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. 

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 2014, the Idaho Department of Water Resources (“IDWR”) proposed adjudicating water rights in the Bear River Basin in Southern Idaho. Now, nearly 6 years later, a bill that would allow IDWR to commence the adjudication is up for legislative consideration. The Idaho House of Representatives unanimously passed House Bill 382 (“HB 382”) on February 10, 2020. The House then sent it to the Idaho State Senate with a “do pass” recommendation on February 11. The third Senate reading of HB 382 is scheduled to occur on February 26.

Adjudicating the Bear River Basin water rights will enable IDWR to “accurately record all existing water rights to resolve uncertainty and to help ensure fair and accurate water administration.” Revised Statement of Purpose RS27284C1/H0382, available here. Many of the water rights in the Bear River Basin hold senior priority dates, but uses have changed over time or are placed to use outside the claimed boundaries due to the passage of time and inconsistent record keeping. Additionally, because of the uncertain nature of many of the water right claims, until an adjudication is completed, senior users who face interference from junior users’ water use cannot seek enforcement of their priorities.

The Bear River Basin is one of only two basins in Idaho that have not yet been adjudicated. In 2014, IDWR signed a final decree closing the Snake River Basin Adjudication (“SRBA”). Several basins in Northern Idaho, including the Coeur d’Alene-Spokane, Palouse River, and Clark Fork-Pend Oreille basins, are currently being adjudicated as part of the Northern Idaho Adjudication project. IDWR’s website provides a summary of past, current, and upcoming adjudications here.

If HB 382 passes the Senate, the final step will be for Governor Brad Little to sign the bill into law. Then IDWR can commence the adjudication by sending notice to water users and property owners within the Bear River Basin. Those users will then have the opportunity to submit claims for historical and ongoing water use. Once the submission period closes, the Court will review all claims and, eventually, issue a decree confirming the water rights.

It is not uncommon for adjudication proceedings to take a significant number of years from their commencement to completion. Idaho has completed its prior adjudications in record time. Even so, the SRBA began in 1987, but a decree was not issued until 2014. Legislature similar to HB 382 authorizing the adjudications in Northern Idaho was passed in 2006; however, Phase 1 of 3 is still ongoing and Phase 2 only just began in April 2019. The Bear River Adjudication would not begin until adjudications in Northern Idaho are complete. Once commenced, it is expected to take 8-10 years.

Stay tuned to Schroeder Law Offices’ blog for updates on the Bear River Basin and other water projects!

By Caitlin Skulan and Lisa Mae Gage

On January 31, 2020 the Nevada State Engineer Tim Wilson issued the Order of Determination of the Relative Rights in and to All Waters of the Diamond Valley Hydrographic Basin. This order is the State Engineer’s final determinations of all the vested claims to water in the Diamond Valley Hydrographic Basin.  Nevada Revised Statutes “NRS” Chapter 533 governs the procedure for adjudications before the State Engineer and Court systems.

Filing Final Order with District Court

Now that a final order is issued, the State Engineer will file the Order of Determination with the clerk of the district court in which the water sources are located. The water rights subject to the Diamond Valley adjudication are not located wholly within one county, rather, they are located in Elko and Eureka counties. Elko County District Court is located in the Fourth Judicial District, while Eureka County is located in the Seventh Judicial District. When this happens, Nevada law directs the State Engineer to notify each of the judicial districts of his intention to file the Order of Determination, at which time the judges are to confer and agree upon where the court proceedings will be held. After the Judicial District is determined, the State Engineer will file the Order of Determination, evidence and transcripts with the court clerk. If the judges fail to notify the State Engineer of their decision within a statutorily prescribed period, the State Engineer can file the Order of Determination with the judicial district of his choosing.

Setting of Hearing on Order of Determination

Once the State Engineer’s record (Final Order, evidence and testimony) are filed with the District Court, the District Court will issue an order setting a Hearing on the Order of Determination. The court will provide the State Engineer with a copy of the Order Setting Hearing and the State Engineer will mail a copy to all interested parties. In addition, the State Engineer will publish the Order setting hearing in newspapers of general circulation for Elko and Eureka counties.

Exceptions to the Order of Determination

If any party feels aggrieved or dissatisfied with the Order of Determination they can file objections. At least five (5) days before the date of the hearing, that party must file with the District Court their objections by filing a Notice of Exceptions to the Order of Determination. This notice must state briefly the exceptions to the order and give the party’s requested prayer for relief.

Hearing on Order of Determination and Decree

If no exceptions to the Order of Determination are filed, on the day of the hearing the Court can issue its Findings of Fact, Judgment and Decree (“Decree”). If exceptions are filed, each party filing exceptions will appear at the hearing. The Court will prepare and provide all parties a copy of its Proposed Findings of Fact, Judgment and Decree at least thirty days before it intends to execute the Decree. Once the Decree has been executed by the District Court, there is a further opportunity to appeal to the Nevada Supreme Court.

While the issuance of the State Engineer’s Order of Determination is a good milestone in determining the vested rights in the Diamond Valley Hydrographic Basin, we may still be a long way from obtaining a final Decree.

Schroeder Law Offices is pleased to announce that Attorney/Partner Sarah Liljefelt accepted the position of Water Resources Committee Chair for the Oregon Cattlemen’s Association, beginning in the coming year. Sarah has been a member of the Oregon Cattlemen’s Association for many years, and has been very active with the Oregon CattleWomen as Vice President and Legislative Committee Chair. She is excited to use her Oregon water resources knowledge to support and defend the Oregon Cattlemen’s Association’s water interests in the years to come.

Sarah’s new position was announced earlier this week when she presented at the Oregon Cattlemen’s Association’s Mid-Year Conference in Canyonville, Oregon. Sarah provided an update on the Klamath River Basin Adjudication and conjunctive surface water/groundwater management in the Klamath Basin. Some of the other highlights from the conference included an update of Western Resources Legal Center’s recent victories by Executive Director Caroline Lobdell (Sarah is a former WRLC law clerk), and a trip to Melrose Vineyards (https://www.melrosevineyards.com/) with the Oregon Cattlewomen – beautiful location, friendly staff, and great food and wine!

As I attend hearings on the Diamond Valley Adjudication, I am continually reminded of the importance of historical research to show pre-code water use. While this has been a topic of blogs in the past, we cannot stress enough how spending the time now will only benefit you in the future. 

This is not an item to procrastinate on! One claimant mentioned he spent his time researching water use in the county records over the last few winters! Yes, it can take that long, so start now! 

In order to show this pre-code water use in an adjudication proceeding, information such as chain of title to the first possessory entry man is important. You may consider ordering the patent files from National Archives to obtain that information. Thoroughly review the pre-code tax records for your predecessor in interest to determine what they were being taxed on. This helps to establish proof of grazing if they were taxed on animals, establishes proof of irrigation if taxed on hay or crop production, etc.  Weaving this quilt to bring together all the historical facts is of utmost importance! 

While some of these adjudication proceedings might not occur for decades, it is important to complete this research now!  Find the records while they are easy to locate and you have the time to track them down!

For more information on the types of information that can support pre-code water rights, see our article previously posted titled How to Research Land & Water for Proof of Vested Nevada Water Right Claims.

Attorney Sarah Liljefelt presented at Halfmoon’s Water Laws and Regulations seminar on June 7^th on the topic of Oregon Groundwater, teaching a group of engineers about groundwater ownership, regulation, and acquisition of groundwater use rights in Oregon. This week, on June 28^th, Sarah will present at the Oregon State Bar Environmental & Natural Resources Section’s “brownbag” continuing legal education seminar on the topic of groundwater regulation in the Klamath Basin in Oregon. Her co-presenter is Lisa Brown of WaterWatch, who will speak about groundwater in Harney County. If you are interested in attending, please visit the Section’s Events page or Schroeder Law Offices’ Coming Events page for more information. Sarah’s presentation materials are available on the Section’s Events page.

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

Water use conditions in the Klamath Basin continue to worsen in 2018. On March 8, 2018, a water “call” was made in the Klamath Basin, and the Oregon Water Resources Department (“OWRD”) began the validation process for shutting off junior water users. Within the week, on March 13^th, Governor Kate Brown declared a drought in Klamath County, Oregon, the first drought declaration since 2015, coming much sooner than hoped or predicted.

In April, OWRD began regulating off water users in the Klamath Basin. On April 13, the Oregon Water Resources Commission approved temporary emergency rules granting a preference to water rights for human consumption and stock watering in Klamath County. The rules allow certain water users with water rights for human consumption and stock watering to continue using surface water for such uses despite OWRD’s regulation off of water use rights. Exempt uses of groundwater, including domestic and stock uses, may also continue despite OWRD’s regulation. The Commission passed similar temporary rules granting the same preferences during the last drought period.

Also in April, Klamath Project water users found themselves unable to begin irrigating due to a federal court injunction. The Hoopa Valley and Yurok Tribes in northern California previously brought suit against the Bureau of Reclamation and National Marine Fisheries Service in federal court, alleging mismanagement of the Klamath River below the four major dams lead to an outbreak of C. shasta, a parasite that infects juvenile Coho salmon. The court entered an injunction requiring 50,000 acre feet of water stored in Upper Klamath Lake to flush and dilute the parasite until most of the salmon have migrated to the ocean, usually occurring after the beginning of June. Irrigators and irrigation districts petitioned the court to lift the injunction, but the court declined to do so in 2018. For more information, see May 1 article from the Capital Press, Judge upholds Klamath River Injunction.

In May, the Klamath Irrigation District brought suit against OWRD, seeking to compel the agency to take exclusive charge of Upper Klamath Lake to distribute water according to the district’s water use rights determined by the agency in the Klamath Basin Adjudication. The district alleges that it disagrees with the Bureau of Reclamation and PacifiCorps as to the proper distribution of water, and those entities are releasing without valid water use rights, causing injury to the district and its patrons. 

Also in May, the Klamath Tribes filed suit in federal court in northern California against the Bureau of Reclamation, US Fish & Wildlife Service, and National Marine Fisheries Service, alleging violations of the Endangered Species Act and National Environmental Protection Act by failing to maintain appropriate elevations in Upper Klamath Lake. The Tribes seek declaration of the alleged violations, an injunction against further jeopardy and habitat modification, and for the agencies to reinitiate consultation resulting in a new biological opinion.

Finally, on April 27, 2018, the Klamath County Circuit Court issued a Case Management Order in the Klamath Adjudication, outlining a schedule for hearing the first substantive exceptions filed with the court since the judicial phase of the adjudication began in 2013. First the court will decide exceptions made against federally reserved water claims, excluding Tribal claims. Next, the court will decide exceptions against Walton and Klamath Termination Act claims. Third, the court will decide exceptions to Tribal claims. Numerous exceptions have been filed with the court, alleging OWRD awarded too much water to these claims, ignoring the pertinent legal standards for deciding these claims, to the detriment of other Klamath Basin water users. A decision on the first group of exceptions is not anticipated until 2019.

The Upper Klamath Basin Comprehensive Agreement was terminated on December 28, 2017. The agreement called for retirement of irrigation rights to increase stream flows into Upper Klamath Lake by 30,000 acre feet per year. This “retirement” (or cancellation) of water use rights, which was negotiated largely in the absence of upper basin irrigators, was viewed unfavorably by many of the affected irrigators, and was ultimately not funded by Congress. Discussions about alternative agreements continue to this date.

Overall, the return of drought conditions, coupled with fish disease and five years of merely procedural rulings in the Klamath Basin Adjudication, have left water users in the Klamath Basin in serious trouble.

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

The state of Nevada began regulating water use through the enactment of the water code in 1905.  Under the 1905 water code, statutory regulation for surface water began.  Later, in 1913 statutes came into play for artesian groundwater rights of use, and in 1939 we see statutes for percolating groundwater rights use. Water rights established prior to those dates are known as “vested water rights” or “vested water claims”.

In order to determine the extent and validity to a vested water use claim, the Nevada State Engineer follows an adjudication procedure outlined in Nevada Revised Statutes wherein the State Engineer issues a Notice of Order for Taking Proofs. This Notice alerts the public that the office of the State Engineer is preparing to review and analyze all claims to vested water rights and determine the validity and extent of each claim. The State Engineer provides a deadline for claimants to file their proofs of appropriation for that basin that is being adjudicated. The State Engineer then carefully considers each claim, with its supporting documentation, and makes a determination of each and every claim to a vested right in that basin.

Historically, there were no deadlines to file a proof of appropriation to claim a vested right to use water until the State Engineer began adjudicating specific basins. While many groundwater basins and surface water systems are adjudicated, there are many that have yet to undergo the process.  Prior to the 79^th Nevada Legislative Session, it was not until the State Engineer issued a Notice of Order for Taking Proofs to Determine Water Rights wherein a deadline to file Proofs of Appropriation was set. Senate Bill 270 has amended the statute to set a deadline of December 31, 2027 for any and all proofs of appropriation to be filed in any basin, whether or not an adjudication has been ordered for that basin. The newly revised statute reads “If a claimant fails to file such proof on or before December 31, 2027, the claim shall be deemed to be abandoned.” To read the full text, please visit https://www.leg.state.nv.us/Session/79th2017/Bills/SB/SB270_EN.pdf.

The State Engineer will be required to provide notice of the new deadline in the Newspaper of every groundwater basin in the state and online, and the deadline is still 10 years away. However, after this date no proofs of appropriation will be accepted by the State Engineer, with the only exception of Federal agencies claiming reserved rights. Anyone who believes they may have a claim to a vested right will need to keep this very important deadline in mind. For more information on what is required to support your proof of appropriation, go to https://www.leg.state.nv.us/NRS/NRS-533.html#NRS533Sec115 or http://www.water-law.com/water-rights-articles/nevada-water-rights/.

The State Engineer held informational meetings on July 17 through July 20, 2017 regarding its Preliminary Draft Humboldt River Conjunctive Management Regulations. The State Engineer is proceeding through administrative rulemaking process to define how Humboldt River Decreed water rights and groundwater rights will be conjunctively managed. If you were unable to attend the informational meetings, you can view the power point used during these meetings by visiting http://water.nv.gov/HumboldtRiver/Humboldt_regs_Small_Business_July_2017.pdf.

As a brief history, the Humboldt River was adjudicated in the 1930’s and large scale groundwater development began approximately 20 years later. Existing studies support the assertion that groundwater pumping is depleting surface river flows. The groundwater basins surrounding the Humboldt River are over-appropriated as the amount of water withdrawals allotted by water rights exceed the perennial yield. As an alternative to curtailing water, the State Engineer is considering Conjunctive Management Regulations. The main objectives of these regulations are to maximize beneficial use of our limited water supply, allow for continued and uninterrupted groundwater use and provide mitigation to senior Decreed water right holders for conflicts of their delivery of surface water. These regulations aim to allow for replacement of injurious depletions to the senior surface right holders, and if replacement water is not available, to require groundwater users to participate in a basin-wide mitigation plan providing mitigation by financial compensation.

At this stage in the rule making process, the State Engineer is attempting to determine if the regulations are likely to place an economic burden on small businesses, and if so, to determine the extent of the impact. Small businesses can submit economic impact statements to the State Engineer for consideration. There are no current deadlines imposed by NDWR for submission of small business impact statements or comments to statements, however, it is likely that we will see some movement within as little as 30 days.

Oregon Legislative Updates

A drought task force, authorized in 2016 by the Oregon Legislature, submitted their year-end report[1] to the Governor in November discussing how Oregon can better anticipate and adapt to increasingly common years of drought. Specifically, the report encourages the State to review the drought declaration process to better assist with drought response, to help communities with preparedness and resiliency, and to evaluate management options for stored water to better address instream and out-of-stream needs.

The Oregon Water Resources Department (“OWRD”) also extended reservations of water for future economic development in the Hood Basin, the Grande Ronde Basin, the Burnt River Basin, the Malheur Basin, and the Owyhee River Basin.         

Governor’s Office Updates

The Governor’s Office’s strategic initiatives for 2017 emphasize investing in water infrastructure to improve resilience and growth. Despite the decreased allocation of money to OWRD from the general fund budget, OWRD anticipates continued investment for development of instream and out-of-stream water supplies and for capital investment in sewage and water systems.

Cannabis Legalization on Water Usage

The passage of Measure 91 in Oregon has led to an increase in cannabis cultivation, part of which requires individuals who were growing cannabis before Measure 91, as well as new cannabis growers, to apply for water rights to irrigate their crop. However, only state water rights, not federal water rights, such as those under a Bureau of Reclamation contract, may be applied to irrigate cannabis. Federal water rights may be used to grow cannabis if the water is delivered from an irrigation district under a Bureau of Reclamation contract and is commingled with water under a state water right. An additional challenge is that water rights to grow cannabis will likely require a year-round water right and not simply a traditional irrigation season water right.

Upcoming Adjudications

With the Klamath Basin adjudication largely completed, OWRD announced it plans to begin adjudication of the Deer Creek Basin east of Roseburg in late 2016. OWRD will also begin two to four small adjudications in the South Coast Basin in late 2016 or early 2017.

Water Rights Auditing in Real Estate Transactions

The first day of the seminar wrapped up with a panel emphasizing the importance of determining the validity and extent of any water right that is part of a real estate transaction. The panel encouraged anyone involved in a transaction that includes water rights to request the files for any associated water rights from the applicable state department, such as OWRD or the Washington State Department of Ecology. This type of analysis is offered by Schroeder Law Offices at a flat fee. We encourage our clients to contact us for this service before any issue arises!

[1] https://www.oregon.gov/owrd/docs/HB4113/Draft_Final_Task_Force_Report_11_1_2016_Final.pdf.

Congress has adjourned for the year without passing a bill to authorize and fund the Klamath Agreements. The Klamath Basin agreements include: the Klamath Hydroelectric Settlement Agreement (“KHSA”), Klamath Basin Restoration Agreement (“KBRA”) and Upper Klamath Basin Comprehensive Agreement (“UKBCA”) that together lay out a comprehensive scheme for changes in management along the entire reach of the Klamath River. After years of litigation and negotiation, certain stakeholder groups came together to craft the trio of agreements. However, the agreements did not sit well with everyone. Particularly those in Klamath County and their California neighbors due primarily to the highly controversial dam removal provisions and drying up thousands of acres of farmland. For these among other reasons, the agreements, which required authorizing legislation and funding from Congress, failed to gain traction.

Senator Ron Wyden [D-OR] attempted multiple times to pass the necessary legislation to authorize the agreements. The latest version, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, has been stalled in committee since last January (2015). In an effort to move forward, on December 3, 2015, Representative Greg Walden [R-OR] released a draft bill intended to “help provide water and power certainty for agriculture and boost economic development and job creation for rural communities and tribes through a transfer of federal timber lands.” Walden’s draft bill omitted dam removal and authorized transferring up to 100,000 acres each of National Forest land to Klamath County, OR, and Siskiyou County, CA. These issues quickly became non-starters for the Tribes who held the “ears” of Senators Wyden and Merkley.

The KHSA is set to expire on January 1, 2016. While the parties can vote to extend it, some signatories are beginning to question if the agreements provide workable solutions for the Klamath basin. The Yurok Tribe clearly communicated its intent to terminate the agreement. Similarly, the Klamath Tribal Council has issued a dispute notice. Additionally, PacifiCorp, the company that owns the dams, has changed course and now indicates it will pursue re-licensing of the dams. Thus, many parties that initially favored the agreements are beginning to show their discontent. This may have been another reason authorizing legislation had difficulty making its ways through Congress.

In March of 2015, The Oregon Water Resources Department passed administrative rules, Oregon Administrative Rules 690-025, to help govern the region in accordance with the Upper Klamath Basin Comprehensive Agreement in anticipation of the agreement being authorized by Congress. The rules implement sections of the agreement to address control of well use in off-project areas when that use affects surface water supplies in the basin. However, these rules will no longer be effective once the agreement terminates, and groundwater regulation in the off-project area will again be in accordance with OAR 690-009.

As such, for better or worse, it appears the agreements will dissolve as portions of the agreements expire in the New Year. Thus, 2016 will likely involve the parties initiating new negotiations to resolve the critical water usage issues in the Klamath basin, potentially leading them back to court to resolve exceptions filed in the Klamath Basin Adjudication as that process is slated to continue through the coming year or years.

Photo: Rain – Klamath Basin Wildlife Refuge by Michael “Moik” McCllough

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

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

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

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

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

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

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

North Idaho Adjudication Ramping Up

With Idaho set to wrap up a 27-year water-rights adjudication of unprecedented scale nationwide, water administrators are gradually shifting their focus to the state’s northern basins and a procedure expected to take only a fraction of the time as the Snake River Basin Adjudication (SRBA).  The SRBA — involving all Idaho-situated tributaries of the Snake River, which extend over 90 percent of the state — will become the nation’s largest general adjudication brought to completion.  In comparison, the North Idaho Adjudication (NIA) will encompass parts of only six counties and stretches just 180 miles south of the Canadian border.

Three Phases

In actuality, the North Idaho Adjudication has been under way since 2008, and the first of its three phases, covering the Coeur d’Alene-Spokane River Basins, has predominantly taken shape. Nearly 11,500 claims have been filed, and director’s reports for all five basins are anticipated by mid-2016. The second phase of the NIA, involving the Palouse River Basin, is expected to commence next summer, while the third, for the Clark Fork-Pend Oreille River Basins, is projected to start before 2020. The state’s Adjudication Court anticipates it will see claims filed for up to 30,000 water rights, or roughly one-fifth the number it processed during the SRBA.

While the NIA’s scope promises a far more expedited process than did the SRBA, so does the experience gained in the prior adjudication. The Fifth Judicial District Court in Twin Falls will retain jurisdiction — although the staff will travel north on occasion, a majority of the court’s business will be conducted by way of video or audio teleconferencing — and the Idaho Department of Water Resources (IDWR) has become adept at handling whatever issues arise, whether they require extensive site investigations or guidance on basic procedural matters.

Water Rights Holders’ Responsibilities

Holders of water rights predating the NIA’s November 12, 2008 commencement must participate or the right will be extinguished once a final decree is entered. Rights that fit the statutory definition of domestic or stockwater use are deferrable, but IDWR advises such users to file claims as well, considering the insignificant cost ($25) as compared to the benefit of having a decreed right.

This may prove vital for users in Kootenai County — where Coeur d’Alene is located — if the state of Washington establishes proposed in-stream flows for the Spokane River in stretches west of the Idaho state line. Although Washington has no administrative authority over water users in Idaho, observers anticipate conflicting interstate demands will ultimately lead to litigation and an interstate compact.The priority date for the involved rights may very well determine which State (and its users) prevails.

For more information, go to http://www.idwr.idaho.gov/WaterManagement/NorthIdAdju/default.htm

By Laura Schroeder and Lynn Steyaert

The commencement hearing for the Northern Idaho Adjudication (NIA) is set for August 28, 2008. The State of Idaho has petitioned the court to approve a process for deferring the adjudication of small domestic and stock water use rights.  If approved, small domestic and stock water users may elect to defer filing a Notice of Claim and postpone the adjudication process until a later time.

To qualify for the deferral, the claimant’s uses are limited to those defined as domestic uses pursuant to Idaho Code  §42-111 and stockwater uses pursuant to Idaho Code §42-1401A(11).  Idaho Code §§ 42-111 and 42-1401(A)(11) can be found at the following links, respectively:

http://www3.state.id.us/cgi-bin/newidst?sctid=420010011.K http://www3.state.id.us/cgi-bin/newidst?sctid=420140001A.K 

Despite the availability of the deferral, the Department strongly recommends that such qualified users file a Notice of Claim in the adjudication.  If a user fails to file, and it is later determined that his/her use exceeds the statutory limitations, any claim to water will be limited to only that portion of his/her use that is within the statutorily defined limits.  Additionally, if a water user elects to defer filing a claim, but later needs to seek a change in the place of diversion, place of use, or nature of use or desires to legally settle ownership of his/her rights or seek confirmation of those rights for enforcement purposes, he/she will be required to file a claim prior to proceeding with these actions.  Â

For more information visit the Department’s adjudication web page at:

http://www.idwr.idaho.gov/water/North_Id_Adju/

Focusing on the soon to be launched adjudication in north Idaho, water and real estate lawyers gathered in Coeur d”Alene, Idaho May 15 and 16, 2008.

As in other McCarran adjudications in which we are involved, issues expected to be included will be federal including Indian, Forest Service and Reclamation issues; instream including hydro, water quality, and endangered species issues; and state issues including municipal, water district, and individual claims. It is likely that in all adjudications, the best water attorneys will be picked up early and conflicted out quickly. Speaker Steven C. Moore, a staff attorney for the Native American Rights Fund out of Boulder, Colorado, quoted Professor Drew Kershen at the University of Oklahoma College of Law stating “A good water rights case can be willed to your kids.”

We suggest that our clients and potential clients contact us early to prepare and review potential claims BEFORE the claim is filed.