Pyramid Lake Paiute Tribal Council (2023)

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

January 18, 2023

Members Present

James J. Phoenix, Tribal Chairman Steven Wadsworth, Vice-Chairman

Harriet Brady, Councilmember Natalia Gonzales, Councilmember

Judith Davis, Councilmember John Guerrero, Councilmember

Nathan Dunn, Councilmember Della John, Councilmember

Edward Ely II, Councilmember Genevieve John, Councilmember

Meeting available via zoom for viewing only. Tribal members wishing to attend may request zoom access by

contacting the Tribal Secretary.

Chairman Phoenix called the January 18, 2023 Water Team meeting of the Pyramid Lake Paiute Tribal

Council to order at 6:00 p.m.

ROLL CALL

Roll call was taken by Brenda A. Henry, Tribal Council Secretary. Councilmember Dunn arrived at 6:02 p.m.

All other Tribal Councilmembers were present at roll call and a quorum was established for this meeting.

APPROVAL OF AGENDA

Councilmember Genevieve John noted there was a duplication regarding the TRFMA Grant. A duplication

was confirmed and the one listed under Kemp Jones LLP for action was removed.

Councilmember Dunn said they tabled Mervin Wright's requests at the January 6 meeting and wondering if

they should be brought back under the Water Team meeting because it had concerns about microplastics in

the water and water quality.

Councilmember Davis said they had the discussion before, only what is under the Natural Resources

Department is placed on the Water Team.

Councilmember Dunn motioned to approve the agenda with the removal of the TRMA Grant and resolution

from under the Kemp Jones LLP brief. Councilmember Ely seconded the motion. Votes were nine (9) for and

zero (0) opposed with zero (0) abstentions. Motion carried.

CONSENT AGENDA

Item on the consent agenda:

1. Approval Kemp Jones LLP December 2022 Invoice.

Pyramid Lake Paiute Tribal Council

January 18, 2023, Water Team Minutes

Councilmember Brady motioned to approve the consent agenda. Councilmember Davis seconded the motion.

Votes were nine (9) for and zero (0) opposed with zero (0) abstentions. Motion Carried.

NATURAL RESOURCES. Donna Noel, Natural Resources Director

1. Request for Approval to Post Aquatic Invasive Species (AIS) Kayak Film. Adrienne Juby,

Environmental Specialist, Aquatic Invasive Species Program

Ms. Juby explained a part of their AIS prevention and their program is outreach and educational videos.

They like to post to You Tube, Facebook and the Tribe’s website. This video is an educational video on how

to clean, drain, and dry non-motorized hand-launched watercraft, like kayaks, canoes, belly boats and

anything that fisherman are using to include the recreational summer users with their kayaks and stand-up

paddle boards. She is also looking for recommendations/suggestions from Council for this video and future

videos. They are looking for permission to post.

Councilmember Brady recommended including a disclaimer to remember to only go into designated areas.

Councilmember Davis motioned to approve the posting of the AIS Kayak Video with the addition of the

disclaimer to always remain in designated areas. Councilmember Della John seconded the motion. Votes were

seven (7) for and zero (0) opposed with two (2) abstentions (Brady, Ely). Motion Carried.

2. Request for Approval Water Quality Grant with Resolution. Aaron Bill, Water Quality Program

Manager

Mr. Bill is requesting approval to apply for funding under the Environmental Protection Agency (EPA),

Section 319 of the Clean Water Act (CWA) for funding projects to improve water quality to mitigate nonpoint

source pollution. This is pollution that can’t be pointed to as coming out of a point source like a pipe or

smokestack.

A background on Hardscrabble Creek was provided. The creek originates from the hills west of Sutcliffe, and

terminates into Pyramid Lake and is a perennial stream which means it’s entitled to additional protections

under the CWA. The stream flows through Sutcliffe and prevents a variety of pollution inputs, both point

source and nonpoint source. In 2016 there was a fire that destroyed a lot of native vegetation in the

watersheds and in 2017, the conditions were further exasperated due to a high flow event which destroyed

a lot of the channel causing vertical cutting. Today, there is still the same condition as it was after those

calamitous events and they are seeking funding to rectify it. In the proposal there are three phases identified

at Hardscrabble Creek to use to reach their goal. They are applying for funding for next year and don’t have

the full project details because they are funding the project study which will occur later this year. They will

be added as a deliverable for the end of year EPA reports. They will be doing hydro modifications on the

stretches to include water quality protections which is the primary focus of the grant. It will include some

improvements to the health considerations of Sutcliffe as well as the fish. They will be looking to repair,

replace or even reconnect the existing infrastructure which is an exposed pipe due to the channel cutting.

Further up the creek there is a retention pond and coming down from there is severe cutting, 10-15 feet deep

in some places which they will be looking to restore. The middle stretch is what they call the ranch stretch

because it includes the property of Hardscrabble Ranch. In this area there is cutting but not as severe as the

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upper stretch, they are looking to rebuild and bring up the water table so they can hydrate this area. The

lower end of this stretch is green because the area ground remained level. They will be looking to reclaim

some tribal assets such as the field which was previously generating alfalfa. Their goal is to add some flood

mitigation to slow the flows as they come down. As you drive back down the road to Sutcliffe there is a pipe

that was used to convey water to the lower field which is useless now, there are noxious weeds that are

growing in and they are looking to correct this. It will occur over time with the engineering they have

planned. The lower stretch which is as you go up the canyon, there is a metal shed, this is the area where they

are looking to make this a restorative wetland where it will convey water quality improvements as well as

flood mitigation. They are looking to connect the United States Geological Service (USGS) flood warning

system in place which was made useless because of the lowering of the water table. The vertical cutting is

not as bad as the higher stretches, it’s about 2-3 feet. They will be looking to slow the water down and raise

the water table up so the native plants could get a chance to regenerate. This is a general concept, it’s not the

final designs which is still forthcoming. They intend to hydrate the full field, putting in some dams and to

spread the water. This will convey water quality improvements by removing nutrients as well as slowing

floodwaters down.

Councilmember Ely asked if there will be funding to maintain it, with minimal maintenance and high-water

years.

Mr. Bill said the idea is to engineer it so that over time it will repair itself. They want to slow down the

sediment so it drops and not get pushed down to the lake. This is one part of what they want to improve on

the property, they will also be putting in fencing as part of the Baer Burned Area and have rehabilitation

activities. They would like to have other inputs that they can’t necessarily put on the application.

Councilmember Davis motioned to approve the EPA CWA Hardscrabble Creek Hydromodification Project with

Resolution. Councilmember Brady seconded the motion. Votes were nine (9) for and zero (0) opposed with

zero (0) abstentions. Motion Carried. RESOLUTION NO.: PL 007-23 EPA CWA HARDSCRABBLE CREEK

HYDROMODIFICATION PROJECT

3. Request for Approval EPA General Assistance Program (GAP) Grant with Resolution. Donna Noel,

NR Director

Ms. Noel said they’ve had the GAP grant since the 90s, it’s an administrative grant that pays for half of her

and the Environmental Assistant's salary. It’s used to maintain all the grants in the department, supports the

recycling program and solid waste program. A big project for this year will be the rewiring of the Natural

Resources building. She talked to her grant project officer and as long as they split it up, she can pay a third

of it through this grant. The grant is 100% of the 22.06 IDC, the total grant is $225,165. and it’s primarily

salaries, the annual conference, solid waste conference, promotional items and outreach supplies. Under this

grant they have Earth Day, the electronics recycling, beach and river cleanup and the electrical wiring will be

$18,000. It also supports the utilities, phone, and propane.

Councilmember Genevieve John said she noticed other grants had some costs associated with the electrical

rewiring, are they going to be combined? Ms. Noel said all the grants will pay a portion. This grant will pay

$18,000, PUD will pay $15,000 and the rest will be split among the little grants they have. The biggest part of

the rewiring is getting the wire from the pole to the building because it’s old and they can’t put any more load

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onto it. They will get rid of a lot of the spaghetti in the attic because it’s thin and they need more plugs. They

will have it wired for a new heating and cooling system, which they will look for funding for those, and they

can eliminate a lot of the portable heaters and air conditioners. The old boxes will be upgraded.

Councilmember Ely said he remembers doing work with Johnnie Garcia when they were designing the

parking lot and Loomis, the electrical engineers couldn’t even date the boxes because they were so old.

Councilmember Dunn motioned to approve the EPA General Assistance Program (GAP) Grant with Resolution.

Councilmember Brady seconded the motion. Votes were nine (9) for and zero (0) opposed with zero (0)

abstentions. Motion Carried. RESOLUTION NO.: PL 008-23 EPA GENERAL ASSISTANCE PROGAM (GAP)

GRANT

4. Request for Approval Truckee River Flood Management Authority (TRFMA) Grant with

Resolution. Donna Noel, NR Director

Ms. Noel said this grant is for $90,000 which was proposed by the TRFMA, they will give the Tribe the funds

to support the negotiations and writing of a Memorandum of Agreement (MOA) on how much mitigation

funds they are going to provide the Tribe for the Lower Truckee River restoration for the increase flows that

will result from their upstream flood project at primarily Vista Narrows and some minor elevation in flood

for sea walls they are doing in Sparks. The majority of the funds will go to Stetson Engineers and Chris Mixson,

for their negotiations. They do have the FEMA report which show sites that have been mitigated and

mitigation cost analysis. They have identified some areas that will be affected by the extra flow and will take

this information to come up with a good defensible number in the millions for them to give to the Tribe for

lower Truckee River restoration projects. A small amount will go to her salary and IDC will be covered in it.

Mervin Wright said in 2019 they received a FEMA grant to complete preliminary engineering reports on 13

banks, they got half the funds and they completed 13 reports on 13 gateway sites starting in Wadsworth to

Nixon below Marble Bluff. The highest priority now is the Hunter site in Wadsworth, across from S Bar S, the

stream bank is probably 100 feet to the irrigation ditch. There is also the Copeland site just upstream and the

John side further up. In Nixon is the Lowery-Frazier site is priority and they just noticed Terrance Wright's

place there are some serious erosion occurring and there is a huge beaver dam.

Councilmember Della John said in the agreement if they get sued, the Tribe has to pay the cost, what is the

purpose of that? Mr. Mixson explained 7.2 says in the event of a lawsuit against TRFMA arising out of the

activities of PLPT, should PLPT be unable to defend TRFMA, the Tribe shall reimburse TRFMA. If using the

funds, the $90,000 from this grant, if the Tribe messes up and causes TRFMA to get sued because it was

TRFMAs funds that the Tribe was using when the Tribe messed up, the agreement says the Tribe will pay the

lawyer bills for TRFMA. It’s common term in a contract, called an indemnity. Councilmember Ely asked if

Stetson Engineers be responsible since they designed it, and signed off on it? Mr. Mixson said yes, potentially

but this contract doesn’t call for any design work or construction. This is funding for the Water Team to figure

out some areas along the river like Mr. Wright was pointing out, that may need to be mitigated in the future

because of the flood project and then for the Water Team to negotiate for future mitigation. There is no

construction under this, the only work is for what the Water Team would do anyways but they are paying

them to do it.

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Councilmember Della John said the way the irrigation comes down and the farmlands are the only ones with

water rights, they have to protect those farmlands. Once they get washed out, they don’t exist anymore and

the Tribe can’t claim the water rights. The Water Team needs to be aware of this, if there is no farmland in

production, you can’t demand it from the reservoir, it’s important because it’s their livelihood. Ms. Noel said

that is the reason they are tying to get this done, get some of the streambanks repaired so when it does flood

it won't erode everything away.

Mr. Wright said the monitoring of the water rights is usually scheduled by the Water Master. Whenever the

date is determined, when irrigation begins, they will then start monitoring the flows in the ditches, ifit’s prior

to the turn on date, nothing will be charged against our allocation.

Ms. Noel said TRFMA is going to fix the Conestoga flooding area. They will present to Tribal Council to explain

their designs, what they will be doing and the NEPA down the road.

Councilmember Ely asked Mr. Mixson if he felt comfortable with the contract. Mr. Mixson reviewed the

contract and made changes to it before it was finalized.

Councilmember Gonzales said there are more areas that is being looked at to repair and with the last heavy

rain, the lands were flooded again so it is getting worse.

Ms. Noel said with the Hardscrabble Project they are trying to build a position for a stream bank mitigation

person. Someone they can bring in on an Environmental Specialist position and be able to work on these

types of things, it is something they are working towards. The mitigation funds will be a good match for the

FEMA grants, it’s 25-50% matches and they can double their money that way.

Councilmember Davis motioned to approve Truckee River Flood Management Agency (TRFMA) Mitigation

Funding Grant Agreement with Resolution. Councilmember Ely seconded the motion. Votes were seven (7)

for and zero (0) opposed with two (2) abstentions (Della John, Brady). Motion Carried. RESOLUTON NO.:

PL 009-23 TRUCKEE RIVER FLOOD MANAGEMENT AGENCY MITIGATION FUNDING GRANT

AGREEMENT

5. Request for Approval BIA Noxious Weed Grant with Resolution. Donna Noel, NR Director

Ms. Noel said they have had this grant for over 10 years and it takes care of noxious weeds along the river,

around spring time, along range land, wherever noxious weeds crop up. Ryan Dunn detects, GPSs the location

and makes maps. It’s an ongoing process because they come down the river constantly. The downfall with

this grantis it’s only a 10% IDC but they will be able to use the Baer Grants which has a noxious weed element

in them to make up the difference of the IDC so they get the full 22.06 % and there is no match. It employs

two tribal members.

Councilmember Ely motioned to approve the BIA Noxious Weed Program Grant with Resolution.

Councilmember Brady seconded the motion. Votes were nine (9) for and zero (0) opposed with zero (0)

abstentions. Motion Carried. RESOLUTION NO.: PL 010-23 BIA NOXIOUS WEED PROGRAM GRANT

WATER TEAM

1. KEMP JONES LLP. Chris Mixson, Kemp Jones LLP. Report Submitted.

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Mr. Mixson provided a general outline of the pending matters for the Tribe.

Truckee Canal Extraordinary Maintenance Project and Fernley’s Appeal. In December 2020 when the

Bureau of Reclamations (BOR) finally signed the Final EIS for the Truckee Canal Extraordinary

Maintenance Project which was to fix the canal after the 2008 flood. Essentially, they are lining a significant

portion of the Truckee Canal where it goes through Fernley. They are also replacing some of the big check

structures on the canal that are in Fernley with a goal towards making the canal safer so it doesn’t breach

again and cause another flood. The reason for the lining is it’s a part of the safety problem and water leaks

out which causes the canal to be less stable another cause for the 2008 flood. Lining it is going to stop the

seepage of Truckee Canal Truckee River water into the Fernley aquifer. Fernley sued the BOR when they

approved the EIS back in 2021. The Tribe intervened in the lawsuit on the side of the government because

lining the canal is something that the Tribe supports. It could mean less water is diverted because the canal

is more efficient if it’s aligned. BOR filed a motion to dismiss Fernley’s lawsuit primarily on the grounds

that Fernley doesn’t have standing to bring a NEPA lawsuit under the National Environmental Policy Act

because Fernley’s harm that it was alleging was not environmental, it was economic, so Fernley was saying

cutting off their groundwater supply for their residents. The Department of Justice (DOJ) argued that is not

an environmental harm, it’s an economic harm, they are concerned about selling water to the residents of

Fernley. Judge Du agreed with the United States and the Tribe joined in the motion. Judge Du dismissed the

case with prejudice which means if she found a procedural error in Fernley’s complaint, they are not

alleging environmental harms, typically a dismissal of a complaint like this early in the case would be

without prejudice, meaning they can fix the procedural problem and come back and proceed with the

lawsuit. But she dismissed with prejudice, meaning no opportunity for Fernley to go fix the procedural

errors which is a win for the Tribe and BOR. Fernley appeal to the Ninth Circuit Court and that briefing is

underway. They filed their reply brief the day before and Council will have it in their next brief. The appeal

is now fully briefed and oral arguments are in Las Vegas on March 8". He will probably attend with an

associate but won't participate in the arguments because the issue on appeal is procedural and it’s a

procedural issue for the feds and he will be present in case the Ninth Circuit justices want to ask questions

about the Tribe. In the past members of the Council, the Chairman and Vice Chairman have been invited to

sit in and watch. Typically, they are in San Francisco, this one is in Las Vegas.

BOR, Endangered Species Act (ESA) Section Seven Consultation Process. Whenever the federal

government is taking an action or approving someone else’s action that may have the potential to adversely

impact a listed species, they have to do a review under Section Seven of the ESA. About four years ago, BOR

determined during the Truckee Canal EIS process they needed to do a Section Seven Consultation over

ongoing operations at Derby Dam under the Operations Criteria & Plan (OCAP), a federal regulation. When

they issued it, they had to do a Section Seven review to see what could the impacts of federal regulation be

on the fish and OCAP reduced diversion, so it had positive impacts on the fish. But at that time when they

did adjust OCAP in 1997, they did not review the impacts on the Lahontan Cutthroat Trout (LCT), they only

reviewed impacts on the Cui-ui because LCT were not spawning in the Truckee River at that time. Fast

forward to the EIS process for the Truckee Canal Project, they realized they can’t rely on the endangered

species analysis done in 1997 because it didn’t look at LCT. They needed to do a new ESA review under

Section Seven for ongoing operations under the OCAP on both LCT and Cui-ui. This project is still on-going.

The BOR in consultation with the US Fish & Wildlife Service (USFWS) issued a biological assessment, which

was when the question is asked what are the impacts of this federal action on the fish? The agency that is

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doing the action has to do a biological assessment. The biological assessment said yes, diversion under

OCAP could be having an effect on the fish which kicks it over to the USFWS to do a biological opinion (BO).

The biological opinion is the USFWS’s formal decision about what the impacts are and if there are impacts,

what are the mitigation measures should they be taking. The USFWS has been working on the BO for

several years. The Tribe is in full consultation with both agencies with the process. The BOR said there is no

discretion under the OCAP, the OCAP is a series of calculations they use to tell Truckee Carson Irrigation

District (TCID) how much water they can divert into the Truckee Canal. They don’t get to make decisions,

they just run the calculations and that tells TCID how much they can divert. The USFWS is concerned they

can write a BO which says diversions of Truckee River water into the canal are adversely impacting LCT

and Cui-ui, but BOR has no discretion to change those operations. They don’t want to be in a position where

the agencies hands are tied and there is no way for them to tell TCID and BOR to order diversions even

further. For a couple years now, they have been trying to figure what to do with this issue, the best they

have come up with is instead of a BO, they do a Memorandum of Agreement (MOA) with the Tribe, USFWS

and BOR that has efficiency measures that TCID can do that are outside of the Section Seven process. They

have been working on the MOA and are waiting on the solicitors (BOR Attorneys) to come in to provide

input. They are hoping to get some action going on this in 2023 and it’s been a learning curve for all of

them.

Mervin Wright commented when it comes to spawning flows and the lower river, the purpose of TROA-

MOA, is of designated flow regimes, scheduling releases and scheduling the management of the flows

corresponding. In years past when TCID did have their right to divert, the Water Master is responsible for

making sure the flows above Derby Dam are the same as below with diversions. He is not sure what the

MOA will accomplish because the OCAP already contains requirements for efficiency. Mr. Mixson stated

most of them are voluntary. Mr. Wright continued it is BORs responsibility but if the MOA is supposed to

tighten the clamps on BOR to get the efficiencies maintained and achieved, he guesses that is what it’s

supposed to do. Mr. Mixson said that is what it’s supposed to do. There are efficiency measures in the OCAP

for TCID to implement but they are mostly voluntary. The idea is for the MOA to change those from

voluntary to mandatory.

Navy Water. Under the 1990 Settlement Act, the Naval Station at Fallon was told by Senator Harry Reid to

do a study to figure out if they can use less water. They had land within the Naval Base boundaries that they

were leasing to farmers in Fallon to grow alfalfa on their property. The question was why were they

growing alfalfa? They said they needed a soft landing in case their pilots had to eject and land on. Under the

Settlement Act, the Navy was required to conduct a study to see if they can reduce their water use. This is

an Endangered Species Act provision and every arm of the federal government, including the military has

to comply with the Endangered Species Act. The issue is they are using water from the Lahontan Reservoir

to grow alfalfa and that water is Truckee River water that should not be diverted. Their mission is not to

grow alfalfa. The Navy did the study and they could reduce water usage, irrigation is still occurring but not

as much. This is the Navy water, which is water rights formerly owned by the Navy, that under the

Settlement Act is supposed to be managed primarily to benefit the listed fishes in the lower Truckee River

and Pyramid Lake. This hasn’t happened. The water has never been managed for the Tribe. What happened

was the Navy transferred ownership of their water, these unused water rights to the USFWS to use at the

Stillwater Wildlife Refuge in Fallon. That’s how it’s been used for the past 20 years or so. The Tribe couldn't

get the benefit of the water until TROA went into effect in 2015. They have been working with the USFWS

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since then to develop a management scheme for the Navy water rights to identify the hydrologic conditions

when the water could benefit Pyramid Lake or when the hydrologic conditions could still be used at Fallon.

They are at an impasse with the Stillwater Refuge who doesn’t want to give up control of the water, even

though the Settlement Act says they have to, they get to keep owning it. The Settlement Act says the water

is owned and managed by the Secretary of the Interior but it’s primary use is supposed to be for Pyramid

Lake fishes. They've sent letters to the USFWS and to Secretary Haaland. It’s been two years and in that

time he’s had conversations with the Department of Interior lawyers but there was never a formal

response to any of the Tribe’s letters. The letter sent two years ago to Secretary Haaland asked for a

government to government consultation with the Tribe to establish a negotiating committee, the Secretary,

Tribal representatives and the USFWS to work it out but they have never received a response. They can

discuss future meetings in closed session on what the next steps will be.

Recoupment. In the 1990s Settlement Act there is a provision that says the United States is hereby

authorized to try to negotiate with the TCID to get them to return the water they stole from the Tribe.

When the OCAP was first issued in the late 60’s, TCID refused to comply, they refused to recognize any limit

on their right to divert water from the Truckee River into the Canal and enter their project. The United

States, up until the Settlement Act had always said their hands were tied, there is no legal method for them

to seek recoupment of water that TCID over diverted. In the Settlement Act they were given the authority

to try and negotiate with TCID to get them to agree to return the water. If they don’t, the United States is

authorized to sue. They negotiated, got nowhere and they sued in 1994, the Tribe intervened on behalf of

the United States against TCID. It was long and drawn out, and due to the complexity of the OCAP it is not

easy to prove they diverted more water than they were allowed. In 2003, the United States and Tribe

prevailed. The judge awarded 294,000 acre-feet to the Tribe. The Tribe appealed to the Ninth Circuit and

said that is not enough water since the original complaint filed by the United States sought in excess ofa

million acre-feet to be returned to the Tribe. Judge McKibben, who has since retired after the trial, awarded

just shy of 200,000 acre-feet, the Tribe appealed again and were successful. The Ninth Circuit said that is

not enough, it was increased to 260,000 which the Tribe said was not enough. The Tribe appealed again to

the Ninth Circuit which the United States did not participate this time but the Tribe won and the amount

was closer to 400,000 acre-feet that TCID owed the Tribe. Ever since then the Tribe has been fighting over

repayment. In 2016, TCID filed a request for certification of repayment, claiming they repaid 620,000 acrefeet to the Tribe which was more than they owed which means the methodology for how they came up with

that number is flawed. The process is, TCID files an application for certification with the Federal Water

Master saying they repaid so much, then the Tribe and United States gets to provide comments, TCID files a

reply and then the Water Master decides how much he thinks TCID has repaid, he files his certification to

the Federal District Court and they all fight about it in front of the Federal District Court who makes the

final decision. At this point, they are still waiting for the Water Master to file his final certification to the

court for water repaid during the 2008-2016 period. They have been grappling with the Water Master

about how the amount of repayment should be calculated. TCID is saying they are repaying water when

they are entitled to divert into the Truckee Canal and they shut down the Canal for maintenance, they are

saying they didn’t divert water they could have diverted to float to the reservation and to the lake. It’s

complicated trying to figure out how much it was particularly if your have to look back 10-15 years.

Nobody was keeping track at that time, so the Water Master developed a computer model to try to figure it

out but the Tribe doesn’t like the computer model because it’s is only an estimate and it’s only as good as

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three times a month and with each report they haven’t gotten below 4023 which is where they were in

April of this past year. They are moving south but according to aerial surveys they are within their

boundaries. Ms. Noel said they are stacking to allow it to drain before it’s removed. Her office is having

water quality look at it to make sure there is no discharge from the property especially around rain events.

All that is needed is a picture of sediment coming off the property and EPA will be back on their doorstep.

Mr. Mixson said they have been trying to get BLM and BIA to conduct regular field inspections which should

have been done all along. They will do it twice a year but thinks they can ask to increase to once a quarter.

Truckee Meadows Effluent and Tahoe Reno Industrial Center (TRIC) Effluent Pipeline. Some time

ago they received word of a plan to build a pipeline from the water treatment plant in Sparks out to TRIC. It

was to be used for their tenants or customers as industrial water because it is not potable, it’s semi-treated

and it’s not drinkable. The concern is the effluent has for many years been water that is put back in the

river and it contributes to the quantity of water that comes down the river, particularly during dry

summers and it is not uncommon the effluent can be the only water coming down the river during really

dry times. If that water is no longer in the river, then it could impact the Tribe and so they are concerned

about the pipeline sending effluent to TRIC. They have had two meetings with Switch, the data center

company, who needs the water to cool their servers and they can use partially treated effluent for that

purpose. It was explained to them the Tribe’s concerns and at one point, Switch hired Pat Mulroy, who was

the longtime general manager of the Southern Nevada Water Authority, she was a big deal in Southern

Nevada Water politics and she was the one who was going to build the big pipeline from the far

Northeastern rural valleys in Nevada and pipe it down to Las Vegas. That project is more or less dead, she

retired but Switch hired her, not sure why, but she tried to stare them down at a meeting but that didn’t

work. Unsure if Switch is still working behind the scenes but they haven’t dealt with them in a long time.

They finally figured their best bet was through the Truckee Meadows Water Authority (TMWA). TMWA and

the Tribe are the two biggest players on the Truckee River in terms of water, water rights and water use.

TMWAs service area is the city and Washoe County and TRIC is outside their service area, they are in Lyon

County but TMWA is still able to work on the effluent reuse issues for the local governments. If effluent is

removed from the Truckee River system, the river has to be kept whole and they have to bring in other

water rights into the river to make sure that downstream of the water treatment plant and Sparks the river

is the same as it would have been before they started taking the effluent out and TMWA understands this.

The question is what method are they going to use to keep the river whole? They filed change applications,

as discussed prior with Council, several months ago which includes two applications. Reno-Sparks have to

change their effluent reuse permit to allow them to send that water out to TRIC and then have to file a

separate change application for instream flows to keep the river whole because they are sending the

effluent out. Two different change applications were filed. The Tribe protested all and they have been

negotiating with TMWA, who is representing the cities in these negotiations. They are currently on hold

because while they were in the process of negotiating the protests, TMWA realized the change applications

don’t have the proper permits for their existing effluent reuse, the one where it is sent around Reno and

Sparks to water golf courses, parks and landscaping at the schools. They have been selling approximately

1200-1500-acre feet a year of effluent water to customers within Reno and Sparks but their permit only

allowed them to use up to 690-acre feet. They came to the Water Team and admitted they don’t have the

proper permit coverage to be using the effluent but they have been keeping the river whole for every acre

foot of effluent they sent out, it has a return flow component, that means they have been keeping the river

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the data put into it. They think the Water Master is about ready to file his final certification to the Federal

Court and it’s going to be about 55,000 acre-feet. About 20,000 of that is Donner Lake water, TCID used to

own half of Donner Lake and claims they used to send that water to Pyramid Lake. The Remaining 35,000

water is for voluntary canal closures. They have also shut down the Canal entirely for the Extraordinary

Maintenance Project, the line project and will claim additional repayment during that time. Mr. Mixson

thinks they are probably entitled to some water but it gets down to how do they calculate. They have asked

the Water Master to do it in real time but since they are not allowed to divert because there is so much

water now. In most of December they were not diverting water which they could have diverted and they

were asking the Water Master can he start keeping track of it in real time. Can’t understand why it’s so

difficult but he wants to run it through his computer model which is a continuing challenge going forward.

Councilmember Della John asked if it’s difficult to track in real time. Mr. Mixson said it’s difficult because

with the repayment calculations there are three components under the OCAP. How much water would

TCID be allowed to divert? The other component is how much water is available in the river that they

actually could have diverted and then what they call water availability, how much is available. There is the

issue of them being under safety restrictions on the height of water in the canal that have been in place in

some form or another since the 2008 breach. They don’t have that information, the Bureau of Reclamations

(BOR) has the OCAP information and the Water Master is the one who tells them on a daily basis of the

water in the river and how much they are entitled to take. That information is not readily available, that is

why they have been asking the Water Master to do it in real time. Hopefully, in the future the information

will be more automated and the information will be publicly available.

CEMEX. The lines of communication are more open than they were in the past. There are technical

meetings happening with only technical people involved, the hydrologists and Ms. Noel is attending, no

attorneys are involved. They are trying to figure out what is their actual plan for repairing the western pit

wall in the area A pit? They have seen their 30% engineering design for what the finished project is going to

be but what is the actual plan? They are going to have to dewater the pit, what's the plan for dewatering the

pit? How fast are they going to do it? How are they going to ensure the wall doesn’t cave in once they

remove the water from it? These are questions they haven’t answered yet. There is a meeting with them on

February 6, The meetings are on-going and become productive after a lot of baby steps with CEMEX to get

to this point. The main point is the lines of communication are open and they seem to think the Tribe’s

concerns are real and they just can’t sweep it under the rug. Before they can start fixing the area, they need

a discharge permit from EPA, to discharge that water to the river. He is not sure CEMEX fully understands

the challenges they will have with those discharges because of the high TDS and the potential high

temperature during spawning season. It will pose a real challenge for CEMEX which they haven't fully

internalized yet. If they can’t discharge during spawning season, it means the pits are going to be filling

back up during spawning season and they need the pit to be dried out before they can do the repair. Those

are things they are trying to get them to think about and they needed a lot of help to understand what these

issues are. There is also the ongoing mining and intermittent discharging in the area D pit, and as far as

they know they are getting regular reports from them and they are keeping the flow elevation steady at

2973 feet elevation. Currently, it’s not much of a legal issue but a technical process.

It was stated it’s getting worse. Mr. Allen said they are mining and expanding within the limits of their lease

area, and they are removing a lot of gravel but as Mr. Mixson mentioned they are providing reports, up to

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whole they just didn’t have all the proper permits for the amount of effluent they were using. They put the

effluent pipeline negotiations on hold so they could negotiate with them on the permit. He worked up a

draft memorandum of agreement (MOA) that was sent to TMWA the week prior for their lawyers to review

and probably won't be ready until the February meeting. More information next meeting in a closed

session. The main point is keeping the river whole and it comes down to accounting, so Mr. Allan and Ms.

Noel are working with TMWA to develop the accounting system for tracking all the moving parts.

Councilmember Brady said if they are successful in creating a model they should send it to the Water

Master.

Mr. Mixson explained the Water Master’s day-to-day responsibility is to make sure the river is kept whole,

to ensure the Tribe’s water rights are being satisfied and when they are sending this effluent out they are

not impeding the Tribe’s water rights. They have been developing this accounting with TMWA who reached

out to the Water Master who wants to develop his own model, apparently to do the same accounting which

is the same platform as the model he is using for the recoupment repayment. When you do a protest of a

change application that goes before the Nevada State Engineer and if the applicant and the protestor can

come to a resolution of their dispute, then you file a stipulation with the State Engineer that says if you

issue the permit, grant the application with the conditions that the two parties have agreed to, then you can

deem the protest withdrawn. That’s how it’s resolved.

Truckee Meadows Flood Management Authority (TMFMA) - Proposed Mitigation Fund. This was

presented by Ms. Noel for the grant agreement. To reiterate, the $90,000 is essentially money for the Tribe

to negotiate a much larger mitigation fund with TMFMA. It is to pay the Water Team to do the legwork to

determine in the future, where the stream bank and river restoration projects will need to occur to mitigate

the impacts from the flooding and to put numbers to it so they have a basis to negotiate the larger

mitigation fund with TMFMA. There is no designing, no construction, it’s for the technical and legal

negotiations for the larger agreement.

Councilmember Della John asked if they would be using the FEMA work and Mr. Mixson responded they

would, which is why they want to get the grant funding from TMFMA. Mr. Allan can get to work looking at

all the documents and see what the future potential mitigation projects the Tribe would want to do and

how much they might cost in the future. That would allow them to negotiate with TMFMA for the mitigation

fund and the fund will free up money that the Tribe can use to get grant matches from FEMA or other

agencies.

Federal Reserved Groundwater Rights. On March 7, 2017, the 9t Circuit Court of Appeals issued its final

opinion in the Agua Caliente Tribe reserved groundwater rights case which fully affirmed and upheld the

Federal District Court Decision that the Winters reserved water rights doctrine includes groundwater in

addition to surface water. For the Pyramid Lake Paiute Tribe this is important because of an adverse

Nevada State Supreme Court case from 2010 where the Nevada Supreme Court said the Pyramid Lake

Paiute Tribe does not have Federal Reserve groundwater rights because its federal reserve water rights

were fully adjudicated in the ORR Ditch Degree which was the Truckee River adjudication case. That

decision from the State Supreme Court is completely wrong, Mr. Mixson always felt the ORR Ditch Decree

only adjudicated the Truckee River, it didn’t adjudicate any groundwater rights and that is consistent with

all the other river decrees throughout Nevada. They all adjudicated surface water rights and not

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groundwater rights and the Nevada Supreme Court cannot take away the Tribe’s Federal Reserve

groundwater rights, they exist whether the Nevada Supreme Court knows they exist or thinks they exist or

not. The problem arises with the State Engineer of Nevada, who is managing all the groundwater basins

throughout the State, for all the non-tribal entities. They don’t have to recognize tribal reserve groundwater

rights because they would say the State Supreme Court told them, the Tribe doesn’t have any Federal

Reserve groundwater rights and unless or until the court tells them otherwise, they don’t have to worry

about the Pyramid Lake groundwater rights when they are giving out water rights to other entities and

managing water rights in shared basins when it is within the reservation boundary. Over the years the

Water Team has been thinking about litigation strategy where the Tribe is making the first move and want

to make sure everything is in place and it’s strategically thought out because lawsuits aren’t guaranteed. In

this case they have a good shot because of the Agua Caliente case but you never know, maybe 2023 is the

year.

Councilmember Della John said with Dodge Flats, you got to use it or lose it. The Tribe has already lost it so

there are no economic water rights there because it was lost in 2010. It’s what the State Water Master

recognized.

Mr. Mixson said he didn’t agree, it has to be settled to stop the State Engineer from letting other people do

things with the Tribe’s water. The Tribe can do whatever they want, regardless of what the State Engineer

says, with the water and groundwater on the reservation. The Tribe does not need approval from the State

of Nevada. Councilmember Della John said that court decision is in place now. Mr. Mixson responded they

don’t have jurisdiction over the Tribe. That decision only affects the State Engineers, management of water

for non-tribal entities. The State Engineer can’t dictate how the Tribe uses groundwater on the reservation.

They have no jurisdiction, they have informed them over the years, they call it comedy, that they want them

to know what the Tribe is doing with its water so the State Engineer can properly manage other non-tribal

uses of water. Councilmember Della John said they have the Sierra Pacific Power well right on the Tribe’s

boundary. Mr. Mixson said it’s off the reservation but it is the case that was lost in front of the State

Supreme Court, they were converting it from mining water rights to municipal or industrial water rights

and the Tribe said they couldn’t approve it because it takes the Tribe’s Federal Reserve groundwater and

the Nevada Supreme Court said they don’t recognize that.

STETSON ENGINEERS LLP. Allan Richards.

This report covers work performed by Stetson Engineering for the month of December 2022.

CEMEX. As mentioned previously, Ms. Noel and him met with CEMEX on November 28' for a technical

session. They talked about the current mining in area D, their plan to repair the pit wall that was over

excavated in area A which is next to the Truckee River and about the need for monitoring wells. The Tribe

previously authorized CEMEX to mine to a depth of 100 feet which includes area D. 100 feet according to

the document that was shared with them is attached to the most recent lease issued to CEMEX shows an

elevation of 3950 for the 100-foot depth. They have been trying to keep them from going no deeper than

4023. They have agreed to not mine any deeper than 40 feet even though they are authorized to mine to

100-feet. The lease is due to expire in a couple of years and so Tribal Council has a decision to make about

whether to renew the lease. The lease expires in 2025 and they have been talking about getting a five-year

extension or several five-year extensions to mine past 2025. They don’t talk about the extensions in the

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technical sessions, they have made it clear to them they only will talk about technical issues and they are

primarily gathering information to report back to Council. They are not making decisions on behalf of the

Tribe during these technical sessions, they are just listening to what they have to say and visa versa. They

are trying to keep the focus on them installing monitoring wells. They have agreed to install monitoring

wells at their own cost but they told them they want input on where those monitoring wells should be

located. In December they prepared an aerial map which was provided to Council, of the CEMEX site. They

stopped mining in area A and that is when it started filling up with water so they moved to the east where

they are currently mining and they are trying to hold them at no deeper than 4023 which is less than 40

feet. They were told if they want to mine any deeper in area D or when it comes time to dewater area A so

they can repair the west pit wall, monitoring wells must be in place for advance warning during their

dewatering to see if there are impacts to the regional aquifer. They agreed to look at the areas where it was

suggested monitoring wells should be installed strategically. The areas marked on the map designate

where they would like to place a couple north of the Paiute Pit mining operation along Hill Ranch road and

one on each side of the Truckee River, east of the Tribe’s municipal wells one and two. They will find out

what CEMEX thinks on February 6 at their next meeting. CEMEX is going to hire a hydrogeologist who is

going to propose their own ideas for where they think the monitoring wells should be located. At their

meeting in November they said they could have the monitoring wells installed in about three months. In the

meantime, they are going to try and hold them where they are in area D in terms of depth. When he was

there, he noted it’s a mess but they are moving south, the 4023 elevation is in the north end of area D and

it’s under water because the groundwater comes in. They went on their Christmas break and it filled up and

it takes them weeks to dewater again. The plan is to try and hold them where they are and get the

monitoring wells installed as soon as possible. Then the Tribe has to decide on whether to extend their

lease agreement.

Councilmember Della John was wondering what the reason was for it to change to 100 feet, was it an

impact study of some kind? Mr. Allan said he has been working on matters for the Tribe for 30 years and

that occurred about 10-15 years ago but he doesn’t think the Water Team was involved with that at the

time when the lease was extended and the depths were allowed to increase. He is not sure how it

happened. Councilmember Della John said they were also able to get free gravel but now they can't, it was

taken out of the lease. Mr. Allan said he couldn’t speak to it but it was approved by the Tribe. The impacts

extended beyond Wadsworth to municipal well number four which is a mile and a half away from the

Paiute Pit. It’s quite a distance southwest of the town of Wadsworth, it’ way out there and CEMEX struggled

with it because municipal well number four’s water level continued to drop over several years. It dropped

so far that the Tribe couldn’t pump any more water out of it. They had to switch the pumps to be able to

dial it down to pump at a lower rate. Eric Ingram, when he was with public works, sent them an email in

early 2022 that said he couldn’t turn the well down any lower and it continues to drop. They estimated

there was three more months then the well was going to go dry. At that point they told CEMEX they had to

stop pumping, they did and now they have a lake there and they moved onto area D, but the impacts are

extensive.

Councilmember Davis asked when they made the decision to have them stop pumping and stop using the

water, they asked them to install the wells or the monitoring. Is this the same monitoring well they asked

for, are still asking for because she knows they dragged their feet for four to six months? They received

them then they couldn't install them and they didn’t have the right electrician and things kept dragging. Mr.

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Allan said that issue was with the meters, they were dewatering the pit and they didn’t have any meters

and they didn’t know how much they were pumping but they knew they were discharging to the river.

They wrangled with them for six months or longer until they finally installed meters on those pumps.

Councilmember Gonzales said it worries her that their lease ends in 2025 and the reclamation they heard a

year ago is going to be eighteen months and instead of one area there is two. Mr. Mixson said the lease

ends in 2025 which means they can’t mine but the reclamation obligation extends past when the lease

ends. BLM and BIA told them they had to redo the pond so they are including that also. Ms. Noel said that

includes the pit wall stabilization project.

New Groundwater Applications filed by Jackrabbit Properties. The Jackrabbit Properties filed nine

new groundwater applications in the Smoke Creek Desert Basin back in November. These are applications

to appropriate groundwater and not transfer applications, they are not transferring existing groundwater

rights. They are requesting to appropriate more groundwater from nine artesian wells, 1280-acre feet of

groundwater. A map showing where the nine wells are was provided to Council. They are about

seven/eight miles north of the reservation boundary. They have protested these applications and Mr.

Mixson filed them this past week on various grounds including the applications will adversely impact the

Tribe’s groundwater resources in the Smoke Creek Desert Basin. In 2010 or 2011, a petition was filed with

the Nevada State Engineer by some other water users in the Smoke Creek Desert Basin to adjudicate. They

prepared a Federal Reserve water right claim to the water underlying the portion of the reservation that is

in the Smoke Creek Desert Basin and filed it with the Nevada State Engineer as part of the adjudication

process. To him that is another point why the decision that was made on the Dodge Flat groundwater is

flawed because the Smoke Creek Desert Basin isn’t part of the Truckee River system, yet they are saying the

Tribe doesn’t have any Federal Reserve groundwater rights. The reservation overlays a portion of the

Smoke Creek Desert Basin, it overlays a portion of the Winnemucca Lake Desert Basins and with these

basins the Tribe reserves rights to the groundwater, surface water in these basins, they are not a part of the

Truckee River and they are not a part of the ORR Ditch Decree. In any event, they filed a Federal Reserve

Water Right Claim with the Nevada State Engineer in this adjudication in December 2011. They had

reports, had soil work done in the southern part of the playa and submitted a claim for 45,000-acre feet of

water including geothermal water, 44,598-acre feet from the existing wells and springs. There are a couple

of flowing wells and some ponds in the southern part of the playa. Part of the claim was for future

groundwater and future geothermal activity. The State Engineer has done nothing with it since 2011.

Mr. Mixson asked what is the perennial yield for that basin? Mr. Allan said the Smoke Creek perennial yield

is 16,00-acre feet per year and it’s been the committed water rights, the water rights that the State

Engineer has already granted for the use of water in Smoke Creek is over 56,00-acre feet, so it’s over

appropriated. He’s pretty confident the State Engineer is going to deny the applications; the adjudication is

pending and there is no groundwater available for appropriation.

Truckee Basin Water Management Options Pilot (WMOP) Project. He mentioned this project in

December. It’s going to be a long ongoing project and is still in the initial phases. It’s a project that is

evaluating the Army Corps Flood Control Operations for Prosser, Stampede, and Boca Reservoirs and the

need to adapt to climate change. These are the Army Corps rules for managing floodwaters in these

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reservoirs which were created in 1985. They are evaluating to see if there is room to increase flexibility

which could potentially benefit the Tribe to store more water and not have as much space for flood storage.

TROA Meetings and Scheduling. They had the TROA scheduling meeting in December. The flow of the

Truckee River at the Nixon gauge through January 11‘ averaged about 344 CFS and currently it’s at 800

CFS. The Truckee Canal is turned off, they started dewatering it middle of November and will remain off

through September 30* for the canal lining project. All the water flowing through Reno, coming down the

river is going to Pyramid Lake now through September. The lake will benefit with all the storms.

ADJOURNMENT

With no further business before the Tribal Council, Councilmember Dunn motioned to adjourn the meeting.

The motion was seconded by Councilmember Guerrero. Votes taken were all in favor, motion carried.

The meeting adjourned at 8:14 p.m.

Submitted by,

40.

Brenda A. Henry

Tribal Council 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 17% day of May 2023, 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: g ) 7 | |

James hPriventx, Tribal Chairman

Pyramid Lake Paiute Tribal Council

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