Background

Nevada water is governed by prior appropriation through a permitting system administered by the State Engineer.  All water in Nevada, including groundwater, belongs to the public and is appropriable for beneficial use.1 Nevada began regulating its water in 1866, and made major reforms to its water laws in 1913.2 The General Water Law Act of 1913 deemed water in artesian wells and definable aquifers appropriable public property and also referenced groundwater conservation.3 In 1939, as pressure on water supplies increased, the legislature enacted the Nevada Underground Water Act, making all groundwater subject to appropriation and regulation by the State Engineer.4

Prior to the 1960s, Nevada experienced relatively minimal development of groundwater sources.5 However, as pumping and overdraft increased, Nevada enacted a system for more effective groundwater management, including designation of critical groundwater areas where withdrawals may be restricted to preserve supplies.

Today, groundwater accounts for 45.6% of the state's total freshwater supply.6 A little more than half the groundwater withdrawn is used for agriculture with another 30% used for mining operations.7 Groundwater accounts for 100% of individual household water use and 22.9% of public supplies.8

Summary of the Law

The State Engineer manages the appropriation and distribution of Nevada water.9 The vast majority of groundwater withdrawals in Nevada require a permit from the State Engineer.10 In evaluating permit applications, the State Engineer must consider various statutory factors including potential conflicts with existing rights. The State Engineer may only issue permits if there is unappropriated water the withdrawal of which will not be detrimental to the public interest.11 Generally speaking, the State Engineer follows a policy of limiting groundwater withdrawals from a basin to safe yield.12 A permit holder must complete necessary works and apply the water to beneficial use within the time frame designated by the State Engineer,13 and the water right is not fully perfected until the state receives proof an appropriation has been made in accordance with the permit.14 When the state declares these requirements met, the permit holder possesses a perfected water right, limited by the appropriator's place in the priority system.15 There are two basic exceptions to these permitting requirements: uses predating legal requirements and domestic uses below a certain quantity. Uses predating water law requirements include vested rights acquired from artesian wells or definable aquifers prior to 1913 and percolating groundwater prior to1939.16 Vested rights must have been adjudicated by the state to remain valid.17

Special Permitting Area—Designated Groundwater Basins: Following certain statutory procedures, the State Engineer may designate a groundwater basin for heightened management.18 Basin designation allows the State Engineer to take actions such as designating preferred water uses and prohibiting drilling of exempt domestic wells when water can be furnished by another entity.19Additionally, the State Engineer may designate critical management areas in any designated basin where withdrawals regularly exceed safe yield.20 If an area is designated critical for ten consecutive years, the State Engineer must restrict withdrawals to conform to priority rights unless a groundwater management plan is approved.21 The State Engineer may also develop area-specific overdraft management regulations, such as requiring conjunctive use of all sources.22

In a designated basin, potential groundwater users must obtain a permit prior to performing any construction work in connection with a well (in undesignated basins, permits are not required prior to construction works).23 Of Nevada's 256 hydrographic basins, 120 basins are designated or partially designated under this law.24

Next: Law & Practice »

Law and Practice

Nevada was one of first western states to develop a regulatory regime for groundwater withdrawals; nonetheless, the largely desert state faces its share of groundwater management difficulties. Nearly 45 of Nevada's basins are in overdraft; thus, the regulatory regime, whatever its merits, has not achieved sustainable management throughout the state.25 In the past, over-appropriation was permitted based on the idea that not all rights holders would use their full allocation.26 Basins also became over-appropriated due to exempt wells.27 Over-appropriation means effectively controlling overdraft via the priority system is not a viable option for the state, which must turn to its more refined statutory tools.  

The Las Vegas Valley basin presents a case study of the critical overdraft scenarios with which the state must contend. Though the Colorado River, via Lake Mead, constitutes southern Nevada's primary water source, groundwater is nonetheless a critical component of the area's resource picture. Through the mid-1990s, growth in the basin led to significant overdraft.28 In 1997, to address the problem, the Legislature directed the Southern Nevada Water Authority (SNWA) to develop a program to better manage groundwater.29 Thus, the Las Vegas Valley Groundwater Management Program was instituted to more aggressively regulate groundwater supplies.30 In 1999, the Legislature amended the Program to allow the SNWA to establish an artificial recharge program, which has helped stabilize groundwater levels in many areas.31

This relative success shows the state is equipped—in terms of both legal tools and alternative water supplies—to address overdraft when situations become acute. However, success within one basin may lead to problems in another, as Nevada's ongoing dispute with its neighbor Utah makes clear. To augment its supplies and allow for continued growth, SNWA has sought to increase its use of the Snake Valley aquifer, which underlies the Utah-Nevada border.32 Proposals for increased withdrawals are projected to threaten supplies currently enjoyed by Utah users, and have resulted in a protracted interstate legal battle.33 As Nevada copes with reduced surface supplies resulting from drought in the Colorado River Basin, and demands on groundwater increase, the state will likely need to take more aggressive control measures to ensure needs are met without resorting to continued unsustainable withdrawals.