Pardon Urged in Water Case

Mesquite NV., Nevada Governor Brian Sandoval should pardon former Virgin Valley Water Board (VVWB) Hydrologist Mike Johnson and his business partner Robert Coache who were selectively prosecuted in a water deal sanctioned by members of the Virgin Valley Water Board (VVWB).

The January 2017 felony convictions of Johnson and Coache resulted from a March 18, 2008, water deal involving Clark County (NV) rancher John Lonetti, the Southern Nevada Water Authority (SNWA) and the Virgin Valley Water District (VVWD) of Mesquite, NV. In the transaction, Lonetti received $3.1 million dollars from the SNWA for two river water permits. Johnson received a consulting fee of $1.3 million.

The deal benefited the water district community by increasing the volume of water available.  The water board traded 896 Acre Feet Annually (AFA) (priority date 1929) of water for 1,200 AFA (priority date 1990) from the SNWA., A 5,000 AFA cap was removed from the surface water, and the district acquired all senior groundwater held by the SNWA.

Former Board member and former City Councilman Kraig Hafen  told the board: The agreement was “probably a good deal.” Former Board Member, Ted Miller, who voted for the deal, said that the actual monetary value of the water being exchanged was not important to the VVWD Board. Rather, he said the VVWD “was getting more water from SNWA that it could lease to its customers.” John Paul, Board President at the time, stated that “his primary purpose was to own the water and not a return on money from leasing. “After the deal, Miller argued that given the amount of money Johnson earned in the transaction the board should consider cutting his contract.

Johnson’s legal jeopardy, and by extension Coache’s,  did not begin with the 2008  deal. It was April 1999 when former district manager Mike Winters and board attorney George Benesch approached Johnson, then employed by the SNWA, with a deal.  The board needed Johnson’s expertise in hydrology and geology to build a sustainable infrastructure to serve the growing communities of Mesquite and Bunkerville.

Winters and Benesch on behalf of a board asked Johnson to leave his $90,000 per year job with the SNWA. He was offered $65,000 per year and the ability to contract on water issues “off-the-clock” to make up the salary difference.  The board also paid into his state retirement account. The VVWD is a subdivision of the state thus Johnson technically became a state employee. As a state employee, Johnson was prohibited from any outside work in hydrology. Further, such work rendered Johnson and all associated with such outside work liable for prosecution for any number of statutory reasons. That contract continued to be approved by various VVWB members until his resignation on August 17, 2010.

Benesch testified for hours at the Johnson-Coach trial.  He said among other things that:

“Some Board Members had a bias against Michael Johnson,”

“In my opinion, about 2008 the VVWD Board became more and more dysfunctional and were “all over the place.”

“New Board Members came in with a specific agenda,”                                                                                                                                                 

“The VVWD Board became the most dysfunctional Board he has ever dealt with in his decades of working with dozens of such organizations,” and                                                                                       

“In a general sense, [referring to the prosecution] they were “paying somebody back.”

Several people were involved in the 2008 deal, but only Johnson and Coache were selectively prosecuted. Clark County Deputy Prosecuting Attorney Marc DiGiacomo bragged about the selective prosecution of Johnson and Coache.  He told board member and Mesquite Local News (MLN) reporter, Barbara Ellestad that he relied on Water Board attorney Bo Bingham in creating the case against Johnson and Coache. DiGiacomo claimed that: “we likely would not have heard about this crime.”

DiGiacomo told Ellestad that “his (Bingham’s) lawyers know all of the discovery in the case. Anytime we needed to know something he (Bingham) and his lawyers were fantastic about helping us.”

DiGiacomo did not take the time to fully research the case. He told Ellestad,  “Our office just didn’t have the time to read hundreds of thousands of pages of documents.”

Allowing the water board attorney to narrow the case to Johnson and Coache is a selective prosecution at its worse and DiGiacomo erred in not recognizing that. Selective prosecution is not a defense. It is an assertion that the prosecutor (essentially Bingham) brought the charges for reasons forbidden by the Constitution. That document expects that everyone must be treated equally under the law without privilege, discrimination, or bias.

At sentencing, District Judge Richard Scotti awarded the VVWD the $1.3 million received by Johnson in the case. However, when one adds the legal fees paid to Bingham and his attorneys it is likely to come out something close to a wash.

Water: exist or not?

Rachel Dahl, CEO of the taxpayer funded Mesquite, NV Regional Business Inc. (MRBI) is touting water access as an incentive to attract businesses to Mesquite.

Lucas M. Thomas, in a February 3, article in the Desert Valley Times (DVT), quoted Dahl as saying that water within the Virgin Valley “could provide an incentive for companies looking to move that might not have access to water in other areas of Southern Nevada.  Her comments came during a meeting with the Las Vegas Global Economic Alliance where Thomas reports Dahl also said that  “she spoke to two separate people who expressed interest in Mesquite for that very reason.

No one knows how much water is available in the Basin that serves the Virgin River Valley. Nor does anyone know how decades-long droughts impacted the entire Southern Colorado River Basin that feeds that water sources. Nor do water board officials understand how water demands from Las Vegas and St. George drain the local aquifer as do local earthquakes and potential fracking projects advanced during the Trump administration.

Dahl is simply repeating misleading statements by Water District representatives and others.

In April 2015, Kevin Brown, manager of the Virgin Valley Water District (VVWD) said that  “Mesquite and Bunkerville have sufficient water for decades.” However, on June 19, 2015, Jason King, State Water Engineer, told the DVT, “I’m not sure how much water is in the aquifer now; I couldn’t even estimate how much is there.”

On September 8, 2015, Barbara Ellestad, in her role as editor of the Mesquite Local Newsellestad-not-happy (MLN)  told Lieutenant Governor Mark Hutchison,“we don’t have an issue with water.”

Let’s go back a few years. In December 2011, that Board, charged then VVWD Manager, Ken Rock with performing a “Hydrologic Evaluation of the Lower Virgin River Basin (221, and 222), Clark and Lincoln Counties, Nevada, and Parts of Washington County Utah and Mohave County, Arizona.”  Rock acquired a proposal by the United States Geological Survey (USGS) to study the issue. Rock was eventually fired, and the USGS project rejected on a 3-2 vote of the board. Former board members Sandra Ramaker and Karl Gustaveson dissenting.

During a February 2014 meeting between the Water Board and the City Council, Ellestad argued that because the study involved Utah and  Arizona, the VVWD could do nothing about the results. Therefore, she would not support spending $500,000 for a study. That is nonsense. Scientific studies drive models that are helpful for all decision makers and do not discriminate between states.  Second, the price tag ignores potential federal grants and other economic sources.

rapson-on-studiesAt the same meeting, Councilman George Rapson made the dubious comment that if the State Engineer granted permits sufficient water was available. Permits are not equal to water. Basins can be, and often are over permitted. Remember what King has said, “I’m not sure how much water is in the aquifer now; I couldn’t even estimate how much is there.”

In simple terms, those alleging ample water available are assuming they know more than the state water engineer while dismissing environmental facts and possibilities. Further, they apparently assume that the area will grow slowly, and tens of millions of dollars will be available to meet future demand.

A Virgin Valley Water Board briefing, not widely distributed reports that “based on groundwater rights, only 3,076 Equivalent Development Unites (EDU’s) remain for future “will serve.”  One EDU is equal to one family home. Will serve is a dubious commitment to provide water when required.

Once contractors reach 3,076 homes or some combination of business and homes, a briefer said: “surface water will have to be developed for potable water use, treatment plans build  (at the cost of about $60 million dollars), and irrigation leases for golf courses pulled back.”

Keep in mind that it is not the VVWB that makes decisions about water allocation.  It is julian-videoactually, the City Council. On Tuesday, October 20, 2015, Virgin Valley Water Board  (VVWB), President Nephi Julien told participants that the Mesquite City Council, not the Water Board, controls water allocations.

According to Julien, “it is not our right to determine that someone gets water before somebody else.  They (The Council) are the ones who control that. ” The only limits are the number of permits available.

ballweg-at-press-conferenceWhen Candidate, now Councilman  David Ballweg ran for office, he said: “The first thing I want the public to understand is that the city council has no impact or say in district water policy.”

There is a lot more to the water story than space allows. It is past time for the people to come together and develop an action plan to overcome local official misrepresentations about water availability.