## Facts

- Kirkland Creek historically ran through a natural channel across land later owned by Watts E. and Lucille Collier, but the creek eventually changed course, leaving an older channel segment dry.
- In 1979, a spring (“Miracle Spring”) emerged in a dry portion of the former Kirkland Creek bed on the Colliers’ property.
- The Colliers built a dam to impound the spring’s water for irrigation and applied to the Arizona Department of Water Resources (ADWR) for a permit to appropriate the water as public surface water.
- Downstream ranchers with earlier appropriative rights in Kirkland Creek protested, asserting the spring’s water would naturally flow down the old channel and rejoin Kirkland Creek.
- After an administrative hearing, ADWR found that, absent impoundment, the spring’s flow would run down the former channel and join Kirkland Creek, and that the creek’s flow was sometimes insufficient to satisfy existing appropriations.

## Issues

1. Whether ADWR was required to deny the Colliers’ application under A.R.S. § 45-143(A) because the proposed appropriation would conflict with vested downstream surface-water rights in Kirkland Creek.
2. Whether the spring’s flow should be treated as appropriable surface water (tributary to Kirkland Creek) rather than non-appropriable percolating groundwater.

## Decision

- The Court of Appeals of Arizona affirmed the superior court’s judgment upholding ADWR’s denial of the permit.
- The court held substantial evidence supported ADWR’s findings that, if not impounded, the spring’s water would flow into Kirkland Creek.
- Because the spring’s flow would naturally contribute to the creek, the water was treated as tributary surface water for purposes of the appropriation system.
- Granting the permit would reduce water available to downstream senior appropriators and therefore would conflict with vested rights, requiring denial under A.R.S. § 45-143(A).

## Legal Principles

- Under A.R.S. § 45-143(A), ADWR must reject an application to appropriate water if the proposed appropriation conflicts with vested rights.
- Water that naturally flows to and contributes to a stream may be treated as tributary to the stream and subject to the surface-water appropriation system.
- Prior appropriative rights in a stream are protected against later diversions that would diminish the water reaching senior downstream users.
- Administrative factual findings on hydrologic connection and impairment will be upheld when supported by substantial evidence.

## Conclusion

ADWR properly denied the Colliers’ application to appropriate water from Miracle Spring because the spring’s flow would naturally join Kirkland Creek, and impounding it would impair senior downstream surface-water appropriators in violation of A.R.S. § 45-143(A).


Collier v. Ariz. Dep’t of Water Res., 722 P.2d 363 (Ariz. Ct. App. 1986)