The United States Committee for Irrigation and Drainage (USCID) fall conference registration is now open. www.uscid.org  As the current president of this organization, I’m letting my “friends of Schroeder Law Offices” know what we are up to when not working in the office representing our clients.

What is USCID?

The USCID is a non-profit organization dedicated to sharing and collaborating on all water issues. These especially relate to planning, design, construction, operation, and maintenance of irrigation, drainage and flow control works. They particularly include agricultural economics; water law; and environmental and social issues affecting irrigated agriculture.  As you might tell, given my upbringing in irrigated agriculture, these are all areas near and dear to me.  With all the challenges facing water use in the United States, this organization of scientists, engineers, extension representatives, irrigation managers, agency representatives, policy makers, and product engineers and manufactures, is the place to be when it comes to learning about cutting edge developments and studies in handing the ever-increasing water scarcity. 

At Schroeder Law Offices, we strive to understand water use in all facets from growing food and fiber and supplying safe water supplies for our clients. Participating in these organizations it keeps us in touch with cutting edge ideas and solutions that help us better serve our clients. 

The USCID Fall Conference

The USCID Fall Conference, on Implementing Sustainable Water Management, is open for registration.  The conference this year will be in Sacramento, October 1-4^th.  Please consider joining this important organization and attending our conference.  In addition to the “conference room” presentations providing valuable educational opportunities, the USCID planning committee has lined up some great tours.  Tuesday morning’s tour will head to Vacaville and visit the Solano Irrigation District.  Here we will learn what SID has done to modernize its irrigation system to bring more accurate delivery to its constituents. 

Friday’s tour, will head to Oroville Dam and Lundberg Family Farms.  Oroville is the tallest earth-fill dams in the United States at 770 feet high and 6920 feet long.  We experience the dam up close to learn about the spillway failure in 2017 and its emergency recovery and repair.  We will also learn about the importance of the dam in supporting agriculture, power generation and flood control. At Lundberg Family Farms, we will learn about the farming operations for various varieties of rice. We will learn about the Lundberg Family’s dedication to sustainability in crop nourishment and use of water.  Lundberg is a regenerative organic certified operation and has a goal of moving its organic operation to 100% regenerative organic certified by 2027.

Along with the tours, the planning committee has accepted around 30 presentations to bring you a well rounded conference focusing on Implementing Sustainable Water Management.  I am especially interested in learning some of these sustainable water management strategies as I hope to take them back to Nevada as we struggle with implementing a conjunctive management system on the Humboldt River.

We hope to see you there!

Therese

While not a new topic on our blog, we wanted to take this opportunity to remind you that Nevada’s vested water right sunset date of December 31, 2027 is fast approaching!  This deadline is the “last call” to file for any pre-water code rights. If you know that your predecessors were irrigating or watering their livestock as a “grandfathered right” on property that you own or use, and you do not have a vested or permitted water right on file with the State Engineer’s office, now is the time to determine whether or not you have the historical support to file a vested proof of appropriation.  While “grandfathered” rights imply a historical right, calling it a “grandfathered” right, in and of itself, does not equate to a legal right to use water.  The historical use must pre-date the water code.  In Nevada, these water code dates are: 1905 for surface water, 1913 for artesian or percolating water, and 1939 for groundwater developments. 

When filing a vested proof of appropriation, make sure that your water use has adequate evidentiary support to predate the water code. To assist you, we recently updated an article entitled, “How to Research Your Land and Water”. This article provides guidance on how to research the information necessary to support a vested proof of appropriation.  Now is not too late to start this process!

Schroeder Law Offices, P.C. attorney Caitlin Skulan made her third appearance at the annual Nevada Agricultural Fair in Douglas County, Nevada.  Attorney Skulan served on the 2024 Fair Board as Treasurer.  In 2022, The Fair moved from Carson City, Nevada to Douglas County in order to take advantage of the larger fairgrounds and room for growth.

            The Fair’s primary events are a four-day youth livestock show and three-day “MAYHEMilition” that includes lawn mower racing, figure-eight demolition car racing, and a “tuff truck” competition.  The “MAYHEMilition” serves as the primary fundraiser for the youth livestock show. Local sponsors donate other funds. In the past three years, popularity and traction for the evening festivities has grown. This year, the grandstand was sold out both Friday and Saturday night!  Fair organizers expect the Fair to grow further in 2025. 

            During the day, the focus is livestock, livestock, livestock.  Regional 4-H, Grange, FFA, and Keystone Agricultural Society members partook in showing seven animal types. Animal types included cattle, swine, lambs, goats, rabbits, poultry, and horses. Each type of livestock is further divided by species as well as by purpose (breeder, dairy, or market).  The show concluded with the Sunday livestock auction, directed by Attorney Skulan. The auction had a record number of buyers for the Fair, that resulted in great support for the youth selling their market animals. 

            The Fair is a culmination of a year’s worth of constant efforts for organization, securing vendors, sponsor outreach, and funding.  The Fair Board, with the able assistance of Attorney Skulan, continues to grow and improve the event and is looking forward to an even better Fair in July 2025.

In April 2024, the Environmental Protection Agency (“EPA”) announced a new maximum contaminant level (“MCL”) for monitoring and regulation of six PFAS (Perfluoroalky and Polyfluoroalkyl Substances, aka “forever chemicals”).

PFAS are identified by extremely strong bonds of fluorine and carbon which do not easily disintegrate in the environment or in the human body. These “forever chemicals” have been utilized since the 1940’s because they are highly effective at repelling oil and water. 

All community[1] and non-transient non-community water systems[2] must comply with the PFAS MCLs beginning in 2027. Until now, all prior information from the EPA regarding PFAS was advisory. The prior advisory level from the EPA for PFAS was 70 parts per trillion (“ppt”). The new MCLs for the six PFAS are as follows:

• 4 ppt for PFOA
• 4 ppt for PFOS
• 10 ppt for PFNA
• 10 ppt for PFHxS
• 10 ppt for HFPO-DA
• 1 (unitless) hazard index of a mixture of two or more PFAS chemicals: PFNA, PFHxS, PFBS, and HFPO-DA (commonly known as Gen X)

Often, state governments required larger drinking water systems to monitor the amount of PFAS in their drinking water. Although, they did not impose a regulation. Now, all community and non-transient non-community water systems must begin monitoring for PFAS by 2027. Systems must provide their monitoring data to the EPA. If a water system has a level at or over the MCL, they must implement infrastructure to reduce the PFAS below the limits.

Realities of PFAS Monitoring

One of the difficult realities of measuring for these MCLs is finding a lab with analytical capabilities to detect that level of PFAS in a sample, and at an affordable rate. Many labs do not currently have the analytical capabilities to detect 4 ppt or lower in a sample. Before a water system submits its sample to a particular lab, it should ensure the lab can detect 4 ppt or lower. The sample must show 3.99 ppt or lower to be in compliance with the MCL for PFOA and PFOS. PFOA and PFOS are the most common PFAS in drinking water. Typically, the smaller the detection limit required, the more expensive the test.

Funding is available from the Drinking Water State Revolving Fund and the EPA’s Emerging Contaminants in Small or Disadvantaged Communities Grant Program to assist with making the impacted water systems compliant with this new regulation. There are also other federal programs available to assist with any additional costs. Another program, the Water Infrastructure Finance and Innovation Act (“WIFIA”), provides low-cost, flexible funding to communities for water infrastructure projects. WIFIA funding is available year-round.

Although the EPA provided three years for systems to begin the process, the sooner a system understands their situation the better. Schroeder Law Offices, P.C. assists many municipal water systems regarding compliance with drinking water standards. Please contact our office if you have any questions regarding your water system.

[1] “Community Water System” means a public water system that has 15 or more service connections used by year-round residents, or that regularly serves 25 or more year-round residents. 40 CFR § 141.2.

[2] “Non-Transient Non-Community Water System” or “NTNC” means a public water system that regularly serves at least 25 of the same persons over 6 months per year. 40 CFR § 141.2.

In 2019, we previously posted a blog on the Public Trust Doctrine in Nevada which you can find here. Since then, the Nevada Supreme Court made its decision in Mineral Cty. v. Lyon Cty., 136 Nev. 503, 473 P.3d 418 (2020). We provide a brief recap of the Public Trust Doctrine and an update on the status of the doctrine in Nevada.

The Nevada Supreme Court formally recognized the Public Trust Doctrine in 2011 in Lawrence v. Clark County. However, the Court in Lawrence only recognized the doctrine in the context of navigable waters. In Mineral County, the Court later clarified that the doctrine applies to all waters within the state, whether navigable or non-navigable. The Court also adopted the position that the Public Trust Doctrine has been in place in Nevada since statehood, despite the doctrine not being formally acknowledged until Lawrence.

What is the Public Trust Doctrine?

The public trust doctrine “generally acts as a restraint on the state in alienating public trust resources.” Id. at 509. However, arguably the doctrine has broader implications than only the alienation of public resources by the State. The doctrine enshrines the principle that the public trust resources are owned by the State, and the State cannot use them for just any purpose. Rather, the State acts as a fiduciary. This means the State must use and maintain public trust resources for the benefit of the public. Therefore, because the State owns all the water of the State and holds those waters in trust for the public, the State has a duty to protect the water from misuse or contamination. As an acting fiduciary, the State’s protection is for the benefit of current and future residents of the State.

How does the decision in Mineral County affect your water rights?

The Court in Mineral County found that even though the Public Trust Doctrine “applies to all waters within the state, including those previously allocated under prior appropriation,” the doctrine does not allow for the reallocation of rights settled under the doctrine of prior appropriation. Id. at 506. The Court reasoned that the “state’s statutory water scheme [which is based on the doctrine of prior appropriation] is consistent with the public trust doctrine by requiring the State Engineer to consider the public interest when allocating and administering water rights.” Id. / The Court went on to explain, “in recognizing the significance of finality in water rights, our Legislature has expressly prohibited reallocating adjudicated water rights that have not been otherwise abandoned or forfeited in accordance with the state’s water statutes.” Id.

Due to the Mineral County decision, courts in Nevada will recognize the Public Trust Doctrine as it applies to the disposition of water rights by the State under the state’s statutory scheme. The Court in Mineral County cautioned “that rights holders must continually use water beneficially or lose those rights.” Id. at 518. If you need assistance ensuring your water is placed to beneficial use, research attorneys that can help you comply with State regulations.

Across the United States roughly 20% of office spaces remain vacant; one of many lingering effects of the COVID-19 pandemic. With increasing permanence of hybrid and remote roles, some studies project more than 300 million square feet of United States office space will become vacant by 2030. As these empty buildings serve as a frustration to many landlords, municipalities are working to find creative solutions for these empty offices — a prominent one being vertical farming.

Surprisingly, office buildings already provide a well-suited environment for farming. Office buildings are air conditioned, heated, and well ventilated. These features allow individuals to monitor change temperatures in response to their crop production. Vertical farming can be a more cost-effective way to utilize empty office spaces, unlike converting these spaces into housing.

When done correctly, vertical farming can yield just as much produce as traditional farming methods. Vertical farming allows for more control over the uncertainties of climate and pests, allowing for more consistent, year-round production. Vertical farming also uses 95 percent less water than traditional methods, which touches on concerns regarding increased water scarcity.

AgriPlay Ventures, an indoor farm in Calgary, Alberta, is an example of how successful this method of farming can be. Although currently operating on only one floor of the Calgary Tower Center, AgriPlay is able to provide fresh produce, with some crops providing 30 harvest a year, to a community with the highest rate of food insecurity among Canadian provinces. AgriPlay illustrates that indoor farms are an asset to the community, not just property owners.

While vertical farming should not be the only solution to these unused spaces, it is a solution that can mitigate multiple problems at once and reshape our urban centers. By utilizing empty office spaces in this way, we can support the local community by alleviating food insecurity. This solution also creates local green spaces. Vertical farms are an innovative development in adaptation to our changing environment.   

Read the full article here:

Smithsonian: Empty Office Buildings Are Being Turned Into Vertical Farms | Smithsonian (smithsonianmag.com)

Are you looking for ways to support your local agricultural community this summer? Reno is crawling with local farmers markets that feature products from local farmers and ranchers. On April 21, a new farm stand by farmer owned Reno Food Systems opened. This program directs education on agricultural policies as part of its market program. Reno Food Systems farm stand is open on Sundays from 3 to 7 pm. Also, be sure to stop by the Riverside Farmers Market, located at Idlewild Park. This farmers market is open year-round on Sundays, and their central location allows a walk along the Truckee River after browsing the vendors. Although we would venture to say fresh produce is the best part of local markets, you can also find household items and handmade gifts at these Reno farmers markets.

Supporting members of our community that provide underappreciated products, such as a healthy food system, is something Schroeder Law Offices encourages. Nevada has a thriving agricultural community, and this is in large part maintained by protecting our water resources. At Schroeder Law Offices, we strive to provide farmers and ranchers with tools to maintain their businesses and support their local communities.

            On January 25-27, 2024, Schroeder Law Offices Attorney Caitlin Skulan attended the Mid-Pacific Water Users Conference in Reno, NV.  The Conference Board opened the event by boasting the largest attendance to date at the 56^th annual conference. Over 300 registrants attended the conference, more than 80 of which were from the United States Bureau of Reclamation (“Bureau”).

            Bureau Commissioner Camille Calimlim Touton welcomed conference attendees. Touton is the first woman, Filippino Federal Commissioner in the United States.  Touton’s opening presentation centered around the Bureau’s big announcement for the California Great Basin Region.  The long-standing Regional Director, Earnest Conant is retiring! Conant will be succeeded as Regional Director for the California Great Basin Region by Karl Stock.  Conant will continue to serve as Senior Advisor to Touton for a short period before retiring fully from the Bureau.

Regional Updates

            In addition to the Bureau’s announcement of Conant’s Retirement, the conference program included updates on the Newlands Project and the status of various water reservoirs and river supply outlooks in the Region. Among the updates was that for Truckee and Carson Rivers.  The Bureau’s regional staff reported precipitation this year was at 50-70% of average, compared to the 200-300% the region experienced in 2023.  However, Regional staff were not overly concerned with water supply for the irrigation season as last year brought 650,000 Acre-feet of inflow in Lahantan Reservoir. As of late January, the reservoir was at about 70% capacity. The Bureau also reported Tahoe storage at 70% and Stampede Reservoir at 88% full.  The Bureau expects the reservoirs to continue to fill as the winter/spring runoff adds to inflows.  

            All-in-all, we at Schroeder Law Offices are happy to pass on the positive report for the water supply outlook for the 2024 irrigation season.  We additionally wish Mr. Conant the best in his retirement and look forward to working with Mr. Stock regarding any future Bureau-related projects.

How is it that after another heavy snowfall in the Sierra, the Nevada Irrigation District (“NID”) declared a water shortage emergency within its’ service boundaries? In March of 2024, NID’s General Manager’s Newsletter requested customers cut their water use by 20% for the remainer of the year. Although the reduction is voluntary, water users in Placer and Nevada County face a limited water supply.

This declared “water reduction” emergency results from unanticipated infrastructure repairs in the Sierra Nevada headwaters. Although a sufficient water supply exists in the headwaters, a landslide produced severe damage to the Pacific Gas & Electric Company’s (“PG&E”) portion of the South Yuba Canal. Conveyance to foothill reservoirs is near impossible until repairs are made to the canal.

The South Yuba Canal acts as the primary source of water to NID’s Deer Creek System and Scotts Flat Reservoir. Given the damage, the District has limited access to normal watershed runoff and cannot recharge the South Yuba or Drum Canals. Further, a PG&E powerhouse “sustained a failure that curtailed flows into the Drum Canal that provides water to Rollins Reservoir and the Bear River”. According to the March newsletter, the PG&E should complete repairs by June 8th.

What About Irrigators in the NID?

With the irrigation season scheduled to start on April 15th, the timing poses huge inconveniences to agricultural customers. Irrigators in the District must rely on existing stored water in the Scotts Flat and Rollins reservoirs. The NID Board of Directors expressed concerns about relying upon limited water storage if the outage extends into the summer. NID estimated that any delays in repairing the South Yuba Canal will result in mandatory water restrictions.

NID provides irrigation and drinking water to more than 25,000 customers. This District is also a leading water agency in the production of clean hydropower. Many individuals and companies will be greatly affected by this situation. Lake levels over the summer could also be affected.

If you are affected by water shortage consider this article on how to locate a water rights attorney.

Oregon Women for Agriculture hosts its Annual Auction and Dinner on April 20^th, 2024, at the Linn County Fairgrounds in Albany, Oregon. The theme for this year is “Bee for Agriculture.” Senior paralegal Tara Lomacz, a member of the Yamhill County chapter of OWA, helps organize the event and will attend once again on behalf of Schroeder Law.

Willamette Valley farm women organized OWA 50 years ago. These women were concerned with regulatory issues impacting the grass seed industry. Since then, this all-volunteer group has broadened its scope to include nearly all facets of agriculture and areas of the state of Oregon. OWA provides volunteers and fundraising for Oregon AgFest in Salem every year, reaching 20,000 people. Volunteers put together bus ads and radio spots in metropolitan areas to help citizens understand where their food is grown. Further, OWA provides support for teachers who participate in Summer Agriculture Institute at Oregon State University. It is through these projects and more that OWA can accomplish their mission of working together to communicate the story of today’s agriculture.

The OWA Annual Auction is the only fundraiser of the year. The event includes a silent auction, dinner, and oral auction beginning at 7:15pm. If you want more information on this event, then visit the event website here. Tara hopes to see you there!

You just purchased property with a pond, or a reservoir. Within the documents provided by the prior owner, you did not find a “typical” stored water right certificate or permit to store water. But you did find a water right of use that allowed storage water to be used for irrigation. Now, you fear the prior owner did not apply for a permit to store water with the Oregon Water Resources Department (“OWRD”). You do not like the current location of the pond or reservoir. You worry you cannot change anything about the pond or reservoir due to the missing water right of use or water right certificate.

This may not be the case, but to be sure, you must research stored water rights in Oregon.

Applications and Use

OWRD may allocate water for “beneficial use.” To receive an allocation, a person must apply to the OWRD. A person can apply for a right of use to store water but needs a secondary right to “use” the stored water. In other words, OWRD requires two permits, one to store and one to use. For example, water use permits only apply to uses for irrigation, nursey, or recreation, not storage.

In the early 1990s, the State allowed owners of reservoirs built prior to 1995 to apply for a reservoir to be “exempt” from OWRD’s “typical” water right application process for storage. If the owner followed the proper steps, the reservoir would be exempt but would not necessarily receive a standard “certificate” from OWRD. In other words, the owner wouldn’t be subject to penalties for storing water in the reservoir even though OWRD didn’t issue a water right certificate. If a person did not qualify for or complete these steps, they would need to apply for a “typical” stored water use permit.

Transfer Applications for Stored Water

In your research, you find out that you have an exempt reservoir. You are relieved to find out that you can legally store water on your property. However, you are still unhappy with the location of the reservoir.

Due to a recent Oregon Court of Appeals ruling, you will be able to change the location of your reservoir with a transfer application submitted and approved by OWRD. Since 2018, OWRD argued it did not have the authority to transfer, or relocate, any storage water right of use under state law. In Bridge Creek Ranch, LLC v. Oregon Water Resources Department, the Oregon Court of Appeals did not agree with OWRD’s interpretation. The Court determined that a primary right to store water and a secondary right to use the stored water are “inextricably linked”. Therefore, OWRD must accept transfer (change) applications for stored water uses that were issued certificates.

This clarification could allow you to hopefully transfer the location of your reservoir to a more convenient part of your property and allow you to begin perfecting your water rights.

Conjunctive management recognizes there may be a hydrological connection between groundwater and surface water within an area. This means, drawing down groundwater may affect the availability of surface water, and vice versa. In prior appropriation states like Nevada, where senior water rights have priority, surface water rights will generally trump groundwater right. In January 2024, the Nevada Supreme Court weighed in on Nevada’s conjunctive management law.

Points of Contention

With limited water availability in the arid west, it is increasingly necessary to manage both groundwater and surface water as a single management unit to protect senior water rights. However, there is an understandable reluctance on the part of some junior water rights holders to curtail water use that has gone unchecked for decades.

One point of contention is whether the best available science supports the curtailment of a junior water right– does the best available science support finding a specific groundwater use is depleting the source of a senior surface water right? How much can a junior water rights holder still use and not affect the senior water rights? The Nevada State Engineer will determine what constitutes “best available science.”  Is it a full-blown scientific model, or will something less suffice?

A second point of contention has been whether the State Engineer has the authority to manage the waters of the State conjunctively. We finally have the answer: In January 2024, the Nevada Supreme Court issued its decision in Sullivan v. Lincoln County Water District recognizing the power of the State Engineer to conjunctively manage surface waters and groundwater. Case Nos. 84739, 84741, 84742, 84809, 85137, 2024 Nev. LEXIS 4 (Jan. 25, 2024).

The Court’s Decision

In reaching their decision, the Court primarily relied on provisions of the Nevada Revised Statutes (NRS) (state.nv.us) prohibiting the impairment of vested/existing water rights, “regardless of the water source.” The Court noted that “[a]ll statutorily granted water rights in Nevada are given subject to existing rights” and “[b]ecause vested water rights by definition exist prior to the grant of statutorily granted water rights… no statutorily granted water right may impair vested water rights.” Id. (citations omitted). In sum, the Court found that no matter the source, ground or surface water, the State Engineer must not allow any impairment of vested water rights. Hence, the State Engineer must have the power to conjunctively manage both sources of water in Nevada.

The Court’s decision also recognizes the legislative policy declared at NRS 533.024 “which require the State Engineer to ‘consider the best available science in rendering decisions concerning the available surface and underground sources of water’ and ‘[t]o manage conjunctively the appropriation, use and administration of all waters.” As such, the Court notes these policy declarations support the finding that the State Engineer has power to conjunctively manage the waters of the State of Nevada, decisively settling years of litigation over the matter.

What’s Next?

For years the State Engineer attempted to conjunctively manage but was hamstrung by scientific uncertainty regarding the hydrological connection between groundwater and surface water sources, leading to exhaustive litigation concerning the State Engineer’s management orders. The new Model on the Humbold River, reportedly nearing completion, will be integrated into the State Engineer’s future orders that will likely be further tested in the courts. Likewise, submission of Scientific Reports in the Lower White River Flow system were presented to the Nevada Court that will now determine if these reports are sufficient substantial evidence to support the State Engineer’s regulation orders.  It will be interesting to follow the litigation to see what level of “best available science” will withstand the scrutiny of the courts.

You might be interested in this article about Nevada Water Law.

Although the State of Nevada is well known for its’ economic sector in gaming, agricultural production is critical to many Nevada residents. Like most farmers in the arid West, Nevada farmers rely heavily on irrigation for crop production.

In the western part of Nevada, seasonal irrigation is primarily based on water that comes from snow-melt in the Sierra Nevada. Alfalfa is the primary irrigated crop, given the market demand for feeding livestock. Alfalfa, a perennial, has been a staple of crop production in Nevada for many years because when irrigated, alfalfa can provide up to four crops a year. Nevertheless, long-standing drought conditions, where water delivery allocations provide only enough water to irrigate one crop has encouraged individuals to diversify to other crops. An article presented by the University of Nevada, Reno presents potential additional benefits such as conserving soil moisture and sustainable production Crop Diversification | Extension (unr.edu).

Becoming more familiar with your “paper” water rights, and the history of water delivery allocations under them, may allow a farmer to better evaluate the potential benefits of diversifying from alfalfa, that provides a four crop return, to other crops that may only allow a one or two crop return but be compatible with the water delivery scheme that limits irrigation deliveries during drought.

Background

Chevron deference (“Chevron”) has been a cornerstone principle of administrative law for nearly forty years. Essentially, Chevron requires courts to defer or rule in the agency’s favor when a statute is the basis for a Court’s decision on an issue before it. Under Chevron, the Court’s decision is limited to determining whether the agency’s action was permissible based on the agency’s interpretation of the statute.

The Chevron Two Step

There are two steps to the Chevron doctrine. The first step requires the Court to recognize whether the law requires or forbids the agency interpretation of a legislative directive. If the Court finds that the agency is making an interpretation within the vague boundaries of the law, then the Court cannot implement its own interpretation through statutory analysis. The second step of Chevron requires a finding that the agency interpretation is reasonable. However, if step one is satisfied then it is very likely the agency will succeed on step two.

Chevron & Herring Fishing Regulations

Chevron will be under review by the Supreme Court as a result of herring fishery regulations. However, the Court made clear that any published opinion will solely be interpreting the extent to which Chevron is a Constitutional doctrine. It did not accept review as to whether federal agencies correctly interpreted the law. The issue at hand arose from federal agencies requiring fishers to absorb the cost of their own third-party monitors when there are no available federally funded observers. Such third-party monitors can cost up to 700 dollars a day. These expenses result from some herring vessels spending multiple weeks at sea and the costs of private observers becomes prohibitively expensive.

Should Chevron Stand?

However, for the vast majority of interested parties, the plight of the fishermen is of little interest. The crux of the issue is whether Chevron should stand. If is overruled, then the current status of administrative law will be turned on its head. For those defending the Chevron doctrine, they believe that the judge should not be interpreting a vague legislative directive. Rather, if there are multiple reasonable interpretations, it should be Constitutional for the agency in charge of carrying out the statute’s directive to decide. Those dismissive of Chevron and its nearly 40-year legacy find the doctrine to be unconstitutional and a perversion of federal power. Allowing administrative agencies to act as the legislative branch removes the responsibility of elected representatives and entangles the branches of government.

Chevron has arguably harmed agencies and has been a negative to the American public. Agencies are quietly transformed during each Presidential administration. Agency appointees by the new administration will institute new rule making, often in direct conflict with past statutory interpretations. This apparent discrpancy is due to the vastly permissive nature of Chevron deference. Thus, Americans become ensnared within an oscillating political vacuum regarding laws that impact everyday life.

Conclusion

Agencies, courts, and the legislature have been reliant on this doctrine for decades. A full or partial overruling by the Supreme Court would result in a seismic shift in operations of administrative law. As the decision will inevitably cause change within water law, Schroeder Law will thoughtfully guide clients through these turbulent times. Follow along with the Chevron doctrine by watching for updates on our blog: Blog – Schroeder Law Offices, PC (water-law.com).

We are pleased to share an article from the wellcare Well Owners Network published by an organization that provides free resource to domestic well owners, the Water Systems Council:  www.watersystemscouncil.org.

It’s that time of year again, January is National Radon Action Month!

There is good news though! Radon exposure is completely preventable! Click here to learn more about radon. Find a certified lab in your area for both air and water radon testing.

Pershing County Water Conservation District (PCWCD) is accepting applications for the position of Secretary/Manager.

A successful applicant will be responsible for managing the day-to-day operations of a 40,000-acre irrigation district located in Lovelock Nevada.  This irrigation district is a surface water district receiving water from the Humboldt River water system via its privately owned and operated reservoir.  This position is an at-will position to a 7 member Board. Salary commensurate with experience.

If interested, send a cover letter, resume, and three references to Peggy Holland at PCWCD by email to pholland@irrigation.lovelock.nv.us or contact 775-273-2293 for questions and a complete job description. 

Our Team, from left to right: Laura, Maricruz, Therese, Tara, Scott, Caitlin, Rachel, Max, Jess, Kelsey, Jeff, Jim, Melissa and Rita

As 2023 comes to a close, we at Schroeder Law Offices want to extend our thanks to all of our clients, friends, consultants and colleagues.  It has been an interesting year in the water rights attorney world. 

In Nevada we have made great headways in collaborating with Nevada Division of Water Resources and stakeholders on the Humboldt River Basin issues and conjunctive management.  Many submitted presentations and ideas ranging from strict prior appropriation all the way to socio-economic management. It is clear that ideas on management range the complete spectrum and it will be interesting how our prior appropriation state will ultimately decide on this issue.

This year I spent a lot of time working with United States Committee for Irrigation and Drainage (USCID) in bringing the organization back online after a changing of our Executive Director during the COVID years.  We are glad that is behind us and the organization is back on track and moving forward. At our conference in Fort Collins Colorado I was able to learn about how Colorado tackles and deals with conjunctive management issues.  Interestingly, everyone on the river system knows exactly where they are “on the priority line”.  Perhaps someday this will be the same mode of operation in Nevada?!  If you are interested in USCID, learn more here.

I am excited to participate in USCID and their parent, ICID in working to bring the innovations in irrigation and drainage to other countries and assist in solving world wide water scarcity and shortage problems.  I hope to have some international travels in my future as part of this work!

Other work I have done this year, included continuing my Secretarial duties for the Nevada Heritage Foundation, where we promote education in agriculture by providing support and scholarships to Nevada’s youth.  As you can tell, promoting agriculture is a passion of mine as it runs in my blood.

Finally, this year is my last year serving on the Board of the Nevada State Bar Environmental & Natural Resource Section.  It has been a great tenure and it’s been a great avenue to develop relationships in the legal world with other attorneys practicing in the same areas as Schroeder Law Offices.  I firmly believe that building relationship and communication is a key to success in any business.

Well, on that note, we wish you all a wonderful Christmas and Holiday Season and we look forward to a happy, healthy, and prosperous 2024!

~Therese

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Democrats in the U.S. House of Representatives have taken action to clarify the Clean Water Act following the Sackett decision, introducing new legislation into Congress in October of 2023. The purpose of the “Clean Water Act of 2023” is to counteract the narrow interpretation of the term “navigable waters” set forth in the Supreme Court’s Sackett II. Text of the proposed bill criticizes the Court’s decision for eliminating protection for wetlands that “perform vital functions such as sorting water to help reduce flooding, improving water quality by filtering pollutants, providing critical and important habitats for aquatic and other species, and recharging groundwater that provides drinking water and contributes to downstream flow.”  

Importantly, the Act intends to widen the definition of “waters of the United States.” Restrictions, however, do remain as to not extend federal purview to all collections of water. The greatest emphasis is on the definition of “wetlands”, the source of contention in Sackett II. If the Act were to pass, wetlands would now be defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstance do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” This definition, of course, would circumvent the narrowing of the “water of the United States” that resulted from the Sackett II decision.

While there is little evidence to believe the proposed Act will become law, it is important to be aware of new legal developments that can and will affect water rights throughout the country. Currently, the proposed bill is in the early stages of the legislative process. At this time, the House and Senate have not yet considered the Clean Water Act of 2023.

Additional Resources

For the entire text of the proposed amendment to the Clean Water Act: CWA 2023 Bill Text (house.gov)

For more information on the Sackett Decision that sparked this Act: WOTUS: a Confusing Legacy – Schroeder Law Offices, PC (water-law.com)

In a real estate transaction, the document transferring the real estate interest, describes that property in the deed or easement.  Many times, we find that metes and bounds descriptions use “chains” rather than the section lines familiar under the public land survey system (PLSS). While we heavily rely on the geographic information system (GIS), GIS locations are not always accurate. The GIS is a computer system for capturing, storing, checking and displaying data related to positions on the earth’s surface. In a boundary dispute, we require the services of surveyors to locate property lines, especially if the descriptions involve very difficult to interpret descriptions in chains.

What is a surveyor’s chain?  It is a measuring device used for land survey.  One chain is 66 feet in length and contains 100 links. One link, then, is 1/100 of a chain. This odd length assisted in calculating the area of a tract of land.  It was designed and introduced in 1620 by English clergyman and mathematician Edmund Gunter (1581–1626). This introduction was long before the development of the theodolite and other more sophisticated surveying equipment. The surveyor’s chain enabled plots of land to be accurately surveyed and plotted for legal and commercial purposes.

There are also other types of chain measurements, not to be confused with the surveyor’s chain, that differ in length!  To dive deeper into this fascinating subject of “chains” see, 5 Types Of Chain In Surveying And Principle Of Chain Surveying | CivilString

If you need assistance in diving into the details of a deed or title report with its many exceptions, Schroeder Law Offices, PC is available to assist.  Please contact us at counsel@water-law.com with any inquiries you may have.

California adjudication rules have changed! On October 10, 2023, California Governor Gavin Newsom signed AB 779 into law. This California law requires courts to consider sustainability and equality factors during groundwater basin adjudications. The intent behind this adjudication rule is to keep everyone informed and provide equal access to resources.

Adjudications of water basins are court cases that decide water use claims in a particular basin. Water users must file their claims by a certain date. Once the adjudication process concludes, the court orders a claim into a decreed water right. Oregon, Idaho, Washington, and Nevada also currently have active adjudications, but sustainability and equality that are not incorporated into a claim are not usually addressed is these other states.

This California adjudication rule requires the groundwater sustainability agency (“GSA”) to submit the required sustainability plan(s) for groundwater basins designated as high or medium priority to the court. This law also requires the GSA to notify the public when an adjudication begins. The public notice requirement stipulates that the GSA must host a public meeting to explain the adjudication process. The GSA must publicly post court documents for the public to follow the adjudication process. Further, the court must consider “the water use of and accessibility of water for small farmers and disadvantaged communities” before entering a judgment.

The Effects of AB 779

Adjudications are long, expensive processes. These considerations will help all parties participate in the process, no matter the size or financial resources. By the end, hopefully everyone receives access to the resources they need.

Other states conducting adjudications have notices requirements, but do not currently have public hearing requirements to explain the process at the outset.

Oregon and Nevada have notice requirements referred to as notice “by publication.” This is when the Director or the State Engineer publishes notice in a newspaper circulated in the area where the adjudication takes place. In comparison, in Idaho adjudications, Idaho Law requires the Idaho Department of Water Resources Director to serve notice by mail to affected parties. Finally, Washington law requires notice to property owners by publication or personal service.

States conducting adjudications often look to streamline the process. It will be interesting to see if neighboring legislatures to California push for similar requirements as this California adjudication rule. Although it may add time at the beginning and during the adjudication, it may save time later on in late filed claims, or applications for water rights.

If you are a water user in Oregon, Idaho, Washington, or Nevada, and there is an ongoing adjudication near you please contact us for information. You may also review the water department’s website in your state.