An Arizona administrative law judge recommended denial of Wind River Resources LLC’s application for a permit to transport water from Beaver Dam Wash to Nevada.

The long-awaited decision by Judge Thomas Shedden came Tuesday in a 44-page document. Herb Guenther, director of the Arizona Department of Water Resources, now is on the clock to issue his decision on the application. He has a 30-day period, following Shedden’s recommendation, to make the decision.

Wind River Resources, an Arizona company, submitted an application in March 2005 to pump groundwater from Mormon Wells near Beaver Dam and sell it to Virgin Valley Water District. Wind River Resources planned to export 800 acre-feet of water per year beginning in 2006, with the volume increasing to 14,000 acre-feet in 2045.

Arizona Strip water companies and residents vehemently opposed the application, forming the No Nevada Water Grab movement. Public involvement prompted the Office of Administrative Hearings to hold a hearing and collect testimony March 2-4, 2007 in Beaver Dam. Members of ADWR also came to the hearing.

The record on the application remained open for filing of post-hearing briefs until Oct. 10, and Shedden had 20 days after the record closed to issue his recommendation.

“We won round one,” said Bob Frisby, owner of Beaver Dam Water Company and a leader in the No Nevada Water Grab movement. “There was no science to back up Wind River’s application, and Mesquite has not exhausted efforts to find water in other places. If Mesquite had a real genuine need for the water, it would be different, but it’s not there right now.”

“The decision came out exactly how we thought it would,” said Mike Winters, general manager of Virgin Valley Water District (VVWD). “I had no doubt in my mind that it (the application) would be denied.

“It doesn’t change what we’re going to do in the district. The only reason the Wind River application was so attractive was that they had a good sum of water to lease to us at a rate cheaper than what I can produce water for in Mesquite. Even if the state engineer approved the export permit, Wind River Resources would have to do an EIS (environmental impact study) and we’d have to get a permit from the Nevada state engineer. Wind River would have to get a lot of monitoring devices. We’d still be looking at five to six years out for the water.

“We’ll go on as usual. We’ll start drilling here sometime this winter. Another well will be going in. We’re going to meet the demands of the city.”

The director of the ADWR now is required to consider seven factors in determining whether to approve or deny any application:

• Purpose for which the water will be used.

• The annual amount of water in acre-feet for which the application is made.

• Studies satisfactory to the director of the probable hydrologic impact on the area from which the water is proposed to be transported.

• Potential harm to the public welfare of the citizens of the state.

• The supply of water to this state and current and future water demands in this state, in general, and the proposed source area, in particular.

• The availability of alternative sources of water in the other state.

• The demands placed on the applicant’s supply in the other state.

Shedden based his recommendation to deny Wind River Resources’ application to export groundwater from Arizona into Nevada on a preponderance of the evidence – “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not” – supporting ADWR staff’s recommendation to deny the application.

ADWR staff said Wind River Resources’ application was inaccurate in certain respects, and because ADWR “determined that wind river did not submit studies that are satisfactory to determine the probable hydrological impact on the Mormon Wells area.”

Wind River believed ADWR “had applied the wrong standards with respect to determining the probable hydrological impact, and that Wind River has shown that the probable hydrological impact to the alluvial system and current water uses in the area will be minimal.”

Wind River’s experts also said there is a “confining layer” present in the area that will isolate the pumping from the alluvial system.

According to Office of Administrative Hearings documents, Wind River Resources’ application stated that exported water would be used for municipal purposes, “and that this water is needed to blend with VVWD’s existing supplies to meet the 2006 arsenic standards.” But VVWD said it never intended to blend the water to meet arsenic standards.

“The change in purpose is significant because VVWD’s existing supplies are adequate to last until about 2025, according to the application,” stated Shedden. ‘The preponderance of evidence shows that Wind River’s application does not accurately state the purpose for which the water would be used.”

Shedden also wrote: “Because Wind River no longer has plans to return any water to Arizona, it is actually requesting up to 9,800 acre-feet more water for use in Nevada than its application shows.” He stated: “...(the) application does not include an accurate value of the annual volume of water to be exported and that Wind River now intends to use in Nevada over three times as much water as it requested in the application.”

According to Shedden, the preponderance of evidence

• doesn’t show “that the Muddy Creek aquifer in the Mormon Wells area is sufficiently impermeable to isolate the alluvial aquifer and Beaver Dam Wash from the effects of the proposed pumping;

• “shows that Wind River has not provided enough information from which the possibility of subsidence due to the proposed pumping can be evaluated;

• “shows that the proposed pumping might adversely impact the existing well and riparian habitat, but that there is insufficient hydrologic data to determine that impact.”

Shedden wrote that “Wind River submitted insufficient evidence on which to evaluate the future water demand in the Mormon Wells area,” and “insufficient information on which to determine the availability of alternative sources of water in Nevada.” He stated Wind River didn’t provide enough information to determine VVWD’s demand in Nevada nor enough information to determine whether or not the exported water “will be put to a reasonable and beneficial use in Nevada.”

In his “conclusions of law,” Shedden wrote: “Wind River’s lack of probative evidence may be explained by the fact that Mr. (John) Michael apparently was surprised by ADWR’s level of concern about what would happen to the exported water in Nevada. Because Wind River did not understand the quality of information and level of detail required by ADWR to evaluate the application, it had no reason to develop and submit detailed information to ADWR.”

The administrative law judge decision is available on-line at azoah.com (07A-TR001-DWR).

Originally published November 2, 2007