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February 9, 2012

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The small oversight that threatens the valley’s big pipeline proposal

High court cites a wording error in ’03 legislation

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SAM MORRIS / LAS VEGAS SUN FILE

Water Authority General Manager Pat Mulroy has other projects on tap to keep water flowing to the valley.

By Emily Green and Tom Gorman, Las Vegas Sun

Sunday, Jan. 31, 2010 | 2 a.m.

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From the start, Pat Mulroy’s daring strategy to tap Nevada’s rural water to quench the Las Vegas Valley seemed destined for some sort of catastrophe.

But no one thought it would stem from a lobbyist’s blunder.

Mulroy had staked her career on the successful execution of a plan she launched in 1989, when she was general manager of the Las Vegas Valley Water District, to drive a pipeline 300 miles north to the Great Basin, connect it to a network of wells and draw the water south.

If she succeeded, scientists said, disaster would befall the Nevadan basins, turning them to dust bowls. And if she didn’t get the water, Las Vegas — whose irrepressible growth for much of the past two decades demanded to be quenched — would remain dependent on a dwindling supply of Colorado River water.

Until recently, smart money was on Las Vegas getting the water, with five rural valleys in central and eastern Nevada feeling the pain — largely empty places in the target basins save the occasional string of oasis ranches, lined up like long narrow flagstones leading half way to Salt Lake City: Delamar, Dry Lake, Cave, Spring and Snake valleys.

But recently the odds have swung in sudden ways against Las Vegas. In October, Nevada District Judge Norman C. Robison stripped it of all the water awarded for the pipeline from the first three stepping stone valleys. Robison ruled that the state engineer, who approves or denies water claims, had used exaggerated yields in his decision concerning the Delamar, Dry Lake and Cave valleys, effectively awarding water to Mulroy that was spoken for.

The autumn day that the decision was announced, Mulroy had just persuaded her board to pay the ranchers behind the suit $4 million to withdraw it.

Too much too late.

And that setback proved pale compared with Thursday’s: The Nevada Supreme Court issued a ruling that appears to invalidate every award for her pipeline on the grounds that in 1991, the very first set of protesters was denied due process.

Mulroy, in fact, had anticipated legal concerns and, the shrewd lobbyist she is, went to the Nevada Legislature to work around a law requiring hearings to be held within one year of the closing of protests. In 2003, at the request of Water Authority lobbyists, legislators passed a law exempting projects for municipal, or town, water from that rule.

In 2006, when the state engineer’s hearings began to approve Mulroy’s applications for water in the steppingstone valleys, 17 years had passed since the original applications. The protesters were ragged. Mulroy, framed by successes, looked unstoppable in getting her water.

At home, Mulroy had seen Las Vegas through a sudden drought on the Colorado River with a dazzling outdoor conservation program. She’d lobbied Congress for right of way to run her pipeline across hundreds of miles of federally owned land. A formerly obstreperous Interior Department was now so behind Mulroy’s project that it dispatched a staff person to Las Vegas to expedite it.

She’d hired every Nevada water lawyer and former state engineer who might get in her way, and kept a small army of lobbyists stationed in Carson City to calm any nervous legislators.

As hearings began in 2006 on the applications for Spring Valley, the wettest of the steppingstone basins, Mulroy persuaded her board of directors to buy out the region’s ranchers. After spending almost $79 million doing this, the urban water authority was then required to enter the cattle business so it could hold onto the water rights until they were reassigned.

It looked smart at the time. Las Vegas had money, the ranches had water.

Mulroy so dominated Nevada as the Spring Valley hearing began in 2006, her opponents had to shop out of state for a lawyer to represent them. They settled on a fussy little gnome of an environmental lawyer named Simeon Herskovits, who worked out of an artsy shop front in Taos, N.M., a dog serving as his receptionist.

The protesters lost in Spring Valley, then in Delamar, Dry Lake and Cave. As the protesters and Herskovits staggered in defeat out of 2008 into 2009, it seemed that the main thing keeping them from losing in Snake Valley was that Utah, which borders it, had been resisting a water-sharing agreement.

Halfway through the steppingstone hearings, Herskovits finally took the Nevada bar exam. It would have been funny if it weren’t so sad. But those who wrote him off wrote him back on last week.

The man who took the Nevada bar exam so he could stick with the survivors of a 20-year struggle with Las Vegas saw details that everyone else, including Mulroy, missed.

In 2006, Herskovits lost in his first attempt to challenge the 2003 legislation denying the pipeline’s opponents a timely hearing after the close of protests. So he appealed it straight up to the Nevada Supreme Court, which heard the case last June.

And on Thursday, what looks like the mother of all oversights became apparent in the court’s decision against the state engineer. Mulroy and her lobbyists got the wording wrong on the 2003 amendment. It did not apply, it turns out, to the 1989 protesters represented by Herskovits, who happened to be challenging all of the awards in her steppingstone valleys.

The faulty wording occurred in section 2 of the amendment to SB 336 in 2003, introduced at the request of the Southern Nevada Water Authority. The new wording said that action on the application for water rights may be postponed "if the purpose for which the application was made is municipal use" and "where studies of water supplies have been determined to be necessary ... or where court actions are pending..."

However, last week, in Great Basin Water Network vs State Engineer, the Supreme Court of Nevada ruled (page 13) "After examining the legislative history, it is clear that SNWA requested the 2003 municipal-use amendment, but, unfortunately, the legislative history provides no guidance regarding retroactive effect ... There is no language in the statute or legislative history that indicates an intention by the Legislature that the amendment for municipal use apply retroactively to the applications made more than one year prior to the amendment's enactment..."

Shortly after the ruling, a spokesman for Mulroy said the water authority had “proactively refiled the applications with the state engineer and is prepared to go through whatever further process is required.”

It’s unclear what will happen to Mulroy’s triumphant string of water awards from Spring, Delamar, Dry Lake and Cave valleys. That has been referred to District Court.

No one, not in the state engineer’s office or the Southern Nevada Water Authority, has quite digested the scale of the stunning turn of events that could singularly unravel Mulroy’s carefully constructed, multibillion-dollar plan to bring Great Basin water to Las Vegas.

And certainly no one expected catastrophe to spring from a wrongly worded law drafted at Mulroy’s behest.

Emily Green is a Los Angeles-based freelance writer and the author of “Quenching Las Vegas’ Thirst,” a five-part series examining Mulroy’s hunt for water that was published in the Sun in 2008. Tom Gorman can be reached at 259-2310 or at gorman@lasvegassun.com.

This story has been amended to include the wording sought by the Southern Nevada Water Authority, and the court’s reaction to it.

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