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: We suggest an ally in the fight against the water grab

The three-decade legal wrangle over whether Clark County will ever be allowed to tap groundwater from White Pine, Lincoln and Nye counties has reached another milestone, but may be far from over.

Jason King, state engineer for the Nevada Division of Water Resources (NDWR), issued a 111-page ruling denying the Southern Nevada Water Authority (SNWA) request for water permits.

In 1989 the water agency filed paperwork seeking 589,000 acre-feet of groundwater from various eastern Nevada aquifers, intending to build a 300-mile, $1.5 billion network of pipelines from near Ely to Las Vegas. The amount of water sought has since been trimmed to 84,000 acre-feet and the cost has ballooned to more than $15 billion.

(GBWN pix)

While the opponents of the project celebrated the denial, the state engineer issued a statement saying he planned to appeal in the courts his own ruling, because he disagrees with the methodology for determining the availability of water mandated by a judge.

“The Nevada Division of Water Resources is dedicated to protecting, managing, and enhancing Nevada’s precious water resources,” King said in a statement. “In an effort to protect the integrity of Nevada’s water laws, the NDWR intends to appeal sections of the mandated instructions that threaten to upend the historical application of Nevada water law and water rights.”

In his ruling King wrote, “Although the State Engineer believes there is water to appropriate in the four subject groundwater basins … he is precluded from doing so as a result of the scope of those remand issues, which imposes new water policy into the science of water appropriation in Nevada.”

The state engineer had approved groundwater permits for Spring Valley, Cave Valley, Dry Lake Valley, and Delamar Valley groundwater basins in 2007, 2009 and 2012, but state Judge Robert Estes in 2013 remanded the matter to King with instructions for how to proceed with monitoring, managing and mitigating — abbreviated as 3M — the impact of the groundwater withdrawal on other water users and the ecosystem.

Estes wrote, “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.”

Judge Estes concluded that if “it is premature to set triggers and thresholds, it is premature to grant water rights.”

In his ruling King approved the SNWA’s 2017 redrafting of its 3M plans, subject to any subsequent reinstatement of water permits.

Despite the expressed intention of the state engineer to continue the legal battle, opponents of the project see the ruling as a victory.

“We welcome the State Engineer’s denial of SNWA’s applications, which clearly was required by Nevada water law, as the State District Court and Supreme Court have explained,” said the Great Basin Water Network’s attorney, Simeon Herskovits, in a statement. “We do, however, disagree with the State Engineer’s gratuitous finding that SNWA’s monitoring, management and mitigation (or 3M) plan is adequate. Their slightly elaborated 3M plan remains as much of a sham as it always has been.”

Abigail Johnson, a spokesperson for the water network, said, “With the denial of these applications by the State Engineer, this ill-conceived multibillion dollar boondoggle is now dead in the water. After a string of court victories, we have a decision showing that the water is not available for this project without hurting the area’s existing water rights and environment.”

We suggest that the opponents seek to form a partnership in their fight against this water grab with another party who would be damaged by this project — the SNWA’s customers.

An SNWA-drafted study in 2011 found the cost to drill wells and build pipelines and pumps to send the groundwater to Las Vegas would in some years cost as much as $2,000 an acre-foot, which could triple the rates for water customers. Who knows what the cost would be now.

And this is while the water authority has done next to nothing to renegotiate the outrageous 1920s division of Colorado river water — in which California gets 4.4 million acre-feet a year, Arizona 2.8 million acre-feet and Nevada a mere 300,000 acre-feet.

Meanwhile, farmers in California and Arizona can buy Colorado River water for as little as $20 an acre-foot.

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.