Newspaper column: Rural groundwater grab gets federal court hearing

If whiskey is for drinking and water is for fighting, this fight has gone on for 28 years 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.

This past week 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.

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

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 he argued that is not possible.

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 state 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.

But in this past week’s federal suit 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 available.

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.

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 a dwindling Lake Mead.

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

Buoying the plaintiffs’ arguments is a 2014 study by the U.S. Geological Survey.

Because of the magnitude of the project and the interconnected nature of groundwater basins in the region, there have been concerns that new pumping will threaten the wetlands and ranches that rely upon them, said Melissa Masbruch, USGS scientist and lead author of the study.

The study calculated all the current groundwater recharge 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 current outflow is added up — wells, springs, streams and outflow to other aquifers— it is almost precisely the same amount of water — equilibrium.

More wells would upset the balance.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Protesters oppose Clark County taking rural Nevada groundwater.

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