[TRANSCRIPT]

0:00:08 - (Joe Jeffrey): Think the deserts are barren wastelands? Think again. It's time for 90 miles from needles, the Desert Protection podcast. .

0:00:29 - (Chris Clarke): Thanks, Joe.

0:00:30 - (Chris Clarke): And welcome to another episode of 90 miles from needles, the Desert Protection podcast. I'm your host, Chris Clarke, and I am sitting watching a really beautiful sunset at Ash Meadows National Wildlife Refuge with Patrick Donnelly of the center for Biological Diversity.

0:00:48 - (Patrick Donnelly): Hello.

0:00:49 - (Chris Clarke): You just had a significant victory that you were part of coming out of the Nevada Supreme Court having to do with water. Do you want to give us a little background on that? Maybe tell us about the project that this all concerned and a bit of the history of that and why it's important?

0:01:06 - (Patrick Donnelly): Sure. The project of concern is a proposed city in the desert called Coyote Springs. Coyote Springs would have been a city of about a quarter million people in the desert about 60 miles northeast of Las Vegas, and some beautiful desert tortoise habitat in a place called Coyote Springs Valley. And when Nevada development happens, where there's private land, Coyote Springs Valley was public land. But many years ago, Harry Reid engineered a land swap with the military, some land in Florida, and a notorious Nevada lobbyist and real estate developer named Harvey Whittemore.

0:01:39 - (Patrick Donnelly): And so this land swap went through, a bunch of private land was created in Coyote Springs Valley, and the dream of the city of Coyote Springs was born. Whittemore later went to prison for illegally funneling campaign donations to Harry Reid. That must be noted. The problem for Coyote Springs was where are you going to find the water? Las Vegas. The only reason Las Vegas exists is because of water off the Colorado river. But that's delivered in a pipeline, and there was no pipeline to Coyote Springs Valley, so where are they going to get the water?

0:02:07 - (Patrick Donnelly): And of course, in the desert, if you drill deep enough, you'll find water eventually. And so they proposed and applied for water rights to pump a significant amount of water from the basin there. In Coyote Springs Valley, just to the east and south away, is a place called the Muddy river in the Moapa Valley. The muddy river is entirely spring fed. There's a number of springs at the headwaters of the muddy river that create this really big, significant desert river.

0:02:36 - (Patrick Donnelly): There are a number of endemic taxa of fish and spring snails in this river at the headwaters. And the springs there, including the Moapa dace, which is a federally listed endangered fish, was listed in 1967, I think, under the precursor to the Endangered Species act. And one of the reasons it was listed was drawdown of the springs. Groundwater pumping in Moapa Valley is already a major concern for the Muddy river. That was part of why the Moapa dase was listed. That was a kind of status quo situation. There was agriculture, there was other uses in Moapa Valley. It was somewhat under control and maybe not driving the Moapa days extinct up until Coyote Springs came town.

0:03:15 - (Patrick Donnelly): A hydrologist determined that pumping in Coyote Springs was likely to affect the muddy river, even though they were in different basins. And so this gets us to the sort of water policy context. Nevada in the 60s was divided up into 256 hydrographic basins. And these basins, theoretically were isolated supplies of water, because Nevada is mostly not rivers, it's mostly just arid desert basins. Each of these basins was meant to be a water management unit, and they followed the topography.

0:03:50 - (Chris Clarke): Surface watershed would be considered a hydrological basin.

0:03:54 - (Patrick Donnelly): That's right. And so it was almost an east coast idea of what a watershed is, and they just imported it to the desert. And, yeah, so each of these basins was basically a topographic watershed. There's some exceptions to that. And that was the given management unit for water resources. Science since the 1960s has come a long way, especially large scale geology. I mean, we didn't even know about plate tectonics in the 60s in the same way we do now, much less deep carbonate aquifer systems. And so, so much has been learned since then about the interconnectivity between these hydrographic basins and that indeed, many of them share the same aquifer.

0:04:32 - (Patrick Donnelly): And to understand that, you got to imagine that in the desert, water flows beneath mountain ranges. These aquifers, especially the carbonate, the deep limestone aquifers, can span a mountain range between two basins. And that happens, actually relatively frequently in the desert.

0:04:46 - (Chris Clarke): Yeah, that's one of the things that, in work to stop the Cadiz water projects that the Cadiz company tries to trot out, that how can this water flow underneath the Clipper mountains?

0:04:58 - (Patrick Donnelly): We hear it a lot. Really. That was part of the challenge here, too, at ash meadows in the Amargosa, because water flows under mountains here, too, from Mount Charleston across that mountain range there. So, yeah, science showed that all across the state of Nevada, there are basins which are interconnected and have interconnected groundwater aquifers. And thus pumping in one basin can affect water in another basin because the other corollary there, we know that these basins are interconnected.

0:05:26 - (Patrick Donnelly): We also know that anywhere there's surface water in Nevada, because it's the driest state in the union, that surface water probably started as groundwater. Very little of our surface water fell as rain or snow. Now, some of it, when there's a melt off in the spring. But in general, most of the year, the surface water began life as groundwater and came out in springs, creeks, wetlands, marshes, et cetera.

0:05:51 - (Patrick Donnelly): Not only did we, through science, learn that these basins are interconnected groundwater aquifers, we also learned that pumping groundwater affects surface water. That because surface water starts as groundwater, if you're depleting the source's supply of groundwater, you're going to eliminate surface water sources eventually. And this has been borne out in the Coyote Springs case. It's called the lower white river flow system case, which, I won't use that again, but that's the formal name of the proceeding.

0:06:21 - (Patrick Donnelly): So this was borne out there. The state engineer, the water czar in Nevada, the person making decisions, ordered a pump test after Coyote Springs. The city in the desert, applied for these water rights, and people said, hey, you might dry up the muddy river. The state engineer ordered a pump test where the Coyote Springs was going to pump some amount of water similar to what they would use and see what the effects are.

0:06:43 - (Patrick Donnelly): The pump test happened. They only pumped half as much water as they were going to use, and the springs all fell catastrophically. The spring discharge went right off a cliff and actually has never recovered. After that pump test, the spring levels were permanently decreased, and this was only after six months of pumping. It was supposed to be a two year pump test, and they stopped it early because it. Oh, we have the information we need.

0:07:06 - (News anchor): The water picture in and around the Moapa Valley is pretty bleak, and the state engineers looking for solutions to avoid having to cut people off from their own water rights. Our Patrick Walker is on the road tonight, reporting from Coyote Springs, not too far from the clerk and Lincoln county lines.

0:07:21 - (Patrick Walker): A very blunt presentation from state engineer Jason King to more than 100 people, many of whom have water rights in the valleys around us 93 and I 15 northeast of Las Vegas.

0:07:32 - (Jason King): We had an awkward test of just a fraction of how much water rights can be developed out there. And what we saw were impacts to springs and potential stream flow.

0:07:41 - (Patrick Walker): The state engineer doesn't believe there's enough water for the 42,000 acre development that was to have up to 150,000 homes. The scope of the project out here at Coyote Springs is pretty massive, but there are people who are not very excited about it, voicing their concerns to the state engineer.

0:07:57 - (Public commenters): We can understand why others would like to take water from it, but please don't let them do it. Since coyotes started pumping, the spring is not flowing anymore, and it's gradually gone down. If they simply say that there's not enough water for them and they should.

0:08:15 - (Patrick Donnelly): The Science bore out there. Even though these are two different basins, the basins are connected, and the groundwater pumping will affect the surface water here. So the next step was for the state engineer to take regulatory steps to put that science into policy, and the policy being denying those water rights applications. And so the state engineer issued an order, order 13 nine, that jointly administered all the aquifer basins in the lower white river flow system and set a sustainable pumping limit to save water for the moapades and the muddy river, and then denied the water rights applications.

0:08:53 - (Patrick Donnelly): And this was, of course, challenged in court. Nevada law implies that the state engineer can manage basins jointly and manage surface and groundwater as a single resource, but it never outright says it. And so there were ambiguities in the law in many cases. We had been fighting in the legislature to try to get some progressive language into the law. But order 13 nine was ripe for challenge, especially if you have deep pocketed, aggrieved individuals on the other side. And we certainly did. We had. On the other side was Coyote Springs, Lincoln county and Viddler Water Company, the infamous water speculators who were trying to hustle water for coyote springs.

0:09:41 - (Patrick Donnelly): We had Nevada co generation associates, which are natural gas power plants. Nv energy had water rights out there, the power utility. There's a landfill, there's a gypsum mine, all sorts of uses of this groundwater in this basin, in the lower white river flow system. And so they were all aggrieved by the state engineers order, and so they sued. They. They sued to overturn order 1319. We entered to defend order 13 nine and defend the state engineer into court.

0:10:19 - (Patrick Donnelly): The senator did, as well as the southern Nevada Water Authority, who is also our co respondents. So the water from the muddy river flows into lake Mead and becomes, among other things, drinking water for Las Vegas. And they have rights to that water. And so, ironically, if the fish has water, if the Moapadace has Water, southern Nevada Water Authority has water. And so they have a vested interest in the Moapa dace being sustained as a living organism.

0:10:57 - (Patrick Donnelly): And we have common interests.

0:10:59 - (Chris Clarke): Just for the context, the center and a whole lot of other environmental organizations were at Southern Nevada Water Agency's throat for quite some time about importing water from northern Nevada for use in Vegas.

0:11:11 - (Patrick Donnelly): We were historic enemies. And it's funny, because that campaign was all about strange bedfellows, but it was environmentalists and ranchers. And I like to say, if you want some real strange bedfellows, it's environmentalists and municipal water agencies. So, yeah, the state engineers, Southern Nevada Water Authority, the Muddy Valley Irrigation Company, and ourselves were in there in court to defend order 13 nine and went through district court. We lost at district court.

0:11:36 - (Patrick Donnelly): We felt like the judge made a terrible ruling at district court. So we appealed to the state supreme court, and eventually we've prevailed. And we just got that ruling two days ago, which basically, without going into all the details of all the legal wrangling for the past three years, since order 13 nine came out. Basically, the Supreme Court affirmed that the state engineer had the authority to do the things he did to manage groundwater and surface water as a single resource and to manage basins jointly.

0:12:07 - (Chris Clarke): A couple of days ago, and this is January 20 eigth, pretty recent, I'm assuming that Coyote Springs is going to appeal.

0:12:15 - (Patrick Donnelly): It was the Nevada Supreme Court. There is no appeal.

0:12:17 - (Chris Clarke): There's no appeal.

0:12:17 - (Patrick Donnelly): That's the end. Wow. Now, Coyote Springs has another round of litigation that they can continue to pursue. Now that order 13 nine, the order in question, has been determined to be legal. Now they go back to court to determine if it was based on substantial evidence. So in other words, the legal framework has now been determined to be legit. Now, the question is, was it based on substantial evidence? So the judge is going to look at the science and determine whether it was a reasonable decision for the state engineer to do what they did. We are confident we're going to prevail in that.

0:12:49 - (Patrick Donnelly): The real question was this legal precedent. And so coyote Springs is not dead in the water yet, but they are not going to fare well in the next proceeding, I don't think. But the reason we were celebrating so much this week was, yes, it's an incremental victory to getting rid of coyote springs. But the precedent for Nevada water law is just enormous. People will be citing this case decades from now, trying to progressively manage water in Nevada for the benefit of wildlife.

0:13:18 - (Chris Clarke): Are there any current issues that this is going to change the course of?

0:13:23 - (Patrick Donnelly): Certainly the Amargosa basin right here at ash Meadows is a place that this precedent could affect. This is a place where the connection between groundwater and surface water is evident. It's the whole basis for our being here. And the connection between groundwater pumping and surface water is also evident. And that's a large part of what the Amargosa conservancy and the Nature Conservancy and others have been funding all the hydrologic work out here for is to characterize that.

0:13:50 - (Patrick Donnelly): And so the state engineers now empowered to go out and manage surface and groundwater as a single resource, which means if groundwater pumping is depleting surface water resources. There needs to be limits put on that groundwater pumping. So potentially, this opens up a lot of avenues to deal with. It's a whole different podcast episode. But the existential threats to the amargosa from overuse of groundwater pumping, this is a place where that precedent could really be very impactful.

0:14:17 - (Patrick Donnelly): There's other places in Nevada, railroad valley. I would like to think it could be impactful there. There's some endangered species there. But the big place is the Humboldt river system up in northern Nevada. Humboldt river starts near the Utah border, near, like, Elco and that area, and flows all the way down to Carson sink east of Fallon. And that system is highly overappropriated. There's groundwater pumping. It's clearly drying up the river. There's mining companies, farmers like, huge numbers of stakeholders at each other's throats.

0:14:45 - (Patrick Donnelly): And there's been a lot of question about how the state engineer was going to deal with the Humboldt. And so this is really going to affect the Humboldt river quite a bit. I don't work on the Humboldt because they've destroyed it already. I'll be content to work on it in more remote basins, like this one here in the Amargosa, there's a lot of concern for the groundwater dependent ecosystems and the springs that depend on groundwater because of over pumping.

0:15:06 - (Patrick Donnelly): There's two places, there's too much pumping. There's Amargosa valley here where we are at ash meadows. There's a dairy and associated alfalfa farming, and they're pumping about 15,000 acre feet of water a year. There, right across the street, we could see it from here, from ash meadows. And then the other spot is the Perump Valley east of here, where there is also about 15,000 acre feet of pumping, in addition to about 11,500 domestic wells.

0:15:35 - (Patrick Donnelly): And each domestic well is entitled to two acre feet. So if all those people are pumping two acre feet, you're talking about a lot of water coming out of the ground in perump. And our hydrologic characterization work has shown that there is declining water levels propagating outward from Perump, potentially going to affect the amargosa in California. And then the modeling shows that declining water levels here in Amargosa Valley will eventually affect spring discharge at ash meadows.

0:16:03 - (Patrick Donnelly): And so what we would see if all that came to pass is just a gradual decrease in spring discharge, a shrinking of wetland ecosystems, a dieback of wetland vegetation, population, decreases in the endangered species and fish and plants that live out here.

0:16:18 - (Chris Clarke): There's two dozen species of note, there's.

0:16:21 - (Patrick Donnelly): A little over two dozen species endemic to ash meadows. I'm working on a list of the endemics of the Amargosa, and we're over 70 endemic species up and down the river, almost all of which are aquatic and many of them restricted to a single habitat. And so you're talking if one spring desiccates, that could be a whole species or multiple species. And even if the groundwater table lowers a little bit, it doesn't take much if you're in this shallow wetland with a little bubling spring. We're not talking about much water to begin with anyway.

0:16:52 - (Patrick Donnelly): A six inch decline in the groundwater table could actually be very significant.

0:16:58 - (Chris Clarke): This sounds like some tentative, extremely good news. How can listeners find out more about the implications of this decision from the Nevada Supreme Court?

0:17:06 - (Patrick Donnelly): Yeah, we issued a press release the other day which links to the decision. If you really want to wonk out, you can read the decision. So if you just Google center for Biological Diversity Coyote Springs, it'll come up. Folks can subscribe to my newsletter if I want to plug it real quick called sageandsand. So sageandsand substack.com. And I'm certainly going to be writing a big one about this in a few days.

0:17:28 - (Patrick Donnelly): And the Great Basin Water Network's been a partner on this issue for many years, and they just wrote a newsletter about the significance of this, too.

0:17:35 - (Chris Clarke): And we'll have links to all that in our show notes.

0:17:37 - (Patrick Donnelly): Oh, great.

0:17:37 - (Chris Clarke): Patrick Donnelly, thanks for joining us.

0:17:39 - (Patrick Donnelly): Thanks so much for having me and getting water wonky for a little while.

0:17:44 - (Chris Clarke): And that wraps up another episode of 90 Miles from Needles, the Desert Protection podcast. I'd like to thank Patrick Donnelly for talking to me about the Nevada state Engineers decision and the Nevada Supreme Court case when we were both up at Ash Meadows a week ago. I'd also like to thank Patrick Walker and the eight news now team in Las Vegas for the ability to sample a moment of their reporting on the origins of order 13 nine from a few years back.

0:18:12 - (Chris Clarke): As I speak to you, I am in Tucson, Arizona, continuing to report and investigate and do all of those kinds of things that your support of this podcast makes possible at all. If you would like to add to that support, whether it's a dollar a month or more than that, you can go to nine 0 mile from needles.com donate coming up next week, I'll be talking to proponents of a new national monument on the Gila river in the Gila Bend, Arizona area. It's shaping up to be a fantastic and fascinating episode absolutely a beautiful place.

0:18:51 - (Chris Clarke): I've sped through it a bunch of times, but I actually got out of the car this time and took a look around and walked around and, man, it's a national treasure. That's going to be a great episode. Hope you're looking forward to that. Many thanks again to Joe Jeffrey, our voiceover aNnoUNCER and to Martin Mancha, who created our wonderful podcast artwork, as well as to the people who made our theme song, Brightside Studio.

0:19:18 - (Chris Clarke): And to you, o listeners, always grateful to you. Please take care of yourselves. Keep fighting for the desert, and we'll see you at the next watering hole. Bye now.

0:21:14 - (Joe Geoffrey): 90 Miles from Needles is a production of the desert advocacy media Network.

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