On February 5, 2015, the Oregon Supreme Court dismissed the petition for review of the Court of Appeal’s decision interpreting ORS 537.230(2), simply stating, “The petition for review is dismissed as improvidently allowed.”

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting ORS 537.230(2), prescribing conditions for the Oregon Water Resources Department (“OWRD”) to grant municipal permit extensions to complete construction and apply water to beneficial use. The conditions require OWRD to approve the municipal water user’s water management and conservation plan, and to make a determination that the municipal permit will maintain the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.

Cottage Grove sought an extension to perfect its municipal permit, but then placed its application on administrative hold while it completed construction and application of water to beneficial use. Cottage Grove lifted the administrative hold after completing construction and beneficial use of all the water under its permit, and OWRD granted Cottage Grove’s extension without the ORS 537.230(2) conditions because Cottage Grove had already diverted all the water allowed under its permit, leaving no portion for imposing conditions upon.

WaterWatch sought judicial review of OWRD’s proposed final order approving the extension without the ORS 537.230(2) conditions. The Court of Appeals ruled that the undeveloped portion of the permit before extension must be measured at the time specified in the permit or last extension. Otherwise, municipalities could avoid the ORS 537.230(2) conditions by developing additional amounts of water before applying for extensions.

Although the Oregon Supreme Court originally agreed to hear the appeal, it dismissed the petition for review. This means that the Oregon Court of Appeal’s decision in 2013 will guide application of ORS 537.230(2). OWRD must condition municipal extensions on approval of a water management and conservation plan, and must condition development of the remaining water use upon persistence of fish species listed as sensitive, threatened or endangered.

For more water news that may affect you, stay tuned to Schroeder Law Offices’ Water Law Blog!

Oregon follows the Prior Appropriation principle for water use. The guiding principle of the Prior Appropriation Doctrine is “first in time, first in right.” Thus, water users with earlier priority dates may have their water use rights satisfied before junior water users, or may even require junior users to cease diversions, if there is not enough water in the system to supply all uses.

However, Oregon Revised Statute (“ORS”) 536.750(1)(c) allows the Oregon Water Resources Commission to create a preference for human consumption and stock watering uses after a declaration that a severe, continuing drought exists. The creation of a water use preference allows the State to regulate water use in a way that gives priority to junior users for the identified purpose in the preference statute. Here, the State may allow water users to take water out of priority for human consumption and stock watering uses.

A constitutional problem arises when the State regulates water use on the basis of the preference. The United States and Oregon Constitutions provide that private property shall not be taken for public purpose without just compensation. ORS 536.750(1)(c) was enacted in 1989. Water use rights that were perfected prior to the statute being enacted became vested real property rights before ORS 536.750 was in place. Now, based upon the statute and agency regulations (Oregon Administrative Rule, “OAR,” Chapter 690, Division 22), the Oregon Water Resources Department may order a senior irrigation right shut off, while allowing a junior domestic or stock water use to continue. Such an order deprives the senior water user of their priority date, which is a key feature of their water right.

The Oregon Supreme Court outlined the standard for a “temporary taking” under the Oregon Constitution as follows: “We think that, in order to distinguish between a “taking,” on the one hand, and simple administrative inconvenience or delay, on the other, it is necessary to require that a complaining party allege some degree of permanence in its loss. We hold that, in order to assert a claim for a “temporary taking” under the Oregon Constitution, the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical.” Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 199 (1997). Such a denial of all economic value might be proved, in the case of a senior’s water use regulation, by a showing that the senior user’s water use would have remained unregulated had the State not exercised a preference for junior domestic and stock water uses instead, and that such regulation denied the senior water right holder all economic value of their water right during the period of regulation, such as an irrigation season where a portion of a crop was lost.

A drought has been declared in Klamath County, Oregon this year. In response, the Oregon Water Resources Commission (“OWRC”) enacted temporary rules in OAR Chapter 690, Division 20, creating a surface water preference for domestic and stock watering, regardless of priority. OWRC is now proposing to amend the Division 22 rules to extend the preference to groundwater as well. The proposed rules are available on the Oregon Water Resources Department website at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.

A second public hearing on the proposed Division 22 rules will he held September 18, 2014 in Klamath Falls. Written Comments must be received by the Oregon Water Resources Department by 5:00 PM on September 19, 2014. More information about the public hearing and comments is available on the website provided above.

Schroeder Law Offices drafts comments on behalf of its clients to proposed rules or other agency actions. Contact Schroeder Law Offices if you have questions about a government action that is affecting your water use.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that could affect you!

On February 13, 2014, Oregon Governor John Kitzhaber declared a drought emergency for four southeastern counties (Klamath, Lake, Harney, and Malheur) in Oregon Executive Order No. 14-01. “The unusual act of declaring a drought emergency in the middle of February is an indication of how severe the conditions are in southern Oregon and of the hardships being faced by communities throughout the region,” said Senator Wyden. The press release and Executive Order are available at: http://www.oregon.gov/owrd/pages/wr/drought.aspx.

The drought declaration increases flexibility for how water is managed in the counties where a drought has been declared. Water right holders who are unable to use water due to drought conditions may apply to the Oregon Water Resources Department (“OWRD”) for an Emergency Use Permit for temporary use from an alternative water source. Another option is a Temporary Drought Transfer, which allows a person who is unable to use water appurtenant to a certain parcel of property due to drought conditions to temporarily transfer a different permit, certificate, decreed right, or claim to the land needing the water without going through the normal notice and waiting requirements for a standard transfer. Finally, local governments and public corporations may enter into options or agreements to use water under an existing permit, certificate, or decreed water use right, allowing the entity to use the water at points of diversion and for beneficial uses other than those described in the water use right, provided OWRD approves the option or agreement.

Schroeder Law Offices has successfully worked with clients in obtaining water use through the drought mechanisms when droughts are declared. We recommend contacting Schroeder Law Offices early if you need, or might need assistance with a drought application.

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting the amended ORS 537.230(2) conditions. ORS 537.230(2) prescribes conditions for the Oregon Water Resources Department (“the Department”) to grant municipal permit extensions to complete construction and apply water to beneficial use in order to perfect water use rights. In this case, the City of Cottage Grove (“the City”) sought an extension, but then completed construction and application of water to beneficial use before the extension was granted. Based upon the language of the statute, the Department issued the extension without the ORS 537.230(2) conditions, and WaterWatch sought judicial review. The Oregon Court of Appeals reversed and remanded the Department’s final order.

In 2005, ORS 537.230(2) was amended by the passage of HB 3038 to allow municipal permittees to have up to 20 years to commence and complete construction of proposed water use infrastructure and apply water to beneficial use (as opposed to the previous 5-year deadline), so long as certain conditions are imposed. ORS 537.230(2) currently provides:

(2) The holder of a permit for municipal use shall commence and complete the construction of any proposed works within 20 years from the date on which a permit for municipal use is issued under ORS 537.211. The construction must proceed with reasonable diligence and be completed within the time specified in the permit, not to exceed 20 years. However, the department may order and allow an extension of time to complete construction or to perfect a water right beyond the time specified in the permit under the following conditions:

(a) The holder shows good cause. In determining the extension, the department shall give due weight to the considerations described under ORS 539.010 (5) and to whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right;

(b) The extension of time is conditioned to provide that the holder may divert water beyond the maximum rate diverted for beneficial use before the extension only upon approval by the department of a water management and conservation plan; and

(c) For the first extension issued after June 29, 2005, for a permit for municipal use issued before November 2, 1998, the department finds that the undeveloped portion of the permit is conditioned to maintain, in the portions of waterways affected by water use under the permit, the persistence of fish species listed as sensitive, threatened or endangered under state or federal law. The department shall base its finding on existing data and upon the advice of the State Department of Fish and Wildlife. An existing fish protection agreement between the permit holder and a state or federal agency that includes conditions to maintain the persistence of any listed fish species in the affected portion of the waterway is conclusive for purposes of the finding.

In the Cottage Grove Case, 2013 WL 6498547, 2013 Ore. App. LEXIS 1463 (December 11, 2013), the ORS 537.230(2)(b) and (c) conditions were tested. The City of Cottage Grove was issued a permit in 1977 with deadlines to complete construction in 1979 and apply water to beneficial use in 1980. The City was granted a number of extensions, ending in 1999.

In 2007, the City enlarged its water treatment plant and applied to the Department for an extension of time to perfect its water use right. Prior to being granted an extension, the City applied the full amount of water allowed under its permit to beneficial use. The Department thereafter approved the City’s extension, but without the ORS 537.230(2)(b) and (c) conditions because the Department determined that there was no undeveloped portion of the permit at the time of the most current extension. WaterWatch sought judicial review of the Department’s order approving the extension in the Oregon Court of Appeals. The Department thereafter issued a water right certificate to the City.

First, the Oregon Court of Appeals determined that WaterWatch’s action was no rendered moot by the issuance of a water right certificate. Although water right certificates may only be cancelled for certain statutory reasons (ORS 537.250(3)), and are generally “conclusive evidence of the priority and extent of the appropriation therein described” (ORS 537.270), the Court determined that the validity of the certificate was predicated upon the validity of the final order approving the extension application as a necessary prerequisite to the certificate. Therefore, if the final order approving the extension was reversed, the certificate could be cancelled as well.

Second, the Oregon Court of Appeals conducted statutory interpretation to determine whether the “undeveloped portion of the permit” should be measured at the time the extension application is considered by the Department (as argued by the Department and City), or whether it should be measured at the permit deadlines or previous extension deadlines (as argued by WaterWatch). The Court outlined the legislative history leading to the ORS 537.230 amendment, and concluded that the statutory amendment represented a compromise between environmental interests and municipal needs to engage in staged water development.

The Court ruled for WaterWatch, holding that the undeveloped portion of the permit before extension must be measured at the time specified in the permit or last extension. Otherwise, municipalities could avoid the ORS 537.230(2) conditions by developing additional amounts of water before applying for extensions. The Oregon Court of Appeals ruled that the Department’s failure to condition the permit extension on ORS 537.230(2)(b) and (c) was inconsistent with the statute. The Court reversed and remanded the Final Order for the Department to vacate the water right certificate and reconsider the permit extension in line with the Court’s decision.

The Cottage Grove Case is the first in a number of municipal extension judicial review cases. The statutory interpretation will affect numerous municipal entities throughout the State of Oregon, and require municipalities to implement water conservation management plans and protect the persistence of certain fish species when conducting staged water development that requires extensions of time. This will make staged development of water resources for municipal uses more challenging. It is currently unknown whether the Department or the City will seek review before the Oregon Supreme Court.

For a full version of this article, visit the Oregon State Bar Environmental & Natural Resources Section webpage, at: http://osbenviro.homestead.com/.

Stay tuned to Schroeder Law Offices Water Law Blog for more water news that could affect you!

The Yakima River Basin Integrated Plan was the predominant topic at the Washington State Water Resources Association annual conference, with legislators, agency representatives, and stakeholders alike discussing the status of an ecological restoration project that supporters maintain is unprecedented in the United States.

Conference speakers, including state Rep. Judy Warnick and state Sen. Jim Honeyford as well as members of the plan’s working group, particularly focused on three implementation-phase issues: a state-budget allocation of $137 million for funding from 2013-15; the purchase of 50,000 acres of private forestland in the Teanaway drainage by the Dept. of Natural Resources; and the development of environmental impact statements for proposed projects. The U.S. Dept. of Reclamation and the Washington State Dept. of Ecology are soliciting comments on the EIS scope of three projects proposed in Kittitas County–Cle Elum Pool Raise, Kachess Drought Relief Pumping, and Keechelus to Kachess Conveyance–through Dec. 16. Information on the submission process can be found at http://www.ecy.wa.gov/programs/wr/cwp/ybip.html.

A collaborative project which gained traction in 2011 after four decades of scatter shot development, the Integrated Plan identifies seven elements in its approach to water management: fish passage, fish habitat enhancement, modification of existing structures and operations, surface storage, market-based reallocation, groundwater storage, and enhanced water conservation. Having integrated input from federal, state, tribal and municipal entities as well as environmental and agricultural interests, the plan is anticipated to cost as much as $6 billion over 30 years. The plan’s website is http://yakimabasinplan.org/.

The 68^th edition of the WSWRA annual conference and membership meeting was held Dec. 4-6 at Spokane.

Make sure to stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that could affect you!

March 7, 2013 marked the end of the administrative phase of the Klamath Basin Adjudication. On that date, the Oregon Water Resources Department issued its Findings of Fact and Order of Determination, adjudicating all pre-1909 surface water claims in the Klamath Basin. Claims that were affirmed in the administrative phase are now enforceable, unless a stay of the Order of Determination is granted.

Although the Klamath Basin Adjudication is not complete –the Klamath County Circuit Court will hear exceptions to the administrative decision and appeals from the court’s decision are expected–pre-1909 water users are already calling for water to ensure enough water for the following purposes: the Klamath Tribes made a call for instream water to support native fish; the U.S. Bureau of Reclamation made a call for water to supply the Klamath Project; and the U.S. Fish and Wildlife Service made a call for wildlife refuges.

The Associated Press reports that watermasters are currently going ranch to ranch along the Sprague River and its tributaries to shut off water users in order to satisfy recently adjudicated pre-1909 water rights. It is expected that similar shut offs will follow on the Wood and Williamson Rivers. The referenced Associated Press articles may be found at the Oregon Live Site here and here. (Last visited June 13, 2013)

A “call” on water means that water users with later-in-time priority dates may have to stop using water to ensure the senior (pre-1909) water uses are satisfied.  To be a final order that can be challenged, a “call” must be made by the Oregon Water Resources Department in writing and provide notice of rights of appeal.  In Oregon, challenging a “call” includes filing a petition for judicial review which may provide an automatic stay of the shut off order.  It is recommended that you scan a copy of your written notice on “call” and send it to your attorney who can advise you concerning your legal options.

It is difficult for outsiders to appreciate the momentous effect that pre-1909 water rights enforcement will have in the Klamath Basin and the number of farmers and ranchers that are now facing possible water shut-offs. It is important that water users understand their rights and are prepared to protect those rights in court if need be.

Schroeder Law Offices represents clients in the Klamath Basin Adjudication. Stay tuned to the Water Law Blog for more information that may affect your water use!

Each year there are significant updates in the field of water law. Schroeder Law Offices strives to keep the legal community and public up to date on any such changes. One of the ways Schroeder Law Offices does this is by drafting the “Updates in Oregon Water Law” chapter of the American Bar Association’s  publication “The Year in Review.”

The Year in Review 2011 is now available online for ABA members at: http://www.americanbar.org/publications/year_in_review_home.html/. An extended version of the “Updates in Oregon Water Law” chapter is available on Schroeder Law Office’s website at: http://water-law.com/resources/Review_2011.pdf. Check out Oregon water updates from the year 2011 on our website, and be sure to check out next year’s updates too!!

Stay tuned to Schroeder Law Office’s Water Law Blog for more water news!

The Oregon Department of Agriculture’s Natural Resources Division hosted meetings this month across Oregon discussing the Department’s agricultural water quality program. At the May 9^th meeting, Lisa Hanson, Deputy Director, explained the current status of the water quality program, and sought input from attendees about how the Department can improve the program.

Ms. Hanson explained that there are many misconceptions about the agricultural water quality program. She clarified that the program is mandatory, and agricultural landowners must comply with area-wide water quality standards set by the Department. However, what is flexible are the methods of compliance. The Department will work with local soil and water conservation districts and landowners to come up with innovative methods for meeting water quality standards, and funding is even available through the Department to make necessary changes to meet those standards.

One of the highlights of the discussion was Ms. Hanson’s coverage of the issue of measuring performance and improvement. Since there are not one-size-fits-all regulations for the agricultural water quality program, it is sometimes difficult to gauge progress. The Department started a pilot program to assess focus areas before a water quality improvement project and after. Through the program, the Department hopes to tell success stories and shine a spotlight on the dedication of Oregon’s agricultural producers. The Department is also working on inserting benchmarks and timelines into area standards to provide a better sense of when progress is achieved.

Another topic of discussion was enforcement of agricultural water quality standards.  Ms. Hanson explained that currently the enforcement program is complaint-based. Some of the attendees were concerned that violations could not be effectively monitored if enforcement depends on the submission of complaints. However, Ms. Hanson discussed the fact that the Department’s policy is to work with landowners to achieve compliance, and that this non-confrontational approach has proved successful, evidenced by the fact that the Department is rarely forced to issue citations for noncompliance; generally warnings are enough. Landowners are typically willing to make necessary changes to meet agricultural water quality standards.

The Oregon Department of Agriculture’s agricultural water quality management area plans are available online at: http://oregon.gov/ODA/NRD/water_agplans.shtml. There are 38 area plans to date.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news about water resources in Oregon and the West!

On January 20, 2012 the United States Department of Agriculture (“USDA”) issued a news release entitled “USDA Invites Applications for Renewable Energy and Energy Efficiency Projects.” The news release announced that the USDA is seeking applications for energy efficiency and renewable energy projects. Funding for such projects is available through the 2008 Farm Bill.

The goal of this program is to help agricultural producers and rural small businesses to reduce energy costs and help meet the nation’s energy demands. The news release is available online at: http://www.usda.gov/wps/portal/usda/usdahome?contentid=2012/01/0019.xml&contentidonly=true. The Federal Register has additional information, which is available at: http://www.gpo.gov/fdsys/pkg/FR-2012-01-20/pdf/2012-755.pdf.

Do not delay in checking out this program and funding opportunities. Some applications are due as soon as February, 2012!!

Schroeder Law Offices, PC has experience working with energy clients on associated land and water issues. Please don’t hesitate to contact Schroeder Law for assistance, and stay tuned to the Water Law Blog for more news that could affect you!

Each year, Schroeder Law Offices contributes to the American Bar Association’s Year in Review publication by drafting an update to the Oregon water law section.

Schroeder Law Offices’ summary of the most significant updates in the field of Oregon Water Law during the year 2011 has been posted to the firm’s website.

You can read the article here: http://water-law.com/resources/Review_2011.pdf.

Stay tuned to Schroeder Law Offices’ water law blog for more updates in water law, both in Oregon and across the West!

The Oregon Water Resources Department (OWRD) changed its procedure for accepting alternative (small) reservoir applications based on the judicial decision Deborah Noble and David Hillison v. Oregon Water Resources Department (Hillison). Clackamas County Circuit Court, CV-10-01-0159, General Judgment entered January 25, 2011.

The Hillison court determined that ORS 537.409, which governs the permitting process for alternative reservoirs required, as a prerequisite, that applicants show that the reservoir meets the following criteria:

1. Has a storage capacity of less than 9.2 acre-feet or a dam or impoundment structure less than 10 feet in height;
2. Does not injure any existing water right;
3. Does not pose a significant detrimental impact to existing fishery resources as determined on the basis of information submitted by the State Department of Fish and Wildlife; and
4. Is not prohibited under ORS 390.835.

The “old” procedure required applicants to submit an application that requested information about the applicant, the location and source of the water to be impounded, the intended use of the water, property ownership, environmental impacts and land uses. The application did not require applicants to submit information relevant to criteria 2 through 4 above. Instead, once the application was submitted, OWRD would consult with the local watermaster, the Department of Environmental Quality and the Oregon Department of Fish and Wildlife in order to obtain the necessary information.

The Hillison case came about after OWRD approved the application of Robert Lytle based on the “old” procedure. Deborah Noble and David Hillison brought suit in state court to challenge OWRD’s approval. The Hillison court ruled that OWRD’s “old” procedure for accepting applications was contrary to the enabling legislation, and thus OWRD could not issue permits on that basis any longer.

As a result of the Hillison decision, OWRD’s permitting of alternative reservoir applications was stalled for about 6 months, until late July, 2011. In order to get permitting moving again, OWRD has implemented a new permitting process. Now an applicant must set up meetings with their local planning department, their local watermaster, and the Oregon Department of Fish and Wildlife to sign off on their proposed reservoir project prior to submitting the application to OWRD.

The main consequence is that a heavier burden is placed on alternative reservoir applicants to do the “leg work” prior to submitting an application. The days of a relatively easy process for applicants to obtain alternative reservoir permit are at an end. Finally, more work may be created for attorneys becasue each agency decision on the application will likely result in a final order that may be contested and reviewable.

For a more complete summary of the Hillison case, visit the Oregon State Bar’s Environmental and Natural Resources Section’s E-Outlook update at: http://osbenviro.homestead.com/Newsletters/11_EOutlook_Issue6_WaterRights.pdf. The website provides a summary of the case drafted by Sarah Liljefelt, Associate Attorney at Schroeder Law Offices, P.C.

Schroeder Law Offices routinely assists clients with water right permitting. Be sure to stay tuned to the Water Law Blog for current information about your water!

The Oregon Public Meetings laws sets a policy that Oregon government business be conducted in the open and that the public be informed of deliberations, decisions and information underlying those decisions. For those reasons, Oregon Revised Statute (“ORS”) 192.630 provides: “All meetings of the governing body of a public body shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided…” A “meeting” is the convening of a public body at which a quorum is present to make a decision or deliberate toward a decision. ORS 192.610. “Deliberate” is not defined by statute, but is ordinarily understood to mean discussion and consideration.

In Lane County, Oregon the County’s Budget Committee proposes an initial annual budget. The Committee is made up of the five County Commissioners, and five County citizens who are appointed by the Commissioners. The Committee adopts a budget and recommends it to the Board, which then makes adjustments and adopts a budget with a vote of at least three Commissioners. The meetings to determine the budget are considered public meetings and therefore must comply with the Oregon Public Meetings laws.

A suit was brought by residents of Lane County in February of 2010, alleging that the Lane County Board of Commissioners, and certain individual Board members, had violated the Public Meetings laws when amending the 2009 budget to re-allocate funds from prisons to pay for personal assistants for the Commissioners. See Lane County Circuit Court Case No. 16-10-02760. On January 18, 2011, the Lane County Circuit Court entered a judgment agreeing with the plaintiffs.

The Court found that the Commissioners had met outside of public meetings on numerous occasions to discuss the budget and come to decisions regarding the budget. The Court also found that the public meeting which was held to amend the budget was a sham, and that a plan was carried out by the Commissioners to execute their personal agendas with as little public input and interference as possible. Interestingly, the Court held that electronic communications, such as emails, can be the basis for deliberation within the confines of the Public Meetings laws, and that a series of in-person discussions, each discussion between less than a quorum of officials, could constitute a “meeting” if a quorum participated in the series of meetings.

The Lane County Circuit Court additionally found that Commissioners Hardy and Sorenson committed willful misconduct and were therefore personally liable for the plaintiffs’ attorney fees and court costs. The full decision may be found at: http://media.kval.com/documents/Dumdi-Handy.Decision.2011.01-18.pdf.

Oregon’s public meetings policy is essential for government transparency and public involvement. Many water decisions are made by public bodies, and it is incredibly important that those decisions be made in public meetings that are meaningful and exposed. The Lane County Circuit Court came down hard on the Lane County Board of Commissioners, showing just how important the Public Meetings laws are, and that the Court will not tolerate attempts to circumvent those laws.

Stay tuned to Schroeder Law Offices’ Water Law Blog for news which may affect you!

On May 2, 2011, the United States Supreme Court decided the case of Montana v. Wyoming (No. 137, Orig.; 2011 WL 1631038). Although the case had to do with an interstate water compact between those states, the court decided the case on general western water law principles.

Of particular interest, the Court determined that junior appropriators have no claim to customary return flows by senior users under the “no injury” principle in relation to the efficiency of water-application practices. The Court held that the no injury rule only protected junior appropriators from changes in return flows due to a change in the senior’s place of appropriation, place of use, and purpose for use. Thus, senior users may raise the efficiency of their water-application practices, thus reducing the amount of return flow, and junior users cannot complain.

The Court found support for this ruling in the rule of recapture, which allows appropriators to collect and reuse water so long as it remains on the appropriator’s property. The Court determined that if an appropriator can capture and reuse his return flows, then a junior user should not be permitted to complain about reduced return flows due to increases in efficiency. Montana and Wyoming have adopted the rule of recapture, as well as Oregon. Cleaver v. Judd, 238 Or. 266, 270-72 (1964); Jones v. Warmsprings Irr. Dist., 162 Or. 186, 196 (1939); Wood v. Woodcock, 276 Or. 49, 59 (1976).

For a more complete summary of Montana v. Wyoming, visit the Oregon State Bar’s Environmental and Natural Resources Section’s E-Outlook update at: http://osbenviro.homestead.com/Newsletters/11_EOutlook_Issue5_MTvWY_Water_Rts.pdf. The website provides a summary drafted by Sarah R. Liljefelt, Associate Attorney with Schroeder Law Offices, P.C.

Stay tuned to Schroeder Law Offices’s Water Law Blog for more information about the latest water news which may affect you!

Generally, discharges of pollutants into the waters of the United States require permitting from either the EPA or the State’s authorized permitting process under the Clean Water Act (“CWA”). However, in 2006 the EPA issued a Final Rule which concluded that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) were exempt from the CWA’s permitting requirements.

This exemption was short-lived, however, as in 2009 the Sixth Circuit Court of Appeals determined, in the case of National Cotton Council of America, et al. v. US EPA, that the EPA’s exemption ran afoul of the CWA’s statutory requirements. The court held that an application of pesticides or other biological materials to surface waters could come within the CWA’s mandates, and thus the court vacated the rule. The review and vacation of the EPA’s final rule applies to all federal circuits, except the Eleventh Circuit, because cases in each of those federal circuits were consolidated for review.

The court set a deadline of April 9, 2011 to give the industry time to obtain the necessary permits. However, on March 30, 2011 the deadline was extended until October 31, 2011, which will mark the end date of the irrigation season. Therefore, compliance will not be necessary until next year’s irrigation season.

The Oregon Department of Environmental Quality (“DEQ”) has been working to develop pesticide general permits in order to comply with the Sixth Circuit’s ruling. The public comment period for the Pesticide General Permit (2300A) closed on March 7, 2011. The public comment period for the Irrigation District General Permit (2300J) will close at 5 pm on April 15, 2011. More information can be found on the DEQ’s website at: http://www.deq.state.or.us/wq/wqpermit/pesticides.htm.

Make sure to stay tuned to Schroeder Law Offices, P.C.’s Water Law Blog for the latest water news which could affect you!

On January 18, 2011, U.S. President Barack Obama signed an executive order titled “Improving Regulation and Regulatory Review.” The Wall Street Journal printed the President’s address concerning the executive order in an article entitled “Toward a 21^st Century Regulatory System.”

The executive order requires federal agencies to ensure that regulations protecting health, safety and the environment also promote economic growth. The order directs a government-wide review of regulations already on the books in order to seek out and abolish outdated regulations that hinder job creation and economic competition. President Barack Obama expressed his recognition of the delicate balance between protection and economic growth, and his realization that regulations often strike the wrong balance. Therefore, he has made it the policy of his administration to strive for the same ends (the protection of health, safety and the environment), by way of less intrusive means.

What is the anticipated result of the executive order? It is difficult to predict at this point. At the very least, this modernizing effort is a step in the right direction. As natural resource users know, the regulations in this area of the law are seemingly endless. Many regulations do not provide for adequate protection of the environment, let alone make any kind of logical sense, and yet they place giant and sometime insurmountable burdens on those attempting to place those resources to productive use. If the executive order plays a part in reducing roadblocks to growth while protecting health, safety and the environment in a more cost effective way, then it will have made great progress in improving the U.S. regulatory system.

A complete version of the Wall Street Journal article is available at: http://online.wsj.com/article/SB10001424052748703396604576088272112103698.html.

Stay tuned to Schroeder Law Offices, P.C.’s Water Law Blog for more information about the latest news which may affect you!

Since 1989, the 9^th Circuit has held that no party may intervene on the side of the federal government when suits are brought which allege that the federal government did not comply with the National Environmental Policy Act (“NEPA”). Often, environmental groups bring these suits, but those using the public lands or public resources do not have the ability to intervene on the side of the government in order to protect their interests. On Friday, January 14, 2011, the 9^th Circuit unanimously, in The Wilderness Society v. United States Forest Service, reversed the “none but the federal defendant rule,” thus allowing those with an interest in the outcome of the litigation to intervene to protect their rights.

Intervention in federal suits is of two types: 1) intervention as of right, and 2) permissive intervention. In most cases, intervention as of right is freely given so long as the intervenor satisfies a four-part test:

1.      The motion to intervene is timely;

2.      The applicant claims a “significantly protectable” interest relating to the property or transaction that is the subject of the litigation;

3.      The applicant is situated so that disposition of the action may, as a practical matter, impair or impede the ability to protect that interest; and

4.      The applicant’s interest is inadequately represented by the parties to the action.

Permissive intervention is within the discretion of the court.

For over twenty years, the 9^th Circuit enforced a bright-line rule that parties could not intervene on the side of the federal government in NEPA violation cases. The rationale for the rule was that such parties could not have a “protectable interest” in the litigation because NEPA is a procedural statute which only binds the federal government. As the 9^th Circuit has recognized in The Wilderness Society v. United States Forest Service, not only is the reasoning misguided – private parties may have “significantly protectable” interests in the underlying property or transaction, which should be decided on a case-by-case basis – but the policy behind the rule runs afoul of the intervention as of right statute, and arbitrarily treats NEPA cases different than other intervention cases.

The Wilderness Society v. United States Forest Service reinforces the fundamental policies behind intervention as of right: that practical and equitable considerations should be followed; the intervention rule should be broadly construed in favor of intervenors; a liberal intervention policy serves efficient resolution of the issues and broadened access to the courts; and the “interest” test serves to dispose of lawsuits by involving as many concerned persons as possible. Moving forward, intervenor applicants with interests protected under “some law,” who may suffer “practical impairment” of those interests as a result of the litigation, will have the chance to intervene in NEPA cases. This is a fundamental change from previous policy, and one which will grant property owners and natural resource users a voice in disputes which directly affect their rights and interests.

A full copy of The Wilderness Society v. United States Forest Service may be found at: http://caselaw.findlaw.com/us-9th-circuit/1552499.html.

Make sure you stay tuned to the Schroeder Law Offices, P.C. “Water Law Blog” for more updates about laws that may affect you!

On October 7, 2010 the Oregon Attorney General’s Office released a report discussing the problem areas inhibiting full and meaningful government transparency. The report identifies four areas of particular concern – 1) timelines for responding to public records requests, 2) fees, 3) exemptions, and 4) public meetings – and recommends actions to the Oregon Legislature to remedy the shortfalls in public records and meetings laws.

The 2010 Attorney General’s Public Records and Meetings Manual is a publication of the Oregon Department of Justice which outlines current laws and case precedent regarding public records and public meetings. The 2010 updates to the manual include the following topics:

• Public bodies must respond to public record requests within a “reasonable timeframe.” The Attorney’s General’s office now interprets this statutory requirement to mean ten working days for a typical record request.

• Public bodies may charge reasonable fees for production and copy of public records, and may waive fees if the request is in the public interest. The Attorney General’s office recognizes its role in considering the reasonableness of fees, and holds the opinion that public bodies must consider the public’s interests when deciding whether to waive fees.

• There are many exemptions from public records disclosure laws. The report identified 403 exemptions. The Attorney General’s office has called for both organization and elimination of many of the exemptions.

Addressing these problem areas will require coordinated efforts by the legislature, the judiciary, and the Department of Justice. The full report is available at the DOJ website.

These updates to public records laws may have an effect on the ease in which a party may obtain water rights files. Water rights files are public records, and are instrumental for solving water use disputes and determining the scope of water rights. An interested person must apply to the Oregon Water Resources Department in order to inspect or copy water right files. The public records law reforms discussed above may expedite this process, and may result in increased waivers of fees for requests in the public interest.

Schroeder Law Offices, P.C. routinely aids clients with water right file requests. For a flat fee the firm will file the request, go to the Oregon Water Resources Department office to copy the records, and will deliver the records to the client. This service is very helpful to clients who do not have experience requesting the specific public records in question, or who are not in close proximity to the Oregon Water Resources Department office in Salem.

This Wednesday, October 13th, Laura Schroeder will speak to Oregon State University’s Water Resources Graduate Program during the Water Resources Seminar Series. Laura will address “Municipal Water Permitting in an Era of Change: Legal Structures and Policy Trajectories.”

Under the traditional requirements of western water law, an appropriator must divert water, put it to beneficial use, and continuously use the water to prevent loss of his right of use in the future. This “use it or lose it” principle centered on the prevention of water speculation and monopoly. Municipalities in Oregon (as in most prior appropriation states) may apply and receive a permit to appropriate water now for development in the future, a practice that flies in the face of the traditional doctrine.

Laura’s presentation will explore Oregon’s municipal water permitting requirements, and how these requirements are at odds with traditional tenets of western water law. She will discuss the reasons why municipalities are treated differently than other appropriators, and the challenges that municipalities face in providing water to a growing and ever-changing demographic.

For more information about Oregon State University’s upcoming water events, please visit the OSU web site.