Water Rights HSeeking Water Rights in Nevadaead

I recently attended a hearing before the Nevada State Water Engineer to consider public comment on the proposal to formally “designate” one of the large groundwater basins in northern Nevada, and I was reminded of the confusion and concern that arises in the eye of the ranching community and the general public of this notion to “close” a valley to any further development for water wells.  Does it mean there is no chance at all of obtaining additional underground water supply wells to support and expand my operations?  Can I move forward on the permits I have but have yet to fully develop?  These are some of the questions that come up and there seems to be a lack of clarity on what the answers really are.

The state engineer is the administrator of the Division of Water Resources (DWR) and regulates the appropriation of all of the waters of the state.  In Nevada, like many western states, all water, whether above or beneath the surface, belongs to the public and may be appropriated for beneficial use by filing with the state engineer and not otherwise.

Groundwater Basin Designation is the first of a number of administrative tools that the State Engineer uses when it appears that the basin is approaching or over the limit of water available to appropriate for beneficial use.  It is only to further administer underground water sources, not surface water.  The easiest way to remember the distinction between a non-designated basin and a designated basin is that in the former, you can hire a licensed drilling contractor and install and flow test water wells all over the quiet land and file for and obtain a permit to beneficially use the water at some later date.  In a designated basin, you have to obtain the appropriation permit first before drilling and developing a water source well.  It does not necessarily mean that there are no more permits allowed, just that the chances of getting any new water are becoming smaller and smaller.  Any permit you have can still be fully developed or perfected, to a certificated right.  Certificates are the last step in the water right process and once attained are solid and can only be lost by forfeiture for five consecutive years of non-use.

A fully appropriated groundwater basin is analogous to a fully appropriated stream or spring where the state engineer or, in many cases an adjudication judge, has determined that all of the rights on the stream cannot be satisfied based on the available water supply except in an exceptional water year.  That system is shut and appropriators can only change the point of diversion, manner and place of use of existing water rights, but not get any additional water.  A groundwater basin being fully appropriated is initially based upon estimates of annual natural recharge and discharge (perennial yield) vs. the sum-total of valid underground water rights.  The notion of all of the water rights being satisfied in an over-appropriated basin in other than an exceptional water year is a little more nebulous.  All the rights can still be satisfied but the water levels are dropping.  The state engineer monitors water levels in wells each year to determine the condition of the resource in these basins.  If water level declines are consistent and getting worse each year, it is definitely a case for further administration by the state engineer, as it is his job to protect existing rights and to do so by priority if necessary.  The answer to new appropriations in some cases is, summarily, no.

Nevada Basin Map

So, can there be any additional groundwater developed in designated basins?  Maybe.  The state may consider the location of the new well, the permanent vs. temporary nature of the proposed water development and the size of the new appropriation and may allow some continued development.  They will consider the consumptive use portion of irrigation rights as “counting” against the basin yield and whether or not all of the rights are being fully pumped.

I know “maybe” does not provide much clarity for Nevada ranchers, but it is often the case that stock water wells are green-lighted by the state engineer in Nevada designated basins because they are small appropriations and the approval of those permits do not tend to impair existing rights.  However, you have to get the permit approval first before you can drill a new well, or deepen or replace an existing water source well in a designated basin.  To keep it in perspective, I recall a conversation I had, back when I was at the DWR, with a prominent Nevada rancher who wanted to deepen or replace a well and I had to tell him “no” and inform him that it was one of those things that I could not fix because, even though the well had been there for years, nobody ever bothered to file on it.  He said “well Tom, in the mean time I got dry cows out there!”  Hopefully, none of you will be in that predicament and I trust you are all transitioning well enough in this, another dry year.

Author’s note: Senate Bill 134 did just pass this past legislative session and provides some expedited process in areas declared in drought.  “Section 1 of this bill authorizes a person to apply for a temporary permit to appropriate groundwater to water livestock if the point of diversion is located within a county under a declaration of drought,…”  The purpose of my article is to keep things on a straight track on a somewhat complicated issue to educate the readership and general public and to not further complicate matters with exceptions.  The fact remains that you still have to file on it and receive the permit before drilling or deepening a well but the permitting process has just been shortened by exempting those applications from the public notice and comment process, thereby saving 60 +/- days.

Tom Gallagher is a first time contributor to the Progressive Rancher and is manager of Nevada Water Solutions LLC in Reno.  After over 31 years of public service with the Nevada State Engineer’s Office, and after a brief respite in retirement, he is assisting clients with getting and managing water for their projects.