Nevada Supreme Court Rules Surface Water And Groundwater Are One And The Same

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In an historic unanimous decision, the Nevada Supreme Court has ruled that the state may restrict new groundwater pumping if it will impact other users and wildlife. The decision puts a big crimp in the plans of a developer to construct a new community for 250,000 people in the Mojave Desert. It will also change how the state manages its groundwater.

Water is vital to the future of Nevada, which is the driest state in the nation. It currently relies heavily on water from the Colorado River, which itself is experiencing a reduction in water levels. Aquifers in and around Nevada are seriously depleted after years of drought, a problem common to many parts of the world as alterations to the Earth’s climate have led to more rain in some areas and less rain in others.

According to Inside Climate News, Nevada regulators can now view surface water and groundwater as a single source — something that has not historically been done in the state or elsewhere in the Southwest. They can also make changes to how the boundaries of groundwater basins are drawn up and divided as new studies reveal how much water they actually have and how they are interconnected with other sources of water.

The connection between surface water and groundwater has been the subject of bitter dispute at the national level since the Obama administration put its Waters of the United States policy into effect. That regulation also said that groundwater and surface water were intimately connected, but farmers in the West thought it was ridiculous that the discharge of nitrogen and phosphorous should be the subject of federal regulation if their property did not directly abut a river, lake, or stream.

The US Supreme Court, which is guided by ideology rather than common sense, agreed. It takes a determined brand of ignorance to not understand what groundwater is and that whatever gets added to surface water eventually becomes part of it, but that’s what you get when you make political hacks judges.

Groundwater And Coyote Springs

The decision by the Nevada Supreme Court is the latest chapter in what has been a decades-long dispute between proponents of the Coyote Springs development 50 miles outside of Las Vegas and the state’s various water agencies who argued the construction would impact other water users and wildlife throughout the region. “Our descendants in the environmental movement will be using this precedent to fight for wildlife in Nevada 50 years from now,” said Patrick Donnelly, the Great Basin director for the Center for Biological Diversity. “It’s extremely consequential.”

Kent R. Robison, who represented Coyote Springs Investment in the case, said the development “is frozen in time” because of the court’s decision, as it will take years to get clarity on how it could move forward. Emilia Cargill, chief operating officer for Coyote Springs Investment, said the developers do not know what they will do next, and their next steps “will take a little bit of consideration.”

The land where Coyote Springs would be built was originally public land controlled by the Bureau of Land Management. It was sold to private developers as part of a series of land deals Congress passed in the 1980s. But to build, developers need water. In 2001, the Coyote Springs developers sought around 30,000 acre feet of water a year from one of the interconnected basins in the region.

Opposition to more groundwater pumping in the area began to form shortly afterward, with groups expressing concern over how Coyote Springs could impact other senior water rights holders and the environment after the state engineer ordered testing to be done to examine the development’s potential impacts on the aquifer.

The dispute is not over yet, as the state’s Supreme Court remanded the case back to district court, where the litigants will argue over the science used by the state engineer in making the decision. If the court sides with the state again, it means a total of only about 8,000 acre-feet could be pumped out of the groundwater system, far less water than what is currently permitted, and likely killing any major plans of development for the area.

The Supreme Court ruling sets the precedent that the state can take action in regions facing drought and ecological challenges relating to water if the science backs up the decision, something environmentalists and water providers say is a major win for other issues and brings “Nevada water management into the 21st century,” Donnelly said. The state of Arizona has taken similar action because of concerns over groundwater in the Phoenix area.

That issue arose in the early 2000s as the development of Coyote Springs began to seek water rights. Applicants across six of the hydrographic basins in the region sought over 300,000 acre feet of water, roughly the same amount of water the entire state of Nevada gets each year from the Colorado River, with Coyote Springs seeking just under 30,000 acre feet.

The state engineer, Nevada’s top water official, found that no new water rights could be issued until significant testing was done to determine the impact further pumping could have on other senior water rights holders and the environment. A two year test of the six basins years later found groundwater pumping caused sharp declines in aquifer levels and the flows of nearby streams. In response, the state engineer issued Order 1309 to create the Lower White River Flow System that limits the amount of groundwater that can be pumped to prevent senior water right holders and the environment from receiving less water than they have been allocated.

The developer behind Coyote Springs sued, arguing the state’s decision was an “unconstitutional taking” of its existing water rights. In the court decision, State Supreme Court Justice Patricia Lee wrote that the lower court’s decision, which ruled against the state engineer, was improper, and the state engineer had the necessary  authority to promulgate Order 1309. The court also found the plaintiff’s rights had not been violated since they received notice of the state’s plan and had the opportunity to comment on it.

Groundwater And Lithium

The Amargosa Desert is one place that could be impacted by the decision. It’s home to the Ash Meadows National Wildlife Refuge, a wetland habitat in Nevada near the California border that supports a dozen endangered and threatened species. It is one of the most bio-diverse places on Earth.

Local communities and environmentalists have been protesting a proposed lithium mine near the refuge, which would bore holes into a series of interconnected groundwater basins that support the refuge and the species who live there. Last summer, a public campaign against the project and a lawsuit over the Bureau of Land Management’s decision to allow the drilling resulted in the federal agency rescinding the mining company’s permit to drill. In December 2023, the company submitted a new plan of operations for the site, leading the groups to call on the federal government to ban new mining claims in the area.

Studies have already shown that just drilling exploratory boreholes to find lithium deposits could alter hydrological flows in such a way that could be harmful to downstream springs and endangered species, said Mason Voehl, the executive director of the Amargosa Conservancy, an environmental group that has helped lead the push to protect the refuge.

Science Not Politics

The decision by the Nevada Supreme Court reaffirms the doctrine of “prior appropriation” in Nevada, meaning that the rights of those who first use the water take priority. Junior water rights holders cannot impact the supply guaranteed to older rights holders. If the science backs up the state engineer’s decision, the 31,000 acre feet from the basin once approved for various users in the basin will need to be cut to just 8,000 acre feet, which will require a reapportioning of water supplies that will likely take time and prove challenging to equitably implement.

However, no matter how the court rules in the case of Coyote Springs, the Nevada Supreme Court’s decision to manage groundwater depletion throughout the state and recognize how aquifers and surface water are connected will carry weight in water and environmental disputes for years to come.

“The state engineer has the tools and the tools have been approved, so in other cases where there are water rights users –real estate, mining, agriculture — who want to use water that will impact senior water rights holders or the environment, even if it’s in a remote location, the state engineer’s ability to manage that conflict is enshrined,” Donnelly said. “I think there’s going to be far more scrutiny and far more hurdles put in place for entities looking to exploit groundwater in places it’s just not sustainable.”

The Takeaway

The ruling by the Nevada Supreme Court is a blow to the notion of unlimited growth that has been part of the ethos of the American Southwest for generations. There simply is not enough water available to support continuous population growth. People have a hard time visualizing what they can’t see, which is one big reason why so little thought is given to groundwater resources.

Drought doesn’t care about political ideology. Aquifers that are depleted are very difficult to replenish. Once they dry up, they may stay that way for decades or even centuries. Humans need to manage scarce resources, not exhaust them. It seems the Nevada Supreme Court has gotten that message. Unlimited personal freedom is unsustainable. The rights of all members of society must be taken into account. That is the essence of a community.