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: 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.