Water Pipe, Running from Central Arizona Project to Pleasant Valley Development, Phoenix, Arizona (2009). Photograph by Peter Arnold, originally published on Design Observer as part of "Drylands: Water and the West," an essay by Peter and Hadley Arnold of the Arid Lands Institute, whose work focuses on the challenge of drylands design.
Aridity is the defining condition of large parts of the American West. As the first white explorer of the Colorado River, John Wesley Powell, presciently warned the attendees of a 1893 irrigation congress, there is simply not enough water to go around:
I tell you, gentlemen, you are piling up a heritage of conflict and litigation over water rights, for there is not sufficient water to supply these lands.
However, Americans—or, at least, those in positions of power—were unwilling to forego the nation's "Manifest Destiny," and, over the subsequent century and beyond, through to the present day, the arid regions of the West have been "reclaimed" through a series of dams, diversions, and irrigation projects, while the region's limited water has proved endless only in terms of its ability to generate legal fees.
Powell's own prescription, presented in his 1878 Report on the Lands of the Arid Region of the United States, proposed organizing the government of the region by watershed, rather than state, with citizens of each "drainage district" responsible for administering the resource as a communal property.
John Wesley Powell’s 1890 map of the "Arid Region of the United States, showing Drainage Districts,” published in the Eleventh Annual Report of the U.S. Geological Survey. If Congress had followed Powell's recommendations, the governance units of the West would have followed these hydrological boundaries instead of state lines. Via the Aqueous Advisor's blog, where a larger PDF version is available.
Instead, the application of a structure of individual property ownership and states' rights onto a dynamic hydrological system has led to a complex, and seemingly unsustainable, system of water management.
Nevada, home of Venue's parent institution, the Nevada Museum of Art, provides a particularly fascinating series of examples of the ways in which bureaucratic fictions of water rights and allocations articulate a physical reality of endangered Lahontan cutthroat fisheries, controversial inter-basin transfer pipes, and dangerously low reservoirs.
The white "bathtub ring" visible in this panorama of Lake Mead (taken by Kumar Appaiah) shows its lowered level. According to some estimates, the reservoir could drop below the minimum power pool elevation of 1,050 feet as early as 2017.
Curious to understand what the West's water looks like from a legal perspective, as well as to learn why Reno's Truckee River is the most litigated body of water in America, Venue stopped by the office of attorney Ross de Lipkau, author of The Nevada Law of Water Rights, for a quick chat.
Our conversation sheds light on the origins of Western water law in mining claims, the ebb and flow of the water rights market, and alternative water management systems—a vital context for understanding the region's hydrological history, as well as for re-imagining its future.
Geoff Manaugh: To begin with, I’m curious how you define the users or the constituency of a body of water—and, along those lines, how a body of water itself is defined.
Ross de Lipkau: Today, the jurisdiction of Nevada water is handled strictly by the Nevada State Engineer. The State Engineer has jurisdiction of all waters in Nevada, with the exception being the Colorado River, which comes through Nevada at the southern tip.
Nevada’s water law was first enacted in 1905. Prior to that time, you did it just like the old miners did. When Nevada was settled, homesteaders were basically trespassers upon federal lands who would simply divert water from a creek to irrigate the land they’d taken. In 1866, Congress came out with probably the most important land law of its time. What that law did was affirm and, in essence, bless the activities that had taken place previously. That meant that the mining claims were fine, and the ditches dug by the farmers across federal lands to their irrigated lands were fine, and, with that blessing, that behavior continued.
In Nevada, you simply diverted water from a creek or source and irrigated your lands, no questions asked.
Hydraulic mining near French Corral, Nevada County (c.1866), Lawrence & Houseworth (publisher), Library of Congress.
There were some cases prior to 1905, but they also affirmed prior appropriation. In 1905, Nevada water law came into effect, and what it says, in part, is that all those rights placed to beneficial use prior to the adoption of the water law are fine, but that after 1905, all water rights have to be filed and approved by the Nevada State Engineer.
The result is that we have what I call a dual system: the permitted water rights from post-1905, and, prior to that, what are called vested water rights.
Nicola Twilley: Are the vested water rights all recorded somewhere?
de Lipkau: They’re recorded in the State Engineer’s Office.
Twilley: So people who had diverted water for their own use prior to 1905 had to visit the Engineer, to make sure it was written down.
de Lipkau: Correct. We frequently go to the State Engineer’s Office in Carson City to check his official records. They’re on the computer, but we’d rather see the hard copies when it’s important.
Twilley: Do people ever come along with a water right that they say is vested but didn’t get written down at the time?
de Lipkau: Yes, that happens all the time. In that case, you file a claim of vested right. Then the State Engineer may have a hearing; it may end up in court. Two or more people arguing over and claiming the same water source is a very frequent problem in Nevada.
Manaugh: We’re interested in talking about some of the landmark cases in water rights law. For example, I’m thinking about the ongoing discussion about diverting water from northern Nevada down to the south to help out with Las Vegas and Lake Mead—is that something you’re involved with?
de Lipkau: I used to be involved. What is happening in Las Vegas is a result of that city’s huge growth spurt. Nevada was originally allocated 300,000 acre-feet from the Colorado River in the United States Supreme Court decision that adjudicated the waters of the Colorado between the different states. In that decision, the Lower Basin states received 7.5 million acre-feet and the Upper Basin received the same, which is fine except that there aren’t 14 million acre-feet flowing in the river. The adjudication was based on 1920 records and those just aren’t accurate to today’s reality.
A graph of historical and projected supply and demand on the waters of the Colorado River Basin published by the U.S. Bureau of Reclamation in December 2012.
In any case, Nevada receives 300,000 acre-feet from the Colorado River, plus ground water in the Las Vegas basin, which is in the magnitude of 35,000 acre-feet. The water management team of Las Vegas, which I think a great deal of, said that, because of this growth spurt that took place in the late 80s and early 90s, we need more water. So the water district filed under state law—enacted in 1905, as I mentioned, and substantially amended in 1913—a total of 126 applications to appropriate water in three different counties, and in different groundwater basins. There are 254 groundwater basins in Nevada, and they filed in something like twenty of them. They’ve subsequently dropped some of the applications because they were perhaps leading to an environmental situation, or they involved a federal wildlife preserve, or things like that.
Map showing the South Nevada Water Authority proposed pipeline, pumping water from northern Nevada groundwater basins to supply Las Vegas. The Governor of Utah rejected the proposal in April 2013, casting a yet another question mark over the entire project. Map via KCSG TV.
At this point, the State Engineer has granted a series of applications in White Pine County, which is several hundred miles north of Las Vegas. Las Vegas is now in the process of permitting the right of way to bring the pipeline to the city, to commingle the waters with the Colorado River waters and their groundwater sources. The county won’t get any return flow.
Twilley: So some of this water from a different basin will end up joining the Colorado?
de Lipkau: Yes, a certain percentage of the water delivered by the water district goes back into the river via the sanitary waste system. The state of Nevada gets credit for that. So, for example, if they pump 100,000 acre-feet out in any given year, a certain percent—I think it’s fifty-eight—of that goes back and can be repumped. So the 300,000 acre-feet expands, and is actually 480,000 acre feet.
Twilley: I see: the better you are at returning it, the more you can pump.
de Lipkau: Correct. The less outdoor use, the better. That’s why, if you’ve been to Las Vegas, you’ll know there are brand new and even twenty-year-old subdivisions that have no lawns. They call it native landscaping. Lots of rocks, a few bushes and a couple of trees—and that’s it.
In those cases, virtually all of the water is used in the house, and virtually all of the water that is used in the house returns through the sanitary system.
Xeriscaping on the campus of the University of Las Vegas, Nevada; photo by Andrew Alden.
Manaugh: What’s on the horizon? Are there any larger legislative changes that might affect water rights, or any major new developments in Nevada that might cause water rights conflicts?
de Lipkau: I would say no. What happens, for the most part, for new developments, is that you have to renegotiate existing water rights. In Reno, for example, the State Engineer stopped granting groundwater permits in 1975. In order to get water for development, you have to transfer existing rights to a new use. So, if someone wanted to built a 100-unit condominium on that vacant lot out there, they would have to acquire and buy enough water to serve that size of condo, and then they would have to dedicate and give that volume of water to the water purveyor, which is the local water company. That’s how they do it here.
Twilley: Where would they buy that water from?
de Lipkau: They’d likely have to buy it from a farmer. There’s an open market for water rights.
Twilley: Any farmer?
de Lipkau: It’s got to be in the same valley. It can be a pretty competitive market. During the heyday, in 2004—and this will shock you—an acre-foot would go for upwards of $25,000. It could go as high, in an extreme case, as $50,000.
Twilley: The farmers were sitting on a goldmine.
Irrigated farmland in Nevada; photo via a realtor who specializes in transactions involving ranch water rights.
de Lipkau: Yes, they were. Now, it’s more like $6,000, maybe even $5,000. It’s gone down by eighty-five to ninety percent. There’s no market because there’s no development. There are still some mining companies that have had to buy farms to transfer the water to their mining operations, but the market has gone way down.
Now, to give you some context, one acre-foot would probably serve two houses annually. I have a water meter, so I know that I use about half an acre-foot a year. Actually, during the winter, the water meter reads about one hundred gallons a day with just my wife and I—and I have no idea where that goes. During the summer, when you’re outdoors watering—and I don’t have a big lawn or anything—you use a heck of a lot more.
The basic premise in Nevada water law is when the State Engineer sees an application, he’s required to deny it if one of three things is true. He has to deny it if there’s no un-appropriated water in the proposed source supplying the water. In this watershed—Truckee Meadows—all the groundwater is already taken, so he will deny it on that ground. That’s why new development relies on transfers. The other ground for denial is based on whether the granting of the application will tend to impair the value of the existing rights. What that means is that you can’t give permission for a well too close to another well. “Too close” is an engineering call by the State Engineer based on hydrology and the cone of depression. When a well pumps water, it creates a cone of depression as the water above it drains to the pump. If you have too many wells too close together, these cones of depression will overlap and the water level will go down.
The third ground for denial is whether the granting of the application would tend to be detrimental to the public interest, which is pretty much undefined. That third reason, in itself, is very, very seldom used as the sole grounds to deny an application—I can think of maybe three examples in this state.
A rain chart of the United States showing areas with more than twenty inches of rain per year (the minimum required for non-irrigated agricultre) in varying shades of grey, and those with less than twenty in white. From John Wesley Powell's 1878 Report on the Lands of the Arid Region of the United States. Via the University of Alabama.
Twilley: Are there any changes you would like to see in Nevada’s water law?
de Lipkau: I’d like to undo some statutes. The legislature sometimes attempts to add to the water law without an understanding of what the effect is. These new statutes look pretty innocuous on their face, but they are a huge detriment to the intended water user. For example, there’s one new statute that says when you have a trans-basin diversion, meaning that you are planning to move water from one basin to the other, if the amount being moved is more than 250 acre-feet, you have to prepare—or pay for the State Engineer to prepare—an inventory of the basin from which the water comes.
It’s kind of a make-work deal. One little tiny town in Nevada got caught up in that statute, and they’re dead in the water. The State Engineer doesn’t have the staff to go out and prepare this study. It’s happened to mining companies, but they have the $100,000 or $250,000 to prepare this inventory that nobody looks at. It’s supposed to be a snapshot in time, but if the snapshot in time is from the first week in June, and the springs are flowing, it bears no relation if you do it during the last week in January.
Twilley: What was the motivation behind that legislation?
de Lipkau: It was political. I sarcastically say sometimes that the legislature wants to make water when water is not there, because their constituents or their corporate supporters are complaining that the State Engineer won’t grant any permits. Special legislation is sometimes made in an attempt to make him have to grant permits. Or, if there’s a project that people want stopped, like the Las Vegas Water Importation Program, then it’s a case of throwing up as many legislative roadblocks as we can.
That’s the kind of stuff I’d like to see eliminated. I’d like to get back to what it was thirty years ago. It would be a lot less political, which would streamline the process and make it easier for the applicant.
Then there’s another statute that I personally don’t care for, which is that’s anybody can file a protest to any application. For example, I can personally file a protest against the next application filed in Elko County, which is three hundred miles away, just because.
Twilley: So any Nevadan can protest any application made in the state?
de Lipkau: No, no—anyone can protest. You can file. It doesn’t make any sense. In my mind, the only reason to protest that application in Elko would be if it’s going to hurt my water right. But it doesn’t have to hurt my water right—I can protest it if I just don’t like it. If I don’t like farming or I don’t like mining or I don’t like development, I can protest, and that will bog up everything for six months or a couple years, and then I can appeal it to the district court, too.
Manaugh: So, in your mind, a protest should only be filed by people who actually have water rights in the same basin?
de Lipkau: Correct. A protest should be filed by someone who has a legitimate standing, to put it in legal terminology.
A detail showing Reno from John Wesley Powell’s 1890 map of the "Arid Region of the United States, showing Drainage Districts,” published in the Eleventh Annual Report of the U.S. Geological Survey. Via the Aqueous Advisor's blog, where a larger PDF version is available.
Manaugh: Given the scarcity of water in the American West in general, and thus the potential for future conflict, we’d love to get your thoughts on John Wesley Powell’s proposal for governing the American West according to drainage basins. Do you think that Powell’s proposal has merit?
de Lipkau: I do. Aligning the boundaries of governance units—say, states—with hydrologic units makes a great deal of sense to facilitate coherent management policies. Having a state line go through the middle of an agricultural area that is irrigated from a single drainage basin is a recipe for dispute.
As an example, take the border between California and Nevada, which was finally decreed by the Supreme Court in 1980 after more than a hundred years of conflict, sometimes physical as well as legal. Much of the ongoing contention over the management of Lake Tahoe and the source of the Truckee River could have been avoided if that boundary had followed the Sierra crest line rather than following the 120th meridian right through the middle of Lake Tahoe, as the territory—then State—of Nevada originally proposed.
So I think Powell’s proposal has a great deal of merit—although it might well have resulted in less work for me.
The congressional acts that created the Nevada Territory in 1861, and then the State of Nevada in 1864, provided for a hydrological western boundary at the Sierra Nevada crest line—if the California state legislature would agree to change its existing boundary from 120 degrees longitude. California declined, leading to a variety of interstate water rights issues that persist to this day. Maps via this Tahoe Nuggets article on the California-Nevada border war, originally published in Professional Surveyor, January 2002.
Twilley: Finally, I’m curious about something I was told at Venue’s launch party, which is that Reno’s Truckee River is the most litigated river in America. Is that true? And, if so, why?
de Lipkau: I’d say the answer is yes. An adjudication is the judicial means of determining the relative rights to all the waters of a stream or river system. The Truckee River Adjudication Suit was first filed by the United States in the teens. It was a federal action because the Truckee is an interstate stream, meaning it starts in California, at Lake Tahoe, and it ends in Nevada, at Pyramid Lake.
I’ll give you the short version. In 1926, an injunction was granted and the parties followed the injunction and were bound by the injunction until 1944, when the final decision or decree was issued by the United States Federal District Court. The decree allocated all of the waters of the Truckee River to the farmers in the Truckee Meadows valley, to the Sierra Pacific Power Company, which supplied Reno and Sparks, and to irrigate the Newlands Project.
That was the country’s first reclamation project, and it came out of a piece of legislation authored by Senator Newlands in 1902, which authorized the construction of Derby Dam on the Truckee. The dam split the waters at that point, with a portion going to irrigate the farmland near Fallon, under the control of the Truckee Carson Irrigation District, and the balance going to Pyramid Lake.
Derby Dam, twenty miles east of Reno on the Truckee River, was the first project of the brand new U.S. Reclamation Service (today’s Bureau of Reclamation), organized under the Reclamation Act of 1902, which committed the Federal Government to construct the hydraulic infrastructure necessary to irrigate the West. Photo via UNR.
In the 1944 decree, which is called the Orr Ditch Decree, the Pyramid Lake tribe was given approximately 30,000 acres’ worth of water. The Pyramid Lake Reservation was set aside by the president in 1859. Therefore, they had the highest priority on the system.
What has happened over the years is that the tribe wants more water. They want the waters of Pyramid Lake maintained as a fishery, and there has been constant litigation since about 1968. It eventually went all the way to the United States Supreme Court in U.S.A. vs. Nevada. In 1983, the Supreme Court said that the Indians were out of luck and that their rights were fully determined in the Orr Ditch Decree—the litigation that was final in 1944. Ever since then, the tribe has been bringing various actions to put more water in Pyramid Lake and lessen the diversion of water by others, mostly the Truckee Carson Irrigation District.
I suppose the end result that the tribe wants is that the diversion of the Derby Dam be shut down, and all the waters of the Truckee River that are not used upstream left to flow into Pyramid Lake for a fishery.
Twilley: When the original adjudication was determined, why wasn’t the fishery allocated an adequate supply?
de Lipkau: Because, at that time, the fishery was not important. In 1902, in the era of the Newlands Act, farming and opening up the west to agriculture was the primary concern of Congress. At that point, more than one hundred years ago, converting sagebrush lands to productive farmlands was considered to be in the public interest.
Now, people argue that it’s not—that farming is not so good and that the water is better used for environmental and fishery purposes. Pyramid Lake is the end or terminus of the Truckee River. It’s a dead lake, in other words, and the salinity is rising because there’s no outlet and there’s no way to freshen it up. So, through evaporation, water escapes into the atmosphere, and the solids—the salts—stay in there.
Timothy O’Sullivan, "Rock Formations, Pyramid Lake, Nevada," 1867. Collection of the Nevada Museum of Art, The Altered Landscape, Carol Franc Buck Collection.
Mark Klett, "Rephotographic Survey Project, Pyramid Isle, Pyramid Lake, Nevada (Site #79-33)," 1979/1984–85. Collection of the Nevada Museum of Art, The Altered Landscape, Carol Franc Buck Collection.
Twilley: When you go through this adjudication process and determine the relative rights of different users to water, is the law written in such a way as to account for the fact that people’s priorities will shift over time?
de Lipkau: As far as changes in uses and their perceived benefits over time, the Truckee River Decree expressly authorizes changes pursuant to law. The language is there to say that the existing law and the existing water right is always subject to change in conformity to future legal determination, and that is true of any legitimate water legislation in Nevada.
Priority, on the other hand, does not shift. The water law follows the mining law. We all know how priority works in mining from our eighth grade civics classes on the California Gold Rush in the 1840s. We learned then, and I relearned much later, that the first person to stake a claim has priority on that mineral resource.
The first water rights case came out of California in 1855. It had to do with miners diverting water out of small creeks to wash the gold out of the rock in sluice boxes. The California Supreme Court said, with no legal authority, that the way to make it fair and to make it work was priority appropriation. That means that the first person who diverted water from the creek had the first priority. The second person who diverted water from the creek had the second priority, and so on. In times of shortage, the last priority cuts off completely, then the next to last, and so on, till the first appropriator—the earliest priority—gets it all. And priority doesn’t change.
Nevada came along in 1866 and affirmed that decision, and so priority of appropriation is also the basis of Nevada’s water law.
Now, a system in which all the users are forced to cut back by a certain percentage is called correlative rights. But that’s not the case here; with the Truckee, it’s strict priority.