Feb 05 2010
NV: Does decision on deadline mean ‘chaos’?
A Nevada Supreme Court decision in Great Basin Water Network v. Tracy Taylor could upend enough of the state’s water system to lead to “chaos” in the field, a state water official said in early February.
The decision was an appeal from district court reviewing what the court said was a narrow issue: “Whether the State Engineer violated his statutory duty under NRS 533.370(2) by failing to rule on Southern Nevada Water Authority‘s 1989 water appropriation applications within one year.” State law included that requirement at the time, waivable only if the parties agreed to an extension, which none did in the years following. The law was changed in 2003 “to permit the State Engineer to postpone action on pending applications made for municipal use. The district court determined that the amendment applied to SNWA’s 1989 applications”, because it found those applications were still “pending” – but the Supreme Court reversed that determination.
The high court said, “we reverse the order of the district court and remand for a determination of whether SNWA must file new groundwater appropriation applications or which the State Engineer must re-notice SNWA’s 1989 applications and reopen the period during which appellants may file protests.”
The blog Chance of Rain recalled that “When Las Vegas made its applications in 1989, there were more than 100 claims covering thirty valleys and involving what was estimated as half of the legally available groundwater in Nevada. It was not only the largest mass filing on record, the protest was also unprecedented. An August 1990 interview with then State Engineer Mike Turnipseed in the Las Vegas Business Press reported, ‘Nearly, 3,000 formal protests filed thus far with Turnipseed’s office by government wildlife agencies, rural county and city officials and hundreds of ranchers, conservationists and businesses have made it the most contested water request in Nevada history.’”
The precise import of the decision is not yet clear, but many water parties around Nevada are concerned its impact could be broad.
Acting State Engineer Jason King speculated about the possibility that the decision might throw out all applications for water his office received, that were not acted upon within a year, from 1947 to 2002 – possibly 14,500 cases. He was quoted by the Last Vegas Review-Journal as saying, “I can’t even fathom it. There would just be so much litigation, it would be gridlock.”
The state engineer’s main office has, the newspaper reported, seen a sharp spike the volume of submitted paperwork. Those included filings from the water authority.
The Great Basin Water Network, which led the lawsuit filing, reported early in February that “As one might have anticipated, the powerful Southern Nevada Water Authority will seek that the NV Supreme Court “reconsider” its ruling which said that the State Engineer violated state law in denying 3,000 protestants their right to a timely hearing. What is slightly more surprising is that the State Engineer is going to ask for “reconsideration” as well. What the State and the Authority both seem to be ignoring is that the Supreme Court ruling focused on the unprecedented filing of over 800,000 acre-feet of water applications back in 1989 and the 3,000 protests which followed. By delaying the process for 17 years (17 times longer than state law allows) SNWA and the State Engineer were able to see huge attrition in protestants and a decrease in rural economic activity throughout eastern Nevada because of the uncertainty which ensued. However, the State is now claiming that it will be “chaos” because they have routinely ignored the State Law. Good grief. Is this a defense?”
Days later, its blog said, “SNWA is bringing on the big guns, first to influence the Supreme Court to reconsider its ruling on the water applications, and now to bring a bill before the special session of the legislature to include their applications under the 2003 which allows municipal applications to be held without action literally forever. The threat of overturning the recent State Supreme Court ruling on water and due process by the Legislature is now reality unless we can convince the Governor’s office not to have it on the agenda, so time is of the essence.”
