More Proposed Water Law Changes in Nevada Legislation

Water Law Changes
by Lisa Kane and Therese Ure

The 2017 Nevada Legislative Session is currently in motion; the 79th legislative session began on February 6th and will continue through June of 2017. Meetings are being held daily by the senate and assembly committees as they review proposed changes to Nevada legislation. There are several already-proposed bills on water law that may affect water rights users in the state (click here for a more comprehensive list), however, a couple of new bills have been introduced in the past week that seek to address different water-related matters.

Assembly Bill 209 (AB 209), proposed by Assemblyman James Oscarson of Nye County, is drafted to address issues with extensions on groundwater rights and forfeiture prevention. The bill seeks to revise provisions concerning water law in the State of Nevada that would require the State Engineer to, under certain circumstances, extend the time necessary to work a forfeiture of certain water rights. The full text for this proposed bill can be found here.

Senate Bill 134 (SB 134), proposed by Senator Pete Goicoechea of Eureka County and Senator Aaron Ford of Clark County, was also newly introduced in the past week and focuses on providing legislative direction to the State Engineer in regards to water applicants and conflicts with existing water rights. Specifically, SB 134 would authorize the State Engineer to determine if such a conflict exists and if so, to impose a monitoring, management and mitigation plan upon applicants whose requested use conflicts with existing rights. The bill also requires that conflicts be eliminated in order for the water use application to be permitted. The full text for this proposed bill can be found here. While the current water law already requires the State Engineer to evaluate and not approve applications that conflict with existing rights, this legislation add the ability to impose monitoring, management, and mitigation plans (aka “3M Plans”) as a way to offset conflicts.

The Nevada State Legislature’s website provides session information as well as bill draft requests, fact sheets, bill text and further information. The Legislature’s calendar also provides links to daily meetings and allows the public to view live sessions across the state. To keep apprised of bill progress or view active work session agendas visit the legislature website at https://www.leg.state.nv.us/App/Calendar/A/.




Federal Land Grazing Permit Workshops in Nevada

Workshops

During the month of January, the Nevada Cattlemen’s Association is hosting a series of workshops around the state regarding grazing permits on federal lands. The Bureau of Land Management and U.S. Forest Service agencies (and other agency representatives) will be giving presentations on their plans to implement land use changes that have been established for managing federal lands.

Materials to be reviewed during the meetings include the January 5, 2015 Order No. 336 by the Secretary of the Interior regarding Rangeland Fire Prevention, Management and Restoration policy and strategies, as well as resource management plans as drafted by the BLM. Attendees are strongly encouraged to review the materials to be informed prior to attending the meetings.

There will be five workshops beginning in mid-January in locations across the state; Nevada. Meetings will be held in Winnemucca, Elko, Ely, Battle Mountain and Fallon, more information regarding location and time can be found below or by contacting the Nevada Cattlemen’s Executive Director, Kaley Sproul, at (775) 738-3214.

Workshops

• January 17: 2-6:30pm, Winnemucca, Humboldt Coop Extension

• January 18: 2-6:30pm, Elko, Great Basin College (HSCI Room #108)

• January 19: 2-6:30pm, Ely, Bristlecone Convention

• January 20: 2-6:30pm, Battle Mountain, Battle Mountain Civic

• January 21: 12 to 4:30pm, Fallon, Old Post Office




Proposed Water Law Changes in 2017

Water Law Changes

The upcoming 2017 Nevada Legislative Session includes proposed water law changes that could affect water rights users across the state. The 79th legislative session, which starts on February 6, 2017 and ends on June 5, 2017, contains a number of proposed water law changes. It appears there will be four senate bills submitted by the Nevada State Engineer and Nevada Division of Water Resources during the session, as well as five bills from the Nevada Legislative Committee to Study water, and five bills from individual legislators and committees.

The four senate bills to be introduced to the 2017 legislative session that include potential changes to water law in Nevada are as follows: Senate Bill 47 (SB47) proposes various changes to the appropriation of water; Senate Bill 51 (SB51) proposes various changes to the adjudication of vested water rights; and Senate Bills 73 and 74 (SB73 and SB74) propose the revision of various provisions relating to water rights and use in the State of Nevada. Any pre-filed bills, which include the senate bills listed above, are available for public viewing on the Nevada Legislature’s website at https://www.leg.state.nv.us/Session/79th2017/Reports/Prefiled.cfm. By clicking on the link for the proposed bill, users can view the full bill text as introduced to the Senate as well as the bill’s history of hearings or votes as the session moves along. These bills are also referred to the Senate Natural Resources Committee for review.

Water Law Changes

While proposed bills could bring changes to water law at a statewide level in Nevada, county officials and other local groups are also working to develop local water management plans. The Nevada Farm Bureau, for example, has a collected a group of interested volunteers to participate in a Water Discussion group for water management plans specific to volunteers’ areas around the state. The Bureau also continues to encourage interested parties to contact them for more information regarding such discussion. According to the Pahrump Valley Times, officials in Nye County have conducted studies on a number of wells in the Pahrump Valley that have the potential to go dry. Further, studies are ongoing in the Humboldt River Basin and being conducted by USGS and DRI. It appears scientists are looking to understand the groundwater system better.

Studies such as those being conducted in Nye County will likely continue across the state in preparation for recommendations on approval or denial of the proposed water law changes in Nevada’s 79th Legislative Session in 2017. Counties and hydrographic basins may have different needs based on appropriation and water sources available. The interested public can keep current with session information and the drafting and approval of bills as the session persists at the legislature’s website: https://www.leg.state.nv.us/Session/. County and city papers also continue to publish information regarding more local sessions.




Fallon Range Training Complex Modernization EIS Public Comment Period Extended

As an update to the previous blog posted regarding the Fallon Range Training Complex Modernization and Public Comments, https://www.water-law.com/deadline-approaching-submit-nepa-scoping-comments-nevadas-fallon-range-training-complex/, the deadline to submit comments has been extended. The new deadline is December 12, 2016. If you are interested in submitting comments there are several ways to submit comments including online or by mail.

Submit Comments Online:

To submit comments online, please visit:
https://frtcmodernization.com/Public-Involvement/Submit-Your-Comment

Mail In Comments:

For a written form, please follow the link to download and print a pdf form:
https://frtcmodernization.com/portals/FRTCModernization/files/forms/FRTCMEIS_Scoping_Comment_Form.pdf

Mail written comments to the address listed below:

Naval Facilities Engineering command Southwest
Code EV21.AK
1220 Pacific Highway
Building 1, 5th Floor
San Diego, CA 92132

In order for your comments to be considered in the draft Environmental Impact Statement (EIS), the comments MUST be postmarked or received online by December 12, 2016.




New Grants Awarded to Improve Surface Waters in Nevada

ditch

The Nevada Division of Environmental Protection (“NDEP”) has been evaluating nonpoint source water pollution, occurring when rain, snowmelt and irrigated water flowing over developed land carries contaminants into Nevada waterways. Accordingly, NDEP implemented a Nonpoint Source Grant Program to provide funding to qualifying state, regional and county agencies, as well as conservation districts and nonprofit agencies. These programs aim to improve water quality, educate the public about nonpoint source pollution and to implement watershed improvement plans.

The NDEP reviewed requests for proposals (“RFP”) during 2016 and has selected 12 projects to award grant funding. The proposed plans will aim to reduce pollution impact from nonpoint sources. The funds originate from a US Environmental Protection Agency grant awarded by the Clean Water Act. Additional grant funding is expected to be awarded through a 2017 RFP process during 2017.

If you would like to learn more about the Grant Program, or to see a list of the projects that have been awarded grants for the 2016 year, please visit http://ndep.nv.gov/bwqp/file/319h_rfp/2016PojectsFunded.pdf.




Public Forum Scheduled to Address the Washoe County Public Lands Bill

Hammond Protest

Washoe County is hosting a public forum to discuss the Public Lands Bill on Wednesday, November 2, 2016 from 4:30 pm – 7:00 pm at the Reno Sparks Convention Center. A few of the main priorities of the bill include:

  • Make certain federal lands available for future economic development opportunities
  • Expand recreational opportunities to include parks, trails, and open space
  • Create opportunities for local jurisdictions to acquire federal lands
  • Create new wilderness areas and provide funding for habitat restoration and conservation

Please see the following maps of the proposed areas surrounding the greater Reno-Sparks area to be transferred out of federal ownership:

Map 1: https://www.washoecounty.us/csd/files/Files/Land_Bill_8-16_Disp_Boundary.pdf
Map 2: https://www.washoecounty.us/csd/files/Files/Land_Bill_8-16_Transfer_Req.pdf

For more information relating to the maps of the proposed areas: https://www.washoecounty.us/csd/planning_and_development/conservation-act.php

If you are interested in participating in or attending the public forum, please see the information below:

Date & Time: Where:
November 2, 2016
4:30 pm – 7:00 pm
Reno Sparks Convention Center
4590 S. Virginia Street
Reno, NV

For more information relating to the Public Lands Bill or the Public Forum, please contact the following Washoe County representative:
Scott Oxarart
soxarart@washoecounty.us
775-328-2068

Original news release: https://www.washoecounty.us/outreach/2016/10/2016-10-26-public-lands-bill.php




Deadline Approaching to Submit NEPA Scoping Comments to Nevada’s Fallon Range Training Complex “FRTC” Modernization Proposed Action

NEPA is the acronym for the National Environmental Policy Act.  NEPA’s purposes included setting national policy to encourage productive and enjoyable harmony between humans and their environment; promoting efforts that will prevent or eliminate damage to the environment; and, enriching the understanding of the ecological systems and important natural resources. See 42 U.S. C. 4321 for additional details.  To promote these purposes, NEPA defined processes federal agencies must follow when they propose an action, grant a permit, or agree to fund or otherwise authorize any other entity to undertake an action that could possibly affect environmental resources. Thus, an  EA (Environmental Assessment) or an EIS (Environmental Impact Statement) are resulting products of NEPA analysis.  Generally speaking, NEPA’s requirement is simply to engage in the a process that analyzes the effects on the environment with public input and disclosure, before taking action.

Once a project is determined to have a federal nexus to require NEPA, the first stage in the process is scoping.  In scoping the lead federal agency asks for comment and input from the public as to the nature and the extent of the issues and impacts to be addressed in the EIS.  It is during scoping that your comment on the proposed action’s effect on you or the environment, rangeland resources, water sources, wildlife, livestock grazing, cultural resources, and the like, are required. During scoping, you can identify a reasonable alternative solution, state that alternative with specificity, and request that it be considered in the NEPA process.  In the end, your input in the scoping process could change what the agency determines are the issues and what alternatives might be considered when that lead federal agency prepares the Environmental Impact Statement.

NEPA processes do NOT give the agency authorization to proceed on a project or provide funding for a project.  It is merely one required step in the federal process of decision making.  Once NEPA is completed, the agency usually issues a ROD (Record of Decision) that outlines how, or under which alternative, the agency may proceed forward. Generally speaking, lawsuits related to NEPA seek declaratory judgments or writs of mandamus to establish the NEPA obligations (ie the agency needs to follow more process).  NEPA does not authorize awards of attorney’s fees and expenses for prevailing parties unless a plaintiff can qualify under EAJA, 28 USC 2412.

NEPA, is the only the precursor to agency action.  If your rights or interests may be affected by a proposed action, now it the time to start positioning yourself to show harm so that you may be adequately compensated in separate proceedings should the proposed action proceed.

In Fallon Nevada, NEPA scoping began for the Fallon Range Training Complex Modernization’s proposed action that will 1) renew existing 202,589 acres of public land withdrawal that is set to expire on November 6, 2021; 2) withdraw and reserve for military use 604,744 acres of additional public land to expand existing land ranges; 3) acquire 65,160 acres of “non-federal” land (think state owned or privately held) to expand existing land ranges; 4) expand special use airspace, as well as reconfigure existing airspace; and 5) modify range infrastructure to support he expansion. Scoping Comments are due, pursuant to the Federal Register Notice, on November 25, 2016 (see, Vol. 81, No. 166 at 58919 dated August 26, 2016).  See also, www.frtcmodernization.com for more information relating to the proposed action.

This expansion will include several grazing allotments.  Some of these allotments will be completely closed to grazing, while others will be modified in some way.  Both the Nevada Farm Bureau and the Nevada Cattlemens Association are working to prepare comments in this scoping process, however you should also submit your own comments related specifically to your affected areas. A map of the effected grazing allotments in relation to the proposed action can be found at: https://frtcmodernization.com/portals/FRTCModernization/files/maps/FRTCLM05140v11_NAS_Fallon-Proposed_Land_Renewal_and_Expansion_Map_with_Grazing_Allotments.pdf

Once the scoping period closes, the agencies will prepare a draft EIS.  According to the public meetings, the draft EIS is expected to be published in the Winter of 2018.  After the draft is published, there will be another round of public meetings and another comment period relating to the draft EIS document.  Currently the final EIS is expected in the Fall of 2019, with Record of Decision to be issued in the Winter of 2020.

Don’t wait to get your comments drafted as the November 25th deadline is the day after Thanksgiving!



Showing Diligence in Water Use by Tracking Water Use Meters

Water Metering

Diligence in Water Use by Tracking Meters

Due to recent crackdowns by the State Engineer in Nevada regarding both forfeitures and cancellations of groundwater rights not in full use, it is important to keep records of your water use.  One method to show use is by recording your meter readings.  This is important both for permitted wells and certificated wells respectively, to provide evidence to support a Proof of Beneficial Use as well as evidence of continued use.[1]

Many groundwater permits/certificates require monthly, quarterly, or annual reporting to the Nevada Division of Water Resources.  If your use so requires recording and reporting, make sure you meet your specified deadlines to file your meter reading reports.  If your wells are not metered, please be sure to verify whether you are required to maintain a meter.  We predict that nearly all wells in Nevada will eventually require metering.

Schroeder Law Offices provides a routine monthly meter reading reminder email as a service to our clients.  If you are a client of ours and wish to receive a monthly meter reading reminder, please request to be added to the “Well Meter Reminder” list by emailing request to counsel@water-law.com.

 
 
 
 
 

[1] Attorney Therese Ure assisted in the drafting of the legal issues discussed in this blog.




New Request for Extension of Time Form Issued by Nevada

On October 13, 2016, the Nevada Division of Water Resources (“NDWR”) provided notice that a new Application for Extension of Time form must be used when requesting an extension of time for the submission of a Proof of Completion of Work, Proof of Beneficial Use or Cultural Map.

It appears that NDWR is placing more emphasis on the section explaining the reason why the extension is being requested. The instructions sheet accompanying the Extension Request now states that the applicant must highlight progress made during the previous year, and must also “submit any proof and evidence that documents reasonable diligence.” Thus it is important to document what you have been doing on your project to prove up on your rights as well as keep records and documents showing your progress (ie – well driller receipt, pump, pipe, or other infrastructure purchase receipts, photographs with infrastructure installation (include the date, time, and place), and log books of you contact with agency personnel if your project involves working with other state or federal agencies).

Please keep this in mind when preparing an Application for Extension of Time. It appears the NDWR is cracking down and no longer “rubber stamping” approval on application requests.  You don’t want a request for an extension of time denied for lack of proof of due diligence! To view the new Application for Extension of Time form, please visit the NDWR’s website at http://water.nv.gov.

 

ndwr-ext_app_page_1




Sage Grouse Project Funding Available in Lander County, Nevada

The Lander County Commission (“LCCD”) is funding a program for sage grouse enhancement projects and is currently looking for land owners that reside in Lander County (not just ranchers) to participate in a sage grouse project. 

LCCD first received funding for the project in 2014 when they were granted $50,000 to begin projects benefitting the sage grouse habitat.  In 2015 and 2016 they were granted another $20,000 per year and are seeking volunteers to participate in projects like riparian enclosures, water development, drift fencing, pinion pine removal, seeding, fire rehabilitation, spring boxes, and troughs to benefit the sage grouse habitat.

Funding Project for Sage Grouse

The deadline to apply for 2016 project completion is October 20th, with the goal of awarding the project in October for it to be completed this year and allow the birds to take advantage of its benefits by spring 2017.  To apply, contact the University of Nevada, Reno’s Lander County Cooperative Extension office at (775) 635-5565, or apply in person at 815 N. Second Street in Battle Mountain, NV. 

While October 20th will remain the deadline for 2016 projects, they will be accepting applications even after the deadline for future project consideration and are open to innovative ideas.




Fallon Nevada Navy Training Complex Expansion & NEPA Process

Hammond Protest

The Department of Defense Plans to Expand the Fallon Nevada Navy Training Complex. Now is the Time to Participate and Comment in the NEPA process!

The Fallon Range Training Complex (FRTC) is planning expansion of its Fallon Nevada facilities and announced in the Federal Register its intent to prepare an environmental impact statement (EIS). The EIS will assess the potential environmental consequences of maintaining and modernizing the FRTC which would include land range expansion through additional land withdrawal and land acquisition, airspace modifications, and public land withdrawal renewal. The proposed action includes withdrawal and reservation for military use of approximately 604,744 acres of additional public land, and acquisition of approximately 65,160 acres of non-federal land to expand existing ranges.

A recent Nevada Farm Bureau newsletter notes concerns for the adverse impacts on farmers and ranchers due to the grazing allotments that would be impacted.
If you would like to participate in this process, there will be a series of open house meetings scheduled to take place.

Date Time Place
Monday, October 3rd 3:00 pm – 7:00 pm Fallon Convention Center
100 Campus Way
Fallon, NV
Tuesday, October 4th 11:00 am – 1:00 pm Pershing County Community Center
820 Sixth Street
Lovelock, NV
Tuesday October 4th 5:00 pm – 7:00 pm Evelyn Mount Northeast Community Center
1301 Valley Road
Reno, NV
Wednesday, October 5th 5:00 pm – 7:00 pm Emma Nevada Town Hall
135 Court Street
Austin, NV
Thursday, October 6th 5:00 pm – 7:00 pm Eureka Elementary School (Multipurpose RM)
431 McCoy Street
Eureka, NV
Friday, October 7th 11:00 am – 1:00 pm Hawthorne Convention Center
950 E. Street
Hawthorne, NV
Friday, October 7th 5:00 pm – 7:00 pm Gabbs School Gymnasium
511 E. Avenue
Gabbs, NV

Along with participation in these meetings, it is imperative that you submit comments with all your concerns over the proposed project to ensure you have legal standing as to the impacts of the proposed action in the future. Comments must be postmarked or received online no later than November 25, 2016. Stay tuned for a blog on the importance of drafting NEPA comments. More information is available at: http://www.FRTCModernization.com




State Bar of Nevada Environmental & Natural Resources Section’s Successful Meet & Greet Mixer

On, Thursday, September 1, 2016, the State Bar of Nevada’s Environmental and Natural Resource Section hosted a successful Meet & Greet mixer event for the section members with invited special guests. The special guests consisted of agency leaders from both state and federal environmental and natural resource agencies.  The special guests in attendance included:

Name Organization – Title
John Ruhs BLM – Nevada State Director
Leo Drozdoff DCNR – Director
Paul Thomsen PUCN – Chairman
Jason King NDWR – State Engineer
Tony Wasley NDOW – Director
Mike Senn U.S. FWS – Sacramento
Greg Lovato NDEP – Deputy Administrator

The casual event included a cocktail hour followed by question and answer period with fun questions designed with the intent to learn about our agency leaders.  This event provided a great opportunity for the section members to get to know the agency leaders of the decision making bodies of their profession.  The mixer was organized and hosted by the Section Co-Chairs Linda Bullen and Therese Ure.

2016-meet-and-greet-mixer-image-6-p0348416xa1b60
2016-meet-and-greet-mixer-image-5-p0348415xa1b60




Next Generation Farmers Need Our Help

forfeiture and cancellation

img_55ad9263ad2be

New studies have shown that a large number of older farmers are concerned with their ability to find a successor who is able to afford to buy their land, thus putting their plans for retirement at risk. Currently, the average age of the American farmer is 58 years old. Only less than 6% of American farmers are 35 years old or younger. With the vast majority of farmers nearing the average American retirement age, it is not surprising that over 60% of farmland is ready to be passed onto the next generation of farmers.

The problem is that the younger generation of farmers is losing the battle of being able to afford the land. According to a recent study by American Farmland Trust (”AFT”), land values are set too high for prospective landowners. This puts the land at risk while the banks, equity firms, and larger corporate farms take advantage of these opportunities to snatch up the land that the younger farmers cannot afford. A recent report by the U.S. Department of Agriculture (“USDA”) has shown that 2 of the biggest hurdles faced by the next generation of farmers are accessing credit for, and finding affordable farmland. Being bought out by larger corporations, or even just the threat of the possibility, along with stress of qualifying for a loan and finding affordable land, has led to a large number of younger farmers leaving the farming industry.

How Can You Help?

So, how do we help? The USDA and the AFT are working on programs to assist beginning farmers and ranchers enter the field and help pay farmers for the development rights to their land. But there are ways we all can help. Some examples include: buying direct, purchasing produce from farmers’ markets, or joining community supported agriculture programs.  For more information, please see http://civileats.com/2016/08/05/digested-farm-together-now/




Participate in Targeted Grazing Discussions

The Bureau of Land Management has scheduled a workshop to explore the ideas of strategic targeted grazing. Targeted grazing is a natural approach using controlled livestock to accomplish vegetation management. More specific examples of vegetation management include: weed control, reducing the fuels of wildland fires, aiding in restoration projects as well as landscape enhancement. One of the primary tasks of the BLM for targeted grazing is to reduce the fine fuels that contribute to the severity of wildland fires. Through this workshop, the BLM hopes to involve all stakeholders through both collaboration and participation. In order to participate in this workshop, you must register.

See the workshop details below:

Date: Thursday, October 6, 2016
Time: 8:00 am – 5:00 pm
Location: Nugget Casino Resort
110 Nugget Avenue
Sparks, NV 89431

For more information on this workshop as well as to register for this workshop, please visit: https://www.surveymonkey.com/r/BLMTGWORKSHOP

 




Forecasting 2017 Water Legislation in Nevada

New laws and legislation may affect you, stay tuned for tomorrow’s work session on topics of adaptive management, domestic use, cloud seeding, basin management, and mine dewatering!

2017 Water Legislation

Nevada’s Legislative Commission’s Subcommittee to Study Water will be holding a meeting on Friday morning, August 26, 2016 at 9:00AM at the Legislative Building, Room 4100, at 401 South Carson Street in Carson City.

Items on the agenda include the “Work Session Document” containing recommendations received by the Legislative Commission’s Subcommittee during the 2015-2016 Legislative Interim. This document is designed to assist the subcommittee members in determining which recommendations will be forwarded to the 2017 session, and what other actions the Subcommittee will endorse.

For those who may not be able to attend the meeting in Carson City, it will also be broadcast live over the internet via http://www.leg.state.nv.us, and can be viewed or listened to by clicking the link for “Calendar of Meetings/View” in the top right-hand corner of the page.

Items in the agenda as well as the Work Session Document and other information pertaining to the meeting can be found on the Nevada Legislature website under the “Meetings” tab. For written copies, please contact the Research Division, Legislative Counsel Bureau at (775) 684-6825.

A PDF link to the agenda including the Work Session Document can be found here.




Rights-of Way on Public Lands and Administrative Avoidance

Rights-of Way on Public Lands and Administrative Avoidance

Century old rights-of-way uses of public lands can only be confirmed through a long, expensive federal court process. Because the Bureau of Land Management (BLM) and U.S. Forest Service (USFS) cannot determine the validity of water delivery and road rights-of-way on public lands, farmers, ranchers, and local governments may face an uphill battle to legally confirm and adjudicate these long-standing uses.

Revised Statutes (RS) 2477 and 2339 were components of the Mining Law of 1866, also called H.R. 365. This Act recognized the activities of settlers and miners occupying the West and encourage development of federal lands.

RS 2477 recognized roads and highways on public lands not already withdrawn from entry. RS 2339 protects the use of water infrastructure used for mining, agriculture, manufacture, and other purposes in place prior to the lands being withdrawn as well. These road and ditch laws honored development protocols and uses based on the local custom and laws at the time of early settlement.

While these laws are no longer in effect with the passage of the Federal Land Policy and Management Act (FLPMA), these self-granting rights-of-ways created while the law was in effect have not disappeared.  FLPMA recognizes existing rights on public lands prior to its passage. See: http://www.blm.gov/ca/dir/pdfs/2003/ib/CAIB2003-023ATT2.pdf

Without a way for agencies to definitively determine RS 2477 and RS 2339 rights-of-way claims, federal courts are currently the only venue to address these issues.  For more information, see: http://nvbar.org/articles/content/rs-2477-public-rights-way-era-administrative-avoidance

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

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.




“Use it or Lose it” Nevada’s Water in Times of Drought

For Nevada's Water in Times of Drought

 

 

The July 2016 Nevada Lawyer Magazine focuses on drought conditions and features Schroeder Law Offices’ Attorney Therese Ure’s article, “Use It or Lose It:” for Nevada’s Water in Times of Drought. The article discusses Nevada Revised Statute 534.090, which has become known as the “Use It or Lose It Doctrine” in reference to water rights and Nevada’s forfeiture law.  As drought conditions fluctuate across the west, and particularly in arid desert states such as Nevada, statutory forfeiture provisions relating to partial forfeiture are in conflict with conservation measures such as planting crops that require less water. Click here to read more about defining the use of water and the forfeiture process in the State of Nevada, an online exclusive for Nevada Lawyer Magazine. A full copy of the July 2016 Nevada Lawyer Magazine can be found online.




101 on Forfeiture vs. Abandonment Under Prior Appropriation Doctrine

Forfeiture

We’ve all heard “Use it or Lose it” referring to the Prior Appropriation System.  The use it or lose it concept is the term we use for legal forfeiture which will apply to your water rights of use depending on your jurisdiction and type of water right.  Generally, this concept requires beneficial use of water appropriated under state law over a specific time interval.  In some states (like Nevada and Oregon), “use it or lose” is statutorily controlled, the law describes when a water user must exercise their water right of use.  In Oregon both groundwater and surface water certificates require water use once for every five consecutive year time frame. ORS 540.610. In Nevada, the statute provides that only groundwater certificated uses are subject to forfeiture for non-use if not used at least once every five years.  NRS 534.090. Thus, if you last used your certificated water right of use in 2011, you best put whatever water is available for appropriation under your certificate in place for 2016!  Make sure to use it so you are not at risk of losing it!

Abandonment

Use it or lose it as defined by the water code should not be confused with abandonment, a court made doctrine that may be more broadly applied.  Abandonment will cause cancellation of a water use by intention not to use.  Intention can be established by expression as in a written document or by a physical act.  The physical act of abandonment can include placing a permanent structure over or on top of water righted lands.  If you plan to build the next industrial sized plant, packing shed, scale house, onion storage, fill in your ditch, or take out your diversion structures, etc., you should file that water use transfer or change application prior to any construction!

While this gives you the very “basic” overview of these two legal concepts, Schroeder Law Offices can provide a more detailed explanation




The End of the Prior Appropriation Doctrine?

dry groundThe debate continues on the prior appropriation system. During the 2016 Family Farm Alliance Annual Conference, the Alliance’s 2015 report on the prior appropriation doctrine raised some debate. This debate, now focusing on Nevada’s prior appropriation system, was again raised in equal vigor during the 2016 Nevada Water Resources Association annual conference. While many argue the system fundamentally works, some commenters took the stance that the prior appropriation doctrine was flawed and should be reconsidered.

One alternative suggestion presented during these discussions was to adopt the Australian Model which changes a water right to a water share, and strives to entitle these water license holders to a specific share in the available water and to take water at specific times, rates or extraction points. However a true understanding of prior appropriation provides for water use under these circumstances, with the main difference being, in a short water year, the difference class of shareholders receive different allocations. So instead of a month, day and year priority to govern who receives their water first, the Australian Model groups all users into classes of shares with perhaps 3-5 classes all together depending on the stream system. What we did not hear about was how the Australian system handles conjunctive management calls within these class-share systems.

We suspect this debate will continue throughout the western United States as climate change and the drought continue.

Co-authored by Therese A. Ure




Nevada Public Land Grazing Workshop on Sage Grouse Plan Implementation

The Nevada Cattlemen’s Association posted a news release on May 16, 2016 regarding the Permittee Outreach Workshop. This workshop is geared towards Nevada Cattlemen and Cattlewomen who graze cattle on BLM permits.

With the listing of the Sage Grouse as “Not warranted” now more than ever it is imperative to establish with state and Federal Agencies that proper grazing has and can have a positive influence on the Sage Grouse Habitat. The Nevada Cattlemen’s Association in conjunction with Nevada Bureau of Land Management and the Nevada Department of Agriculture will be putting on a series of workshops around the state to have information sharing and discussion about how the Greater Sage Grouse Land Use Plan Amendment, and implementation of Table 2.2 will apply to permittees.

The series of workshops will take place as follows:

Ely, Nevada
June 6, 2016: 5:30 p.m.
Mt. Wheeler Power Board Meeting Room
1600 Great Basin Boulevard
Ely, NV 89315
Winnemucca, Nevada
June 9, 2016: 2:00 p.m.
USDA NRCS Service Center
3275 Fountain Way
Winnemucca, NV 89445
Elko, Nevada
June 7, 2016: 2:00 p.m.
Great Basin College
Room: GTA 130
1500 College Parkway
Elko, NV 89801
Fallon, Nevada
June 10, 2016: 2:00 p.m.
Churchill County Cooperative
Extension Office
111 Sheckler Road
Fallon, NV 89406
Battle Mountain, Nevada
June 8, 2016: 2:00 p.m.
Battle Mountain Civic Center
625 S. Broad Street
Battle Mountain, NV 89820
 

For more information on these workshops, please contact Kaley Sproul,
Nevada Cattlemen’s Executive Director.
Email:
nca@nevadabeef.org
Office: 775.738.9214