As of September 13^th, Oregon Water Resources Department Director Tom Byler has officially retired after 27 years working for the state of Oregon. A new OWRD director will be appointed by Oregon’s next governor. To serve for the remainder of her term, governor Kate Brown has appointed acting director Doug Woodcock, who previously worked as the Deputy Director of Water Management.  

During his tenure as the director, Tom Byler dedicated his time to modernizing the department’s programs and services to meet the Oregon community’s ever changing water needs. Byler also worked to increase OWRD’s capabilities to collect and analyze data to manage Oregon’s surface and groundwater resources throughout the state.

In the official press release regarding his retirement, Byler said, “As I look to the future of water resources in Oregon, I anticipate that water issues will continue to become more and more complex and challenging.” Byler added, “I am excited about the Department’s increasing capabilities to help communities address those issues.” Though he may be retiring from his current position, Byler intends to carry on his work in water and natural resources issues into his retirement.

The Oregon Water Resources Department is the state agency responsible for ensuring adequate and sustainable water supply to meet present and future needs. To learn more about OWRD, visit their website here: https://www.oregon.gov/owrd/. 

As fall rains shower Northern Nevada and the first snow fall for Lake Tahoe is on the books for September 19, 2022, it is easy to forget that Nevada remains in a long-standing drought. However, it is important that Nevada continue to take measures to prepare and stay informed about these long-term conditions, even as they begin to improve.

How can Nevadans be best prepared to live with drought?  A number of state and federal resources are available to all Nevadans to track, understand, and adapt to long term drought conditions. These resources include:

State Drought Reports:  The State Climate Office and University of Nevada Reno publishes a monthly 2-3 page drought report with updated drought conditions and projects.  The most recent report can be found here.

US Drought Monitor: Similarly, the US Drought Monitor updates current drought conditions for all states weekly.  The monitor page for Nevada can be found here.

Nevada Drought Planning Workshops: Online and tabletop workshops are held periodically and are announced on the National Integrated Drought Information System, published by the National Oceanic Atmospheric Administration (NOAA).  The Nevada page is available here, including links to further information about upcoming drought webinars and workshops.

United States Dept. of Agriculture Mapping:  USDA offers a number of drought mapping tools to track and project drought.  These include the USDA Snotel Mapping system, which maps snowpack, an important seasonal contributor to water recharge in the arid west and the Streamflow Forecast Map, which predicts seasonal streamflow and various points of diversion to allow users to estimate if streamflow will be high enough to meet minimum flow requirements and any senior in-stream water rights that may preclude junior surface water diversion.

These are just some of the many tools available to stay informed about drought.  Want to learn more about drought and drought tools?  Check out our on-demand Western State drought tools webinar here.

            Schroeder Law Offices had a blast working at the 2022 Oregon State Fair. If you weren’t able to make it down to Salem for the annual festivities, we’re here to fill you in. During the fair’s kickoff weekend, Tara Lomacz and Madeleine Criglow worked the Oregon Women for Agriculture booth in Salem Fairgrounds’ Columbia Hall. This space was dedicated to showcasing agriculture in Oregon along with the beautiful works of local authors, photographers, and textile artists. At the Oregon Women for Agriculture booth, Tara and Madeleine had a great time speaking with fairgoers on agriculture and water issues in Oregon.

            To encourage fairgoers to stop by the booth, guests were challenged to spin the trivia wheel for questions on agriculture and farming in Oregon. The questions tested guests’ knowledge on everything from Oregon’s state beverage (milk, if you’re wondering) to how many gallons of water a cow drinks in a day (a whopping 20-30 gallons!). Guests were delighted to realize that they already knew a thing or two about Oregon agriculture (and were pretty happy about the prizes, too).

The Oregon Women for Agriculture booth also featured a map highlighting the water issues currently affecting agriculture and local farmers throughout Oregon. As fairgoers read through the map, many shared their own experiences with water issues and asked about what might be done to protect the natural resource in Oregon. It was rewarding to see guests take such an interest in local agriculture, and Schroeder Law Offices was happy to spread the word on its importance to the environment and economy.

            As the trivia games and discussions came to a close, the fair was just getting started. There was still tons of fun to be had, from checking out live music to indulging in every snack you could imagine. Leaving the fair with an ice cream cone in hand, we were grateful for the opportunity to join in on the fun!

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. 

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.

Echo Zhang is a summer law clerk at Schroeder Law Offices. As a new addition to the office, she is eager to learn everything about water law and gain the necessary skills as a practicing attorney. A few questions we asked Echo:

What brought you to Schroeder Law Offices, and what’s your experience?

I’m currently a rising 3L student at the University of Washington. Before joining Schroeder Law Offices, I had law clerk experiences at Chinese law firms specializing in commercial dispute resolution. On the other hand, I developed an interest in general environmental law and water law. Pursuing my interests, I joined the Washington Journal of Social & Environmental Justice and now serve as the Executive Managing Editor.

I first learned of Schroeder Law Offices when I browsed through its website. I was fascinated by the passion for water law shown there. I went through the educational water rights videos on the website and decided that I wanted to learn more about water law. After coming to work here, I found that everyone is excellent, and I’m eager to learn more from everyone!

What is your go-to productivity trick?

Caffeine in the morning, and music at night.

Favorite recipe?

I love cooking slow-cooked recipes, especially braised beef brisket with tomatoes.

Are you an early bird or a night owl?

Night owl. Although fresh air in the morning is great, I love the feeling of freedom at night!

Where can I find you on the weekend?

At home cooking or going to Gas Works Park with my friends to get some fresh air and admire the Seattle skyline.

Coffee or tea?

Both!

Describe your job in three words:

Fun, challenging, and supportive.

What is working at Schroeder Law Office like?

Everyone is supportive and willing to teach me new things. I’m happy to explore water law with my colleagues.

[This article was originally published in the February, 2022 Oregon Real Estate and Land Use Digest by the Section on Real Estate and Land Use, Oregon State Bar]

In Oregon, water rights must be beneficially used according to their terms at least once every five years to remain in good standing. If they are not, water rights are subject to cancellation for forfeiture. ORS 540.610. Thus, Oregon’s forfeiture statute enacts the “use it or lose it” principle that is common in Prior Appropriation water system states. Water right holders must use their water rights or risk cancellation.

In the late 1980s, the Oregon State Legislature recognized instream beneficial uses for water, allowing the State to hold or lease water rights for instream purposes such as recreation, navigation, pollution abatement, and fish and wildlife. Under ORS 537.348, water right holders may temporarily lease water rights to the State for instream purposes for up to five years, renewing such instream leases thereafter. The statute provides that water rights leased instream are “considered a beneficial use.” ORS 537.348(2). As such, the forfeiture provisions of ORS 540.610 are not triggered during the period a water right holder leases their water right instream. Many water right holders use the instream lease program to safeguard their water rights in times when such water rights might not otherwise be used once every five years. The instream lease program serves dual purposes of providing instream flows while protecting private property interests in water use.

WaterWatch of Oregon v. Water Resources Department, 369 Or 71 (2021), questioned whether a hydroelectric water right could be leased instream and thereafter, once the lease(s) expired, be used again for hydroelectric or other beneficial uses of water. At issue in this case is a hydroelectric water right held by Warm Springs Hydro, LLC (“Warm Springs”). In 1995, Warm Springs’ predecessor shut down the associated hydroelectric project and began a series of instream leases from 1995 to 2020. WaterWatch of Oregon (“WaterWatch”) petitioned for judicial review of the Oregon Water Resources Department’s (“OWRD’s”) final order approving the 2015-2020 instream lease, and Warm Springs intervened.

In addition to the forfeiture provisions that are applicable to all water rights, ORS 543A.305 (enacted in 1997) applies specifically to hydroelectric water rights. The statute provides:

Five years after the use of water under a hydroelectric water right ceases, or upon expiration of a hydroelectric water right not otherwise extended or reauthorized, or at any time earlier with the written consent of the holder of the hydroelectric water right, up to the full amount of the water right associated with the hydroelectric project shall be converted to an in-stream water right, upon a finding by the Water Resources Director that the conversion will not result in injury to other existing water rights.

ORS 543A.305(3). Further, the statute specifies that the conversion to an instream water right “shall be maintained in perpetuity, in trust for the people of the State of Oregon.” ORS 543A.305(2).

Prior to this case, OWRD interpreted ORS 543A.305(3) similar to the forfeiture statute; that is, so long as a hydroelectric water right continues to be used for hydroelectric water use or another beneficial use under an instream lease, the hydroelectric water right is not subject to conversion to a permanent instream water right. WaterWatch challenged OWRD’s interpretation, arguing hydroelectric water rights are subject to conversion five years after the specific hydroelectric use of water ceases. The Marion County Circuit Court and the Oregon Court of Appeals both ruled in favor of OWRD and Warm Springs, but the Oregon Supreme Court reversed and remanded the decision on December 23, 2021.

The Oregon Supreme Court reviewed the text of the two statutes in conjunction with the context of the statutes and legislative history. The Court held “the use of water under a hydroelectric water right” means water use only for hydroelectric purposes as specified in the water right certificate, and does not include beneficial use under an instream lease. WaterWatch of Oregon, 369 Or at 88-89. The Court reasoned that once a hydroelectric water right is leased instream, the beneficial use is converted to another purpose other than hydroelectric water use. Id. at 91-94. The Court further held that “ceases” under the statute has an ordinary meaning, so Warm Springs’ water right was subject to conversion to an instream water right in the year 2000, five years after the hydroelectric project was shut down. Id. at 89-91.

The Oregon Supreme Court’s ruling will have significant impacts on hydroelectric water rights in the State. Most obviously, other hydroelectric water right holders in situations analogous to Warm Springs may face conversion of their hydroelectric water rights to permanent instream water rights. As such, property owners who believed they were appropriately safeguarding valuable water right holdings through instream leases may find themselves mistaken.

Another consequence of the Court’s decision is that instream leases over four years in length are essentially “off the table” for hydroelectric water rights. Hydroelectric water uses must resume within five years or risk conversion to permanent instream water rights. Thus, there is no incentive for hydroelectric water users to lease their water rights instream to avoid forfeiture, and, in the process, guarantee instream flows. Instead, the ruling incentivizes quick transfers to other, possibly more consumptive, water uses through the transfer process before the hydroelectric water right is converted to a permanent instream water right. ORS 543A.305(7).

Finally, conversion of appropriative water rights to instream water rights allows the State to enforce against upstream junior water users to ensure instream rights are satisfied. Conversion of large, early priority hydroelectric water rights to permanent instream purposes may have the outcome of increased regulation against other water right holders.  

The original article is available in PDF format here.

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

Trading Water as a Commodity

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

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

Pros and Cons

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

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

Looking Forward

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

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

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

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

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

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

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

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

This post is one of a series highlighting the ways in which water users have adapted to life in the time of COVID-19.

Shelley Roberts is the CEO of the Idaho Rural Water Association (“IRWA”). IRWA is a resource for small water systems in the State of Idaho that offers training for drinking water and wastewater operators and aids those systems in times of need. Their objective is “to ensure Idaho’s rural communities are safe while still maintaining the high quality of life we hold so dear.”

For Shelley, the best part of working with IRWA has been the same since day one. As someone with a business background, she loves being able to utilize her education by running a non-profit corporation benefiting others. “I’ve never met such salt of the earth people as I have in the water industry,” she says. “They are all so genuine, caring, and kind.”

COVID-19’s impact on IRWA started during its Spring Conference in March, 2020, which concluded on Friday, March 13- the same day the Federal Government declared a state of emergency. The following Monday, all of IRWA’s administrative staff were directed to stay home. The week after, IRWA organized a work from home policy that allowed employees to perform their duties remotely. For IRWA’s circuit riders, though, it was a different story.

Drinking water and wastewater are essential services, and adjustments had to be made to ensure they continued to run smoothly. IRWA employs numerous circuit riders and field staff whose jobs require in-person and onsite contact with water system operators. However, thanks to video conferencing technology, much of their communications with the operators could be conducted remotely, limiting potential exposure. When site visits were required, field staff practiced social distancing as much as possible, including staying 6 feet apart and wearing face masks.

An unexpected benefit of remote work was an increased ability not only to contact the systems but for internal communication between IRWA’s employees, office and field staff alike. “We learned how to use Teams and started having weekly video conferences,” Shelly told us. “We weren’t able to do that before. It was nice for everyone [at IRWA] to have more contact with each other.”

According to Shelley, one of the biggest impacts COVID-19 had was fear of “what ifs.” The ability to communicate with water systems in remote locations without having to travel allowed the circuit riders to discuss those concerns quickly and determine what steps were needed to resolve any issues.

Another of IRWA’s major concerns was operator availability. Many of the small systems IRWA works with are operated by volunteers who have other commitments to day jobs and families. Should those operators fall ill or otherwise become unable to perform their duties, it can be difficult to find other operators to fill in.

IRWA has long worked with the Environmental Protection Agency (“EPA”) to locally administer the water/wastewater agency response network, otherwise known as WARN. In response, through WARN, IRWA was able to put together a list of volunteers who could assist if a system’s regular operator was not available.

Shelley says that IRWA’s response to COVID-19 did not greatly differ from their response to other emergencies in which the first step is typically outreach and communication with the systems IRWA works with. For example, on March 21, 2020, a magnitude 6.5 earthquake struck central Idaho. Circuit riders needed immediate contact with water systems to assess any potential damage caused by the quake. Luckily, the remote communication procedures implemented in response to COVID-19 allowed IRWA’s circuit riders to easily check in with system operators.

While the pandemic continues to impact daily life and operations for IRWA in general and Shelley personally, she looks forward to life after COVID-19. Professionally, she awaits opening up the new training center in Boise, Idaho IRWA constructed just prior to the shutdown. The center will host hands-on trainings for water and wastewater operators in addition to traditional classroom training. As for her personally? Being able to hug her friends and extended family.

Shelley participated in a panel discussion on the pandemic’s impact on the Idaho water sector as a part of the Idaho Association of Cities’ 2020 virtual conference, which you can watch in full here. For more information about IRWA, including details for upcoming trainings, check out their website here. And stay tuned to Schroeder Law Offices’ blog for more posts in this series and other water-related issues!

          The Slink Fire rages on in the Carson-Iceberg Wilderness Area. Meanwhile, pilots fly an imaginary line to drop water on wildfires according to wilderness laws and procedures. This raises the question, are wilderness firefighting laws protecting or harming wilderness areas?

Wilderness Firefighting Laws 

          Congress passed the Wilderness Act of 1964 to minimize human impacts and preserve wilderness.  For example, the act limits and/or prohibits motorized vehicles in wilderness. See 16 U.S.C. 1131(a).  Additionally, it requires minimized human impacts from firefighting . One exception is the use of aircraft.  Aircraft may be used as necessary to control fire. P.L. 88-577 § 4(d)(1). However, the act applies conditions even to this use. Id. 

            Later wilderness laws echoed protective policies. The Endangered American Wilderness Act of 1978 directed the Secretaries of Interior and Agriculture to implement fire prevention and watershed protection. See P.L. 95-237 §§ 2(c)-(d).  The Secretaries were required to create special fire suppression measures and techniques. Id. The California Wilderness Act of 1984 included similar language. The Act created the Carson-Iceberg Wilderness and extended firefighting restrictions to it. See P.L. 98-425 § 103(b)(2). 

Firefighting Restrictions in Practice

How are these provisions applied in practice?  In the Carson-Iceberg Wilderness Area, impacts are minimized by restricting the place of water use. Firefighters must take water and use it in the same watershed.  In smaller wilderness areas, these restrictions are moot.  However, in the Carson-Iceberg, unique challenges are presented to firefighting crews. 

            As of Thursday, September 10, 2020, the Slink Fire raged over 22,474 acres.[1] The fire spanned across three watersheds: the Carson Watershed, the Silver King Watershed, and the Walker Watershed.  Don Zirbel, of the Clackamas Fire District, provided a community update. He noted that fire crews are struggling with restrictions for “crossing lines” during aerial water drops. These restrictions require pilots to take water from a watershed and drop it on fire only within the same watershed.  He also noted that multiple water “dip” cites were located within each of the three watersheds, so these restrictions did not hamper ground crews or helicopters from accessing and using the needed water. This is not always the case. 

            Regardless, the update started a heated public debate on whether wilderness firefighitng laws are hindering or helping the integrity of wilderness. With a fire season for the record books, the federal agencies managing these wilderness areas will likely face these same questions. 

[1] https://inciweb.nwcg.gov/incident/7105/ (last visited 9/10/2020)

(Photo Credit: https://inciweb.nwcg.gov/incident/7105/, and Don Zirbel, Clackamas Fire District)

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.

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

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

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

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

Topics will include:

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

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

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

Can Nevada gardeners collect rainwater? 

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

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

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

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

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

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

April 22, 2020 is the 50^th anniversary of the first Earth Day, a global holiday that unites citizens of the Earth to take better care of our planet.

Earth Day was initially proposed by Wisconsin Senator Gaylord Nelson as a way to bring awareness to ongoing ecological issues and concerns. It took place on April 22, 1970 with a series of “teach-ins” on college campuses across America. It then gained national attention and momentum. The first Earth Day inspired the creation of the Environmental Protection Agency (EPA). It also lead to the passage of the Clean Air and Clean Water Acts along with numerous other environmental laws and regulations.

The next Earth Day did not take place until April 22, 1990. Numerous corporations and celebrities endorsed the holiday, and over 200 million people worldwide came together to celebrate. Now Earth Day is an annual event observed around the world. It continues to inspire rallies, cleanup projects, and volunteer efforts. It also provides an opportunity to bring awareness to ongoing and ever-evolving environmental issues like climate change, pollution, and deforestation.

Earth Day is often celebrated outdoors in large groups. Community members gather to perform services such as picking up litter or planting trees. Many others participate in marches or protests about ways we can minimize our impact on the planet and improve global environmental health. However, given the ongoing COVID-19 pandemic and need for social distancing, Earth Day 2020 is a little different. The majority of events are taking place online rather than outside. Still, there are plenty of ways to celebrate. 

While outdoor community gatherings are largely cancelled this year, countless digital resources and events are taking place to make the 50^th anniversary memorable and impactful. Earth Day’s official website has an interactive map with links to events happening virtually all around the United States and the globe. This means you can participate in events in your community, on the other side of the country, or anywhere on the planet!

Of course, April 22^nd isn’t the only day to celebrate the Earth. The National Ocean Service has a list of 10 simple things you can do every day to protect and improve our planet in the short- and long-term. These steps are also laid out in their handy infographic below.

At Schroeder Law Offices, we try to celebrate Earth Day every day. To learn more about what we do and about all things water, check out our Schroeder Law Offices blog!

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.

In July, 2020, attorney Laura Schroeder will hit the road and travel to Idaho to teach a series of classes on “Water Law for Utilities.” The classes are put on by the Idaho Rural Water Association (IRWA) and are approved by the State of Idaho Bureau of Occupational Licenses for 0.6 drinking water or wastewater Continuing Education Units.

Laura regularly presents to small and large groups in and around the Portland metropolitan area. However, this is the first time since 2018 that she will make it to Idaho. Then, she worked with IRWA to teach a series on understanding and managing municipal drinking water rights. This time around, she will focus on water utilities.

In these classes, Laura will provide an overview of water rights in the State of Idaho and how water utilities are impacted by the laws and statutes that govern those rights. She will also address water quality, quantity, and access issues, including a brief discussion of easement law. Finally, she will go over some of Idaho’s public meeting laws and how they pertain to water utilities.

Laura will teach in Twin Falls, Idaho on Monday, July 14, in Pocatello, Idaho on Tuesday, July 15, and in Fruitland, Idaho on Thursday, July 17. For more information or to register, check out the calendar of events on the Idaho Rural Water Association’s website: https://www.idahoruralwater.com/Training/Calendar.aspx. And don’t forget to follow Schroeder Law Offices’ blog for more upcoming events and news on water law developments throughout the northwest!

On January 28, 2020, the U.S Navy will hold a public informational meeting to present their Final Environmental Impact Statement regarding potential environmental impacts of the proposed modernization of the Fallon Range Training Complex in northern Nevada. The presentation will begin at 5:00 p.m. and will also provide an opportunity for the public to provide oral comments.

Meeting Information:

Tuesday, January 28, 2020

Fallon Convention Center

100 Campus Way

Fallon, NV 89406

5:00 p.m. – 7:00 p.m.

The proposal to modernize would incorporate a renewal of the Navy’s current public land withdrawal and include an additional withdrawal of public lands and acquisition of non-federal land, airspace expansion and modifications, and upgrades to range infrastructure.

The Fallon Range Training Complex Modernization Final Environmental Impact Statement can be found online here or at any of the following public libraries for public viewing: Austin, Carson City, Churchill County, Crescent Valley, Downtown Reno, Eureka, Fernley, Gabbs Community, Mineral County, Pershing County, and Yerington. 

For more information, visit www.FRTCModernization.com .

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Featured Photo Credit: USNI News