The Assembly Committee on Natural Resources, Agriculture and Mining yesterday held a hearing on Assembly Bills 30 and 51 which were presented by the State Engineer’s Office and Department of Conservation and Natural Resources. CNRWA Board Members, Pershing County Commissioner Rob McDougal and Churchill County representative spoke in opposition to AB30 and CNRWA Executive Director Jeff Fontaine testified in opposition to both bills. Numerous individuals and groups opposed both measures in written and oral testimony. There was no support for either bill. AB62 was also on the agenda but was not heard and will be reschedule for another meeting.
The hearing was covered by media outlets throughout the State:
LEGISLATURE | WATER & LAND
Opponents, legislators raise questions that bills could enable Las Vegas pipeline, depart from Western water law
By Daniel Rothberg
February 28th, 2019 – 2:05am
An Assembly committee heard two water bills Wednesday amid criticism from a varied group of water users who worry that the legislation could undermine the historic application of Western water law and enable large-scale projects, including the controversial Las Vegas pipeline.
The Southern Nevada Water Authority, which is pushing the project, testified neutral on the bill.
The legislative package was proposed at the end of Gov. Brian Sandoval’s administration by then-state engineer Jason King. In an interview with The Nevada Independent, King argued that the bills would bring more flexibility to Nevada water law. The legislation, he said, would help the state better manage water claims and resolve conflicts between users.
Tim Wilson, the acting state engineer who took over when King retired in January, said that the bills, taken together, would bring “needed consistency and clarity” to Nevada water law.
“These bills are the division’s best efforts to address real challenges and issues that the division grapples with regularly in all parts of the state,” Wilson said in his opening testimony.
But opponents cast the bills as a giveaway to big developers and water users with a lower priority to water. A motley coalition of irrigators, environmentalists, tribes and rural officials directed much of their ire toward Assembly Bill 30, which would codify the state engineer’s ability to approve complex mitigation plans, known as 3M plans, in resolving conflicts between water users. Several critics tied the legislation to the Southern Nevada Water Authority’s proposed project to pump water from Eastern Nevada to Las Vegas, a plan that uses 3M for mitigation.
Opponents included the Great Basin Water Network, the Center for Biological Diversity, the Nevada Farm Bureau, the Confederated Tribes of Goshute, the Central Nevada Regional Water Authority, the Humboldt River Basin Water Authority, the Sierra Club and the Nature Conservancy. Several legislators also expressed some concerns about the bill.
Assemblywoman Shannon Bilbray-Axelrod, who represents Las Vegas, went so far as to ask Wilson if the water authority had any role in crafting the bill.
“Quite bluntly, absolutely not,” Wilson said. “They did not offer us any language.”
Assemblywoman Sarah Peters, an environmental consultant who represents Reno, said that she had “concerns” that the bill did not adequately address environmental concerns.
Others worried it would give the state engineer too much authority.
Minority Leader Jim Wheeler worried the bill would let the state engineer “have unlimited power to give water and take water away from someone regardless of right in the end. I’m not saying you would do that. What I’m saying is this particular bill does give you that power.”
Despite having working on a 3M bill in 2017, the water authority testified neutral. The water authority’s lobbyist, Andy Belanger, said the water authority’s focus this year is on completing a worst-case-scenario pump station at Lake Mead, a Westwide drought plan for the Colorado River and conservation. But he said that the Legislature should take action on water law in the future to avoid litigation, as costs for defending lawsuits has increased for the state.
“We can’t support the bill in its current form,” Belanger said. “We don’t oppose the bill in its current form. But we do believe that if the Legislature does not act, at some point in the future you are going to spend a lot more money in the courts than you are today.”
Under Western water law, those with the oldest claims to water — senior rights holders — have the first opportunity to use water in times of scarcity. Any water users with later claims — those with junior rights — are the first to get their water curtailed off if there’s not enough to go around.
The tension between the two groups is a factor in most conflicts over water in Nevada and across the West. When water users apply for permission to pump groundwater, a user with senior rights can protest the application if there is a concern that issuing a permit would pose a conflict. For instance, if a mine applied to pump groundwater but there was a possibility it could draw down a spring, a rancher with senior rights to the spring could protest the application.
If there is a conflict, Nevada statutes are typically read as prohibiting the state engineer from approving an application, even if there is water available to appropriate from an aquifer. But Nevada’s top water regulator has, in many cases, allowed for applications to proceed with mitigation. In one case, the state has approved a 3M plan for mining project in Kobeh Valley.
Under a 3M plan, which stands for monitoring, management and mitigation, a water user could resolve a conflict by providing substitute water.
Although current statutes mention 3M plans, there remains uncertainty about the extent to which they can be used. In the case of the rancher’s spring, the water user could pump or truck in replacement water to ensure that the spring remained filled with water. The Supreme Court, in the Kobeh Valley case, did not say whether 3M plans were permissible but questioned the reliability of the concept — if pipes freeze in the winter — and the quality of replacement water.
Despite the criticism, the state said the legislation, codifying the use of 3M plans to resolve disputes between water users, was necessary to clear up conflicting language in the state’s water statutes.
“Without it, we are left with two conflicting directions in our statute,” said Brad Crowell, who leads the Department of Conservation and Natural Resources. “No matter which one we follow, we end up in court over our decision. I personally don’t think we should be abdicating the decisions on water policy to the court… As the law stands now, there is the inevitability of litigation.”
Wilson also rejected the rhetoric “villainizing” the bills for enabling large-scale water projects and favoring developers who can afford to pay for mitigation.
“While the terms mitigation and 3M plans have been somewhat villainized due to conflict over a particular groundwater development project, the fact is that current law authorizes the state engineer to resolve a conflict based on the principle that any impacted senior water rights holders are made whole and the overall public interest remains balanced,” he said.
The issue of senior rights is at the heart of the second bill that the Assembly Committee on Natural Resources, Agriculture and Mining heard Wednesday evening. Assembly Bill 51 would give state regulators the authority to adopt regulations and levy some special assessments to “conjunctively” manage rivers and aquifers as a connected resource.
Although the law used to treat each supply as separate, the best science shows that diversions from streams affect groundwater levels and vice versa. Despite some progress in the last session, the state engineer argued the law is still vague on how regulators should enact “conjunctive management” plans.
AB 51 would help fix that problem, state regulators said. It could also be used by state officials to finalize regulations to mitigate the impacts of groundwater pumping near the Humboldt River. Pumping has led to a loss in streamflow that has, in turn, affected water deliveries to senior users at the end of the river.
But the proposed fix also drew opposition from several groups, including the Nevada Farm Bureau, the Pyramid Lake Paiute Tribe, Douglas County, Storey County and the Pershing County Water Conservation District (PCWCD), which represents farmers with rights going back to the 1860s.
Although many opponents support “conjunctive management” in theory, they feared that the legislation, as written, would give the state engineer more power and could strip away the ability of senior rights holders to exercise their claims. They worry mitigation programs, funded through a potential special assessment, could leave senior rights holders with money but no water.
“PCWCD constituents don’t want money, they want their water,” said Bennie Hodges, who runs the Pershing County district, which sued the regulators in 2015 to halt groundwater pumping.
Prior to the hearings, Crowell said the state faced three realities as it related to water. Crowell, who also worked for Sandoval, said because Nevada is the most arid state, the fastest-growing state and threatened by climate change, lawmakers should take a “proactive approach.”
“Climate change is real,” he said. “The impacts are being felt here in Nevada. And it is our responsibility to take the impacts into account in managing Nevada’s water resources.”###
Nevada Republicans, environmentalists pan proposed water laws By Colton Lochhead / Las Vegas Review-JournalFebruary 27, 2019 – 9:37 pm It’s not often that Republican lawmakers and progressive environmental groups find themselves on the same side of a policy debate in the Nevada Legislature.Water policy, however, has a knack for making such strange bedfellows.In this case, it is a pair of proposals from state water officials — Assembly bills 30 and 51 — that brought them together. The bills were heard Wednesday in the Assembly Committee on Natural Resources, Agriculture and Mining.Officials from the state Department of Conservation and Natural Resources said that the bills would add clarity to Nevada’s murky water laws and allow the state to better allocate water rights in the driest state of the nation.DCNR Director Bradley Crowell said the bills are necessary as the state faces a “very real and growing possibility” that the federal government will soon curtail water usage from the Colorado River. That, he said, would cause the state’s water issues to become “magnified exponentially.”“The status quo is not an option,” Crowell told lawmakers.But environmental groups, farmers, ranchers, Native American tribes and rural county officials argued that the two bills would grant uninhibited power to the state engineer’s office and lead to the the greenlighting of the long-standing proposal to pump groundwater from eastern Nevada to Las Vegas.“This bill upends Nevada water law as we know it,” said Kyle Roerink, executive director of the Great Basin Water Network, in testifying against AB30.Patrick Donnelly, an environmentalist and state director for the Center for Biological Diversity, specifically called out AB30 as a path to enabling the pipeline project, even if that is not the DCNR’s intent with the bill.“It would be the most destructive project in the history of the Silver State’s environment,” he said.Republican lawmakers on the committee took turns questioning the water officials, including acting State Engineer Tim Wilson, over the bills. John Ellison, R-Elko, asked whether AB30 was “even necessary.”“It is necessary,” Crowell said. “Without it we are left with two conflicting statutes. No matter which one we follow, we end up in court over our decision.”And those lawsuits — and the costs associated with them — are starting to pile up, said Micheline Fairbank, an attorney for the state Division of Water Resources. And that’s especially been the case in the last two years, she added, as the department has seen an increase in such lawsuits.Lawmakers took no action on the bill Wednesday.Pipeline politicsOpponents hammered the bills as being a path to allowing the Southern Nevada Water Authority’s long-standing proposal to build a 300-mile pipeline to pump groundwater from eastern Nevada to Las Vegas with an estimated price tag of $15 billion. The goal, according to the water authority, is to eventually supply the valley’s growing population and provide a backup supply for the area that gets 90 percent of its water from the Colorado River.A bill that included similar provisions to those in the two bills also made its way through the 2017 Legislature. The bill passed in the Democrat-controlled Assembly two years ago, with all but two Democrats voting for the bill. But the bill died in committee in the Senate without a vote.If the bills do move forward this time around, it could set up one of the first major tests for Democratic Gov. Steve Sisolak’s campaign promises. In an op-ed to the Elko Daily Free Press in October, then-candidate Sisolak made clear that he opposes the pipeline project.“My opinion is that this project is not a smart or effective way to spend what is projected to cost more than $15 billion. This plan is nothing more than a 20th-century band-aid to a 21st-century problem,” he wrote.Contact Capital Bureau Chief Colton Lochhead at clochhead@reviewjournal.com or 775-461-3820. Follow @ColtonLochhead on Twitter.
Plans to rewrite Nevada water law get rough reception at Legislature
Benjamin Spillman, Reno Gazette JournalPublished 10:25 a.m. PT Feb. 28, 2019
Plans to give Nevada’s top water official more flexibility to wade into water rights disputes got a rough reception in the state Legislature.
Farmers, conservationists and American Indians from Nevada and Utah turned out in opposition to the proposals in two bills while no one spoke in support of measures critics say would direct more water toward urban and suburban development at the expense of farming, ranching and the environment in rural valleys.
The testimony before the Assembly Committee on Natural Resources, Agriculture and Mining was the first chance for the public to speak in person before lawmakers about Assembly bills 30 and 51.
The bills, sponsored by the Division of Water Resources, seek to provide Nevada’s state engineer, the state’s top water official, more options when it comes to settling disputes over water rights.
· AB30 would enhance the state engineer’s authority to resolve conflicts over water rights through monitoring, management and mitigation agreements, also known as “3M plans.”
· AB51 would similarly give the state engineer more options when it comes to resolving conflicts related to the relationship between groundwater and surface water.
What the backers say
Officials from the Division of Water Resources said they proposed both bills to better implement water rights management mandates from past legislative sessions.
“This effort is the division’s attempt to implement the direction of the legislature,” said acting state engineer Tim Wilson.
Bradley Crowell, director of the Nevada Department of Conservation and Natural Resources, which oversees the Division of Water Resources, said prior legislation puts pressure on water managers to use 3M plans when water is available but current water law still requires them to deny applications when conflicts exist.
“We are stuck in a lose-lose situation from a management perspective,” Crowell said.
Opponents fear southern water grab
But opponents said the bills would concentrate too much power in the hands of the state engineer. They fear that power could be used to push forward a foundering proposal by the Southern Nevada Water Authority to pipe water from rural communities in eastern Nevada to Las Vegas.
“We would be left high and dry,” said Rupert Steele, chairman of the Confederated Tribes of Goshute, which is based in Utah and Nevada.
Steele said he fears provisions in the proposed legislation would make it easier for backers of the pipeline to circumvent court rulings that have held up the project.
Specifically, he said he’s worried for the future of Swamp Cedars that are important to tribal people. The trees survive in a lush zone in the Spring Valley, a contrast to the landscape of much of Nevada which is the driest state in the U.S.
“We have been fighting the good fight to protect this special place,” Steele said.
Rural farming and ranching interests also spoke out against the bills.
Rob McDougal, a commissioner in rural Pershing County, said the agricultural economy around Lovelock relies on laws that put senior water rights holders firmly in command when it comes to managing water.
McDougal said 3M plans, as proposed, would open the door to resolving conflicts over harm to water rights by paying money instead of preserving the rights.
While such an approach provides compensation for farmers, it doesn’t address what happens to the local economy if farming activity declines.
He said drought in recent years has already shown a downturn in farming activity takes a toll on the vibrancy of the community by forcing people who work on farms to move away.
“They left permanently because there is not work to be done or they have gone to the mines,” McDougal said.
Norman Frey, a farmer from Fallon, said drafting 3M plans can put individual farmers at a disadvantage if the other parties have more money. That’s because the plans, he said, are complex and require hefty amounts of consultation.
“We don’t have the expertise, that expertise needs to be hired,” Frey said. “It is very, very expensive.”
Conservationists said both bills lacked provisions to ensure future water deals wouldn’t harm the land or wildlife.
The bills, they said, stack the deck in favor of people seeking to move water to Las Vegas by allowing inadequate mitigation measures for potential environmental damage.
For example, they say importing water is an inadequate measure for restoring depleted springs.
“We do not believe replacement water for environmental resources is a viable approach,” said Laurel Saito, Nevada water program director for The Nature Conservancy.
Saito said Nevada is home to 170 endemic species, with many of them living in isolated springs and valleys.
“These are species found nowhere else in the world,” she said, adding their unique nature suggests it would be difficult to replicate their living conditions with imported water.
No action taken yet
Lawmakers on the committee didn’t cast votes on either bill but several members, both Democratic and Republican, asked questions that suggested they were skeptical of the plans as described.
“Doesn’t that very first line upend the very tenets of our water law in Nevada since our inception, meaning that the first in time is first in rights,” said Assemblywoman Robin Titus, R-Smith Valley. “You’re saying the person with the senior right … you are forcing them into a negotiation.”
Assemblyman Howard Watts, D-Las Vegas, said he worried the bills lack provisions to protect communities and the environment from potentially harmful ramifications.
“We could end up with things like aquifer decline, groundwater mining or other things that have negative impacts,” Watts said.
Ben Spillman writes about the environment and the outdoors in Nevada. Support his work by subscribing to the Reno Gazette Journal.