State Roles: Water Administration and Allocation
In the West, water administration and usage follow the principles of prior appropriation—often referred to as “first in time, first in right”—and beneficial use. Several resources are provided at the end of this report on the evolution of Western water law and specific policy approaches.
The doctrine of prior appropriation—often referred to as “first in time, first in right”—guides water administration in each of the six states highlighted in this report.
Three Basic Tenets of Nevada Water Law
- THE RULE OF PRIORITY
"First in time, first in right."
- THE NEED TO MAINTAIN BENEFICIAL USE
"Use it or lose it."
- PUBLIC OWNERSHIP
"The water of all sources of water supply within the boundaries of the State whether above or beneath the surface of th ground, belongs to the public." (NRS 533.025)
Surface Water Administration
State policy considerations include the staffing and organization of state agencies, administration of instream flow programs and compliance with interstate water compacts. Increasingly, policies are under scrutiny and need to adapt to changing weather conditions such as drought, flooding and wildfires. Compliance with interstate compacts is another key aspect of state agency authority, responsibility and programs.
Arizona and North Dakota have each created a department of water resources and reconfigured the role of state engineer. These departments include multiple programs to assist in the management of water resources and allocation of water supply.
- Arizona: Legislation in 1980 gave the duties of state water engineer to the state Department of Water Resources. As of 2022, the department has 24 programs protecting the state’s water supplies, including conservation, dam safety, permitting and wells, recharge, rural programs, surface water and others.
- North Dakota: House Bill 1353 in 2021 reorganized the State Water Commission and Office of the State Engineer as the newly named Department of Water Resources. The department director is now a governor appointee and cabinet member.
In Colorado and Nevada, the state engineer oversees a division of water resources, which is part of a larger department.
- Nevada: The Division of Water Resources is part of the Department of Conservation and Natural Resources and includes programs or sections for engineering, planning, dam safety, flood, drilling regulations, adjudications, water rights, hydrology and a branch office for Las Vegas.
- Colorado: The Division of Water Resources is part of the Department of Natural Resources.
The organization of state agency roles in New Mexico and Wyoming include the state engineer’s office along with other entities responsible for water resource management:
- New Mexico: The Office of the State Engineer oversees water rights allocation and administration. The state Interstate Stream Commission implements the Strategic Water Reserve, which the Legislature created in 2005.
- Wyoming: The State Board of Control, comprising the state engineer and the superintendents for each state water division, has jurisdiction over adjudication, administration and amendment of water rights. The State Engineer’s Office regulates and administers water resources. The Water Development Office oversees the planning, selection, financing, construction, acquisition and operation of projects to develop and preserve the state’s water resources.
As part of surface water administration, Western states have considered the environmental benefits of these water systems and how to protect their uses. One policy option is using instream flow rights and associated programs to protect the levels in rivers, streams or other bodies of water. The focus of these programs varies by state. Wyoming law allows the state to hold instream flow water rights for the benefit of fish. States continue to develop and refine these policies (Wyo. Stat. §41-3-1001 – 41-3-1014). For example, Colorado enacted two bills in 2020:
- HB 1157: Expands the Water Conservation Board’s ability to use loaned water for instream flows to improve the natural environment.
- HB 1037: Concerns the Water Conservation Board’s authority to augment stream flows with acquired water rights that have been previously decreed for augmentation use; authorizes the board to augment stream flows to preserve or improve the natural environment.
Multiple legal analyses describe the history of these programs and how laws have been interpreted or amended. See the additional resources section more information.
State agencies responsible for surface water rights administration often also handle groundwater management. For example, the Arizona Department of Water Resources administers laws and implements groundwater plans in the designated Active Management Areas. Some states, such as Arizona, have a longer history of groundwater management, while other states, such as California and Colorado, are establishing new approaches.
Examples of recent state legislation:
- Colorado SB 28 (2022): Creates the Groundwater Compact Compliance and Sustainability Fund and appropriates $60 million from the federal American Rescue Plan Act to finance groundwater use reduction efforts in the Rio Grande and Republican river basins.
- Colorado HB 1199 (2018): Establishes a process for the Ground Water Commission to use for approving aquifer storage and recovery plans; requires that the commission promulgate rules governing the application process and the conditions an aquifer storage and recovery plan must meet to be approved.
- Nevada SB 140 (2019): Requires the state engineer to reserve a certain percentage of the remaining groundwater available for use in certain basins; prohibits the use of such groundwater.
California’s Sustainable Groundwater Management Act
The State Assembly enacted a three-bill package in 2014 (AB 1739, SB 1168, SB 1319) and provided the framework for groundwater protection. The Sustainable Groundwater Management Act laid out a new structure for groundwater management at the local level through establishing Groundwater Sustainability Agencies and planning processes.
The state’s Division of Water Resources has played several key roles in the implementation of this law— developing educational toolkits and other guidance documents; collecting data and making this data accessible to the public. Groundwater sustainability continues to be a state priority. The 2021-2022 state budget provides $18 million for enhanced groundwater monitoring and survey to improve management of drinking water, groundwater recharge, and relevant ecosystems.
Increased awareness and data on the interconnections between surface water and groundwater has led to coordination with state water planning processes and policymaking. For example, the South Carolina Department of Natural Resources manages the water resources and planning for the state, including river basin plans and hydrologic models for both surface water and groundwater.