By Daniel Rothberg, The Nevada Independent

The leader of Las Vegas’s powerful water authority said the time has come for the Legislature to make changes to Nevada water law, an idea that will likely get pushback from many water users, during a 50-minute interview on The Nevada Independent’s podcast, IndyMatters.

In the wide-ranging interview, John Entsminger, general manager of the Southern Nevada Water Authority, addressed concerns over a Colorado River shortage and the agency’s continued push for a pipeline project to pump large amounts of groundwater from Eastern Nevada to Las Vegas.

Entsminger, humorously describing himself as “a recovering water lawyer,” took over the authority in 2014 from Pat Mulroy, the agency’s outspoken founder who was an iconic figure in shaping modern Colorado River politics but was also criticized in rural counties for pursuing the controversial 250-mile pipeline.

The pipeline project, proposed in 1989, has been mired in litigation. In that way, it is not too different from other projects, plans and proposals related to water. In Pahrump, domestic well owners are suing the state. In Coyote Springs outside of Las Vegas, developers are suing the state. In Diamond Valley near Eureka, a ranch with historical water rights is suing the state. In Lovelock, farmers pounded the drought, sued the state, prompting a court to issue a pivotal decision in 2015 for the Humboldt River, a critical waterway for most of Northern Nevada.

Changes to Nevada water law

Given his background in water law, The Nevada Independent asked Entsminger what he made of all the litigation, which has often allowed courts to issue key decisions on Nevada water law.

“I think what it means is we need some changes to Nevada water law,” he said. “Now I just sent a shiver up several million spines throughout the state. But Nevada water law is based on 1880s mining law,” a system that relies on a doctrine known in the West as “prior appropriation.”

Under prior appropriation, water users with the first historical claim to water — “senior rights” — are the last to see their water cut off during a drought. That can create divisions between rural and urban users, who tend to have junior rights. To avoid speculation, Western water law also includes a provision known as “use it or lose it.” Water users must put their entire allocation to use or risk losing it. The downside, some argue, is the rule disincentivizes conservation.

Entsminger emphasized that he was not advocating for “wholesale changes.” He suggested changes like tweaking “use it or lose it” so water users could conserve and still retain their water rights. He also suggested changes to the law that ensured all water in the state was measured.

“I’m not saying it has to happen at this legislative session or all at once,” Entsminger said. “But incrementally over time, Nevada’s water code needs to be modernized to clarify some of the ambiguities that have led to so much litigation around water in the state.”

In reality, he noted that the water authority could never be the one to propose these changes. Largely because of the pipeline project and its history at the legislature, the water authority is often viewed skeptically — at least in public — by lawmakers outside of Clark County.

The 250-mile pipeline project

During the interview, Entsminger pushed for more dialogue around water issues across the state, including around the pipeline, which has divided North and South. In 1989, the water authority, faced with a growing population and a limited Colorado River supply, started placing claims on billions of gallons of unappropriated underground water in Eastern Nevada.

The plan was to pump that water and pipe it about 250-miles to Las Vegas if issues arose on the over-stressed Colorado River, where Las Vegas gets about 90 percent of its supply. Thirty years later, those claims for water, the subject of a ruling this month, are still being litigated. Even though it has never been built, the pipeline has engendered animosity toward Las Vegas, with ranchers, tribes and environmentalists in rural counties accusing the city of a “water grab.”

The Nevada Independent asked Entsminger if he was concerned about how blowback from the project has played into state politics, potentially pitting most of the state against Las Vegas.

“I am,” he said. “I wish that the water business was an ‘all the people happy all the time’ kind of business. But it’s not. And the simple fact of the matter is under the Nevada Constitution, all the water in the state of Nevada belongs to all of the people in the state of Nevada. Clark County as a whole uses less than five percent of all the water available within the state of Nevada. And if the day comes when 70 percent of the state’s population needs to take our water usage from five percent to six percent, I think that’s a valid public policy discussion to be had.”

Entsminger said that discussion has yet to happen in a serious way.

“I think a small group of people that are relatively antagonistic to each other have had that discussion for a long time,” he said. “I don’t think it’s been a broader public dialogue.”

When asked if there is room for compromise between the water authority and the coalition opposing the pipeline, locked in a legal fight for decades, Entsminger said: “I hope so.”

He said water users within the state should look to the contemporary history of the Colorado River as an example of where once-feuding water users have charted a path, albeit an uneasy one at times, to self-regulate and avoid legal fights that can take many decades to resolve.

“Within Nevada, we have to evolve to a place where we can have that conversation to be able to say this distinction between agriculture and urban [water] is a false distinction,” Entsminger said. “Our residents buy the agricultural products. So we need to somehow come together as a state and recognize what is good for Las Vegas isn’t bad for everyone else.”

Critics of the proposed pipeline often compare it to the Los Angeles aqueduct, the infamous project pursued by William Mulholland that left the Owens Valley in Eastern California dry and dust-ridden. Entsminger rejected the comparison. The aqueduct, he noted, predated modern environmental laws and, with a mitigation plan, the water authority is focused on “ensuring nothing like Owens Valley could be replicated within the boundaries of the state of Nevada.”

But he acknowledged that the history of such projects has loomed over the authority’s plans.

“If you look through 19th Century and 20th Century water politics — water development projects — it was often winners and losers, a zero-sum game,” he said. “I don’t think that’s the way things are operating. Everywhere else except on the groundwater project — every other project I’ve worked on in my almost 20-year career working in water — is about compromise. It’s about working together and forging partnerships and finding new ways to do things. But in Nevada we do seem to still sort of be stuck in this “whiskey is for drinkin’ and water is for fightin’” [mentality].

Cuts on the Colorado River

When the pipeline was first proposed in 1989, the water authority said it could be necessary by the next century. Yet the pipeline has not been necessary, largely due to conservation efforts. Even as Las Vegas’s population has grown, it has not needed to use all of the Colorado River water it is entitled to under the guidelines that govern the use of the Southwest’s main artery. Since 2002, per capita water use across Southern Nevada has decreased by about 40 percent.

The water authority continues to pursue the pipeline, but Entsminger said it’s unlikely Las Vegas will need to supplement its river supply, even with growth and drought, for two decades. When asked where new resources will come from, Entsminger said the best option is conservation.

“First second and third options are additional conservation,” he said, arguing that the focus should be on outdoor use. “We have so much non-functional ornamental turf in this valley that can be removed without any material effect on the quality of life of the people of our community.”

He said 650,000 people could move into the Las Vegas metro area — and with turf removal — the region could be using less water. The focus on turf is a priority, Entsminger said, because Las Vegas reclaims most of its indoor water use. Where outdoor water is lost, indoor water is treated and returned to Lake Mead, the Colorado River reservoir behind the Hoover Dam.

Still, what happens on the Colorado River affects Southern Nevada. The region is still reliant on a river system that is unsustainable. The Colorado River is functionally Las Vegas’s only supply.

Over nearly two decades of drought, Lake Mead fell to its lowest level since the reservoir was filled. The historical overuse of the Colorado River is catching up to the seven states that rely on it and there is a broad recognition that cuts will have to be made. Federal water managers said this month that they will likely begin imposing some cuts for Arizona and Nevada in 2020.

Entsminger said Nevada, which is not using its full allotment of Colorado River water because of conservation, is prepared to take those cuts with no impacts to water coming out of the tap.

But he said the long-term health of the river is critical, stressing the importance of a drought plan that Arizona, Nevada and California — the state’s that tap into Lake Mead — are working on.

“I think [a shortage is] very much a concern for the general public,” Entsminger said of the river, which supports about 40 million people in the Southwest. “It’s often referred to as the hardest working river in America and it is. Any threat to the Colorado River really crosses sectors — urban, agriculture, recreation — and has to be dealt with as a national issue.”