Nevada battle over leaky irrigation canal and groundwater extra sophisticated than seems on floor

RENO, Nev. (AP) – Water conflicts are nothing new for the arid West, where myriad users have long been vying for their share of the precious resource, from California’s Central Valley to the Colorado and Missouri rivers.

But few have addressed the legal issue at play in rural Nevada: To what extent can residents, farmers, and ranchers claim water that seeps into the ground through the clay bottom of an outdated, unlined irrigation canal?

A federal appeals court recently breathed new life into a legal battle that has involved the US government and the high desert town of Fernley since a 118-year-old sewer burst in 2008, flooding hundreds of homes.

That year, the US Bureau of Reclamation began work on a plan to line portions of the 31-mile (50-kilometer) canal with concrete. The canal diverts water from the Truckee River, which flows out of Lake Tahoe in the Sierra, and directs it to irrigation ditches that support alfalfa farmers and ranchers about 30 miles (50 kilometers) east of Reno.

However, farmers and ranchers in and around the town of Fenley said the repairs would prevent leaking water they’ve used to fill their wells east of Reno for a century.

The government says locals have no right to the water, which US taxpayers own. Government experts say the rehabilitation will also help prevent future sewer failures, although they acknowledge it will prevent leaks into the local aquifer used by Fenley residents.

Completed in 1905, the Truckee Canal was the first major irrigation system in the West under the Newlands Reclamation Act signed by President Theodore Roosevelt in 1902.

The law was named after a Nevada congressman who said the project would “make the desert bloom” and attract settlers to places like Fernley, where annual rainfall averages five inches.

Similar projects followed throughout the arid west – many of them much larger. Construction of the Theodore Roosevelt Dam on the Salt River in Arizona began in 1903 and was dedicated by Roosevelt himself in 1911.

By then, two dozen projects had been approved, including one that dammed the Lower Yellowstone River near its mouth in the Missouri to irrigate farmland in Montana and North Dakota.

In Nevada, Fernley and surrounding agricultural users eventually became “totally dependent” on state-subsidized water supplies, their attorneys say.

Borrowing a sort of finder-keeper doctrine as old as the western expansion, opponents of sewer rehabilitation have argued in state and federal courts that they have a right to water, in part because no one told them before the canal broke that they not allowed to do that.

The bureau, the Truckee-Carson Irrigation District, which operates the canal, and various judges generally agree that the water belongs to US taxpayers.

Fernley is trying to assert a water right that does not exist under state or federal law, irrigation district attorney Benjamin Shawcroft said in recent Nevada Supreme Court filings.

“A related but perhaps unanswerable question is why is the City of Fernley so determined to disrupt a project whose sole purpose is to prevent a canal breach and the flooding of hundreds of homes?” he wrote.

Fernley attorney David Rigdon said the city is not opposed to cheaper alternatives to reduce flood risk while maintaining groundwater recharge.

“What Fernley refuses is a cure worse than the disease,” Rigdon wrote in the court filings. “To fix an issue that was affecting about 500 homes, they implemented a solution that is jeopardizing the primary water supply for all 20,000 city residents.”

“And to make matters worse, they now want the very people they are harming to pay for the cost of building the project,” he wrote.

No one was killed or seriously injured in the 2008 flood, but the Irrigation District agreed to a $18.1 million class action lawsuit in 2016 involving 1,200 people who suffered property damage. Unusual, heavy winter rains put pressure on the canal system, and experts later found it had been weakened by decades of rodent burrowing down the sides.

The legal dispute over the plans for the rehabilitation of the canal followed.

Fernley filed for relief in a state court last year after US District Court Judge Miranda Du dismissed her federal lawsuit alleging that the government failed to adequately address the alternatives required by the National Environmental Policy Act when granting a 148 -Million dollar plan to route 12.7 miles (20 km) of canal approved.

In March, the 9th US Circuit Court of Appeals upheld Du’s ruling, which concluded that the NEPA claims had no legal basis because their interests in the water were economic, not environmental.

However, the San Francisco appeals court also concluded that she erred in refusing to allow Fernley to amend her lawsuit to prove either would cause harm.

Du issued a new order this month giving Fernley until June 12 to file an amended complaint while the Bureau of Reclamation completed work on the first phase of lining 3.5 miles (5.6 km) of the canal for $35 million continues.

Approximately $2.5 million of the initial phase is expected to be recouped from the Irrigation District through assessments from water users who rely on the District to meet the needs of a growing community that has doubled in size over the past 20 years.

Fernley now wants to show that the loss of groundwater recharge will have dramatic and complicated impacts on the natural environment, as well as on farmers’ wallets.

“It’s going to make our community polluting,” said David Stix, a longtime rancher and former mayor of Fernley.

He said hydrological studies suggest that subsidence in the local aquifer will draw water from saline marshes in the nearby Fernley Wildlife Management Area and deteriorate the community’s water quality.

“This migration would be of great concern because treating salt in water is much more expensive than treating arsenic,” Stix said. “There’s all these unknown domino effects.”

He is among those who say that lining the seawalls, but not the soil where the water seeps away, would achieve all goals at a lower cost without domestic wells “starting to suck in air.”

He fears that unless the aquifer is replenished by percolation, the landscape will eventually return to its pre-canal state.

“It was basically desert,” Stix said. “There was nothing here.”

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