Saturday, January 18, 2014

Nevada Court Ruling on Las Vegas Pipeline Project

The following article was written by David Hartvigsen, one of my partners at Smith Hartvigsen, PLLC, for the Water & The Law newsletter that our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.

One of the most controversial pipeline projects in recent memory was dealt a major blow last month as Nevada District Court Judge Robert Estes issued a ruling against the project, a coalition supported management plan, and the Nevada State Engineer.  We in Utah refer to the project as the “Snake Valley Project” because it affects the aquifer under Snake Valley, which is partially located in Millard County.  The project proposed by the Southern Nevada Water Authority (“SNWA”) also includes pumping water from four other valleys located solely within Nevada, i.e., Spring Valley, Cave Valley, Dry Lake Valley, and Delamar Valley, and then piping the water down to the very thirsty Las Vegas area.  These five valleys are comparable in size to New England, i.e., parts or all of the states of Vermont, New Hampshire, Massachusetts, Connecticut, and New York.  The judge characterized it as “likely the largest interbasin transfer of water in U.S. history.”
The applications to appropriate water from these 5 valleys were first filed in 1989 and hearings were held on the applications in 2006.  However, because Nevada law requires that the State Engineer rule on applications within one year of the protest deadline, the original approvals were vacated by the courts and the process was restarted.  Prior to the second round of hearing in 2011, several federal agencies agreed to withdraw their protests if SNWA agreed to  implement a Hydrologic and Biologic Monitoring, Management, and Mitigation Plan (“MMM Plan”).  The State Engineer incorporated this MMM Plan into his March 2012 approval of the Project applications.
Several of the protestants appealed the approvals and the appeal was presided over by Senior Judge Estes in 7th District Court of Nevada.  Two days of hearings on the appeal where held last June, then the judge went to work reviewing the evidence and the law.  He issued a ruling dated December 10, 2013 in which he vacated the March 2012 approvals and sent them back to the State Engineer for re-evaluation and action consistent with his ruling on four key points: “(1) The addition of Millard and Juab [C]ounties, Utah in the [MMM] Plan so far as water basins in Utah are affected by pumping water from Spring Valley Basin, Nevada; (2) A recalculation of water available for appropriation from Spring Valley assuring that the basin will reach equilibrium between discharge and recharge in a reasonable time; (3) Define standards, thresholds, or triggers so that mitigation of unreasonable effects from pumping of water are neither arbitrary nor capricious in Spring Valley, Cave Valley, Dry Lake Valley, and Delamar Valley; and (4) Recalculate the appropriations from Cave Valley, Dry Lake and Delamar Valley to avoid over appropriations or conflicts with down-gradient, existing water rights.”
The judge pointed out serious flaws and omissions in the MMM Plan and rejected the State Engineer’s calculations under the plan, concluding that the diversion of the amounts approved would exceed the safe yield of the Spring Valley aquifer and that equilibrium would never be reached, despite compliance with the MMM Plan.  The Judge also found the MMM Plan to be “subjective, unscientific, arbitrary and capricious,” stating that it doesn’t even offer a clear definition of what an unreasonable impact might be.  He concluded that the “[g]ranting of water to SNWA is premature without knowing the impacts to existing water right holders and not having a clear standard to identify impacts, conflicts or unreasonable environmental effects so that mitigation may proceed in a timely manner.” 
To read the full court opinion, click here.

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