Norton

Opinion by Judge PAEZ; Concurring Opinion by Judge SNEED

For more than a century, myriad interests, from individuals to power companies to Indian tribes, from federal to state to local governments, have disputed the rights to water from the Truckee and Carson Rivers. 1 Through its enactment of Public Law 101-618, 104 Stat. 3289 (1990), Congress addressed years of legal challenges regarding the over-committed water resources of this region. This action involves Title II of Public Law 101-618— the Truckee-Carson Pyramid Lake Water Rights Settlement Act (“Settlement Act”). 2 Title II includes a variety of provisions intended to settle disputes over the rights to water from the Truckee and Carson Rivers and to address the environmental effects of overuse. Many of these provisions direct actions involving water allocation and usage in the region.

Section 206(a) of the Settlement Act requires the Secretary of the Interior to acquire sufficient water and water rights from willing sellers to sustain approximately 25,000 acres (on a long-term average) of primary wetland habitat located in the Lahontan Valley of west-central Nevada. The Fish and Wildlife Service (“FWS” or “Service”)…

Concurring:

I concur in the result reached by Judges Paez and Graber. I write separately to emphasize the need for a comprehensive resolution of California and Nevada interests in the Truckee and Carson rivers. Such a resolution is the only action that can secure a degree of stability. Repetitive and contentious disagreements over the use of the limited water supply to satisfy various rights, wants, and demands are sure to continue. A comprehensive cumulative impact study, while not legally required in this case, is nonetheless essential given the scarce water supply. One hopes that the Truckee River Operating Agreement, currently under negotiation, will solve the comprehensive allocation of the Truckee River waters.

Despite the well-reasoned majority opinion, the consequence is that a dissatisfaction with the allocation of the water between parties is likely to follow. This may be a situation in which we simply cannot muster the political will to resolve the various claims. Congress noted all too late that “[i]n retrospect, it is clear that the limited benefits of the Truckee River were promised by the United States to too many interests.” S.Rep. No. 101-155 (1990), at 13.

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