# Pyramid Lake Paiute Tribal Council (2022) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Apyramid_lake%3A4d8add81f55b7035 ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text Pyramid Lake Paiute Tribal Council Post Office Box 256 Nixon, Nevada 89424 Telephone: (775) 574-1000 Fax (775) 574-1054 WATER TEAM MEETING MINUTES Tribal Chambers September 7, 2022 Members Present Janet Davis, Tribal Chairwoman Steven Wadsworth, Vice-Chairman Harriet Brady, Councilmember Natalia Gonzales, Councilmember Judith Davis, Councilmember John Guerrero, Councilmember Nathan Dunn, Councilmember Della John, Councilmember Edward Ely III, Councilmember Members Absent: James Phoenix, Councilmember Meeting available via zoom for viewing only. Tribal members wishing to attend may request zoom access by contacting the Tribal Secretary. Chairwoman Davis called the September 7, 2022 Water Team meeting of the Pyramid Lake Paiute Tribal Council to order at 6:01 p.m. ROLL CALL Roll call was taken by Brenda A. Henry, Tribal Council Secretary. Councilmember Phoenix was absent. All other Tribal Councilmembers were present at roll call and a quorum was established for this meeting. APPROVAL OF AGENDA Councilmember Davis motioned to approve the agenda. Councilmember Ely seconded the motion. Votes were eight (8) for and zero (0) opposed with zero (0) abstentions. Motion carried. NATURAL RESOURCES. Donna Noel, Natural Resources Director 1. Request for Approval Updated 2022 Water Quality Control Plan with Resolution. Aaron Bill, Water Quality Manager Mr. Bill requested Tribal Council’s permission to promulgate revisions to the Water Control Plan. The department has been working in conjunction with the Desert Research Institute and University of Copenhagen. This activity is funded by the Clean Water Act which is administered by the US Environmental Protection Agency (EPA). This law was enacted by Congress in the 1970s. The objective of the Clean Water Act was to restore and maintain the biological, chemical and physical integrity of nations water and to achieve a body that could provide the protection and obligation aquatic life and to provide for recreation. He further went on to explain how states and tribes determined water quality standards. Back in May 2022, Tribal Council approved the posting for public comment the revised water quality standards, after the 30- Pyramid Lake Paiute Tribal Council September 7, 2022 Water Team Minutes day posting, it began a series of public workshops and public hearings from May 2022 through August 2022. Councilmember Ely motioned to approve the Updated 2022 Water Quality Control Plan with Resolution. Councilmember Phoenix seconded the motion. Votes were nine (9) for and zero (0) opposed with zero (0) abstentions. Motion carried. RESOLUTION NO.: PL 102-22 2022 WATER QUALITY CONTROL PLAN 2. Request for Approval Bureau of Indian Affairs (BIA) Management Grant with Resolution. Donna Noel, NR Director Ms. Noel said this grant is from BIA for their water management program. Since they didn’t receive any funds for the last two years for water rights, she spoke with Kathy Wilson, who confirmed they would have a better chance of receiving funding if she separated the two grants, which is the reason for the two BIA grants. This one is for water management for their day to day business and the amount is for $437,646. It includes all staff, consulting and management of the office. There is no match, the IDC comes from a separate IDC fund and it’s paid in full. Councilmember Dunn motioned to approve the BIA Management Grant with Resolution. Councilmember Brady seconded the motion. Votes were eight (8) for and zero (0) opposed with zero (0) abstentions. Motion carried. RESOLUTION NO.: PL 103-22 BIA MANAGEMENT GRANT 3. Request for Approval Bureau of Indian Affairs Water Rights Grant with Resolution. Donna Noel, NR Director Ms. Noel stated this grant is to assist with progress with the Navy water under the Settlement Act and to allow them to start working on the Federal Reserve Water Rights for the groundwater which is important due to the building around the borders. Councilmember Davis motioned to approve the BIA Water Rights Grant with Resolution. Councilmember Dunn seconded the motion. Votes were eight (8) for and zero (0) opposed with zero (0) abstentions. Motion carried. RESOLUTION NO.: PL 104-22 BIA WATER RIGHTS GRANT WATER TEAM 1. KEMP JONES LLP. Chris Mixson, Kemp Jones LLP. Report Submitted. Mr. Mixson requested an Executive Session at the conclusion of Stetson Engineers LLP Brief. Reminded Council his report is August 12" since they didn’t have a meeting in August, it’s a little outdated but he will include updates. Truckee Canal Extraordinary Maintenance EIS Lawsuit. This is where Fernley is trying to have the courts reversed the Bureau of Reclamation (BOR) decision to approve TCIDs Truckee Canal lining project. They lost in the District Court and they appealed to the Ninth Circuit. They had a series of mediation conferences with Fernley and the Department of Justice (DOJ) on behalf of the United States, which ultimately went nowhere because although it seemed Fernley might be interested in some sort of limited -2-|Page Pyramid Lake Paiute Tribal Council September 7, 2022 Water Team Minutes settlement of the case, once the TCID board approved the repayment contract with the BOR to borrow the money to pay for the lining, the city decided not to settle the case and proceed with the appeal. They filed their opening brief on August 14‘ and answering briefs are due on September 15t, They have a call with the DOJ attorney in the morning but expect they are going to get at least a two-week extension for the briefs, because the issue on the Ninth Circuit appeal is not on the merits of lining the canal, it’s the merits of Judge Du’s decision to dismiss Fernley’s lawsuit. The reason Judge Du dismissed Fernley’s lawsuit because Fernley doesn’t have standing under NEPA to bring the lawsuit. In order to have standing to bring a case, you have to be harmed, and in Fernley’s case, their complaint was they will be economically harmed if you line the canal because it will cut off the seepage and they won't be able to sell water to their customers and Judge Do said economic harms are not within EPA and only environmental harms fall under NEPA so they didn’t have standing and that is what is on appeal. The issue on appeal is Fernley’s standing under NEPA doesn’t implicate the Tribe. What they will probably do is file a joiner to the Untied States brief to remind or explain to the Ninth Circuit why the Tribe is interested in the seepage issue even at the end of the day, that is not what the case is about. If you remember, they talked about if Fernley ends up winning their Ninth Circuit appeal, which he doesn’t think they will but if they do, they will go back to the District Court and they will have to fight over who actually has a right to the seepage. The brief they file will be a brief joiner that says why the Pyramid Lake Paiute Tribe is so interested in the seepage, because we want more water coming to the lake. They have a meeting with the DOJ in the morning and expects they will get a twoweek extension, if you want more then they will have to file a motion but they shouldn’t need more. Endangered Species Action Section Seven Consultation Process. Not much to report. They have been waiting for the Department of Interior (DOI) Solicitors to provide them in writing a rationale document for why they should put the section seven process under the ESA on hold and instead try to enter into some type of MOU with BOR and US Fish and Wildlife Service (USFWS). The process started because of the Truckee Canal Lining Project and the DOI thought because of the way OCAP works, they were not sure if the ESA process was going to get them reductions and diversions and wanted to consider an MOU with the Tribe and the USFW to agree to a pathway to have reductions and diversions. They asked this to be put in writing because a couple years down the road people change in both the Tribal Council and USFWS and they need a document that people can refer back to as to why they moved off the ESA process and to a MOU. They have been waiting six months now for that document. He spoke to the solicitor a few weeks ago and was told it’s still in progress, the BOR solicitor is still reviewing their documents. They are trying to schedule a meeting with the USFW to see if they can move it along because it’s the ESA and it’s really a USFWS'’s job to be getting the BOR to move it along. Recoupment. In July they filed three different sets of comments with the Federal Water Master regarding the recruitment case dealing with TCIDs payment application back 2016 which is still not resolved. There are basically three issues they are dealing with in those comments. The first set of comments is whether TCID should get recruitment repayment credit for their Donner Lake water they used to own, they don’t own it anymore, but they used to own half of Donner Lake and they want credit for repaying water, Pyramid Lake for water that was released from Donner Lake when they owned 50% of it. They have always objected because TCID didn’t divert their Donner Lake water into the Truckee Canal, its because they were legally allowed to. The whole point of the recoupment payment was for diversions at Derby Dam, and water . that TCID could have diverted and decided not to let it flow past Derby Dam and into Pyramid Lake, that is water that doesn’t count because they weren't entitled to that water so it’s not a true diversion. The second -3-|Page Pyramid Lake Paiute Tribal Council September 7, 2022 Water Team Minutes set of comments is dealing with the computer model that the BOR has been working on for the last several years to quantify these diversions for the 2006 to 2016 period. They had a lot of technical comments on the model. Those comments are reminding the Water Master, whose ultimate job is to figure this out on how much TCID repaid, remind him that the Tribe never consented to the model. One of the problems with it is they would just like for him to pick a payment number and send it to the court, so they can take the matter before a judge because they are not getting anywhere with the Water Master. The third set of comments was notice procedures. This current application is for TCIDs repayment from 2006 to 2016 but they still have to repay more water going forward, and they are trying to get the Water Master to set up a process where TCID actually gives the Tribe an advance notice if they are going to try and repay water to the Tribe and they can account for it in real time, so they don’t have to rely on a computer model to look back in time to figure out how much they actually repaid and they can do it as it happens. CEMEX. They are working with BIA and Bureau of Land Management (BLM) to get their comments on CEMEY’s plan for the stability repair of the pit walls, in the Area A pit. He is trying to get the feds to provide some technical assistance to the Tribe to inform them, in their opinion, in writing, whether the pit wall repair that CEMEX is proposing is a good plan. They don’t have the hydro-geo technical expertise on soils so that is the reason they are working with BIA and BLM to get the expertise. As a reminder BLM has national jurisdiction over mining on BLM lands. The BIA has national jurisdiction over mining on trust lands but the BIA differed, there is a formal MOU between the BIA and the BLM where the BIA differed that mining jurisdiction from the BIA to the BLM and that is why they are working with the BLM even thought this is on the reservation. Truckee Meadows Effluent and Tahoe Reno Industrial Center Effluent Pipeline. TMWA, on behalf of Reno and Sparks filed groundwater right change applications with the Nevada State Engineer for both, moving the effluent to TRIC and for putting instream flows in to replace the lost effluent. The Water Team protested all of it and they have had initial settlement discussions with TMWA, Reno and Sparks. It’s going to be a long process because they learned they are missing permit coverage for some of the effluent reuse that they were already doing. They have entered belated settlement discussion with them to be at the table while they figure out how they want to do their new permits to the Nevada State Engineer to get the proper permit coverage for the existing uses of the effluent. They sent a draft permit proposal but they said it’s probably not going to work. They prepared a term sheet that has a bulleted list of proposed initial settlement terms for this new permit coverage. It is currently to be determined. They have not had a meeting with TMWA to go over the sheet but hopefully will in the next couple of weeks. He was notified of an issue where on TMWA’s next board meeting agenda, they would be considering approval of a contract with NV Energy where TMWA would provide water to the Tracy Natural Gas Power Plant during a drought because NV Energy has Truckee River water rights they use they need for cooling at the power plant. They have Truckee River water rights they use for that purpose, but during a drought, their water rights are not of sufficient priority, so they get cut off in times of drought and is expecting that to occur sometime in October the Truckee River is going to drop low enough that water rights are going to start getting curtailed by priority. TMWA board approved the contract with NV Energy and he spoke by phone to TMWAs Director of Legal and Regulatory Affairs the Tribe would probably have a problem with this. He also sent an email to TMWAs Chairman and Vice Chairman of the Board of Directors the night before asked them to table the item off their agenda because the Tribe had concerns including it may -4-|Page Pyramid Lake Paiute Tribal Council September 7, 2022 Water Team Minutes violate TROA. They didn’t pull it and they approved it anyway and so they may have to dispute brewing. The problem is it’s not much water, maybe 350-acre feet, but during a drought TMWA under the terms of TROA and the ORR Ditch Decree which is where all the Truckee River water rights and other agreements, are when there is a drought, everything is tightened up, including TMWA who have a suite of different water resources that they have in storage upstream. There are rules that tell them during a drought when they can use the water and which sources of water they have to use first and it’s all in TROA but it’s mostly deals they have gotten with the Tribe over the years. In TROA, TMWA needs to be using less water, because water they don’t use, at the end of an irrigation season or at the end of the year under TROA becomes excess water and converts to fish water for the Tribe. They are watching how they use their water to make sure they are not overusing it because their excess water at the end of the year can convert to fish water. That is one of the deals with TROA, they can store drought water and move it around the reservoirs but at the end of the year, if there is excess over a certain amount, converts to fish water for the Tribe. One of the limitations of TMWAs uses of water is they are not allowed to send water outside of TMWASs service area, they can only send it to customers within Washoe County at this point, and Tracy Plant is in Storey County. Provided in his packet is a copy of the draft contract which was approved. They are going to get around this by delivering the water instream to the county line in the river, then float down to Tracy and they are going to build a diversion from the river and pull it out. Personally, he doesn’t think this is going to pass legal muster. They are on notice now, they were told the Tribe had an issue with it but they still approved it. They will have to file some sort of change application for it but depending upon which source of water TMWA uses, they may or may not have to actually file a change application with the Nevada State Engineer. It’s not a lot of water but it’s the precedence that is set. What is the purpose of entering into these agreements if they are not going to honor them for even a little piece of water. Councilmember Brady said a strongly worded letter need to come from the Tribal Council to remind them they need to include the Tribe all the time instead of letting us know after the fact, because they get caught up in their own little world they forget who is at the end. She is upset because you can see the water is barely coming down in Wadsworth, it’s unacceptable. Councilmember Ely asked when they entered this agreement, was there quid pro quo or monetary exchange. Mr. Mixson said he thinks it’s a ten-year deal for 350-acre feet of water for drought season. TMWA isn’t getting any money, they are getting an option to buy NV Energy’s water rights in the future. The water rights that NV Energy has is cut off during a drought but they are still valid good water rights. When he heard that, he thought it doesn’t seem that great because why wouldn’t NV Energy sell the water right they have to operate their plant, but it turns out NV Energy is phasing out gas plants in the state for renewable energy mandates. Apparently, the Tracy plant is on the chopping block in the future and NV Energy won’t need those water rights anymore. It’s an option to buy, first right of refusal, it’s 1,600-acre feet of water. They did send a letter to the Federal Water Master and asked them what they knew about the NV Energy deal. They also did a temporary deal last year which he didn’t know about. They asked them if they knew that the Tracy plant was outside of TMWAs surface area and it becomes a TROA issue. Their response was they were still looking it over but didn’t address it being outside their service area. TROA has a built-in dispute process and it’s possible this becomes the first tribal dispute to ever use that process. It is timely since TMWA is getting a new General Manager starting next month, so it’s an opportunity for a fresh start, he will work with the Chairwoman. -5-|Page Pyramid Lake Paiute Tribal Council September 7, 2022 Water Team Minutes 2. STETSON ENGINEERS LLP. Allan Richards. Mr. Richards said his report covers work performed in July. They attended two meetings on the Truckee Meadows Effluent Pipeline Project that was described earlier. They have protested some of their applications but they are still pending before the Nevada State Engineer who hasn't taken any action on them. If the State Engineer does decide to act it could end up in a situation where a hearing is called for. With Recoupment, the Water Team put together three long letters to the Federal Water Master regarding recoupment and recoupment process and procedures in the modeling. Stetson provided comments and prepared those letters. He did a fair amount of work on the Truckee Basin Water Management Options Pilot Project and the Tribe is a cost share partner in that project. It’s a water supply and flood control management planning study that is developing flexible flood risk reduction criteria. From their perspective, one of the big potential gains out of the study is modifying the Flood Control rule curves that the US Army Corps currently has on Prosser Creek Reservoir. It’s a big benefit to the Tribe because Prosser Creek Reservoir has to be drawn down by November 1: by almost 10,000-acre feet to make space for flood water during the spring runoff. In the rural curves, the current mood curves are so restrictive that when the water is drawn down that far, it doesn’t even fill up even in really wet winters and so they are trying to get some flexibility into the rural curves. The results of the study will have to go in front of the US Army Corps for their review and approval. The other benefit for the Tribe’s participation is with this study is they can control what other participants might be proposing that could have adverse impacts on the Tribe and the Tribe’s interests since TMWA and California are also participating in this study. Had their regular TROA MOA conference call and a scheduling conference call in July. In response to Councilmember Guerrero’s question a couple meetings ago about how target flows below Derby Dam are distributed between ag water use and the flow regime targets, he conferred with their hydrologist, Curtis Lawler, who is active in the TROA and scheduling. It’s not quite an easy answer, it relates back to the purpose of the flow regime targets and how they were developed, with the understanding the flow regime targets have always been sort of a guideline and not hard fast. Mr. Richards explained part of the problem is automation, with the gates at Derby Dam and the new fish screen, most of the equipment has the SCADA systems on it with the intention of people operating it remotely from offices. It’s not like in the 70s, where people physically go out and open the gates and do it manually. Definitely experiencing some large fluctuations in the river downstream of Derby Dam, because of they were messing with the SCADA systems and trying to make it work because it is relatively new. If it helps, there is a chart attached to his report that shows the averages in July. When he looked at it earlier it was a little under 170 but the July average is 140 and there are some days where it dropped off under 100. Ms. Noel said on those days, they called the Water Master and found out TCID was building a pool, and the other two involved TMWA and Hydropower. They would over divert and be sorry and they would say they would put more water in, they were all pointing fingers. It was essentially TMWA and Hydropower who did it twice and TCID once. They are trying to let them know the guidelines are an average, a minimum and it shouldn’t ever go below that. Mr. Richards stated on the TROA website, it shows what is occurring daily in the reservoirs and in the river, it summarizes the Water Master’s accounting of the flows below Derby Dam and how it breaks out. We are in our third dry year below normal. In August, it was upwards of 160 and the lake level was around 3,802 at the end of August. -6-|Page Pyramid Lake Paiute Tribal Council September 7, 2022 Water Team Minutes EXECUTIVE SESSION Councilmember Gonzales motioned to move into Executive Session. Councilmember Ely seconded the motion. Votes were eight (8) for and zero (0) opposed with zero (0) abstentions. Motion carried. Tribal Council moved into Executive Session at 7:08 p.m. Councilmember Dunn motioned to move out of Executive Session. Councilmember Ely seconded the motion. Votes were eight (8) for and zero (0) opposed with zero (0) abstentions. Motion carried. Tribal Council moved out of Executive Session at 8:37 p.m. ADJOURNMENT With no further business before the Tribal Council, Councilmember Ely motioned to adjourn the meeting. The motion was seconded by Councilmember Dunn. Votes taken were all in favor, motion carried. The meeting adjourned at 8:37 p.m. Submitted by, Cruel egy Tribal Secretary CERTIFICATION The foregoing minutes were adopted by the Pyramid Lake Tribal Council, governing body of the Pyramid Lake Paiute Tribe, at a meeting duly held on the 16%_ day of November 2022, having nine (9) members present, constituting a quorum, by the vote of eight (8) FOR and zero (0) OPPOSED, with zero (0) ABSTENTIONS. Minutes attested and concurred by: KwtAlie/ Janet Davif Nepal Chairwoman Pyramid L aiute Tribal Council // // -7-|Page --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Apyramid_lake%3A4d8add81f55b7035. Public record. Not legal advice.