Rewriting Nevada water law


Nevada's Constitution provides three separate but equal branches of state government: the legislative, the executive and the judicial. None has the power to supersede another's function.

Senior Judge Norman Robison sees things a little differently. In his world, the judiciary has the power to substitute its judgment for the decisions of the legislative or executive branches -- or both.

That's exactly what Judge Robison did last month when he quashed a 2008 ruling by State Engineer Tracy Taylor that allowed the Southern Nevada Water Authority to move forward with a pipeline project designed to import water to Las Vegas Valley from rural Nevada.

Judge Robison vacated Mr. Taylor's decision, which could have led to the withdrawal of more than 6 billion gallons of groundwater per year from the rural Cave, Delamar and Dry Lake valleys, not because Mr. Taylor broke the law or overstepped his authority, but because the judge simply didn't agree with the engineer's conclusions.

In other words, Judge Robison decided that he would make a better state engineer than Mr. Taylor.

His ruling must be appealed.

Judge Robison declared that Mr. Taylor, by law Nevada's chief water regulator, "abused his discretion" and "acted arbitrarily, capriciously and oppressively" when he denied the water authority's request to pump more than 11 billion gallons of groundwater per year from the three valleys. After weeks of public hearings, Mr. Taylor said such large withdrawals weren't possible or sustainable, and he nearly halved the authority's request.

Moreover, Mr. Taylor ordered the water authority to develop a monitoring and mitigation program for the groundwater withdrawals, and to embark on a two-year data collection process. The authority must verify beyond a doubt that groundwater pumping would not devastate the environment before a single drop of water can be moved south through the pipeline.

These safeguards, Judge Robison said, amount to Mr. Taylor "hoping for the best while committing to undo his decision if the worst occurs."

Would the water authority or environmentalists rather have a binding decision with no contingencies or monitoring at all? Is Judge Robison so foolish as to think that the state engineer can know the capacities of Nevada's aquifers to the gallon, and how they'll respond to pumping?

The judge rips Mr. Taylor for rejecting a red herring thrown out by rural pipeline foes: that their valleys one day might have thousands of homes, provided the water to support them remains. That argument would have come in handy for Nevada when it was negotiating the Colorado River treaty last century. But water law doesn't work that way. And no one disputes that the authority holds the water rights in those valleys.

Nowhere in the ruling does Judge Robison find that Mr. Taylor or the Nevada Division of Water Resources failed to follow the law. Nowhere does he find fault with the statutes created by the legislative branch that guide decisions affecting water rights. He determined that after two decades of deliberative research, regulation and outreach, there was no evidence to support Mr. Taylor's decision.

"The judge has, in some ways, rewritten almost 100 years of Nevada water law," said water authority spokesman Scott Huntley.

Judge Robison was assigned to the case after two White Pine County judges correctly recused themselves because of their documented, personal bias against the pipeline project. But Judge Robison might have brought his own biases against urban Clark County to the case.

"During arguments in the case, Judge Robison asked, 'When is Las Vegas is going to stop growing?' " Mr. Huntley said. That's an agenda if we've ever heard one.

But the pipeline project, initiated during a time of nation-leading growth, today is more about insurance than expansion. The level at Lake Mead, the source of 90 percent of the valley's drinking water, has been falling throughout this decade's Colorado River drought. The planned pipeline, which would cost at least $2 billion and stretch more than 250 miles north of Las Vegas, was on track to start delivering additional water here as soon as 2013.

If the Nevada Supreme Court doesn't overturn Judge Robison's decision, that won't happen. Mr. Huntley said the water authority will ask its board of directors to authorize an immediate appeal during its Nov. 19 meeting. The elected officials who sit on that board should approve the appeal and send the case to the elected members of the high court.

Water is a state resource, and as such, it must be directed to its most productive use.

 

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