Judge hears arguments in suit over central Nevada water grab

If whiskey is for drinking and water is for fighting, this fight is in its 28th round and the combatants are still flailing madly.

In 1989 the agency that is now the Southern Nevada Water Authority (SNWA) filed paperwork with the state engineer to lay claim to 589,000 acre-feet of groundwater in central Nevada — primarily White Pine, Lincoln and Nye counties — that would be tapped with a 300-mile, $1.5 billion pipeline from near Ely to Las Vegas. The litigation and hearings and debates began immediately. Since then the amount of water sought has been trimmed to 84,000 acre-feet while the price tag on the pipeline has grown to an estimated $15 billion.

Three years ago several counties and groups filed lawsuits in federal court seeking to block the water grab, claiming the federal land agencies had failed to properly evaluate the environmental damage and follow the law. The lawsuits claimed the Interior Department and the Bureau of Land Management (BLM) violated the National Environmental Policy Act and the Federal Land Policy and Management Act in approving the groundwater project.

On Monday in a Las Vegas courtroom federal Judge Andrew Gordon heard nearly two hours of oral arguments from both sides seeking summary judgment.

“The proposed pumping would amount to a devastating groundwater mining project, under which the groundwater system would not even begin to approach equilibrium for thousands of years, with the potential of never reaching equilibrium,” the original suit by the counties claimed. “As the two Nevada State Court rulings … concluded, it is irrational, arbitrary, and capricious to restrict the consideration of impacts to as short a time period as 200 years when the uniform evidence confirms that the groundwater systems involved will be disturbed and subject to ever worsening drawdown for millennia.”

Judge Gordon noted that in the three years since then the two sides have have filed thousands of pages of briefs.

USGS employee at well near the southern Snake Range, Nev.

Attorney Simeon Herskovits, representing the counties, the Great Basin Water Network and other parties, argued that the federal agencies had failed to consider the impact of the whole project on the environment and the aquifer, but had taken a tiered approach, looking at the impact of each well as it comes online. He noted the objective is for the recharge of the aquifer to equal the draw down by the SNWA wells, but that is not possible.

Throughout the hearing the judge peppered both sides with questions, seeking clarification of their arguments.

Herskovits argued that the wells would drop the water table to the point that wetlands and springs would dry up and affect several endangered species that depend on them.

At times the arguments seemed to parallel those that have already taken place in state court: Is it even possible to predict the wells’ effects and mitigate those effects at some future point.

In 2013 Senior Judge Robert Estes ruled that State Engineer Jason King had the authority to approve the transfer of water from Spring, Cave, Dry Lake and Delarmar valleys to Las Vegas, but had failed to establish objective criteria for just when mitigation — such as halting pumping — would have to be initiated.

In his ruling Judge Estes repeatedly called the plans for monitoring, mitigating and managing (MMM) flawed and the water transfer plan “arbitrary and capricious.”

“There are no objective standards to determine when mitigation will be required and implemented,” the judge wrote. “The Engineer has listed what mitigation efforts can possibly be made, i.e., stop pumping, modifying pumping, change location of pumps, drill new wells … but does not cite objective standards of when mitigation is necessary.”

Judge Estes listed, as an example of objective standards, the plan in place for mitigation at Devil’s Hole in Armagosa Valley, home of an endangered minnow. He said mitigation is triggered when the water level falls 2.7 feet below a copper washer. “This is an objective and recognizable standard.”

But on Monday an attorney representing the BLM, Luther Hajek, noted the job of the BLM is to issue the permit for the pipeline across public lands, while it is up to the state engineer to decide if the water is there.

Judge Gordon questioned the attorney about the BLM’s duty to assess potential degradation, and asked whether the BLM had buried that question in paperwork without really analyzing.

An attorney for the various Indian tribes opposing the water grab, Rovianne Leigh, noted that tribal leaders are trying to pass along long-standing ceremonies to the next generation, but if the water that is central to those ceremonies is gone, so are the ceremonies.

Previously, it was noted that Goshute tribal elders maintain that at the Swamp Cedars Massacre Site — where in 1863 more than 300 Indian men, women, and children were killed by the U.S. Calvary — a swamp cedar tree grew where each one of the Indians fell, and the tribe fears a water table decline would harm the trees.

The tribes’ attorney quoted Ben Frankin, who once said, “When the well is dry we know the value of water.”

Leigh also noted a recent 9th U.S. Circuit Court of Appeals ruling that found the Agua Caliente Band of Cahuilla Indians had a right to groundwater that was being drawn down by various water agencies. The appellate court said the tribe “has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.”

SNWA’s attorney, Hadassah Reimer, argued that the plaintiffs were second guessing Southern Nevada officials who had determined a need to diversify Clark County’s water portfolio, because it draws 90 percent of its water from dwindling Lake Mead. She added that the plaintiffs argue conservation is the answer, but that the district has already cut water usage by nearly 40 percent in recent years.

Reimer also noted it is difficult to assess the impact of the entire project since future well sites have yet to be determined and no start date has been established.

The state engineer has scheduled hearings for the end of September on the court-ordered review of mitigation standards. Gordon said he will rule on the motions for summary judgment before then.

To buoy the plaintiffs’ arguments, a 2014 study by the U.S. Geological Survey found that proposed increases in water withdrawals in and near Snake Valley by the SNWA would likely result in declining groundwater levels and a decrease in natural discharge to springs and streams.

“Because of the magnitude of the proposed development project and the interconnected nature of groundwater basins in the region, there have been concerns that new pumping will disrupt Snake Valley’s groundwater supplies and threaten the wetlands and ranches that rely upon them,” said Melissa Masbruch, USGS scientist and lead author of the new report. “This study can help assess the effects of future groundwater withdrawals on groundwater resources in the Snake Valley area.”

Masbruch added, “This new model represents a more robust quantification of groundwater availability than previous studies because the model integrates all components of the groundwater budget.”

The study calculated all the groundwater recharge for Snake Valley from various sources, including precipitation, unconsumed irrigation and inflow from other aquifers and found that the valley groundwater receives about 175,000 acre-feet. But when all of the outflow is added up — current wells, springs, streams and outflow to other aquifers— it is almost precisely the same amount of water — equilibrium.

This prompted the authors of the study to warn, “Increased well withdrawals within these high transmissivity areas will likely affect a large part of the study area, resulting in declining groundwater levels, as well as leading to a decrease in natural discharge to springs …”

Whatever the judge rules, the reality of the cost to Clark County water customers may also be a factor. A study for the water authority by Hobbs, Ong & Associates of Las Vegas found the cost to drill wells and build pipelines and pumps to send the groundwater to Las Vegas would be $15 billion or, in some years, $2,000 an acre-foot — while farmers in California and Arizona can buy Colorado River water for $20 an acre-foot. The study said Las Vegas water rates would have to triple to pay for the project.

The white ring shows how much Lake Mead’s water level has fallen in recent years. (NY Times pix)

 

 

 

 

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18 comments on “Judge hears arguments in suit over central Nevada water grab

  1. deleted says:

    My old Water Law professor, a really great by the way, and the guy who wrote the book, literally, on water law in the West George Gould use to say “water lows uphill to money”.

    I don’t like the chances of the cow towns. And I mean really, what they’re fight for, are a few ranchers and their efforts to subsidized feed after all so I can’t say I feel to sorry for them.

  2. deleted says:

    Man, guess I should hire Thomas’ proofreader. Should be “Gould is a great guy”. And water “flows” uphill to money.

  3. Steve says:

    50 years is a long time.
    Building this pipeline is tapping into a very limited resource.

    It would be better to build and operate desalination plants in AZ and CA, then trade their output for Colorado River water.
    The brine could be processed further to supply salt for use in molten salt solar concentrating power plants rather than dumped back into the sea or underground.
    Add to this the ever predicted rising ocean levels and the virtually endless supply of salt water coupled with the costs for the pipeline, pumps; operation and maintenance compared with the costs of desalination in the coming decades and this should be an easy decision.

    Stop the pipeline and go with desalination like Mr. Entsminger has already indicated.

  4. Desalinization would be a better choice. Not so sure about the molten salt power plant. The one near Tonopah was down for repairs for eight months shortly after beginning operation.

  5. Steve says:

    Nice.

    Just looking for options to offer the so called “greens” out there.

  6. Rincon says:

    Desalination is expensive. A good Conservative would simply decide which option costs the least and then go with it. Who cares about the water table two hundred years from now? As Conservatives say about oil, “Don’t worry. By that time, technology will find a substitute.”

  7. deleted says:

    And I have to say how twisted it is that people who constantly whine about environmental regulations want to use environmental rules to accomplish their goals; seems wrong especially since what they want to use these rules for is maintaining subsidies for ranchers. I bet Bundy has no problem with the BLM doing that!

    From jail.

  8. Steve says:

    “Desalination is expensive.”

    The pipeline will cost more and run out fast.

    Conservatives also look at supply.

    Or have you already forgotten “Reaganomics”?

  9. Rincon says:

    I suspect that you have no way of knowing which would provide more value for the money, but I am open to any information you wish to provide except for mere assertions. My point is that Conservatives would view the preservation of an aquifer for those people 200 years from now as worthless, and therefore, not part of the equation.

  10. Steve says:

    As I said in the earlier post (which you AGAIN willfully choose to ignore)

    The aquifer is a LIMITED RESOURCE it will run out.

    Oceans are a virtually unlimited resource. and (with all those sea levels drowning all those coastal cities) draining off a bunch of sea water is much more beneficial than sucking out an aquifer that is already at equilibrium.

    See? sated your demand for total selfishness in that. Nothing about preserving an aquifer, in fact a bunch about it already at full consumption. (Sorry I let that bit about being “concerned” over all those city building being under sea water due to all those glaciers melting…prolly confused you)

  11. Bill Shuster says:

    Apparently someone overlooked the rape of Nye County water rights that happened in mid to late 1990’s. Hundreds of water rights were stolen from Nye county residents, most of whom were never notified they were at risk. Myself for one!

  12. Steve says:

    Same crap happened in south west Utah, Bill.
    LVVWD went on a binge grabbing any water they could get away with. Money no object, so plenty of grease was used on local officials.

  13. Rincon says:

    “The aquifer is a LIMITED RESOURCE it will run out.” So does an oil well. Does that mean it shouldn’t be tapped?

  14. Steve says:

    When you lose the fight, change the subject….SOP

  15. Rincon says:

    I responded directly to your comment. How is that changing the subject? Nevertheless, your accusation is no surprise. It’s what one must do when there is no legitimate rebuttal.

  16. Steve says:

    Nope.
    You tried to change the subject to something you think is better for your argument.

    Funny thing about that is, it’s not better. In kact your attempt proved my statements in multiple ways.

    Go ahead, ask, but you know the answers.

  17. Rincon says:

    “Nope.”

    Liar.

  18. Steve says:

    Oh, I hurt your “feeling” …..

    You failed to change the subject!

    laugh.

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