9th Circuit Court rejects using water for waterfowl
July 31, 2013
The 9th Circuit Court of Appeals has rejected Nevada Wildlife Department and Nevada Waterfowl Association plan to use Newlands Project water to support waterfowl in that area.
State officials argued since the transferred water would be used to grow plants consumed by the waterfowl, the plan constituted irrigation under the Alpine Decree. The state engineer agreed and approved the transfer of 3.5 acre feet of water within the Newlands Project to the Carson Lake and Pasture, a wildlife refuge within the Lahontan Valley wetlands.
But the Pyramid Paiute Tribe and U.S. government opposed the plan arguing that Newlands water can only be diverted for agricultural purposes and that supporting wildlife doesn't qualify.
The district court in Reno agreed and blocked the water transfers. The circuit court this week agreed ruling that the Alpine Decree and Nevada water law describe irrigation only in the context of agriculture, distinguishing that use from application of water for recreational, aesthetic or wildlife purposes.
The panel agreed with the district court that the state engineer's approval of the plan violated the permitted uses of the water.
The water within the Newlands Project comes from two rivers — the Truckee and the Carson. As the opinion pointed out, almost from the time explorers first discovered the Truckee and Pyramid Lake, there have been battles over those water rights. The proposed diversion to the Carson Lake and Pasture involves only waters from the Carson River. According to the state, that means the tribe doesn't have standing to sue because it has only Truckee River rights, not Carson River rights. The appellate court also disagreed with that conclusion, granting the tribe standing because the transfer would increase demand for Truckee River water in the Newlands Project.