2017 Legislation Sets Management Guidelines on Nevada Water

On June 9, 2017, Nevada Governor Brian Sandoval signed Senate Bill 47, which declared it a state policy to manage Nevada’s surface and groundwater resources conjunctively, and not as a separate source.

The Bill also required the State Water Engineer to prepare a reliable “water budget” inventory of groundwater in each of Nevada’s 256 water basins.

Built into the legislation is an inherent conflict that diminishes the public’s knowledge of water availability. As defined in the legislation a “Water Budget,” means groundwater in the Basins.  However, the act also requires that surface and groundwater be managed conjunctively by the State Water Engineer.

Taken literally, it could mean measuring the groundwater, but not the surface water and then attempting to manage the two without adequate metrics on the surface water.

Jason King, Nevada’s State Water Engineer, argues that a ground water budget provides the needed certainty for water availability as required by the legislature.

King testified before Nevada’s legislative Committee on Natural Resources, Agriculture, and Mining on March 14, 2017. In response to a question about perennial yield [i] based on reconnaissance reports, he said:  “.  . . Based on reconnaissance reports that the United States Geological Survey (USGS) performed in the 1950s, 1960s, and I believe most of them were done in the 1970s. I would tell you that although they are old, we found them, by and large, to be very good and to be accurate.” He continued: “We have many of those basins throughout the state where we have real live pump tests[ii] over time where we can see that those recon reports, for the most part, are good estimates of how much water is there. We have had some busts that have been identified, [iii]and we have updated many of those estimates over the past 20 years. We are always looking to update them with the latest and greatest science. I still believe that those old reports provide great value to us.” (Pg. 16 of the testimony).

Patrick Donnelly, Nevada State Director for the Center for Biological Diversity, arguing in the Snake Valley Water Grab case, says that: “Multiple courts have said there’s no way you can pump water without decimating the communities that rely upon the water in this region.  That’s almost indisputable at this point. There’s no way you can mitigate draining an aquifer of its non-renewable fossil water.”   “If you take this water out, you won’t get it back,” he says. He argues for holistic sustainability (equilibrium) approach to basin studies. That is the management of surface and groundwater conjunctively.

The state engineer has never required surface or grounds water applicants to perform an equilibrium analysis between discharge and recharge in a reasonable amount of time.

Basin 222 is the primary source of underground water taken by the Virgin Valley Water Board (VVWB) to meet population demands. The VVWB is a political subdivision of the State with the responsibility for the delivery of both the public’s surface and groundwater in their Mesquite and Bunkerville, NV. service area.  That Basin is over-allocated with permits, and its taking exceeds its perennial yield limits.

In 1968 the USGS set the perennial groundwater yield for Basin 222 at 3,600 Acre Feet Annually (AFA). The State Engineer reaffirms that amount both in their official records and in correspondence to the VVWB.

The States Hydro-graphic Area Summary shows two important numbers.  The perennial yield of 3,600 AFA and a system yield of 100,000 AFA. Under ideal conditions, the perennial yield is an effective concept. It considers how much flow is entering the system to maintain equilibrium.   The sustainable yield of 100,000 AFA is closer to the concept of conjunctively since it considered acceptable changes to the system.  It recognizes the interrelation of groundwater and limitations on surface water including Virgin River water that may flow into underground wells.  It considers the effect of pumping on timing, rates, and locations of depletion (diversions) It would also consider how much groundwater is supporting streams, springs, wetlands, and natural vegetation/habitat.  See: Limitations of perennial yield concept and principles of groundwater sustainability in Nevada. USGS, Kip K. Allander and David L. Berger, Central Nevada Water Authority, March 18, 2016, Eureka, NV. at bottom of article 

Nonetheless, the VVWB knowingly pumps 6,608 AFA or 3,008 AFA more groundwater from the Basin than the yield allows to meet a demand essentially set by the City through their permitting process.

Also, the VVWB has developed wells with a reliable yield of 13,742.82 AFA. That is 10,142.82 AFA more than the underground yield. They have proposed to the State Water Engineer to develop the 15 other underground wells near the Halfway-Wash entrance to the Virgin River. If approved, that action would exceed the perennial yield by 75,301.47 AFA (10,142.82+65,158.65). That is about 21 times the 3,600 AFA perennial yield.

When it comes to surface water, The VVWB used $12,159,670.86 of rate payer and bond funds for 4,992 AFA of public owned surface water ^[iv] to purchase Mesquite Irrigation Company (MIC) and the Bunkerville Irrigation Company (BIC) shareholder water. That water originally was part of a 17,785.50 AFA allocation granted to their ancestors under the Virgin River Decree on May 14, 1927, for irrigation of 1,630 acres of local land. That demand no longer exists in any real way. The current VVWB adds no value to that water that it leases to both locally and to that Southern Nevada Water Authority (SNWA).

The surface water held by the MIC, BIC, the VVWB, and the SNWA is Virgin River water, which is a tributary of the Colorado River. Therefore, those allocations are governed by the 1922 Colorado River Compact (also called the Law of the River). 

Under that 1922 compact, Nevadans can only take 300,000 AFA from the entire river and its tributaries.

The Southern Nevada Water Authority (SNWA), serving the greater Las Vegas Metropolitan area, reports that exceptions or adjustments to 1922 contract allow the taking of 467,661 AFA of Colorado River Water. In 2017, they took 453,835. By the end of 2018, they project taking 453,898 AFA. They project taking 464,156, in 2019, 475,777 in 2020 and 484,944 in 2021.[v] Part of those totals comes from water leased to them by the VVWB and various shareholders of MIC and BIC.

No matter how water is counted, the taking of groundwater by the VVWB exceeds the perennial yield of the local Basin 222. And, the amount of surface water allocated under the Colorado River Compact, and its exceptions, is or shortly will reach its limits through consumption by the SNWA. When the Compact limits are reached any remaining water will be legally and environmentally untouchable.    

Of course, the 1968 Basin and 1922 Compact limits assume that the amounts authorized are available. Both The Fourth National Climate Assessment and The Colorado River Water Supply and Demand Assessment raise serious doubts about continued availability.

It is now Nevada state policy for the Nevada State Water Engineer to manage surface and groundwater conjunctively. Jason King plans to retire before the 2019 legislative session begins.   It will now be up to his replacement to:

1. Enforce the 3,600 AFA perennial limits on Basin 222, until an unbiased sustainability (conjunctively) study is performed;
2. Enforce the limits on the amount of water taken from the Colorado River and its tributaries (The Virgin and Muddy Rivers);
3. Determine how much of limited Virgin River water flows into underground wells and credit that amount against the Colorado River Compact.
4. Return to the public domain any tributary water which exceeds the Colorado River limits.

The management of all the water in southern Nevada will likely need growth limits to meet both legislated limits and climate change adjustments.   

Endnotes:

[i] The amount of usable water from a groundwater aquifer that can be economically withdrawn and consumed each year for an indefinite period. It cannot exceed the natural recharge to the aquifer and ultimately is limited to maximum amount of discharge that can be utilized for beneficial use.

[ii] The Virgin Valley Water Board conducts pump tests on Basin 222, but ignore the perennial yield limits.

[iii] The perennial yield limits on Basin 222 remain unchanged at 3,600 AFA.

[iv] NV Rev Stat § 533.025 (2013) The water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public. [1:140:1913; 1919 RL p. 3225; NCL 7890]

[v] Southern Nevada water Authority 2018 Water Resource Plan & Water Budget at:  https://www.snwa.com/assets/pdf/water-resource-plan-printable.pdf