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.

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.

 

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.

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.