The Nevada Division of Environmental Protection (NDEP) is proposing new regulations on water quality.  NDEP announced an official regulation workshop on August 31, 2022 to solicit public comment and input on Legislative Counsel Bureau (LCB) Draft of Proposed Regulation R113-22.

R113-22 sets forth a process for the State Environmental Commission to classify a surface water of the State or a segment thereof as a water of extraordinary ecological, aesthetic, or recreational value.  The Commission then establishes provisions for antidegradation protections to these specially classified surface waters. The draft regulations can be viewed here.

The Workshop will be August 31, 2022 at 10:00 AM to 1:00 PM Pacific Standard Time. More information and the agenda can be viewed on NDEP’s Workshop Notice.

Due to technical difficulties related to the workshop online registration form, attendees may join by:

1. Going to the following link: https://www.microsoft.com/en-us/microsoft-teams/join-a-meeting?rtc=1
2. Entering the Meeting ID:  216 866 144 018
3. Entering the Passcode:  nqZR8P

NDEP will also attempt to accommodate anyone wishing to participate in person at:

Bryan Building
901 South Steward Street
Humboldt Conference Room, 3^rd Floor
Carson City, NV

Interested in more water quality activities?  Check out our blog on NDEP’s last Integrated Water Quality Report for 2020-2022 and stay tuned for the next Integrated Water Quality Report Comment Period in 2023. 

Hopefully you didn’t miss the first annual Nevada Agricultural Fair on July 7 through 10, 2022!  Schroeder Law Offices staff didn’t miss it, but if you did, here is a recap:       

Thursday, July 7:  Youth participants checked in livestock including market and breeder goats, sheep, pigs, cattle, and poultry.  Schroeder Law Offices staff assisted with large animal check in and assigning stalls and ear tags.  Then, SLO helped with poultry check in by performing health checks on show and market chickens.

Thursday Night kicked off the three-day Mayhemalition Derby with lawn mower races. Youth agriculture participants attended the derby events for free and were recruited to throw water balloons at the drivers!

Friday, July 8:  The livestock show began with youth showmanship classes.  Youth are judged on how well they show their livestock and general knowledge of the species.  Youth could also participate in Hippology and Horse Judging competitions on Friday.

After the livestock shows, SLO staff hosted a wine wall at the Mayhemalition Demolition Derby to raise funds for next year’s Youth awards.

Saturday, July 9:  Saturday hosted the busiest show day with market and breeder classes. In market and breeder classes, youth are judged by the quality of the animal they raised for the show. Livestock is judged by its breed standard with awards going to best of breed, best of class, and best of show. SLO staff helped run the poultry show, including market, breeder, and showmanship poultry classes. SLO staff also supported the youth market auction by bidding on market chickens.  We even won a couple pens!

Sunday, July 10:  The 2022 Fair wrapped up on Sunday with the Horse Show.  The Horse Show was open to youth and adults, with participant ages ranging from one-and-a-half years to some individuals enjoying retirement.

The first annual Nevada Agriculture Fair proved to be a busy weekend for SLO staff.  However, we had fun, got to connect with some of our clients, and supported local youth agriculture. Keep an eye out for details on next year’s fair at https://www.nvagfair.com/. We will be!

Laura A. Schroeder is the founding partner of Schroeder Law Offices. Long respected in the water rights arena, Laura has generously shared her valuable experiences and provided some great advice. A few questions we asked Laura:

What motivated you to practice water law and start Schroeder Law Offices?

I used to work on a farm and did work related to irrigation. From that experience, I learned the importance of water. Also, my father was a lawyer and I got Influenced by him and became a lawyer. In my early practice years, I worked in a number of law firms and practiced in different areas of law. I then realized that my passion was in water law, so I started my practice.

What is your go-to productivity trick? How do you stay motivated?

The most important thing is that I really enjoy what I do, and I like the people I work with, so I always get motivated when I work. Also, I have the habit of mediation. Meditation helps me center myself.

What do you consider the most important thing about being a good lawyer?

I find the most important thing is to be proud of your profession. I dislike jokes about lawyers because that is disrespectful.

Where can I find you on the weekend?

I love spending time with my family! Last weekend I helped with cleaning at my son’s place, and the week before that I attended my niece’s wedding. I always consider family the most important thing. When I have free time, I also help with writing family genealogy.

What is one thing you like the most about working at Schroeder Law Office?

I like it because lawyering is an intellectually challenging job. In the legal profession, the challenge you need to face constantly changes, and you need to develop new strategies based on the new challenge. Also, at Schroeder Law Offices, everyone has different perspectives on solving problems. I enjoy discussing and developing new strategies with everyone.

Do you have some advice that you can give to young lawyers and law students who are interested in water law?

Beside law school, it is important to have real-life practice experiences as much as possible, because in the legal profession you need to work with people. When I started to practice, I did clerkship with the government, worked with my father, and worked in private law firms. I learned from that experience that working with different kinds of people and lawyers is essential, because it offers you an opportunity to learn from the people you interact with. If you just focus on just one thing, you will definitely miss out on other things.

Schroeder Law Offices Returns to the Nevada Junior Livestock Show!

On May 7, 2022, Schroeder Law Offices attended the Nevada Junior Livestock Show in Reno, Nevada.  The three-day show was at the Reno-Sparks Livestock Event Center. The show is a place for the National FFA Organization, 4-H, youth Grange, and independent youth members to exhibit their livestock projects before the public. They develop skills and practices related to livestock production.  These youth organizations are a popular part of Nevada’s agricultural community. They often are an important family activity for our agricultural clients.

Animals at the show included turkeys, pigs, lambs, goats, and steers.  Livestock were judged for quality and breed standards. Youths also competed in showmanship events. These events judged their skills and knowledge in animal handling and rearing.  The show ended with the annual market auction.  Youth are encouraged to contact local businesses and individuals. Then they can attend the auction and bid on livestock. The Western Nevada Grange invited Schroeder to bid on broad breasted white turkeys raised by the Club’s youth members. 

Winning at the Auction

We loved seeing familiar faces in the crowd and attending the Buyer’s dinner. AND we won the bid for Western Nevada Grange Member Sabella Thompson’s turkey! This was Sabella’s first year showing and selling an auction animal for Grange. Sabella sent Schroeder staff home with homemade cookies and her own artwork as a thank you for being her buyer.  The cookies didn’t last long, but Sabella’s art is proudly displayed in the office.   Schroeder Law Office staff also bid on other livestock to support additional local youth in their livestock rearing endeavors.

The Nevada Division of Environmental Protection (NDEP) seeks public comments to its Draft Water Quality Integrated report. The public comment period for Nevada’s 2020-2022 Draft Water Quality Integrated Report closes on December 31, 2021. On November 22, 2021, NDEP published its Public Notice, inviting comment on the Draft Nevada 2020-2022 Water Quality Integrated Report. The report was prepared in accordance with the Clean Water Act, §§ 303(d), 305(b), and 314. The Clean Water Act requires NDEP to conduct a comprehensive analysis of water quality data associated with Nevada’s surface waters.

The report is a combination of the biennial reporting requirements under the Clean Water Act § 303 on impaired waters, and § 305 for an overall assessment of surface water quality within Nevada and a description of how current conditions provide for the protection of beneficial uses of the state’s waters.  The 2020 and 2022 assessment periods were combined into one report, as is the standard practice in Nevada. Thus, the report covers a data collection period of over seven-years. 

Data on Nevada’s rivers, streams, lakes and reservoirs was collected from October 1, 2013 through September 30, 2020 and was evaluated to determine if State water quality standards are being met and beneficial uses are supported. These periodic reports are used by the public, other entities, and NDEP for water quality management planning purposes.

Impaired Water Reporting Requirements

Under its Clean Water Act § 303 reporting requirements, NDEP has produced a list of waters where current pollution control technologies alone cannot meet the water quality standards set for that water body. The list also contains water bodies that may soon become impaired. Impaired waters are prioritized base on the severity of the pollution and the designated use of the water body (e.g. fish propagation or recreation).  NDEP will also develop total maximum daily loads or TMDLs of pollutants in the impaired water bodies. These TMDLs designate the maximum concentration of each pollutant allowed in the water body and will help guide NDEP water resource management decision in an attempt to improve impaired waters.

Public Comment

The Draft Nevada 2020-2021 Water Quality Integrated Report is available at:

https://ndep.nv.gov/water/rivers-streams-lakes/water-quality-standards/303d-305b-water-quality-integrated-report

Links to the 2016-2018 Water Quality Integrated Report and examples of its public comments can also be found at the link above.

The public comment period for the Draft Nevada 2020-2021 Water Quality Integrated Report closes on December 31, 2021 at 5:00 PM. Any comments should be submitted by mail or email to:

Dave Simpson
Nevada Division of Environmental Protection
Bureau of Water Quality Planning 
901 S. Stewart St.
Carson City, NV 89701
dsimpson@ndep.nv.gov

What’s Next?

Once the report is submitted, Environmental Protection Agency (EPA) must notify NDEP of its approval or disapproval of the § 303 impaired waters list within thirty (30) days. If the list and associated TMDLs are approved, NDEP will incorporate them into its plan.  If they are disapproved, the burden shifts to EPA to identify impaired waters and determine the TMDLs necessary to implement the water quality standards applicable to each water. This must be completed by EPA in thirty days.  After such identification, if necessary, NDEP will then incorporate EPA’s § 303 list into its water quality plan.

The next biennial report will be drafted in 2023 with an opportunity to submit public comment on the draft report prior to submission. Watch for our blog about it here.

(Photo Credit: https://www.visitlaughlin.com/listing/colorado-river/36922/)

On May 8, 2021, Schroeder Law Offices supported local youth by attending the Nevada Junior Livestock Show in Reno, Nevada.  Schroeder was invited by Carson City resident, Conner Simerson to bid on his broad breasted white turkey.  The three-day show took place at the Reno-Sparks Livestock Event Center. The purpose of the show is to provide an opportunity for the National FFA Organization, 4-H, youth Grange, and independent youth members to exhibit their livestock projects before the public and develop skills and practices related to livestock production.  These youth organizations are a popular part of Nevada’s agricultural community and often are an important family affair for our agricultural clients.

Animals at the show included turkeys, pigs, lambs, goats, and steers.  Livestock were judged for quality and breed standards. Youths also competed in showmanship events where their skills and knowledge in animal handling and rearing were judged.  The show ended with the annual market auction.  Youth are encouraged to contact local businesses and individuals to attend the auction and bid on their livestock.  Livestock are then processed by third parties and provided to bid winners to fill their freezers.

In addition to seeing a few familiar faces in the crowd and attending the Buyer’s dinner, we won the bid for Simerson’s turkey!  Schroeder Law Office staff were also able bid on other livestock and support additional local youth in their livestock rearing endeavors. 

The Carson Water Subconservancy District has launched their second video in their, I am Carson River Watershed Campaign series, titled “Water Connects Us All” click the link below to watch:

http://iamcarsonriver.org/

For those of us in northern Nevada, the Carson River plays an important part in our communities by supporting our watershed’s environment, economy, and quality of life.  Regardless of where we live, we can all do our part in our daily lives to protect the watersheds around us. 

Here are some easy ways to help your community today:

• Recycle motor oil
• Using, storing, and disposing of chemical oils
• Inspecting and maintaining septic systems
• Cleaning up after pets
• Keep fertilizers, paint products, etc. out of the water supply

In the 2021 Nevada legislative session the Assembly considers nine water related bills and the State considers 15 water related bills total.  The 2021 legislative session began on February 1, 2021 and will conclude on June 1, 2021.  The Assembly bills are in various stages of consideration as the session approaches its conclusion. However, the clock has already run for certain bills.  Under Joint Standing Rule 14.3.1 the final standing committee to which a bill or joint resolution is referred in its house of origin may only take action on the bill or joint resolution on or before the 68^th calendar day of the legislative session. Under Joint Standing Rule 14.6, certain exemptions apply for re-referral of a bill to the Senate Committee on Finance or the Assembly Committee on Ways and Means.  The 68^th day of the Session was April 9, 2021.

Other deadlines apply pursuant to Joint Standing Rule 14.3. These include:

1. Final action may only be taken by the House of origin on or before the 79^th calendar day of the legislative session (April 20, 2021);
2. Final standing committee to which a bill is referred in the second House may only take action until the 103^rd day of the legislative session (May 14, 2021) unless referred to the Senate Committee on Finance or the Assembly Committee on Ways and Means; and
3. Final action on the bill may only be taken by the second House on or before the 110^th day of the legislative session (May 21, 2021).

As a result, some of the bills are dead in the water and will progress no further.  Summaries of pre-filed Assembly Bills 5, 6, and 16 can be found in our earlier blog post.  The remaining water related Assembly bills are summarized below.

Assembly Bill 146

Assembly Bill 146 proposes various changes to Nevada Revised Statute (“NRS”), chapter 445A regarding water pollution, including:

1. Requiring the State Department of Conservation and Natural Resources to establish a program regulating water pollution resulting from diffuse sources;
2. Establishing requirements for applicants for certain permits relating to water pollution to post a bond or other surety;
3. Revising the requirements for regulations adopted by the State Environmental Commission relating to water pollution, including the notice requirement relating to adoption of these regulations;
4. Revising provision related to the Director of the Department of Conservation and Natural Resources’ control of water pollution, including control of diffuse sources of water pollution;
5. Revising requirements for permits to discharge pollutants or inject fluids through a well; and
6. Requiring consultation and notification to Indian tribes of certain actions related to water pollution.

Assembly Bill 146 has not passed the Assembly Committee of Natural Resources but is exempt from Standing Rule 14.3.1.

Assembly Bill 354

Assembly Bill 354 is the fruition of one of the bill drafts discussed in this earlier blog.  This bill authorizes the creation and sets forth the authority and duties of water banks.  It additionally requires the State Engineer to submit a biennial report to the legislature related to water banks and provides penalties for violations of its provisions.

Further action on Assembly Bill 354 is not allowed, pursuant to Joint Standing Rule 14.3.1.

Assembly Bill 356

Assembly Bill 356 is the fruition of the other bill draft discussed in this earlier blog.  This bill creates and sets forth the requirements for a voluntary water conservation program and creates an account for the Nevada Division of Water Resources to purchase and retire water rights in targeted basins.

Assembly Bill 356 passed the Assembly Committee of Natural Resources and is being considered by the Assembly Committee of Ways and Means.

Assembly Concurrent Resolution 4

Assembly Concurrent Resolution 4 does not directly affect water resources or water quality.  However, it does direct the Legislative Commission to appoint a committee to conduct an interim study on general improvement districts (“GIDs”).  GID’s provide certain services and facilities to residents of the district, often times including water services.  Assembly Concurrent Resolution 4 will create a committee to study GIDs to: (1) improve accountability and effectiveness; (2) identify areas of continuing abuse and potential abuse in the creation, financing, operation, and oversight of GIDs; (3) consider modifying requirements related to GIDs; and (4) recommend possible legislative solutions to any continuing abuses.

Assembly Concurrent Resolution 4 was referred to the Committee on Legislative Operations and Elections.

Assembly Joint Resolution 2

Assembly Joint Resolution 2 recognizes that that health of forests, rangelands, and soils are inextricably linked to the quantity and quality of water.  It further expresses and supports the Federal Government, state agencies, conservation districts, and local governments to work collaboratively with water purveyors, land managers, private land owners, land users, and other stakeholders to identify watersheds that can be improved by better forest, rangeland, and soil health measures and to identify or establish voluntary programs within the limits of the legislative appropriations, and other available money to address the health of forests, rangelands, and soil.

Assembly Joint Resolution 2 passed the Assembly and is currently being considered by the Senate Committee on Natural Resources.

Assembly Joint Resolution 3

Assembly Joint Resolution 3 urgers various actions relating to the protection and conservation of land and water.  In the resolution, the Legislature expresses its support for the goal of protecting 30 percent of the lands and water in Nevada by 2030.  The resolution urges:

1. State and local agencies to honor tribal jurisdictions and the rights of indigenous tribes in efforts to protect land and water;
2. Fair treatments of all races in efforts to protect land and water;
3. Private landowners to participate in voluntary programs to protect wildlife habitat and increase carbon sequestration; and
4. Nevada Congressional Delegation to identify opportunities for federal legislation and regulatory action to expand protection and conservation measures on public land in Nevada.

Assembly Joint Resolution 3 passed the Assembly and is currently before the Senate Committee on Natural Resources.

Interested in more legislative updates?  Keep an eye on our blog for a summary of the 2021 water related Senate bills.

(Image Credit: https://mynews4.com/news/local/explaining-the-mining-gaming-and-sales-tax-proposals-of-the-2021-nevada-legislature; https://www.reviewjournal.com/news/politics-and-government/nevada/district-map-in-nevada-assembly-skews-blue-study-finds/)

The discussion of a specialized water judiciary is ramping up as Nevada considers creating water courts in both the legislative and judicial branches.

I. Proposed Legislation

On November 18, 2020, Senate Joint Resolution No. 1, commonly known as SJR1 was pre-filed for the 2021 legislative session. SJR1 was originally proposed by the Nevada Division of Water Resources, Office of the State Engineer (“Engineer”).  Then, the Nevada Legislative Counsel Bureau drafted the bill’s text for prefiling. SJR1 proposes to amend the Nevada Constitution to provide that the Nevada Court of Appeals has original jurisdiction over certain cases relating to water.  These cases contemplated in the bill include civil cases arising from a final order or decision of the State Engineer.  Currently, the original jurisdiction of these cases falls with the district courts.

The actual amendments to sections 4 and 6 of the Nevada Constitution are brief. However, under them, the appeals of complex and technical State Engineer decisions would bypass the district courts and end up directly in front of the Court of Appeals. Water users and legal observers alike raised many concerns about SJR1 even before lawmakers arrived in Carson City on February 1, 2021 for the start of the legislative session.  For example, water users in Battle Mountain who dispute State Engineer rulings would be required to travel hundreds of miles to Las Vegas or Carson City to appeal their case before the Court of Appeals.  A common theme of concern was the limited access to justice that would result from this reorganization.

Acting State Engineer Adam Sullivan expressed agreements with these concerns.  The State Engineer’s office ultimately decided not to pursue SJR1 as written.

However, the State Engineer also expressed the importance of the premise originally contemplated in SJR1.  The idea behind the bill was to create a small group of judges that, over time, would hear many water cases and would develop a subject-area expertise in water law.  It is no secret that water law is a science heavy and technical area of law. Many attorneys who practice water law specialize in it for this reason.  Other states also recognize this type of specialization in the judiciary.  Colorado for example created its Water Courts in 1969, appointing a water judge for each of its seven water divisions.  These judges have specialized jurisdiction in the determination of water rights, use and administration of water, and all other water matters within their division.

II. Judicial Petition

As the State Engineer moves away from SJR1, Supreme Court Chief Justice Hardesty moves forward with a petition to empanel a commission that will examine the creation of specialty water courts in Nevada.  The goal of the petition is to bring more water law expertise to the judiciary.  The petition, identified as ADKT 576,would study improvement of education, training, specialization, timeliness, and efficiency of Nevada’s district courts in the judicial review of water cases.  It would further consider the authority of the Chief Justice of the Supreme Court to designate trained district judges to serve on water cases.  The petition suggests the inclusion of the follow representatives on the commission:

1. 1. 1. Nevada Department of Conservation and Natural Resources/State Engineer;
      2. Water Rights Engineers/Hydrologists;
      3. Water Rights Attorneys;
      4. Urban Municipal Water Purveyors;
      5. Rural Water Interests;
      6. Agriculture;
      7. Irrigation Districts;
      8. Mining;
      9. Environmental Organizations;
      10. District Court Judges;
      11. Rural Nevada Communities; and
      12. Urban Nevada Communities.

III. Public Hearing

The Supreme Court held a public hearing on ADKT 576 on March 3, 2021. During the hearing, Justice Hardesty identified water as a “challenging, complexing, and consistently disagreed upon” area of the law.  The Court took comment on the petition during the hearing.  While the representation at the hearing was diverse, there was a common consensus:  general support for the creation of the commission and a new way to judicially review State Engineer decisions.

Deputy Administrator Micheline Fairbank and Acting State Engineer Adam Sullivan represented the State Engineer’s Office. “We believe an understanding of the law and precedent is not only required but important to the ability and desire to make sense of the technical scientific data,” Fairbank commented.  Sullivan echoed the sentinent and expanded, stating that the commission needs diverse and broad representation of all Nevadans, including Tribal Nations. The State Engineer also requested the Court expand the scope of the water court’s jurisdiction to adjudication proceedings.

Representatives for the Truckee Meadows Water Authority, water law attorneys, and environmental groups also generally supported the petition.

The Court took no action on the proposal during the March 3, 2021 hearing.  You cna track the status of the petition here.

Interested in more legislative water law updates?  Check out our blog on AB 5, AB 6, and AB 15 and keep an eye on blog postings for future updates.

On February 20th and 21st, Schroeder Law Offices attended the Carson Valley “Eagles and Agriculture” weekend.  The Carson Valley Chamber of Commerce and Agriculture Extension office hosted the event. It occurs annually when migratory eagles traverse the Carson Valley on their way back to Northern breeding grounds.  The weekend is full of tours and workshops with two primary focuses: eagles and agriculture.  This year’s event took on new Covid safety measures.  Attendees met and caravanned to tour locations in individual vehicles rather than riding in coach buses.  Attendees also “masked up” during tours. The event was cancelled and rescheduled multiple times before the date was finally set on February 19th through 21st.  However, the organizers and volunteers succeeded in keeping the fun and informative event on the calendar. 

Workshops and tours during the 2021 event included a wetland tour, Falconer’s Dinner with live raptors, Eagles and Ranch tour, an “owl prowl,” and a guided hike at the Bentley Heritage Trail.  Tour locations ranged from public trails, local parks, and private ranches.  Attendees of the owl prowl saw Bald Eagles, Red Tailed Hawks, and a mated pair of Barn Owls at the Danberg Ranch.  However, the mated Barn Owls and Great Horned Owls at the Herbig Ranch proved elusive.  The Herbig Ranch owners reported the owls were back to their usual and robust activity the day after the tours ceased. 

The weekend’s second focus, agriculture in the Carson Valley, was prevalent during all tours.  The Danberg Ranch was a destination for multiple tours.  The Ranch is a locally run historical park and is one of the state’s first ranches.  The Danberg family settled and built the ranch in the early 19^th century.  The property includes the ranch house, carriage house, slaughterhouse, and laundry outbuilding, among other historic structures. 

The Herbig Ranch was also open to tours. This is another historic ranch purchased by the Herbig family when they immigrated to the United States during the World War II era.  The family still owns the ranch.  While attendees missed sighting the elusive owl pairs on the property, the visit included a guided tour of historic structures and a description of how the ranch is still operated today. 

The last event of the weekend was a guided hike on the Bentley Heritage Trail along the Carson River.  The hike included lessons in the hydrology and ecology of the river; history of the valley and pony express; and development of Genoa, Nevada, the first settlement in the state.

The well-rounded weekend ended with the annual call for submissions to its photography contest.  Many attendees of the weekend are amateur or semi-professional photographers.  The winners of the competition as well as the gallery of submitted images can be seen here. 

Anyone interested in being on the mailing list for the 2021 Eagles and Agriculture event can find information here. 

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.

The Nevada Assembly Committee on Natural Resources (“Committee”) is considering a handful of water related bills in the upcoming 2021 legislative session. While we are continually receiving notice of new proposed bills, we wanted to provide a brief summary on the first few we reviewed.  Assembly Bills (“AB”) 5, 6, and 15 were prefiled for the 2021 legislative session on November 18, 2020. If passed the bills with effect procedures currently required for temporary change applications and judicial review of Nevada Division of Water Resources, Office of the State Engineer (“State Engineer”) decisions.  AB 16 also proposes reorganization of the Colorado River Commission.

Assembly Bill 5

AB 5 proposes various new provisions relating to judicial review of State Engineer orders and decisions. As drafted, Nevada Revised Statute (“NRS”) 533.450 allows a person aggrieved by a State Engineer action to seek judicial review in the nature of an appeal.  AB 5 limits circumstances under which a person can seek judicial review. Under AB 5 the State Engineer decision being reviewed must be (1) a formal order, ruling or decision that is a final decision in writing; and (2) must materially affect the person’s interest.  AB 5 also clarifies that the judicial review of State Engineer decisions shall apply civil appellate practices.

The progress and text of AB 5 can be viewed here.

Assembly Bill 6

AB 6 contains proposed revisions of the laws governing temporary change applications for appropriated water.  NRS 533.325 requires a water right holder wishing to make a temporary change to place of use, point of diversion, or manner of use of their water to file an application with the State Engineer.  NRS 533.345 requires the State Engineer to hold a hearing if the State Engineer determines that the temporary change may not be in the public interest or may impair existing right. AB 6 proposes that the hearing under NRS 533.345 be discretionary. This will allow the State Engineer to either hold a hearing or make a decision absent one.

The progress and text of AB 6 can be viewed here.

Assembly Bill 15

AB 15 considers the reorganizing of the Colorado River Commission of Nevada (“Commission”), which exists under NRS 538.041 to 538.251.  The Commission currently consists of four members appointed by the Governor for three-year terms, and three members appointed by the Southern Nevada Water Authority.  AB 15 proposes reducing the number of members appointed by the Governor to three and adding the State Engineer as an ex folio member of the Commission.  Under both the existing and proposed version, the chairman of the Commission is chosen by the governor among the members he appointed.

The progress and text of AB 15 can be viewed here.  Keep an eye on our blog for more legislative updates!

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. 

.

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.

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 )

In the ninth COVID-19 webinar, Laura Schroeder and Alan Schroeder discussed stockwater on and off public land.  The webinar was held June 10, 2020. A recording of the presentation is available here.

This webinar focusses on acquisition of stockwater use in Nevada, Idaho, and Oregon.  Participants will learn how to obtain new stockwater permitted uses and how to establish rights existing prior to each state’s statutory water code.  Next, participants will learn how stockwater rights of use relate to federal grazing permits.  Last, participants will learn common issues with stockwater use on federal land. The general topics will include:

• Acquisition of Stockwater Rights of Use
  • On Federal Land
  • State Methods
    • Nevada
    • Idaho
    • Oregon
  • Stockwater Exemptions
• Stockwater and Grazing Permits
  • Status to Hold a Grazing Permit
  • Ownership of Water as “Base Property”
  • Water Developments on Federal Land
• Other Stockwater Issues on Federal Land
  • RS2399 Right-of-ways
  • Grazing in Wilderness

Please join Laura Schroeder and Alan Schroeder as they discuss stockwater on and off public land! Afterward, we will post this webinar here along with our other COVID-19 webinars. Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Our COVID-19 series continues for one more week.  Don’t miss our last webinar about water infrastructure easements on June 17, 2020 from 12:00 PM to 1:00 PM .  Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com.

(photo credit: https://www.rotorflush.com/applications/livestock-watering/; https://www.beefmagazine.com/blog/9-ranch-management-concepts-improve-your-ranch) 

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.