By Myrna Trauntvein
Times-News Correspondent
In a December decision, a Nevada judge validated the claims of Juab and Millard Counties in their fight to prevent a water grab of water that would ultimately effect those two counties.
"It is a huge win," said Rick Carlton, Juab County Commissioner.
Carlton said he, and the other two commissioners, were appreciative of Utah Governor Gary R. Hebert's decision to not sign an agreement with SNWA.
Gov. Gary Herbert agreed early last summer to not sign a controversial water-sharing agreement with Nevada, despite the pressure from Utah's neighbor and the threat of a lawsuit.
At the time, Herbert said he had also visited with local officials and county commissioners. A majority of local residents did not support the agreement with Nevada.
Herbert's refusal to sign the agreement comes nearly four years after it was drafted, a decision put in limbo because of challenges that had to be settled by the Nevada courts, protests over water rights and a federal agency completing an environmental analysis.
"The night before the decision was due," said Carlton, "we talked on a conference call with the governor. I honestly believe that had an effect on his decision. Juab County Commissioners stepped up to the plate."
"It was the right thing for him to do," said Byron Woodland, commissioner. "I really appreciate him for not signing the agreement."
Chad Winn, commission chairman, said that Millard County and Juab County Commissioners had banded together to fight the taking of water from the West Desert area.
On December 10, signed by Robert E. Estes, Senior District Judge, in the Seventh Judicial District Court of the State of Nevada, handed down a decision.
The judge stated: "This court is charged with 'determining whether there is substantial evidence in the record to support the [Engineer's] decision. Here the engineer said, however not quite consistently, that there is not enough evidence to implement what he has characterized as 'critical', the MMM Plan. Thus, if there is insubstantial evidence and it is premature to set triggers and thresholds, it is premature to grant water rights."
"As stated in the plan, a definition of an unreasonable adverse effect, I.E. a trigger, a standard, a threshold must be defined," he said.
The judge determined that: absent a thorough plan and comprehensive standards for mitigation, any mitigation, (or lack thereof) is subjective, unscientific, arbitrary and capricious. The matter must be remanded to the engineer so that objective standards may be established.
After an in-depth review of the record, said Judge Estes, the court would not disturb the findings of the engineer save those findings that are the subject of the order.
The court remanded the orders for: the addition of Millard and Juab counties, in the mitigation plan so far as water basins in Utah are affected by pumping of water from Spring Valley Basin, Nevada.
Making 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.
Nevada's state engineer was also charged to 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 Lake Valley and Delamar Valley; and recalculate the appropriations from Cave Valley, Dry Lake and Delamar Valley to avoid over appropriations or conflicts with down-gradient, existing water rights.
The Nevada State Engineer, Jason Kings' ruling concerning the grant of water rights to Southern Nevada Water Authority in Spring Valley (Lincoln and White Pine Counties), Cave Valley, Dry Lake Valley and Delarmar Valley, was addressed by Judge Estes.
Petitioners include the Great Basin Water Network (GBWN), White Pine County, Nevada, Millard and Juab County, Utah, Ely Shoshone and Duckwater Shoshone Tribes, Confederate Tribe of the Goshute Reservation and the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints on behalf of the Cleveland Ranch.
Winn said that the county wanted to prevent the same sort of fate that befell Owens Valley in California. After the city of Los Angeles began using all the water from the valley the loss brought great environmental damage to the valley.
"Dust storms came," he said.
"If the governor had signed the agreement with Nevada, it would have significantly undermined our stand," said Carlton.
The state engineer's ruling was remanded for recalculation of water available from the respective basins; for additional hydrological study of Delamar, Dry Lake and Cave Valley; and to establish standards for mitigation in the event of a conflict with existing water rights or unreasonable effects to the environment or the public interest.
In 1989, Las Vegas Valley Water District applied for unappropriated water in hydrologic basins. In 1991, the current real part in interest, South Nevada Water Authority (SNWA) became the successor in interest to the Las Vegas Valley Water District.
Several protests were filed against the application in July of 1989. The Nevada State Engineer was required to rule on the application within one-year of the protest's filing date. The applications were not ruled on within one-year, however, hearings on the application were held in 2006. By 2006, the water rights had changed hands many times and few right holders received notice of the 2006 hearings. subsequently, the engineer's orders were vacated, new notices were sent and the hearings rescheduled for September and November of 2011.
Prior to the 2006 hearings, the National Park Service, Bureau of Fish and Wildlife, Bureau of Land Management (BLM) and the Bureau of Indian Affairs (BIA) were actively protesting the orders granting water rights to SNWA. All of these entities are divisions of the Department of the Interior. Each entity entered into an agreement with SNWA withdrawing their protests in exchange for implementation of a hydrologic and biologic Monitoring, Management and Mitigation Plan. This plan's stipulation was affirmed prior to the 2011 hearings and later revised to the current plan approved by the engineer.
The four rulings by the engineer represent the largest water appropriations in Nevada history. The basin size has been compared to New England, encompassing great portions of Vermont, New Hampshire, Massachusetts, Connecticut and some of New York.
"The decision will likely be appealed to the Nevada Supreme Court," said Carlton.
