NEVADA WATER LAW
The water we pump from our domestic well or receive from a utility connection does not belong to us as individuals. Rather, all waters within the state of Nevada, whether above or beneath the surface of the ground, belong to the public. We are welcome to use the water for beneficial purposes, but must do so according to Nevada Water Law that governs the administration of Nevada's waters.
The Nevada Department of Conservation and Natural Resources, Division of Water Resources (NDWR) is responsible for management of Nevada's water resources on the public's behalf. The NDWR, directed by the Nevada State Engineer, is responsible for the allocation of the public waters of the State, administering the law, and resolving disputes.
The State Engineer's actions and decisions are bound by Nevada Water Law in the Nevada Revised Statues, its implementing regulations in the related Nevada Administrative Code, and numerous court decisions which have further defined Nevada law.
Nevada Revised Statutes, Title 49
Chapter 532 - State Engineer
Chapter 533 - Adjudication of Vested Water Rights; Appropriation of Public Waters
Chapter 534 - Underground Water and Wells
Chapter 534A - Geothermal Resources
Chapter 535 - Dams and Other Obstructions
Chapter 536 - Ditches, Canals, Flumes, and Other Conduits
Chapter 537 - Navigable Waters
Chapter 538 - Interstate Waters, Compacts, and Commissions
Chapter 445A - Water Controls
Chapter 533 - Adjudication of Vested Water Rights; Appropriation of Public Water
Chapter 534 - Underground Water and Wells
When decisions are made as to the allocation of water to those wanting to put it to use, Nevada Water Law underlying the decision is based on two fundamental concepts: "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. Under this doctrine, the first users of the water from a watercourse or a groundwater basin acquire a priorty right to the water and the extent of its use under that right. This concept ensures the senior uses are protected, even as new uses for water are allocated.
All water may be appropriated for beneficial use as provided in NRS Chapters 533 and 534. Agricultural irrigation, mining, recreation, commercial/industrial and municipal uses are examples of beneficial uses, among others.
Domestic wells are an exception to this formal permitting process, since they have a right granted under NRS 534.180 to use the well water in a single family dwelling for culinary and household purposes, including the watering of a family garden, lawn, and domestic animals. Domestic wells are, however, limited to a maximum total use of 2 acre feet of groundwater a year - still a very generous allocation amounting to 1,800 gallons a day, every day.
Other prospective users of water, such as developers of multi-family apartments, residential subdivisions, or commercial/industrial projects are required to own or purchase an adequate quantity of certificated water rights comparable to their projected use. Formal approval of the intended use is then required from the State.
The Nevada State Engineer determines the limit and extent of the rights of claimants to water, the use to which water may be put, the quantity of water that is reasonably required for beneficial use, and where water may be used. In ruling on a water right application, the State Engineer must consider four criteria:
- Is there unappropriated water available for the proposed use?
- Will the proposed use impair senior water rights?
- Is the proposed water use in the public interest?
- Is the project feasible and not filed for speculative purposes?
All water rights are considered real property, (often worth several thousand dollars per acre-foot of water), and can be sold, traded and leased. The place of use and type of use can be changed with the State Engineer's approval. The attributes of appropriative water rights in Nevada are (Nevada State Water Plan, 1999):
- Beneficial use is the measure and limit of the right to the use of the water.
- Rights are stated in terms of definite quantity, manner of use, and period of use.
- A water right can possibly be lost by disuse, abandonment or forfeiture.
A transfer of currently unused groundwater from one basin into another that has a projected water supply shortage is referred to as an "interbasin transfer". Proposals for such transfers are often controversial, particularly from the perspective of the basin being approached to give up its water. The 1999 Nevada Legislature, through Senate Bill 108, amended Nevada Water Law to add criteria governing interbasin transfers of water by adopting the following revisions to the provisions of NRS 533.370:
In determining whether an application for an interbasin transfer of ground water must be rejected pursuant to the section, the State Engineer shall consider:
(a) Whether the applicant has justified the need to import the water from another basin;
(b) If a plan for conservation of water is advisable for the basin into which the water is to be imported, whether the applicant has demonstrated that such a plan has been adopted and is being effectively carried out;
(c) Whether the proposed action is environmentally sound as it relates to the basin from which the water is exported;
(d) Whether the proposed action in an appropriate long-term use which will not unduly limit the future growth and development in the basin from which water is exported; and
(e) Any other factor the State Engineer determines to be relevant.
Most of the policy statements outlined in the Nevada Water Law and Nevada State Water Plan reflect the philosophies of Nye County residents. The State should have primacy in issuing water rights, and there must be a balance in the appropriation of water resources to protect the interests of rural communities whose populations do not afford them political strength in the state legislature (Nye County Water Resources Plan, 2004).