It's been a long struggle for the Virgin Valley Water District (VVWD) Board of Directors but they reached a conclusion on the Virgin River Habitat and Conservation Recovery Program (VRHCRP) fee at its Tuesday, Nov. 15 meeting. On a 3-2 vote, the Board approved adding a new $166 connection fee that will be devoted to mitigating the effects new development has on the environment in the Virgin River habitat.
In a marathon meeting that included officials from the U.S. Fish and Wildlife Service (FWS), the Clark County Desert Conservation Program, the Nevada Department of Wildlife, and Robcyn, LLC, the District's consultant for resource strategies, the discussion followed the same pattern as previous meetings.
The requirement for the District to charge some kind of conservation fee began in earnest in 2008 when then-VVWD General Manager Mike Winters signed a Memorandum of Agreement with the City of Mesquite, the Southern Nevada Water Authority, and federal and state conservation agencies saying the District would participate in developing and implementing the VRHCRP. The water connection fee originally was set at $550 although the Board of Directors never formally approved it and never collected the money from new connections.
Nevada Revised Statutes cap conservation fees at $550 per acre in counties whose population is 400,000 or more.
In August the Board began pursuing the fee approval, reducing the amount first to $275, then down to $200. The proposed fees for new business connections range upwards to $31,000 for the largest industrial user.
Kenyon Leavitt, Board representative from Bunkerville, and Ted Miller, elected representative from Mesquite, long argued that the fee shouldn't be approved and imposed until the VRHCRP plan was finalized and put in place.
Plan participants have been working on creating the plan since 2004. According to John Willis, City of Mesquite staff member who is helping write the plan, a draft should be available for public review in early 2012.
The City of Mesquite began charging a $500 'interim' fee in November, 2007, to help fund mitigation efforts.
The FWS had threatened the Water District in the past that it would not issue a permit for any new development unless the Board approved a new fee.
Miller stated that his main concern with past actions by the FWS were the threats to stop further development in the local area that includes Bunkerville and Mesquite. "You tried to push us against the wall. We're going to do this or else. We're willing to go forward but you need to come up with a plan and show us what you're going to do. We may not fund it the way you're telling us to fund it."
"The threat came a couple years ago," Leavitt reminded the federal officials. "Fish and Wildlife came here and said that if we didn’t get a permit, we would never drill another well in this valley. To me that's a threat. They call that extortion in the criminal world."
Mike Ford, Robcyn, LLC, replied at Tuesday's meeting, "That was not stated very artfully."
Ted Koch, State Supervisor from the FWS, followed that up with, "It's not a threat we would issue. It's not something we would support." He also mentioned that the District faced risks from two sources, the FWS preventing further development and from third parties suing to stop new development. "If the Water District doesn't have a permit, then it is the litigation target. If you do have a permit, then the [Fish and Wildlife] Service is the litigation target."
Ford went on to say that the fee was an insurance policy of sorts against potential lawsuits filed against the District. "If a third party challenges you or the Service, the first thing they're going to do is to stop anything that's going on. That was the genesis of Clark County with the tortoise in the early 1990s. There was a lawsuit to stop development. Everyone scurried around to prevent that."
Marcie Henson, Clark County Desert Conservation Program
Manager, explained that while the City of Mesquite was a permittee and participant in the County plan, the Water District was not. She also explained that the County's plan did not cover activities in and around the Virgin River.
Clark County charges $550 per gross acre that's graded for new development and deposits the money into the County fund. "The projected fund balance is $47 million unallocated liquid cash as of 2013," Henson advised the group. "We cover three of the bird species that the Virgin River plan is designed to cover, but fish are not included in our plan."
According to Henson, the County fund has received just over $1.7 million for the Clark County Multiple Species Habitat Conservation Plan, better known as the 'tortoise' fund, from new development in the City of Mesquite since 2001.
Bo Bingham, VVWD legal counsel, queried Henson on whether the District could join in on the County plan as a sub-permittee to the City of Mesquite and gain some coverage for the bird species.
Henson replied that she would have to consult with her legal counsel on that question.
Leavitt asked the government officials about the process for determining the proper amount of the fee. Rock had previously supplied the Board with a summary of comments made by Jeri Krueger, Biologist for the FWS, in which Rock quoted her as saying, "How much you can afford and what you are willing to pay is how the fee is set."
"How much I can afford and how much you determine I can afford are two different things," Leavitt said at the meeting. "And, what I'm willing to pay is different."
Leavitt added that when the Board had discussed reducing the fee in past meetings, FWS officials objected to lowering it too much.
Koch replied that, "One of the things the service has to assure is there is adequate money to implement the plan.
"But there is no plan," Leavitt remarked. "You’re saying we have to collect the fee but no one knows how much we’re going to collect."
Koch answered that it was a significant issue that the Board didn't know what is in the plan. "To me, that's a significant issue. You're supposed to know what your plan is. That needs to be fixed. The permittee determines the fee. We're at $200. Maybe it's more, maybe it's less."
Ford explained that even though mitigation actions were listed in the plan, it didn't mean that the participants had to take on all of them. "The Clark County plan has 605 actions listed. This year, they'll only take on 10 of them."
"If you have this $200 fee but you don't issue a single connection permit, then you don't have any funds in the plan. You don't have any obligation," Ford said. "If development is not occurring, if funds are not coming in, then nothing happens."
"The estimated costs of the plan over 10 years is $16.2 million. That's open for discussion," Ford added.
"The financial contribution, whatever it is, is proportional to the development. Once we submit a plan, we get the incidental take permit. At that point the District is covered for its activities even if it doesn't succeed in carrying out any of the actions included in the plan," Bingham summarized.
Koch stated that the FWS would not have the permit ready to issue to the District until late 2012.
Ultimately, Sandra Ramaker, elected representative to the Board of Directors made a motion to pass the $200 fee for all new water connections. Mark McEwen, Bunkerville representative, requested the fee amount be reduced to $166, "to make it proportional to what the City of Mesquite is charging." Ramaker agreed.
Karl Gustaveson, Board President and Mesquite City Council representative, joined Ramaker and McEwen in approving the fee.
In a separate motion, the Board voted 4-1 to charge the fee only after the VRHCRP was finalized and approved, currently projected for late 2012. Miller was the lone nay vote.