One can’t help but notice the increasing amount of wind-generation farms that are being installed throughout Oregon, Washington and the U.S.  At first glance, wind energy seems like a great idea with many people looking to jump on the bandwagon.  It provides clean renewable energy and helps stabilize energy costs and our nation’s dependence on foreign fuel sources.  However, it is not as simple as it may seem and careful feasibility and due diligence analysis must be made to determine if wind energy is right for you and your land.

There are three categories of systems that are available:

1.  Small Scale – for your own residential or commercial (office or farm) facility. These are small wind generation towers. These help to offset the individual owner’s utility costs.
Some of these systems allow the owner to be hooked up to the power grid, wherein any extra power the owner currently generates is fed directly to the grid.  Later when the owner needs power, they can take back from the grid at no-cost and use the credit on the power they previously supplied to the grid. This system is known as net metering. The owners power meter will actually track in both positive and negative directions.  Of course the owner doesn’t have to be connected to the grid and thus their power generation would be used at that moment in time unless additional equipment, like batteries, are installed to capture that generation – the stand alone system.
These smaller systems cost anywhere from $10,000 to $80,000 installed. They generally produce around 10 kilowatts (kW) to 25 kW in generating capacity, and can be up and running in about a year.

2.Community Program – group of landowners come together to install mid-sized wind generation towers and the power created is spread amongst the group.

3.  Large Scale and Utility Scale – wind farms that generate power to sell to distributors like PGE, Pacific Power, and Idaho Power for a profit.  These are the systems that usually produce 10 megawatts (“MW”) or more.  The cost is anywhere from $800,000 to $1,200,000 per turbine, in a multiple turbine system, and can be up and running in about five years, from first idea to completed construction.

Leasing the wind rights on your land to a developer is a viable option if you are not interested in going through the development process, and can provide you as the landowner with $3,000 to $4,000 per year for one 1.4 MW turbine, using .5 acre footprint that is spread over 50-75 acres of land.  Of course profit will be based on the amount of wind produced by that turbine, thus you want to make sure you have “windy land.”

The level of due diligence required to determine cost/benefits and feasibility will change depending on which system you are interested in.  The key things to remember and look at when assessing any of these systems are: goals including leasing versus developing, wind resources, amount of available land, energy needs or interconnection to the power grid, permitting through local and state governments, capital contributions available and amount of risk you are willing to assume, government grants and incentives and tax incentives and consequences.  There are different ways to structure these projects to make it worth the investment and minimize risks, but like property, each project is unique.  It is important to spend the time and money up-front in researching the opportunities and feasibility of any new business opportunity.

While the costs may ward off many potential developer candidates in prime site locations, there are several grants available for all systems including financing for the feasibility study.  There are also several different incentive programs available for project costs, taxes and production.  The range of these programs is great and should be considered specific to the proposed system.   With these grants and incentives, it can turn an $80,000 project into $10,000 project with a positive return on investment.  Thus with careful time and consideration spent up front, a landowner or company could turn this clean renewable energy resource into a profitable venture.

TCID’s Policy Committee will meet on Monday, September 8, 2008 at the TCID office (2666 Harrigan Road, Fallon NV) to review their policy and  decide on a  “Possible Increase in ‘In Lieu’ Charges for the Retiring of Water Rights.” Your attendance is encouraged.
The In Lieu charges are those one-time payments that TCID Policy provides it should receive when a land owner retires his water rights through AB380 program, through individual settlement of the Tribe’s Petition acres, or through any other retirement.  For example, if a person entered into an individual settlement of his water rights wherein a portion of his water rights were retired (meaning the  water rights are no longer available for diversion from the source by TCID to the landowner), that individual is required to pay TCID.

TCID’s policy states  that “in lieu” payments help them offset “the proportionate share of tolls, charges, fees, assessments, and tax levies that such water rights would have paid in the future.” (See TCID Management Policies dated September 7, 2000). The “in lieu” payment policy was created out of the AB 380 program wherein TCID would receive the “in lieu” payment from federal funds upon the successful retirement of water rights challenged by the Tribe through the AB380 program.  There is no more money in the AB 380 program.

TCID also remains whole on the backs of its patrons.  Despite the fact that TCID patrons paid TCID assessments for challenged acres while not receiving a water allocation, TCID patrons now retiring these same non-allocated water rights are required to pay the “in lieu” fee to TCID.  Pursuant to TCID policy, TCID patrons are to pay  $1200 per water righted acre that is retired in order for TCID to remove the retired acres from the assessment roles.

While there is little question that TCID has authority to charge an Operation and Maintenance (O&M) fee for each assessed acres to which TCID provides water delivery services through an allocation, the question is whether TCID has authority to charge O&M for water righted acres to which it does not deliver an allocation?  In addition, there is a question as to the authority of OCAP and TCID acting under OCAP to deny water allocations since this effectively cancels the water rights?  Cancellation is a function of state law and requires that the landowner be afforded due process before the loss of his property interest.

TCID’s role is to deliver water to water right holders in the Newlands Project.  TCID is governed by the Alpine and Orr Ditch Decrees as well as the Bureau of Reclamation under OCAP or the Operating Criteria and Procedures for the Newlands Reclamation Project, Nevada (found at 43 C.F.R. 418 et seq).  No where in OCAP or the Decrees does it say that TCID is the owner of the water rights, or that TCID can charge  landowners when it does not delivery water to existing water righted acreage.  In fact, OCAP at Sec. 418.26 states that TCID should give consideration to adopting a financing and accounting system that provides reasonable financial incentives for the economical and efficient use of water.

While it may be appropriate to “charge” a fee to remove water righted acres from the assessment roles, patrons retiring water rights that have not received an allocation under these “retired” water rights for years are owed some consideration for their many years of payments to TCID.  TCID should not be allowed to effectively condemn landowner water rights by making OCAP non-allocation orders, take money from the landowners for delivery when TCID has no intention to provide water delivery, and charge the landowner again to remove non-allocated/cancelled water rights from the assessment roles when the landowner retires them.

At the end of last year, the Nevada Division of Water Resources issued a bulletin to water right professionals notifying them that the Division will be refocusing its review of applications for extension of time for proof of completion of works or extensions of time for proof of beneficial use.  NRS 533.380(3) precludes the State Engineer from granting an extension unless the applicant provided proof that he is proceeding in good faith and with reasonable diligence to perfect the application. Reasonable diligence was defined by statute as “the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all facts and circumstances.”

Unfortunately, the Division has not promulgated regulations that would clarify the type of activities that are sufficient to warranting the granting of an extension.  The application form instruction sheet does provide some examples, however, of what types of activities can be highlighted as indicative of progress made during the previous year, including descriptions of any facility or feature completed, identification of project reports or engineering drawings submitted for review or recorded pursuant to applicable law, and explanation of conditions that adversely effected the applicant’s ability to establish beneficial use.  Other suggestions are viewable on the Division’s website at http://water.nv.gov/Forms/formroom.cfm, on the instruction page of the form entitled NEW Extension of Time.

The Division ended its commentary suggesting that water right professionals should advise their clients that cancellation of their water use permits will result if they are unable to meet the statutory requirements for approval of an extension.

By Lynn Steyaert 

At the end of last year, the Nevada Division of Water Resources issued a bulletin to water right professionals notifying them that the Division will be refocusing its review of applications for extension of time for proof of completion of works or extensions of time for proof of beneficial use.  NRS 533.380(3) precludes the State Engineer from granting an extension unless the applicant has provided proof that he is proceeding in good faith and with reasonable diligence to perfect the application. Reasonable diligence has been defined by statute as “the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all facts and circumstances.” 

Unfortunately, the Division has not promulgated regulations that would clarify the type of activities that are sufficient to warranting the granting of an extension.  The application form instruction sheet does provide some examples, however, of what types of activities can be highlighted as indicative of progress having been made during the previous year, including descriptions of any facility or feature completed, identification of project reports or engineering drawings submitted for review or recorded pursuant to applicable law, and explanation of conditions that adversely effected the applicant’s ability to establish beneficial use.  Other suggestions are viewable on the Division’s website at http://water.nv.gov/Forms/formroom.cfm, on the instruction page of the form entitled NEW Extension of Time.

The Division ended its commentary suggesting that water right professionals should advise their clients that cancellation of their water use permits will result if they are unable to meet the statutory requirements for approval of an extension. 

By Dominic Corollo

The House Subcommittee on Water and Power held a hearing adressing concerns over the impacts of invasive quagga mussels on Tuesday, June 24, 2008.

The hearing, entitled “The Silent Invasion: Finding Solutions to Minimize the Impacts of Invasive Quagga Mussels on Water Rates, Water Infrastructure and the Environment,” particularly focused on the threat the quagga mussels pose to water and power systems in the west.

The quaaga mussel is related the better-known zebra mussel.  Both species are thought to have been introduced to North America around 1988 from ballast water in ships from Eastern Europe entering the Great Lakes.  Since their introduction, both mussels have proliferated in the northern regions of the Midwest and have been documented in several western states, including California and Nevada.  Most scientists believe that quaggas have spread to new water bodies from the hulls of recreational boats.  In the right humidity and temperature range, the mussels can live up to a month out of water.

The quagga is a both a prolific feeder and breeder.  They rapidly filter algae out of the water, thereby altering the food chain and severely impacting ecosystems.  In addition to thriving off the nutrients in the water, the mussels rapidly reproduce and attach to both soft and hard surfaces, causing significant economic impact by clogging water intake structures, interfering with flows, decreasing pumping capacities, and impairing water quality.  At the hearing, aquatic specialist Dr. Charles O’Neill of Cornell University reported to the Committee that the impact of the quagga mussel has been felt across 23 states to the magnitude of $1 billion and $1.5 billion.  Dr. O’Neill explained that roughly one-half of the financial burden has been borne by the electric power generation industry, while the drinking water industry has paid out nearly one-third of the total cost. 

Researchers are still trying to develop effective methods for controlling the quagga mussel where it has already been established.  Thus, many states have implemented programs designed to increase public awareness and slow the spread of the mussel into new bodies of water.  In 2002, Oregon established the Invasive Species Council to address issues relating invasive species and the Oregon State Marine Board has a Clean Marina Program that encourages boaters to thoroughly clean their boats to prevent the transfer of invasive species between water bodies.  Fortunately, Oregon has yet to document the quagga anywhere in the state, but the mussel has already found its way into certain waters in California and Nevada. 

The quagga was first documented in the west in January 2007 when it was discovered in Lake Mead.  Since that time, the mussel has been recorded throughout the Lower Colorado system, including into California.  The Statesman Journal reports that the Southern California Metropolitan Water Authority spent $6 million last spring cleaning freshwater aqueducts of quagga mussels.

While western states are beginning to ramp up efforts to slow the mussel’s proliferation, the Committee hearing highlights just how large of a problem the mussels are causing.  Many people realize the destructive environmental effects of invasive species, but the effects the mussels are having on water systems are bringing this issue to the national level.

For people interested in learning more about invasive species, visit Oregon Invasive Species Council’s website at:   http://www.oregon.gov/OISC/ .   The Oregon Invasive Species Summit is scheduled for July 22, 2008.  To see a short video feature about the quagga mussel see the Oregon Public Broadcasting website link at: http://www.opb.org/programs/ofg/videos/view/11-Quagga-Mussles For a special report about the quagga mussel by the Statesman Journal see: http://www.statesmanjournal.com/apps/pbcs.dll/article?AID=/20080210/INVASIVE06/802100309/1034 For information regarding Oregon’s Clean Marina Program, see: http://www.boatoregon.com/OSMB/Clean/ANS.shtml

The Federal Court made its decision on the jurisdictional question by sending the case back to Lyon County District Court last week. See http://www.kesq.com/Global/story.asp?S=8229832 for more information.

Interestingly, many farmers have still not received water that is due to them as insufficient flows continue in the Truckee-Carson Canal. Crops are being stressed and damaged.

Many meetings are taking place in Fernely and Fallon with the Bureau of Reclamation to help resolve these issues. Obviously, if enough water is not diverted from the Truckee River over to the Carson River via the Canal, the amount of water allocated to Fallon side water users in the project, as well as those in Fernley will diminish. With the “water year” already at 90% of the allocation, there may not be enough water to fulfill the allocation if Truckee water is not available.

We encourage your attendance to voice your concerns at these meetings! The next meeting is scheduled for Thursday, May 1, 2008, from 6:00 – 9:00 PM at the Lahontan Elementary School, Multi-Purpose Room,1099 Merton Drive, Fallon.

In the aftermath of the January 2008 flood after the Truckee-Carson Canal break, many lawsuits have been filed.  These suits have been filed in both state and federal courts in Nevada and present many questions as to which Court holds jurisdiction to hear these issues.  Proper jurisdiction depends on the parties to the lawsuit as well as the subject matter of the action.

Recently, an action for an injunction to stop certain amounts of water from flowing down the Truckee-Carson Canal was filed for fear that the higher water levels and amounts of water would cause additional damages to them and potentially cause another ditch break.  While this action was limited to the parties involved and served in the pending lawsuit, this caused an uproar by Newlands Project water users.  Many users have contemplated intervening in this action as the reduced amount of water going over to the project has and will directly affect project water deliveries to the users on the Canal itself, and downstream in the project.

The action for an injunction has questionable subject matter jurisdiction because it was not filed with the Decree Court that administers the water deliveries affected. How can a Court that does not have subject matter jurisdiction of the waters affected make any affective order?

The Alpine and Orr Ditch were Decreed in Federal Court and that court retains jurisdiction to administer the Decree that defines exactly how much water each user is entitled to receive and where that water is to be delivered. Thus, presumably an action to limit the amount of water delivered down the Canal should be brought in the Decree Court. The problem is that those seeking the injunction may not have standing in the Decree Court because they have no water rights issued by the Decree Court.

An interesting question still to be decided.

While irrigation districts formed under ORS 545 have no specific authority to accept municipal storm water or to convey that water, many irrigation districts have allowed near by cities to use their irrigation ditches and agricultural drains for storm water runoff. As urbanization continues to increase, the demand on the districts’ canals has reached new heights. Increased demand coupled with more environmental concerns and regulatory oversight have caused many districts to re-evaluate allowing use of their irrigation canals or agricultural drains for accepting urban, suburban and municipal drainage. Recently, the Pioneer Irrigation District initiated a lawsuit against the City of Caldwell Idaho to prevent the City from dumping municipal storm water into its irrigation canals.

From a City’s perspective, utilizing the existing delivery and drainage infrastructure is an attractive prospect. From the district’s perspective, allowing a city to use its canals requires consideration of the legal, financial and political issues that may arise. First the district must consider whether it may even accept the storm water pursuant to its authorizing statute and pursuant to it’s organizational by-laws, rules and regulations. Second the district must consider the impact the storm water will have on its users and the quality and quantity of water in its canals. If the district determines it may accept the storm water, it is imperative the terms and conditions of the city’s use of its canals and drains be specifically detailed in a storm water contract or other intergovernmental agreement. Many times these agreements can be a benefit to the district by increasing the financial resources of the district. Schroeder Laws Offices, P.C. can help districts consider these factors and make these determinations and agreements that will protect the district’s interests.

Personal service means just what it says! On March 28, 2008, in United States v. Alpine Land and Reservoir Co., Judge Lloyd D. George reaffirmed that only those 281 individual water right holders who returned their acknowledgement of service must defend the Pyramid Lake Paiute Tribe’s suit challenging the existence of their water rights. The Court’s recent order went on to confirm that those 1300 water right holders who had determined not to mail back an acknowledgment of the Tribe’s mailed service are dismissed.

Importantly, Judge George recognized our continued attempts in the last decade to dismiss the suit for lack of prosecution. Because of those efforts made by Schroeder Law Offices, PC on behalf of its clients, the Court determined that purchasers of lands with challenged water rights who had been served, ie mailed in the acknowledgements, are not bound by the currently filed petition. So the best news might be that of the 281 acknowledged individuals, those that sold the property along with the challenged water rights can also be dismissed.

Unless the Tribe refiles its petition against those dismissed, the number of individuals with challenges to the existence of their water rights is becoming quite small. Good news for Newlands Farmers! The end IS in sight!