Clint Dunaway, Author at Dunaway Law Group, PLC Page 2 of 22

Glossary Well Share Agreements

100-year Assured Water Supply. Water of sufficient quantity and quality is available to sustain a proposed development for 100 years and will be consistent with the management goal and management plan of the active management area.

Acre-foot: The volume of water required to cover 1 acre to a depth of 1 foot and is equal to 43,560 cubic feet or 325,851 gallons. In Arizona, 1 acre-foot is typically enough water to serve 3 single-family homes for a year.

Arizona Association of Realtors (AAR). Arizona Association of Realtors is the largest trade Association in Arizona, representing more than 40,000 Arizona Realtors subscribing to the strict code of ethics outlined by the National Association of Realtors. In addition to providing a number of benefits and services, AAR is dedicated to the protection of private property rights and the best interests of Arizona realtors in legislation and strives to provide the best and most current legal information and education available.

Arizona Water Settlement Act (AWSA). The AWSA represents a significant accomplishment and settles numerous water rights issues in Arizona. The settlement provides funding that will enable the Gila River Indian Community and Tohono O’odham Nation to rehabilitate and expand water infrastructure to meet the needs of their reservations. The AWSA also provides funds to pay the fixed operation and maintenance charges associated with delivery of CAP water to Arizona Indian tribes. The Act allows tribes to make use of water rights that previously existed only on paper. In addition, it brings long-sought certainty to cities and communities as they plan their growth and development and is a major component of a long-term water plan for Arizona.

Abandoned Well. Abandoned wells must be properly plugged by an Arizona licensed well driller after a Notice of Intent to Abandon (NOIA) the well has been filed with ADWR, and an abandonment authorization has been issued to the driller. This authorization from ADWR is required prior to well abandonment, and the landowner may be liable for any groundwater contamination or injury that results from lack of proper abandonment.

Active Management Areas (AMA). Five geographic areas designated by the Arizona Groundwater Code (1980) requiring active management of groundwater. Each AMA has a management goal, a management plan, a groundwater-rights system, restrictions on agricultural land expansion, and other requirements designed to preserve groundwater resources.

Adequate Water Supply Program. The adequate water supply program operates outside of the Active Management Areas (AMAs). It ensures that the water adequacy or inadequacy is disclosed in the public report provided to potential first purchasers and that any water supply limitations are described in promotional or advertising material. However, in a mandatory adequacy jurisdiction, adequacy of water supplies must be demonstrated prior to plat approval and issuance of a public report.

Anthropogenic Contaminants. Anthropogenic contaminants are found in water as a result of human activities that release industrial and agricultural chemicals into the environment, and those derived from land use activities such as oils and grease flushed off of roadways. The volumes released vary widely and their fate and transport within the environment depend on their chemical and physical properties, and how each medium responds to their presence. Some contaminants are harmless or are not known to be toxic; others degrade, decomposing into harmless chemicals. Other contaminants can accumulate in our tissue and organs and be a potential danger to our health.

Aquifer. An underground geological formation of sand, soil, gravel, and rock that is able to store, transmit, and yield water.

Arizona Department of Water Resources (ADWR). A state agency established by the Arizona Groundwater Code of 1980 to administer and enforce the code provisions. Its primary mission is to ensure a long-term water supply for Arizona.

Assessor’s Parcel Number (APN). An Assessor’s Parcel Number, abbreviated as APN, is a unique descriptor used to identify assessed property within Arizona. It includes information about the ownership, characteristics, and valuation of each piece of land that is reordered and tracked by parcel number.

Assured Water Supply Program. The Arizona assured water supply program operates within Arizona’s five Active Management Areas (AMAs). It is designed to sustain the state’s economic health by preserving groundwater resources and promoting long-term water supply planning. AMAs are those areas of Arizona where significant groundwater depletion has occurred and include portions of Maricopa, Pinal, Pima, Santa Cruz and Yavapai counties.

Assured Water Supply compared to the Adequate Water Supply Program. The assured water supply program covers subdivisions within Active Management Areas (AMAs), while the adequate water supply program covers developments outside of the AMAs. Four types of applications are processed in each of these roughly parallel programs: physical availability demonstration (PAD), designation of assured or adequate water supply, analysis of assured (or adequate) water supply, and either a certificate of assured water supply or a water adequacy report. Both programs are driven by the definition of a subdivision from the Arizona Department of Real Estate (ADRE) as six or more Parcels with at least one parcel having an area less than 36 Acres. Applicants are required to demonstrate an assured water supply that will be physically, legally, and Continuously available for the next hundred years before the developer can record plats or sell parcels.

Bladder Tank (Hydropneumatic Tanks). Bladder and hydropneumatic tanks are vessels that hold water and are under pressure in order to provide an efficient water supply. Compressed air creates a cushion that can absorb or apply pressure if needed. Air is held between the tank wall on the outside of a bladder, while the water is contained inside of the bladder. The air compressors as the bladder expands when the pump is running. Hydropneumatic tanks hold the air and water in direct contact and therefore require a constant replenishment of air in order to maintain a proper ratio of air and water.

Certificate of Assured Water Supply: A developer of a proposed subdivision must have a 100-year Assured Water Supply to obtain plat approval and offer lots for sale. They can demonstrate that supply one of two ways: 1) By obtaining a commitment of water service from a water provider that has been designated by ADWR as having an AWS, or 2) by obtaining a Certificate of AWS from ADWR. To obtain a Certificate of AWS, the applicant must demonstrate that the water will be physically, continuously, and legally available for 100 years.

Drawdown. The difference in elevation between the static water level and the pumping water level in a well.

Exempt Well. In Arizona, an exempt well (a.k.a. Domestic Well) has a maximum pump capacity of not more than 35 gallons per minute and water is not used for irrigation purposes inside an Active Management Area. Typical uses include non-irrigation purposes, non-commercial irrigation of less than 2 acres of land, and watering stock. Most exempt Wells are used for residences and are more than adequate for household use, but because they are exempt from reporting water quality, the well owner is responsible for ensuring the water is safe to drink.

Gallons Per Minute. Gallons per minute is an instantaneous measurement (GPM) of the flow rate of water from a well. It may or may not be the true value of the long-term sustainable pumping rate of the well. A measurement of gallons per day (GPD) that the well can produce would be a better method to compare and classify the productivity of a given well.

Hydraulic Fracturing. The process in which water or other fluid is pumped with sand under high pressure into a well to fracture and clean-out the rock surrounding the well bore thus increasing the flow to the well.

Index Wells. A subset of all wells in Arizona, these consist of approximately 1,800 wells that the Department designated to create a long-term record of groundwater level fluctuations by measuring depth to groundwater at least once per year.

Irrigation non-expansion Areas (INAs). Areas designated as having insufficient groundwater to provide a reasonably safe supply for irrigation at the current rate of withdrawal. Once an INA is established, additional land may not be irrigated to preserve the existing irrigation of cultivated lands. There are three INAs in Arizona: Douglas, Harquahala, and Joseph City.

Irrigation Well. Irrigation Wells are not exempt from regulation, and the Arizona Department of Water Resources requires reporting extracted volumes of water used in commercial agriculture. Irrigation wells typically have a capacity greater than 35 gallons per minute and irrigate more than two acres. Under the Arizona groundwater code, there are several locations in Arizona or expansion of irrigated land is prohibited, and within the AMAs, operation of irrigation Wells total annual pumpage may be restricted.

Land Subsidence. The pressure exerted by liquid. Hydrostatic pressure increases with depth because of the increasing weight of fluid.

Non-exempt Wells. In Arizona, a non-exempt well must report the volume pumped (irrigation, industrial, and Municipal Wells) and monitor and Report water quality for water used for drinking water purposes (Municipal well and some industrial Wells). Wells exempt from these reporting requirements are limited to less than a maximum capacity of 35 gallons per minute and include non-irrigation purposes, non-commercial irrigation of less than 2 acres of land, and watering stock (livestock well).

Notice of Intent (NOI). The name of four different forms prescribed by the ADWR to be completed and filed prior to drilling a water well, an exploration borehole, or a monitoring well, or prior to abandoning any well.

Pitless Adapter. A special fitting installed in the side of the well casing that allows the water from the pump to exit the well groundwater and below the freeze line.

Potable Water. Water which is satisfactory for drinking, culinary, and domestic purposes.

Pressure Switch. An electrical device that turns a well or booster pump on and off at specified pressure settings measured in pounds per square inch (PSI).

Recharge. Water added to a groundwater aquifer. For example, when rainwater seeps into the ground. Recharge may occur naturally through precipitation or surface water or artificially through injection wells or by spreading water over groundwater reservoirs.

Reclaimed Water. Or recycled water, is former wastewater that is treated to remove solids, reduce organic matter, and disinfected enough to meet reuse standards. In Arizona parks and gold courses must use reclaimed water for sustainable landscaping irrigation. It is also used to recharge groundwater aquifers; to sustain some riparian habitats; to meet commercial and industrial water needs; and, with additional treatment, for drinking.

Registrar of Contractors (ROC). The Arizona Registrar of Contractors issues licenses for commercial and residential work and dual licenses that covers both commercial and residential for each particular trade or field of the construction profession. Water well drillers must be licensed by the Arizona Registrar of Contractors.

Shock Chlorination. A procedure whereby a strong oxidizing agent (typically chlorine) is mixed into the water of a well or a storage tank to inactivate or kill microorganisms that might be harmful to humans.

Static level. Stabilized water level in a non-pumped well, beyond or outside the area of influence of any pumping well.

Sustained Yield. Attempts to limit groundwater pumping have been commonly based on the concept of say field, defined as the attainment and maintenance of a long-term groundwater Supply, typically by limiting the rate of extraction to the rate of recharge. Sustainable development of groundwater resources must meet the needs of the present without compromising the ability of future generations to develop and use groundwater in a manner that can be maintained for an indefinite time without causing unacceptable environmental, economic, or social consequences.

Water Well Logs. Also known as borehole logging, is the practice of making a detailed record (a well log) of the geologic formations penetrated by a borehole. Many logs will include the ‘as-built’ diagram of the well depth, screen length, and pump placement.

Xeriscaping: An environmentally-friendly form of landscaping that uses a variety of indigenous and drought-tolerant plants, shrubs, and ground cover.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. The Firm limits its practice to the states of Arizona and New York.

Motion for Summary Judgment

What is a Motion for Summary Judgment?

A Motion for Summary Judgment is a pleading used in civil lawsuits.

filed where a party is asking the judge to rule the issues in dispute without the need for a trial. This is known as a summary judgment, in that it summarily ends the case before trial. The purpose of a trial is to have somebody — the judge or the jury — decide what the facts are. If the facts are not in dispute, there is no need for a trial.

This blogpost will discuss when a Motion for Summary Judgment is used in a lawsuit and how to defend against it.

When is a Motion for Summary Judgment used?

A Motion for Summary Judgment is used when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. In other words, the party filing the motion is saying that there are no disputed facts that would require a trial, and the court can rule in their favor without the need for a trial.

A Motion for Summary Judgment is typically filed after the discovery process is completed, and all relevant evidence has been gathered. It is important to note that the moving party has the burden of showing that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. If the moving party meets this burden, the court will grant the motion, and the case will be dismissed or the claim(s) in question will be dismissed.

There must be “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law”. This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

If the facts are not in dispute, there is no need for a trial. Instead the party who believes that the undisputed facts compel a ruling in his or her favor will file a motion for summary judgment. The motion asks the court to consider the undisputed facts and apply the law to them, and argues that the law requires a judgment for the party bringing the motion.

When considering a Motion for Summary Judgment, judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Under Arizona Rules of Civil Procedure 56(c), a judgment can be entered only if the court finds that no genuine issues of material fact exist. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

Why File a motion for Summary Judgment?

Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part because a judge can rule on just one aspect of the case. This will allow the Movant to “chip away at the edges” of the lawsuit to see if they can get any of the claims for relief awarded.

Statement of Facts and Affidavit

A Statement of Facts and Affidavit(s) are submitted along with the Motion for Summary Judgment.

Statement of Facts– For the movant party, (person filing the MSJ) they must file a Statement of Facts providing the facts of the situation as they see them.
- Supporting Documents-In addition to just stating the “facts”, each Party must provide documentation that supports their statement facts. When it decides a motion for summary judgment, the court may only consider facts in the pretrial record, such as deposition testimony, affidavits, answers to written discovery requests, documents, etc. It cannot decide which side is more credible than the other. If the court has concerns about the credibility of witnesses or which side to believe, the case should be resolved in a trial.
Affidavit in Support– Both Parties must file an affidavit swearing that their statements are true.

responding to the motion

A response to the Motion for Summary Judgment must be filed within 30 days of receiving the motion. A response gives a party the opportunity to respond to the allegations made in the Motion for Summary Judgment. As part of the response, a statement of facts and affidavit must also be filed. Similar to the opposing party’s statement of facts, the respondent must cite a source for every statement made to the court. Doing this is incredibly tedious and time consuming!

How to defend against a Motion for Summary Judgment?

When facing a Motion for Summary Judgment, the non-moving party has a few options for defending against it. Firstly, the non-moving party can argue that there are genuine disputes of material fact that require a trial. To do this, the non-moving party must point to specific evidence that creates a genuine dispute of material fact.

Secondly, the non-moving party can argue that the moving party is not entitled to judgment as a matter of law. This may be because the moving party has not met their burden of proof or because the law is not clear on the issue in question.

Finally, the non-moving party can argue that the court should deny the Motion for Summary Judgment without prejudice. This means that the court would not dismiss the case or claim(s) at this time, but rather, would allow the case to proceed to trial. This option is typically used when the non-moving party needs more time to conduct discovery or gather evidence.

RULING ON THE MOTION FOR SUMMARY JUDGMENT

There are essentially three way a Judge can rule.

The Arizona Judge may rule 100% against the Party filed the Motion for Summary Judgement. If the Judge rules completely against the moving Party then the case will continue towards trial as if the Motion for Summary Judgment had never been filed!
The Arizona Judge may grant a partial summary judgment. Meaning the Judge ruled in favor of the moving Party on some of their claims but not on all of them. If a partial summary judgment is awarded, then a decision is made on the claims involved without holding a trial but the the remaining issues will continue towards trial.
The Arizona Judge may rule 100% in favor of the Party who filed the Motion for Summary Judgment. If this happens, if the Judge rules completely in favor of the party who filed the Motion for Summary Judgment then it is deemed to be a final judgment from which a party may appeal. On appeal, the appellate court can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done because most summary judgments are upheld on appeal. Lastly, depending on the type of case, the winning party will likely be awarded their attorneys’ fees and costs.

In conclusion, the legal doctrine of Motion for Summary Judgment is an important tool for litigators in civil cases. It allows parties to avoid a trial when there are no genuine disputes of material fact and one party is entitled to judgment as a matter of law. However, when facing a Motion for Summary Judgment, the non-moving party has options for defending against it. They can argue that there are genuine disputes of material fact, that the moving party is not entitled to judgment as a matter of law, or that the court should deny the Motion for Summary Judgment without prejudice. Ultimately, it is up to the court to determine whether a Motion for Summary Judgment should be granted or denied.

If you need help from an Arizona attorney then contact the Dunaway Law Group at or 480-702-1610 or by sending us a message HERE.

Recording Shared Well Agreement

A completed well share agreement is to be recorded with the relevant Arizona county recorder’s office. Once recorded, a copy of the agreement should be delivered to the Arizona Department of Water Resources.

Understanding the importance of recording a well share agreement, starts with an understanding of the difference between “real property” and “personal property”.

Real Property. Is also known as “real estate” or “realty,” refers to immovable or fixed property. It comprises land and everything permanently attached to it, such as buildings, houses, and other structures. Additionally, real property can encompass natural resources present on the land, including minerals, water bodies, trees, and crops that are grown on it. The ownership of real property grants the holder not only the land but also the rights to the structures and resources present on it.

Personal Property. Refers to assets that are not attached to land and can be moved from one location to another without altering their fundamental characteristics. Personal property encompasses a wide range of items, including furniture, vehicles, electronics, jewelry, and other tangible belongings.

Arizona Wells Become “Real Property”.

The State of Arizona owns the groundwater beneath real property!

Just Owning Land Does Not Give Rights to the Groundwater Beneath the Land!

Groundwater is not real property. Percolating water beneath the earth in Arizona is called “groundwater”.
Groundwater is considered “public” property managed by the Arizona Department of Water Resources.
Once water is pumped to the surface–from an approved well–and placed into a storage tank, it becomes the personal property of the landowner.

recording it with the county recorder

A shared well agreement must be filed with the county recorder in which the shared well lies. For example, if the shared well is located in Maricopa County, Arizona then it needs to be recorded with the Maricopa County Recorder’s office.

Apache County Recorder’s Office:
Cochise County Recorder’s Office:
Coconino County Recorder’s Office:
Gila County Recorder’s Office:
Graham County Recorder’s Office:
Greenlee County Recorder’s Office:
La Paz County Recorder’s Office:
Maricopa County Recorder’s Office:
Mohave County Recorder’s Office:
Navajo County Recorder’s Office:
Pima County Recorder’s Office:
Pinal County Recorder’s Office:
Santa Cruz County Recorder’s Office:
Yavapai County Recorder’s Office:
Yuma County Recorder’s Office

***NOTE: The Arizona Shared Well Agreement must be recorded with the relevant Arizona county recorder before it can be submitted to the Arizona Department of Water Resources.

recording your well agreement with the arizona department of water resources

Only after the shared well agreement has been recorded with the county recorder can it be sent to the Arizona Department of Water Resources. Click HERE for a detailed blogpost on how to provide the ADWR is a recorded copy of your well share agreement.

If you have questions about your shared well agreement then contact the Dunaway Law Group, PLC at 480-702-1610 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.

Designated Bank Account for Well

Shared well bank accounts are used to pay for water well electricity, well repairs, and well maintenance. Traditionally, each property owner pays a flat amount to cover the cost of the electricity and to set aside money for repairs.

A well share bank account can help the parties save a little each month to cover the cost of expensive repairs.

1. Pay the Electricity Costs for the Well

Electric pumps bring water from the well into a storage tank. Traditionally, there is a single electricity meter attached to the pump. As such, it is impossible to tell how much electricity was used to deliver water to a particular household. For this reason, most Parties to a shared well agreement pay an equal amount of money each month for the electricity.

2. Save for Major Repairs to the Water Well

The second major reason homeowners use a joint checking account is to set aside a little money each month for major repairs to the well. With this nest egg, no one is left scrambling to come up with the money.

Major repairs may include replacing a pump, fixing a water leak, or even deepening the well.

Open the Bank Account Now– Even if the well share agreement is not finalized it is not too early to open the shared bank account.
Specific Purpose– The well share bank account should not be used for any other purpose than maintaining the water well.
Equal Access to the Bank Statements– The bank can send monthly statements to each homeowner. This way, every can verify that the electricity bill is being paid and that the accumulated money stays in the account.

contact the dunaway law group, plc

For assistance with your water well contact us by phone at 480-702-1608 or message us HERE.

These blog posts are not intended, nor shall they be deemed to be the rendering of legal advice. Reading these blog posts does not create an attorney-client relationship, nor shall it impose an obligation on the part of the attorney to respond to further inquiry. The Dunaway Law Group limits its practice to the states of Arizona and New York.

2004 Examination in Bankruptcy

Rule 2004 of the Federal Rules of Bankruptcy allows any “interested person” to depose someone who filed bankruptcy. Additionally, the bankruptcy filer must producer documents on matters related to your bankruptcy. The 2004 Exam can cover a broad range of issues, including:

Your actions, conduct or property, your debts and financial condition, any issue that relates to your bankruptcy assets or Chapter 13 plan, and any matter that affects your right to a discharge.

A 2004 Exam is not like a 341 meeting of creditors. It is more formal and involves a more detailed investigation of issues related to your bankruptcy. It is similar to a deposition, sometimes requiring the production of documents. Additionally, 2004 Exams last much longer than a 341 hearing, often lasting several hours.

Rule 2004 Exams are typically held in a law office and not the bankruptcy courthouse. If you are looking for an Arizona bankruptcy then call us at 480-389-6529 or message us HERE.