Flaps
An Insidious Path
[reprinted from the Elko Daily Free Press]
By Steve Miller
Opponents of Western water law now have a big new arrow in their quiver. To see how it works, consider the so-called Truckee-Carson water settlement talks that were supposed to end decades of water conflict in Western Nevada.
Despite much puffery for the talks, considerable evidence has recently surfaced suggesting a far more accurate name for them will turn out to be "How to Mug a Small Nevada Community for Its Water Before Fighting About It in the Courts Forever."
That’s because -- as a large and authoritative outside study recently made clear -- the only way the seven years of talks were able to at all move forward was by "scapegoating," "excluding and blaming" the party to the talks with the largest block of Truckee River water rights -- Churchill County’s Newlands Project irrigators -- while planning how to divvy up the Newslands water.
"By more than a few accounts, " says the report for the congressionally chartered Western Water Policy Review Advisory Commission (WWPRAC), "the Truckee-Carson settlement has been able to proceed only by excluding and blaming one of the parties."
"Notwithstanding the ballyhooed ‘cooperation and consensus’ trend that is said to have characterized the settlement negotiations," continues the analysis, "it appears that the negotiated settlement included as a subtext a sustained attack on the Newlands irrigators which undermined what otherwise might have been possible agreements that could have included them."
Calling that outcome "a fundamental failure" in negotiation, the study goes on to point out that the bias against the irrigators had been present from the beginning since it was built into the statute that established the talks, Public Law 101-618. Sometimes called the "Truckee-Carson-Pyramid Water Rights Settlement Act," the legislation was introduced and sponsored by Nevada’s senior U.S. Senator, Harry Reid, and passed by Congress in 1990.
"[N]owhere in the stated purposes of P.L. 101-618," noted the WWPRAC study, "are the interests of the irrigation communities elevated to be coequal with the other major interests in the basins…"
Indeed, there is good evidence, says Jeremy Pratt, head of the water policy analysis team retained to conduct the Truckee-Carson basin study, that the effort to put the Churchill County behind the eightball was consciously intended.
"At times, actions were taken [by other parties in the talks] that seemed designed more to hit out at the irrigators and cause them harm than to advance toward a larger solution," wrote Pratt. "Enough such instances exist to raise the question as to whether driving the irrigators from the negotiations may not have been on some agendas from the start."
The report, done by WWPRAC’s contractor Clearwater Consulting, itemized numerous such instances but still emphasized that its focus on the "issues associated with Newlands Irrigators" should not be interpreted as advocacy for the irrigators. Their intent, said the team, was to illuminate lessons learned that would be useful for Congress in the future.
One lesson learned, according to one unnamed senior Bureau of Reclamation official, is that the probable legacy of Senator Reid’s law will be more, not less, conflict over water.
"[T]he Truckee-Carson [basin] has never gotten away from being tied up in litigation," the report quoted the official as saying, "and … P.L. 101-618 only generates more lawsuits."
Those lawsuits, say some other students of western water law, could easily end up sweeping the entire American West. That’s because, they say, Reid’s law -- crafted with the aid of top strategists in both the environmentalist movement and the Department of the Interior -- produced a methodology for circumventing prior appropriation water law in Western states.
The process enabled by P.L. 101-618 was sold to the public as a way to protect endangered species and "settle" water disputes. But in practice it has turned out to be a way to completely reallocate the waters of the Truckee with neither the consent of, nor due process for, the politically weak owners of the rivers’ biggest block of water rights.
Reid’s law works like this: Once the favored parties in the Truckee River operating agreement talks have come to a deal on how to divvy up the river waters, that pact is to be cast into the form of a federal regulation and published in the Federal Register by the Secretary of the Interior. Assuming no federal court objects, that regulation thereafter is to govern the storage and flow of the Truckee’s waters.
This will be the complete federalization of the river’s water – precisely the kind of thing that Nevada and other Western states have opposed for over a century.
Not only does it mean, practically speaking, that citizens and communities along the 75 percent of the river which lies in Nevada will often find themselves under the thumb of one more slow and indifferent Washington bureaucracy.
Even more significantly, it also means that no longer will Truckee River water rights issues be decided under the substantive and procedural provisions of Nevada water law, which -- like that of all other Western states -- is founded upon the principle of prior appropriation. Replacing it instead will be the administrative code and procedures of implicitly dictatorial federal agencies.
For people eager to get around existing property rights in water -- say, federal bureaucrats, environmentalists or any other large interest seeking water resources for which they don’t want to pay market prices -- Reid’s law has blazed an insidious path . Right into the D. C. Beltway.