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OBITUARIES
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NO OBITUARY NOTICES
WERE PUBLISHED IN
THIS WEEK'S EDITION
OBITUARIES FROM THE
JULY 15TH ISSUE
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03-18-2010 Water Use and Water Policy Workshop Held in County
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Water Use and Water Policy Workshop Held in County
By Dave Maxwell
A water use and water policy workshop was held in both Caliente and Alamo March 5. Featured speakers were Rich Perry of the Nevada Division of Water Resources in Elko, Dr. Evan Fulton, State Water Specialist with the University of Nevada Cooperative Extension Las Vegas, Tom Driggs, a Las Vegas attorney on water rights sales, and Hugh Ricci, former Nevada State Water Engineer, retired.
Water workshop speakers Dr. Evan Fulton,
left, Rich Perry and Tom Driggs, right.
Not pictured Hugh Ricci
Photo by Dave Maxwell
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Each person gave a presentation to those who attended the meetings in both towns, although Ricci was not able to attend the meeting in Alamo.
Mr. Ricci talked about the up coming Nevada Division of Water Resources workshop session March 16 in Carson City on the recent Nevada Supreme Court rulings about the 1989 Southern Nevada Water Authority (SNWA) applications in rural Nevada. Ricci was the state water engineer at the time of the applications.
Just how the rulings by the Supreme Court, which are now under appeal in District Courts, will affect water rights is still not known. Dr. Fulton said this has a lot to do with interpretation of the law, which the Supreme Court did not clearly define, remanding the decisions instead for the District Courts to make.
Water Attorney Tom Driggs said the original law was “pretty poorly written and vague, and they couldn’t really figure out what the intent was.”
Even discussions at the Governor’s special legislative session in early March did not resolve the issue, but he said he thought because it’s a political year, no one really wanted to go in and fix something. “No one wants to be seen as handing anything to Southern Nevada Water Authority.”
Rich Perry gave a PowerPoint presentation on water rights, water law and water facts. He said the fundamental foundation of Nevada water law is that “water belongs to the public of the state of Nevada.” Both surface and ground water are involved, and can be appropriated for beneficial use.
He gave a definition of a water right as being, “A written or historic property right to use a designated amount of water for a specific beneficial use.” Under Nevada law Perry said, people don’t really own the water, they own the right to use water for a specific beneficial use in a specific place.”
Some rights are “vested rights” and were established before laws made by the state in 1905 and 1913. After that time, Perry said, water rights were called “permitted rights, or post-vested rights.”
“There are two kinds of water in Nevada,” Perry noted. “Surface water, streams and creeks, springs, and such, and underground water, which you have to drill for and put a well in.” In Nevada, Perry continued, the laws have usually followed the idea of “First in time, first in line,” for water appropriations, especially those for irrigation purposes, at a given time. And for those who do have water rights, either from the past or more recent times, are supposed to show significant use of the water over time, or stand in jeopardy of having the water rights revoked. He said the law currently states for certificated ground water rights, especially beneficial irrigation purposes, the need is to use it at least one year out of every five. Municipalities are given more leeway however, than private individuals or agencies.
Perry said there are 14 water basins in the state, one of which is Pahranagat Valley. However, he said, Pahranagat is fully appropriated and no more applications for irrigation water rights are being accepted.
In his presentation, Hugh Ricci said Nevada has about 1.7 million acre feet per year for ground water and 4.5 million acre feet per year of surface water. An acre-foot of water is 325,851 gallons, or one regulation size football field covered to a depth of one foot.
The major cities of the state, Reno-Carson City, Las Vegas get their water primarily from the Truckee or Colorado rivers, and rural Nevada, including Elko, for the most part, uses ground water.
Perry gave an example of water in the Columbia River at The Dallas Dam. He said 16 days of water flowing past the dam is equal to the entire annual surface and ground water supply of the state of Nevada.
The website for the Nevada Division of Water Resources is www.water.nv.gov.
Water Attorney Tom Driggs, with the Las Vegas firm, Santoro, Driggs, Walch, Kearney, Holley and Thompson, gave a report on issues a person would deal with in acquiring water. He had a 7-page outline giving brief explanations of categories of water rights, who owns the water rights, and are the water rights in good standing?
He concluded his remarks dealing with how to protect your water rights. “When you are doing due diligence to acquire water, you can put provisions in the contract to shift the risk back to the seller, such as having representations and warranties that will survive the closing,” he said. Also, a person may hold money in escrow until various contingencies are satisfied. Having discussions with the State Water Engineer and with consultants, i.e., engineers, water rights surveyors, water brokers, attorney, etc., is another way of protecting yourself.
Dr. Fulton stated in his presentation at the workshop, he thought the Clean Water Restoration Act, Senate Bill 787, still pending in Congress since last June, is good for farmers because the intent of Congress was to exempt farmers from the far reaching effects of the law.
“The Act is an effort by the Senate,” Fulton said, “to do three things: Reaffirm the original intent of the Federal Water Pollution Control Act in 1972; to clearly define the term “waters of the United States; and to provide protection to the “waters of the United States” to the maximum extent possible by Congress.”
In order to do all of the above, Fulton says, Congress proposes to ammend the Clean Water Act and drop the word “navigable” from the current definition and replace it with “waters of the United States.”
Taking out the word “navigable” would refer to all waters for pollution controls, not just waters that are navigable.
Fulton said although some people are concerned the federal government is expanding the jurisdiction of the Clean Water Act, however that is not necessarily the case.
In making his comments, he said he felt farmers and ranchers need have no real concern from this act, “simply because Congressional intent, if they pass this bill, appears to exempt farmers and ranchers from any oversight by the Clean Water Act and the activities of the EPA and the Army Corps of Engineers.”
Fulton said the phrase “waters of the United States” is already defined in another federal law from 1972. The term in that law means “All waters subject to the flow and ebb of the tide. The territorial seas and intrastate waters and their tributaries, including their lakes, streams, including intermittent streams, mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, natural ponds, and all impoundments of the foregoing to the fullest extent of these waters, or activities affecting these waters, are subject to the legislative powers of Congress under the Constitution.”
Because the 1972 law reflects what the intent of Congress is to have jurisdiction over the waters of the United States, and to properly establish the scope of waters that require protection. Fulton thought the act is beneficial to Nevada land owners because exemptions from regulations for water used in agricultural activities are still in effect from the 1977 Federal Water Pollution Control Act.
He said, “In 1977, Congress deliberately exempted agricultural practices from jurisdiction under the Clean Water Act, because it knew that, otherwise it would place significant burden on agricultural production. The Clean Water Act exempts certain activities such as ranching and farming, as well as agricultural storm water discharges from particular permitting requirements.”
However, Fulton admitted, as in many cases involving interpretations of the law, or intentions of the law, there could be further court cases.
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