Ruling requires recalculation of the water available for appropriation from the basins and additional hydrologic study in the Cave Valley, Delamar Valley and Dry Lake Valley
Robert E. Estes, Senior District Judge for Nevada’s Seventh Judicial District Court, issued a ruling remanding the State Engineer’s orders approving appropriations totaling 83,988 AFA to the Southern Nevada Water Authority (SNWA) from four basins in eastern Nevada. In short, the court ruling issued on December 10, 2013 voids the State Engineer’s orders approving the appropriations and requires recalculation of the water available from the basins and additional hydrological study in the Cave, Delamar and Dry Lake Valleys.
In 2012, the State Engineer issued four orders that awarded SNWA appropriations of 61,127 AFA in Spring Valley, 5235 AFA in Cave Valley, 6042 AFA in Delamar Valley and 11,584 AFA in Dry Lake Valley. Monitor, Manage and Mitigate (MMM) Plans set conditions to protect existing water right holders and the environment. In Spring Valley, the MMM Plan set a three phase structure under which SNWA would be allowed to pump only limited amounts and would be required to collect, model and report data annually during the first two 8-year phases.
SNWA is looking to the eastern Nevada valleys to develop a water supply that is not tied to the Colorado River.
The court action came about after counties in Nevada and Utah, along with tribal entities, the Great Basin Water Network, and Presiding Bishop of the Church of Latter-Day Saints (on behalf of Cleveland Ranch) protested those orders claiming that the MMM Plans cannot adequately protect existing water rights or the environment.
In his decision, Judge Estes states that the MMM Plans fail to state what conditions would require implementation of mitigation. In addition, he found that in the Spring Valley MMM Plan the State Engineer had no plan for monitoring or proactive monitoring, but instead implicitly ceded monitoring to SNWA. In the other valleys, he noted the need for additional hydrological work based on the protestants claim that the water rights are previously appropriated: they argue that SNWA will be taking the rights in the upper gradient of the basin before it can recharge the lower basin. Thus, the same water is tied to rights in both upper gradient of the basin and the lower gradient of the basin.
Ultimately, the judge gave the State Engineer four directives:
- Add Millard and Juab Counties, Utah in the mitigation plan for the Spring Valley Basin
- Recalculate the water available for appropriation from Spring Valley
- “Define standards, thresholds or triggers” to provide an objective standard for mitigation of unreasonable effects in all four valleys
- Recalculate appropriations in the Cave, Delamar, and Dry Lake Valleys to avoid conflict with down-gradient water rights
While the court decision sent the State Engineer orders back for further work, the plaintiffs in the case saw it as a big win. Steve Erickson, Utah Coordinator for the Great Basin Water Network, a lead plaintiff in the case, called the ruling “a huge victory for the families and communities of these rural valleys in Nevada and Utah, and a vindication of our collective efforts to resist a massively misguided and destructive project.”
Despite claims of victory on the part of the plaintiffs, SNWA officials remain optimistic. “The court has asked the state engineer to gather additional data before rights are granted and water is developed, and SNWA is confident that this can be done,” the statement from the authority said.
Written by Marta Weismann