Editorial: No need for murky water law changes

Two bills proposing to alter water use policy are pending in the Nevada Legislature. They are at best problematic.

Assembly Bill 30 appears to give the state engineer greater leeway in the use of monitoring, management and mitigations — known in the jargon as 3M — to resolve conflicts in water rights. The language is rather vague and subject to interpretation.

Assembly Bill 51 appears to give the state engineer more flexibility in what is called conjunctive management of water. While current law treats surface water and groundwater as interchangeable in a basin in the scheme of allocations, AB51 tells the state engineer to adopt regulations that mitigate conflicts between the two water sources.

Nevada water law is based on the concept of prior authorization, in other words the first one to use a water resource has priority or senior water rights. Those who come later, if there is enough water available, have junior rights that must yield to the senior rights if supply becomes inadequate for any reason.

The Great Basin Water Network, an organization that has been fighting attempts for years by the Las Vegas Valley water provider to tap groundwater in eastern Nevada basins, suspects these two bills are intended to give the state engineer the flexibility needed to allow the project to reach fruition.

GBWN says the Southern Nevada Water Authority’s $15 billion groundwater importation plan would pump 58 billion gallons of groundwater annually in a 300-mile pipeline to Las Vegas. They say the Bureau of Land Management has estimated the project would irreparably harm 305 springs, 112 miles of streams, 8,000 acres of wetlands, and 191,000 acres of shrub land habitat.

A federal judge has so far blocked the water grab from Spring, Cave, Dry Lake and Delamar valleys, saying the state engineer failed to establish any objective criteria for when mitigation — such as halting pumping — would have to be initiated. The engineer plans to appeal that ruling, but a change in state law could moot that.

GBWN questions the effectiveness of the two bills’ calls for monetary compensation and water replacement to make whole senior water rights owners.

Abby Johnson, GBWN’s president, says in an op-ed she has penned for area newspapers, “From ranchers to environmentalists, there is a consensus that we don’t need to fix what isn’t broken. Nevada water law has served Nevadans well for more than 100 years and continues to serve the public interest. That success, however, has stymied a select few.”

The select few, Johnson says, include real estate developers and the Southern Nevada Water Authority, which has “not had much luck in recent years getting what they want under the current legal and regulatory framework. Why? Because what they want is to facilitate unsustainable over-pumping of the state’s fragile, limited groundwater resources.”

She adds, “ The problem –– for all of us –– is that they want water that either doesn’t exist or already belongs to someone else.”

Johnson further charges that the change in law would grant the state engineer “czar-like powers to unilaterally choose winners and losers without regard to senior water rights holders’ existing property rights … which would mire Nevada water rights owners and the state government in complex and unpredictable litigation for years.”

Assemblyman John Ellison of Elko released a statement saying the bills would constitute an unconstitutional “taking” of water rights and said a recent hearing saw a consensus of opposition from industry, ranchers and farmers and not one person testifying in support of either bill.

“We cannot allow an unelected bureaucrat to wield this much power over one of our state’s most precious resources. I’m reminded of the famous Mark Twain quote, ‘Whiskey is for drinking; water is for fighting over.’” Ellison said. “I will never stop fighting for the rights of senior property rights owners in my district and throughout Nevada.”

Though Twain probably never said that, it sounds like something he would say and is apropos to the current situation. AB 30 and AB51 need to be sent down the drain.

A version of this editorial appeared this 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.


It is long past time for Nevada to take control of federal land

Earlier this week, the House Natural Resources Committee approved Rep. Mark Amodei’s H.R. 761, the National Strategic and Critical Minerals Production Act of 2013, which requires federal agencies to expedite mining permits on federal land, setting a deadline of 30 months instead of the customary 10 years or more.

During debate on the bill a Utah congressman pointed out the bill would not be necessary if the states in the West controlled their public lands instead of far off federal agencies.

Meanwhile, in Carson City, Elko Republican Assemblyman John Ellison’s Assembly Bill 227 would create a task force to do just that, which is the topic of this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.

Since the mid-1990s Nevada has been trying to take control of the 85 percent of the state controlled by the federal government.

In 1956 the voters of Nevada amended the state Constitution to allow taxation of federal lands, should the Congress ever consent. In 1996 the voters again amended the Constitution to remove the so-called Disclaimer Clause that gave dominion over the land to the feds.

And then … nothing. To this day, the state Constitution contains a note saying these amendments are to take effect when Congress or the courts act. Neither has.

AB227 would establish a task force to prepare for taking over federal lands by June 30, 2015. The task force would identify which public lands should be transferred and propose a plan for the administration, management, use, sale or lease of those lands. It also would perform an economic analysis of the potential costs and revenues of such transfers. Ellison colorfully describes the federal government’s dominion over the vast majority of state land for 150 years as “feudalism.”

The bill passed out of the Assembly with all 15 Republicans voting “aye,” but with 18 of the 26 Democrats voting “nay.”

AB227 contains a resolution that begins: “WHEREAS, Unlike the eastern states that received dominion over their lands upon joining the Union, the western states have been placed in an inferior position as a result of the Federal Government withholding a significant portion of land from those states as a condition of admission to the Union …”

There is a bit of an historic flaw in that statement. Actually, some Western states have successfully petitioned to acquire for themselves tracts of federal land, arguing:

“It is of pressing moment that the public lands should become the property of their citizens, with the least delay compatible with the national interest. …

“If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse, and the advantages of religious instruction. Those States will, for many generations, without some change, be retarded in endeavors to increase their comfort and wealth …

“When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.”

Those “Western” states, as they were called at the time, were Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama and Florida. The year was 1828. The argument became known as the Equal Footing Doctrine.

The petition apparently was successful. Today various federal agencies control the use of roughly half the 11 westernmost states in the lower 48 and Alaska, while only 4 percent of the rest of the states is under federal dominion.