NFB: Water on the Agenda

Preparing For Another Legislative Session With Water On The Agenda

By Doug Busselman | NFB, Executive Vice President

The outcome of a couple of recent court decisions could be the basis for attention in Carson City when those elected to represent us meet for the 2023 Nevada Legislative session.

The first court decision came shortly after mid-April when Judge Bita Yeager of Nevada’s 8th District Court, determined that the State Engineer did not have the authority to base a decision on conjunctive management of water resources in the Lower White River Flow within a superbasin that he had created. This decision upended two concepts which formed the basis for the ruling of Order 1309 that the State Engineer issued June 15, 2020. Nevada Revised Statutes (NRS) 533.024 includes a section of state law which begins with the phrase that the Nevada Legislature declares the policy of the State of Nevada is… (and then goes on to make five statements of policy). The last statement, added in 2017, states that the policy of the state is “To manage

conjunctively the appropriation, use and administration of all waters of this State, regardless of the source of the water.”

A policy statement made a couple of slots up from the final point states that it is the policy of the State of Nevada “To encourage the State Engineer to consider the

best available science in rendering decisions concerning the available surface and underground sources of water in Nevada.”

These two policy statements were foundational in the State Engineer’s Order 1309 arriving at the conclusion that “the best available science” provided the ability of the State Engineer to combine seven individual groundwater basins into one total management area and then apply the administration of the waters in these combined groundwater basins as a package. Judge Yeager came to the conclusion that Nevada’s entire scope of state water law doesn’t provide for these two statements of Legislative intent don’t over-ride the prior appropriations doctrine. Her decision on the case indicated that the State Engineer doesn’t have the authority to establish a super basin by combining a group of ground water basins and then ignore the water right priorities in each of the separate basins in a mish-mash of all the basins combined into one unit. Judge Yeager’s decision stated – “Thus, under NRS 534.030, while the State Engineer

can administer basins individually, the statute does not allow the State Engineer to combine basins for joint administration, nor do NRS 532.120, NRS 533.024, or NRS 534.110(6) confer express authority on the State Engineer to do so.”

The way in which the Legislative intent language on conjunctive management leaves the complete matter an open question on how to go about managing the appropriation, use and administration of all waters – regardless of the source. Judge Yeager noted that legislative intent does not constitute a grant of the authority to the State Engineer to make decisions that are believed to be established by law for water management. “In fact, there is no authority or guidance

whatsoever in the statutes as to how to go about

conjunctively managing water and water rights.” She wrote. While the decision made by Judge Yeager is heading to the Nevada Supreme Court, the manner in which the State Engineer has observed before interim legislative committees and the reaction from some legislators, there seems to be a strong indication that “clarification” of what Legislative intent means could take fashion in one or more proposed bills. The other recent court case that could set the stage for additional legislative proposals came from the very recent decision made by the Nevada Supreme Court. In their majority opinion, the four justices, who agreed in their opinion stated, “Thus, it follows

that the Legislature may create a regulatory scheme that modifies the use of water appropriated after 1913 in a manner inconsistent with the doctrine of prior appropriation.”

The majority opinion was written by Justice James Hardesty and concurred in by Justice Elissa Cadish, Justice Douglas Herndon and Justice Lilia Stiglich. There were two dissenting positions, one written by Chief Justice Ron Parraguirre and concurred with by Justice Abbi Silver. Justice Silver also concurred with Justice Kristinia Pickering who wrote the second dissenting position. The context for this ruling came in regard to the State Engineer designating the Diamond Valley groundwater basin a Critical Management Area under the authority granted to him under NRS 534.110 (7) to deal with basins where “withdrawals of groundwater

consistently exceed the perennial yield of the basin.” “If a basin has been designated as a critical management area for at least 10 consecutive years, except as otherwise provided in subsection 9, the State Engineer shall order that withdrawals, including, without limitation, withdrawals from domestic wells, be restricted in that basin to conform to priority rights, unless a groundwater management plan has been approved for

the basin pursuant to NRS 534.037.” This section of NRS 534.110 (7) continues. NRS 534.037 provides for water right owners in a basin designated as a Critical Management Area to develop and petition the State Engineer to accept a Groundwater Management Plan, which has been adopted by a majority of water right owners, seeking to reduce the excessive withdrawals of water from the basin. In the case of the Diamond Valley basin, the Supreme Court ruling notes that the withdrawals of water each year from the basin is 76,000 acre-feet of water, whereas the perennial yield is only 30,000 acre-feet of water. On top of this, there are over 126,000 acrefeet of water rights that have been appropriated. It is further explained that if the prior appropriations doctrine were to be followed, all water rights that were approved after 1960 would be identified as junior water rights and subject to curtailment. The Groundwater Management Plan for Diamond Valley was ruled against by the Seven District Court in Eureka because of the way in which the reduction of excessive water withdrawals also included priority water right owners, as well as junior water right owners. It isn’t certain whether the Nevada Legislature will consider possible changes to the sections of state law, which form the basis for the Supreme Court’s ruling? It also isn’t clear whether the prior appropriations doctrine is only able to be set on the shelf in the narrow construct of the designation of Critical Management Areas and then further when a Groundwater Management Plan has been constructed and approved like the Diamond Valley plan was dealt with? Major discussions and engagement by water right owners and advocates for sound water policy/law is essential for whatever might be a worthwhile result in 2023’s Legislative Session. Those conversations and consideration requires time and effort in an open forum for exchanges of points and views. The worse possible outcome would be the restrictive and limited approach taken by the 2021 Nevada Legislature, where participation was limited to virtual meetings and input came through two-minute statements offered by phone calls.