By Abby Johnson
A small but powerful cluster wants big changes to Nevada water law this legislative session. A hearing this week will shine a light on the dangerous proposals pitching “modernizations” and “fixes” for an old system known as prior appropriation.
Sounds harmless, right? Don’t let the friendly language fool you.
From ranchers to environmentalists, there is a consensus that we don’t need to fix what isn’t broken. Nevada water law has served Nevadans well for more than 100 years and continues to serve the public interest. That success, however, has stymied a select few.
Real estate developers and government entities such as the Southern Nevada Water Authority have not had much luck in recent years getting what they want under the current legal and regulatory framework. Why? Because what they want is to facilitate unsustainable over-pumping of the state’s fragile, limited groundwater resources. Behind the scenes and in the Legislature they are working hard to change the law to enable projects like SNWA’s 300-mile, $15.5 billion pipeline to Eastern Nevada.
The problem –– for all of us –– is that they want water that either doesn’t exist or already belongs to someone else.
In order to protect Nevada’s water future, we must be wary of this attempt to tar our existing system as ineffectual and outdated. The truth is, existing Nevada water law is one of the most progressive and protective of the public interest in the West.
In particular, AB30 and AB51, two bills designed to upend longstanding pillars of Nevada water law, would do much more harm than good. These bills attack the doctrine of prior appropriation, which guarantees that those who have senior rights to use ground or surface water are protected from those who come later and are granted junior rights to water from the same aquifer or river.
AB30 and AB51 provide no long-term due process protections for senior water rights holders and would pull the rug out from under the current water law’s protections for the public interest and the environment, jeopardizing the long-term well-being of our flora, fauna, and rural communities in the State. The legislation would provide Nevada’s top water regulator, the state engineer, with czar-like powers to unilaterally choose winners and losers without regard to senior water rights holders’ existing property rights. The bills also would allow deep-pocketed junior water rights holders to outspend and outmuscle Nevadans with senior rights who are harmed by those with junior rights. So, under AB30 and AB51 the state engineer would be encouraged to adopt a new approach to water rights management that is prone to result in unconstitutional takings of senior water rights holders’ property rights, which would mire Nevada water rights owners and the state government in complex and unpredictable litigation for years.
The legislation also would authorize the state engineer to mend any harms or conflicts caused by junior water rights holders with monetary payments, the promise to provide water from somewhere else, or a tax on junior water rights holders. Those limited remedies offer no assurance that senior water rights holders’ livelihoods (such as ranching and farming) won’t be devastated or that precious environmental resources won’t be destroyed. Money and power should not determine how Nevadans access water and protect those precious resources in the desert.
If water officials and business interests were serious about making sound updates to our law, they would not be disguising their tactics for facilitating more unsustainable water grabs as a new kind of responsible management. An astounding one-third of Nevada’s hydrologic basins are at 100 percent capacity or over-appropriated but these bills will do nothing to solve that problem.
Instead of weakening our laws under the guise of modernization, we must change the way we think about how we appropriate and consume water in the arid, drought-stricken West to ensure that the public interest and the long-term viability of that limited resource is protected. Finally, we must be careful not to take justifications for changes to current water law at face value. We must dig deeper to ensure that any proposed changes truly are in the public interest –– not the financial interest of a select few.
Abby Johnson is president of Great Basin Water Network, which opposes the Las Vegas pipeline project.