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Copyright "Arizona
Water Resource" Newsletter -
May/June 2007 Issue - Volume 15 No.
5
Arizona-to-Nevada Water
Export Plan Proposed, Contested
Arizona Law Allows
Exports Under Certain Conditions
by Joe Gelt
As if Arizona did not
have enough water-supply worries due
to population growth and drought,
the state is now contending with an
application to transfer groundwater
from Arizona to Nevada. Of the
varied and perplexing issues the
requested out-of-state transfer
raises, one the most significant and
far-reaching is whether Arizona law
can protect state water resources
from such transfers.
This is the first time
the state water export law has been
put to the test; it very likely
won't be the last.
The controversy is
being played out in a remote, rugged
and sparsely populated corner of
Arizona, in the far northwest part
of the state, an area where Arizona,
Nevada and Utah lie in close
proximity. Sides in the controversy
are drawn along the Arizona-Nevada
border, with the Arizona Strip
communities of Beaver Dam,
Littlefield and Scenic on one side.
Population in that area is estimated
to be between 4,000 and 5,000,
mostly retirees and ranchers. On the
other side of the dispute, ten miles
away and across the stateline, is
the rapidly growing town of
Mesquite, Nevada.
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Water
Determined to be Article of
Interstate Commerce
The U.S. Supreme Court was
at first supportive of state
efforts to restrict the
export of water from sources
within a state for use
outside the state. In 1908,
the U.S. Supreme Court
responded to a challenge to
a New Jersey statute
prohibiting the export of
water by ruling that the law
did not violate any
provision of the U.S.
Constitution. The decision,
Hudson County Water Co. v.
McCarter, prompted many
states, especially arid
western states, to pass laws
prohibiting the interstate
export of water.
State efforts
were checked in 1982 when
the U.S. Supreme Court
decided Sporhase v. Nebraska
ex. rel. Douglas. Owning
adjoining tracts of land in
Colorado and Nebraska, the
defendants in the case
pumped well water in
Nebraska to irrigate land in
both states. The State of
Nebraska brought suit to
enjoin the defendants from
exporting groundwater from
Nebraska into Colorado
without a permit. Court
cases followed: the lower
court granted the
injunction; the Nebraska
Supreme Court upheld it; the
US Supreme Court reversed
the state court’s decision
on constitutional grounds.
Nebraska law
allowed a party to withdraw
groundwater from an in-state
well and export it to an
adjoining state upon
receiving a permit from the
Nebraska Department of Water
Resources. The permit could
be issued if the NDWR
director determined that the
requested withdrawal was (1)
reasonable; (2) not contrary
to the conservation and use
of groundwater; and (3) not
otherwise detrimental to the
public welfare. Reciprocal
rights also were required;
i.e., the state receiving
the exported water also had
to grant rights to transport
water for use in Nebraska.
The Court
determined that groundwater
is an article of interstate
commerce subject to
congressional regulation. It
found that the first three
conditions of the Nebraska
statute did not
impermissibly burden
interstate commerce. The
Court, however, determined
that the reciprocity
provision was
unconstitutional because it
unduly interfered with
commerce between Nebraska
and adjoining states, and it
lacked a conservation or
preservation rationale. |
Other players include
the Wind River Resources, a
Nevada-based Arizona limited
liability company, and Virgin Valley
Water District. VVWD covers 312
square miles within Clark County,
Nevada, serving 18,000 customers,
most living in the Mesquite area. It
also has provided water to Scenic,
Arizona. Some estimates indicate
that Mesquite's population could
increase to 40,000 in as little as
four years.
Exporting water
from Arizona
At issue is whether WRR
can export groundwater from Beaver
Dam Wash in the Littlefield area
across the stateline to Mesquite,
Nevada. Although an out-of-state
transfer, this would not be an
interbasin transfer since the Lower
Virgin River hydrographic basin
underlies both states.
The proposal calls for
WRR to drill three wells in the
Mormon Wells area along Beaver Dam
Wash, a tributary of the Virgin
River, and withdraw high-quality
groundwater to pipe to the VVWD in
Mesquite. WRR seeks to initially
transport 800 acre-feet of
groundwater per year, annually
increasing the volume until it
reaches a maximum of 14,000 acre
feet between 2045 and 2055.
The immediate issue is
whether Littlefield, Arizona can
prevent its groundwater from being
pumped to Nevada; the broader issue
has to do with Arizona's ability to
prevent other such incidents
occurring, not only along its border
with Nevada, but also along borders
shared with the neighboring states
of California, Utah and New Mexico.
This is considered a
groundbreaking case, taking up an
issue that has not yet been
addressed, whether an out-of-state
applicant can dip into, or more
stringently stated, raid Arizona's
water resources. A March 4 Arizona
Republic editorial stated, " The
Wind River proposal is an audacious
assault on Arizona's precious
groundwater."
This situation which is
seemingly made-to-order for
controversy did not disappoint.
Controversy flared. Opposing the
application are mostly residents in
the Beaver Dam or Littlefield areas,
owners of the area's businesses,
houses and land. They fear for their
water supplies. Favoring the
application are developers in
Mesquite, Nevada, and Scenic,
Arizona.
Laws pertaining
to interstate water transfers
Those whose knowledge
about the interstate movement of
water is based on the Colorado River
and its seven basin states know of
the prohibitions and restrictions
that can apply to such transfers;
they would likely expect that the
WRR request would confront
formidable legal hurdles. And indeed
the request does in fact meet legal
challenges, although how formidable
these are is the question. The WRR
situation is much different than
what confronts the seven Colorado
River Basin States as they share the
river's resources per a federal
compact.
The seemingly obvious
solution would be for Arizona to
adopt legislation to prohibit
out-of-state transfers of water.
This, however, is not an option.
Whatever legal action Arizona takes
must abide by a U.S. Supreme Court
ruling that held that groundwater is
an article of interstate commerce
subject to congressional regulation.
States, therefore, cannot regulate
it in a manner that interferes with
the Commerce Clause. (See above
sidebar)
Arizona Revised
Statutes § 45-292 states, A person
may withdraw, or divert, and
transport water from this state for
a reasonable and beneficial use in
another state if approved by the
director pursuant to this article.
According to statute the ADWR
director decides whether to approve
the application after considering
such matters as potential harm to
the public welfare of Arizona
citizens; Arizona's water supplies
and its current and future demands
statewide and in particular the
proposed source area; and the
availability of alternative sources
of water in the other state.
An initial step was a
three-day administrative hearing
that began on March 2 conducted at
the Beaver Dam High School. The
various interests testified before
Thomas Shedden, the administrative
law judge hearing the case. Closing
briefs are due Sept. 7, after which
the judge submits his recommendation
to ADWR Director Herb Guenther. The
director then decides whether or not
to approve the application. His
decision could be appealed in the
courts.
AZ regulatory
agencies critical of application
ADWR's position during
the administrative hearing was that
the application should be denied
because WRR failed to prove as
required by statute that water
diverted to Nevada would be for a
reasonable and beneficial use.
Further, ADWR contends that WRR
failed to demonstrate that diverting
the water would not pose a potential
harm to the public welfare of
Arizona citizens. ADWR does not
believe WRR properly studied the
possible adverse effects the
transfer might have on water
supplies of the area, including its
wells and stream flow as well as
water quality implications. Nor
according to ADWR has WRR carefully
considered the effect on wildlife,
riparian areas, recreation, and the
economic viability of the Beaver Dam
Wash area.
In its application WRR
states its withdrawals from the
Muddy Creek Formation would have a
minimal impact on water resources
and users in the area, claiming that
a confining layer separates the
aquifer from other water sources.
ADWR remains unconvinced, stating
that WRR failed to provide
site-specific hydrogeologic data or
analysis as required by statute.
ADWR also faulted WRR
for not demonstrating that
alternative sources of water are not
available on the Nevada side of the
border nor that the current and
future water demands of those
residing on the Arizona side would
continue to be met if the
application were granted.
Another state regulatory body, the
Arizona Corporation Commission,
which has jurisdiction over the
quality of service and rates charged
by public service utilities, is
taking an interest in the water
exportation proposal.
ACC Commissioner
Kristin K. Mayes says, " We are
concerned because there are least
four private water companies we
believe could be negatively impacted
by the proposal. ... They sit upon
the aquifer that would be the water
source exported into Nevada.
"You can imagine a scenario in which
this proposal dewaters the [water
companies'] wells and that puts us
in the position of potentially
having to raise rates to find new
sources of water. Not only is that
not fair to the existing rate
payers, it is not good public
policy. The commission does not want
to be in the position of having to
do that. Or even being asked to do
that."
Mayes says ACC commissioners went to
Beaver Dam to conduct a public
comment session. She says, " We are
involved in attempting to protect
the public interest in Arizona, and
the public interest is not protected
by allowing our water company wells
to be dewatered by an exportation
proposal like this."
Suggested
remedies
What strategies might
be adopted to protect Arizona's
water resources? Michael Pearce,
former ADWR chief counsel, suggests
that Arizona law could be made more
restrictive to prevent out-of-state
transfers. He says state law now
prohibits transferring water across
basin lines. He says, " When we drew
the basins we had to stop at the
state boundary because we have no
business drawing basins in other
states. But our basins, for state
law purposes, stop at the state
lines and Mesquite is across the
state line and out of the basin. Not
out of the physical basin but out of
the legal basin."
He adds. " The
basins-end-at-the-border is an
important legal concept. If you are
going to transport water out of an
Arizona basin, different water
management standards should apply."
Pearce suggested another
possibility. He says, " A state law
could be passed that says you can't
come into Arizona with the intention
of exporting groundwater if what you
are trying to do is bolster your
water supplies beyond what you could
get out of the same basin in your
own state. If Arizona had such a law
[others] would have to look first to
their own resources."
The WRR application was an event
waiting to happen, with similar
events likely in the offing. Even
before WRR's application, Arizona
officials were aware that sooner or
later they would have to address the
issue of out-of-state water
transfers. Some view the current
situation as a day of reckoning.
An indication of what
was to come was a 1990 application
that the Mesquite Farmstead Water
Association submitted to ADWR to
pipe Arizona water over the state
line for use in Nevada. The Mesquite
utility hoped that for the cost of a
relatively short pipeline it could
gain access to quality groundwater.
The request attracted
strong opposition. Bruce Babbitt who
represented an interest in the area
at that time went so far as to
propose that the Beaver Dam Wash
area become an active management
area to restrict groundwater
pumping. The vigorous opposition
from residents in the Littlefield
area, however, carried the day, and
the application was never acted
upon.
Rumor mill
churns
Any out-of-state effort
to acquire Arizona water would be
unwelcomed and likely viewed as
impertinent; that the present
applicant is Nevada is particularly
galling. It is the kind of situation
to add grist to the rumor mill.
For example, some
opposed to the deal hear a giant
sucking sound from the direction of
Las Vegas. Suspicions have been
voiced that VVWD plans to provide
water to the Southern Nevada Water
Authority to keep it from exploiting
resources in the Mesquite area.
Another rumor has it that whatever
Arizona water WRR acquires will be
pumped into the Virgin River to flow
downstream to Las Vegas. |
