University of Nevada, Reno

Stakeholder Perceptions of Water Rights Transfer Programs and Prior

Appropriation in the Western United States:

Case Study of the Walker River Basin

A thesis submitted in partial fulfillment of the requirements for the degree of Master of

Science in Geography

by

Shelby E. Hockaday

Dr. Kerri Jean Ormerod/Thesis Advisor

December, 2020

Copyright by Shelby Hockaday 2020 © All Rights Reserved THE GRADUATE SCHOOL

We recommend that the thesis prepared under our supervision by

SHELBY E. HOCKADAY

Hntitled Stakeholder Perceptions of Water Rights Transfer Programs and Prior Appropriation in the Western United States: Case Study of the Walker River Basin be accepted in partial fulfillment of the requirements for the degree of

Master of Science

Kerri Jean Ormerod, Ph.D $GYLVRU Alexandra Lutz, Ph.D CoPPLWWHH0HPEHU

Elizabeth Koebele, Ph.D *UDGXDWH6FKRRO5HSUHVHQWDWLYH

'DYLG:=HK3K''HDQ *UDGXDWH6FKRRO

December, 2020 i

Abstract

The doctrine of prior appropriation, which allocates water by priority as a means for distribution to water users, is the legal framework for water management in the western

United States (U.S.). As the region increasingly faces challenges including periods of drought, shifts in streamflow timing and quantities altering peak flows for use, and changing social values of water, water rights transfers – the sale and leasing of established water rights – have emerged as a possible solution to redistribute water resources. Nevertheless, in most cases, it is unknown how stakeholders perceive water rights transfers or the legal framework of prior appropriation. A federal program in the

Walker River Basin, a bi-state basin in northeastern California and west-central Nevada,

allows for permanent and temporary water transfers in the interest of environmental

restoration, thus addressing spatial and temporal challenges of historical water allocation.

Through interviews with 33 stakeholders from diverse water use sectors, this research

analyzed perceptions of water rights transfer programs and prior appropriation in the

Walker River Basin. The Walker River Basin is illustrative of the dynamics of western water resources with influences of agricultural, tribal, and environmental users in a drought-prone and overallocated snow-dependent basin. Results indicate that stakeholders have differences of opinion on the utility of existing water rights transfer programs; however, most agricultural and environmental stakeholders perceive that current mechanisms for water rights transfers in the basin may not equitably apportion water across competing users and uses, and that modifications to prior appropriation through amendment of the Walker River Decree may further hinder water security across water use sectors. ii

Keywords: prior appropriation, western U.S., water security, water rights transfers, perception iii

Acknowledgements

This research was conducted as a sub-project under the larger National Institute of

Food and Agriculture (NIFA)-funded Synthesizing Knowledge to Optimize Water Policy for Agriculture under Changing Snowpack (SNOWPACS) Project. I am thankful to the

SNOWPACS Project team for providing me the opportunity to be a part of this important research and allowing me to develop my own research with data collected for the

SNOWPACS Project.

This project would not have been possible without the stakeholders who agreed to participate in this study. I am so grateful for the trust they placed in me to bring their voices to this research and for engaging in honest discussions with me about, at times, controversial topics. I hope I have honorably brought some of your stories to light here.

To my advisor, Dr. Kerri Jean Ormerod: I could not have done this without you.

You offered to advocate for me and advise me my very first day at UNR, and I am so incredibly grateful for your guidance and support these past couple of years. You believed in my goals and supported my research interests from the beginning, no matter

how many times my ideas changed. Thank you for always voicing that you were proud of

me throughout this process and giving me the confidence to make it through graduate

school and identify myself as a true geographer. “Thank you” is simply not enough!

I must express my gratitude for each of my committee members. Thank you to Dr.

Alexandra Lutz for being my advocate from the very beginning based on a simple

introductory email. I cannot thank you enough for the guidance, helpfulness, and

mentorship you have given me. Thank you to Dr. Elizabeth Koebele for taking a chance

on me to work with you on this research. You believed in me to do this project justice iv

and gave me the opportunity to research something I love with your expert guidance along the way.

I would like to acknowledge my supervisor and SNOWPACS Project Co-

Principal Investigator. Thank you to Dr. Loretta Singletary for trusting me to represent this project as I navigated the political complexity that is the Walker. I am so grateful that you took a chance on me to be a part of this project and provided me the confidence to interview so many stakeholders with your words of encouragement every step of the way.

I would also like to thank my family and friends. You have all been so supportive of me as I worked to achieve something I had always wanted. Thank you, Mom, for always providing me with words of inspiration and bragging about my academic accomplishments. Thank you, Dad and Lisa, for your support and encouragement from afar. Thank you to Gary and our two sweet dogs, Odin and Jax, for always being a shoulder to cry on and making me smile whenever I felt overwhelmed or doubted myself.

You have all filled me with so much pride!

v

Table of Contents i. Abstract i

ii. Acknowledgements iii

iii. Table of Contents v

iv. Acronym List vi

v. List of Tables vii

vi. List of Figures viii

1. Introduction 1

2. Literature Review 4

3. Methods 9

4. Results: Case Study of the Walker River Basin 16

5. Results: Perceptions of Water Rights Transfer Programs and Prior Appropriation 23

6. Discussion 36

7. Conclusion 41

References 43

Appendix A 49

vi

Acronym List BIA Bureau of Indian Affairs NDWR Nevada Division of Water Resources NFWF National Fish and Wildlife Foundation NV Nevada SWP Stored Water Program US United States USBWC United States Board of Water Commissioners WBC Walker Basin Conservancy WRID Walker River Irrigation District WRPT Walker River Paiute Tribe

vii

List of Tables Table 1. Research participants by stakeholder sector 12 Table 2. Qualitative codes and examples 13 Table 3. Water governance structure in the Walker River Basin 19 in Nevada, referenced by stakeholders from primary data collection

viii

List of Figures Figure 1. Main hydrologic features and communities 16 in the Walker River Basin

1

1. Introduction

“…Water is more valuable than gold to most people.” – Government stakeholder, Walker River Basin

The defining characteristic of the western United States (U.S.) is its aridity, closely associated with its scarcity and variability of water resources (McKinney &

Thorson, 2015). The states of the western U.S. are facing significant water security challenges given extended and future drought, increasing migration to the region, changes in land-use and values of water, and overallocation of river basins. Seasonality and challenges of drought put stress on administration of water rights in the western U.S., especially with decreasing water availability likely to lead to more competition over use

(Schilling, 2018). In parts of the western U.S., water rights transfers have emerged as a possible solution to redistribute water resources. Much of the western U.S. relies on capturing snowmelt from mountain snowpack every spring as it flows down to reservoirs that store the water for year-round use in agricultural valleys and low-altitude municipalities (Kenney, 2005). Given changes in climate, reservoirs in the western U.S. do not have enough storage capacity to handle the shift in maximum runoff with snowmelt happening faster and earlier each year; “early water” flowing down leads to flooding and dams overflowing further to terminal lakes or the ocean (Barnett et al.,

2005). Demand for water supply has been pushed further by changing social values of water and drought. Drought can be simply defined as a temporary lack of water caused by abnormal climate variability (Kallis, 2008). The sale and leasing of established water rights via water rights transfers aim to overcome the mismatch between where users are located within a basin and the timing of their appropriative water rights. This spatial and 2

temporal relationship of water rights in prior appropriation systems can often lead to

disagreement and disparity of water availability between upstream and downstream users,

since in an appropriative system of water allocation water rights are secured based on the

timing of first use and are situated to a specific place. Given these unknowns, this

research answered the following question: What are stakeholders’ perceptions of

water rights transfer programs and prior appropriation in the Walker River Basin?

In the western U.S., the doctrine of prior appropriation is the law that governs water rights and use, which allocates water rights based on priority dates with clear winners and losers in water use during times of shortages (Berggren, 2018). Water security is the availability of an acceptable quantity and quality of water supply to sustainably support livelihoods and economic production (Grey & Sadoff, 2007). The prior appropriation system provides water security for users based on first use.

Agricultural users have historically been the first use of water in the western U.S., and it continues to be the primary use today over mining, municipal, or environmental uses,

accounting for about 90 percent of all consumptive water use (Lane & Rosenberg, 2020).

In arid regions, a decrease in freshwater due to drought can place additional stress

on other water sources, such as groundwater (Lutz et al., 2009). Much of the water

throughout the western U.S. is already appropriated and overallocated – water rights have

been defined to fixed quantities or flows in a specific place and secured against future

claims (Grafton et al., 2012) and rights exceed a system’s renewable water supply

(Richards, 2009) during times of water shortage. Recent drought conditions and declines in streamflow, groundwater levels and storage water reserves have exacerbated water supply challenges in overallocated basins (Nevada Drought Forum: Recommendations 3

Report, 2015). Existing water rights transfer programs have emerged as a means of

tinkering with prior appropriation to allocate water for competing uses in the interest of

water security in the region.

Given persistent and projected climatic, legal, and social threats to water security

in the western U.S., water rights transfers – the sale and leasing of established water rights – have emerged as a way of reallocating water to different users or uses within the

appropriative structure of established water rights and adapting to the changing social

values of water. Water rights transfers include the permanent or temporary change in

ownership of water rights that facilitate the sale (permanent) or lease (temporary on an

annual basis) to other users (Howe & Goemans, 2003). One place where water rights

transfers have been implemented is the Walker River Basin, a bi-state basin with

headwaters in northeastern California flowing to the river’s terminus in west-central

Nevada.

The Walker River Basin is illustrative of the dynamics of western water resources

as it is influenced by multiple sectors of use – agricultural, tribal, and environmental –

relies on multiple sources of water – surface flows, groundwater, and storage water – and

is a drought-prone basin where established water rights are overallocated, which means rights granted to water use regularly exceed the renewable water supply of the basin

(Richards, 2009). The Walker River Basin is historically a rural basin and remains rural today, with irrigated agriculture being the predominant use of water; however, in 2009 a

federal environmental restoration program was implemented in the basin for existing

water rights to be permanently or temporarily transferred from agricultural use to

instream flows in the interest of environmental restoration (Koebele et al., forthcoming 4

2020). The Walker River Basin, thus, provides an appropriate case study to explore

stakeholder perceptions of water rights transfers. While water resources scholars have

recognized that water rights transfers emerge in the western U.S., it is unknown how

stakeholders feel about such transfers and the legal structure of water rights allocations in

prior appropriation states.

2. Literature Review

Many places in the world are dealing with scarcity of water resources and challenges of achieving water security. While several definitions of water security exist

(Gerlak et al., 2018), Grey & Sadoff (2007) define water security as “the availability of an acceptable quantity and quality of water for health, livelihoods, ecosystems and production, coupled with an acceptable level of water-related risks to people, environments, and economies” (547-548). Gerlak et al. (2018) conclude that water

security is a condition to be measured against water quantity in relation to demand

varying across geographies, to achieve which a community must have strong stakeholder

participation and “good governance” (87), including overall equity and transparency of

water supply challenges. The doctrine of prior appropriation governs water use in the western U.S. by granting water right allocations for use during a specific time of year for an applied beneficial use (Hockaday & Ormerod, 2020). The doctrine allows for diversion of water from one place to another to fulfill water rights throughout a basin based on seniority (Welden, 2003). Water users in the western U.S. use the priority date structure to deal with scarcity through prior appropriation.

Prior appropriation addresses water scarcity and security challenges by cutting people off from water use based on priority water rights and “use it or lose it”. The 5

priority date structure is commonly referred to as “first in time, first in right” with water rights being fulfilled per the chronological dates of first use (i.e., appropriation) (Kenney,

2005). Water rights are then categorized as “senior” or “junior” based on the relative priority (Hockaday & Ormerod, 2020). Federal reserve rights are also appropriated to establish priority dates for water use by Native American tribes and on federal lands or for federal projects. The Winters Doctrine of 1908 determined the federal role in ensuring protection of water reserved for specific purposes, including Native American reservations, public land management, and the environment (Schilling, 2018). As a result, lands reserved by the federal government for tribes, national parks and forests often have senior water rights known as reserve rights. The phrase “use it or lose it” refers to the legal requirement that allocated water must be applied to a specified use or purpose and place of use, where any saved volumes run the risk of being deducted from the water right (Kenney, 2005). The place of use refers to the land base over which allocated water is approved for use (Ghosh et al., 2014); however, the concept has evolved over time to include the non-consumptive use of water to preserve and restore healthy ecological systems (Smith, 2019). A water right must include a declared beneficial use, allowing a water right holder to capture and use available water as long as it is devoted to a use deemed beneficial as approved by state law and is not wasted – and importantly, does not impinge on the water rights of seniors (Sugg & Schlager, 2017).

Historically, prior appropriation focused on water for consumptive use and economic benefit by requiring diversions of water out of water-righted streams, cementing the historical belief that leaving water in stream is wasting water (Lane-Miller et al., 2013); however, non-consumptive uses are increasingly more recognized as 6

beneficial uses in the western U.S. Irrigated agriculture accounts for about 90 percent of all western water use and has historically been the majority user, but this total is in decline due to growing urban populations (Lane & Rosenberg, 2020). Newer users could lose out on water in prior appropriation states during times of shortage, as those with the oldest appropriated water rights (typically agricultural users) will be granted priority over junior users (Schilling, 2018), defining the clear winners and losers in equitably attaining water security across competing users and uses.

Robison and Kenney (2012) assert that equity in prior appropriation is heavily influenced by people’s perceptions of fairness or unfairness of an apportionment scheme.

Public values of water resources weigh in here, including unique importance of social and cultural values generated by water, instream flows not protected by water rights, and economic impacts imposed on place of use, especially with regard to agricultural communities when water for irrigation is substantially reduced (Howe, 2000). Public support for instream flows has been on the rise due to changing cultural values for ecosystems, recreation, and aesthetics (Lane & Rosenberg, 2020). Existing water management schemes address few relevant human values of water, disregarding cultural, spiritual, and religious values of water (Howe, 2000). In contrast to preserving cultural values, Schilling (2018) argues in favor of consumptive use for humans, calling on changes in the priority system to allow for adequate and full access to water as a “human right” (99). The mechanisms of prior appropriation make it difficult to equitability attain water security in the face of changing water supply with factors of aridity, scarcity, and multiplying demands for water that must meet appropriative water right requirements. In times of shortage, or drought, the greatest burden is held by junior water rights holders, 7

who run the risk of appropriated water (i.e., right to water) being curtailed (cut-off) or

postponed in times of shortage because their water rights are less secure with priority

granted to senior water rights holders (Xu et al., 2014).

In addition to drought, competing uses of water and changes in seasonality of

flows, a major threat to water security in the western U.S. is overallocation of water

resources. Overallocation occurs when appropriated water rights exceed a system’s

renewable supply of water (Richards, 2009). Water rights transfers have emerged as a

way to combat these challenges of water security while remaining in line with the

doctrine of prior appropriation. Water rights transfers are the permanent or temporary

change in ownership of water rights for water to be transferred to a new beneficial use

and location (Howe & Goemans, 2003), also known as re-allocation of water rights.

Water rights transfers are one way to re-allocate water. Permanent transfers involve the sale and purchase of a water right in perpetuity, while temporary transfers involve the renting and leasing of a water right on a short-term (typically annual) basis

(Brewer et al., 2008; Colby & Isaaks, 2018). Although non-consumptive uses of water

(such as recreational and environmental) were omitted from historical beneficial use statutes, many states in the western U.S. have implemented water rights transfer programs to reallocate water from agricultural to environmental use (Schilling, 2018).

Water rights transfers allow water rights holders to be flexible in responding to changes in supply and demand of water across competing uses while following appropriative water use requirements (Koebele et. al, forthcoming 2020). Water rights transfer programs are sometimes limited, however, as permanent transfers can involve lengthy, costly, and complicated approvals processes and they protect existing water rights holders 8

as sellers must prove that no harm will occur to water users as a result (Culp et al., 2014).

Permanent transfers are less desirable in many cases to users who wish to maintain

existing water rights, and they potentially promote wasting of water that could be sold or

leased to other users due to the “use it or lose it” principle of prior appropriation (Culp et

al., 2014).

Legal scholar Dan Tarlock (2018) argues that while prior appropriation is flexible in the transferability of water rights, allowing for trading and leasing of surpluses as necessary between water rights holders, it does not allow for an “inclusive, reasonably efficient, and fair risk-sharing scheme” (22). Water trading and transfer schemes include allocative efficiency into their structures, but, they are often associated with the delay or avoidance of implementing new water supply infrastructure necessary for ideal efficiency

(Garrick et al., 2018). Furthermore, transferring water is difficult and lengthy in the legal

and administrative processes of appropriative systems (Lane-Miller et al., 2013). Water

transfers typically involve a decentralized approach to moving water, which is managed

by local irrigation organizations that have significant legal and political authority within

their local borders (Garrick et al., 2018). For water rights trading and transfers to be successful, coordination institutions with all relevant stakeholders must be well-

developed along with accountability mechanisms that legitimatize moving water (Garrick

et al., 2018). Coordination to ensure water security, arguably the goal of diversifying

water governance institutions through water rights transfers, may include sharing

available science and educational materials, and integrated basin management between

stakeholders (Gerlak et al., 2018). 9

This research fills a gap in understanding stakeholder perceptions of water rights transfers in the Walker River Basin. Like many regions in the western U.S., the Walker

River Basin relies on winter snowpack in the mountains to melt into rivers and streams in the spring, when the water is then captured and stored in lower-altitude reservoirs for agricultural and municipal use in the valleys (Kenney, 2005). With increased periods of drought due to changing precipitation and seasonality at the headwaters of western river basins challenging water security in the region, coupled with competition between water users across sectors, water rights transfer programs have emerged to meet competing needs for water where strict adherence to prior appropriation has been considered a hinderance to effective water allocation. Water rights transfers exist as one way to re- allocate water rights under prior appropriation in response to water security challenges faced by competing users and uses. The Walker River Basin water rights transfer programs currently exist along with strict appropriative water rights allocations for surface water from the Walker River. This study seeks to understand stakeholder perceptions of water rights transfer programs and prior appropriation in the Walker River

Basin.

3. Methods

To understand stakeholder perceptions of water rights transfer programs and prior appropriation in the Walker River Basin, we relied on semi-structured interviews with key stakeholders. Qualitative research covers a wide range of approaches, including analysis of one or a small number of cases and interviewing, that use broad methods and are concerned with gaining a comprehensive account of phenomena (King et al., 1994).

Data was collected through case study investigation, defined as the intensive study of a 10

single place to shed light on a larger group of places (Gerring, 2007). Case studies involve research of spatially delimited phenomena observed at a single point in time, or over a period of time, to understand theoretical significance (Gerring, 2007). Interviews allow researchers to collect a multitude of opinions, meanings, and experiences in order to provide insight into the differing opinions or consensus within a group (Dunn, 2005).

We collected data through semi-structured key informant interviews in order to provide a comprehensive account of the structure of water rights administration and to better understand stakeholder perceptions of the permanent and temporary water rights transfer programs in the region. In this study, interviews addressed several aspects of water supply challenges as designated by project research goals, including timing and quantities of flows, stakeholder decision-making processes, and perspectives on existing water policies and water rights transfer programs. The full interview questionnaire is included in Appendix A.

Data was collected via interviews with key stakeholders in the Walker River

Basin from May-August 2020. Stakeholders are defined as the people who can affect, or are affected by, decisions about water (Colvin et al., 2016). In this study, we identified relevant stakeholders via snowball sampling, an approach which identifies stakeholders from information provided by other stakeholders (Noy, 2008). First, a list of prospective respondents was prepared by researchers with prior knowledge of key stakeholders in the basin; then, additional stakeholders were identified by recommendations from key informants that provided advice and contextual information for the project. Key informants are those with formal positions in the community who provides access to people and information that researchers may not have on their own (McKenna & Main, 11

2013). Stakeholder sector groups for this study included: Agriculture (AG), Environment

(ENV), Tribal (TR), Government (GT), and Research (RES). In addition to opinions, the stakeholders provide information critical to understand the complex governance structure for water rights administration in the Walker Basin.

Eligible stakeholders were invited to participate in semi-structured interviews by email via their publicly accessible email addresses with a pre-written recruitment script.

The invitation informed them about the research project, invited them to participate in a one-hour semi-structured interview via Zoom videoconferencing software, and included a one-page flyer with detailed information about the goals of the project to better inform them of their role. Invitation emails were sent out in ten rounds from May-August 2020 to small groups of approximately five participants from the master contact list, which included a total of 49 prospective participants. In total, 30 interviews were conducted with 33 stakeholders that agreed to be interviewed (three of the interviews were conducted with two people at once). Each interview took roughly one hour to complete and were conducted between May-August 2020. All data collection procedures were approved by the University of Nevada Institutional Review Board (IRB #1563205-1). At the time of scheduling interviews, all participants were provided a copy of an informed consent form, approved by the IRB, and were asked to sign prior to the interview being conducted. If participants were unable to provide a signed copy, the project allowed for verbal consent via Zoom prior to the recorded interviews commencing. The breakdown of research participants by sector is indicated in Table 1.

12

Table 1. Research participation in interviews by stakeholder sector. Stakeholder Declined or did not Sector interviews answer invitation Agriculture 10 6 Environment 8 1 Tribal 4 3 Government 10 6 Research 1 0 Total 33 16

All but five interviews were conducted online using Zoom platform for video and audio conferencing. Of those five exceptions, one participant requested a phone interview due to personal preference, and two participants experienced internet connectivity troubles, thus the remainder of their interviews were conducted via phone. Two participants requested in-person interviews, for which I traveled to their specified office locations to conduct the interviews in Yerington, NV.

Audio recordings of all interviews were transcribed in Word documents for data analysis using Express Scribe transcription software. Transcripts of the interviews were then loaded into NVivo Qualitative Analysis software for qualitative coding and data analysis. NVivo helped to identify common themes and patterns in the interview responses.

A codebook was iteratively developed with the research team to sort relevant text, that which is directly related to specific research concerns (Auerbach & Silverstein,

2003), into major categories and sub-categories to produce “bins” of data (Koebele,

2020) to delineate specific themes of perspectives shown in the interview responses.

Themes were created in consultation with the research team midway through data collection based on interview questions and cursory reviews of stakeholder responses prior to coding the data. The codebook was updated following review of the interview 13

responses in NVivo, as needed, to ensure all themes corresponded with relevant sub- categories. The first stakeholder interview was coded collaboratively by myself and two principle investigators on the research team to gauge intercoder reliability, defined as the measure of agreement between researchers on how they each code qualitative data

(Kurasaki, 2000), and develop a common understanding of the coding themes. I coded all other responses and engaged in discussion on coding questions and refinement of the codebook with the research team as questions arose. Table 2 shows example codes from interviews alongside an alphanumeric ID, related to stakeholder user group and interview number (i.e. AG_01), to demonstrate how text of the data was analyzed against each code. Table 2 summarizes the final codebook used for this research that includes 7 major categories with 30 sub-categories and example quotations from coded data.

Table 2. Qualitative codes and examples1.

Theme Category Sub-Category Illustrative Quotations by Category Positive WBC “I think they’re messing around with…old Acquisition Negative systems of water transferal that have Program worked for people” – AG_07 (Negative) Neutral

Positive “They’re paying pretty big money for Water that…if you’ve got the extra water, it’s a good water year, why not…I don’t see Rights Storage Water Negative anything wrong with that, especially since Transfers Leasing Program the money in that is coming back into the ranchers…the community.” – AG_10 Neutral (Positive)

General Pro-Markets “The more people that are trying to Transfers Anti-Markets transfer water, the better, really. It’s gonna

1 Example quotations were collected from the most frequently named sub-category by respondents and are illustrative of the major category rather than individual sub-categories. 14

Agricultural to encourage beneficial use, I think, and agriculture conservation.” – GT_02 (Positive) Markets across sectors Environmental values Financial gain Generational changes “…the people that are selling water are Participation in Keep water in selling it because of economic reasons, one Transfers agriculture way or another” – ENV_05 (Financial Productivity gain) of land Return flows Social pressure

Beneficial use “…If a person doesn’t use the water, they’re potentially subject to losing the Prior Use it or lose right to use that water…That’s always Appropriation it been…a conflict with trying to promote and facilitate conservation…” – GT_06 No change (Use it or lose it)

Conjunctive use “For years the state never really Water quality monitored how much groundwater they State Water Law Transparency were using…especially in conjunction with Water their use of surface water” – TR_02 Policy Well (Conjunctive use) Changes monitoring No change Walker River Decree “…these decrees took many decades…for Flood management the decisions to be made…once they’re done…all these groups are highly reluctant Storage water Walker Basin to…reopen them because the fear of…they Water quality might lose water, and the legal process can just drag on forever…” – GT_01 (Walker Well River Decree) monitoring No change

15

This study was informed by responses to the following two questions (Questions

6 and 7, Appendix A): “We’d like to hear your perspective on any existing water trading

or transfer programs in the basin (SWP/WBC acquisitions program). Can you tell me a

little about how these programs work?”; and, “Are there any changes you think should be

made to water management or policy to ensure sufficient water supplies going forward,

whether at the district, basin, state, or federal level?” Crosstabs were generated in NVivo

to determine frequency of coding instances and patterns in the data that related to each

sub-category (Koebele, 2019). These questions were provided in the context of a larger

interview that included information and questions about the changes in timing of water

supply. Patterns in the qualitative data were analyzed to understand how stakeholders in

an interstate river basin in the western U.S. feel about water rights transfers and prior

appropriation, and in the case of the Walker River Basin, water decrees.

As with all scientific research, there are limitations to these methods. Interview

participants represent a wide range of perspectives in the Walker River Basin, but the

sample of 33 participants does not necessarily represent the views of all basin

stakeholders across sectors equally (Koebele, 2015). While efforts were made to contact and recruit multiple tribal stakeholders from the three reservations within the Walker

River Basin, four stakeholders from one reservation agreed to participate in interviews.

We also cannot discount the impact of the timing of the research. Data was collected toward the beginning of the COVID-19 pandemic and many tribal offices were closed.

Government stakeholders were among the majority of participants, but they are typically involved from a regulatory or monitoring standpoint and tend to be impartial toward competing uses of water. For these reasons, the perceptions of tribal and government 16

stakeholders were not the focus discussion of results. Agricultural and environmental stakeholders were among the majority of research participants that were well represented within their sectors and, additionally, they represent the major buyers and sellers of water rights and therefore are the focus of discussion for this thesis. Results of our case study and interview data are presented in the following two sections.

4. Results: Case Study of the Walker River Basin

The headwaters of the Walker River begin in the Sierra Nevada range in northeastern California, flowing through west-central Nevada and meeting its terminus at

Walker Lake ("Hydrology of the

Walker River Basin", 2015), as illustrated in Figure 1. Nevada is the driest state in the West, receiving an average of 10 inches of precipitation annually, compared to neighboring

California which receives about 22 inches annually (McKinney &

Thorson, 2015, Fig. 1). California makes up 25 percent of the basin’s Figure 1. Main hydrologic features and communities in the Walker River Basin surface area, where most of the precipitation and surface water flows originate.

Conversely, the majority of consumptive use, including evaporative losses, takes place in

Nevada in the remaining 75 percent (Horton, 1996). The basin is comprised mostly of rural communities and small towns, providing water primarily for agricultural use followed by other consumptive uses like municipal and industrial (mining), and non- 17

consumptive for recreational purposes. The Walker River Paiute Tribe (WRPT)

Reservation also spans 330,000 acres of land in the lower basin (Begay, 2018).

Water is allocated in acre-feet based on prior appropriation’s origins in agricultural use, measured by the volume of water required to cover one acre of land at a depth of one foot (Frisvold et al., 2013). Due to the interstate nature of the basin, Walker

River surface waters are allocated through the Walker River Decree of 1936 (Puglielli,

2019). A decree is the final record for water allocation rules once an entire basin is mapped, served, and all claims to water rights have been settled, and is filed by a judge in the state or federal Decree Court (Perramond, 2013). Once a decree has been filed, the basin is considered fully adjudicated and, in the West, then follows priority administration of water rights (Perramond, 2013). The Walker River Decree, commonly referred to as C-125 or “the Decree”, allocates appropriative rights for users throughout the basin and is managed by the river’s Federal Water Master, a position appointed by the

U.S. Board of Water Commissioners (USBWC) (Koebele et al, forthcoming 2020) and is one of many decrees governing watersheds in Nevada and California. The Decree was modified in 1939 to establish an 1859 priority date for the Walker River Paiute Tribe to divert approximately 9,450 acre-feet of water to irrigate 2,100 acres of agricultural land on the reservation for a period of 180 days (Nevada Division of Water Planning, 1999).

Because the interstate decree allocates surface waters of the Walker River, surface water

rights are referred to as “Decree” rights throughout the basin.

The Walker River Irrigation District (WRID) was formed in 1919 to oversee

Decree rights (i.e., water allocations) in the Mason and Smith Valleys in Nevada, which make up the majority of agricultural lands in the Walker Basin. The WRID covers 18

235,000 acres, including 80,000 irrigated acres, and manages the delivery of irrigation

rights to drainage ditches in the two valleys, in concert with the Federal Water Master

(Koebele et al., forthcoming 2020). In addition to surface waters governed by Decree,

there are also rights to use impounded water known as storage rights. Several dams are

used throughout the basin to manage early flows and flood water to store water for later

use. In the early 1900s, the WRID constructed Bridgeport and Topaz Reservoirs, located

in the upper basin, to store snowmelt runoff and flood waters to extend the irrigation

season and expand irrigated acreage outside the designated area of the Walker River

Decree (Horton, 1996), meaning fields farther away from the river could be irrigated with

diverted storage water deliveries. Storage water released from reservoirs maintains

minimum flows when natural flows of the river are insufficient to meet water delivery

demands (B. G. Colby et al., 1991). Snowmelt can be captured and stored in Bridgeport

and Topaz Reservoirs any time of the year, including all water that flows in excess of

fulfilled Decree water rights. With smaller snowpack melting earlier in the year, more

water is available to fulfill storage water rights with less water available to fulfill Decree

rights. The WRID is the sole manager of the two upstream reservoirs and their associated

storage water rights. In the 1930s, the U.S. Bureau of Indian Affairs (BIA) constructed

Weber Reservoir to similarly capture surplus flows to irrigate agricultural fields on the

WRPT Reservation (Tiller, 2006). With the addition of the three reservoirs, the Walker

River is fully allocated through both Decree and storage rights.

To supplement surface water flows in the Walker River Basin, groundwater rights

are also allocated. Appropriation of groundwater rights varies by state. In California,

groundwater is managed by agencies at the local level (Niles & Wagner, 2017) based on 19

“reasonable use” laws from the riparian doctrine, which means that unlike strict prior appropriation doctrine, California landowners are not required to obtain permits for groundwater use from California water authorities and they may use groundwater that is connected to their land provided the use is deemed reasonable (Senate Concurrent

Resolution No. 35, 2006). In Nevada, groundwater is managed by the State Engineer’s office within the Nevada Division of Water Resources (NDWR) (Zeff et al., 2016).

Nevada manages groundwater rights in two categories: primary and supplemental.

Primary groundwater rights are not tied to surface water rights (i.e., standalone rights), while supplemental groundwater rights are used to augment surface water rights in times of shortage or drought (Carroll et al., 2010).

A comprehensive understanding of the basin’s water rights governance structure is required in order to examine perceptions of water rights transfer programs and prior appropriation in the Walker Basin. Table 3 shows a breakdown of the entities responsible for water rights administration, governing conflict, and setting transfer rules across the different types of water rights in Nevada and illustrates the legal complexity in the basin.

Table 3. Water rights governance structure in the Walker River Basin in Nevada, referenced by stakeholders from primary data collection. Who Who Governs Who Sets Transfer Type of Water Right Administers Conflict Rules Rights Temporary - WRID Federal Water Federal Water Permanent - NV State Non-tribal Surface Master Master & USBWC Engineer & Decree (Decree) Court Federal Water Federal Water Tribal BIA Master & BIA Master & BIA Primary NDWR Groundwater NDWR NDWR Supplemental NDWR Storage Non-tribal WRID WRID WRID Water Tribal BIA BIA BIA 20

Water law is complex in the U.S. West, but the legal complexity is intensified by the interstate aspect of the Walker River Basin. The priority system is meant to resolve conflict in times of shortage given the strict adherence to priority date for water users, and typically water rights conflicts are resolved by the state engineer of each western state. In the Walker River Basin, water rights conflicts between users are adjudicated by different agencies and courts depending on the type of right. Decree rights are governed differently than groundwater rights or storage rights. It is further complicated by whether the water rights are put to use upstream in the agricultural valleys, downstream on the

WRPT Reservation, or instream for flows to Walker Lake. The majority of water use takes place on the Nevada side of the Walker River Basin, including participation in the

WBC acquisition program and the SWP, and the majority of respondents for this research were from Nevada with a stake in water use in Nevada. Because of this, the legal complexity of water rights management most often discussed were focused on the structure of water rights governance and transfers in Nevada.

Walker Basin Conservancy Acquisition Program

There has been a severe decline in the ecological health of Walker Lake resulting from over a century of diverted surface flows, increased groundwater pumping since the

1960s to supplement agricultural use (Sharpe et al., 2008), and variation in annual snowpack with earlier snowmelt at the headwaters. Even when river flows exceed fulfilled Decree water rights, water is stored in the reservoirs upstream and does not flow to the lake. Water reaches Walker Lake from return flows or water that exceeds reservoir capacities. With the goal of restoring Walker Lake, environmental interests have emerged 21

in seeking water rights to designate instream flows as a new and permanent beneficial

use. The National Fish and Wildlife Foundation (NFWF) developed the Walker Basin

Restoration Program in 2009, now implemented by the Walker Basin Conservancy

(WBC), to purchase water rights from upstream agricultural water rights holders and

revegetate previously irrigated lands with native plant species (Rothberg, 2018). Since

2011, the voluntary water rights acquisition program has allowed for water rights holders

to willingly sell their rights to reduce upstream consumptive water use ("Walker Basin

Restoration Program", n.d.). Because water rights are attached to land based on their

specific place of use, often times the WBC purchases both the water rights and the land.

Once purchased, the WBC must submit change applications to the Nevada (NV) State

Engineer for approval to permanently change the place and purpose of use of the water

right from agriculture to wildlife (“NFWF Files More Transfer Applications for Walker

Lake,” 2014) as instream flows for Walker Lake.

Given their interests in ecosystem health, the WBC works to revegetate the land

that they acquire through the purchase of water rights to plant native species that are

more drought-tolerant and not as water-reliant as irrigated pasture or crops for

agriculture, the historical use on the ranches that previously existed on that land. To

mitigate potential negative impacts on the agricultural economy, the program assists

farmers in transitioning a portion of their land from irrigated pasture and hay to vegetable

crops that are less water intensive and can generate higher revenue for the farmers

(Kendy et al., 2018). Importantly, Lane-Miller et al. (2013) argue that in order for programs of this nature to be successful, what they refer to as “environmental water buybacks” (515), irrigators must be willing to participate in them. 22

The water rights that the WBC acquires are purchased from willing sellers, sellers

who voluntarily exchange their water rights for compensation (Adler, 2008). In other

words, the WBC does not actively solicit water rights purchases from upstream irrigators.

Due to conflicting views of the program from water users across the various sectors in the

basin, the WBC’s first change application was protested by the public and approval was significantly delayed.

Stored Water Program

The Stored Water Program (SWP) (WRID, 2020) is a program that allows for storage water rights holders to temporarily lease portions of their stored water allocations to the WBC for use as instream flows (MBK Engineers, 2019), which is commonly referred to as the temporary storage water leasing program by stakeholders. The SWP was piloted in the summer of 2019 by the WRID with funding from the NFWF. The SWP did not run in 2020 due to both low water supply constraints and COVID-19 prohibiting timely approvals of the program from the necessary state and federal permitting offices.

The SWP is temporary, scheduled to run over three non-consecutive years to determine its effectiveness, with leases only active for one year at a time requiring renewal on an annual basis (WRID, 2020).

While the permanent and temporary water rights transfer programs that have occurred in the basin are permitted under prior appropriation, such transactions are a relatively understudied way of adapting the doctrine to ensure water security. To better understand this phenomenon in the Walker River Basin, this research sought out the perceptions of basin stakeholders on the permanent and temporary water rights transfer 23

programs as they currently implemented, and their perceptions on possible policy changes to the system of prior appropriation.

5. Results: Perceptions of Water Rights Transfer Programs and Prior Appropriation Perceptions of water rights transfer programs and prior appropriation varied across stakeholder sectors, but some general trends are apparent. Environmental stakeholders generally support participation in water rights transfer programs and changes to existing water policy for water to be shared across competing uses. Tribal stakeholders’ perceptions typically aligned with those of environmental stakeholders but were also supportive of agricultural water use given the reliance on water for irrigation on the WRPT Reservation. Government stakeholders generally support users participating in water rights transfers but are hesitant to recommend changes to policy given the administrative and legal difficulty in tinkering with prior appropriation. Agricultural stakeholders commonly support participation in water rights transfers between other agricultural users rather than transferring water rights for competing uses and were primarily concerned with infrastructural water policies such as permitting for additional reservoir storage. Nevertheless, there is a lot of nuance between stakeholders in the basin and complete elaboration of these results would require detailed explanation that is beyond the scope of this thesis. For this reason, I discuss agricultural and environmental stakeholder perceptions of water rights transfers and prior appropriation in the Walker

River Basin in greater detail.

Environmental groups and agricultural users are the primary stakeholders engaged in existing water rights transfer programs and who have the most to gain, or lose, in 24

reforming appropriative decrees like the Walker River Decree. Perspectives from

agricultural stakeholders are crucial in understanding water rights transfer programs and

water policy in the Walker River Basin as a case study for the West. Other than the

WRPT’s federal reserve water right, agricultural users historically own the most senior

water rights, giving them higher priority than competing junior users in the basin and

situating them as most likely to participate in water rights transfers as sellers.

Environmental stakeholders represent the competing use in the basin and have the most to gain from re-adjudicating the Walker River Decree and participating in water rights transfers as buyers and lessees of permanent and temporary water rights.

Water Rights Transfer Programs

The interviews illustrate how opinions about water rights transfers between competing users are varied in this incredibly complex and dynamic river system. When asked about perceptions of existing water rights transfers in the Walker River Basin

(Question 6, Appendix A), stakeholders across sectors commonly referenced the WBC permanent water rights acquisition program rather than the temporary SWP.

Perceptions of the WBC Acquisition Program

Perceptions of the benefits of the WBC program were split between positive and

negative. Environmental stakeholders viewed the program in a positive light, while

agricultural stakeholders viewed the program negatively. It appeared that stakeholders

feel that the WBC acquisition program impacts water rights holders in the Walker River

Basin more than the temporary SWP, in both negative and positive ways, due to the

permanent nature of the water rights transfers.

Positive Perceptions 25

Statements on positive impacts were most commonly related to the benefits that the WBC acquisition provides to the basin as a whole. Positive perceptions related to the importance of building relationships in the basin to help water users understand the goals of the program while also ensuring that agricultural production is still feasible in a balanced system, as shown in the example below:

Agriculture is viable…that’s the message [the WBC tries] to put out there, and it’s not a matter of blaming a system [of perceived water conservation neglect in the agricultural sector], it’s…recognizing where its flaws are and trying to be part of the solution, trying to figure out how to do it better…Agriculture’s incredibly important, it’s why it’s important for [the WBC] to be neighbors and shaking hands and sitting on tailgates and kicking tires or whatever [they] need to do out there to build genuine relationships and not just be an outsider telling [agricultural users] how to do something better. – ENV_04 The goals of the WBC acquisition program seem to aim for water security throughout the basin, with the WBC recognizing the value in maintaining a portion of water and land in agriculture. Environmental stakeholders explained that the WBC acquisition program works to combat drying of the landscape through revegetation projects, as expressed below:

[The WBC is] taking care of land, this isn’t a ‘buy and dry’…it’s not just dust and weed abatement, [they’re] completely restoring ecosystems…[they’re] making sure that as [they] retire these ranches that [they’re] teeing them up to completely recover to what the surrounding native ecosystems look like. – ENV_04

Other positive perceptions related to the creation of a state park from WBC acquisitions – some ranches acquired by the WBC through the program were converted into a state park along the East Walker River. The state park has brought in recreational interests such as camping and fishing, and one environmental stakeholder noted its significance: 26

I think there was amazing things that were outcomes from it, like the East Walker. The acquisitions of those ranches and the ability to create a state park is really significant. – ENV_01 Other positive perceptions related to welcoming an expansion of the program into

California by agricultural stakeholders in the California valleys of the basin, expressed by one such stakeholder below:

I’m all for: try it out, sell some, let them buy some, let’s work it out…Let’s be a little flexible on a lot of this. – AG_04 The WBC exists solely in Nevada and does not acquire water rights from California water rights holders, but currently illegible water rights holders have shown interest in the program expanding.

Negative Perceptions

Negative impacts of the WBC acquisition program discussed were mostly related to the livelihoods of farmers and ranchers being threatened, as evidenced by the following example:

I understand the concerns for Walker Lake, but I have seen water removed from some very historic, highly productive ranches in Nevada. These ranches are not at the production level they once were. The products from these ranches will no longer reach the markets for consumers. Employees and their families had to look elsewhere for work and most of the historic tradition has been lost. – AG_06

With the program permanently transferring decree water rights off of land they had been attached to for agricultural use to use as instream flows, agricultural families that have been in the valleys for generations consider the transfer of water out of agriculture as negative. Alongside valuing water for historical agricultural uses, agricultural stakeholders are not sold on the idea that Walker Lake is able to be saved. One agricultural stakeholder noted the historical drying cycles that have occurred in Walker

Lake, claiming that it cannot be saved: 27

…You’re not gonna save Walker Lake ‘cause the [total dissolved solids] numbers have gone up. They have not gone down. And that’s been a drying lake and it’s on it’s third cycle. – AG_08 Increasing numbers of total dissolved solids are an indication of declining water quality and often result in high levels of salinity.

Another agricultural stakeholder expressed their support for Walker Lake with the caveat that they don’t believe it can be saved, shown below:

Do I want to see Walker Lake, or any other terminus lake, go away? No…I just personally don’t believe that that lake long-term will be able to be saved. – AG_09 Many agricultural stakeholders disagreed with WBC goals on the viability of saving

Walker Lake.

It appeared that many agricultural stakeholders in the basin are strongly against the program and claim they will never participate in permanently selling and transferring any portion of their water rights off of their irrigated lands. Agricultural stakeholders often painted pictures of the generations of hard work that went into creating the pastoral landscape of the agricultural valleys and the productivity of their fields, as expressed below:

I’ve pulled rocks for weeks on end out of fields…by hand. My family has for 150 years…Generation after generation has fought this…to make these valleys beautiful and green and open and pastoral-like, and just beautiful and productive ground. I see now where they’ve taken over this ground for the WBC, and the tumbleweed is piled up so high that it literally comes over the top of the fence...It’s heartbreaking from the understanding of how much work and how many lifetimes have gone into creating that environment, and now it’s going, it’s gone. – AG_05 The timing of water use in agriculture is often tied to generational efforts to shape the agricultural landscape of a basin. Agricultural stakeholders often perceived that the WBC 28

has not adequately tended to the land acquired through the program. With less water

flowing through the irrigation ditches near the agricultural fields, some of the riparian

areas are not thriving and the fields are drying up without being regularly irrigated. The

drying of agricultural lands was a big concern of agricultural stakeholders given the

environmental values that they hold close in the upstream valleys.

Participation in the WBC Acquisition Program: Financial Dynamics

Stakeholders across sectors often claimed that people participate in water rights transfers for financial gain, especially the WBC acquisition program. Environmental stakeholders are hopeful that the WBC acquisition program will elicit participation from agricultural stakeholders that have opportunity to financially benefit from the program.

This is expressed by one environmental stakeholder below:

There will be farmers that don’t like it and they’ll just flat tell me…‘I don’t like the idea of water to Walker Lake’…I believe that they see the acquisition program…in a perspective of…what can they get out of it…’Do I have anything on my farm that is not productive that I can sell and put it over here [instream]?’ – ENV_05

Because the acquisition program is federally funded, the WBC is often able to offer a higher price to willing sellers for water rights and associated land compared to other agricultural users in the basin that may be interested in acquiring more water rights and/or land, shown by the following example:

It’s a greedy world… ‘water doesn’t flow downhill; it flows to the money’…It’s exactly what’s going on here. How does a farmer that’s growing cattle and hay…compete with government money to buy water…They just bought a ranch and gave the guy $9-10 million…How do you change that…the greed and the dollar? It’s gonna go to the highest bidder every flipping time. – AG_09 Agricultural stakeholders often noted that agricultural water users aren’t able to compete

with the high compensation that the WBC can offer for water rights and land. 29

Agricultural water rights holders may have the most to gain financially by

participating in the WBC acquisition program, but they also have a lot to lose in terms of

transferring water to a use that doesn’t sustain their agricultural livelihoods. The WBC’s

willing seller-willing buyer framework may be a way to create win-win solutions and navigate the win-lose perceptions of the program. Environmental stakeholders perceive the willing seller structure of the WBC acquisition program to be beneficial in that it provides opportunities for people to voluntarily participate, as shown below:

…It's important for [the WBC] to not be…approaching sellers or approaching somebody who [they] think might be a distressed seller. It's important for them to approach [the WBC] and know about [the] program. – ENV_02 Some agricultural stakeholders expressed concern over the “willing sellers” terminology.

One agricultural stakeholder participated in the program and claimed they regret it, but at the time felt they had no other choice, thus claiming issue with the term “willing” seller in their case, expressed below:

…When they say ‘willing sellers’, that’s not necessarily always the whole picture…I was a willing seller, but I had to…One of the ways they make willing sellers is to come in there and offer…this incredible amount of money, so yeah, people are willing sellers. Like the Rafter 7…I knew the guy that had it for years, he paid like [$1.3 million]…NFWF shows up and offers him $8 million for it…Whatever your water is worth on any given piece of property becomes the minimum value of that property, so it’s inflated the prices of other ranches too… – AG_10

Because the price that the WBC is able to offer for water rights and associated land is so high, some water rights holders may feel that they have no other choice if they are in financial need. Based on stakeholder perceptions that people primarily participate in the

WBC acquisition program because of the high prices that the program can offer willing 30

sellers, it remains a viable lever for water rights transfers as long as it retains its federal

funding source through NFWF. The program is currently funded through 2024.

Participation in the WBC Acquisition Program: Cultural Dynamics

Stakeholders claimed that participation in the WBC’s program was sometimes driven by generational changes in families of agricultural users. The changing dynamic of the family farm in the western U.S. is explained below:

They’re tired…The new generation is coming in…and they’ve seen their parents work themselves to death on these farms out here, especially these really rural types, and I don’t think they really want to do that. So, I think…with the change in generation, you’re getting some of that land being sold. – AG_05 It was not uncommon for agricultural stakeholders to mention the rough working conditions of farming and ranching and that younger generations are not interested in that lifestyle.

Many agricultural stakeholders stated their unwillingness to participate in permanent water rights acquisitions with the WBC because they value the pastoral landscape and the wildlife that depend on irrigated pastures. With water flowing through the irrigation ditches along the agricultural fields, antelope herds and other wildlife wander down from the hills for water and to graze upon the pasture lands. Agricultural stakeholders in the Walker River Basin highly value the wildlife they see every day in their fields and the riparian habitats along the river and irrigation ditches, as expressed by one agricultural stakeholder below claiming concern for such environmental values disappearing through permanent water rights transfers:

I am totally against it…I am for agriculture…[the WBC] own[s] the farm West of mine, it is nothing but a fire hazard. It is so ugly. They were supposed to revegetate it…All the animals, they come where there’s water, they come where 31

there’s greenness, they come where there’s some willows, they come where there’s some trees. [The WBC is] hurting our valley dramatically… – AG_08 Without as much water in the tributaries and irrigation ditches from agricultural water

rights being transferred downstream as environmental flows, agricultural stakeholders

fear that wildlife may no longer visit their pastoral valleys. They enjoy looking out to see

herds of deer wandering their pastures and watching migratory birds stopping over along

the river and ditches. The environmental values sought after for the upstream agricultural

valleys are very similar to the values held by downstream environmental interests for

Walker Lake, yet they don’t seem to be perceived the same across the two sectors. This

may be due to the distance of Walker Lake from the agricultural valleys or that the WBC-

estimated levels to restore Walker Lake seem so high to agricultural users that they fear

there will no longer be enough water upstream for them to irrigate their lands with, which

provides that ecosystem for wildlife.

Perceptions of the SWP

The temporary storage water leasing program did not elicit as much discussion as

the WBC acquisition program, perhaps because it does not involve permanent water

rights transfers, described as controversial above. The SWP elicited less criticism from stakeholders across sectors, and agricultural stakeholders seemed receptive to the SWP continuing. The perceptions were related to the notion that it makes sense to lease out extra storage water if a storage water rights holder is not using their full allocation in a given year – why not lease it out to make some extra money and let that water be released to flow to Walker Lake? The benefit seen by stakeholders of temporarily leasing a water 32

right is that the water is not permanently transferred off of agricultural land, as shown by

the following example:

If it was leased out, I don’t have a problem with that…If a guy’s got a really good water right or he’s got some extra storage water maybe in a reservoir somewhere, and he was able to lease it out to have some supplemental income on his operation…I don’t see any problem with that. – AG_06 Environmental stakeholders viewed the SWP in a favorable light as well, given that much

of the water that was leased out by agricultural storage water rights holders was able to be

temporarily transferred to Walker Lake by the WBC. One environmental stakeholder

discussed the benefits of the SWP for both agricultural and environmental interests:

I think it was good. It caused interaction with the program and the water users, and for the most part it was favorable because they got paid for something that they had an abundance of at the time, and that water got to Walker Lake. So, Walker Lake benefitted from that. – ENV_05 The WRID and WBC have run the SWP once during one good water year (2019)

and did not run it this year due to both low water supply and COVID-19 prohibiting

timely approvals from necessary state and federal offices. Some stakeholders expressed

disappointment that the SWP was not run this year, as 2020 was a low water year and

they felt it would be beneficial to learn how temporary leases would operate when river

flows are less reliable. Running during a low water year would also provide data for

future water rights transfers in comparison with how the program runs in a good water year. It is possible that the SWP was mentioned less often than the WBC acquisition program because stakeholders did not have enough information to base an opinion on.

Water Policy Changes: Walker River Decree

When asked about perceptions of changes to any level of water policy (Question

7, Appendix A), stakeholders rarely mentioned the words “prior appropriation” explicitly. 33

Stakeholders across sectors most often discussed concerns of the Walker River Decree,

which allocates water rights based on prior appropriation. Concerns were primarily

related to the difficulty in modifying or re-adjudicating the Walker River Decree given the impacts it would have on existing water rights holders. Agricultural stakeholders benefit the most the way the decree originally distributed water right priorities. They recognize the competing uses in the basin, but they also recognize the complexity and difficulty in re-defining quantifications and allocations of water rights throughout the basin. Environmental stakeholders have the most to gain from modifying the Decree, given that a decision to re-adjudicate would most likely mean that instream flows for

Walker Lake would be written into the Decree. The Walker River Decree was adjudicated in a time with a lower population, lower levels of use, and more reliable snowpack and streamflows. Environmental uses were also not codified in the law when the final decree was set in 1939 – water rights were allocated to agricultural users for irrigation and the federal reserve priority for the WRPT use for irrigation. Environmental uses did not yet compete for water and Walker Lake was at an adequate level of ecological health. Even with competition existing now, agricultural users are still vying to be the highest priority and majority user of water to maintain their livelihoods, as evidenced by the following report:

For irrigators it would be advantageous to be able to set [the irrigation season date]…according to what the forecast is for the season and to try to…rig it, if you will, for the maximum yield for the irrigators. But, of course…on the other side of the fence, the [WRPT] and [the WBC] are gonna have their own…ideas of what’s optimum for their interests, so it’s…a political football, I guess, among the three parties. – AG_02 34

Although the WRPT does divert water for irrigation on the Reservation, the furthest

downstream consumptive user of water, tribal stakeholders also have some cultural

interests aligned with those of environmental stakeholders for protecting Walker Lake.

Walker Lake was originally designated as part of the WRPT Reservation, but in 1906 the

Reservation was re-designated without the lake under the Allotment Act2 (Begay, 2018).

Figure 1 illustrates current downstream geography of the basin. Environmental and tribal stakeholders agree on the perceived importance of allocating water for restoration of

Walker Lake. One environmental stakeholder hopes for the Decree to be modified in the future to allow for water to flow to Walker Lake with adjudicated water rights for instream use:

C-125 has to be…modified – I was gonna say rewritten, but no, that ain’t gonna work – but modified to allow the terminology that the water will flow to the lake. – ENV_03 Stakeholders often claimed that disparity exists between uses of decreed water rights. For example, an agricultural stakeholder upstream in California expressed concern over the impacts that the Walker River Decree set in motion for irrigators when the WRPT

Reservation was granted the most senior priority date for surface water diversion:

They used to have priority the same as us…When [the court] decided that [the WRPT users] were there first and they wanted to prioritize them…all they did was change their priorities all to…1859…something that predated everybody. Well, if [the WRPT is] running out of water down in Wabuska, then [the Federal Water Master] shut[s] us off up here…If there’s a lot of water, Antelope Valley can take more water than there is in the river under a priority…There’s so much water leftover in the system, Wabuska’s getting satisfied easy. But when the reservoirs are dry and…we’re into the second year of drought, things are getting bad. I’ve seen 200 [cubic feet per second] of water here in Walker running by, and we can’t touch it, because they’re trying to get 26 [CFS] to Wabuska – you’re

2 The congressional passage of the General Allotment Act of 1887, also known as the Dawes Act, removed two-thirds of all Native American land holdings in the U.S. (LaVelle, 1999). 35

talking about a 2,000 percent loss [of water]…But that’s how much…that water right in Schurz is worth... – AG_043 It was revealed that agricultural stakeholders believe that modifying prior appropriation

would hinder water security across users given the harm that re-appropriating existing water rights could cause.

Conflict and litigation often arise between stakeholders for the Federal Water

Master and the USBWC to change the start of the irrigation and delivery season for

Decree water. One environmental stakeholder felt that the old system of setting decrees needed to be modernized and the Decree should be re-adjudicated to equitably meet water needs across competing uses:

Having things run by a Federal Water Master sitting in one place…calls and switches and tabular tables…it is totally…out of control, not modernized…If I was rich…I would focus on the Walker. I’d buy out every single water right…and then reallocate and redistribute the law…people could actually use the water and the animals and plants will be happy – ENV_06 From the point of view of environmental stakeholders, it appeared that they did not perceive the Walker River Decree to be equitable across competing uses.

Water users in the Walker River Basin imagine the water running through the

stream with inherent rights. They attach priority rights to the water itself that is seen in

the river and its tributaries and are aware of what priority dates are called upon the river at any given time during the irrigation season. When discussing surface water from the

Walker River, stakeholders across sectors often referred to the water itself as “Decree”.

One agricultural stakeholder referenced “Decree” water when speaking to the benefit of

owning groundwater rights over storage water or surface water rights because of the

3 Wabuska is the point of diversion above Weber Reservoir where water is delivered to the WRPT Reservation. Schurz is the main town on the reservation, and Walker is a town upstream in California. 36

runoff that occurs from using storage water or surface water that recharges groundwater

reserves:

Anybody can buy a piece of groundwater rights, it doesn’t say they have to farm…That’s a subtle benefit…because if they don’t utilize water and they have storage water and they have Decree water, well, all that water goes to somebody else’s benefit in a period of time – AG_03 Participants from all sectors also frequently spoke about the pending Nevada

Supreme Court decision on litigation between upstream consumptive water users and downstream non-consumptive water users in a case citing the public trust doctrine4 for

Walker Lake. If the Nevada Supreme Court ruled in favor of public trust, the decision

would allow for reallocation of surface water rights in the basin to restore the ecological

health of Walker Lake (Rothberg, 2018) through re-adjudication of the Walker River

Decree, upending previously settled water rights. Stakeholders across all sectors

expressed strong feelings both in favor of and against the litigation, though further

discussion of this topic is beyond the scope of this project.

6. Discussion This study aimed to specifically understand stakeholder perceptions of water

rights transfer programs and prior appropriation in the Walker River Basin, which, like

other arid regions in the world, is struggling with meeting future water supply needs due

to changing users and uses of water. The results of the interviews and analysis of

stakeholder perceptions were manifold; however, a deeper story of agricultural and

environmental stakeholder perceptions was most prominent. Agricultural and

environmental stakeholders spoke at length about the Walker River Decree and

4 The public trust doctrine mandates that the federal government protects natural and cultural resources for public use and is commonly invoked for bodies of water ("Public Trust Doctrine", n.d.). 37

permanent and temporary water rights transfers in the Walker River Basin and how these

things affect water security and perceptions of equity for the basin’s competing users and

uses. This research showed that the Walker River Basin is an incredibly complex system in terms of water users, and opinions about water rights transfers between competing

users and uses and changes to prior appropriation are varied. Agricultural stakeholders have a lot of influence in the Walker River Basin as the majority and one of the most senior users – in some respects, changes to water policy and the existence of water rights

transfers are up to them.

Current water rights transfer programs in the basin stem from environmental

interests seeking to transfer some portion of water out of the agricultural sector, either

permanently or temporarily. Agricultural stakeholders have the opportunity to get rich by

participating in water rights transfer programs, but because they own the majority of

priority water rights in the basin, they also have the most to lose with water rights being

transferred out of the agricultural sector to competing environmental uses. Environmental

stakeholders in the Walker River Basin are able to offer a high value for water rights with

the most to gain by acquiring senior agricultural water rights to transfer to environmental

use. This research revealed that permanent water rights transfers may not be the answer

for water security in the Walker River Basin, based on frequent reports from agricultural

stakeholders that moving water off of agricultural land is a threat to their rural,

agricultural lifestyle as farming and ranching are their livelihoods. Decree water rights

holders depend on reliable streamflows from the river to irrigate their agricultural lands

in order to continue to support the agricultural economy of the rural valleys in the Walker

River Basin. Agricultural stakeholders in the basin fear that their livelihoods are at stake 38

with the existence of the WBC acquisition program and with competing users vying for changes to the Walker River Decree to allow for re-adjudication of existing water rights.

Environmental stakeholders feel that designating water for instream flows is crucial for the ecological health of the basin, especially for restoring Walker Lake. It was also revealed that environmental stakeholders perceive the acquisition of Decree water rights to permanently transfer them as instream flows for environmental use through the WBC acquisition program as a viable way for lake levels to increase to restore the ecological habitat of Walker Lake.

While environmental stakeholders in the basin seek to work with agricultural stakeholders to ensure that a balance between competing uses remains, they rely on agricultural stakeholders being willing to participate in temporary or permanent water rights acquisitions. Temporary water rights leasing seemed to be more equitable across competing uses, as shown by the perceptions of the SWP. If storage water rights holders, primarily agricultural water users, have extra water in any given year, they benefit by being compensated for temporarily leasing that water to whoever is in need of it, including the WBC when in need of additional water instream for flows to Walker Lake.

Because stakeholders across sectors were more receptive to the SWP program, it may be that temporary water rights leasing offers higher levels of water security to the Walker

River Basin by allowing lessees access to acceptable quantities of water to support their water supply needs with a more equal distribution of risk among users than the permanent

WBC acquisition program provides.

Based on stakeholder responses across all sectors regarding the difficulty in modifying or re-adjudicating the Walker River Decree, it is highly unlikely that changes 39

to prior appropriation will happen in the Walker River Basin. Stakeholders discussed

concerns of uses of water, place of use, and timing of use when referring to the Walker

River Decree. These are the major tenets of prior appropriation that concern stakeholders

who own Decree rights for surface water. After data collection was complete, the public

trust case that stakeholders often discussed during interviews was decided on by the

Nevada Supreme Court. The Court ruled that the Decree could not be re-adjudicated to

prevent environmental damage to Walker Lake, determining that public trust is taken into

account under the existing regulations of prior appropriation (Rothberg, 2020). This

decision provides further argument that modifications to prior appropriation and the

Walker River Decree are unlikely to happen, but the litigation is not fully resolved yet

and could potentially be appealed up to federal courts. Agricultural stakeholders benefit

the most the way the Decree was originally written. Environmental stakeholders have the

most to gain by modifying the Decree to recognize environmental flows as a beneficial

use and senior priority in the basin. Both stakeholders recognize the complexity and

difficulty in re-adjudicating a law like the Walker River Decree and the cascading effects

it would have throughout the basin. Proposed changes to policy often lead to perceived

threats to the predictabilities and securities that existing laws provide, which can lead

agricultural stakeholders to fear and resist change (Anderson et al., 2018). This is true of

the security that agricultural stakeholders feel with surface water rights for irrigation

settled by the Walker River Decree and the perceived threat posed by environmental

stakeholders seeking modifications to the Decree and permanent water rights transfers

from agricultural to environmental use. Reforming prior appropriation – in the case of the

Walker River Basin, the Decree – would mean reform to the perceptions and livelihoods 40

of agricultural stakeholders whose identities have been shaped by prior appropriation

(Anderson et al., 2018).

Modifying decrees is uncommon, but not unusual. The Walker River Decree has been modified several times; the process of decree modifications is what makes modernizing prior appropriation an option for ensuring flexibility among users. In a less complex basin, changes to prior appropriation or engagement in water rights transfers may be easier. In the Walker River Basin, there are so many levels in the governance structure and in the competition between uses that modifications to the existing policies are perceived as negative for established senior water rights in the upstream agricultural valleys but positive for environmental interests downstream at Walker Lake and on ranches designated for native species revegetation. Modifications are successfully attempted, though, in the Walker River Basin through water rights transfers. The existing programs like the permanent WBC acquisition program and the temporary SWP are mechanisms for water users to look at where movement is possible within the law and where they can change the timing and place of use of existing water rights.

Given what we have learned based on stakeholder responses, there are two possible solutions to increase perceptions of fairness and utility of the existing water rights transfer programs and perceptions of changes to the Walker River Decree in the

Walker River Basin. First, agricultural stakeholders should have a place at the table with environmental stakeholders in implementation of the water rights transfer programs, especially the permanent WBC acquisition program. Promoting more interdisciplinary involvement between the sectors could help to change perceptions of the programs and allow stakeholders to better manage their way out of water security challenges across 41

competing users and uses. Second, environmental stakeholders should have a place at the

table with the USBWC to foster inclusivity across sectors on the management of the

Walker River Decree, given that the WBC now owns some senior Decree rights from the

acquisition program. These two recommendations would allow stakeholders from the

agricultural and environmental sectors to cross into each other’s water management

frameworks to collaboratively work through water security challenges. Because the water

governance structure in the Walker River Basin is so complex and any changes to

historical water management policies and practices tend to be quite controversial, it is

unknown whether more concrete recommendations could fix the water security

challenges that users are facing across competing uses.

7. Conclusion The Walker River Basin is illustrative of the dynamics of the western U.S. as it is

influenced by multiple sectors of use, reliance on multiple water sources, and is a

drought-prone and overallocated basin. Seasonality and challenges of drought coupled

with the emergence of competing uses in water rights transfer programs have increased

stress on decreed water rights administration in snow-fed river basins like the Walker

River Basin. Decrees exist all over the western U.S. and findings from this research may

be generalizable to other water users in transboundary, drought-prone areas that are influenced by competition of historical and new beneficial uses of water and operate under decrees for allocating water rights. This research showed that legal reform of prior appropriation is not likely, and opinions of legal changes vary across sectors. The transfer of water rights out of agricultural use to environmental use through permanent acquisitions may also not be the answer to water security in the western U.S. given the 42

resistance to participation by senior water rights holders, who fear that change threatens agricultural livelihoods. Environmental stakeholders seek to find a balance between the uses to meet ecological restoration goals, but water rights acquisitions may not be the best way to ensure that balance. Even if prior appropriation and the Walker River Decree are not modified, based on stakeholder perceptions gleaned from this study, the existing mechanisms for water rights transfers in the Walker River Basin do not seem to be sustainable to ensure a fair risk-sharing scheme among water rights holders or for meeting water security goals. There is need for legal and administrative behavioral change to ensure water security across competing uses in the West given the challenges that water users are facing operating under strict decrees within the priority structure and attempting to move water around to meet needs across sectors.

43

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Appendix A. SNOWPACS Interview Questionnaire – Summer 2020

1. Can you please describe how you are involved in managing water in the (BASIN)? a. How long have you been doing this? With what organization? b. Where (geographically in the Basin) do you manage water?

2. Can you tell me about the kinds of water management decisions you need to make each year? (e.g. crop fallowing, curtailment of water use, contracts, etc.) a. When do you need to make these decisions? b. What information or costs are important for you to consider when making these decisions? (e.g. costs, projected water availability, reservoir levels, water/agricultural market prices, legal or regulatory factors, models, etc.). c. How certain do you need to be in the information in order for it to be useful?

3. What changes have you noticed in water supply or demand over the course of your work in the basin? a. How do you think these changes play out over next 25 years? ● Prompt: physical changes (e.g. snowpack/melt has changed), human changes (e.g., more diversions/people, changes in agricultural markets/societal values).

4. Scientists suggest that, in the future, surface water flows throughout the western U.S. will stay about the same, but snowmelt runoff will occur 2-4 weeks earlier and cause a large reduction in streamflow during May-July. What impacts, positive or negative, do you think these changes will have in your basin? a. Who are these changes impacting and why? ● Prompt: Are there particular types of water rights that are more impacted?

5. Have you, or other water users you know, implemented any changes in response to the changes you have observed in water supply and do you think they will help? a. If no changes: why do you think policies/plans haven’t been implemented yet? ● Agriculture prompts: changes in conveyance infrastructure (lining ditches or laying pipes), irrigation technologies (e.g. drip irrigation, soil moisture monitoring and irrigation scheduling), cultivation practices (no-till, dryland, indoor ag), crop choices, storage, using reclaimed water, exit strategy? ● Environment prompts: changes in water rights acquisition, water management/ delivery, storage, agriculture land reclamation programs, conservation practices? 50

● M&I prompts: Changes in water rights acquisition and water management/delivery, efficiency/re-use plans, using reclaimed water? 6. We’d like to hear your perspective on any existing water trading or transfer programs in the basin (SWP/WBC acquisitions in Walker; C-BT in South Platte). Can you tell me a little about how these programs work? [discuss each program] a. Why do you think people participate in this program? What keeps people from participating? b. Is there a favorable or unfavorable view of the program? c. Is there anything you think could improve the program? d. Are there any other water trading programs we should know about/discuss?

7. Are there any other changes you think should be made to water management or policy to ensure sufficient water supplies going forward, whether at the district, basin, state or federal level? a. Is there anything that might impede these changes from occurring? ● Prompt: existing allocation rules, a lack of information about markets and/or proving no injury, lack of coordination among water managers, issues pertaining to protection of private property rights and public doctrine, costs, other?

8. We’d like to ask you some questions about who you have worked with to address existing water management challenges: a. Who are the most important people or organizations you get water-related information from, or who you share information with? b. Who have you worked with on creating or implementing plans or policies related to water management? c. Have you engaged in any specific water management programs in your basin, such as transferring water, and if yes, who else was involved? d. Are there any other important individuals or organizations you work with that we should consider? e. Is there anyone else you might work with in the future to cope with water challenges in the basin and why? 9. Given our discussion today, what kind of information would be useful for you to get from our project? Do you have any remaining questions about the project or comments about topics we didn’t cover?