Pahrump water order appeal moves forward

The Nevada State Engineer’s appeal on water Order #1293A has taken one more step forward, with Pahrump Fair Water filing earlier this week its answering brief in response to the engineer’s opening brief.

Order #1293 and its subsequent amendment, Order #1293A, were issued by the state engineer’s office in an attempt to restrict development of domestic wells in the Pahrump Valley, where the basin is severely over-appropriated in terms of water rights permits.

The order requires two acre feet of water rights permits be relinquished in support of any new domestic well. While some undeveloped lots in Pahrump have already had the necessary water rights permits relinquished to the state, thousands of others do not. Owners of those that do not must first purchase two acre feet of water rights permits and then relinquish them to the state prior to drilling.

Pahrump Fair Water, a group made up of local property owners, well drillers and real estate agents, immediate pushed back against the order and filed a lawsuit against the engineer’s office.

After months of moving through the legal process, in November, 2018 a district court judge finally ruled in favor of Pahrump Fair Water and decreed that Order #1293A be overturned. The state engineer’s office then filed an appeal with the Nevada Supreme Court, where the case sits today.

At its most basic level, the argument between the state engineer’s office and Pahrump Fair Water centers around the question of whether or not the state engineer has the power to exercise authority over domestic wells.

The state engineer’s office obviously believed it was within its authority to issue the water order but Pahrump Fair Water has consistently contended that the state law specifically prohibits the engineer from regulating domestic wells except in very certain circumstances.

The Supreme Court will be the ultimate deciding factor in determining just how far the state engineer’s authority extends when it comes to domestic well water.

“Rural Nevadans rely on domestic wells to live,” Pahrump Fair Water’s answering brief asserts. “Since public water systems do not extend into rural areas, domestic wells are critical to the use of thousands of privately owned lots across Nevada.”

Because of this, the Nevada Legislature has repeatedly provided protections for domestic wells, the document argues.

Furthermore, the answering brief declares that even the state engineer’s office has recognized this fact multiple times, citing testimony before the Legislature in which two separate state engineers indicated they were not authorized to deny a person their right to drill a domestic well.

“This statement acknowledges that (1) the right to drill a domestic well is a separate and distinct property right and (2) the state engineer does not have the legislative authorization to restrict domestic wells,” the answering brief reads.

Pahrump Fair Water also takes issue with the state engineer’s acting without providing any prior notice whatsoever to those who would be affected and denying them the chance to speak on the order at a public hearing prior to its issuance.

This impaired the rights of due process, the answering brief declares, stating, “The state engineer concedes that if the right to drill a domestic well is a vested property right, constitutional due process protections attach and a notice and a hearing were required… Accordingly, the state engineer is left with only the argument that the right to drill a domestic well is not a property right… This argument is without merit.”

The document goes on to state that the right to drill a domestic well becomes a vested right once a parcel is created through a parcel or subdivision map. Therefore, any parcels created through that process contain a vested right to a domestic well, which cannot be seized by the government without proper notice and a public hearing. Pahrump Fair Water also argues that the water order constitutes both a per-se taking and a regulatory taking as it requires the relinquishment of state issued water rights, which are real property, and restricts the “reasonable, investment-backed expectations” of a property owner.

The answering brief also remarks upon the true purpose behind the water order, asserting that the order simply takes water rights from domestic well owners in order to help relieve the over-appropriation of the valley, a problem which was caused directly by the state engineer’s actions in issuing water rights permits.

“This two acre-foot relinquishment requirement ignores the fact that only 0.5 acre feet is pumped from the average domestic well in Pahrump per year. The real purpose for requiring more water to be given to the state engineer than will actually be used is described in the Nye County Water Resource Plan 2017 Update.

“The plan states that, ‘the relinquishment of water rights that are in excess of the actual usage will never be beneficially used and in fact return to the [public] basin’,” the answering brief states.

“That information indicates that over-dedication is really intended to offset the over-allocation of the basin that the state engineer’s office created by granting too many water rights… The state engineer is prohibited from exacting water rights from domestic well owners to correct an over-appropriation that his office created.”

The document contains a number of other legal arguments, including Pahrump Fair Water’s assertion that there is no substantial evidence to support the need for Order #1293A, all detailed throughout the 50-plus page filing.

The state engineer’s office now has until April 25 to file is reply brief with the Nevada Supreme Court.

All case documents can be reviewed online at www.nvcourts.gov by searching with case number 77722.

Contact reporter Robin Hebrock at rhebrock@pvtimes.com