Watch Desert Wars September 25, 2006 at 8 pm on KUED Channel 7
Interviewer: Lets start out talking about the process you will go through in evaluating the permits applications.
Hugh Ricci: The process under the Nevada water law I will make in terms of general comments. There are a number of criteria in which the State Engineer reviews application and I'm speaking in generalities here right now as opposed to any particular application. One, is there water available at the source? Will it impact existing rights? Will it prove to be detrimental to the public interest? and in issues where there are surrounding domestic wells will it have an impact on domestic wells? Those are the four criteria that are used. When it comes to inter-basin transfers, there are some additional criteria that the legislature introduced in 1999 or 2001, I don't recall the year, that included, which is key here… will the inter-basin transfer prohibit growth within the basin of origin? That probably is the most key one right there. Throughout the years the State Engineer's Office, Division of Water Resources I probably will use those two terms synonymously and they are synonymous because I am the State Engineer who is the head of the Division of Water Resources I'll sometimes use those to get at one or the other. We have entered into cooperative agreements with the US Geological Survey to do studies in various valleys. Between about 1970 and the late 1980's they were done on a reconnaissance level. Since that time there have been some additional studies to go into a little more depth and as technology increases they can make a better determination of certain parameters.
Interviewer: We were talking about the data and how this data is gathered for information to make your decision. How do you go about gathering this data?
Hugh Ricci: The data that is used by the State Engineer's Office in a number of instances has been gathered by the US Geological Survey through reconnaissance level reports ranging from about the late 1960's to the 1980's, however since that time there have been some additional studies done. Also when we go through the hearing process, there are the applicants and the protestants that present their data and they also have their reasons for presenting that data and that is all used in this whole process.
Interviewer: Who actually owns this water?
Hugh Ricci: The water under the statues of Nevada, the water belongs to the public. It doesn't belong to the state. It doesn't belong to any individual. It belongs to the public.
Interviewer: How do you determine if there is actually surplus water to be allocated?
Hugh Ricci: In these reports that I mentioned that are done by the US Geologic Survey, there is a determination of recharge and discharge. Recharge comes from precipitation and stream flow infiltration. Discharge is either through vegetation and the evapotranspiration that occurs from there or the actual amount of pumping that goes on from any particular wells, that being the discharge side. If everything is in equilibrium, the water levels remain the same but when you start pumping, there is going to be some kind of drawdown around that particular pumping area. In those evaluations, they make a determination of which is called perennial yield, which this office uses and that is the maximum amount of water that can be salvaged on a yearly basis without detrimental effects to the basin.
Interviewer: What will be the criteria you will use in determining this permit application from SNWA?
Hugh Ricci: Well the criteria under any change application relating to Snake Valley will go through the two processes that I mentioned. The first is the four simple criteria that have been in place throughout the water law except the domestic well portion of it. The newer ones—the criteria is, as I mentioned earlier, is there sufficient water that would not prohibit the growth in the basin of origin. One of the other criteria—is there a need where the water is being applied to go? that being Southern Nevada. There also is a necessity to determine whether they have a conservation plan and whether that is carried out effectively. One of the other criteria—is it environmentally sound? We haven't had any challenges on any of those yet because we've only applied it in one instance to date and we have not had a determination through the court system yet as to whether that was applied correctly.
Interviewer: Are there laws that would protect the rancher's water rights?
Hugh Ricci: In Nevada the doctrine of prior appropriation is what is in play. That means that first in time, first in right. First in time means that whoever applied for that water right and got a permit for that particular use, and has used it in accordance with the statues is the first priority holder. Everyone else is junior to that particular permit and so you keep granting permits and every permit that is granted is granted subject to existing rights.
Interviewer: Ranchers fear their springs and wells will be affected. Are those fears valid?
Hugh Ricci: Every situation is a little different and that is one of the reasons why we go to hearing to make a determination as to what information, which we may not be aware that someone else has whether it be the applicant or protestant, that has some information and all of that information between those two parties and what information we have, whether it be from the US Geological Survey or some other scientific organization we evaluate all of that and make a determination. Under certain conditions we'll make a requirement for monitoring and mitigation, if necessary, as a condition of the permit. Now what you're asking me if specifically this would be down in Snake Valley—that would have to wait until we made a determination as to what if any water rights would be transferred out of there. There is no prohibition under the state law to say that they are asking for all of the un-appropriated water. Again though, keeping in mind that the criteria for an inter-basin transfer cannot prohibit future growth in development in the basin of origin, so that has to be taken into account as to how much water needs to be left in the basin of origin for future growth. What's going to end up happening is there is going to be a decision by this office, and I say by this office because there may be some successor of mine that eventually ends up with this many years from now… but the process of permitting in the state is, the application is filed, we make a decision as to whether to grant a permit or not. If a permit is granted or if a permit is not granted, anybody who feels aggrieved by that decision can appeal that to the court of the proper jurisdiction. In this particular instance it would be where the points of diversion are located, and then it goes through a judicial process and the judicial process reviews it as to whether the State Engineer abused his discretion in making that decision and did not base his decision on the evidence of testimony. It is not a brand new trial.
Interviewer: If the USGS gives you data that would actually impact a national park like Great Basin National Park for example, what happens then?
Hugh Ricci: Again, what we would do is look at what sources are impacted and to what degree and then have to make a decision as to whether you curtail pumping--that is under the assumption that you've granted then the permit in which to pump—or could they mitigate that in some way?
Interviewer: Some folks have called this a water grab and point to a parallel with Owens Valley. Are there regulations that would prevent that from happening today?
Hugh Ricci: The issue of interbasin transfers has come up a number of instances and references have been made to the Owens Valley… is this just another one waiting to happen? Interbasin transfers have been in this state almost as long as Nevada was admitted into the Union. The first interbasin transfer occurred in 1873 and there have been a number of interbasin transfers, for whatever number of reasons—whether it be for municipal purposes or agriculture—there are a number of towns, Wendover Nevada and Utah for example gets their water mostly from basins that are in Nevada way west of Wendover. So this is a process that is not something that is relatively new and the legislature sought in the legislation they made on the interbasin transfer to try to insure that Owens Valley doesn't occur again, mainly by the reason that you look up front as to what impacts may occur, leaving enough water for development within the basin and that pumping can be regulated if there is an adverse impact.
Interviewer: Let's talk about the few sacrificing so the many may benefit, being that there are very few populations in White Pine and Snake Valley etc… compared to millions of people who could conceivably benefit in Las Vegas from this water. Does that enter into your decision making at all?
Hugh Ricci: They only place that could possibly enter into the decision is in that part that I mentioned earlier of will it prove to be detrimental to the public interest? And I want to make sure that it's understood that the project doesn't need to be in the public interest, it just can't prove to be detrimental to the public interest. There is a Nevada supreme court case that came out in 1996 I believe that addressed the State Engineer and his ruling on what "detrimental to the public interest" is. So we'll use those guidelines, whether there is going to be new stuff coming out--as any decision may be rendered in these through the court process, who knows?
Interviewer: As cities in the West continue to grow, they are obviously going to need water sources probably from far away places. What do you think is going to happen say over the next 10 to 20 years?
Hugh Ricci: The idea of water for Nevada cities is going to have to come from some other places than the areas from which they actually are located. Southern Nevada is obviously an issue today, the Northern part of the Nevada—Reno and Carson City will mostly likely have to find other water sources outside of their basins in which to continue to grow also. There are applications on file right now for some of those interbasin transfers.
Interviewer: Is it at all possible to make everybody happy here?
Hugh Ricci: No, I don't think you can make everybody happen. I think that the way we look at it is we make at least 50% of the people happy because there is the applicant and the protestant being two, and hopefully one of them is happy. Except in some instance we have been appealed on a decision by both sides as the decision being wrong.
Interviewer: Are there any outside pressures that try to sway your opinion?
Hugh Ricci: I won't say explicitly, but you know there are newspaper articles. I mean I don't live in a cave. I see what some of the newspaper articles are and no, none of that… I have to base my decision on the information I have available to me and make the best decision that I can based on that information and if someone doesn't like it, they can appeal it.
Interviewer: Las Vegas is a very powerful city against a very small group of ranchers who don't have a whole lot of political power. How does that influence your decision? Does it come into play at all in your decision?
Hugh Ricci: Any decision that is rendered by this office takes… whether it is a big city as to a small community… the water law is very impartial to that. It makes those determinations based again on the way the law allows the State Engineer in which to make that decision. He can only go as far as the law allows him to go.
Interviewer: How long is this actually resolved in terms of hearings and the next steps?
Hugh Ricci: The process for these applications that we're talking about here, which some are in Snake Valley, started a long time ago… 1989 when the Las Vegas Valley Water District applied for these applications outside of the Las Vegas area in Clark County, which Las Vegas is located and Lincoln, White Pine counties. They just lingered for a number of years and then the drought on the Colorado River brought these to the forefront again and we have now started looking at them as to what do we need to do? January 5th of this year, 2006 a pre-hearing conference was held on five of the basins of which Snake Valley was one of them, Spring Valley being in White Pine County, Cray Valley which is in White Pine and Lincoln, Dry Lake and Delamar Valleys in Lincoln County are all part of this process that was to schedule as to when to go to hearing. I wrote an order just last week, March 15th, that indicated that we would go to hearing on Spring Valley September 11th and there are a number of requirements there for the protesants and the applicants to exchange data so there are no surprises at the hearing date and we'll go forward with the other valleys after that. So it could be any number of years for these things to go on.