The following annoucnment was issued by the Bureau of Reclamation on January 4, 2012:
The Bureau of Reclamation has reissued for public comment four draft Reclamation Manual releases regarding water-related contracting activities. These draft releases provide definitions of key terms and revise existing definitions for water-related contracts, restructure and clarify Reclamation’s water transfer and conversion policy and consolidate and set-out basic pricing requirements for water-related contracts. Comments are due to Reclamation by April 3.
The four draft releases are:
- Draft RM Policy Water-Related Contract and Repayment General Principles and Requirements (PEC P05).
- Draft RM D&S Water Rates and Pricing (PEC 05-01).
- Draft RM Policy Transfers and Conversions of Project Water (PEC 09).
- Draft RM D&S Conversions of Project Water from Irrigation Use to Municipal and Industrial Use (PEC 09-01)
These releases have been updated to reflect comments received during the first comment period from September 29 to November 30. The changes are highlighted with redline-strikeout throughout the documents.
The Reclamation Manual establishes Reclamation requirements, assigns program responsibility and establishes and documents Reclamation methods of doing business.
These draft updates are available for detailed review at: www.usbr.gov/recman. A summary of the draft updates can be found at: http://on.doi.gov/rMciUA. Comments or questions may be directed to Owen Walker at email@example.com.
On December 16, 2010, the Nevada Supreme Court issued a per curiam opinion, Pyramid Lake Paiute Tribe of Indians v. Ricci, affirming the district court’s order denying judicial review of the State Engineer’s decision to grant Nevada Land and Resource Company, LLC’s (NLRC) change application for water rights in Washoe County’s Dodge Flat Hydrologic Basin.
NLRC originally obtained permits to appropriate Dodge Flat groundwater for temporary use in a mining and milling project in 1980. Twenty years later, NLRC applied to change the use from temporary to permanent and from mining and milling to industrial power purposes.
The Pyramid Lake Paiute Tribe of Indians (“the Tribe”) opposed the change application on the grounds that (1) Dodge Flat has no unappropriated groundwater, (2) groundwater pumping would interfere with existing rights to Truckee River surface water based on the hydrological connection between the Truckee River and Dodge Flat Basin, and (3) pumping from Dodge Flat Basin threatens to prove detrimental to the public interest by reducing Truckee River water quality and threatening the cui-ui fish and Lahontan cutthroat trout habitats.
On appeal, the Nevada Supreme Court found that there was substantial evidence to support the State Engineer’s conclusions that (1) there is 1,428 afa of unappropriated water available for permanent use in Dodge Flat Basin, (2) the change applications will not affect existing water rights, and (3) that the change application does not threaten to prove detrimental to the public interest.
Specifically, the Court found that the State Engineer properly excluded the Tribe’s use of groundwater in Dodge Flat Basin from the calculation of perennial yield because the Tribe has no express or implied rights to the water. Furthermore, the Court found that the change application does not threaten to prove detrimental to the public interest because NLRC’s pumping will be limited to the amount of the unappropriated perennial yield. Finally, the Court held that any potential threat to the public interest or injury to existing rights is a consequence of the Tribe’s unauthorized pumping without a permit or implied right.
A full copy of the opinion is available at: http://www.nevadajudiciary.us/index.php/advancedopinions/909-pyramid-lake-paiute-tribe-v-state-engr.
Schroeder Law Attorneys Schroeder and Ure as members of the executive committee for the Nevada Environmental and Natural Resources Section as well as Schroeder Law Administrator Scott Borison assisted in planning and participated in the First Lifetime Achievement Award ceremony and reception for former Director of Conservation and Natural Resources Allen Biaggi on May 4, 2010. The reception was hosted by the Lionel Sawyer & Collins Reno office where Mr.. Biaggi, who retired on April 30, 2010, was recognized for more than 30 years of state service.
The Director of the Nevada Department of Conservation and Natural Resources recently announced the appointment of Acting State Engineer Jason King to the position of State Engineer. Mr. King has spent more than 19 years with the Division of Water Resources. A press release from the Nevada Department of Conservation and Natural Resources on this appointment is available here.
On January 28, 2010, the Nevada Supreme Court issued its opinion in the matter of Great Basin Water Network, et al. v. State Engineer and Southern Nevada Water Authority, wherein the Court determined that the State Engineer had violated the statutory duty under NRS § 533.370(2), which requires that the State Engineer approve or reject any application made prior to the 2003 legislative amendments within 1 year after the final date for filing a protest. Subsequently, the Nevada Legislature issued a Motion to Express Legislative Intent during a Special Session indicating that the resolution of the issues raised in Great Basin Water Network is of critical importance.
On March 16, 2010 the State Engineer held a workshop to consider possible amendments to Nevada water law to address the issues raised in Great Basin Water Network including (1) the protection of existing water rights, (2) the status of pending applications, (3) the preservation of priorities, and (4) the application of the protest period provisions. The State Engineer has posted written comments filed during the workshop along with suggested language to address the issues raised on the workshop webpage.
The State Engineer will accept proposed amendments that address the issues raised in Great Basin Water Network until Friday, March 26, 2010. Any proposed amendments will be posted on the workshop webpage, and comments to the proposed amendments will be accepted until Friday, April 2, 2010.
For more information, including links to the Supreme Court decision and the Legislature’s motion, visit the workshop webpage.
Do you keep your deeds in the safe? A secure file? If so, you surely know what water uses you are entitled to and have these records kept safe and secure reviewing them annually?
If not, you’re lucky that the state has records on the water uses related to your property. However, it’s unlikely these records have not been reviewed in the recent past. It is also probable that there are lurking “time bombs” in your water use records. Such “time bombs” include: (1) Permits or Transfer orders that need extensions; (2) Permit Conditions that have not been met; (3) Final Proofs past due; (4) Certificates yet to be issued.
For a fixed fee of $375 and a copy of your property deeds, Schroeder Law Offices, PC, will make a public records request to the proper agency, make a complete copy of your water rights providing you with either a paper or electronic copy or both, as well as one hour of free consultation to provide you an overview on the phone and a summary in writing of issues spotted in your water right files needing attention.
Email Ms Daryl Cole (firstname.lastname@example.org) now to begin the process—and start the New Year out right knowing that your water rights are secure!
Federal Judge Robert C. Jones called Schroeder Law Offices attorney Laura Schroeder and others to court today to end 29 years of litigation related to over 200 transfer applications filed by various farmers in the Newlands Project, Nevada. These transfers were tied up for years by the Pyramid Lake Indian Tribe appeals to Nevada State Engineer rulings on the issues of lack of perfection, forfeiture and abandonment.
Decisions on these transfers were complicated by two factors:
- The United States issued individual contracts for the storage water in the Newlands Project rather than through an irrigation district (now the Truckee-Carson Irrigation District); and
- The Orr Ditch Decree and Alpine Decree issued water rights to the Newlands Project farmers in a lump acres allocation rather than describing the allowed decreed water rights for irrigation to particularly described acres.
Today’s final order from the bench at lastÂ closed the matter. Ultimately, a few farmers gained approved water right transfers, many farmers lost water righted acres, and some farmers simply withdrew as the transfer process became too costly over the many years. A confirming written order will follow shortly.
Completing a teaching tour through Central Nevada, it will come as no surprise that the number one issue in the minds of participants are the duties of the Southern Nevada Water Authority to counties from which it intends to export water. Emphasis was placed on the need for affected counties to be involved in the transfer and exporting process as provided by Nevada water law.
At Schroeder Law Offices, P.C., we routinely work with our clients to develop efficient water use and management systems. Upon reviewing the competition offered below, we thought of you! Thus, if you are an innovative and efficient water user, or perhaps want to share your ideas with others then you might check out this competition!
Imagine H2O is running its inaugural competition this fall on “Water Efficiency.” Kick-off is September 1st. Competitors will provide solutions that reduce the demand or use of water in either agriculture, commercial and industrial, or residential applications. This could be done via demand response, recycling, reuse, or through any other smart management ideas. Total prizes given in 2009-10 will be $50,000. Winners will receive cash, in-depth business incubation including introductions to financiers, potential beta customers and go-to-market partners, and reduced-rate or free office space.
Imagine H2O is a not-for-profit company based in San Francisco, turning water problems into entrepreneurial opportunities. For more information on the Water Efficiency Competition, you can check out their website at www.imagineh2o.org
Good Luck in the Competition! Be sure to let us know how it goes.
The Society for Range Management in partnership with the Bureau of Land Management has produced a 9 minute video that “serves to tell a story about the role of livestock grazing on western public rangelands and our collective hope for a future of sustained rangeland health and enjoyment.” “Hope on the Range” is a video worth watching!
To view this video, follow this link: Hope on the Range
TCID announced that water allocations in the District are being increased from 80% to 90%. The District made this decision after Lahontan Reservoir levels continued to rise. Water users can expect to see the adjustment reflected on their next water card.
TCID also announced that due to amendments in A.B. 226, the District now has greater taxing ability. A.B. 226 was signed by the Governor and will take effect on July 1, 2009. Under the new law, the District can now assess residents up to $5.00 per acre. The District decided to increase their assessments from $1.50 per acre or home lot to $3.00 beginning in 2010. This is a 100% increase! According to the District these funds will go towards canal rehabilitation and upgrade activities.
By Law Clerk Nicole Widdis
The Truckee-Carson Canal breached in early 2008, however the litigation continues. See Water Law Blog entries from April 24 and 30, 2008 for background on the matter.
The latest attempt by the homeowners in this case to limit the amount of water going down the canal was heard in Nevada Federal District Court for three days beginning May 11, 2009. The homeowners renewed their 2008 motions for a preliminary injunction to stop water going down the canal. However this year, the homeowners put a new spin on their request. They asked the court to make a ruling that if there was a mere forecast of a storm event, that the water in the canal would have to be dropped from 350 CFS flow to 100 CFS flow.
On May 12, 2009, the federal judge in Nevada denied the preliminary injunction, without prejudice. This means that though the court has denied the request at this time, the parties are free to renew their request for injunction at a later date. The flow in the canal will remain at the 350 CFS flow which is the maximum flow allowed in the canal under the 2008 court order. The court also ordered post-trial briefing on some of the issues discussed at the hearing. In other words, this case will continue to be litigated. Stay tuned.
The Nevada Federal District Court case numbers for these matters are: 03:08-cv-00246-LDG-RAM, 3:08-cv-00621-LDG-RAM; and, 3:08-cv-00285-LDG-RAM.
By Law Clerk Nicole Widdis
On May 6, 2009, Governor Gibbons signed into law Assembly Bill 226, changing the financial requirements of irrigation districts in Nevada. This law will go into effect July 1, 2009.
The existing law had limited the amount of money spent on a single purchase by a district on machinery or materials for constructing or repairing an irrigation system to no more than 5 cents per acre of land in the district. The new amendment will remove that cost limit. Also, the new law will allow irrigation districts to incur up to $500,000 in debt, rather than the $350,000 limit under the existing law.
Finally, under the existing law, assessments of $1.50 per acre could be collected and used for ordinary and current expenses of the district, for example salaries of officers. The new law will still allow for collection of such assessments. The new law will also allow for assessments by an irrigation district of not more than $5.00, per acre, for deposit into a capital fund for the construction, reconstruction or maintenance of the irrigation system.
However, the new law limits the total cumulative assessment for capital fund and ordinary expenses, at $5.00, per acre. Thus, the district will not be able to tax $6.50 per acre in order to contribute to a capital fund and pay ordinary expenses. The total assessments must not exceed $5.00 per acre.
Nevada Revised Statutes 539.255 and 539.480. Changes to become effective July 1, 2009.
2,4-D is a herbicide commonly used to attack broad leafed plants, but it is less harmful to grasses. In agricultural applications, herbicide is applied to wheat, small grains, sorghum, corn, rice, sugar cane, low-till soybeans, orchards, rangeland, and pasture. Others mix it with other herbicides or pesticides for application onto non-producing lands such as roadsides, lawn turf and forestry. 2,4-D is one of the widest used herbicides in its class for weed control.
On November 6, 2008, the Natural Resource Defense Council (NRDC) filed a petition with the Environmental Protection Agency (EPA) requesting the EPA to revoke the use of 2,4-D via revoking all tolerances and canceling all registrations for the pesticide. NRDC believes that the petitioned action would create proper compliance with the safety standards of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and the Federal Food Drug and
Cosmetic Act (FFDCA), section 408, as amended by the Food Quality Protection Act (FQPA) of 1996.
You can submit comments to this petition that must be received by the EPA on or before January 23, 2009. Send comments to the EPA: 1) via following the links to submit comments online through the Federal eRulemaking Portal: http://www.regulations.gov, or 2) mail to: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
Reference Docket No. EPA-HQ-OPP-2008-0877 on all comment submission to the EPA.
For more information go to: http://www.epa.gov/fedrgstr/EPA-PEST/2008/December/Day-24/p30527.htm
The Bureau of Reclamation recently announced they are seeking letters of interest from non-Federal entities throughout the western states to conduct river basin or sub-basin studies.Â The Bureau is conducting the studies as partÂ ofÂ the Water for America initiative. The Basin studies are to be cost-shared on a 50/50 basis with state, tribal and local partners. Letters of interest must be received by regional Reclamation offices by February 4, 2009.
For more informationÂ including regional office information please see: www.usbr.gov/wfa
On December 2, 2008 the grand jury in the Federal District Court of Nevada returned an indictment to the court charging the Truckee Carson Irrigation District (TCID) and four of it’s employees: David Overvold, Lyman McConnell, Shelby Cecil, and John Baker with conspiracy to defraud the United States Bureau of Reclamation, falsification of records, false claims, and false statements.
TCID manages the Newlands Project in Northern Nevada pursuant to the Operating Criteria and Procedures established by federal rules and regulation (43 CFR 418.1 et seq.). These federal indictments will have long range effects to those in the Newlands Project!
The charges allege that TCID and its employees essentially mis-managed the district by fraudulently obtaining incentive credits via submitting false data as to water deliveries. The list goes on.
If convicted, each individual defendant faces up to 20 years in prison for each falsification of record count, and five years in prison for each count of false claims, false statements, and conspiracy to defraud the US. The individual defendants also face maximum possible fines of $250,000 as to each count. If TCID is convicted it could be fined for each count twice the gross gain or loss suffered to another, or $500,000. TCID could also be subject to probation and a court-ordered monitoring program, among other things.
TCID is now faced with hiring criminal attorneys to represent the district and the four charged employees. With these costs of all the other pending litigations and issues the district is facing, TCID approved a plan to reduce their work force to approximately half its current size.
What will happen next? Will the water be flowing for the 2009 irrigation season? Stay tuned.
Accepting associations and referrals in Oregon, Washington, Idaho and Nevada, Schroeder Law Offices recently opened its new office in Reno, Nevada.Â With a population of 250,000, Reno is at the center of water controversies on the Truckee, Carson, and Walker rivers.
Each of these desert rivers interestingly terminate at a lake with an associated Indian reservations adding to the possible legal issues.Â Municipal and agricultural interests use and divert waters from these rivers adding to the on-going controversies over high valued water.Â With the official opening of its staffed office in October, Schroeder Law Offices plans to expand its Nevada natural resources clientele.
Colm Moore and Laura Schroeder will present a 4-hour seminar on Nevada water rights in Winnemucca on December 9 and in Elko on December 10. For more information click here.
Throughout the arid West, water users, state agencies and federal agencies have constructed reservoirs and ponds of varying size and capacityÂ to store water for a variety of uses. Many irrigation districts or other water delivery organizations have acquired sizable reservoirs that were initially constructed by the Bureau of Reclamation or another federal agency for the storage of irrigation water.Â Â These reservoirs create unique recreational opportunities for the citizens of the state who enjoy the use of these reservoirs for camping, fishing, boating and swimming.Â In most circumstances, the recreational use occurring is promoted or encouraged byÂ oneÂ or moreÂ state agency, though the state agency has no ownership interest in the facility. Â
Owners of such facilities have a unique opportunity toÂ enter into a recreational use contract(s) with the appropriate state agency to allow the recreational use.Â RecreationalÂ use contracts are beneficial to owner and operators of these facilitiesÂ to protect the interests of the water organizations andÂ users who use the water for irrigation and to maximize the fiscal opportunities to the organization.
Contracts for recreational use should include terms addressing:
1.Approved recreational uses and extent of recreational use;
2. Liability for injuries caused by recreational use;
3. Protection of stored irrigation water;
4. Duties and obligations regarding maintenance and repair work;
5. ReimbursementÂ for maintaining a “minimum pool”.
These are a few, among many other, terms that should be included in a recreational use contract. Owners considering this action should consult legal counsel before entering a contract of this kind.
With food prices at all time highs, agricultural market prices rising, and water rights at a premium, now is the timeÂ to plan for the future.Â We suggest that water users create and update water management plansÂ with anÂ an eye to water rights security, stability, and development.Â A water management plan will analyze the current state of the water rights designated and appurtenant toÂ property orÂ other boundaryÂ and will provideÂ a tool to consider options for their use, development or marketing.Â One can begin this work byÂ emailingÂ Ms. Daryl ColeÂ for a water rights authorization packet.