Letter from Calvin M. Cory (Las Vegas) to Edward C. Renwick, December 20, 1952

Mr. Edward C. Renwick: ( cc - Mr. E.E. Bennett ) With reference to our telephone conversation concerning the proposed transfer of the Railroad Companies' permit to appropriate water from Well No. 1 to a new point of diversion at the shop well, I regret that I have been unable to contact the state water engineer in this area, Mr. Jamison. I wanted to confirm with him my interpretation of our water law before writing to you. I will do so at the earliest opportunity, but in the meantime I submit the following for your information. In my opinion the Act of 1939 relating to the development and use of water in an artesian basin has no bearing on a change of the point of diversion. This Act does however, effect the development of, water in the shop wells and governs the method of drilling, power, etc., in the existing well, as well as the method of developing a standby well. The Act of 1939, Sections 7993.10-7993.24, N.C.L. Supp. 1931-1941 as amended, will have to be complied with in the drilling of a new well, and this Act invokes the provisions of the general water law of 1913 relative to application, publication, etc., Sections 59-72 of the Act; Sections 7944-7957 N.C.L. 1929, as amended. Therefore, at least several months will be involved in obtaining a permit for a new well in the shop grounds and I am not at all certain that such a permit would be granted by the state engineer because of his announced policy not to approve any additional wells where his approval can be reasonably withheld. In fact, if the Railroad's right to appropriate water for railroad purposes is transferred to the existing shop well, I believe the state engineer may reasonably contend that there is a duty upon him to deny an application to drill a standby well for the reason that the right transferred in more than sufficient to satisfy the needs of the Railroad Company. I have in mind the Act of 1945, Section 7899 N.C.L. 1943-1949 Supp., which relates, in part as follows: Las Vegas, Nevada December 20th, 1952. "The quantity of water from either a surface or underground source which may here-after be appropriated in this state shall be limited to such water as shall reasonably be required for the beneficial use to be served." In fact, the State Engineer may well rely upon the foregoing language if he refuses to transfer the full amount of the permit in Well No. 1 to the shop well, on the ground that that amount of water can not be developed in the shop well, and, if developed, is not reasonably required for the beneficial use to be served. However, it was the thought of the committee that an attempt be made at least to transfer the full amount of the appropriation to the shop well with the hope that it might slip through unnoticed. With reference to the proposed transfer, I am of the opinion that an application must be submitted for this purpose, that a notice of the application must be, within thirty days thereafter, at the expense of the applicant, published in a newspaper in Clark County for five consecutive weekly issues and that a period of thirty days is thereafter required for protest against the application. If no protest is filed, the state engineer may grant the same without a field investigation. In other words, section 7944 requires an application to be made to change the place of diversion or place of use, and I believe the other sections of the Act relative to notice, publication, etc., are applicable to this application. The following is a brief summary of applications concerning water rights prepared by State Engineer Smith in 1945 and may be helpful to you. " The waters of all sources of water supply within the boundaries of the State, whether above or beneath the surface of the ground, belong to the public (Sec. 1, Chap. 140, Stats. 1913). The first step for anyone desiring to use unappropriated water, i.e., water not already in use under claim of a prior and existing right, is to file with the State Engineer an application for permission to appropriate and apply the water to beneficial use. The mere filing of an application or even the approval thereof by the State Engineer gives no one a water right. A water right can only be created by the placing of water to beneficial use in accordance with the terms of a permit from the State Engineer. Such a right can also be lost by disuse. A permit to appropriate water grants to the permittee the right to appropriate a certain amount of water from a particular source for a certain purpose and to bo used at a definite location. In other words, the consent of the State is given in a manner provided by law to acquire a water right and gives the permittee an inchoate right, which will ripen into a legal and complete appropriation only upon completion of the works of diversion and the placing of the water to beneficial use and the filing of proofs thereto. Such a right may also be lost to the permittee by failure to meet the statutory requirements, in which event the water again becomes subject to appropriation under a new application. The various steps to be taken in acquiring a water right as set forth in sections 59 to 74 of the water law are briefly as follows: Applicant must file an application to appropriate the public waters of the State of Nevada. Said application is prepared on a special form furnished by the State Engineer's Office, and must be accompanied by the statutory filing fee of twenty dollars ($20). Instructions for filling out the application form are given on page 2 of said form. A map in support of Said application prepared from a survey by a licensed State Water Right Surveyor must be filed either at the time of making application or within a reasonable time thereafter. It has been the practice of the State Engineer on occasions where maps have not been filed with the application to wait about sixty days and then send the application back to the applicant by registered mail with instructions that unless said application in its amended form and the supporting map are filed within sixty days from the date notice is sent, the application will be summarily cancelled. (See Sec. GO, Chap. 140, Stats. 1913.) Following the filing of the application and map in proper form, notice of said application is published in a newspaper of general circulation in the county where the source is located once a week for five consecutive weekly issues. The charge of this publication of twelve and a half dollars is taken from the application fee of twenty dollars, and in the event the application is cancelled or withdrawn before it goes to publication, such amount of twelve and a half dollars is returned to the applicant. During this publication period and up until thirty days following the final publication thereof formal protests against the granting of a permit may be filed. Such protests must be filed in duplicate and must , be accompanied by the statutory filing fee of one dollar. The State Engineer can take action on the application thirty days following the date of final publication. If no protests have been filed and the records of this office indicate that the approval thereof would not impair or injure any prior appropriation on the source or, if for stockwatering purposes, would not contravene the policy of the 1925 stockwatering law, said application is often granted subject to prior rights without a field investigation. However, where protests have been filed, or the office records indicate a possible conflict, field investigations are made, and when it appears justifiable hearings are held. Where the issues involved are well defined the State Engineer often approves or rejects said application on the strength of the investigation. Any person feeling himself aggrieved by any order or decision of the State Engineer affecting his interests may have such order or decision reviewed by a proceeding initiated in the proper court of the county in which the matter affecting his interests is situated, as set forth in Sec. 75, Chap. 253, Stats. 1915, of our water law. Prior to the granting of a permit the State Engineer notifies the applicant that certain fees, as set forth in section 73, chapter 106, Statutes of 1921 of our water law, are due for issuing and recording the permit. Following the receipt of said fees the State Engineer issues the applicant a permit, wherein it is provided that the permittee, in order to perfect said permit, must commence work on his appurtenant works and file proof of commencement of work on or before a certain time; must complete the appurtenant works and file proof thereof on or before a Certain time and must place the water to beneficial use and file proof of beneficial use, together with a map prepared from a survey made by a licensed State Water Right Surveyor on or before a definite date. Blank forms for filing these proofs are furnished the permittee upon request. Following the filing of the various proofs as prescribed by law and set forth above, the permittee is in line for a final water certificate. Since beneficial use shall be the basis, the measure, and the limit of the right to the use of water (Sec. 3, Chap. 140, Stats. 1913), the amount of water allowed in the final certificate is based upon the amount of water placed to beneficial use, which in no case can exceed the amount of water originally applied for, (Sec. 11, Chap. 140, Stats. 1913.) A certificate of appropriation of water grants the holder a perpetual right to the use of certain waters for a definite purpose and definite place of use as set forth under the terms of the certificate, as long as said holder places the water to beneficial use. Such rights can be lost upon abandonment or nonuse, in which case the water reverts to the State. To change the point of diversion, place or manner of Use of any water right held under a permit or certificate, application must be made to the State Engineer. A water right held under a permit or an application for permit to appropriate water, may be assigned subject to the conditions of the permit, but no such assignment shall be binding except between the parties thereto, unless filed for record in the office of the state engineer. Such assignment can be made in the same manner as real estate by moans of a grant, bargain or sale deed. A transfer of a water right on which a certificate of water appropriation has been issued should also be made of record in the state engineer's office. In filing such record a certified copy of the deed should be submitted together with the statutory filing fee of $1." Sincerely, CALVIN M. CORY