At the state Supreme Court
At the state Supreme Court
What is the role of the nation's driest state in managing groundwater and surface water together?
Hey there - Here’s a new post ahead of the Nevada Supreme Court’s oral arguments in an important water case next week. Spent some time reading the briefs in the past few weeks. If you want to get future posts in your inbox, you can subscribe below. I’ll be posting more frequently on here as a stable place for my writing/notes/research, given the uncertainty of Twitter/Threads, and as I continue to work on my book project.
I hope you’ll follow along and share with anyone who might be interested. -Daniel
Over the past few years, the Nevada Supreme Court has issued formative rulings related to how water is managed in the state. But a complicated case on its docket, years decades in the making, could be just as consequential, if not more. The outcome of the case could help answer fundamental legal questions about the state’s role in managing water and how the best available science applies to regulating overuse.
The details are complex and lengthy — more than 49 appendices were filed in the court’s record system. But here is a brief summary of the context and background:
BACKGROUND
At issue is how to define and manage the Lower White River Flow System, a large and regional groundwater system that discharges into springs that form the headwaters of the small Muddy River, a tributary to the Colorado River and critical habitat for the endangered Moapa dace. Here, as it is elsewhere, ground and surface water are connected.
Pump groundwater from certain geologic formations of the Lower White River Flow System and you risk depleting the flows of the Muddy River, water that the Las Vegas Valley, through the Southern Nevada Water Authority, wants to supplement its small Colorado River supply, and habitat for an endemic fish protected under federal law.
The catch here: Over time, the state issued so many groundwater rights in the region that if the pumps were turned on to capture all of it, scientists say it would deplete at least a portion of the river, harming the environment and communities that rely on it.
How these paper rights came to be held by the businesses and local governments that now hold them is another story in and of itself (and one I’ve covered). But it’s worth knowing that two key players are the water authority and Coyote Springs Investment, which has long sought to build a master-planned community outside of Las Vegas.
Enter Order 1309, issued in June 2020.
With this order, state water regulators did several things to start getting a handle on the problem: More rights to water than there was water to use sustainably. First, they defined the Lower White River Flow System as including seven connected basins. Second, the order set a maximum for groundwater withdrawals for the flow system.1
The state argued that the order was more of a declaration, a fact-finding ruling that described the issue but did not necessarily dictate what to do in specificity. The state argued that, when crafting Order 1309, regulators relied on the best-available science, protected those who have surface rights to use the Muddy River (with “senior” priority relative to “junior” groundwater users) and adhered to the Endangered Species Act.
Yet it disrupted the status quo in Nevada, where groundwater and surface water are traditionally managed separately, though not always, and basins are seen as separate units with discrete boundaries, even though science has suggested that they are often connected. The order was challenged, and District Court Judge Bita Yeager struck it down, arguing state officials lacked explicit statutory authority to justify the ruling.
The 8th Judicial District Court (Clark County) sided with Coyote Springs and several other business interests, finding that combining seven basins into one would change the value of water and a management regime that had existed for decades, calling existing basin boundaries “immutable administrative units.” The court said that state regulators could not rely on legislative policy statements alone to take such sweeping action (lawmakers had “encouraged” the state to rely on the “best available science”).
“Indeed,” the court reasoned, that “if science was the sole governing principle to dictate the [state’s water] decisions, there would be a slippery slope in the changes that could be made in the boundaries of the basins and how they were managed; each time scientific advancements and discoveries were made regarding how sub-surface water structures are situated or interconnected, under this theory of authority, [state water regulators] could change the boundaries of the existing basin.”
In sum, the district court said the state relied on authority the law didn’t explicitly grant.
THE APPEAL
The state of Nevada, the Southern Nevada Water Authority, the Center for Biological Diversity and the Muddy Valley Irrigation Company appealed the lower court ruling to the Nevada Supreme Court, arguing that such an interpretation would effectively paralyze Nevada’s Division of Water Resources, which is tasked with managing water, not only to maximize economic use but to protect existing water users and the public.
Embedded in their argument is that Nevada water regulators, as outlined in various aspects of statute and evidenced by past decision-making/precedent, actually have an affirmative duty to manage pumping in a way that considers the interconnectedness between surface and groundwater — and in a way that does not impair those with priority rights or endangered species habitat. They cited several cases, including a U.S. Supreme Court case involving the Devil’s Hole pupfish (Cappaert v. United States).
Nevada water law, as is true across much of the West, functions on a priority system: Those with water rights first in time get a priority to water in times of a shortage. In other words, rights can be conditioned if they conflict with existing prior water rights that others hold. Within the Lower White River Flow System, all of the Muddy River surface water rights predate groundwater rights. But Nevada law is more complicated.
Nevada statute — and state regulators — have historically treated surface water and groundwater as separate sources, with separate priority systems, even though in many cases, the two sources are physically one and the same: Rivers can be replenished with groundwater, just as groundwater can be replenished through water from streams.
Despite the historic interpretation, the appellants’ brief argues that the state, in many instances, has actually recognized these connections. Thus, they believe the state has the authority to change groundwater basin boundaries to conform with the science, as these basins were administratively, not legislatively, created. To deprive state officials of this ability, they argued, would create “absurd results” and “paralyze” regulators.
Their point: If the science suggests basins are interconnected, why not recognize it?
It should be noted that there are many more legal arguments briefed before the court, including due process claims that could weigh on any final decision from the court.
Oral arguments are scheduled for Aug. 8, 2023.
WHY IT MATTERS
The case deals with the Lower White River Flow System, which is a significant region tethered to the Colorado River. It’s a major issue in its own right, with a big housing development, Las Vegas’ water portfolio and an endangered species in the balance.
For the state of Nevada, however, the case is also being watched because it could have significant ramifications elsewhere. Here’s three reasons this case is important:
Defining the Division of Water Resources’ authority: The 8th Judicial District Court, echoing arguments presented by Coyote Springs and others, interprets the authority of Nevada’s top water regulator as narrow. It comes at a time when state water officials are being asked to take actions to prevent the overuse of water and resolve real conflicts between water users, the basis of which often form around scientifically-established interconnections between ground and surface water.
With this case, the Nevada Supreme Court may provide more clarification. What weight do legislative policy statements have? Should the state’s water agency be guided by best-available science in a world where water users often hire outside hydrologists who, in turn, present often disputing models and theories? In cases where there is conflicting science, who is the final arbiter? Does the state division retain its discretion to define basins as science evolves? And, finally, what is the state’s role in considering groundwater and surface water as a connected source?
Managing surface and ground water: That last question is a major one. Ground and surface water connections exist all over. It’s true on the Truckee River and the Walker, the Carson and the Humboldt, prominently so. As a result, any decision in this case could have implications for many watersheds across the state.
Notably absent in much of this: The Legislature. Other than its policy statements, the Legislature has been unable to come up with an explicit statutory framework to manage both ground and surface water as one. Challengers of Order 1309 have cited the inability of lawmakers to pass such a policy as a reason why regulators lack explicit statutory authority. Supporters say such authority exists, and they underscore policy statements on managing ground and surface water together.
Here, others are closely monitoring how the case plays out. In fact, Nevada Gold Mines, the state’s largest gold mining company, filed its own preemptive lawsuit in the Nevada Supreme Court last year objecting to a separate order, 1329, on the Humboldt River. That order considers the effects of junior groundwater pumping on senior surface flows. The mine’s case was dismissed, in part because the court said it is evaluating such similar issues in the Lower White River Flow System.
Thinking about sustainable water use: The case raises questions about what is a sustainable way to manage water in an arid environment where the science shows that consuming water in one place will have some effect on someone else’s water.
The way groundwater is kept in “balance” is through a concept that is known as perennial yield, the amount of water that can be sustainably consumed through creating a water budget — for each separate groundwater basin — that balances recharge (the water that naturally goes into an aquifer) and discharge (the amount of water leaving an aquifer through springs or evapotranspiration through plants).
In theory, this could add up. In practice, there are serious limits and one of them is the interaction between groundwater and surface water. Depending on where groundwater is pumped, along with other factors, it can “capture” surface water, leading to a potential conflict between a groundwater user and a surface water user — which have water rights from the state under different statutory regimes.
Because of how water is interconnected, the state has effectively over-estimated the amount of water that is available in some places, and now officials are being forced to reconcile balance sheet. This case could define the statutory limits of the state’s tools for doing so.
The order found 38,000 acre-feet (AF) of water had been appropriated, yet only 8,000 AF could be pumped sustainably from the Lower White River Flow System.