Nevada Water Rights Process
All waters of Nevada belong to the public. Nevada water law, administered and enforced by the Nevada State Engineer (NSE), follows the doctrine of prior appropriation. The water rights process is started by filing and application with the NSE to appropriate water. When considering whether to grant an application, the NSE evaluates the amount of unappropriated water in that basin, and if the proposed use of water would (1) conflict with existing rights, (2) prove detrimental to the public interest, and (3) adversely impact existing domestic wells. The public are notified of an application through publication in a local newspaper.
An affected party may file a protest to an application with the NSE during the period established by Nevada statute. If there are protests, a hearing may be held in which the applicant and protestant(s) present evidence to the NSE. The hearings are formal and all testimony is sworn and recorded. Federal agencies may participate in the water rights process, including submitting protests, in the same manner as an affected party.
After the hearing, the NSE issues a decision. NSE rulings include the amount of water appropriated, based on the specific points of diversion in the original application, as well as any necessary monitoring, mitigation, and other requirements. A water right is established if a permit is granted and the water is put to the ascribed beneficial use. If an applicant wants to change location for one or more points of diversion after the NSE ruling, the applicant must submit a Change of Point of Diversion Application. Changing a point of diversion follows the same process outlined previously (including allowing protests).
To resolve any protest, the applicant and any protestant, e.g., federal agency, may reach an agreement prior to the hearing date. Such an agreement or stipulation, when signed and filed with the NSE, may be treated as a withdrawal of the protest. The NSE is not party to the agreement, and is not bound to its terms. However, NSE rulings typically acknowledge the agreements and associated requirements.
After an application is approved and the water right perfected, the ability to challenge groundwater pumpage with the NSE is usually restricted to terms of the permit that are not being followed, effects on senior water rights, or on some statutory duty. In general, a federal agency has only the same recourse to a remedy as any other affected party.
The NSE, not BLM, is responsible for determining is there is unappropriated groundwater and whether to grant SNWA's groundwater applications. As a federal land manager, BLM will consider granting SNWA's rights-of-way as proposed. In doing so, NEPA requires BLM to analyze alternatives and identify monitoring and mitigation measures; these alternatives may or may not be within the jurisdiction of BLM. For example, reduced pumping is one of several alternatives not within BLM's jurisdiction.
Additional information on Nevada's water laws, hearings and rulings, and other information related to Nevada's waters can be found at the Nevada State Engineer website: http://water.nv.gov/
BLM's National Operations Center website provides a summary of each of the Western State's water laws: http://www.blm.gov/nstc/WaterLaws/index.html
Stipulated Agreements Involving Department of Interior Agencies in Nevada
Department of Interior Agencies may protest water rights applications in the same manner as any Nevada citizen, organization, or entity. Federal agency protests are filed consistent with policies, regulations, and laws intended to protect Federal water rights and natural resources. The protests provide federal agencies with legal standing before the NSE and ensure agencies can fully participate in the state's water rights appropriation process. Protests can be resolved by (1) the NSE as part of the ruling on the application, (2) the protestant voluntarily withdrawing prior to the NSE hearing or ruling based upon availability of new information, or (3) the protestant and applicant developing a stipulated settlement prior to the NSE hearing or ruling, which may include a series of measures that the applicant agrees to implement to address protest issues in exchange for withdrawal of protests.
DOI agencies have used stipulated settlements to resolve 12 separate protests across Nevada since 1994. Federal agencies benefit from stipulated settlements by not having to expend labor and funds to prepare and participate in lengthy administrative hearings; improving understanding of natural resources on public lands through additional monitoring and studies provided under the settlement; having direct control over the type of additional monitoring and studies that are conducted, as opposed to relying on the NSE ruling; and reducing conflict with local communities by working together to address natural resource and water supply challenges. These stipulated settlements only address federal land management issues and may not adequately address issues and concerns of other stakeholders and parties.
Below are links to information on some stipulated agreements that DOI agencies have developed with other parties in southern and eastern Nevada.