The Nevada Supreme Court has ruled the state engineer has the authority to manage surface and groundwater, potentially impacting water depletion and its impacts on development and agricultural uses.
The case involves whether the state engineer has the authority under State Engineer Order 1309 to reclassify several established hydrographic basins into a single “superbasin” due to a common water source for effective water administration and management.
The state engineer issued the order for the Lower White River Flow System (LWRFS) basin, addressing challenges from growth and development. Recognizing hydrological connections, it combines basins, sets groundwater pumpage limits and relies on current scientific data for supply management in compliance with legislative directives. The order also preserves senior water rights and safeguards habitat for the endangered Moapa dace fish.
Justice Barbara Lee affirmed the authority of the state engineer to manage surface waters and groundwater conjunctively, administer multiple basins jointly, and issue Order 1309 in the opinion. The opinion stated the plaintiffs’ due process rights had not been violated as they had ample notice and an opportunity to be heard.
The court reversed the district court’s order and remanded for further proceedings on the state engineer’s factual determinations.
Background
In 2001, the state engineer addressed pending groundwater appropriation applications for basins north of Las Vegas. The groundwater is sourced from an area known as the LWRFS, a large carbonate rock aquifer system with unknown recharge rates and boundaries.
The state engineer issued an order expressing concerns the groundwater came from the same aquifer system and that pumping would affect other basins, including the spring supplying the Muddy River. To assess the impact of increased pumping on the LWRFS, he mandated water rights holders in Coyote Springs Valley to conduct a two-year pump test. During this test, at least 50% of permitted water rights were pumped, providing additional insights into the aquifer’s response.
The state engineer also observed reduced water flows from headwater springs supplying the Muddy River. Recognizing the statutory vested rights of the Muddy River Decree holders, the state engineer acknowledged potential negative impacts on these rights and public interest.
Furthermore, the Muddy River’s springs and tributary headwaters serve as the habitat for the endangered Moapa dace fish, protected under the Endangered Species Act. The state engineer concluded that excluding Kane Springs Valley, nearby basins shared the same perennial yield with no unappropriated groundwater. Subsequently, he denied numerous groundwater appropriation applications throughout the area basins.
In 2019, addressing concerns of over-appropriation in the carbonate aquifer, the state engineer released Order 1303, establishing the basins (excluding Kane Springs Valley) as a “joint administrative unit” named LWRFS. The state engineer reorganized and managed water rights collectively within the newly formed LWRFS, prioritizing water rights based on respective dates throughout the entire system.
Following an administrative hearing, the state engineer issued Order 1309 in 2020 with the inclusion of Kane Spring Valley as a single basin and stated that no more than 8,000 acre-feet (an acre-foot is 325,851 gallons) could be pumped without adversely affecting the Muddy River and Moapa dace.
Water rights holders petitioned the district court, where the cases were consolidated. The court ruled that Kane Springs Valley was not previously designated as an administration basin. The district court concluded that the state engineer exceeded his statutory authority by forming the LWRFS from distinct hydrographic basins and lacked the authority to manage surface water and groundwater within the LWRFS conjunctively. The district court further ruled that the state engineer violated constitutional due process by providing inadequate notice and a limited opportunity for water rights holders to be heard.
The state engineer appealed the decision, as did multiple other parties challenging the pumping limit and trying to collect attorney fees.
The Nevada Supreme Court remanded the case back to the district court for further review under Nevada statutes concerning the adjudication of vested water rights to assess whether substantial evidence supports Order 1309 and for subsequent proceedings under this court’s opinion.
Reaction
Doug Busselman, executive vice president of the Nevada Farm Bureau, told WLJ the case regarded the issue of conjunctive management and the authority of the state engineer to manage groundwater basins, which the agency is most interested in.
Busselman said there are many areas in the state where there is an interaction between surface water and groundwater, specifically the Humboldt River in the north-central area of the state. Drought and groundwater extraction has resulted in irrigators receiving little to no water in the last 20 years, according to the Nevada Independent.
However, Busselman said pumping continues and could prompt the state engineer to impose pumping limits.
“Surface water in the (Humboldt) river are senior water rights, but there is a substantial amount of groundwater pumping taking place in different groundwater basins across the reach of the river,” Busselman said. “There has been the view that surface water is negatively impacted by the amount of pumping taking place. That would create the nexus for conjunctive management action, opening the door for the state engineer to take action.”
Busselman said the farm bureau will look at what the state engineer does next. However, the issue of conflicts between surface water and groundwater has been ongoing, and the farm bureau has taken a proactive approach, he said. Busselman encourages water rights owners to be involved with the state engineer concerning their rights and potential conflicts. Busselman said the farm bureau is hopeful to move forward now that some of the questions have been answered.
The Center for Biological Diversity (CBD) praised the Nevada Supreme Court’s decision, stating it will determine the future of water management in the state.
“The state engineer made the right call in ordering that groundwater and surface water be managed together for the benefit of the public interest, including wildlife,” said Patrick Donnelly, Great Basin director at CBD. “The Moapa dace is protected by the Endangered Species Act, and that means the state can’t take actions that would drive the species toward extinction.”
Kent R. Robison, the lawyer representing Coyote Springs Investment LLC—the developer of a 40,000-acre planned community of 160,000 homes northeast of Las Vegas—told Courthouse News Service he has concerns regarding the ruling.
“The prior well-established and relied upon procedures are now in question,” Robison said. “We all agree that the prior appropriation doctrine provided some certainty regarding water rights. Now we view that crucial doctrine through a new lens.” — Charles Wallace, WLJ contributing editor
