In a previous blog, we looked into who owns an aquifer: does it belong to private individuals or the public? Under the ad coelum doctrine, the surface owner holds the ground itself – rocks, dirt, and the like – as private property, owned all the way down to the Earth’s core. On the other hand, the public collectively owns water, taken for private use through the rule of capture, or the ferae naturae doctrine.^[1] Because an aquifer is a “body of permeable rock which can contain or transmit groundwater,”^[2] the rules related to aquifers are a complex combination of the two competing doctrines. In our previous update, we highlighted a California district court case, Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al, that seeks an answer to the question of aquifer pore space ownership.^[3]

Background

The Agua Caliente Band of Cahuilla Indians (“Tribe”) sued the Coachella Valley Water District and Desert Water Authority (“Defendants”) to protect the aquifer under its reservation from groundwater depletion and water quality degradation. The Tribe argued that the pore spaces within the aquifer are its property under the ad coelum doctrine. The Defendants believe that the public owns pore spaces. The court has not yet addressed the question of whether the pore spaces are public or private property. However, the case has progressed since our last post and we are due for an update.

The Tribe and Defendants agreed to split the litigation into three phases when the Tribe first filed the case in 2013. Phase 1 was to decide whether the Tribe had a reserved right to groundwater in principle. Thereafter, Phase 2 would resolve if this reserved right contained a water quality component, the method of quantification of a reserved groundwater right, and if the Tribe owned pore spaces within the aquifer. Phase 3, if necessary, would quantify the Tribe’s reserved groundwater right and ownership of pore space.

In Phase 1, the court granted summary judgment to the Tribe on its groundwater right claim. The decision essentially declared without a trial that the Tribe did in fact have a reserved right to groundwater. Phase 2 was delayed while the Defendants unsuccessfully appealed to the 9th Circuit and then unsuccessfully sought Supreme Court review.

Update

Like Phase 1, Phase 2 proceeded to summary judgment. The court ruled that the Tribe can seek a declaration that it has an ownership interest in sufficient pore space to store its groundwater. However, the Tribe did not argue that it owns the pore space as a “constituent element” of its land ownership in its initial complaint, and the court could not consider it. Recently, the Tribe submitted an amended complaint including its pore space as “constituent element” of land ownership argument, which is now before the court.

The question of whether the Tribe has ownership of the pore space beneath its reservation is the only item left for the court to decide in this phase; the answer could have a real impact on groundwater issues, as it may be one of the first cases to directly address the pore space question. Another controversy is bubbling over pore spaces in North Dakota, starting with the case Mosser v. Denbury Res., Inc., 2017 ND 169 (2017), passage of H.B. 2344, and legal challenges to the bill by the NW Landowners. Keep an eye on the blog for our next update on this case that could affect you!

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

^[1] https://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos

^[2] Oxford Online Dictionary, https://en.oxforddictionaries.com/definition/aquifer

^[3] The case is presently before the United States District Court for the Central District of California, Docket No. ED CV 13-00883-JGB-SPX. Plaintiffs filed the complaint on May 14, 2013.

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. 

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.

In the final COVID-19 webinar, Laura Schroeder, Therese Ure, and Sarah Liljefelt discuss various types of easements and how to protect water access. The webinar airs on June 17, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!

First, learn the different types of easements, how they are created, and when they might apply. Secondly, the panelists discuss the interpretation of easements and how the interpretation can evolve over time. Further, the presentation outlines common easement issues specifically related to water and protecting water access. Generally, topics will include:

• Basics of property law
  • Estates, deeds, and the “bundle of sticks”
• Types of Easements
  • Express, implied, prescriptive, and “irrevocable licenses”
  • The specific attributes of each kind of easement
  • How you can protect water access to points of diversion, ditches, and pipelines
• Utility easements
• Well sharing agreements

Afterwards, we post our webinars in the COVID-19 Series here, giving you “on demand” access to Schroeder Law Office’s educational events under the “social distancing” orders! This is the final webinar in our COVID-19 series, so stay tuned to our blog for announcements for information about our next events. If you have any issues with viewing the webinars, 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) 

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/.

In the eighth COVID-19 webinar, Laura Schroeder, Michelle Owen, and Scott Revell discussed various types of water organizations. The webinar aired originally on June 3, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!

Above all, learn the differences between public and private water organizations. For instance, the panelists will provide examples of the different types of public and private water management organizations. Further, the presentation reviews the generally applicable rules pertaining to public water agencies and regulatory oversight of private water utilities. Generally, topics will include:

• Types of Water Management Organizations
  • Residential and domestic
  • Irrigation
  • Flood control and drainage
• Comparing Public and Private Water Management
  • Formation, organization, and dissolution
• Public Water Organizations
  • Municipal, irrigation, domestic, and flood control agencies in Oregon, Nevada, and Washington
  • Applicable laws, rules, and requirements for public agencies
• Private Water Organizations
  • Corporations, ditch companies, and community water systems
  • Different agencies providing oversight of private water management organizations

Afterwards, we posted our webinars in the COVID-19 Series here, giving you “on demand” access to Schroeder Law Office’s educational events under the “social distancing” orders! Additionally, the COVID-19 Webinar series continued over several weeks covering topics, including livestock water rights on public lands. If you can’t make it, stay tuned to our blog for announcements for information about the next webinars or watch the webinars later on our website. If you have any issues with registration or viewing the webinars, please contact Scott Borison at: scott@water-law.com.

For the sixth COVID-19 webinar, paralegals Rachelq Harman, Tara Jackson, and Lisa Mae Gage will discuss the research tools and resources available on the Idaho Department of Water Resources (IDWR), Oregon Water Resources Department (OWRD), and Nevada Division of Water Resources (NDWR) online databases. The webinar will occur in 3 parts on May 20, 2020.

First, Rachelq, moderated by attorney Laura Schroeder, will present on IDWR’s online resources from 11:00 AM to 11:30 AM Pacific Time (12:00 PM to 12:30 Mountain Time). Next, Tara, moderated by attorney Sarah Liljefelt, will present on OWRD from 12:00 PM to 12:30 PM Pacific Time. Finally, Lisa Mae, moderated by attorney Therese Ure, will present on NDWR from 1:00 PM to 1:30 PM Pacific Time.

Click on the state’s name to register for the Idaho, Oregon, and/or Nevada webinars. We invite you to attend all three, or just the one(s) most relevant to you. If you have any issues with registration, please contact Scott Borison at: scott@water-law.com. If you can’t make it, stay tuned to our blog for announcements for information about the next webinars. Our previous webinars in the COVID-19 Series are available here.

Each of the May 20th webinars will offer suggestions on how to get the most out of each state’s online resources and water right information. First, we will provide an overview of what tools are available on each state’s website, then narrow our focus to water right look up and mapping tools. We will then take you through the steps needed to search for individual water rights. We will also explore the various online mapping tools and files available to aid in water right research. 

Topics will include:

1. Website home page overview
2. Use and function of water right search systems
   1. Types of search fields
   2. Types of search results
3. Use and function of online mapping tools
   1. Finding a water right
   2. Finding a well
4. Other useful tips/tools for water right research

We will offer a surprise discount for online research assistance to be provided by one of the experienced water rights paralegals who are panelists to this webinar for webinar participants.

The COVID-19 Webinar series will continue over next several weeks, including topics related to real estate due diligence and water management organization. Previous webinars are available on our website, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

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)

In the fifth COVID-19 webinar, Laura Schroeder and Therese Ure discussed adjudications and filing a claim for a “vested” water right. The webinar originally aired on May 13, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here! Stay tuned to our blog for announcements for information about the next webinars. You can view previous webinars in the series here.

Learn the elements of a claim and the process of adjudication leading to an enforceable pre-code priority water right. Receive the “how to” provide evidence of a claim, and prepare for the inevitable issues that arise in the adjudication process. If you hold a decreed right, you will leave knowing how to “read” the Court’s decree. Topics will include:

• History of water rights in Oregon and Nevada
  • Water codes generally
  • Pre-code water rights
• Adjudications
  • Initiation, process, claims, and types of evidence
• Decrees
  • General discussion of decrees, appeals, and final decrees
• Important deadlines
  • Nevada’s sunset date
  • Oregon claim registration deadline

The COVID-19 Webinar series will continue over next several weeks, including topics related to online water right research, water right sales, and water management organizations. Previous webinars are available on our website, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

By Caitlin Skulan and Lisa Mae Gage

On January 31, 2020 the Nevada State Engineer Tim Wilson issued the Order of Determination of the Relative Rights in and to All Waters of the Diamond Valley Hydrographic Basin. This order is the State Engineer’s final determinations of all the vested claims to water in the Diamond Valley Hydrographic Basin.  Nevada Revised Statutes “NRS” Chapter 533 governs the procedure for adjudications before the State Engineer and Court systems.

Filing Final Order with District Court

Now that a final order is issued, the State Engineer will file the Order of Determination with the clerk of the district court in which the water sources are located. The water rights subject to the Diamond Valley adjudication are not located wholly within one county, rather, they are located in Elko and Eureka counties. Elko County District Court is located in the Fourth Judicial District, while Eureka County is located in the Seventh Judicial District. When this happens, Nevada law directs the State Engineer to notify each of the judicial districts of his intention to file the Order of Determination, at which time the judges are to confer and agree upon where the court proceedings will be held. After the Judicial District is determined, the State Engineer will file the Order of Determination, evidence and transcripts with the court clerk. If the judges fail to notify the State Engineer of their decision within a statutorily prescribed period, the State Engineer can file the Order of Determination with the judicial district of his choosing.

Setting of Hearing on Order of Determination

Once the State Engineer’s record (Final Order, evidence and testimony) are filed with the District Court, the District Court will issue an order setting a Hearing on the Order of Determination. The court will provide the State Engineer with a copy of the Order Setting Hearing and the State Engineer will mail a copy to all interested parties. In addition, the State Engineer will publish the Order setting hearing in newspapers of general circulation for Elko and Eureka counties.

Exceptions to the Order of Determination

If any party feels aggrieved or dissatisfied with the Order of Determination they can file objections. At least five (5) days before the date of the hearing, that party must file with the District Court their objections by filing a Notice of Exceptions to the Order of Determination. This notice must state briefly the exceptions to the order and give the party’s requested prayer for relief.

Hearing on Order of Determination and Decree

If no exceptions to the Order of Determination are filed, on the day of the hearing the Court can issue its Findings of Fact, Judgment and Decree (“Decree”). If exceptions are filed, each party filing exceptions will appear at the hearing. The Court will prepare and provide all parties a copy of its Proposed Findings of Fact, Judgment and Decree at least thirty days before it intends to execute the Decree. Once the Decree has been executed by the District Court, there is a further opportunity to appeal to the Nevada Supreme Court.

While the issuance of the State Engineer’s Order of Determination is a good milestone in determining the vested rights in the Diamond Valley Hydrographic Basin, we may still be a long way from obtaining a final Decree.

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)

On January 28, 2020, the U.S Navy will hold a public informational meeting to present their Final Environmental Impact Statement regarding potential environmental impacts of the proposed modernization of the Fallon Range Training Complex in northern Nevada. The presentation will begin at 5:00 p.m. and will also provide an opportunity for the public to provide oral comments.

Meeting Information:

Tuesday, January 28, 2020

Fallon Convention Center

100 Campus Way

Fallon, NV 89406

5:00 p.m. – 7:00 p.m.

The proposal to modernize would incorporate a renewal of the Navy’s current public land withdrawal and include an additional withdrawal of public lands and acquisition of non-federal land, airspace expansion and modifications, and upgrades to range infrastructure.

The Fallon Range Training Complex Modernization Final Environmental Impact Statement can be found online here or at any of the following public libraries for public viewing: Austin, Carson City, Churchill County, Crescent Valley, Downtown Reno, Eureka, Fernley, Gabbs Community, Mineral County, Pershing County, and Yerington. 

For more information, visit www.FRTCModernization.com .

Other related post .

Featured Photo Credit: USNI News

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.

Schroeder Law Welcomes new Legal Assistant and is happy to announce the newest addition to its Reno team, Leslie Velazquez. As our newest Legal Assistant, Leslie will be working to assist our paralegals and attorneys on client matters, marketing, and other administrative duties. Leslie earned her Associates of Arts degree from Truckee Meadows Community College in May of 2016. Shortly after, she obtain her Bachelors of Liberal Arts in Criminal Justice from the University of Nevada, Reno in December of 2018, majoring in Criminal Justice with a minor in Psychology.

Leslie was born and raised in Reno, Nevada where she saw the development of Nevada’s agriculture grow and extend over the years. She is eager to develop knowledge on Nevada’s Water Rights. She enjoys spending time family, hiking, and playing soccer year around. She is excited to join the Schroeder team working to assist our community with all their water needs.

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.

Notice regarding final requests for revision of the mapping of Newlands Project Water Rights has been issued by the Nevada Division of Water Resources (“NDWR”). NDWR is overseeing the revision process of identifying and mapping water rights in the Newlands Project, and will be assisting water rights owners with identification and revision as is required. Though more information regarding the project schedule can be found on NDWR’s online database, the following workshop dates will be available to Newlands Project water right owners at the below-listed locations:

Fernley City Hall
Room 136
595 Silver Lace Blvd.
Fernley, NV 89408

• Monday, August 26, 1:00pm to 7:00pm
• Tuesday, August 27, 1:00pm to 7:00pm
• Wednesday, August 28, 9:00am to 3:00pm
• Thursday, August 29, 9:00am to 3:00pm

Churchill County Commissioners
Community Room
155 N. Taylor Street, Suite 110
Fallon, NV 89406

• Monday, September 9, 1:00pm to 7:00pm
• Tuesday, September 10, 1:00pm to 7:00pm
• Wednesday, September 11, 9:00am to 3:00pm
• Thursday, September 12, 9:00am to 3:00pm

The final map viewing and revision process started on July 1, 2019, with all Requests for Revision and supporting documentation due to NDWR no later than September 30, 2019. Upon review of water rights, owners can provide updates to NDWR via NDWR’s Request for Revision form.

Newlands Project water right owners are encouraged to review their water rights of use and submit the Request for Revision form if they believe that their water rights are inaccurately represented by the mapping project. Once all revision requests have been received and reviewed, the State Engineer will make final determinations. Currently, the completion date for the final report is set for September of 2020.

Upon request, Schroeder Law Offices can assist Project water users in the process or otherwise advise on the legal consequences of improperly mapped water rights.

Beginning Tuesday, September 3, Schroeder Law Offices, P.C., resumes regular office hours:

Monday through Friday
8:00 am – 5:00 p.m.

Schroeder Law will be closed, Monday, September 2, to observe Labor Day.

This summer we experimented with a nine day rotation, Monday through the next Thursday, 7:30 am – 5:30 pm. The tenth day, every other Friday, either the Reno or Portland office was closed covering work for the other office alternatively.

In an emergency, please phone or email your attorney directly. Our goal is to return your call or email within 24 hours.

On July 24, 2019, Tim Wilson, Nevada Division of Water Resources’ acting State Engineer gave an informative presentation on the 2019 Legislative Session. Mr. Wilson provided summaries of several water related bills that were introduced and/or passed during this session. A few of the more interesting bills are described below.

Assembly Bill 62 (AB 62)

AB 62 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of Nevada Division of Water Resources (“NDWR”) on November 19, 2018. This bill proposed legislative changes concerning the granting of Applications for Extensions of Time for Proofs of Completion only. It does not address Extensions of Time for Proofs of Beneficial Use. Currently a permittee is allowed any number of extensions of time to file a Proof of Completion of Work. According to Mr. Wilson, the threshold for granting an extension of time for a proof of completion is unreasonably low as the permittee need only show good faith and reasonable diligence to perfect their water right application. NRS 533.380 defines “reasonable diligence” as the “steady application of effort to perfect the application in a reasonably expedient and efficient manner under all the facts and circumstances.” Water cannot be placed to beneficial use unless and until the construction works are complete. Mr. Wilson noted that the granting of unlimited extensions of time is undermining the basic principal of beneficial use.

AB 62 sought to develop hard time limits on the filings of the Proofs of Completion of Work depending on the size of the project and the amount of money expended on the project. For example, a permit for municipal use would require a Proof of Completion to be filed within 15 years and at least $50,000 must be expended on the project. A permit for an irrigation or stockwater use would have a 5 year cap with a much smaller minimum expenditure. To accommodate permittees who are unable to complete construction of works for reason outside of their control, AB 62 proposed a “tolling” provision to suspend the time limit for express conditions such as the permittee is waiting on federal, state or local government consent necessary for the project or a pending court action or adjudication.

Many amendments were made to AB 62 and the bill was eventually passed by both the Assembly and the Senate. The Governor removed the majority of the language proposed, updated the statute to direct the State Engineer to adopt any regulation necessary to carry out provisions of the statute concerning Proofs of Completion and ordered that copies of the regulations be provided to any person upon request, signed the Bill, and directed NDWR to draft regulations. AB 62 as-enacted can be found at (https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/5987/Text). Workshops and public meetings will be held and NDWR plans to make the draft regulation language and updates available on their website at http://water.nv.gov/index.aspx.

Assembly Bill 95 (AB 95)

AB 95 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of the Legislative Committee on Public Lands on January 24, 2019. This bill proposed legislative changes for domestic well allowance during times of curtailment. Nevada statutes at NRS 534.110 require the State Engineer to conduct investigations of basins, or portions of basins; and, where it appears there is not enough groundwater supply to satisfy permittees and vested rights holders’ withdrawals, the State Engineer may order withdrawals (including withdrawals from domestic wells) to be restricted based on priority.

AB 95 amends the statutes so that in the event the State Engineer finds, or a court orders, State Engineer restriction, State Engineer curtailment, or basin designation under a Critical Management Area, the State Engineer can allow a domestic well to withdraw up to 0.5 acre feet annually, if it can be recorded by a water meter. The revised statute does not make domestic wells immune to curtailment but ensures they will still receive some water. AB 95 was passed by both the Assembly and Senate and was signed by the Governor. AB 95 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6082/Text.

Senate Bill 140 (SB 140)

SB 140 was introduced by the Committee on Natural Resources on February 11, 2019 and proposed to reserve 10 percent of water available for appropriation in certain basins not yet fully or over appropriated. Senator Pete Goicoechea testified that the intent of SB 140 is to “avoid over-appropriation of available water in basins by placing a marker for retention.” SB 140 was passed by the Senate and Assembly and signed by the Governor. SB 140 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6171/Text. As enrolled, NRS 533 will now include a provision wherein for each basin where there is uncommitted groundwater pursuant to existing permits, certificates or otherwise, the State Engineer shall reserve 10 percent of the total remaining, non-committed, unappropriated groundwater. As introduced, SB 140 intended for the reserved water to be available for use during times of drought or emergency, however, as enrolled, the statute further explains that the groundwater reserved in the basin is not available for any use.

During the presentation many questions and comments were posed as to how this will be implemented, and all the issues that come into play practically as well as legally. NDWR now must attempt to figure out the amounts of uncommitted water available: pending applications need to be resolved before this determination can be made; NDWR needs to determine how to address consumptive vs. non-consumptive uses; and, NDWR needs to decide how to address areas where basins share perennial yield amounts. One can only anticipate that this Bill will be amended in the future.

It is no secret that Nevada water is a precious resource that needs laws in place to protect its availability to current and future water users. Several bills in the 2019 session related to the protection and conservation of water. Nevada’s precarious water situation has gained the attention of our legislature and it will be interesting to see what water related bills will be introduced next session.