Petition seeks to limit court’s water decision to Southern Nevada Water Authority

By Cy Ryan

Monday, March 15, 2010 | 5:38 p.m.

CARSON CITY – A petition has been filed asking the Nevada Supreme Court to reconsider its water rights decision so it affects only the Southern Nevada Water Authority and not the thousands of holders of water rights in the state.

The petition, filed Monday on behalf of state Engineer Tracy Taylor, said the court’s decision, unless limited, could impact water rights approved for “farms, mines, power plants, and municipalities have been built, upon which banks have loaned money, mortgages have been based and communities and workplaces have been built.”

The Supreme Court on Jan. 28 ruled the state engineer in 2007 violated the law in approving rights for the Southern Nevada Water Authority to pump 40,000-acre-feet a year from Spring Valley in Eastern Nevada to serve populous Clark County.

The court said the state engineer had failed to make the decision within the required one year. It ordered the district court to either reopen the protest period or to require the authority to refile its application.

The authority has other applications pending in Eastern Nevada to withdraw water to pipe to Southern Nevada. Water rights are considered a property right.

Senior Deputy Attorney General Bryan Stockton, who authored the petition for a rehearing, said the court should clarify its decision “to preserve the water rights of thousands of Nevadans.”

The petition for rehearing comes one day before the state holds a public hearing on what to do if the Supreme Court declines to revise its decision.

Acting State Engineer Jason King has set the hearing to take testimony on such things as the protection of existing water rights, the status of pending applications, preservation of priorities and application of protest periods.

The Legislature, in its special session, didn't act but directed the state to hold a hearing.

Allen Biaggi, director of the state Department of Conservation and Natural Resources, said the court’s decision, read in its broadest sense, “has turned water rights on its head.”

He said the state has been directed to craft a decision and didn't rule out the possibility of another special session of the Legislature to tackle the subject.

King says that 7,004 water right applications filed between 1947 and 2002 were approved past the one-year decision deadline. The law was changed in 2002. There were 7,655 applications denied past the one-year deadline in the 1947-2002 period.

He says the January decision of the court would probably affect only those applications that were approved and not those that were denied.

Stockton, in his petition for the rehearing, said the court should indicate that the state engineer should not reopen approved water right cases unless there is documented evidence that there was a protestant who was not allowed to participate.

There are 1,755 water rights applications pending that have not been acted upon within the one-year deadline.

Stockton urged the court to rule that the state engineer is prohibited from “reopening water rights where the permit or certificate has been issued without written evidence of an unheard protestor.”