central nevada regional water authority
CENTRAL NEVADA REGIONAL WATER AUTHORITY STAFF REPORT FOR ITEM # 7 on the JUNE 17, 2016 BOARD MEETING AGENDA
DATE:
June 10, 2016
TO:
CNRWA Board of Directors
FROM:
Steve Bradhurst
SUBJECT:
Agenda Item 7: Discussion of the Federal and State Lawsuits Filed by White Pine County, the Great Basin Water Network, and Others Challenging Certain Federal and State Actions Pertaining to the Implementation of the Southern Nevada Water Authority’s Groundwater Development Project – Update by Simeon Herskovits, attorney for White Pine County, the Great Basin Water Network and others, on the status of the federal and state lawsuits filed by White Pine County, the Great Basin Water Network and others challenging federal and state actions pertaining to the implementation of the Southern Nevada Water Authority’s Groundwater Development Project. (Discussion) . ________________________________________________________________________ BACKGROUND A. Appeal of Nevada Senior District Judge Robert Estes’ December 19, 2013 decision on the appeal from the Nevada State Engineer’s March 22, 2012 rulings granting SNWA permits for groundwater from Spring, Cave, Dry Lake and Delamar Valleys. On March 22, 2012 the State Engineer released four rulings, one each for Spring Valley, Cave Valley, Dry Lake Valley and Delamar Valley (Numbers 6164, 6165, 6166 and 6167). The rulings grant the Southern Nevada Water Authority the right to pump up to 83,988 acre-feet of groundwater per year from the four eastern Nevada valleys. In 2007 and 2009 the State Engineer issued rulings on the same applications for 78,755 acre-feet. The 2007 and 2009 rulings were voided by the court for various reasons. More than 300 parties – local governments, Indian tribes, ranchers, farmers, businesses, environmental groups, families and individuals – from across Nevada and Utah filed petitions for judicial review appealing the March 22, 2012 State Engineer rulings. White Pine County and the Great Basin Water Network jointly filed an appeal on the four rulings, and the Central Nevada Regional Water Authority joined the appeal along with a
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number of other parties. The White Pine County and the Great Basin Water Network petition for judicial review cited five primary concerns with the State Engineer’s rulings, and they are as follows: 1. The decision sanctions "large-scale groundwater mining which will draw down the groundwater system in a pervasively and seriously damaging manner" and cause particularly serious harm to existing water rights in the affected valleys; 2. The pumping would affect businesses, including ranching, farming, mining, a variety of tourism-related industries, and recreational opportunities such as hunting, fishing, bird and wildlife watching, sightseeing and aesthetic enjoyment, hiking, camping, water sports, and snow sports, and spiritual pursuits such as worship at sacred sites and ritual practices using groundwater or groundwater-dependent resources; 3. SNWA's groundwater mining would lead to increased dust emissions and associated air quality and public health impacts; 4. The decision improperly deviates from the State Engineer's prior practice and established policy in ways that mask the long-term effects of the Pipeline Project and sanction unsustainable water exports; and 5. The rulings improperly rely on a woefully inadequate monitoring and mitigation plan as a substitute for ensuring that the project will not cause impermissible harms. Senior Judge Robert Estes of the Seventh Judicial Court of Nevada held a hearing on the appeal from the State Engineer’s four rulings, June 13, 2013 to June 15, 2013. On December 10, 2013 Senior Judge Robert Estes rendered a decision on the appeal from the Nevada State Engineer’s rulings 6164. 6165, 6166 and 6167. Judge Estes’ decision is as follows: “After an in-depth review of the record this Court will not disturb the findings of the Engineer save those findings that are the subject of this Order. This Court remands orders 6164, 6165, 6166 and 6167 for: 1. The addition of Millard and Juab counties, Utah in the mitigation plan so far as water basins in Utah are affected by pumping of water from Spring Valley Basin, Nevada; 2. A recalculation of water available for appropriation from Spring Valley assuring that the basin will reach equilibrium between discharge and recharge in a reasonable time; 3. Define standards, thresholds or triggers so that mitigation of unreasonable effects from pumping of water are neither arbitrary nor capricious in Spring Valley, Cave Valley, Dry Valley and Delamar Valley, and; 4. Recalculate the appropriations from Cave Valley, Dry Lake and Delamar Valley to avoid over appropriation or conflicts with down-gradient, existing water rights.” In early January 2014 Judge Robert Estes’ decision was appealed to the Nevada Supreme Court by the Nevada State Engineer and the Southern Nevada Water Authority. The LDS Church filed a motion with the Nevada Supreme Court to dismiss the State Engineer and SNWA appeals as not ripe for review because Judge Estes’ decision remands the
2
State Engineer’s ruling back to the State Engineer for further proceedings to remedy the deficiencies Judge Estes found in the rulings. On February 6, 2015 the Nevada Supreme Court issued Ruling 15-04004 wherein the Court rejects the State Engineer and SNWA appeals on the grounds that the decision made by Judge Estes is not a final appealable judgment to the Nevada Supreme Court because the matter was remanded back to the State Engineer to address the deficiencies Judge Estes found in the rulings. The Nevada State Engineer and SNWA made a second bid to overturn Judge Estes’ decision by filing petition of mandamus with the Nevada Supreme Court. SNWA and the State Engineer stated in their petitions that Judge Estes acted “arbitrarily and capriciously” by substituting his judgement for that of the State Engineer. SNWA also said in its petition that the worsening drought in the West, particularly in the Colorado River Basin, does not afford the luxury of time, and therefore the Nevada Supreme Court should hear its petition and address its appeal now. On May 21, 2015 the Nevada Supreme Court denied the State Engineer and SNWA petitions. The February 6, 2015 and May 21, 2015 Nevada Supreme Court orders mean the State Engineer and SNWA have to comply with Judge Estes’ December 10, 2013 decision, including the requirement he imposed in the decision that SNWA’s proposed groundwater extraction and export project will not cause impermissible impacts on the environment and senior water rights holders. To date, there has been no public action by the State Engineer to implement Judge Estes’ December 10, 2013 decision. B. Complaint for Declaratory and Injunctive Relief by White Pine County, the Great Basin Water Network and others challenging the U.S. Bureau of Land Management and the U.S. Department of Interior’s record of decision, along with its supporting environmental impact statement, that grant SNWA right-of-way across federal land for the purpose of implementing the SNWA Groundwater Development Project. On August 19, 2004, the Southern Nevada Water Authority filed a right-of-way application with the Bureau of Land Management for land needed to construct and operate the proposed SNWA Groundwater Development Project in eastern and southern Nevada. On December 28, 2012 the Deputy Secretary of Interior, David J. Hayes, approved the record of decision for the right-of-way application. The record of decision is based on an environmental impact statement prepared by the Bureau of Land Management, and it grants SNWA right-of-way needed to implement its proposed Groundwater Development Project. The Central Nevada Regional Water Authority was one of sixteen public agencies (federal, state and local) designated by BLM as a Cooperating Agency on the development of the subject EIS. The Authority had ample opportunity to comment on the documents that were developed by consultants for the EIS. The Authority expressed,
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in person, and on paper, major concerns with the draft and final EIS. The Authority said by way of a written response to the draft EIS that “The significant and fundamental flaws contained throughout the DEIS undermine the integrity of the BLM Environmental Impact Statement process. The deficiencies need correction in the EIS to serve the institutional and legal role that BLM apparently intends.” Unfortunately, BLM did not address the DEIS deficiencies identified by the Authority in the final EIS, and as mentioned, the final EIS is the basis for the record of decision. On January 17, 2014 the Central Nevada Regional Water Authority had a special meeting and voted to be a plaintiff on the complaint to be filed by White Pine County, Great Basin Water Network and others. Subsequent to that action, and over the course of three weeks, the board of commissioners of the Authority’s member counties (8) voted to approve the Authority being a plaintiff on the subject complaint. On February 12, 2014 White Pine County, the Great Basin Water Network, and others (including the Central Nevada Regional Water Authority) filed a complaint for declaratory and injunctive relief in federal court (Las Vegas) challenging the Bureau of Land Management and the U.S. Department of Interior’s record of decision, along with the ROD’s supporting environmental impact statement. The lawsuit against the BLM and DOI is progressing steadily through the process of briefing on the merits. The plaintiffs in the lawsuit (including White Pine County and the Great Basin Water Network) filed motions and briefs for summary judgement in October 2015, and in late February and early March 2016 the federal agencies and SNWA filed their answering briefs and cross-motions for summary judgement in their favor. On June 1, 2016 White Pine County and the Great Basin Water Network filed their reply brief. The final round of the briefing on the merits will come in July when the federal agencies file their reply briefs. When the briefing is finished, Federal District Court Judge Gordon will set a date for oral argument, and that will take place in his courtroom in the federal courthouse in Las Vegas. Once the court has heard the parties’ oral arguments, it is likely a written decision will be issued in 2017. The purpose of this agenda item is to receive an update from Simeon Herskovits, attorney for White Pine County, the Great Basin Water Network, and others (including the Authority), on the status of the aforementioned state and federal lawsuits that challenge state and federal actions pertaining to the implementation of the proposed SNWA Groundwater Development Project. RECOMMENDATION White Pine County, the Great Basin Water Network, and others (including the Authority), are plaintiffs on the aforementioned state and federal lawsuits, and these parties are represented by Simeon Herskovits, attorney with Advocates for Community and Environment. It is recommended the Authority receive an oral report from Mr. Herskovits on the status of the subject state and federal lawsuits that challenge state and federal actions pertaining to the implementation of the proposed SNWA Groundwater Development Project. It is also recommended the Authority thank Mr. Herskovits and
4
his staff for their exceptional work on the subject lawsuits. Mr. Herskovits will attend the June 17th CNRWA meeting in Ely, and he will be available during the meeting lunch break for additional discussion.
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DATE:
June 10, 2016
TO:
CNRWA Board of Directors
FROM:
Steve Bradhurst
SUBJECT:
Agenda Item 7: Discussion of the Federal and State Lawsuits Filed by White Pine County, the Great Basin Water Network, and Others Challenging Certain Federal and State Actions Pertaining to the Implementation of the Southern Nevada Water Authority’s Groundwater Development Project – Update by Simeon Herskovits, attorney for White Pine County, the Great Basin Water Network and others, on the status of the federal and state lawsuits filed by White Pine County, the Great Basin Water Network and others challenging federal and state actions pertaining to the implementation of the Southern Nevada Water Authority’s Groundwater Development Project. (Discussion) . ________________________________________________________________________ BACKGROUND A. Appeal of Nevada Senior District Judge Robert Estes’ December 19, 2013 decision on the appeal from the Nevada State Engineer’s March 22, 2012 rulings granting SNWA permits for groundwater from Spring, Cave, Dry Lake and Delamar Valleys. On March 22, 2012 the State Engineer released four rulings, one each for Spring Valley, Cave Valley, Dry Lake Valley and Delamar Valley (Numbers 6164, 6165, 6166 and 6167). The rulings grant the Southern Nevada Water Authority the right to pump up to 83,988 acre-feet of groundwater per year from the four eastern Nevada valleys. In 2007 and 2009 the State Engineer issued rulings on the same applications for 78,755 acre-feet. The 2007 and 2009 rulings were voided by the court for various reasons. More than 300 parties – local governments, Indian tribes, ranchers, farmers, businesses, environmental groups, families and individuals – from across Nevada and Utah filed petitions for judicial review appealing the March 22, 2012 State Engineer rulings. White Pine County and the Great Basin Water Network jointly filed an appeal on the four rulings, and the Central Nevada Regional Water Authority joined the appeal along with a
1
number of other parties. The White Pine County and the Great Basin Water Network petition for judicial review cited five primary concerns with the State Engineer’s rulings, and they are as follows: 1. The decision sanctions "large-scale groundwater mining which will draw down the groundwater system in a pervasively and seriously damaging manner" and cause particularly serious harm to existing water rights in the affected valleys; 2. The pumping would affect businesses, including ranching, farming, mining, a variety of tourism-related industries, and recreational opportunities such as hunting, fishing, bird and wildlife watching, sightseeing and aesthetic enjoyment, hiking, camping, water sports, and snow sports, and spiritual pursuits such as worship at sacred sites and ritual practices using groundwater or groundwater-dependent resources; 3. SNWA's groundwater mining would lead to increased dust emissions and associated air quality and public health impacts; 4. The decision improperly deviates from the State Engineer's prior practice and established policy in ways that mask the long-term effects of the Pipeline Project and sanction unsustainable water exports; and 5. The rulings improperly rely on a woefully inadequate monitoring and mitigation plan as a substitute for ensuring that the project will not cause impermissible harms. Senior Judge Robert Estes of the Seventh Judicial Court of Nevada held a hearing on the appeal from the State Engineer’s four rulings, June 13, 2013 to June 15, 2013. On December 10, 2013 Senior Judge Robert Estes rendered a decision on the appeal from the Nevada State Engineer’s rulings 6164. 6165, 6166 and 6167. Judge Estes’ decision is as follows: “After an in-depth review of the record this Court will not disturb the findings of the Engineer save those findings that are the subject of this Order. This Court remands orders 6164, 6165, 6166 and 6167 for: 1. The addition of Millard and Juab counties, Utah in the mitigation plan so far as water basins in Utah are affected by pumping of water from Spring Valley Basin, Nevada; 2. A recalculation of water available for appropriation from Spring Valley assuring that the basin will reach equilibrium between discharge and recharge in a reasonable time; 3. Define standards, thresholds or triggers so that mitigation of unreasonable effects from pumping of water are neither arbitrary nor capricious in Spring Valley, Cave Valley, Dry Valley and Delamar Valley, and; 4. Recalculate the appropriations from Cave Valley, Dry Lake and Delamar Valley to avoid over appropriation or conflicts with down-gradient, existing water rights.” In early January 2014 Judge Robert Estes’ decision was appealed to the Nevada Supreme Court by the Nevada State Engineer and the Southern Nevada Water Authority. The LDS Church filed a motion with the Nevada Supreme Court to dismiss the State Engineer and SNWA appeals as not ripe for review because Judge Estes’ decision remands the
2
State Engineer’s ruling back to the State Engineer for further proceedings to remedy the deficiencies Judge Estes found in the rulings. On February 6, 2015 the Nevada Supreme Court issued Ruling 15-04004 wherein the Court rejects the State Engineer and SNWA appeals on the grounds that the decision made by Judge Estes is not a final appealable judgment to the Nevada Supreme Court because the matter was remanded back to the State Engineer to address the deficiencies Judge Estes found in the rulings. The Nevada State Engineer and SNWA made a second bid to overturn Judge Estes’ decision by filing petition of mandamus with the Nevada Supreme Court. SNWA and the State Engineer stated in their petitions that Judge Estes acted “arbitrarily and capriciously” by substituting his judgement for that of the State Engineer. SNWA also said in its petition that the worsening drought in the West, particularly in the Colorado River Basin, does not afford the luxury of time, and therefore the Nevada Supreme Court should hear its petition and address its appeal now. On May 21, 2015 the Nevada Supreme Court denied the State Engineer and SNWA petitions. The February 6, 2015 and May 21, 2015 Nevada Supreme Court orders mean the State Engineer and SNWA have to comply with Judge Estes’ December 10, 2013 decision, including the requirement he imposed in the decision that SNWA’s proposed groundwater extraction and export project will not cause impermissible impacts on the environment and senior water rights holders. To date, there has been no public action by the State Engineer to implement Judge Estes’ December 10, 2013 decision. B. Complaint for Declaratory and Injunctive Relief by White Pine County, the Great Basin Water Network and others challenging the U.S. Bureau of Land Management and the U.S. Department of Interior’s record of decision, along with its supporting environmental impact statement, that grant SNWA right-of-way across federal land for the purpose of implementing the SNWA Groundwater Development Project. On August 19, 2004, the Southern Nevada Water Authority filed a right-of-way application with the Bureau of Land Management for land needed to construct and operate the proposed SNWA Groundwater Development Project in eastern and southern Nevada. On December 28, 2012 the Deputy Secretary of Interior, David J. Hayes, approved the record of decision for the right-of-way application. The record of decision is based on an environmental impact statement prepared by the Bureau of Land Management, and it grants SNWA right-of-way needed to implement its proposed Groundwater Development Project. The Central Nevada Regional Water Authority was one of sixteen public agencies (federal, state and local) designated by BLM as a Cooperating Agency on the development of the subject EIS. The Authority had ample opportunity to comment on the documents that were developed by consultants for the EIS. The Authority expressed,
3
in person, and on paper, major concerns with the draft and final EIS. The Authority said by way of a written response to the draft EIS that “The significant and fundamental flaws contained throughout the DEIS undermine the integrity of the BLM Environmental Impact Statement process. The deficiencies need correction in the EIS to serve the institutional and legal role that BLM apparently intends.” Unfortunately, BLM did not address the DEIS deficiencies identified by the Authority in the final EIS, and as mentioned, the final EIS is the basis for the record of decision. On January 17, 2014 the Central Nevada Regional Water Authority had a special meeting and voted to be a plaintiff on the complaint to be filed by White Pine County, Great Basin Water Network and others. Subsequent to that action, and over the course of three weeks, the board of commissioners of the Authority’s member counties (8) voted to approve the Authority being a plaintiff on the subject complaint. On February 12, 2014 White Pine County, the Great Basin Water Network, and others (including the Central Nevada Regional Water Authority) filed a complaint for declaratory and injunctive relief in federal court (Las Vegas) challenging the Bureau of Land Management and the U.S. Department of Interior’s record of decision, along with the ROD’s supporting environmental impact statement. The lawsuit against the BLM and DOI is progressing steadily through the process of briefing on the merits. The plaintiffs in the lawsuit (including White Pine County and the Great Basin Water Network) filed motions and briefs for summary judgement in October 2015, and in late February and early March 2016 the federal agencies and SNWA filed their answering briefs and cross-motions for summary judgement in their favor. On June 1, 2016 White Pine County and the Great Basin Water Network filed their reply brief. The final round of the briefing on the merits will come in July when the federal agencies file their reply briefs. When the briefing is finished, Federal District Court Judge Gordon will set a date for oral argument, and that will take place in his courtroom in the federal courthouse in Las Vegas. Once the court has heard the parties’ oral arguments, it is likely a written decision will be issued in 2017. The purpose of this agenda item is to receive an update from Simeon Herskovits, attorney for White Pine County, the Great Basin Water Network, and others (including the Authority), on the status of the aforementioned state and federal lawsuits that challenge state and federal actions pertaining to the implementation of the proposed SNWA Groundwater Development Project. RECOMMENDATION White Pine County, the Great Basin Water Network, and others (including the Authority), are plaintiffs on the aforementioned state and federal lawsuits, and these parties are represented by Simeon Herskovits, attorney with Advocates for Community and Environment. It is recommended the Authority receive an oral report from Mr. Herskovits on the status of the subject state and federal lawsuits that challenge state and federal actions pertaining to the implementation of the proposed SNWA Groundwater Development Project. It is also recommended the Authority thank Mr. Herskovits and
4
his staff for their exceptional work on the subject lawsuits. Mr. Herskovits will attend the June 17th CNRWA meeting in Ely, and he will be available during the meeting lunch break for additional discussion.
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