Water flows through an irrigation canal in Fernley on March 18, 2021. (AP Photo/Scott Sonner, File)
By Scott Sonner Associated Press
Friday, December 10, 2021
RENO — Lawyers for the government and a rural Nevada town clashed Wednesday over western water law in a legal battle over the U.S. Bureau of Reclamation's plan to renovate a 115-year-old earthen irrigation canal with changes that would eliminate leaking water local residents long have used to fill their own domestic wells.
Lawyers for both sides argued in U.S. District Court in Reno where last year a judge denied Fernley's bid to delay plans to line parts of the Truckee Canal with concrete to make it safer after it burst in 2008, flooding nearly 600 homes.
Judge Miranda Du said she intended to rule in the coming weeks on the bureau's motion to dismiss the lawsuit Fernley filed in March because it has no legal standing under federal law.
In addition to guarding against another breach in the canal, the government says the renovations will reduce the loss of water that belongs to U.S. taxpayers.
Fernley says eliminating seepage through the canal's dirt floor will cause the local aquifer to drop, imperiling its municipal water supply and causing 71% of domestic wells to fail.
"There is no water right to seepage," Justice Department lawyer Eve McDonald, representing the bureau, told Du during Wednesday's hearing.
Fernley's lawyers disagree, saying the town has been dependent on the leakage for more than a century and that the bureau has "never raised any objections" to its use of it.
"Now, after decades of reasonable reliance on the recharge water, and hundreds of millions of dollars of investment, the bureau wants to yank the rug and leave Fernley and its citizens high and dry," the lawsuit says.
Among other things, the town said the bureau violated the National Environmental Policy Act by failing to consider alternatives to improve the safety of the canal without such a drastic impact on the local groundwater supply.
The government insists the town has no legal standing under NEPA because the potential harm it cites is economic, not environmental.
"Fernley elevates real estate development and urbanization ... over preservation and enhancement of the environment," the bureau said in its motion to dismiss the lawsuit.
"The artificial recharge of the local aquifer is not natural, it is the consequence of human intervention," it said. "The fact that the city will have to spend money to more efficiently provide water to its citizens falls outside the scope" of NEPA.
Fernley lawyer David Rigdon said under the doctrine of Nevada law, the waterway is not artificial and has been established over time as a natural part of what was intended to be a "permanent fixture" on the landscape.
"The harm is to the groundwater aquifer itself and that is part of the physical environment," he told Du on Wednesday.
But McDonald said the town's "only concern is about their water supply for consumption."
"It's the removal of the water that harms the aquifer, not the lining of the canal which is necessary for public safety," she said.
Built in 1905, the Truckee Canal was part of the Newlands Project named after the Nevada congressman whose legislation led to creation of the Bureau of Reclamation. It was the first major irrigation project in the West — intended to "make the desert bloom" and attract settlers.
"You have an entire community that was built up through reliance on this recharge," Rigdon said.
Fernley argues the NEPA review must analyze "all" impacts that will result from implementation of the preferred alternative, estimated to cost about $148 million.
It said the bureau didn't "provide any indication that the project is 'going to hurt people' or that the groundwater level declines will result in land subsidence or the elimination of ... plants and shrubs."
"Instead of finding the best and most environmentally friendly way to fix the flooding problem, the bureau wants to use this project to effectuate a reallocation of water to Pyramid Lake," it said.
The Pyramid Lake Paiute Tribe, an intervenor in the case that generally backs the government's position, said Fernley "erroneously asserts that the canal is legally considered a 'natural waterway' and water that historically escaped via seepage is 'impliedly dedicated' to the local community."
There is no basis in a century of water law in the West for its "erroneous and radical legal arguments" that it has "an entitlement to demand that the United States continue forever to use its Truckee River diversion right to artificially recharge the Fernley area groundwater aquifer," the tribe said.
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