Will Nevada establish water conservation programs? The Nevada Division of Water Resources, Office of the State Engineer (“NDWR”) under the direction of Acting State Engineer Adam Sullivan distributed two draft bills to various lobbying entities. One seeks to establish a water bank system while the other considers the creation of water conservation initiatives. As of February 17, 2021, neither of the bills were pre-filed with the Nevada Legislature for the 2021 legislative session. However, the content of the bill drafts is outlined below.
Water Banking Bill
What its water banking? Water banking is a system used to manage water supplies throughout the Western United States. Water right holders can forego water use and “deposit” or transfer water into the water bank, making it available for “withdrawal” or use by another. Water banks are often managed at the state level and vary from state to state to accommodate specific regional needs.
NDWR’s water banking bill would amend Nevada Revised Statutes, Chapter 533. The bill would allow for banking and leasing of water rights for irrigation use. The bill as drafted will give NDWR the authority to approve of two kinds of water banks: statutory water banks and contract water banks. Both types of water banks manage the deposit and lease of water rights and inform NDWR of banked water uses. The bill also includes reporting requirements for these water banks. While the bill recognizes some differences in the requirements of the two bank types, there is concern that the definition of each bank type is unclear in the current draft.
Another critique of the bill is its failure to limit banked water usage to a specific geographic or hydrographic area. This raises concern that a water bank could be used to transfer water to any location in the state including outside of its respective hydrographic basin.
One of the bill’s highlights is the exemption banked water rights will receive from NDWR’s “beneficial use” requirement. Under this exemption, irrigators who are not prepared to use their water can avoid forfeiture and receive the benefit of banking unused water rights. This will allow for temporary use by another until the original owner is ready to place the water to beneficial use.
Water Conservation Bill
A. Conserved Irrigation Water
NDWR’s proposed water conservation program seeks to “encourage and progressively promote” the conservation and efficient use of water. The bill encourages water conservation upgrades for irrigation. As proposed, the bill will be retroactive for water conservation projects performed in the 5 years prior to its passage as well as future conservation efforts.
Applicants for this program will submit their water conservation measure proposal describing to the state how they plan to use conserved water. It is yet unclear if the water’s usage is limited to irrigation of additional lands, or if irrigators can add conserved water to already irrigated lands to increase the water applied in a single location.
Limitations to conservation are considered in the bill. For example, irrigators within an irrigation district must obtain district approval. Additionally, of the amount of water conserved, the irrigator may only retain 75% for the proposed new use. The remaining 25% of conserved water transfers to the state. The state will then retain all conserved water until a basin exceeds perennial yield by 10%. At that point, the state may make any additional water available for new appropriation. State Agencies and political subdivisions may also hold conserved irrigation water rights for instream flow.
B. Retirement of Water Rights
The water conservation bill also proposes the creation of a state account for the purchase and retirement of water rights. NDWR would target certain over-appropriated basins in the following order:
(1) Basins with greater than 200% over-allocation and over-pumping for the past 5 consecutive years;
(2) Basins with great than 150% over-allocation; and
(3) Basins with greater than 100% over-allocation.
Under this program, water would be purchased at fair market appraised value.
Conclusion
The content, structure, and language of these bills will likely develop as NDWR receives feedback and moves through the legislative process. It is important to remember that the public has a voice in this process through lobbying groups as well as their legislators. The public can stay on top of bills, once filed with the legislature here.
Interested in more information on water related legislation? Read our blog on AB 5, AB 6, and AB 15 for the 2021 legislative session and keep an eye out for more legislature updates at www.water-law.com/blog.
