Court ruling triggers NV water rights scramble
(AP) – A Nevada Supreme Court ruling has triggered a tidal wave of legal uncertainty over decades of water rights sought by thirsty Las Vegas, dealing a big setback to the Southern Nevada Water Authority’s plan for a massive pipeline project and raising questions about thousands of water rights around the state.
At issue is whether water rights applications dating back to 1947 that were not acted upon by the state engineer within a year – a time frame that until 2003 was mandated by Nevada law with few exceptions – are valid.
A unanimous Supreme Court, in a Jan. 28 ruling, said, well, maybe, at least as they pertain to SNWA’s water rights applications in Spring Valley near the Nevada-Utah line that were filed in 1989 but not acted upon for nearly 20 years.
The less than definitive ruling has thrown into question thousands of water rights issued over more than 50 years, state officials said.
But even an ambiguous ruling was seen as a victory by those challenging their exclusion from participating in hearings before the state engineer over the water authority’s applications that are central to its $3.5 billion project to pump water from rural areas to diversify Las Vegas’ water supply.
“If we follow law and the science, there will be no misguided pipeline threatening the environment and economies of rural Nevada and Utah,” Rose Strickland, coordinator for Great Basin Water Network, said after the ruling was issued.
The court found that many people who initially filed protests had died or moved away by the time hearings were held, and others who moved into affected areas were unaware of the applications or later denied standing to participate because the protest period had lapsed.
The scenario being played out in the nation’s driest state was foretold eight years ago in an administrative ruling that said the one-year rule was a “statutory relic” from the late 1940s, and strict enforcement could void a quarter of active water rights.
“The havoc such a determination could cause is unimaginable,” that ruling said.
Welcome to the cusp of chaos.
But not everyone agrees with that assertion. Simeon Herskovits, a New Mexico lawyer with Advocates for Community and Environment and co-counsel for 54 appellants in the water authority case, called the claim a “scare tactic.”
The Supreme Court sent the case back to Senior District Judge Norman Robison to determine whether the state engineer is required to re-notice and reopen the protest period for 34 water applications in Spring Valley, or if Southern Nevada Water Authority must file new applications – essentially beginning the process from scratch.
“I think it’s that latter part that has caused some concern,” said Herskovits.
Administration of Nevada water rights is based on a system of pecking order and beneficial use. The first to apply has first dibs, and users must show they are putting the water to good use. State officials fear the ruling could reset the clock, bumping those with pending applications or whose water rights weren’t acted upon within a year to the back of the line by someone savvy enough to quickly file an application after the ruling was issued.
“The far-fetched claims I’ve read in the media that every water right that’s been acted on could also be in doubt, I don’t think there’s any solid foundation for that,” Herskovits said. “I don’t think there’s going to be a tremendous reopening of water rights.”
Allen Biaggi, director of the Nevada Department of Conservation and Natural Resources, isn’t so sure.
Already the state engineer’s office has received more than 225 new water rights filings, he said.
“The court’s intent was to only address the Spring Valley applications; however their ruling brought into question the status of approximately 14,500 other applications acted on by the state engineer since 1947 not meeting the one year time frame criteria,” Biaggi said in testimony during a special legislative session last month.
“This decision has the potential to turn the water allocation system that has been in place in Nevada for 106 years on its head.”
SNWA wasted no time to restake its claims. It re-filed its applications the very same day the ruling was handed down. In the days that followed, so did other counties and water districts.
“We refiled on all those project basins,” said John Entsminger, SNWA deputy general counsel. “Then we went through other parts of the state, looking at where we had applications that hadn’t been acted upon … and refiled there.”
The move was out of an “abundance of caution,” he said, adding, “the court ruling wasn’t explicit about how far reaching it would be.”
Vidler Water Co., a private water broker, commenced a filing frenzy, too, beating out the Virgin Valley Water District on two applications.
“Previously, we were senior to their applications,” said Michael Johnson, chief hydrologist for the municipal district that serves the southern Nevada city of Mesquite. “They beat us out by 36 hours.”
The day of the ruling, Utah Gov. Gary Herbert suspended negotiations with Nevada over Snake Valley water that was ordered by Congress in 2004.
“This ruling significantly changes the landscape upon which our ongoing discussions have been based,” Herbert said. “We now have additional opportunities to continue to look at the issue and ensure that Utah’s interests are protected well into the future.”
Gov. Jim Gibbons put the matter on the agenda for a special legislative session held in late February. Legislators ultimately decided the issue was too complex to deal with in the limited session.
“Hastily passing legislation during the waning hours of this special session, without sufficient deliberation, will only raise more issues than it solves,” lawmakers said in a statement.
They urged the state engineer to hold public workshops to find a resolution that protects existing water rights, pending applications, priority status and protest provisions.
Jason King, acting state engineer, will hold the first workshop Tuesday.
“Hopefully we can come up with something that stabilizes Nevada water law,” said Entsminger, SNWA’s lawyer.