SPRING ISSUE 2020

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ARIZONA'S GROUNDWATER MANAGEMENT ACT AT FORTY: TACKLING UNFINISHED BUSINESS

BY: KIRSTEN ENGEL, ESTHER LOISELEUR, AND ELISE DRILHON

Forty years ago, motivated by dropping water tables and land subsidence, Arizona lawmakers enacted the 1980 Groundwater Management Act. At the time, the Act was hailed as the most far-reaching state legislation to control rampant groundwater depletion ever enacted. Despite the rhetoric, however, the Act never dealt with Arizona’s groundwater usage in a comprehensive manner and today its shortcomings are starkly apparent. Plunging water tables in rural areas are forcing homeowners and businesses to either drill deeper wells or relocate. Riparian areas are being lost, and with them, Arizona’s unique desert ecosystems.  

 

This Article argues that Arizona lawmakers must return to the drafting table to complete the work started in 1980—creation of a groundwater management code, based in science, that will ensure the equitable and sustainable use of groundwater across the entire State for current and future generations.

 

This Article suggests two options for future legislation: a property rights approach employing a cap and trade regime to achieve safe yield in individual groundwater basins, and a traditional regulatory scheme that balances the competing interests of the state and local government in groundwater regulation. The latter, labeled here as “cooperative localism,” would require minimum state standards for attaining and maintaining safe yield conditions in all of Arizona’s aquifers but would enable local governments to develop plans to meet those safe yield conditions. Whatever regulatory pathway Arizona chooses, forty years is not too late to craft a solution that fulfills the GMA’s promise of providing comprehensive protection to Arizona’s groundwater resources...

The vaquita marina is a critically endangered porpoise, only found in the Gulf of California, whose numbers have dropped precipitously over the last few years such that fewer than 20 individuals remain in the population. Their predicament is exacerbated by the fact that they are often killed as bycatch in Mexican fishing nets set out to catch totoaba, an endangered fish endemic to the same waters. The totoaba, like many other endangered species, are imperiled by the high prices they command in illegal wildlife markets in other countries. Although both vaquita and totoaba are protected by environmental regimes such as the U.S. Endangered Species Act and the Convention on International Trade in Endangered Species, efforts to apprehend and prosecute totoaba traffickers under these laws have been weak and ineffective, as have fishing bans and enforcement in Mexico. 

But wildlife traffickers who trade internationally in these endangered species are committing additional crimes such as smuggling, bribery, money laundering, and even drug trafficking. Yet existing tools and resources for these financial and other crimes, which include heavier penalties than environmental crimes, often go unused by law enforcement in investigating and charging wildlife traffickers. This article argues that wildlife traffickers should be more consistently prosecuted under these financial crime tools. Moreover, financial sanctions tools available to the U.S. Treasury could be effective for rapidly cutting off funds to the organized criminal networks engaged in wildlife trafficking.

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