by Jeniffer Solis, Nevada Current
After years of groundwater decline and failed legislative action, a court decision in January affirmed the state’s right to limit groundwater pumping using the most current scientific data, but full implementation of the ruling may take some time.
Last week, the state engineer — Nevada’s top water regulator — expanded on how the state will manage water resources in the aftermath of the recent Nevada Supreme Court decision that affirmed the state’s authority to develop science-based solutions to over-pumping, including managing surface water and groundwater as a single connected source when determining water rights.
In the coming years, the court’s decision will have sweeping ramifications for Nevada, state engineer Adam Sullivan told lawmakers.
“This is significant because it really has a direct relationship to issues that have been the topic of recent proposed legislation,” Sullivan told lawmakers on the Joint Interim Standing Committee on Natural Resources.
“It affirmed state engineer authorities to protect water rights using best available science and to conjunctively manage interconnected sources of water,” he continued.
The consequential Nevada Supreme Court case centers around a geographically vast complex of connected groundwater aquifers in Southern Nevada. The core of the dispute was State Engineer Order 1309, which proposed combining seven interconnected groundwater basins into a single superbasin in order to effectively manage and limit groundwater pumping in the northeast of Las Vegas, where developers had planned a new city of 250,000 people.
After various state water agencies determined that over-pumping in the groundwater system would likely reduce spring flow in the Warm Springs area and the Muddy River, the 2020 order ruled that no more than 8,000 acre feet of water could be pumped out of the interconnected aquifers in the region.
However, the suggested pumping cap attracted a lawsuit from Coyote Spring Investment LLC — the developers of the proposed city in the Mojave Desert 50 miles northeast of Las Vegas — who had previously applied for about 30,000 acre feet of water a year from one of the aquifers in the region.
After a series of lower court rulings, the Nevada Supreme Court determined the state engineer had the statutory authority to merge multiple water basins into one superbasin, a decision that will likely have a profound impact on the way groundwater is managed in the state going forward.
The court ruling affirms the state’s right to make changes to how groundwater basin boundaries are drawn and managed in the state, as new science reveals their amount of water and how they are interconnected with other sources of water.
Court ruling didn’t settle issues
Lawmakers expressed concern about the implications of the case on the state economy. Last year, state lawmakers introduced Assembly Bill 387, a bill that would have clarified the state’s authority to deny water permits based on the potential for conflict between surface water rights and groundwater rights. But large water users — including real estate developers and mining companies — pushed back on the bill, arguing the state was attempting to exceed its authority and curtail water rights.
Sullivan, the Nevada state engineer, said the Nevada Supreme Court ruling essentially does the same thing the bill would have accomplished. But he assured lawmakers he does not see redrawing water basin boundaries throughout Nevada “as an immediate priority.”
“When we’re talking about changing those boundaries, it has to be done very carefully, and with a lot of public outreach and clarity about why that might need to be done, what the basis of that decision might be, and what the impacts are,” Sullivan told lawmakers.
For one thing, the lawsuit that led to the court decision isn’t over, Sullivan said. After the court opinion was issued, several parties petitioned for a rehearing, according to the State of Nevada Division of Water Resources. If the court chooses to send the case back to lower courts, the parties will have another opportunity to argue whether the state based its decision to create a superbasin on substantial scientific evidence.
“At this point, I haven’t seen anything from the court on whether they will order a response to those petitions or how they may rule on that petition for rehearing,” said Melissa Flatley, the hearing section chief of the Division of Water Resources.
Only after the state’s decision to form a superbasin is found to have been supported by substantial evidence can the state engineer begin to address policy and management questions related to the ruling, said Sullivan.
“We anticipate that that process will consist of a series of public meetings and evidentiary hearings regarding all of those many issues, including locations of pumping, seniority of rights, and the use of water that’s already been appropriated,” Sullivan said.
Sullivan told lawmakers the court decision will ultimately support the long-term water security for Nevada by affirming the state’s authority to make decisions based on science to protect water rights and the public interest.
“That authority has been questioned because water law is not explicit,” Sullivan said. “The ambiguity in law that led to AB 387 has now been clarified by the supreme court decision.”
Throughout several parts of Nevada, significantly more groundwater is extracted than is returned to aquifers each year, leading to declining water levels. Nevada has committed water rights for 1.5 times the approximately 2 million acre-feet of available groundwater. About 56 of the state’s water basins are currently over-pumped, according to the Legislative Counsel Bureau’s Research Division.
“As water is developed over time, we gain more knowledge about the water available to meet long-term needs. We need to use this knowledge so water resources can be developed responsibly and minimize the risk for conflict or curtailment,” Sullivan told lawmakers last week.
