The discussion of a specialized water judiciary is ramping up as Nevada considers creating water courts in both the legislative and judicial branches.

I. Proposed Legislation

On November 18, 2020, Senate Joint Resolution No. 1, commonly known as SJR1 was pre-filed for the 2021 legislative session. SJR1 was originally proposed by the Nevada Division of Water Resources, Office of the State Engineer (“Engineer”).  Then, the Nevada Legislative Counsel Bureau drafted the bill’s text for prefiling. SJR1 proposes to amend the Nevada Constitution to provide that the Nevada Court of Appeals has original jurisdiction over certain cases relating to water.  These cases contemplated in the bill include civil cases arising from a final order or decision of the State Engineer.  Currently, the original jurisdiction of these cases falls with the district courts.

The actual amendments to sections 4 and 6 of the Nevada Constitution are brief. However, under them, the appeals of complex and technical State Engineer decisions would bypass the district courts and end up directly in front of the Court of Appeals. Water users and legal observers alike raised many concerns about SJR1 even before lawmakers arrived in Carson City on February 1, 2021 for the start of the legislative session.  For example, water users in Battle Mountain who dispute State Engineer rulings would be required to travel hundreds of miles to Las Vegas or Carson City to appeal their case before the Court of Appeals.  A common theme of concern was the limited access to justice that would result from this reorganization.

Acting State Engineer Adam Sullivan expressed agreements with these concerns.  The State Engineer’s office ultimately decided not to pursue SJR1 as written.

However, the State Engineer also expressed the importance of the premise originally contemplated in SJR1.  The idea behind the bill was to create a small group of judges that, over time, would hear many water cases and would develop a subject-area expertise in water law.  It is no secret that water law is a science heavy and technical area of law. Many attorneys who practice water law specialize in it for this reason.  Other states also recognize this type of specialization in the judiciary.  Colorado for example created its Water Courts in 1969, appointing a water judge for each of its seven water divisions.  These judges have specialized jurisdiction in the determination of water rights, use and administration of water, and all other water matters within their division.

II. Judicial Petition

As the State Engineer moves away from SJR1, Supreme Court Chief Justice Hardesty moves forward with a petition to empanel a commission that will examine the creation of specialty water courts in Nevada.  The goal of the petition is to bring more water law expertise to the judiciary.  The petition, identified as ADKT 576,would study improvement of education, training, specialization, timeliness, and efficiency of Nevada’s district courts in the judicial review of water cases.  It would further consider the authority of the Chief Justice of the Supreme Court to designate trained district judges to serve on water cases.  The petition suggests the inclusion of the follow representatives on the commission:

1. 1. 1. Nevada Department of Conservation and Natural Resources/State Engineer;
      2. Water Rights Engineers/Hydrologists;
      3. Water Rights Attorneys;
      4. Urban Municipal Water Purveyors;
      5. Rural Water Interests;
      6. Agriculture;
      7. Irrigation Districts;
      8. Mining;
      9. Environmental Organizations;
      10. District Court Judges;
      11. Rural Nevada Communities; and
      12. Urban Nevada Communities.

III. Public Hearing

The Supreme Court held a public hearing on ADKT 576 on March 3, 2021. During the hearing, Justice Hardesty identified water as a “challenging, complexing, and consistently disagreed upon” area of the law.  The Court took comment on the petition during the hearing.  While the representation at the hearing was diverse, there was a common consensus:  general support for the creation of the commission and a new way to judicially review State Engineer decisions.

Deputy Administrator Micheline Fairbank and Acting State Engineer Adam Sullivan represented the State Engineer’s Office. “We believe an understanding of the law and precedent is not only required but important to the ability and desire to make sense of the technical scientific data,” Fairbank commented.  Sullivan echoed the sentinent and expanded, stating that the commission needs diverse and broad representation of all Nevadans, including Tribal Nations. The State Engineer also requested the Court expand the scope of the water court’s jurisdiction to adjudication proceedings.

Representatives for the Truckee Meadows Water Authority, water law attorneys, and environmental groups also generally supported the petition.

The Court took no action on the proposal during the March 3, 2021 hearing.  You cna track the status of the petition here.

Interested in more legislative water law updates?  Check out our blog on AB 5, AB 6, and AB 15 and keep an eye on blog postings for future updates.

On February 20th and 21st, Schroeder Law Offices attended the Carson Valley “Eagles and Agriculture” weekend.  The Carson Valley Chamber of Commerce and Agriculture Extension office hosted the event. It occurs annually when migratory eagles traverse the Carson Valley on their way back to Northern breeding grounds.  The weekend is full of tours and workshops with two primary focuses: eagles and agriculture.  This year’s event took on new Covid safety measures.  Attendees met and caravanned to tour locations in individual vehicles rather than riding in coach buses.  Attendees also “masked up” during tours. The event was cancelled and rescheduled multiple times before the date was finally set on February 19th through 21st.  However, the organizers and volunteers succeeded in keeping the fun and informative event on the calendar. 

Workshops and tours during the 2021 event included a wetland tour, Falconer’s Dinner with live raptors, Eagles and Ranch tour, an “owl prowl,” and a guided hike at the Bentley Heritage Trail.  Tour locations ranged from public trails, local parks, and private ranches.  Attendees of the owl prowl saw Bald Eagles, Red Tailed Hawks, and a mated pair of Barn Owls at the Danberg Ranch.  However, the mated Barn Owls and Great Horned Owls at the Herbig Ranch proved elusive.  The Herbig Ranch owners reported the owls were back to their usual and robust activity the day after the tours ceased. 

The weekend’s second focus, agriculture in the Carson Valley, was prevalent during all tours.  The Danberg Ranch was a destination for multiple tours.  The Ranch is a locally run historical park and is one of the state’s first ranches.  The Danberg family settled and built the ranch in the early 19^th century.  The property includes the ranch house, carriage house, slaughterhouse, and laundry outbuilding, among other historic structures. 

The Herbig Ranch was also open to tours. This is another historic ranch purchased by the Herbig family when they immigrated to the United States during the World War II era.  The family still owns the ranch.  While attendees missed sighting the elusive owl pairs on the property, the visit included a guided tour of historic structures and a description of how the ranch is still operated today. 

The last event of the weekend was a guided hike on the Bentley Heritage Trail along the Carson River.  The hike included lessons in the hydrology and ecology of the river; history of the valley and pony express; and development of Genoa, Nevada, the first settlement in the state.

The well-rounded weekend ended with the annual call for submissions to its photography contest.  Many attendees of the weekend are amateur or semi-professional photographers.  The winners of the competition as well as the gallery of submitted images can be seen here. 

Anyone interested in being on the mailing list for the 2021 Eagles and Agriculture event can find information here. 

Will Nevada establish water conservation programs? The Nevada Division of Water Resources, Office of the State Engineer (“NDWR”) under the direction of Acting State Engineer Adam Sullivan distributed two draft bills to various lobbying entities.  One seeks to establish a water bank system while the other considers the creation of water conservation initiatives.  As of February 17, 2021, neither of the bills were pre-filed with the Nevada Legislature for the 2021 legislative session.  However, the content of the bill drafts is outlined below.

Water Banking Bill

            What its water banking?  Water banking is a system used to manage water supplies throughout the Western United States.  Water right holders can forego water use and “deposit” or transfer water into the water bank, making it available for “withdrawal” or use by another.  Water banks are often managed at the state level and vary from state to state to accommodate specific regional needs.

NDWR’s water banking bill would amend Nevada Revised Statutes, Chapter 533.  The bill would allow for banking and leasing of water rights for irrigation use.  The bill as drafted will give NDWR the authority to approve of two kinds of water banks: statutory water banks and contract water banks.  Both types of water banks manage the deposit and lease of water rights and inform NDWR of banked water uses.  The bill also includes reporting requirements for these water banks.  While the bill recognizes some differences in the requirements of the two bank types, there is concern that the definition of each bank type is unclear in the current draft.

Another critique of the bill is its failure to limit banked water usage to a specific geographic or hydrographic area.  This raises concern that a water bank could be used to transfer water to any location in the state including outside of its respective hydrographic basin.

One of the bill’s highlights is the exemption banked water rights will receive from NDWR’s “beneficial use” requirement.  Under this exemption, irrigators who are not prepared to use their water can avoid forfeiture and receive the benefit of banking unused water rights.  This will allow for temporary use by another until the original owner is ready to place the water to beneficial use.

Water Conservation Bill

A. Conserved Irrigation Water

NDWR’s proposed water conservation program seeks to “encourage and progressively promote” the conservation and efficient use of water.  The bill encourages water conservation upgrades for irrigation.  As proposed, the bill will be retroactive for water conservation projects performed in the 5 years prior to its passage as well as future conservation efforts.

Applicants for this program will submit their water conservation measure proposal describing to the state how they plan to use conserved water.  It is yet unclear if the water’s usage is limited to irrigation of additional lands, or if irrigators can add conserved water to already irrigated lands to increase the water applied in a single location.

Limitations to conservation are considered in the bill.  For example, irrigators within an irrigation district must obtain district approval.  Additionally, of the amount of water conserved, the irrigator may only retain 75% for the proposed new use.  The remaining 25% of conserved water transfers to the state.  The state will then retain all conserved water until a basin exceeds perennial yield by 10%.  At that point, the state may make any additional water available for new appropriation.  State Agencies and political subdivisions may also hold conserved irrigation water rights for instream flow.

B. Retirement of Water Rights

            The water conservation bill also proposes the creation of a state account for the purchase and retirement of water rights.  NDWR would target certain over-appropriated basins in the following order:

(1)       Basins with greater than 200% over-allocation and over-pumping for the past 5 consecutive years;

(2)        Basins with great than 150% over-allocation; and

(3)       Basins with greater than 100% over-allocation.

Under this program, water would be purchased at fair market appraised value.

Conclusion

The content, structure, and language of these bills will likely develop as NDWR receives feedback and moves through the legislative process. It is important to remember that the public has a voice in this process through lobbying groups as well as their legislators. The public can stay on top of bills, once filed with the legislature here.

Interested in more information on water related legislation?  Read our blog on AB 5, AB 6, and AB 15 for the 2021 legislative session and keep an eye out for more legislature updates at www.water-law.com/blog.

The Nevada Assembly Committee on Natural Resources (“Committee”) is considering a handful of water related bills in the upcoming 2021 legislative session. While we are continually receiving notice of new proposed bills, we wanted to provide a brief summary on the first few we reviewed.  Assembly Bills (“AB”) 5, 6, and 15 were prefiled for the 2021 legislative session on November 18, 2020. If passed the bills with effect procedures currently required for temporary change applications and judicial review of Nevada Division of Water Resources, Office of the State Engineer (“State Engineer”) decisions.  AB 16 also proposes reorganization of the Colorado River Commission.

Assembly Bill 5

AB 5 proposes various new provisions relating to judicial review of State Engineer orders and decisions. As drafted, Nevada Revised Statute (“NRS”) 533.450 allows a person aggrieved by a State Engineer action to seek judicial review in the nature of an appeal.  AB 5 limits circumstances under which a person can seek judicial review. Under AB 5 the State Engineer decision being reviewed must be (1) a formal order, ruling or decision that is a final decision in writing; and (2) must materially affect the person’s interest.  AB 5 also clarifies that the judicial review of State Engineer decisions shall apply civil appellate practices.

The progress and text of AB 5 can be viewed here.

Assembly Bill 6

AB 6 contains proposed revisions of the laws governing temporary change applications for appropriated water.  NRS 533.325 requires a water right holder wishing to make a temporary change to place of use, point of diversion, or manner of use of their water to file an application with the State Engineer.  NRS 533.345 requires the State Engineer to hold a hearing if the State Engineer determines that the temporary change may not be in the public interest or may impair existing right. AB 6 proposes that the hearing under NRS 533.345 be discretionary. This will allow the State Engineer to either hold a hearing or make a decision absent one.

The progress and text of AB 6 can be viewed here.

Assembly Bill 15

AB 15 considers the reorganizing of the Colorado River Commission of Nevada (“Commission”), which exists under NRS 538.041 to 538.251.  The Commission currently consists of four members appointed by the Governor for three-year terms, and three members appointed by the Southern Nevada Water Authority.  AB 15 proposes reducing the number of members appointed by the Governor to three and adding the State Engineer as an ex folio member of the Commission.  Under both the existing and proposed version, the chairman of the Commission is chosen by the governor among the members he appointed.

The progress and text of AB 15 can be viewed here.  Keep an eye on our blog for more legislative updates!

The Nevada Division of Water Resources (NDWR) posted Notices for Hearings for Proposed Orders for hydrographic basins within numerous Nevada Counties. These include: Churchill, Clark, Elko, Esmeralda, Eureka, Humboldt, Lander, Lincoln, Lyon, Mineral, Nye, Pershing, Washoe, and White Pine Counties.  NDWR scheduled the hears for October 12, 2020 through October 26, 2020.  Information on the hearings is available at: http://water.nv.gov/hearings.aspx.

            Each proposed order designates and describes a hydrographic basin. The proposed orders state the perennial yield, committed groundwater resources, and, if any, the exceedance of perennial yield for each hydrographic basin.  The orders then list the legal description of land “in need of additional administration.” within the basin

            Further, some orders set additional standards.  For example, the proposed order for the Pueblo Valley Hydrographic Basin (01-100) in Humboldt County, Nevada excludes irrigation from preferred uses of groundwater resources. It also denies any application to appropriate groundwater outside of limited circumstances. See Pueblo Valley Proposed Order.

            Individuals with water rights in these designated basins should review the proposed orders and participate in the administrative hearings regarding those basins.

            The individual Notices for Hearings on Proposed Orders and proposed orders for each basin can be found at http://water.nv.gov/news.aspx?news=Proposed%20Orders. 

          The Slink Fire rages on in the Carson-Iceberg Wilderness Area. Meanwhile, pilots fly an imaginary line to drop water on wildfires according to wilderness laws and procedures. This raises the question, are wilderness firefighting laws protecting or harming wilderness areas?

Wilderness Firefighting Laws 

          Congress passed the Wilderness Act of 1964 to minimize human impacts and preserve wilderness.  For example, the act limits and/or prohibits motorized vehicles in wilderness. See 16 U.S.C. 1131(a).  Additionally, it requires minimized human impacts from firefighting . One exception is the use of aircraft.  Aircraft may be used as necessary to control fire. P.L. 88-577 § 4(d)(1). However, the act applies conditions even to this use. Id. 

            Later wilderness laws echoed protective policies. The Endangered American Wilderness Act of 1978 directed the Secretaries of Interior and Agriculture to implement fire prevention and watershed protection. See P.L. 95-237 §§ 2(c)-(d).  The Secretaries were required to create special fire suppression measures and techniques. Id. The California Wilderness Act of 1984 included similar language. The Act created the Carson-Iceberg Wilderness and extended firefighting restrictions to it. See P.L. 98-425 § 103(b)(2). 

Firefighting Restrictions in Practice

How are these provisions applied in practice?  In the Carson-Iceberg Wilderness Area, impacts are minimized by restricting the place of water use. Firefighters must take water and use it in the same watershed.  In smaller wilderness areas, these restrictions are moot.  However, in the Carson-Iceberg, unique challenges are presented to firefighting crews. 

            As of Thursday, September 10, 2020, the Slink Fire raged over 22,474 acres.[1] The fire spanned across three watersheds: the Carson Watershed, the Silver King Watershed, and the Walker Watershed.  Don Zirbel, of the Clackamas Fire District, provided a community update. He noted that fire crews are struggling with restrictions for “crossing lines” during aerial water drops. These restrictions require pilots to take water from a watershed and drop it on fire only within the same watershed.  He also noted that multiple water “dip” cites were located within each of the three watersheds, so these restrictions did not hamper ground crews or helicopters from accessing and using the needed water. This is not always the case. 

            Regardless, the update started a heated public debate on whether wilderness firefighitng laws are hindering or helping the integrity of wilderness. With a fire season for the record books, the federal agencies managing these wilderness areas will likely face these same questions. 

[1] https://inciweb.nwcg.gov/incident/7105/ (last visited 9/10/2020)

(Photo Credit: https://inciweb.nwcg.gov/incident/7105/, and Don Zirbel, Clackamas Fire District)

In case you missed it, on June 10, 2020, Schroeder Law Offices presented a webinar on stockwater on and off public land.  Panelists included Laura Schroeder and Therese Ure of Schroeder Law Offices, P.C. and Alan Schroeder of Schroeder Law in Boise Idaho.  The panelists discussed stockwater in Nevada, Idaho, and Oregon.

The webinar’s topics included:

• How to obtain stockwater rights under state law;
• Special rules for stockwater on federal land;
• Stockwater exemptions;
• Stockwater and federal grazing permits; and
• Common stockwater issues on federal land.

Participants’ questions confirmed the relevance of stockwater on public land.  Both Attorney’s Alan Schroeder and Laura Schroeder answered questions regarding the Limited Agency Agreement for the Purpose of Establishing and Maintaining Stockwater Rights Under the Laws of the State of Idaho. Many Bureau of Land Management permittees recently received these agreements.  Panelists discussed the issue of federal stockwater ownership in Idaho throughout the webinar. Discussion included consideration of the pending Idaho stockwater legislation and the Idaho Supreme Court decision in Joyce Livestock Company v. United State of America.

To view the full webinar, please visit:  https://www.water-law.com/webinars/stockwater-rights/

Schroeder Law Offices provided weekly webinars on an array of water related issues during the 2020 COVID-19 pandemic. To view any previous webinars, please visit: https://www.water-law.com/webinars/.

Please join, Laura Schroeder and Alan Schroeder for a bonus COVID-19 webinar on Idaho Limited Agency Agreements for Stockwater on Federal Land.  The webinar will be held on June 19, 2020 from 11:00 AM to 12:00 PM Pacific. You can register here.

Grazing permittees and licensees in Idaho have recently been receiving Limited Agency Agreements for the Purpose of Establishing and Maintaining Stockwater Rights Under the Laws of the State of Idaho from the Bureau of Land Management (“BLM”).  These agreements ask permittees/licensees to become agents of the BLM to ensure that under the 2020 enactment of HB 592 livestock water rights claimed in the name of the United States can continue to be used on all grazing allotments. Specifically, HB 592 amends Idaho Code 42-501, 42-502, and 52-504 and repeals Idaho Code 42-503. 

Attorneys Laura Schroeder and Alan Schroeder will discuss the contents of these agreement, considerations, and inquiries grazing permittees/licensees should make prior to signing the agreements before July 1, 2020. The discussion will include:

• History of federal ownership of stockwater in Idaho;
• Threats to forfeiture on stockwater rights held in the name of the United States;
• Agency Agreements;
• Considerations prior to signing Limited Agency Agreements for Stockwater; and
• Next steps for permittees;
  • Determining stockwater ownership; and
  • Strategies to protect stockwater rights on public land.

Afterward, we post our COVID-19 webinars here.  Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Stay tuned to the Schroeder Law Offices blog for announcements about upcoming and past webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com.

           The Nevada Division of Water Resources (NDWR) proposes substantial changes to Nevada’s water right procedures.  The agency first announced the proposed changes when it released a Small Business Impacts Survey on June 1, 2020. The survey invited participants to state if they believed the proposed regulation amendments would impact small businesses.  NDWR followed the survey on June 8, 2020 with a Notice of Public Workshop. The notice invites interested citizens to attend and give general input on the proposed amendments. 

Rulemaking Procedures

            NDWR is unique in Nevada. Unlike most Nevada agencies, NDWR is not bound by Nevada’s Administrative Procedure Act (“APA”).  The APA governs how Nevada agencies must conduct rulemaking.  Although NDWR is not strictly bound by the APA, it elects to follow APA rulemaking procedures. 

            Rulemaking under the Nevada APA is a seven-step process.  The agency must:

• • 1. Consider impacts on small business;
    2. Conduct a public workshop;
    3. Draft proposed regulations;
    4. Publish a 30-day Notice of Intent to Adopt Regulations;
    5. Hold a public hearing;
    6. Consider public comment; and
    7. Adopt final regulations.

Here, NDWR completed a small business impact review, drafted proposed regulations, and provided 15-day notice for its public workshop.  The workshop will take place at 9 AM on June 24, 2020.  Due to ongoing Covid-19 restrictions, the workshop will occur via telephone and skype.  Information for joining the workshop can be found on the Notice of Public Workshop.

            Interested citizens should also monitor http://water.nv.gov/ for the Notice of Intent to Adopt Regulations.  NDWR has not issued this notice.  However, a Notice of Intent to Adopt Regulations must include the date, time, place, and manner by which the public can submit comment.  NDWR will provide 30 days after the notice for the public to provide comment. NDWR will also hear oral comments at the public hearing.  

Proposed Changes

            The regulations propose substantial changes to Nevada Administrative Code (“NAC”), Chapter 533. The chapter governs the administrative process for permitting and certificating water rights.  You are highly encouraged to review the proposed changes here. However, some proposed changes to note include:

• • Definitions of “beneficial use” and “significant action”;
  • NDWR discretion to allow intervenors in Protest Hearings;
  • Changes regarding applications for extension of time:
    • Permittee must state number of extensions previously granted;
    • Permittee must show steps towards beneficial use since last extension granted;
    • Permittee must submit supporting documents justifying extension;
  • Provisions outlining publication of notice when permittee has received 10 or more years of extensions;
  • Procedures for protests to extension applications; and
  • Additional provisions and procedures regarding Water Right Surveyor Licenses.

Public Participation

                   Public participation is inherent in an agency’s rulemaking process.  If these changes affect you, exercise your right to participate in the process by attending the June 24, 2020 workshop, submitting public comment pursuant to the Notice of Intent to Adopt Regulations, and attending the upcoming public hearing.   

(Image Credit: https://www.bbklaw.com/news-events/insights/2018/authored-articles/12/public-comment-time-limit-ok-d-by-court,http://water.nv.gov/documents/AB%2062%20Informal%20Public%20Workshops.pdf )

In the ninth COVID-19 webinar, Laura Schroeder and Alan Schroeder discussed stockwater on and off public land.  The webinar was held June 10, 2020. A recording of the presentation is available here.

This webinar focusses on acquisition of stockwater use in Nevada, Idaho, and Oregon.  Participants will learn how to obtain new stockwater permitted uses and how to establish rights existing prior to each state’s statutory water code.  Next, participants will learn how stockwater rights of use relate to federal grazing permits.  Last, participants will learn common issues with stockwater use on federal land. The general topics will include:

• Acquisition of Stockwater Rights of Use
  • On Federal Land
  • State Methods
    • Nevada
    • Idaho
    • Oregon
  • Stockwater Exemptions
• Stockwater and Grazing Permits
  • Status to Hold a Grazing Permit
  • Ownership of Water as “Base Property”
  • Water Developments on Federal Land
• Other Stockwater Issues on Federal Land
  • RS2399 Right-of-ways
  • Grazing in Wilderness

Please join Laura Schroeder and Alan Schroeder as they discuss stockwater on and off public land! Afterward, we will post this webinar here along with our other COVID-19 webinars. Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Our COVID-19 series continues for one more week.  Don’t miss our last webinar about water infrastructure easements on June 17, 2020 from 12:00 PM to 1:00 PM .  Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com.

(photo credit: https://www.rotorflush.com/applications/livestock-watering/; https://www.beefmagazine.com/blog/9-ranch-management-concepts-improve-your-ranch) 

Can Nevada gardeners collect rainwater? 

As Northern Nevada’s last frost approaches, gardeners are gearing up to transplant seedlings and get plants in the ground. However, with planting comes watering. Nevada gardeners are all too aware of this as they battle the summer heat. In a state as arid as Nevada, garden watering occurs frequently. Water use escalates quickly as summer temperatures rise. 

Whether to lower the environmental impact or the monthly water bill,  gardener’s worldwide commonly use rain collection barrels.  Yet, there is confusion. Can Nevada gardeners collect rainwater? 

The answer is yes! Although, this was not always the case.  Rainwater collection was illegal in Nevada until 2017.  However, following the 2017 legislative session, Governor Brian Sandoval signed Assembly Bill 138. The bill amended the existing law to allowing “de minimus collection of precipitation.”  (NRS 533.027)

What is “de minius collection?”  Nevada statutes define “de minimus collection” to include collection from the rooftops of a single-family dwelling.  The water must be used for domestic use and cannot be consumed.  Including in the definition of “domestic use” is watering a family garden. (NRS 534.013). Therefore, under Nevada law, rainwater can be collected for gardening.

So, gardeners if you haven’t already, it’s time to install those rain barrels and pray for rain! Learn more about how to research your water rights here.

(Immage Source: https://www.esf.edu/ere/endreny/GICalculator/RainBarrelIntro.html)

It’s time to call your Congressman—House Bill H.R. 5737, introduced on January 30, 2020 proposes the implementation of procedures to permanently retire federal grazing allotments.

H.R. 5737 or the “Voluntary Grazing Permit Retirement Act” (the Act) proposes the ability of grazing permittees to sell or “waive” their right to graze under their Bureau of Land Management (BLM) or Forest Service grazing permit. The permittees would be compensated for the waiver, however, the BLM or Forest Service would then be barred from permitting any further grazing on the allotment under the permit. For allotments that are covered by multiple permits, the managing agency would be forced to permanently reduce the grazing level by the amount in the waived permit. The BLM and Forest Service would have no say in the retirement of the allotment, nor receive any compensation for its retirement.

The Act as proposed will present a conflict with the Taylor Grazing Act (TGA) and the Federal Land Policy Management Act (FLPMA) by claiming cattle grazing should be “simply removed” in favor of the multiple uses of federal land, such as recreation and wildlife. Both the TGA and FLPMA recognized and protect grazing on federal land as an intended multiple use, and the Act fails to make this recognition. 

The Act also appears to misunderstand the nature of cattle grazing permits, which are generally have 10 year terms. Yet, it will allow the termed permittee to waive any future grazing on the allotment through waiver of their current grazing rights. The Act allows for the retirement of 100 grazing permits per year, with up to 25 in any one state. 

The implementation of this Act as proposed, will likely result in the devastation of public lands grazing and the cattle industry in Western States. The Act proposes no administrative review nor even notice for the waiver of a grazing permit, resulting in permanent retirement of a grazing allotment. Rather it places the management and control of federal land grazing in the hands of the permittee and third parties, mainly environmental groups seeking permanent retirement of grazing areas. 

The Act is supported by numerous environmental groups including the Sierra Club, Natural Resource Defense Council, Defenders of Wildlife, Center for Biological Diversity, Wilderness Watch, the Lands Council, and Southern Utah Wilderness Alliance. It also currently has 10 Democratic cosponsors. 

The Act is currently opposed by the National Cattlemen’s Beef Association and Public Lands Council.

Call your Congressman today to provide your opinion on this Act.

The full text of the Act can be found at:  https://www.congress.gov/bill/116th-congress/house-bill/5737/text

For a more in-depth review, please review the Voluntary Grazing Permit Retirement Act article.

Photo Credit: https://www.agweb.com/article/key-things-to-know-about-federal-land-grazing-in-the-west-NAA-associated-press

The public comment period for Nevada’s 2016-2018 Draft Water Quality Integrated Report closes on January 30, 2020. On December 26, 2019, the Nevada Division of Environmental Protection (NDEP) published its Public Notice, inviting comment on the Draft Nevada 2016-2018 Water Quality Integrated Report. The report was prepared in accordance with the Clean Water Act, §§ 303(d), 305(b), and 314. The Clean Water Act requires NDEP to conduct a comprehensive analysis of water quality data associated with Nevada’s surface waters.

The report is a combination of the reporting requirements under the Clean Water Act § 303 on impaired waters, and § 305 for an overall assessment of surface water quality within Nevada and a description of how current conditions provide for the protection of beneficial uses of the state’s waters.

Data on Nevada’s rivers, streams, lakes and reservoirs was collected from October 1, 2009 through September 30, 2016 and was evaluated to determine if State water quality standards are being met and beneficial uses are supported. The report will be used by the public, other entities, and NDEP for water quality management planning purposes.

Impaired Water Reporting Requirements

Under its § 303 reporting requirements, NDEP has produced a list of waters where current pollution control technologies alone cannot meet the water quality standards set for that water body. The list also contains water bodies that may soon become impaired. Impaired waters are prioritized base on the severity of the pollution and the designated use of the water body (e.g. fish propagation or recreation).  NDEP will also develop total maximum daily loads or TMDLs of pollutants in the impaired water bodies. These TMDLs designate the maximum concentration of each pollutants allowed in the water body and will help guide NDEP water resource management decision in an attempt to improve impaired waters.

Last Minute Commenting

The Draft Nevada 2016-2018 Water Quality Integrated Report is available at:

https://ndep.nv.gov/water/rivers-streams-lakes/water-quality-standards/303d-305b-water-quality-integrated-report

Links to the 2014 Water Quality Integrated Report and examples of its public comments can also be found at the link above.

The public comment period for the Draft Nevada 2016-2018 Water Quality Integrated Report closes on January 31, 2020 at 5:00 PM. Any last-minute comments should be submitted by mail or email to:

Dave Simpson
Nevada Division of Environmental Protection
Bureau of Water Quality Planning
901 S. Stewart St.
Carson City, NV 89701
dsimpson@ndep.nv.gov

What’s Next?

Once the report is submitted, Environmental Protection Agency (EPA) must notify NDEP of its approval or disapproval of the § 303 impaired waters list within thirty (30) days. If the list and associated TMDLs are approved, NDEP will incorporate them into its plan.  If they are disapproved, the burden shifts to EPA to identify impaired waters and determine the TMDLs necessary to implement the water quality standards applicable to each water. This must be completed by EPA in thirty days.  After such identification, if necessary, NDEP will then incorporate EPA’s § 303 list into its water quality plan.

The reports required under the Clean Water Act §§ 303 and 305 are performed biennial.  The next report will likely be drafted in 2021 with another opportunity to submit public comments on the Draft prior to its submission.

(Image Source: https://travelnevada.com/discover/26065/truckee-river)

By: Caitlin Skulan and Leslie Velazquez

In spite of her busy schedule attending client needs, Attorney Ure put on her Professor’s hat and gave a three-hour Water Rights Class to Reno Real Estate Agents. The class, which Attorney Ure does regularly at real estate groups’ requests, focuses on water right laws in Nevada and some things Real Estate Agents especially should look out for when working with clients to buy or sell property.

Attorney Ure gave a brief overview of the history of water law in Nevada.  Remarkably, irrigation in the United States dates back to 300 A.D. The Hohokam Tribe wove mats of brush to divert water to cornfields.  Water law itself dates back to medieval England and the “Rule of Capture,” meaning you capture it, you own it. This concept then translated into early American gold mining camps when miners staked claims for mining gold they found or “captured.”  As miners began to settle in the West, the rule was applied to water. The first to capture the water had a right to the amount they captured. This is called the “first in time, first in right” rule and is the fundamental base for Nevada’s “Prior Appropriation” or priority-based water law system.

Next, Attorney Ure outlined the three fundamental principles of providing proof of a water right: beneficial use, priority, and appurtenance. Beneficial use is the basis, the measure, and the limit of all rights to the use of water. Almost any use that has a special value to the public is a beneficial use. Priority, as noted above, is the right to use water awarded to the first diverter from the natural course. Therefore, senior appropriators may use their entire right before junior users are able too. The priority date of a water right may be based on the date in which an application was filed with the Nevada Department of Water Resources. Alternatively, if the water use predates the enactment of Nevada’s 1905 Water Code, the priority date is determine in a special adjudication proceeding based on evidence of the earliest use and its continuation to present time. Finally, water rights are appurtenant to the land where perfected. This means water rights run with the land and unless otherwise noted, will transfer with land under general “appurtenance” language in a deed. All of these factors are important to real estate agents because they help determine what the water can be used for, how safe the water is in times of drought and curtailment, and if the transfer documents, both past and present, will result in the buyer obtaining water with the land they are purchasing.  These are all important factors for a buyer to consider.

Another important note was identifying the type of water being used; surface water or groundwater. Attorney Ure outlined the difference between surface water and groundwater, and various types of aquifers, including confined and alluvial/unconfined. For example, confined aquifers occur when impermeable dirt/rock layers prevent water from seeping into the aquifer from the surface. Unconfined aquifers occur when water seeps from the surface directly above the aquifer through porous sediment. The latter kind are more likely to be connected to sources of surface water through a “hydraulic connection,” which can be determined with the help of hydrogeologists.

Pumping of groundwater that has a hydraulic connection to surface water may result in the change of flow or water levels in nearby streams or lakes.  This makes conjunctive management of surface and groundwater extremely important to prevent surface right users with senior priority dates from injury by groundwater pumping. However, not all prior appropriation states have an established regulation scheme recognizing this interconnection between surface and groundwater, because water law predates the scientific discovery of hydraulic connections. Some states may explicitly prohibit groundwater use interfering with senior surface water rights, while others make no reference at all. 

Lastly, Attorney Ure demonstrated where Real Estate Agents can find water rights connected to specific lots of land and forms necessary for transactions involving water, leaving each student with some valuable tools to apply during their next property sale!

If your organization is in need of water related education, we are happy to be a resource and set up a class similar to this one! Visit our website for a full list of speaking and presentations topics:  https://www.water-law.com/speaking-and-presentations/

Here at Schroeder Law Offices P.C., we enjoy providing educational presentations both private and public to teach others the importance and complexity of water rights.

Last month, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the repeal of the 2015 Waters of the United States (WOTUS) rule. The controversial 2015 rule incorporated changes to 1986 and 1988 regulations and incorporated the “significant nexus” standard articulated by Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S.  715 (2006).  The 2015 change occurred through the addition of the defined term “neighboring” which broadened the interpretation of “adjacent” waters (https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states at 37105).

The 2015 rule was the subject of numerous lawsuits and had been found illegal by five federal courts including: (1) the District Court for the District of North Dakota; (2) the District Court for the Southern District of Georgia; (3) the District Court for the Southern District of Texas; (4) the District Court for the District of Oregon; and (5) the District Court for the District of Ohio. With the repeal of the 2015 rule, EPA and the Army Corps of Engineers will reinstate the 1986 and 1988 regulations in the interim while a new rule is promulgated. These regulations are encompassed in: 33 C.F.R. 328; 40 C.F.R. 110; 40 C.F.R. 112; 40 C.F.R. 116; 40 C.F.R. 117; 40 C.F.R. 122, 40 C.F.R. 230; 40 C.F.R. 232; 40 C.F.R. 300; 40 C.F.R. 302; and 40 C.F.R. 400. 

The EPA and Army Corps of Engineers cited four primarily reasons for repealing the 2015 rule:

1. The rule did not implement the legal limits on the scope of agency authority under the Clean Water Act as intended by Congress and reflected by Supreme Court Cases, including Rapanos;
2. The rule failed to adequately consider and accord due weight to Congressional policy in the Clean Water Act § 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . .of land and water resources.” 33 U.S.C. 125(b);
3. The rule led agencies to interpret the rule in a way that pushed the limits of agency constitutional and statutory authority absent a clear statement from Congress, authorizing the encroachment of federal jurisdiction over traditional State land use planning authority; and
4. The distance-based limitations in the rule suffered procedural errors and lacked adequate support in the record.

With the repeal of the 2015 rule came the filing of lawsuits attacking the constitutionality of the 1986 and 1988 regulations. On the same day as the repeal was announced, the Pacific Legal Foundation filed a Complaint on behalf of the New Mexico Cattle Growers’ Association challenging the reversal and the allegedly even broader interpretation of WOTUS employed under the 1986 and 1988 rules (https://pacificlegal.org/press-release/epa-sued-for-relying-on-illegal-rules-following-wotus-repeal/). The Complaint can be found at: https://pacificlegal.org/wp-content/uploads/2019/10/nm_cattle_growers_v_epa_complaint.pdf.

In contrast, a group of eleven environmental organizations filed a law suit in the Federal District Court for the District of South Carolina challenging the 2015 rule’s repeal based on allegations that it “strips away crucial clean water protections from rivers, lakes, streams, and other waters that feed drinking-water sources for 200 Million Americans” (https://defenders.org/newsroom/conservation-groups-challenge-repeal-of-clean-water-act-protections-federal-court).  In light of these seemingly opposite claims, EPA and the Army Corps of Engineers will certainly suffer attacks from all sides as they attempt to establish a clear and implementable regulatory definition of WOTUS that better effectuates the language, structure, and purpose of the Clean Water Act.  

The repeal of the 2015 rule was published in the Federal Register on October 22, 2019 and can be found at: https://www.govinfo.gov/content/pkg/FR-2019-10-22/pdf/2019-20550.pdf.

(Photo Credit: https://www.tva.gov/Environment/Managing-the-River)

Schroeder Law Offices is pleased to announce that Caitlin Skulan has joined the firm as a new Associate Attorney in the Reno, Nevada office. Caitlin received her Juris Doctorate and Certificate in Natural Resource and Environmental Law from the Northwestern School of Law, at Lewis and Clark College in May of 2019.  Caitlin was admitted to the Nevada State Bar on October 16, 2019 and is looking forward to admission with the Federal District Court of Nevada on November 12, 2019. 

Caitlin gained experience in water law issues during her time with the Fresh Water Trust in Portland, Oregon. Her past experiences also include working with the Washington State Farm Bureau; the Western Resources Legal Center; the Ecology Division of the Washington State Attorney General’s Office; and Schwabe, Williamson, and Wyatt in Seattle, Washington.

Caitlin holds a Bachelor’s of Science in Natural Resource Science from Northland College, in Ashland, Wisconsin. Caitlin’s bachelor studies focused heavily in water sciences including hydrology, limnology, ichthyology, and wetland ecosystems.  

Caitlin grew up in Northern, Wisconsin on the shores of Lake Superior and in a community dependent on agriculture and logging. Caitlin spent her childhood working on her family’s hobby farm and orchards local to her hometown.  As a result, Caitlin developed an enthusiasm and empathy for rural life and a love for the water that fuels it.  Caitlin is excited to join Schroeder Law Offices and start working to solve water issues and connect with clients in the Northern Nevada community.