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Nevada town in canal fight seeks another chance in US court

February 16, 2022 GMT
FILE - Water is shown in an irrigation canal in Fernley, Nev., near Reno, March 18, 2021. Fernley, a rural Nevada town wants another chance to try to prove the U.S. government's plans to repair an aging irrigation canal are illegal because they'd eliminate leaking water residents have used for more than a century to fill their own domestic wells. U.S. District Judge Miranda Du dismissed Fernley's lawsuit in Dec. 2021. She said the harms it claimed under the National Environmental Policy Act had no legal basis because their interests in the water are economic, not environmental. (AP Photo/Scott Sonner, File)
FILE - Water is shown in an irrigation canal in Fernley, Nev., near Reno, March 18, 2021. Fernley, a rural Nevada town wants another chance to try to prove the U.S. government's plans to repair an aging irrigation canal are illegal because they'd eliminate leaking water residents have used for more than a century to fill their own domestic wells. U.S. District Judge Miranda Du dismissed Fernley's lawsuit in Dec. 2021. She said the harms it claimed under the National Environmental Policy Act had no legal basis because their interests in the water are economic, not environmental. (AP Photo/Scott Sonner, File)
FILE - Water is shown in an irrigation canal in Fernley, Nev., near Reno, March 18, 2021. Fernley, a rural Nevada town wants another chance to try to prove the U.S. government's plans to repair an aging irrigation canal are illegal because they'd eliminate leaking water residents have used for more than a century to fill their own domestic wells. U.S. District Judge Miranda Du dismissed Fernley's lawsuit in Dec. 2021. She said the harms it claimed under the National Environmental Policy Act had no legal basis because their interests in the water are economic, not environmental. (AP Photo/Scott Sonner, File)
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FILE - Water is shown in an irrigation canal in Fernley, Nev., near Reno, March 18, 2021. Fernley, a rural Nevada town wants another chance to try to prove the U.S. government's plans to repair an aging irrigation canal are illegal because they'd eliminate leaking water residents have used for more than a century to fill their own domestic wells. U.S. District Judge Miranda Du dismissed Fernley's lawsuit in Dec. 2021. She said the harms it claimed under the National Environmental Policy Act had no legal basis because their interests in the water are economic, not environmental. (AP Photo/Scott Sonner, File)
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FILE - Water is shown in an irrigation canal in Fernley, Nev., near Reno, March 18, 2021. Fernley, a rural Nevada town wants another chance to try to prove the U.S. government's plans to repair an aging irrigation canal are illegal because they'd eliminate leaking water residents have used for more than a century to fill their own domestic wells. U.S. District Judge Miranda Du dismissed Fernley's lawsuit in Dec. 2021. She said the harms it claimed under the National Environmental Policy Act had no legal basis because their interests in the water are economic, not environmental. (AP Photo/Scott Sonner, File)

RENO, Nev. (AP) — A rural Nevada town wants another chance to try to prove the U.S. government’s plans to repair an aging irrigation canal are illegal because they would eliminate leaking water residents have used for more than a century to fill their own domestic wells.

U.S. District Judge Miranda Du dismissed Fernley’s lawsuit in December. She said the harms it claimed under the National Environmental Policy Act had no legal basis because their interests in the water are economic, not environmental.

Fernley’s lawyers say they’re asking her for permission to amend the complaint so they can better explain why the harms are both.

The government’s lawyers say the town is manufacturing false arguments in an attempt to re-litigate claims the judge already denied.

They cite part of her Dec. 13 ruling that concluded it would be futile to file an amended complaint because it wouldn’t pass legal muster even if it could prove environmental harm from plans to renovate the earthen canal that burst in 2008 and flooded nearly 600 homes.

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Du has set a Feb. 22 deadline for additional filings before she decides whether to reopen the case.

Fernley’s motion filed last month argues that refusing to consider an amended complaint would be a “social injustice” to the high-desert town 30 miles (48 kilometers) east of Reno that’s been “utterly reliant” on water seepage through the canal’s dirt floor into the aquifer since it was built in 1905.

“Simply because Fernley is an entity that relies on groundwater pumping does not, by itself, render it unable to plausibly allege harm to the environment,” they said.

The Truckee Canal was built as 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.

The town of Fernley, where annual rainfall averages only 5 inches (12.7 centimeters), has been dependent on it ever since.

The $148 million renovation project the bureau approved in December 2020 would line parts of the canal with concrete to make it safer. Reducing leakage also would make delivery of taxpayer-owned water more efficient, the bureau said.

Fernley said the changes will cause the water table to drop dramatically, imperiling its municipal water supply and eventually causing 71% of domestic wells to fail.

It says the government failed to fully consider — as required under NEPA — the environmental impacts of reduced groundwater levels or alternatives that might have minimized those impacts.

It claims it has a right to the water partly because it’s been available to local residents since 1905 and the government never objected to its use of it.

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The town also argues the bureau repeatedly identified the sole purpose of the project was “to improve public safety by reducing the risk of canal breach.” It never mentioned any other objectives, such as improving efficiency of water deliveries.

The government counters that any lowering of the aquifer is the result of domestic pumping, not Reclamation’s decision to line the canal.

The water users — “who will be the ones causing any environmental harm — cannot possibly make out a NEPA claim,” government’s lawyers wrote Feb. 7.

The Pyramid Lake Paiute Tribe, which has rights to some of the water and has sided with the U.S., says Fernley’s interests “have always been economic.”

“Fernley’s newly minted professed environmental interests clash with `who they are,’ namely: groundwater users ... concerned about having less groundwater available to use for domestic and commercial purposes,” the tribe said in a Feb. 9 filing.

New concerns Fernley raised in a draft of an amended complaint attached to its Jan. 7 motion include the failure to identify conflicts with its land-use, parks, utility master plans and future development.

The bureau artificially changed the course of the Truckee River when it constructed the canal, which was intended to be permanent and has provided recharge to the Fernley ground water aquifer continually for more than 115 years, the town said.

Fernley recently built a $40 million state-of-the-art water treatment facility in reliance on the continued availability of the seepage, it said.

“BOR acquiesced in Fernley’s use of the seepage water and never challenged or contested such use,” it said. “It is water that was abandoned by BOR.”