The Swimming Mule and Other Agendas 3.

Submitted: Jul 23, 2016
By: 
Badlands Journal editorial board

 Harken to the harmony of desert water experts. This should be read while humming "Home, Home on the Range." --blj)

 

Remaining Upbeat

Certainly, there are challenges. Mulroy, though, remains resolutely upbeat, even sanguine, about the possibilities for communication and collaboration. The most obvious example is the comparison between what has happened on the Colorado River and the unresolved events, including litigation, around the California Bay Delta amid crushing drought.

“Although the Colorado River has suffered through 15 long years of debilitating drought, the agreements that have been forged over the years have averted catastrophic consequences,” Mulroy said. “Incrementally, this region has adapted to conditions as they unfolded.”

But next door, things are not so good.

“Conversely, the story of California’s drought has been the story of missed opportunities,” she said.  “The regions have been bitterly divided, refusing to forge a common strategy and choosing instead to face off in court. So when the worst of the drought hit, there were no tools to soften the blow and mitigate the damage. The years leading up to the system crash in which there was additional water that could have been stored were lost; all that was left were draconian drought measures and much suffering by all sectors.” -- Launce Rake, UNLC News, July 19, 2016.

For over 20 years the vision of a nearly 300-mile long pipeline that would pump groundwater from rural valleys in eastern Nevada to the city of Las Vegas has floated, mirage-like, over the arid state. For the Southern Nevada Water Authority and its powerful general manager, Pat Mulroy, the project is a way to moisturize Las Vegas when the Colorado River is unable to slake the city’s thirst. For opponents -- environmentalists, ranchers, Native American tribes, and others -- it is a specter, an unnecessary development that could usher in irreversible environmental changes. -- Brendon Bosworth, High Country News, August 10, 2012

 

 

It's generally understand that the Quantification Settlement Agreement of 2003, which reduced the quantity of Colorado River water available to Southern California, had immediate consequences for the Delta. Southern California had to make up for the water lost with water from Northern California. Species in the Delta began to crash soon after, the crash continues, and the governor's tunnel project will not improve the situation. In this situation, science and the state have been bought and pressured into taking water from some of the richest land left in California to irrigate former alkali flats for a few years more until that land completely salts up.

We are disinclined to accept the criticism of Ms. Mulroy, former general manager of the South Nevada Water Authority (which supplies Las Vegas), who fashioned a "common strategy" with Las Vegas developers to create one of the least sustainable residential building booms in the entire West, and then sought to support it by drawing from widely scattered aquifers vital to rural Nevadans.

This story, an academic confection fashioned by the University of Nevada, Las Vegas, falls in the category of Mystification of the Expert (without respect for political and economic reality).

The famous settlement of 2003 was designed and effected by Assistant Secretary of Interior Bennett Raley, Colorado's top water lawyer, pursuant to long term grievances by upstream users of Colorado River water, all of which (with the exception of New Mexico, barely, voted for George Bush for President in 2000. California was the other state, among the seven that draw from the Colorado River, that voted Democratic.

It was, shall we say, their time. And they took it as California had taken it in another time, when the upstream users -- Colorado, Wyoming, Utah, Nevada and Arizona -- needed less water than they did after "Sunbelt" building booms hit them all.

So, another aspect of Mulroy's "common strategy" was to get more water for the upstream waters, which left less for California. Therefore, more Northern California water had to be sent south to make up the difference.

And we shall all make nice at our workshops and seminars while the Delta smelt and the Chinook salmon disappear. And under no circumstances are we to do anything as aggressive as a lawsuit, because, like that would break up the harmony of the experts.

--blj

 

 

7-19-16

UNLV News

Water Crisis: Conflict ... or Resolution?

Why two Saltman Center experts say mediation is key to resolving the water woes of the American West.

 Launce Rake

http://www.unlv.edu/news/article/water-crisis-conflict-or-resolution

Few issues in the world are bigger than the crisis of water resources. Drought and flooding have plagued humanity since the dawn of history, but climate change is driving extremes that are affecting billions all over the world. And the crisis is not confined to far-off places. Drought and flooding are ripping through the American West — including Nevada and California — threatening the social, legal, and political status quo.

At UNLV’s William S. Boyd School of Law, two scholars, women with very different resumes but a world of experience, are perhaps uniquely positioned to confront the issues of water.

Jean Sternlight is the Michael and Sonja Saltman Professor of Law, where she has been, since 2003, the first and only director of the Saltman Center for Conflict Resolution. She received her law degree from Harvard University, where she served as editor-in-chief of the Harvard Civil Rights-Civil Liberties Law Review. She also clerked for federal judge Marilyn Hall Patel in California and subsequently practiced plaintiff-side employment law in Philadelphia.

A bit self-effacing when it comes to water issues, she noted that science and technology are important components. But she also is acutely aware of the importance of mediation and dialog to resolving natural resource conflicts, and — for the Saltman Center — conflict resolution is the mission.

Hot Topic

“This is a very hot topic that many different groups are focusing on,” Sternlight said.

One of those who consider water a “hot topic” is Patricia Mulroy, a more recent addition to the Saltman Center roster. A leader in the international water community for more than 25 years, Mulroy is the former top administrator of the Southern Nevada Water Authority, the region’s water wholesaler, and the Las Vegas Valley Water District, which brings water to taps throughout the city of Las Vegas and unincorporated Clark County, including the Strip. At Boyd, Mulroy serves as a senior fellow for climate adaptation and environmental policy and as a practitioner-in-residence for the Saltman Center.  Additionally, she holds a faculty position at the Desert Research Institute.

The Colorado River resource, how to use it, share it, and protect it, Sternlight and Mulroy agree, is a critically important environmental and natural resource issue for the West, the United States, Mexico, and, by extension, a stressed-out planet.

The center uses the tools of communication, mediation, and public participation to negotiate solutions to all sorts of problems, especially those thorny public policy issues that too often seem overwhelming or intractable.

Water has always been a resource that provokes fights, particularly in the American West. Ranchers and farmers versus miners, cities versus rural inhabitants, newcomers versus indigenous people: Now Earth itself, which once welcomed millions to the West Coast with regular rainfall and an astonishingly comfortable climate, has seemingly turned against us.

Global Issue

Of course, the conflict over water is nothing new. Its scope is now global.

“Global concern about water has grown steadily in the last years, with the World Economic Forum now listing it as one of the planet’s top challenges,” Mulroy said. “As fears and concerns grow, it becomes more important than ever to set the right tone so that we can find those strategies of coexistence that balance all the diverse needs, including preserving the ecosystem around us. It reinforces the need to educate the new generation of lawyers to be one that finds opportunities and common ground and not one that hardens positions and seeks to create winners and losers.”

We must choose between sinking in conflict or swimming with negotiation, Sternlight suggested.

“One way or another, these issues ultimately will be resolved,” she said, ideally without violence or punishing judicial decrees.

The “Turbulent Waters: Brokering a Secure World” conference in January was not the first time the law school and the Saltman Center hosted an event focusing on water issues in the West. In September 2013, it hosted “Water Law in the West: A Panel Discussion with Patricia Mulroy;” and in October 2007, “Collaboration and the Colorado River.”

No Easy Solutions

But Sternlight warned that even with the ministrations of the center, not every problem has a

solution.  Simply put, “Collaboration doesn’t work when the issues are such that people cannot reach an agreement,” she said. Impediments to solutions can include personalities that refuse to accommodate other perspectives and needs. Perhaps counter intuitively, she said severe imbalances of power could make resolving differences harder to achieve. And there are power imbalances on the Colorado River, she noted.

California gets 4.4 million acre-feet of water from the river system annually, delivered through the massive reservoir outside of Las Vegas called Lake Mead. Nevada, however, is allocated less than one-seventh that amount. And Arizona, by federal law, is the first state that will face cuts in the increasingly likely event that water shortages are formally declared.

Mulroy, in her time with the Saltman Center, has had the opportunity to speak to several classes of future lawyers. Her message, she said, is consistent.

“In the area of water resources, look to the law for the opportunities it can create and not as the sword by which to stop something,” she said. “Legal confrontations by definition have winners and losers, something which in this space has never played out well over time. The greatest example of that is the infamous case of Arizona v. California. In this 20-year-plus lawsuit, the state of Arizona won the right to use its tributary, the Gila River, and not have it count towards its Colorado River allocation. The decision came over the objections of California, which saw the tributary as part of the larger system. 

“Having lost that lawsuit, California took advantage of the opportunity to right the wrong they felt they had suffered in court when Arizona went to Congress to get funding for the Central Arizona Project. The much larger delegation from California prevailed in attaching an amendment to that legislation that subordinated the entire supply being delivered by the project to all of California’s uses, Mulroy said. “In other words, in the event of a shortage, the state of California would not have to reduce its use by a gallon until there was no water going through the Arizona canal. Arizona essentially won the battle and lost the war. Litigation didn’t help solve the problem. It, in fact, made it worse.”

The conclusion from this protracted war of law and politics? “The future of water law lies in mediation, not in litigation,” she said.

Science vs. Politics

Bringing reasonable people together to discuss science and public policy is great, and certainly provides a forum for various stakeholders — and we are all stakeholders — to find solutions that serve the common interest. But is it always possible to find those solutions? Not only are some of those with the most to gain (or lose) sometimes firmly resistant to solutions, but there are plenty of people, some of them in policymaking or policy-implementing positions, who don’t believe the problems exist at all.

The data collected by scientists throughout the West cannot always be easily reconciled with the political answers.

“Science and the discipline of scientific discovery are never static and never absolute,” Mulroy said.  “Scientists report observed changes and events and seek causal relationships. They are quick to adapt as new data emerges that may lead to changed conclusions. 

“No one denies that there has been a noticed change in weather patterns, with greater extremes occurring each year. The argument is around what is causing it — is it a natural cyclical event or the consequence of burning fossil fuels?”

The cause, however, ultimately is not the prime concern of water managers, Mulroy said.

The Need to Adapt

“Whatever the reason for our new weather reality, we have to adapt to those changed conditions,” she said. “In that regard it is much easier to deal with the consequences of climate change and find adaptation strategies. The challenge is how to do it in a way that won’t cause massive economic fallout and in some instances destroy the economic underpinnings of entire nations.

“Today’s scientific discovery will invariably be challenged tomorrow by new data,” she said. Climate science over the last years has evolved. Early assumptions have been refined. For water planners, that means a disciplined and continual partnership with the science community is essential.”

Remaining Upbeat

Certainly, there are challenges. Mulroy, though, remains resolutely upbeat, even sanguine, about the possibilities for communication and collaboration. The most obvious example is the comparison between what has happened on the Colorado River and the unresolved events, including litigation, around the California Bay Delta amid crushing drought.

“Although the Colorado River has suffered through 15 long years of debilitating drought, the agreements that have been forged over the years have averted catastrophic consequences,” Mulroy said. “Incrementally, this region has adapted to conditions as they unfolded.”

But next door, things are not so good.

“Conversely, the story of California’s drought has been the story of missed opportunities,” she said.  “The regions have been bitterly divided, refusing to forge a common strategy and choosing instead to face off in court. So when the worst of the drought hit, there were no tools to soften the blow and mitigate the damage. The years leading up to the system crash in which there was additional water that could have been stored were lost; all that was left were draconian drought measures and much suffering by all sectors.”

Sternlight said that although another water-focused conference hasn’t been scheduled, the issues are too big to go away and the need for conflict resolution will remain. Despite the challenges, she said she too is generally an optimist when it comes to finding solutions to contentious policy debates, but she tempers that optimism with a bit of realism.

“Hope for the best,” she said. “Prepare for the worst.”

 

11-27-05

Badlands Journal

Where is it written?

http://badlandsjournal.com/2005-11-27/0017

Metropolitan Water District of Southern California's lawyers filed a legal brief last week that argues that the drastically crashing population of Delta Smelt cannot be used as an argument for curtailing water shipments from the Delta to LA. The Delta Smelt, they say, is not under the protection of the federal Endangered Species Act because it only lives in one state. (1)

Perhaps California's Endangered Species Act will protect the smelt. However, Metropolitan's brief brings up a far more important issue.

But, first, already slipping beyond the living memory of Californians is the Colorado River Agreement in the first Bush term. Bush appointed a Colorado attorney general, Gale Norton, secretary of the Department of Interior. Norton brought with her Colorado's top water attorney, Bennett Raley. Raley's assistant, Californian Jason Peltier, was executive director of the Association for California Water Agencies. The result of the negotiations on the Colorado was that the upstream states would keep more and Southern California would get less. Since then, Metropolitan has been buying water contracts wherever it could in Northern California and the last three years of pumping out of the Delta have been the heaviest in history and have contributed greatly to the "sudden" collapse of the federally endangered Delta Smelt populations.

This water war was inevitable, but Metropolitan's argument raises an interesting question. This species of smelt is limited to the Delta. The Delta is its home. It has no other. Its home is being destroyed by Southern California water agencies 400 miles away, which are providing water for a growing population of people, many of them who have moved from far away to Southern California.

Let us speak the unspeakable. The smelt cannot move. The people can move and, in many cases, have moved to Southern California, a desert region without enough local water supplies to support a tiny percentage of its present human poplation.

Why can't the people move away from Southern California to avoid extinguishing this species of fish and once again damaging the salmon populations, which cannot spawn in LA storm drains any more than Delta smelt can migrate to Beverly Hills swimming pools.

People can move. They have demonstrated their ability to do it, time and time again. Wildlife species have a harder time relocating.

"Where is it written?" ask the brilliant Metropolitan water attorneys. "Where is it written" that a species specific only to one state can be covered by the federal ESA?

To such a sophisticated and expensive rhetorical question, one might reply with another: Where is it written that Southern California has the right to seize Delta water, gravely endangering one or more species of fish, because it has insanely fomented growth in its arid region so far beyond the carrying capacity of its resources that the word "carrying capacity" uttered aloud in Metropolitan lawyers' tennis clubs might be cause for suspension or revocation of membership?

Other questions arise. Humanity, of course, asserts the right to dominate lesser species. It doesn't have to be written down. But it gets trickier when the south exerts its domination over the north in our state water wars, because the south has a larger population and therefore more political representation. Then there is a good question for academics with the resources for such studies: a team of University of California professors ought to try to come up with an approximate figure of how many millions of dollars are spent annually by developers, water agencies, local, state and federal government agencies (including UC) on propaganda, lobbying and lawyers to defeat environmental laws and regulations. A publicly financed institution like UC ought to be the ideal site for such a study in view of the amount of money public agencies like UC spend to fight environmental law and regulation.

Bill Hatch
-------------------------------
Note:

(1) http://www.sacbee.com/content/opinion/story/13895995p-14734826c.html

Editorial: LA's new water theory; Lawsuit: Feds can't protect Delta smelt
Sacramento Bee – 11/23/05

For years the Metropolitan Water District of Southern California has tried to assure a skittish north that it isn't looking to harm the Sacramento-San Joaquin Delta. Sure, it wanted water for its 17 million customers, but in a safe, reliable way.

The Delta these days is in an environmental free fall, its fish species crashing to record low numbers. And as this is happening, Metropolitan and other water districts are advancing a legal theory in court that the federal Endangered Species Act does not apply. For Southern California to attack a key environmental law during the Delta's worst environmental crisis is hardball that harkens back to water tactics of yesteryear.

Why wouldn't federal law pertain to the Delta smelt, a listed species meriting protection?

The smelt, according to a legal brief filed by Metropolitan and all of the State Water Project contractors, "have no apparent role in interstate commerce." And the smelt don't swim between two states. Its habitat, the brief continues, "is located entirely within the state of California." Therefore in this lawsuit, Metropolitan and fellow water pumpers "intend to raise the issue of whether the Endangered Species Act can properly be applied to regulate and protect purely intrastate species."

The theory may ring some bells. It came up during the confirmation hearings of Supreme Court nominee John Roberts.

He had once opined in a case that a "hapless toad" isn't protected by the federal Commerce Clause because the toad, "for reasons of its own, lives its entire life in California." Roberts is now chief justice of the Supreme Court. Whether this hapless toad, or the Delta's hapless smelt, are truly protected under the federal Endangered Species Act remains to be seen.

To protect the smelt and migrating salmon, state and federal agencies for years have curtailed pumping from the Delta during certain times. The same agencies are looking to pump more water at other times, resulting in a net increase in pumping. The Natural Resources Defense Council is suing the federal government over the new pumping strategy (NRDC v. Norton, Case No. C 05-00690 CW). Southern California makes its "hapless smelt" argument, among others, in this case.

Fortunately, California has a state Endangered Species Act. It protects the Delta smelt. But any law is subject to change, either through a decision by courts or legislators.

For Southern California to try to whittle away at Delta protections is an extraordinary action. But Metropolitan staff says its board was never consulted beforehand about advancing the new "hapless smelt" legal strategy. Wow. Who's in charge down there?

To find balanced, lasting solutions in the Delta, the state desperately needs Metropolitan to reduce its dependency on this estuary and to play a centrist role between the hard-line positions of agriculture and the environmental community.

The behavior of Metropolitan in this lawsuit, by seeking to undermine federal protections of the Delta, is radical, reprehensible and revealing. #

8-10-12

High Country News

Pipe Conflict

Brendon Bosworth

https://www.hcn.org/blogs/goat/pipe-conflict

For over 20 years the vision of a nearly 300-mile long pipeline that would pump groundwater from rural valleys in eastern Nevada to the city of Las Vegas has floated, mirage-like, over the arid state. For the Southern Nevada Water Authority and its powerful general manager, Pat Mulroy, the project is a way to moisturize Las Vegas when the Colorado River is unable to slake the city’s thirst. For opponents -- environmentalists, ranchers, Native American tribes, and others -- it is a specter, an unnecessary development that could usher in irreversible environmental changes.

Last week, the Bureau of Land Management brought the pipeline a step closer to reality. In a 5,000-page Final Environmental Impact Statement the agency recommended allowing development of the underground pipeline across federal lands. The pipeline would transport groundwater from four valleys in the Great Basin region in eastern Nevada. The SNWA had already gained the water rightsfor up to 84,000 acre-feet of underground water from the Spring, Cave, Dry Lake and Delamar Valleys from Nevada’s state engineer but it needed BLM's approval to build its pipeline on the federal land.

The BLM’s recommendation excludes one controversial locale: Snake Valley, which is on the Utah-Nevada border and is another Great Basin area Mulroy wants to tap. The Authority does not have rights to water in Snake Valley yet, due to a pending agreement with Utah. Back in 2009, as Matt Jenkins reported for HCN, Nevada and Utah banged out a deal to share the groundwater in the aquifer there, but this has not been finalized because Utah has not signed the agreement yet. Mulroy has accused Utah of “bad-faith bargaining” and said the issue could end up at the Supreme Court if it is not resolved. Another reason the SNWA has not secured water rights in Snake Valley is that Nevada’s state engineer put a ten-year moratorium on deciding when to make a decision about the city's application for water rights from there.

 

 

 

 

Over the years, opposition to the pipeline has been strong. And with the release of the BLM’s assessment there is criticism from many quarters. Susan Lynn, who is on the board of directors for opposition group the Great Basin Water Network, maintains that the state engineer did not properly consider the irreversible environmental impacts of permitting SNWA to take groundwater from the four valleys. She contends that the project will draw down the groundwater system throughout the valleys and, since groundwater is connected, impact Snake Valley anyway, ultimately having ill effects on rural counties that depend on tourism and public and private land grazing.

 

Advocacy group the Center for Biological Diversity warns that sucking up groundwater could desiccate the region’s springs and wetlands, compromising the survival of the Great Basin springsnail, a type of freshwater mollusk that plays a key role in breaking algae and decaying matter into food for fish, birds, turtles and other creatures. The National Parks Conservation Association and the Coalition of National Park Service Retirees have also voiced concerns, particularly with regards to “potential dust bowl conditions” created by sucking water from the watersheds. Leaders from the Confederated Tribes of the Goshute Reservation, located in Nevada’s White Pine County and in Utah’s Juab and Tooele counties, have also panned the proposal, accusing the BLM of allowing Las Vegas to “steal” the tribes’ water.

The project is unnecessary because Las Vegas’ population is not poised to grow at the rate that it did in the past, contends the Great Basin Water Network's Lynn. Conserving water in Las Vegas should be the priority, she says. Lynn also raised concerns about the cost of the project, which could run as high as $15 billion, and the SNWA’s ability to finance it. The Authority is already up to $3.3 billion in debtand has asked for federal assistance to pay for another water project known as the “third straw” – an intake pipe that will allow water managers to draw water from Lake Mead at 1,000 feet above sea level, a move that could be necessary under future water scarce conditions.

Despite opposition, the SNWA maintains that the pipeline is a crucial “safety net” for a water scarce future, explains Davis. He also noted that over the past decade the SNWA has waged an aggressive water conservation campaign, which in 2011 helped Southern Nevada use 36 billion gallons less water from the Colorado River than it did in 2002.

Judging by the legacy of opposition to the pipeline, as well as the hail of criticism fired at the BLM’s recent proposal, challenges and lawsuits will continue to dog the project. And with a hefty price tag sitting on top of these challenges it could be a long time 'til the pipeline actually materializes.

 

 

 

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