Tag Archives: Nevada Water

Laxalt Wading in the Waters

Sometimes it’s  a good idea to read all the way to the end of an article.  A point illustrated in this discussion of Adam Laxalt’s latest:

He participated in a conference call with EPA administrator Scott Pruitt on July 13, as part of a briefing over the Waters of the United States rule. Laxalt in 2015 entered Nevada into a lawsuit with 12 other states challenging the Obama administration’s expansion of the rule, which covers federally protected waters under the Clean Water Act.

Previously (2015)  the states won a TRO against the EPA’s expansion of the waters subject to the Clean Water Act:

“The States here have demonstrated that they will face irreparable harm in the absence of a preliminary injunction,” he said. “Once the Rule takes effect, the States will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act.”

“The Rule allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity’ of any navigable-in-fact water,” Erickson said.

As of 2017, Laxalt joined litigation involving groundwater rights, and the priority of states to exercise control, in one instance at the expense of Native American water rights:

A Native American tribe sued in federal court claiming that, as part of its federal reservation of land, it has a priority right to use groundwater in the valley. Relying on Supreme Court cases involving implied reservations of surface water rights, the 9th Circuit Court of Appeals held that a priority right to use groundwater under federal reserved land is included as an implied right with the reservation, and that that right necessarily pre-empts state water law.

[…] The brief, in support of writs filed by two Southern California water agencies, asks the Supreme Court to clarify whether the federal reserved water right doctrine extends to groundwater and, if so, under what circumstances, so as to guide all states on managing groundwater resources.

And, there’s another sticky legal wicket, as illustrated by the case of property owners in Pahrump who feel they will be harmed by a State Engineer’s office decision about drilling on private property:

“It is factually impossible for petitioner to be irreparably harmed if a stay of Order #1293 is not issued as it does not own any land or otherwise have an interest that is affected by the order,” Laxalt’s opposition filing stated. “Petitioner does not have any legal interest in the basin.”

The argument of legal standing revolves around a technicality, with Laxalt noting that as a limited liability company that did not exist until after Order #1293 was issued, Pahrump Fair Water LLC is not affected by the order. The filing read, “…a limited liability company is an entity distinct from its managers and members.”

Laxalt’s opposition contains various other arguments as well, including his belief that a stay of Order #1293 would harm the public. In addition to declarations regarding potential negative impacts to water supply, Laxalt predicted a rash of drilling if a stay were granted.

Laxalt may be on more solid ground in this case, but calling the input from resident members of the plaintiffs “impertinent,’ ‘immaterial’ and ‘irrelevant’ probably isn’t the best way to make friends, influence people, and get individuals to the table to negotiate a settlement.

Granted, water rights may not be a crucial element in the outcome of Nevada’s 2018 elections, but Laxalt’s relationship with the ethically challenged EPA director could raise eyebrows and questions in this political climate.

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Filed under ecology, Native Americans, Nevada politics, Politics

Local Water, the EPA: Beyond Goodsprings

Water Faucet EPA

The Reno Gazette Journal reports that there are 23 local water systems in Nevada which are not in compliance with drinking water standards (there are currently 22, but more on that later).  Three local systems listed in the article have lead contamination levels exceeding the lead standard, 15 ppb (parts per billion) as the “action level.”  The public needs this information. However, the agency responsible for establishing the maximum contaminant level (MCL) standards is the whipping boy of choice for the Republican Party.  In short – it really doesn’t do to get up in arms about water or air pollution levels and then call for the abolition of the Environmental Protection Agency.

The regulatory system isn’t all that complicated. The EPA establishes the standards and then it’s up to the states to devise the implementation.  There’s a reason for this. Setting national standards means that states can’t compete in a ‘race to the bottom’ in which some states seek to attract industry by lowering standards until they are in competition to achieve the status of “Worse Than Any Pig Would Ever Consider in a Sty.”  And, potentially damaging everyone else’s air and water in the process.  However, this hasn’t stopped Over-Hyped Demagogue Donald Trump from calling for handing over environmental regulation to the individual states.  [WaPo]

Nor has this made much of an impression on Seven Mountain Dominionist Ted Cruz; “Cruz has called the EPA a “radical” agency that has imposed “illegal” limits on greenhouse gases from power plants. “I think states should press back using every tool they have available,” the Texas senator has said. “We’ve got to rein in a lawless executive that is abusing its power.” [WaPo]

Ohio Governor John Kasich has been critical of the Michigan attempts to address its man-made, GOP inspired, water quality issues in Flint, MI, but hasn’t been on top of the situation with the Sebring, OH water contamination. [TP]

The 2008 Republican national platform was exceptionally mealy-mouthed about environmental protection:

“Our national progress toward cleaner air and water has been a major accomplishment of the American people. By balancing environmental goals with economic growth and job creation, our diverse economy has made possible the investment needed to safeguard natural resources, protect endangered species, and create healthier living conditions. State and local initiatives to clean up contaminated sites — brownfields — have exceeded efforts directed by Washington. That progress can continue if grounded in sound science, long-term planning, and a multiuse approach to resources.”

It’s not likely that much more will come from a 2016 version.   Nor should we expect much in the way of support for addressing the national problems associated with our drinking water systems.  Remember the ASCE’s Report Card on American Infrastructure (2013)?

“At dawn of the 21st century, much of our drinking water infrastructure is nearing the end of its useful life. There are an estimated 240,000 water main breaks per year in the United States. Assuming every pipe would need to be replaced, the cost over the coming decades could reach more than $1 trillion, according to the American Water Works Association (AWWA). The quality of drinking water in the United States remains universally high, however. Even though pipes and mains are frequently more than 100 years old and in need of replacement, outbreaks of disease attributable to drinking water are rare.”

Not to put too fine a point to it, but as a nation we’re running on a Run-to-Ruin system in which local water distributors are functioning with outdated infrastructure while trying to maintain acceptable levels of quality.  Goodsprings Elementary School offers us an example of what can happen given a 1913 building and 21st century water quality standards. [RGJ]  If Goodsprings was an isolated example, then we could address the aging pipes and move on, but it’s not that isolated, nor that uncommon.  Current EPA estimates indicate we are having to replace between 4,000 and 5,000 miles of drinking water mains in this country on an annual basis, and that the annual replacement rate will peak sometime around 2035 with 16,000 and 20,000 miles of aging pipe needing to be replaced each year. [ASCE]

Putting The Public Back In Public Utility

I am going to start with some basic assumptions. First, that a family or person should be able to move to any part of this great land and expect to find clean water running from the faucet.  Secondly, that it is not a good idea to allow individual states to set drinking water standards, since some might find it inconvenient or inexpedient to set scientifically reliable standards in the interest of “development” or “industrialization.”  Such a piece meal approach would put paid to the first basic assumption.   So, if we’re agreed that any person in this country should have a reasonable expectation of clean drinking water then we need national standards.

Some of the standards are easier than others.  Arsenic contamination levels offer an example of a complex problem with some nuanced related issues.  The MCL (maximum contaminant level) for arsenic was lowered in 2001 from 50 ppb to 10 ppb. Public water systems were to be in compliance by January 23, 2006. [EPA] [More information at FAS pdf] The Reno Gazette Journal reports ten Nevada water systems not in compliance.  One, the McDermitt GID has recently been declared in compliance with a current projected annual running average below 10 ppb after the system put in a new central well.

Arsenic enters the drinking water systems one of two ways, either through industrial activity or as a naturally occurring contaminant.  If the system is west of the Rocky Mountains it’s a reasonably good bet that the arsenic is naturally occurring.  It’s probably not too far off the mark to say that if the standard were set at 15 ppb most Nevada water systems would be in compliance, but the standard is 10 and that’s ultimately what matters.

The smaller public water systems have more trouble meeting the standards than the larger ones, as described by the BSDW:  “The smaller systems are the ones that tend to struggle with regaining compliance because they typically have limited financial resources so we have to collectively figure out ways to help that community get back to compliance,” said Jennifer Carr, NDEP deputy administrator. “Larger systems such as TMWA also have more personnel to tackle projects whereas some of our smaller water systems are operated by one person who might be doing another side job.” [RGJ]

And, now we’re down to the gritty part: Where does the money come from to resolve contaminant problems with arsenic? Or, for that matter, other water infrastructure issues?    The State Revolving Fund provides low interest loans for water infrastructure projects in the state; and can in some circumstances offer “forgiven” loans to small public water services.  The “bottom line” is that in 2016 there will be a need for approximately $279 million for arsenic treatment, groundwater treatment, storage tank replacements, metering systems, and distribution lines in Nevada.  And, the worse news, “Not all will be funded.” [KTVN]

The Drinking Water State Revolving Fund was created in 1996 to support water systems and state safe water programs.  “The 51 DWSRF programs function like infrastructure banks by providing low interest loans to eligible recipients for drinking water infrastructure projects. As money is paid back into the state’s revolving loan fund, the state makes new loans to other recipients. These recycled repayments of loan principal and interest earnings allow the state’s DWSRF to “revolve” over time.”  [EPA]   As of 2014 this system had provided $27.9 billion to water suppliers to improve drinking water treatment, improve sources of drinking water, providing safe storage tanks, fixing leaking or aging distribution pipe, and other projects to protect public health. [EPA] The EPA estimates that small public water systems nationwide, those serving populations less than 3,330,  will need approximately $64.5 billion for infrastructure needs. [EPA 5th report pdf]

What was the Republican controlled Congress’s response? They may have avoided a shutdown, but the waters weren’t exactly flowing:

The bill provides $863.2 million for the DWSRF  well below President Obama’s request of $1.186 billion and more than $40 million below the programs FY2015 appropriation.While the figure represents the lowest DWSRF appropriation in several years, it is significantly above the FY16 funding levels originally proposed by the House and Senate Appropriations Committees, each of which would have cut DWSRF funding to below $780 million. [UIM]

What have we learned?

  • The Republican candidates for the presidency show little to no enthusiasm for infrastructure investments in general, and beyond bemoaning the state of Flint’s water system which must be someone’s fault “just not ours,” even less enthusiasm for funding local drinking water improvement projects.
  • The Republicans in Congress were only too happy to cut funding for the best source for local public water companies projects, in the name of “fiscal responsibility” – meaning, one could think, that preserving tax cuts for the rich is preferable to providing clean drinking water to everyone.
  • The infrastructure needs in this country are serious and go well beyond fixing bridges and filling pot-holes.  This, and we’ve not yet reached the peak of distribution line replacement needs coming up in the next 20 years.
  • “Austerity” is a lovely buzz word, and “We’d love to do it but we just can’t afford to” is a fine campaign trail stump speech phrase, but these won’t keep the water coming from the tap clean and safe.  We need to stop thinking of our infrastructure as an expense and begin to consider it for what it is – an investment; an investment in the capacity of our cities and towns to provide basic services so that economic activity can take place.
  • And, NO it isn’t a good idea to abolish the EPA.

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Filed under Appropriations, Congress, conservatism, Economy, EPA, Infrastructure, nevada health, Politics, public health, Water

The Worth of Water: Nevada and its State Drought Plans

NV Drought Map Sept 2015 Consider the following information from the Reno Gazette Journal:

“In Nevada, all counties but White Pine and Lincoln are designated as drought disaster areas. Washoe, Storey, Carson City, Douglas, Lyon, Churchill, Esmeralda, Lander, Mineral and Nye counties are all in conditions of extreme or exceptional drought, with Lovelock’s Pershing County among the “hardest hit areas,” according to the Aug. 17 drought statement issued by the National Weather Service.”

And this:

“It’s difficult to overstate the dire impacts, said Benny Hodges, secretary-treasurer of the Pershing County Water Conservation District. As the drought lowered the Humboldt River and levels of Rye Patch Reservoir — now at about 5 percent of capacity — continued to drop, irrigation water for Lovelock area farmers went from scarce to non-existent. Irrigation allocations went from 80 percent of normal in 2012, the first year of the drought, to only 10 percent in 2013. This year is the second in a row that no irrigation water was available at all.”

There are some actions which are the direct result of a drought designation by the US Department of Agriculture: in 17 of Nevada’s governmental entities farmers and ranchers will be eligible for low interest emergency loans to continue operations. [AgWeb]

A reasonable person would think that an arid state would have some plans on file for dealing with drought conditions – other than directing agricultural operations toward emergency loans.  As of December 28, 2014 Nevada really  didn’t. [RGJ]  Although it must be said there was a document in some filing cabinet, which the Governor had received in 2012 concerning drought planning.  Local water districts and companies have drought plans, but as of December 2014 that didn’t necessarily hold true for the state.

It wasn’t until April 8, 2015 (with Nevada now into the fourth year of drought conditions) that the Governor’s office announced the creation of a “forum” to “craft a blueprint on best practices for water users and conservation.” [LVRJ]

What’s interesting about that the announcement at the shrinking lake side was that Governor Sandoval received a “State of Nevada: Drought Response Plan” (pdf) from the Department of Conservation and Natural Resources, the State Climate Office, and the Department of Public Safety, as revised in April 2012.  

“This State Drought Response Plan establishes an administrative coordinating and reporting system between agencies to appropriately respond and provide assistance to address drought and mitigate drought impacts. […] this Plan identifies a system used in monitoring the magnitude, severity and extent of drought within the state on a county by county basis. It establishes a framework of actions based on three states of responding to drought. Drought Watch, Drought Alert, and Drought Emergency.”

Scrolling down through the 2012 executive summary we find, “If a drought reaches Stage #3 (Drought Emergency) upon the decision of the Governor, the Division of Emergency Management may activate the State Emergency Operations Center. This center will be advised by the Drought Response Committee, making drought response policy recommendations as needed, supporting local drought emergency response efforts and carrying out the Governor’s policies.”

One of the distinguishing characteristics of the 2012 document is the insertion of diagrams designating the process for informing the Governor, sorting the activities of various authorities, and assisting the Governor in the setting of “the state’s priorities, drought mitigation, response and recovery policy and resource allocation direction based on information and recommendations given to the Governor by the Drought Response Committee and the needs of affected local jurisdictions, county or tribe.”

Another element in the 2012 document of interest is the insertion of some very tepid language about drought designations and their associated impact on other economic activities. “Formal designation may not substantially reduce economic impacts in drought affected areas but may cause serious economic impacts on tourism, agriculture, finance and other industries within the state. Unless a drought situation is expected to be of extreme magnitude, the safest approach is to aid county and local governments in determining their own situations.”

And with that the 2012 State of Nevada Drought Response Plan dumps the problems back onto the counties, local water suppliers, and tribes.  Thus, it isn’t easy to get an “emergency” drought designation in the first place, and when the designation or announcement is made the plans submitted by the various entities which deliver water within the state are supposed to kick in.

NRS 540 codifies this system.  Water suppliers are defined (NRS 540.121), water conservation plans, which are to be updated every five years, are required (NRS 540. 131) and are to be published “to the extent practicable” for public inspection on websites (NRS 540.141).  Water supplies are to provide incentives for water conservation. (NRS 540.151).

It’s easy to see why initial reports said there really wasn’t a statewide water conservation/drought plan – the plan appears to be that the state will require individual entities to have approved plans, and that the state will announce when the drought emergency elements of those various plans will be implemented – bearing in mind that given the soft language in the 2012 Drought Response document it’s probably going to be difficult to get the state to make that initial emergency announcement.

We return now to Sandoval’s Executive Order 2015-03, April 8, 2015.  After the preliminary “whereas’s” in which it’s admitted that Nevada has a water problem, and that the Nevada Drought Response Committee authorized by the 2012 document has been “continuously monitoring” the drought conditions,  the Governor has decided we need another report, from another layer of administration.

Sandoval established the Nevada Drought Forum in order to: (1) build on the activities of the existing Nevada Drought Response Committee; (2) evaluate key findings and next steps identified in the Western Governors’ Drought Forum Final Report (latest available is the Special Report, June 2015) as they relate to Nevada; (3) meet with relevant stakeholders; and (4) determine, with input from stakeholders and the public, the elements of a final report to the Governor.

As part of the bullet points in the executive order, there will be a Governor’s Drought Summit on September 21-23.  Unless some highly specific topics are generated in periods for “Showcases: Conservation Success Stories in Nevada,” or from the sessions on municipal, resort and recreation, industry and development, and agricultural water conservation – there doesn’t seem to be much emphasis on the development of a state PLAN for dealing with drought conditions.

To add more opacity to the issue, that Western Governors’ Drought Forum Report concluded:

“(1) Drought’s consequences ripple across western economies, communities, and environments. Preventing or halting drought is impossible, but there are useful strategies for enhancing resilience to its effects.  WGA will continue to work on drought by enhancing its Drought Forum online resource library, hosting webinars and workshops and briefing state and federal policymakers. (2)  WGA will perform additional outreach to drought task forces in the western states to identify data gaps that need to be addressed. (3) WGA will also compare  and contrast the approaches of these state task forces in order to identify additional best practices. (4)  In response to one of the key themes identified during the Drought Forum,  WGA will work with state and federal partners to support robust data collection and enhanced analyses and tools for drought management. Furthermore, the governors will consider the policy recommendations that emerged from the first year of Drought Forum as they work to improve the regional response to drought and to influence national decisions affecting water supply and resource management.”  (numeration added) (Special Report June 2015)

There’s good and bad news herein.  In item (1) there’s no indication that the western Governors are aware that one of the ways to mitigate drought is to acknowledge that climate change is a modern reality.  Indeed, there’s no small amount of fatalism – droughts might just be the new reality.  “Prevention is impossible,” is about as fatalistic as it gets. (2) is just about as safe a proposal as one can make – there’s always a need for more and better data collection. However, there’s nothing in this conclusion that insures there will be money in state budgets for such data collection and analysis.  (3) Best practices are also a safe bet.  However, it will require some legislative and executive will power to enact best practices into law, and to administer the statutes with an emphasis on conservation.  (4)  We’re back to data collection and sharing – a fine thing – but someone needs to pay for the collection, analysis, and interpretation of data.  Executive orders are usually good, but appropriations are nearly always better.

Color me a bit cynical, however a look at the sponsors of the WGA Drought Forum leaves some questions about the level of intensity with which they will address governmental actions necessary to address drought in western states.  NOAA and the Walton Family Foundation are “workshop partners,” the State of Oklahoma is a “regional forum sponsor,” “project sponsors” include the Los Angeles Department of Water and Power, Coeur Mining, Water Asset Management LLC, and Layne Inc.  “Report sponsors” include HDR, NHA, Nevada Mining Association, Dairy Farmers of America, Barrick, SRP, Southern Nevada Water Authority, Parjana, Pepsico, and Chevron.  “Communication sponsors” are ASI, Resolution Copper Mining, CAP, ECOS, National Groundwater Association, the Geological Society of America, Paramount Farming, and Irrigational & Electrical Districts Assn of Arizona.

And so, the Nevada Drought Forum has a nice shiny website, with updated information on monthly situations reports (the last up was for June 2015) – in which a person could find out if he or she was experiencing emergency, extreme, or exceptional drought conditions.  Or, discover that there have been three monthly meetings since June 2015, and a fourth scheduled for September 28, 2015.   Since minutes are not yet available online for the August meeting, we’ll not know if concerns expressed in a previous meeting about the lack of representation from wildlife advocates and rural areas were addressed in that session.

Questions?

  1. If the drought in Nevada is particularly extreme in rural areas like Pershing County, why were there no representatives on the Governor’s list of appointments to the Drought Forum from rural agricultural interests? Has this since been rectified?
  2. If we are aware of the effects of drought conditions on wildlife – why no initial representation for those interests? Has this been rectified?
  3. If we know that extreme weather conditions are associated climate change, and with droughts such as the one Nevada is experiencing now, then what elements of climate change science will be incorporated into the state’s planning for drought mitigation efforts?
  4. If the Nevada Drought Forum is directed to present its report to the Governor on November 1, 2015, then what actions has the Governor’s office taken to facilitate the enactment of legislation to implement the report findings in advance of the release?  The WGA Special Report (June 2015) emphasizes data collection.  If the report meshes with the WGA efforts,  do the various departments and divisions have the necessary funding to collect and analyze the data? 
  5. The Governor’s executive order doesn’t indicate any change in the status of the 2012 State of Nevada Drought Response plan, if the November report suggests changes in the SNDR then are the departments capable of implementing those changes?

So we resume our quotidian activities – further illustrating the truth of the old quote: “We never know the worth of water till the well is dry.”  (Thomas Fuller, Gnomologia  1732.

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Filed under Nevada economy, Nevada politics, Sandoval, Water