By Thomas Mitchell
This past week’s ruling by a state judge is doubtlessly the last straw for an already moribund attempt by Las Vegas to expropriate groundwater from Lincoln and White Pine counties.
Though the Southern Nevada Water Authority (SNWA) tried to spin the outcome as a win, because the judge did affirm Las Vegas needs the water and State Engineer Jason King has the authority to approve the transfer, restrictions imposed by Senior Judge Robert Estes make such a transfer highly unlikely.
King in March 2012 had approved the transfer of 84,000 acre-feet of water from Spring, Cave, Dry Lake and Delarmar valleys — likely the largest interbasin water transfer in U.S. history. Las Vegas water utilities first applied for that unappropriated groundwater in 1989. The Engineer’s approval prompted a lawsuit from the Great Basin Water Network (GBWN) and various Nevada and Utah counties and Indian tribes and the Latter-day Saints, owners of Cleveland Ranch.
In his ruling Judge Estes repeatedly called the plans for monitoring, mitigating and managing (MMM) flawed and the water transfer plan “arbitrary and capricious.”
“There are no objective standards to determine when mitigation will be required and implemented,” the judge wrote. “The Engineer has listed what mitigation efforts can possibly be made, i.e., stop pumping, modifying pumping, change location of pumps, drill new wells … but does not cite objective standards of when mitigation is necessary.”
Judge Estes listed, as an example of objective standards, the plan in place for mitigation at Devil’s Hole in Armagosa Valley, home of an endangered minnow. He said mitigation is triggered when the water level falls 2.7 feet below a copper washer. “This is an objective and recognizable standard.”
The standard set by the SNWA and Engineer King seems to be about as subjective as U.S. Supreme Court Justice Potter Stewart’s standard for determining when something is obscene: “I know it when I see it.” Even Justice Stewart later regretted setting such an indefinable bar.
Judge Estes also pointed out the proposed water transfer would amount to “water mining,” because the amount of water drawn from the aquifers exceeds natural recharge amounts, and, while water mining is not prohibited by statute, it has been the policy of the State Engineer for 100 years to disallow water mining.
Judge Estes concluded unambiguously that if “it is premature to set triggers and thresholds, it is premature to grant water rights.” He remanded the Engineer’s rulings for recalculation of water availability and further studies to “establish standards for mitigation in the event of a conflict with existing water rights or unreasonable effects to the environment or the public interest.”
Abby Johnson, president of the GBWN, reacted to the Estes opinion by saying, “This decision should send a clear message to SNWA and Nevada leaders that this project is doomed to fail and should be cancelled now in order to save Las Vegas ratepayers and Nevada taxpayers billions of wasted dollars.”
Steve Erickson, Utah coordinator for GBWN, commented, “This ruling affirms our long-held positions that groundwater withdrawals of this huge scale are not sustainable and can’t be effectively managed or mitigated, will pre-empt existing water rights, and will cause permanent, widespread damage to the environment, the economy, the health, and the quality of life in the Great Basin.”
If nothing else, the Estes ruling is almost certain to reduce the amount of water Las Vegas could tap from its northern neighbors, making that water even more costly per gallon.
A study for the water authority by Hobbs, Ong & Associates of Las Vegas found the cost to drill wells and build pipelines and pumps to send the groundwater to Las Vegas would be $15 billion or, in some years, $2,000 an acre-foot — while farmers in California and Arizona can buy Colorado River water for $20 an acre-foot.
The Ong study says Las Vegas water rates would have to triple to pay for the project. This would be on top of the $800 million cost for SNWA to build another inlet from Lake Mead, a project that is already 18 months behind schedule. The two inlets now used are in danger of being left high and dry as the lake level subsides during the ongoing drought.
The judge’s mandates and the costs combine to make this water grab extremely doubtful, no matter how thirsty Las Vegas gets.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. Read additional musings on his blog at http://4thst8.wordpress.com/.