Aiming to protect long-held water rights and an endangered fish, state regulators released a draft order at the end of September to prevent over-pumping in six connected aquifers from the Apex Industrial Park to Coyote Springs. In that stretch of desert, water users have more rights to groundwater than can be pumped sustainably. But the problem is how to tackle the issue without infringing on other rights, and few are pleased with one of the state’s proposed fixes.

The CEO of Coyote Springs Investment, a developer continuing a decades-long effort to build a far-flung master-planned community 60 miles outside Las Vegas, called it “nothing more than a perfectly timed good old fashioned modern-day water grab.” A lawyer for the Moapa Band of Paiutes called it “unnecessary, premature, and likely to have unintended consequences.” The Moapa Valley Water District’s lawyer said the language was “ambiguous and overbroad.”

The proposed regulation caps groundwater pumping and halts new subdivisions that depend on the aquifers unless developers can prove they can import or secure water to offset the impacts of pumping. Too much groundwater pumping can dry up springs and underground aquifers.

The state engineer’s draft order

In Nevada, where rivers are scarce, many businesses and towns pump water from underground aquifers. To do so requires a water right from the state engineer, Nevada’s top water regulator.

But there’s a catch. Since the 1900s, Nevada regulators have issued about four times as many rights as they believe can be pumped from the area’s aquifers (this type of over-appropriation is not rare). If everyone uses their water right, they could dry up the already dry area.

“It is believed that only a very small portion of the existing rights within the [system] may be pumped without adversely impacting the senior rights on the Muddy River or the habitat of the Moapa dace,” Jason King, the current state engineer, wrote in the draft regulation.

As a result, the draft order limits pumping to 9,318 acre-feet, a unit that describes the amount of water that can fill an acre to a depth of one foot. That is the average pumpage over the past three years, a small fraction of the roughly 40,000 acre-feet that water users have a right to pump.

The order’s goal is to protect users with high-priority water rights. Western water law revolves around the principle of “first in time, first in right” — whoever has the oldest claim to water, gets priority to it in times of scarcity or during a conflict with other users. It is also intended to protect the Moapa dace, an endangered species that persists in groundwater-fed springs and the Muddy River, a small tributary of the Colorado River. Too much pumping could lower water levels in both.

In addition, the draft order would place an indefinite halt on the approval of subdivision maps unless a developer can identify an additional source of water, arguing that developing land with a water right that could be curtailed in the future should be “examined with great caution.”

Coyote Springs wants to build homes

That’s an issue for many water users, but a notable one for Coyote Springs, which operates a golf course in Moapa. Coyote Springs Investment has long wanted to build homes around it, thousands of residences on undeveloped desert an hour commute from downtown Las Vegas.

“Our visceral reaction to this situation is that this is nothing more than a perfectly timed good old fashioned modern-day water grab now that our project is at a point to start building homes,” Emilia Cargill, the CEO of Coyote Springs Investment, wrote in an email.

Over the last two years, Coyote Springs began to lay the foundation for future development. It submitted water infrastructure plans to the Las Vegas Valley Water District, its purveyor through a General Improvement District. But the district had some concerns. Past orders from the state engineer — and subsequent aquifer testing — had suggested there might not be enough water for Coyote Springs to build without harming higher-priority users or the endangered Moapa dace.

After urging Coyote Springs to find alternate water sources, the water district appealed to the state engineer, asking if he would, at that point, approve their subdivision maps. In May, he told them no.

Coyote Springs took the state engineer to court. That case was settled in August after the state engineer agreed to rescind the May letter and Coyote Springs agreed to participate in good-faith efforts to manage the groundwater basins. Coyote Springs has since sued the water district.

Starting in July, water users in the Moapa area, including Coyote Springs, began participating in a workshop about how to address the issue of excess rights in the basin. The draft order came out of that process. In a letter submitted this month, a lawyer for Coyote Springs slammed the draft order process, saying that there was not enough time to review the proposal. For months, Coyote Springs has argued that there is not enough scientific data to justify the cap on pumping.

“The draft order prematurely and primarily harms one water right user,” the lawyer wrote.

But the state engineer has argued in public workshops that there is enough evidence to support the order. Pump tests have shown that there is a “direct interrelationship” between pumping and declines in water levels. For instance, a two-year pumping test that was completed in 2012 led to “unprecedented declines in groundwater levels and flows” in two springs, the state engineer wrote in the draft order. Those springs, he argued, are reflective of the Muddy River’s health.

Concerns from other water users

Several water users with low-priority, or junior rights, are also seeking changes to the draft.

In public comments, an attorney for the Moapa Band of Paiutes acknowledged the difficulty of the situation and applauded the state engineer for attempting to tackle it. But the lawyer said the proposal could conflict with existing efforts to protect the Moapa dace and make its junior rights more vulnerable, forcing the tribe to initiate a long adjudication process to protect its rights.

“It appears highly unlikely that all permitted groundwater can be pumped without damage to senior rights and the Moapa dace,” the tribe’s lawyer wrote. “The tribe understands the state engineer’s interest in slowing groundwater development in the region. “Nonetheless, in the tribe’s view, entry of the draft order is necessary, premature and likely to have unintended consequences.”

Others believe that the current draft leaves too many uncertainties about whether junior rights could be developed if higher-priority water users aren’t using their full allotments. The Moapa Valley Water District is concerned its junior rights, which it is currently using, could be impaired in the name of protecting senior rights, even as senior rights holders are not pumping their allocations.

As a general principle of Western water law, known as “use it or lose it,” water rights must be put to use or the owner of the water right could risk losing it. Gregory Morrison, the district’s lawyer, argued the draft is unclear about whether the district can reliably continue pumping water.

“It needs to be addressed when a final order comes out,” Morrison said in an interview.

A longer-term plan?

The draft is just that — a draft. And there are other long-term solutions on the table. According to notes from a public workshop on Sept. 19, the state engineer’s office said “the draft order was really intended to be an order that would run in parallel with the working group’s efforts to develop an alternate long-term solution, such as a conjunctive management plan.”

A conjunctive management plan is a resource tool to manage surface water and groundwater together. Traditionally, the state has looked at streams and aquifers as separate resources. But the state engineer’s office has increasingly acknowledged that a better approach is to view them as interconnected. They are often pursued through a local process and can be tailored to the specific needs of a particular water system. In an interview with The Nevada Independent earlier this year, King, the state engineer, said he would like to see more local management plans.

“I am a big proponent of groundwater management plans that are developed by the individual water rights holders in those basins in conjunction with our office,” he said.

If an order is issued, it is possible that it would be issued temporarily, as a stopgap while water users craft a more comprehensive management plan for the six aquifers in question.

The state engineer will discuss the draft order and other solutions in Overton on Oct. 24.