Nevada is the driest state in the union and lawmakers are grappling with how water law in the state could be changed to cope with that fact.
The Legislative Commission’s Subcommittee to Study Water — chaired by state Sen. Pete Goicoechea, a Diamond Valley rancher whose district covers all of Elko, Eureka, Lincoln and White Pine counties and parts of Clark and Nye counties — met in Las Vegas this past week to hear seven hours of testimony on this topic. Other meetings are being scheduled around the state.
The first Nevada water law was passed in 1866 and recognized the vital role of mining in Nevada. The current law recognizes the basic principles of prior appropriation and beneficial use: First in time is first in right, but the water must be put to a beneficial use or the right is forfeited.
Jason King, the state engineer whose office determines water rights within the state, suggested several changes in the law, including “conjunctive management” of surface and ground water.
“We do not have anything in statute that allows us to conjunctively manage the surface water and ground water. …” King told the panel. “At a minimum we’d like to see some acknowledgment that our office has the ability to deal with surface water and ground water together.”
In prepared comments for the meeting, King’s office noted that the early history of water development in Nevada focused on surface water, and it was not until 1907 that issues regarding the use of groundwater began to emerge. Wells drilled in Las Vegas, for example, resulted in declines of spring flows and a drop in the water table. Not until 1913 did the Legislature enact a law that provided all water, surface and groundwater, is subject to appropriation.
King pointed out that the drought has caused conflicts between the holders of water permits for surface water and groundwater, and, if his office can’t mitigate those conflicts, the courts may rule the senior surface rights take precedent over the junior rights of water well owners and those wells could be ordered shut down to protect stream flows.
King also told the committee the law needs to be changed to allow flexibility in water management, including recognizing water banking as a beneficial use, suspending the use-it-or-lose it aspect of the law and changing the law’s priority structure under which domestic household water wells would have to be curtailed if they impacted senior surface water rights, calling that an obvious health and safety issue. King noted that 98 percent of domestic wells in Nevada have junior rights.
“It’s not anything our office gets any satisfaction out of, but I tell you we stand prepared to curtail by priority if we need to. …” the state engineer explained the requirement under current law. “Obviously, we don’t want to do that, but we’re ready to do that and that is our hammer in the water law.”
He said an example of cooperative water planning and mitigation occurred when Ely agreed to allow a copper mine to essentially dry up a stream in exchange for the jobs and economic benefits of the mine, and said his office needs that kind of flexibility.
King also called for metering of the vast majority of water used in the state, surface and groundwater, saying, “You can’t manage what you can’t measure.”
One presenter at the water law meeting noted that a recent study found that in the Colorado River Basin the period of 2000 to 2015 was the driest 16-year period in the 101-year historical record for the basin and there are forecasts that suggest the region may be due for a three-decade-long megadrought.
On the other hand, a study of tree rings along the banks of the Colorado River by researchers from the University of Arizona found that the 20th century was the wettest of any century going back to the 4th century B.C.
So, what Nevada is experiencing now may well be normal and the wet 20th century was the anomaly — making it more urgent than ever to enact equitable changes to water law and experiment with allowing water to be bought and sold on the free market, the best way to allocate any commodity.