Nevada Water Law: Rights and Resources

An essential book on the development of water law in Nevada, Davenport provides a historical perspective of the development of the prior appropriation doctrine; the adjudication of water rights through the Orr Ditch, Alpine, Walker River, and Humboldt River decisions; the acquisition of a water right process and interests by permit, public interest, beneficial use, and diversions; vested rights and abandoned or forfeited rights; and more.

Exploring the little-known history behind the legal doctrine of prior appropriation--"first in time is first in right"--used to apportion water resources in the western United States, this book focuses on the important case of Wyoming v. Colorado (1922). U.S. Supreme Court Associate Justice Willis Van Devanter, a former Chief Justice of Wyoming, ruled in that state's favor, finding that prior appropriation applied across state lines--a controversial opinion influenced by cronyism. The dicta in the case, that the U.S. Government has no interest in state water allocation law, drove the balkanization of interstate water systems and resulted in the Colorado River Interstate Compact between Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada and California. The exhaustive research that has gone into this book has uncovered the secret that Associate Justice Van Devanter had waited eleven years to publish his opinion in this important, but politically self-serving, case, at last finding a moment when his senior colleagues were sufficiently absent or incapacitated to either concur or dissent. Without the knowledge of his "brethren," save his "loyal friend" Taft, and without recusal, Van Devanter unilaterally delivered his sole opinion to the Clerk for publication on the last day of the Supreme Court's October 1921 Term.

In northwestern Nevada, the waters of the Truckee, Carson, and Walker river systems are fought over by competing interests: agriculture, industry, Native Americans and newer residents, and environmentalists. Much of the conflict was caused by the Newlands Project, completed in 1915, the earliest federal water reclamation scheme. Diverting these waters destroyed vital wetlands, polluted groundwater, nearly annihilated the cui-ui and the Lahontan cutthroat trout, and threatened the existence of Pyramid Lake.

Water Politics in Northern Nevada examines the Newlands Project, its unintended consequences, and decades of litigation over the abatement of these problems and fair allocation of water. Negotiations and federal legislation brought about the Truckee River Operating Agreement in 2008. This revised edition brings the reader up to date on the implementation of the agreement, including ongoing efforts to preserve and enhance Pyramid Lake. The second edition now also includes a discussion of the Walker River basin, following a major project undertaken to address concerns about the health and viability of Walker Lake. The approaches taken to save these two desert treasures, Pyramid Lake and Walker Lake, are offered as models for resolving similar water-resource conflicts in the West.

Written by practitioners in private practice, government, and academia, each with extensive experience in the area, the book begins by looking at the rights to use water based on both state and federal law, as well as the issues involved in waters that cross state boundaries and in the shared control of water between the U.S. and Mexico and Canada. Further exploring the extent of federal environmental law impacts on water rights, the book discusses the federal agencies with major water use impacts, including the U.S. Bureau of Reclamation, the U.S. Army Corps of Engineers, and other agencies whose actions, particularly projects they operate or lands that they manage and regulate, have a considerable impact on state law water rights and the execution of water projects. Central to any discussion of the federal impact on water rights are the major environmental laws. Individual chapters cover: Endangered Species Act The Migratory Bird Treaty Act The Clean Water Act The Wilderness Act designations and the wild and scenic rivers designations The National Environmental Policy Act Finally, the book concludes by considering cases where water rights have been taken by governmental action without compensation.

Co-authored by two of Nevada’s most experienced water lawyers, this book discusses practical aspects of water rights practice in Nevada, including the authors’ experiences in working with the State Engineer, whose office oversees all applications and uses of water in the state. The book cites numerous authorities, including U.S. federal court decisions relevant to all western states water lawyers, and references water rights papers given in the Foundation’s annual and special institutes over the years. The topics addressed include:

History of the development of water rights law in Nevada, from pre-statehood to the present
Government water policy and federal and interstate aspects of Nevada water rights law
Waters and watercourses
Riparian and appropriation doctrines
Adjudication of water rights
Diffused surface waters; salvaged and developed waters; waste and return waters
Groundwater and surface water
Nevada practice and procedure