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!