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Chance of Rain, February 25, 2010

Nevada head of Natural Resources: I am not carrying the water for SNWA

Updated 10.16am 3/1/2010. The Las Vegas Review-Journal reports that the Nevada Legislature will send the proposed water bill to committee before disbanding its special session today. Governor Jim Gibbons may recall legislature for a vote on it once the bill is out of committee.

Governor Jim Gibbons’ instruction to the Nevada legislature to amend state law in a way that would retroactively legalize water awards made since 1947 will not render moot a recent state Supreme Court decision that threatens the future of a controversial Las Vegas pipeline project, a senior state official said today.

Rather, Allen Biaggi, head of the Nevada Department of Conservation and Natural Resources, insisted that the Governor’s instruction has been accompanied by proposed language that excludes from amnesty any awards made to the Southern Nevada Water Authority.

However, as pipeline protestors read the same document, they say they are better off staying in the courts and out of legislature.

Written by Biaggi, the language proposed to legislature would exclude awards of more than 250 acre feet per year, or involving inter-basin transfers, or ones that have been pending for more than seven* years or that are subject to court action.

In other words, Biaggi’s wording appears to exclude all awards made to the Southern Nevada Water Authority for the water pipeline that it proposes to run almost 300 miles through five valleys into the heart of rural Nevada.

“I have been getting hammered by a lot of people saying I am carrying the water for SNWA,” said Biaggi in a telephone interview. “I’m not.”

Biaggi’s decision to go to legislature seeking an amendment came after a January state Supreme Court decision found that the due process rights of protestors of the pipeline planned by the Southern Nevada Water Authority had been serially violated for almost two decades. Under law, protestors to 1989 applications made by the Las Vegas authority should have been assured hearings by 1991. The hearing for the most water-rich basin on the pipeline, Spring Valley, took place in 2007, the hearing for three subsequent valleys in 2008 and the hearing for a fifth valley is not scheduled for another ten years.

Though the Southern Nevada Water Authority was the first to publicly make the point, it quickly became clear to Biaggi that there were thousands of unrelated water awards decided outside of the legal timetable that might be affected by the case.

Protestors to the Las Vegas pipeline filed the Supreme Court case after they became convinced that the delays were part of a strategy to wear them down. “They’re waiting for us to move and die off,” said Susan Lynn, a spokeswoman the Great Basin Water Network, when the Supreme Court case was filed last summer.

After finding for the protestors four weeks ago, the Supreme Court referred the case to a district court for further action, which would most likely entail the re-opening of protests and new hearings.

Because awards in three valleys for the pipeline had already been voided by a district court, the only significant Las Vegas awards directly subject to the Supreme Court decision were from Spring Valley.

Spring Valley’s streams, seeps and ponds are fed by a year-round glacier on Mount Wheeler, site of the Great Basin National Park and the second-highest mountain in the state, making the valley the most water-rich and valuable basin on the Southern Nevada Water Authority’s pipeline route.

Following the authority’s January reversal before the Supreme Court of Nevada, Biaggi’s dilemma became how to respect the Court’s opinion but also protect unrelated rulings.

As the Nevadan Department of Conservation and Natural Resources remedy became public today amid a swell of outcry that it was a fix for Las Vegas, including on this site, Biaggi said his instruction does not affect the Las Vegas Spring Valley awards, but merely protects more than 14,000 other awards whose validity were thrown into doubt by the pipeline Supreme Court case.

According to Biaggi, if his proposed wording is adapted by the Legislative Counsel Bureau and passed by legislature, it would lead to the reopening of a protest period for the Southern Nevada Water Authority’s claims in Spring Valley — the same outcome that most envision if a district judge is left to prescribe a remedy as dictated by the Supreme Court.

However, Simeon Herskovits, lawyer for the Great Basin Water Network and other petitioners, does not believe that the wording of the proposed Biaggi amendment would guarantee the petitioners’ right to a new hearing on SNWA’s all important Spring Valley water applications. “It therefore would resurrect the original problem ruled on by the Supreme Court,” he said. “This would raise underlying constitutional due process violations and force the court and the parties to address them all over again, which would be unproductive and is unacceptable to us.”

Further, the purported threat to thousands of other water awards strikes him as overblown. “I think there are very, very few situations out there that in any way parallel the SNWA applications in terms of the magnitude of potential impacts and public interest, and in the amount of water involved and the way the process has been manipulated by the applicant,” Herksovits said. “Personally, I don’t think the Supreme Court’s ruling in this case actually would be applied broadly by either the courts or the State Engineer.”

The Great Basin Water Network has been asking its members and supporters to contact their legislators to oppose the amendment. Click here for the press release.

This posting has been continuously updated.

*CORRECTION: An earlier draft of this post said 20 years. The correct figure is 7. An interim draft also suggested that Allen Biaggi went to legislature at the behest of the Southern Nevada Water Authority. His department writes: “The request for the change … was an unilateral decision made by Allen. It was his decision, based out of concern for the 14,500 water rights – agricultural, industrial and municipal – that are potentially affected by this ruling.”  The text has been amended accordingly.

Photo © Paul S. Hamilton