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Show ARIZONA 115 within the same ground water basin but outside the critical ground water area-equal to the historical use which had been made upon the land acquired. However, the court made clear that the water could not be withdrawn for municipal purposes and also to irrigate its municipal property within the basin, since this would amount to a double water supply, and would not constitute a reasonable use. The general rule is that percolating ground water can only be used on overlying lands, and the court noted that it was departing from the rule, but found justification for so doing in the statutory provision recognizing a preference to municipalities in the use of water.87 With respect to administration of ground water, Arizona en- acted a ground water code in 1948 in an attempt to regulate certain areas of ground water use within the State. The act provides that any person owning or operating a well for irrigation or drainage which was drilled prior to October 3, 1945, shall file a report detail- ing the nature and extent of the use being made of the well. It is further provided that no new wells shall be drilled without first filing a notice with the department and also filing a log of the well upon its completion.88 This act defines a critical ground water basin as a ground water area not having sufficient ground water to provide a reasonably safe supply for the irrigation of the cultivated lands located within the basin at the then current rates of withdrawal. A critical ground water basin may be designated by the department if it finds that the facts justify it, or upon a petition filed by the requisite number of users within the basin. However, such an area shall not be created until notice is given and a hearing is held by the depart- ment. During the time that the department is investigating the area and before it actually makes the designation, it can issue an order prohibiting the drilling of any new wells until after the hearing is held, or until a subsequent order by the department. Wells already substantially under construction are to be exempt from the provisions of any such order.89 In order for a well to be "substantially" com- menced, there must be more than mere preparatory work-there must be an actual commencement of the drilling of the well.90 The official designation of a critical ground water area shall not take effect until the department prepares and publishes its findings.91 Once a basin is designated as critical, no irrigation well can be drilled without first submitting an application to the department and receiving a permit. However, the act does not appear to vest much discretion in the department in this regard, since it provides that upon the filing of an application the department is to issue a permit, subject onlv to the qualification that a permit will not be issued where land is not already being irrigated or has not been cultivated in the last 5 years.92 The point of diversion for a well can be changed after a permit is issued upon the filing of a v. State Land Dept., 106 Ariz. 506, 456 P. 2d 385, 479 P. 2d 169 (1970). «• Ariz. Rev. Stat. sees. 45-304, 305, 306. 89 Ariz. Rev. Stat. sees. 45-301, 308. 309, 313. *> State v. Harpham, 2 Ariz. App. 478, 410 P. 2d 100 (1966) ; State v. U.8. Land Co., 3 Ariz. App. 167, 412 P. 2d 736 (1966). n Ariz. Rev. Stat. sec. 45-310. 93 Ariz. Rev. Stat. sec. 45-313 ; Vance v. Lassen, 82 Ariz. 188, 310 P. 2d 510 (1957). 499-242-73------9 |