Will Nevada establish water conservation programs? The Nevada Division of Water Resources, Office of the State Engineer (“NDWR”) under the direction of Acting State Engineer Adam Sullivan distributed two draft bills to various lobbying entities.  One seeks to establish a water bank system while the other considers the creation of water conservation initiatives.  As of February 17, 2021, neither of the bills were pre-filed with the Nevada Legislature for the 2021 legislative session.  However, the content of the bill drafts is outlined below.

Water Banking Bill

            What its water banking?  Water banking is a system used to manage water supplies throughout the Western United States.  Water right holders can forego water use and “deposit” or transfer water into the water bank, making it available for “withdrawal” or use by another.  Water banks are often managed at the state level and vary from state to state to accommodate specific regional needs.

NDWR’s water banking bill would amend Nevada Revised Statutes, Chapter 533.  The bill would allow for banking and leasing of water rights for irrigation use.  The bill as drafted will give NDWR the authority to approve of two kinds of water banks: statutory water banks and contract water banks.  Both types of water banks manage the deposit and lease of water rights and inform NDWR of banked water uses.  The bill also includes reporting requirements for these water banks.  While the bill recognizes some differences in the requirements of the two bank types, there is concern that the definition of each bank type is unclear in the current draft.

Another critique of the bill is its failure to limit banked water usage to a specific geographic or hydrographic area.  This raises concern that a water bank could be used to transfer water to any location in the state including outside of its respective hydrographic basin.

One of the bill’s highlights is the exemption banked water rights will receive from NDWR’s “beneficial use” requirement.  Under this exemption, irrigators who are not prepared to use their water can avoid forfeiture and receive the benefit of banking unused water rights.  This will allow for temporary use by another until the original owner is ready to place the water to beneficial use.

Water Conservation Bill

A. Conserved Irrigation Water

NDWR’s proposed water conservation program seeks to “encourage and progressively promote” the conservation and efficient use of water.  The bill encourages water conservation upgrades for irrigation.  As proposed, the bill will be retroactive for water conservation projects performed in the 5 years prior to its passage as well as future conservation efforts.

Applicants for this program will submit their water conservation measure proposal describing to the state how they plan to use conserved water.  It is yet unclear if the water’s usage is limited to irrigation of additional lands, or if irrigators can add conserved water to already irrigated lands to increase the water applied in a single location.

Limitations to conservation are considered in the bill.  For example, irrigators within an irrigation district must obtain district approval.  Additionally, of the amount of water conserved, the irrigator may only retain 75% for the proposed new use.  The remaining 25% of conserved water transfers to the state.  The state will then retain all conserved water until a basin exceeds perennial yield by 10%.  At that point, the state may make any additional water available for new appropriation.  State Agencies and political subdivisions may also hold conserved irrigation water rights for instream flow.

B. Retirement of Water Rights

            The water conservation bill also proposes the creation of a state account for the purchase and retirement of water rights.  NDWR would target certain over-appropriated basins in the following order:

(1)       Basins with greater than 200% over-allocation and over-pumping for the past 5 consecutive years;

(2)        Basins with great than 150% over-allocation; and

(3)       Basins with greater than 100% over-allocation.

Under this program, water would be purchased at fair market appraised value.

Conclusion

The content, structure, and language of these bills will likely develop as NDWR receives feedback and moves through the legislative process. It is important to remember that the public has a voice in this process through lobbying groups as well as their legislators. The public can stay on top of bills, once filed with the legislature here.

Interested in more information on water related legislation?  Read our blog on AB 5, AB 6, and AB 15 for the 2021 legislative session and keep an eye out for more legislature updates at www.water-law.com/blog.

Trading Water as a Commodity

Unappropriated water has long been considered a public resource. It is subject to private ownership rights and development, to be sure. But the law generally treats water differently compared to commodities like consumer goods or other natural resources like lumber. The UN recognized water’s essential role in the public commons in Resolution 64/292. It declared a “human right to water” and acknowledged “clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” However, recent developments in water markets could signal a shift in long-held perspectives. In early December, California water futures contracts began trading on stock exchanges for the first time ever, bringing water in line with other commodities like gold and oil.

At its most basic level, a futures contract is an agreement to buy or sell a commodity at a future date. The price and amount is set at the time of the contract. This gives cost certainty to buyers in volatile markets, but also invites outside speculation. The water futures here are tied to the Nasdaq Veles California Water Index, which tracks the spot market for water in California. The index has doubled in value over the past year. Tying futures contracts to the index allows buyers to “lock in” a price long before they will actually purchase water.

Pros and Cons

Proponents of the venture claim that the futures will add price certainty and transparency to the traditional spot water markets. Spot markets typically bring high prices and uncertainty for water users in dry times. Farmers, municipalities, manufacturers, and energy producers can look to the futures market for data on current and past prices. They can use that information to make informed decisions about what future prices might look like in dry times down the road. This allows water users to enter into futures contracts to offset the higher cost of water in the future.

However, some detractors fear placing water futures on the open market undermines water’s value as a basic human right. Pedro Arrojo-Agudo, a UN expert on water, worries that the futures market poses a risk to individual water users. This is because “large agricultural and industrial players and large-scale utilities are the ones who can buy, marginalizing and impacting the vulnerable sector of the economy such as small-scale farmers.” Additionally, trading futures on stock exchanges invites speculation from outside investors like hedge funds and banks. Speculation could lead to bubbles like we saw in 2008 with the housing and food markets. After all, western states that regulate water under the Prior Appropriation Doctrine prohibit water speculation. This fear may be far from realization, though. Analysts believe that water is currently too abundant worldwide to become a highly sought after commodity on global financial markets.

Looking Forward

Though brand new, California’s water futures trading represents an interesting experiment in water market innovation. Currently, spot water markets are the dominant avenue to buy and sell water. Some entities, like the Western Water Market, are trying to make the process easier. These futures are another step in that direction. In Schroeder Law Office’s webinar, “Buying and Selling Water Rights,” we noted the difficulties in developing water markets. For example, water isn’t fungible, water rights include specific conditions and restrictions, and the transfer process is often lengthy, limited in allowable scope, and expensive. On top of that, scarcity issues abound. Although the new water futures trading will not solve those particular problems, it is worth keeping an eye on. Water futures may successfully help California water users better manage prices. If so, futures trading could spread throughout other western states.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news!

This blog was drafted with assistance from law clerk Drew Hancherick, a student at Lewis & Clark Law School.

Nevada Division of Water Resources (“NDWR”) has drafted proposed water related regulations and the public is encouraged to get involved by attending the upcoming workshops. The draft regulations concerning water use are R169-20 (concerning extensions of time) and R170-20 (concerning Water Right Surveyor licenses).

R169-20
This draft regulation proposes, among other things, to include new definitions such as defining “beneficial use,” “perfecting an appropriation” and “steady application of effort.” The proposed regulation also adds additional requirements necessary on an Application of Extension of Time to file a proof of completion and/or proof of beneficial use. The proposal provides guidelines for evidence the State Engineer can consider in determining if the applicant has demonstrated significant action toward perfecting their appropriation when considering whether to grant a requested extensions. The workshop for this proposed regulation will take place on January 13, 2021 at 9:00 am.

R170-20
This draft regulation proposes additional definitions and requirements related to Professional Engineers, Professional Land Surveyors and appointed state Water Right Surveyors as well as proposed disciplinary actions against surveyors. The workshop for this regulation will take place on February 5, 2021 at 9:00 am.

The upcoming workshops are anticipated to be held virtually. The current deadline to provide public comment is through the date of the workshops.

If you would like to participate in the water related proposed regulations, please consider attending the workshops!

The Nevada Division of Water Resources (NDWR) gave notice to extend the deadline for submitting written comment and testimony on Proposed Orders to Designate Hydrographic Basins related to the hearings held October 12- October 26, 2020. Information on the hearings is available at:

http://water.nv.gov/hearings.aspx.

December 1, 2020 is the new deadline for written testimony, noting all testimony and comments must be postmarked for mailing to the State Engineer on this date.

For more information, go to http://water.nv.gov, under News > Proposed Orders > Notice_of_Hearing > Table_of_Hearings. Here you can find a Table of Hearings on Proposed Orders by location with the associated Hydrographic Basins.

For additional information regarding NDWR Proposed Orders, please read our prior blog. 

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The State of the Water Industry Survey

In the June 2020 issue of Opflow, the American Water Works Association published a survey of 3,351 water industry professionals. The State of the Water Industry (SOTWI) survey identifies challenges to the water industry and seeks to understand their causes.

Several issues regarding water resource management made the top ten concerns of the industry professionals surveyed. “Long-term water supply availability” was the third-highest ranked issue on the list at #3, followed closely by “watershed/source water protection” (#5) and “groundwater management and over-use’ (#10).

Water Demand

Specifically, 57 percent of surveyed respondents indicated that their utilities could meet anticipated long-term water demand. However, about 12 percent of respondents claim that it will be challenging to meet future supply needs. This uncertainty creates reverberating effects throughout the industry. Uncertainty affects many other aspects of water resource management and quality, including the other issues mentioned in the survey. Future supply shortfalls will lead to increased price and competition as well as the potential for more frequent litigation over water rights.

Source Water Protection

In addition, source water protection was another critical issue for water resource managers. 76 percent of utility respondents to the survey said that they had implemented or were implementing a source water protection program. When considering only large utility respondents, that share increased to 89 percent. Clearly, utilities focus on strong source water protection programs. These programs are often cost-effective ways to protect and improve both water quality and quantity. Further, states are generally responsible for implementing water quality standards under the Safe Drinking Water and Clean Water Acts for drinking water. Recently, the AWIA, America’s Water Infrastructure Act amended the Safe Drinking Water Act, signed into law in 2018.

Groundwater

Finally, this was the second consecutive year that groundwater issues were front and center in the survey. 2019 California drought and wildfire conditions stressed groundwater resources, bringing those issues to the front of many survey respondents’ minds. Those issues show no signs of abating, as drought and wildfires continue to ravage the West.

In conclusion, many of the challenges highlighted by survey respondents are similar to those faced by water resource managers throughout the years. While there may be some cause for concern in certain areas, overall the survey shows a positive outlook for the future. Utilities are using existing water resources more efficiently as they comply with the AWIA, protect their water sources, and engage in asset management planning. The water industry has poised itself to meet its challenges with resilience.

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

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

Background

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

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

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

Update

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

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

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

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

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

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

The Nevada Division of Water Resources (NDWR) posted Notices for Hearings for Proposed Orders for hydrographic basins within numerous Nevada Counties. These include: Churchill, Clark, Elko, Esmeralda, Eureka, Humboldt, Lander, Lincoln, Lyon, Mineral, Nye, Pershing, Washoe, and White Pine Counties.  NDWR scheduled the hears for October 12, 2020 through October 26, 2020.  Information on the hearings is available at: http://water.nv.gov/hearings.aspx.

            Each proposed order designates and describes a hydrographic basin. The proposed orders state the perennial yield, committed groundwater resources, and, if any, the exceedance of perennial yield for each hydrographic basin.  The orders then list the legal description of land “in need of additional administration.” within the basin

            Further, some orders set additional standards.  For example, the proposed order for the Pueblo Valley Hydrographic Basin (01-100) in Humboldt County, Nevada excludes irrigation from preferred uses of groundwater resources. It also denies any application to appropriate groundwater outside of limited circumstances. See Pueblo Valley Proposed Order.

            Individuals with water rights in these designated basins should review the proposed orders and participate in the administrative hearings regarding those basins.

            The individual Notices for Hearings on Proposed Orders and proposed orders for each basin can be found at http://water.nv.gov/news.aspx?news=Proposed%20Orders. 

By Therese Ure and Lisa Mae Gage

Nevada Division of Water Resources (“NDWR”) submitted draft administrative regulation amendments to the Legislative Council Bureau for this regulation cycle (the proposed amendments can be found at http://water.nv.gov/documents/NDWR_Prop_Admin_Regs-Hearings_EOT_Water_Right_Surveyor_6-8-2020.pdf ). A public workshop concerning the administrative regulation amendments was hosted by NDWR on June 24, 2020 wherein NDWR received public comments during the workshop and subsequent written comments. Since the workshop NDWR has made revisions to the proposed regulation amendments based on the comments received.

In an effort to keep the public informed of its revised regulation amendment proposal, and in order to allow the public continued opportunity to provide comments, NDWR has advised that 1) it has created and is maintaining an email distribution list to provide communications concerning its ongoing revisions; 2) it is planning on holding at least three (3) additional public workshops prior to the beginning of the 2021 legislative session; 3) it will provide bi-monthly updates regarding the planned workshops; and 4) it does not intend to take the regulations to a public hearing until after the 2021 legislative session concludes.

To stay informed and up-to-date on these possible administrative regulation changes that may affect water right holders throughout the state of Nevada, we suggest signing up for updates via NDWR’s email distribution list. Instructions for subscribing to the notification list can be found by visiting http://water.nv.gov/documents/AdminRegs%20Listserv%20Instructions.pdf.

Well sharing agreements are more common than you might expect! These types of agreements allow neighbors to share a well along with the costs for electricity and maintenance. However, there are several pitfalls that can be a big headache for landowners!

What are well sharing agreements?

Basically, these kinds of agreements are a combination of easements and covenants. Easements allow owners land, called the dominant estate, to use adjacent property, called the servient estate. Another kind of easement, called an easement in gross, do not have a dominant estate, like utility easements. The easement components of these kinds of agreements typically allow access to the well, maintenance, and repairs.

On the other hand, the covenant portions of these agreements contain the contractual terms. These contractual requirements pass with the sale of the land to new owners. For example, the agreement typically require the landowners to share electrical and maintenance costs. Also, parties must typically share water production if water is not available to meet the demand. In addition, terms can include dispute resolution terms, limitations on adding new parties, limit water uses, or describe the process to withdraw.

In contrast, sometimes the terms of the agreement are not in writing. Selling adjacent property served by a common well or subdividing property and providing well water using a pipeline can create an unwritten wells sharing agreement. If a dispute arises, parties might file a lawsuit to establish the agreement as an implied easement or as irrevocable license. Since parties must establish the terms of an unwritten easement by costly litigation, parties sharing a well should consider drafting a written agreement instead of “handshake deals.” We discussed these kinds of agreements in a free webinar available here.

What are the common problems with well sharing agreements?

First, these agreements typically share electricity and other expenses equally. Conflicts often arise when one party allegedly uses more water than the others, but each party pays the same amount. To avoid this issue, terms can allocate costs to each party based on their use. This approach might require installation of water meters to measure water use to each property and renegotiation of the terms of the agreement.

Second, the costs for maintenance of the well often become a point of controversy. Many wells operated using a well sharing agreement were drilled many years ago and have fallen into disrepair. The costs to reconstruct a failing well or drill new well can be significant. Further, wells constructed in the past often do not meet modern well construction standards. We discussed well construction issues in a free webinar available here. When the agreement does not clearly determine cost allocations, parties often disagree about who should pay for the repairs.

Third, the agreements often omit terms related to legal requirements under the Water Code. Oregon law requires a water use right for any domestic use that exceeds 15,000 gallons per day under ORS 540.545(1)(d). In addition, irrigation from a single exempt group domestic well cannot exceeds ½ acre under ORS 540.545(1)(b), meaning the parties to the well sharing agreement must share the available ½ acre for irrigation. Each party is not allowed their own ½ acre of outdoor irrigation under Oregon law. However, landowners can drill their own wells to provide additional irrigation if needed. Unfortunately, these agreements often omit the explicit allocation of outdoor irrigation to the parties.

What do I do if I have an issue with my well sharing agreement?

Of course, the best way to prevent a dispute is to develop a fair and complete well sharing agreement that avoids the problems identified above. However, if you are already participating in an agreement and would like to modify its terms, the parties may renegotiate a new agreement. A written agreement can also supersede an unwritten well sharing agreement by explicitly outlining its terms. Plus, a written document that is recorded with the county notifies future buyers of the property.

We routinely review and draft these kinds of agreements, so if you have specific questions, please contact us! We provide an extensive overview on how we can assist you with your agreements and other water items in Nevada or Oregon. We recently created a series of free webinars covering a variety of water-related topics published as a Water Right Video Handbook available here. Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

Announcement: Oregon Realtors’ Water Right Training Webinar (for credit!)

The Polk County Association of Realtors has teamed up with Schroeder Law Offices for a webcast to Oregon Realtors regarding water rights and initial disclosures related to water! The webinar airs this Thursday, June 18, 2020 at 11:30 AM. Click here to register. The webinar will provide CE credits for those that attend, but registration is available for anyone interested in real estate transactions involving water rights.

First, attendees learn the basics of Oregon’s water code and general information realtors can use to assist their clients. Next, the webinar presents easements and agreements particular to water-related properties. Panelists review the basics of conducting online water right research and the key issues to watch for. Finally, the webinar outlines ORS 105.464 initial disclosures and how to answer questions related to water use! Generally topics include:

• Oregon water law basics
  • Licenses, permits, and certificates
  • Exempt uses
• Researching water use rights online
  • Locating water rights and documents
• Water-related easements
  • Types of easements and agreements for water delivery
• ORS 105.464 Initial Disclosures
  • How to answer initial disclosures
• Key issues in water-related property sales

If you would like CE credits, please contact our office for a certificate, only possible for live attendance during the event. If you have any issues with registration or viewing the webinars, please contact Scott Borison at: scott@water-law.com.

This presentation is 10th in a series. To view recordings of past events see https://water-law.com/webinars.

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

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

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

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

           The Nevada Division of Water Resources (NDWR) proposes substantial changes to Nevada’s water right procedures.  The agency first announced the proposed changes when it released a Small Business Impacts Survey on June 1, 2020. The survey invited participants to state if they believed the proposed regulation amendments would impact small businesses.  NDWR followed the survey on June 8, 2020 with a Notice of Public Workshop. The notice invites interested citizens to attend and give general input on the proposed amendments. 

Rulemaking Procedures

            NDWR is unique in Nevada. Unlike most Nevada agencies, NDWR is not bound by Nevada’s Administrative Procedure Act (“APA”).  The APA governs how Nevada agencies must conduct rulemaking.  Although NDWR is not strictly bound by the APA, it elects to follow APA rulemaking procedures. 

            Rulemaking under the Nevada APA is a seven-step process.  The agency must:

• • 1. Consider impacts on small business;
    2. Conduct a public workshop;
    3. Draft proposed regulations;
    4. Publish a 30-day Notice of Intent to Adopt Regulations;
    5. Hold a public hearing;
    6. Consider public comment; and
    7. Adopt final regulations.

Here, NDWR completed a small business impact review, drafted proposed regulations, and provided 15-day notice for its public workshop.  The workshop will take place at 9 AM on June 24, 2020.  Due to ongoing Covid-19 restrictions, the workshop will occur via telephone and skype.  Information for joining the workshop can be found on the Notice of Public Workshop.

            Interested citizens should also monitor http://water.nv.gov/ for the Notice of Intent to Adopt Regulations.  NDWR has not issued this notice.  However, a Notice of Intent to Adopt Regulations must include the date, time, place, and manner by which the public can submit comment.  NDWR will provide 30 days after the notice for the public to provide comment. NDWR will also hear oral comments at the public hearing.  

Proposed Changes

            The regulations propose substantial changes to Nevada Administrative Code (“NAC”), Chapter 533. The chapter governs the administrative process for permitting and certificating water rights.  You are highly encouraged to review the proposed changes here. However, some proposed changes to note include:

• • Definitions of “beneficial use” and “significant action”;
  • NDWR discretion to allow intervenors in Protest Hearings;
  • Changes regarding applications for extension of time:
    • Permittee must state number of extensions previously granted;
    • Permittee must show steps towards beneficial use since last extension granted;
    • Permittee must submit supporting documents justifying extension;
  • Provisions outlining publication of notice when permittee has received 10 or more years of extensions;
  • Procedures for protests to extension applications; and
  • Additional provisions and procedures regarding Water Right Surveyor Licenses.

Public Participation

                   Public participation is inherent in an agency’s rulemaking process.  If these changes affect you, exercise your right to participate in the process by attending the June 24, 2020 workshop, submitting public comment pursuant to the Notice of Intent to Adopt Regulations, and attending the upcoming public hearing.   

(Image Credit: https://www.bbklaw.com/news-events/insights/2018/authored-articles/12/public-comment-time-limit-ok-d-by-court,http://water.nv.gov/documents/AB%2062%20Informal%20Public%20Workshops.pdf )

By Therese Ure and Lisa Mae Gage

In case you missed it, on May 13, 2020, Schroeder Law Offices presented a very informative webinar regarding water right adjudications. (To view the full webinar, please visit https://www.water-law.com/webinars/water-right-adjudication/). During this webinar, attorneys Laura Schroeder and Therese Ure provided attendees with valuable information concerning water codes in Oregon and Nevada, the post code adjudication process, types of evidence considered in determining a pre-code vested right and general components of decrees.

One major take away from this webinar is the Sunset Date for Nevada vested claims. Pursuant to Nevada Senate Bill 270 that was enacted in 2017, Nevada now has a “Sunset Deadline” of December 31, 2027 by which all vested claims must be filed with Nevada Division of Water Resources (“NDWR”). While this deadline merely directs the date on which the Proof of Appropriation must be filed with NDWR, it is recommended that consideration be paid to researching the supporting historical information required to “Prove Up” the vested claim once the source is ripe for adjudication. For more tips on researching historical water use, please go to http://www.water-law.com/water-rights-articles/nevada-water-rights/.

Schroeder Law Offices has been providing weekly webinars for an array of water related issues during the COVID 19 pandemic. To review any previous webinars, or to sign up for any future webinars, please visit https://www.water-law.com/webinars/.

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

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

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

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

In the seventh COVID-19 webinar, Laura Schroeder and Catherine Hansford explained the basic steps in determining the value of water rights. The webinar aired originally on May 27, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!

First, participants learn the different water right components that might either add value to your home, farm, commercial operation, or provide separate value if severed to transfer for a different use. Secondly, the presentation will explain what assessors use to gauge the value of water rights, the most desirable kinds of water rights, and water markets. Further, the webinar covers both the law and economics of water right sales and transfers. Generally, topics will include:

• Real Estate Components and Value of Water Rights
  • Surface Water vs Groundwater Sales
  • How elements of a water right determine value
• The “Legal” Value of Water Use Types
  • Compare exempt uses, permits, certificates, and decreed rights and water use in “closed” basins
• Valuation of Water Rights
  • “Assessments” of the value of water rights
• Water Markets
  • The issues with developing water markets
  • Discussion of the Deschutes Groundwater Mitigation Program
  • Concurrency laws and water banking

Afterwards, we posted all our webinars in the COVID-19 Series here, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Additionally, the COVID-19 Webinar series continued over several weeks. These webinars covered topics related to water management organizations and livestock water rights on public lands. Stay tuned to our blog for announcements for information about the next webinars or watch the webinars later on our website. If you have any issues with viewing the webinars, please contact Scott Borison at: scott@water-law.com.

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

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

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

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

Topics will include:

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

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

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

Can Nevada gardeners collect rainwater? 

As Northern Nevada’s last frost approaches, gardeners are gearing up to transplant seedlings and get plants in the ground. However, with planting comes watering. Nevada gardeners are all too aware of this as they battle the summer heat. In a state as arid as Nevada, garden watering occurs frequently. Water use escalates quickly as summer temperatures rise. 

Whether to lower the environmental impact or the monthly water bill,  gardener’s worldwide commonly use rain collection barrels.  Yet, there is confusion. Can Nevada gardeners collect rainwater? 

The answer is yes! Although, this was not always the case.  Rainwater collection was illegal in Nevada until 2017.  However, following the 2017 legislative session, Governor Brian Sandoval signed Assembly Bill 138. The bill amended the existing law to allowing “de minimus collection of precipitation.”  (NRS 533.027)

What is “de minius collection?”  Nevada statutes define “de minimus collection” to include collection from the rooftops of a single-family dwelling.  The water must be used for domestic use and cannot be consumed.  Including in the definition of “domestic use” is watering a family garden. (NRS 534.013). Therefore, under Nevada law, rainwater can be collected for gardening.

So, gardeners if you haven’t already, it’s time to install those rain barrels and pray for rain! Learn more about how to research your water rights here.

(Immage Source: https://www.esf.edu/ere/endreny/GICalculator/RainBarrelIntro.html)

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

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

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

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

In the fourth COVID-19 webinar, Laura Schroeder and Wyatt Rolfe discussed how to conduct due diligence on water use rights. The webinar originally aired on May 6, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here! Stay tuned to our blog for announcements for information about the next webinars. You can watch previous webinars in the series here.

Learn the basics about water use rights in property transactions and determining if any issues are present. Receive practical information to locate any “red flags,” the most common issues encountered in water use right due diligence, including those related to small utilities. Topics will include:

• Why conduct a water use right due diligence review?
  • What gets missed in the typical process.
• What water use rights do I have?
  • General overview of water right types.
• What are the major issues encountered with water use right due diligence?
  • Discussion of forfeiture, abandonment, deviations from allowed uses, compliance, and conditions of use.
• What red flags are associated with water use right due diligence?
  • Learn the most commonly encountered issues and special considerations for cannabis producers.
• What special considerations pertain to water utilities and water providers?
  • Consider the issues of purpose, water management and conservation planning, and service boundaries for public water providers.

The COVID-19 Webinar series continued over several weeks, including topics related to using the OWRD website to locate information and real property issues associated with water use rights. All webinars are available on our website, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

In the third COVID-19 webinar, Laura Schroeder, Clint Kinney, and Bob Long discussed what to do when you receive a notice that your well construction is non-compliant. The webinar aired originally on April 29, 2020 from 12:00 PM to 1:00 PM. You can watch the webinar here! Stay tuned to our blog for announcements for information about the next webinars! You can view other webinars in the series here.

Learn the basics about well construction rules from the legal perspective, including why well construction matters, when it can interfere in water use right transactions, and what you can do to fix or avoid issues. Receive practical information to investigate wells, determine issues with wells when purchasing new property, and investigate well issues on property you already own. Topics will include:

• Agency Regulation of Wells
  • What agencies and rules apply to well construction?
• Well Construction
  • What forms are required to drill or reconstruct a well?
  • What construction rules apply?
  • What happens when these rules aren’t followed?
• Well Construction and Water Use Rights
  • What is the definition of an “aquifer?”
  • Does OWRD analyze well logs?
  • When does well construction interfere with water right issues?
• Remedies to Well Construction Issues
  • How can one overcome construction issues in OWRD applications?
  • Does the well driller need to fix (or pay to fix) the well?
  • What options are available to fix an improperly constructed well?

The COVID-19 Webinar series continued the following several weeks, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Other webinars covered common water-related issues, including due diligence reviews in water use rights. Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!