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!

As many of you may know, Laura’s father William F. (Bill) Schroeder is an attorney and has
been in the general practice of law with an emphasis in speaking, writing, and litigating public land, water, and natural resource issues in the Western United States since before 1960. Mr. Schroeder is rated among his legal peers with the highest rating, i.e. AV.

Due to Mr. Schroeder’s extensive and impressive background, which is further outlined below, we are pleased to offer the first in a collection of stories by William F. Schroeder entitled “As William F. Schroeder Remembers: Stories from a Western Rural Law Practice.” Please view the following link for access to the story: http://water-law.com/Water-Law-Stories/Stories.html.

Mr. Schroeder graduated from the University of Chicago with a Bachelor of Arts degree
at the age of eighteen years, from Valparaiso University School of Law with an LLB Degree
(Legum Baccalaureus) at the age of twenty years, has been a member of the Illinois State Bar
Association since 1950, and has been a member of the Oregon State Bar Association since 1951.

Independent of Mr. Schroeder’s more professional related activities, Mr. Schroeder was a longtime member of the Vale Chamber of Commerce, where he was instrumental in having a role in the construction of the Vale Swimming Pool and other projects in Vale, Oregon; Mr. Schroeder was a Board Member on various School Boards, including for the Treasure Valley Community College in Ontario, Oregon; Mr. Schroeder was a longtime Scout Master for Troop 452, Seven Rivers District, Ore-Ida Council in Vale, Oregon; and Mr. Schroeder was a longtime, founding member for Grace Lutheran Church in Vale, Oregon.

Mr. Schroeder is married to Alberta E. Schroeder. They celebrated their 60th Wedding Anniversary in 2010. They have six children and fourteen grandchildren, three of which continue Mr. Schroeder’s legacy as a lawyer dealing with public land, water, and natural resource issues.

Stay tuned for additional stories. We hope you enjoy!

We are very pleased to announce that Jerry Erstrom of Vale, Oregon was granted the 2011 Watsave Award by the International Commission on Irrigation and Drainage (ICID) for his work on the Willow Creek Piping Project. The Watsave Award includes a stipend of $2,000.

The Willow Creek Piping Project addresses 35,000 acres within the Willow Creek basin adjacent to the Willow Creek and Malheur River. The total length of delivery canals and laterals under the piping project is approximately 65 linear miles with 51.4 linear miles already completed. Prior to the Willow Creek Piping Project, all irrigation water was delivered to users from the main canal through a complex network of open earthen ditches. These systems were established in the 1930s, increasing concerns associated with breaches as well as human and animal safety. Open canals also substantially increased operation and maintenance costs for the Vale Oregon Irrigation District.

As implemented by the project, piping irrigation laterals virtually eliminated conveyance losses from seepage and evaporation, provided gravity pressurized water to farmers and decreased power costs by reducing or eliminating the need to operate irrigation pumps, improved reliability, control, and consistency of water delivery and measurement, provided possible opportunities for small “low-head” hydro-power facilities, and utilized water more effectively in connection with irrigation without increasing consumption.

Once the project is completed it is estimated that 400,000 pounds of CO2 emissions will be eliminated annually, 36,000 pounds of phosphorous will be prevented from leaving the field annually, 120,000 tons of annual soil loss will cease, 183.5 billion colonies of E.coli bacteria per acre will be prevented from leaving the fields, and virtually all seepage and evaporation will be eliminated. Additionally, 2 to 3 million Kilowatt hours of electricity will be saved annually and 25,000 gallons of diesel fuel will be conserved per year. Water conservation benefits will amount to more than 12,000 acre feet of irrigation water savings annually. Finally, the economic advantages of this project will amount to the potential of 15 jobs, $81,000 per year in fuel costs saved, $115,000 in electrical pumping costs saved annually, the participation of at least 23 Oregon businesses and $1.8 million generated for the economies of Ontario and Vale, Oregon.

Recently, Larry Stephens of the United States Commission on Irrigation and Drainage (USCID) traveled to Iran to accept the ICID award on behalf of Jerry and the project. Because Jerry was unable to receive the award in person, USCID took the opportunity to congratulate and honor Jerry and his colleagues on their accomplishments at the 2011 USCID San Diego Conference.

For additional sources regarding the project, please view the following links:

• http://www.capitalpress.com/content/ml-water-project-awarded-011312
• http://www.youtube.com/watch?v=G4RBXwH6sQg
• http://www.icid.org/awards.html#farmer

Professor Michael Blumm is a noted scholar and professor at Lewis & Clark Law School. I had the privilege of attending more than one of his classes during my time there. Therefore, I was somewhat surprised when I read his guest editorial in the Oregonian and letter to the Oswego Lake Work Group regarding public access to Oswego Lake. Links to the documents are provided here:

http://www.oregonlive.com/opinion/index.ssf/2012/01/public_access_struggle_citizen.html

http://welovelakeoswego.com/wp-content/uploads/2012/01/Michael-Blumm-Letter_01.01.12.pdf

As a fly fisherman, the public’s use of navigable waterways has always been an area of special interest to me. More access equates to more fish. To me, an analysis of the public’s right of access to Oswego Lake is far more complex than Professor Blumm indicates.

First, there is a difference between a) the public’s right of navigation and b) the public’s right to cross private land for purpose of reaching navigable water. While the Oregon Admission Act of 1859 does in fact state that “all the navigable waters of said State, shall be common highways and forever free,” the Act makes no mention of a citizen’s entitlement to cross private land for purposes of reaching navigable waters.

In his January 3, 2012 comments, Professor Blumm points to an 1869 case, Weise v. Smith to suggest that such a right does in fact exist. There, the Supreme Court condoned the use of private uplands to construct booms necessary to move logs downstream through a navigable waterway. Professor Blumm omits reference, however, to subsequent cases that refute his bold conclusions. For example, in Lebanon Lumber Co. v. Leonard (1913), the Court determined that “[w]here the bed and banks of the stream are owned by the riparian proprietor, the navigability of the stream does not give to the navigator a right of way on the land.” Moreover, in Guilliams Et Al. v. Beaver Lake (1918), one of the very cases relied upon by Professor Blumm, the Supreme Court refused to find that the right of navigation carries a concomitant right of egress across adjacent private lands.

Second, Professor Blumm’s editorial characterizes access to Cannon Beach as a similar example of how the public holds access rights to publically held resources such as Oswego Lake. I find use of the Cannon Beach analogy troubling. I suspect Professor Blumm is referring to the Supreme Court’s landmark decision in State ex rel. Thornton v. Hay (1969). There, the court determined that the public enjoys a right of access across privately owned “dry sand” portions of the beach. To arrive at this conclusion, the Supreme Court reasoned that the legal doctrine of “custom” was applicable due to the public’s time immemorial use of the dry-sand area to reach the ocean – a use dating back to aboriginal natives. Notably, the Supreme Court in Thornton declined the opportunity to base its ruling upon navigability doctrines. In the case of Oswego Lake, the Thornton legal analysis seems completely inapplicable given the lake’s history and artificial traits.

Third, it is my understanding that substantial water is retained in Oswego Lake by virtue of dam. Professor Blumm’s conclusions therefore presume that a servitude, in the public’s favor, has silently arisen over these private lands by virtue of the water’s artificial placement there. While the question has been litigated elsewhere with varying results, I am unaware of any cases in Oregon that support an unqualified public right of navigation over private lands underlying artificially impounded water. Therefore, Professor Blumm’s conclusions appear to overlook a legal question that must first be reconciled prior to opining on public access to Oswego Lake.

Finally, it seems that Professor Blumm’s position would be substantially bolstered if the City of Lake Oswego owns unencumbered land abutting Oswego Lake. If so, a publicly owned right of way might then exist over uplands for purposes of reaching the surface water of the Lake. Because this consideration is so critical – and because Professor Blumm fails to address it – I suspect public access to certain areas of Oswego Lake is enjoyed pursuant to a limited easement rather than fee title ownership of land abutting or underlying the lake. If true, the City would be constrained from enlarging the scope of its swimming easement to include, for example, a boat launch.

On December 22, 2011, Oregon’s Integrated Water Resources Strategy (“IWRS”) Discussion Draft was distributed to the public for review and comment. The Discussion Draft’s purpose is to understand Oregon’s water needs and to articulate a strategy to meet those needs in the future. As outlined in Section 42 of House Bill 3369 (2009), the Oregon Water Resources Department was directed to develop an Integrated Water Resources Strategy for Oregon in collaboration with the Oregon Department of Environmental Quality, Oregon Department of Fish and Wildlife, and Oregon Department of Agriculture.

The Discussion Draft focuses on instream needs as well as out-of-stream needs, including issues of water quantity, water quality, and the ecosystem. Because the issues outlined in the Discussion Draft may affect your interests we recommend reviewing this document, a copy of which can be accessed through the following link: http://www.wrd.state.or.us/OWRD/LAW/docs/IWRS/2011_December_Discussion_Draft.pdf

For additional information regarding the project please visit the project website at http://www.wrd.state.or.us/OWRD/LAW/Integrated_Water_Supply_Strategy.shtml. As outlined on the website, public comments in response to the Discussion Draft will be accepted until Thursday, March 15, 2012. All comments should be submitted by electronic mail to waterstrategy@wrd.state.or.us. Please contact our office at (503) 281-4100 or counsel@water-law.com if you would like assistance with preparing and submitting comments regarding any of the issues outlined in the Draft.

Upcoming events focused on this Discussion Draft include:

(1) Policy Advisory Group Meeting on March 8, 2012 in Salem, Oregon;
(2) August 2012 Water Resources Commission Meeting in Salem, Oregon to consider the IWRS for adoption, with implementation following.

Therese Ure of our office is available to answer any additional questions you may have.

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!

The Director’s Report for the Oregon Water Resources Commission January Meeting breaks down water conditions in the State:

“Current Water Conditions: The surface water supply index (SWSI) is a numerical index computed for the 14 major water basins in Oregon. The index ranges from + 4.0 indicating extremely wet conditions to – 4.0 indicting extremely dry conditions. An index of 0 would indicate normal conditions. The index is computed monthly and generally considers snowpack, rainfall, irrigation reservoir content and average monthly streamflow. On December 1, 2011 the indices in the 14 basins ranged from -1.5 in the Klamath Basin to +1.6 in the Deschutes Basin. According to the SWSI, water conditions in Oregon are generally below normal and trending downward.

On January 9, 2012 snowpack conditions range from a high of 55 percent of normal in the Grande Ronde, Powder, Burnt and Imnaha Basin Basins to a low of 19 percent of normal in the Owyhee Basin. Generally, snowpack is currently well below normal after 3.5 months into the water year.

We normally experience the bulk of our snowpack accumulation in December, January and
February. Total precipitation for the water year ranges from a high of 69 percent of normal in the
Grande Ronde, Powder, Burnt and Imnaha Basins to a low of 44 percent of normal in the Lake
County/Goose Lake Basin.

Storage carryover in the major irrigation reservoirs puts them at near normal capacity.
The northwest is still under the influence of La Niña conditions and continues to be forecasted for below normal temperatures and above normal precipitation over the winter period. However, these conditions have not been consistent with the moving three month forecast. Storms have been consistently pushed to the north, leaving the state with below normal water conditions.”

Revised Statute 2477 was passed by Congress in 1866 and provided an open-ended grant of “the right of way for the construction of highways over public lands, not reserved for public uses.” Commonly called “R.S. 2477,” the statute facilitated most of the transportation routes of the West and remained in effect for 110 years. During that time, congressional policy promoted the development of the unreserved public lands and their passage into private productive hands.

In 1976, congressional policy shifted as Congress passed the Federal Land Policy Management Act (FLPMA). FLPMA instituted a preference for retention of the lands in federal ownership and placed increased emphasis on conservation and preservation. R.S. 2477 was repealed, however Congress specified that any “valid” R.S. 2477 rights of way “existing on the date of approval of this Act” (October 21, 1976) would continue in effect. Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976). The statute had the effect of “freezing” R.S. 2477 rights as they were in 1976.

In a landmark 2005 case, Southern Utah Wilderness Alliance v. Bureau of Land Management, the United States 10th Circuit Court of Appeals determined that the BLM lacks jurisdiction to adjudicate the validity of claimed R.S. 2477 roads. The case focused on three Utah counties that graded and performed work on sixteen previously un-graded roads traversing public land.

According to Public Lands News, the State of Utah has now filed notices of intent with the Department of Interior that it will file lawsuits to claim 18,784 R.S. 2477 road rights-of-way. Utah’s massive assertion of R.S. 2477 rights-of-ways sets the stage for potentially decades of litigation between Utah and the United States. Environmental groups are sure to join the fracas in an effort to preserve the road-less nature (and hence wilderness qualification) of many federal lands.

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!

 Under Oregon law, a city may provide utility services to its inhabitants “[w]hen the power to do so is conferred by or contained in its charter or act of incorporation.” (ORS 225.020).  This includes providing water and sewer services “for profit” so long as the city’s charter provides and the public trust is not violated in doing so.

Portland is currently facing a lawsuit that will push the City’s water and sewer disposal expenditures to the forefront.  The claimants, a group of ratepayers, assert that Portland violates the city’s charter by diverting water and sewer funds toward projects and expenditures unrelated to the provision of those services.  The suit seeks an independent accounting of water and sewer disposal fund expenditures, together with an order of reimbursement.

The court will be asked to interpret key portions of Portland’s City Charter, including whether Portland’s charter restricts the City Council from using rate-payer funds to finance so-called “pet” projects.  The court will also be asked to determine whether various past expenditures were reasonably related to the provision of water and sewer services.

Follow this link to an article discussing the suit:  http://www.oregonlive.com/portland/index.ssf/2011/12/portland_faces_lawsuit_over_ut.html\

OWRD’s Reimbursement Authority Program provides water users with an opportunity to expedite final action on extension and transfer applications. Through the program, the water user enters an agreement to pay the costs necessary for OWRD to engage outside contractors to conduct OWRD’s review of the application. The benefit is clear. Rather than sitting in a pile indefinitely, the application is reviewed.

If you’re a municipally, however, you shouldn’t plan on utilizing the program for your water permit extension applications. Under ORS 537.230, OWRD is required to consult with the Oregon Department of Fish and Wildlife (“ODFW”) prior to approving a municipal extension application that will affect waterways holding sensitive, endangered or threatened fish. Unfortunately, the reimbursement authority program does not extend to the ODFW, which has been reviewing a backlog of municipal extension applications in the Willamette Valley since 2006. OWRD reports that municipal and quasi-municipal Rogue River basin extensions will follow next. Reimbursement authority will not push your application to the top of ODFW’s pile.

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!

In response to a recent ruling by the U.S. District Court for Idaho, the Bureau of Land Management (“BLM”) will be making the names and addresses of grazing permit holders and lessees available to the public via a publicly accessible website.  Personal phone numbers and financial information will not be included.  This change is derived from an attempt to balance two Federal laws including The Freedom of Information Act (FOIA) of 1966 and The Privacy Act of 1974.

In the December 29, 2010 release published by BLM in the Federal Register, the statement regarding this change was addressed in a System of Records Notice (“Notice”). A System of Records Notice provides interested parties forty (40) days to comment on the proposed change.  If you wish to provide comments to BLM, they must be submitted by February 7, 2011 to the BLM Privacy Office at 1849 C Street N.W., Room 725 LS, Washington D.C. 20240 or by email to privacy@blm.gov.  The change will take affect as outlined above unless submitted comments require a contrary determination.  It is important to note that all comments submitted, along with personal identifying information (including name, address, email, etc…), may be made available to the public at any time.

Public Land Council (“PLC”) has suggested that people affected by this notice should consider obtaining a P.O. Box to provide to their local BLM office to prevent the release of their physical address to the public.  Interested parties have up to sixty (60) days from the date the BLM Notice was published to provide an alternate address to the their local BLM office.  Upon such a change, all official mail from BLM will be forwarded to the updated address.

A copy of the Notice is available for review at http://www.gpoaccess.gov/fr/browse.html.  For additional information from BLM, you may contact Robert Roudabush, Division Chief, Rangeland Resources, Bureau of Land Management by phone at (202) 912-7222 or by email at Rob-Roudabush@blm.gov.

If you would like further information or assistance from our office in preparing comments for BLM’s review, please contact us at (503) 281-4100.

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.

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On December 16, 2010, the Nevada Supreme Court issued a per curiam opinion, Pyramid Lake Paiute Tribe of Indians v. Ricci, affirming the district court’s order denying judicial review of the State Engineer’s decision to grant Nevada Land and Resource Company, LLC’s (NLRC) change application for water rights in Washoe County’s Dodge Flat Hydrologic Basin.

NLRC originally obtained permits to appropriate Dodge Flat groundwater for temporary use in a mining and milling project in 1980. Twenty years later, NLRC applied to change the use from temporary to permanent and from mining and milling to industrial power purposes.

The Pyramid Lake Paiute Tribe of Indians (“the Tribe”) opposed the change application on the grounds that (1) Dodge Flat has no unappropriated groundwater, (2) groundwater pumping would interfere with existing rights to Truckee River surface water based on the hydrological connection between the Truckee River and Dodge Flat Basin, and (3) pumping from Dodge Flat Basin threatens to prove detrimental to the public interest by reducing Truckee River water quality and threatening the cui-ui fish and Lahontan cutthroat trout habitats.

On appeal, the Nevada Supreme Court found that there was substantial evidence to support the State Engineer’s conclusions that (1) there is 1,428 afa of unappropriated water available for permanent use in Dodge Flat Basin, (2) the change applications will not affect existing water rights, and (3) that the change application does not threaten to prove detrimental to the public interest.

Specifically, the Court found that the State Engineer properly excluded the Tribe’s use of groundwater in Dodge Flat Basin from the calculation of perennial yield because the Tribe has no express or implied rights to the water. Furthermore, the Court found that the change application does not threaten to prove detrimental to the public interest because NLRC’s pumping will be limited to the amount of the unappropriated perennial yield. Finally, the Court held that any potential threat to the public interest or injury to existing rights is a consequence of the Tribe’s unauthorized pumping without a permit or implied right.

A full copy of the opinion is available at:  http://www.nevadajudiciary.us/index.php/advancedopinions/909-pyramid-lake-paiute-tribe-v-state-engr.