Obtaining water rights can be a lengthy and complicated process
By Chris Carrier
Water rights in Nevada have a long and complex history, shaped by the unique geography and climate of the state, as well as by the various social, economic, and political forces that have evolved over the years. The first water rights in Nevada were established during the mining boom of the mid-19th century, when miners diverted surface water from streams and rivers to power their operations. Water law statutes were first enacted in 1866 to allow these diversions for mining and irrigation development. This led to conflicts over water use, which were often resolved through informal agreements and court orders.
In the early 20th century, the state of Nevada began to assert greater control over water resources, enacting laws to govern the allocation and use of water. The Irrigation Act of 1903 created the Office of the State Engineer and declared that all waters of the state belong to the public. In 1913, the basic statutory principles for Nevada water law were adopted. The first water rights were granted under the doctrine of prior appropriation, where water rights were allocated on a first-in-line, first-in-right basis. This protected the water rights of senior uses, while allowing for the allocation of new junior water rights. In addition, statutes required appropriated water to be put to beneficial use. Failure to do so could result in loss of water rights.
Over time, complex water issues developed as the state sought to balance the needs of different users, including farmers, ranchers, cities, and industries. In the decades that followed, population growth in the state led to over-appropriation of basin water resources, reallocation of water supplies from rural areas to urban areas, and environmental concerns to protect wildlife and recreation.
Water Rights Over-appropriation
Balancing water rights in Nevada is complex given the scarcity of the resource. Prior appropriation is one of the governing principles, but as more water rights were allocated over time, the amount of water available became limited.
In Nevada, groundwater is divided into 256 hydrogeographic basins. Basins are recharged from precipitation, streams, irrigation, and subsurface inflow. In addition, the basins support outflows, which include streams, springs, evapotranspiration, subsurface outflows, and pumping. The perennial yield of the basin is the maximum amount of groundwater that can be salvaged each year over the long term without depleting the groundwater reservoir. The groundwater resource can be considered sustainable when the basin inflows and outflows are balanced. However, population growth, increasing urbanization, and recurring drought conditions create greater demand. In some basins, the total amount of water appropriated exceeds the basin’s natural ability to replenish itself. Managing the water resources in these conditions has become a contentious issue.
Reallocation of Water Supplies
Nevada has experienced a significant increase in population, especially into urban areas such as Las Vegas and Reno. This has led to a trend where water rights are transferred from rural agricultural resources to support development in urban areas. In some basins, the State Engineer has established preferred use where new irrigation appropriations are denied. In order to support growing urban populations, interbasin transfers of waters have been explored, where water could be piped from rural basins with unappropriated water. However, these proposals have largely been abandoned due to legislative pushback and the pursuit of less costly options.
The use of water to support wildlife and recreational purposes is often in conflict with new urban development. Through enforcement of the federal Endangered Species Act, emphasis has been placed on protecting in-stream flows for wildlife and recreational purposes. The State Engineer has issued water rights permits to support recreation, fisheries, stock and wildlife watering, and in-stream rights. Examples are those issued for Pyramid Lake and the Walker River Basin.
Some environmental matters are more challenging to address. One of note involves several groundwater basins that are interconnected by a deep carbonate aquifer known as the Lower White River Flow System. The aquifer feeds a spring system that supports the endangered Moapa dace, which is a native fish species found only in the Warm Springs area in Southern Nevada. Pumping from the aquifer has been found to affect spring flows. The State Engineer in coordination with local entities and the public are attempting to manage the aquifer, which has been found to be over-appropriated. Resolutions to the matter are pending.
Obtaining Water Rights
Obtaining water rights can be a lengthy and complicated process, and water rights are subject to change based on the availability of water. In hydrogeographic basins that are not fully appropriated, an Application for Permit to Appropriate the Public Waters of the State of Nevada may be filed with the Nevada Division of Water Resources to make a claim for the water. In more developed areas where the basin has been fully appropriated, water rights may be purchased from an existing holder and a Water Rights Change Application may be filed to move the water to a new location. This may change the point of diversion, place of use, and manner of use for the water right, but the change application maintains the priority date of the original water right. To support the applications, a water rights map is prepared by a licensed State Water Right Surveyor that shows the point of diversion, place of use, and its relation to surveyed township, range, and section established through the Public Land Survey System. In addition, a Report of Conveyance is submitted to update ownership of the water rights along with a supporting Abstract of Title, which documents the deeds that demonstrate ownership.
Once a water right has been obtained, the owner must then strive to perfect the water right. A Proof of Completion is filed when the diversionary works have been constructed, such as a well, water meter, diversionary piping, etc. The owner must then record the amount of water used over the course of a year. If the owner has demonstrated that they have beneficially used the entire allocation of their water right, then a Proof of Beneficial Use is filed to certificate the water right. If an irrigation right has been put to beneficial use, then a supporting cultural map is drafted by a water right surveyor that shows the cultivated acreage and a description of the culture.
If the conditions of the Proof of Completion or Proof of Beneficial Use have not been met, then an Extension of Time Application may be filed as long as the owner has demonstrated progress towards perfecting the water right. Due to the increasing scarcity of water, especially in over-appropriated basins, the State Engineer has placed further emphasis on perfecting a water right. The purpose of the Extension of Time Application is not meant to maintain a water right permit in perpetuity. If an Extension of Time Application is filed, then the owner must provide specific information that documents good faith, reasonable diligence, and steady application of effort to perfect the water right.
Vested rights are those water rights that have been established and applied to beneficial use prior to the adoption of Nevada water law. These include surface water rights prior to March 1, 1905, underground sources prior to March 22, 1913, and artesian and percolating water prior to March 25, 1939. A Proof of Appropriation application and a supporting water rights map is required for those who seek to file vested water rights claims. In 2017, new legislation was passed that requires a claimant of any vested water right to file a Proof of Appropriation before December 31, 2027 or the claim shall be deemed to be abandoned.
Ongoing water rights disputes are testing the doctrine of prior appropriation with that of riparian water right doctrine, which follows the basic principle that a landowner along a body of water or over a groundwater aquifer is entitled to a “reasonable use” of water from that source. Disputes have also led users to seek reallocation of adjudicated water rights under public trust doctrine, which entrusts care of natural resources for the public’s long-term benefit. In these cases, the Nevada Supreme Court ruled the public trust doctrine did not permit reallocation of water rights because the prior appropriation system requires the water rights holders to continually use water beneficially or lose those rights, and beneficial use is always in the public’s interest.
In 2022, the Nevada Supreme Court made a significant decision on groundwater rights in the state. The case centered on the issue of whether property owners have a right to use groundwater beneath their land, regardless of the impact it may have on neighboring wells or water sources. In its ruling, the court affirmed the rights of property owners to use groundwater beneath their land but must do so in a way that does not harm neighboring wells or water sources or cause undue environmental damage.
In Nevada, the process of obtaining and managing water rights includes a series of steps. Water right holders must follow the process carefully, or there can be consequences including loss of water rights. It can be easy to miss steps if not monitored carefully, particularly given the length of time required. A State Water Right Surveyor can be helpful to ensure compliance.
Broadbent & Associates, Inc. is a Nevada environmental consulting firm that has helped miners navigate Nevada water laws since the late 1980s. The engineering firm has State Water Right Surveyors that support water right holders in a variety of ways including due diligence investigations, hydrogeologic investigations, filing and maintaining applications and maps for various water uses, groundwater management, and water supply planning. They work with legal teams and provide expert witness testimony in water right hearings.
Chris Carrier, P.E., is a Senior Engineer at Broadbent & Associates, Inc. For more information, visit their website at: www.broadbentinc.com.
Legislative Council Bureau (2019). Water Policy and Issues in Nevada: An Overview. Research Division, Legislative Council Bureau, December 2019. https://www.leg.state.nv.us/Division/Research/ Documents/water-overview-2019.pdf.
National Agricultural Law Center (2020). Water Rights Dispute: Public Trust Doctrine in Front of NV Supreme Court. National Agricultural Law Center, October 2020. https://nationalaglawcenter.org/water-rights-dispute-public-trust-doctrine-in-front-of-nv-supreme-court/.
Welden, Fred W. (2003). History of Water Law in Nevada and the Western States. Legislative Council Bureau, January 2003. https://www.leg.state.nv.us/division/