2017 was an eventful year for the team at Schroeder Law Offices (“SLO”). As SLO moves toward a productive 2018, we are pleased to highlight the exciting events of 2017 and what’s ahead in the New Year!

In February we hosted a reception honoring Al Steninger at the Society for Range Management in St. George, Utah. Shareholders Laura Schroeder and Therese Ure, as well as Alan Schroeder, had the honor of celebrating the Sustained Lifetime Achievement Award for range consultant Steninger, long-time friend and consultant to the firm.

In April 2017, our Reno Office received a new home moving from the mid-town area to south Reno. The new office includes convenient parking and approx. 2,600 sq feet divided into a roomy, reception area, large and small conference rooms, multiple private offices, and work areas. Should our out-of-town client need a space to work or meet in Reno for a day or more, we have space to share.

After settling in, SLO hosted an open house for all of our clients, consultants and friends to come check out the new Reno space! We enjoyed this event as the Portland team came to Reno to assist in this celebration, complete with Stix Cattle Company barbequing tri tip!

Following the Open House event and team Schroeder’s participation in the Dust Devil Triathlon in Fallon, NV, the SLO team went out to the field! Our firm serves a wide variety of water users including local farmers, and we had a great time learning more about irrigation systems in Northern Nevada from local expert Norm Frey of Frey Ranches, learning about the cattle industry at Stix Cattle Company, and touring the local livestock auction at Fallon Livestock LLC.

While we had a busy year among our Reno Office move, open house, and field day, we are honored to highlight some of our SLO team member’s developments during 2017.

• Associate Attorney Lindsay Thane passed not only the Oregon State Bar in May 2017, but also passed the Montana State Bar in September 2017 – adding a seventh state to our firm’s licensing!
• Legal Secretary Mollie Finke joined our Portland team in April, making her debut in the legal field.
• In November, our Portland team added a new Paralegal, Rachelq Harman.
• In December, paralegal Tara J. Jackson took a sabbatical, chasing sunny weather with a couple of weeks exploring the north island of New Zealand, enjoying beautiful vistas and mountain biking and finished out her time in Arizona spending more time on her bike and with family. Tara is now back on board.

In the New Year, SLO is looking forward to hosting more classes and/or workshops regarding water law. In 2017 as well as past years, SLO Shareholders Therese Ure and Laura Schroeder have hosted water rights bootcamp classes as well as real estate water right classes. Keep an eye on our coming events list for classes and events to come in 2018, or check out our speaking and presentations page for a list of topics.

Schroeder Law Offices, P.C. will be closed for some holiday dates in 2017, as described below:

Thanksgiving
November 23, 2017 & November 24, 2017
Schroeder Law Offices will be closed on Thursday, November 23rd and Friday, November 24th.
We will reconvene regular business hours on Monday, November 27, 2017.

Christmas
December 25, 2017
Schroeder Law Offices will be closed on Monday, December 25th.
We will reconvene regular business hours on Tuesday, December 26, 2017.

New Year’s Day
January 1, 2018
Schroeder Law Offices be closed on Monday, January 1st.
We will reconvene regular business hours on Tuesday, January 2, 2018.

During these holiday periods, we will not be routinely responding to phone calls/ messages, emails, or mail. In an emergency, please phone or email your assigned team associate attorney directly or email counsel@water-law.com. The attorneys will check their email at least once each day and attempt to get back to you within 24 hours of your call or email.

By: Lisa Mae Gage and Therese Ure

On September 27, 2017, the Supreme Court of the State of Nevada issued an opinion concluding the longstanding battle between the Nevada State Engineer, Nevada Division of Water Resources and Kobeh Valley Ranch LLC (“KVR”), and Eureka County, Kenneth F. Benson, Diamond Cattle Company, LLC., and Michel and Margaret Ann Etcheverry Family LP regarding the Nevada State Engineer’s issuance of water use permits to KVR. This dispute involved KVR’s proposed future mitigation plan. After several appeals and remands before the Nevada Division Water Resources, the Seventh District Court in Eureka County and the Supreme Court of Nevada, the matter ended.

The Etcheverry family, among others, fought for over seven years to protect their senior permitted and vested water rights from the impacts proposed by a series of change applications filed by Kobeh Valley Ranch. Evidence presented before the Nevada Division of Water Resources and the Courts showed conflicts to senior users would unarguably occur. Kobeh Valley Ranch asserted that it may be able to mitigate the conflicts through a proposed future mitigation plan. Without any guarantee that a proposed future mitigation plan would in fact protect the senior rights of water users, senior users fought back. This fight ended with a Supreme Court decision upholding the prior appropriation system, protecting senior water right holders and preventing a party such as KVR from circumventing the statutory requirements put in place to protect existing rights.

After the repeated appeals and remands and dragging the parties through multiple contests and court challenges, the Supreme Court offered a reprieve finding “KVR is not entitled to a second bite at the apple after previously failing to present sufficient evidence of mitigation”… and “KVR is not entitled to a do-over after failing to provide substantial mitigation evidence.” State Eng’r v. Eureka Cty., 133 Nev., Adv. Op. 71 (2017). Although it may seem like a small win to the parties to the matter, it is also a great victory in the battle to protect our valuable water resources.

Schroeder Law Offices (“SLO”) represents a wide variety of water users ranging from municipal to agricultural to domestic. On August 12, 2017, the Portland and Reno teams took an educational field trip to learn more about some of the industries that it supports in Northern Nevada.

The first half of the field trip included touring Western Nevada Cattle Feeders facilities in Fernley, NV, participating in an informational and educational discussion with feedlot owner Dave Stix about his cattle business as well as the cattle industry as a whole. Following the feed lot tour, the SLO team was able to tour two sale yards in Fallon, NV. The first sale yard, Fallon Livestock LLC, was not holding a sale which provided us the opportunity to walk through the entire facility and learn how cattle are bought and sold. The second sale yard, Nevada Livestock Market, was holding a special sale which provided the Schroeder Law team with a view the fast pace of a live auction.

The second half of the field trip included a tour of irrigated, farm land in Fallon, NV as well as learning about the sources and process of water delivery for the farmers of the Truckee-Carson Irrigation District with our tour guide and expert for the day, Norm Frey of Frey Ranches in Fallon, NV. This provided the Schroeder Law team the opportunity to learn about the Newlands project and gain a better understanding of farming and the specific irrigation systems in Northern Nevada. Education included identifying crops as well as learning more about how the science of farming in Northern Nevada including the tremendous strides made with the use of technology.

By taking field trips and learning about the businesses, industries and geographic regions that our clients reside in, our team’s goal is to be better prepared to understand the issues of our clients and to represent their interests.

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.

The Nevada State Engineer is working on a plan to define how to conjunctively manage Humboldt River Decreed water rights hydrologically connected with groundwater rights. This plan will take form through an administrative rulemaking process and will affect many water right holders in and around the Humboldt River Corridor. Nevada Farm Bureau is assisting the State Engineer in setting up informational meetings to discuss concepts in forming the regulatory plan and to obtain feedback on the plan’s economic impacts to small business, farms and ranches.

Currently the United States Geological Survey (“USGS”) and the Desert Research Institute (“DRI”) have a four-year study in the 34 groundwater basins that adjoin the Humboldt River Corridor. The results from the study will determine which individual groundwater wells are hydrologically connected to the surface water flows of the Humboldt River, and to what extent their connection impacts surface flows. Armed with this information, the Conjunctive Management Plan aims to apply annual financial assessments to be paid by each injurious groundwater well in an attempt to recompense senior surface water right owners for their loss of water.

The State Engineer’s preliminary draft regulations for conjunctive management identify the purpose of the regulations as a means to establish rules for a Mitigation Program for the Humboldt River and tributaries identified in the Humboldt River Decree and hydrologically connected groundwater. The plan will establish rules for mitigating conflicts through water replacement or other mitigation measures. The plan will identify water rights of use that are subject to or exempt from plan regulation. The draft regulations identify affected parties as any holder of water rights under the Humboldt River Decree, groundwater right holders whose pumping is determined to capture at least one percent of any Humboldt River Decreed water right, and mining projects whose mine pit lakes capture at least one percent of any decreed surface right and holders of storage water in Rye Patch Reservoir.

The preliminary draft regulations state that the percentage of capture will be initially determined by the USGS/DRI study and thereafter by any further study found suitable by the State Engineer. The State Engineer will determine the amount of conflict to each surface water right and the amount of injurious depletion by groundwater rights, measured in acre-feet, for use in establishing and enforcing the Mitigation Program. The Mitigation Program will be mandatory for all groundwater users determined to be injurious to senior surface water right users. Administration of the program will be funded through existing groundwater and surface water assessments, and the program itself will be funded by groundwater right holders or responsible parties of mining projects, based on their injurious depletions.

The preliminary draft regulations offer regulated groundwater users an alternative to the Mitigation Program by working with the State Engineer to obtain an approved water replacement plan or other type of mitigation plan. If a groundwater right holder fails to participate in the Mitigation Program or have an alternative mitigation plan approved by the State Engineer, that water right holder will be prohibited from diverting any groundwater until the injurious depletion is mitigated and may be subject to penalties and fines.

If you would like to learn more about the draft Regulations for the Conjunctive Management of the Humboldt River Basin, or would like to offer feedback concerning potential economic impacts imposed by the regulations or Mitigation Plan to small businesses, you are encouraged to attend one of the following informational meetings.

Monday, July 17, 2017: 6:30 PM at the Lovelock Community Center in Lovelock Nevada;
Tuesday, July 18, 2017: 6:30 PM at the Humboldt County Cooperative Extension Office in Winnemucca Nevada;
Wednesday, July 19, 2017: 6:30 PM at the Battle Mountain Civic Center in Battle Mountain Nevada; and
Thursday, July 20, 2017: 6:30 PM at the Elko County Conference Center in Elko Nevada.

On the tails of the wettest winter on record for the Sierra Nevadas, counties in Nevada are bracing for the impact of snowmelt on local rivers and tributaries. As reported by the Los Angeles Times, storms from the 2016-2017 winter made it the wettest winter in a century of record-keeping for the Sierras with a total of 89.7 inches of precipitation recorded since October. This number breaks the record held by the 1982-1983 season that sat at 88.5 inches. Counties in both states have declared the end of drought as a result, but while the water will provide significant remedy to both the states of Nevada and California’s water supply many communities are also in a race against the heavy snowpack as it melts.

On April 13, 2017 Governor Brian Sandoval of Nevada hosted a 2017 Spring Flood Briefing to discuss the potentially devastating flooding that could impact communities in Northern Nevada as the record snowpack begins to melt into already full lakes and reservoirs. While many parts of Northern Nevada experienced flash flooding this 2016-2017 winter season as rivers and streams overflowed during powerful storms, this spring could bring a different risk by way of saturation flooding. As reported by the Reno-Gazette Journal in their April 13, 2017 article, record water levels put some places and communities in the Walker and Carson River Basins at risk as the melting rate quickens in the warmer season. Nearly 500 billion gallons of water are expected to flow into the already swollen Walker and Carson Rivers, toting potential for these rivers to be at record high levels well into the summer of 2017.

Water levels in the Lahontan Reservoir, near Fallon Nevada, already pose a threat to the Lahontan Valley before summer even begins; officials orchestrated a “Big Dig” project in which 17 miles of canal were built to divert the massive amount of water stored upstream from the Sierra Nevada snowpack. The project was built to prevent water from impacting homes and highways across the Fallon Desert in Churchill County. The canal is one of many emergency diversion projects in place throughout the region, projects dedicated to dramatically decreasing the risks for saturation flooding in the area.

Nevada residents can learn more information regarding potential flooding by viewing the Nevada Department of Conservation and Natural Resources’ flood briefing presentation here.

The issue of updating ownership of water rights of use continues to rear its ugly head in the context of water right forfeiture proceedings. I can’t stress enough how important it is in Nevada to update ownership records with the Nevada Division of Water Resources. Currently, NRS 533.384 requires buyer to file ownership update information with the State Engineer.

Thus, when buying property, it is not enough to record your deed with the county, you must also update the records for water rights of use with the Nevada Division of Water Resources by filing a report of conveyance and abstract of title (these are specific forms with instructions available on the NDWR website). If there is a title issue that might take you some time or assistance to sort out, then file a Request for Correspondence (another form) with NDWR so you at least receive some kind of notice as to matters relating to your water rights. Don’t miss these important notices putting your water rights of use in jeopardy by failing to update ownership records!

Some title issues that come up in Reports of Conveyance and Abstracts of Title include deeds that inadvertently do not transfer all the property, deeds that have different names or entities thus causing additional supporting research to show they are one-in-the-same, having to research title back to the original water right holder, and having to sift through probate documents to show a transfer in ownership, to name a few. Regardless of the issue that needs resolving, now is the time to diligently check your rights of use and ensure you are in compliance with NRS 533.384.

We are excited to announce our new office building for the Schroeder Law Offices, P.C. Reno Office! We were previously located off Marsh in the Midtown Reno area, but have relocated to a bigger space in South Reno that better fits our needs to serve our clients. Please take note of our new physical and mailing address listed below:

Schroeder Law Offices, P.C.
10615 Double R Blvd.
Reno, NV 89521

We couldn’t be more pleased with our new space and are looking forward to serving clients from this new location. We are currently adjusting to our new home but will be hosting an open house event this coming summer to get to know our community better and share the space with our clients. Be on the lookout for an announcement with open house details!

On September 26, 2016, our office provided information in a prior blog regarding the NEPA process for the Fallon Range Training Complex (FRTC) Modernization.  The Navy has provided a summary report of the public involvement and stake holder outreach activities that were conducted through the public scoping period that concluded on December 12, 2016. 

You can find the summary report by following the link below:
https://frtcmodernization.com/Public-Involvement/Public-Information/Public-Information-Materials#PublicScopingSummaryRpt

The schedule of EIS development can be found at:
https://frtcmodernization.com/Public-Involvement

For all other FRTC Modernization EIS information, please visit:
www.FRTCModernization.com

Prior FRTC Public Scoping Blogs:

Fallon Nevada Navy Training Complex Expansion & NEPA Process

Deadline Approaching to Submit NEPA Scoping Comments to Nevada’s Fallon Range Training Complex “FRTC” Modernization Proposed Action

Fallon Range Training Complex Modernization EIS Public Comment Period Extended

On February 1, 2017, Laura Schroeder, Alan Schroeder, and Therese Ure had the honor of attending the Society of Range Management’s Award Ceremony to honor friend of Schroeder Law Offices, P.C. and Schroeder & Lezamiz Law Office, LLP, Al Steninger, in the receipt of the Sustained Lifetime Achievement Award. From the words of the Society for Range Management:

Al Steninger joined the Society for Range Management in 1961, and is a life member. A native of Elko, NV, Al has had a varied career. He’s been a buckaroo, a ranch manager, eared his BS/MS from Colorado State University, worked as a BLM Area Manager, range consultant, ranch broker, appraiser and arbitrator. Since 1968, he has operated Western Range Service and Nevada Ranch Service in Elko serving private clients west-wide. Al has improved management on millions of acres of rangeland. In all phases of his work, Al has maintained adherence to scientifically-based range management strategies. Al advocates that good range studies result in good range management decisions. Not only has he collected data, interpreted data, and turned data into management, he has applied the data on-the-ground on several large ranges he managed or advised, bring innovative range management into practice. Al’s consulting is built on strict ethical standards; he believes his clients deserve the truth based on facts. His brokerage and arbitration policy is: be thorough, be transparent, and provide service and ethics which are beyond reproach. His integrity has attracted collaboration with top scientists and educators in range management in conducting range studies and expert testimony. As part of a pioneering Elko family, Al has been active in support of the Elko County Fair, Northern Nevada Community College, Elko Historical Museum, and other civic projects. For his long-time efforts to combine good science with practical experience in managing rangelands The Society for Range Management recognizes Al Steninger with a 2017 Sustained Lifetime Achievement Award.

Schroeder Law Offices, P.C. and Schroeder & Lezamiz Law Office, LLP sponsored a reception after the Award Ceremony to honor Steninger’s achievements which was attended by 40-50 of Steninger’s range management colleagues. We were honored to be a part of this celebration.

by Lisa Kane and Therese Ure

The 2017 Nevada Legislative Session is currently in motion; the 79th legislative session began on February 6th and will continue through June of 2017. Meetings are being held daily by the senate and assembly committees as they review proposed changes to Nevada legislation. There are several already-proposed bills on water law that may affect water rights users in the state (click here for a more comprehensive list), however, a couple of new bills have been introduced in the past week that seek to address different water-related matters.

Assembly Bill 209 (AB 209), proposed by Assemblyman James Oscarson of Nye County, is drafted to address issues with extensions on groundwater rights and forfeiture prevention. The bill seeks to revise provisions concerning water law in the State of Nevada that would require the State Engineer to, under certain circumstances, extend the time necessary to work a forfeiture of certain water rights. The full text for this proposed bill can be found here.

Senate Bill 134 (SB 134), proposed by Senator Pete Goicoechea of Eureka County and Senator Aaron Ford of Clark County, was also newly introduced in the past week and focuses on providing legislative direction to the State Engineer in regards to water applicants and conflicts with existing water rights. Specifically, SB 134 would authorize the State Engineer to determine if such a conflict exists and if so, to impose a monitoring, management and mitigation plan upon applicants whose requested use conflicts with existing rights. The bill also requires that conflicts be eliminated in order for the water use application to be permitted. The full text for this proposed bill can be found here. While the current water law already requires the State Engineer to evaluate and not approve applications that conflict with existing rights, this legislation add the ability to impose monitoring, management, and mitigation plans (aka “3M Plans”) as a way to offset conflicts.

The Nevada State Legislature’s website provides session information as well as bill draft requests, fact sheets, bill text and further information. The Legislature’s calendar also provides links to daily meetings and allows the public to view live sessions across the state. To keep apprised of bill progress or view active work session agendas visit the legislature website at https://www.leg.state.nv.us/App/Calendar/A/.

The upcoming 2017 Nevada Legislative Session includes proposed water law changes that could affect water rights users across the state. The 79th legislative session, which starts on February 6, 2017 and ends on June 5, 2017, contains a number of proposed water law changes. It appears there will be four senate bills submitted by the Nevada State Engineer and Nevada Division of Water Resources during the session, as well as five bills from the Nevada Legislative Committee to Study water, and five bills from individual legislators and committees.

The four senate bills to be introduced to the 2017 legislative session that include potential changes to water law in Nevada are as follows: Senate Bill 47 (SB47) proposes various changes to the appropriation of water; Senate Bill 51 (SB51) proposes various changes to the adjudication of vested water rights; and Senate Bills 73 and 74 (SB73 and SB74) propose the revision of various provisions relating to water rights and use in the State of Nevada. Any pre-filed bills, which include the senate bills listed above, are available for public viewing on the Nevada Legislature’s website at https://www.leg.state.nv.us/Session/79th2017/Reports/Prefiled.cfm. By clicking on the link for the proposed bill, users can view the full bill text as introduced to the Senate as well as the bill’s history of hearings or votes as the session moves along. These bills are also referred to the Senate Natural Resources Committee for review.

While proposed bills could bring changes to water law at a statewide level in Nevada, county officials and other local groups are also working to develop local water management plans. The Nevada Farm Bureau, for example, has a collected a group of interested volunteers to participate in a Water Discussion group for water management plans specific to volunteers’ areas around the state. The Bureau also continues to encourage interested parties to contact them for more information regarding such discussion. According to the Pahrump Valley Times, officials in Nye County have conducted studies on a number of wells in the Pahrump Valley that have the potential to go dry. Further, studies are ongoing in the Humboldt River Basin and being conducted by USGS and DRI. It appears scientists are looking to understand the groundwater system better.

Studies such as those being conducted in Nye County will likely continue across the state in preparation for recommendations on approval or denial of the proposed water law changes in Nevada’s 79th Legislative Session in 2017. Counties and hydrographic basins may have different needs based on appropriation and water sources available. The interested public can keep current with session information and the drafting and approval of bills as the session persists at the legislature’s website: https://www.leg.state.nv.us/Session/. County and city papers also continue to publish information regarding more local sessions.

The Nevada Farm Bureau has adopted new and revised policies, which are available in their 2017 Policy Book. The policy positions were approved by farmer/rancher voting delegates at the general session of the 2016 Nevada Farm Bureau Annual Meeting. One important new policy adopted by the Nevada Farm Bureau relates to supporting groundwater management plans for critical management areas.

The Nevada Farm Bureau recognized that under state law, local citizens have an opportunity to propose groundwater management plans in order to bring allocated water rights of use back into balance with actual available water resources. The State Engineer has identified one water basin, Diamond Valley, as a Critical Management Area. This basin is open to Groundwater Management Plans, that can be proposed by local citizens. In the new policy, the Nevada Farm Bureau provides an outline of criteria a management plan must meet in order to obtain support of the Farm Bureau. Some key points, among others, stipulate that the proposed plan must be developed at the local level, must recognize priority of senior water right users, and must restrict the water covered by the plan from leaving the basin.

The Farm Bureau’s goal with the new policy concerning groundwater management plans is to address and provide guidance to possible changes in state water law that may come up in the next legislative session. The Farm Bureau believes this new policy will positively impact farming and ranching industries by protecting its most important resource.

As an update to the previous blog posted regarding the Fallon Range Training Complex Modernization and Public Comments, https://www.water-law.com/deadline-approaching-submit-nepa-scoping-comments-nevadas-fallon-range-training-complex/, the deadline to submit comments has been extended. The new deadline is December 12, 2016. If you are interested in submitting comments there are several ways to submit comments including online or by mail.

Submit Comments Online:

To submit comments online, please visit:
https://frtcmodernization.com/Public-Involvement/Submit-Your-Comment

Mail In Comments:

For a written form, please follow the link to download and print a pdf form:
https://frtcmodernization.com/portals/FRTCModernization/files/forms/FRTCMEIS_Scoping_Comment_Form.pdf

Mail written comments to the address listed below:

Naval Facilities Engineering command Southwest
Code EV21.AK
1220 Pacific Highway
Building 1, 5^th Floor
San Diego, CA 92132

In order for your comments to be considered in the draft Environmental Impact Statement (EIS), the comments MUST be postmarked or received online by December 12, 2016.

NEPA is the acronym for the National Environmental Policy Act.  NEPA’s purposes included setting national policy to encourage productive and enjoyable harmony between humans and their environment; promoting efforts that will prevent or eliminate damage to the environment; and, enriching the understanding of the ecological systems and important natural resources. See 42 U.S. C. 4321 for additional details.  To promote these purposes, NEPA defined processes federal agencies must follow when they propose an action, grant a permit, or agree to fund or otherwise authorize any other entity to undertake an action that could possibly affect environmental resources. Thus, an  EA (Environmental Assessment) or an EIS (Environmental Impact Statement) are resulting products of NEPA analysis.  Generally speaking, NEPA’s requirement is simply to engage in the a process that analyzes the effects on the environment with public input and disclosure, before taking action.

Once a project is determined to have a federal nexus to require NEPA, the first stage in the process is scoping.  In scoping the lead federal agency asks for comment and input from the public as to the nature and the extent of the issues and impacts to be addressed in the EIS.  It is during scoping that your comment on the proposed action’s effect on you or the environment, rangeland resources, water sources, wildlife, livestock grazing, cultural resources, and the like, are required. During scoping, you can identify a reasonable alternative solution, state that alternative with specificity, and request that it be considered in the NEPA process.  In the end, your input in the scoping process could change what the agency determines are the issues and what alternatives might be considered when that lead federal agency prepares the Environmental Impact Statement.

NEPA processes do NOT give the agency authorization to proceed on a project or provide funding for a project.  It is merely one required step in the federal process of decision making.  Once NEPA is completed, the agency usually issues a ROD (Record of Decision) that outlines how, or under which alternative, the agency may proceed forward. Generally speaking, lawsuits related to NEPA seek declaratory judgments or writs of mandamus to establish the NEPA obligations (ie the agency needs to follow more process).  NEPA does not authorize awards of attorney’s fees and expenses for prevailing parties unless a plaintiff can qualify under EAJA, 28 USC 2412.

NEPA, is the only the precursor to agency action.  If your rights or interests may be affected by a proposed action, now it the time to start positioning yourself to show harm so that you may be adequately compensated in separate proceedings should the proposed action proceed.

In Fallon Nevada, NEPA scoping began for the Fallon Range Training Complex Modernization’s proposed action that will 1) renew existing 202,589 acres of public land withdrawal that is set to expire on November 6, 2021; 2) withdraw and reserve for military use 604,744 acres of additional public land to expand existing land ranges; 3) acquire 65,160 acres of “non-federal” land (think state owned or privately held) to expand existing land ranges; 4) expand special use airspace, as well as reconfigure existing airspace; and 5) modify range infrastructure to support he expansion. Scoping Comments are due, pursuant to the Federal Register Notice, on November 25, 2016 (see, Vol. 81, No. 166 at 58919 dated August 26, 2016).  See also, www.frtcmodernization.com for more information relating to the proposed action.

This expansion will include several grazing allotments.  Some of these allotments will be completely closed to grazing, while others will be modified in some way.  Both the Nevada Farm Bureau and the Nevada Cattlemens Association are working to prepare comments in this scoping process, however you should also submit your own comments related specifically to your affected areas. A map of the effected grazing allotments in relation to the proposed action can be found at: https://frtcmodernization.com/portals/FRTCModernization/files/maps/FRTCLM05140v11_NAS_Fallon-Proposed_Land_Renewal_and_Expansion_Map_with_Grazing_Allotments.pdf

Once the scoping period closes, the agencies will prepare a draft EIS.  According to the public meetings, the draft EIS is expected to be published in the Winter of 2018.  After the draft is published, there will be another round of public meetings and another comment period relating to the draft EIS document.  Currently the final EIS is expected in the Fall of 2019, with Record of Decision to be issued in the Winter of 2020.

Don’t wait to get your comments drafted as the November 25^th deadline is the day after Thanksgiving!

On October 13, 2016, the Nevada Division of Water Resources (“NDWR”) provided notice that a new Application for Extension of Time form must be used when requesting an extension of time for the submission of a Proof of Completion of Work, Proof of Beneficial Use or Cultural Map.

It appears that NDWR is placing more emphasis on the section explaining the reason why the extension is being requested. The instructions sheet accompanying the Extension Request now states that the applicant must highlight progress made during the previous year, and must also “submit any proof and evidence that documents reasonable diligence.” Thus it is important to document what you have been doing on your project to prove up on your rights as well as keep records and documents showing your progress (ie – well driller receipt, pump, pipe, or other infrastructure purchase receipts, photographs with infrastructure installation (include the date, time, and place), and log books of you contact with agency personnel if your project involves working with other state or federal agencies).

Please keep this in mind when preparing an Application for Extension of Time. It appears the NDWR is cracking down and no longer “rubber stamping” approval on application requests.  You don’t want a request for an extension of time denied for lack of proof of due diligence! To view the new Application for Extension of Time form, please visit the NDWR’s website at http://water.nv.gov.

The Department of Defense Plans to Expand the Fallon Nevada Navy Training Complex. Now is the Time to Participate and Comment in the NEPA process!

The Fallon Range Training Complex (FRTC) is planning expansion of its Fallon Nevada facilities and announced in the Federal Register its intent to prepare an environmental impact statement (EIS). The EIS will assess the potential environmental consequences of maintaining and modernizing the FRTC which would include land range expansion through additional land withdrawal and land acquisition, airspace modifications, and public land withdrawal renewal. The proposed action includes withdrawal and reservation for military use of approximately 604,744 acres of additional public land, and acquisition of approximately 65,160 acres of non-federal land to expand existing ranges.

A recent Nevada Farm Bureau newsletter notes concerns for the adverse impacts on farmers and ranchers due to the grazing allotments that would be impacted.
If you would like to participate in this process, there will be a series of open house meetings scheduled to take place.

Along with participation in these meetings, it is imperative that you submit comments with all your concerns over the proposed project to ensure you have legal standing as to the impacts of the proposed action in the future. Comments must be postmarked or received online no later than November 25, 2016. Stay tuned for a blog on the importance of drafting NEPA comments. More information is available at: http://www.FRTCModernization.com

On, Thursday, September 1, 2016, the State Bar of Nevada’s Environmental and Natural Resource Section hosted a successful Meet & Greet mixer event for the section members with invited special guests. The special guests consisted of agency leaders from both state and federal environmental and natural resource agencies.  The special guests in attendance included:

The casual event included a cocktail hour followed by question and answer period with fun questions designed with the intent to learn about our agency leaders.  This event provided a great opportunity for the section members to get to know the agency leaders of the decision making bodies of their profession.  The mixer was organized and hosted by the Section Co-Chairs Linda Bullen and Therese Ure.

New laws and legislation may affect you, stay tuned for tomorrow’s work session on topics of adaptive management, domestic use, cloud seeding, basin management, and mine dewatering!

Nevada’s Legislative Commission’s Subcommittee to Study Water will be holding a meeting on Friday morning, August 26, 2016 at 9:00AM at the Legislative Building, Room 4100, at 401 South Carson Street in Carson City.

Items on the agenda include the “Work Session Document” containing recommendations received by the Legislative Commission’s Subcommittee during the 2015-2016 Legislative Interim. This document is designed to assist the subcommittee members in determining which recommendations will be forwarded to the 2017 session, and what other actions the Subcommittee will endorse.

For those who may not be able to attend the meeting in Carson City, it will also be broadcast live over the internet via http://www.leg.state.nv.us, and can be viewed or listened to by clicking the link for “Calendar of Meetings/View” in the top right-hand corner of the page.

Items in the agenda as well as the Work Session Document and other information pertaining to the meeting can be found on the Nevada Legislature website under the “Meetings” tab. For written copies, please contact the Research Division, Legislative Counsel Bureau at (775) 684-6825.

A PDF link to the agenda including the Work Session Document can be found here.