On September 18, 2015, the Bureau of Land Management (“BLM”) and United States Forest Service (“USFS”) issued Records of Decision (“RODs”) related to land management in support of sage grouse populations on lands managed by the agencies. The RODs put land use plans in place in lieu of listing sage grouse under the Endangered Species Act (“ESA”). The land use plans are extremely long and complicated, and are summarized in the article Sage Grouse Conservation without an Endangered Species Act Listing: Digging into the National Greater Sage Grouse Planning Strategy Records of Decision, available at: http://www.water-law.com/water-rights-articles/sage-grouse-conservation/.

In general, producers are skeptical that existing activities will not be affected by the new land use plans, as the agencies promise, and are worried about increased fire risks due to the plans. Further, the plans may prove more restrictive than an ESA listing. Parties in Idaho and Nevada have filed lawsuits to challenge the amended land use management plans. See: http://www.gov.idaho.gov/mediacenter/press/pr2015/2%20Feb/pr_61.html, and http://ag.nv.gov/News/PR/2015/Attorney_General_Laxalt_Issues_Statement_Confirming_the_Support_of_Nevada_Counties_in_Sage-Grouse_Lawsuit/.

Law suits involving sage grouse have not halted in the shadow of these new, comprehensive land use plans. On March 29, 2016, Western Watersheds Project (“WWP”) filed suit in the U.S. District Court for the District of Nevada against the BLM for approving fences within the Argenta Allotment in Nevada, claiming the approval violated the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act (“APA”) and that alternatives to fencing existed that BLM should have considered. WWP also alleges that the BLM sage grouse use plan required BLM to consider certain alternatives. To view a copy of WWP’s complaint, visit: https://drive.google.com/file/d/0B1T2j7JW1SeoWV9FbVh2SW1wdEU/view. WWP’s law suit comes on top of other attacks against grazing in the Argenta Allotment that are currently being litigated.

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

On March 11, 2016, Schroeder Law Offices sponsored and participated in the celebration of the finalization of the title transfer process of the Rye Patch Dan and Reservoir from the United State Bureau of Reclamation (BOR) to Pershing County Water Conservation District (PCWCD). This title transfer process has taken 20+ years to substantially complete. The Pershing County Community Center provided the celebration venue on the evening of Friday, March 11, 2016. Those in attendance included the PCWCD Board of Directors, District constituents, community members, individuals involved in the process from the Bureau of Reclamation and Bureau of Land Management as well as Congressmen, Senators, and Assemblymen from the State of Nevada. The award ceremony included a brief history of the process and speeches from individuals involved in the title transfer process with plaques given to those who have been directly involved and influential in the process. The ceremony was followed by a BBQ tri-tip dinner sponsored by PCWCD, Schroeder Law Offices, Bullen Law, LLC, and Stix Livestock. For more information and specifics on the title transfer please see the news release published by Schroeder Law Offices, P.C. on February 5, 2016 announcing the completion of the transfer. . The Irrigation Leader magazine has also published an article on the Humboldt Project title transfer. The article “Seeing a Strong Conviction Through: The Humboldt Project Title Transfer” is based on an interview with Distract Manger Hodges.

BLM’s Sage Grouse Plan Collaboration-Implementation is underway.

As part of the BLM’s effort to ensure collaboration and engagement during implementation of the sage grouse plans, the BLM is sending out invitations to stakeholders to begin the dialogue.

These invitation only meetings will occur on:

April 22^nd in Salt Lake City, UT

April 26^th in Boise, ID

April 27^th in Reno, NV

April 28^th in Redmond, OR

You are requested to RSVP at the link below to reserve your spot by April 15, 2016, so that we can set up the workshop for the appropriate number of participants:

http://bit.ly/SageGrouseWorkshop

While space is limited for these invite-only dialogues, BLM plans to conduct additional public meetings later this spring and summer.  Once these public meetings are scheduled, information will be available on: http://www.blm.gov/id/st/en/prog/wildlife_and_fisheries/greater_sage-grouse.html.  If you are interested in receiving an invitation to these meetings, please contact your state BLM office.

In the Northwest, a substantial percentage of our power comes from hydroelectric projects. California’s new legislation requires utilities to provide electricity from 50% renewables by 2030, and Oregon’s new legislation requires the same by 2040. The hydro power industry is viewing these renewable standards as creating continuing demand for hydro power, but several trends are creating serious hurdles for the hydro power industry.

More large projects are going through FERC re-licensing than those large projects that would seek first-time licenses. The result is that older projects are becoming subject to new instream flow and fish passage requirements. The older projects going through re-licensing are usually required to make facility upgrades, and regulate the projects to send more water downstream.

Additionally, climate change means that water patterns are also changing. Scientists predict that more precipitation will fall during the winter, with less flows from snow pack runoff and precipitation in the spring and summer. Predicted changes will create a large burden on facilities that provide flood control, possibly exceeding the amounts of water the facilities were designed to withstand. Further, flows released to meet instream flow requirements in the spring could mean that water is not available for power production and water users later in the season when there is a larger demand.

Moreover, new in-stream storage projects often meet substantial opposition from environmental groups.  Therefore, some innovative hydroelectric developers are constructing out-of-stream projects. For example, the Snohomish Public Utility District in Washington is reviewing an opportunity to construct the Sunset Fish Passage and Energy Project, http://www.snopud.com/?p=1956. An underwater intake structure would divert water from the South Fork Skykomish River, and would flow one-half mile through an underground tunnel to the PUD powerhouse, thereafter emptying back into the river. The PUD would also update the Washington State Department of Fish & Wildlife’s trap-and-haul facility as part of the project. In this way, the PUD proposes an innovative way to create hydro power while satisfying those who are typically opposed to new projects.

Schroeder Law Offices is assisting a client to develop a closed-loop hydro power project using existing agricultural groundwater use rights. It is the first of its kind in Oregon, and will not have undesired effects on surface water streams or fish passage. These types of innovative hydro power designs will need to be used more and more if hydro power is to keep a foothold in renewable energy portfolios in the West.

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

Spring is approaching on the West Coast and we all know what this means: watering season!  Time to check your sprinkler systems for leaks, read and record meters, and make sure your system is ready for spring irrigation.

Though forecasts were set for an “El Niño” winter on the West Coast, projections from the March Nevada Water Supply Outlook Report, issued yearly by the Natural Resources Conservation Service, suggest that the 2016 water year is not yet the end of Nevada’s drought.  Currently, (as of March 1, 2016) the Bridgeport Reservoir on the East Walker River is at 24.4 percent full, while the Topaz Reservoir on the West Walker River is at about 28.6 percent full.  Despite the two reservoirs having about twice as much water as they did at this time last year, streamflow numbers as of April 1 will calculate the upcoming curtailment order on groundwater rights issued by the Nevada State Engineer’s Office.

After several years of drought, the influx of melting snow pack will provide some relief for Nevada residents, but mindfulness is going to be key.  In Pershing County, the newly improved Rye Patch Reservoir is set to provide water to Lovelock Valley farmers but the county’s water conservation district manager recommends the 2016 irrigation season be postponed.  After consecutive years of drought, the dry ground in irrigation ditches and canals will absorb much of the water initially released from the reservoir, until at least another 10-12,000 acre-feet of water are available for use.

Ranchers in Northern Nevada are facing designations proposed by state water officials last week that order groundwater well metering, meaning more monitoring, regulation, and study of the Humboldt River Basin’s limited resources.  As orders such as these become more common, residents can do their part by monitoring individual irrigation systems and meters.

Schroeder Law Offices is proud to announce Portland’s Managing Attorney, Sarah Liljefelt, has been promoted to Junior Partner.  Sarah has been with the firm since 2009 as a law clerk, and joined the firm full time after receiving her Juris Doctorate and Certificate in Environmental and Natural Resources Law from Northwestern School of Law of Lewis and Clark College in 2010.

Sarah’s practice focuses in the areas of water rights, real property law, and litigation, licensed in both Oregon and California.  As a member of the Oregon State Bar Environmental and Natural Resources Law Executive Committee, Sarah has published extensively on natural resources law and related topics.

In addition to her focused practice areas, Sarah is active in the Portland community.  She is currently a Vice President of Oregon Cattle Women, and competes on the Oregon Women Lawyer’s “Dragonflies” dragon boat team.

Sarah was born and raised in California during a time of serious drought and is passionate about the importance of water resources for people, animals, and the production of food in the face of supply variations.

Upon facing the fourth year of consecutive drought, the Nevada Drought Forum formed in April 2015 by Nevada Governor Brian Sandoval to assist with water resource challenges in the State of Nevada. The Forum was comprised of members representing various governmental and quasi-governmental agencies in charge of managing water resources in the State. In September 2015, a Drought Summit was held at the Nevada Legislature, where those involved discussed many of the drought problems Nevada is facing, and numerous presentations were offered on these issues. At the conclusion of the Forum activities, and in December 2015, the Governor was presented with a Recommendations Report summarizing the conclusions made by the Form, and proposed future action.

The Drought Forum recommendations come in seven (7) categories including: 1) Water Conservation, 2) Nevada Water Law, 3) Monitoring and Research Data, 4) Financial and Technical Assistance, 5) Supply Augmentation and Long-Range Planning, 6) Information Sharing and Outreach, and 7) Drought Declarations/Emergency Actions. Each category offers specific suggested action items for the Governor’s consideration. Strategies include requiring meters on all groundwater connections, tiered rate structures, updates to Nevada water law, judicial education on water issues, and refinement to drought criteria, among others.

At this stage, no specific action is taking place on the issues presented; however, the conversation is started on where Nevada will head in response to ongoing drought conditions. While real action can sometimes take years to implement, the Recommendations come as a positive sign that Governor Sandoval is interested in suggested strategies advocated by water professionals around the state. There remains time for those interested in becoming involved to voice their concerns and positions with the Governor in upcoming events dedicated to this ongoing discussion.

For more information about the Governor’s Drought Form visit http://drought.nv.gov/.

For Additional information concerning the Recommendations Report visit http://drought.nv.gov/News/Nevada_Drought_Forum__Recommendations_Report_-_December_2015/.

LOVELOCK, Nevada – The Pershing County Water Conservation District (PCWCD) has assumed sole ownership of Rye Patch Dam and Reservoir, and therefore majority control of the Humboldt Project, having acquired property and water rights from the United States Bureau of Reclamation (BOR).

The transfer process, which began in 2002, was finalized with the recording of a quitclaim deed in Pershing County on January 15^th, 2016. The deed conveyed 10,688.50 acres outright in addition to 1,519.13 acres of easement lands, 49,667.44 acre-feet of direct water diversion rights from the Humboldt River, and 115,152.32 acre-feet of water storage rights for Rye Patch Reservoir.

The Humboldt Project dates back to the early 1930s, when PCWCD began negotiations with BOR for construction as authorized under the National Industrial Recovery Act. The Public Works Administration allocated $2 million for the creation of the project, which led to the construction of Rye Patch Reservoir. The first deliveries of stored water were made in the Spring of 1941.

To help fund the project in the early part of the last century, PCWCD purchased private land and water rights from nearby ranches in the Battle Mountain and Valmy areas. PCWCD then assigned its rights under the purchase agreements to BOR, both to facilitate the transfer of water rights to storage at Rye Patch for use on district lands and as collateral for money the government had advanced PCWCD for those purchases. The lands acquired for the Humboldt Project were classified as either “withdrawn lands,” which were withdrawn from the public domain, or “acquired lands,” which were private ranch lands and associated water rights that PCWCD purchased then assigned to BOR.

PCWCD entered into a repayment contract with BOR, which called for full reimbursement of all Humboldt Project construction and acquisition costs over a 40-year period. Then, after several attempts by Nevada’s Congressional delegation to draft legislation that would transfer title of the Humboldt Project to PCWCD, the Humboldt Project Conveyance Act (Title VIII, Section 803 of Public Law 107-282) was finally passed in 2002. The Secretary of the Interior, who oversees BOR, was directed to convey to PCWCD, the state of Nevada, Pershing County, and Lander County all title and interest to the lands and features of the Humboldt Project.

Among the last steps taken was the transfer, by way of U.S. land patent, of 3,761.28 acres of withdrawn lands in August of 2015.

PCWCD will celebrate the title transfer in a ceremony at the Lovelock Community Center on Friday, March 11^th, 2016.  Federal, state and local dignitaries are expected to attend.

California Governor Brown signed Senate Bill 88 into law on June 24, 2015. Part of that Bill amended the California Water Code to require that all persons who divert 10 acre-feet or more of water per year after January 1, 2016 must install a water measuring device to measure the rate of diversion (including diversion into and out of storage). Water users must report installation to the Water Board, as well as provide evidence that the measuring device is functioning properly at five-year intervals. Water users must maintain records of diversion at time intervals of one hour or less (in some cases) and total amounts of water diverted.

Annual diversion reports must be submitted to the Water Board, and the law states: “Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.” The new law imposes civil fines in an amount not to exceed $500 per violation, per day, which may be enforced civilly through the superior court, or administratively by the Water Board. The Water Board will provide forms for reporting.

On January 19, 2016, the Water Board adopted emergency regulations to implement the new water measuring law. Those regulations were sent to the Office of Administrative Law for approval. Of note, the proposed regulations give the Deputy Director of the Division of Water Rights the authority to require monthly, daily, or more frequent reporting in times when there are insufficient flows to support all diversions. Additionally, the regulations propose a phased approach that takes into account the amount of water diverted, with larger diverters needing to comply with more stringent requirements than smaller diverters.

The recent drought spurred California law makers to enact this law that will mark a drastic change in the way water users operate. The Water Board reports that this new measurement, recordkeeping, and reporting law will apply to approximately 12,000 water users in California. The Water Board hopes that the new law and regulations will improve water use regulation and planning. Industry groups, including the California Cattlemen’s Association, oppose the regulations.

In Oregon, the Water Resources Department has phased in water use measuring, recordkeeping, and reporting requirements into new water use permits that are issued. California’s new law and regulations impose a new condition on existing water use rights, raising red flags about regulatory takings.

For access to S.B. 88 and the draft administrative rules, visit: http://www.waterboards.ca.gov/waterrights/water_issues/programs/measurement_regulation/.

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

Final rulemaking related to Forest Service permits for Ski Area Water Rights was released on December 30, 2015. Unlike an earlier directive passed in 2011, the Ski Area Water Clause will not require ski areas to transfer water rights to the federal government as a condition of operating on public land. Instead, the new clause will require ski areas to prove there is a “sufficient quantity of water to operate a ski area.” The new directive will take effect on January 29, 2016.

In 2011, sparked by the concerns that ski areas might sell their water rights in lieu of using them to operate due to rising temperatures and water scarcity, the Forest Service issued a directive that would require joint ownership of water rights by ski areas and the United States. Since water rights are typically held by the lessee, this directive would have required a transfer of rights into shared ownership in some instances, and for water rights to be acquired in the name of the United States in others. The National Ski Area Association (NSAA) brought suit against the Forest Service challenging the directive on January 9, 2012, characterizing the directive as government overreach. In December, 2012 a federal judge agreed with the NSAA and ordered the Forest Service not to enforce the proposed rule.

The December 30th directive abandons the original proposal that ski areas transfer water rights to the federal government. Instead, after an extensive public comment period, the final directive requires an applicant for a ski area permit to submit documentation prepared by a hydrologist that demonstrates there is sufficient water to operate a ski area for the entirety of the ski area permit term. The final directive explains that “sufficient water to operate a ski area” means that under typical conditions, taking into account fluctuations in utilization of the authorized improvements, fluctuations in weather and climate, changes in technology, and other factors deemed appropriate by the applicant’s qualified hydrologist of licensed engineer, the applicant has sufficient rights or access to a sufficient quantity of water to operate the permitted facilities, and to provide for the associated activities to be authorized under the ski area permit in accordance with proposed operating plan.

Additionally, if there is a change such as a change in ownership, and a ski area water facility will not be primarily used for operating a ski area, the authorization for the facility under the ski area permit will be terminated and the facility must be removed from National Forest Service lands. Lastly, if a ski area permit is terminated or revoked, the holder must give a right of first refusal of the water rights associated with the permit to the succeeding ski area permit holder. If the water use right is jointly owned with the United States, the holder must give a right of first refusal to the government.

The stated goal of this new rule is to promote the long-term sustainability of ski areas on National Forest Service lands and the communities that depend on the ski areas for revenue. There are 122 ski areas that lease approximately 180,000 acres of lands managed by the Forest Service. Ski areas received about 23 million visitors annually, contributing $3 billion to local economies and supporting approximately 64,000 full and part-time jobs in rural communities. In the West, water use rights for many ski areas are business assets, property interests that operate as collateral when re-financing. One major criticism of the original rule, was that requiring water rights to be co-owned by the federal government would limit a ski area’s ability to control their assets and thus their ability to finance operations.

Thus, the directive ensures that ski areas not only have adequate water supply for operating, but that infrastructure to handle the water supply is used only for permitted purposes under the special use permit. Hailed as a success by both the Forest Service and the ski industry, these actions demonstrate a coordinated effort to eliminate the risk of sales or transfer of water rights that might prevent a ski area from operating in the future and ensure that water will remain available for ski areas across the West.

On December 22, 2015, the United States Environmental Protection Agency (“EPA”) announced funding of more than $19 Million for drinking water and wastewater infrastructure projects in Nevada. The program funds fall under Nevada’s Clean Water State Revolving Fund, and provides money for state projects that promote clean water through wastewater treatment projects and improvements to drinking water infrastructure in the State. The EPA’s Regional Administrator stated that “This substantial investment at the federal level helps communities develop the infrastructure needed for clean, safe drinking water and proper wastewater treatment. EPA is committed to protecting the water resources so important public health and Nevada’s economy.”

Funds supplied under the EPA program will go to provide financing for state projects such as upgrading septic systems to sewer, and renovations to wastewater treatment facilities to increase efficiency, as well as support projects for better and more efficient access to clean drinking water, such as water storage and water system upgrades. The funds this year will combine with over $200 Million in federal funding previously provided to Nevada’s Clean Water and Drinking Water State Revolving Fund since the project began. While the EPA’s influence can at times be controversial, federal funding is important to State projects, where both municipal and agriculture interests can often benefit from the funds supplied for needed water projects.

More information on the topic can be found at the EPA Web Site.

The news of Dwight and Steven Hammond’s resentencing is an open platform for change in federal handling policies, but the fear incited by Ammon Bundy’s voluntary militia of protesters is clouding evidence that backs claims of federal government mismanagement. Protesters are against the Hammonds’ re sentencing and believe they were convicted unfairly under laws intended for acts of terror for which they’ve been given excessive sentences but are not explicitly calling upon the issue at hand, a reduction of the Hammonds’ sentences.

While much of the news coverage related to the Hammond family has broadcasted Ammon Bundy’s armed militia protest, the legal issue at its core is beginning to come into focus. Bundy and his supporters have set up camp on federal land, demanding that control over the asserted public land be remanded to its local people such as the Hammond ranching family. As the American Bar Assocation Journal suggests, the Hammonds became a cause celebre among anti-government activists in part because of mandatory minimum sentencing regarding disputed use of land with the federal government. Both Dwight and Steven Hammond had served their initially imposed sentences when the government successfully appealed to the San Francisco-based 9^th U.S. Circuit Court of Appeals. Under said appeal, the Hammonds were re-sentenced to the five-year mandatory minimum, re-trying the pair as if they were terrorists though initially sentenced for arson.

While Bundy’s actions are drawing attention to private land conflicts with federal government land rights, they are slowly distracting from the application of said protest: the plight of the Hammonds. At the center of this standoff are a pair of Oregon ranchers who were denied the chance to make their claim to the U.S. Supreme Court. The re-sentencing of the Hammonds turned them quickly from arsonists to terrorists, despite original claims that sentencing the two to the minimum mandatory sentence of five years was acknowledged by a federal district judge as “grossly disproportionate” and a violation of the Eighth Amendment’s ban on cruel and unusual punishment. A 2014 ruling by a panel of the court acknowledged that the Supreme Court has upheld longer sentences for comparable or less serious crimes. In March of 2015, the Supreme court rejected the Hammonds’ petitions for certiorari.

If you don’t know the Hammond family of Harney County, Oregon, you will soon. As the Hammond protest builds momentum backed by a voluntary militia, Dwight Hammond, 73, and his son, Steven Hammond, 46, are making headlines again. Three years ago, the pair made headlines when convicted in Federal Court of arson for fires lit on the Hammond Ranch in 2001 and 2006 to reduce the growth of invasive plants and protect their property from wildfires. Convicted under an anti-terrorism act, Dwight Hammond served three months’ time for the conviction while his son Steven served a full year.

As the Federal Judge suspended the minimum sentence under the guidelines as “shock[ing] the conscience,” the U.S. Attorney appealed the sentence to the Ninth Circuit who ruled that both are due to return to prison to serve the federal prison terms of five years. Private landowners often find themselves at the mercy of the federal government as large parts of the West Coast are in government hands, the story of the Hammond’s conviction and resentencing may be all too familiar to private ranchers in the area who have already felt the pressures of forced sales.

Though the Hammonds have planned to report to prison today, January 4, 2016, as ordered, riled up liberty supporters from surrounding states have a different disposition. Ammon Bundy, son of Nevada rancher Cliven Bundy whom was involved in a standoff with the government and Bureau of Land Management (BLM) in 2014 over grazing rights, has joined with a growing band of armed militiamen acting as organized sympathizers to the Hammonds. Though the Hammonds have no direct involvement with the militia, Bundy and others valiantly stake support claims that the Hammonds should not be tried as terrorists and have rights to the tried actions per purchase rights and federal grazing allotments. The Hammonds have and will continue respecting the rule of law and follow court orders without incident or violation. Click here to view their statement.

The Hammond family’s farm has been eyed by US Fish and Wildlife Service (FWS) and BLM since the 1970s when ranches adjacent to the Hammonds and others were sold and added to the Malheur National Wildlife Refuge. Though approached by FWS and BLM many times, the Hammonds (as well as other ranchers) refused to sell. While many ranchers in the area were forced to leave, another 32 out of 53 permits were revoked, and grazing fees were raised significantly for those who remained in the area. By the 1990s, the Hammonds were one of very few ranchers that were still private owners of property adjacent to the Malheur National Wildlife Refuge. The four year resentencing request for Dwight and Steven Hammond comes from an appeal filed by the BLM Field Manager and Refuge Manager for the Malheur Refuge.

The Hammonds attorneys report that “the Hammonds will continue their legal efforts to renew their grazing permits. They will also pursue Executive Clemency. We hope that President Obama will agree with us and with the veteran judge who presided over the trial that the mandatory five-year minimum sentence is far too long for these ranchers.”

To sign the Petition in support of a reduction in sentencing and Executive Clemency go to: https://petitions.whitehouse.gov/petition/commute-sentences-dwight-lincoln-hammond-jr-and-steven-dwight-hammond-both-harney-county-oregon.

Dwight and Steven Hammond respect the rule of law. They have litigated this matter within the federal courts for over five years and, in every instance, have followed the order of the court without incident or violation. That includes serving the entire sentences imposed in this case by the judge who heard the evidence at trial and who concluded that imposition of a five-year sentence under these circumstances would “shock the conscience.”

As the Hammonds have previously stated, they will be reporting to the United States Bureau of Prisons today to serve their sentences.

The Hammonds will continue their legal efforts to renew their grazing permits. They will also pursue Executive Clemency. We hope that President Obama will agree with us and with the veteran judge who presided over the trial that the mandatory five-year minimum sentence is far too long for these ranchers

Alan Schroeder, Counsel Hammond Ranches, Inc.

Kendra M. Matthews, Counsel Dwight L. Hammond, Jr.

Lawrence Matasar, Counsel Steven D. Hammond

Congress has adjourned for the year without passing a bill to authorize and fund the Klamath Agreements. The Klamath Basin agreements include: the Klamath Hydroelectric Settlement Agreement (“KHSA”), Klamath Basin Restoration Agreement (“KBRA”) and Upper Klamath Basin Comprehensive Agreement (“UKBCA”) that together lay out a comprehensive scheme for changes in management along the entire reach of the Klamath River. After years of litigation and negotiation, certain stakeholder groups came together to craft the trio of agreements. However, the agreements did not sit well with everyone. Particularly those in Klamath County and their California neighbors due primarily to the highly controversial dam removal provisions and drying up thousands of acres of farmland. For these among other reasons, the agreements, which required authorizing legislation and funding from Congress, failed to gain traction.

Senator Ron Wyden [D-OR] attempted multiple times to pass the necessary legislation to authorize the agreements. The latest version, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, has been stalled in committee since last January (2015). In an effort to move forward, on December 3, 2015, Representative Greg Walden [R-OR] released a draft bill intended to “help provide water and power certainty for agriculture and boost economic development and job creation for rural communities and tribes through a transfer of federal timber lands.” Walden’s draft bill omitted dam removal and authorized transferring up to 100,000 acres each of National Forest land to Klamath County, OR, and Siskiyou County, CA. These issues quickly became non-starters for the Tribes who held the “ears” of Senators Wyden and Merkley.

The KHSA is set to expire on January 1, 2016. While the parties can vote to extend it, some signatories are beginning to question if the agreements provide workable solutions for the Klamath basin. The Yurok Tribe clearly communicated its intent to terminate the agreement. Similarly, the Klamath Tribal Council has issued a dispute notice. Additionally, PacifiCorp, the company that owns the dams, has changed course and now indicates it will pursue re-licensing of the dams. Thus, many parties that initially favored the agreements are beginning to show their discontent. This may have been another reason authorizing legislation had difficulty making its ways through Congress.

In March of 2015, The Oregon Water Resources Department passed administrative rules, Oregon Administrative Rules 690-025, to help govern the region in accordance with the Upper Klamath Basin Comprehensive Agreement in anticipation of the agreement being authorized by Congress. The rules implement sections of the agreement to address control of well use in off-project areas when that use affects surface water supplies in the basin. However, these rules will no longer be effective once the agreement terminates, and groundwater regulation in the off-project area will again be in accordance with OAR 690-009.

As such, for better or worse, it appears the agreements will dissolve as portions of the agreements expire in the New Year. Thus, 2016 will likely involve the parties initiating new negotiations to resolve the critical water usage issues in the Klamath basin, potentially leading them back to court to resolve exceptions filed in the Klamath Basin Adjudication as that process is slated to continue through the coming year or years.

Photo: Rain – Klamath Basin Wildlife Refuge by Michael “Moik” McCllough

Oregon Revised Statute 537.225 was enacted in 2013, allowing water use permit holders with irrigation, nursery, temperature control, stock watering, or agricultural water uses and subsequent completion dates to apply for assignment of all or part of the water use permit, and for the issuance of a replacement water use permit that reflects that assignment. Thus, for the first time in Oregon, the Oregon Water Resources Department (“OWRD”) may issue a new permit after an assignment, rather than merely recognizing the assignment in OWRD’s records. Moreover, for the first time in Oregon, shared water use permits may be split so that holders of shared permits can move forward with perfection at their own pace, or make changes through the permit amendment process without affecting the other permittee’s portion of the shared water use permit.

Oregon Administrative Rule (“OAR”) Chapter 690 Division 325 was enacted in 2014, outlining the requirements for split permit applications. The OWRD forms for split permit applications were completed at the end of 2014, and are available at: http://www.oregon.gov/owrd/Pages/pubs/forms.aspx. OWRD disseminated information about the new split permit application to Certified Water Right Examiners so that they may advise their clients around the State of the new opportunity.

As provided in OAR 690-325-0060(1), the applicant is required to pay OWRD the full cost to processing the split permit application. OWRD is estimating costs in a similar manner to its Reimbursement Authority Program, and provides an Applicant Agreement for a nonrefundable fee of $125.00 that outlines the estimated costs for processing the application. The applicant can then sign the agreement and pay the estimated costs to move forward with their application.

This month, OWRD issued its first Proposed Final Order proposing to approve a split permit application, and the Final Order is set to issue at the end of January, 2016. The estimated cost outlined in the relevant Applicant Agreement was $585 (in addition to the $125 nonrefundable fee for estimate).

OWRD and water use permit holders are still waiting to see how efficiently the new split permit process works, but we are very excited about the new opportunities this process provides! We look forward at Schroeder Law in assisting permit holders in Oregon through this new process.

Make sure to stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect your water use!

Nevada’s Special Session opened December 16, 2015 with Senate Bill 1 , an act that will issue transferable tax credits and tax breaks to certain projects authorized by the government.  Section 64 of this bill relates to water use.  It is proposing to streamline the water use permitting processes in order to encourage economic development.  The Bill as it is currently proposed, may side step certain evaluations and studies the Nevada State Engineer takes into account when reviewing change applications involving transfers of water uses between basins.  In addition, the proposed Bill will limit the parties who can protest these water uses in the change application process.  This may be concerning a s a fundamental concept of western water use is protecting against conflicts, injury, and other impacts between users.  Will this Bill continue to protect these rights? 

Published by Therese A. Ure and Lisa Gage

On October 16, 2015, the office of the State Engineer of the State of Nevada issued an Order of Adjudication for the public waters of Northern Nevada’s Diamond Valley. The past years’ drought has made vested water rights and claims in Eureka County an ongoing and important legal issue. Water rights’ holders will need strict proof of beneficial use, as will any future applicant. The order provides Nevada landowners six months to respond.

As such, State Engineer Jason King will commence (resume) taking Proofs of Appropriation in the Matter of Determination of the Relative Rights In and To All Waters, Both Surface and Underground, located within Diamond Valley, Eureka and Elko Counties, Nevada, on November 30th. Order No. 1266 states, “All claimants to waters of said Diamond Valley must file their Proofs of Appropriation in the Office of the State Engineer on or before the 31st day of May, 2016 as provided for under NRS 533.110.”

These Proofs of Appropriation relate to water uses that began prior to the development of Nevada’s surface and ground water codes. All subsequent uses go through an application and permitting process with the Nevada Division of Water Resources. If you think you can prove a historical water right of use dating back prior to the water codes, now is the time for further research.

Schroeder Law Offices has assisted many clients in research guidance and assistance in gathering support for vested claim water rights filings. Some of the types of proofs often used to support vested water rights claims in an adjudication are outlined in an article entitled “How to Research Land & Water for Proof of Vested Nevada Water Right Claims,” by Katie Delong and Sarah R. Liljefelt, Therese A. Ure of Schroeder Law Offices.

El Niño is gracing the West Coast of the United States and water watchers are enjoying relief from the past few years of drought, but the catch-up game may take longer than hopefuls could dream. Reports from the U.S. Climate Prediction Center indicate that wetter weather is forecast for the West Coast through at least November 24th, but may only be enough to recover part of the damage caused by drought. Not only would water storage reservoirs need to be restored to normal, levels of both surface and groundwater would also need to at least approach normalcy for El Niño to solve the West’s water scarcity issues.

Organizations such as the Agricultural Conservation Easement Program are seeking to aid with scarcity issues, whether El Niño proves itself as a force this winter or not. On November 16, 2015, U.S. Department of Agriculture Secretary Tom Vilsack announced the availability of $350 million funded through the ACEP to benefit the restoration and protection of working agricultural lands and wetlands. The funding was created by the 2014 Farm Bill to protect critical water resources and wildlife habitats, but is also extended to landowners to help protect and restore key farmlands, grasslands and wetlands across the nation. According to a news release by the USDA’s Natural Resources Conservation Service, private landowners can use programs like the ACEP to maintain land for farming and ranching purposes. Voluntary easement sales can help landowners engage in the conservation efforts by limiting future development to protect key resources such as water.

The news of ACEP’s funding comes down right alongside a Presidential Memorandum written in early November. The memorandum is addressed to secretaries such as USDA’s Vilsack and specifically directs such programs to, “Avoid and then minimize the harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water- disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities.” (Western Livestock Journal)

While El Niño may bring hope to the West Coast, efforts from the USDA and ACEP will be needed to aid the long-term protection of farmland, grassland and wetland in the US, as well as the restoration and consistency of water quality and levels.

On November 3, 2015, the United States Senate voted on legislation meant to repeal the federal regulation re-defining “Waters of the United States” (“WOTUS”). WOTUS sets EPA’s jurisdiction, and thereby how far the EPA can reach to regulate various waterways. The regulation increases federal jurisdiction over water within the United States, which many believe will increase federal oversight over certain water sources, especially that used for agriculture. The primary concern is that water use that was once exempt, will now fall under federal jurisdiction requiring new permitting and regulatory procedure, adding additional costs to use of this “jurisdictional” water. Through a bipartisan vote, with 57 senators voting for, and 41 against, the legislation failed to meet the 60 vote requirement, effectively scrapping the Bill.

On November 6, 2015, in a follow-up attempt to repeal with “WOTUS” Rule, Sen. Joni Ernst from Iowa sponsored a joint resolution of disapproval of the Rule. With the joint resolution passing in the Senate, Sen. Ernst stated, “Today’s passage to scrap the expanded WOTUS rule is a major win for our hardworking farmers, ranchers, manufacturers, and small businesses who are continuously ignored by the EPA. It is abundantly clear that the WOTUS rule is ill-conceived and breeds uncertainty, confusion, and more red tape that threatens the livelihoods of many in Iowa and across the country.” The House will now consider the joint resolution, however, President Obama has expressed his intent to veto any law that seeks to repeal or alter the current WOTUS rule.

In the meantime, legal battles over WOTUS continue, as now more than 30 states have filed lawsuits against the EPA seeking to stay the Rule’s implementation. The effect of WOTUS remains stayed for a number of states until the EPA works through the legal challenges.

Update:

Since the November 6, 2015 vote by the United States Senate in support of a Joint Resolution (S.J. Res. 22) to set aside the EPA’s new rule under the CWA concerning “Waters of the United States” on January 6, 2016, the United States House of Representatives equally voted in support of the Joint Resolution. This vote effectively sent the matter to the President, and as predicted, on January 19, 2016, President Obama vetoed the Joint Resolution, his ninth veto since taking office.

In the President’s press release regarding his veto of the Joint Resolution, he stated that, “The rule, which is a product of extensive public involvement and years of work, is critical to our efforts to protect the Nation’s waters and keep them clean, is responsive to calls for rulemaking from the Congress, industry, and community stakeholders, and is consistent with decisions of the United States Supreme Court.” President Obama went on to state that “Pollution from upstream sources ends up in the rivers, lakes, reservoirs, and coastal waters near which most Americans live and on which they depend for their drinking water, recreation, and economic development.”

Senator Joni Ernst, a Republican from Iowa who sponsored the Resolution, stated in response that “This rule is not about clean water. Rather, it is about how much authority the federal government and unelected bureaucrats should have to regulate what is done on private land.”

The President’s veto, and the Rule’s implementation comes as a large regulatory hurdle many farmers and ranchers will have to navigate, with the potential for additional permitting and fees to operate in and around private water sources. While the Rule does exempt irrigation waters under certain circumstances, many questions remain as to the reach the Rule will have. While the Rule continues to be implemented, it remains stayed pending further Court action.