’s water rights transfer statute does not explicitly include a public interest consideration, but allows for objections from “interested persons.” In Arizona Department of Water Resources v. McClennen, the Arizona Supreme Court narrowly construed this language in a manner that precludes the Department from considering the public interest in water rights transfers. This Note considers the implications of McClennen, and examines litigation and transaction models for incorporating the public interest back into Arizona water law.