By VERNON ROBISON
Moapa Valley Progress
Top state water managers tapped the brakes last week in a proposed timeline for key water decisions in a vast southern Nevada area known as the Lower White River Flow System (LWRFS).
In a meeting of regional water stakeholders held in Overton on Wednesday, October 24, Nevada State Engineer Jason King laid out a revised timeline that would take a slower, more deliberate approach to the difficult decisions ahead. In earlier meetings, King had expressed urgency to reach a final plan by the end of this year. But Wednesday, the proposed timeline extended well into next year and beyond for a final decision in the complex matter.
The first public meeting on the matter took place in July before a packed audience at the Overton Community Center. At that time, King explained that the LWRFS is severely overallocated. The huge, multi-basin groundwater system that includes the upper Muddy, Coyote Springs valley, California Wash, Apex region and a portion of the Black Mountains, currentlyh has 40,000 acre feet per year (afy) of committed groundwater rights. Yet a two year test pump ending in 2012, which drew a total of 10,000 acre feet of water from the system, caused a marked decline in spring flows at Warm Springs. An acre foot is roughly enough water to supply a single Moapa Valley household for one year.
King explained that the spring water decline could pose a problem to the most senior Muddy River water users, as well as to the habitat of the federally-endangered Moapa dace, a finger-sized fish which lives only in the headwaters of the Muddy.
In the July meeting, King recommended that water stakeholders in the region work together on a solution to the overallocation problem. He explained that his options as State Engineer were fairly limited.
“The statute leaves us only scorched earth techniques to do it,” King said in July. “To put it bluntly, it is curtailment of rights. And we don’t really want to do that.”
Yet a draft order released by King’s office in September, seemed to already on that path. The order established a “pecking order” based only on the seniority of water rights. Permits issued prior to a March 1983 date were considered senior and given priority. Many of these rights have yet to show any use of the water.
But municipal water users, like Moapa Valley Water District (MVWD), that have long been putting water rights to beneficial use, were considered junior rights on the draft order’s time scale. The order indicates that those junior rights could be forfeit if senior rights holders should opt to begin pumping their previously unused groundwater rights.
That balance between senior priority rights and beneficial use was a main topic of discussion at last week’s meeting.
“It is admittedly a difficult issue and there is no easy answer,” King told the crowded room. “In the law, when curtailment of rights is considered, it always talks about doing it by senior priority. That is why we need to come to a conjunctive management plan to address all of these issues.”
Missing from the draft order was any mention of a key 2006 Memorandum of Agreement (MOA) that brought together a number of key stakeholders to help manage water resources in the Warm Springs area. In this complex agreement, the various parties agreed to trade and shift resources amongst themselves in order to protect spring flows through the dace habitat.
During a public comment period in Wednesday’s meeting, MVWD Board member Ryan Wheeler asked why the MOA had not been mentioned in the draft order. He pointed out that the MOA had already addressed the balance between seniority rights and beneficial use; at least for the upper Muddy area. He suggested the State Engineer might build upon it for a more comprehensive treatment of the LWRFS.
“The MOA already readjusts the senior priority rights in consideration of the dace,” Wheeler said. “But this draft order sweeps all of that away.”
MVWD General Manager Joe Davis pointed out that MVWD had given up its most senior water rights at Jones Spring in the MOA in order to benefit the dace and to move the agreement forward.
“If it all goes back to seniority only, as you seem to do in the draft order, we are forced to take those senior rights back,” Davis said.
Richard Berley, attorney for the Moapa Band of Paiutes, had a similar scenario. He was concerned that the State Engineer was moving too fast and not considering fully many key pieces of the puzzle like the 2006 MOA.
“It took a long time to get those agreement in place and there are a lot of elements intertwined in them,” Berley said. “We are just concerned that you might be jumping too fast and, by unravelling all of that, do more harm than good.”
Berley mentioned a small portion of water allocated in the MOA for the tribe to use in supplying a large solar power plant built on reservation land. That relatively small amount of water is based on a junior filing which, under the draft order, could be curtailed first, Berley said.
“If that happened, the tribe would be forced to start into a (federal) adjudication process which could end up having us jump ahead in line of all these parties that we have made an agreement with,” Berley said. “That could have a lot of rippling effects. I just think we need to take a deep breath before imposing something in opposition to that 2006 agreement.”
MVWD board member Lindsey Dalley raised a broader issue on where true legal seniority of Warm Springs rights should rightfully lie. Citing State Engineer’s decrees going back more than a century, Dalley contended that the Moapa Valley community had been relying upon the Warm Springs water source for its existence since the 1860s.
“A new front needs to be opened in this discussion,” Dalley said. “We need to realize that Moapa Valley Water District is the only elected body in a position to defend and protect the community’s historical use of that water. I think that the discussion needs to include the fact that this community has existed, and has a right to continue to exist, despite all the other users that have come up in the system.”
Emilia Cargill, representing Coyote Springs Investments (CSI) disputed the limit placed on groundwater pumping in the LWRFS by the draft order. In the years since the test pump, a total of 9,318 afy has been pumped from the LWRFS with no additional affect on the spring flows. Thus the draft order selects that number as the upper limit allowed to be taken. This is the basis for setting the March 1983 seniority cutoff date. Most of the CSI water rights were filed after that 1983 date.
But Cargill claimed studies have shown that the system could actually bear a much larger volume of annual pumping.
“Your arbitrary 9,318 afy limit is contradicted by your findings that the acutal and more relevant annual average of pumping is 11,400 afy,” Cargill said. “We believe that is a much better starting point for the discussion. But it should be used only as a starting point, not as a stoppping point.”
Cargill also said that CSI strongly opposed a statement in the draft order which holds all LWRFS subdivision approvals in abeyance pending the conclusion of the process to determine the groundwater available in the system. Any approvals made during that abeyance must be based on the developer showing that an adequate outside supply of water is available in perpetuity.
“That requirement discriminates against Coyote Springs,” Cargill said. “In addition, if carried to the furthest degree, it would mean that all subdivisions – even a small two home subdivision in Overton – might be held in abeyance. That is the legal end-road we are headed to.”
At the end of Wednesday’s meeting, King outlined a revised timeline for the process. He proposed that an updated interim draft order should be released and put into effect by late December of this year. This order would set out a timeframe for collection and analysis of data. Additional public hearings would then be held to review the data. Then later on in 2019, a final order would be issued on water availability in the region, King said.
MVWD officials were pleased with the change in the schedule and the more deliberate approach.
“I like the direction that it turned compared to where we were sitting before the meeting,” Joe Davis said. “We went in fearing a doomsday scenario where it really wasn’t looking very good for us. But we came out optimistic that the process would continue on in a positive way.”
