The Nevada Division of Water Resources is reviewing NAC §§ 533.390–533.500, which govern applications for extensions of time to complete construction or apply water to beneficial use, to determine if amendments or repeals are necessary. A public meeting will be held on October 15, 2024, at 1:00 p.m. in the Bonnie Bryan Conference Room at the Department of Conservation and Natural Resources in Carson City. Stakeholders are invited to discuss the Extensions of Time process, including the impact of existing regulations and potential areas for revision.
Unlike the Truckee River or the Walker River, the Humboldt is fully enclosed within the state’s boundaries, from its headwaters to its terminus. It is a river characteristic of the Great Basin. That is to say its waters do not reach the ocean. They get trapped in a closed valley, a land once inundated by ancient Lake Lahontan during the last Ice Age. It is a small river by diameter, and its flows are variable. Mark Twain, in Roughing It, joked about jumping across it and drinking the river dry to cool down on a hot day.
Even in Nevada, it is not in the news as often as the Colorado or the Truckee, two of the primary drinking water sources for Las Vegas and Reno. But it is at the center of deliberations over how the state might manage water into the future, with potential consequences for other parts of the Great Basin. What happens next could matter for many because the Humboldt River Basin serves as the economic backbone for rural counties in northeastern Nevada. Without it, communities would not exist as they do.
And the issue the Humboldt faces is one so common across the West: There are more legal rights to use water than there is water to go around. It’s a major problem, and policymakers are under pressure to fix it. I spent some time thinking about it this last week, not in front of my computer, but while driving down I-80 to do some reporting.
The river and the conflict
If you’re driving from Reno east toward Salt Lake City, you’re going in the opposite direction of the river, and it’s a route that roughly tracks the conflict over water.
At the end of the river and about an hour into my drive is the town of Lovelock, and the surroundings change quickly as arid land gives way to green agricultural fields.
Farmers in Lovelock claimed water here first in time. That means under state water law, they hold “senior” rights and an ability to get their full water allocations before those upstream. In these rights, the farmers in Lovelock hold a lot of legal power.
But over the past two decades, they haven’t been getting their full allocation. A water manager representing Lovelock has said in that time, they’ve ended up with no water for three of those years and less than 50% of their water for nine of the years. Some of that is drought. Some of it is what is taking place upstream. It’s not that irrigators on the Humboldt are diverting more than their fair share from the river’s surface. It’s that in the past ~50-70 years, irrigators and mines have sunk more and more wells into the ground, pumping groundwater from surrounding aquifers connected to the river. As more water is pumped, less groundwater makes it to the river and down to Lovelock.
Put another way, the water is captured or intercepted by groundwater pumping.
A very general summary of the science, but you get the idea. Once you get a few more miles down I-80, you can see what they are talking about with your own eyes as the lower Humboldt gives way to a middle segment. Not too far from the highway and the town of Winnemucca in Humboldt County, there are dozens of center-pivots that rely on groundwater pumping. Even farther along I-80, you hit the town of Carlin. Nearby, massive gold mines have sunk deep groundwater wells needed to dewater open pits (in order to mine beneath the groundwater table, operations must clear the area of water).
Much of the water used up here is backed by lower-priority water rights, and that’s because a lot of the water used to irrigate fields or dewater mines is groundwater.
With rural electricity, improvements in drilling technology and better understandings of hydrology, people started to claim more and more groundwater rights in the ~1950s on, years after the surface water was claimed. That might not sound like a big deal, but what that means from a water rights standpoint — where “first in time is first in right” — the groundwater users have a lower priority to use water from the Humboldt River than those downstream in Lovelock. Stated another way, because surface water downstream in Lovelock developed before groundwater upstream in Winnemucca, Battle Mountain, Carlin and Elko, farmers in Lovelock have a priority to the river.
It’s a point of contention because even as Lovelock farmers have seen less water over the past two decades, groundwater users have been allowed to continue pumping. For a decade now, Lovelock farmers have wanted the state to do something about it — get the state to curtail groundwater users and prevent the capture of their surface water.
It’s been hugely controversial because of how embedded groundwater pumping is in agricultural and mining activities that support towns like Winnemucca and Elko. Not only that, figuring out how to curtail pumping to physically get water back to the river is no easy feat. There is a lag time in how groundwater moves through the subsurface. So if groundwater pumping was shut off tomorrow, it wouldn’t fix the issue overnight.
Rye Patch Dam upstream of Lovelock.
Why this matters now
So the vexing question remains: What do you do about it?
There has been litigation and settlements, litigation and compromises. But now the state again is moving to do something about it, and the stage is finally set for action.
For the past year, the state has been looking to shore up its legal authority to manage groundwater’s impact on surface water, an issue taken up first in the state legislature.
In Carson City last year, a coalition of water groups pushed legislation to recognize the hydrologic connection between ground and surface water, historically managed as separate sources. For years, there was legal uncertainty about what authority the state had to manage the two together. The bill tried to clarify that, noting the two sources can conflict (i.e. the issue on the Humboldt). Soon after the legislation was introduced, lobbyists stormed into the natural resources committee and eventually killed it. They included the state’s largest mining company, which the New York Times wrote about.
But it was hardly only Nevada Gold Mines that opposed the legislation. A lot of major interests testified against the legislation (Strange as it is to say, I actually thought the Times article both overstated and understated the mines’ influence. For instance, it did not include the PAC money it has donated to Democrats and Republicans or its large ranch holdings in the Humboldt Basin. At the same time, having reported on the bill, the mines were not the only driver of the opposition). Anyway, I digress. My point is that the legislation died and there were powerful groups that sought to shut it down. My second point is that this issue affects a lot of powerful interests across the state.
The more important dynamic was what was going on in the courts.
In the background, ongoing litigation was continuing to simmer along the Humboldt River over a state water order geared toward managing groundwater pumping. In fact, Nevada Gold Mines actually asked the state Supreme Court to restrict the state from enforcing the order, a request that a panel of three justices denied. At the same time, the Nevada Supreme Court was considering another related case on a similar topic.
And in January of this year, the court published a unanimous ruling that concluded the state “has authority to conjunctively manage surface waters and groundwater” as a connected source. The case was not about the Humboldt River but it put the state on greater legal footing that it could manage the effects of lower-priority groundwater pumping on rivers and springs when it conflicts with higher-priority surface rights.
Clarifying this authority was the easy part though.
How to actually manage the Humboldt River Basin conjunctively remains a tough question. Since last summer, the state has held workshops to solicit ideas for how to move forward. If you truly want to nerd out, the meetings are online. And earlier this year, after the workshops ended, it impaneled a working group on how to go forward.
That group has started meeting.
I’m not sure what the state will do or what will happen next, though I’m guessing it will all take time. Still, I do think it’s worth watching. The Humboldt could end up serving as a prominent test case for how the state might go about managing surface water in conjunction with groundwater pumping — an issue in many places (thus the widespread attention in the legislature last year, coming from many varied corners).
The Nevada Division of Water Resources is proposing new regulations and amendments to existing regulations pertaining to hearing procedures set forth in Chapter 533 of Nevada Administrative Code (NAC). A workshop has been set for: Monday, June 24, 2024, at 10:30 a.m.
The purpose of the workshop is to solicit oral and/or written comments from interested persons on rules of procedure for hearings before the State Engineer and pre-hearing procedures including a meet and confer between the parties. This is building from the amendments first proposed under R125-20, and intended to have continued under R142-22.
Workshop materials are available on the Division’s website at: http://water.nv.gov/
In response to NDWR’s call for nominations for the Humboldt River working group, NDWR received more than 45 nominations. From these nominations, and based on past participation, letters of recommendation, and the desire for broad representation, NDWR selected 22 individuals including four from the Humboldt River Basin Water Authority; Shayla Hudson, Bennie Hodges, Sabrina Tomera Reed and Jeff Fontaine. The full member list is shown below. The first meeting for the working group is planned for late June.
The Nevada Supreme Court yesterday on January 25th issued a long awaited Opinion on State Engineer Order 1309 for the Lower White River Flow System. The Court found that the State Engineer has statutory authority to combine multiple basins into one hydrographic “superbasin” based on a shared source of water and to manage water conjunctively. The Court also remanded to the District Court a review of the evidence used by the State Engineer to determine the maximum amount of groundwater that can be pumped.
This is an important ruling that could have major ramifications for how water will be managed in Nevada, especially in the Humboldt River Basin.
The Sixth Judicial District Court of Nevada on January 24th granted a stay of the State Engineer’s Order 1329 pending a decision on the merits. The Court found that the Petitioner, Buttonpoint Limited Partnership, may incur irreparable harm should the stay be denied and that Order 1329 is actually more harmful to the public absent a stay, because it relies on an unfinished groundwater model, subjecting the public to a fundamentally unproven methodology for calculating capture and any permanent effect it may have on existing and future water rights.
Click here to read the District Court’s Order- Staying SEs Order 1329 Pending Disposition.
