A growing number of public and private entities are joining a concerted effort to make sure a bill pending before Congress does not inadvertently create a means for Clark County to tap rural groundwater, though Clark County officials protest that is not the intent of the proposal.
According to Great Basin Water Network (GBWN) — a coalition of conservationists, rural officials, tribes and agricultural interests — there are fears that the wording in the proposed Southern Nevada Economic Development and Conservation Act, whether intentional or not, could skirt a federal judge’s ruling blocking a proposed 300-mile right-of-way for a network of water pipelines.
The bulk of the bill, not yet introduced in Congress, proposes freeing up more than 40,000 acres of public land in Clark County for economic development, but two sections at the end of the 21-page bill call for the Interior Department to give the Southern Nevada Water Authority rights-of-way for an electric power line that “shall be subject only to the terms, conditions and stipulations identified in the existing rights-of-way, and shall not be subject to further administrative or judicial review. The right-of-way shall be granted in perpetuity and shall not require the payment of rental fees.” Opponents fear that a right-of-way for a power line could just as easily be used for pipelines.
Two years ago a federal judge ruled that the Bureau of Land Management (BLM) could grant the water agency right-of-way for its network of pipelines to take groundwater beneath White Pine, Lincoln and Nye counties, but first it had to come up with plans to mitigate the potential loss of wildlife habitat due to a draw down of the water table, as is required by the CleanWater Act and the Federal Land Policy and Management Act.
That might prove to be impossible, since federal studies show the interconnected aquifers are already at equilibrium — meaning water that is now being drawn from the aquifers is being replaced gallon for gallon annually with no leeway for additional withdrawal. The water agency proposes to withdraw 84,000 acre-feet of groundwater per year. The project is projected to cost more than $15 billion and could triple water rates in Clark County.
This past week more than a dozen entities joined in opposition to Congress approving the right-of-way proposal. These include several Nevada and Utah counties, three Indian tribes and a number of environmental groups.
“What Clark County is proposing is a pro-pipeline bill,” said Kyle Roerink, executive director of the GBWN. “Elected officials, attorneys, and non-profit organizations that span Nevada, Utah and the region all agree: The SNWA wants the congressional delegation to carry its water by surreptitiously advancing a project that has consistently lost in federal and state courts. The Nevada delegation deserves better than sneaky end-runs masked as technicalities. For now, the name of the bill should be the Great Basin Water Grab Act of 2019.”
A resolution passed by the Duckwater Shosone Tribe warned, “Science has shown that the pipeline would ultimately destroy B
ashsahwahbee, killing off Swamp Cedars and drying up the Sacred Water Valley’s springs and aquifers that plant and wildlife currently depend upon.”
A spokesman for the water authority told the Las Vegas newspapers there is no intention to use the right-of-way for anything other than power lines. Though he thought the language was sufficiently clear, he said it has been modified recently. Another official offered that it might be further altered to allay concerns.
Clark County could use the economic development. Changing the language in the bill should satisfy the opposition.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, Sparks Tribune and the Lincoln County Record.
The briefing in the appeal case regarding Nevada State Engineer Order #1293(A) has reached its conclusion.
The documents for all parties involved are now undergoing the process of screening by the Nevada Supreme Court, which will decide whether or not to move the case forward and hold a hearing to allow for oral arguments.
In addition to the Nevada State Engineer’s Office, which is the appellant, and Pahrump Fair Water, the respondent, a third party has joined the battle as well. The Nevada Groundwater Association requested leave to file an amicus brief, taking the side of Pahrump Fair Water in the argument, and the Nevada Supreme Court has granted that request.
The water order has been the source of much contention since it was originally issued in December 2017.
The order restricts the drilling of new domestic wells in the Pahrump Valley unless two acre-feet of water rights have been relinquished in support of the well. For some Pahrump property owners, water rights were already relinquished when their parcels were initially created. However, for many others, this is not the case and the order requires these property owners to first purchase water rights and relinquish them back to the state before they can drill a domestic well on their land.
Pahrump Fair Water, an organization composed of local property owners, well drillers and real estate agents, filed suit to put a stop to the water order. After several months of legal maneuvering, a judge with the Fifth Judicial District Court rendered a ruling in November 2018 in favor of Pahrump Fair Water and overturned the water order.
That was far from the end of the matter, however, as the Nevada State Engineer’s Office took its opportunity to file an appeal, which is the case now before the Nevada Supreme Court. While the case is being considered, the Supreme Court has issued a stay on the ruling that overturned the water order, meaning at the moment, the order is still in effect.
The basic argument between the engineer’s office and Pahrump Fair Water stems from the question of just how far the state engineer’s authority extends when it comes to domestic wells.
Pahrump Fair Water asserts that the engineer does not have the power to regulate domestic wells except in very specific circumstances, which the organization argues do not exist in the given situation. The state engineer, conversely, proclaims that the engineer’s office can, in fact, restrict domestic wells and withdrawals from such if the engineer finds that it would be in the best interest of the health of the overall water basin to do so.
There are several other points argued by both sides in the briefs filed in the case, including those regarding due process requirements and whether potential new domestic wells constitute a vested property right or protectable interest.
Now the case has reached a “wait and see” point, as there is no definite schedule for when the Nevada Supreme Court might decide to hold a hearing in the matter.
“There is really no way to tell,” David Rigdon of Taggart and Taggart, LTD, the law firm representing Pahrump Fair Water, stated when asked about a possible time line for the case. “I’ve seen the screening process take as few as 45 days and as long as seven to eight months. It all depends on their workload. In the order approving the stay, the court stated that they wanted expedited briefing… However it’s not clear whether the court will expedite its screening and review.”
The appeal is filed under Case No. 77722. All associated documents can be reviewed online at www.nvcourts.gov
Contact reporter Robin Hebrock at firstname.lastname@example.org
Call to action on AB 95
The Nevada Legislative Session is has just three weeks remaining until it comes to a close and the fate of hundreds of bills depends upon the decisions made in these final days.
In a email sent out May 14 to area residents with a deep interest in local water resources, Nevada Assemblyman Greg Hafen II urged the community to reach out to Nevada Senators and ask them to vote “no” on one particular bill, Assembly Bill 95.
The bill calls for changes to Nevada water law that many have been pushing back against. It would require the Nevada State Engineer, “…to continue to allow withdrawals of groundwater from domestic wells under certain circumstances in groundwater basins where withdrawals have been restricted to conform to priority rights,” according to the bill language.
The bill dictates that domestic wells would be allowed to continue pumping half an acre foot of water it times of curtailment but only if the owner installs a water meter. The idea of water meters is something Pahrump residents have been extremely resistant to for years. Many have also argued that the state engineer does not have the authority to curtail domestic wells at all, a belief that is current under debate in a lawsuit between the engineer’s office and Pahrump Fair Water.
A bill very similar to Assembly Bill 95 was before the Nevada Legislature in 2017 and after the public outcry, it ultimately failed to pass.
“I rise today in opposition to Assembly Bill 95. Assembly Bill 95 tramples over 100 years of Nevada water laws to the detriment of all water users,” Hafen stated from the Assembly Floor on May 14. “We heard from many Nevadans during the bill’s hearing about the negative effects of the bill. There was not one person or organization in support.”
“Currently, domestic wells in my district are already only using an average of half an acre foot per year,” Hafen continued. “Conservation is the key to solving Nevada’s water issues and this bill does nothing to promote conservation, but does have a financial burden to well owners by requiring them install a meter. I urge my colleagues to vote ‘no’ on Assembly Bill 95.”
Details on the bill and a list of all Nevada Legislators along with their contact information can be found online at www.leg.state.nv.us
— Robin Hebrock, Pahrump Valley Times
Ellen M. Gilmer, E&E News reporter
There, government lawyers urged the U.S. Court of Federal Claims to toss a lawsuit from Nevada landowners who say a federal restoration project stole their water and flooded their land.
At issue is Patch of Heaven, a Christian camp on private land nestled within the Ash Meadows National Wildlife Refuge.
The Nevada church Ministerio Roca Solida bought the 40-acre site in 2006 for $500,000. At the time, a stream called the Carson Slough flowed across the property, feeding plants and a small pond and sometimes serving as a site for baptisms.
In 2010, the Fish and Wildlife Service, which manages all of the surrounding land, rerouted the channel in a restoration project to help the Ash Meadows speckled dace, an endangered fish that lives in the area’s warm springs.
Annette and Victor Fuentes, who own Ministerio Roca Solida, say the government owes them compensation for eliminating the stream from their property — except for a trickle of water the site claimed through a state permit — and rerouting it in a way that causes repeated flooding on another part of the parcel.
The couple teamed up with the conservative Mountain States Legal Foundation and attracted the support of Westerners opposed to federal land management, including the Bundy ranching family infamous for its conflicts with government agencies.
Speaking at a boisterous rally at Patch of Heaven last year, Ryan Bundy offered to demolish the FWS project himself (Greenwire, April 23, 2018).
The mood was decidedly tamer during yesterday’s hearing, where just five spectators — including one reporter and one court employee — listened to more than two hours of technical arguments involving property rights, water law and hydrology.
Judge Elaine Kaplan must decide whether to grant the government’s motion for summary judgment rather than allowing the case to proceed to trial.
The church’s claims are twofold: that the government’s elimination of streamflow on the land without payment amounted to an unconstitutional taking of vested water rights, and that the diversion project’s contribution to flooding was also a taking.
Justice Department lawyers yesterday disputed both claims. The government contends the landowners are not entitled to the water rights they claim, and, in any case, that issue should be adjudicated by the state of Nevada, not the Federal Claims court.
The two lawyers from DOJ’s Environment and Natural Resources Division also attempted to poke holes in the Fuenteses’ flooding claims, dismissing the plaintiffs’ expert testimony as unsubstantiated and noting that the broader area is prone to flooding.
“Plaintiffs would like this court to believe … that there was never flooding on that part of the property,” DOJ attorney Davené Walker said, adding that the area is part of a flood zone and has a well-documented history of such events.
Walker explained that to win a takings claim against the government for flooding, the plaintiff must show that FWS caused the flooding and intended or expected it to happen. Ministerio Roca Solida has offered no evidence to support either prong, she said.
Mountain States Legal Foundation lawyer Zhonette Brown, in turn, questioned the evidence presented by the government.
Kaplan, an Obama appointee, agreed with the government that Ministerio Roca Solida’s expert testimony appeared “a little thin,” but she questioned whether it would be appropriate to resolve the case in favor of the United States at this stage, without allowing the church to make its case at trial.
She also empathized with the Fuenteses on their loss of the stream, regardless of whether FWS’s project was lawful.
“I won’t say the word ‘screwed,'” she said of the landowners, eventually landing on the word “injured.”
The judge added that she’s never heard a water rights case or a flooding case before and will need some time to consider the competing evidence.
“Your Honor’s more than welcome to come out to the property,” Brown said, “so you can make your own conclusion.”
SCOTUS overturned decision upholding Robertson’s conviction and remanded the case so that the indictment could be dismissed and the lien cancelled
(Washington, DC) – Judicial Watch announced today that the Supreme Court of the United States has overturned a lower court decision affirming the conviction of Joseph Robertson, a 78-year-old veteran now deceased who was sentenced to prison for digging ditches on his rural Montana property to protect the area surrounding his home from wildfires. Judicial Watch had filed an amicus curiae brief jointly with the Allied Educational Foundation supporting Robertson and urging Supreme Court review and reversal of the lower court decision. Robertson served 18 months in prison and died while serving probation. He was also fined $130,000, a liability inherited by his estate.
The Supreme Court also remanded Robertson’s conviction to the lower court so the indictment can be dismissed and the lien can be cancelled.
Judicial Watch and the AEF had asked the Supreme Court to review the ruling by the U.S. Court of Appeals for the Ninth Circuit that upheld Robertson’s conviction, because that decision “affirmed illegal agency actions in prosecuting Joseph Robertson based on a misreading of federal law. The Court should take this opportunity to correct the confusion in overbroad interpretations of the Clear Water Act, which have led to unjust prosecutions and federal intrusions into both state authority and individual liberty.”
The brief was filed in the case of Robertson v. United States, Case No. 18-609, 587 U.S. __ (2019). This was an appeal of the Ninth Circuit decision in United States v. Robertson, 875 F.3d 1281, 1285 (9th Cir. 2017).
Judicial Watch asserted in its filing that the ditches Robertson dug “sat on what a federal agency defines as wetlands and were situated on or near a small downhill water flow of about three garden hoses in volume. Mr. Robertson was not engaged in manufacturing or any other industrial activity which would release chemicals or waste into the water, but under the federal Clean Water Act even turning the soil with a shovel can be considered to be releasing a ‘pollutant’ into water.”
In their brief, JW and the AEF suggest that the issue is larger than Robertson’s personal plight, that it also involves the separation of powers among Congress, the Executive Branch and the Supreme Court.
Judicial Watch and AEF also note that the Supreme Court itself has introduced confusion into the issue of “adjacent wetlands,” “point source,” and “navigable waters.
Also, matters like those involving Robertson properly belong with the state, not the federal government.
The brief argues that the Congress has been all too willing to forego its Constitutional duty and defer to federal agencies.
[It was not foreseen that] the judiciary could eventually aid and abet the complete sacrificing of power by one of those two branches, effectively leaving a one-branch government where the founders intended three. When the Court goes too far in reading statutes as broadly assigning sweeping interpretative power to agencies, this allows Congress to give up power altogether and to stop the necessary work of revising and repealing statutes. Congress has proven itself either willing to give up those powers or unable to stop itself from doing so, preferring to ask the executive branch to reinterpret or reimagine statutes in ever more creative ways while sparing members of Congress the pain of accountability for national policy. The Court should not countenance this upending of the constitutional order.
“The Supreme Court has granted a victory against an overreaching government bureaucracy,” Judicial Watch President Tom Fitton said. “The government should not be allowed to regulate every drop of water in America, and the Supreme Court was right to brush back the radical bureaucrats. Mr. Robertson, a veteran, died before he was vindicated but his fight has protected the constitutional freedoms of other Americans.”
The Allied Educational Foundation is a charitable and educational foundation dedicated to improving the quality of life through education. In furtherance of that goal, the Foundation has engaged in a number of projects, which include, but are not limited to, educational and health conferences domestically and abroad. AEF has partnered frequently with Judicial Watch to fight government and judicial corruption and to promote a return to ethics and morality in the nation’s public life.