Nevada Supreme Court hears arguments over groundwater pumping

LAS VEGAS (CN) — The Nevada Supreme Court Tuesday heard arguments from litigants over water rights involving an area developers are eyeing for a master-planned city of 250,000 about 50 miles northeast of Las Vegas.

The proceedings emanated from a district court order vacating State Engineer Order 1309, which highlighted strategies to deal with concerns over what some say is the over-appropriation of groundwater.

Order 1309 combined seven basins in the nation’s driest state into a single hydrographic basin and suggested a pump cap — which could restrict some owners of water rights from pumping water.

The State Engineer Order didn't sit well with respondents Coyote Spring Investment LLC, which are planning the city.

 “What I just heard is that 1309 has not been implemented. That it’s conceptual and it has not jeopardized anybody’s rights yet. That is not true. We applied, to the state engineer, to have a map approved on June 17, 2020. The state engineer said, ‘You’re out of priority. We will not endorse your map because of 1309,’” Coyote Spring's attorney Kent Robison said Tuesday.

Robison said his client was not getting a fair shot and that Order 1309 had pushed them way down on the priority list for water rights.

In previous district court proceedings, the court found the state engineer had exceeded its statutory authority to create a super basin out of multiple basins. It also found the state engineer violated petitioners’ Constitutional rights to due process by failing to provide adequate notice.

Another attorney for the respondents, Hannah Winston, told the panel the state engineer did indeed overstep its authority.

“There is no statue that authorizes the state engineer to combine multiple, separate, hydrological basins into one for water management,” said Watson.

Justice Elissa Cadish responded that the state engineer was trying to stop over-appropriation.

“The groundwater in this area, at least based on the pump test, the two year pump test, shows that there is an alarming depletion of water," Cadish said.

She asked Watson: “Tell me why that doesn’t allow the state engineer to jointly manage all of these basins that are drawing from the same source?”

“So first, the respondents obviously disagree on the factual findings that the state engineer has concluded,” said Watson. “Second, the basins are not being depleted. There’s no finding that that there is a depletion of the water source in any one of these particular basins. I think the crucial distinction for the court is that over-appropriated does not mean over-pumped.”

Patrick Donnelly, Great Basin director at the Center for Biological Diversity, pointed out the aquifer is not unlimited.

“Greedy real estate developers and water speculators want us to deny science and pretend the desert has an unlimited water supply,” said Donnelly.

The Center is one of the appellants as is the Southern Nevada Water Authority and ten other parties.

 “The ancient fossil carbonate aquifer underlying the Lower White River Flow System is a finite resource that is already spoken for by the endangered Moapa dace,” said Donnelly.

The Moapa dace is a four-inch fish that lives exclusively in groundwater-fed springs in the Muddy River area northeast of Las Vegas. The Muddy River flows through the Moapa Valley before emptying into the Colorado River at Lake Mead, where it becomes drinking water for Las Vegas and cities from Phoenix to Los Angeles.

When reached by phone after the proceedings, which he attended, Donnelly said he was pleased and that he thought the court seemed skeptical of the arguments the respondents were making.

He said because of the complexity of the case, it will be a long time before the court hands down a decision.

“I’m sure it will be many months. This case is not on the fast track because the record is just impossibly voluminous. There are thousands and thousands and thousands of pages of expert testimony, of hearing transcripts and of  briefings. You would give yourself a graduate education on water laws if you read the whole thing,” said Donnelly.

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