Judging from the number of bill draft requests for the upcoming legislative session, water issues are clearly on the minds of state lawmakers and their constituents.
A quick overview of the content of those requests, however, suggests that there are some misconceptions among the water-using public as to how the state's water resources are managed.
From a proposed Nevada Water Resources and Policy Act to a suggested state water authority to oversee the work of the State Engineer, the legislature clearly sees a need to consolidate and increase oversight.
The bill draft requests also reflect a public perception that there is an overwhelming maze of state water regulations through which a developer must wade in order to obtain water delivery to a new project.
Not only are these views not substantiated by the existing water management system, but the complex legal framework governing water law in the state gives the legislature little discretion to make any substantive changes.
Statewide planning is not a prerequisite to the competent management of Nevada's water resources.
Rather, oversight at the local and regional levels can better accommodate the disparate water sources used by different areas of the state.
Although groundwater pumping is ubiquitous throughout and administered by the State Engineer, surface water sources are managed according to wholly dissimilar schemes.
Southern Nevada relies almost exclusively on the Colorado River, which is closely managed at the federal level pursuant to an assortment of statutes, treaties, and judicial decisions and decrees (together,"The Law of the River") that allocate its water among seven western states and Mexico.
In contrast, northern Nevada gets its water from a number of rivers running out of the Sierra Nevada and other mountain ranges that accumulate snow pack.
Most of the northern rivers for example, the Truckee, Carson, and Walker are managed by the federal water master pursuant to an entirely different set of interstate compacts, statutes, judicial decisions and decrees.
In some cases, the regulatory regime for these over-appropriated rivers stems from 75-year-old decrees, aspects of which continue to be litigated today.
As a result, the allocation of surface water in the state is just a hair short of being set in stone so that certain legislatively-mandated changes would not only disturb existing property rights and users' reliance on those rights but would be contrary to existing law.
A regionally-based management scheme, therefore, is better-suited to the state's geography and water sources.
Juxtaposed on the federal framework for managing surface water are the duties of the State Engineer to carry out state law.
The State Division of Water Resources (DWR), which is overseen by the
State Engineer,manages the state's groundwater resources.
In addition, all applications for new water rights or to change the point of diversion, place of use, or manner of use of existing water rights,must go through DWR.
Even on a river system that is managed by the federal water master, DWR supervises any changes in how and where water is put to use.
Importantly, this function is not ministerial; DWR must evaluate each change application to make certain that it will not detrimentally impact existing water users.
Finally, to the extent conveyances are reported to it, DWR maintains the only comprehensive record of water rights ownership in the state.
This sharing of jurisdiction over water management leaves some developers scratching their heads as to the exact mechanism for ensuring water delivery to their proposed projects.
The water utilities which actually deliver water to the tap have their own rules and procedures.
Locally, the Truckee Meadows Water Authority (TMWA),Washoe County, and a handful of smaller purveyors serve water customers, and in fact, TMWA wholesales its water to all other area purveyors.
Although there are some subtle differences among them, purveyors generally follow similar procedures for delivering water to a new project.
The developer must first secure water rights in an amount sufficient to serve the project and then submit a final subdivision map to the purveyor whose service area encompasses the location of the proposed development.
Having verified that the water rights are of sound title and adequate amount, the purveyor will issue a will-serve commitment.
The developer then contracts with the purveyor over operation and management costs and then builds the necessary facilities to connect to the existing water delivery system.
During this process, the developer must submit an application to the State Engineer to change the place and manner of use of the water rights purchased to serve the project.
Any such application goes through a publication and protest period after which it is considered "ready for action" (RFA).
Due to the sheer volume of submissions to the State Engineer and the careful evaluation necessary to assess impacts on other users, an application can stay in RFA status for a long time, causing frustrations for developers who are ready to begin construction.
If a purveyor has water rights available and trusts the change application will be granted, it may "back up"water rights in RFA status, thereby allowing a developer to proceed even when the change application has not yet been approved.
The biggest challenge facing water users in Nevada may not be the management of the resource but rather the fact that DWR is understaffed and unable to timely review the applications that are submitted.
The office is also in need of a systems overhaul in order to increase efficiency.
Although the engineers at DWR are extremely helpful and willing to take the time required to assist any caller or dropin visitor to the office, their workload is simply too large and their organizational tools too outdated to handle the growth the state has seen in the past decade.
Rather than trying to change the state's water management organization, a more useful legislative fix would be additional appropriations to DWR.
In fact, many developers have expressed a willingness to pay increased fees in order to speed up the application process.
By understanding the necessary procedures and ensuring that all documents submitted to agencies are accurate, water users can help make certain that the existing regulatory framework works efficiently.
In addition, they can emphasize to their representatives that the water management system can be improved in ways that do not involve the creation of unnecessary layers of regulatory oversight.
Debbie A.
Shosteck is an attorney with the law firm of McDonald Carano Wilson LLP.
She practices primarily in the fields of natural resource and water law.
The information provided above is not intended to be legal advice or to create any attorney-client relationship.
Interested readers are advised to consult with an attorney for specific legal advice related to their unique issues.
Where to learn more
* http://www.tmh2o.com/customer_services/waterrules/
* http://www.co.washoe.nv.us/water/
* http://water.nv.gov/
