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OBITUARIES
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NO OBITUARY NOTICES
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OBITUARIES FROM THE
JULY 15TH ISSUE
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02-11-2010 Ruling Opens Path for Protests
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Ruling Opens Path for Protests
By Dave Maxwell
The January 28 unanimous ruling by the Nevada State Supreme Court that groundwater applications by the Southern Nevada Water Authority (SNWA) might not be valid, may go a long way in allowing residents of both White Pine and Lincoln County to file new protests. The ruling also effectively sends the 300-mile long pipeline project back to the beginning of the State Water Engineer's hearing process.
Launce Rake, of the Progressive Leadership Alliance of Nevada (PLAN), said in a telephone interview with The RECORD, "this is an opportunity for Lincoln County residents to get back into the process and get their voices heard on the record before the state engineer."
He added, "The decision is absolutely applicable to all the wells that SNWA is trying to get in Lincoln County. It throws everything back to the beginning, including the Lincoln County applications."
The State Water Engineer approved 78,755 acre-feet of water annually for development from applications filed in Spring Valley, Delamar, Dry Lake, Cave Valley, and Snake Valley. However, none of the water has been used for anything outside of those areas as of yet.
A press release January 28 by the Great Basin Water Network states that, "Dozens of rural Nevada landowners joined nonprofit groups, including Great Basin Water Network and Defenders of Wildlife, in arguing before the Court that they were unfairly excluded from being able to protest the original groundwater applications filed by the Las Vegas Water agency in 1989, SNWA, Las Vegas' water provider, and the Nevada Water Engineer then waited more than fifteen years before taking the applications up for considerations, despite Nevada state law's requirement that applications must be decided within one year."
The Supreme Court ruling came in response to a separate case from 2006 involving 54 plaintiffs, most of them residents or property owners in White Pine County and Utah, who sued for the right to participate in the state hearings on the authority's applications, but were denied at the time.
Nevada conservationist and Great Basin Water Network coordinator Rose Strickland said, "Now, the state engineer will have to reopen the protest period to anyone. The Supreme Court followed Nevada water law. If we follow the law and the science, there will be no misguided pipeline threatening the environment and the economics of rural Nevada and Utah."
A question then arises, since the ruling may further hinder SNWA efforts to build the pipeline from White Pine County to Las Vegas, what effect this might have on Harvey Whittemore trying to move water from his Lake Valley applications to his project in Coyote Springs?
Rake said, "If the water authority cannot build its pipeline because of procedural problems, or their inability to follow the process correctly, Harvey Whittemore will not be able to move his water around Lincoln County. He cannot do it if there's no pipeline. The water authority and Whittemore have always been in a very close partnership to develop the Coyote Springs property."
Whittemore's Tuffy Ranches filed 53 water applications in 2005 in Lake Valley, with the intent to move the water to Coyote Springs for municipal use. Acting State Water Engineer Jason King told The RECORD, those applications have not been acted on yet.
In January 2010, Tuffy Ranches filed 28 additional applications to transfer some of the water in the first 53 applications from municipal use to agricultural use.
Regarding Coyote Springs, Rake said, "It's not clear how Harvey is going to rescue his project there. It's in a lot of trouble. There is no appetite for housing. There is certainly no appetite for housing an hour away from the metropolitan area, and we certainly don't need new golf courses."
Great Basin Water Networks stated, "The Court decision sends the case back to the District Court, to make a determination as to whether SNWA must re-file its 1989 applications on hundreds of wells throughout rural Nevada, or whether the State Engineer must re-notice the applications, opening the process to new protests and new rounds of hearings on SNWA's old groundwater applications."
Mrs. Strickland said, "These can be new protests. We can bring in all the issues we were not allowed to argue at the Spring Valley hearings in 2006 and Delamar, Cave Lake, Dry Lake hearings in 2008."
She said the state water engineer in 2006, saw so many protests had been filed, he decided to simply dismiss them. "We couldn't talk about anything we hadn't thought about back in 1990 (right after SNWA's original applications).
Strickland said Great Basin Water Network will help anyone to "work with their concerns to put them into the right format for the state engineer. I am so appreciative of the people of Lincoln County who never gave up and hung in there."
In the meantime, Utah officials also quickly announced they were backing away from a water-sharing agreement with Nevada. And SNWA wasted no time either, and was right on the doorstep of the courthouse, filing a series of new applications, in order to be first in line to do so.
Las Vegas Review-Journal reporter Henry Brean wrote in his January 29 article, "At issue are the dozens of applications filed by the Las Vegas Valley Water District with the state engineer in 1989 for unappropriated groundwater in rural areas as much as 300 miles away. The water was originally sought to supply growth in Southern Nevada, but it is now seen as a safety net for a community that gets 90 percent of its water from the drought-stricken Colorado River. At the time of the massive filing, Nevada law required the state's chief water regulator to act on applications within one year, but the district's water applications would not be heard for almost two decades."
Brean continued, "In 2003, with the district's applications still pending, the Legislature passed a law that addressed that discrepancy by waiving the one-year rule for water sought for municipal use. In its unanimous opinion Thursday (Jan 28), however, the Supreme Court said the district's filings were already far too old in 2003 to be covered by such an exemption."
Opening up the process case for the filing of new protests is the key for the District Court 7 to decide, Rake said. "It was an administrative fast one they were trying to pull by limiting the amount, the number of protests that could be admitted into the record. They did not want people to object to their plans. The (Supreme) Court said, quite rightly, that that was inappropriate and a violation of state law."
Rake said, "Now the SNWA is saying the court should just ignore the law, because they are much more important than the law, the need to build more golf courses and developments in Las Vegas is more important than the law. But that's not how it works."
In putting the matter back into the lap of Nevada rural District 7 Court, a judge there will be responsible to determine should SNWA be required to submit new applications for the groundwater it wants in rural Clark, Lincoln and White Pine counties.
State law limits the protest period to 30 days after an application is filed, which means that only those who lodged protests in 1989 within that window were allowed to participate directly in hearings on the groundwater withdrawals, but the new ruling will open the protests to anyone who has concerns now.
SNWA has already spent tens of millions of dollars on studies, preliminary designs and legal work on the expected $3.5 billion pipeline project. Admittedly, even those estimates are several years old.
Henry Brean wrote, "John Entsminger, deputy counsel for the water authority, said having to restart the process would mean `additional time and additional hearings, but I can't quantify that at this point.'"
In the meantime, Whittemore said in a telephone interview with the RECORD, he sees this as just being a procedural problem that happens from time to time, and will not have a significant impact on his project at all.
"In terms of the long-term impact to us and our projects, we don't think it will have a significant impact at all. I think that ultimately, the pipeline will be built and I think that the water rights that are the subject of this litigation will be issued, and I think that it's a matter of simply going through the process. We've been very successful at dotting the I's and crossing the Ts. I believe the water authority and the various interests associated with moving that water will do the same."
"These are things that happen," he added, "and this has nothing to do with the construction of the pipeline. This has to do with water rights that I think that ultimately will be reissued in favor of the water authority in an amount that the state engineer believes is appropriate, because that's what you do in Nevada. I think that this is, at most, a procedural hurdle for the water authority. I don't think it's nearly as significant as opponents would make it out to be. I just don't think that's the case."
He said, "We are reviewing the decisions very, very closely to whether or not it impacts any of our holdings, because the decision is quite broad, and could be read by many, and has been read by many, as having some significant impact on water rights which were not the subject of the decision."
He continued, "In the substance of the decision itself, I can tell you that we understand that SNWA is looking at all of its options and that we are going to be looking at ours as well. The time to request a rehearing from the Supreme Court has not yet passed. So I don't know if the water authority is going to seek a rehearing. I think these are the types of matters that require review by the governor and the legislative branch to determine what appropriate remedies may exist with respect to this
I think that the water authority did a great job back in 2003 to try to explain what was at stake and I think they are surprised how the court interpreted the legislative history, and I think people are going to focus on that and look at it."
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