On December 22, 2015, the United States Environmental Protection Agency (“EPA”) announced funding of more than $19 Million for drinking water and wastewater infrastructure projects in Nevada. The program funds fall under Nevada’s Clean Water State Revolving Fund, and provides money for state projects that promote clean water through wastewater treatment projects and improvements to drinking water infrastructure in the State. The EPA’s Regional Administrator stated that “This substantial investment at the federal level helps communities develop the infrastructure needed for clean, safe drinking water and proper wastewater treatment. EPA is committed to protecting the water resources so important public health and Nevada’s economy.”

Funds supplied under the EPA program will go to provide financing for state projects such as upgrading septic systems to sewer, and renovations to wastewater treatment facilities to increase efficiency, as well as support projects for better and more efficient access to clean drinking water, such as water storage and water system upgrades. The funds this year will combine with over $200 Million in federal funding previously provided to Nevada’s Clean Water and Drinking Water State Revolving Fund since the project began. While the EPA’s influence can at times be controversial, federal funding is important to State projects, where both municipal and agriculture interests can often benefit from the funds supplied for needed water projects.

More information on the topic can be found at the EPA Web Site.

Nevada’s Special Session opened December 16, 2015 with Senate Bill 1 , an act that will issue transferable tax credits and tax breaks to certain projects authorized by the government.  Section 64 of this bill relates to water use.  It is proposing to streamline the water use permitting processes in order to encourage economic development.  The Bill as it is currently proposed, may side step certain evaluations and studies the Nevada State Engineer takes into account when reviewing change applications involving transfers of water uses between basins.  In addition, the proposed Bill will limit the parties who can protest these water uses in the change application process.  This may be concerning a s a fundamental concept of western water use is protecting against conflicts, injury, and other impacts between users.  Will this Bill continue to protect these rights? 

Published by Therese A. Ure and Lisa Gage

On October 16, 2015, the office of the State Engineer of the State of Nevada issued an Order of Adjudication for the public waters of Northern Nevada’s Diamond Valley. The past years’ drought has made vested water rights and claims in Eureka County an ongoing and important legal issue. Water rights’ holders will need strict proof of beneficial use, as will any future applicant. The order provides Nevada landowners six months to respond.

As such, State Engineer Jason King will commence (resume) taking Proofs of Appropriation in the Matter of Determination of the Relative Rights In and To All Waters, Both Surface and Underground, located within Diamond Valley, Eureka and Elko Counties, Nevada, on November 30th. Order No. 1266 states, “All claimants to waters of said Diamond Valley must file their Proofs of Appropriation in the Office of the State Engineer on or before the 31st day of May, 2016 as provided for under NRS 533.110.”

These Proofs of Appropriation relate to water uses that began prior to the development of Nevada’s surface and ground water codes. All subsequent uses go through an application and permitting process with the Nevada Division of Water Resources. If you think you can prove a historical water right of use dating back prior to the water codes, now is the time for further research.

Schroeder Law Offices has assisted many clients in research guidance and assistance in gathering support for vested claim water rights filings. Some of the types of proofs often used to support vested water rights claims in an adjudication are outlined in an article entitled “How to Research Land & Water for Proof of Vested Nevada Water Right Claims,” by Katie Delong and Sarah R. Liljefelt, Therese A. Ure of Schroeder Law Offices.

El Niño is gracing the West Coast of the United States and water watchers are enjoying relief from the past few years of drought, but the catch-up game may take longer than hopefuls could dream. Reports from the U.S. Climate Prediction Center indicate that wetter weather is forecast for the West Coast through at least November 24th, but may only be enough to recover part of the damage caused by drought. Not only would water storage reservoirs need to be restored to normal, levels of both surface and groundwater would also need to at least approach normalcy for El Niño to solve the West’s water scarcity issues.

Organizations such as the Agricultural Conservation Easement Program are seeking to aid with scarcity issues, whether El Niño proves itself as a force this winter or not. On November 16, 2015, U.S. Department of Agriculture Secretary Tom Vilsack announced the availability of $350 million funded through the ACEP to benefit the restoration and protection of working agricultural lands and wetlands. The funding was created by the 2014 Farm Bill to protect critical water resources and wildlife habitats, but is also extended to landowners to help protect and restore key farmlands, grasslands and wetlands across the nation. According to a news release by the USDA’s Natural Resources Conservation Service, private landowners can use programs like the ACEP to maintain land for farming and ranching purposes. Voluntary easement sales can help landowners engage in the conservation efforts by limiting future development to protect key resources such as water.

The news of ACEP’s funding comes down right alongside a Presidential Memorandum written in early November. The memorandum is addressed to secretaries such as USDA’s Vilsack and specifically directs such programs to, “Avoid and then minimize the harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water- disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities.” (Western Livestock Journal)

While El Niño may bring hope to the West Coast, efforts from the USDA and ACEP will be needed to aid the long-term protection of farmland, grassland and wetland in the US, as well as the restoration and consistency of water quality and levels.

This week, the Duncan Family contributed to feeding the world by gathering their annual calf crop and sending them to others who would raise them for market.  Raising stock, “ranching,” is an age old way of life a culture that is passed down through generations.  The four generations in the Duncan Family presented in these photographs, illustrate that living off the land and turning forage from lands unsuitable for vegetable crops and grown into beef still persists.  Since approximately 1968, rancher and cattle buyer, Dave Stix has purchased the Duncan calf crop.  Through generations, Schroeder Law Offices purposefully supports these ranching families in developing and maintaining their water and forage use needs to support their heritage and way of life.

Photo Credit: Joan Duncan

Pictured: Maxine Duncan, Dan Duncan, AJ Duncan, Kelli Duncan Edmonds (and children), Rusty Kiel, John Aufdermaur, Dave Stix

On June 29, 2015 the Environmental Protection Agency (“EPA”) published a new rule under the Clean Water Act, re-defining “Waters of the United States,” and sought to expand federal jurisdiction over certain water sources. The new rule was set to go into effect on August 28, 2015. Due to the implications and potential effect the rule may have on private and public interests, numerous lawsuits were filed challenging the regulation. Primarily, a lawsuit was filed in the Federal District Court of North Dakota, wherein thirteen states joined the lawsuit seeking to enjoin the rule’s implementation. On August 27, 2015, the North Dakota District Court issued an order granting the request for a preliminary injunction.

The thirteen states involved in the lawsuit include Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The EPA released a statement stating that “[u]nder the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.” Therefore, until the Court rules on the issue, the EPA considers the injunction a bar to implementation of rule in Nevada, and the other thirteen states involved in the case.

For Nevada Governor Brian Sandoval’s response, please visit http://gov.nv.gov/News-and-Media/Press/2015/Sandoval-Encouraged-by-District-Court-Granting-Nevada_s-Request-for-Injunction/.

On August 27, 2015, the USDA unveiled a new plan to help conserve sage grouse habitat, and which many hope will keep the greater sage grouse from being listed under the Endangered Species Act. Agriculture Secretary Tom Vislack announced a four-year plan that will invest $211 Million in conservation funds to help build and preserve sage grouse habitat.

Vislack stated in the press release: “The Sage Grouse Initiative has proven itself as a model for how wildlife and agriculture can coexist and thrive in harmony, and that is why we are announcing steps today that will expand this important initiative throughout the life of the 2014 Farm Bill. I applaud America’s ranchers for their initiative in improving habitats and outcomes for sage grouse and other wildlife, and for their recognition that these efforts are also good for cattle, good for ranching operations, and good for America’s rural economy.”

Earlier this year, the bi-state sage grouse (related to the greater sage grouse) was determined to not require listing under the Endangered Species Act, due in large part to conservation efforts. With further conservation and a collaborative approach, those working in both wildlife and in agriculture can work to keep the  greater sage grouse off the listing as well, and avoid the damaging result such a listing would have on the farming and ranching community.

For the full press release, please visit http://www.usda.gov/wps/portal/usda/usdahome?contentid=2015/08/0238.xml&contentidonly=true.

During the 2015 Nevada Legislative Session, Assembly Bill 435 passed by the Legislature.  On May 27, 2015, AB 435 was signed into law by Governor Sandoval. This bill adds a new Judicial District to Nevada, and reorganizes the counties which make up certain Judicial Districts. The Sixth Judicial District Court, currently encompassing Pershing, Humboldt, and Lander Counties, will now only encompass Humboldt County. Lander and Pershing Counties, along with Mineral County (being pulled away from the Fifth Judicial District) will become the new Eleventh Judicial District. Judge Shirley, currently the Department 1 Judge in the Sixth Judicial District, will preside over the Eleventh Judicial District, and Judge Montero, currently the Department 2 Judge in the Sixth Judicial District Court, will preside over the Sixth Judicial District.

While the reorganization of the Judicial Districts will not make a difference to many, it does call into question which Court will preside over the Humboldt River Decree. The Humboldt River Decree is governed by Department 1 of the Sixth Judicial District Court of Humboldt County, currently Judge Shirley. Due to the shift in districts, this left an unknown as to whether the Decree jurisdiction would remain with Judge Shirley, or be moved over to Judge Montero. Assembly Bill 435 was updated to specifically address this issue. The new law provides that cases falling under the jurisdiction of the Humboldt River Decree Court will alternate between the Sixth and Eleventh Judicial Districts, and between Judge Shirley and Judge Montero. This greatly changes the dynamic of how Decree cases will now be handled.

The new law does not provide how alternating case assignment will be carried out, nor does it state how it is determined which cases are “arising from or relating to the administration of the Humboldt River Decree.” In the meantime,  we know that the Humboldt River Decree Court will shift once this new law goes into effect on July 1, 2015. If you’d like to read the new law as enacted, it can be found at https://www.leg.state.nv.us/Session/78th2015/Bills/AB/AB435_EN.pdf.

The April issue of Nevada Lawyer Magazine focuses on Agriculture Law. Matthew Curti, along with attorney Linda Bullen, authored an article about the importance of submitting comments to Environmental Protection Agency (EPA) rulemaking, as well as National Environmental Policy Act (NEPA) draft Environmental Impact Statements (EIS). The article provides an overview of the commenting process, and also provides tips for writing effective comments.

For the full article, visit http://nvbar.org/articles/sites/default/files/NevLawyer_April_2015_AG_Client.pdf

On February 3, 2015, the Nevada State Engineer issued Order 1250 curtailing 50% of all supplemental groundwater pumping for irrigation in both Mason and Smith Valleys. This action by the Nevada State Engineer was the first time curtailment of this magnitude has taken place in Nevada. Order 1250 determined supplemental groundwater use for irrigation to be a non-preferred use of water. Accordingly, the State Engineer proceeded to “tag” all supplemental irrigation wells identifying those subject to curtailment.

On March 4, 2015, a group of local water users (“Farmers Against Curtailment Order, LLC”) filed a Petition for Judicial Review challenging the State Engineer’s Order.  On March 9^th, the group moved for a preliminary injunction seeking to stop the Order from going into effect. District Court Judge Leon Aberasturi, after hearing argument on the injunction, granted the temporary injunction upon a finding that irreparable harm will occur to the farmers in Mason and Smith Valleys if the curtailment took place as written. The Judge stated that he intends to move this case along to its final ruling as quickly as possible.

For more information on this issue, please visit http://www.rgj.com/story/news/local/mason-valley/2015/04/03/judge-grants-injunction-curtailment/25243335/.

Grazing and water use go hand in hand. This year Nevada continues to experience drought conditions causing ranchers and farmers to make adjustments, whether by their own choosing, or by the hand of the government.

On July 23, 2014, Nevada’s Battle Mountain District BLM held a meeting with the Permittees of the Argenta Grazing Allotment. The Permittees were notified that they must remove their cattle from their summer grazing country on the mountain down to the flat because “Triggers” had been met on a couple of riparian sites. There is some concern with the Permittees who feel there is still plenty of feed and water on the mountain and very little of both on the flat. Permittees have also expressed frustration with the time and cost of moving the cattle, hauling in water and the possibility of being forced to bring in the cattle and begin feeding hay much earlier than typical.

The Range Tour is intended to show the public the riparian areas that are the cause of the summer range close down. The tour will also depict a suggested solution by Permittees to fence and protect the sensitive areas to allow for continued grazing in the summer country.

The Tour will start at the Martin Ranch at 9:00 am and will continue through the entire allotment, ending at the Grass Camp for a BBQ. It is suggested that tour attendees bring snacks, plenty of water, and camp chairs for the BBQ. Any and all donations will benefit the Cowboy Express Ride from sea to shining sea in October. Everyone is welcome!

For more information call (775) 635-5610 or visit “Support Nevada’s Ranchers” on Faceboook at https://www.facebook.com/pages/Support-Nevadas-Ranchers/832072560151420.

Directions to the Ranch: Take the middle Battle Mountain, Nevada exit off Interstate 80 that connects to Highway 305, the Austin Highway. Turn South and take the first left beyond the freeway overpass. Follow signs for about 8 miles to the Tomera Ranch.

The following annoucenment was issued by the Bureau of Reclamation on January 4, 2012:

The Bureau of Reclamation has reissued for public comment four draft Reclamation Manual releases regarding water-related contracting activities. These draft releases provide definitions of key terms and revise existing definitions for water-related contracts, restructure and clarify Reclamation’s water transfer and conversion policy and consolidate and set-out basic pricing requirements for water-related contracts. Comments are due to Reclamation by April 3.

The four draft releases are:

• Draft RM Policy Water-Related Contract and Repayment General Principles and Requirements (PEC P05).
• Draft RM D&S Water Rates and Pricing (PEC 05-01).
• Draft RM Policy Transfers and Conversions of Project Water (PEC 09).
• Draft RM D&S Conversions of Project Water from Irrigation Use to Municipal and Industrial Use (PEC 09-01)

These releases have been updated to reflect comments received during the first comment period from September 29 to November 30. The changes are highlighted with redline-strikeout throughout the documents.

The Reclamation Manual establishes Reclamation requirements, assigns program responsibility and establishes and documents Reclamation methods of doing business.

These draft updates are available for detailed review at: www.usbr.gov/recman. A summary of the draft updates can be found at: http://on.doi.gov/rMciUA. Comments or questions may be directed to Owen Walker at owalker@usbr.gov.

On December 16, 2010, the Nevada Supreme Court issued a per curiam opinion, Pyramid Lake Paiute Tribe of Indians v. Ricci, affirming the district court’s order denying judicial review of the State Engineer’s decision to grant Nevada Land and Resource Company, LLC’s (NLRC) change application for water rights in Washoe County’s Dodge Flat Hydrologic Basin.

NLRC originally obtained permits to appropriate Dodge Flat groundwater for temporary use in a mining and milling project in 1980. Twenty years later, NLRC applied to change the use from temporary to permanent and from mining and milling to industrial power purposes.

The Pyramid Lake Paiute Tribe of Indians (“the Tribe”) opposed the change application on the grounds that (1) Dodge Flat has no unappropriated groundwater, (2) groundwater pumping would interfere with existing rights to Truckee River surface water based on the hydrological connection between the Truckee River and Dodge Flat Basin, and (3) pumping from Dodge Flat Basin threatens to prove detrimental to the public interest by reducing Truckee River water quality and threatening the cui-ui fish and Lahontan cutthroat trout habitats.

On appeal, the Nevada Supreme Court found that there was substantial evidence to support the State Engineer’s conclusions that (1) there is 1,428 afa of unappropriated water available for permanent use in Dodge Flat Basin, (2) the change applications will not affect existing water rights, and (3) that the change application does not threaten to prove detrimental to the public interest.

Specifically, the Court found that the State Engineer properly excluded the Tribe’s use of groundwater in Dodge Flat Basin from the calculation of perennial yield because the Tribe has no express or implied rights to the water. Furthermore, the Court found that the change application does not threaten to prove detrimental to the public interest because NLRC’s pumping will be limited to the amount of the unappropriated perennial yield. Finally, the Court held that any potential threat to the public interest or injury to existing rights is a consequence of the Tribe’s unauthorized pumping without a permit or implied right.

A full copy of the opinion is available at:  http://www.nevadajudiciary.us/index.php/advancedopinions/909-pyramid-lake-paiute-tribe-v-state-engr.

Schroeder Law Attorneys Schroeder and Ure as members of the executive committee for the Nevada Environmental and Natural Resources Section as well as Schroeder Law Administrator Scott Borison assisted in planning and participated in the First Lifetime Achievement Award ceremony and reception for former Director of Conservation and Natural Resources Allen Biaggi on May 4, 2010. The reception was hosted by the Lionel Sawyer & Collins Reno office where Mr.. Biaggi, who retired on April 30, 2010, was recognized for more than 30 years of state service.

The Director of the Nevada Department of Conservation and Natural Resources recently announced the appointment of Acting State Engineer Jason King to the position of State Engineer.  Mr. King has spent more than 19 years with the Division of Water Resources.  A press release from the Nevada Department of Conservation and Natural Resources on this appointment is available here.

On January 28, 2010, the Nevada Supreme Court issued its opinion in the matter of Great Basin Water Network, et al. v. State Engineer and Southern Nevada Water Authority, wherein the Court determined that the State Engineer had violated the statutory duty under NRS § 533.370(2), which requires that the State Engineer approve or reject any application made prior to the 2003 legislative amendments within 1 year after the final date for filing a protest. Subsequently, the Nevada Legislature issued a Motion to Express Legislative Intent during a Special Session indicating that the resolution of the issues raised in Great Basin Water Network is of critical importance.

On March 16, 2010 the State Engineer held a workshop to consider possible amendments to Nevada water law to address the issues raised in Great Basin Water Network including (1) the protection of existing water rights, (2) the status of pending applications, (3) the preservation of priorities, and (4) the application of the protest period provisions. The State Engineer has posted written comments filed during the workshop along with suggested language to address the issues raised on the workshop webpage.

The State Engineer will accept proposed amendments that address the issues raised in Great Basin Water Network until Friday, March 26, 2010. Any proposed amendments will be posted on the workshop webpage, and comments to the proposed amendments will be accepted until Friday, April 2, 2010.

For more information, including links to the Supreme Court decision and the Legislature’s motion, visit the workshop webpage.

Do you keep your deeds in the safe? A secure file?  If so, you surely know what water uses you are entitled to and have these records kept safe and secure reviewing them annually?

If not, you’re lucky that the state has records on the water uses related to your property.  However, it’s unlikely these records have not been reviewed in the recent past.  It is also probable that there are lurking “time bombs” in your water use records.  Such “time bombs” include:  (1) Permits or Transfer orders that need extensions; (2)  Permit Conditions that have not been met; (3) Final Proofs past due; (4)  Certificates yet to be issued.

For a fixed fee of $375 and a copy of your property deeds, Schroeder Law Offices, PC, will make a public records request to the proper agency, make a complete copy of your water rights providing you with either a paper or electronic copy or both, as well as one hour of free consultation to provide you an overview on the phone and a summary in writing of issues spotted in your water right files needing attention.

Email Ms Daryl Cole (d.cole@water-law.com) now to begin the process—and start the New Year out right knowing that your water rights are secure!

Federal Judge Robert C. Jones called Schroeder Law Offices attorney Laura Schroeder and others to court today to end 29 years of litigation related to over 200 transfer applications filed by various farmers in the Newlands Project, Nevada.  These transfers were tied up for years by the Pyramid Lake Indian Tribe appeals to Nevada State Engineer rulings on the issues of lack of perfection, forfeiture and abandonment.

Decisions on these transfers were complicated by two factors:

1. The United States issued individual contracts for the storage water in the Newlands Project rather than through an irrigation district (now the Truckee-Carson Irrigation District); and
2. The Orr Ditch Decree and Alpine Decree issued water rights to the Newlands Project farmers in a lump acres allocation rather than describing the allowed decreed water rights for irrigation to particularly described acres.

Today’s final order from the bench at last closed the matter.  Ultimately, a few farmers gained approved water right transfers, many farmers lost water righted acres, and some farmers simply withdrew as the transfer process became too costly over the many years.  A confirming written order will follow shortly.

Completing a teaching tour through Central Nevada, it will come as no surprise that the number one issue in the minds of participants are the duties of the Southern Nevada Water Authority to counties from which it intends to export water.  Emphasis was placed on the need for affected counties to be involved in the transfer and exporting process as provided by Nevada water law.

At Schroeder Law Offices, P.C., we routinely work with our clients to develop efficient water use and management systems. Upon reviewing the competition offered below, we thought of you! Thus, if you are an innovative and efficient water user, or perhaps want to share your ideas with others then you might check out this competition!

Imagine H2O is running its inaugural competition this fall on “Water Efficiency.” Kick-off is September 1st. Competitors will provide solutions that reduce the demand or use of water in either agriculture, commercial and industrial, or residential applications. This could be done via demand response, recycling, reuse, or through any other smart management ideas. Total prizes given in 2009-10 will be $50,000. Winners will receive cash, in-depth business incubation including introductions to financiers, potential beta customers and go-to-market partners, and reduced-rate or free office space.

Imagine H2O is a not-for-profit company based in San Francisco, turning water problems into entrepreneurial opportunities. For more information on the Water Efficiency Competition, you can check out their website at www.imagineh2o.org

Good Luck in the Competition! Be sure to let us know how it goes.