In a majority opinion, the Nevada Supreme Court on June 16th approved a groundwater management plan for Diamond Valley in Eureka County. This was an appeal from a the Seventh Judicial District Court, Eureka County, order granting petitions for judicial review. The State Engineer, under NRS 534.037 and NRS 534.110(7), approved a groundwater-management plan for the Diamond Valley Basin as Order 1302. Pursuant to a petition for judicial review, the district court concluded that Order 1302 violated provisions of Nevada law, including the prior appropriation doctrine, vested surface-water rights, the beneficial use statute, and permitting statutes.
Justices Hardesty, Stiglich, Cadish and Herndon opined that the Legislature enacted NRS 534.037 and NRS 534.110(7) to address the critical water shortages in Nevada’s over-appropriated basins and that the statutes plainly give the State Engineer discretion to approve a GMP that does not strictly comply with Nevada’s statutory water scheme or strictly adhere to the doctrine of prior appropriation. The Justices also stated they recognize that their opinion will significantly affect water management in Nevada but are of the belief, however, that-given the arid nature of this State-it is particularly important that they effectuate the plain meaning of a statute that encourages the sustainable use of water. They further opined that the GMP is a community-based solution to the long-term water shortages in Diamond Valley and that because the GMP complies with NRS 534.037 and NRS 534.110(7), it is valid.
In separate dissents, Chief Justice Parraguirre and Justice Pickering argued the law doesn’t plainly and unambiguously give the state engineer the power to depart from long standing rules basing priority on when the water rights were appropriated to the holder and also argued the plan allows an unconstitutional “taking” of private property without just compensation. Both dissenting opinions were joined by Justice Silver.