Even before wildfire smoke billowed into Nevada from a record-setting California fire season, Jennifer Cantley monitored the air quality near her Carson City home. But when the smoke blocked the sky and mountains behind her home over the summer, that checking increased.
“I am literally deciding whether my children can go outside for 10 minutes,” said Cantley, the parent of two sons with asthma and an organizer for a group advocating for better air quality.
“This is not normal,” she said in an interview last month. “It’s September.”
As fires burned across California in August and September, satellite images showed smoke extending across Nevada, particularly affecting northern Nevada communities around Reno, Carson City, Minden and Gardnerville. Las Vegas also recorded 14 days of subpar air quality that were likely attributable to wildfires, according to preliminary data shared by Clark County.
For parents such as Cantley, the heavy smoke from wildfires deepens existing concerns around the health effects of poor air quality, especially during the COVID-19 pandemic. COVID-19 targets the respiratory system and has been shown to worsen symptoms in areas grappling with pollution.
Not only is the heavy smoke a public health concern for sensitive groups, it can also ripple out through the economy, threatening the safety of outdoor workers. Nevada’s Occupational Health and Safety Administration, or OSHA, does not have regulations for handling the risks of wildfire smoke, but some companies voluntarily follow California’s standards for protecting workers.
Days with unhealthy air quality could increase as the climate continues warming. Scientists say the effects of climate change on temperature, aridity and vegetation, combined with decades of fire suppression, have created prime conditions for more extreme wildfires — and more smoke.
Over the past two decades, the three years with the poorest air quality in Reno are fairly recent: 2013, 2018 and 2020. Each year overlapped with significant fire activity in and around Nevada.
According to data from the Washoe County Health District, 2020 has already eclipsed 2013 and 2018 as the year with the greatest number of days considered unhealthy for sensitive groups or unhealthy for the whole population. The year with the second highest number of days was 2018.
Brendan Schnieder, an air quality specialist with the health district, said that in a year without extreme wildfires, officials would expect to see unhealthy air quality in the winter as wood stoves and fireplaces emit small particulate matter, known as PM 2.5, that can get trapped in the lungs.
“When you add in a wildfire, it throws off a lot of things,” Schnieder said.
Between Aug. 16 and Oct. 1, the health district counted 24 days that exceeded U.S. air quality standards. One exceedance was related to dust. But the rest were likely caused by wildfires.
Over the smoky summer, air quality monitors across the state registered high levels of PM 2.5, particles that are 2.5 micrometers in diameter or less. Such fine particles can get lodged in the lungs and bloodstream. Wildfire smoke can also contribute to elevated levels of ozone pollution.
The study, backed by the Desert Research Institute, the Renown Institute for Health Innovation and the Washoe County Health District, looked at data from 2013 to 2018, and was focused on patients who visited Renown Hospital’s regional health care system, which includes Carson City.
Daniel Kiser, a lead author for the study, cautioned that it was “observational” and said it should be viewed as one contribution to a larger body of science. But, Kiser added, the findings appear to suggest that “particulate matter from wildfires might be more harmful than other sources.”
For sensitive groups, those with pre-existing respiratory illnesses, wildfire smoke only adds to existing concerns. Cantley knows this firsthand. She recounted how her son Gabe, age 9, woke up around 2 a.m. with a severe asthma attack on a hot summer night, smoke lingering in the air.
Cantley was prepared. She said she quickly found a breathing treatment mask and used ice packs to cool him down. But the experience, she said, was “scary” and personalized the issue.
“I’m still having a hard time working through that,” said Cantley, who is also an organizer for Moms Clean Air Force, an Environmental Defense Fund project aimed at curbing air pollution.
For all three of her sons, the wildfire smoke made it hard to go outside, one of the few escapes in the COVID-19 pandemic. With school online, they are already spending more time at home.
“It wasn’t really a good time to be out, and you’re trapped inside even more,” said Joey, 10.
Air quality issues arising from wildfire smoke can also have a rippling effect on the thousands of workers whose jobs require them to be outside. Unlike California, Nevada workplace regulators do not have guidelines or standards for how employers should address health risks from smoke.
But wildfire smoke is a major issue for contractors across Northern Nevada.
Brendon Carlson, the regional safety manager for Granite Construction, said his company and others in the region look to the California standards. He said federal workplace regulators and the Mine Safety and Health Administration, or MSHA, also have some guidelines to follow.
“Everyone is managing the best they can right now,” he said.
The first option for protecting workers would be to rely on “engineering controls,” Carlson said. For equipment operators, that might mean working closed cabs with an air ventilation system.
But for workers on the ground, protective measures can be more complicated. Some workers are required to wear occupational respirators. Some workers have medically evaluated, and occupational clinics are operating with limited resources amid the pandemic. When air quality was poor, Carlson said his company decided to shut down some projects until the following day.
“It's not fair to put our guys in a respirator all day,” he said, noting that the heavy-duty masks are more cumbersome than typical face masks. “It's uncomfortable and hot, and hard to breathe.”
The problem everyone faces, from parents to businesses, is that it is often difficult to know how unhealthy the air quality is. The data often lags real-time conditions, and there are major gaps.
Cantley, on the western side of Carson City, relies on a reader miles away. It leaves her asking: “What can we do to make sure everyone has accurate readings for air monitoring systems?”
In addition to the timing of data, there are areas of the state where there is no official data at all. Across rural Nevada, there are also major holes in state and federal air quality monitoring. The Associated Pressreported last month that nine of Nevada’s 17 counties lack air quality readers.
Rudy Zamora, the Las Vegas-based program director for Chispa Nevada, said he was also closely monitoring air quality data over the summer. He has a five-year old with asthma.
Like checking the weather, checking air quality became “one of the things we do,” he said.
Zamora, whose group is focused on organizing in the Latino community as part of the League of Conservation Voters, said he saw a direct connection between the smoke and climate change.
“Communities have a right to breathe clean air,” Zamora said in a recent interview. “It’s really one of the basic needs to exist. We want to make sure that there's aggressive climate action to improve the air quality and prevent future wildfire seasons like the one we’ve seen this year."
Air pollution, he added, tends to disproportionately fall on communities of color. Data analysis in other cities has pointed to an overlap between areas with air pollution and COVID-19 positivity.
“When you combine the pandemic and the way that our air quality has been lately, it truly puts Black and brown communities at a higher risk of getting sick," Zamora said.
Despite a federal government that has downplayed, and at times denied, the increasing threat of climate change, the connection between warming and wildfire smoke is made explicit on a CDC web page that is dedicated to the subject. “Climate change,” the website simply states, “is projected to increase wildfire risks and associated emissions, with harmful impacts on health.”
It’s a connection that is not lost on Joey, Cantley’s eldest son. He pointed to fires from California to Oregon as a reason the federal government should take action on climate change.
“This is not my future,” he said. “It’s millions of kids’ futures.”
As always, we want to hear from readers. Let us know what you’re seeing on the ground and how policies are affecting you. Email us with tips or suggestions at firstname.lastname@example.org.
For many, the preferred option was no expansion at all.
That’s the position the Legislature took last year when it passed a bipartisan resolution opposing the U.S. Navy’s proposal to expand the Fallon Range Training Complex on about 600,000 acres of private and federal land across five counties. At a public meeting in Fallon this year, speaker after speaker registered the same opposition: The Navy was asking them to give up too much.
But the Navy remained undeterred in its goal: It wanted to expand its Nevada base. Its current training range of 228,508 acres was not large enough to accommodate modern warfare testing.
To expand its Fallon operation, the Navy must get congressional approval. In June, Congress declined to include the proposal in the National Defense Authorization Act, legislation that sets expenditures for the military. Then in July, the Trump Administration threatened to veto the bill over several issues. The White House “strongly urge[d] Congress” to pass the Fallon expansion.
When it became clear that the Navy proposal could be added to the final legislation, Nevada’s congressional delegation began looking for an alternative. Last week, Democratic Sen. Catherine Cortez Masto unveiled draft legislation showing what such a compromise might look like.
Cortez Masto’s draft legislation would transfer about 382,000 acres of federal public land to the military and allow the Navy limited access to train on an additional 247,762 acres of public land.
To balance the training range expansion, Cortez Masto’s bill draft would add 156,000 acres of conservation areas and designate more than 331,000 acres of wilderness. It also incorporates an earlier proposal, offered by the senator last year, to ban oil and gas in the Ruby Mountains.
The legislation also includes specific requests made by tribes and rural counties. But provisions in the draft legislation have been met with mixed reactions.
The draft bill requires the Navy to hire three full-time tribal liaisons. It also includes language to preserve about 79,000 acres of federally-managed land for “the protection of traditional cultural and religious sites” for the Fallon Paiute Shoshone Tribe. It requests that roughly 11,000 acres be held in trust for the tribe, land that includes the tribe’s origin site within the Stillwater Range.
Fallon Paiute Shoshone Chairman Len George told the Sierra Nevada Ally that the tribe was informed of the proposal at the last minute and remains opposed to any expansion. He told the Ally that the tribe has “been against the expansion from day one.”
Under the proposed legislation, the Walker River Paiute Tribe, which has faced widespread historic contamination from ordinance activities, would receive a $20 million upfront payment from the Navy. The bill would also convey about 9,000 acres of public land to the tribe.
“The Walker River Paiute Tribe has always believed in the importance of collaboration and the strength of finding a path towards healing,” Torres added. “Moving forward, we will continue to advocate for protections for our cultural and natural resources and sacred sites.”
The bill also directs federal land managers to convey thousands of acres of public land to rural counties, potentially opening up more development. It could also open up more than 100,000 acres of land, currently managed as wilderness, to increased natural resources development. But those provisions, in addition to the base expansion, are a major red flag for some environmentalists.
Patrick Donnelly, the state director for the Center for Biological Diversity, called provisions in the bill “far-right, anti-public lands stuff” and said they could have consequences beyond the state. His organization plans to oppose the draft legislation and continue pushing Congress for no expansion.
"This bill either bombs, changes control of, sells, conveys or strips protections from literally one million acres of public land,” Donnelly said “It's worse than we even could have imagined.”
“We think public lands need to be managed for the preservation of ecosystems,” he added. “And that is compelling and the American people would get behind that.”
Other conservation groups said the bill struck a balance and was an improvement from the Navy's proposal.
In a joint-statement, Jocelyn Torres, an organizer with the Conservation Lands Foundation, and Shaaron Netherton with Friends of Nevada Wilderness, said the senator “has struck the delicate balance among the competing priorities of protecting public lands for important wildlife habitat and cultural values, addressing some Tribal interests and making progress towards remedying historical injustices, and the vital training needs of America’s servicemen and women.”
The legislation also received support from Republican Rep. Mark Amodei, who introduced his own alternative earlier this year. He described the legislation as taking a “consensus” approach.
Gov. Steve Sisolak, a Democrat, said in a statement that he appreciated Cortez Masto and Amodei’s congressional efforts “to make sure Nevada's constituents are heard.”
“My administration has worked closely with the Navy and local stakeholders and I look forward to a resolution that balances the nation's military preparedness needs with fair treatment of the Nevadans harmed by this expansion,” the governor said.
But the fight is far from over, and the legislative language is not set in stone.
Because the Senate and House have passed the National Defense Authorization Act, any changes must now go before a congressional conference committee, charged with reconciling the differences in the bill. That committee will decide whether or not to include the Navy expansion — and the alternative — before a final vote. But a lot can happen before Congress’ current term ends in January.
Here’s what else I’m watching this week:
The Air Force expansion: Democratic Reps. Steven Horsford, Susie Lee and Dina Titus spoke with environmentalists Wednesday on fighting an Air Force proposal to expand a training range into the Desert National Wildlife Refuge, the largest refuge in the contiguous U.S. Earlier this year, Republican Utah Rep. Rob Bishop attempted to attach language to the National Defense Authorization Act that would have given the military control over much of the refuge. While the Bishop language was struck from the bill, it could still re-emerge in the same conference committee considering the Navy expansion.
Many questions here: My colleague Riley Snyder reported on the state writing off nearly $12 million loans for clean energy projects that were never completed. Read this story. David Bobzien, the state’s current director of the Governor’s Office of Energy, who came to the job long after the loans were issued, said there’s “no evidence that anything was ever actually done with the money.” This raises many questions. What kind of oversight was there? And where did the money go?
‘It’s very distinctive:’ Amy Alonzo with the Reno Gazette Journal wrote an excellent piece on the third largest Joshua tree found in southern Nevada. It is estimated to be about 700 to 800 years old. The Joshua tree could be protected as part of the Avi Kwa Ame National Monument.
Sagebrush recovery: Relevant study here. What happens when sagebrush burns in a wildfire? What’s the best way to restore habitat for the wildlife (like Greater sage grouse) that rely on it? A team of researchers tried to answer that question by comparing seeded and planted sagebrush.
When a drought starts over the Pacific Ocean: “Droughts usually evoke visions of cracked earth, withered crops, dried-up rivers and dust storms. But droughts can also form over oceans, and when they then move ashore they are often more intense and longer-lasting than purely land-born dry spells.” Bob Berwyn with InsideClimateNews has more on a new study.
Conservation for climate change: “Restoring natural landscapes damaged by human exploitation can be one of the most effective and cheapest ways to combat the climate crisis while also boosting dwindling wildlife populations, a scientific study finds,” via The Guardian.
Update: This story was updated at 4:02 p.m. on Thursday, Oct. 15 to correct a section related to changes in protections for land currently managed as wilderness. An original version of the story said the proposed bill would affect grazing. It would not.
Around mid-day on August 19, NV Energy customers began to get texts, robocalls and emails asking them to please conserve electricity use between the hours of 2 to 9 p.m. over the next two days.
The requests — in part marred by a “vendor error” that sent out robocalls in the dead of night — came amid a record-breaking Western U.S. heat wave and thick smoke from California wildfires blanketing parts of the state. But the utility said the effort worked — estimating a significant decrease in power demand over the two-day period that helped avoid power shutoffs or blackouts for customers in Nevada.
More than two months later, NV Energy is releasing more information about the decision-making process that led to the request for power conservation, as well as data that may help state utility regulators determine whether the conservation request was a one-time unusual request or a sign that the utility needs to do more to ensure resource adequacy as climate change and other factors drive more strain on the system.
The new information comes via a filing made in a state Public Utilities Commission docket, launched in late August shortly after the conservation requests were made to investigate “resource adequacy and planning.”
NV Energy made the filing last week, the first of several requested by regulators seeking more details on the circumstances leading up to the request for voluntary power cutbacks. The PUC is not responsible for overseeing day-to-day decisions made by the utility company to balance load or meet customer demand, but approves long-term energy supply plans and other planning decisions.
The utility’s filing is a behind-the-scenes look at the circumstances NV Energy faced in mid-August to stave off a potentially catastrophic power outage in Nevada, ultimately leading up to that request for customers to conserve power.
While NV Energy is the state’s primary electric utility, that doesn’t mean all electricity used in the state comes from power plants owned by or contracting with the utility company.
The company is required under state law to file what’s called an “Energy Supply Plan” every three years that details utility plans for procuring enough electricity, as well as fuel and risk management strategies to meet a projected electricity demand, based on factors such as temperature and historical trends.
While the company regularly files amendments to that plan, it’s able to make short-term modifications as needed through what’s called “short-term procurement activities,” which includes practices such as day-ahead or real time electric-market trading to “bring the gap between long-term energy supply planning and actual energy supply needs.”
In its filing with the PUC, NV Energy said it uses those transactions to “ensure a continuous balance of energy supply and demand because of variations in system conditions” as well as to achieve “economic benefits” for customers.
Use of those types of electric market trading to meet demand aren’t unusual — the utility reported to the PUC that since the summer of 2017, there were more than 100 instances in which it opted to purchase more than 1,000 megawatts of power on the open market in order to meet demand, including 40 times during the summer of 2020.
On Aug. 17 (the Monday before the request for conservation), the utility reported engaging in its normal day-ahead trading activities for energy supply resources. But with hotter-than-normal weather (about 11 degrees warmer in Las Vegas as compared to seasonal averages) through the record-breaking heat wave across the U.S., the utility company found the market to be “severely restrictive with heavy buyers and very few sellers.”
“It was unprecedented for NV Energy to receive so few supply offers for power market purchases,” the company wrote in the filing. “Routine suppliers were unable or unwilling to transact with NV Energy.”
The utility reported that much of demand was being driven by an overall concern about “market uncertainty” from the California Independent System Operator (CAISO), the balancing authority that manages California’s energy market and that at the time warned that supply limits could lead to potential curtailments — blackouts.
Despite engaging in a “broader search of additional counterparties,” NV Energy reported exhausting all available supply options for day-ahead availability, meaning it would need to either obtain power in real-time markets or risk the potential of an Energy Emergency Alert (EEA), utility parlance for power blackouts.
EEAs come in three levels, with the third level being the most severe and meaning that load interruptions are “imminent or in progress.”
Nevada entered the first EEA level on Aug. 18 — the first day of requested power curtailment — shortly after noon, reaching the third level around 3:30 p.m. That level was reset to the first EEA level after 9 p.m., and finally reverted to normal operations about an hour later. The utility entered the first EEA level the next day, Aug. 19, but was back to normal by the end of the day.
Again, no NV Energy customers lost power during the period of high demand — but the utility was taking rapid action behind the scenes to ensure that was the case.
According to a timeline published in the filing, the utility took several unusual or rare steps to obtain electricity throughout that two-day period, including asking large customers to voluntarily cut back on power, asking large independently owned power generators within the state to help address the demand and issuing a “no touch” order on generation equipment to avoid any inadvertent interruptions.
NV Energy also reached out to its sizable base of distribution-only customers (largely businesses that opted to leave utility service through the 704B legal process, but still rely on it for transmission service) to ensure that their electric loads were in balance and not relying on the power company for electric demand. Those customers — many of whom filed to leave NV Energy through the 704B process to purchase power from other sources — still take transmission service from the utility, and are required to contract with them as an essential provider of last resort.
The company wrote in the filing that two of the company’s distribution-only customers were “unexpectedly relying” on NV Energy for electric service as their supplier failed to deliver their energy. Those customers were not identified in the filing.
The utility also disclosed that one of the units at the natural-gas firing Higgins Generating Station near the California border had experienced equipment failure in late July, meaning it was offline for the power shortages in August. The out-of-commission plant has a production capacity of 225 megawatts, which could have helped address the high-demand period.
Additional filings in the docket are due throughout the rest of the year, with a workshop hearing set for Dec. 16.
As always, we want to hear from readers. Let us know what you’re seeing on the ground and how policies are affecting you. Email me with any tips or suggestions at email@example.com.
Last year, Gov. Steve Sisolak signed an executive order instructing state agencies to implement SB254, legislation requiring an annual report on fossil fuel emissions. Each report, according to the legislation, must include a list of policies aimed at reducing greenhouse gas emissions.
The agencies are scheduled to send the first report to Sisolak by Dec. 1, and climate activists, policymakers and businesses across the state are paying close attention to the drafting process.
For years, Nevada’s fossil fuel reduction efforts have primarily focused on cutting emissions in the electric sector. In recent years, attention has shifted to transportation. But another emissions source is starting to come under increased scrutiny: natural gas use in homes and businesses.
Since September, state officials have hosted listening sessions to gather input on what should be included in the state’s strategy for meeting a zero or near-zero greenhouse gas emissions target by 2050. At a listening session last week, the tension over natural gas was on display.
Environmentalists stressed the need to transition away from natural gas and toward increased electrification in homes and businesses. Residential and commercial emissions accounted for about 10 percent of the state’s total greenhouse gas emissions, according to a state report.
“What’s the first rule for getting out of a hole? Stop digging,” Dylan Sullivan, a senior scientist with the Natural Resources Defense Council, said during the meeting last week. “Nevada’s law currently favors natural gas expansion, asking very little of gas companies before they make huge pipeline investments that will have to be paid off by Nevadans for decades to come.”
Sullivan and other environmentalists said they are not advocating for a ban on current gas use, rather a transition. They want the state and regulators to consider the climate effects of natural gas use and whether it is prudent to continue making investments borne by utility ratepayers.
The argument mirrors two ideas floated in a greenhouse gas inventory released by the state earlier this year. One suggests providing incentives to convert existing natural gas appliances (stoves, water heaters and furnaces) to electric appliances. The second proposal suggested evaluating the feasibility of freezing or limiting gas connections at new homes or businesses.
Both proposals have put Southwest Gas, Nevada’s largest gas utility, on alert.
“Policies that have been proposed that move away from the direct use of natural gas in homes and businesses we feel are premature and problematic for many reasons,” Scott Leedom, the utility’s director of public affairs, said last week, saying that a transition could be costly.
And the utility came to the meeting with some support. Both the Latin Chamber of Commerce and AARP Nevada raised economic concerns about how proposals affect jobs and ratepayers.
But Elspeth DiMarzio, a senior campaign representative with the Sierra Club’s Beyond Coal Campaign, said the focus right now is not on a ban. It is on adding regulatory oversight and providing consumer choice in a way that she said would ultimately benefit utility ratepayers.
“The first step is giving customers a choice,” said DiMarzio.
She said gas should not be the default option. Consumers, she said, should be able to choose whether to have electric or natural gas appliances. And regulators should weigh both options.
Not only is this tension over natural gas use playing out in drafting the state’s climate plan, the utility and environmental groups are gearing up for the issue to arise in the legislative session.
Leedom, in an interview, said the utility is working with contractors and labor organizations on legislation to create a pipeline replacement program. Such legislation, he argued, could create jobs and lead to reductions in greenhouse gas by replacing pipes more prone to leaks.
That makes some environmental groups wary. Sullivan said an infrastructure expansion could be laying the pipe “to lock Nevada into decades” of a reliance on natural gas use.
In interviews, DiMarzio and Sullivan both stressed that gas utilities do not currently have to go through the same rigorous planning processes that electric utilities must undergo at the Public Utilities Commission of Nevada. They said utility regulators should be required to evaluate natural gas expansions in a way that considers input from the public.
Everyone agrees on one thing: The issue is here, and it’s not going away.
The utility does not plan to sit on the sideline.
Leedom said he wanted the utility to have a “seat at the table” as state officials and others “consider these policies either in the upcoming legislative session or in other sessions.”
Here’s what else I’m watching this week:
NDEP halts asphalt plant: State environmental regulators issued a stop work order for a Carson City asphalt plant after it was cited for several violations, including lack of monitoring. Anne Knowles with the Nevada Appeal reported that the Nevada Division of Environmental Protection’s decision to shut down emission units at the asphalt plant came after complaints from Mound House residents that the facility emitted smoke and odorous air. In recent years, the division has assessed fines and repeatedly cited the asphalt plant for violations.
‘Sitting on’ the National Climate Assessment: A climate scientist at the University of Illinois is concerned that the Trump administration is delaying a mandatory climate report and said the 2020 election is likely playing a role, Scott Waldman reports for E&E News. The scientist, who co-led the fourth National Climate Assessment, said the administration has yet to put out a call for researchers to compile the next climate assessment, due in 2022. The assessment, produced every four years, is a vital tool for policymakers and the public in evaluating the risks posed by climate change.
Judge rules, land agency side steps: A federal judge in Montana ruled in September that the acting director of the U.S. Bureau of Land Management, William Perry Pendley, could not serve in the position because his tenure likely violated the Federal Vacancies Reform Act. Pendley, as with other Trump appointees, was never confirmed by the Senate. How did the agency respond to the ruling? The New York Times’ Lisa Friedman reports that the agency tweaked Pendley’s title at the bureau. And as Jacob Fischler reports for the Nevada Current, the court action could put several agency decisions in jeopardy, including one to approve a massive solar project outside of Las Vegas.
Critical mineral executive order: “Last week President Trump signed an executive order declaring a national emergency and authorizing the use of the Defense Production Act to speed the development of mines. The law was used earlier this year to speed production of medical supplies amid the pandemic,” Alistair MacDonald with the Wall Street Journal reports.
“Root cause analysis:” Three agencies in California have examined the causes of the state’s rolling blackouts during a heat wave that strained energy resources across the West, including in Nevada. Los Angeles Times’ Sammy Roth reports that the preliminary report cast blame on a combination of factors: poor planning, market design and climate change.
Climate change voters: “The number of Americans as a whole who worry about climate change is rising. But the issue is most important to the nation’s youngest and newest voters, who will face worsening consequences of the crisis throughout their lifetimes if emissions aren't significantly addressed,” Erin Stone writes in an excellent Arizona Republicpiece on first-time voters and climate change in the battleground state. Also: Pew came out with a new analysis this week on climate change and the election. It found that a majority of registered voters say climate change will be a very or somewhat important issue in the election.
Question 6: My colleagues Riley Snyder and Joey Lovato put together an important explainer on the only renewable energy measure on the ballot this cycle. Question 6, a petition first approved by voters in 2018, would require utilities to have a renewable portfolio of 50 percent by 2030 by generating more renewable energy or purchasing credits. After the first passage of the ballot initiative, the Legislature adopted a similar standard in 2019. Still, the measure would put an increased renewable standard in the Nevada Constitution. As a result, it must be voted on a second time.
IndyFest: Over the weekend, we hosted our first annual IndyFest, a daylong virtual event on a wide range of political and policy topics. I moderated a panel looking at what we know and how we can plan for the effects of climate change on water across the state. If you missed the event, all of the IndyFest panels are available for purchase online with sales supporting our journalism.
OVERTON, Nev. — More than three decades ago, Joe Davis landed a part-time job installing pipes for the Moapa Valley Water District. When he took the job, his grandfather gave him a piece of advice: “Keep your nose clean and do anything you are asked.” Davis followed it.
His responsibilities soon included waking up early every Tuesday morning to buck hay for the district’s general manager, who would sell the bales in Las Vegas and return to town with pipe.
“On the way back,” Davis said, “that’s when he would pick up pipe for the community.”
Overton sits in the Moapa Valley, one of only a few rural farming areas left in Clark County, the state’s most populous county. Irrigation ditches line the road, built to serve the agricultural fields that are tucked behind homes, gas stations and stores. Alongside the town, the groundwater-fed Muddy River flows through a narrow channel toward Lake Mead, about a dozen miles away.
The Muddy River is the valley’s lifeblood, and it’s at risk.
In this area of Clark County, businesses, developers and local governments have state permits to pump large amounts of water from the ground. But using all the permitted water could cause the Muddy River to eventually shrink, dry up springs and leave long-term ecological damage.
In the area that the Moapa Valley Water District serves, water users are facing an uncomfortable future: People are going to have to use less water than they were once promised. Over the last century, state regulators handed out more groundwater rights than there was water available. Today state officials say that only a fraction of those rights can be used, which could mean cuts.
“We’ve reached the conclusion that there really isn’t as much water as we thought,” Davis said.
The situation playing out along the Muddy River is not unique across the Southwest and in the Colorado River Basin. As climate change and overuse reduce water supplies, the gap between “paper water” (the legal right to use water) and “actual water” (what’s available) is widening.
Dozens of groundwater basins in Nevada are over-appropriated, meaning there are more rights to water than there is water to go around. Starting next week, state water officials plan to hold a dozen hearings across rural Nevada on a flurry of more than 50 proposed orders meant to stop this issue from getting worse, designating numerous areas as needing additional management.
By appropriating so many water rights, many view the state as being at fault, issuing too many rights in a rush to develop. Others say regulators did the best they could with the data they had at the time. Science has evolved to better estimate groundwater availability, and water rights are not always guaranteed. In the West, most rights can be cutoff in times of scarcity or shortage.
In the years since he took the job laying pipe, Davis has worked his way up through the ranks to become the Moapa Valley Water District’s general manager. His job depends as much on a technical background as it does on a strong knowledge of a place and its people.
Overton, where the district is headquartered, is still a small community. The district serves about 8,500 residents over a 79 square-mile area that includes the Moapa River Indian Reservation.
Driving through the district's service territory on a hot August morning, Davis stops to wave at customers and friends. He believes existing communities should be guarded against any drastic cuts.
Under a strict reading of Nevada water law, the district is at risk of seeing its groundwater rights cut off. It could pursue alternative supplies, but that’s a costly proposition for a small operation.
“I’m not asking for the moon,” Davis said. “I’m using this amount of water, and I know I need to maintain that amount of water. Now how do we take [that information] and make that happen?”
More rights than water
On paper, individuals, businesses and governments in the area have rights to use more than 39,700 acre-feet of water from a roughly 50,000 square-mile aquifer every year. About 9,000 acre-feet of water has been pumped in recent years, but there are proposals to increase use.
An acre-foot is the amount of water that can fill about a football field to a depth of one foot. If water users actually filled 39,700 football fields each year, the environmental consequences would be devastating.
In June, Nevada’s top water regulator, State Engineer Tim Wilson, ruled that groundwater use should not exceed a 8,000 acre-feet cap. That means, at most, only about 20 percent of all permitted water rights can be used across the expansive groundwater system.
If too much groundwater is withdrawn, Wilson ruled, it would diminish the springs that form the headwaters of the Muddy River, eventually shrinking a narrow tributary of the Colorado River. Las Vegas water officials store Muddy River water in Lake Mead to bolster their water supply.
Pumping, regulators worry, could also be devastating for the Moapa dace, an endangered fish that has evolved around the warm headwater springs that come from the groundwater.
The state’s ruling emerged from a conflict between the Southern Nevada Water Authority, which owns or leases water on the Muddy River, and Coyote Springs Investment, a housing developer determined to tap into the aquifer to build a new town about 35 miles from the Moapa Valley.
Yet Coyote Springs is only a subplot in a larger ongoing dispute over water. A broad range of Southern Nevada players with conflicting interests own water rights in the aquifer.
The Moapa Band of Paiutes own water rights, as does NV Energy. The Mormon Church owns water rights, as do natural gas generators at the Apex Industrial Park in North Las Vegas. The Moapa Valley Water District owns water rights, as does the Southern Nevada Water Authority.
The water is used for multiple reasons: for farms, for drinking water, for power plants and for industry. Water users often cut deals with each other, but no one wants to give up their rights.
The state’s new ruling — placing a cap on the water — puts many of these rights at risk, and for everyone involved, it sets new rules for a future that uses less water than people once planned.
Even in this arid land, Greg Anderson, the vice chairman of the Moapa Band of Paiutes, can tell where the water is and isn’t by looking toward the ground underneath his feet.
“You can tell where water’s at in this desert,” he said. “Even though it looks so dry, you see a few plants that are greener than others. That’s where the water's at.”
What locals and Nevada’s statutes refer to as the Muddy River used to be called the Moapa. “Pah” means water, and Moapa means muddy water, Anderson notes. For centuries, the Southern Paiutes, or Nuwu people, relied on the river for drinking water and to irrigate crops.
"That river means a lot to our people,” he said. “That’s us."
In the early 1800s, Spanish raids devastated the Moapa band, and Mormon settlement in the 1840s displaced the Moapa band from its territory — and its water. By 1873, President Ulysses S. Grant had taken executive action to establish a reservation that spanned more than two million acres. These lands included the Muddy River and what is now Gold Butte National Monument.
It took only one year for the federal government to break its word. In 1875, Congress stripped the reservation of all but 1,000 acres and relocated it so as not to interfere with any claims made by white settlers or mining speculators, according to a history compiled by the tribe’s lawyers.
Displacement in the 19th Century pushed the tribe away from the irrigable land. A history on the tribe’s website said that “people were forced to flee into the desert and farming was disrupted.”
The 20th Century would only see more development encroach upon what little land and water the federal government left the tribe. Water was quickly divided up. By 1920, the entire river was allocated in a court decree, with the tribe only getting rights to a small fraction of the water.
As more development came into the area, state water officials began issuing rights to pump groundwater across a vast 50,000 square-mile area. Over the next century, water officials with the state engineer’s office would issue far more water rights in the region than was sustainable.
“We have to use [water] for economic development,” Anderson said. “We understand that.”
But he is concerned that the overuse of the groundwater could leave a “trickle” in the river.
The history of water rights in the area provides a map of how the area developed.
Amid a flurry of industrial development and proposed municipal development in the 1980s, the amount of permitted water rights dated more than quadrupled, increasing from about 7,100 acre-feet in 1981 to 31,600 acre-feet in 1989, according to an analysis compiled by the state.
In doing so, state regulators not only issued too many rights. They double-counted them.
Extensive science, modeling and pump tests show that the groundwater in the region feeds the Muddy River and the headwater springs for the Moapa dace. The water in the ground, in many cases, is the water in the river.
And pumping too much of it could reduce the river’s natural flow. After more than a century, state officials finally put the brakes on the problem in 2002. The state ruled that it would award no additional water rights in the area, pending the outcome of a pump test. Today state officials want to go one step further, but they must make some difficult choices.
Old rules, new playbook
The state has several tools to fix the problem, and all of them are weighed against an ultimate hammer: curtailment. State regulators have worked to avoid curtailment, and for good reason.
Nevada’s water statutes follow a similar framework used in other Western states. That rulebook is meant to settle disputes, inevitable in a region where aridity is its defining character. The law says that those with the oldest water rights are the most protected from having their rights cut.
In cases where an area is over-appropriated or water use is unsustainable, the statutes allow state regulators to curtail water rights. A strict curtailment would cut off the newest water rights in an area to meet the state’s estimate for how much water is available.
In this case, a curtailment might mean cutting off nearly 29,000 acre-feet of water rights, rights issued after 1983, that exceed the state’s 8,000 acre-foot cap on cumulative groundwater use.
Such a move could have far-reaching effects on the economy, curtailing water that is currently being used by the Moapa Valley Water District and making it difficult for the tribe to use its water for commercial development. Such a move could also affect parts of the Apex Industrial Park.
Curtailment might sound like an orderly resolution to the problem, but it is blind to realities on the ground. In the Muddy River area, those likely to be cut off first are using most of the water.
Across the aquifer, groundwater users with greater legal protection — those before the 1983 cutoff — use about a third of the water. Groundwater users with less legal protection — those after the 1983 cutoff — account for most of the water use, according to the state’s analysis.
Nothing illustrates those challenges more vividly than a decommissioned coal-fired power plant. The former Reid Gardner Generating Station sits outside of the Moapa Band of Paiutes’ reservation land. It was built in 1965, and it required significant amounts of water to run its steam turbines.
In 2015, the plant’s owners, NV Energy and the California Department of Water Resources, paid the tribe $4.3 million to settle claims alleging coal ash pollution and Clean Water Act violations. Two years later, NV Energy announced that it had decommissioned the power plant’s last unit.
But NV Energy kept its water rights. Even with the coal plant offline, the rights remain valuable assets on the electric utility’s books to sell and lease. NV Energy’s water rights are particularly valuable because most of them predate the 1983 cutoff. Some of their rights date back to 1949.
Generally, Western water law requires that water users forfeit rights if they do not use them. In reality, it doesn’t always work this way. There are numerous loopholes to the provision. Water users are allowed to apply for extensions to keep their water right, even if they are not using it.
Micheline Fairbank, a deputy state engineer, said reconciling current use with older water rights remains an open question, one the community should be involved in answering.
“I don’t have a crystal ball to predict how that question gets answered,” Fairbank said.
Nevada’s water law is based on the Doctrine of Prior Appropriation. It has three main elements:
First in time, first in use: Those with water rights issued first in time have the priority to use water in times of scarcity or shortages.
Beneficial use: Water must be put to beneficial use. Acceptable beneficial uses include using the water for drinking water, agriculture, commercial activities and mining.
Water must be used: Water rights must be used and developed or the owner of a water right risks losing their water right.
In an interview this summer, Wilson, the state engineer, did not commit to how the state plans to move forward with managing the fact that there are more rights to water on paper than there is available water. In an interview, officials stressed that they favor community-driven solutions.
Until policy decisions are made, there is uncertainty about what happens next. The 1983 cutoff date itself could be called into question or changed as the state engineer’s office makes decisions about how to manage water rights in the area.
“All along, it has kind of been a two step process,” Fairbank said. “Number one, let’s establish the baseline and the science. Step two then would be the policy and management positions.”
Water users could devise a groundwater plan or what is known as a conjunctive management plan aimed at creating more flexibility about where, when and how water rights could be used.
In watersheds across the arid Southwest, including in the Muddy River basin, addressing the problem is made even more challenging because the legal systems for managing groundwater and surface water developed separately, even though the two sources of water often act as one.
Elizabeth Koebele, an assistant professor at UNR who studies water governance, says irrigators — those closest to the water — tend to understand this, but there is a disconnect with the law.
“Water users,” Koebele said, “seem to recognize that there is a connection between surface water and groundwater, and that is not matching up to how we manage these watersheds.”
Nevada’s groundwater laws are already more restrictive than neighboring states. Sean Hood, an attorney for Fennimore Craig, said Nevada started regulating groundwater long before other states like Arizona and California, which is in the early phases of managing groundwater.
“Historically, Arizona and California were like the wild wild West,” he said.
Yet even in a state that has long-regulated aquifers, state officials are being forced to grapple with how to claw back past appropriations in areas like the Muddy River.
Nevada statutes offer a limited set of tools, and in recent years, state water officials have tested their flexibility in rulings and decisions that seek to fix the problem. But officials are often caught between what the statute says and how the court interprets them.
Already, the state’s June ruling on the Muddy River is tied up in litigation.
In addition to imposing a cap, the state's order changed the rules in another critical way. The order, a result of hydrologic reports and public hearings, defined a larger geographic boundary for the aquifer, changing whether many water users still have priority rights.
Among the claims pending before the court, water users have argued that the state acted in an “arbitrary and capricious” manner, ruling beyond what Nevada’s statutes allow.
In a joint-filing, lawyers for a gypsum manufacturer and a landfill at the Apex Industrial Park said the order was made “in violation of constitutional or statutory provisions.”
Sitting inside an air-conditioned conference room at the Moapa Valley Water District on a warm August morning, Davis, the district’s general manager, is clear about his goal.
For years, Clark County has ranked as one of the fastest growing counties in the United States. But Davis said that the Moapa Valley, unlike other areas, has no ambitions for major growth. That’s not why he wants to protect the district’s groundwater rights.
“I’m not looking to expand,” Davis said in August. “I’m not looking to grow. I’m not looking to get large. We just need to make sure that we’re able to take and maintain what we have.”
“By the same token,” he added, “you can’t have a community shrink.”
Both the water district and the Moapa Band of Paiutes, the two existing communities in the area, have rights to groundwater at risk of curtailment under a strict application of the law.
Davis said it was important to recognize that the community has existed since the mid-1800s. His community extended even farther into the valley until the Hoover Dam created Lake Mead, which submerged the town of St. Thomas and forced its residents to resettle.
“I think that an existing community has to have more standing over somebody that does not exist yet,” Davis said, noting that other state plans have exempted municipal uses.
Until the litigation ends, it’s hard to determine what’s at stake for many water users.
Despite battling in court, the water users in the area are already tied together by countless deals and contracts. They lease water to each other. They sell water to each other. They even enter into future understandings about what could happen. In similar cases across the West, conflict can make way for collaboration — but sometimes it takes time.
“The big picture is there is less water,” Koebele said. “We need to work together more.”
In some cases, the cost of participating in litigation becomes its own barrier.
Davis said the district ended up having to change its rate structure and approve another rate increase to keep up with repairs on the system and expected legal costs.
“We haven’t seen any legal costs yet that are going to equal what’s happening right now,” he said. “It’s just astronomical, what it’s going to cost us compared to what our budget actually is.”
“It’s that you can’t afford not to,” he added. “But you can’t afford to.”
Part III of this series, “Cutting Back,” will examine possible solutions under the law.
As always, we want to hear from readers. Let us know what you’re seeing on the ground and how policies are affecting you. Email me with any tips or suggestions at firstname.lastname@example.org.
Earlier this year, researchers published a 13,000-year climate history for the Great Basin.
What it found was a pronounced period of aridity that one UNLV researcher says could help us better understand what a “worst case” scenario might look like for a continually warming planet.
Samples from Leviathan Cave in the Basin and Range National Monument revealed a stretch of time in the middle of the Holocene, the current geologic epoch, marked by significant heat and aridity — and that was without humans emitting fossil fuels, changing Earth’s climate controls.
Matt Lachniet, who chairs the UNLV geoscience department and co-authored a paper on the 13,000-year record, said the finding “tells us that even without humans pushing the system, it can get drier in the Great Basin than it is today. That by itself should give people pause.”
As water drips through a cave, stalagmites form. Scientists can use the chemical traces left by these records to recreate a model of temperature and aridity over millennia. The records are valuable because they offer a broader picture of a region’s climate history than other types of records. (Reliable tree ring data, for instance, dates back about 1,200 years, Lachniet said).
The study also showed that the warm and dry period, identified by the records, coincided with a loss of sea ice. This concerns Lachniet because a similar scenario could be playing out today, as human-caused climate change causes sea ice loss in the Arctic.
“Our paper was able to demonstrate that this warm and dry interval in the Great Basin and the Southwest was also associated with conditions of low sea ice in the Arctic,” Lachniet said.
State and local governments often look at planning on a short horizon — in decades, not centuries. That makes it difficult to incorporate paleoclimate data that looks at millennia. Still, Lachniet says the data becomes useful for planning out more than 100 years into the future, and it should be considered in long-term planning for climate change.
Lachniet is concerned that current records, such as tree ring data, might underplay the severity of what climate change could bring for the Great Basin and much of the Southwest. Records going back only 1,000, or at most 2,000 years, he said, are still looking at a fairly wet period — at least compared to the hot and dry period identified in the more expansive 13,000 year climate history.
"The worst-case scenarios are actually worse than originally envisioned,” he said.
And policymakers should take that into account.
Here’s what else I’m watching this week:
‘This project gives me hope:’ That’s how Paul Souza, regional director for the U.S. Fish and Wildlife Service, described the completion of a fish pathway to help threatened Lahontan cutthroat trout reach their spawning grounds upstream of Derby Dam, which sits east of Reno.
On Wednesday, U.S. Bureau of Reclamation Commissioner Brenda Burman opened a $34 million fish screen at the dam, which diverts the Truckee River to agricultural fields in Fallon through a man-made canal. The effort is part of a decades-long struggle to restore wildlife and riparian habitat in a watershed manipulated by Derby Dam, the first federal irrigation project.
Anthony Sampson, the chairman of the Pyramid Lake Paiute Tribe, said that “we have to be vigilant” in protecting natural resources and Pyramid Lake, the terminus of the Truckee River.
Diversions from the dam historically moved water away from the lake, decimating habitat for the Lahontan cutthroat throat and the endangered cui-ui. But Sampson said that with the project, it was “satisfying" to know that the Lahontan cutthroat throat is being re-connected to its habitat.
The fish screen, the largest completed by the federal government, was designed by the Farmers Conservation Alliance, a nonprofit that has helped install fish passages in dams across the West.
Judge ousts top public land official: A federal judge ruled Friday that William Perry Pendley cannot serve as the temporary head of the U.S. Bureau of Land Management because he had not been confirmed by the Senate, NPR’s Kirk Siegler reports. Although the agency is appealing the ruling, the decision called into question the validity of many decisions made under Pendley’s tenure. The decision, if it stands, could have major ramifications for Nevada, where the bureau controls about 67 percent of the state’s land.
Environmentalists have criticized Pendley’s statements and legal writings for favoring industry over conservation and sympathizing with Nevada rancher Cliven Bundy, who illegally grazed cattle near Mesquite. Pendley's Twitter handle is “sagebrush rebel.”
Tiehm’s buckwheat goes to court: The Center for Biological Diversity sued the Department of Interior on Tuesday in an effort to seek emergency protections for the Tiehm’s buckwheat, a rare wildflower that’s only known habitat stretches across 10 acres of land in Nevada. In September, more than 40 percent of the plant’s global population was reported destroyed.
Blake Apgar with the Las Vegas Review Journal reports that the state is expected to complete its investigation into what happened in two to three weeks. State officials and a mining company that wants to develop in an area that includes the buckwheat habitat have stated publicly that the population loss was likely caused by herbivores. But numerous botanists and mammologists have said the damage appears to be inconsistent with rodents and was more likely caused by human activity.
Griffith Peak Trail reopens: The Griffith Peak Trail at Mt. Charleston reopened last week after extensive damage from the 2013 Carpenter 1 fire, KSNV’s Sadë Mills reported. Since 2018, volunteer crews with Friends of Nevada Wilderness have worked to reopen the popular trail.
Non-disclosure on public land: Eureka County is requesting an open meeting law exemption to discuss environmental assessments as a cooperative agency, the AP’s Sam Metz reported last week. What struck me was why the county is asking for the exemption.
According to the article, “agencies like the Bureau of Land Management that oversee public land in Eureka County require local governments to sign non-disclosure agreements if they want to participate in drafting environmental reviews.” Patrick File, with UNR’s J-school, raises good questions.
A 6-3 Supreme Court: Not too much is known about Supreme Court nominee Amy Coney Barrett’s environmental record. But as Joseph Winters reports for Grist, Barrett is expected to narrowly interpret environmental legislation, like the Clean Water Act, and who gets standing to bring lawsuits.
Wildfire mitigation: A number of factors drive fire behavior, and taken together, climate change is contributing to more extreme and larger fires across the West. The water cycle and weather all play a role. But a big variable is the availability of combustible vegetation and material on the ground. Fire managers generally refer to this as the “fuel load.” As a result, fire reduction efforts often focus on reducing the fuel load.
One method is grazing, and across the West, fire managers have turned to sheep and goats to help clear vegetation in targeted areas. My colleagues Riley Snyder and Joey Lovato report that NV Energy is taking a similar approach near Lake Tahoe.
Bi-state grouse lawsuit: “The U.S. Fish and Wildlife Service has again withdrawn its proposal to list bi-state sage-grouse as 'threatened' under the Endangered Species Act despite the birds’ population shrinking in half over the past 150 years, according to a lawsuit filed in a California federal court,” Maya Earls reports for Bloomberg Law. “The agency’s action violates the act and is arbitrary and capricious under the Administrative Procedure Act, environmental groups say in their lawsuit filed Tuesday in the U.S. District Court for the Northern District of California."
Coming up: Now that the Nevada Supreme Court has weighed in on the public trust doctrine and water, a case about restoring Walker Lake is going back to the 9th Circuit. What to watch: The appellate court ruled that it would accept briefs addressing the Supreme Court’s decision.
Think of standard firefighting equipment, and the mind will likely conjure up images of big fire trucks, protective gear, hoses, chainsaws and heavy machinery.
But this fire season, the Nevada Division of Forestry and NV Energy are using a different kind of fire prevention technology — a herd of more than 300 goats.
On Tuesday, the herd of one-to-three year old Spanish goats from High Desert Graziers in rural Smith Valley began their “firefighting” work of chewing up sagebrush, bitterbrush, manzanita and cheatgrass on a 100 acre plot of private property off of Highway 50. The area, in the mountains and hills between Carson City and Lake Tahoe, is considered to be at extreme risk of wildfire.
Sheep have been used for years to munch down on cheatgrass — a non native invasive species of grass that is easily ignited and contributes to the rapid spread of wildfire.
Once the grass dries, sheep find it to be unpalatable.
But that’s not the case for goats, and especially not for the herd of goats employed by the state and electric utility. They’re Spanish goats, with a lineage bred to allow them to eat essentially any kind of vegetation — including dried cheatgrass — with no ill effects.
State Division of Forestry representative Anna Higgins said this is the first time that the state has hired out a herd of goats for fuel reduction, typically using them for weed management in the past.
She said the goats can eat up to five to six pounds of vegetation a day, and can clear up multi-acre plots over the course of a week or two. The goats are typically confined to a smaller, three-to-five acre plot before moving on to another plot, a strategy called “targeted grazing.”
Mark Regan, a fire mitigation specialist with NV Energy, said the utility also uses (human) hand crews and heavy machinery to clear out areas near utility power lines, but goats were a useful tool in steep, hard-to-access areas and during hot and dry conditions.
“For the goats, we don't need to worry about that,” he said on Tuesday. “They work in all types of weather and as long as they have good vegetation here, they're thinning this out,” he said on Tuesday.
Funding for the program comes from a piece of state legislation — SB508 — that made a $5 million allocation to the Department of Conservation and Natural Resources for wildfire planning, prevention and restoration. Funding for the goats is a fifty-fifty match between the state legislation and NV Energy.
Renting out the herd of goats costs around $1,000 a day, but Regan said the cost of a human hand crew can vary from $1,200 all the way to $10,000, depending on the size of the crew and what equipment they need.
Goats, however, already come equipped with their own fire fighting equipment — sharp teeth and tough stomachs.
“There's no way we'd get a hand crew of 300 firefighters or people working for a lower cost,” he said.
This week on IndyMatters, reporter Daniel Rothberg talks with host Joey Lovato about a Nevada Supreme Court case that is affecting Walker Lake and the Walker River but also has broader implications for water rights in the state. After that intern Kristyn Leonard talks with Lieutenant Governor Kate Marshall about the census and how Nevada’s Complete Count Committee is trying to get every resident tallied. At the end of the show, reporter Michelle Rindels talks with Joey about Indyfest — which is next weekend!
Yesterday we published a story showing that experts hired by the Bureau of Land Management had concerns about a state-approved report that minimized the extent of groundwater pollution emanating from the former Anaconda Copper Mine in favor of a company-supported analysis.
In May, the Nevada Division of Environmental Protection said that the report at issue relied on the “best available science.” But an expert from the Bureau of Land Management questioned whether “good science” was used, according to documents that we obtained. Read more here.
As always, we want to hear from readers. Let us know what you’re seeing on the ground and how policies are affecting you. Email me with any tips or suggestions at email@example.com.
Last week, the Nevada Supreme Court ruled that the state’s fundamental obligation to protect natural resources for future generations did not allow it to reallocate water rights issued under state law. The decision appeared to rule against litigants pushing to restore Walker Lake, where the use of upstream water rights has decreased the amount of water that reaches the lake.
But even with the ruling, advocates for the lake’s restoration see a path forward.
Now that the Supreme Court has ruled, Glenn Bunch, president of the Walker Lake Working Group, said in a statement that it is up to “the federal court that has controlled the system for more than 80 years to help us figure out how to fix the problem and fulfill the public trust.”
First, the background.
Walker Lake is fed by the Walker River. Before water reaches the lake, it is diverted for farms, ranches and municipal use. As more water is diverted, less water flows into the lake. Over time, the lake receded and wildlife disappeared, as did opportunities to fish, boat and recreate. This had a major effect on the environment and economy of Mineral County, home to Walker Lake.
In 1994, the county took the issue to court, asserting that the state had a requirement to protect Walker Lake under its obligations to guard natural resources for future generations. This duty is known as the public trust doctrine. The question landed before the 9th Circuit Court of Appeals. The Walker River is governed by a decree, and issues are litigated in a federal “decree court.”
Yet when it came to the “public trust” question, the 9th Circuit wanted the state to weigh in. They asked the Supreme Court to define the scope of the public trust doctrine in water rights issued by the state. But the Nevada Supreme Court instead answered a more limited question. It asked if the state could reshuffle, or reallocate, existing water rights. The court said that it could not.
“At the end of the day, the majority opinion amounts to a relatively narrow holding,” said Simeon Herskovits, lead attorney for Mineral County and the Walker Lake Working Group.
In commentary throughout the opinion, the majority opinion assumes that the litigants sought to reallocate water rights, and it casts doubt on the idea that the restoration of Walker Lake can be achieved another way. But the dissent noted that advocates for Walker Lake asked for a range of relief other than reallocation. Relief could take the form of improved water efficiency or draw on other management tools.
Taken together, Herskovits said the ruling “leaves room” for the claim to move forward in the federal decree court. What is important is that the entire Supreme Court recognized that the public trust doctrine applies to waters of the state, despite a disagreement among the justices about how it is implemented in practice.
So what happens next? The case moves back to federal court.
“We look forward to having our day in federal court to determine how the public trust doctrine can most properly be applied to restore Walker Lake in light of the guidance provided by the Nevada Supreme Court,” Mineral County District Attorney Sean Rowe said in a press release.
Here’s what else I’m watching this week:
Authorization for nuclear testing: DemocraticReps. Steven Horsford and Susie Lee introduced a bill this week that would create a congressional authorization process for nuclear testing, mirroring legislation that Democratic Sen. Catherine Cortez Masto introduced. The Nevada National Security Site is the only facility equipped for underground nuclear testing, according to the press release from Horsford’s office. That fact makes the issue a particular concern for the delegation. The Trump administration has floated the idea of nuclear testing, according to a Washington Post story from earlier this year.
Tesla + lithium: Tesla CEO Elon Musk said the company plans to start mining lithium and silicon, according to a story from Benjamin Preston with Consumer Reports. “There really is enough lithium in Nevada alone to electrify the entire U.S. fleet,” the company’s senior vice president said. Tesla reportedly obtained mineral rights for lithium clay deposits.
Reuters: The “plan to produce lithium for electric vehicle batteries close to its Nevada Gigafactory faces stark challenges from the outset, including an onerous permitting process, uncertain access to water and questions about unproven methodologies.”
Joshua tree: In a historic vote, the California Fish and Game Commission voted unanimously to approve state endangered species protections for the western Joshua tree. “This marks the first time the state law has been used to give protection to a species that is mainly threatened by climate change,” Mark Olalde wrote for The Desert Sun.
A gap in air quality data: Notice a gap in air quality data right in the middle of the state? “There are no state or federal air monitors in nine of the state’s 17 counties,” Sam Metz reported for the Associated Press last week. Instead residents look to other data, including third-party sensors.
Killing the Vegas pipeline: An unlikely coalition formed around pushing back against the Las Vegas pipeline — and the strategy worked. High Country News’ Eric Seigel wrote an excellent story on the effort to stop the pipeline with great quotes from many involved in the fight.
Justice Ginsburg’s environmental precedent: Politico’s Alex Guillén looks at Justice Ruth Bader Ginsburg’s long record fighting for environmental issues on the Supreme Court.
Experts hired by the U.S. Bureau of Land Management (BLM) expressed concerns in July that a state-approved report downplayed the groundwater pollution caused by the former Anaconda Copper Mine near Yerington, according to comments obtained by The Nevada Independent.
One environmental scientist wrote that the report “may not be supported by the data or good science.” Another expert who specializes in groundwater said a model of the contamination was “far too limited.”
When state regulators approved the report in May, they signed off on revisions that held ARCO, the company responsible for the mine, accountable for less than half of the contamination that was previously modeled when the U.S. Environmental Protection Agency oversaw the cleanup.
Over the summer, state officials with the Nevada Division of Environmental Protection (NDEP) defended the final report and the science behind it after TheNevada Independent started asking questions about its decision to reduce the scope of the mine-related groundwater pollution.
The report attributed much of the previously identified pollution in the aquifer, where many wells register high levels of uranium and sulfate, to agricultural practices and natural geochemistry.
In an emailed statement, NDEP said it met with the BLM after it submitted its comments. The state said both agencies agreed that the concern about “good science” lacked “necessary supporting evidence and analysis” and that the federal agency’s concerns were addressed.
NDEP provided no evidence that the BLM had walked back its review, and the BLM declined a request to comment on NDEP’s statement that its concerns were addressed. The BLM, which manages federal public land across the state, owns a portion of the land at the mine site.
A spokesperson with the federal agency said, “We have nothing to contribute.”
An ARCO spokesperson said in an email that “groundwater in the Yerington area is dynamic and complicated by many factors, including naturally occurring minerals, multiple uses of the groundwater resource and former mining-related impacts. [The company] will work closely with NDEP to address their comments. Progress continues toward a final remedy and we remain fully committed to working with NDEP and all members of the community to complete this work.”
Comments raise concerns
The groundwater report at issue is meant to present a model of the mine-related pollution in an aquifer shared by homes, agricultural fields and the Yerington Paiute Tribe. The report is a key component of the cleanup process. The report provides the basis for a risk assessment of the human health concerns and a decision of how to remediate the polluted groundwater supply.
In May, NDEP Administrator Greg Lovato said in a statement that the report was a “milestone” for cleaning the site and that it “helps chart a path forward based on the best available science to ensure that current and future activities are protective of public health and the environment.”
But even as the cleanup moves to the next stage, experts representing federal land managers and the Yerington Paiute Tribe are continuing to flag concerns about the state-approved report.
Their comments on a draft risk assessment, submitted by ARCO in June, raise issues about the scientific basis for the final state-approved groundwater report. Technical consultants, hired by the BLM to review documents, outlined their concerns in 14 pages of comments.
A senior environmental scientist, serving as a consultant for the federal agency, said the draft risk assessment “relies on conclusions developed in the [final groundwater report], which may not be supported by the data or good science,” noting changes in ARCO’s technical approach.
Similarly, a senior human health risk assessor argued that the study area, based on the report, “may not accurately encompass the entire contaminated plume emanating from the mine site.”
“If there is little confidence that the groundwater plume has been defined, then it is not possible to estimate people’s exposure and risk to groundwater with any confidence,” the comment said.
The senior risk assessor recommended a direction for moving forward:
“The groundwater plume needs to be defined in accordance with the criteria and concerns of the hydrogeologists and site experts,” wrote the reviewer with Applied Intellect, the consulting firm used by the agency. “Until this is done, a risk assessment study area and data set cannot be selected. Without this step, nothing else in the [draft risk assessment] is really pertinent.”
A third Applied Intellect reviewer, a senior hydrologist, said “basic data is ignored in the current assumptions regarding [ARCO’s] interpretation of the extent of MIW,” or mine-impacted water.
Noting that NDEP had “serious concerns” with ARCO’s new model and even pushed back in some areas, the comment said that the state’s finalized report was “still far too limited, which has serious implications on the risk assessment and potentially to the health of residents and farmers located” in the path of groundwater flow outside ARCO’s “potentially biased” model.
In addition, the senior hydrogeologist raised concerns that “a credible groundwater travel time calculation was never performed,” making it difficult to predict future groundwater contamination.
Consultants for the Yerington Paiute Tribe, which relies on the same aquifer and received bottled water deliveries from ARCO for more than a decade, also pointed out deficiencies in the state-approved report.
The tribe submitted comments noting that the company’s new modeling “remains a remarkable and questionable deviation” from previous conclusions and was “not a product of EPA review.”
The comments were obtained through a public records request.
State defends report
In June, The Nevada Independentconducted a review of site documents and reached a similar conclusion. The review showed that, in approving the report, state regulators allowed ARCO to assume accountability for less than half of the mine-related pollution modeled under the EPA.
The changes started after February 2018, when the EPA deferred its decision-making role to NDEP as part of a deal that ended a push to place the site on the national Superfund list. At the time, environmental groups were concerned that a change in oversight would reduce the scope of the cleanup, leaving future generations of Nevadans left to deal with the tainted groundwater.
The deal came to be known as the deferral agreement, and it included several documents. A Statement of Work, included in the deal, directed ARCO to submit or complete a groundwater report 90 days after the agreement went into effect. The report was finalized two years later.
In that time, ARCO began submitting new technical memoranda to state regulators that reduced the scope of the mine-related contamination. The state largely approved ARCO’s new modeling.
Nevada environmental regulators pushed back in some areas, but they largely signed off on the company’s new findings, approving the final groundwater report in May. That report reduced the extent of the groundwater plume for which the mine — and thereby ARCO — is responsible.
In the past NDEP has argued that the EPA had left the door open for changes to the model of groundwater contamination. But there is little documented evidence to substantiate this claim.
At the time of the deferral agreement, the EPA had studied the groundwater for more than a decade and had already reviewed three revisions of the model. The Statement of Work said “the extensive amount of existing groundwater information is considered adequate to complete the [report].”
When asked in June if the EPA requested further groundwater study at the time of the deferral agreement in 2018, a spokesperson for the agency responded with a one-word answer: “No.”
When asked to reconcile these facts with its claim, NDEP did not directly address the issue.
Instead, the agency said in a statement Tuesday that its “role after deferral is to use previous comment and direction provided by EPA with respect to the groundwater remedial investigation to guide further investigation in support of science-based and data-driven conclusions.”
The emailed statement said that “NDEP approved additional refined analysis of the existing data to determine more accurately where the mine-impacted water began to commingle with other sources of constituents of interest in the groundwater from sources other than the mine.”
In the statement, the agency did not fully address the underlying criticisms raised in the BLM review. The agency did, however, state that officials were requesting the company broaden the scope of its review by including more monitoring wells in its study to determine potential risk.