IN EQUITY A-3 : UNITED STATES OF AMERICA V. ORR WATER DITCH COMPANY

Filing 1860

ORDER Recognizing and Confirming Changes in Point of Diversion, Place of Use and Manner of Use of Decreed Water Right. Signed by Chief Judge Miranda M. Du on 8/26/2021. (Copies have been distributed pursuant to the NEF - SC)

Case 3:73-cv-00003-MMD Document 1860 Filed 08/26/21 Page 1 of 4

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF NEVADA

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UNITED STATES OF AMERICA, ) In Equity 3:73-cv-00003-MMD

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Plaintiffs, ) ORDER RECOGNIZING AND

) CONFIRMING CHANGES IN

7 || ORR WATER DITCH CO., et al, ) POINT OF DIVERSION, PLACE OF

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) USE AND MANNER OF USE OF

Defendants. ) DECREED WATER MGHT

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The Petition of Truckee Meadows Water Authority ("TMWA") For an
Order Recognizing and Confirming Changes In Point of Diversion, Place of Use and Manner of

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I Use of Decreed Water Right was filed herein on June 25, 2021 (ECF 1844) (the "Petition").

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The Court approved a Notice of Petition and required that it be published in the Reno
Gazette Journal and Sierra Sun once a week for four consecutive weeks. ECF 1846; ECF 1847.

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The Court further ordered that, if no objections to the Petition were filed on or before a

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date which was no later than thirty (30) days after the last publication of the Notice of Petition, the

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Court in its discretion may enter an order based upon the facts set forth in the Petition.

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The Court having considered the Petition and the Proofs of Publication of the Notice of
I Petition (ECF 1855; ECF 1856) and being fully advised finds and concludes as follows:

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1. Notice of the Petition has been given as required by the Court.

2. No Objections to the Petition have been filed.
24 || 3. By deed dated December 21, 2017, TMWA is the owner of and successor-in-

25 11interest to Sierra Pacific Power Company with respect to the water right designated as Orr Ditch
Decree Claim No. 5, a portion of which water right is sought to be changed by the Petition.

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4, The Court has jurisdiction over the Petition.

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Case 3:73-cv-00003-MMD Document 1860 Filed 08/26/21 Page 2 of 4

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5. Orr Ditch Decree Claim No. 5 recognizes California appropriative water rights

established in 1899 and 1906 under California law. Because the water rights are not established
under California's 1914 Water Commission Act or the California Water Code, changes to them
are not subject to the jurisdiction of the California State Water Resources Control Board.

6. Orr Ditch Decree Claim No. 5 provides that TMWA is entitled and allowed to divert

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water from the Truckee River through the Farad Power Flume, which has an intake, or point of

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diversion, on the north bank of the Truckee River in the S 1/2 of Lot 6 in the NW 1/4 of Section

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30, T. 18 N., R. 18 E. TMWA may divert 325 cubic feet of water per second, after transportation

loss, to the wheel of the Farad hydroelectric power plant, with a priority of the year 1 899. TMWA
may divert an additional 75 cubic feet of water per second, after transportation loss, to the wheel

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of the Farad hydroelectric power plant, with a priority of the year 1906.
7. On January 1, 1997, a flood destroyed the Farad diversion facility, and that facility

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has not been, and will not be, rebuilt.
8. In applicable part, the General Provisions of the On- Ditch Decree provide:

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Persons whose rights are adjudicated hereby, their successors or assigns, shall be
entitled to change, in the manner provided by law the point of diversion and the
place, means, manner or purpose of use of the waters to which they are so entitled

^ 11 or of any part thereof, so far as they may do so without injury to the rights of other
persons whose rights are fixed by this decree.

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I Orr Ditch Decree at 88.
9. Pursuant to a Petition filed herein by Sierra Pacific Power Company on December

23 1127, 2001, this Court, on March 14, 2002, entered an order with respect to Claim No. 5 as follows:

24 11 Petitioner has temporarily changed the manner and place of use of water
rights for hydroelectric power to instream use from the original point of diversion

25 11 to the point of discharge back to the Truckee River at the Farad power plant for the
benefit of fish, wildlife, and recreation, until such time as Petitioner's replacement
diversion facility can be completed or until Petitioner uses the water for an
27 alternative beneficial use. Sierra Pacific Power Company implemented a change
in the manner and place of use after January 1, 1997, when flood conditions

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Case 3:73-cv-00003-MMD Document 1860 Filed 08/26/21 Page 3 of 4

destroyed the Farad Dam diversion. Petitioner is in the process of rebuilding the
diversion facility and will continue to put water to beneficial use as instream flows.

This Order shall be effective immediately and shall be effective until such
time as the Farad diversion facility is rebuilt or until Petitioner uses the water rights
at an alternative location.
Dkt. 424.

6 11 NOW, THEREFORE, it is hereby ordered that:

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1. A change in point of diversion, place of use and manner of use is approved from

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the 1899 portion of the Claim No. 5 water right of 325 cubic feet of water per second, to be
diverted at the point of diversion for Claim No. 6, the Fleish Power Ditch and Flume, which has

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its intake, or point of diversion, on the east bank of the Truckee River in the SE IA of the SE % of

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Section 19, T. 19 N., R. 18 E., M.D.M., to deliver, after transportation loss, to the wheel of the

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Fleish Hydro-Electric Power Plant, 50 cubic feet of water per second for hydro-electric power
generation, in addition to the 327 cubic feet of water per second allowed under Orr Ditch Decree

Claim No. 6;

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2. A change in point of diversion, place of use and manner of use is approved from

the 1899 portion of the Claim No. 5 water right of 325 cubic feet per second, to be diverted at the

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existing point of diversion for the Highland Ditch which is described in Orr Ditch Decree Claim

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No. 98 as on the north bank of the Tmckee River in the SW ',4 of SE IA of Section 9, T. 19 N., R.

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18 E., M.D.M., to deliver after transportation loss, to a new hydro-electric power plant, the

22 || "Highland Canal Hydroelectric Project," located within the NE 1/4 of the SE 1/4 of Section 17,

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T. 19 N., R. 19 E., M.D.M., 100 cubic feet of water per second, for hydro-electric power

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generation and after such use for discharge back to the Truckee River within the NE 1/4 of the
I SE 1/4 of Section 17, T. 19N.,R. 19E.,M.D.M.

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Case 3:73-cv-00003-MMD Document 1860 Filed 08/26/21 Page 4 of 4

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3. The remainder of the 1899 portion of the water right of 325 cubic feet per second

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of Claim No. 5 of approximately 175 cubic feet of water per second shall continue to be used for

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instream use from the original point of diversion to the point of discharge back to the Truckee
River at the former Farad Power Plant for the benefit of fish, wildlife, and recreation; as provided

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I in the Order of March 14,2002;and

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4. The full amount ofseventy-five (75) cubic feet of water per second, with a priority

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of the year 1906 under Claim No. 5, shall continue to be used for instream uses from the original

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point of diversion to the point of discharge back to the Truckee River at the former Farad Power
Plant for the benefit of fish, wildlife, and recreation, as provided in the Order of March 14, 2002.

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26th
August
Dated this_ day of_,2021.

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^ II UNITED STATES DISTRICT JUDGE
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