The Saga of Snake Valley

Facts  Drainage Basin – 244,000 sq mi  Average Annual Flow – 16.5 maf  The Colorado River ranks only 6 th in total volume of flow  Provides M&I Water to 24 million people in the US  Provides irrigation water to over 2 million acres in the US  Total Storage – 60 maf  4,000 MW of hydro electric generation capacity  Mexico supplies M&I water to about 2.0 million people & irrigation water to 500,000 acres

Utah Arizona Arizona Nevada California Mexico New Mexico Wyoming Colorado Compact and Treaty Apportionment Based on Current Hydrology (in million acre-feet per year [MAF]) LB UB TOTAL MAFY 1The Upper Basin supply of 6.0 maf is based on a firm supply during an extended drought 2It is the position of the Upper Basin States that there is adequate water in the Lower Basin tributaries to meet the majority of the treaty allocation to Mexico and the Upper Basin is only required to provide half of any shortage 3The Colorado River Compact allows the Lower Basin States to use an additional maf per year from the Lower Basin tributaries

Utah's Colorado River Allocation MAF Current Use 1.0 MAF UNUSED ALLOCATION.369 MAF Future use Navajo Nation 81 KAF Ute Tribe Reserve Water (compact) 105 KAF New Ag Uses 25 KAF New M&I Uses 5 KAF Lake Powell Pipeline 86 KAF Total 302 KAF * Balance* * 67 KAF* ADDITIONAL PENDING APPLICATIONS: 400,000+ KAF

ADDITIONAL Approved San Juan County WCD 30,000 San Juan County WCD 30,000 Kane County WCD 30,000 Kane County WCD 30,000 Deseret Generation 12,000 Deseret Generation 12,000 Central Utah WCD 29,500 Central Utah WCD 29,500 Sanpete County WCD 5,600 Sanpete County WCD 5,600 Wayne County WCD 49,000* Wayne County WCD 49,000* Partial Total 156,100 Partial Total 156,100

Unapproved Applications 250,000 Board of Water Resources (White River) 250,000 Board of Water Resources (White River) 1,400,000 USBR 1,400,000 USBR

50 Years Ago… we asked these questions: How will we ever use 1,700,000 Acre Ft.? How will we ever use 1,700,000 Acre Ft.? How can we encourage beneficial use? How can we encourage beneficial use? Should we consider leasing or renting? Should we consider leasing or renting?

Today these are the Questions: How will we get by with only MAF. ? How will we get by with only MAF. ? When we reach full allocation, what about the outstanding applications? When we reach full allocation, what about the outstanding applications? How do we get optimum points of diversion? How do we get optimum points of diversion? How do we guarantee delivery in dry cycles? How do we guarantee delivery in dry cycles? How do we keep peace with Sister States? How do we keep peace with Sister States? What will Sensitive Species requirements be? What will Sensitive Species requirements be? Can the legislature refrain from changing rules? Can the legislature refrain from changing rules?

1989 SNWA applications

60% 40%

Millard County files timely Protest to SNWA Snake Valley Applications

Lincoln County Conservation, Recreation, and Development Act of 2004, Section 301 (b) (b) Rights-of-Way.—(1) In general.— Notwithstanding sections 202 and 503 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1711, 1763), and subject to valid and existing rights, the Secretary shall grant to the Southern Nevada Water Authority and the Lincoln County Water District nonexclusive rights-of-way [2,640 feet wide] to Federal land in Lincoln County and Clark County, Nevada, for any roads, wells, well fields, pipes, pipelines, pump stations, storage facilities, or other facilities and systems that are necessary for the construction and operation of a water conveyance system.

Lincoln County Conservation, Recreation, and Development Act of 2004 (Public Law ), Section 301 (d) (d) State Water Law.—Nothing in this title shall— (1) Prejudice the decisions or abrogate the jurisdiction of the Nevada or Utah State Engineers with respect to the appropriation, permitting, certification, or adjudication of water rights; (2) Preempt Nevada or Utah State water law; or (3) Limit or supersede existing water rights or interest in water rights under Nevada or Utah State law.

Lincoln County Land Bill… Residents of Snake Valley approach Utah Legislative Water Task force for Help Residents of Snake Valley approach Utah Legislative Water Task force for Help Task Force recruits Senator Bennett’s help Task Force recruits Senator Bennett’s help Senator Bennett inserts language requested by Utah into Lincoln County Land Bill Senator Bennett inserts language requested by Utah into Lincoln County Land Bill

Lincoln County Conservation, Recreation, and Development Act of 2004 (3) Agreement.—Prior to any transbasin diversion from ground-water basins located within both the State of Nevada and the State of Utah, the State of Nevada and the State of Utah shall reach an agreement regarding the division of water resources of those interstate ground- water flow system(s) from which water will be diverted and used by the project. The agreement shall allow for the maximum sustainable beneficial use of the water resources and protect existing water rights.

Be Careful what you ask for… you might get it. What happens if Utah rejects an agreement? 1. A potential State to State Supreme Court action 2. Question as to if and when Supreme Court would accept a filing 3. Apportionment of water rights only 4. Political Backlash from Colorado River States. 5. No interbasin transfer of water from Snake Valley 6. Likely repeal of “Agreement Language”

What Positives could an Agreement Bring? 1. Agreed upon division of water 1. Agreed upon division of water 2. Environmental protections 2. Environmental protections 3. Mitigation process and resources 3. Mitigation process and resources 4. Flexible Bi-State aquifer management 4. Flexible Bi-State aquifer management

Agreement Timeline December 2005: Utah and Nevada begin preliminary discussions about Utah/Nevada Agreement December 2005: Utah and Nevada begin preliminary discussions about Utah/Nevada Agreement Spring/Summer 2006: State Engineers conduct inventory of Water Rights and groundwater depletions in their respective States Spring/Summer 2006: State Engineers conduct inventory of Water Rights and groundwater depletions in their respective States March 2007: Millard County requests that Dean Baker is added to Utah’s Negotiating Team March 2007: Millard County requests that Dean Baker is added to Utah’s Negotiating Team

Timeline continued… August 14, 2009: Draft Agreement released for public comment August 14, 2009: Draft Agreement released for public comment October 2009: Comment review begins October 2009: Comment review begins January 2010: Final Draft Agreement released January 2010: Final Draft Agreement released January 28, 2010: Nevada Supreme Court rules that Nevada State Engineer had erred January 28, 2010: Nevada Supreme Court rules that Nevada State Engineer had erred February 2010: Nevada Legislature meets in Special Session feeling pressure to overturn Supreme Court February 2010: Nevada Legislature meets in Special Session feeling pressure to overturn Supreme Court

Highlights of Utah/Nevada Agreement: Apportions amount of Water owned by each State Apportions amount of Water owned by each State Proposes amounts for sustainable yield and maximum withdrawl Proposes amounts for sustainable yield and maximum withdrawl Creates environmental protocol and protection Creates environmental protocol and protection Obligates Nevada State Engineer to include Environmental Protections and a delayed application time frame in SNWA approvals Obligates Nevada State Engineer to include Environmental Protections and a delayed application time frame in SNWA approvals

What is Snake Valley’s Sustainable Yield? Several studies have concluded there is 105, ,000 acre feet of sustainable yield Several studies have concluded there is 105, ,000 acre feet of sustainable yield BARCAS suggests 132,000 available ET BARCAS suggests 132,000 available ET Agreement sets sustainable yield at 108,000 acre feet Agreement sets sustainable yield at 108,000 acre feet Agreement limits Snake Valley withdrawal to 88,000 Acre Feet Agreement limits Snake Valley withdrawal to 88,000 Acre Feet

The agreement creates three categories of Snake Valley water

Category 1: Allocated Category 1 was created to protect existing rights Category 1 was created to protect existing rights Allocated water has priority dates prior to October 17, 1989 Allocated water has priority dates prior to October 17, 1989 It includes Fish Springs water rights It includes Fish Springs water rights Allocated has highest priority of protection Allocated has highest priority of protection

Category 2: Unallocated Unallocated water has priority dates on or after October 17, 1989 Unallocated water has priority dates on or after October 17, 1989 Approvals of 1,000 AFY require a hydrologic monitoring and management plan Approvals of 1,000 AFY require a hydrologic monitoring and management plan

Category 3: Reserved Is only available upon agreement of both State Engineers that Category 1 and Category 2 will not be unreasonably affected Is only available upon agreement of both State Engineers that Category 1 and Category 2 will not be unreasonably affected

Proposed Water Division Nevada Utah Nevada Utah Category 1-Allocated 12,000 ac/ft55,000 ac/ft Category 2-Unallocated 35,000 ac/ft 6,000 ac/ft Category 3-Reserved 19,000 ac/ft 5,000 ac/ft Total 66,000 ac/ft66,000 ac/ft

Agreement protects existing users by: Creating procedures to identify and mitigate adverse impacts from SNWA withdrawals. Creating procedures to identify and mitigate adverse impacts from SNWA withdrawals. Establishing Interstate Panel to resolve disputes rising between existing users and SNWA. Establishing Interstate Panel to resolve disputes rising between existing users and SNWA. Maintaining a monitoring and mitigation account of $3 million. Maintaining a monitoring and mitigation account of $3 million.

The State Engineers will confer as necessary to evaluate water availability in light of new data. The State Engineers will confer as necessary to evaluate water availability in light of new data. All collected data will be made available for public review. All collected data will be made available for public review.

Nevada agrees to hold SNWA Snake Valley water applications in abeyance until September Additional hydrologic and biologic data may be gathered before any decisions are made.

Section 5.4 Agreement prohibits: Ground-water mining Ground-water mining Impairment of water quality Impairment of water quality Compaction of aquifers or surface instability Compaction of aquifers or surface instability

Section 5.4 (continued) States agree to re-consult anytime in the future to redetermine available ground-water supply. If withdrawals exceed supply, State Engineers must act to reduce withdrawals by. States agree to re-consult anytime in the future to redetermine available ground-water supply. If withdrawals exceed supply, State Engineers must act to reduce withdrawals by priority.

Environmental Agreement Utah and SNWA enter into the “Snake Valley Environmental Monitoring and Management Agreement.” Utah and SNWA enter into the “Snake Valley Environmental Monitoring and Management Agreement.” Objective #1 is to understand the baseline conditions for biology, hydrology and air quality. Objective #1 is to understand the baseline conditions for biology, hydrology and air quality. Objective #2 is to provide for a plan of operation and a definitive, binding process for resolving disputes. Objective #2 is to provide for a plan of operation and a definitive, binding process for resolving disputes.

Environmental Agreement (continued) Terms of this agreement become a condition of any water application approval made by Nevada State Engineer.

Environmental Agreement (continued) Counters adverse effects by avoiding problem initially Counters adverse effects by avoiding problem initially Minimizes adverse effects Minimizes adverse effects Mitigates for adverse effects Mitigates for adverse effects

Environmental Agreement (continued) SNWA agrees to participate with Utah in the “Columbia Spotted Frog Conservation Agreement” and the “Least Chub Conservation Agreement.” SNWA agrees to participate with Utah in the “Columbia Spotted Frog Conservation Agreement” and the “Least Chub Conservation Agreement.” Expands scope of monitoring to adjacent valleys downgradient and requires air quality monitoring. Expands scope of monitoring to adjacent valleys downgradient and requires air quality monitoring.

Utah/Nevada Agreement: LIMITS use of Snake Valley water resources 61,000 af (Utah) to 47,000 af (Nevada). POSTPONES SNWA water right applications before the Nevada State Engineer until DEFINES environmental protocol to protect air quality and sensitive species. INCLUDES environmental protections in Utah as a condition of any SNWA water right granted by the Nevada State Engineer. PROVIDES a simplified mitigation process for any Utah water user impacted by SNWA. DOES NOT sell or give water to Las Vegas or authorize any Nevada pumping or pipeline in Utah.

In the meanwhile… Great Basin Water Network et. al. sue Nevada State Engineer. Among other things, GBWN claim State Engineer ignored NRS (2) which requires State Engineer to take action on applications within one year after the close of protest period. Suit is dismissed in district court and appealed to Nevada Supreme Court

Nevada Supreme Court Intercedes! …”we conclude that the State Engineer violated his statutory duty by failing to take action within one year after the final protest date. Thus, we reverse the order of the district court and remand for a determination of whether SNWA must file new groundwater appropriation applications or whether the State Engineer must re-notice SNWA’s 1989 applications and reopen the period during which appellants may file protests.” …”we conclude that the State Engineer violated his statutory duty by failing to take action within one year after the final protest date. Thus, we reverse the order of the district court and remand for a determination of whether SNWA must file new groundwater appropriation applications or whether the State Engineer must re-notice SNWA’s 1989 applications and reopen the period during which appellants may file protests.”

SNWA re-files all their applications January 29, 2010 Pressure is applied to Nevada Governor and Legislature to “fix” the Supreme Court Decision in a special session Pressure is applied to Nevada Governor and Legislature to “fix” the Supreme Court Decision in a special session

Nevada Legislature doesn’t want this HOT Potato… They pass intent language urging the Nevada State Engineer to, “Hold hearings on potential resolutions of the issues presented by the Great Basin Water Network decision…to take all appropriate steps to implement recommendations arising out of such hearings which may include but not be limited to: “convene a special session” or drafting a bill for the 2011 Legislative Session.

Until Nevada answers some big questions, That’s where we aretoday.