Nevada Water Rights, Part 2

This is the second article about Nevada Water Rights. This article will discuss the main differences between surface water rights and groundwater rights as defined by the Nevada Revised Statutes.

It should also be recognized that water has always been the “life blood” of the arid West; Western water law was born in controversy; and the allocation of precious water rights will continue to be of critical importance as laws and procedures are modified to meet modern needs.

Nevada’s first water law was passed in 1866 and has been amended many times since then. 

Today, the law serves the people of Nevada by providing the rules for applying for and holding onto a water right, as well as guidelines for the state engineer in managing the state’s valuable water resources. 

All water within the boundaries of the state, whether above or beneath the surface of the ground, belongs to the public and is subject to appropriation for beneficial uses.

Nevada water law is based on two basic principles: prior appropriation and beneficial use. Prior appropriation – also known as “first in time, first in right” – allows for the orderly use of the state’s water resources by granting priority to senior water rights in times of shortage. 

This concept ensures senior water users are protected, even as new uses for water are allocated. A water right permit may only be granted for beneficial uses as provided in the Nevada Revised Statutes.

Examples of beneficial uses include irrigation, mining, stock watering, recreation, commercial, industrial, and municipal uses. 

Beneficial use also includes the underlying principle of the appropriative rights system of water allocation, known as “use it or lose it.” In the West, where water resources are scarce, water users must demonstrate an actual beneficial use of water.

They cannot speculate in water rights or hold on to water rights they do not actually intend to place to a beneficial use in a timely manner. If they stop using the water, they will lose the water right.

All manners of use of water in Nevada require a permit from the State Engineer with two exceptions – domestic use and those uses that pre-date water law requirements.

Two main chapters in the Nevada statutes govern the appropriation and regulation of water in Nevada. Nevada Revised Statute Chapter 533 is the general water law that provides for the appropriation process and is specifically applicable to surface water. Nevada Revised Statute Chapter 534 is specific to groundwater and works in conjunction with Chapter 533, https://www.leg.state.nv.us/nrs/nrs-533.html#NRS533Sec025 

It should also be noted that NRS 533.027 deals with “de minimus collection of precipitation” or the minimal collection of rain or snow. 

It states that, “NRS 533 does not apply to collection of precipitation from the rooftop of a single-family dwelling for nonpotable domestic use; or if the collection does not conflict with any existing water rights as determined by the State Engineer, in a guzzler to provide water for use by wildlife.”

Most states provide for coordinated management of groundwater and surface water, especially where the two sources of water are clearly interconnected. 

Under Nevada law, groundwater and surface water are regulated separately under prior appropriation rules; yet in practice, they are managed conjunctively. 

State law also provides a method for storing surface water underground and then recovering for future use.

However, it should be noted that; each groundwater permit is issued on the condition that the right is related to a specific quantity of water and that right must allow for a reasonable lowering of the static water level at the appropriator’s point of diversion.

The engineer may grant a permit that lowers the point of diversion of a prior appropriator, so long as any protectible interests in existing domestic wells and the rights of holders of existing appropriations can be satisfied under such express conditions

While there are considerable differences in the details of state ground water law, the western states share common challenges of ensuring an adequate supply of water to meet growing population needs and balancing withdrawals for human use with protecting instream flows and other ecological needs. 

As groundwater is depleted faster than it is recharged, state governments will need to choose whether to give priority to ensuring the sustainability of ground water and conserving resources for future generations or to give priority to meeting the growing demands of current users, and whether to secure sufficient water for healthy ecosystems or emphasize withdrawal to meet direct human demand.

Sources:

Nevada Water Law 10, Nevada Dept. of Conservation and Natural Resources, http://dcnr.nv.gov/documents/documents/nevada-water-law-101/ 

Groundwater Law Sourcebook of the Western United States, by Gary Bryner and Elizabeth Purcell, http://cacoastkeeper.org/document/groundwater-law-sourcebook-of-the-western-united-states.pdf