Waters of the State
46 Pages Posted: 22 Jun 2018
Date Written: June 8, 2018
The Southern Nevada Water Authority, the agency that provides Las Vegas with water, is in the process of building a massive water pipeline from the eastern-central part of Nevada to Las Vegas. This pipeline is a nearly-unprecedented feat of engineering and water distribution, and stands to move over 27 million gallons of water a year. Once completed, the pipeline will be one of the largest of its kind in human history.
If the state of Nevada authorizes a state authority to go forward with this project, it would help solve a serious water supply problem for its largest population center at the expense of diminished water for existing rural users. Can the state freely reallocate water within its borders? More fundamentally, what powers and rights does the state have over water within its territorial boundaries with respect to its private citizens, neighboring states, and federal government? Nevada, by statute, has declared that “[t]he water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public.” As the waters of Nevada belong to the public, the state can regulate water use (police power), protect water resources for the public (public trust doctrine), and go to court on behalf of the public’s interest in water (parens patriae). These sovereign powers and rights give the state considerable control and even some duties over its water, but they do not amount to ownership. The state of Nevada is a sovereign with respect to its water, but not a property owner, and it can’t allocate, dispose, or protect its water as it would a state building or vehicle.
But what if a similar proposal were floated in a different state facing water allocation challenges, such as Wyoming. Wyoming’s constitution provides: “The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.” This self-declaration of water ownership sounds like it gives the state fundamentally different rights over water. It suggests that the state has a proprietary power over all water within its territory. Perhaps the state could allocate and reallocate water to private users, denying water use at will. Further, if the water is simply state property, it can sell it off, hoard and store it for future speculative uses, or simply give it away when politically convenient. And if Wyoming owns the water within its borders, can it demand that its neighbors’ water use have no physical transboundary impacts, essentially drawing a property line through the water cycle?
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