It’s dry out there. (Getty Images, Creative)
Water law adjudication, already a complicated field, will only become more so because of the climate crisis, extended droughts, and increasing demand for groundwater in Nevada, the Supreme Court was told last week.
The court Friday held its first meeting for the newly created commission to study the adjudication of water law cases.
Members of the commission range from ranchers to conservationists to mining industry representatives and scientists. Several judges for rural counties were appointed to the commission, including from Lyon and White Pine County, who oversee a significant number of water law cases in their courts.
The commission comes after Chief Justice James Hardesty filed a petition to start the commission with an eye toward possibly creating a water law specialty court. However, the core mission of the commission is to improve the education, training, specialization, timeliness, and efficiency of the court’s approach to water law
Water law cases frequently involve the assessment of lengthy records, specific scientific concepts, conflicting expert testimony, and years of relevant Nevada history, Hardesty noted in his petition.
“This is not a commission that’s designed to rewrite Nevada’s water law or its statutes. We might in the progression of the commission’s work identify areas where recommendations might be made… but the principle objective of this commission is to focus on the process by which we adjudicate water rights,” said Justice Hardesty during the meeting.
Adam Sullivan, the acting state engineer, said primary resource challenges facing the state include prolonged drought cycles, a lack of available water throughout the year, and greater demand for groundwater.
“We are experiencing increasing temperatures across the state. Climate models consistently forecast that we will continue to see greater extremes in drought periods and flood intensity,” Sullivan said. “What this means is a longer growing season and higher water demands for crops.”
In Nevada, the average annual surface water usage is about 4-5 million acre-feet annually. A majority of that water – about 65 percent – is used for irrigation. Another 16 percent is used for municipal purposes and the remaining largest share – 19 percent – is used for wildlife and recreation.
About 1.5 million acre-feet of Nevada groundwater is used every year, about two-thirds of it for irrigation. The second and third biggest uses are mining at 10 percent and municipal uses at about 9 percent, respectfully.
“The greatest short-term impact is to our agricultural regions where reliable water supply on an annual basis is important for crops and local economies,” Sullivan said.
Water for environmental needs like springs and other aquatic habitats is also a concern because those resources don’t have the explicit protections afforded to water rights holders, Sullivan said.
“Increased development and competing demands put pressure on our water security across the state. As we grow and diversify water demands evolve and generally increase, but the supply is limited. This inherently creates conflict and our water laws have limited tools for how to manage it,” Sullivan said.
Sullivan said the Nevada Division of Water Resources is understaffed and overburdened by managing increasingly complex water conflicts.
Courts are reluctant to uphold cancellation or forfeitures of water rights, said Sullivan, contending that courts commonly find that water authorities followed the law, yet compassion for the circumstances overwrites statutory requirements.
Nevada’s water laws are founded on prior appropriation, meaning priority is given to the first person who used the water for beneficial use, but inconsistent application of state statutes makes resolving conflicts difficult, said Sullivan.
In establishing a water law specialty court, Nevada would be following the example of other states in the region.
According to a survey by the Nevada Division of Water Resources, four western states — Colorado, Idaho, Montana, and New Mexico — have created some kind of specialty court to handle water cases.
All states with water courts have also provided specialized education and training for judges who serve on water cases.
“From my perspective, I think Nevada water law has served this state very well. There is a great deal of flexibility in it,” said practicing water law attorney Gordon DePaoli, who represents the Truckee Meadows Water Authority.
Attorneys on the commission generally agreed that one of their top priorities should be shortening the length of time it takes to adjudicate water law decisions. Cases can take years to adjudicate, adversely delaying final water law decisions in the state. State water regulators say there’s been an increase in frivolous claims and unnecessary litigation over the past 10 years.
Members of the commission also requested more data on specific cases that show inconsistent decisions made by courts and how those decisions challenged statewide administration of water rights.
Judicial education on the complexities of water law, as other states have implemented, was supported by several commission members.
Oscar Wichman, who represents rural counties, suggested creating a specialized court system divided up to seven districts with lifetime appointments for judges assigned by the Supreme Court. Mining attorney Ross de Lipkau similarly suggested the Supreme Court appoint a few district court judges to hear all water-related cases.
“We have a system, that while not perfect, guarantees local representation, and I think that’s inherent in the current judicial review process that we have in law right now and I think that’s extremely important to maintain,” said Kyle Roerink, executive director of the Great Basin Water Network and commission member.
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