By: Sarah Collins, J.D., LL.M.

Nevada’s approach to water law is the doctrine of prior appropriation. This is framed within the structure that water belongs to the public. As the state developed, it gradually enacted legislation on water rights. Thus, water rights are acquired through adjudication or permitting. Adjudication establishes a vested right prior to the water law’s enactment. To satisfy the elements for this method, one must show priority and beneficial use. These include “commercial, industrial, irrigation, mining, municipal, power generation, recreation, stock watering, or storage” uses.[i] The next method is by applying to the state for a water right, then perfecting that right by putting it towards beneficial use. This architecture creates a hierarchy of superior/subordinate water rights holders.

NRS title 48, chapter 532-544 governs water, including interstate water (48-538), dams (48-535), navigable water (48-537), irrigation (48-539), planning and development (48-540 et seq), flooding (48-543), and weather modification (48-544). (see title 48[ii]) Permitting for a water right is through the Nevada Division of Water Resources and the state engineers (see flow chart for application process[iii]).

To obtain a permit, the state engineer requires mapping on the water and proof of beneficial use. Mapping proofs detail the proposed diversion point and place of use. If the use is for non-consumption, it must also include the point of return.[iv]  There are some exceptions, including temporary use exceptions.[v]

Nevada has come up with modifications of beneficial use.  When withdrawals exceed perennial yields, time extensions are provided to avoid forfeiture of rights. This maintains priority rights and conservation efforts.[vi] The state conjunctively manages surface and groundwater (2017 SB-47), accurate accounting of water rights (SB 270), and adjudication (SB 51). There has been a lot of over allocation of water, and SB 140 requires that 10% of groundwater may not be available for any use.

Nevada’s mining industry has contributed to problems of water quality. Additionally, we have high levels of arsenic, lead, cadmium, and uranium in our water systems. Some water systems are held by superfunds in perpetuity because of mining and toxic tailings.[vii] Thus, water resource management needs to cross a lot of aisles to curtail quality issues that are compounded by high-polluting industries in addition to regulating water quantity.

The application of conservation efforts seems to have glaring problems. If you stay abreast on natural resource issues across Nevada, the litigation between Nevada tribes, ranchers, and a lithium mining project was, and will likely continue to be high conflict matter. Relative to water law, the lithium company since purchased the ranchers senior water rights.[viii] However, if that senior water right is not actually sufficient for the water needed in the given year, Nevada’s new “conservation” effort allows the water right holder to essentially hoard water allocation in the abstract and use it (in order of their purchased seniority) at a future date using the time extensions to avoid forfeiture of rights. Ergo, the new structure can look and feel like a conservation effort while the substance of the new structure allows large water users to purchase less senior water rights in the long run. The structure lacks any real backbone securing water conservation. The old “use it or lose it” has been refashioned so that senior water rights holders do not lose their seniority if they do not use their allotment for beneficial use during their allotted time of the year. This enables large scale water users to buy a fraction of the senior water rights they need for their operation, then hoard the right it for the necessary years until their operation is ready for use.

The tone and pressure to greenlight these kinds of operations falls to the State Engineer, whose manages watersheds. Our State Engineer, Adam Sullivan, was fired a few months ago following a draft order to reduce groundwater pumping in the Humbolt River Basin.[ix] This illustrates the dysfunctional power dynamic between the Governor, State Engineer and the mining industry.[x]

This power dynamic has bled into relationships Nevada has with Tribal nations it shares boundaries with. Tribal reserved water rights are entirely separate rights structures that a state cannot eliminate or abrogate. Tribal reserved water rights are agreements between the nation state of the indigenous tribe and the United States of America. The Walker River Tribe and Walker River are good examples of Nevada’s continued dysfunction in understanding and upholding its ‘lessor role’ in the governing architecture.[xi] The federal government has routinely found that Nevada must remedy its system where upstream water users have diverted water from the river system.

Essentially, the state has enlisted a senior water rights system that continues to violate tribal reserved water rights. The structure has overallocated so many water rights holders that the overconsumption conflicts with the public trust doctrine. Settlements, decrees and oversight continue to attempt to remedy this. And while the State Engineer arguably has the most crucial role of overseeing a functional water permitting system, it also seems that the pressure of the mining industry is a major problem in politicking.  This continues to secure a power imbalance.

These kinds of social engineering problems are parasitic because they syphon off finite resources in a way that proliferates the imbalance. Water law doesn’t have to be this way. For example, since we are revisiting and refashioning prior appropriate anyway, we could have a system that avoids forfeiture of perfected rights while losing some portion of the unused water allocation. Instead of firing the state engineer, we could hire more engineers to create a functional team and insulate their job security from the mining industry. It’s really a matter of creating a shared system that balances these competing interests. The first step is moving from a system of aspirational tribal reserved rights to enforced and actively exercised tribal water rights across Nevada. The second is refashioning the extension permits to reduce unused water allocations for future use while maintaining the seniority right and allocation for future years. Third is likely creating a team of state engineers, and providing their removal may only be for cause. These kinds of initial steps would build a system of stability and integrity.

Sarah Collins is a tribal attorney in Paiute Shoshone courts across the Mohave and Great Basin. She earned her J.D. from Mitchell Hamline School of Law, and LL.M. in Indigenous Peoples’ Law and Policy from the University of Arizona. She is an affiliated professor of law at Mitchell Hamline School of Law, teaching criminal law, contracts, civil dispute resolution, business organizations, and is the CLE Subcommittee Co-Chair of the Nevada Bar’s Tribal Law Section.

[i]Water Policy and Issues in Nevada: an Overview. (Dec. 2019) available at:  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.leg.state.nv.us/Division/Research/Documents/water-overview-2019.pdf

[ii] https://www.leg.state.nv.us/nrs/

[iii] chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://water.nv.gov/uploads/water-rights-docs/Permitting_Process_and_Timeline_Final.pdf

[iv] Guidelines and Rules for the Preparation of Water Right Maps. State of Nevada. (Oct 25). Available at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://water.nv.gov/uploads/library-docs/2025_Water_Right_Map_Guidelines.pdf

[v] (Nevada has a 2 acre feet per year threshold – about 651,702 gallons per year, that also requires metering (NRS 48-534.180).

[vi] It operates like a tolling structure—giving the rights user more time to put the water to beneficial use and thereby conserving the natural resource over time without frustrating the hierarchy. (AB-209)

[vii] Some are naturally occurring, but the man-made problems continue to compound water quality problems. Because these systems are interconnected and continue to compound, our water quality is affected. About 397.7 million pounds of toxic material was released into our environment in Nevada – the worst of any state- with Newmont (230 million) and Barrick (75 million). See https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory.

[viii] Amy Alonzo, (Aug 15, 2025). Settlement reached in messy Thacker Pass water dispute. The Nevada Independent. https://thenevadaindependent.com/article/settlement-reached-in-messy-thacker-pass-water-dispute

[ix] Tabitha Mueller, (April 12^th, 2026) https://www.documentcloud.org/documents/26383683-hrbwa-draft-curtailment-order-12-12-25/#document/p1

[x] Tabitha Mueller, April 12. 2026, Mining Industry privately griped to Lombardo about top Nevada water regulator before firing. https://thenevadaindependent.com/article/mining-industry-privately-griped-to-lombardo-about-top-nevada-water-regulator-before-firing

[xi] Mono Lake Committee, June 3, 2026. “[Walker Lake] was once home to a thriving fishery of Lahontan cutthroat trout and tui chub, which was extirpated by upstream water diversions that caused Walker Lake to drop 181 vertical feet between 1882 and 2016.” https://www.monolake.org/today/delay-denied-in-walker-lake-nevada-public-trust-litigation/