Ex-state water boss: King lacks authority

TONOPAH — Former deputy state engineer Bob Coache said there is no authority by the state engineer’s office to require proof of beneficial use of water rights basinwide, during a listening session scheduled here last Thursday night.

“Lately there’s been a never-ending beating of drums for the state engineer to call for the filing of proof of beneficial use of non-certificated water rights in the Pahrump Basin as a method of reducing the amount of unappropriated water rights and bring the Pahrump Basin into balance,” Coache said. “The state engineer does not have the authority, statutory authority, to call for PBUs as a management tool.”

The calling of proof of beneficial use violates the state prior appropriation doctrine of “first in time, first in use” and would not withstand judicial review, he said. It had been suggested as a way to narrow the discrepancy between permitted water rights and the recharge into the basin.

Coache said there’s no question the state engineer has the right to regulate water right permits, either denying permits or canceling them if the permittee doesn’t show due diligence to exercise their water rights in an expeditious manner.

Coache, who is a consultant today, said at times he thought proof of beneficial use was a valid and useful tool to bring a hydrographic basin into balance. But after attending meetings in Pahrump and talking to people in Nye County, he concluded the state engineer doesn’t have the authority to do it.

“The state engineer has broad discretion to management and regulation of water rights. However, the management and regulation of water rights are subject to judicial review and are sometimes no longer deemed and are sometimes overturned by the courts on the grounds the state engineer lacks the statutory authority to make the decision,” Coache said.

One example involves recent actions by the state engineer to reduce consumptive use when changing irrigation water rights to other uses, like quasi-municipal use, he said. Those court actions led to action by the Nevada Legislature to change the law in 2007 giving the state engineer statutory authority to reduce consumptive use.

Coache noted Nevada Revised Statute 533.380(4) allows for a permit holder to make complete beneficial use of the water for certain economic conditions, like in times of drought. The courts have ruled against the state engineer’s decision based on equity, he said.

“To do a blanket call for PBUs opens the very doors for an argument into the very basis of an equity argument,” Coache said.

Coache suggested requesting an attorney general’s opinion to decide whether the state engineer has the authority. He said the only choice in regulating water use is the priority date, which includes domestic wells.

“During my 30 years overseeing the Pahrump Basin while working for the state engineer, approximately 1 percent of the existing water rights were issued during that time. During the same period of time, 9,737 domestic wells were drilled, none of which the state engineer had the statutory authority to stop or prevent being drilled. Therefore, I also suggest the state engineer work with Nye County requiring the dedication of at least two acre feet for the drilling of any future domestic well where a dedication of water rights has not already been made in the Pahrump hydrologic basin,” Coache said.

He suggested legislation be created to give the state engineer the right to require dedication of those water rights for drilling new wells, in every basin designated as a critical management area, not just Pahrump.

King said his office began looking at the definition of “active management areas” for water after the state Legislature in 2011 allowed him to regulate water rights by priority date after 10 years in critical management areas, unless a groundwater management plan is drafted.

“We had heard from the stakeholders in Diamond Valley and Pahrump Valley, they were concerned about the stigma a designation of a critical management area may have to the valley, to its economy,” King said. An active management area “is perhaps a softer landing than a critical management area,” he said.

Domestic well owners have the ability to withdraw up to two acre feet of water per year, which equates to 1,800 gallons per day. But King said, “it’s not something you want to hear in Pahrump but that’s something we can list as something we can consider in a critical management area in a groundwater management plan, that our office has the ability to restrict the amount of water pumped from a domestic well.”

While other states like Utah allow people to keep some of their water rights and not put them to beneficial use every five years, King said it’s been a popular concept in his listening sessions as a way to conserve water but it’s not allowed in state statute.

State Senator Pete Goicoechea, R-Eureka, said there was a discussion in the Ely listening session about setting a statutory deadline for people to provide proof of vested water rights, perhaps in 10 years.

“We’ve heard some other western states have actually put in statute there is a drop dead date for filing all pre-statutory claims to water. We like that idea, the division likes that because we’d like once and for all to have all that information on record in our office as many of you know when you’re adjudicating rights, when you’re looking at proof, seeing what was put to beneficial use 100 years ago. The time lapse makes things difficult,” King said.

Water district consultant Oz Wichman said he spent 40 hours researching the water rights when he purchased a ranch in Big Smoky Valley, researching deeds dating back to 1873, when the county seat was in Belmont.

Water district chairman John MacLaughlin said while Pahrump may have 11,200 wells drilled, only 9,200 may be pumping water.

“Even if it’s 9,000 domestic wells and they’re allowed up to two acre feet, that’s right up at the perennial (yield) or pretty damn close. So we can sit here and argue about 9,000 or 11,000 but it doesn’t change the end game,” King said. Inventories by the state engineer’s office estimate actual usage is about a half acre-foot per household per year, he said, but emphasized the importance for well owners to voluntarily supply actual meter usage.

Nevada Division of Water Resources Engineer Rick Felling said his office would accept meter readings provided by homeowners with wells. He added Nye County already collects data on a lot of wells, which provides good water level data for Pahrump Valley.

Tim Hafen said customers for his Pahrump Utilities Company average 280 gallons per day per household, but estimated only 115 gallons is used in the home, the remainder for landscaping or outdoor use. He said there’s lots of room for conservation measures.