A Case Study of Federal Arrogance Right Here in Nevada

Water management is a growing concern in Nevada and the issue has exploded in the Lahontan Valley. The farming industry has been pitted against the environmentalists , creating a lose-lose situation for all.

By Russ P. Armstrong

She had no choice really. "They (the government) bought out all the water around me, so what could I do?" said 76-year-old Georgie Sicking, a noted cowboy poet and venerated figure of the Lahontan Valley, who sold the ranch she had worked alone for two decades. Water disputes in this valley have been ongoing for years. And slowly the farmers and ranchers have begun to see the handwriting on the wall, more water has been legally allocated than is available. Without water, a farmer or rancher has nothing except the proverbial shirt on his back.

Numerous lawsuits have been filed in an attempt to stop the government from buying up all the water, as in Sicking’s case. Counter-lawsuits have been filed to keep government control of water in the name of nature conservation and endangered species preservation. In an attempt to put an end to this nonsense that is tying up the courts in Churchill and Lyon counties, Senator Harry Reid introduced Public Law 101-618. For some, the enactment of this law will be the beginning of the end.

There are two parts to Public Law 101-618 - "Title I, The Fallon Shoeshone Tribal Settlement Act," and "Title II, The Truckee-Carson-Pyramid Lake Water Settlement." The measure was passed by the Democratic Congress in 1990 and signed into Law by President George Bush. The bill calls for a vast array of perceived "remediation steps" to be taken in both the Carson and Truckee River basins, complete with huge financial pay-offs to the two relevant Indian tribes. Would you believe $43 million for the Fallon Paiute Shoshone Tribe, plus $25 million for a "fishery development fund," plus $40 million to finance an economic development fund for the Pyramid Lake Paiute Tribe?

Terms of Public Law 101-618 specifically charge the Secretary of the Interior with the responsibility for implementing the law, going so far as to caution him about altering any federal environmental or wildlife conservation law already in existence. Of special concern to lawmakers had been the "Endangered Species Act," and the "Nevada Environmental Policy Act of 1969" (NEPA) which protects the contractual rights of water-right holders.

Department of Interior Chooses Not to Comply

Contrary to the mandate of Public Law 101-618, the Department of Interior’s "Office of Program Analysis" in short order caused (or allowed) at least eight separate water-right purchases from the Newlands Project to commence.

Authority for these eight actions came from many different offices, all but one of which (the U.S. Army Corps of Engineers) are integral parts of the Department of Interior. Offices assigned responsibility for "Environmental Assessments" and/or "Environmental Impact Statements" relating to the Newlands Project included the USFWS in Fallon, the USFWS in Reno, the USFWS in Portland, Oregon, the Carson City office of the Bureau of Reclamation and DOE’s Office of Program Analysis in Washington, D.C.

Moreover, it’s doubtful that the cost to American taxpayers of this assault on rural communities and private property will ever be known. By avoiding the use of just one Environmental Impact Statement, the Department of the Interior has all but guaranteed the "bottom line" total cost of Public Law 101-618 will never be known. Not only the various parts of the project but also the cost of each will be forever buried in a half dozen or more relatively disassociated repositories.

Instead, each and every one of these actions, coming from a myriad of different offices, called for (1) a "scoping session" (complete with public comment), (2) a "draft release" (with yet more public comment) and (3) a final "Environmental Assessment" and "Environmental Impact Statement" (EA/EIS).

When suddenly arising in an average American working, middle-class community this requirement for nearly two dozen separate "actions" involving multiple offices invariably overwhelms the community.

Understandably, there exists today within the Newlands Project a sense of having been circled by the DOI which then separates its prey from the rest of the "in" crowd before pouncing on it. One bureaucratic ringleader after another surges forward in feigned assault until the prey stands exposed and exhausted; and then all rush in for the take-down and final bloodletting.

Farmers be on Notice: There is No Help in Sight

An appropriate "defense agency" to try to protect those under attack might have been the Bureau of Reclamation which created the 133 reclamation projects throughout 17 western states in the first place, but the Bureau of Reclamation is an integral part of the Department of the Interior, simply put another of DOI’s subordinated captives.

Moreover, under the Clinton Administration the Bureau of Reclamation has had its own mission redefined to make it primarily an environmental protection bureau:

"Managing, developing and protecting water resources in an environmentally and economically sound manner is in the interest of the American public."

With the DOI utilizing staff and other resources of a half dozen or more offices, to say nothing of an annual budget many times greater than the annual retail value of the entire Newlands Project, the public — in this case Newlands Project farmers — have no effective way to combat that bureaucratic bombardment.

Attempting to simply hold one’s own, in many cases with little or no professional staff, is not unlike the boy attempting to hold back the tide by placing his finger in the dike. The Newlands Water Protective Association (NWPA) has only one paid staffer; the Lahontan Valley Environmental Alliance (LVEA) also has only one staffer; and the Truckee-Carson Irrigation District (TCID) is only very modestly staffed. What this means is that when the alarm bells ring, volunteers must step forward to meet the challenge.

Moreover, it will be all but impossible to track the aggregate cost involved in trying to implement this Public Law 101-618. Not only is the assault to be waged piecemeal, but the accounting practices and overall accountability will be a piecemeal business too, to be forever buried and hidden in a half dozen or more disassociated repositories. It will require the cost of only one Environmental Impact Statement to be missing to assure the DOI that the total cost of implementing the law will never be known.

"Please, Mr. Secretary, You're Eliminating 75% of My Liveihood!"

All procured water rights under Public Law 101-618 will have come from a single source - the Newlands Project and its aggregation of small farm water-right owners. Because all the water will come from a single source, reasonable minds would expect that the parent agency, the Department of Interior, would see to it not only that it was the one agency

responsible for implementation of the law, but that it would require one Environmental Impact Statement regarding this one project.

Indeed, if all the enumerated government offices achieve their goals, all the EAs and EISs together will succeed in removing over 75 percent of the Newlands Project’s privately owned water rights for some other off-project use. This fact alone establishes the basis for developing just one Environmental Impact Statement.

Yet representatives from the DOI are adamant about moving ahead in the piecemeal fashion outlined in this article, which clearly flies in the face of congressionally mandated National Environmental Policy Act requirements.

For example Section 1502.4(b) of NEPA calls for "broad federal actions," specifically the preparation of Environmental Impact Statements "on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decision-making."

Section 1502.4(b) (1) goes one step further to aggregate actions occurring in the "same general location, such as a body of water, region or metropolitan area."

Elsewhere the National Environmental Policy Act calls for using "program, policy or plan environmental impact statements and tiering from statements of broad scope to those of narrower scope to eliminate repetitive discussions of the same issues."

An Exasperated County and City are Forced to Sue the Feds

After numerous written and verbal requests from a variety of agencies and concerned individuals the Department of Interior steadfastly continued to refuse to take the congressional requirements of NEPA seriously. In exasperation, Churchill County commissioners filed a lawsuit against the federal government in November, 1995, and shortly thereafter the City of Fallon joined in the suit. The filing contained two requests: (1)halt all actions associated with "Title II, Truckee-Carson-Pyramid Lake Water Settlement," and (2) develop a "programmatic environmental impact statement."

Incredibly, Sierra Pacific Power Company - a publicly traded, regulated utility licensed in the State of Nevada whose service territory includes the Newlands Project - petitioned the Court to intervene, not on behalf of Churchill County and the City of Fallon, but on behalf of the federal government!

With incredible irony, Sierra Pacific’s petition was disallowed by the Federal District Court on September 13, 1996 - Friday the 13th!

Meanwhile, the DOI invested time, money and other resources developing an environmental impact statement on the Truckee River Operating Agreement, but just before its intended release date the DOI renamed it, "Report to the Negotiators," and released it in January, 1996. If an Environmental Impact Statement undertaken by the federal government doesn’t say what its bureaucratic masters want it to say, simply renames it a "Report to the Negotiators."

That entire EIS is now being re-done at some unspecified cost. One of the problems with the first EIS is believed to have been that the computer models could not be made to match the desired (and competing) outcomes. One participant close to the inner workings of all this (and who chooses understandably to remain anonymous), has said the first EIS included "illegal alternatives" - whatever that may mean.

We’re from Washington and We Want to Show You “Cow Counties” that We’re Your Friends

In an apparent co-opting gesture, DOI held "scoping hearings" on a "Cumulative EIS," which will collectively consider four different EA/EIS categories, two of which had not previously been identified:

a wetlands management plan (which should have been included with the wetlands EIS but wasn’t);

a modified "Operating Criteria and Procedures" (OCAP) for the Newlands Project;

water-right purchases for the endangered cui-ui fish; and

a Water Quality Agreement which is intended to avoid impending court action by the Pyramid Lake Indian Tribe against the DOI, EPA, Reno, Sparks and Washoe County.

In the course of all this the DOI actually followed one of the recommendations in the National Environmental Policy Act by inviting the participation of so-called "cooperators," thus allowing municipalities and other agencies (such as LVEA,NWPA and the TCID) to play active roles in the development of a cumulative environmental impact statement.

In the first series of cumulative EIS meetings, the DOI invited these cooperators to submit their own versions of a water quality plan and an OCAP. The DOI had initially been opposed to any alternatives to the Water Quality Agreement, for the same reason that all of its meetings had been held in secret: "It is a settlement in lieu of litigation and therefore doesn’t have to meet the same requirements."

The Newlands Project argued successfully that it had presented a viable alternative through the "conjunctive use" of Project water (as it passes through the Truckee Meadows). The Water Quality Agreement action will now have two alternatives, although the DOI regards the water-purchase requirements for the endangered cui-ui fish as being strictly a U.S. Fish and Wildlife matter (involving another DOI subsidiary, of course).

At a more recent session DOI announced that, notwithstanding various workable alternatives submitted, DOI would develop its own. More stifling, however, is the fact that DOI’s will be the proposed alternative in all instances.

What it comes down to is that a certain government bureaucracy will be providing the solutions for all four EA/EIS categories, as follows:

Wetlands Management plan - DOI

OCAP - DOI

Cui-ui water purchases - DOI

Water Quality Agreements - DOI

The best anyone can hope for is relief following the comment period, after the draft has been published but before final publication. Substantive change at that late stage of the proceedings is highly unlikely, however, unless Churchill County and the City of Fallon prevail, and the courts intervene.u

Russ Armstrong is the Special Projects manager for the Truckee-Carson Irrigation District . Armstrong holds an MBA from Pepperdine University, and MPA from UNR and is currently working on his Ph.D.

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