LADWP scrambling to prepare dusty Owens Valley for possible floods

Overflow from the Owens River creates a mirror pond near Bishop reflecting the snow-capped Sierras. (Mark Boster / Los Angeles Times)

by Louis Sahagun
Los Angeles Times

Lone Pine, Calif. -- As snow continued to fall on the eastern Sierra Nevada on Monday, platoons of earth movers, cranes and utility trucks fanned out across the Owens Valley, scrambling to empty reservoirs and clean out a lattice-work of ditches and pipelines in a frantic effort to protect the key source of Los Angeles’ water.

With snowpack levels at 241% of normal, Los Angeles Mayor Eric Garcetti a week ago issued an emergency declaration allowing the Department of Water and Power to take immediate steps to shore up the aqueduct and its $1-billion dust-control project on dry Owens Lake, which L.A. drained to slake its thirst in the last century.

DWP activities have always elicited concern in the Owens Valley, given the history of a water war that began when Los Angeles agents posed as ranchers and farmers to buy land and water rights in the area. Their goal was to build the aqueduct system to meet the needs of the growing metropolis 200 miles to the south.

The stealth used to obtain the region’s land and water rights became grist for books and movies that portrayed the dark underbelly of Los Angeles’ formative years, and inspired deep-seated suspicions about the city’s motives that linger to this day.

Officials insist that the current emergency poses a real threat not just to urban Los Angeles’ residents, but to the ranchers, farmers, outdoor enthusiasts and small-business owners living in the sage-scented high desert gap between the fang-like peaks, some taller than 14,000 feet, of the Sierra Nevada to west and the White and Inyo ranges to the east.

“Conditions of extreme peril” threaten residents and ecosystems, Garcetti said. The 1 million acre-feet of water expected to flow through the century-old aqueduct system this spring and summer could possibly overflow the web of concrete channels, spilling into fields, homes and businesses.

The danger of destructive flooding and the utility’s responses to it are raising tensions between Los Angeles and the Owens Valley towns along a 110-mile stretch of U.S. 395 in a rural region defined by water wars since the early 1900s.

The crews swarming the valley are focused on protecting DWP infrastructure and U.S. 395, the principle route between Southern California and eastern resort areas, leaving some townsfolk fretting they are being overlooked.

The emergency is already taking toll on the tourism industry in a stunning landscape of snow-capped peaks, cascading streams, dormant volcanoes, small towns and sage plains dotted with irrigated pastures — most of them leased from the DWP.

The Bishop Chamber of Commerce & Visitors Bureau, for example, was forced to cancel the 50th annual Blake Jones Trout Derby scheduled for March 11 after the DWP rescinded its permission to hold the event because of dangerously high waters spilling over the banks of the Owens River, just north of town.

“Losing the derby was a $300,000 hit to the local economy,” said Tawni Thompson, director of the chamber. “We’ll never know how many vacationers decided not to come through Bishop because they were scared of dying in a flood.”

“I’m going to declare a state of emergency,” she added, “if our tourism industry goes down the toilet.”

Bernadette Johnson, superintendent of the Manzanar National Historic Site on U.S. 395, has been getting nowhere with requests for additional flood control measures along streams on DWP land just outside the boundaries of the location that was a Japanese American internment camp during World War II.

“We were hit by destructive flooding earlier this year, and in 2013 and 2014,” Johnson said. “But the DWP is saying that when all hell breaks loose they won’t have enough resources and manpower to help us. We have to wonder about their priorities.”

In long legal battles spanning decades, the DWP was eventually forced to give up significant amounts of water to steady water levels in Mono Lake, re-water parts of dry Owens Lake to help prevent dust storms and restore a 62-mile stretch of the Lower Owens River.

Many residents suspect that the DWP plans to use emergency declarations to bypass rules and regulations that have prevented it in the past from constructing paved roads, for example, on Owens Lake, which is owned by the State Lands Commission.

Richard Harasick, head of the DWP’s water system, dismissed that notion: “The department is not using this emergency declaration to take some sort of advantage or build special projects that would otherwise have to go through the normal regulatory process.”

“It is as much to help us manage the anticipated floodwaters as to aid in public safety,” he said. “It allows us to get goods, services and contracts faster, from heavy equipment to riprap needed to shore up banks and channels.”

This week, Inyo, Kern and Mono counties were expected to issue their own emergency declarations, making them eligible for state and federal assistance in the event of flooding.

“My proclamation will ask for critical resources,” Inyo County Administrator Kevin Carunchio said. “In the meantime, I want every DWP facility, ditch, diversion bypass, canal and conveyance structure available and operating as soon as possible.”

The region has a history of destructive floodwaters rushing off the High Sierra.

In August 1989, for example, cloudbursts driven by 60-mph winds gouged out the underpinnings of the aqueduct near Cartago and closed a 63-mile stretch of U.S. 395.

Jon Klusmire, administrator of the Eastern California Museum in Independence, isn’t taking any chances with the little institution located along a usually docile creek.

“I’ve devised a survival strategy for a worst-case scenario,” he said. “I’m going to jam some boards in a nearby DWP diversion gate, then dig a ditch to divert the water away from the museum and into the streets.”

The big question for Kathy Jefferson Bancroft, tribal historic preservation officer for the Lone Pine Paiute-Shoshone Reservation, is this: “How could it be that Los Angeles never developed a plan B in a place where massive snowpack and destructive flooding go with the terrain?”

Standing on a berm overlooking on the plots of vegetation, gravel and shallow flooding the DWP has constructed across 50 square miles of dry lake bed over the past 20 years, Bancroft said, “They’ve reduced dust pollution here by 96% with these projects, and they’re all going to be underwater soon.

“Honestly, I’m looking forward to seeing this lake filled up again, like it is supposed to be,” she said.

That vista will be short-lived. The runoff is expected to evaporate within 12 to 18 months, leaving behind an already existing repair job for dust abatement and system improvements expected to cost up to $500 million, officials said.

The rebuilding effort will be done in cooperation with state and federal regulatory agencies, local authorities and stakeholders, the State Lands Commission, which owns the lake bed, and the Great Basin Unified Air Pollution Control District, which is responsible for protecting the health of Owens Valley residents.

“When we’re done, it’ll be something different than what exists today,” Harasick said. “That’s because we plan to make it more flood-resilient.”

Madeleine Pickens' losing battle with the BLM

Wild horses of the endangered Mustang Monument ranch property.

By George Knapp, Matt Adams
Las Vegas Now

LAS VEGAS -- A $25 million eco-sanctuary meant to be a tourist attraction for rural Nevada is closed and may never re-open.

The Mustang Monument in Elko County was created as an alternative for the troubled wild horse program, but the Bureau of Land Management has stopped the project from moving forward.

The I-Team has obtained internal documents which show that what the BLM said in public is much different from what it thought in private.

The wild horse program is through by many to be the worst program in the federal government. Bad for the horses, bad for the range, bad for the taxpayers.

Every two or three years, the feds pay for an expensive study, and every study concludes that BLM needs to try something different.

BLM always reacts the same. It ignores the recommendations.

Mustang Monument was going to be a public private partnership -- a radical change good for the horses, the range and the taxpayers.

The public records request shows it never had a chance.

"This is a new batch obviously, these young ones," said Jerry Reynoldson.

At a corral on the Mustang Monument property, veteran wild horse advocate Jerry Reynoldson checks out some new arrivals. For more than 25 years, Reynoldson has tried to work with BLM on solutions to its troubled wild horse program, and he's been a key advisor to Madeleine Pickens in her development of the mustang monument as a model for what could be done, but both now believe BLM was never going to allow it to happen.

An obscure road is an example, Pickens planned to use it to transport tourists from her guest accommodations to deeded property on the other side of her range for cookouts and to see the herd of horses that was living out there, that is, until vandals cut the fences and the horses either died or ran off. BLM won't allow the use of the rarely traveled access road.

"BLM has given her four or five pages of questions about what she would do on the road which include, where would people go to the bathroom? The answer is, it's a short enough drive they wouldn't go anywhere but they don't want to know where, they want to know how many times would they stop, how many times would they need to use a facility. Silly questions," Reynoldson said.

A road that's been trod for a century by cows, sheep and horses can't be used to transport visitors because someone might have to pee.

BLM is making sure they keep putting their foot out and tripping me up every time," said Mustang Monument founder Madeleine Pickens. "I keep getting up, they stop me."

Pickens spent $6 million for two sprawling ranches because she was encouraged to do so by BLM. She offered to get other investors to buy another 2 million acres, and take all 30,000 wild horses the BLM had in storage, a plan which BLM admits would save the taxpayers more than $100 million in just five years.

In public statements, BLM said it wanted to work with Pickens, but privately, it's another matter. Public records obtained by the I-Team show that BLM staff plotted the demise of Pickens plan from the beginning. A 2008 white paper discusses how the law could be used to prevent the project. BLM blacked out the details as being privileged information.

BLM declined to be interviewed for this report, but in a written statement explained why, after seven years, the bureau still has not completed an environmental review. We need more information, the BLM told the I-Team and since there are "unresolved issues" with the Pickens plan, no such analysis would be appropriate.

In one candid memo, BLM admits an unspoken concern that the proposal would be politically perilous in cattle-friendly Elko County.

BLM staffers imposed ever-changing conditions that they knew would stir up opposition, not only from ranchers but also from wild horse advocates, such as forcing the roundup of existing horses on the range, making all of the Pickens horses sterile, and putting fences around the entire public acreage.

In 2015, BLM finally tipped its hand. When Pickens asked during a meeting what it would take to get the necessary permits, bureau staffers issued a startling demand.

"They said, we've had internal discussions. If you'd be willing to surrender your grazing and water rights, we could work with you on the project," Reynoldson said.

Giving up the grazing and water rights would in effect mean giving up the property itself. Pickens was stunned, and decided soon after that the monument would not open in 2016 for visitors, knowing BLM would never allow it.

"The BLM, the Interior Department have blown up stories and created fabricated issues that simply don't exist. The only thing I can say is, it's a failed program. It's a failed agency. I feel sorry for them. Every time I do something, they fine me, or they find a way to come and get me. It's a witch hunt," Pickens said.

The Mustang Monument opened for a period last year and high-end tourists, especially foreign visitors, they loved it. Pickens already had reservations lined up for this year, but she never opened because the BLM wouldn't allow her to move forward and also because of opposition from Elko County officials and residents.

How one man plans to make billions selling Mojave desert water

Scott Slater wants to pump billions of gallons to LA and other drought-hit cities - and make $2.4bn in the process

Scott Slater’s Cadiz Inc plans to tap the eastern Mojave aquifer of water he says would otherwise evaporate. (Cadiz Inc.)

Rupert Neate
The Guardian

Scott Slater has a plan. It is not a popular plan, but he wants to pump 814bn gallons of water from under the Mojave desert to Los Angeles and other drought-stricken communities in southern California, and make more than $2bn (£1.3bn) doing so.

“Yes, it’s quite a lot of money,” Slater, the 57-year-old chief executive of Cadiz Inc, says as he stands in front of a scale model of the project in the foyer of the company’s office on the 28th and top floor of a LA city center office block. “It’s worth whatever the community who wants the water is willing to pay for it to meet their demands.”

Cadiz owns water rights associated with 45,000 acres of land along Route 66, about 75 miles north-east of Palm Springs. The holdings were built up by the company’s founder, Keith Brackpool, a British horseracing impresario, who came to the US after admitting having breached financial disclosure laws in the UK in the 1980s.

The company biggest investors, some of whom have been waiting for Cadiz’s water to flow to LA for more than a decade, include the New York hedge fund Water Asset Management and Crispin Odey’s Odey Asset Management in London.

Slater has already got contracts to sell the water for $960 an acre ft (the amount of water it takes to cover an acre of land in a foot of water). That works out at $2.4bn over the 50 years of the company’s water extraction deal with San Bernardino County. His problem, however, is convincing politicians, regulators and the public that pumping water 200 miles from the desert aquifer to LA is a good idea.

Scott Slater, CEO Cadiz Inc

“People see this development as a private sector initiative and they have a very visceral, negative reaction to that,” Slater says.

The price of water in California has been steadily rising, as has demand from a growing population, while the state struggles with four years of severe drought. Slater says water is worth as much as $2,200 an acre ft in San Diego, where it is shortest supply. A decade ago the price was less than $100, he says.

Drought is good news for Slater and Cadiz. “In a condition of scarcity, all water, all water that’s reliable, becomes more valuable,” Slater says. The company’s share price spikes every time a drought emergency is declared, but the shares have still lost more than 80% of their value since 2007 because of repeated regulatory setbacks in Cadiz’s quest to tap the eastern Mojave aquifer.

In the latest setback, the US Bureau of Land Management (BLM) ruled that the company cannot lay a 43-mile pipeline alongside an existing railway line to transport water to the Colorado river aqueduct and on to the cities of the Californian coast. It means Cadiz will have to seek federal approval for the pipeline, which will trigger a long and expensive environmental impact review.

Slater, who was a water rights lawyer for 30 years before taking over as Cadiz’s CEO in 2013, is not giving up on the railway pipeline without a fight. He accuses the BLM of misinterpreting 19th century railway law, and says: “If we can’t get them to follow the law, we’ll do what we need to do, pursue administrative and judicial remedies.”

He says the logistics of the project are pretty simple, and that the company could start pumping enough water to supply 400,000 people by 2017. “I know it will work,” he says, dressed in an purple open-collar Burberry shirt and jeans.

Cadiz has plenty of enemies - environmentalists, local ranchers, protectionists and Native American tribes - but none more fierce than Senator Dianne Feinstein.

“I remain concerned the Cadiz project could damage the Mojave desert beyond repair and believe the BLM decision to deny the right of way is the right one,” said the veteran Democrat, who in 1994 help create the Mojave national preserve. She believes it could be threatened by the Cadiz project. “The bottom line is that right now we need more responsibility in how we use our water, not less.”

David Lamfrom, the director of the National Parks Conservation Association’s California desert and wildlife program, said he believed that “full examination of the Cadiz Inc proposal will once again prove that it is unsustainable and that it will harm our desert national parks, communities, businesses, and wildlife”.

Slater says his plan is environmentally “benign” and will conserve water that at present is lost from the aquifer via evaporation from dry lakes. He says the 50,000 acre ft of water a year the company would extract would “otherwise evaporate, which is far more of a waste than people drinking it”.

“None of the water we are going to take fell on the earth in the last 100 years. This is millennial water. It takes centuries from the water falling at the upper end of our watershed and then follow a migratory path to down where we are,” he says.

“Our project hypothesis is that we construct a well field here,” he says, pointing at a point on the scale model. “And intercept the water as it goes down the hill before it can become hyper-saline and evaporates. We are substituting our wells for the natural evaporation process that sends the water into the atmosphere and wastes it.”

In addition to environmental concerns, others object to a private company being able to make billions from water. Slater says they do not understand the law, which in California states no entity can own water but they can buy, sell and trade the right to use it.

“There are people that think water is a human right and confuse privatization with the right to get water under economic terms,” Slater says.

“This is the United States of America and we have private property here. This is not a communist country. We own land, and land use is an attribute of property ownership,” he says. “Food doesn’t stay on the farm it was grown on. We share our food, we share our energy, we share our oil and gas. I can sell land to anybody. Why would I treat water any differently?

“The use of water is owned. It’s not like someone is calling up God and saying ‘make it rain’. It is sold as a right, just like you sell a house.”

Helicopter crash marks troublesome cattle roundup near Searchlight

Wild, feral, and menacing cattle of the McCullough Range near Searchlight, NV.

By Henry Brean and David Becker
Las Vegas Review-Journal

The wild remnants of one of southern Clark County's last cattle herds are now being cleared from the mountains between Henderson and Searchlight, but the work so far has not gone smoothly.

A crew of cowboys from Utah is gathering stray and feral cows from the McCullough Mountains under a contract with the Nevada Department of Agriculture.

Flint Wright, animal industry administrator for the department, said the operation started Friday and has no scheduled completion date. As of Monday, just 17 cows had been collected.

"They're essentially wild cattle, and it's going to take some time," Wright said.

The roundup hit a major snag Sunday, when a helicopter being used to find and chase cows crashed just off state Route 164 west of Searchlight.

On Tuesday, the wrecked helicopter and its pilot could still be found at a motel in the town 60 miles south of Las Vegas.

Richard Dick of Hutchinson, Kan., said he was hovering about 12 feet off the ground, trying to move a pair of stubborn bulls, when a gust of wind pushed his helicopter into a Joshua tree. The 1962-vintage Bell model 47G ended up on its side in pieces, but he walked away with bumps and bruises.

The pilot said it was his first domestic accident in 17,000 hours of flying, though he crashed three times in Vietnam.

When he climbed out the wreckage Sunday, Dick said, the bulls were just staring at him.

The cattle now being rounded up have roamed the range untended since 2006, when rancher Cal Baird relinquished his federal grazing permit and sold his water rights to the county to preserve habitat for the desert tortoise and other federally protected species.

According to the Bureau of Land Management, Baird moved most of his livestock from the 111,000-acre federal grazing allotment to Arizona, but a few stragglers were left behind.

For the past several years, officials say, those survivors and their unbranded descendants have been damaging springs and menacing people in the mountains and desert between Interstate 15 and U.S. Highway 95 south of the Las Vegas Valley.

BLM spokeswoman Kirsten Cannon said the animals are aggressive and "present a danger to the public recreating in the area."

Wright said: "We've had some complaints from people who were hunting deer and were run off by the cattle."

Baird could not be reached for comment.

Under Nevada law, unbranded stray or feral livestock are considered state property. The BLM has been asking the state to remove the unclaimed cattle from the McCullough Range for several years.

In 2013, the state rounded up and sold off approximately 30 animals, but an unknown number remain. Last year, the BLM counted about 40 unbranded cows spread across two wilderness areas west of Searchlight. Wright guessed there could 100 to 200 feral cows still out there.

He figures it would cost the state as much as $200,000 to try to collect that many animals. The Department of Agriculture has been "trying to get this deal cleaned up for a number of years," but it never seems to have the money or the resources, he said.

The animals are now being rounded up by Sun J Livestock, a ranching operation from Vernal, Utah. Wright said the ranchers aren't being paid directly, but they have plenty of incentive to do a thorough job.

"They get to keep the livestock," he said. "They'll get every cow they can."

Water grab pits Las Vegas against Mormons

Spring Valley, which sits atop an aquifer 263 miles from the country clubs and casinos of Las Vegas, is the focus of a Nevada legal fight over water rights.

BY EDVARD PETTERSSON
Bloomberg News

Las Vegas is seeking to quench its growing thirst by draining billions of gallons of water from under the feet of ranchers whose cattle help feed the Mormon church's poor.

A legal battle across 275 miles of treeless ridges and baked salt flats comes as the western U.S. faces unprecedented droughts linked to climate change.

The surface of Las Vegas's main source of water, Lake Mead, is more than 100 feet below Hoover Dam's spillways after reaching the lowest mark last summer since the dam was filled. As it seeks new sources, the city's water supplier is waging a court fight over plans to suck as much as 27 billion gallons a year from the valley that is home to the Mormon ranch and its 1,750-head herd, as well as three other rural valleys.

Casino resorts, five of which are Southern Nevada's largest commercial water users, labor unions and the developer of a 22,500-acre mini-city west of Las Vegas argue their future depends on the water supply that the church, Indian tribes and environmental groups say is needed by local communities.

The fight, likely to echo across the increasingly arid West, conjures up the Los Angeles water grab that turned the once prosperous Owens Valley into a dust bowl.

As cities including Denver and Phoenix look to secure water for growing populations and economies, the prospect of sustained droughts, more severe and sustained than any in the 20th century, looms over Nevada's court battle, with one pipeline opponent calling it the "poster child" for future showdowns.

The 7,000-acre Cleveland Ranch, established in Spring Valley in 1873 by Maine native Abner "Old Cleve" Cleveland and bought in 2000 by the Mormon church, sits atop an aquifer a dozen-plus miles to the north of Route 50, known from postcards as "America's Loneliest Highway."

The ranch, owned by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, is worked by a combination of paid employees, church missionaries and other volunteers, according to a history of the ranch. The calves, after they are weaned, are shipped to an Idaho feed lot and then to a processing plant, where some of the meat is frozen or canned as stew and beef chunks for distribution around the world.

If the Southern Nevada Water Authority wins in court, its proposed groundwater project may leave the valley to sage brush and coyotes, according to lawyers for the church and environmentalists.

"This is a huge project that raises fundamental questions," said Paul Hejmanowski, a lawyer for the church. "Can we sacrifice an ancient way of life for a growing metropolis?"

So far, the ranch and other project opponents have fended off Las Vegas, convincing a judge in 2013 that there was insufficient scientific evidence for the state engineer's decision to award the water rights.

The Nevada Resorts Association, the Nevada AFL-CIO, representing members of 120 unions, and developer Howard Hughes Corp. support the water authority's and state engineer's petitions to the state Supreme Court for help. A hearing before the court hasn't been scheduled.

"There are no other alternatives available, and it would increase the region's water security," said Virginia Valentine, president of the casino and resort trade group. "Our infrastructure needs to be there."

The five resorts - the Wynn Las Vegas, Mandalay Bay, Venetian, Bellagio and Caesars Palace - consumed 2.4 billion gallons in 2013, according to the water authority. Other large users include the golf and country clubs that surround Las Vegas, an area whose population has almost tripled since 1990 to 2 million.

The leisure and hospitality sector employs 28 percent of Nevada's workforce and the taxes it pays make up 47 percent of the state's general fund.

Those economics may doom Cleveland Ranch even if pipeline opponents have a good case, said Jeffrey Dintzer, a lawyer specializing in water-rights issues with Gibson Dunn & Crutcher LLP in Los Angeles who isn't involved in the dispute.

"Money talks," Dintzer said. "Nevada gets a huge amount of its revenue from gaming."

If the Nevada Supreme Court doesn't reverse the December 2013 decision by the state judge who second-guessed the state engineer, the Legislature and governor may step in to draft a compromise to ensure Las Vegas gets the water, Dintzer said.

That might not end the lawsuits. If the ranch and surrounding valleys are left dry, the state could face hundreds of millions of dollars in claims, he said.

"This will be one of many of these disputes I see coming in the future," said Ed Casey, a water-rights attorney with Alston & Bird LLP, who represented Los Angeles in litigation over air pollution at Owens Lake. "Water is a commonly shared commodity, and as it becomes scarce, we have to face the question who gets priority."

Ranchers, farmers and other so-called senior water rights holders may lose their place at the pump to growing cities, Casey said.

The Southern Nevada Water Authority is pursuing unassigned groundwater rights to reduce its reliance on the Colorado River, which accounts for about 90 percent of its supply and is subject to new upstream diversions as drought conditions worsen.

With Lake Mead - the largest man-made reservoir in the U.S. - at 43 percent of its capacity, the agency already has increased its use of recycled water and cut its per-capita use by 40 percent since 2002, said Bronson Mack, a spokesman for the authority. Still, the agency expects to need new sources by about 2060, based on current estimates, or as soon as 2035 if population growth exceeds forecasts, Mack said.

The agency's groundwater project calls for 263 miles of pipelines connecting Las Vegas with four valleys. U.S. approval of the pipeline is subject to a separate legal challenge in federal court.

As far back as 1989, the Las Vegas Valley Water District, now part of the Southern Nevada Water Authority, applied for unappropriated water in Cave Valley, Dry Lake, Delamar Valley and Spring Valley. The state engineer didn't rule on those applications until 2007, leading to the first round of litigation, which voided the approvals.

In 2012, the state engineer again approved most of the water authority's applications, leading to a new round of court battles.

The Nevada case may set a precedent for urban water districts in arid and semi-arid regions looking for groundwater to sustain development, said Simeon Herskovits, a lawyer for counties, water agencies, environmental groups and businesses opposed to the project.

"This is kind of a poster child case for pro-development interests in urban centers trying to take water away from rural areas through a large infrastructure project by arguing, based on bad science, that vast amounts of water are available for extraction and export," Herskovits said.

A defeat for the project may force water agencies in the West to find other alternatives, he said.

If Las Vegas builds the pipeline, an area the size of New England could face the same environmental and socio-economic devastation as California's Owens Valley after completion of the 200-mile Los Angeles Aqueduct in 1913, he said.

Cleveland Ranch and other opponents persuaded Senior District Judge Robert Este in Ely, the only city within 100 miles of Spring Valley, that it was premature to approve large-scale pumping before its effects were fully known. He directed the state engineer to further develop mitigation protocols for any "unreasonable" effects of the project.

While the church declined to discuss Cleveland Ranch, its lawyer provided a copy of a DVD about the ranch that details its operations and makes the case that an abundant water supply is essential to raising healthy calves. The DVD was submitted as evidence in the court fight.

The Nevada Supreme Court on Feb. 6 dismissed the water authority's appeal of Este's decision, saying it wasn't ripe for review because the judge sent the case back to the state engineer without issuing a final judgment.

In a second bid, the water authority and the engineer asked the state's seven-member Supreme Court to use a procedure called a writ, which doesn't require a final judgment in the underlying case, to overturn Este's decision. They contend the judge acted "arbitrarily and capriciously" by substituting his judgment for that of the state engineer, an expert in hydrology.

"The worsening drought conditions in the West generally, and the Colorado River Basin in particular, do not afford the luxury of time," the water authority said in a Dec. 12 court filing. "This court should hear this petition, and resolve these issues, now."

Drunk with power, agencies come for our water

Commentary

By THOMAS MITCHELL
Elko Daily Free Press

There may not be sufficient documentation to prove that Mark Twain ever said, “Whiskey is for drinking; water is for fighting over,” but Nevada ranchers and farmers are having to fight over water with two branches of their own federal government. It’s enough to drive one to drink.

First, the Environmental Protection Agency rewrote the rules for the Clean Water Act in such a way that gives it authority over just about any stream, dry creek bed or backyard wading pool in the country, even though the law as originally written was meant to protect navigable interstate waterways from pollution. This would allow the Interior Department to require a permit and demand a fee for any work that alters the flow of water near any rivulet — anything from dredging an irrigation ditch to terracing a field — on public or private land.

At a recent meeting of the Nevada Conservation Commission, state engineer Jason King, whose office determines who in Nevada has rights to various water sources, was quoted as saying, “I look at this as an attempt to get into the regulation of the amount of water — an attempt to get their nose under the tent.”

As if grabbing a claim on every drop of water on the surface were not enough insult and injury, the U.S. Forest Service, a division of the Agriculture Department, has published a “Proposed Directive on Groundwater Resource Management” that would give it virtual veto power over the use of any aquifer remotely connected to any land under Forest Service jurisdiction.

The Western Governors Association has sent a letter to Agriculture Department Secretary Tom Vilsack challenging his agency’s authority to carry out this proposal and asking for answers to a number of questions. The letter, signed by Nevada Gov. Brian Sandoval and others, notes Congress gave states sole authority over groundwater in the Desert Land Act of 1877 and the Supreme Court upheld this exclusive authority in a 1935 court case.

Among the questions posed by the governors are: “Given the legislative and legal context, what is the legal basis for the U.S. Department of Agriculture (USDA) and USFS assertion of federal authority in the context of the Proposed Directive?” and “How will USFS ensure that the Proposed Directive will not infringe upon, abrogate, or in any way interfere with states’ exclusive authority to allocate and administer rights to the use of groundwater?”

Additionally, several Western congressmen — including Nevada’s 2nd Congressional District Rep. Mark Amodei — are attempting to insert language in a 2015 appropriations bill that would protect privately held water rights from federal takings. The language was drafted by Amodei and Rep. Scott Tipton of Colorado. It passed the House in March as the Water Rights Protection Act. Putting the language in the appropriations bill increases the chances it will be signed into law.

“Nothing in federal law grants federal land managers jurisdiction over Nevada’s groundwater. That responsibility is one of the few states’ rights remaining in Nevada and I will work all day, every day to keep it,” said Amodei. “With its inclusion in the Interior appropriations bill, this much-needed and timely reminder keeps the pressure on the federal government to comply with state rules and decisions when it comes to Nevada’s groundwater. Anything less amounts to what increasingly looks like a war on the West by this administration.”

Amodei noted that in recent years various federal land agencies have made a concerted push to acquire water rights, including cases in which land managers demanded that water users apply for their water rights under state law in the name of the agency rather than for themselves.

In another letter to Vilsack signed by Western congressional members, including Amodei and Nevada Sen. Dean Heller but no other member of the Nevada delegation, the secretary is told the proposal would impose “a chilling effect on existing and future water resource development and the uses dependent on that development not only within NFS lands but outside these lands.”

The letter notes that the action could adversely affect job creation and is being taken without sufficient input from the states, farmers, recreational users, ranchers and other affected parties. “We therefore urge you to withdraw this ill-timed and punitive Directive,” the letter concludes.

The feds already control 87 percent of Nevada land, now they are coming for the water, too. Some are putting up a fight.

Thomas Mitchell is a longtime Nevada newspaper columnist.

New Mexico county defies U.S. government over cattle grazing

BY JOSEPH KOLB
Reuters

ALBUQUERQUE, New Mexico - A rural New Mexico county has voted to defy the federal government and give a rancher's cattle access to a watering hole fenced off by the Forest Service in the latest dispute over federal control of public land in the U.S. West.

Commissioners in Otero County voted 2-0 on Monday night to authorize Sheriff Benny House to open a gate allowing nearly 200 head of cattle into the 23-acre area despite Forest Service restrictions. A third commissioner was out of town for the vote.

"We are reacting to the infringement of the U.S. Forest Service on the water rights of our land-allotment owners," Otero County Commissioner Tommie Herrell told Reuters. "People have been grazing there since 1956."

But a U.S. Forest Service spokesman said the fence has also been there for decades, protecting a delicate ecosystem surrounding a natural spring as well as an endangered species of mouse from being trampled by cattle.

The dispute is the latest squabble between federal authorities and conservative states' rights advocates in the West, who want to take back millions of acres of public land from central government agencies.

It comes in the wake of an armed standoff last month between supporters of Nevada rancher Cliven Bundy and federal land managers who sought unsuccessfully to seize his cattle over his longstanding refusal to pay grazing fees.

Bundy and his allies do not recognize federal authority over the land, which has been cleared of other ranchers' livestock to protect the habitat of the desert tortoise.

In the New Mexico case, Forest Service spokesman Mark Chavez said an old barbed-wire fence had recently been upgraded in cooperation with the rancher, and allowed room for a watering canal for the cattle without disturbing protected land.

He said the fence allows calves in and out of the area and there were other watering holes on the rancher's 28,850-acre grazing allotment some 45 miles southeast of Alamogordo.

Herrell said the rancher involved had complained repeatedly to the commission about the fence. The rancher was unavailable for comment on Tuesday afternoon

Chavez said the New Mexico meadow jumping mouse was expected to be listed as an endangered species in June, which would mean those 23 acres would be considered a critical habitat.

"I've never seen one of these mice, and the Forest Service claims they caught one last year," Herrell said.

While Otero County commissioners had given the sheriff approval to obtain a court order lifting the restrictions, Herrell said that House would not act until after local officials meet with the U.S. attorney for New Mexico on Friday.

Court rejects Las Vegas' groundwater rights to rural valleys

Nevada decision fails to protect water users, including those in Utah’s Snake Valley, judge says.

View of Spring Valley from June, 2013. (Brian Maffly | The Salt Lake Tribune)

By Brian Maffly
The Salt Lake Tribune

Las Vegas’ 25-year effort to import groundwater was dealt a major legal blow this week after a Nevada state judge invalidated the desert metropolis’ rights to the water under four eastern Nevada valleys.

In his long-awaited decision Tuesday, Senior District Judge Robert Estes ruled that state engineer Jason King did not adequately investigate whether the Southern Nevada Water Authority’s proposed groundwater scheme would pump these basins dry or conflict with existing water rights.

Nor did his award of 61,000 acre feet from Spring Valley establish measures to protect ranchers and other water users, including those in Utah’s Snake Valley.

"It was a huge victory for the opponents of SNWA’s pipeline project," said attorney Simeon Herskowits, who represents a diverse group of ranchers and environmentalists fighting Las Vegas’ water ambitions. "The judge ruled in our favor on all the fundamental issues we have been asserting for years."

He argued SNWA’s latest legal setback could be "the death knell" for the groundwater scheme, which includes a $15 billion, 285-mile pipeline to move billions of gallons from the Dry Cave, Delamar, Cave and Spring valleys. Water authority spokesman J.C. Davis could not be immediately reached Wednesday.

Groundwater from the aptly named Spring Valley supports not only rich vegetation such as its famous swamp cedars, but also feeds Utah’s Snake Valley, situated just to the east and 1,000 feet lower.

Because several agricultural communities there rely on aquifers and springs, Millard and Juab counties and other Utah interests are among numerous parties challenging King’s water-rights decision.

Also fighting it are The Church of Jesus Christ of Latter-day Saints, which operates a big cattle operation in Spring Valley, several Indian tribes, the Center for Biological Diversity and the Great Basin Water Network.

"By setting the clock back to 1989, the court has provided an opportunity for the Water Authority and its board to explore previously ignored alternatives to this destructive project," said the Center for Biological Diversity’s Rob Mrowka. "Rather than robbing the desert of its precious little water, we should be looking at sustainable ways for Las Vegas to live within its means without destroying the environment and rural communities."

Estes heard arguments over two days in June in White Pine County’s courthouse in Ely.

He ruled that the water under Cave, Dry Lake and Delamar appears to be already appropriated. For Spring Valley, where there is far more water, Estes found little assurance that the proposed water withdrawals would be safe.

"Granting water to SNWA is premature without knowing the impacts, conflicts or unreasonable environmental effects so that mitigation may proceed in a timely manner," he wrote.

The judge remanded the decision back to King to recalculate how much water is available. He is also to include Juab and Millard counties in any mitigation plans for Spring Valley.

Estes was concerned that state engineers could not determine when Spring Valley’s groundwater would achieve its new equilibrium between discharge and recharge once pumping began. He instructed King to structure appropriations so that such equilibrium would be achieved in "a reasonable time."

Landowner says desert tortoise, federal government left him bankrupt

A Washington County landowner and developer had a vision for a residential development and upscale golf course on the benches above St. George and Washington. He's now bankrupt — a destiny he said was chartered by the desert land tortoise. (Ravell Call, Deseret News)

By Amy Joi O'Donoghue
Deseret News

ST. GEORGE — James Doyle had a dream in 1980 to create a beautiful residential development and golf course on the picturesque benches overlooking St George and the community of Washington.

Then along came the desert tortoise and a federal listing of the animal under the Endangered Species Act.

It's been more than 30 years, countless negotiations, a few successful land trades — but Doyle was left bankrupt and an old man, his vision unrealized.

"His dreams have been pretty well doused by being in these tragic set of circumstances," said Doyle's attorney, Timothy Anderson. "He went from a competent real estate developer to a guy who is just barely getting by. It is a very sad thing to have watched."

Doyle has filed a lawsuit against the U.S. Department of the Interior and Washington County, demanding compensation for financial and emotional losses brought on by a series of failed promises and bungled agreements by the government to adequately compensate him.

"Mr. Doyle anticipated that his land would get bought," Anderson said. "The Bureau of Land Management was tasked with facilitating these exchanges with the input and involvement of Washington County. But when you start dealing with the government, they say one thing and do another."

Back in 1980, Doyle began acquiring land to develop in Washington County, purchasing 2,440 acres and obtaining the leases and other rights to another 11,000 acres. By 1989, working with Washington County and St. George, he had obtained all the necessary permits, development plans, water rights and zoning changes for his development, according to the lawsuit.

"He was approaching shovel ready," Anderson said.

That same year, however, the U.S. Fish and Wildlife Service declared the Mohave desert tortoise as endangered, adding it to the list of species meriting federal protection.

Anderson's suit asserts the designation brought development to a standstill in Washington County, with political leaders under mounting pressure to come up with a habitat conservation plan that would meet with federal approval.

Ultimately, by 1996, the county submitted plan in which Doyle agreed to place virtually all of his land inside a tortoise reserve on the condition he receive compensation at fair market value, either in cash or land exchanges.

Over the years, there were four land exchanges, but Doyle still owns property within the reserve for which he hasn't been compensated.

"He only has 248 acres, and still the government holds the key to his land," Anderson said. "The magic of how you are going to ultimately get paid is under the control of the federal government and or the county. And about all you can do is go to them with hat in hand."

Because Doyle and others who owned land inside what would become the desert tortoise conservation area agreed to give up their land in exchange for compensation, Anderson said the county was once again free to pursue development because it could prove the tortoise was being protected.

Doyle, in the meantime, has kept vainly hoping that the government will work out a just deal for him, or that federal legislation to help him will pass in Congress.

Anderson said the much-celebrated Washington County Lands Bill that ultimately passed in 2009 was supposed to help Doyle, but at the last minute he was left out of it entirely.

"It is a travesty," Anderson said. "As far as I know, this is not Russia or China, but for Mr. Doyle, it largely is."

The U.S. Department of the Interior does not comment on pending litigation, and efforts to reach Washington County were successful.

Woman Speaks Out on Ranching Empire

SNWA owns seven rustic ranches in Spring Valley

By George Knapp and Matt Adams
8 News NOW

SPRING VALLEY, Nev. -- The Southern Nevada Water Authority has spent huge sums of public money to gobble up a string of rural ranches because of the water underneath them. SNWA claims the ranches are operating in the black, but a whistleblower has come forward to tell a much different story.

The I-Team has reported previously about how much was spent to acquire the ranches, and it's quite a pile of money, but until now, no one on the inside was willing to talk about the operations of the ranches.

Debra Rivero worked for the water district for many years and was a valued employee but when she started working as office assistant at the ranches, she realized she had entered a world unto itself, one that we co-owners never get to see.

The SNWA owns seven rustic ranches in Spring Valley. The public may not know it, but they are in the ranching business because of a SNWA spending spree. The authority has spent nearly $80 million to buy a string of ranches, tens of thousands of acres, plus cows, sheep and farm equipment.

As the I-Team first reported, SNWA paid many times the market value for the ranches. El Tejon ranch, valued at $1.1 million went for $32 million. The Harbecke ranch, now headquarters for SNWA's empire, with a market value of a $250,000 fetched close to $5 million from the water agency.

"I did everything, from paying the bills to weighing the trucks, every penny that came in, and every penny that came out, I was responsible for," said Debra Rivero, a former SNWA employee.

She worked for the water district in Las Vegas for 17 years before moving north to run the office for the ranches. From the beginning, she said, she was struck by how little oversight there was by SNWA.

"The whole operation is very secretive. They don't encourage anybody to come up and take a look and tour the place. It's just all very secretive."

How secretive? Rivero says the first ranch manager, who took the job after his ranch was purchased for six times its market value, was given a year's salary when he left, with the condition that he keep quiet.

Outspoken critic Hank Vogler who owns one of the few area ranches still in private hands, was offered a consulting contract if he would button his lip. Former White Pine District Attorney Richard Sears landed the best deal of all. He agreed to drop his planned opposition to the water grab in exchange for a brand new well on his ranch, plus irrigation equipment, plus nearly 400 acre feet of water per year, with a value of more than $1.5 million dollars.

"It's all in the contract," Rivero said. "Just so he'd be quiet and withdraw the protest. I think the worst thing was the payoffs for people to be quiet, to stop protesting. It was the most horrendous thing I've seen."

The ranch operations bled money for a few years but now, according to SNWA's accounting, they are in the black, earning $260,000 last year from sales of hay and beef. Neighboring ranchers scoff at the math, saying SNWA's deep pockets mean this ranching operation doesn't face the same challenges as an actual ranch, standing on its own.

What other rancher has nine committee meetings to pick a design for a brand, for instance or has a government sugar daddy to repair equipment or buy new trucks? Although the ranches supposedly made a profit, the costs to the public keep going up.

The operating budget was $500,000 a year in 2007, it went to $750,000 in 2008 and was bumped to $850,000 last year. Expenses that would count against a real rancher's bottom line are not included, Rivero said. For example, SNWA reported it sold $1 million worth of hay.

"That doesn't include the fertilizer, the irrigation equipment, the employees time, everything else," Rivero said.

She adds, she was told by the current manager and others about suspected widespread theft by employees. Cows, sheep, equipment, even saddles disappeared but didn't show up on any ledger.

"I kept bringing it up. 'Hey there is unethical stuff going on up here' and the Vegas office didn't seem to want to hear it. They didn't want to talk to me about it. They didn't want to say anything."

Veteran rancher Dean Baker, an opponent of the water grab, says all of the public money being plowed into the ranches will be wasted once the pumping begins because Spring Valley will be sucked dry.

"It will kill the ranches when they pump it. If they don't know that, they are way stupider than I think they are," Baker said.

Scott Huntley, the chief public information officer for SNWA issued the following statement:

"The Southern Nevada Water Authority is committed to operating and maintaining its Spring Valley holdings in a responsible manner to protect both employees and equipment. As a not-for-profit public agency, the SNWA adheres to strict policies and procedures focused on preventing harassment, workplace violence and drug use. Senior officials from the agency are actively involved in managing the properties. Our Environmental Health and Safety and Corporate Security Department makes regular site visits along with our Fleet division, Finance and Facilities to conduct inspections and verify appropriate business practices. We maintain strict business practice and inventory controls and have had no verifiable reports of theft on the ranch properties."

Rivero told the I-Team a lot more about the operation of the ranches, and I-Team reporter George Knapp will report that information in the days ahead.

Rivero left the ranch operation because of what she said was a hostile work environment and has filed a complaint with federal authorities. Future I-Team reports will have explosive details about what happened to her, and what she saw.

Whiskey is for Drinking, Water is for Fighting

Why Resolving Water is Important but Difficult for the Western US

Colorado River Basin

Written by Sig Silber
Global Economic Intersection

An enormous struggle and debate is taking place in the Western U.S. involving water. This struggle includes among other things:

• Historical disputes over who owns what water.
• The modern relevance of the principle of “first in time first in right” referred to as the Priority Doctrine and written in the constitutions of many Western States. In theory, water markets allow the use of water to move from lower-value applications to higher-value applications but the public does not always think this is fair especially if the right to use the water moves from one location to another.
  
• Conflicts over the appropriate roles of the Federal Government and the States. Many streams flow through multiple states and in reality states do not have the financial resources to provide and manage the required infrastructure. But in general, water is owned in trust by states and the right to use (a usufructuary right) is permitted by states to users. So in many cases there ends up being overlapping roles.
• Conflicts among various categories of water users including Native Americans, descendants of original Spanish settlers, more recent acquirers of water rights, mining and extractive industries, and growing municipalities (urban areas) and last but certainly foremost crop irrigation which represents between 80 and 90 percent of water consumption in the West.
• Variations in the water supply. Some of these variations are cyclical and not well understood either by the general public or water administrators. Although science clearly indicates that Warming means wetter, it is also likely that the geographical distribution of precipitation will change and a certainty that losses to evaporation will increase.
• Agreements made relevant to sharing water among States and with Mexico often were made during wetter than usual periods and thus present challenges during drier than usual periods exacerbated by a growing population and impacted by Warming.
• The current economic value of water is low. Its marginal utility in irrigated agriculture is usually less than $100 an acre foot (the amount of water it takes to flood an acre to a depth of twelve inches i.e. just slightly under 326,000 gallons).
• Other than weather modification (cloud seeding), there are essentially no other methods of increasing the water supply which have a sufficiently low cost to be viable for agriculture so conservation is the only viable approach in that sector.
• More methods of increasing the water supply work for the municipal sector because water is a small component of the costs of a household and most businesses. In the past, three or four families could have their water needs met by one acre-foot of water. Some “green” developers are able to achieve water efficiencies that allow up to six families to have their needs met by one acre-foot of water.
• Oil and gas are becoming a larger user of water but in most cases this water is separate from the water used for agriculture and municipalities and to a very large extent is not consumed (depleted) but instead is re-injected back into the ground. Water used in the oil and gas industry generally need not be of drinking water quality. There is a concern that oil and gas operations will pollute domestic and agricultural water quality but no pattern of this occurring has been substantiated in more than 70 years of drilling or production.

Reduced Political Power of Farmers to Protect Their Water Rights

Farmers represent less than 1% of the workforce (may not count individuals who operate a farm on a part time basis or in other ways are not identified as farm workers) and use 80 to 90 percent of the water while their political clout is diminishing. The economic multiplier for agriculture is probably in the range of 2 to 3. Total economic impact is more than the work force but still is not sufficient to have significant political power in most States. In New Mexico, agriculture accounts for 1.7% of SDP but only about a third of this is related to irrigated agriculture. The economic impact of impeding the growth of municipalities carries more weight than the well-being of farmers. The analysis of the impact of agriculture is facilitated by the widespread use of a single model called IMPLAN It has limitations especially related to the value added after the product leaves the agriculture sector for example the manufacturing of wool into a sweater and sale of the sweater would not be included in the multiplier since the multipliers are mainly backward looking and mainly address the agriculture sector and its suppliers. I will now discuss a few of the situations in some detail. Additional information on the water problems facing Western States can be found at WesternStatesWater.org.

New Mexico Lower Rio Grande Adjudication

This is the New Mexico part of an irrigation project begun by farmers and private parties that was nationalized and completed by the Federal Government. It was designed to serve two counties in New Mexico and two counties in Texas. The Treaty of May 21, 1906 with Mexico requires the provision of 60,000 acre feet of water to Mexico which depending on many factors might be sufficient to irrigate 20,000 acres. Litigation in this area began while the area was controlled first by Spain and later by Mexico which gained its independence from Spain in 1823. The US gained possession of the west side of the Rio Grande first via the treaty with Texas which brought the Texas portion of the area under US control. New Mexico became a Territory of the US in 1850 and the east side of the Rio Grande came under the control of the US in 1853 as a result of the Gadsden Purchase.

The Lower Rio Grande within New Mexico was managed by the US from its office in El Paso, Texas and New Mexico was a virtual colony of Texas up until at least 1912 when statehood was granted. The US and the railroads were eager to have the west populated and a series of programs were initiated by the government and the railroads towards this end including the Homestead Act of 1862, the Mining Act of 1872, the Desert Land Act of 1877, and the Carey Act of 1894. In 1866, the Territory of New Mexico enacted legislation to provide for incorporation of companies for construction of irrigation works and in 1867 the Federal Government provided for maps of rights of way for irrigation projects.

Development proceeded more rapidly in Southern Colorado and in Mexico creating conflicts among irrigators up and down the Rio Grande. The Southern Pacific Railroad reached El Paso on May 19, 1881 and the Santa Fe Railroad reached El Paso from Albuquerque on June 11, 1881 and growth accelerated in those areas. A free running Rio Grande did not always meet the needs of the downstream farmers and ideas for a reservoir were floated first by farmers in the Mesilla Valley of New Mexico and then by businessmen in El Paso. The International Dam site about four miles north of El Paso gained strong support in Washington based on lobbying carried out by Colonel Anson Mills. In May of 1902, immediately prior to the passage of the Reclamation Act of June 17, 1902, Arthur Powell Davis, Assistant Chief Engineer for the new Reclamation Service selected the dam site at Elephant Butte, 100 miles upstream of El Paso because of its greater storage capacity, lower reservoir evaporation, and minimal loss of arable land. The Financial Panic of 1893 restricted both private and public capital but a private entrepreneur with strong ties to British capital created a British Company and undertook to finance the Rio Grande Dam and Irrigation Company (RGD&IC) founded by Mesilla Valley farmers to construct a large storage dam with about 237,000 acre feet of storage in a canyon below a rock formation referred to as Elephant Butte nine miles west of Engle, New Mexico, and a diversion facility at Leasburg New Mexico to divert water in a controlled manner to a 15 mile system of canals serving 15,000 farms and other related irrigation infrastructure the full extent of which remains to be determined in the ongoing litigation.

At the time of the passage of the Carey Act in 1894, the opinion in Washington was still to encourage private investment to develop the West. That philosophy changed as it became evident that private capital was in some cases insufficient to cope with the extreme vicissitudes of surface water flow both floods and droughts. After construction of the Leasburg diversion facility (essentially a weir dam) and a certain number of canals by the RGD&IC, private interests in El Paso, Texas managed to stop the RGD&IC and its construction of its major storage dam by claiming that the Rio Grande at Elephant Butte was a navigable waterway and invoked the War Powers Act to stop the obstruction of the river by a private dam. Years of litigation ensued and ultimately a default judgment was entered in 1903 to strip the RGD&IC of its assets and permits on the basis that the work, delayed by the Federal Government, was not completed within the five years allowed. During this time, the US hypocritically advanced its own plans and the construction of its own dam began in 1910 at virtually the same location as planned by the RGD&IC. Some of the diversion dams of the RGD&IC were improved by the Federal Government between 1903 and 1910. Although the matter went before the US Supreme Court three times and the International Court at the Hague and there has been additional litigation since then, no definitive decision has yet been rendered over a matter that occurred more than 115 years ago and the litigation continues by the descendants of those impacted. Possibly because of the Panic of 1907, the owners of the private dam and those served by the partially completed private project were not compensated by the Federal Government as was done on all of the other 22 private dams of that era which one way or another were nationalized including the Carlsbad Project on the Pecos River in New Mexico.

The failure of the federal government to follow norms of behavior when nationalizing a private venture has resulted in 115 years of litigation which now is complicated by the recent droughts, agreements made between the irrigation district established in New Mexico and the one in the El Paso Texas area (a second County in Texas benefits from drainage water from the Project), conflicts with Mexico and the low level of efficiency of the Project. I calculate that crops are only using about 25% of the water. That is a very low efficiency and is essentially unexplained. A further complication is the increasing attractiveness and expanding acreage of pecans which is a relatively efficient crop in the sense of dollars of product produced per unit of water consumed but nevertheless uses more water per acre than other crops grown in that area. With an essentially fixed or declining supply of water, paradoxically higher on-farm productivity per acre creates administrative problems as fewer acres can be irrigated. As another example of progress creating problems, drip irrigation when surface water is involved and unused water can return to the river does not reduce the amount of water required per ton of production but increases the production and thus the use of water per acre.

So there are many issues to be resolved and this process moves very slowly. In the meantime, many New Mexico farmers are receiving far less than their normal allotment of water and this is especially troublesome to the farmers in the New Mexico portion of the Rio Grande Project which is administered by the Elephant Butte Irrigation District (EBID). The legal process to sort this out is part of what is called the Lower Rio Grande Adjudication (LRGA) Stream Issue 104.

One aspect of the issue is that the general rule in the West is the concept that the first party to put water to beneficial use has the better right to continue to do so and in times of shortage the party with the senior rights should get their full allotment and the party with the most recent priority right should not receive water that year. Clearly that is harsh but it is the way things are handled in the West. The Rio Grande Project was established on the basis of an equal full allotment for each acre irrigated as described to potential members in informational material published by the Elephant Butte Water Users Association in 1905. Though subscription agreements to the EBWUA required that members surrender their management of their water rights to the EBWUA, there is a legal dispute as to whether or not it required that the member surrender their title or their priority during times of shortage. Therefore, when there was a full allotment of water, as the EBWUA supposed, the EBWUA would manage the water as to timing of delivery for everyone. But in years of shortage as was unforeseen at the time, the EBWUA perhaps should have been required to deliver the water according to priority date – which they and their successor the Elephant Butte Irrigation District (EBID) has not done, but has instead curtailed all users proportionately thus not taking into consideration the original priority date of those who farmed the 31,000 acres of bottom land prior to the appearance of the US Reclamation Service the predecessor of today’s Bureau of Reclamation.

This issue of pro rata distribution of water versus priority distribution of water is one of the major issues now being litigated before a New Mexico District Court. To some extent it may be a question of the relative roles of the Federal Government and State Government in the administration of this Project and the water which is central to the Project. The goal is to “adjudicate” the water rights of each farmer or other user of the water. At this point the hydroelectric facility at the Elephant Butte Dam is not part of the litigation. But more recently permitted groundwater wells which supplement the surface flow of the Rio Grande but presumably are tapping into an aquifer that is connected to the river is part of the litigation. So it gets very complicated.

Middle Rio Grande Lack of Enforcement of the Priority Doctrine

The Middle Rio Grande Conservancy District MRGCD is a form of an irrigation district (created under a different provision of New Mexico Statutes than EBID) and extends north of Elephant Butte to the Cochiti Dam north of Albuquerque. It is an irrigation district embedded in the major population center of New Mexico.

The MRGCD area is a smaller irrigation area than the Lower Rio Grande but important nonetheless. The distribution of water is managed by the MRGCD. Although in times of shortage it would appear to some that farmers with earlier “priority dates” i.e. the date when they applied to put water to beneficial use should receive their full allocation of water and those with later priority dates would receive water only as available after the senior water rights holders have received their allocation, the desire for harmony seems to have led to the non-enforcement of the Priority Doctrine. Thus this matter also is in court the subject of a law suit filed by Janet Jarratt a farmer and former Board Member against the MRGCD.

A number of years ago a similar situation occurred on the Pecos River, a much smaller river but one also governed by an Interstate Compact. Texas sued to receive the water they believed they were due. My reading of the Pecos Compact is that the Priority Doctrine should have been enforced but the New Mexico Legislature instead took the approach of buying sufficient water from New Mexico farmers to meet the obligations to Texas thus removing the need to do what is called a “Priority Call” on the Junior (more recent priority date) water rights holders and instead transferring the costs to New Mexico taxpayers. Perhaps, if you accept Modern Monetary Theory, the Federal Government could have assumed this cost but they didn’t. The Rio Grande is at least ten times the size of the Pecos River so any effort to protect the junior water rights holders would probably involve in the range of ten times the amount of water and the price of water along the Rio Grande is five to ten times the price along the Pecos so it could get quite costly.

One of the complications in all of this is that in some cases municipalities may have some water rights which are junior to some farmers and a priority call might impact municipalities. A farmer can fallow his field for a year. A city can’t stop providing water for residents and businesses.

Colorado River Basin

The largest river in the Southwest is the Colorado River as shown below. The Colorado River Basin, including its tributaries impacts parts of seven Western States: Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming. Although only the NW and SW parts of New Mexico are naturally part of the Colorado River System, the Rio Grande is also shown on this map because a tunnel transfers water under the Continental Divide from the Colorado River System into the Rio Grande Stream System.

The Colorado is divided into an upper basin and lower basin. Each basin is entitled to receive 7.5 million acre feet (maf) of water over ten year periods under the Colorado Compact. Mexico is entitled to 1.5 maf under a Treaty with the US. In addition to the original 1922 Colorado Compact and the initial Treaty with Mexico, there is a collection of other laws and International agreements and court decisions that apply which collectively are known as the Law of the River.

The potential amount of available water in the Colorado Basis over the last 100+ years has averaged 16.4 maf. The usage over the past ten years has averaged 15.3 maf. Thus, although there have been tight periods, the reservoir system has enabled all lower basin states to receive their 7.5 maf requested deliveries and Mexico has received 1.5 maf partially because the upper basin states so far are not using their full allotment. The current forecast predicts both increased demand and reduced supply. There will be shortages within the seven Western States and Mexico. Using various scenarios of population growth and increased efficiency, consumption is projected to increase to a range of from 18.1 maf to 20.4 maf by 2060. This results in a median estimate of basin shortfall of 3.2 maf. This range has a fairly large confidence interval. The shortfall could easily be greater than predicted. Precipitation variability could create management problems beyond what is apparent from simply looking at averages. How these shortages will be shared is not as clear as one might like or expect so considerable litigation should be anticipated. Among the legal issues are the interpretation of the multiple agreements and their ability to be modified.

Bureau of Reclamation shows the possible ways of increasing the water supply to meet this projected gap in supply and demand. The options were rated on a number of evaluation criteria. Obviously that is a complex process and this report should be viewed as an initial screening. Other than weather modification (cloud seeding), which the authorities are reluctant to employ on a large scale for reasons that baffle this author, all the other sources are too high a cost to be economic for farmers. So if the improvements are funded by the Federal Government or the individual States, this will clearly be a subsidization of municipalities which are exhibiting the most rapid growth.

It is a bit similar to Peak Oil. We have not reached peak oil on a worldwide basis. But we have reached peak low-cost oil. It is a similar situation with respect to water in much of the West. The cost of adding to water supplies exceeds its value to agriculture. This raises the question of who should pay for the cost of adding to water supplies and whether or not the Priority Doctrine should simply be enforced which mainly means reducing the use of water in irrigated agriculture by those farmers with more recent priority dates. Thus a water administration issue becomes a political issue. It is not just farmers versus cities but states versus states, and the US versus Mexico.

There are many players in this equation and each situation (and there are many more than I have described) have their own history usually containing indiscretions sometimes by well know individuals in the history of the US. Some of the famous sayings in this area are “There is no law west of the Pecos” and “There is no God west of El Paso”. Curiously, on Christmas I watched a very entertaining movie with John Wayne that involved a dispute over water. No courts were involved in resolving this dispute – just guns. Hopefully we have progressed from that period of time but the time required for resolving this sort of dispute has greatly expanded and may not be available.

Water is an issue which somehow did not get much attention in the last presidential election but it is an issue that is likely to gain importance over time and ultimately will have to be dealt with. Each of the three or four situations I have described has its own dynamics so one has to become familiar with those dynamics to really understand all the issues which prevent an easy solution.

To summarize, the Fiscal Cliff is not the only major issue confronting the U.S. Provision of water to agriculture and municipalities is another challenge which may actually be more challenging. You can’t print water. Nevertheless, we have powerful institutional arrangements in place for dealing with both the equitable distribution of water and adjusting to changes in the overall situation. In most cases, those involved have concluded that cooperation is preferable to litigation. But in other cases, the conflicts appear to be intractable. Thus it remains unclear if the system will hold together. I suspect it will not.

US, Mexico To Sign Landmark Colorado River Agreement

About 30 million people in seven western States and two Mexican states depend on Colorado River water. After years of negotiations the U.S. and Mexico plan to sign a landmark water use agreement Nov. 20.

The U.S. stores emergency water for Mexico at Lake Mead, the reservoir behind Hoover Dam near Las Vegas. (Laurel Morales/KPBS)

By Laurel Morales
KPBS

FLAGSTAFF, Ariz. — The Hoover Dam was built to control the powerful Colorado River, which for many years flooded farms and cities.

“‘Ladies and gentlemen, here is where man conquered the mighty river placing a concrete yoke about its neck to harness its tremendous power and water resources,’” a 1955 educational video explained.

In 1922 the Colorado River Compact divvied up the water to the upper and lower basin states. This allowed for cities like Las Vegas and San Diego to mushroom rapidly, and for farmers to grow acre upon acre of alfalfa and other crops.

About 20 years later, Arizona and Mexico signed on to receive their shares.

So let’s do a little math. Water is measured in acre-feet. An acre-foot is enough water for about two households a year. The upper and lower basin states were allocated 7.5 million acre-feet each, and 1.5 million acre-feet to Mexico, add in the loss to evaporation (remember we’re in the desert here) and you get a grand total of about 18 million acre-feet a year. But today -- in this extended drought period -- the river is flowing at best 15 million acre-feet.

"There simply isn’t enough water to go around even if we drained the river dry every year to satisfy those who have legal rights to the water," said Robert Glennon, a University of Arizona regents professor and the author of Unquenchable: America’s Water Crisis and What to do About it. In addition to the over-allocation of river water, the states are now facing climate change and population growth.

"You add all of those things up and it’s a train wreck," Glennon said. "So the states and the two national governments cannot put their heads in the sand and pretend that there’s not a problem. I commend them for tackling the issue head on."

The issue came to a head five years ago when Lake Mead, the reservoir behind Hoover Dam, reached a critical low point. The western states devised a backup plan. But the real question -- will Mexico go along?

"It was never clear when the river went into shortage conditions that Mexico was going to agree to accept a cutback in supply that went to Mexico," said David Modeer, the general manager of the Central Arizona Project, which provides 80 percent of the state’s water. "That’s an uncertainty and a threat to us that if we were going have to cutback supplies, there was no guarantee that the amount of water Mexico gets on an annual basis would be reduced similarly in fashion."

There was an added urgency to the negotiations for Mexico when, in 2010, an earthquake damaged pipelines in a major farming area south of the border. Mexico asked the U.S. to let it store water in Lake Mead while repairs were made. The new water agreement extends this emergency storage program.

It’s a precedent-setting agreement and many other nations dealing with water scarcity -- like Australia and some Asian countries -- are watching with interest.

"Just the notion that one country would use its facilities to store the waters of another country is a huge issue across the globe and this agreement will go down as a blueprint," said Pat Mulroy, the general manager of the Southern Nevada Water Authority.

The agreement also has some gains for environmentalists.

It calls for a pilot program of water releases from the U.S. to replenish the now mostly dry wetlands in the Colorado River delta in Northern Mexico -- once a major stopover for North American birds.

The most important element of this agreement is that Mexico will share in times of surplus and shortage with the western United States. Still, water experts say more needs to be done to plan for climate change, which will likely reduce Colorado River flows by as much as 9 percent.

Arizona high court rules that Congress did not reserve water rights for state trust lands

FELICIA FONSECA
Associated Press

FLAGSTAFF, Ariz. — Congress did not intend to reserve water rights for state trust lands, the Arizona Supreme Court ruled Wednesday in settling a question important to resolving claims to the Little Colorado and Gila rivers.

State officials had argued that when Congress granted the land to Arizona for universities, government buildings, prisons and other institutions, it established a trust similar to creating reservations for American Indian tribes and, therefore, implied reserved water rights.

The high court said land grants are different in that they are not the product of negotiated agreements or treaties. It also rejected Arizona's argument that Congress meant to reserve water rights for state trust lands because lawmakers were aware that water was needed to make use of the arid land.

"Support of the common schools and other specific institutions undoubtedly serves the public interest," the court wrote in its ruling. "It is not, however, a federal purpose."

Arizona became a state in 1912, carved out of what once was New Mexico territory. Two-thirds of the more than 9 million acres of state trust lands lie in the river basins.

The state had filed motions for partial summary judgment in two cases — one in Maricopa County Superior Court to resolve Gila River claims and the other in Apache County Superior Court for the Little Colorado River. The state appealed a determination from the water judge overseeing both cases that federal reserved water rights don't apply to state trust lands.

Supreme Court Justice A. John Pelander, writing for the court, said Congress compensated Arizona for the relatively low value of the land granted by giving the state more land. Although a federal law that set requirements for Arizona and New Mexico territories to become states imposes enforceable trust obligations on Arizona, it doesn't allow the federal government to make policy decisions on how state institutions are run, the court said.

The New Mexico Supreme Court ruled similarly in a case involving rights to the San Juan River.

The Arizona State Land Department said a determination in the state's favor would have upped the value of the lands held in trust for public education and furthered the department's ability to generate revenue. Department spokeswoman Vanessa Hickman said it would continue to pursue its water claims in the court.

Nearly 10,000 claims have been staked in the cases that has been ongoing for decades.
"There are more than 9 million acres of state trust lands. If suddenly these lands had water rights, they would overwhelm all other uses of water," said Glennon, author of the book, "Unquenchable: America's Water Crisis and What To Do About It."

Congress never explicitly reserved water rights for federal reservations, but they've been implied in the creation of federal reservations for American Indians, military bases, and national forests, parks and monuments. The U.S. Supreme Court repeatedly has recognized those rights.

Congress defers to state water law except in limited circumstances, such as water rights for federal reservations, said water rights attorney Stanley Pollack, who works for the Navajo Nation.

In the Gila River case, for example, the parties are wrangling over water rights for the Army's Fort Huachuca base in southern Arizona, which has federally reserved water rights.

The Navajo and Hopi tribes recently took up a settlement agreement that would have resolved claims to the Little Colorado River basin, but they've returned to litigation after Navajo lawmakers rejected it. Aside from Zuni Pueblo, no other Arizona tribe has acquired rights to the Little Colorado River.

Pollack said the Arizona justices' ruling "removes an important cloud that hovers over everyone's water rights in both cases."

Dave Roberts, water resource manager for the Salt River Project, said the state Supreme Court made the right decision.

"The opposite decisions could have thrown a huge monkey wrench into the state's water allocation process and raised still more uncertainty for water users," he said.

State allows pumping of groundwater from rural Nevada

By Henry Brean
Las Vegas Review-Journal

The Southern Nevada Water Authority has something to put in its pipeline once again.

Nevada's top water regulator on Thursday granted the authority permission to pump up to 84,000 acre-feet of groundwater a year from four rural valleys in Lincoln and White Pine counties.

That is about two-thirds as much water as authority officials were seeking, but it's 5,200 acre-feet more than they got the last time around.

The decision from State Engineer Jason King comes roughly two years after the state Supreme Court struck down two previous rulings that granted the authority almost 79,000 acre-feet a year from Spring, Cave, Dry Lake and Delamar valleys.

Las Vegas water officials originally applied for almost 126,000 acre-feet of unappropriated water in the four valleys as part of a larger plan to siphon groundwater from across eastern Nevada.

They hope to deliver the water to the Las Vegas Valley someday through a multibillion-dollar network of pumps and pipelines stretching more than 300 miles.

One acre-foot of water can supply two average Las Vegas homes for one year. When stretched through reuse, the 83,988 acre-feet awarded Thursday is enough for roughly 286,000 households annually.

Only some of the water will be available right away. King wants the water rights in Spring Valley to be developed in stages so potential environmental impacts can be measured and curbed.

SCIENCE AND THE LAW

Water authority officials were still reviewing the ruling Thursday afternoon, but deputy general manager John Entsminger offered praise for what he had read so far.

"We think the state engineer has grounded his decision in science and the law," he said.

The fact that the authority was granted more this time around "verifies that the water is there for appropriation and can be withdrawn in an environmentally sustainable manner," Entsminger said.

But opponents insist there is nothing sustainable about the project.

In a statement, the Center for Biological Diversity called King's ruling a disaster for rural communities, native plants and animals and all people who care about them.

"The winner in today's ruling is mindless Las Vegas growth, while biodiversity, rural residents and future generations are the clear losers," said Rob Mrowka, a Nevada-based ecologist with the Arizona-based environmental group.

White Pine County Commissioner Gary Perea said King granted far too much water to the authority, and he vowed to appeal the decision.

DEPENDENT ON RIVER

Water authority officials insist they have not committed to building the pipeline. They simply want to be ready should the need arise.

The project dates back almost 25 years to when Southern Nevada water officials filed for water rights across rural Nevada.

Back then, the pipeline was meant to supply growth in the Las Vegas Valley. Now it is being touted as a backup supply for a community that gets 90 percent of its water from an overtaxed Colorado River and a shrinking Lake Mead.

King acknowledged the need in his ruling, stating that it would "not be advisable" for the state's largest community to continue to depend on a river that is "over-appropriated, highly susceptible to drought and shortage, and almost certain to provide significantly less water to Southern Nevada in the future."

But the state engineer stopped short of giving the authority everything it asked for.

The 61,127 acre-feet of water rights he granted in Spring Valley can only be developed gradually to ensure the pumping doesn't affect existing water rights.

The authority will be allowed to pump up to 38,000 acre-feet of groundwater a year for the first eight years of the project.

After that, the annual withdrawal increases to as much as 50,000 acre-feet for the next eight years and then to the full 61,127 acre-feet a year after that.

PUMP AND SEE

King also called for at least two years of scientific data collection before any water is exported from Spring Valley or the other basins.

Also, he ordered the authority to develop state-approved groundwater flow models and a monitoring and mitigation plan to protect against harmful effects on other water users and the environment.

But rancher Hank Vogler said no amount of safeguards can protect rural Nevada once the pipeline is built and the water starts flowing south.

"I don't think there's anyone with a big enough checkbook to stop it then," said the 63-year-old Vogler, who has lived and worked in Spring Valley for almost half his life.

"No one is going to have the appetite to say, 'Oh, shucks, we made a $15 billion mistake. Let's shut it down.' "

If anything, Vogler said, the authority's pipeline network will only spread to other parts of the state as more water is needed to feed the growth that many expect to return to Las Vegas.

"I'm what I've been calling myself all along: nothing more than collateral damage," Vogler said.

According to Entsminger, drought protection remains the key reason for the pipeline, but even if Lake Mead completely refills, he said the project will still be needed for the day when Southern Nevada inevitably outgrows its current water supply.

The authority already has spent tens of millions of dollars on studies, preliminary designs and legal work. The project itself carries an uncertain and much-debated price tag ranging from $2 billion to as much as $15 billion, depending on whom you ask.

Nevada Department of Conservation and Natural Resources spokesman Bob Conrad said King would not comment on his decision because rulings from the state engineer speak for themselves.

King spent the past four months reviewing everything he read and heard during a marathon state hearing last fall that involved six weeks of testimony, 82 witnesses and tens of thousands of pages of documents.

He also waded through more than 20,000 public comments, most of them in opposition to the pipeline project, and several voluminous draft rulings penned by the authority and other major players in last year's hearing.

CRITICISM KEEPS FLOWING

The project has drawn opposition from a broad coalition of rural residents, ranchers, farmers, environmentalists, hunters and fishing enthusiasts.

They warn that large-scale groundwater pumping in an already arid landscape will destroy wildlife and the livelihoods of residents as far north as Great Basin National Park, more than 300 miles from Las Vegas.

And their fight is far from over.

Opponents have 30 days to challenge King's decision in state court. Members of the Great Basin Water Network, the chief voice of opposition during last year's hearing, already have promised to appeal.

"Holding on to these water rights for 25 to 50 years without putting them to beneficial use not only flouts the prohibition against speculation in Nevada water law, but it unfairly inhibits opportunities for future growth and development in the affected basins in Lincoln and White Pine counties," said Baker businesswoman and water network member Denys Koyle in a written statement.

Federal environmental litigation may not be far behind, either.

A federal review is under way of the entire pipeline project, which could include more than 300 miles of buried pipeline, 325 miles of overhead power lines, seven electrical substations, five pumping stations, a water treatment plant and an underground storage reservoir.

Most of those facilities would be built on public land.

The U.S. Bureau of Land Management is conducting the review, now in its seventh year. A final draft is expected later this year, with a decision on whether to grant the authority a federal right of way for the project.

In June 2010, the Nevada Supreme Court found that the state engineer's office broke the law by failing to act within one year on dozens of water rights applications filed in 1989 by the Las Vegas Valley Water District.

The justices tossed out the water rights awarded to the authority in 2007 and 2008 and ordered the state engineer to hear the matter again.

Sadly for pipeline opponents, very little changed the second time around.

"It is especially heartbreaking that we learned of this decision on World Water Day, a day that is supposed to be about human needs and the environment," said Ann Brauer of Indian Springs, a Great Basin Water Network member.

"Instead, this decision, if it stands, gives a green light to SNWA to defoliate the Great Basin, destroy Native American communities, dismantle conservation programs, plant water-hungry turf, encourage unneeded development and stick the ratepayers of Clark County with a $15 billion bill."