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MVWD Board Strategizes Over Draft Order

By VERNON ROBISON

Moapa Valley Progress

The Moapa Valley Water District (MVWD) Board of Directors held a strategy session last week in preparation for a pivotal meeting of regional water stakeholders to be held in Overton later this month. The upcoming meeting, being convened by Nevada State Engineer Jason King, could pose some broad-reaching consequences for the future availability of important local water resources.

A draft order, released by King’s office last month, would place a tight limit on groundwater pumping in a vast region called the Lower White River Flow System (LWRFS). This multi-basin system includes the Warm Springs upper reaches of the Muddy River where MVWD gets the water to supply all Moapa Valley homes..

The draft order would establish a water rights ‘pecking order’ based only on the seniority of water permits. Permits issued prior to the cutoff date of March 31, 1983 would be considered senior rights and given priority. Many of the senior rights holders have yet to show beneficial use on those rights.

On the other hand, municipal water users such as Southern Nevada Water Authority (SNWA), Coyote Springs Investments (CSI) and MVWD find themselves with water rights that were permitted after the 1983 cutoff. Some of these junior rights, like the ones held by MVWD at its Arrow Canyon well site, are certificated rights and have been put to beneficial use in the community for nearly thirty years now.

The draft order indicates that these junior rights could be forfeit. If senior right holders should opt to begin pumping their previously unused groundwater rights, and if the limits specified in the draft order should be reached, the certificated junior rights could be curtailed, according to the draft order.

This would go against long held precedent which has always given weight to water rights owners showing beneficial use of rights; especially when they are municipal water suppliers.
“I think that it is important to point out that, with this order, everything that we thought we knew has been upended,” said MVWD board member Lindsey Dalley at last week’s meeting held Tuesday, October 9. “The fact is at this point we just don’t know where we will end up. What we thought was settled and firm water law is now not at all settled.”

MVWD General Manager Joe Davis agreed that the draft order had brought tremendous uncertainty. He explained that certificated rights showing beneficial use of water had always been considered the “golden ticket” in Nevada water law.

“The State Engineer has even referred to it specifically as the golden ticket,” Davis said. “We have certificated rights and we have worked hard to play by the rules. We have made agreements with other entities to secure the resource and preserve the Warm Springs habitat. In the past, that has always given us standing. But this draft order doesn’t account for any of that.”

The district’s main production well at Arrow Canyon went into operation in 1990. The water from that well is certificated by the State Engineer’s office. But the issuing of its permits took place after the 1983 seniority deadline.

Davis cited that in 1990, when Arrow Canyon first went into use, the district only had about 1,740 connections to serve. But based on the rights certificated at Arrow Canyon, the district has provided for growth over the past 28 years, adding nearly 1,350 more connections. Now all these years later, this draft order could allow those certificated rights; upon which all of that growth has been built; to be stripped away, Davis said.
“How can you responsibly manage community growth as a water utility if you don’t know, and can’t depend upon, what your resources are?” Davis asked.

In attendance at last week’s board meeting was MVWD contract lobbyist Warren Hardy. Hardy came to answer questions and report on conversations he has had with regional stakeholders regarding the draft order.
“The million dollar question among people out there is: What in the world is he doing?” Hardy said, referring to King’s draft order. “No one really knows the answer. Everyone was surprised by it.”

Hardy reported on conversations he has had with members of the legal counsel for SNWA. He said that while they too were puzzled by the draft order, they were not overly concerned about it.
“I think that’s because a good lawyer is not afraid of a lawsuit,” Hardy said. “They know that this won’t hold up in court. So they aren’t overly worried.”

Hardy made the conjecture that perhaps the draft order had been issued to push the matter into the courts for a decision. He cited several recent cases where senior water rights in the state had been questioned because their holders were not showing beneficial use of the water.

“You have these situations where the senior rights holder has never used the ground water rights; in fact his well site is paved over, and has been for decades,” Hardy said. “The State Engineer comes in and rules that the rights should be forfeit because there is no beneficial use. The case goes to court and the judge rules against the State Engineer and for the private rights holder. I think those kinds of situations have been frustrating to the State Engineer’s office.”

Hardy surmised that perhaps the draft order was intended to take such court decisions out to their ultimate result and to force a final decision on the matter either by the courts or by the legislature.
“And the legislature might be our best option,” Hardy said. “Maybe we need to go to the legislature in 2019 and get some of these things clarified into law.”

In the meantime, MVWD board members were deternuned to focus on informing the local residents on the issues surrounding the draft order.
“We need to let people know what is going on here and where we stand on it,” said MVWD Board member Ryan Wheeler. “The public needs to be involved in this because it impacts every one of us. For a lot of people, their homes were built on the assurances of these certificated water rights. If those rights can just be pulled away suddenly like this, it throws everything up into the air.”

The board resolved to write and submit an op-ed article setting out their position on the matter to be published in the Progress (see page A4 in this edition). Board members also pledged to get the word out to the public in whatever ways they were able.

“The public should be encouraged to show up in force at the upcoming public meeting,” said Davis.
“People need to know what is at stake and they need to understand the issues and be able to speak out about them,” Dalley agreed.

The public meeting hosted by the Nevada State Engineer is scheduled for Wednesday, October 24 at 9:00 am in the Overton Community Center. King, members of his staff and all regional stakeholders will be present. The public is encouraged to attend.

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