Las Vegas water district making another run at grabbing rural water

Hearings are underway in Carson City to determine how much, if any, groundwater the Las Vegas water district may pump from aquifers in White Pine, Lincoln and Nye counties.

The hearings are being conducted by state engineer Jason King, who previously had granted the Southern Nevada Water District 84,000 acre-feet a year. A state judge sent King back to the drawing board when he ruled plans for monitoring, mitigating and managing the water transfer were “arbitrary and capricious.”

Senior Judge Robert 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.”

USGS employee at well near the southern Snake Range, Nev.

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

Judge Estes listed, as an example of objective standards, the plan in place for mitigation at Devil’s Hole in Armagosa Valley, home of an endangered minnow. He said mitigation is triggered when the water level falls 2.7 feet below a copper washer. “This is an objective and recognizable standard.”

An attorney representing the water district was quoted as saying Monday, “The state engineer did not err in granting SNWA’s permits. The same quantity of water — and in some cases more water — can be granted.”

That doesn’t jibe with a 2014 study by the U.S. Geological Survey  that found the proposed increases in water withdrawals in and near Snake Valley by the SNWA would likely result in declining groundwater levels and a decrease in natural discharge to springs and streams.

“Because of the magnitude of the proposed development project and the interconnected nature of groundwater basins in the region, there have been concerns that new pumping will disrupt Snake Valley’s groundwater supplies and threaten the wetlands and ranches that rely upon them,” said Melissa Masbruch, USGS scientist and lead author of the new report. “This study can help assess the effects of future groundwater withdrawals on groundwater resources in the Snake Valley area.”

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

This prompted the authors of the study to warn, “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 …”

A study for the water authority by Hobbs, Ong & Associates of Las Vegas found the cost to drill wells and build pipelines and pumps to send the groundwater to Las Vegas would be $15 billion or, in some years, $2,000 an acre-foot — while farmers in California and Arizona can buy Colorado River water for $20 an acre-foot. The study said Las Vegas water rates would have to triple to pay for the project.

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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.

Judge hears arguments in suit over central Nevada water grab

If whiskey is for drinking and water is for fighting, this fight is in its 28th round 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.

On Monday 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. “As the two Nevada State Court rulings … concluded, it is irrational, arbitrary, and capricious to restrict the consideration of impacts to as short a time period as 200 years when the uniform evidence confirms that the groundwater systems involved will be disturbed and subject to ever worsening drawdown for millennia.”

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

USGS employee at well near the southern Snake Range, Nev.

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 that is not possible.

Throughout the hearing the judge peppered both sides with questions, seeking clarification of their arguments.

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 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.

In his ruling Judge Estes repeatedly called the plans for monitoring, mitigating and managing (MMM) flawed and the water transfer plan “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 listed, as an example of objective standards, the plan in place for mitigation at Devil’s Hole in Armagosa Valley, home of an endangered minnow. He said mitigation is triggered when the water level falls 2.7 feet below a copper washer. “This is an objective and recognizable standard.”

But on Monday 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 there.

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.

An attorney for the various Indian tribes opposing the water grab, Rovianne Leigh, noted that tribal leaders are trying to pass along long-standing ceremonies to the next generation, but if the water that is central to those ceremonies is gone, so are the ceremonies.

Previously, it was noted that Goshute tribal elders maintain that at the Swamp Cedars Massacre Site — where in 1863 more than 300 Indian men, women, and children were killed by the U.S. Calvary — a swamp cedar tree grew where each one of the Indians fell, and the tribe fears a water table decline would harm the trees.

The tribes’ attorney quoted Ben Frankin, who once said, “When the well is dry we know the value of water.”

Leigh also noted a recent 9th U.S. Circuit Court of Appeals ruling that found the Agua Caliente Band of Cahuilla Indians had a right to groundwater that was being drawn down by various water agencies. The appellate court said the tribe “has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.”

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 dwindling Lake Mead. She added that the plaintiffs argue conservation is the answer, but that the district has already cut water usage by nearly 40 percent in recent years.

Reimer also noted it is difficult to assess the impact of the entire project since future well sites have yet to be determined and no start date has been established.

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

To buoy the plaintiffs’ arguments, a 2014 study by the U.S. Geological Survey found that proposed increases in water withdrawals in and near Snake Valley by the SNWA would likely result in declining groundwater levels and a decrease in natural discharge to springs and streams.

“Because of the magnitude of the proposed development project and the interconnected nature of groundwater basins in the region, there have been concerns that new pumping will disrupt Snake Valley’s groundwater supplies and threaten the wetlands and ranches that rely upon them,” said Melissa Masbruch, USGS scientist and lead author of the new report. “This study can help assess the effects of future groundwater withdrawals on groundwater resources in the Snake Valley area.”

Masbruch added, “This new model represents a more robust quantification of groundwater availability than previous studies because the model integrates all components of the groundwater budget.”

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

This prompted the authors of the study to warn, “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 …”

Whatever the judge rules, the reality of the cost to Clark County water customers may also be a factor. A study for the water authority by Hobbs, Ong & Associates of Las Vegas found the cost to drill wells and build pipelines and pumps to send the groundwater to Las Vegas would be $15 billion or, in some years, $2,000 an acre-foot — while farmers in California and Arizona can buy Colorado River water for $20 an acre-foot. The study said Las Vegas water rates would have to triple to pay for the project.

The white ring shows how much Lake Mead’s water level has fallen in recent years. (NY Times pix)

 

 

 

 

Has Las Vegas water authority been playing fast and loose with the facts about its ranch property?

A lawsuit filed in Clark County district court this past week resurrects allegations that the Southern Nevada Water Authority has been lying to ratepayers about the profitability of a string of ranches the water district purchased several years ago in Lincoln and White Pine counties in order to acquire their water rights for potential piping to Las Vegas.

According to Courthouse News Service, “retired” SNWA controller Randall Buie has sued the water district, saying he was forced out for refusing to falsify reports that would make it appear the seven ranches were profitable when they were actually losing money.

Spring Valley ranch land (SNWA photo)

In 2007 and 2008 SNWA bought 23,000 acres of ranches for a reported $80 million, well above market value at the time, according to 2013 reports by KLAS-TV, Channel 8 investigative reporter George Knapp.

According to minutes from a 2012 SNWA board of directors meeting, the district was claiming the ranches had earned an annual profit of $260,000, but both the lawsuit and a whistleblower interviewed by Knapp claim otherwise.

Buie’s complaint alleges the ranches were losing $2 million a year. “From the moment they were purchased, said ranches have been unprofitable, contrary to representations by defendants to the board of directors, ratepayers, and the media,” Buie is quoted as saying.

Buie claims he was “harassed and bullied into assisting in creating special ranch reports” that were false.

According to Knapp’s source, SNWA employee Debra Rivero, the ranches’ expenses increased from $500,000 in 2007 to $850,000 in 2012. She told Knapp SNWA reported it sold $1 million worth of hay, but failed to account for expenses such as fertilizer, irrigation equipment and employee time. She also claimed she was harassed and threatened with a cattle prod.

Buie’s suit says he told his employers in 2012 he would no longer produce false reports, and a year later he was told he would no longer be controller and was given the choice of demotion or retiring. He retired in March 2014. The suit accuses SNWA of “breach of contract, breach of faith, retaliation, constructive discharge, wrongful termination, breach of contract and negligent and intentional infliction of emotional distress,” according to Courthouse News Service.

Buie’s attorney is listed as longtime Las Vegas attorney Matthew Callister, a former Las Vegas City Councilman.

So far the courts have blocked the water authority’s efforts to pipe rural groundwater to Las Vegas. Should the project be built, it is estimated Las Vegas water rates would triple and the groundwater where the ranches are located would dry up.

 

 

Editorial: Las Vegas water grab is a waste of time and money

The Nevada Supreme Court has dealt another blow to the Las Vegas attempt to snatch 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 (SNWA) 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.

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.”

A symbolic bucket

“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 of the groups suing to halt the water grab, Great Basin Water Network (GBNW), 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.

SNWA should throw in the towel now and stop wasting the time and money of their own ratepayers and those in rural Nevada trying to preserve our resources and livelihoods.

A version of this editorial appears this week in 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.

Newspaper column: Judge’s ruling last straw for water grab

This past week’s ruling by a state judge is doubtlessly the last straw for an already moribund attempt by Las Vegas to expropriate groundwater from Lincoln and White Pine counties.

Though the Southern Nevada Water Authority tried to spin the outcome as a win, because the judge did affirm Las Vegas needs the water and State Engineer Jason King has the authority to approve the transfer, restrictions imposed by Senior Judge Robert Estes make such a transfer highly unlikely, as related in this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.

Farmers irrigate crops. (Photo by Kristi Fillman at GBWN)

King in March 2012 had approved the transfer of 84,000 acre-feet of water from Spring, Cave, Dry Lake and Delamar valleys — likely the largest interbasin water transfer in U.S. history. Las Vegas water utilities first applied for that unappropriated groundwater in 1989. The Engineer’s approval prompted a lawsuit from the Great Basin Water Network (GBWN) and others.

In his ruling Judge Estes repeatedly called the plans for monitoring, mitigating and managing (MMM) flawed and the water transfer plan “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 unambiguously that if “it is premature to set triggers and thresholds, it is premature to grant water rights.” He remanded the Engineer’s rulings for recalculation of water availability and further studies.

Abby Johnson, president of the GBWN, reacted to the Estes opinion by saying, “This decision should send a clear message to SNWA and Nevada leaders that this project is doomed to fail and should be cancelled now in order to save Las Vegas ratepayers and Nevada taxpayers billions of wasted dollars.”

If nothing else, the Estes ruling is almost certain to reduce the amount of water Las Vegas could tap from its northern neighbors, making that water even more costly per gallon.

study for the water authority by Hobbs, Ong & Associates of Las Vegas found that Las Vegas water rates would have to triple to pay for the project.

The judge’s mandates and the costs combine to make this water grab extremely doubtful, no matter how thirsty Las Vegas gets.

Opinion of Judge Estes

Read the entire column at the Ely or Elko site.