In April 2024, the Environmental Protection Agency (“EPA”) announced a new maximum contaminant level (“MCL”) for monitoring and regulation of six PFAS (Perfluoroalky and Polyfluoroalkyl Substances, aka “forever chemicals”).

PFAS are identified by extremely strong bonds of fluorine and carbon which do not easily disintegrate in the environment or in the human body. These “forever chemicals” have been utilized since the 1940’s because they are highly effective at repelling oil and water. 

All community[1] and non-transient non-community water systems[2] must comply with the PFAS MCLs beginning in 2027. Until now, all prior information from the EPA regarding PFAS was advisory. The prior advisory level from the EPA for PFAS was 70 parts per trillion (“ppt”). The new MCLs for the six PFAS are as follows:

• 4 ppt for PFOA
• 4 ppt for PFOS
• 10 ppt for PFNA
• 10 ppt for PFHxS
• 10 ppt for HFPO-DA
• 1 (unitless) hazard index of a mixture of two or more PFAS chemicals: PFNA, PFHxS, PFBS, and HFPO-DA (commonly known as Gen X)

Often, state governments required larger drinking water systems to monitor the amount of PFAS in their drinking water. Although, they did not impose a regulation. Now, all community and non-transient non-community water systems must begin monitoring for PFAS by 2027. Systems must provide their monitoring data to the EPA. If a water system has a level at or over the MCL, they must implement infrastructure to reduce the PFAS below the limits.

Realities of PFAS Monitoring

One of the difficult realities of measuring for these MCLs is finding a lab with analytical capabilities to detect that level of PFAS in a sample, and at an affordable rate. Many labs do not currently have the analytical capabilities to detect 4 ppt or lower in a sample. Before a water system submits its sample to a particular lab, it should ensure the lab can detect 4 ppt or lower. The sample must show 3.99 ppt or lower to be in compliance with the MCL for PFOA and PFOS. PFOA and PFOS are the most common PFAS in drinking water. Typically, the smaller the detection limit required, the more expensive the test.

Funding is available from the Drinking Water State Revolving Fund and the EPA’s Emerging Contaminants in Small or Disadvantaged Communities Grant Program to assist with making the impacted water systems compliant with this new regulation. There are also other federal programs available to assist with any additional costs. Another program, the Water Infrastructure Finance and Innovation Act (“WIFIA”), provides low-cost, flexible funding to communities for water infrastructure projects. WIFIA funding is available year-round.

Although the EPA provided three years for systems to begin the process, the sooner a system understands their situation the better. Schroeder Law Offices, P.C. assists many municipal water systems regarding compliance with drinking water standards. Please contact our office if you have any questions regarding your water system.

[1] “Community Water System” means a public water system that has 15 or more service connections used by year-round residents, or that regularly serves 25 or more year-round residents. 40 CFR § 141.2.

[2] “Non-Transient Non-Community Water System” or “NTNC” means a public water system that regularly serves at least 25 of the same persons over 6 months per year. 40 CFR § 141.2.

Conjunctive management recognizes there may be a hydrological connection between groundwater and surface water within an area. This means, drawing down groundwater may affect the availability of surface water, and vice versa. In prior appropriation states like Nevada, where senior water rights have priority, surface water rights will generally trump groundwater right. In January 2024, the Nevada Supreme Court weighed in on Nevada’s conjunctive management law.

Points of Contention

With limited water availability in the arid west, it is increasingly necessary to manage both groundwater and surface water as a single management unit to protect senior water rights. However, there is an understandable reluctance on the part of some junior water rights holders to curtail water use that has gone unchecked for decades.

One point of contention is whether the best available science supports the curtailment of a junior water right– does the best available science support finding a specific groundwater use is depleting the source of a senior surface water right? How much can a junior water rights holder still use and not affect the senior water rights? The Nevada State Engineer will determine what constitutes “best available science.”  Is it a full-blown scientific model, or will something less suffice?

A second point of contention has been whether the State Engineer has the authority to manage the waters of the State conjunctively. We finally have the answer: In January 2024, the Nevada Supreme Court issued its decision in Sullivan v. Lincoln County Water District recognizing the power of the State Engineer to conjunctively manage surface waters and groundwater. Case Nos. 84739, 84741, 84742, 84809, 85137, 2024 Nev. LEXIS 4 (Jan. 25, 2024).

The Court’s Decision

In reaching their decision, the Court primarily relied on provisions of the Nevada Revised Statutes (NRS) (state.nv.us) prohibiting the impairment of vested/existing water rights, “regardless of the water source.” The Court noted that “[a]ll statutorily granted water rights in Nevada are given subject to existing rights” and “[b]ecause vested water rights by definition exist prior to the grant of statutorily granted water rights… no statutorily granted water right may impair vested water rights.” Id. (citations omitted). In sum, the Court found that no matter the source, ground or surface water, the State Engineer must not allow any impairment of vested water rights. Hence, the State Engineer must have the power to conjunctively manage both sources of water in Nevada.

The Court’s decision also recognizes the legislative policy declared at NRS 533.024 “which require the State Engineer to ‘consider the best available science in rendering decisions concerning the available surface and underground sources of water’ and ‘[t]o manage conjunctively the appropriation, use and administration of all waters.” As such, the Court notes these policy declarations support the finding that the State Engineer has power to conjunctively manage the waters of the State of Nevada, decisively settling years of litigation over the matter.

What’s Next?

For years the State Engineer attempted to conjunctively manage but was hamstrung by scientific uncertainty regarding the hydrological connection between groundwater and surface water sources, leading to exhaustive litigation concerning the State Engineer’s management orders. The new Model on the Humbold River, reportedly nearing completion, will be integrated into the State Engineer’s future orders that will likely be further tested in the courts. Likewise, submission of Scientific Reports in the Lower White River Flow system were presented to the Nevada Court that will now determine if these reports are sufficient substantial evidence to support the State Engineer’s regulation orders.  It will be interesting to follow the litigation to see what level of “best available science” will withstand the scrutiny of the courts.

You might be interested in this article about Nevada Water Law.

The Oregon Legislature’s short session officially begins today, February 1^st. It is anticipated that water users and water managers alike can catch their breaths somewhat during the short session, since not as many water-related bills will be considered.

The 2021 regular session was a marathon for those of us closely following or involved in water resources policy and law. In that session, efforts continued to correct the State’s questionable opinion that storage water rights cannot be modified through the transfer process. Only character of use transfers are reauthorized for the time being. Additionally, a threat to the due process rights of regulated water users was advanced. Only through great efforts was the attempt abated with some compromises of additional procedures around stays of agency orders during judicial review. Moreover, an onerous and costly water use reporting bill was proposed, despite information from the Oregon Water Resources Department that other types of data should be pursued, like additional stream gages and satellite data for evapotranspiration. The bill did not pass, but it did spur broader conversations about water management and planning that continue currently. Finally, the groundwater exemption for livestock came under attack, as proponents unsuccessfully attempted to limit the exemption to a daily maximum. In addition to these bills, many more were proposed, some of which were enacted into law.

In 2020, I began the position of Water Resources Chair for the Oregon Cattlemen’s Association. The 2021 Legislative Session was my first opportunity to participate in a large number of legislative bills on behalf of the organization. The experience certainly kept me on my toes and gave me an entirely new perspective of legislators and those who engage heavily in legislation. The bills are numerous, long, and ever-changing throughout the session. There is always too much work to be done in too little time to build consensus, draft written testimony, and testify in hearings. In 2021, we also tackled the additional hurdle of remote hearings on proposed bills due to the Covid-19 pandemic. This is to say that the 2021 legislative session was challenging, but also very exciting and rewarding. I was honored to receive an award from the Oregon Cattlemen’s Association in recognition of these efforts for “distinguished Committee leadership, responsibility, knowledge, expertise, advocacy, and tireless service to cattle producers and the Oregon Cattlemen’s Association.”

Short sessions of the Legislature in Oregon are not intended to address substantial changes in the law. Thus, it is not surprising that less water-related bills are anticipated this year. However, one priority that began receiving additional attention in 2021 is anticipated to continue at the forefront in 2022: water theft for illegal cannabis operations. Funding was provided in a special session in 2021, and numerous news articles detail the problem in the midst of the severe and continuing drought in Oregon and the West. House Bill 4061 (2022) would allow the Oregon Water Resources Department to obtain warrants to inspect private property. Additionally, the bill would require persons who both deliver water and receive water deliveries to ensure such water is from legal sources and keep records to that effect. Finally, the bill proposes to increase civil penalties for illegal water use when the crop grown is cannabis.

It is possible that additional water-related bills will be proposed in the 2022 regular session. For the time being, I will enjoy a little bit of a break on this front, being mindful that the 2023 regular session is just around the corner!  

In the 2021 Nevada legislative session the Assembly considers nine water related bills and the State considers 15 water related bills total.  The 2021 legislative session began on February 1, 2021 and will conclude on June 1, 2021.  The Assembly bills are in various stages of consideration as the session approaches its conclusion. However, the clock has already run for certain bills.  Under Joint Standing Rule 14.3.1 the final standing committee to which a bill or joint resolution is referred in its house of origin may only take action on the bill or joint resolution on or before the 68^th calendar day of the legislative session. Under Joint Standing Rule 14.6, certain exemptions apply for re-referral of a bill to the Senate Committee on Finance or the Assembly Committee on Ways and Means.  The 68^th day of the Session was April 9, 2021.

Other deadlines apply pursuant to Joint Standing Rule 14.3. These include:

1. Final action may only be taken by the House of origin on or before the 79^th calendar day of the legislative session (April 20, 2021);
2. Final standing committee to which a bill is referred in the second House may only take action until the 103^rd day of the legislative session (May 14, 2021) unless referred to the Senate Committee on Finance or the Assembly Committee on Ways and Means; and
3. Final action on the bill may only be taken by the second House on or before the 110^th day of the legislative session (May 21, 2021).

As a result, some of the bills are dead in the water and will progress no further.  Summaries of pre-filed Assembly Bills 5, 6, and 16 can be found in our earlier blog post.  The remaining water related Assembly bills are summarized below.

Assembly Bill 146

Assembly Bill 146 proposes various changes to Nevada Revised Statute (“NRS”), chapter 445A regarding water pollution, including:

1. Requiring the State Department of Conservation and Natural Resources to establish a program regulating water pollution resulting from diffuse sources;
2. Establishing requirements for applicants for certain permits relating to water pollution to post a bond or other surety;
3. Revising the requirements for regulations adopted by the State Environmental Commission relating to water pollution, including the notice requirement relating to adoption of these regulations;
4. Revising provision related to the Director of the Department of Conservation and Natural Resources’ control of water pollution, including control of diffuse sources of water pollution;
5. Revising requirements for permits to discharge pollutants or inject fluids through a well; and
6. Requiring consultation and notification to Indian tribes of certain actions related to water pollution.

Assembly Bill 146 has not passed the Assembly Committee of Natural Resources but is exempt from Standing Rule 14.3.1.

Assembly Bill 354

Assembly Bill 354 is the fruition of one of the bill drafts discussed in this earlier blog.  This bill authorizes the creation and sets forth the authority and duties of water banks.  It additionally requires the State Engineer to submit a biennial report to the legislature related to water banks and provides penalties for violations of its provisions.

Further action on Assembly Bill 354 is not allowed, pursuant to Joint Standing Rule 14.3.1.

Assembly Bill 356

Assembly Bill 356 is the fruition of the other bill draft discussed in this earlier blog.  This bill creates and sets forth the requirements for a voluntary water conservation program and creates an account for the Nevada Division of Water Resources to purchase and retire water rights in targeted basins.

Assembly Bill 356 passed the Assembly Committee of Natural Resources and is being considered by the Assembly Committee of Ways and Means.

Assembly Concurrent Resolution 4

Assembly Concurrent Resolution 4 does not directly affect water resources or water quality.  However, it does direct the Legislative Commission to appoint a committee to conduct an interim study on general improvement districts (“GIDs”).  GID’s provide certain services and facilities to residents of the district, often times including water services.  Assembly Concurrent Resolution 4 will create a committee to study GIDs to: (1) improve accountability and effectiveness; (2) identify areas of continuing abuse and potential abuse in the creation, financing, operation, and oversight of GIDs; (3) consider modifying requirements related to GIDs; and (4) recommend possible legislative solutions to any continuing abuses.

Assembly Concurrent Resolution 4 was referred to the Committee on Legislative Operations and Elections.

Assembly Joint Resolution 2

Assembly Joint Resolution 2 recognizes that that health of forests, rangelands, and soils are inextricably linked to the quantity and quality of water.  It further expresses and supports the Federal Government, state agencies, conservation districts, and local governments to work collaboratively with water purveyors, land managers, private land owners, land users, and other stakeholders to identify watersheds that can be improved by better forest, rangeland, and soil health measures and to identify or establish voluntary programs within the limits of the legislative appropriations, and other available money to address the health of forests, rangelands, and soil.

Assembly Joint Resolution 2 passed the Assembly and is currently being considered by the Senate Committee on Natural Resources.

Assembly Joint Resolution 3

Assembly Joint Resolution 3 urgers various actions relating to the protection and conservation of land and water.  In the resolution, the Legislature expresses its support for the goal of protecting 30 percent of the lands and water in Nevada by 2030.  The resolution urges:

1. State and local agencies to honor tribal jurisdictions and the rights of indigenous tribes in efforts to protect land and water;
2. Fair treatments of all races in efforts to protect land and water;
3. Private landowners to participate in voluntary programs to protect wildlife habitat and increase carbon sequestration; and
4. Nevada Congressional Delegation to identify opportunities for federal legislation and regulatory action to expand protection and conservation measures on public land in Nevada.

Assembly Joint Resolution 3 passed the Assembly and is currently before the Senate Committee on Natural Resources.

Interested in more legislative updates?  Keep an eye on our blog for a summary of the 2021 water related Senate bills.

(Image Credit: https://mynews4.com/news/local/explaining-the-mining-gaming-and-sales-tax-proposals-of-the-2021-nevada-legislature; https://www.reviewjournal.com/news/politics-and-government/nevada/district-map-in-nevada-assembly-skews-blue-study-finds/)

2021 Idaho legislation seeks to classify irrigation pivot corners for taxation.  House Bill 252 proposes additional language to Idaho Code, Title 63. This language would ensure county assessors classify pivot corners as agricultural land.

Pivot corners are the parts of a square parcel that a center-pivot irrigation system misses.  Idaho law considers land “farmland” and “pasture” as long as it is at least five continuous productive acres.   However, according to House Bill 252’s sponsor, Rep. Aaron von Ehlinger, some county assessors classify unproductive pivot corners as residential or commercial land.  This allows counties to collect higher taxes for that land.

The proposed bill language includes land farmers use in tandem with qualifying agricultural land as those counties should appraise, assess, and tax as land “actively devoted to agriculture.”  This includes pivot corners for center pivot-irrigated crops. The bill also covers land for storing agricultural commodities or equipment.

House Bill 252 unanimously passed the House on March 9, 2021.  It is currently in its third reading in the Senate.  You can track the progress of the bill here.

Interested in more Idaho legislation?  Check out our blogs on the water law bills currently before the Idaho House and the Senate.

(Image credit: https://www.buzzfeed.com/mjs538/100-incredible-views-out-of-airplane-windows; https://agfax.com/2019/01/31/texas-water-management-integrating-center-pivot-irrigation-control-tech/)

The Idaho Senate introduced ten water related bills this legislative session in addition to the twelve the House introduced.  Like many of the House bills, some of the water related Senate bills already passed both houses.  Others are in various stages of committee or legislative review.  The Senate bills considered this legislative session are briefly described below.

Senate Bill 1005

Senate Bill 1005 amends existing law to authorize water districts to charge fees to certain water delivery organizations and water users.  This bill clarifies that when water is diverted and assessed in one water district but is conveyed and diverted within a second water district, the second district may level a fee instead of an assessment for the water that is rediverted.  Further, authorized fees that are levied are not considered an assessment and are not part of a water user’s voting credentials for voting within the second water district.

Senate Bill 1005 passed both the Senate and the House.

Senate Bill 1020

Senate Bill 1020 amends existing law regarding the limitation of liability of landowners towards persons entering land for recreational purposes.  The bill amends Idaho Code 36-1604 expanding the definition of land to include water facilities, parks, and campgrounds.  The bill also clarifies the property interest held by an “owner” and that recreational activities include traveling across the land owned by others for the purpose of recreating.

Senate Bill 1020 passed both the Senate and the House.

Senate Bill 1072

Senate Bill 1072 amends existing law regarding filling vacancies in irrigation districts.  The purpose of this bill is to align Idaho Code 43-209 with Idaho Code 43-201(3).  Under Idaho law, irrigation districts are divided into a minimum of three divisions, from which board directors are elected to represent water users.  Idaho Code 43-209 provides the process for filing irrigation district board vacancies, but limits the eligible candidates to living within their respective irrigation district division.  This amendment would allow irrigation districts that approved the expanded board member residency rule under Idaho Code 43-201(3) to fill vacancies under the same conditions therein.

Senate Bill 1072 passed both the Senate and the House.

Senate Bill 1073

Senate Bill 1073 clarifies that the statutory protection of water delivery facilities from claims of adverse possession extends to properties owned by water delivery entities.

Senate Bill 1073 passed both the Senate and the House.

Senate Bill 1079

Senate Bill 1079 establishes a fund for the annual appropriation of state general funds to support and fund nonpoint source agricultural best management practice projects in Idaho.  This appropriation was initially contemplated in the 2017 legislative session and intended to supplement DEQ’s federal nonpoint source program grant.  DEQ identified complications with appropriating, allocating, and disbursing these funds all within the same fiscal year.  The nature of these projects, spanning multiple years or season, and the short time frame in which DEQ has from appropriation to end of spending makes it difficult for recipients of this funding to get the work completed and invoices submitted for reimbursement before the end of the fiscal year in which money was appropriated. Under this legislation, DEQ requests a specific fund be set up for project funds that would allow a longer time frame for the project proponents and awardees to plan and complete projects that benefit Idaho’s waterways.

Senate Bill 1079a passed the Senate on February 25^th and is in its third reading in the House.

Sente Bill 1121

Senate Bill 1121 is a supplemental appropriation bill for the Department of Water Resources.  It requests funds from the General Fund for the Water Management Fund.  Funding would be used for costs related to the Anderson Ranch Reservoir Enlargement Project, the water supply for the Mountain Home Airforce Base, and aquifer recharge projects in the Upper Snake River Valley.

Senate Bill 1121 passed both the Senate and the House and is currently before the Governor for signature.

Senate Bill 1188

Senate Bill 1188 is an original appropriation bill for the DEQ.  Some of the funding will apply to the Lake Coeur d’Alene study, the Water Quality Program, the Agricultural Best Management Practice Fund, and the Water Pollution Control Fund.

Senate Bill 1188 is currently before the Joint Finance-Appropriations Committee.

Senate Bill 1190

Senate Bill 1190 is an original appropriation bill for the Department of Water Resources.  The funding will be used in part for the Bear River Adjudication, the Flood Management Program, and for Water Quality Monitoring.

Senate Bill 1190 is currently before the Joint Finance-Appropriations Committee.

Senate Concurrent Resolution 104

Senate Concurrent Resolution 104 states the Legislature’s findings and supports changes in the winter flood control curves of the Ririe Reservoir project to more properly balance Ririe River water supply and irrigation supplies with adequate flood control.

The Senate unanimously adopted SCR104 on February 18^th.  It is currently in its third reading in the House.

Senate Joint Memorial 103

Senate Joint Memorial 103 states the findings of the Legislature, opposing the removal or breaching of the dams on the Columbia-Snake River System and its tributaries, and recognizing certain benefits provided by the Port of Lewiston.  In the bill, the Idaho Legislature recognizes and supports the international competitiveness, multi-modal transportation, and economic development benefits provided by the Port of Lewiston and the Columbia-Snake River System.  The bill iterates Idaho’s sovereignty over its water resources and the benefits derived from this multiuse system that provides transportation, commodities, fish and wildlife habitat, recreation, hydropower, flood control, and irrigation.

The Senate adopted SJM103 on March 9^th.  It is currently in its third reading in the House.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Don’t miss our blog on the water related House bills this session!  Additionally, each bill page linked above provides the status of the bill and the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

(Image Sources: https://idahonews.com/news/local/idaho-senate-calls-it-quits-but-house-says-not-so-fast; https://www.kmvt.com/2021/01/14/idaho-senate-starts-effort-to-wrest-power-from-gov-little/) 

In the 2021 legislative session, the Idaho House introduced twelve water related bills and the state considers twenty-two water related bills in total.  The session began on January 11, 2021 and as of March 18, 2021, one of the proposed water bills is already law, one is before the Governor for signature, and multiple others have passed one or both houses. Needless to say, Idaho is making many changes and updates to its water law.  The House bills considered in this legislative session are briefly described below.  

House Bill 43

House Bill 43 amends and repeals existing law relating to the administrative determination of adverse claims, hearings, and orders of local groundwater boards, appeals from certain actions, and penalties.  The purpose of this bill is to eliminate inactive, outdated, and obsolete sections of the Idaho Code related to water right delivery calls. The adoption of the Rules for Conjunctive Management of Surface and Ground Water Resources (IDAPA 37.03.11) made these sections of law obsolete. 

House Bill 43 passed both the House and the Senate and has been signed into law. 

House Bill 57

House Bill 57 amends existing law regarding certain authority of the Water Resource Board and the Department of Water Resources. The purpose of this bill is also to eliminate inactive, outdated, and obsolete sections of the Idaho Code.  The sections removed in this bill contain language that conflict with other sections of the Idaho Code or are duplicative language and authority found elsewhere in Idaho law.  The bill proposes to remove language in Idaho Code, Title 42 related to penalties for certain statutory violations and invests in the Director of the Department of Water Resources the power and authority to enforce the provisions of the chapter and rules and regulations promulgated pursuant to it.  

House Bill 57 passed both the House and Senate and is before the Governor for signature.

House Bill 99

House Bill 99 adds to existing law to provide for water quality innovation and pollutant trading.  The purpose of the bill is for Idaho to establish a mature pollutant trading program that provides a benefit to the regulated community and Idaho’s most treasured water resources.  It authorizes a voluntary water quality innovation and pollutant trading program and provides the Department of Environmental Quality (“DEQ”) authority to regulate the program. 

House Bill 99 passed both the House and the Senate. 

House Bill 103

House Bill 103 amends Idaho Code, Title 30 to allow remote participation in meeting of non-profit corporation directors.  Such participation counts toward the requirements for a quorum. 

House Bill 103 passed the House on March 1^st and is in its third reading in the Senate.

House Bill 182

House Bill 182 provides for irrigation corporation boundary adjustments. The bill allows for a streamlined process to adjust canal company boundaries where there is no increased use and no injury to other water rights. 

House Bill 182 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 184

House Bill 184 revises provision of existing law regarding notifications of change in ownership of water rights. It proposes Idaho Code 42-248 be amended to provide notice of ownership updates to landowners in circumstances where the water rights used on the land are owned by a third party. The purpose of the bill is to remove outdated provisions and improve readability.  The bill also clarifies that a change of ownership in the records of the Department of Water Resources is not a determination of ownership and is not an administrative action subject to challenge. Lastly, it clarifies that disputes over water right ownership should be addressed through quiet title action. 

House Bill 184 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 185

House Bill 185 amends existing law to provide that lands annexed to a Flood Control District may be contiguous or noncontiguous to the existing district.

House Bill 185 passed the House on March 3^rd and is in its 3^rd reading in the Senate.

House Bill 186

House Bill 186 revises existing legal provisions regarding notices of claim associated with the use of stockwater on federal land and to revise provisions regarding the Department of Water Resources Director’s determination of specified elements to define and administer the water rights acquired under state law.  The bill amends Idaho Code 42-1409 and Idaho Code 42-1411 to create a presumption that (1) the priority date for stock water rights is the date of the original federal grazing authorization and (2) the current base property relates back to the base property associated with the original federal grazing authorization.  The bill also amends information required to identify the legal description of stockwater rights on federal grazing allotments.

House Bill 186 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 266

House Bill 266 adds to existing law to provide for statutory cloud seeding in Idaho.  House Bill 266 defines cloud seeding as “all acts undertaken to artificially distribute or create nuclei in cloud masses for the purposes of inducing precipitation, cloud forms, or other meteorological parameters.”  Cloud seeding has been done in various areas of Idaho for several years.  This legislation also states findings relating to cloud seeding in Idaho and provides that the Water Resources Board is responsible for authorizing cloud seeding and may participate in cloud seeding programs.  The legislation further states that water generated through cloud seeding will be administered in accordance with the prior appropriation doctrine and limits liability for participation in certain cloud seeding projects.  No state or local permits will be required for cloud seeding. 

House Bill 266 passed the House on March 8^th and is in its second reading in the Senate.

House Bill 267

House Bill 267 amends Idaho Code 42-1760, which establishes the Idaho Water Resource Board’s Water Management Account.  Amendments include (1) replacing the list of potential projects with authority for projects which conserve or increase water supply, improve drought resiliency, address water sustainability, or support flood management; (2) including aquifer recharge above Milner Dam on the list of specific projects for consideration; (3) confirming that all water rights, including hydropower water rights, must be protected and that identified water uses must be considered in the approval of projects; and (4) providing additional information as part of the Board’s annual report. 

House Bill 267 passed the House on March 4^th and is in its third reading in the Senate.

House Bill 268

House Bill 268 amends existing law to revise provisions regarding extensions for construction, work, or application of water to full beneficial use.  This legislation amends Idaho Code 42-204 to provide that the Department of Water Resources may extend the time required for development of a water right to accommodate delays caused by litigation relating to the land or water development.  Further, it amends Idaho Code 42-204 to clarify that a 10-year extension of development for a water permit may be granted for multiple permits relating to a common diversion or distribution system. 

House Bill 268 passed the House on March 4^th and is in its third reading in the Senate. 

House Bill 307

House Bill 307 repeals and amends certain right-of-way provisions.  The bill deletes Idaho Code 42-1101 which appears to recognize the riparian doctrine in Idaho. Idaho courts have long recognized that the riparian doctrine does not apply in Idaho.  This legislation also amends existing statutes in response to an increase in legal disputes regarding the nature and scope of rights-of-way and easements for irrigation ditches, canals, and conduits including (1) clarifying rights and obligations association with operating, cleaning, maintaining, and repairing rights-of-way and easements; (2) codifying the common law standard applied by Idaho courts regarding debris deposited in rights-of-way and easements; and (3) clarifies application of rights and obligations to rights-of-way and easements to existing embankments and irrigation facilities.  

House Bill 307 passed the House on March 12^th and is in its second reading in the Senate.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Each bill page linked above provides the status of the bill. Additionally, the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

What about the ten water related Senate bills introduced this session?  Keep an eye on our blog for a summary of the Senate bills as well.

(Image Sources: https://www.mtexpress.com/news/state_regional/idaho-legislature-to-discuss-elections-liability/article_8c592c0e-e338-11ea-81b4-d3b028f895cf.html; https://www.usnews.com/news/best-states/idaho/articles/2021-03-19/idaho-legislature-might-shut-down-due-to-covid-19-outbreak)

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.

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!

Nevada Division of Water Resources (“NDWR”) has drafted proposed water related regulations and the public is encouraged to get involved by attending the upcoming workshops. The draft regulations concerning water use are R169-20 (concerning extensions of time) and R170-20 (concerning Water Right Surveyor licenses).

R169-20
This draft regulation proposes, among other things, to include new definitions such as defining “beneficial use,” “perfecting an appropriation” and “steady application of effort.” The proposed regulation also adds additional requirements necessary on an Application of Extension of Time to file a proof of completion and/or proof of beneficial use. The proposal provides guidelines for evidence the State Engineer can consider in determining if the applicant has demonstrated significant action toward perfecting their appropriation when considering whether to grant a requested extensions. The workshop for this proposed regulation will take place on January 13, 2021 at 9:00 am.

R170-20
This draft regulation proposes additional definitions and requirements related to Professional Engineers, Professional Land Surveyors and appointed state Water Right Surveyors as well as proposed disciplinary actions against surveyors. The workshop for this regulation will take place on February 5, 2021 at 9:00 am.

The upcoming workshops are anticipated to be held virtually. The current deadline to provide public comment is through the date of the workshops.

If you would like to participate in the water related proposed regulations, please consider attending the workshops!

This post is one of a series highlighting the ways in which water users have adapted to life in the time of COVID-19.

Todd Nash is a rancher, Wallowa County Commissioner, and President Elect for the Oregon Cattlemen’s Association. He and his wife, Angie, own Nash Natural Beef. They run primarily an angus cow-calf operation in eastern Oregon, also raising a few bulls. They raise high quality natural beef (no antibiotics or hormones) in Wallowa County. Their cattle is grain finished in a custom yard in Vale, Oregon. The majority of Nash’s cattle go through the feed yard before harvest. Then, they become part of Painted Hills Natural Beef for sale in restaurants and high-end supermarkets. This year, however, COVID-19 created a disruption in the meat distribution chain. This caused Nash to change their business model to focus on direct customer sales.

Disruption to the Meat Distribution Chain

The COVID-19 virus created a meat processing bottleneck. Some of the larger packing plants shut down or slowed down due to sick employees. Nash received information in early 2020 that he should try to sell cattle on his own due to this challenge. The concept of direct customer sales was not totally foreign to Nash. They had done something similar in 2008 during the economic recession. This year, they shared their plans to take whole and half beef orders on Facebook. They worked directly with three local processors: Boston Beef House in Ontario, Hines Meat Company in La Grande, and Valley Meat Service in Wallowa. Customers paid only $2.50 per pound hanging weight, as well as the butchering fees. Most of the other sales Nash saw were over $3.00 per pound. This allowed customers to buy Nash Natural Beef at very affordable prices.

Nash was humbled and overwhelmed by the enthusiastic response they received from customers both near and far. They sold out their entire fat cattle crop in May. The animals were harvested in June and July. Customers were able to pick up their beef directly from the nearest of the three processors, rather than delivering the beef as they had done in 2008. Customer reviews were also spectacular. Nash Natural Beef has always focused on genetics and DNA markers for tenderness and marbling. They take a lot of pride in the product they raise. It was very rewarding for Nash to have a direct connection with Nash Natural Beef’s customers and to share in their enjoyment of Nash’s high-quality beef.

A Growing Need for Small Processors

Nash says that 2020 has really highlighted our vulnerabilities from concentrating U.S. food systems, and the need for small processing facilities throughout Oregon. In general, livestock producers in Oregon must sell their meat using United States Department of Agriculture (“USDA”) inspected facilities. It is very expensive for small processors to become USDA certified and hire additional staff. Additionally, staffing can be difficult in the meat processing industry. This results in a lot of meat being processed in large, out-of-state facilities. An exception to this rule is called “custom-exempt” processing. This allows non-USDA, state-licensed facilities to slaughter and process livestock for the exclusive use of livestock owners, their family, and nonpaying guests. As such, persons can purchase live animals for processing at “custom-exempt” facilities. However, “custom-exempt” sales are usually limited to whole or half beef sales due to the need to purchase the live animal. This excludes the ability to buy and sell small quantities and specific cuts.

Nash gave an interview for the Oregon Cattlemen’s Association earlier this year on the topic of the PRIME Act (Processing Revival and Intrastate Meat Exemption Act). The Act, cosponsored by Oregon Congressman Greg Walden, would expand the exemption for state-licensed “custom-exempt” facilities. The Act would allow meat distribution to household consumers within the State, as well as restaurants, hotels, boarding houses, grocery stores, or other establishments in the State that are involved in the preparation of meals sold directly to consumers or offer meat and meat food product for sale directly to consumers in the State. Nash says that the PRIME Act would help keep beef produced in Oregon in the State. It would provide more economic opportunities for Oregon’s rural communities. And it would allow consumers to trace where their meat is being raised and processed. Nash has seen first-hand that customers really appreciate knowing how and where their meat is raised and having a direct connection with their rancher.

Better Days Ahead

Post-COVID, Nash is looking forward to a better market and higher cattle prices. He has worked through the challenges that have come with COVID-19, and is optimistic that better days are ahead. He thinks that Nash Natural Beef will continue doing direct customer sales in the future. They have already received orders for next year, and cattle will be ready in May or June of 2021. Contact Nash Natural Beef directly for more information! Additionally, the Oregon Cattlemen’s Association started a directory of members who are willing to sell beef cattle directly to customers.

When asked whether he enjoys being a rancher, Nash explains that if he did anything else, anywhere else, ranching in Wallowa County is what he would want to do on vacation. Nash enjoys the independence of raising his own cattle, and the comradery that is shared with other ranchers. There is always something to do every day and a reason to get out of bed. Although COVID-19 has been difficult, he is looking forward to having a closer relationship with customers going forward. He is hopeful that a fix to current federal laws will create more opportunities for small, local producers to provide Oregon residents with the wonderful beef that is raised in-State.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news and stories!

What is the Agriculture Innovation Agenda?
The USDA seeks to stimulate agriculture innovations that by 2050 will (1) increase agricultural production by 40%, and (2) reduce the environmental footprint of U.S. agriculture by half. Other benchmarks include:

• Reduce food loss and waste by 50% by 2030
• Build landscape resiliency by investing in active forest management and forest restoration through increased Shared Stewardship Agreements with states
• Enhance carbon sequestration through soil health and forestry, capitalize on innovative technologies and practices to achieve net reduction of the agricultural sector’s current carbon footprint by 2050
• Improve water quality; reduce nutrient loss by 30% nationally by 2050

In the recent comment by Society for Range Management, it makes an excellent point that the USDA proposal neglects consideration of “the contributions of rangelands to agriculture production in the U.S. Native rangelands cover nearly one third of the total land area of the U.S. and are a major source of forage for livestock production in the western U.S.”  If truly the objective by 2050 is to increase agricultural production by 40% and reduce the environmental footprint of U.S. agriculture by half, then rangelands must be considered.  USDA must build “landscape resiliency by investing in active forest management and forest restoration through increased Shared Stewardship Agreements with states,” and build landscape resiliency by investing in active rangeland management and, as applicable or needed, rangeland restoration through increased Shared Stewardship Agreements with Permittees dependent upon federal land use and with the applicable States. 

How to Submit Comments?

1. Register your comments using the Federal eRulemaking Portal
2. Cite the proposed Agriculture Innovation Agenda
3. Submit written comments by August 1, 2020

Sources:
Society for Range Management Comments
USDA Press Release
Agriculture Innovation USDA white paper

By Therese Ure and Lisa Mae Gage

Nevada Division of Water Resources (“NDWR”) submitted draft administrative regulation amendments to the Legislative Council Bureau for this regulation cycle (the proposed amendments can be found at http://water.nv.gov/documents/NDWR_Prop_Admin_Regs-Hearings_EOT_Water_Right_Surveyor_6-8-2020.pdf ). A public workshop concerning the administrative regulation amendments was hosted by NDWR on June 24, 2020 wherein NDWR received public comments during the workshop and subsequent written comments. Since the workshop NDWR has made revisions to the proposed regulation amendments based on the comments received.

In an effort to keep the public informed of its revised regulation amendment proposal, and in order to allow the public continued opportunity to provide comments, NDWR has advised that 1) it has created and is maintaining an email distribution list to provide communications concerning its ongoing revisions; 2) it is planning on holding at least three (3) additional public workshops prior to the beginning of the 2021 legislative session; 3) it will provide bi-monthly updates regarding the planned workshops; and 4) it does not intend to take the regulations to a public hearing until after the 2021 legislative session concludes.

To stay informed and up-to-date on these possible administrative regulation changes that may affect water right holders throughout the state of Nevada, we suggest signing up for updates via NDWR’s email distribution list. Instructions for subscribing to the notification list can be found by visiting http://water.nv.gov/documents/AdminRegs%20Listserv%20Instructions.pdf.

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.

By Therese Ure and Lisa Mae Gage

In case you missed it, on May 13, 2020, Schroeder Law Offices presented a very informative webinar regarding water right adjudications. (To view the full webinar, please visit https://www.water-law.com/webinars/water-right-adjudication/). During this webinar, attorneys Laura Schroeder and Therese Ure provided attendees with valuable information concerning water codes in Oregon and Nevada, the post code adjudication process, types of evidence considered in determining a pre-code vested right and general components of decrees.

One major take away from this webinar is the Sunset Date for Nevada vested claims. Pursuant to Nevada Senate Bill 270 that was enacted in 2017, Nevada now has a “Sunset Deadline” of December 31, 2027 by which all vested claims must be filed with Nevada Division of Water Resources (“NDWR”). While this deadline merely directs the date on which the Proof of Appropriation must be filed with NDWR, it is recommended that consideration be paid to researching the supporting historical information required to “Prove Up” the vested claim once the source is ripe for adjudication. For more tips on researching historical water use, please go to http://www.water-law.com/water-rights-articles/nevada-water-rights/.

Schroeder Law Offices has been providing weekly webinars for an array of water related issues during the COVID 19 pandemic. To review any previous webinars, or to sign up for any future webinars, please visit https://www.water-law.com/webinars/.

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

Associate Attorney Jakob Wiley recently co-authored an article titled “Groundwater Management: The Movement Toward Local, Community-Based, Voluntary Programs” in the Kansas Journal of Law and Public Policy (Volume 29, Issue 1) available for download here. Jakob’s contribution provided the western United States’ examples and perspectives for the paper. The paper is a product of a panel discussion at the American Water Resources Association’s 2016 conference in Orlando, Florida presented by the authors.

The article investigates a general trend in groundwater management towards bottom-up, basin-scale, voluntary organizations. This trend contrasts with the traditional top-down, regulatory approach to manage groundwater depletion. The paper analyzes the “voluntariness” of several case studies across the United States, including Kansas’s “Local Enhanced Management Areas” (or LEMAs), the Texas’s Edwards Aquifer Authority, and innovative uses of intergovernmental agreements and water districts in Oregon, California, and Colorado.

Co-author John Peck is a recently retired Connell Teaching Professor of Law Emeritus at the University of Kansas School of Law. Rick Illgner is a retired Groundwater Resources Specialist, working in Kansas and Texas. Constance Owen was formally an administrative law judge for the Division of Water Resources for the Kansas Department of Agriculture, but recently was appointed by the Kansas Senate as Chairperson of the Kansas Water Authority.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

In 2014, the Idaho Department of Water Resources (“IDWR”) proposed adjudicating water rights in the Bear River Basin in Southern Idaho. Now, nearly 6 years later, a bill that would allow IDWR to commence the adjudication is up for legislative consideration. The Idaho House of Representatives unanimously passed House Bill 382 (“HB 382”) on February 10, 2020. The House then sent it to the Idaho State Senate with a “do pass” recommendation on February 11. The third Senate reading of HB 382 is scheduled to occur on February 26.

Adjudicating the Bear River Basin water rights will enable IDWR to “accurately record all existing water rights to resolve uncertainty and to help ensure fair and accurate water administration.” Revised Statement of Purpose RS27284C1/H0382, available here. Many of the water rights in the Bear River Basin hold senior priority dates, but uses have changed over time or are placed to use outside the claimed boundaries due to the passage of time and inconsistent record keeping. Additionally, because of the uncertain nature of many of the water right claims, until an adjudication is completed, senior users who face interference from junior users’ water use cannot seek enforcement of their priorities.

The Bear River Basin is one of only two basins in Idaho that have not yet been adjudicated. In 2014, IDWR signed a final decree closing the Snake River Basin Adjudication (“SRBA”). Several basins in Northern Idaho, including the Coeur d’Alene-Spokane, Palouse River, and Clark Fork-Pend Oreille basins, are currently being adjudicated as part of the Northern Idaho Adjudication project. IDWR’s website provides a summary of past, current, and upcoming adjudications here.

If HB 382 passes the Senate, the final step will be for Governor Brad Little to sign the bill into law. Then IDWR can commence the adjudication by sending notice to water users and property owners within the Bear River Basin. Those users will then have the opportunity to submit claims for historical and ongoing water use. Once the submission period closes, the Court will review all claims and, eventually, issue a decree confirming the water rights.

It is not uncommon for adjudication proceedings to take a significant number of years from their commencement to completion. Idaho has completed its prior adjudications in record time. Even so, the SRBA began in 1987, but a decree was not issued until 2014. Legislature similar to HB 382 authorizing the adjudications in Northern Idaho was passed in 2006; however, Phase 1 of 3 is still ongoing and Phase 2 only just began in April 2019. The Bear River Adjudication would not begin until adjudications in Northern Idaho are complete. Once commenced, it is expected to take 8-10 years.

Stay tuned to Schroeder Law Offices’ blog for updates on the Bear River Basin and other water projects!