On June 16, 2022, the majority of the Nevada Supreme Court approved a Nevada State Water Engineer Ground Water Management Plan (GMP) that cuts water pumping in the over-appropriated and over-pumped Diamond Valley Hydrologic Basin (153) to its perennial yield.
The decision reverses a previous district court order invalidating the state Water Engineer’s approved plan.
Because withdrawals have consistently exceeded the perennial yield of the Basin, on August 25, 2015, the State Engineer declared Diamond Valley a Critical Management Area (CMA) (order 1302) under NRS § 534.110(7). Once proclaimed a CMA, holders of water rights within the Basin have ten years to create and present to the State Engineer a groundwater management plan; otherwise, the State Engineer must curtail the Basin by priority.
Farmers and miners in Eureka Counties Diamond Valley are the majority of underground resource users. They have annual underground permits for 132,574.89 acre-feet of underground water with a perennial yield [i] of about 30,000 Acre Feet. That is 102,574.89 AFA over the yearly yield. Of that, about 76,000 is attributed to consumptive use,[ii] leaving 26,574.89 as “paper water.” [iii]
The issue of paper water was raised and considered during the GMP[iv] drafting process. The Planners determined that any valid right in good standing would receive shares. They believed that of the 29,325 Acre Feet Annually (AFA) of senior water rights, 18,700 Acre Feet Annually (AFA), or about 64%, is represented by signatories of the petition to perform the GMP. Therefore, the State Engineer found that the plan represented a significant portion of senior and junior rights holders who signed the petition.
The Justices approved the seven-factor elements considered in developing the plan. The factors included:
- The hydrology of the Basin;
- The physical characteristics of the Basin;
- The geographic spacing and location of the withdrawals of groundwater in the Basin;
- The quality of the water in the Basin;
- The wells located in the Basin, including, without limitation, domestic wells;
- Whether a groundwater management plan already exists for the Basin; and
- Any other factor deemed relevant by the State Engineer
From these factors, planners felt that the first step included a reduction of the “paper water” followed by a decrease of the present consumptive use of 76,000 AFA to 30,000 AFA over 35 years in five-year increments based on priorities.
The GMP deviated from the doctrine of prior appropriation by requiring all water rights holders to reduce their withdrawals from the Basin-not just junior rights holders.
The Diamond Valley GMP is the first of such efforts that involve right holders while simultaneously reducing groundwater pumping to a level that satisfies the State Engineer without dire and sudden impacts.
Chief Justice James W. Hardesty, Justice Lidia S. Stiglih, Justice Elissa F. Cadish, and Justice Douglas Herndon constituted the majority
Justice Ron D. Parraguirre and Justice Abbi Silver (Retired) dissented. They argued that Nevada law does not allow the Nevada State Water Engineer to develop a plan that plainly and unambiguously departs from the prior appropriations doctrine.
In a previous case, the Justices also ruled on prior appropriations as part of the Public Trust Doctrine.
The Justices recognized that the Walker Basin could not meet the county’s needs without reallocating adjudicated water rights. However, they point out, “Our State’s water rights statutes forbid reallocation adjudicated water rights.”
On September 17, 2021, a three-member majority of the Nevada Supreme Court ruled after oral arguments that the public trust doctrine embedded in current water law disallows the relocation of adjudicated water rights for anything other than its intended purpose. [v]
As a measurement of meeting the public interest, the Justices held that prior appropriations result in economic benefit since: “Municipal, social, and economic institutions rely on the finality of water rights for long-term planning and capital investments.
The Justices argued that to permit reallocation would, they assume, create uncertainties for future development in Nevada and undermine the public interest in finality and thus the management of these resources consistent with the public trust doctrine.”
Justice Lidia S. Stiglih wrote the opinion for the majority, with Chief Justice James W. Hardesty, Justice Elissa F. Cadish, and Justice Douglas Herndon concurring.
In this case, Justice Ron D. Parraguirre and Justice Abbi Silver (Retired) concurred in part and dissented in part.
In dissenting, the two Justices felt that the majority rephrased the issue in a way that treated prior appropriations and the public doctrine as an all-or-nothing approach which, they felt was inconsistent with the Nevada law. They stated that Nevada’s appropriative water rights system and the public trust doctrine developed independently. Therefore the goal is to balance them and their competing values, not set them on a collision course.
Just as the prior appropriation system “may be necessary for efficient water use despite unavoidable harm to public trust values, . . an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust, the two Justices said.
[i] Perennial yield is the amount of water that can be pumped pump without resulting in long-term aquifer depletion.
[ii] The term “consumptive use” is used to describe the loss of water during evaporation, as well as the water it takes to meet this loss and transpire through the leaves. Most often, consumptive use refers to just crops but it is a broader concept. Along with crops, it can also be used in farming, valleys, and other land-related projects.
[iii] Paper water is water that is either permitted, vested, or certified in excess of the perennial yield and without a systematic study of the hydrological cycle, current status, and future trends in both water supply and demand.
[iv] The Ground Water Management Planning Process became effective in 2011.
[v] Before the Court En Banc. Author: Stiglich, J. Majority: Gibbons/Hardesty/Stiglich/Cadish. Concurring in part and dissenting in part: Pickering/Silver. fn1 [The Honorable Ron D. Parraguirre, Justice, voluntarily recused himself from participation in the decision of this matter.] 136 Nev. Adv. Opn. No. 58. En Banc. (SC).
