Nevada Water Law
Nicknamed the "Sagebrush State", Nevada is the driest state in the United States, averaging only nine and a half inches of rain a year. This average includes the Las Vegas Valley which only receives three to four inches a year, as well as the mountains in the northern and western portions of the state which average over 40 inches of rain and 300 inches of snow yearly. The primary use for water in Nevada is for irrigation and livestock, which accounted for 83.2% of water used in 1990. The next largest user of water is urban use, especially in the city of Las Vegas, whose continued rapid growth (more than 29% from 2000 to 2006) may strain already limited water supplies. Nevada expects withdrawals to increase by 15% by 2020, with public supply use experiencing the largest increase.
Historical and Constitutional Framework
The beginnings of prior appropriation doctrine in Nevada occurred in 1866, when the Nevada Supreme Court recognized that a water right could be gained either through appropriative or riparian means in Lobdell v. Simpson. It was not until 1889 that the Nevada Supreme Court established appropriation as the only avenue for gaining a water right, stating, "Our conclusion is that the common-law doctrine of riparian rights is unsuited to the condition of our state…" Thus, prior appropriation became firmly entrenched in Nevada water rights.
Although Nevada achieved statehood in 1864, there was no statutory water law until 1905 when the State Engineer (a position created in 1903) was vested with jurisdiction over the appropriation of water rights. In 1913, the comprehensive water code was passed including a statement that, "[T]he water of all sources of water supply within the boundaries of the state whether above or beneath the surface of the ground, belongs to the public." Currently, the Nevada statutes on water are found in NEV. REV. STAT. (NRS) Title 48. Appropriative rights established before the statutes were passed are considered "vested" and fully protected by the law.
Structure of State Water Agency
The agency that directs the management of water appropriation in Nevada is the Division of Water Resources, which is part of the Department of Conservation & Natural Resources. The mission of the Division of Water Resources is "to conserve, protect, manage and enhance the State's water resources for Nevada's citizens through the appropriation and reallocation of the public waters." The head of the division is the State Engineer, who is appointed by, and reports to, the Director of the Department of Conservation and Natural Resources (who is himself appointed by the Governor). The State Engineer is responsible for reviewing all applications to appropriate water and making the final decision to approve or reject them.
Surface Water Rights
Surface water accounts for 73% of total water withdrawals in Nevada. Nevada contains only a few large rivers- most notably the Truckee, Carson, Walker and Humboldt. Of these, only the Humboldt is completely contained within the state’s borders. The other rivers originate in California's Sierra Nevada Mountains. As a result of the scarcity of surface water in Nevada, there is almost complete appropriation of the water resource, and transfers/exchanges play a larger role than new appropriation.
There is no statutory basis for instream flow rights in Nevada, but they have been recognized through judicial determination. Instream flows in Nevada can be established either through new appropriation or during a water transfer. The recognized beneficial uses for instream flows are wildlife (primarily fish) and recreation. However, because they are not statutorily defined, there is the possibility of other uses being recognized. In contrast to most Western states, which reserve instream flows for a few governmental agencies, there is the potential that in Nevada private entities could hold such instream flow rights.
Groundwater is not specifically defined in the Nevada statutes but is generally considered to mean any underground water. Prior to 1939, groundwater was not subject to the permitting process, but is currently managed similarly to surface water. Although all waters appropriated in Nevada require a permit issued by the State Engineer, there is a domestic-use exemption that allows a single-family home to use two acre-feet per year from a well without obtaining a permit. Under the law, these unpermitted domestic users still receive some protection from the adverse effects of certain future appropriators, in the form of limits on withdrawals.
The 1939 groundwater law also gave the State Engineer power to manage groundwater basins to protect against overdraft. In designated groundwater basins, the State Engineer may designate preferred uses as well as imposing restrictions upon the use of wells. There are 232 groundwater basins in the state of Nevada, and approximately 116 of them are actively regulated to some degree. There is some conjunctive use management occurring in Nevada, largely consisting of the injection of excess surface water into underground aquifers for use during times of limited surface water.
In Nevada, mining operations must obtain a water right permit if they will be extracting/using any water. When applying they must specifically outline the method for applying and utilizing the water. Mining represents an extremely important industry in Nevada, and has been designated a preferred use in many groundwater basins.
Permit and Adjudication Process
Any person who wishes to appropriate water in Nevada must file an application with the State Engineer’s office, including a supporting map and the appropriate fee. The statute defines a "person" to include both "the United States and this state," meaning that both governmental entities can appropriate water in the same manner as a private individual. After receiving the application, the State Engineer must post notice in a newspaper within the county where the diversion of water is sought for four consecutive weeks. After notice is concluded there is a thirty-day period in which any interested party may file a protest. If a protest is lodged the State Engineer may, at his discretion, conduct an administrative hearing (which is conducted much like a trial with the protestant as the plaintiff). At the conclusion of the hearing, the State Engineer issues a written ruling. After the ruling is issued, an aggrieved party has thirty days to appeal the decision of the State Engineer to the local district court.
In considering an application to appropriate, the State Engineer follows the guidelines outlined in NEV. REV. STAT. ANN § 533.370. These guidelines compel the State Engineer to reject the application if there is no unappropriated water in the source, where the proposed appropriation conflicts with existing rights, or if it threatens to prove detrimental to the public interest. In addition, as in most Western states, "[b]eneficial use shall be the basis, the measure and the limit of the right to the use of water." The beneficial use concept not only concerns the use but also the amount of water "reasonably" required to serve the use. Many beneficial uses have been recognized in Nevada, either statutorily or through judicial determination, including use for recreation. Furthermore, the concept of "beneficial use" is not a static concept but instead is dynamic and may shift.
After an application is approved, and a permit granted, the State Engineer sets a time when the permittee must complete the diversion and file proof of application of water to beneficial use. The final step in perfecting the water right is completed when the State Engineer issues a Certificate of Appropriation. This Certificate embodies the completed water right and can be lost by either forfeiture or abandonment.
The State Engineer can undertake a general adjudication to determine the relative rights of all claimants to a stream system either on his own accord or upon the petition of a water user. The adjudication consists of the collection of all evidence and field data and then the filing of an Order of Determination by the State Engineer. This order is filed with the local district court, and any objection must be filed in a timely manner. The court then hears all objections and issues a final decree.
Abandonment and Forfeiture
Under Nevada law all water rights can be lost due to abandonment. This requires a showing of intent that is proven by the particular facts of each case. Abandonment is the only way that a "vested" right (or a right established before 1913) can be lost. Additionally, surface rights may only be lost by abandonment and not by forfeiture.
Permitted and certified groundwater rights may be lost due to forfeiture. Forfeiture of a groundwater right occurs when there is a continuous five-year period of non-use. In the basins that the State Engineer is monitoring, he is required to send notice to water right holders who have shown non-use for four years. This notice warns about potential forfeiture if another year of non-use transpires. The owner may apply for a time extension. After a forfeiture or abandonment is declared, the owner has thirty days in which to file a judicial appeal.
Transfers and Exchanges
Due to the arid nature of Nevada, and full appropriation of most waters, transfers and exchanges are an important part of Nevada water law. Also, because of the large number of transfers and exchanges, keeping the water records current has been a large administrative problem for the State Engineer. In 1995, the legislature passed statutes requiring the owner of the water right to prepare and file the various documents necessary to a transfer or conveyance, a job that had been the State Engineer's.
The process for changing an existing water right is almost identical to that of an original application. The person seeking the change must file an application for change of use with the State Engineer and the State Engineer will consider identical criteria when evaluating any change of use. The process of perfecting the changed right is the same as well (requiring the filing of a Proof of Completion and Beneficial Use). Then the State Engineer will issue a new Certificate of Appropriation, although the date of priority stays the same as the original permit.
Water rights in Nevada are defined as interests in real property, and as a result, are transferable through deed or other instrument of conveyance. For purposes of conveyance, water rights are appurtenant to land and move with a land conveyance unless they are expressly reserved.
If groundwater is transferred from the county where appropriated to another county, the source county may impose a fee. Before levying a fee the home county must seek the approval of the State Engineer, and any fees collected are put into a trust fund to be used for economic development, health care, or education.
Standing and Judicial Review
In Nevada, "any person feeling himself aggrieved by any order or decision of the state engineer" may seek judicial review of that decision within thirty days. The proper court for such review should be the state court in which the water affected is located. In such a proceeding, the decision of the State Engineer is assumed to be prima facie correct and the burden of proof is upon the challenging party. Furthermore, the court hearing is not a de novo proceeding but limited to a determination of whether the record supports the State Engineer's decision. As standing to seek judicial review of a State Engineer's decision is liberally given, the State Engineer is exempt from the Administrative Procedure Act, limiting the judicial review process to that outlined in NRS § 533.450.
The Public Interest
The State Engineer is charged with rejecting permits to appropriate water if they "threaten to prove detrimental to the public interest". The question of what constitutes such a "threat" remains unsettled. The State Engineer has rejected applications to appropriate by citing the public interest, most notably related to the Yucca Mountain Project. While this seems promising, it is historically a special situation; the Yucca Mountain Project is extremely unpopular politically in Nevada and has been fought on many fronts. Additionally, in rejecting the permits the State Engineer cited a specific statute that outlaws the storage of nuclear waste in the state. Thus, the State Engineer provides no guidance on what is the public interest beyond that it doesn't include statutorily illegal activities. An additional difficulty in moving for a more robust public interest investigation is court precedent that says that the State Engineer's decisions are generally administerial in nature, and involve little discretion.
The public interest has been discussed most explicitly in two cases. One decision was from the Nevada Supreme Court; the other came from the Ninth Circuit Court of Appeals. In Pyramid Lake Paiute Tribe of Indians v. Washoe County, (Nevada Supreme Court decision) the Pyramid Lake Paiute Tribe of Indians and the Board of Supervisors of Lassen County, California challenged a groundwater transfer application on both environmental and economic grounds. The record from the initial decision offered no indication that the State Engineer had considered the public interest despite the statutory mandate and so the district court remanded the case to the State Engineer for an appropriate finding. Following remand, the State Engineer identified 13 "policy considerations" that were purportedly used to analyze the public interest. In a 3-2 decision, the court held the list sufficiently defined the public interest, citing to the fact that the legislature had not sought to define it more specifically in the statute and the State Engineer's lack of resources to more thoroughly consider the public interest in reviewing each permit.
Likewise, in United States v. Alpine Land & Reservoir Co., the plaintiffs alleged that the approval of applications to transfer the place of use for existing water rights was detrimental to the public interest. The case involved the United States Fish and Wildlife Service, which sought to transfer place of use in order to supply water to wetlands in a national wildlife refuge. In holding that the State Engineer had properly taken the public interest into account, the court cited Pyramid Lake and the list of policy considerations, as well as the evidence on the record countering the plaintiff's assertions of potential harm.
The biggest problem with the 13 "policy considerations" is that they generally have little or nothing to do with the public interest. They merely restate statutory language setting forth requirements that permit applications must satisfy and they have little relevance to the "public interest". For example, the guidelines include that "the applicant must demonstrate the amount, source and purpose of the appropriation." That information does not reference the public interest but is instead merely clerical information needed to define the water right. A more useful administrative definition of what constitutes the public interest would help to resolve this question.
Furthermore, especially given the arid climate and scarcity of water in Nevada, it seems that the principle of "beneficial use" requires more investigation when reviewing applications to appropriate or transfer. Because "it is settled that beneficial use expresses a dynamic concept," it may be that some traditional uses once deemed beneficial may not be any longer. There is also a statutory provision that "the willful waste of water to the detriment of another, shall be a misdemeanor", a provision that if viewed broadly could make the appropriation of water for less preferred uses illegal and clearly against the public interest.
- ROSS E. DE LIPKAU, WATERS AND WATER RIGHTS 789 (Robert E. Beck ed., vol. 6, Matthew Bender 2005 repl. vol.) (1991).
- Nevada Division of Water Resources, http://www.water.nv.gov/.
- Nevada Revised Statutes, http://www.leg.state.nv.us/NRS/Index.cfm.
- WELLS A. HUTCHINS, The Nevada Law of Water Rights (1955).
- GREG WALCH, Treading Water Law – A Nevada Water Rights Primer, 6-NOV Nev. Law. 18 (1998).