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While summer was wet, rains were spotty, which is common for summer thunderstorms. Nonetheless,
drought intensity has waned, and as of the August 16, 2022 US Drought Monitor map, Nevada is free of
D4 – Exceptional Drought for the first time since September 2020.
Impacts reported in July and August included:
• Nevada’s combined Colorado River shortage/Drought Contingency Plan (DCP) Agreement
contribution will be 25,000 acre-feet (AF) for 2023 operations, an increase from 21,000 AF in
2022.
• Ongoing concerns about reduced groundwater levels in portions of southern Nevada.
• Concerns about reduced surface water availability for wildlife and range livestock on public
lands.
• Fire restrictions on public lands are widespread.
• Boating access to Lake Mead, Lake Tahoe, and Lahontan Reservoir are limited by low water
levels.
• Ongoing drought conditions are or may impact the ability of reporting organizations to carry
out routine operations, such as road maintenance and ecosystem restoration.
• Ongoing water hauling actions for livestock and wildlife throughout the state.

Click here to read the full report.

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The Nevada Division of Environmental Protection (Division) will hold an official regulation amendment workshop on August 31, 2022 to solicit public comment and input on Legislative Council Bureau (LCB) Draft of Proposed Regulation R113-22 which sets forth a process for the State Environmental Commission to classify a surface water of the State or segment thereof as a water of extraordinary ecological, aesthetic or recreational value (EAW) and establishes provisions for antidegradation protection of Nevada surface water resources. Click here to view the LCB Draft Proposed Regulation R113-22.

The workshop will be held virtually from the Bryan Building at 901 South Stewart Street, Carson City, NV in the Humboldt Conference Room, located on the 3rd Floor, South, and will be organized for participation in-person or virtually using the link provided for the meeting.

The workshop will provide an opportunity of all interested persons to provide comments, views or arguments related to the draft proposed regulation R113-22. The website link provided above can also be used to review comments made by stakeholders on the prior version of the proposed regulation and the Division’s responses. Supporting documentation for R119-20: Nevada’s Antidegradation Implementation Procedures and Nevada’s Antidegradation Permit Writer’s Guidance can also be located at the above website. Public comments will be accepted during the workshops and written comments will be accepted until September 8, 2022.

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The Nevada Legislative Joint Interim Standing Committee on Natural Resources and Subcommittee on Public Lands will hold their final meetings in Las Vegas on August 22nd beginning at 9 am. The meetings will be videoconferenced to the Legislative Building in Carson City and live streamed over the Internet. The Subcommittee will consider the following water related actions during their work session:

• Request the drafting of a bill to address water conservation and the enhancement of return flow in southern Nevada, including, without limitation, the use of Colorado River water in septic systems and modifications to the nonfunctional turf program.
• Draft a position statement in the final report of the Subcommittee expressing opposition to proposed water development projects in southern Utah that would negatively impact groundwater and surface water flows in Nevada and supporting aggressive conservation alternatives.
• Request the drafting of a resolution addressing the management of the Colorado River wherein this state: (1) sets forth the principals on water conservation relating to the Colorado River; and (2) shares various conservation efforts it has taken to conserve water in the Colorado River.
• Request the drafting of a bill to clarify the processes and authority for the conjunctive management of surface and groundwater basins, including, without limitation, the public notification processes, appeals processes, and the role of science in modifying management practices within such basins.

Also, the Joint Interim Standing Committee on Natural Resources will consider the following water related actions during their work session:

• Draft a position statement in the Committee’s final report expressing support for
  adequate funding for the Division of Water Resources, DCNR, to update its data
  collection efforts, studies of water basins, and adjudication of water rights.
• Draft a position statement in the Committee’s final report expressing support for
  funding for the Desert Research Institute, within the Nevada System of Higher
  Education, and its programs, including cloud seeding operations.

Click here for more information on the Joint Interim Standing Committee on Natural Resources and here for the Subcommittee on Public Lands.

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In a majority opinion, the Nevada Supreme Court on June 16th approved a groundwater management plan for Diamond Valley in Eureka County. This was an appeal from a the Seventh Judicial District Court, Eureka County, order granting petitions for judicial review. The State Engineer, under NRS 534.037 and NRS 534.110(7), approved a groundwater-management plan for the Diamond Valley Basin as Order 1302. Pursuant to a petition for judicial review, the district court concluded that Order 1302 violated provisions of Nevada law, including the prior appropriation doctrine, vested surface-water rights, the beneficial use statute, and permitting statutes.

Justices Hardesty, Stiglich, Cadish and Herndon opined that the Legislature enacted NRS 534.037 and NRS 534.110(7) to address the critical water shortages in Nevada’s over-appropriated basins and that the statutes plainly give the State Engineer discretion to approve a GMP that does not strictly comply with Nevada’s statutory water scheme or strictly adhere to the doctrine of prior appropriation. The Justices also stated they recognize that their opinion will significantly affect water management in Nevada but are of the belief, however, that-given the arid nature of this State-it is particularly important that they effectuate the plain meaning of a statute that encourages the sustainable use of water. They further opined that the GMP is a community-based solution to the long-term water shortages in Diamond Valley and that because the GMP complies with NRS 534.037 and NRS 534.110(7), it is valid.

In separate dissents, Chief Justice Parraguirre and Justice Pickering argued the law doesn’t plainly and unambiguously give the state engineer the power to depart from long standing rules basing priority on when the water rights were appropriated to the holder and also argued the plan allows an unconstitutional “taking” of private property without just compensation. Both dissenting opinions were joined by Justice Silver.

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Judge Yeager of the Eighth Judicial District Court, Clark County yesterday Ordered that the State Engineer’s Order 1309 issued June 15, 2020 is vacated in its entirety. Judge Yeager’s Order was on consolidated petitions for judicial review of Order 1309 filed by numerous Petitioners. Click here to read the FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING PETITIONS FOR JUDICIAL REVIEW.

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The Nevada Division of Environmental Protection (Division) has decided to not present Proposed Regulation R119-20 which sets forth a process for the State Environmental Commission to classify a surface water of the State or segment thereof as a water of extraordinary ecological, aesthetic or recreational value (EAW) and establishes provisions for antidegradation protection of Nevada surface water resources, to the SEC for adoption as a permanent regulation at the June 15^th hearing.  Instead, the regulatory petition will be changed to an Information Item on the June 15^th hearing agenda to provide exposure and seek input from the commissioners related to the overall intent of the proposed regulation.

According to NDEP comments provided during the workshops and submitted later indicate further revisions and clarification are necessary to resolve several outstanding issues.  NDEP has started to revise certain aspects of the proposed regulation in response to those helpful comments and suggestions that were provided.  A couple of significant preliminary revisions that have been made by NDEP are:

EAW Nominations

Petitions to nominate a water as an EAW will follow one process which is to file the petition with the SEC pursuant to NAC 445B.886.  NDEP will be seeking advice from the SEC at the June hearing on the extent and level of detail of information and material that would need to accompany a nomination petition.  The nominating party would be responsible for assembling all information necessary to nominate a water for classification as an EAW and be responsible for any associated costs.

NDEP will also be seeking input from Commissioners as to what information and material would be expected to be included in a regulatory petition that would be developed if the SEC decided to initiate rulemaking proceedings on the nominated water.  A LCB prepared regulation to classify (designate) the nominated water as an EAW would be heard at a subsequent SEC hearing.  Although not explicitly stated in the regulation, the petition would follow the administrative rule-making process as is currently done for all water quality related regulations.

Antidegradation Provisions  

NDEP is still proposing to retain tiers of antidegradation protection with the following changes:

Tier 2 – High quality water levels will be maintained and protected using the existing RMHQ program.  The process of developing RMHQs would be adopted into the proposed regulation as a way for NDEP to satisfy antidegradation protection requirements when the level of water quality for a parameter is better than the water quality standard.

Tier 1 – Would be applicable to effluent-dominated waters (on a parameter-by-parameter basis) except when RMHQs exist for certain parameters.  A definition for effluent-dominated water has been developed for inclusion in the proposed regulation.

Incorporating the concepts behind RMHQs into the regulation will allow some other major issues to be addressed such as: developing a threshold that defines a better water quality level (e.g., a certain % below the water quality standard level); evaluating the impacts of a discharge from the perspective of how the levels of water quality in the receiving water may be altered.

Other issues planned to be discussed internally before making revisions to draft regulation include:  what situations trigger an antidegradation review during a permit renewal; who should do the antidegradation review for efficiency reasons; and how to address situations where water quality data may need to be collected to develop a RMHQ.

NDEP will also address other issues and matters as they work through the process of revising and refining R119-20.  NDEP will be requesting a time extension from LCB for adoption of the draft regulation and will organize and schedule a meeting to discuss the changes as well as responses to comments submitted.

Proposed Regulation R119-20 is available at: https://hrbwa.com/wp-content/uploads/2022/03/NDEP-R119-20P.pdf

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