Judge ponders limits on Nevada canal that failed

RENO " A federal judge said Wednesday that he will decide in the coming weeks whether to limit water flows in a Nevada irrigation district's canals to reduce the risk of another breach like the one that flooded more than 500 homes in Fernley last year.

U.S. District Judge Lloyd George also will decide whether the U.S. Bureau of Reclamation illegally reopened the century-old earthen canal last spring without first providing public notice or seeking comment.

George indicated during the three-day hearing in Reno that he was sympathetic to concerns of victims of the January 2008 flood who are asking for a preliminary injunction to more strictly regulate the water flows in canals managed for the bureau by the Truckee Carson Irrigation District.

He said he's struggling with the case because the legal standard dictates there must be a "threat of imminent harm" to warrant an injunction.

At a minimum, the flood victims want flows halted or slowed any time the National Weather Service forecasts a 20 percent chance of at least 1 inch of rain over a 24-hour period in the area.

Experts testifying for the flood victims said that's likely only once every 10 or 20 years in a region that averages only 5 inches of precipitation annually.

"There is no factual evidence that imminent harm is likely to occur if the injunction is denied," said Greg Addington, an assistant U.S. attorney representing the Bureau of Reclamation.

But Robert Maddox, a Reno lawyer representing flood victims, said in closing arguments it's a matter of public safety that requires a "balancing of hardships" regarding the threat of another flood versus a reduction in water for the 2,500 farmers and ranchers who depend on the water from the Truckee River for their crops and livestock in Nevada's high desert.

"We can't say to you there will be another failure next month or next year. We don't know when a big storm will come, but when it comes, there's a high risk " a likelihood of a canal failure," Maddox said.

George acknowledged it's not easy to balance the interests based on probability.

"The problem, as I see it, is we just don't know," the judge said.

"I suppose it's not impossible to think that next week or in several weeks we might have an improbable storm that could create a real problem," he said, adding that he was inclined to "say that if something could be done, it should be done, in view of the tremendous damage that could occur if something happened."

Maddox said he was encouraged by the judge's comments and hopeful he would grant the injunction.

Unusually heavy rain preceded the canal collapse in 2008, flooding nearly 600 homes. Total damage estimates reached $4 million across the town, which was declared a federal and state disaster area.

Maddox and Treva Hearne, another Reno lawyer representing flood victims, argued the Bureau of Reclamation was required under federal law to serve public notice and seek comment before it permitted the irrigation district to resume water flows after the canal was repaired.

Addington countered that the bureau's order was not a formal rule subject to public comment requirements, but an ordinary managerial decision like hundreds federal officials and employees make every day.

George said he would give both sides two more weeks to submit written arguments on the injunction request and that he would rule after that. He said he hoped to settle the issue of the canal's reopening before that.