By Daniel Rothberg
The Nevada Independent
A federal official is attempting to “obstruct” the flow of water to restore habitat at Walker Lake, the conservancy responsible for administering federal restoration funds alleged in federal district court last week. After years of litigation, lawyers for the Walker Basin Conservancy said that “at some point, the court must put a stop to the federal water master’s obstruction.”
The receding desert lake outside of Hawthorne is fed by the Walker River, which rises in California and snakes through Western Nevada. As irrigators began diverting water from the river more than a century ago, less and less water made it to the lake. And as the lake shrunk, its water quality worsened, splintering habitat for fish and migratory birds.
The river has long been fought over for decades. As early as 1902, rival ranchers were arguing over the river’s hydrology. More recent legal wrangling has turned to the environment — and what to do about the lake.
With federal funding approved by Congress in 2009, the Walker Basin Conservancy has purchased water rights from multiple farmers and ranchers in the basin. Instead of using that water to irrigate crops, the group planned to retire the water instream to flow freely into the lake, boosting its elevation.
The state is watching the federally funded effort closely. In a Walker River case before the Nevada Supreme Court, state lawyers recently argued that the conservancy’s work could restore the lake’s environment while eliminating a legal effort to fundamentally rethink how water is allocated.
But so far, the conservancy says it’s been blocked from shepherding any water to the lake.
Earlier this month, the conservancy was finally given permission to start moving a small portion of its water for the first time, something its executive director, Jeff Bryant, called “an exciting milestone.” The federal water master in charge of delivering that water, Joanne Sarkisian, said the group was not ready.
“They are making it far more complicated than it needs to be,” Bryant said in an interview.
After Bryant’s staff called for its priority water right on April 16, the federal water master wrote a letter to the conservancy saying no deliveries could take place until certain criteria were met, including a final order from the district court and the installation of more gauges in the river.
“No water deliveries will be made during the 2019 irrigation season until all requirements have been completed,” Sarkisian wrote (in bold) in a letter included as part of the lawsuit.
Lawyers for the conservancy said in their lawsuit that those stipulations were “inconsistent” with prior court rulings and a ruling from the state engineer, Nevada’s top water regulator. As a result, they asked the District Court judge, charged with managing a legal decree for the river, for a writ of mandamus forcing the federal water master to deliver water to Walker Lake.
Sarkisian and her lawyer did not respond to a request for comment by press time. In a second letter, the water master argued that “there are no additional or inconsistent terms and conditions being imposed.” She suggested that not fulfilling the requirement to install gauges would give the group preferential treatment among the water users in the Walker Basin.
In the court filing, the Walker Basin Conservancy rejected that idea. Instead, lawyers wrote that the move was the latest in a multi-year effort by the federal water master’s office to undermine their program.
“This is just another in a long line of efforts by the federal water master to obstruct petitioner’s use of water rights for instream purposes instead of agricultural purposes in the Walker River Basin,” they wrote, arguing that the water master had raised “erroneous legal objections” in the past. “At some point, the court must put a stop to the federal water master’s obstruction.”
The conservancy manages the Walker Basin Restoration Program, which Congress created in 2009 with grant funding from the Bureau of Reclamation. That action built on an earlier effort by Sen. Harry Reid to improve Great Basin desert lakes, where there is no outlet to the sea.
Since then, the conservancy has used the funds to purchase about 40 percent of the water it needs for its goal of delivering enough water to the lake that it restores water quality for wildlife. The water in dispute represents a small portion of the conservancy’s portfolio — about four percent. But Bryant said he viewed the delivery of its 7.7 cubic-feet per second as a test case.
“We need to make sure we can move water,” he said.
Each day the water is not delivered, Bryant said, the conservancy is missing out on water that it has a right to use. That’s why he said their most recent court filing was important. On Friday, the judge granted the conservancy’s request to shorten the window for the water master’s response to eight days.
He added that the conservancy has worked to mitigate any potential negative effects on irrigators by only using a little more than half of its water right. By switching the use of the water from irrigation to conservation, it would mean less water flowing through irrigation ditches throughout the Walker Basin.
Water users from across the state are paying close attention to the basin.
The Nevada Supreme Court is expected to hear a case on whether the public trust doctrine, a legal principle that governments are required to protect some public resources, applies to the state’s water law. That case revolves around Walker Lake. Since 1994, Mineral County, where the lake is located, has argued that the public trust doctrine should be used to protect the lake.
In addition to the loss of habitat, the county has argued that the shrinking lake has crippled its economy because residents and tourists are less likely to use the lake for fishing or boating. Last summer, the 9th Circuit Court of Appeals asked the state’s Supreme Court to hear the public trust issue.
A ruling applying the public trust doctrine to Nevada water law could have far-reaching consequences for existing rights within the state. Water users from Elko to Southern Nevada have already filed amicus briefs with the court.
In the conclusion of the state engineer’s amicus brief, state lawyers argued that the Walker Basin Conservancy was already fixing the issues that the public trust doctrine would address. The state argued that existing statutes and programs already balance private use of water with the public’s interest.
The conservancy’s approach, the state wrote earlier this year in its amicus brief, “obviat[es] the necessity for a major upheaval in existing law. Through the establishment of the Walker Basin Restoration Program, a private-public solution has been developed to acquire water rights to allow for increased flows of freshwater from the Walker River to reach Walker Lake.”
This article was reprinted with permission from The Nevada Independent. Visit them online at thenevadaindependent.com.