The Nevada Supreme Court has created a Commission to Study the Adjudication of Water Law Cases to improve the education, training, specialization, timeliness, and efficiency of Nevada’s district court in the judicial review of water cases. According to Chief Justice James W. Hardesty, the Commission does not rewrite water law. The primary purpose is to consider processes by which we (The Courts) adjudicate water rights effectively, timely, and efficiently. However, he added an issue might go to the courts if necessary.
Adam Sullivan, the acting state engineer for the Nevada Division of Water Resources (NDWR), told those attending the Commission’s first meeting on April 16 that “Increased development and competing demands put pressure on water security across the state. As we grow and diversify, water demands evolve and generally increase, but the supply is limited, he said. Supply vs. demand issues inherently creates conflict, and our water laws have limited tools for how to manage those conflicts,” he added.
Sullivan pointed out that about 2/3 of Nevada’s surface water goes for irrigation, about 15 percent for municipal use, and about 19 percent for wildlife and recreation, including evapotranspiration. And about 2/3 of Nevada’s groundwater goes for irrigation, while 10 percent goes for municipal use and another 10 percent for mining and a smaller fraction for other use, he added. Sullivan pointed out that historically groundwater is administrated separately through an annual water budget. While the groundwater budget is a valuable measure, ground and surface water are connected, and measuring them separating does not show where the problems are.
The acting chief engineer argued that over appropriation varies among basins, adding that prior appropriations can be lost or forfeited if unused. However, he noted that the Court’s view of private property protections makes them hesitant to uphold such penalties, thus compounding decisions concerning water availability based upon U.S. Geological Survey (USGS) studies. Sullivan said that while original USGS studies are 50 to 70 years old, they often remain accurate. And today, he said, we have a lot more data and computing powers to update and verify these older studies adding, “I want to be accurate because of the increasing water demand. We are doing this on a long-term basis.”
Rising temperatures create shortage impacts, especially in agriculture areas, Sullivan said. However, large metropolitan areas seem to manage those shortages, but he cautioned that increased development puts increased demands on limited supply. Nevada is a prior appropriation state, which negatively impacts junior appropriators, he noted.
The Chief Justice pointed to the Nevada Supreme Court’s adoption of rules on criminal law to fill huge gaps in several areas as a model for potential Commission work. The Commission, he argued, could get into the touchy areas dealing with water law management and adjudication. He asked Sullivan to develop a memo or descriptions of cases and statutes in which the decisions and responsibilities of the state engineers have come in conflict for the Commission to review.
In representing rural counties, Oscar Wichman suggested creating a specialized court system divided up to seven districts with lifetime appointments for judges assigned by the Supreme Court. Mining attorney Ross de Lipkau similarly suggested the Supreme Court appoint a few district courts judges to hear all water-related cases.
“We have a system that guarantees local representation while not perfect,” said Kyle Roerink, executive director of the Great Basin Water Network and commission member, adding that it is essential to maintain
Chief Justice James Hardesty announced that the following members to the Commission, effective immediately:
- Chief Justice James W. Hardesty, Commission Chair
- Associate Chief Justice Ron Parraguirre, Supreme Court
- Micheline Fairbank, Nevada Division of Water Resources
- Jason King, Practicing Water Rights Engineer/Hydrologist
- Rick Felling, Practicing Water Rights Engineer/Hydrologist
- John Entsminger, Urban Municipal Water Purveyor
- John R. Zimmerman, Esq., Rural Municipal Water Purveyor
- Laura Schroeder, Esq., Rural Water Interests/Water District
- Bevan Lister, Agricultural
- Tom Baker, Agricultural
- Rusty Jardine, Esp., Irrigation Districts
- Bert Bryan, Irrigation Districts
- Ross de Lipkau, Esp., Mining
- Allen Biaggi, Mining
- Kyle Roerink, Environmental/NGOs
- Karen Peterson, Esq., Practicing Water Rights Attorney/Rural Counties
- Oscar (Oz) Wichman, Rural Counites
- Christopher W. Mixson, Esq., Practicing Water Law Attorney
- Paul G. Taggart Esq., Practicing Water Rights Attorney/Domestic Wells
- Gordon H. DePaoli, Esq., Practicing Water Law Attorney
- Judge Kathleen Drakulich, Washoe County
- Judge John P. Schlegelmilch, Lyon County
- Judge Gary Fairman, White Pine County
The following meetings are scheduled for 1 p.m. on June 25 and again on August 27.
The latest case involving water adjudication came before the Nevada Supreme Court in MINERAL COUNTY, et al., Appellants. vs. LYON COUNTY; CENTENNIAL LIVESTOCK; BRIDGEPORT RANCHERS; SCHROEDER GROUP; WALKER RIVER IRRIGATION DISTRICT; STATE OF NEVADA DEPARTMENT OF WILDLIFE; AND COUNTY OF MONO, CALIFORNIA.
After hearing oral arguments in that case, on September 17, the Court ruled that the public trust doctrine is embedded in current water law. Further, they disallowed the relocation of adjudicated water rights for anything other than its intended purpose.
Sullivan addressed management difficulties inherent in the separation between administrating groundwater through an annual water budget and surface water. He did not mention that On June 9, 2017, Nevada Governor Brian Sandoval, R, for the Nevada legislature addressed that issue. He signed into law Senate Bill 47 (NRS 533.024). That legislation required the State Water Engineer to prepare a “water budget” for groundwater and manage that water source “conjunctively” with surface water.
Further, in 2019, Governor Steve Sisolak, D, signed into law SB150 requiring a county or city government to develop a water resource plan that contains an analysis of existing water demand in the community. Under SB150, water demand projects require a look at projected growth. If correctly done, projected growth statistics consider birth and death rates and factor in economic impacts such as recessions and pandemics.
View more information about the Commission to Study Water Adjudication Law Cases on the Nevada Supreme Court’s website at: https://nvcourts.gov/AOC/Committees_and_Commissions/Water_Law/Overview/