On September 17th, 2024, the Oregon Water Resources Department (OWRD) implemented new groundwater rules that have sparked significant debate. While these rules aim to promote sustainable water use, they also raise several concerns that merit discussion.

Arbitrary Power and Political Influence

One of the primary criticisms of the new groundwater rules is that they grant the OWRD considerable discretionary power. The department can now deny groundwater permits based on criteria that some argue are too subjective and potentially influenced by the political climate at the time of filing. This level of control could lead to inconsistent decision-making, where permit approvals or denials hinge more on the prevailing political winds than on objective, scientific assessments.

New Groundwater Rules: Development by Unelected Officials

Another contentious point is that these rules were developed by unelected officials. The process involved various advisory committees and consultations, but ultimately, the decision-making power rested with individuals who are not directly accountable to the public. This has led to concerns about transparency and the democratic legitimacy of the rule-making process.

Influence of Powerful Non-Profit Organizations

The involvement of powerful non-profit organizations in shaping the new groundwater rules has also been a point of contention. Groups such as the Oregon Environmental Council and WaterWatch of Oregon played significant roles in the advisory process. While these organizations advocate for important environmental causes, their influence raises questions about whose interests are being prioritized. Critics argue that the rules may reflect the agendas of these groups more than the needs of all Oregonians.

Balancing Conservation and Agriculture

Water conservation is undeniably crucial, especially in the face of climate change and increasing water scarcity. However, the new groundwater rules must also consider the needs of Oregon’s robust agriculture industry. Agriculture is a vital part of the state’s economy, and overly restrictive water regulations could harm farmers and ranchers who rely on groundwater for irrigation and livestock.

Conclusion

While the new groundwater rules aim to address critical issues of sustainability and resource management, they also present several challenges. The potential for arbitrary decision-making, the influence of unelected officials and powerful non-profits, and the impact on the agriculture industry are all significant concerns that need to be addressed. Moving forward, it is essential to find a balanced approach that ensures water conservation while respecting the diverse needs of all Oregonians.

At Schroeder Law Offices, P.C., we can assist you in navigating the new and evermore complicated water laws in Oregon. Please contact us at (503) 281-4100 if you have any questions. Or for more about water rights in Oregon see this article.

The Chevron deference two-step is no longer. A once powerful doctrine applicable to judicial review of administrative action is overruled by Loper Bright Enterprises v. Raimondo. The outcome is no surprise, Chief Justice John Roberts long found Chevron as an inappropriate leverage of executive power over the judiciary branch.

Chevron deference required Courts to defer to an agency’s interpretation of relevant legislation unless the agency’s interpretation was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[1] Essentially, Chevron found that federal agents are the subject matter experts and thus better suited to interpret congressional intent and thereby promulgate administrative rules relevant to achieving legislative objectives. Thus, deference to the agency.

Critics of Chevron deference believe the Loper decision will usher an era of transparent rulemaking. Others, fond of strong deference to agency action, find Loper to be at odds with stare decisis and curtails agency ability to carry out congressional directives.

What is Chevron Deference?

Chevron v. Natural Resources Defense Council (or “Chevron”)was decided in the backdrop of the 1946 Administrative Procedure Act (“APA”). Congress wished to establish judicial review procedures for agency rulemaking and adjudication.

Since the APA did not clarify that legislative and regulatory interpretation weighed in favor of the agency, Chevron was the Supreme Court’s set out a two-step analysis to support deference to the agency. The first step requires the Court to recognize whether the law requires or forbids the agency interpretation of a legislative directive. If the Court finds that the agency is making an explication within the vague boundaries of the law, then the Court cannot implement its own statutory analysis. The second step of Chevron requires a finding that the agency interpretation is reasonable. However, if an agency satisfies step one, then it is very likely the agency will succeed on step two. To learn more about the Chevron two-step and how it came under review by the Supreme Court, visit our previous post: Chevron Deference, a Complicated Legacy.

What Loper Does

Loper ends the Chevron deference doctrine. The Supreme Court in this decision relied on the APA and Article III incompatibility with Chevron’s directive that the judicial branch defer questions of law to the executive branch. Further, Chief Justice Roberts argued that Chevron clouded administrative rulemaking as the “two-step” approach permitted various agency interpretations of the same legislative directive. He found that such broad allowance of agency power led to more confusion and litigation. In essence, rather than clarifying the APA, Roberts argued that Chevron complicated administrative law. It was also argued that Chevron was unconstitutional as questions of law belonged to the judicial branch rather than the executive branch as favoring legal analyses of agencies unconstitutionally empowered unelected officials to promulgate rules under the guise of poorly worded laws. This, in this Court’s opinion, is within the province of the judicial branch.

What Does this Mean for Water Law?

            Not much. Water law is governed by state law, not federal law.  Chevron and now Loper are applications of agency deference to federal law. Each state has its own administrative procedures act and case law supporting agency deference.  So, time will tell whether we see any respective following in Oregon, Washington, Idaho, Nevada, and Utah, which all handle agency deference differently.  In the meantime, we can assume that hearing officers will continue to make the gross assumption that the “agency is always right unless proven wrong”!

Conclusion

            United States Senators and Representatives may be accused of relying on ambiguously written laws to avoid alienating voters by “passing the buck” on politically appointed administrative officers to interpret vague statutes in their favor. This may promote efficient and detailed law making within the federal legislative branch. This, one can argue, provides greater transparency and empowers voters to hold federal representatives accountable for inaction on important issues that were once delegated to agency rulemaking. Regardless, what is certain is that Loper will make future challenges to agency rulemaking easier.

 Here at Schroeder Law Offices, P.C. we follow legal developments to ensure our clients are offered the best possible advice. If you have any questions regarding your water rights, please contact us at (503) 281-4100 or check out our website www.water-law.com

[1] 5 U.S.C. § 706(2)(A).

Background

Chevron deference (“Chevron”) has been a cornerstone principle of administrative law for nearly forty years. Essentially, Chevron requires courts to defer or rule in the agency’s favor when a statute is the basis for a Court’s decision on an issue before it. Under Chevron, the Court’s decision is limited to determining whether the agency’s action was permissible based on the agency’s interpretation of the statute.

The Chevron Two Step

There are two steps to the Chevron doctrine. The first step requires the Court to recognize whether the law requires or forbids the agency interpretation of a legislative directive. If the Court finds that the agency is making an interpretation within the vague boundaries of the law, then the Court cannot implement its own interpretation through statutory analysis. The second step of Chevron requires a finding that the agency interpretation is reasonable. However, if step one is satisfied then it is very likely the agency will succeed on step two.

Chevron & Herring Fishing Regulations

Chevron will be under review by the Supreme Court as a result of herring fishery regulations. However, the Court made clear that any published opinion will solely be interpreting the extent to which Chevron is a Constitutional doctrine. It did not accept review as to whether federal agencies correctly interpreted the law. The issue at hand arose from federal agencies requiring fishers to absorb the cost of their own third-party monitors when there are no available federally funded observers. Such third-party monitors can cost up to 700 dollars a day. These expenses result from some herring vessels spending multiple weeks at sea and the costs of private observers becomes prohibitively expensive.

Should Chevron Stand?

However, for the vast majority of interested parties, the plight of the fishermen is of little interest. The crux of the issue is whether Chevron should stand. If is overruled, then the current status of administrative law will be turned on its head. For those defending the Chevron doctrine, they believe that the judge should not be interpreting a vague legislative directive. Rather, if there are multiple reasonable interpretations, it should be Constitutional for the agency in charge of carrying out the statute’s directive to decide. Those dismissive of Chevron and its nearly 40-year legacy find the doctrine to be unconstitutional and a perversion of federal power. Allowing administrative agencies to act as the legislative branch removes the responsibility of elected representatives and entangles the branches of government.

Chevron has arguably harmed agencies and has been a negative to the American public. Agencies are quietly transformed during each Presidential administration. Agency appointees by the new administration will institute new rule making, often in direct conflict with past statutory interpretations. This apparent discrpancy is due to the vastly permissive nature of Chevron deference. Thus, Americans become ensnared within an oscillating political vacuum regarding laws that impact everyday life.

Conclusion

Agencies, courts, and the legislature have been reliant on this doctrine for decades. A full or partial overruling by the Supreme Court would result in a seismic shift in operations of administrative law. As the decision will inevitably cause change within water law, Schroeder Law will thoughtfully guide clients through these turbulent times. Follow along with the Chevron doctrine by watching for updates on our blog: Blog – Schroeder Law Offices, PC (water-law.com).

Democrats in the U.S. House of Representatives have taken action to clarify the Clean Water Act following the Sackett decision, introducing new legislation into Congress in October of 2023. The purpose of the “Clean Water Act of 2023” is to counteract the narrow interpretation of the term “navigable waters” set forth in the Supreme Court’s Sackett II. Text of the proposed bill criticizes the Court’s decision for eliminating protection for wetlands that “perform vital functions such as sorting water to help reduce flooding, improving water quality by filtering pollutants, providing critical and important habitats for aquatic and other species, and recharging groundwater that provides drinking water and contributes to downstream flow.”  

Importantly, the Act intends to widen the definition of “waters of the United States.” Restrictions, however, do remain as to not extend federal purview to all collections of water. The greatest emphasis is on the definition of “wetlands”, the source of contention in Sackett II. If the Act were to pass, wetlands would now be defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstance do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” This definition, of course, would circumvent the narrowing of the “water of the United States” that resulted from the Sackett II decision.

While there is little evidence to believe the proposed Act will become law, it is important to be aware of new legal developments that can and will affect water rights throughout the country. Currently, the proposed bill is in the early stages of the legislative process. At this time, the House and Senate have not yet considered the Clean Water Act of 2023.

Additional Resources

For the entire text of the proposed amendment to the Clean Water Act: CWA 2023 Bill Text (house.gov)

For more information on the Sackett Decision that sparked this Act: WOTUS: a Confusing Legacy – Schroeder Law Offices, PC (water-law.com)

The Clean Water Act’s extension of what waters it attempts to regulate is leaves WOTUS a confusing legacy. Does it apply to wetlands? If so, what if wetlands stand alone and don’t adjoin navigable waterways? The courts have been adjudicating questions like these for year. But earlier this year the US Supreme Court gave a definitive answer – for now.

What Happened?

There is no denying the positive changes that the Clean Water Act has rendered as once flammable waters again being fishable, boatable, and even swimmable. Even so, the definition of “waters of the United States,” that defines the reach of the federal government’s regulation of water, is controversial. On May 25, 2023, the U.S. Supreme Court decided in Sackett v. Environmental Protection Agency (“EPA”)how “waters” are to be defined for purposes of the CWA.

Background

To understand Sackett, we must begin with looking at Rapanos v. United States, 547 U.S. 715 (2006). Rapanos, found there are two tests to define “waters of the United States.”

• The “Plurality Test,” a two-prong test, that defines water of the United States as “(1) a relatively permanent body of water (2) connected to traditional interstate navigable waters.”
• The broader “significant nexus test.” Under this test “the wetlands, either alone or in combination with similarly situated lands, significantly affect the chemical, physical and biological integrity of the waters understood as “navigable,” are considered among the “waters of the US.”

The Sackett Decision

These two conflicting tests did not resolve the issue.

But now the May 2023, Supreme Court decision determined that the “Waters of the United States” extend “only to geographical features that are described in ordinary parlance as ‘stream, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from bodies of water due to a ‘continuous surface connection’.” Sackett v. EPA, 143 S. Ct. 1322, 1336 (2023). This decision adopted the plurality test from Rapanos reasoning that the significant-nexus text could grant endless jurisdiction and importantly interfere with State jurisdiction. 

WOTUS as a Confusing Legacy

The Supreme Court’s decision admitted there is obvious need for exceptions to it’s bright line rule such as when there are interruptions in surface connection because of low tide or dry spells to disrupt “continuous surface connection.”  Thus, it is evident that wetlands have not seen their last day in court.

As an ever evolving body, water law can be a confusing field. Here at Schroeder Law Offices, we help our clients by finding answers and making the complex appear simple. If you have any questions about how this affects your water rights, please contact us at (503) 281-4100 or m.jones@water-law.com.