Editor’s note: The Sierra Nevada Ally is inviting local writers to pen approved opinion columns for the publication. We invited Kyle Roerink to write columns on natural resource issues throughout Nevada. This is his first column for our publication.
There are only so many ways to divide a river.
After nearly three decades, the Nevada Supreme Court attempted to provide clarification in a case that challenged existing uses of water in the severely over-appropriated Walker River basin. But the State Supreme Court’s majority opinion has left considerable uncertainty for communities and more paperwork for water attorneys.
The river, which is the lifeblood of Western Nevada’s agricultural community, is sending less Sierra-Nevada snowpack to Walker Lake, which has dropped 160 feet, lost its once-thriving fish populations, and suffered from exorbitant salinity and sediment levels – rendering many recreational and aesthetic values there obsolete.
The high court’s mid-September ruling in Mineral County v. Lyon County was a much-awaited decision that resulted after years of litigation in state and federal courts. The case exemplifies a common theme in the Nevada water wars: Upstream users (Lyon County) of Walker River have an advantage over the downstream advocates for Walker Lake (Mineral County) because the water passes by them first. For Walker Lake, that has become an existential problem because it’s not getting the water it once did. For businesses and others on the Walker River, the battle has been a fight to protect what they have a right to use.
The Nevada Supreme Court’s 4-2 decision tackled questions about how the Public Trust Doctrine and the Prior Appropriation Doctrine –– two foundational principles of water law –– apply to the Walker River Basin.
The high court affirmed the state has a permanent duty under the Public Trust Doctrine to protect resources like Walker Lake in perpetuity for the economic, scenic and environmental benefit of Nevadans. However, the justices also asserted the power of the Prior Appropriation Doctrine –– the first-in-time, first-in-right allocation principle –– ruling that the state cannot take water from a senior rights holder upstream in Lyon County and give it to Walker Lake in Mineral County.
The decision affirmed the doctrines should co-exist but didn’t offer much guidance about how they should be integrated or harmonized when they come to loggerheads. That lack of clarity has created a quagmire of contradictions. And poses the question: Can the river and the lake – with their current uses – live in harmony?
Some think so.
In a separate opinion, Chief Justice Kristina Pickering pointed out the inconsistencies within the majority opinion and noted the availability of various other remedies under the public trust doctrine and Nevada’s statutory water law to get more water to Walker Lake without violating the Prior Appropriation Doctrine.
While Nevada water law provides these potential remedies for this problem, the officials in charge of overseeing the management of the river and lake have never recognized their duty to safeguard the lake or taken meaningful action to actually fulfill that duty.
Now the case is heading back to federal court, where Walker Lake advocates will ask for the very remedies considered by Chief Justice Pickering.
I have friends on both sides of this issue. My day job is in water advocacy. Mineral County’s attorney is also my organization’s counsel. I work with farmers who are thrilled and conservationists who are upset with the Supreme Court’s decision. There’s never an instance in the Nevada water wars where all parties go home from court happy.
This is no exception.
At its core, this case is a microcosm of a greater issue in Nevada. The drop in Walker Lake’s elevation in the last two centuries amounts to the loss of trillions of gallons of water that will be hard to get back without a loss somewhere else.
Other rivers, creeks, streams, springs, and aquifers across the state are not producing what they once did because people are using more and nature is making less. In every corner of the state we are squeezing blood out of turnips.
We must have a system where one doctrine doesn’t overshadow another. Walker River can’t hold Walker Lake Hostage or vice versa.
The law calls for harmony. But as we see in other battles across the state, it’s easier for water sources to co-exist on paper than it is in a riverbed or aquifer.
Kyle Roerink is the executive director of the Great Basin Water Network. He and his wife live in Reno Nevada. Support his writing.
The opinions expressed above are not necessarily those of the Sierra Nevada Ally. Our newsroom remains entirely independent of our opinion page. Published opinions further public conversation to fulfill our civic responsibility to challenge authority, act independently of corporate or political influence, and invite dissent.