Nevada Appropriation and Change of Use (19-NV-b)
Appropriation and Change of Use Process
19-NV-b.1 to 19-NV-b.2 – Contact the State Engineer to Initiate the Application Process; Is an Appropriation or Change of Use Permit Being Sought?
The developer should contact the State Engineer to initiate the application process. The developer should then determine whether it will appropriate water, purchase water, or lease water. Although the application process is largely the same regardless of whether the water is being appropriated, purchased, or leased, submissions for appropriation and change of use require separate application forms.
19-NV-b.3 – Application for Permit to Appropriate
As stated above, a developer may obtain a water right by submitting an application for a permit to appropriate if a water source is not fully appropriated. See NRS 533.325. The application may be accessed at the Nevada Division of Water Resources’ Forms Website. The application must be limited to one source and must include the following:
- The name and post office address of the [developer] and, if the [developer] is a corporation, the date and place of incorporation;
- The name of the source from which the appropriation is to be made;
- The amount of water which it is desired to appropriate, expressed in terms of cubic feet per second, except in an application for a permit to store water, where the amount shall be expressed in acre-feet;
- The purpose for which the application is to be made;
- A substantially accurate description of the location of the place at which the water is to be diverted from its source and, if any of such water is to be returned to the source, a description of the location of the place of return;
- A description of the proposed works;
- The estimated cost of such works;
- The estimated time required to construct the works, and the estimated time required to complete the application of the water to beneficial use; and
- The signature of the [developer] or a properly authorized agent thereof.
See NRS 533.335.
Additional application requirements for specific uses can be found in NRS 533.340. The application must also include maps, drawings, and any additional data required by the State Engineer. See NRS 533.350. In some cases, the State Engineer may require the development of a monitoring, management, and mitigation plan as a condition of appropriation. The State Engineer may allow the county from which the water is diverted to participate in an advisory capacity in the development and implementation of the plan. The State Engineer must consider participating county’s comments, analysis, or other submitted information before approving the plan. See NRS 533.353.
19-NV-b.4 - Application for Permission to Change Point of Diversion, Manner of Use and Place of Use
If the manner of use, place of use or point of diversion of the water right will be changed, the developer or the owner must file an application with the State Engineer. The application must include “such information as may be necessary to a full understanding of the proposed change, as may be required by the State Engineer.” See NRS 533.345. The application can be found on the Nevada Division of Water Resources’ Forms Website.
19-NV-b.5 to 19-NV-b.6 – Review Application Materials for Completeness
The State Engineer reviews the application for appropriation or change of use for completeness. If the application is defective, the State Engineer returns it to the developer or owner along with an explanation of the deficiency and recommendations for its correction. The application will not lose its priority of filing if it is corrected and returned within 60 days. If the application is not corrected within 60 days it will be canceled. See NRS 533.355.
19-NV-b.7 – Publish Notice of the Application
Both types of applications follow the same public notice and review procedures before the State Engineer. The State Engineer publishes public notice of the application, within 30 days, in a newspaper of general circulation printed and published in the county where the water use is sought. See NRS 533.360. The State Engineer's notice will be published for 4 consecutive weeks and will include the following information:
- That an application has been filed;
- The date of the filing;
- The name and address of the applicant;
- The name of the source from which the appropriation is to be made;
- The location of the proposed place of diversion; and
- The purpose for which the water is to be appropriated.
See NRS 533.360.
The State Engineer pays for the publication from the developer's application fee that was submitted with the original application. If the applicant decides to cancel the application for any reason, the State Engineer will return any portion of the application fee that would have otherwise been used for covering publication costs. See NRS 533.360(2).
19-NV-b.8 to 19-NV-b.9 – Will the Water be Diverted to or Used in Another County?; Notify County Commissioners of Application
If the application is for a permit which will allow water to be used in a county other than the one in which the water will be appropriated or diverted from, the State Engineer must notify the board of county commissioners of both counties. See NRS 533.363.
19-NV-b.10 – Does the Application Involve Groundwater?
The permit application process for surface water and groundwater is largely the same. However, there are a number of extra requirements that may apply under certain circumstances for applications related to groundwater.
It should be noted that permission to drill a well to extract groundwater is part of the appropriation or change of use application process. If the well will be drilled in a designated basin (see 19-NV-a.14), the developer must apply for a permit to appropriate or a permit for a change of use before sinking the well. If the well will not be drilled in a designated basin, the developer may sink the well and develop the water before applying for a permit, but must obtain a permit before water is diverted to beneficial use. See NRS 534.050. Although no well drilling permit is required, the developer must use a licensed well driller to sink the well. See NRS 534.160.
19-NV-b.11 to 19-NV-b.12 – Has a Groundwater Board Been Established for the Water Source?; Confer with Groundwater Board and Obtain Written Recommendations
The State Engineer may establish a groundwater board in areas designated as groundwater basins. If a groundwater board has been established within the designated area, the State Engineer must confer with the board and obtain its written advice and recommendations before approving an appropriation or change of use application. See NRS 534.035(7). The State Engineer and the board should attempt to resolve any disagreements. If an agreement cannot be reached, the State Engineer’s view will prevail and a written report of the disagreement should be made to the Governor. See NRS 534.035(8).
19-NV-b.13 to 19-NV-b.14 – Does the Application Involve an Inter-Basin Groundwater Transfer of more than 250 Acre Feet?; Conduct Inventory of the Basin from which the Water will be Exported
If the application involves a transfer of more than 250 acre feet of groundwater from a basin which has not been inventoried or surveyed pursuant to NRS 532.165 or NRS 533.368, the State Engineer must conduct an inventory before approving the application, the cost of which is paid by the developer. The inventory must include:
- The total amount of surface water and groundwater appropriated in accordance with a decreed, certified or permitted right;
- An estimate of the amount and location of all surface water and groundwater that is available for appropriation in the basin; and
- The name of each owner of record set forth in the records of the Office of the State Engineer for each decreed, certified or permitted right in the basin.
See NRS 533.364.
19-NV-b.15 to 19-NV-b.16 – Conduct Required Studies
The State Engineer may require hydrological, environmental, or other studies to be conducted before approving an application. The party conducting the studies must be approved by the State Engineer and the developer must pay for the costs. The State Engineer must consult with the developer and the relevant counties regarding the scope and progress of the studies. Once the studies are complete, the State Engineer must send copies of the studies to the parties listed in NRS 533.368(4)(b). See in NRS 533.368.
19-NV-b.17 to 19-NV-b.19 – Consider Protests; Hold Public Hearing (Optional)
Interested parties may file a written protest against the granting of the application. The protest must be filed with the State Engineer within 30 days of the last publication of the notice of application. The protest must include an affidavit verifying the grounds upon which the protest is based. See NRS 533.365(1). The State Engineer must notify the developer when a protest is filed. See NRS 533.365(3).
The State Engineer must consider the protest and may, at his or her discretion, hold a hearing to develop a full understanding of the rights involved. See NRS 533.365(4). Regulations governing hearing procedures related to appropriation of public waters can be found in NAC 533. The State Engineer may request any additional information related to the protest or application that he or she deems necessary. See NRS 533.365(5). If a hearing is held, the State Engineer must render a decision on the application within 240 day after the later of:
- The date all transcripts of the hearing become available to the State Engineer; or
- The date specified by the State Engineer for the filing of any additional information, evidence, studies or compilations requested by the State Engineer. The State Engineer may, for good cause shown, extend any applicable period.
See NRS 533.365(6).
19-NV-b.20 to 19-NV-b.22 – Does the State Engineer Approve the Permit?; Appeal to District Court; Appropriation or Change of Use Permit
The State Engineer should approve an application if:
- The application is submitted in proper form;
- The application contemplates the application of water to beneficial use;
- The application is accompanied by the appropriated fee;
- The proposed use or change, if within an irrigation district, does not adversely affect the cost of water for other holders of water rights in the district or lessen the efficiency of the district in its delivery or use of water; and
- The developer provides proof satisfactory to the State Engineer of the developer’s:
- Intention in good faith to construct any work necessary to apply the water to the intended beneficial use with reasonable diligence; and
- Financial ability and reasonable expectation actually to construct the work and apply the water to the intended beneficial use with reasonable diligence.
See NRS 533.370(1).
Alternatively, the State Engineer should reject the application if:
- There is no unappropriated water in the source supply (if the application is for the appropriation of water);
- The proposed use or change conflicts with existing rights or protectable interests in existing domestic wells, as set forth in NRS 533.024; or
- The proposed use, change, or appropriation threatens to prove detrimental to the public interests.
See NRS 533.370(2).
In addition to the criteria set forth above, the State Engineer must also consider the criteria in NRS 533.370(3) when considering an application for inter basin transfers of groundwater.
Generally, the State Engineer must approve or reject the application within two years after the final date for filing a protest, unless:
- A hearing was held by the State Engineer (see NRS 533.365); or
- The application is for a change of the point of diversion and the new point of diversion will be on the same or contiguous property and owned by the same developer, in which case the State Engineer must approve or reject the application within six months after the final date for filing a protest (see NRS 533.370(6)).
The State Engineer may postpone the decision if:
- The developer provides written authorization to do so;
- The application is protested;
- The application is made for municipal purposes;
- The application is for an area where studies of water supplies have been determined to be necessary by the State Engineer pursuant to NRS 533.368;
- Court actions or adjudications are pending, which may affect the outcome of the application;
- The application is for an area in which adjudication of vested water rights is deemed necessary by the State Engineer;
- The application is for a permit to change a vested water right in a basin where vested water rights have not been adjudicated;
- Authorized entry to any land needed to use the water for which the application is submitted is required from a governmental agency; and
- The State Engineer has required additional information pursuant to NRS 533.375.
See NRS 533.370(4).
If a hearing is held, the State Engineer’s decision must be in writing and include findings of fact, conclusions of law and a statement of the underlying facts supporting the findings of fact. The written decision may take the form of a transcription of an oral ruling. The approval or rejection of an application must be endorsed on a copy of the original application. A record of the endorsement must be filed with the State Engineer and a copy of the application so endorsed must be returned to the developer. If the application is approved, the developer may begin construction of the works necessary to put the water to beneficial use. See NRS 533.370(8).
If the State Engineer rejects the application, the developer or owner may appeal the State Engineer’s decision to the appropriate district court within 30 days. Procedures for filing an appeal with the district court can be found in NRS 533.450.
19-NV-b.23 – Construct Works to Divert Water and Put Water to Beneficial Use
Once the State Engineer issues the permit, the developer or owner must complete the construction of work to divert water and put the water to beneficial use within the timelines specified by the State Engineer. The timeline established by the State Engineer for the completion of construction must be within five years of the date of the approval of the permit and the timeline for putting the water to beneficial use must be within 10 years of the approval. See NRS 533.380. Proof of beneficial use and proof of completion of work must be filed in order to perfect the permit. Failure to timely file the proofs will result in the cancellation of the permit. See NRS 533.390; NRS 533.400; NRS 533.410.
19-NV-b.24 to 19-NV-b.26 – Application for Extension of Time
If the developer or owner is, in good faith, pursuing the perfection of the application with proof of its reasonable diligence, the State Engineer may grant an extension for the filing of proof of beneficial use or proof of completion of construction. See NRS 533.380(3). An Application for Extension of Time must be filed within 30 days following notice by the State Engineer's office that the developer or owner has not completed the applicable proof form. The application for extension must also be accompanied by proof and evidence of the reasonable diligence with which the developer or owner is pursuing the perfection of the application.
The State Engineer will not grant an extension of time unless he determines from proof submitted in the application that the developer is proceeding in good faith and with reasonable diligence to perfect the application (NRS 533.380.3). A single extension is limited to five years for a municipal or quasi-municipal use for a public water system (defined in NRS 445A.235) and to one year for any other extension applications.
19-NV-b.27 - File Proofs within Time Period Set by the State Engineer
The Proof of Completion of Work statement must be filed on or before the date set in the permit. The proof should be verified by the affidavit of the developer or owner or the developer’s or owner’s attorney and include a detailed description of the work actually constructed. If any person fails to file with the State Engineer the required proof of completion of work, the State Engineer will advise the permit holder, by registered certified mail, that they have 30 days to file the required affidavit.
The Proof of Beneficial Use Form must also be filed on or before the date set in the permit. The Nevada Division of Water Resources does provide Proof of Application of Water to Beneficial Use Instructions and the developer or owner should contact NWDR with any questions regarding the beneficial use proof. If any person fails to file with the State Engineer the required proof of beneficial use, the State Engineer will advise the permit holder, by registered certified mail, that they have 30 days to file the required proof.
The State Engineer will cancel any permit holder's permit not complying with the filing deadlines required in their individual permit. However, the State Engineer may, within the 30 day notice of deficiency period, grant for good cause shown an extension of either the proof of beneficial use, or proof of completion of work.
19-NV-b.28 – Certificate of Appropriation
The State Engineer issues a Certificate of Appropriation after the developer has filed satisfactory proofs regarding completion of construction and beneficial use. Once the certificate is issued, the water right is perfected. The certificate should include the following information:
- The name and post office address of each holder of the permit;
- The date, source, purpose and amount of appropriation;
- If for irrigation, a description of the irrigated lands by legal subdivisions, when possible, to which the water is appurtenant; and
- The number of the permit under which the certificate is issued.
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