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.

Editorial: Nevada water law needs to be more flexible

Humboldt River (John Lane photo)

Nevada is the driest state in the union and lawmakers are grappling with how water law in the state could be changed to cope with that fact.

The Legislative Commission’s Subcommittee to Study Water — chaired by state Sen. Pete Goicoechea, a Diamond Valley rancher whose district covers all of Elko, Eureka, Lincoln and White Pine counties and parts of Clark and Nye counties — met in Las Vegas this past week to hear seven hours of testimony on this topic. Other meetings are being scheduled around the state.

The first Nevada water law was passed in 1866 and recognized the vital role of mining in Nevada. The current law recognizes the basic principles of prior appropriation and beneficial use: First in time is first in right, but the water must be put to a beneficial use or the right is forfeited.

Jason King, the state engineer whose office determines water rights within the state, suggested several changes in the law, including “conjunctive management” of surface and ground water.

“We do not have anything in statute that allows us to conjunctively manage the surface water and ground water. …” King told the panel. “At a minimum we’d like to see some acknowledgment that our office has the ability to deal with surface water and ground water together.”

In prepared comments for the meeting, King’s office noted that the early history of water development in Nevada focused on surface water, and it was not until 1907 that issues regarding the use of groundwater began to emerge. Wells drilled in Las Vegas, for example, resulted in declines of spring flows and a drop in the water table. Not until 1913 did the Legislature enact a law that provided all water, surface and groundwater, is subject to appropriation.

King pointed out that the drought has caused conflicts between the holders of water permits for surface water and groundwater, and, if his office can’t mitigate those conflicts, the courts may rule the senior surface rights take precedent over the junior rights of water well owners and those wells could be ordered shut down to protect stream flows.

King also told the committee the law needs to be changed to allow flexibility in water management, including recognizing water banking as a beneficial use, suspending the use-it-or-lose it aspect of the law and changing the law’s priority structure under which domestic household water wells would have to be curtailed if they impacted senior surface water rights, calling that an obvious health and safety issue. King noted that 98 percent of domestic wells in Nevada have junior rights.

“It’s not anything our office gets any satisfaction out of, but I tell you we stand prepared to curtail by priority if we need to. …” the state engineer explained the requirement under current law. “Obviously, we don’t want to do that, but we’re ready to do that and that is our hammer in the water law.”

He said an example of cooperative water planning and mitigation occurred when Ely agreed to allow a copper mine to essentially dry up a stream in exchange for the jobs and economic benefits of the mine, and said his office needs that kind of flexibility.

King also called for metering of the vast majority of water used in the state, surface and groundwater, saying, “You can’t manage what you can’t measure.”

One presenter at the water law meeting noted that a recent study found that in the Colorado River Basin the period of 2000 to 2015 was the driest 16-year period in the 101-year historical record for the basin and there are forecasts that suggest the region may be due for a three-decade-long megadrought.

On the other hand, a study of tree rings along the banks of the Colorado River by researchers from the University of Arizona found that the 20th century was the wettest of any century going back to the 4th century B.C.

So, what Nevada is experiencing now may well be normal and the wet 20th century was the anomaly — making it more urgent than ever to enact equitable changes to water law and experiment with allowing water to be bought and sold on the free market, the best way to allocate any commodity.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Nevada Supreme Court refuses to hear appeal of Las Vegas rural water grab

The Nevada Supreme Court has dealt another blow to the Las Vegas attempt to grab groundwater from Lincoln and White Pine counties.

In December 2013, state court Senior Judge Robert Estes ruled that State Engineer Jason King had failed to establish adequate criteria for protecting the residents of eastern Nevada and western Utah from damages that might result from drawing down the groundwater to supply the Southern Nevada Water Authority with 84,000 acre-feet a year of groundwater from Spring, Cave, Dry Lake and Delamar valleys.

Now the high court has ruled that since the judge remanded the matter to the state engineer for further studies and review that the case is not yet appealable.

Crops in eastern Nevada already are irrigated with groundwater. (Photo by Kristi Fillman for GBWN)

The unpublished opinion cited the judge’s own words about how the engineer’s findings were lacking. Judge Estes repeatedly called the plans for monitoring, mitigating and managing the water transfer “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 concluded that if “it is premature to set triggers and thresholds, it is premature to grant water rights.”

In a press release, attorney Simeon Herskovits, representing one the groups suing to halt the water grab, Great Basin Water Network, said, “SNWA has had 25 years to provide basic information proving that its proposed project to pump and pipe water out of these rural valleys would be sustainable and comply with the most basic requirements of Nevada’s water law. The fact that they not only have failed to produce such evidence in all that time, but also have gone on record saying repeatedly that they cannot produce such evidence, only goes to show this misguided proposal never has been and never will be scientifically defensible or legally permissible.”

Abby Johnson, president of GBNW, added, “All of the science actually shows that SNWA’s plan to pump groundwater out of these rural valleys and pipe it down to the Las Vegas Valley simply will not be sustainable and cannot avoid destroying existing water rights and the environment in the vast affected area.”

Since Estes’ ruling a study by the U.S. Geological Survey calculated all the annual groundwater recharge for the valleys involved from various sources is about 175,000 acre-feet. The current outflow — current wells, springs, streams and outflow to other aquifers — is almost precisely the same amount of water — equilibrium.

“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 …” the study concluded.

It is those springs and streams that support livestock, agriculture and a vast array of wildlife, some of which are threatened or endangered. Declining groundwater levels would mean local wells might have to be drilled deeper, a very expensive proposition for local landowners and homeowners.

A study for SNWA found the cost of wells, pumps and pipelines could top $15 billion and triple Las Vegas water bills.

Whiskey might be cheaper.

 

Federal agencies plans to take control of every drop of rain that falls

Might have to get an EPA permit to move a rock.

Might have to get an EPA permit to move a rock.

Is there nothing the federal government will not micromanage into a bureaucratic knot of red tape?

Now the Environmental Protection Agency has rewritten the rules for the Clean Water Act in such a way that gives it authority over just about any stream, dry creek bed or backyard wading pool in the country, even though the law as originally written was meant to protect navigable interstate waterways from pollution.

The proposed rule was published in the Federal Register on April 21. The public comment period will be open for 91 days and will close on Monday, July 21.

According to the Nevada Appeal, at a recent meeting of the Nevada Conservation Commission, state engineer Jason King, whose office determines who in Nevada has rights to various water sources, said, “I look at this as an attempt to get into the regulation of the amount of water — an attempt to get their nose under the tent.”

The commission was told the new rules would require federal permits for the most minor changes to the smallest of tributaries, dry creek beds and just about anywhere rain might fall. It would be devastating to farmers, ranchers and others who use water as a part of their business.

An article in the Nevada Cattlemen’s Association newsletter quoted National Cattlemen’s Beef Association President Bob McCan of Victoria, Texas, as saying:

“This is a step too far, even by an agency and an administration notorious for over-regulation. This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit. This proposed regulation and the burdensome federal permitting scheme will only hinder producers’ ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field.”

The definition of the nation’s waters is changed in the rules to include “rivers, streams, ditches, wetlands, ponds, lakes, playas, and other types of natural or man-made aquatic systems.”

Even without the new rules the EPA is threatening to fine a Wyoming couple $75,000 for building a cattle pond on their property after getting full approval from that state’s water engineer, and there was no evidence of pollution.

The conservation commission voted to protest the rules.