Nevada Supreme Court tosses Las Vegas claims to rural water

By Stephanie Tavares

Published Thursday, Jan. 28, 2010 | 12:18 p.m.

Updated Thursday, Jan. 28, 2010 | 5:34 p.m.

The Supreme Court of Nevada today smacked down the Southern Nevada Water Authority's claim to tens of thousands of acre feet of water in rural Nevada.

The court, ruling on an appeal from a 2007 district court decision, found some of the water rights in rural Nevada that the agency acquired from the state are invalid because the State Water Engineer's Office took too long on the application.

The Water Authority sought the in-state water rights beginning in 1989, anticipating Nevada's Colorado River allotment could not support rapid growth in the Las Vegas Valley. In the decades since, the Water Authority has implemented dramatic outdoor water conservation efforts, established a return flow credit system for water treated and returned to Lake Mead and brokered water deals on the Virgin and Muddy Rivers which have provided enough water for the massive growth of the past 20 years.

The agency has requested or purchased hundreds of thousands of acre feet of groundwater rights from across rural Nevada. Without those water rights, the agency will have nothing to pump to Southern Nevada should the region need a new source of water.

The agency now says it will only build a pipeline to access the water rights in rural Nevada if it becomes absolutely necessary. That could come before the end of the decade as the drought continues and climate change is expected to lead to even lower water levels in Lake Mead.

In response to the ruling, the Water Authority today refiled the applications originally filed in 1989 as it awaits a district court ruling on whether the applications should be entirely redone or whether simply allowing new protests to the application will satisfy the legal requirements.

Utah Gov. Gary Herbert says negotiations between Nevada and Utah over water in the Snake Valley should be suspended in light of the decision by the Nevada Supreme Court Thursday.

"This ruling significantly changes the landscape upon which our ongoing discussions have been based," said the governor, who has withheld his approval for months.

Nevada has approved a bi-state agreement on dividing the water in Snake Valley, which lies in both states. It calls for Utah to receive 55,000 acre feet a year and Nevada 12,000 acre feet. But of the unallocated water, Nevada would receive 35,000 acre feet and Utah, 6,000 acre feet.

The Utah governor said the decision by the Nevada Supreme Court "significantly changes the landscape upon which our ongoing discussions have been based." He said it permits a re-examination of the agreement to make sure Utah's water interests are protected.

The 2004 Congress directed the two states on how to divide the water. And negotiators from both states have worked since then to come up with a split of the water.

Herbert, in a press release, said the Supreme Court ruling means the protest period must be re-opened for the water applications in Snake Valley as well as Spring Valley.

Any agreement between the two states on Snake Valley is premature, Herbert said.

Under state law in 1989, the year the applications were reviewed by then-State Engineer Mike Turnipseed, the state engineer was required to rule on a water right within one year. The application could be extended if there was an ongoing water supply study, court action or if the state engineer got permission from the applicant and anyone protesting the action.

None of those things happened.

In 2003 the Nevada Legislature passed a law allowing the state engineer, then Hugh Ricci, to postpone decisions on a water right sought by municipal agencies like the Water Authority. The law grandfathered in any "pending" water rights.

The Water Authority and state engineer have contended that the Water Authority's application was pending when the law was passed. But a large group of protesters, including The Great Basin Water Network, Defenders of Wildlife, The Great Basin and Utah chapters of Trout Unlimited as well as numerous individuals, filed a petition for judicial review in 2006 after Ricci bungled a public comment meeting on some of the water rights and and new state engineer Tracy Taylor, who still holds the office, refused to redo the Water Authority's water rights application process so more protests could be filed.

In May 2007 District Court sided with Taylor, citing the 2003 law allowing municipal permit applications to be extended. But before that decision was reached, Taylor approved the Water Authority's application for water rights in the Spring Valley water basin.

The ruling today voids that state engineer decision and requires the Water Authority to re-apply for at least some of the water rights it has been seeking since 1989.

In May 2007 District Court sided with Taylor, citing the 2003 law allowing municipal permit applications to be extended.

But before that decision was reached, Taylor approved the Water Authority's application for water rights in the Spring Valley water basin.

Sun reporter Cy Ryan contributed to this story.