Nevada Supreme Court: Senior water rights holders must join in drought pain

Baled hay on a field south of Muller Lane on June 15.

Baled hay on a field south of Muller Lane on June 15.

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In a majority opinion, the Nevada Supreme Court this week approved a groundwater management plan for Diamond Valley that reduces not only the water junior water rights holders can pump but what senior water rights owners can pump.
The plan developed by the state engineer is designed to reduce the water use over the next 35 years to the level Diamond Valley can actually support.
But opponents, including three members of the high court, say the ruling effectively punches a hole in 155 years of Nevada water law that has always allowed senior water rights owners to keep pumping their full allotment of water even if that means other users go dry during times of drought.
The state engineer argued and a majority of the court agreed that state law “unambiguously” gives the state engineer authority to approve a management plan that departs from that doctrine.
That doctrine says simply that the water rights are vested based on when they were appropriated. Senior water rights in Diamond Valley are those the owner has had since before May 1960. Junior water rights are those issued after that date.
Still exempt are those vested water rights holders whose appropriated rights date to before 1913 when Nevada’s original water laws were passed.
The issue went to court because Diamond Valley, in Eureka County, is dramatically over-appropriated and has been pumped at a rate exceeding its annual recharge for more than four decades. The opinion authored by Justice Jim Hardesty says 76,000 acre feet of water is pumped from the valley every year but the aquifer can only support 30,000 acre feet of annual pumping. As a result, Diamond Valley has been designated a critical management area, which gives the state engineer the power to impose a management plan on users.
That plan requires senior water rights holders to reduce their pumping along with junior water rights holders. Its goal is to get the valley into balance with the total available water over the next 35 years.
Senior water rights holders sued and a district court agreed with them. The Supreme Court this week reversed that ruling.
Even though the plan would curtail water pumping by senior rights holders, the opinion points out that they would still be able to pump more than junior water rights holders if pumping is curtailed by drought.
They ruled the state engineer’s plan was neither arbitrary nor capricious and took into account substantial factual findings to support the decision.
Hardesty was joined in the opinion by Justices Lidia Stiglich, Elissa Cadish and Doug Herndon.
In separate dissents, Chief Justice Ron Parraguirre and Justice Kris Pickering argued the law doesn’t plainly and unambiguously give the state engineer the power to depart from long standing rules basing priority on when the water rights were appropriated to the holder.
“Moreover, the majority’s interpretation of these statutes could raise constitutional doubts,” he wrote.
Parraguirre argued that doctrine is more than a guiding principle, that it’s the basis of all Nevada water law.
Parraguirre and Pickering also argued the plan allows an unconstitutional “taking” of private property without just compensation.
But the majority opinion said there is no taking at this point, that if senior holders lose water in the future, that could be the subject of litigation to compensate them for the loss.
“The GMP does not compensate or provide a mechanism for compensating the senior water right holders,” Pickering wrote.
She argued that puts the plan, “in direct conflict with the two fundamental principles underlying Nevada’s water law statutes:” the priority of the date of appropriation and the requirement that the water be put to beneficial use.
“Nothing in this statute expressly allows the state engineer to approve a GMP that restores hydrological balance by usurping senior rights,” she concluded.
Both dissenting opinions were joined by Justice Abbi Silver.


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