The Nevada Legislature passed Senate Bill (SB) 270 during the 2017 legislative session to require water right holders with rights pre-dating state statutes to submit proof of ownership of those rights before the end of 2027. Like other western states, Nevada regulates water rights arising from permits issued by the state; however, water rights also arise from the common law particularly for water rights exercised prior to state laws being passed to regulate water and for issuance of permits. With SB 270 containing provisions taking effect on July 1, 2017 while other provisions take effect on January 1, 2028, Nevadans have time to ensure compliance but should take action to avoid the state or some unknown adversary contending the water right was either abandoned or subject to forfeiture.
Background
The western United States endured record-level drought for multiple consecutive years. Many urban water suppliers and their customers worked hard to conserve water, while many growers were forced to fallow fields or otherwise adapt to a new world of water resource reliability. Conservation and revised business models for farming practices became a new way of life, and still is for many.
States have responded in various ways but with a universal theme of seeking to enhance the statewide knowledge of who is using how much water, and when and for what purposes. As said by Nevada State Engineer Jason King:
In order to effectively manage water in Nevada, the driest state in the nation, it is critical we know exactly how much water is committed to and being used—either through the permitting process or through the adjudication of pre-statutory vested rights. . . .To appropriately manage Nevada’s precious water resources, we must accurately match water usage with estimated water availability so that our shared water resource is sustainable now and into the future.
Senate Bill 270
Accordingly, SB 270 seeks to identify the amount of water being used by all pre-statutory water right holders, which in Nevada are known as vested water rights. A pre-statutory holder is determined as follows: Prior to March 1, 1905, for surface water; prior to March 22, 1913, for artesian groundwater; and prior to March 25, 1939, for percolating groundwater.
SB 270 is now codified in Nevada Revised Statutes (NRS) chapter 533, §§ 1 through 13. Sections 1, 2, 5 through 8, 11 and 13 are effective July 1, 2017, while §§ 3, 4, 9, 10 and 12 are effective January 1, 2028. In a nutshell, SB 270 seeks three things: i) to require the claimant of pre-statutory water rights to submit proof of the claim to the State Engineer before January 1, 2028; ii) to require the State Engineer to provide notice of this submittal requirement; and iii) to eliminate the procedure for taking proof of claims.
Section 1 contains the important reporting and notice requirements, with a claimant of a vested water required to submit a claim on the prescribed form by the State Engineer before the end of 2027—the form must include, among other things, the use of the water; when the right was first exercised; and the dates of construction commencing, completing, and any enlargements for diversion and distribution infrastructure. Failure to submit a timely claim means any future claim “shall be deemed to be abandoned.” Abandonment of a water right typically means permanently. As a matter of fundamental due process, notice of the reporting requirement must be given by the State Engineer by publishing for four consecutive months in at least one widespread newspaper within the boundaries of each groundwater basin in the state, as well as posting the same on the State Engineer’s website.
Procedurally, Sections 2 and 5 through 8 of the bill seek to conform provisions in existing law so that the State Engineer must take into account the claims being submitted under this bill before ordering an adjudication.
Conclusion and Implications
SB 270 is consistent with what California and other western states are doing from a statewide policy perspective for water resource management. While the notice requirements seek to cast a broad net, and the ten-year compliance window provides ample time for vested water right holders to learn of this new requirement, inevitably some users might remain unaware, consequently risking abandonment of water likely relied on for over 100 years. Gone are the days of simply diverting the amount of water reasonably needed for some beneficial use like irrigation; today’s water resource management is an evolving world of regulatory and administrative oversight and requirements. Thus, a water right in the eyes of a regulatory agency or a judge might only be as valid as is the compliance with any regulatory compliance.
(Wesley A. Miliband)
