Newspaper column: Rural water grab may be dead in the water

A state judge’s implacable ruling this past week may have finally forestalled attempts by the Clark County water agency to tap groundwater from White Pine, Nye and Lincoln counties.

Senior District Judge Robert Estes rejected proposals by the state water engineer to grant groundwater rights to the Southern Nevada Water Authority (SNWA), calling the plan illogical, contrary to state water law, as well as arbitrary and capricious.

In 1989 the agency that is now the SNWA filed paperwork with the state engineer to lay claim to 589,000 acre-feet of groundwater in central Nevada, planning to drill a network of water wells and a 300-mile pipeline from near Ely to Las Vegas. The litigation 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.

A lawyer for the Great Basin Water Network (GBWN), which along with White Pine County filed suit seeking to block the water grab, called the ruling a death knell.

“Judge Estes saw clearly through the various subterfuges and false reasoning advanced by both SNWA and the State Engineer, and he systematically ruled against them on every significant point in contention,” said public interest water attorney Simeon Herskovits in an emailed press release. “In our view, the rigor and care in Judge Estes’s ruling makes it highly unlikely that any part of this ruling would be subject to reversal on appeal. Under any reasonable reading, this powerful ruling should sound the death knell for this fatally misguided and potentially devastating groundwater export proposal.”

Estes’ language in his ruling was often stern. At one point he wrote, “Illogically, the Engineer has concluded that sustainability and beneficial use are mutually exclusive. Actually, sustainability and maximum beneficial use are two sides of the same coin. One cannot exist without the other. This not a case of this Court substituting its judgment for that of the current Engineer. It is a case of this Court agreeing with the Engineer’s practice before the Engineer’s, for no logical, lawful or rational reason for changing the definitions of perennial yield.

“For decades, Nevada’s Water Engineers have recognized — and stated — that water appropriations must be sustainable, indefinitely, for both the appropriator and the reservoir, as required by Nevada law.”

Studies have found that the various aquifers involved are already at equilibrium — the amount of water being withdrawn is replaced annually by an equal amount due to rainfall and inflow from other aquifers — and any increased use would threaten agriculture, livestock watering, wildlife and natural springs.

The judge further ruled that the SNWA’s so-called 3M plan to monitor, manage and mitigate the effects of its water use when a trigger level is reached was no plan at all. The judge said “it is not a trigger at all. It is a process, obviously, or even not so obviously, understood by SNWA only. Compare this investigation ‘trigger’ with the trigger used by the BLM (Bureau of Land Management) in Armagosa Valley. ‘When the water level falls 2.7 feet below a copper washer, mitigation must occur.” (Meaning the Amargosa Valley, of course.)

Estes concluded, “Accordingly, this Court finds that the water appropriations in Spring Valley threaten to prove detrimental to the public interest because the awards, at the current well configuration, result in water mining, will never reach equilibrium, and will result in depletion of the Spring Valley aquifer. The award is inconsistent with Nevada water law … is inconsistent with the State Engineer’s long held rules of water appropriation, and is arbitrary and capricious.”

An appeal of Estes’ ruling does not appear to be imminent. The water agency issued a statement to the press saying, “Since these groundwater applications were filed more than 30 years ago, Southern Nevada has emerged as a world leader in urban water conservation. Through SNWA’s proactive water resource management and the community’s achievements in water efficiency, there is no scenario in our Water Resource Plan where this project would be needed within the next 30 years.”

In 2017 a federal judge even blocked BLM from granting the water authority a right-of-way across federal land for its proposed pipeline, saying the environmental impact assessment was inadequate.

“SNWA has no right-of-way for the pipeline, and no rights to water with which to fill the pipeline,” said Kyle Roerink, GBWN executive director. “This project is dead in the water. It’s time for SNWA to finally move on.”

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.

Editorial: Bill language should not allow water grab

A growing number of public and private entities are joining a concerted effort to make sure a bill pending before Congress does not inadvertently create a means for Clark County to tap rural groundwater, though Clark County officials protest that is not the intent of the proposal.

According to Great Basin Water Network (GBWN) — a coalition of conservationists, rural officials, tribes and agricultural interests — there are fears that the wording in the proposed Southern Nevada Economic Development and Conservation Act, whether intentional or not, could skirt a federal judge’s ruling blocking a proposed 300-mile right-of-way for a network of water pipelines.

The bulk of the bill, not yet introduced in Congress, proposes freeing up more than 40,000 acres of public land in Clark County for economic development, but two sections at the end of the 21-page bill call for the Interior Department to give the Southern Nevada Water Authority rights-of-way for an electric power line that “shall be subject only to the terms, conditions and stipulations identified in the existing rights-of-way, and shall not be subject to further administrative or judicial review. The right-of-way shall be granted in perpetuity and shall not require the payment of rental fees.” Opponents fear that a right-of-way for a power line could just as easily be used for pipelines.

Two years ago a federal judge ruled that the Bureau of Land Management (BLM) could grant the water agency right-of-way for its network of pipelines to take groundwater beneath White Pine, Lincoln and Nye counties, but first it had to come up with plans to mitigate the potential loss of wildlife habitat due to a draw down of the water table, as is required by the CleanWater Act and the Federal Land Policy and Management Act.

That might prove to be impossible, since federal studies show the interconnected aquifers are already at equilibrium — meaning water that is now being drawn from the aquifers is being replaced gallon for gallon annually with no leeway for additional withdrawal. The water agency proposes to withdraw 84,000 acre-feet of groundwater per year. The project is projected to cost more than $15 billion and could triple water rates in Clark County.

This past week more than a dozen entities joined in opposition to Congress approving the right-of-way proposal. These include several Nevada and Utah counties, three Indian tribes and a number of environmental groups.

“What Clark County is proposing is a pro-pipeline bill,” said Kyle Roerink, executive director of the GBWN. “Elected officials, attorneys, and non-profit organizations that span Nevada, Utah and the region all agree: The SNWA wants the congressional delegation to carry its water by surreptitiously advancing a project that has consistently lost in federal and state courts. The Nevada delegation deserves better than sneaky end-runs masked as technicalities. For now, the name of the bill should be the Great Basin Water Grab Act of 2019.”

A resolution passed by the Duckwater Shosone Tribe warned, “Science has shown that the pipeline would ultimately destroy Bashsahwahbee, killing off Swamp Cedars and drying up the Sacred Water Valley’s springs and aquifers that plant and wildlife currently depend upon.”

A spokesman for the water authority told the Las Vegas newspapers there is no intention to use the right-of-way for anything other than power lines. Though he thought the language was sufficiently clear, he said it has been modified recently. Another official offered that it might be further altered to allay concerns.

Clark County could use the economic development. Changing the language in the bill should satisfy the opposition.

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.

Nevada State Sen. Pete Goicoechea and Kyle Roerink, executive director of the Great Basin Water Network, discuss efforts by Clark County to tap rural groundwater. (Pix by Roger Moellendorf)

 

Editorial: Beware of changing state water law

A controversial bill that would have drastically changed state water law apparently has been scuttled for this session of the Legislature.

Gov. Steve Sisolak said no consensus on the bill could be reached by the time the session ends this week and state water regulators should put together a panel to study the matter prior to the next session, according to The Nevada Independent.

Opponents of Assembly Bill 30 said it would have eroded the foundation of our current water law that protects senior water rights holders and the environment as well.

Existing law requires the State Engineer, who is assigned the task of regulating water appropriations, to reject an application for a permit to take water if there is no unappropriated water at the source or if the proposed use conflicts with existing water rights in wells, springs or streams. AB30 would have allowed the State Engineer to authorize a new water use if an adequate monitoring, management and mitigation plan — known as 3M — is reached.

Kyle Roerink, executive director of the Great Basin Water Network, which has been fighting for years an effort by the Las Vegas water district to pump groundwater from valleys in Eastern Nevada, said the bill was just a way for deep pocketed interests to get water.

“We are pleased at AB30’s demise and committed to working with all stakeholders on policy,” Roerink said. “But we will never compromise on the pipeline or any nefarious attempts to undermine the law. No part of the state should be viewed as a water colony or sacrificial lamb for another part of Nevada.”

He explained the problem with the bill as written, “The real key distinction is that, if you’re avoiding a conflict that means a conflict never happened, but if you are eliminating a conflict that means you’re allowing the state engineer to grant a permit when a conflict exists and say, well, we’ll grant the permit and you go ahead and you start and we’ll figure out how to eliminate the conflict, but go ahead. Start pumping.”

Efforts to change the water law have been ongoing since the state Supreme Court in 2015 ruled that the state water law says the State Engineer “shall reject” an application for use of water when the use “conflicts with existing rights.” The court also said there was insufficient evidence that mitigation efforts would eliminate the threat to the existing rights holders.

The case involved an application for water rights for a molybdenum mine in Eureka County. Just this past week the mining company and local ranchers announced an agreement to allow the mine to access water in return for a $1 million payment, pending approval by the State Engineer.

That’s how such conflicts should be settled. Let the free market decide the value and distribution of water from the original owners to others.

(GBWN pix)

Meanwhile, any panel that works on this topic should keep in mind that estimates about available water resources and the effectiveness of mitigation efforts are difficult to pen down.

For example, after the State Engineer granted the Las Vegas water authority permits for groundwater in several valleys in Eastern Nevada by creating a 3M plan, a state judge tossed the permit, saying, “There are no objective standards to determine when mitigation will be required and implemented. 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.”

In a recent op-ed in the Reno newspaper, Mark Butler, the retired superintendent of Joshua Tree National Park, and Alan O’Neill, the retired superintendent of Lake Mead National Recreation Area, said the use of 3M plans jeopardize fragile ecosystems that pronghorn, bighorn sheep, mule deer, desert tortoises and other creatures call home.

“We are not opposed to the state engineer permitting water and seeking to modernize water law,” the retirees wrote. “However, we are opposed to the state engineer unilaterally permitting water projects that do not adequately account for natural recharge and that fail to consider the intrinsic value of leaving water in the ground for the benefit of future generations.”

Be cautious of making changes to water law that could affect current rights holders and lead to the draw down of water tables that might take centuries to replenish — long after vegetation and wildlife have disappeared.

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.