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A legal effort to bring more water to Walker Lake will stay afloat.
In a ruling last week, a federal appellate court said Mineral County could continue to pursue its claim to require policymakers to restore the shrunken lake. It’s a major development in a case that is being closely watched by environmental groups and water users across the state.
“It’s a victory for us,” said Simeon Herskovits, an attorney representing Mineral County.
The litigation centers on the Walker River, which is fed by snowmelt from the eastern Sierra and snakes through Nevada, emptying into Walker Lake along U.S. 95, just outside of Hawthorne.
For the past century, upstream water users diverted the flow of the river for irrigation and other uses. Less and less water made it to the lake. Walker Lake began to shrink. The lake’s surface area was cut by more than half, water quality worsened and wildlife disappeared. In the 1990s, Mineral County took the issue to court, seeking a remedy to restore the lake’s surface area.
The county asserted a claim to water under a legal principle known as the “public trust doctrine,” the fundamental duty of governments to protect natural resources for future generations. But the claim put Mineral County at odds with agricultural interests in Lyon County. They worried that in carving out a sustainable flow for the lake, they would have to give up their allocations to water. Lyon County, a local irrigation district and water users battled with Mineral County in court.
How to settle Mineral County’s claim was and is an unanswered legal question. California had applied the “public trust” principle to water rights at Mono Lake about 60 miles to the west in 1983. But its applicability to water rights in Nevada remained largely undefined until last year.
In September, the Nevada Supreme Court weighed in at the request of the 9th Circuit Court of Appeals (the federal courts mostly oversee Walker River water allocations, per a 1936 decree).
The Nevada Supreme Court affirmed that the “public trust doctrine” applied to all waters of the state. But a majority of justices argued that the legal principle did not allow for the reshuffling of water rights. To some observers, the decision looked like a dead-end for Mineral County’s claim.
Case closed? Not exactly. Mineral County briefed the 9th Circuit that even though the Supreme Court shut the door on reallocating water rights, there were many alternative remedies available to fulfill the “public trust” duty recognized in Nevada. There could be efficiency improvements that bring more water to the lake. There could be changes in how water is managed. The state could lay out a plan for meeting the “public trust” duty and come up with any required funding.
Last week, a three-judge panel of the 9th Circuit agreed. Their decision keeps the “public trust” claim alive. The 9th Circuit wrote that the claim can move forward “to the extent that the County seeks remedies that would not involve reallocation of such rights.”
Now the issue will go back to the federal District Court in Reno for further litigation. In 2015, the District Court denied Mineral County’s “public trust” claim. But it will be interesting to see if that changes and how the District Court rules in light of the 9th Circuit option. In the years since 2015, all Walker Lake litigation (and there is a lot more of it) has been reassigned to a different judge.
“There will be a fair amount to be litigated in the District Court, and I'm sure the other side is not going to lay down,” Herskovits said in an interview this week.
Here’s what else I’m watching:
After the winter storm: Over the past week, much-needed precipitation swept through Nevada and California. The good news: Snow storms around Lake Tahoe and in the eastern Sierra put us on a less dire trajectory, which was trending toward record low snowpacks, according to Dan McEvoy, a researcher with the Western Regional Climate Center based in Reno. And the new snow will help buoy ski resorts and the recreation industry. The bad news: The storms over the past week, by themselves, are not enough to pull the region out of drought. According to data from the Natural Resources Conservation Service, snowpack is still below the median across much of western and northern Nevada, and precipitation remains below average. “One storm does not make a winter,” Nevada hydrologist Jeff Anderson told the Reno Gazette Journal.
- A dry Colorado River: KUNC’s Luke Runyon looks at five numbers that explain just how dry the Colorado River is and how it could inform negotiations moving forward.
Mining in a Biden administration: Last Wednesday, the Biden administration announced several executive actions aimed at addressing the climate crisis. Missing from the executive orders was any conversation about how the Biden administration might address mining on federal land. As the administration rolled out its climate agenda, Biden’s appointee to lead the Department of Energy, Jennifer Granholm, was testifying before Congress. Alexander Kaufman with the Huffington Post covered what she had to say about mining. This story is worth reading.
- Raising the mining tax: Nevada Independent columnist John L. Smith discussed the politics and dynamics around efforts to increase the mining tax on KNPR this week.
Transitioning from a renewable portfolio standard: Senator Chris Brooks (D-Las Vegas) outlined an energy omnibus bill during a public Zoom event hosted by the Nevada Conservation League this week. Gov. Steve Sisolak called out the legislation in his State of the State address.
- According to the Sierra Nevada Ally, Brooks said: “In it (the omnibus energy bill), we have electric vehicle charging infrastructure plans. And it will have an alignment of our IRP process, integrated resource planning for the electric utilities. It will have that aligned with our carbon reduction goals. So it won’t just be the renewable portfolio standard anymore that is guiding how we invest in clean energy in the state.”
Federal agency puts Steamboat Ditch project on hold: “Planning for a controversial project that would potentially pipe Reno’s Steamboat Ditch has been put on hold,” the Reno Gazette Journal’s Amy Alonzo reported this week. “Public outcry over the project, which largely flew under the radar until early January, was substantial – Reno-area residents submitted roughly 1,500 emails and 150 voicemails regarding the project, as well as a handful of letters.”
Water for sale: The situation is similar everywhere, even if the details vary from place to place. Across the West, investors are looking for ways to make a profit on the scarcity of water amid growing demands, especially from growing cities. The Arizona Republic’s Ian James provides an update on a case in Arizona where an investor is looking to sell water to a Phoenix suburb.