Dual win claimed in water fight

The Nevada Supreme Court on Thursday reversed its earlier ruling that could have derailed a multibillion-dollar water pipeline for the Las Vegas Valley.

The decision also reopens review of the applications to pump groundwater from five valleys in eastern Nevada, but it doesn’t require the Southern Nevada Water Authority to refile for those water rights.

In January, the Supreme Court had questioned the validity of the groundwater applications underpinning the pipeline project and sent the case back to rural district court. After an appeal, the high court justices unanimously withdrew that decision.

“The proper and most equitable remedy is that the State Engineer must re-notice the applications and reopen the protest period,” Justice James Hardesty wrote in a 19-page opinion.

Both sides in the water battle hailed Thursday’s decision.

Pat Mulroy, the water authority’s general manager, said she was elated by the Supreme Court’s decision not to require the water authority to reapply for the water rights, a process that began in 1989.

“This is a very fair outcome because it allows protestants to have their voices heard without turning 100 years of water law on its ear and bogging down the water right permitting process,” Mulroy said in a statement.

White Pine County Commissioner Gary Perea, a longtime critic of the pipeline project, said the Supreme Court’s ruling “is a great vindication and victory for White Pine County and its residents. It reaffirms that the state engineer needs to allow new protests for people who have come to the area since 1989.”

On Thursday, the high court found that the state engineer failed to act within a year as required by law on dozens of water rights applications filed in 1989 by the Las Vegas Valley Water District.

According to Hardesty’s opinion, voiding the engineer’s ruling and preventing him from ruling would be inequitable to the water authority, which holds the water district’s application. Similarly, it would be unfair to punish the project’s opponents because the state engineer failed to his job in a timely manner.

So, the court ordered the state engineer to reopen the review.

Thursday’s state Supreme Court decision avoids a dilemma for the water authority. Had the previous ruling stood, the authority would have had to reapply for the groundwater rights in rural Clark, Lincoln and White Pine counties — up to 300 miles away from Las Vegas. The authority pre-emptively refiled its applications for groundwater rights across eastern Nevada soon after the high court’s decision in January. But other water agencies — public and private — also could apply for those water rights.

In 2003, with the district’s applications still pending, the Legislature passed a law that addressed that discrepancy by waiving the one-year rule for water sought for municipal use.

That triggered a lawsuit by Great Basin Water Network, Defenders of Wildlife, Trout Unlimited and 50 rural residents against then-State Engineer Tracy Taylor.

In January, the Supreme Court said the water district’s filings were already far too old in 2003 to be covered by such an exemption but stopped short of nullifying the applications altogether and sent the matter back to the rural district court.

Thursday’s high court opinion reaffirmed that the only valid applications were those filed after 2002, which meant the state engineer hadn’t ruled in time on the original applications.

“Based on the State Engineer’s failure to act on the applications in this case, we further conclude that an equitable remedy is warranted,” Hardesty wrote in the opinion.

This was the key to the Supreme Court’s decision, according to Simion Herskovits, attorney for the project’s opponents. Reopening the review creates “a new opportunity for anyone with an interest to protest these dangerous applications and challenge the state engineer’s flawed previous rulings,” Herskovits said in a statement released by the Great Basin Water Network.

White Pine Commissioner Perea said the decision doesn’t necessarily put the pipeline project back on track as water authority officials contend. “It leaves similar applications to stand,” he said. “It’s what we wanted when we filed the lawsuit.”

In 2003, Taylor ruled that only protestants from 1989 would be allowed to participate in the review process for 34 of the water authority’s remaining groundwater applications in Spring, Snake, Cave, Dry Lake and Delamar valleys in eastern Nevada.

Since then, Perea said, many White Pine County residents have moved or died and new people to the area would have been deprived of an opportunity to protest the applications.

Rural groundwater was originally sought by Southern Nevada water officials to supply growth in the Las Vegas Valley, but it is now seen as a safety net for a community that gets 90 percent of its water from the drought-stricken Colorado River.

“With Lake Mead — the primary water source for 2 million Southern Nevada residents — imperiled by drought, we need to get all of the necessary permits in place so we can be ready to draw upon this available water resource if conditions warrant,” the water authority’s Mulroy said in a statement.

The authority already has spent tens of millions of dollars on studies, preliminary designs and legal work for the project, which is expected to supply Las Vegas with enough water for more than 250,000 homes.

The network of pipes, pumps and reservoirs would cost between $2 billion and $3.5 billion to build, according to authority estimates now several years old.

Review-Journal writer Henry Brean contributed to this report. Contact reporter Keith Rogers at krogers@reviewjournal.com or 702-383-0308.