October 4, 2007
Difficult Question for County Commission and LC Water District

Photo by Dave Maxwell District Attorney Greg Barlow.

By Dave Maxwell

To move or not to move, that is the question. A question of whether or not to transfer water applications made by Southern Nevada Water Authority to the Lincoln County Water District. On a 3-1 vote, with one member absent, County Commissioners decided Monday they would submit the question to the State Attorney General for a ruling.

During the lengthy discussion, District Attorney Greg Barlow cautioned Commissioners it would not be wise to transfer the applications being requested to the LC Water District. Barlow said the County would be at risk to do so because they would not be following statutes in existing state law regarding such transfers, appraisals, notice, public hearing and so forth. The Commissioners would be creating a liability to the County, he said, “and expose yourselves to personal liability for doing this contrary to state statutes.”

A problem that complicates the matter even more is that all five members of the County Commission are the same board members of the Lincoln County Water District.

Barlow said that the “water rights of the County remain the property of the County even if they are transferred to the Water District to use. If the Water District does not use the water, or does not anticipate using it, then it comes back to the county. Statutes are clear,” he said, “that you cannot alienate the water rights from the County.” He added further, “If the County goes ahead and transfers straight over to the water district without following state law, you create a cloud in the title to that water and that will create a loophole for someone to challenge a later developer wanting to use the same water. You just create trouble down the road.”

Barlow told Commissioners, “Unless the County and the Water District have a user who is applying for the water, (apart from SNWA) anything else becomes speculation, which is not allowed under state law. In this case,” he continued, “we’ve got water applications from whoever holds them, the first right to use the water. If there is no user that wants to use the water, why does the County need to give up the applications at this juncture? I see no compelling reason,” he said, “why the fee title, the ownership of those applications has to be passed over to the Water District. There is no user clamoring to use it.”

Dylan Frehner, counsel for the Water District, countered by saying transfer of the water applications to the District would allow them to go forward with a plan and move forward with the applications when a developer does come in with a plan and wants to have water to use.” “The Water District,” he said, “is making plans to develop a new master water plan in a public workshop to be held October 23. This is where we will find who the users are and hopefully identify what water rights are available for each individual entity from wherever, to see what their needs are going to be over the next 20 years and what water rights we have available to help supply them in the future. That’s our goal and that is our purpose.”

However, Barlow continued to advise the Commission to, “Follow the statutory provisions and you protect the County and you protect the water district. If you don’t, you expose the County to possible litigation and you cloud the title on the applications going over to the water district which can cause trouble down the road.”

Barlow said he thought it would be better to make the transfers when they are needed. “Why should the Water District hold title to County property,” he asked. The Water District is a separate unit of local government, not county.

Frehner posed the question, “if you leave it in the County’s hands, unless seeing that the Water District can fulfill its purpose, then we will have to come back again and again and again with the question of who is making the decisions: the County or the Water District? You have to decide who is going to be the water provider.”

At the end of the discussion, the County approved a motion to transfer the applications to the Water District but also to refer the matter to the State Attorney Generals Office for review and the County meet any and all stipulations on the matter after a ruling is issued.