Water Connections

By

The Nevada Independent

-

December 2, 2020

Articles in this series

Part III:
Cutting Back

A speed limit sign at Coyote Springs. (Daniel Rothberg/The Nevada Independent)

By Daniel Rothberg, The Nevada Independent

Originally published September 15, 2020

COYOTE SPRING VALLEY, NEV. — Five wells punch the scorching Nevada desert.

Water in this area is locked underneath the ground. It flows silently and invisibly as part of an aquifer stretching roughly 50,000 square-miles. Much of this water collected here thousands of years ago when lakes covered most of Nevada. Now wells are summoning it for human use. The problem is there’s not enough to go around.

At the center of this tension are the five wells.

A housing developer, Coyote Springs Investment, owns four wells, planted to one day pump water for a sprawling new community in the desert, filling the highway stretch about 50 miles northeast of Las Vegas. The remaining well belongs to the Southern Nevada Water Authority.

Coyote Springs wants to pump its wells. The water authority wants to keep most of it in the ground.

The five wells mark divergent interests with a history intertwined by a similar goal: development and the need to secure the water to make it happen. But today the housing developer and the powerful water utility, locked into past contracts, are caught in a fight, playing out in hydrologic reports and hearing rooms, over what might seem a simple question: How much water is there?

That answer is complicated by how much is at stake — a Colorado River tributary, the survival of an endangered Nevada fish and the future of development in a sweeping area outside Las Vegas.

In the early 2000s, during a period of rapid growth, Southern Nevada politicians gave Coyote Springs their blessing to develop a new community, spanning two counties (Clark and Lincoln) on empty land about 50 miles outside of Las Vegas. Thousands of homes. Golfing. Shopping. Gambling. They would call the community Coyote Springs, named for the valley it occupied.

On a recent hot August morning, what was once planned as a Palm Springs in Nevada is still mostly empty. Two temporary street signs, for CS Parkway and F Street, mark an intersection that has yet to be paved. At least $200 million in infrastructure — flood control, fiber optics, a detention basin and wastewater treatment plants — lies around both sides of the highway. Most of it goes unused, with one exception: A well-manicured golf course meant to attract homebuyers.

But there are no homes. State officials won’t allow it, and it has everything to do with the wells.

In the early 2000s, during a period of rapid growth, Southern Nevada politicians gave Coyote Springs their blessing to develop a new community, spanning two counties (Clark and Lincoln) on empty land about 50 miles outside of Las Vegas. Thousands of homes. Golfing. Shopping. Gambling. They would call the community Coyote Springs, named for the valley it occupied.

There was a time, not long ago, when all the political juice appeared to be flowing to Coyote Springs. Then it slowed to a trickle. Political momentum only gets you so far where water is scarce — and Las Vegas has its supply on the line. At least that’s how Coyote Springs sees it.

“Someone doesn’t want us to develop,” says Emilia Cargill, chief operating officer for Coyote Springs Investment. “How do you stop someone from developing? You take their water away.”

In the past two years, Coyote Springs has taken the issue to court. In 2018, it sued an arm of the water authority with claims including slander and breach of contract. It has sued the state twice. In August, Coyote Springs accused state officials of taking their property: the right to use their water.

The fight over Coyote Springs is about the collision of water, science and politics. And it reflects a broader tension facing Nevada and the modern West, a reckoning with a past in which water officials handed out legal rights to use an unsustainable amount of water: first come, first serve.

In Nevada and elsewhere, the problem is made more severe because the law developed to view rivers and groundwater as separate stores of water, despite generations of science and observations showing that the two often act as one. In places like Coyote Spring Valley, this paradigm led past officials to overestimate the amount of water rights available to hand out.

Nevada’s water statutes follow a similar framework used across the West. That framework is meant to settle disputes, inevitable in a region where aridity is its defining character. Yet state regulators often face serious barriers to enforcing the rulebook in a manner that is cut-and-dry.

The fight over Coyote Springs is about the collision of water, science and politics. And it reflects a broader tension facing Nevada and the modern West, a reckoning with a past in which water officials handed out legal rights to use an unsustainable amount of water: first come, first serve.

Today regulators recognize the issue, and they are trying to tackle the problem.

But the solutions are challenging and even collaborative deals to rein in overuse end up in court. Local judges weigh in, then many decisions are appealed to the Nevada Supreme Court, which often has the final say. Every watershed is different. Yet the future, in most cases, looks similar.

Someone is going to get less water than once promised.

*The Muddy River Springs area from State Route 168 on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)*

Warm springs, hot drought

Drive a dozen miles away from Coyote Springs and the landscape changes dramatically. State Route 168 sits on top of the expansive aquifer. At first, this stretch of highway looks like the rest of the desert. It’s hot. There’s not much water. Then you arrive at the Muddy River Springs area.

The creosote bushes and prickly desert vegetation give way to palm trees and honey mesquite as groundwater discharges into a series of springs, enough to create a small river in the desert.

The narrow Muddy River flows beside rural communities, a former coal plant and agricultural operations, before joining with the Colorado River and emptying into Lake Mead, which stores water for sprawling cities, farms and businesses in Arizona, California, Nevada and Mexico.

The water authority owns or leases the rights to most of the Muddy River. Officials store that water in Lake Mead, making this humble tributary a critical part of Las Vegas’ water portfolio.

“The water that we use on both the Muddy and Virgin River to [store] in Lake Mead is probably, next to our Colorado River allocation, the most important allocation of water that we have,” says Colby Pellegrino, who serves as the water authority’s deputy general manager for resources.

Because groundwater feeds the Muddy River, the river’s flows are modeled to decrease as more wells are turned on and an increasing amount of water is pumped out of the ground.

Different hydrologists offer different models for this behavior. But enough is known about the hydrology that state officials ruled in June that there was a significant degree of connection: When too much groundwater is pumped up, less water makes it to the springs and the river.

The dispute is over how much is too much.

And the fear is once Coyote Springs and other groundwater users crank up the spigot, it could one day leave Las Vegas with less water, despite having rights that were issued prior to 1920.

Groundwater pumping at Coyote Spring Valley is not the only threat. Other interests, including the Moapa Valley Band of Paiutes, the Moapa Valley Water District, the Mormon Church, NV Energy and the Southern Nevada Water Authority itself, have rights to capture groundwater.

Last year, the water authority argued that the area could only sustain a little more than half of what is currently used, almost one-tenth of the volume that businesses have the right to use.

Their estimate comes as the West faces a drier future. Scientists say a climate change signal is already evident in decreasing the flows of the Colorado River, the primary water source for the Las Vegas Valley. With warming temperatures, water managers in the seven states that use the Colorado River are all figuring out how to firm up existing supplies while doing more with less.

Las Vegas, with the Muddy River, is no exception.

U.S. Geological Survey instruments measure streamflow in the Warm Springs area. (Jeff Scheid/The Nevada Independent)

*The endangered Moapa dace (U.S. Fish and Wildlife Service)*

*A diver counts the Moapa dace population. (U.S. Fish and Wildlife Service)*

In the Muddy River Springs area, palm trees provide a respite from the summer heat. As Patrick Donnelly, the state director for the Center for Biological Diversity, comments on the unique smell of a riparian area in the desert, he has his eyes on another pressing concern.

Each year, divers put on snorkels, enter the protected springs and assess the health of the dace habitat. In August, divers reported a 78 percent increase from last year, a jump to 2,342 dace.

But Donnelly, the water authority and federal wildlife managers are still worried that additional groundwater pumping would reverse gains made through habitat restoration at the springs. And there is evidence to back up their claims.

Increased groundwater pumping during a stress test in the mid-2010s led to a decline in several high elevation springs, according to streamflow and pumping data. Drawing on that data, the U.S. Department of Interior concluded in 2013 that at least two springs could dry up within three years if higher levels of pumping were to continue.

“This is your ultimate example of surface and groundwater as the same resource.”
– Patrick Donnelly, Center for Biological Diversity

“The spring levels went down with the pumping,” Donnelly said. “And they haven’t recovered.”

“This is your ultimate example of surface and groundwater as the same resource,” he added.

Reversal of fortune

Golf carts sit in a neat row at the parking lot for Coyote Springs. Military jets from the Air Force’s Nevada Test and Training Range, tucked behind the mountains, can be heard circling nearby. The $40 million golf course, a splash of green in the desert, was built to attract homebuyers.

Behind the golf carts is a pro shop, and behind the pro shop is Cargill’s office. On one wall is a map of groundwater in the region (all flows point to Lake Mead). And taped to Cargill’s computer is a section from a ruling issued by Nevada’s top water regulator (why they can’t build homes).

“It’s all flowing down to Lake Mead,” Cargill says, nodding to the annotated map posted to a wall. “And who benefits from water going into Lake Mead? Southern Nevada Water Authority.”

Coyote Springs believes there are a few geologic caveats to that flow pattern.

In preparation for a hearing last year, Coyote Springs commissioned a geophysics consultant to study the geology within the aquifer. The analysis argues that geologic structures on the west side of the valley trap water. The finding, Coyote Springs asserts, means that they can pump groundwater without it directly affecting the springs. Simply put, there is water to build homes.

Many models show the aquifer, known as the Lower White River Flow System, behaving as a “bathtub:” If you remove one gallon of water in one area, you leave the whole aquifer with less. That is, if you pump water at Coyote Springs, you are likely to affect surface water miles away.

“Our argument is that that’s not true — that there are a lot of places where there are faults or slips or strikes underground,” Cargill said, noting the visible geologic formations in the valley.

Men ride a cart while golfing at Coyote Springs, located 55 miles northeast of Las Vegas, on Tuesday, July 10, 2018. Nevada’s top water regulator is blocking the development because there may not be enough ground water to support it. (Jeff Scheid/The Nevada Independent)

Still, enough is known about the aquifer that Nevada’s top water official, State Engineer Tim Wilson, ruled in June that the “best available data” did not support Coyote Springs assertion, even if geologic variations exist. Two days later, Wilson’s office again denied its plans to build.

In August, Coyote Springs sued the state, alleging that the state engineer’s office made a series of decisions that resulted in an “unconstitutional taking” of the water rights it needs to develop. The court filing said the state’s own science supported more groundwater pumping in the area.

Over the past year, it has accused local agencies, which once helped move the project forward, of doing the same. The fight is no longer only about hydrologic modeling. It is also about politics.

As the water purveyor for Coyote Springs, top officials at the water authority, in addition to the Clark County Commission, carry legal sway over whether homebuilding can move forward.

Past Clark County Commissions supported the project, approving a development agreement and entitlements throughout the past two decades. In 2018, the County Commission, then chaired by Gov. Steve Sisolak, approved a zoning change and tentative map for 575 single family lots. Former Sen. Richard Bryan represented Coyote Springs before the commission.

At the time, county attorney Robert Warhola said the approval was “not going to go anywhere unless they resolve the water issue.” State water officials would still have to sign off on the plan.

Today Clark County appears to be backing away. In January, county officials started a process to acquire Coyote Springs’ land, according to records requested by The Nevada Independent.

Coyote Springs overlaps with critical habitat for the Mojave desert tortoise. Because the Mojave desert tortoise is listed as threatened under the Endangered Species Act, the county is required to offset — or conserve — a certain amount of acreage in order to permit new development. As Las Vegas looks to expand along the I-15 to California, it needs to protect more tortoise habitat. In Coyote Springs, the county believed it had a willing seller.

An acquisition of Coyote Springs would also be a win for conservationists, too. Since the project was first proposed, groups, including the Sierra Club, have raised concerns that a faraway community would affect air quality, increase vehicle emissions and encourage sprawl.

According to a draft proposal, the acquisition was part of a phased approach to buy land from Coyote Springs and move development plans away from building a sprawling town 50 miles away, one that might conflict with the Air Force’s operations.

The acquisition would effectively unwind development plans that had originally been pushed by one of the state’s most powerful lobbyists, Harvey Whittemore, and supported by some of the state’s top politicians, including former Senate Majority Leader Harry Reid. Whittemore was imprisoned in 2014 for giving illegal campaign contributions to Reid, allegations stemming from a legal feud with his former business partners, Bay Area developers Thomas Seeno and Albert Seeno Jr.

Former Clark County Commissioner Chris Giunchigliani was the only vote against the zoning change and tentative map in 2018. Coyote Springs, she said, offers insight into how developers could push forward a project without the commission weighing the long-term impacts, especially in the boom years.

“It’s a perfect example of bad public policy being advanced just because we knew someone,” said Giunchigliani, who was elected to the commission in 2006 after serving in the Legislature.

In April, the proposed acquisition appeared on a draft agenda for the County Commission’s approval. The item proposed acquiring roughly 6,900 acres of Coyote Springs’ land, with the Air Force, for about $35 million. Then the item was abruptly taken off the agenda. Cargill sent a letter to Marci Henson, director of the Clark County Department of Environment and Sustainability denying the county’s offer.

Cargill wrote that there was “significant disagreement” over the proposed acquisition, including the valuation and a disregard for development rights issued by the county.

Coyote Springs, Cargill writes in the letter, was “gravely concerned” that entities, including the state engineer, the Las Vegas Valley Water District, the Southern Nevada Water Authority and Clark County, “have, and continue to, individually and collectively, take actions in bad faith” to stop the development, drive down the market price and effectively “take” away their property.

In an emailed reply, Henson said she was “surprised by the letter,” writing that the “tone and content bear no relationship to our previous discussions and communications. ”As part of the email chain requested by The Nevada Independent, Henson said Coyote Springs had not been “truthful” about being a willing seller. In response, Cargill wrote that the developers “take offense with Clark County’s assertion.” She then said the county had not been “forthright” either.

A view of Hoover Dam is seen from the Mike O’Callaghan/Pat Tillman Memorial Bridge on Wednesday, Aug. 28, 2018. (Jeff Scheid/The Nevada Independent)

Divergent interests

The proposed acquisition was not only about the land. It was also about the water.

According to a draft of the county’s proposed acquisition, the water authority expressed interest in buying Coyote Springs water rights to protect the Moapa dace. Such a move would eliminate increased groundwater pumping, a threat to surface water: the springs and the river.

Where the groundwater gives way to springs, Coyote Springs and the Southern Nevada Water Authority’s interests part ways. Coyote Springs is still focused on pumping more groundwater. Today the water authority is focused on maintaining the flows of the Muddy River, where it owns and leases rights to water — water that is stored in Lake Mead.

The water authority is also invested in the Moapa dace’s recovery. Reliant on steady spring flow, the two-inch fish is considered an indicator species for the watershed’s overall health.

“We as water managers know that if you have an endangered species issue, you have a water supply issue if that endangered species is using the same source of supply as you are,” Pellegrino said.

For years, Southern Nevada politicians, the water authority and Coyote Springs appeared to be working hand-in-hand on developing Las Vegas, the water wells and securing water to construct new homes in the fast-growing region. In the 1990s, the water authority even purchased millions of gallons in water rights from Coyote Springs to augment its relatively small Colorado River allocation.

“When Coyote Springs was a big issue — or expected to set the world on its ear — two things were going on,” said Michael Green, an associate history professor at UNLV who has studied the development of southern Nevada. “One was that the [housing] boom seemed constant.”

The other had to do with different attitudes about the limits on water.

“We know more about the trends in water availability than we did 25 years ago,” he said. “The thought that we have the water or we can get the water was in people’s minds.”

In the 1980s, Las Vegas officials placed their bets on groundwater in the Coyote Spring Valley. At the time, the land belonged to Aerojet, an aerospace company that wanted to test rockets.

“We were going to buy all of Aerojet,” said Pat Mulroy, who played a key role in the agreements and deals involving Coyote Springs as the water authority’s former general manager. “We were going to buy the whole thing, kit and caboodle.”

But everyone’s bets on groundwater in the valley were off; the sustainable supply was small.

As the groundwater showed its limits, the water authority turned to surface water on the Muddy River, acquiring water rights through purchases or leases.

For Coyote Springs, this created an inevitable conflict.

As their water purveyor, Las Vegas officials were charged with deciding whether Coyote Springs could pump its water. At the same time, they have a stake in seeing less pumping, not more, to protect the groundwater-fed flows of the Muddy River.

Since 2017, the water authority — along with state officials — have raised concerns about Coyote Springs’ efforts to use its water rights. Las Vegas water officials contend that the responsible choice, as a water provider, was to take action before Coyote Springs built homes, given the ongoing concerns about groundwater use.

But Cargill said that the water authority is “conflicted” between its multiple roles. She added that state and local agencies should have considered the water scarcity issues before entitling the project, a process that gave the developers the belief that they were allowed to build.

“We had entitlements,” Cargill said. “We had permissions to build. That’s why we bought the water. That’s why we bought the land. That’s why we spent the money. We wouldn’t have spent what we’ve spent and continue to spend on a daily basis if we hadn’t had assurances that we were going to be able to develop.”

Timeline of Recent Issues

April 2017: The Las Vegas Valley Water District expresses concern that “any substantial volume of water” running through Coyote Springs’ wells could impair spring flow for the Moapa dace and Muddy River rights, most of which the water authority owns or leases. Water authority officials brought their concerns to Nevada’s top water official, the state engineer.

May 2018: Albert Seeno III, a Bay Area and Reno developer behind Coyote Springs, became personally involved, talking to then-State Engineer Jason King. According to Coyote Springs lawyers, King told Seeno “not to spend one dollar more on the Coyote Springs Development Project and that processing of [its development] maps had stopped.”

September 2018: Per a court settlement, King conditionally approved subdivision maps if Coyote Springs could prove that the groundwater could be pumped sustainably.
September-October 2019: The state engineer held hearings on the hydrology of the area after water users in the region submitted exhaustive hydrologic reports and modeling.

June 2020: After a new order on the issue, declaring that the region had less available groundwater than once previously thought, the state again recommended denial of development maps.

Records show that the limits to groundwater supply were well-established. For this reason, Wilson, the state engineer, as well as other water authority officials, have dismissed claims that Coyote Springs was short-changed or not informed of the scarcity issues in the area.

“The water issues out there had been known for a very long time,” Wilson said.

Over the years, as Coyote Springs progressed through the local planning process, developers were warned repeatedly, Mulroy said. But they remained convinced the water was there. If Coyote Springs wants to develop today, “they’re going to have to bring water in from somewhere,” Mulroy added.

The Southern Nevada Water Authority’s MX-5 well and associated facilities in Coyote Spring Valley on Aug. 13, 2020. The well is named for when the federal government sought this land for its MX Missile Program. (Jeff Scheid/The Nevada Independent)

A long path forward

The fight over water at Coyote Spring Valley is long from over.

In June, the state engineer’s office issued an order capping regional groundwater pumping at 8,000 acre-feet (an agricultural term describing the amount of water that can fill one acre to a depth of one foot). It’s twice the cap that the water authority had hoped for, but it’s far less than the roughly 30,000 acre-feet that Coyote Springs had suggested was available.

The cap means that the vast majority of groundwater rights in the area — about 31,000 acre-feet — are going to have to be restrained. The question now is how to do that equitably.

A large amount of water in the Muddy River watershed is controlled by the Moapa Valley Water District, which provides service to the Moapa Valley Band of Paiutes and two rural communities.

Should water used to serve existing communities be prioritized?

The path toward a resolution to decide who can use their groundwater — when, where and how much — reflects a complicated future, not only for Coyote Springs but in areas across Nevada, where past state officials routinely issued more water on paper than there is water to go around.

Correcting this problem is challenging. Decisions to appropriate, and over-appropriate, water were made decades ago. State officials did not always incorporate the same values, especially around protecting the environment, that policymakers consider now. And to fix the issue, regulators are constrained by a system of agreements, entitlements and plans that were approved in the past.

The path toward a resolution to decide who can use their groundwater — when, where and how much — reflects a complicated future, not only for Coyote Springs but in areas across Nevada, where past state officials routinely issued more water on paper than there is water to go around.

The state engineer’s order recognizes the connection between groundwater and surface water, and it proposes an approach that aims to look at the whole puzzle, not just the puzzle pieces.

But nearly everyone involved in the area found something to disagree with. At least ten water users — companies and government agencies — are participating in a judicial review in Las Vegas district court.

“I don’t think the litigation’s ending any time soon,” Pellegrino said.

Pellegrino’s hope, though, is that litigation will yield to collaboration. As an example, she cited the Colorado River, where water users with competing interests and constituencies have opted to enter into collaborative agreements rather than gamble on the results of a lengthy fight in court.

“There is a path forward for the people who are using water [and] for the people who have water to come together, kind of like we do on the Colorado River, and say ‘Now that we know what the quantity of water is that we’re working with, how are we going to make this work,’” she said.

*Emilia Cargill outside of the Coyote Springs Golf Club on Aug. 12, 2020. (Daniel Rothberg/The Nevada Independent)*

*Water infrastructure built at Coyote Springs to prepare for building homes. (Daniel Rothberg/The Nevada Independent)*

*A road sign advertising the Coyote Springs Golf Club. (Jeff Scheid/The Nevada Independent)*

As the court battles continue, Coyote Springs remains focused on building homes.

“That’s what we do as a company,” Cargill said. “We’re not in the business of running golf courses. That’s not what we do. We’re not in the business of running a tortoise habitat. That’s not what we do. We build homes. We build communities. We build infrastructure. We build shopping centers. That’s what we do as a company. We run casinos. That’s what we do.”

And Coyote Springs has more rights to water. The groundwater is not its only source. About one hundred miles to the northeast, Coyote Springs owns ranches in Lake Valley near the small town of Pioche.

In December 2008, the state engineer approved a plan allowing Coyote Springs to export a portion of its ranch-water to the new desert community. Although the state’s order placed limits on the exportation proposal, it allowed for piping 11,300 acre-feet of water, enough water to supply tens of thousands of new homes.

But “that water wasn’t intended to be the first water used,” Cargill said.

“That water was intended to be the next water used,” she added.

Any such effort to import the Lake Valley water would be years away, requiring new permits and adding significant costs.

Yet even in Lake Valley, more than a hundred miles away from Las Vegas, the future is complicated by the past. The water authority has its own storied presence in this area.

Starting in 1989, Las Vegas water officials filed for groundwater rights and purchased ranches in eastern Nevada with the goal of building a roughly 250-mile pipeline that could supplement its Colorado River supply. Coyote Springs and the water authority even have overlapping grazing permits.

In 2008, Coyote Springs testified that its plan was to import its Lake Valley water through the Las Vegas pipeline. But after years of pushback from rural communities, tribes and environmentalists, the water authority shelved its plans for the pipeline this year, another setback for Coyote Springs.

Still, when asked if Coyote Springs was looking at Lake Valley, Cargill replied: “One fight at a time.”

Part II of this series, “New Rules,” focuses on how the problem developed and future fixes. This story was supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

Articles in this series

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

New Rules

By

The Nevada Independent

-

December 2, 2020

Articles in this series

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

*Joe Davis, general manager of the Moapa Valley Water District, standing on top of a diversion dam that redirects the Muddy River on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)*

By Daniel Rothberg, The Nevada Independent

Originally published October 4, 2020

OVERTON, Nev. — More than three decades ago, Joe Davis landed a part-time job installing pipes for the Moapa Valley Water District. When he took the job, his grandfather gave him a piece of advice: “Keep your nose clean and do anything you are asked.” Davis followed it.

His responsibilities soon included waking up early every Tuesday morning to buck hay for the district’s general manager, who would sell the bales in Las Vegas and return to town with pipe.

“On the way back,” Davis said, “that’s when he would pick up pipe for the community.”

Overton sits in the Moapa Valley, one of only a few rural farming areas left in Clark County, the state’s most populous county. Irrigation ditches line the road, built to serve the agricultural fields that are tucked behind homes, gas stations and stores. Alongside the town, the groundwater-fed Muddy River flows through a narrow channel toward Lake Mead, about a dozen miles away.

The Muddy River is the valley’s lifeblood, and it’s at risk.

In this area of Clark County, businesses, developers and local governments have state permits to pump large amounts of water from the ground. But using all the permitted water could cause the Muddy River to eventually shrink, dry up springs and leave long-term ecological damage.

In the area that the Moapa Valley Water District serves, water users are facing an uncomfortable future: People are going to have to use less water than they were once promised. Over the last century, state regulators handed out more groundwater rights than there was water available. Today state officials say that only a fraction of those rights can be used, which could mean cuts.

“We’ve reached the conclusion that there really isn’t as much water as we thought,” Davis said.

The situation playing out along the Muddy River is not unique across the Southwest and in the Colorado River Basin. As climate change and overuse reduce water supplies, the gap between “paper water” (the legal right to use water) and “actual water” (what’s available) is widening.

Dozens of groundwater basins in Nevada are over-appropriated, meaning there are more rights to water than there is water to go around. Starting next week, state water officials plan to hold a dozen hearings across rural Nevada on a flurry of more than 50 proposed orders meant to stop this issue from getting worse, designating numerous areas as needing additional management.

The situation playing out along the Muddy River is not unique across the Southwest and in the Colorado River Basin. As climate change and overuse reduce water supplies, the gap between “paper water” (the legal right to use water) and “actual water” (what’s available) is widening.

By appropriating so many water rights, many view the state as being at fault, issuing too many rights in a rush to develop. Others say regulators did the best they could with the data they had at the time. Science has evolved to better estimate groundwater availability, and water rights are not always guaranteed. In the West, most rights can be cutoff in times of scarcity or shortage.

In the years since he took the job laying pipe, Davis has worked his way up through the ranks to become the Moapa Valley Water District’s general manager. His job depends as much on a technical background as it does on a strong knowledge of a place and its people.

Overton, where the district is headquartered, is still a small community. The district serves about 8,500 residents over a 79 square-mile area that includes the Moapa River Indian Reservation.

Driving through the district’s service territory on a hot August morning, Davis stops to wave at customers and friends. He believes existing communities should be guarded against any drastic cuts.

Under a strict reading of Nevada water law, the district is at risk of seeing its groundwater rights cut off. It could pursue alternative supplies, but that’s a costly proposition for a small operation.

“I’m not asking for the moon,” Davis said. “I’m using this amount of water, and I know I need to maintain that amount of water. Now how do we take [that information] and make that happen?”

*The exterior of the Moapa Valley Water District in Overton on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)*

More rights than water

On paper, individuals, businesses and governments in the area have rights to use more than 39,700 acre-feet of water from a roughly 50,000 square-mile aquifer every year. About 9,000 acre-feet of water has been pumped in recent years, but there are proposals to increase use.

An acre-foot is the amount of water that can fill about a football field to a depth of one foot. If water users actually filled 39,700 football fields each year, the environmental consequences would be devastating.

In June, Nevada’s top water regulator, State Engineer Tim Wilson, ruled that groundwater use should not exceed a 8,000 acre-feet cap. That means, at most, only about 20 percent of all permitted water rights can be used across the expansive groundwater system.

If too much groundwater is withdrawn, Wilson ruled, it would diminish the springs that form the headwaters of the Muddy River, eventually shrinking a narrow tributary of the Colorado River. Las Vegas water officials store Muddy River water in Lake Mead to bolster their water supply.

Pumping, regulators worry, could also be devastating for the Moapa dace, an endangered fish that has evolved around the warm headwater springs that come from the groundwater.

The state’s ruling emerged from a conflict between the Southern Nevada Water Authority, which owns or leases water on the Muddy River, and Coyote Springs Investment, a housing developer determined to tap into the aquifer to build a new town about 35 miles from the Moapa Valley.

Yet Coyote Springs is only a subplot in a larger ongoing dispute over water. A broad range of Southern Nevada players with conflicting interests own water rights in the aquifer.

The Moapa Band of Paiutes own water rights, as does NV Energy. The Mormon Church owns water rights, as do natural gas generators at the Apex Industrial Park in North Las Vegas. The Moapa Valley Water District owns water rights, as does the Southern Nevada Water Authority.

The water is used for multiple reasons: for farms, for drinking water, for power plants and for industry. Water users often cut deals with each other, but no one wants to give up their rights.

The state’s new ruling — placing a cap on the water — puts many of these rights at risk, and for everyone involved, it sets new rules for a future that uses less water than people once planned.

*Irrigated land in the Moapa Valley on Aug. 13, 2020. Across the region, there are more rights to use water than there is water to use sustainably. (Jeff Scheid/The Nevada Independent)*

Even in this arid land, Greg Anderson, the vice chairman of the Moapa Band of Paiutes, can tell where the water is and isn’t by looking toward the ground underneath his feet.

“You can tell where water’s at in this desert,” he said. “Even though it looks so dry, you see a few plants that are greener than others. That’s where the water’s at.”

What locals and Nevada’s statutes refer to as the Muddy River used to be called the Moapa. “Pah” means water, and Moapa means muddy water, Anderson notes. For centuries, the Southern Paiutes, or Nuwu people, relied on the river for drinking water and to irrigate crops.

“That river means a lot to our people,” he said. “That’s us.”

In the early 1800s, Spanish raids devastated the Moapa band, and Mormon settlement in the 1840s displaced the Moapa band from its territory — and its water. By 1873, President Ulysses S. Grant had taken executive action to establish a reservation that spanned more than two million acres. These lands included the Muddy River and what is now Gold Butte National Monument.

*The Muddy River running through the Moapa River Indian Reservation. (Courtesy of Greg Anderson)*

It took only one year for the federal government to break its word. In 1875, Congress stripped the reservation of all but 1,000 acres and relocated it so as not to interfere with any claims made by white settlers or mining speculators, according to a history compiled by the tribe’s lawyers.

Displacement in the 19th Century pushed the tribe away from the irrigable land. A history on the tribe’s website said that “people were forced to flee into the desert and farming was disrupted.”

The 20th Century would only see more development encroach upon what little land and water the federal government left the tribe. Water was quickly divided up. By 1920, the entire river was allocated in a court decree, with the tribe only getting rights to a small fraction of the water.

As more development came into the area, state water officials began issuing rights to pump groundwater across a vast 50,000 square-mile area. Over the next century, water officials with the state engineer’s office would issue far more water rights in the region than was sustainable.

“We have to use [water] for economic development,” Anderson said. “We understand that.”

But he is concerned that the overuse of the groundwater could leave a “trickle” in the river.

The history of water rights in the area provides a map of how the area developed.

Amid a flurry of industrial development and proposed municipal development in the 1980s, the amount of permitted water rights dated more than quadrupled, increasing from about 7,100 acre-feet in 1981 to 31,600 acre-feet in 1989, according to an analysis compiled by the state.

In doing so, state regulators not only issued too many rights. They double-counted them.

Extensive science, modeling and pump tests show that the groundwater in the region feeds the Muddy River and the headwater springs for the Moapa dace. The water in the ground, in many cases, is the water in the river.

And pumping too much of it could reduce the river’s natural flow. After more than a century, state officials finally put the brakes on the problem in 2002. The state ruled that it would award no additional water rights in the area, pending the outcome of a pump test. Today state officials want to go one step further, but they must make some difficult choices.

*The Reid Gardner Generating Station on Aug. 14, 2020. NV Energy still has water rights associated with the decommissioned coal plant. (Jeff Scheid/The Nevada Independent)*

Old rules, new playbook

The state has several tools to fix the problem, and all of them are weighed against an ultimate hammer: curtailment. State regulators have worked to avoid curtailment, and for good reason.

Nevada’s water statutes follow a similar framework used in other Western states. That rulebook is meant to settle disputes, inevitable in a region where aridity is its defining character. The law says that those with the oldest water rights are the most protected from having their rights cut.

In cases where an area is over-appropriated or water use is unsustainable, the statutes allow state regulators to curtail water rights. A strict curtailment would cut off the newest water rights in an area to meet the state’s estimate for how much water is available.

In this case, a curtailment might mean cutting off nearly 29,000 acre-feet of water rights, rights issued after 1983, that exceed the state’s 8,000 acre-foot cap on cumulative groundwater use.

Such a move could have far-reaching effects on the economy, curtailing water that is currently being used by the Moapa Valley Water District and making it difficult for the tribe to use its water for commercial development. Such a move could also affect parts of the Apex Industrial Park.

Curtailment might sound like an orderly resolution to the problem, but it is blind to realities on the ground. In the Muddy River area, those likely to be cut off first are using most of the water.

Across the aquifer, groundwater users with greater legal protection — those before the 1983 cutoff — use about a third of the water. Groundwater users with less legal protection — those after the 1983 cutoff — account for most of the water use, according to the state’s analysis.

Nothing illustrates those challenges more vividly than a decommissioned coal-fired power plant. The former Reid Gardner Generating Station sits outside of the Moapa Band of Paiutes’ reservation land. It was built in 1965, and it required significant amounts of water to run its steam turbines.

In 2015, the plant’s owners, NV Energy and the California Department of Water Resources, paid the tribe $4.3 million to settle claims alleging coal ash pollution and Clean Water Act violations. Two years later, NV Energy announced that it had decommissioned the power plant’s last unit.

But NV Energy kept its water rights. Even with the coal plant offline, the rights remain valuable assets on the electric utility’s books to sell and lease. NV Energy’s water rights are particularly valuable because most of them predate the 1983 cutoff. Some of their rights date back to 1949.

Generally, Western water law requires that water users forfeit rights if they do not use them. In reality, it doesn’t always work this way. There are numerous loopholes to the provision. Water users are allowed to apply for extensions to keep their water right, even if they are not using it.

Micheline Fairbank, a deputy state engineer, said reconciling current use with older water rights remains an open question, one the community should be involved in answering.

Generally, Western water law requires that water users forfeit rights if they do not use them. In reality, it doesn’t always work this way. There are numerous loopholes to the provision. Water users are allowed to apply for extensions to keep their water right, even if they are not using it.

“I don’t have a crystal ball to predict how that question gets answered,” Fairbank said.

Prior Appropriation

Nevada’s water law is based on the Doctrine of Prior Appropriation. It has three main elements:

First in time, first in use: Those with water rights issued first in time have the priority to use water in times of scarcity or shortages.
Beneficial use: Water must be put to beneficial use. Acceptable beneficial uses include using the water for drinking water, agriculture, commercial activities and mining.
Water must be used: Water rights must be used and developed or the owner of a water right risks losing their water right.

In an interview this summer, Wilson, the state engineer, did not commit to how the state plans to move forward with managing the fact that there are more rights to water on paper than there is available water. In an interview, officials stressed that they favor community-driven solutions.

Until policy decisions are made, there is uncertainty about what happens next. The 1983 cutoff date itself could be called into question or changed as the state engineer’s office makes decisions about how to manage water rights in the area.

“All along, it has kind of been a two step process,” Fairbank said. “Number one, let’s establish the baseline and the science. Step two then would be the policy and management positions.”

Water users could devise a groundwater plan or what is known as a conjunctive management plan aimed at creating more flexibility about where, when and how water rights could be used.

In watersheds across the arid Southwest, including in the Muddy River basin, addressing the problem is made even more challenging because the legal systems for managing groundwater and surface water developed separately, even though the two sources of water often act as one.

Elizabeth Koebele, an assistant professor at UNR who studies water governance, says irrigators — those closest to the water — tend to understand this, but there is a disconnect with the law.

“Water users,” Koebele said, “seem to recognize that there is a connection between surface water and groundwater, and that is not matching up to how we manage these watersheds.”

Nevada’s groundwater laws are already more restrictive than neighboring states. Sean Hood, an attorney for Fennimore Craig, said Nevada started regulating groundwater long before other states like Arizona and California, which is in the early phases of managing groundwater.

“Historically, Arizona and California were like the wild wild West,” he said.

In watersheds across the arid Southwest, including in the Muddy River basin, addressing the problem is made even more challenging because the legal systems for managing groundwater and surface water developed separately, even though the two sources of water often act as one.

Yet even in a state that has long-regulated aquifers, state officials are being forced to grapple with how to claw back past appropriations in areas like the Muddy River.

Nevada statutes offer a limited set of tools, and in recent years, state water officials have tested their flexibility in rulings and decisions that seek to fix the problem. But officials are often caught between what the statute says and how the court interprets them.

Already, the state’s June ruling on the Muddy River is tied up in litigation.

In addition to imposing a cap, the state’s order changed the rules in another critical way. The order, a result of hydrologic reports and public hearings, defined a larger geographic boundary for the aquifer, changing whether many water users still have priority rights.

Among the claims pending before the court, water users have argued that the state acted in an “arbitrary and capricious” manner, ruling beyond what Nevada’s statutes allow.

In a joint-filing, lawyers for a gypsum manufacturer and a landfill at the Apex Industrial Park said the order was made “in violation of constitutional or statutory provisions.”

*The Muddy River before it is diverted to a channel that runs through the Moapa Valley and into Lake Mead on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)*

‘Existing communities’

Sitting inside an air-conditioned conference room at the Moapa Valley Water District on a warm August morning, Davis, the district’s general manager, is clear about his goal.

For years, Clark County has ranked as one of the fastest growing counties in the United States. But Davis said that the Moapa Valley, unlike other areas, has no ambitions for major growth. That’s not why he wants to protect the district’s groundwater rights.

“I’m not looking to expand,” Davis said in August. “I’m not looking to grow. I’m not looking to get large. We just need to make sure that we’re able to take and maintain what we have.”

“By the same token,” he added, “you can’t have a community shrink.”

Both the water district and the Moapa Band of Paiutes, the two existing communities in the area, have rights to groundwater at risk of curtailment under a strict application of the law.

“I think that an existing community has to have more standing over somebody that does not exist yet.” — Joe Davis, Moapa Valley Water District

Davis said it was important to recognize that the community has existed since the mid-1800s. His community extended even farther into the valley until the Hoover Dam created Lake Mead, which submerged the town of St. Thomas and forced its residents to resettle.

“I think that an existing community has to have more standing over somebody that does not exist yet,” Davis said, noting that other state plans have exempted municipal uses.

Until the litigation ends, it’s hard to determine what’s at stake for many water users.

Despite battling in court, the water users in the area are already tied together by countless deals and contracts. They lease water to each other. They sell water to each other. They even enter into future understandings about what could happen. In similar cases across the West, conflict can make way for collaboration — but sometimes it takes time.

“The big picture is there is less water,” Koebele said. “We need to work together more.”

In some cases, the cost of participating in litigation becomes its own barrier.

Davis said the district ended up having to change its rate structure and approve another rate increase to keep up with repairs on the system and expected legal costs.

“We haven’t seen any legal costs yet that are going to equal what’s happening right now,” he said. “It’s just astronomical, what it’s going to cost us compared to what our budget actually is.”

“It’s that you can’t afford not to,” he added. “But you can’t afford to.”

*Joe Davis, the general manager of the Moapa Valley Water District, looks at infrastructure associated with a groundwater well on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)*

Part III of this series, “Cutting Back,” examines possible solutions under the law. This story was supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

Articles in this series

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

Cutting Back

By

The Nevada Independent

-

December 2, 2020

Articles in this series

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

*Mark Moyle, a Diamond Valley farmer advocating for a groundwater management plan, stands in front of a field on Aug. 25, 2020. (Daniel Rothberg/The Nevada Independent)*

By Daniel Rothberg, The Nevada Independent

Originally published October 28, 2020

EUREKA, Nev. — Diamond Valley starts at the edge of Eureka, a small town in one of the most rural areas of the state. The valley stretches on for miles, and so does the aquifer beneath it, a reserve of underground water that farmers have used at unsustainable rates, year after year.

Springs started to dry decades ago. There were reports of fissures in the ground. Groundwater levels in some areas fell by more than 100 feet. The underground reservoir continues to decline by as much as two feet every year in certain areas, and that means wells could one day go dry.

Mark Moyle, who grows alfalfa in Diamond Valley, speaks in careful measures. Livelihoods are at stake. Moyle recognizes the problem. Everyone does. And he knows that cuts are coming. In recent years, Diamond Valley farmers have faced increasing pressure from the state and local ranchers to reduce use. But the state’s main tool for fixing the issue are immediate cuts that are blind to local concerns (a Diamond Valley farmer likens them to using a chainsaw for a surgery).

So Moyle and most of his neighbors started looking for alternatives.

They wanted precision and local control. Taking advantage of a new state law passed in 2011, officials gave them a green light to come up with another option. But the clock was now ticking: If the farmers failed to have a plan in effect by 2025, state regulators would be forced to slam the brakes on their overuse, an action that could shutdown most of the operations in the valley.

In recent years, Diamond Valley farmers have faced increasing pressure from the state and local ranchers to reduce use. But the state’s main tool for fixing the issue are immediate cuts that are blind to local concerns (a Diamond Valley farmer likens them to using a chainsaw for a surgery).

“We’re done,” Moyle said, describing what would happen if state regulators curtailed use. “And not only that, our life’s investment is done. You can’t re-market something that has no water.”

In 2018, after years of negotiations and discussions, the majority of Diamond Valley irrigators voted for a market-based system, governed by a local advisory board, that dictates the terms of the reductions, spreading out the water cutbacks over time and applying them across the board.

“How many people would sign up to take a financial hit?” Moyle asked during an interview earlier in August. “Well we all did, because in the long run, it’s going to be better for all of us.”

Depending on whom you talk to, the plan is an experiment in conservation — an equitable way to reduce water use — or a seismic crack in the foundation of Western water law. By forcing all irrigators to make a sacrifice and cut back, the plan deviates from a primary principle of Western water law: that those with the oldest claims to water are protected from cuts in times of scarcity.

Across the West, groundwater basins and watersheds face a similar dynamic: State regulators issued more rights to water than there is water to go around. In Nevada, water users are closely watching Diamond Valley to understand the limits of the law and the potential paths forward.

For many, the question is not whether cuts are coming but who gets cut and when? Some see the 2011 statute, the legal basis for the Diamond Valley plan, as a tool for coming up with local solutions that avoid heavy-handed regulation from the state. They say such plans mirror other efforts across the West. But how far can the local plans go? And what are the legal guardrails?

Today, the Diamond Valley plan is on hold, and its future rests on whether the Nevada Supreme Court rules it is allowed under the 2011 statute. In April, a District Court judge in Eureka agreed with a group of local ranchers who said the plan conflicts with fundamental aspects of water law.

Moyle disagrees. He said that the plan is the type of solution that the Legislature intended.

“This didn’t just happen by accident,” he said. “This was deliberate.”

*The southern side of Diamond Valley on Aug. 26, 2020. Irrigators have used more water than there is water available. (Daniel Rothberg/The Nevada Independent)*

Decades in the making

When Reinhold Sadler, a German immigrant and the state’s ninth governor, set foot in Diamond Valley more than a century ago, the area looked noticeably different. The value of the land was less about the water beneath the ground than the water at the surface. Sadler, a businessman turned politician, established a ranch that relied on natural springs to irrigate crops and pasture.

Sadler Ranch, under different ownership, is still operating today. Yet those springs, and many others across the valley, have dried up or are under threat of drying up. As more groundwater was used to irrigate alfalfa fields over the past four decades, less water flowed into the springs.

The issue has been well-documented since the 1960s, but the state has taken little action to fix the valley’s overuse. In 2012, Sadler Ranch was purchased by new owners from San Francisco. Since then, its owners have pressured the state in court and in hearings to address the problem.

A curtailment is an extreme measure. It would require the state to turn off the wells based on when water rights were issued. In Diamond Valley, it could mean cutting off more than half of the groundwater used each year, a move that would devastate the farming community all at once.

The issue has been well-documented since the 1960s, but the state has taken little action to fix the valley’s overuse. In 2012, Sadler Ranch was purchased by new owners from San Francisco. Since then, its owners have pressured the state in court and in hearings to address the problem.

In 2014, Sadler Ranch filed a petition to initiate proceedings for a curtailment, a state-action to impose harsh water cuts on irrigators across the valley. It created an uproar. Levi Shoda, who manages the day-to-day operations at the ranch, framed it as a necessary wake-up call for state regulators. He said they were moving too slowly to curb the valley’s overuse of its limited water.

“What good is all this water that we’re fighting for gonna be when the water is all gone?” he asked.

A curtailment is an extreme measure. It would require the state to turn off the wells based on when water rights were issued. In Diamond Valley, it could mean cutting off more than half of the groundwater used each year, a move that would devastate the farming community all at once.

By the state’s own description, curtailment by priority can be “dire” and “sudden.” Marty Plaskett, a Diamond Valley farmer, likens curtailment to giving the state a “chainsaw to do surgery with,” blind to realities on the ground, leaving irrigators without water that they used for half a century.

“If this was a problem that could have been solved easily,” he said, “it would have been done.”

For decades, curtailment has loomed over the valley, yet state regulators failed to impose cuts, allowing the problem to become progressively worse and making it harder to rip off the bandaid.

*Marty Plaskett stands in front of one of his irrigation pivots in Diamond Valley on Aug. 25, 2020. (Daniel Rothberg/The Nevada Independent)*

Water issues in Diamond Valley have been well-documented since the 1960s, amid a rush for land and water in the southern side of the valley. Here, where Moyle and his neighbors farm in close proximity to each other, irrigation pivots turn the valley into bright green crop circles.

Many irrigators in this area came about land and water through federal legislation known as the Desert Land Entry Act of 1887. The congressional legislation encouraged the settlement of the West with cheap public land if buyers were willing to irrigate it. Homesteading in the arid West posed challenges and, in many places, attempts often ended in failure. In Diamond Valley, the success rate was high — and so was the volume of water rights that state officials handed out.

Federal land managers and state officials knew that a water issue was brewing, and around 1962, Diamond Valley was closed off to new homesteading. But pressure, including from Sen. Alan Bible, re-opened the valley to more development, High Country News reported in 1993.

As electricity came to the valley, farmers invested heavily in infrastructure to pump water from the ground. Drillers punched wells, and the area grew into an agricultural hub in northeastern Nevada. Plaskett’s father was one of the well-drillers who made it feasible to tap into the aquifer.

“My dad drilled most of the wells here,” he said. “So I’m very in tune to the aquifer.”

In time, the valley became part of Eureka County’s social and economic fabric. Farmers sent their kids to schools in Eureka, a small town with a population of about 480 residents. Increased agricultural production also helped stabilize the county’s economy, which largely depends on mining activities that cycle in booms and busts. In 2013, Diamond Valley produced an estimated 110,000 tons of hay and alfalfa and generated about $22.4 million in farming income.

Diamond Valley is remote. It sits adjacent to a section of U.S. 50 known as the “loneliest road in America.” The highway cuts through the Great Basin, one of the least populated areas of the country. At the same time, Plaskett noted, Diamond Valley hay has been shipped all over the world. He lists the markets farmers have sold into: Kentucky, Florida, California, Saudi Arabia.

Diamond Valley hay, he said, is high-quality. Whether it’s the high elevation (the valley is at about 5,800 feet above sea level) or farming practices, “it brings buyers back every year.”

Yet the state allowed the valley to flourish on an unsustainable use of water, despite warnings that farmers were being allowed to withdraw more water than the aquifer could sustain. By the early 1980s, the effects of overuse had become so visible that the state took action — almost.

In 1982, the Nevada Division of Water Resources held at least two hearings on curtailment. At the time, a rancher, Milt Thompson, testified that groundwater use was irreparably harming his springs. Yet Diamond Valley farmers disagreed on whether a problem even existed, according to hearing transcripts. And the state opted against curtailment, allowing the problem to persist.

According to one hearing transcript, Pete Morros, then-Nevada’s top water regulator, noted in testimony that “everybody seems to be quite content and happy with the situation in Diamond Valley, with the exception of Mr. Thompson whose spring has diminished considerably.”

In 2015, state officials found themselves in a similar position. Sadler Ranch was asking the state to curtail water use in a manner that would put multiple farmers out of business. Facing legal pressure to curtail and political pressure to avoid curtailment, the state took another course.

They dusted off a 2011 law passed by the Legislature. Before 2015, it had never been used. But it was meant to give the state some breathing room in this type of predicament. The law allowed state water regulators to designate groundwater basins as a “Critical Management Area.” Once a Critical Management Area was designated, regulators were required to curtail water use after 10 years unless a majority of water users approved a localized groundwater management plan.

Diamond Valley fit the criteria for a designation.

Testing the newly-passed statute, the state gave the farmers an ultimatum: Irrigators now had until 2025 to develop a localized management plan, or they would face state-imposed cuts.

Curtailment

In Nevada and in many states across the West, water use is curtailed by priority — in the order of when the water was first put to use. Those with the oldest water rights are the last to get cut.

Here’s how “curtailment by priority” would work in Diamond Valley:

The cutoff: For most aquifers, state officials set a cutoff for the total amount of water use that is sustainable. In Diamond Valley, that cutoff is 30,000 acre-feet (an acre-foot is the amount of water that can fill an acre of land to a depth of one foot). Recent water use has hovered near 70,000 acre-feet, more than two times the current sustainable use.

The priority date: Every water right has a “priority date” that is generally tied to when the water was put to use. In a curtailment action, water rights with a priority date above the cutoff are shut off. In Diamond Valley, if the state were to “curtail by priority,” irrigators with rights that have a priority date after May 12, 1960 could be barred from using water.

The water divide: Those with water rights that have a priority date before May 12, 1960 are considered to have “senior rights.” Those with a priority date after May 12, 1960 are said to have “junior rights.” A majority of water rights in Diamond Valley are junior rights. “Seniors” are entitled to receive their whole allocation before “juniors” get a single drop. In Diamond Valley, the difference between “junior” and “senior” can be a matter of days.

‘Controlled curtailment’

Sitting at a conference table on a morning in late August, Moyle said that the farmers saw the ultimatum as an opportunity to develop a local plan to fit the needs of a majority of irrigators.

This, he said, was no easy feat. There were contentious meetings and fierce arguments among neighbors. But by the time the process started in 2014, there was also broad recognition of the problem and the need for cutbacks. The challenge — and conflicts — were in how to get there.

“There were a lot of difficult meetings,” Moyle said. “And difficult soul-searching. We tried to find the best remedy that would be best for everybody and still allow most everybody to survive.”

In 2018, a majority of water users, with a mix of senior and junior rights, ultimately voted to try a novel approach that departed from a strict application of Nevada water law. Rather than sudden curtailment, it spread out cuts over time. And in 2019, Nevada’s top water regulator signed off.

*Low-elevation sprinklers hang over a field of alfalfa in Diamond Valley on Aug. 25, 2020. The sprinklers are meant to reduce water use. (Daniel Rothberg/The Nevada Independent)*

The plan went into effect in 2019 after Jason King, then Nevada’s top water regulator, approved it. Following that, “most everyone did something to their sprinkler packages,” Plaskett said.

But conservation alone was not going to be enough. Some land was going to have to lie fallow. Some producers and companies started to consider alternative land uses, including solar fields.

Jake Tibbitts, Eureka County’s natural resource manager, helped facilitate the crafting of the groundwater plan, and the county supported the groundwater plan. Tibbitts often refers to the valley as the county’s “social glue.” Alternative land uses, he said, must be part of the equation.

When solar developers map out areas with good potential for solar development, Tibbitts said that Diamond Valley continually pops up. As NV Energy builds out more transmission across the state, using retired farmland for solar projects, amid water cuts, could become a viable option.

“There’s two companies already looking at Diamond Valley,” Tibbitts said.

Over the next three decades, as farmers looked to cut more than half of their current water use, more producers would be pressed to find ways to use land with less water, proponents of the plan have argued. The plan provided the incentive, and it also laid out certain cuts on a certain date, making it easier for farmers to work with lenders and evaluate the value of their property.

“All we have to do is have the cuts laid out, and people can do what they want,” Moyle said. “They’re gonna get pretty creative pretty fast. We don’t need to write a prescription for them.”

In addition to spacing out the cuts over time, the plan was notable for another reason: It required all irrigators to make a sacrifice. Where Nevada water law protects irrigators with senior rights, the plan departed from that model. It applied cuts to junior and senior rights across the valley.

Some believed this amounted to Diamond Valley writing a new water law. But Moyle argued that nothing in the 2011 statute prevented a local plan from reducing allocations for all water users. After all, he noted that a majority or irrigators, including those with senior rights, voted for it.

“From a water aspect, they had a lot to lose by signing on,” he noted.

Even though the plan distributed more shares to those with senior rights, everyone would see a substantial reduction in their allocations over the next three decades, despite the fact that the state’s water law would typically not require water users with senior rights to give up anything.

For this reason, and several others, District Court Judge Gary D. Fairman struck down the plan in April, concluding that it was “contrary to Nevada water law, laws this court will not change.”

Moyle and Plaskett, along with the state’s top water regulator, are fighting the decision in court.

Moyle serves as the president of the Diamond Natural Resources Protection and Conservation Association (DNRPCA) and Plaskett is its vice president. The group, comprising irrigators who support the groundwater plan, filed an appeal with the Nevada Supreme Court this summer.

With the lower court ruling, the plan is no longer in effect. But the clock continues ticking on the state’s ultimatum to come up with a plan or face curtailment by priority. Without a plan in place, Moyle and Plaskett said that it has fueled uncertainty. Farmers are not sure whether they should invest in conservation — new sprinklers can cost $7,500 a pivot — if state regulators might cut them off soon anyway. Lenders have also been hesitant to issue loans to farmers in the valley.

“They don’t want to get way out on their lending,” Plaskett said.

*Levi Shoda, who manages Sadler Ranch, stands in front of a field on Aug. 26, 2020. Sadler Ranch is challenging the Diamond Valley plan. (Daniel Rothberg/The Nevada Independent)*

Departing from the rulebook

Sadler Ranch is tucked away on the northern side of the valley, at least a 30-minute drive from most of the center pivots. Shoda, who manages the ranch, understands water law. He grew up in Carson Valley, where he owned a hay company before moving to Eureka. On a windy August afternoon, Shoda sat on a porch, looking out at cattle grazing in front of a long, empty playa.

He does not have anything against a groundwater management plan, he said. His issue is with any plan that departs from a fundamental tenet of Western water law: first in time, first in right.

Depriving senior water users of their full allocation, he said, amounts to a “taking” of their water.

“That’s my biggest problem,” he said.

The springs at Sadler Ranch, the same ones used when the ranch was developed in the late 1800s by former Gov. Sadler, give Shoda and the owners of the ranch standing to make that argument. Because the springs were developed so long ago — even before Nevada water law was written — Sadler Ranch has claims to some of the oldest water rights in Diamond Valley.

Since the plan was approved, Sadler Ranch has challenged it in court. They say the local plan allowed continued overuse for 35 years, by taking a gradual approach to solving an issue that developed over decades. State officials have awarded Sadler Ranch additional water rights to offset their loss. Still, Shoda said the springs cannot be made whole if overpumping continues.

“However this deal works out, in the end, it’s not going to be great for a lot of people,” he said. “I don’t think it’s going to be great for anybody. But again, what do you put on the flip side of that?”

“If we allow everyone to continue pumping, and then the entire basin dries up,” he said.

*Springs at Sadler Ranch on Aug. 26, 2020. The state allowed the ranch to pump water to offset losses to the spring’s natural flow. (Daniel Rothberg/The Nevada Independent)*

For Sadler Ranch and two other petitioners who challenged the groundwater plan, the localized solution does too little, too late. In a brief filed in District Court last year, attorneys argued that the plan “authorizes persistent, non-stop groundwater mining” from the aquifer.

Proponents of the plan view the gradual cuts as a way to reduce water use over three decades. Yet others see that as a death by a thousand cuts, prolonging the problem for decades and allowing for continued overuse when the law calls on the state to take more immediate action.

Sadler Ranch is not the only rancher pushing back. The owners of another property, also with depleted springs, joined Sadler Ranch in appealing the plan. The owners of both ranches are newcomers to Diamond Valley, having purchased the ranches only recently. It’s a fact that has raised the eyebrows of some local farmers. Why do they want all of this water — and why now?

One longtime Diamond Valley ranching family also challenged the plan in District Court. The family holds five irrigation groundwater rights with senior priority dates. A court brief filed by their attorneys said the plan would ultimately leave them with about 29 percent of their allocations, despite having senior water rights and having lived in the valley since the 1860s.

Despite the plan’s approval by a vote of irrigators, “popularity of a plan does not overrule priority of right,” attorneys for the family told the District Court. The plan, they wrote, should have considered other options, not only a market whereby water rights are turned into shares.

The brief argued that there were other options to create a management plan while protecting the rights of senior water users. For instance, a groundwater plan could have created a basin-wide fee to raise funds that would have compensated senior water users if they reduced their use. Or water users could create a similar market for junior water users that senior users could sell into.

Moyle said that irrigators looked at other options, but he strongly believes that the groundwater plan, as written, is the one that works best for the valley. He said that even gradual reductions would improve the water situation. The plan got community buy-in, even from senior water right users with the most to lose. And it gave the water users “local control” over the valley’s fate.

Other options, he said, were “discussed millions of times in millions of ways.”

The issues in Diamond Valley persist in other parts of the West. Many states rely on the “first in time, first in right” doctrine to settle disputes over water. Other parts of the West have dealt with issues around groundwater in a variety of ways. Courts and legislatures in different states have interpreted the doctrine in different ways, but exceptions to the doctrine are not unprecedented.

In Kansas, for instance, the state has allowed groundwater users to develop local plans to solve overuse, and in some cases, the plans have departed from a strict adherence to “first in time, first in right” rules. Still, in Nevada, courts have been strict about not deviating from the doctrine, and Fairman, the District Court judge, said the Legislature did not intend to make an exception.

*Eureka County, with a population of about 2,030 residents, on Aug. 25, 2020. The county has defended the groundwater plan. (Daniel Rothberg/The Nevada Independent)*

Waiting for the courts

Two-hundred-and-fifty miles away from Carson City, Moyle shuffled through a pile of papers and fished out a copy of Nevada’s water statutes. Moyle, a farmer in Diamond Valley, pointed to one line that he had underlined in blue ink. The interpretation of this line, Moyle said, could dictate his community’s future and whether he can continue farming in the valley. He disagreed with Fairman’s ruling, and he believes this line validates the groundwater plan. The line says that the state must curtail by priority unless local water users come up with an alternative method.

“There were hours spent on this sentence at that time,” Moyle said.

The plan now hinges on the Nevada Supreme Court’s interpretation of the language. But the state is backing Moyle’s interpretation of the law — that a statute passed by the Legislature in 2011 lets local communities develop plans that depart from a strict application of water law.

In a brief filed with the Supreme Court, Deputy Attorney General James Bolotin argued that the Legislature, by allowing local plans, intended to provide an alternative to curtailment by priority.

“The purpose of the [groundwater management plan] statute is to provide a last resort for those basins in the most dire of straits to work together as a community to create a plan that reduces groundwater pumping to levels acceptable to the state engineer to avoid curtailment,” he wrote.

The state engineer serves as Nevada’s top water regulator. For state regulators, a court ruling that strikes down the plan could leave one less option on the table for managing water. Diamond Valley, in many ways, is a test case. It is the first time the state has allowed irrigators to develop a local groundwater plan under the 2011 statute, which did not offer many specific guidelines.

*Mark Moyle points to a circled word in Nevada’s water statutes on Aug. 25, 2020. (Daniel Rothberg/The Nevada Independent)*

Without a valid plan, curtailment could be coming for Diamond Valley. Whether the Supreme Court approves the plan or not, the valley’s irrigators still face a 2025 deadline for curtailment.

This fact could eventually send the irrigators back to the drawing board.

Throughout the last six years, Tibbitts, Eureka County’s natural resources manager, has helped guide the creation of the plan, keeping irrigators informed of developments through an email list. As the plan has made its way through the courts, Tibbitts has continued to keep them apprised.

“It’s kind of on them to decide what to do,” he said during an interview in August. “And so far, there really hasn’t been any movement by the farmers to come back to the drawing board.”

If no plan is in place by 2025, Tibbitts said there are still “unanswered questions” about how a curtailment would work. From Tibbitts’ perspective, the dividing line between junior and senior rights in Diamond Valley is not all that useful in reality. Because of the rush to develop water in the 1960s, the majority of irrigators have an assortment of junior and senior water rights. His question is this: “Is there something we can do as a community that everyone can live with?”

But there is no doubt that the situation is tense.

“It’s tense for me, and I come to work every day and I get a paycheck every two weeks,” Tibbitts said. “These guys, their livelihoods are on the line. A lot of them invested everything here with their families. They have nothing else other than their farm in Diamond Valley.”

This story was supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

Articles in this series

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

As pandemic hammers its finances, Vail pulls out of state cloud seeding program

By

Fresh Water News

-

December 1, 2020

By Jerd Smith

Vail Resorts Inc., one of the largest financial contributors to Colorado’s cloud seeding program, has dropped out this year, leaving a major hole in the program’s budget.

Cloud seeding is a practice in which silver iodide pellets are sprayed into storm clouds in an effort to trigger more snowfall and ultimately, in the spring, more snowmelt to feed the state’s streams.

Vail has been participating in the program for more than 40 years, state officials said.

Hard-hit by the pandemic, the ski resort company had planned to contribute $300,000 to this year’s effort, roughly 20 percent of the nearly $1.5 million the state spends annually, according to the Colorado Water Conservation Board (CWCB), which oversees the program.

Vail officials did not respond to a request for comment, but their most recent financial statements indicate that the company’s revenues dropped nearly 70 percent for its latest fiscal year as the Covid-19 pandemic forced it to close its resorts early last spring.

According to its financials, revenues for its 2020 fiscal year ending July 31 came in at $503.3 million, down from $706.7 million for the prior year.

“We’re all hoping this is just a temporary suspension in funding from Vail,” said Andrew Rickert, who oversees the cloud seeding program for the CWCB. “Vail is the oldest partner we have in Colorado. They are very serious about the program, but no one is immune to these economic hardships.”

In addition to Vail, the cloud seeding program receives cash from several Lower Colorado River Basin states, who are interested in helping do anything they can to boost water supplies in the Upper Colorado River Basin, on whose flows they rely.

The state and several Front Range water utilities, including Denver Water, the Northern Colorado Water Conservancy District and Colorado Springs Utilities, also help pay for the work.

This year the CWCB will oversee six permitted cloud seeding operations that span the state, from Durango to Winter Park and beyond. The operations are sited in areas most likely to produce snow and aid rivers.

Among the largest of these is a permit operated by the Colorado River District, which includes Grand, Summit, Eagle and Pitkin counties, according to Dave Kanzer, deputy district engineer for the Glenwood Springs-based water agency.

Vail’s cloud seeding program is nested within that area and its annual $300,000 contribution represents more than half the money typically spent in that four-county region, Kanzer said. If additional funding isn’t found, fewer cloud seeding generators will operate there this season.

“It’s a challenging time with respect to Covid-impacted budgets,” Kanzer said. “The overall program is alive and well, but it is a topic of concern.”

Kanzer and CWCB Director Becky Mitchell said the state is actively reaching out to other entities for additional funding for this year’s work, including states in the Lower Colorado River Basin and Front Range utilities.

As the current drought continues, forecasts for the winter indicate that the southern part of Colorado is likely to see light winter snows, while the northern part of the state is likely to see heavier accumulations. Overall, the state has a long way to go to make up for the dry summer and fall.

How much new snow and water seeding clouds actually produces has been difficult to detect, although scientists recently have produced studies indicating it can create new snow.

“Our scientists indicate we can increase water supplies by about 5 percent on an annual basis, with increased snowfall of 5 to 10 percent, although it’s highly variable,” Kanzer said.

Colorado and other Upper Colorado River Basin states have long used cloud seeding as a way to boost water supplies, and with this year’s drought it’s more important than ever that additional water be generated if possible.

“It’s especially acute coming after a pretty dry 2020,” Kanzer said.

“But we’re cautiously optimistic. As the year plays out we will try to carefully manage the resources that we have. I’m not optimistic that we will be able to fill the entire gap. But if we came up with a third [of the money lost], that will be a success in my mind.”

Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.

This story originally appeared on Fresh Water News, an independent, non-partisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Its editorial policy and donor list can be viewed at wateredco.org.

Vail Resorts’ cancellation of cloud seeding this winter could mean less water in streams

By

Aspen Journalism

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December 1, 2020

Scenes from the Seeded and Natural Orographic Wintertime Clouds: The Idaho Experiment (SNOWIE) project, which was undertaken in Idaho’s Payette Basin in winter 2017. (Credit: Joshua Aikins)

By Heather Sackett

Due to budget shortfalls, Vail Resorts has pulled this winter’s funding for its cloud seeding program — the longest-running in the state at 44 years — potentially reducing the amount of water flowing down the Colorado River this spring.

According to a November report from Colorado Water Conservation Board Director Rebecca Mitchell, due to economic challenges associated with the COVID-19 pandemic, Vail Resorts was forced to suspend all funding for cloud seeding for the 2020-21 season. This has resulted in a $300,000 loss of funding for cloud seeding activities over the central Rocky Mountains.

While this is bad news for skiers, it also means a challenge for western water managers who count on cloud seeding to increase water supplies by increasing snowfall in the mountainous headwaters of the Colorado River and its tributaries. While ski resorts tend to focus their cloud seeding on increasing early-season snow, water managers tend to choose the best storms throughout the season and boost those.

According to Mitchell’s report, the loss of Vail’s cloud seeding program severely reduces the ability to augment and increase water supplies.

“This recent decision has put managers of the CCMRB in a very difficult position as they endeavor to meet the needs of drought recovery,” Mitchell’s report reads.

Vail Resorts did not respond to requests for comment.

Colorado water managers and ski resorts use remote cloud seeding generators like this one to boost a storm’s snowfall. This year Vail Resorts cut its $300,000 program, leaving some water managers worried it could result in decreased snowpack and streamflows.

‘A significant loss’

Cloud seeding uses a network of ground-based generators throughout the permit area to disperse silver iodide particles into clouds, where ice crystals form on them and fall to the ground as snow. Colorado ski areas and water managers on both the Western Slope and Front Range have been using cloud seeding for decades to enhance snowpack and streamflows. The cloud seed generators in the CCMRB area are operated by Durango-based Western Weather Consultants.

Water managers see cloud seeding as an important tool for increasing water supply in times of drought. A study released earlier this year proved that cloud seeding can boost snowfall across a wide area under the right conditions. Weather modification programs were one of the elements included in the Drought Contingency Plan, signed by the Colorado River basin states in 2018.

“It’s one of the few ways to physically increase water supplies,” said Dave Kanzer, deputy chief engineer for the Colorado River Water Conservation District. “This is one of the legs of the stool. When we are looking at supply and demand, this is the supply side.”

Kanzer said that a statistical comparison over 15 years shows a 2-5% annual increase in snowfall in basins that use cloud seeding over those that don’t. Although it’s difficult to determine the exact amount of extra snow that cloud seeding generates, it could equal up to 80,000 acre-feet of water within the CCMRB permit area, Kanzer said.

Since Vail’s program represents about half of this, one could expect any snow and water generated to also decrease by half this year.

“We have lost about half of our effectiveness,” Kanzer said. “It’s a significant loss to cloud seeding within our permit area.”

The CCMRB program has an annual budget of about $220,000 to $250,000, Kanzer said, with contributions from the River District, the CWCB, the Front Range Water Council and districts in the lower basin that supply water.

CWCB officials say they are still trying to find replacement funding and have been talking with Front Range water providers, including Denver Water. Spokesperson Todd Hartman said Denver Water currently provides $12,400 as part of the Front Range Water Council’s $70,000 contribution.

“The FRWC and Denver Water are aware of the reduction from Vail and members are discussing how and whether to address that,” Hartman said in an email.

Three water providers in the lower basin states — Central Arizona Water Conservation District, Southern Nevada Water Authority and the Metropolitan Water District of Southern California — contributed $438,000 this year to cloud seeding programs across the upper basin, which also includes Wyoming, Utah and New Mexico.

CWCB Weather Modification Program Manager Andrew Rickert said it’s still too early in the season to know how Vail’s move might affect snowpack and streamflows.

“We just have no idea what kind of season we could have in front of us,” Rickert said. “We could have storms that are efficient enough not to need cloud seeding. It’s really just up in the air as to how this is going to affect water supplies for next year.”

Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Vail Daily and other Swift Communications newspapers. This story ran in the Nov. 28 edition of The Vail Daily and the Nov. 30 edition of The Aspen Times.

The promises and pitfalls of mapping small streams

By

Jenna Sampson

-

December 1, 2020

Small streams like this one in northern Colorado are notoriously difficult to map using older methods because they come and go with the weather. Now crowdsourcing apps are asking hikers to record small stream data. This photo was taken for the Stream Tracker project, which collects imagery of intermittent streams. (Photo: Kevin Teiken/Stream Tracker Project).

By Jenna Sampson

As seasonal streams around the Colorado high-country dry up before winter, Stephanie Kampf rallies volunteers, a keen mix of retired scientists and college students, to help her map these waterways using a mobile app. Kampf, a professor of watershed science at Colorado State University, runs a crowdsourcing project called Stream Tracker to map and monitor small seasonal streams.

The official hydrography data used by water regulators, scientists and land managers—called the National Hydrography Dataset, or NHD—often misclassifies, misplaces or completely leaves out seasonal streams.

The project, launched in 2017, is one of several crowdsourcing programs that have emerged to improve data on small streams. Those waterways, termed ephemeral or intermittent depending on how often they flow, are dry much of the year and then activate during rain events or from seasonal snowmelt. They make up over 80% of all streams in the arid West, carrying snowmelt through a seasonal network that supplies the Colorado River and its tributaries, which provide water to 40 million people.

The central problem that inspired Stream Tracker is that the official hydrography data used by water regulators, scientists and land managers—called the National Hydrography Dataset, or NHD—often misclassifies, misplaces or completely leaves out seasonal streams. One study by the conservation group Trout Unlimited suggests that for every mile of mapped stream there’s about one more that’s unaccounted for in the NHD.

“We’d try to identify streams and go into the field and see that there was no stream there,” said Kampf of her attempts to use the NHD. “There was just not a good record of where the streams actually are.”

**Puzzling data**. Zoomed into the southern Front Range of Colorado, ephemeral stream data from the NHD (in red) is dense in some areas and stops along clearly defined perimeters.

More accurate mapping of these water bodies could not only help researchers like Kampf but also give landowners and developers more clarity on whether a stream on their land is federally regulated.

On the federal level, the U.S. Forest Service needs to abide by environmental rules, such as riparian buffer zones, for conservation planning. The U.S. Army Corps of Engineers needs to assess its oversight responsibility to permit new developments near regulated water. Emergency-response organizations need to predict and plan for flooding, particularly as landscapes are charred by wildfires.

“NHD is relied on so readily across the board by so many different people for their broader scale research,” said Helen Neville, senior scientist at Trout Unlimited. “It’s what everybody uses as the base layer for anything they’re doing having to do with aquatics.”

But after nearly 136years of work, the U.S. Geological Survey (USGS), the nation’s official mapmaker and the agency managing the NHD, is still trying to solve the problem of bad data.

By pushing to collaborate with states and making tweaks as new technology becomes available, the agency has been doubling down on its effort to improve the NHD in recent years. Now, as the agency dips its toes into crowdsourcing stream data, regular citizens can help speed up progress.

Several promising efforts are underway to improve and update the data both within the USGS and beyond, using everything from satellites to hikers armed with mobile phones. Even the U.S. Environmental Protection Agency earlier this year signaled that it wants to improve on stream data for its own regulatory reasons by creating a stream-mapping group that will work with, and help enhance, the NHD.

It remains unclear what, beyond initial talks, has materialized from the group. It also remains unclear how the Biden administration will handle this.

Mapping watersheds, and politics

In January 2020 the Trump administration enacted a change to the landmark Clean Water Act, effectively removing federal oversight of ephemeral streams. The water-rule change, called the Navigable Waters Protection Rule, was criticized by many scientists and environmental organizations as a brazen rollback of the Clean Water Act. (See this Water Desk article for more information.)

A study from the conservation group Trout Unlimited determined that a significant portion of the smallest streams are unmapped.

In designing the rule change, the EPA disregarded its own research on ephemeral and intermittent streams, arguing that the issue should be left to the states. It also brushed offattempts by conservationists to analyze the rule’s impact because they used data from the NHD.

“That to us seemed like a copout,” said Kurt Fesenmyer, GIS & Conservation Planning Director at Trout Unlimited.

Many researchers see the NHD as the best available resource for this type of high-level analysis, so dismissing them altogether, to Fesenmyer, was like throwing out the baby with the bathwater.

After that pushback, the EPA summarized why the agency felt the NHD was not worthy of use in regulatory planning. Simultaneously, it announced the mapping group.

Formally called the Aquatic Resources Mapping Group, it will pursue “federal, state, and tribal partnerships.” According to Matthew Wilson, the Army Corps regulatory programs manager and a representative in the group, they will use the NHD and other datasets to create a new visual tool showing which water bodies are federally regulated across the country.

This will require accurately defining ephemeral and intermittent streams in order to be useful since different stream types have different rules, but it’s unclear how that will happen.

“The Aquatic Resource Mapping effort will strive to improve mapping of the nation’s aquatic resources, including streams and wetlands, by enhancing existing national products as well as methodologies for mapping and modeling aquatic resources,” said Wilson.

The Army Corps is one agency that could benefit from improved mapping, according to Wilson, given that it is responsible for doling out CWA permits for development on regulated water. The group’s leader, Dwane Young, chief of water data integration at the EPA, declined to comment on specific activities and future targets.

An EPA fact sheet from January on the issue of NHD deficiencies and the launch of a mapping group, says that developing maps of CWA jurisdiction “will promote greater regulatory certainty, relieve some of the regulatory burden associated with determining the need for a permit, and play an important part in helping to attain the goals of the CWA.”

Piecemeal improvement

If Wilson is correct, then the mapping group will attempt to enhance the national mapping effort, thus overlapping with the work of USGS.

Over the last two decades, the USGS has been digitizing stream data into the NHD and improving its models using a grab bag of different techniques. But the USGS knows there is still much to improve upon, especially in the way data is collected. Currently, states are responsible for their own data collection, and mapping priorities differ from place to place. This means you can see distinct grids in the NHD that create a patchwork of unmapped landscapes, mapped areas with old data and, more recently, updated areas with the finest detail.

CO NHD ephemeral data — **Officially patchy.** Ephemeral stream data from the official National Hydrography Dataset is incomplete. Above, the red shows ephemeral streams in Colorado that seem to come to an abrupt end. This is due to the fact that data collection was mainly done on Forest Service land. An effort to update the data is in the works, but it will take time and computing power to incorporate it.

One of those finer details is what’s known as flow regime, or the seasonality of a stream: is it always flowing (perennial) or only temporarily after rain or snow (ephemeral)? This is where, according to Matthews, the EPA mapping group will need to focus some effort since he says the NHD doesn’t currently provide this information, or at least not uniformly.

The group is looking into using crowdsourced data from efforts like Stream Tracker to help define flow regime, since seasonality is one of the elements being tracked by the project. Wilson said this information would help the Army Corps more efficiently respond to Clean Water Act permit requests, which require determining if a stream is ephemeral, and thus unregulated.

Cue the lasers

Beyond making regulatory processes more transparent and streamlined, improving the NHD broadly benefits scientists and land managers around the country. Fesenmyer’s work at Trout Unlimited is part of a growing body of science that relies on the NHD, including 25 research papers so far in 2020.

One example is a five-year study, funded by NASA, that Neville co-authored in 2018. The study analyzed the extinction risk facing Lahontan cutthroat trout populations in Nevada, California and Oregon. The NHD was the basis for the team’s modeling work in that study.

“Fundamentally, it’s the first piece of information we need to know—where trout populations live and how big of a habitat they have,” she said.

In order to ensure their model was accurate, Neville’s research team had to use a satellite remote sensing technology to improve the accuracy of the data.

More and more, researchers are making use of another important advancement in order to acquire more accurate data. Using laser imaging, called lidar, scientists can remap study areas to achieve much finer detail. Many see this as the most promising advancement in data collection for hydrography mapping.

**Lasers in the forests**. A Digital Elevation Model (DEM) produced from lidar data for the U.S. Forest Service, which is investing heavily in the high-resolution data collection for myriad applications, including stream mapping. “With these very high resolution DEMs, we can also model the flow of water across landscapes with an unparalleled level of precision. We can then integrate the resulting data with the National Hydrography Dataset, providing vastly superior hydrography data than what was previously available.” — USFS text alongside image from its lidar project website.

Lidar is a high-resolution aerial-imaging process that uses a laser to measure the distance to the ground from either an aircraft or satellite to create three-dimensional elevation models. Since scientists know the approximate topography on which ephemeral streams can run, identifying those spots on the three-dimensional map is a good way to increase the accuracy of the NHD, according to Fesenmyer.

“Typically right now lidar is collected from a plane, and that’s an expensive high-effort deal,” he said, adding that it would be more desirable to have a space-based lidar sensor that uses satellites to collect data universally and at a more regular interval.

A satellite making regular laps around the Earth to capture new data for the NHD will be a huge upgrade, but crowdsourcing projects like Stream Tracker will still be needed to verify what’s seen on the ground. As of late 2020, 70 percent of the country had been mapped using lidar, including 73 percent of National Forest System land in the Southwest, 55 percent in the Rockies. The NHD won’t be able to use that upgraded data for some time due in part to the need for more computing power, according to Fesenmyer.

“Personally, I’d like to see this ephemeral data revised on a statewide level using lidar to better identify potential ephemerals,” said Chris Brown, GIS mapping coordinator for the Colorado Division of Water Resources.

Toward that end, the USGS has developed a program designed to help fund state lidar programs. The goal is to acquire high resolution data across the country by 2023, according to the website.

Crowdsourcing efforts are a promising complement to technical advancements like lidar—so much so that in August, the USGS launched its own version of Stream Tracker, called FLOwPER (for “flow permanence”), to gather data and incorporate it into the NHD. Along with the EPA’s aquatic mapping group and technological upgrades, crowdsourcing could add value by helping verify that the maps are still accurate since, according to Neville, climate change is altering the aquatic landscape.

“Efforts like Stream Tracker and others can be used to help improve the NHD, in terms of overall improving accuracy of a streamflow classification as well as working towards a more dynamic NHD,” said Kristin Jaeger, research hydrologist at USGS.

Trust but verify

Brown of the Colorado Division of Water Resources helps verify new data for the NHD. That data, he said, typically comes from the Forest Service and other government employees who are regularly out in the field. He hasn’t seen any Stream Tracker data come through his desk in Colorado, but he said that in order to incorporate such data, an extra filter would need to be applied “to confirm its trustworthiness.”

Nonetheless, crowdsourcing hydrography data is gaining traction.

Kampf and her team of budding and seasoned scientists will continue to collect stream data for partners at the Forest Service, EPA and others to explore.

Kevin Teiken, known as “Water Otter” on his Stream Tracker profile, is a natural resources management major at Colorado State University, and one of Kampf’s students. He joined the project as a volunteer in September and has already contributed nearly 20 observations. He said the area around his house in Fort Collins hadn’t previously been mapped, according to the mobile app.

Teiken began participating in the mapping project for a class, but has continued because he said it’s a good motivator to explore new areas on foot.

“I’ve found four or five irrigation or drainage ditches that only fill with rain that were completely new observations,” he said.

This story was supported by The Water Desk.

A Colorado River leader who brokered key pacts to aid West’s vital water artery assesses his legacy and the river’s future

By

Western Water

-

November 24, 2020

Terry Fulp served 31 years with the Bureau of Reclamation, including eight years as director of the Lower Colorado Basin Region. (Source: Bureau of Reclamation)

By Gary Pitzer

Managing water resources in the Colorado River Basin is not for the timid or those unaccustomed to big challenges. Careers are devoted to responding to all the demands put upon the river: water supply, hydropower, recreation and environmental protection.

All of this while the Basin endures a seemingly endless drought and forecasts of increasing dryness in the future.

For more than 30 years, Terry Fulp, director of the Bureau of Reclamation’s Lower Colorado Basin Region, has been in the thick of it, applying his knowledge, expertise and calm demeanor to inform and broker key decisions that have helped stabilize the Southwest’s major water artery. The centerpiece of that effort was the landmark 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, the river’s two major reservoirs. Fulp was instrumental in developing the modeling tool called RiverWare in the 1990s that has been used to build the data foundation for most of the key operational decisions on the river during the past 20 years.

“What really is the key to success are relationships. You can’t really work closely with folks and on very complex and contentious issues if you don’t know about each other and respect each other.”
~Terry Fulp, director of the Bureau of Reclamation’s Lower Colorado Basin Region

Even with the 2007 agreement, worsening drought and declining reservoir levels pushed the seven Basin states — Arizona, California, Nevada, Colorado, New Mexico, Utah and Wyoming — into urgent but protracted negotiations. The result was unprecedented Drought Contingency Plans last year for the Upper and Lower Basins that included participation by Mexico, a development founded on Mexico’s recent ability to store some of its water in Lake Mead.

Fulp has played an integral part in all of these decisions. As 2020 nears completion, so does Fulp’s career with Reclamation. He’s retiring after 31 years with the agency’s Boulder City, Nevada, office, which oversees the last 688 miles of the river’s path in the United States, including Hoover Dam to the Mexican Border. In an interview with Western Water, he talked about his accomplishments in a leadership role and the challenges that await the many Colorado River water users as they begin the arduous task of negotiating a new operating agreement for the Colorado River to replace the current one that expires in 2026.

WW: What’s been your proudest accomplishment as Regional Director?

FULP: The biggest one probably is our leadership in the collaborative approach that we have shown works so well in the Basin over the last 20 years, starting with the Interim Surplus Guidelines all the way through the Drought Contingency Plans, and Mexico’s big part of that. Forging a really close relationship with our colleagues in Mexico has been key to that program’s success. I think we’ve been able to accomplish some really important things.

Sustaining Lake Mead for the benefit of downstream water users in the Lower Colorado River Basin has been a key objective of agreements reached in 2007 and 2019. (Source: Lighthawk via The Water Desk)

WW: Are there examples that come to mind where people made a breakthrough in their relationships?

FULP: Definitely. Starting all the way back to what was called the California 4.4 Plan in 2003, that was huge. The Multi-Species Conservation Program also comes to mind. It’s still very unique and very successful in all of the environmental type of programs within this country and even within the world… And then of course the Interim Guidelines in 2007, the flagship agreement between the Upper and Lower Basin on the coordinated operation of the two big reservoirs. And, if I can add one more, our relationship with our Mexican partners was unforeseen 15 to 20 years ago.

These agreements are still working well but there have been hiccups and the main hiccup is the drought. It became more severe and drove the need for the Drought Contingency Plans that were signed on May 20th of last year. We worked over five years on that. These things are complex and sometimes they take a really long time. Living in it felt like it was long to me for sure and probably everybody else who was so involved in it. It just shows the complexity with all the different interests and that the way you get through that is really being collaborative – building relationships amongst all of us and then being able to really talk about the serious issues and find compromises.

WW: This is an important time, as the renegotiations of the 2007 Interim Operating Guidelines will soon begin in earnest. What are some of the major challenges that all the parties will have to overcome?

The Upper and Lower Basin Regions of the Colorado River Basin. (Source: Bureau of Reclamation)

FULP: The foremost one in my mind is the changing hydroclimate. Certainly, we know from the very solid research that is now almost 10 years old, just the warming of the planet… explains 8 percent to 10 percent of the decline in water flow due to increased evaporation and evapotranspiration. So that’s paramount in terms of what we’ve got to deal with. … It brings up issues between the Upper and Lower Basin, primarily that the Lower Basin is at full development and has been for the better part of 20 years and the Upper Basin isn’t. With decreasing water supply, that’s going to be a really thorny issue to figure out.

What we know from other river basins and even this one, is the last place you want to be is in a courtroom letting a court decide the best way to operate. That belief is still consistent throughout the Basin. We don’t want to end up there.

WW: As water users, including tribes, seek to fully develop their water right allocations in a tightening system, how can the spirit of collaboration and cooperation be maintained?

FULP: You brought up the tribal issue and I really view them as an integral part of the Basin family. And so, when I talk about the Lower Basin that I’m in and the people that need to be involved in this collaborative effort, obviously the tribes are key in that. And they also haven’t grown into their full potential in terms of water use.

If I could relive this, I would have had a stronger focus on not just relationships with the tribal community, but also helping them build the capacity within their individual tribes to more effectively participate in these complex discussions. We are well on that path now and lots of folks are working hard and I feel very optimistic that we are not just on the right path, but we’ve made significant accomplishments in that area and it will just continue to improve.

What really is the key to success are relationships. You can’t really work closely with folks and on very complex and contentious issues if you don’t know about each other and respect each other.

I know it sounds simple. Of course, it’s not, in fact. It takes a lot of work just like the technical work is really important and the policy work, but [relationships] are equally as important, maybe more important.

WW: A host of experts have outlined scenarios of drying Basin conditions fueled by climate change. What has to be done now to get ahead of this?

FULP: We’ll know more in 10 years than we do today, more about what’s really going on with Mother Nature. We won’t have all the answers on how to deal with that and there still will be great uncertainty to our future. I think in 10 years we will have put other mechanisms in place to mitigate those impacts, but I don’t think we’ll have it all solved by any means. We don’t even fully understand yet what we’re facing.

A persistent drought in the Colorado River Basin has dropped water levels in Lake Mead, as evidenced by the bathtub ring around the lake. (Source: Bureau of Reclamation)

WW: Is there room for getting even more innovative with the U.S.-Mexico relationship as far as how water is shared?

FULP: I think so. We do these things in increments. I love the term ‘pilot.’ I think the best way to get your experience initially and prove a concept is to do a program that is of finite duration with very specific, agreed-to goals and accomplishments. That’s the way you prove success and then you’re able to go forward to that next step.

Our agreement originally with Mexico to store water in U.S. reservoirs, because of that earthquake damage [in 2010] where they could not use their water during that period of time, was a huge breakthrough. It did have a finite term but because of that success we were able to build that concept into Minute 319 and expand upon it. And then Minute 323 went another step and extended those concepts and even included a drought plan. The door was then opened to much bigger projects to be co-funded by Mexico and the U.S. As an example, we have a work group looking at big picture desalination that the countries could share both the costs and benefits of that.

WW: You once told the story of how you were asked early in your career what the bumper sticker message would be for Colorado River Basin hydrology, and your answer was “Lake Mead Will Go Down.” Looking at the challenges ahead in the Basin, what would that bumper sticker message be today?

FULP: It probably isn’t that succinct or prophetic. But I would say the problems are only going to get harder. And the way to solve them is to communicate and collaborate. That’s the only way we will be successful.

Terry Fulp

Education: Bachelor’s degree, University of Tulsa; master’s degrees, University of Colorado and Stanford University; doctorate, Colorado School of Mines
Previous jobs: Deputy Regional Director, Lower Colorado Region; Area Manager, Boulder Canyon Operations Office; Manager, River Operations, Boulder Canyon Operations Office; Principal Investigator, Department of the Interior Watershed and River Systems Management Research Program; Manager, Geophysical Operations, Senior Geophysicist, Arco Oil and Gas Company (formerly Atlantic Richfield Company)
Fun fact: “When I first went to college and graduate school, I had no idea at all that I would end up in water. Through a bit of serendipity, I’d say, I just fell in love with it and have loved it for the 31 years or so.”

This story originally appeared on Western Water on November 6, 2020.

Reach Gary Pitzer: gpitzer@watereducation.org, Twitter: @GaryPitzer
Know someone else who wants to stay connected with water in the West? Encourage them to sign up for Western Water, and follow us on Facebook, Twitter and LinkedIn.

Using drone and aerial imagery – Water Buffs Podcast ep. 6 – Mitch Tobin

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The Water Buffs Podcast

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November 18, 2020

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Aerial imagery captured with planes and drones can help illustrate the lay of the land and explain both natural and manmade water systems. The Water Desk’s open-source multimedia library offers both still imagery and video footage from a bird’s-eye view. In this episode, Water Desk Director Mitch Tobin explains the initiative’s partnership with LightHawk and his own work filming water-related locations with a drone.

NOTE: This episode was recorded before the pandemic forced LightHawk to shift to pilot-only flights, but we are now using mounted GoPros to capture imagery.

Episode highlights

	Mitch Tobin, Director of the Water Desk Mitch is a licensed drone pilot with extensive experience taking aerial stills and video. He talks about the journalistic uses of aerials and the Water Desk’s resources for reporters. Related links: Water Desk free imagery library. Starts at 1:31
	How are aerials useful for water journalism? (2:15)
	Partnership with Lighthawk.org for aerial video The Water Desk partners with Lighthawk to get journalists up in the air to gain a different perspective and integrate aerial reporting and images into their work. Lighthawk conservation flying Starts at 3:37
	Aerial shoots: know before you go (8:43)
	Water Words: ”Headwaters” The term “headwaters” refers to the area where a stream or river begins. Starts at 12:18
	Be aware of no-fly zones (13:25)
	Dealing with motion sickness on the plane (13:36)
	How the Water Desk uses drone footage Browse the Water Desk’s drone and aerial footage, collected in an interactive map. Interactive map: browse drone and aerial footage. Starts at 14:44
	Commercial drone use requires certification (20:55)
	How to use drone imagery in stories (22:42)
	Value in crisis journalism – but mind the risks (25:28)
	Controlling a drone (28:36)
	Avoiding #dronefails (30:12)
	Drones-eye-view with VR controller (32:01)
	Differences between aerial and drone footage (36:52)
	Using automated features to pilot safely (39:20)
	How journalists can work with Lighthawk and the Water Desk (40:42)
Show more episode detail

You’re welcome to watch the video version of Water Buffs here on our website or subscribe to it on our YouTube and Vimeo Channels. If you prefer your podcasts on audio or on a portable device, subscribe using one of the services below or grab the feed url for your own service.

Share your thoughts – and consider joining us

If you’re interested in appearing on the show, please contact Water Desk Director Mitch Tobin at mitchtobin@colorado.edu. If you’d like to share your comments and questions, you can reach us at waterdesk@colorado.edu, or on Twitter and Facebook.

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Colorado eyes foreclosure against troubled Pueblo water company with $1.4 million in delinquencies

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Fresh Water News

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November 16, 2020

By Jerd Smith

An Arkansas Valley water and land company has left the State of Colorado on the hook for nearly $1.4 million in delinquent loan payments and emergency dam repair bills, and may face a rare foreclosure proceeding by the Colorado Water Conservation Board as a result.

At issue are two state deals, including a loan from the CWCB that has a remaining balance of $622,000 and an unpaid bill involving the Division of Water Resources and the CWCB’s emergency dam repair fund that has a remaining balance of nearly $750,000, according to the state.

Two Rivers Water & Farming Company, which has a history of chronic late payments, this year failed to make any payments on the $622,000 loan and has missed several payments on the emergency dam repair bill, according to the CWCB.

Greg Harrington, Two River’s chief executive officer, did not respond to requests for comment.

In a letter to shareholders late last summer Harrington indicated that the company’s problems were linked to a prior ownership team and the pandemic.

The CWCB’s revolving loan program has 335 active loans worth $400 million. The Two Rivers’ loan would be the first foreclosure the CWCB has pursued in more than 20 years, according to Kirk Russell, who oversees the CWCB’s lending program.

The CWCB loan dates back to 2012, when Two Rivers approached the state with a plan to rehabilitate a reservoir and restore dormant farmland to production, goals that are key to the CWCB’s mission, according to Russell.

“A storage project is right in our wheel house,” Russell said. “And they were interested in returning ag land into production and we are in full support of that.”

The CWCB typically lends to water utilities, cities and towns, and irrigation companies. But because Two Rivers presented valuable water rights and farm land as collateral, the state agreed to the loan.

“We felt that they were a risky borrower, because it was a private company, but we thought that with the collateral we would be protected and we would be able to recover the state’s revolving loan money if we had to foreclose,” said Russell.

Two Rivers is publicly traded on the federal Over The Counter stock exchange (OTC) under the stock symbol TURV. It describes itself as a company that develops “high yield irrigated farm land and the associated water rights in the Western U.S.”

It also has multiple subsidiaries, including two that are linked to the hemp and marijuana industries. One, GrowCo LLC, has filed for bankruptcy in U.S. District Court in Denver.

Whether Two Rivers can repay the state loans isn’t clear. It faces a shareholder lawsuit, and it has failed to file current financial statements with the U.S. Securities and Exchange Commission, as required by law, despite at least one extension.

The last financials were filed Nov. 18, 2019 and cover the first nine months of 2019. They indicate that Two Rivers had $401,000 in cash on hand, long-term assets of $44.5 million, including its water rights, and liabilities of $22.5 million, according to the SEC.

The CWCB has given the company until Dec. 1 to make a $76,000 payment plus late fees to the revolving loan fund. If that doesn’t occur, the agency said it will begin foreclosure proceedings. The CWCB’s board is scheduled to take up the matter at its meeting Nov. 18.

Russell, chair of the CWCB’s finance section, said his agency would seek to take control of the company’s assets, including water rights and farm land, should the board opt to proceed with foreclosure.

Two Rivers has valued its water rights at $25 million, according to filings at the SEC.

How the state plans to address Two River’s other unpaid bills isn’t clear yet.

“I am planning for the worst and hoping for the best,” Russell said. “Our board is interested in recovering the principal and interest lost. I hope they can do that.”

Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.

This story originally appeared on Fresh Water News, an independent, non-partisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Its editorial policy and donor list can be viewed at wateredco.org.

Overlooked Army Corps rulemaking would shrink federal stream protections

By

Circle of Blue

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November 16, 2020

A stream in the Rocky Mountains. Photo by Erik Mclean on Unsplash

By Brett Walton

Earlier this year, the Trump administration secured one of its signature environmental legacies when it completed a rule that reduced federal protections for wetlands as well as for streams that flow only following rainfall.

Environmental policy experts concluded that the administration’s narrow definition of the scope of the Clean Water Act was its most damaging decision for waterways. The rollback of the Obama-era ruling was a campaign promise of President Trump and a rallying cry for industrial lobby groups that supported him.

Now, the Army Corps of Engineers, with much less fanfare and in the final months of the Trump administration, is considering another rule change that would also shrink federal protection of small streams, ecologists and lawyers say. The Corps said in its proposal that it is acting in response to the president’s order to review regulations that burden energy development.

Some of the proposed changes will have essentially the same consequence as the Trump administration’s contraction of the Clean Water Act, according to Laura Ziemer, the senior counsel and water policy adviser for Trout Unlimited. The proposed changes to the Army Corps’ nationwide permit will reduce stream protections and expose longer sections of streams to damage, she said.

“It’s death by a thousand cuts,” Ziemer told Circle of Blue about the program that permits construction in wetlands and streams. “It’s another way to pave over with impunity the hydrologic function of our high-order Western watersheds.”

And not only in the states west of the Mississippi. According to Adam Williams, president of Brushy Fork Environmental Consulting, which restores ecosystems in North Carolina, Tennessee, and Virginia, the changes will harm streams in the mountainous Appalachian region in which he works.

The proposal “can be devastating to clean water in this country,” Williams wrote in a comment to the Army Corps.

A change in criteria exposes waterways to more damage

Section 404 of the Clean Water Act authorizes the Army Corps to oversee permitting for actions that fill or dredge waterways. Nationwide permits, intended for “minor” actions, are issued for projects that are expected to do minimal environmental damage to streams and wetlands. Individual permits are used when a project could cause significant environmental damage and requires a deeper analysis plus more public consultation.

From 2013 to 2018, the Corps issued about 20 times more nationwide permits than individual permits.

Currently, nationwide permits apply to 52 categories of activity, including pipelines, boat ramps, cranberry growing, mining, and dredging. Big projects use nationwide permits, too: the developer of the Keystone XL oil pipeline did so for hundreds of water crossings, as did the backers of the Mountain Valley Pipeline, a proposed natural gas pipeline in West Virginia and Virginia. Once a nationwide permit is granted, no additional public input or environmental review is required.

What constitutes “minimal” damage is determined by conditions set out in the nationwide permit.

The Corps is proposing extensive revisions, including adding five new categories while developing a separate category for oil and gas pipelines, which are now lumped with electric power lines.

One change above all has raised serious concerns from ecologists and conservation groups as well as state regulators.

For 10 of the permit categories, the Army Corps wants to shift from linear measurements to area measurements. Instead of limiting damage to 300 linear feet of stream bed, the Corps proposes that the standard be 0.5 acres, which is also the standard for wetlands. Disturbing less than that is assumed to have a negligible environmental impact.

The Corps did the math to make its case: Disturbing 300 linear feet of stream bed in a stream that is 6 feet across results in a loss of 0.04 acres. For a stream 25 feet across, the loss is 0.17 acres. Because the area of disturbance varies based on the length of the stream, the Corps wants to keep the area constant.

“This move seems fairly innocuous,” Ziemer said. But on closer examination this subtle change could have far-reaching effects.

The problem is with small streams, those that a person could jump across. Because these streams are narrow, a damage limit based on area would extend much farther upstream or downstream than the previous limit that was based on length.

The proposed change would greatly expand the length of stream that could be damaged in construction, according to calculations from the South Carolina Department of Natural Resources that were submitted to the Corps.

The department’s calculations are this: Damaging 0.5 acres of stream bed for a stream that is 6 feet across means allowing nearly 3,500 linear feet of the stream to be damaged — more than 10 times the previous limit and roughly two-thirds of a mile in length.

The suggestion to remove the 300-foot standard was included in a internal review of the Corps’ regulations. Completed in 2017, the review argued that replacing the linear standard with an area standard would streamline the permitting process, reduce costs for regulated entities, and reduce processing time. That review was completed in response to President Trump’s order that agencies minimize regulatory requirements for energy development.

When asked about its justification for the changes, a Corps spokesperson referred to the reasons given in the Federal Register notice.

Ziemer said that these headwaters, both small streams and wetlands, are worth protecting because their value ripples outward. By keeping them intact it preserves their ability to store water, like a natural sponge. Having the land hold onto the water that falls on it yields benefits during droughts and floods. Disconnecting those waterways by paving, dredging, or filling them in “can really set back the climate resilience of the Western landscape,” she said.

The public comment period for the proposal extends through November 16. Many comments submitted so far object to the removal of the 300-foot standard.

The South Carolina Department of Natural Resources wrote that the Corps’ use of acreage instead of linear feet is a false argument that ignores the way that rivers function. The department asserted that the 300-foot standard needs to be retained to “ensure continued protection of streams.”

Wendy Weaver, executive director of Montana Aquatic Resources Services, asked whether different metrics ought to be used. Shouldn’t the Corps consider a hybrid approach, she asked? In other words, comparing the length of the stream to the width. A stream 10 feet across could be allowed 50 feet of stream bed damage, but a 100-foot-wide stream could be allowed 500 feet.

Norma Kline, a former ecologist for the U.S. Environmental Protection Agency Region 3 and a former biologist for the U.S. Fish and Wildlife Service, claimed that the Corps fails to account for the full environmental impacts of its proposed changes and that they should not be approved.

Sportsmen for the Boundary Waters is a hunting and fishing group that aims to protect the Boundary Waters Canoe Area Wilderness in northeastern Minnesota. Spencer Shaver, the group’s conservation director, argued that the proposal would be worse than the current rules. He wrote that it would result in more degradation of streams and more damage to fish, wildlife, and aquatic plants like wild rice, which have cultural and ecological significance to tribes in the region.

Shaver asked the Corps to do an environmental evaluation of its proposal and consider the effects in northern Minnesota and Wisconsin, where there are mining projects that would be using the nationwide permit.

The lack of environmental review for its current nationwide permit, which took effect in 2017, has already led to legal trouble for the Corps.

Environmental groups sued the agency over its use of Nationwide Permit 12 for the Keystone XL pipeline’s water crossings. The groups argued that the Corps failed to assess the impacts to endangered species of its current nationwide permit. That lawsuit resulted in the Supreme Court upholding a lower court’s ruling that suspended the pipeline’s permits.

Is the Corps taking the lessons of that lawsuit into account in this revision of the nationwide permit by doing a more thorough environmental analysis? No, according to Doug Hayes, a Sierra Club lawyer involved in the Keystone XL lawsuit.

“They refuse to do it,” Hayes told Circle of Blue.

This story originally appeared on Circle of Blue and was published through the Institute for Nonprofit News network.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism. The Water Desk is seeking additional funding to build and sustain the initiative. Click here to donate.

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Water DeskFollow the water

Part I:The Connection

Part II:New Rules

Part III:Cutting Back

Water Desk Grantee Publication

Warm springs, hot drought

Reversal of fortune

Divergent interests

A long path forward

Part I:The Connection

Part II:New Rules

Part III:Cutting Back

Part I:The Connection

Part II:New Rules

Part III:Cutting Back

Water Desk Grantee Publication

More rights than water

Old rules, new playbook

‘Existing communities’

Part I:The Connection

Part II:New Rules

Part III:Cutting Back

Part I:The Connection

Part II:New Rules

Part III:Cutting Back

Water Desk Grantee Publication

Decades in the making

‘Controlled curtailment’

Departing from the rulebook

Waiting for the courts

Part I:The Connection

Part II:New Rules

Part III:Cutting Back

‘A significant loss’

Mapping watersheds, and politics

Piecemeal improvement

Cue the lasers

Trust but verify

WW: What’s been your proudest accomplishment as Regional Director?

WW: Are there examples that come to mind where people made a breakthrough in their relationships?

WW: This is an important time, as the renegotiations of the 2007 Interim Operating Guidelines will soon begin in earnest. What are some of the major challenges that all the parties will have to overcome?

WW: As water users, including tribes, seek to fully develop their water right allocations in a tightening system, how can the spirit of collaboration and cooperation be maintained?

WW: A host of experts have outlined scenarios of drying Basin conditions fueled by climate change. What has to be done now to get ahead of this?

WW: Is there room for getting even more innovative with the U.S.-Mexico relationship as far as how water is shared?

WW: You once told the story of how you were asked early in your career what the bumper sticker message would be for Colorado River Basin hydrology, and your answer was “Lake Mead Will Go Down.” Looking at the challenges ahead in the Basin, what would that bumper sticker message be today?

Episode highlights

Watch or listen wherever you get your podcasts

Share your thoughts – and consider joining us

A change in criteria exposes waterways to more damage

Recent stories

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back

Part I:
The Connection

Part II:
New Rules

Part III:
Cutting Back