HIGH NOON ON THE MUDDY RIVER

Unsustainable Groundwater Extraction in Southern Nevada  by Patrick Donnelly

The remote basins of the northern Mojave Desert and southern Great Basin are quite arid, but they also harbor remarkable aquatic biological diversity at isolated springs – oases in one of the driest places on earth. These springs, marshes, wetlands, creeks, and other surface water features are sustained by deep carbonate rock aquifers which rise to the surface through faulting. These aquifers are a legacy of a wetter time. They filled with precipitation during the Pleistocene, and are slowly discharging that water over time. What little precipitation the area currently receives rarely recharges the carbonate aquifer. As a result, this water is precious. And due to humans’ rapacious appetite for water, the rare fishes and aquatic invertebrates, migratory birds, mule deer, bighorn sheep, and other desert wildlife which rely on these springs maintain a precarious existence.

Let us now zoom in on a bountiful area of biodiversity called the Muddy River Springs Area. These springs give rise to the Muddy River in Clark County, Nevada, in the desert northeast of Las Vegas. They are a true oasis – dozens of spring vents creating an aquatic island of biodiversity in the north Mojave Desert. In particular, there are several species of fish endemic to these springs, including the Moapa dace (Moapa coriacea), which was listed by the federal government as an endangered species in 1967.

Endangered Moapa Dace by Dennis Ghiglieri

Why is the Moapa dace endangered? Because over-utilization of groundwater in the area surrounding the springs has decreased their discharge over time, slowly reducing the available habitat for the dace and consequently reducing dace numbers. This pumping is primarily for agricultural and industrial uses – mostly growing alfalfa and generating electricity plus various other uses across the area. There are other pressures as well – invasive fish such as tilapia have decimated dace populations. But the lack of overall habitat due to declines in spring discharge is the largest threat faced by the dace.

The basins surrounding the Muddy River Springs Area, which we call the Lower White River Flow System, have long been a subject of conservation interest as a result of the Moapa dace and the many other competing interests. In 2006, federal, state, private, and municipal agencies signed a Memorandum of Understanding that was intended to set trigger points at which pumping might need to be curtailed. The Center for Biological Diversity did not agree that this MOU provided adequate protection for the Moapa dace, and litigated the Section 7 consultation done by US Fish and Wildlife Service. They lost in the 9th Circuit federal court, and the MOU stands to this day.

Hanging over the heads of everyone in the Lower White River Flow System is the specter of Coyote Springs, the fabled city in the desert. This is political operator Harvey Whittemore’s dream of a massive Las Vegas suburb some sixty miles out into the desert, fed by desert groundwater and isolated from the troubles of the big city. Coyote Springs had applied for rights to massive amounts of groundwater to feed the sprawl in their proposal. These applications are ultimately what led to the situation today, and the Lower White River Flow System proceedings.

In order to determine whether Coyote Springs’ applications would prove detrimental to the aquifers that the dace relies on, the Nevada State Engineer, chief water regulator in the state, commenced the Order 1169 pump test. This pump test simulated a fraction of Coyote Springs proposed pumping in order to gauge the effect on nearby wells and springs. Once this limited pumping began, spring levels immediately began to decline at Pederson East, a high elevation spring and home to some Moapa dace. The pump test, which was slated to last three years, was ended after only 18 months, because of the alarming decline of the springs.

In 2019, the State Engineer issued Order 1303, initiating the Lower White River Flow System proceedings. This order instructed interested parties to submit technical and rebuttal reports, and to participate in an evidentiary hearing. The intent was to answer several questions: Which interconnected basins should be grouped and managed together as the Lower White River Flow System? What is the total quantity of water that can be sustainably pumped in this system? Where can such pumping occur? Participants were to use existing and new data, including data generated by the Order 1169 pump test, to derive answers to these questions and present their case. The ultimate intention was that this proceeding would lead to a grouping of basins to be officially managed as a single Lower White River Flow System andwith a maximum allowable level of pumping (presumably less than is currently allowed).

The Center for Biological Diversity, along with over a dozen other participants, submitted technical reports and rebuttals to other technical reports, and we participated in the two week hearing in Carson City in the Fall of 2019. We worked with hydrologist Dr. Tom Myers, whose previous work analyzing the carbonate flow systems of eastern Nevada had proven essential in the fight against another water project, the Las Vegas-Eastern Nevada pipeline. The Center argued that, based on data indicating high levels of connectivity in the carbonate aquifer across the six basins being considered, no pumping at all should be allowed from those aquifers.

Just as important (and potentially precedent setting) was our legal argument that the State Engineer is vulnerable to litigation under Section 10 of the Endangered Species Act (ESA). This section prohibits “take” of listed species, including the destruction of their habitat. The Moapa dace is protected under the ESA, and since the State Engineer is currently permitting pumping at levels which reduce spring flows, we argued that he is “taking” the Moapa dace.

This argument presents an important question: Are state actors bound by federal environmental protection laws? Even though the substantive procedural elements of the Endangered Species Act do not apply to state entities, are they nonetheless required to ensure their actions do not result in take of listed species?

In June of 2020, we got answers. The State Engineer issued Order 1309, designating six basins (and a portion of a seventh) as the Lower White River Flow System. Pumping in those basins will be limited to a combined total of 8,000 acre feet per year, and specific locations of pumping will be permitted on a case-by-case basis.

Perhaps most importantly, the State Engineer agreed with our legal argument, acknowledging that they have a responsibility to ensure their actions, including permitting of groundwater withdrawals, do not cause take of a listed species. This is an important and potentially precedent setting ruling. It essentially ensures adequate water for listed aquatic species even if they do not have formal water rights.

This ruling also may be the beginning of the end for Coyote Springs, the city in the desert. In a related but separate action, the Las Vegas-Eastern Nevada water pipeline met its demise in the spring of 2020. Coyote Springs had two options for getting water for their city: pump it from the ground or tap into the pipeline. In the span of one month, both options disappeared. Coyote Springs is left high and dry.

Naturally all of the parties involved found something they didn’t like. And many chose to appeal the State Engineer’s decision. The Center is among those parties appealing – we argued that the only sustainable option is to forbid all pumping from the carbonate aquifer, in contrast to the 8000 acre feet per year which State Engineer would permit. That’s enough pumping to send the Moapa dace on the road to extinction by drying up its springs. The outcome of this litigation is still pending.

There are perhaps a few lessons to be drawn from the experience of trying to save the Moapa dace. First, it validates the old environmentalist’s maxim of “endless pressure, endlessly applied.” Center for Biological Diversity attorneys and activists have been fighting for water for the dace for over fifteen years. This effort, even with setbacks like a loss at the 9th Circuit, paved the way for a momentous ruling which benefits the dace and every other listed aquatic species in Nevada.

And second, it shows the changing broader societal norms around water management and conservation. Generations of water conservation activism have yielded a shift in thinking, where economic benefit is no longer the only factor guiding water policy decision-making. With the demise of the Las Vegas pipeline and the protection of endangered species by the state, it appears there is a new type of thinking about water in Nevada. It’s now up to us to make sure it stays that way.

Patrick Donnelly is Nevada state director with the Center for Biological Diversity. He advocates for Nevadas biodiversity, waters, and public lands from the edge of the desert in the greater Death Valley region. He enjoys long desert drives, hot springs, rugged mountains, and deep canyons.