Posted on | October 28, 2009 | 6 Comments
IN A phenomenal reversal for Las Vegas in its 20-year quest for water from the Great Basin Aquifer, the Southern Nevada Water Authority has been stripped of rights to 18,755 acre feet of water a year, or enough for more than 37,000 homes, which it had been allocated from three key basins.
The Las Vegas Review-Journal reports today that Nevada District judge Norman C. Robison has ruled that the State Engineer “acted arbitrarily, capriciously and oppressively” when he cleared the authority to pump more than 6 billion gallons of groundwater a year from Cave, Delamar and Dry Lake valleys.
Above and beyond the amount of water involved, this is a crippling strategic blow to the authority. Located in neighboring Lincoln County, Cave, Dry Lake and Delamar valleys are critical first sites* for the proposed well-fields that will feed what Las Vegas envisions as a nearly 300-mile-long pipeline to eventually be run north to the foot of the Great Basin National Park.
Inability to pump these three relatively local valleys pending an appeal will mean that Las Vegas would have to drive its pipeline through Lincoln County into farther flung White Pine County to begin tapping permitted supplies from Spring Valley.
But even these northern supplies for Las Vegas are in jeopardy as Utah studies potential impacts that the Las Vegas project may have in Snake Valley, a basin adjacent to Spring Valley and shared by both Nevada and the Beehive state. As studies progress, water from Snake Valley may not be awarded until 2019, leaving total northern yields uncertain for investors in the $3.5bn Las Vegas pipeline.
Speaking for the Southern Nevada Water Authority today, Scott Huntley said the trigger for pipeline construction will be dictated by “shortage declaration being made on the Colorado River — so it is the drought that will determine the timing on any construction.”
He added, “These three basins are very important to us, of course, because they would be the first basins that we would utilize should shortage be declared on the Colorado River.”
The October 15th ruling was issued week before last, but became known to key figures involved in the case as late as yesterday. Today, in a morning paper that surely shook the powerful Southern Nevadan community of developers and casino owners behind the pipeline project, the Las Vegas Review-Journal reported:
… Robison ruled that State Engineer Tracy Taylor “abused his discretion” and “acted arbitrarily, capriciously and oppressively” when he cleared the authority to pump more than 6 billion gallons of groundwater a year from Cave, Delamar and Dry Lake valleys.
The senior judge from Gardnerville wrote that the state’s chief water regulator traditionally requires “specific empirical data” before allowing groundwater to be transferred out of a basin. This time, though, the state engineer is “simply hoping for the best while committing to undo his decision if the worst occurs.”
Meanwhile, from Reno, Susan Lynn of the Great Basin Water Network, one of the groups that filed the 2008 suit ruled on by Robison challenging the Nevada State Engineer’s Cave, Dry and Delamar decision, said this morning that they only heard of their victory by chance. One of their members, White Pine County rancher Dean Baker, was speaking yesterday to an Utahan official, who happened to have a copy of the ruling.
Had he heard about the ruling, the official asked Baker.
What ruling? Baker replied. Baker’s last two decades have been spent fighting the pipeline.
According to Lynn, even the attorney representing the Great Basin Water Network in the case, Simeon Herskovits of the New Mexican law firm Advocates for Community and Environment, had heard nothing of his victory until yesterday when at a Reno meeting a Nevadan attorney sidled up to congratulate him.
In another remarkable turn of events between the October 15 ruling and release of its upshot yesterday, on October 16th, the Review-Journal reported that Southern Nevada Water Authority paid $4m to Cave Valley ranch, one of the signatories to the suit along with the Great Basin Water Network, in exchange for the ranch dropping its legal challenge. The authority confirmed this afternoon that its board approved the payment on the 15th, the same day as the judge’s ruling. It is unlikely the board knew of the ruling. Southern Nevada Water Authority spokesman Scott Huntley said today, “I became aware of the decision at the end of last week…so I am certain that our Legal Department became aware of it only shortly before that.”
Lynn suspects that her group’s copy of the ruling may have been lost in the post. Fittingly enough, the proposed route for the Las Vegas pipeline follows old pony express routes throughout Nevada.
Describing the results today an euphoric Lynn said, “Basically, the Court adopted our framing referencing the fact that SNWA did not present impacts evidence. The order also accepted our characterization of the change of perennial yield estimates.”
The Review-Journal quotes SNWA spokesman Scott Huntley saying that the authority believes there are numerous grounds for appeal. “There was some evidence the judge may have come into the case with a prejudged opinion,” Huntley told the paper. He confirmed later to this site that “there will be an agenda item for our Board’s consideration at the November meeting to authorize an appeal to the Nevada Supreme Court.“**
“Let there be no mistake: this ruling is a huge victory,” Herskovits e-mailed his clients this morning. “… if we preserve it on appeal, [it] has the potential to have a profound, far reaching affect on Nevada water law and policy in the future.”
To read the ruling, click here.
**The Las Vegas Sun reports that Judge Robison’s ruling is being studied by the Nevada Department of Conservation and Natural Resources, which oversees the State Engineer‘s office. Click here for an Associated Press report from the San Francisco Chronicle.
*For a look at where Cave, Dry Lake and Delamar valleys fit into the over-all pumping strategy behind the pipeline, click here to read a memo from the SNWA’s former hydrologists Terry Katzer and Timothy Durbin. According to Durbin, the memo was written when he and Katzer became worried by assurances to the public by the SNWA general manager Patricia Mulroy that the project would have minimal damage on the environment. They wanted to register the pumping strategy in writing with the authority lawyer, Paul Taggart, before entering into a series of hearings before the State Engineer of Nevada over the water rights in the valleys involved in the plan. Durbin’s discomfort with the way the potential impacts were portrayed before the State Engineer led to him releasing this memo and appearing for the protestants to the SNWA pipeline in the Cave, Dry Lake and Delamar valley hearings.
For background on the how Timothy Durbin blew the whistle on SNWA for suppressing impact studies before the State Engineer, and how SNWA moved to discredit his claims during the hearing, click here.
This post has been updated. Last update 10/30/2009, 12.08pm.