November 14, 2008

Order bans moving water rights closer to Devil's Hole pupfish


Pahrump Valley Times

State Engineer Tracy Taylor officially drew a line in the sand, ruling his office will deny any applications to change the point of diversion for water rights within 25 miles of Devil's Hole, home of the endangered pup fish.

The Nov. 4 order only pertains to the Amargosa Desert Hydrographic Basin, which is considered an overappropriated basin. That means the permitted water rights exceed the perennial yield.

A ruling in a federal lawsuit specifies the water level to be maintained at Devil's Hole. Taylor said information provided at an administrative hearing Sept. 5-6, 2007, showed the water level was only 0.6-0.7 foot above that threshold.

There are three exceptions to the order: applications that keep the existing place of use of water rights; applications to appropriate two acre feet per year or less; and projects requiring changes of multiple existing water rights that could be used to compare the net impact to Devil's Hole.

A companion ruling by the state engineer noted the National Park Service expressed concerns about the cumulative impact of moving water rights closer to Devil's Hole, changing the pumping center in the Amargosa Desert Hydrographic Basin. The state engineer found neither the NPS nor the dairy was able to clearly demonstrate the effects of regional pumping on Devil's Hole water levels.

Nye County Hydrologist Tom Buqo said hopefully the order will get rid of a concern over water rights applications that have been pending a long time.

"However, there's a little thing called the law of unintended consequences and I don't know if this thing has been thought out that well. We don't know how it affects domestic wells. Once a water right is moved, it can't be moved back. So there's a concern there's going to be land in Nye County where someone sells the water rights and then the land has no water," Buqo said.

The 25-mile radius from Devil's Hole would include much of Amargosa Valley past Lathrop Wells.

Buqo said any one order issued by the state engineer shouldn't be viewed independently of other rulings. He noted the impact of this order with a previous ruling which doesn't allow Nye County to file on water rights at the Nevada Test Site.

"What this says is: Nye County, you're not getting any additional water in the southern part of the county," Buqo said.

Developers proposing solar energy projects in Amargosa Valley would have to pipe water to the location unless they could buy or lease water rights, Buqo said.

A property owner with land near Devil's Hole who transfers water rights farther away leaves the original property unusable, he said.

The county hydrologist, however, found some advantage in the order, providing some clarity to the individual rulings handed down by the state engineer.

"Now that they've established this policy, that should clear things up. People are going to find very quick they won't have to go through the protest rule. The state engineer will just rule, and if they're moving water rights closer to Devil's Hole, they will be denied," Buqo said.

Nevada District 36 Assemblyman Ed Goedhart, R-Amargosa Valley, said the 25-mile radius would cover all of Pahrump as far south as Mountain Falls, if the Pahrump hydrographic basin were included. He charged the order discriminated against Amargosa Valley.

Goedhart said the state engineer keeps expanding the zone around Devil's Hole. He said the order amounted to a taking of private property rights.

"There's no financial reimbursement for the loss of a person's valuable property rights," Goedhart said.

"It could also have grave and consequential consequences to the fledgling solar industry we would like to locate between Pahrump and Beatty if you can't move the water where you put your solar projects," Goedhart said. "I just got a call from Solar Millenium. They're looking at a $1 billion project. This has made them wonder whether to engage in anything in southern Nye County."

Solar developers plan on leasing water rights from long-term farmers in Amargosa Valley, he said.

Research cited by the state engineer shows the water level in Devil's Hole went down 2.4 inches in 20 years, Goedhart said.

Goedhart said the dairy spent $140,000 on experts includling hydrogeologists and attorneys to argue their point at the September 2007 administrative hearings.

The order leaves the possibility of property owners moving water rights farther away from Devil's Hole, to the north and west of Amargosa Valley. Goedhart said property owners at the northern and western end of Amargosa Valley may have nowhere to transfer their water rights.

"This is going to completely take away the ability for growth to happen here in Amargosa Valley," he said.

Nye County Commissioner Gary Hollis said, "I would imagine we're going to protest it."