In 2013, the Oregon legislature adopted Senate Bill 838, which imposed a five year moratorium on motorized mining techniques in rivers and streams designated as essential salmon habitat.[1] A group of mining companies, a mining district, and individual miners with mining claims on federal lands in Oregon who use motorized mining techniques called “suction dredge mining” sued the State of Oregon.[2]

While the litigation progressed, the Oregon legislature passed Senate Bill 3, which repealed Senate Bill 838; however, the litigation continued as a challenge to Senate Bill 3. Senate Bill 3 imposes a permanent restriction on the use of motorized mining equipment in waters classified as “essential anadromous salmonid habitat,” which is defined as “the habitat that is necessary to prevent the depletion of indigenous and anadromous salmonid species during their life history stages of spawning and rearing.”[3] The restriction in Senate Bill 3 only applies within rivers and streams and does not extend onto the banks of the waterways.[4]

Bureau of Land Management regulations issued under the Federal Land Policy and Management Act require mining operators comply with applicable state environmental laws that do not conflict with federal law.[5] The regulations also state there is no conflict between state and federal law when the state law requires a higher standard of protection for public lands than does the federal law.[6]

While “reasonable environmental regulation” may be imposed by state law on federal lands, the miners argued Senate Bill 3 is preempted by federal law because it is: (1) a state land use planning law, not an environmental regulation; (2) “prohibitory, not regulatory, in its fundamental character;” and (3) not a reasonable environmental regulation.[7] The miners asserted Senate Bill 3 is a land use planning law rather than environmental regulation because it prohibits a specific use of the land in particular zones.[8]

The District Court of Oregon’s grant of Summary Judgment in favor of the State of Oregon was appealed and heard by a panel of the Ninth Circuit Court of Appeals. The Court determined the Federal Mining and Minerals Policy Act of 1970 declared that a policy of the U.S. is to develop an “economically sound and stable domestic mining” industry, but subject to “environmental needs.”[9] The Court ruled Senate Bill 3 is an environmental regulation, not a land use planning law, and it has a specific environmental purpose: to protect sensitive fish habitat.[10] Additionally, the Court found Senate Bill 3 is not a prohibitory regulation that violates federal law because it does not completely prohibit all mining activities on federal lands.[11] Finally, the Court found Senate Bill 3 reasonably restricted mining activities in waters on federal land to protect essential salmonid habitat because it only regulated certain types of mining and in certain waters.[12]

Judge Smith dissented from the majority opinion, asserting that Senate Bill 3 is a land use regulation since it “does not identify an environmental standard to be achieved” and prohibits all motorized mining operations irrespective of the miner’s compliance with state and federal environmental standards, including the Endangered Species Act and Clean Water Act.[13]

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

[1] Bohmker v. Oregon, __ F.3d __, 5 (9th Cir. 2018).

[2] Id. at 7.

[3] Id. at 7-8 (quoting ORS 196.810(1)(g)(B)).

[4] Id. at 9, fn 2.

[5] Id. at 21-22 (citing 43 C.F.R. § 3809.3).

[6] Id.

[7] Id. at 27.

[8] Id. at 30.

[9] Id. at 17 (quoting 30 U.S.C. § 21a).

[10] Id. at 27-28.

[11] Id. at 50.

[12] Id. at 53-54.

[13] Id. at 64, 67-68.

Incoming J.D. Paralegal (Attorney upon Bar passage) Jakob Wiley attended the University of California Cooperative Extension’s regular Rice Production Workshop held at Lundberg Family Farms in Richvale, California. The seminar was attended by farmers, local businesses, and water district personnel, providing a broad overview of rice production and the challenges faced by producers.

Water in rice production isn’t just about irrigation. Water serves a critical role in temperature regulation, weed control, and field management. For example, water is used to prevent excessive cooling of the rice flowers, which inhibits pollination. Exposure of the flower to cool temperatures can “blank” the rice (prevent the grain of rice from forming) and reduce yields. Water also acts as a blanket, keeping the flowers warm during cool nights. Careful management of water also ensures the safe use of pesticides and herbicides (and avoids costly fines). Water plays a critical role in the growth, development, and success of a rice field.

More information about rice production can be found in the 2018 Rice Production Workshop Manual available at http://rice.ucanr.edu/Reports-Publications/Rice_Production_Workshop_Manual/.

Jakob will add his new knowledge about rice production to his background in cattle ranching and alfalfa production to better assist with your water needs!

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

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“agencies”)  issued a supplemental notice of proposed rulemaking to seek additional comments on the repeal of the 2015 “waters of the United States” rule under the Clean Water Act (“2015 WOTUS Rule”).

In July 2017, the agencies first issued a notice of a proposed rulemaking to repeal the 2015 WOTUS Rule. On February 6, 2018, the agencies published a final rule in the Federal Register adding an applicability date of February 6, 2020 to the 2015 WOTUS Rule, but at that time the agencies did not repeal the 2015 WOTUS Rule. The applicability date of February 6, 2020, makes it such that the pre-2015 regulatory definition of waters of the United States will be in effect until February 6, 2020 or until the 2015 WOTUS Rule is repealed. For additional background, see Schroeder Law Offices blog post, available here.

The agencies issued the supplemental notice to provide the public an opportunity to comment on additional agency considerations to support the repeal of the 2015 WOTUS Rule that were not discussed in the July 2017 notice of proposed rulemaking. The supplemental notice also aims to clarify that the agencies’ July 2017 proposal would completely and permanently repeal the 2015 WOTUS Rule in its entirety, replacing it with the pre-2015 regulatory definition.[1]

The supplemental notice also provides an additional comment period for interested parties to consider new factors and reasoning the agencies recently published as further support for the agencies’ decision to consider repealing the 2015 WOTUS Rule.[2] The additional information and comment period provided by the supplemental notice may also be designed to strengthen the July 2017 rulemaking process as any final rule will inevitably be challenged in a lawsuit.[3]

While the pre-2015 waters of the United States regulatory definition is in effect, the agencies will draft a new regulatory framework to define “waters of the United States.” The agencies will then publish a proposed rulemaking in the Federal Register to adopt a new definition.[4]

The public has 30 days to comment on the supplemental notice of proposed rulemaking. The comment period closes August 13, 2018.

[1] EPA New Release, EPA and Army Seek Additional Public Comment on ‘Waters of the U.S.’ Repeal (June 29, 2018) https://www.epa.gov/newsreleases/epa-and-army-seek-additional-public-comment-waters-us-repeal.

[2] Environmental Protection Agency, Definition of Waters of the United States-Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018) https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15104.

[3] Juan Carlos Rodriguez, EPA, Corps Expand Legal Case Against Obama Water Rule, Law360 (June 29, 2018) available at https://www.law360.com/articles/1059064/epa-corps-expand-legal-case-against-obama-water-rule.

[4] EPA, Waters of the United States (WOTUS) Rulemaking, https://www.epa.gov/wotus-rule/step-two-revise.

Authored by: Valley Urricelqui

Reno Office summer intern, Valley Urricelqui is a Beef Ambassador. A “Beef Ambassador” promotes and helps shine a brighter light on the Beef Industry. A Beef Ambassador is a knowledgeable public figure of the Beef Industry that informs the public of the health benefits of beef as well as helps to gain support throughout the community.

In California, the Beef Ambassador program invites those across the state of California to compete and showcase their knowledge as an advocate for the beef industry for the coming year. Valley earned her place at the state competition as the 2018-2019 Shasta County Beef Ambassador. Contestants competed in four main events, including a mock interview, mock consumer demonstration, issue response and social media presence. These categories aim to evaluate contestants’ overall knowledge of the beef industry, agricultural issues, marketing, education and animal welfare.

In April 2018, Valley received the title of California State Beef Ambassador representing the North State. In this position she represents the State of California as a voice for the Beef Industry and is helping to spread positivity about the agriculture industry as a whole in efforts to gain more support from the public. Her goal is to present in elementary classrooms to educate our youth about where their food comes from, the hard work and processes necessary for raising livestock and producing food supplies, and the nutritional health benefits our food provides. Making the “farm-to-fork” connection is an important mission for Valley. Being named California Beef Ambassador has been a goal for Valley from a young age, and she aims to educate people within and outside of the agricultural industry.

As a California Beef Ambassador, Valley hopes to serve as a pillar for educating consumers. As a fifth-generation cattle rancher in Northeastern California, her roots run deep. “I want people to understand that you don’t have to have an agricultural background to support agriculture,” she said. “We are a dying breed and it’s more important now than ever for people to understand where their food comes from and that it is safe, wholesome and nutritious.”

As California Beef Ambassador, Valley will travel across the state to represent the beef industry in order to educate people on the nutritional, economic, and environmental benefits of beef. Valley will also take her knowledge and enthusiasm into the classroom and educate youth on the importance of the livestock industry. Her goal is to shine a brighter light on the beef industry.

Already this year Valley has attended the Mid-Year Cattleman’s meeting held in Redding CA, as well as some local county fairs spreading the good word about the beef industry and how to better promote the industry. At the Mid-Year meeting she presented to Cattlewomen on Social Media and how it can be used to promote ranching and farming operations as well as the agriculture industry as a whole. She shared examples as to how we can positively promote agriculture by using hashtags in posts. Valley taught ways for accessing online information more easily.

Today’s youth access social media more than any other age group, with more than 98% using social media on a daily basis. About 30% spend more than six hours a week on social media websites and apps. With these stats being so high it tells the agriculturalists that using social media to spread positive agriculture views is a must!

During her time as Beef Ambassador, Valley wants to attend as many events across the state as possible, and continue to present on matters related to the beef community and the agriculture industry. After this year, Valley plans to run for the National Beef Ambassador Team. If lucky enough to join this team, she will continue to promote the agriculture industry in a positive light across the Nation.

Authored by: Valley Urricelqui

Did you know that an animal’s performance is based, in part, on their water intake?

Water is the most essential component for livestock’s proper growth, development and performance.

How much water do you think cattle drink each day? Well there are a lot of different factors that lead up to that. It all depends on what type of cattle we are talking about, the weather (What is the temperature outside? Is it summertime or wintertime?) as well as the stage in life the animal is currently in. But it is always important to  remember that, generally speaking, when it comes to watering cattle, the heavier the cattle, the higher the water intake.

Cattle should consume 1-2 gallons of water per 100 pounds of body weight. So if you have a 1500 pound cow, she should be drinking about 15-30 gallons of water on an average day.

Below is a list of the amount of water cattle drink each day:

For more detailed information visit: https://www.grass-fed-solutions.com/cattle-water.html

*Fun Fact: Did you know that cattle have 4 stomachs? The Rumen is the largest and can hold up to 50 gallons of feed!

*Fun Fact: The average cow can drink as much as 30-50 gallons of water on a hot summer day! For pairs to get through the summer time heat, they may need to drink 2x the amount of water.

*Fun Fact: Did you know what I mean by “a pair”? A pair is defined as a momma cow and her baby calf.

As the temperatures begin to increases over 40 degrees – cattle generally require an additional gallon of water for every 10 degree increase in temperature.

Water is crucial for the life of livestock, just as all mammals. In order for livestock owners to maintain healthy and happy livestock they must assure that the animals are properly taken care of. A large part of that starts with maintaining our livestock’s water supply.

A lot has changed since 1909, when Oregon enacted its Water Code and the water use permit system began. Obtaining a water use permit can be a lengthy and detailed process. If you’re not careful you can limit the flexibility of your water permit through self-imposed conditions without realizing it.

For example, Schroeder Law Offices recently represented a business that stated on its groundwater permit application that it planned to use drip irrigation. The business did not plan to exclusively use drip, but drip was one form of irrigation used for part of its operation. As a result, the Oregon Water Resources Department (OWRD) proposed to impose a condition in the Proposed Final Order (PFO) that the business would be limited exclusively to drip irrigation. This would have significantly reduced the business’s flexibility and the marketability of its property in the future. However, our office was able to successfully remove the proposed condition from the water use permit that was issued.

This example provides an important reminder to very carefully prepare water use permit applications, and closely review OWRD’s initial reviews, proposed orders, and final orders/permits. Otherwise, water users may be subject to unnecessarily restricting permit conditions. Water use professionals, such as attorneys or consultants, can provide assistance to prepare permit applications and review OWRD documentation regarding the applications. Water use application forms are available on OWRD’s website, https://www.oregon.gov/OWRD/pages/index.aspx. For more information about water right processing see: http://www.water-law.com/water-rights-articles/get-an-oregon-water-right/.

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

This article was drafted with the assistance of Law Clerk Nathan Klinger, a student at Willamette Law School.

On March 13, 2018, Oregon Governor Kate Brown declared a drought in Klamath County under Oregon Executive Order No. 18-02, with an expiration date of 12/31/2018. The drought was declared largely due to the low snow pack in the region. According to the Capital Press, Klamath County was, at that time, experiencing 45 percent of its usual snowpack for the year. Since March 13, the Governor has made drought declarations in five additional counties: Grant, Harney, Lake, Douglas, and Baker. To check for current drought declarations, click here.

The Oregon Water Resources Department (OWRD) is currently issuing emergency drought permits for the Klamath Basin.  According to OWRD, temporary emergency use groundwater permits may be issued in designated drought areas. These permits allow surface water users under drought declaration access to temporarily use groundwater wells to gain access to water. In addition, approved drought permits will require metering, record keeping, and reporting of groundwater use over the season to the Department. To access the emergency drought application’s, click here.

Due to the low snow pack in the 2017-18 winter, and the limited rain fall Oregon has experienced, much of the west is expected to experience higher than usual fire danger. From October 2017 through April 2018 rainfall was approximately 70 percent of what is typical in southwest Idaho, and approximately 50 to 70 percent of what is typical in southeast Oregon. The Capital Press reported that The National Interagency Fire Center’s Predictive Services Unit (NIFC) reported on May 1 that it expects warmer and drier than average conditions across the west. According to the Capital Press the NIFC report also went on to say that southeastern Oregon’s warm, dry April stood out in contrast to cooler, wetter conditions in much of the northwest. The NIFC reported on June 1 that April’s cooler than average conditions across the northwestern states were replaced by above average temperatures in May. The June report went on to say that the above average temperatures are likely caused by the El Niño weather pattern that is expected to hit by mid-fall. The National Ocean Service classifies an El Niño by an unusually warm waters in the Pacific Ocean. Typically, it will occur during winter months like December. According to the National Ocean Service, it typically brings wetter than average conditions off the US Gulf Coast.

US News reported that as of April, all basins in Oregon were well behind on snow pack, most measuring 40 – 70 percent of normal levels. The US Drought Monitor map shows (click here to see the map) abnormally dry to moderate drought conditions, extending through the month of August.

Oregon has already had 259 fires across the state in 2018, which have burned 2400 acres, as of June 28 according to the Oregon Dept. of Forestry (ODF), Fire Blog. According to the NIFC, there are 55 fires currently burning throughout 10 states, and as of June 28, seven of those are new, with 29 of the fires currently burning, in Alaska alone. Of those 55 fires, nearly 500,000 acres have already burned and only three of them are considered contained.

As a result of the unusually low snow pack, unseasonably dry heat, and over all conditions, the 2018 summer is expected to continue to be busy for wildland fire fighters and irrigators alike. Stay tuned to Schroeder Law Offices’ Blog for more news.

Attorney Sarah Liljefelt presented at Halfmoon’s Water Laws and Regulations seminar on June 7^th on the topic of Oregon Groundwater, teaching a group of engineers about groundwater ownership, regulation, and acquisition of groundwater use rights in Oregon. This week, on June 28^th, Sarah will present at the Oregon State Bar Environmental & Natural Resources Section’s “brownbag” continuing legal education seminar on the topic of groundwater regulation in the Klamath Basin in Oregon. Her co-presenter is Lisa Brown of WaterWatch, who will speak about groundwater in Harney County. If you are interested in attending, please visit the Section’s Events page or Schroeder Law Offices’ Coming Events page for more information. Sarah’s presentation materials are available on the Section’s Events page.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news!

While the negotiation of U.S. international treaties has been in the news lately, the renegotiation of an international treaty of particular importance to the Pacific Northwest has not received much coverage. However, May 29-30, 2018 marked the first round of negotiations between the U.S. and Canada in the effort to renegotiate the Columbia River Treaty.

Notably, May 30, 2018 also marked the 70th anniversary of the historic Vanport flood that wiped out a town of approximately 18,000 residents situated between Portland, Oregon and Vancouver, Washington.[1] On that day in 1948, the Columbia River crested at Portland to fifteen feet above its flood plain and breached the embankment protecting Vanport, which just years earlier was Oregon’s second largest town.[2] While the town of Vanport no longer exists, one of the many legacies of the devastating flood is the Columbia River Treaty and its flood control provisions.

 A Columbia River Treaty between the U.S. and Canada was seriously considered beginning in 1944, but it was not until 1960 that the U.S. and Canada began negotiating the Treaty, which was signed in 1961 and took effect in 1964. The Treaty has no specific end date, but 2024 is the earliest either party may terminate the Treaty and to do so, the party must provide a minimum of 10 years written notice of termination.

The impetus for renegotiating now is that the assured annual flood control procedures in the Treaty will end after 2024 whether or not the Treaty is terminated.[3] After 2024, on-call flood control measures will apply requiring the U.S. to ask Canada to store water after the U.S. has used all available flood control space in U.S. reservoirs.[4] These on-call procedures have been referred to by Oregon and Washington’s Congressional Representatives Peter DeFazio and Cathy McMorris Rodgers as “ad hoc, unplanned” and with the likely potential to cause uncertainty and international disputes.[5]

The Canadian storage created by the Columbia River Treaty includes 15.5 million acre-feet of water in the upper reaches of the Columbia, including the storage behind Libby Dam, which sits near the U.S. and Canada border in Montana and created Lake Koocanusa, a reservoir that backs up 42 miles into British Columbia. While the U.S. benefits from the flood control measures, both countries realize a benefit from the power generated. However, the Treaty was not written specifically to provide water for irrigation or fish subsistence.[6]

Both Canada and the U.S. have spent recent years studying the effects of the Treaty and the various issues that will serve as levers in the negotiation to balance the current and future needs of both countries. These studies ultimately led both countries to consult with stakeholders in their regions and to issue regional recommendations that will serve as the basis for renegotiating the Treaty.[7]

While neither county has given notice of termination, the entities began renegotiating the Treaty on May 29-30, 2018. The next scheduled negotiation is August 15-16, 2018. [8] The renegotiation of the Columbia River Treaty will be important for Pacific Northwest irrigators and water users as the eventual revisions to the Treaty will likely: impact future reservoir storage, alter the timing of reservoir releases, take into account ecological and fish impacts of the Columbia River Power System, and effect utility rates for all electricity customers.

[1] Michael N. McGregor, The Vanport Flood, The Oregon History Project: Oregon Historical Society (Mar. 17, 2018) available at https://oregonhistoryproject.org/articles/essays/the-vanport-flood/#.WxhNxkgvyUm.

[2] Carl Abbott, Vanport, The Oregon Encyclopedia: Oregon Historical Society (Mar. 17, 2018) available at https://oregonencyclopedia.org/articles/vanport/#.WxhNwUgvyUn.

[3] Northwest Power & Conservation Council, Columbia River Treaty, available at https://www.nwcouncil.org/reports/columbia-river-history/columbiarivertreaty.

[4] Id.

[5] Cathy McMorris Rodgers & Peter DeFazio, Modernizing our Columbia River Treaty, OregonLive (Mar. 14, 2018) available at http://www.oregonlive.com/opinion/index.ssf/2018/03/peter_defazio_modernizing_our.html#article.

[6] Columbia River Treaty.

[7] Id.

[8] U.S. Dept. of State, Press Release: On the Opening of Negotiations to Modernize the Columbia River Treaty Regime (May 30, 2018) available at https://www.state.gov/r/pa/prs/ps/2018/05/282867.htm.

Schroeder Law Offices is happy to announce that intern, Valley Urricelqui is joining us this summer in the Reno Office. Valley was born and raised in the Northeastern part of California where her family runs a hay and cattle ranch.

Valley is a strong advocate in the Cattle Industry as she is the Public Relations Officer for the Chico State Young Cattleman’s Association. In April this year, Valley received the title of California State Beef Ambassador representing the North State. In this position she represents the State of California as a voice for the Beef Industry and is helping to spread the good word about the agriculture industry as a whole in efforts to gain more support from the public. Her goal is to present in elementary classrooms to educate our youth about where their food comes from, the hard work and processes necessary for raising livestock and food supplies, and the nutritional health benefits of our food.  Making the “farm-to-fork” connection is an important mission for Valley.

Valley is currently attending Chico State University where she plans to graduate with a degree in Agriculture Science and Education come Spring 2019. After graduation from Chico State, Valley plans to attend law school in hopes of becoming a water or land rights attorney. Being born and raised in the agriculture industry she has grown a strong passion for protecting individual property interests and natural resources. As Valley states, “I have watched my family, as well as other good ranching and farming families, deal with land and water right issues for years.”

Valley’s passion is providing support in the protection of farmers and ranchers, to ensure generations to come continue to add to the food security of our nation.   Regardless of the path Valley will choose, she wants to continue being an advocate for the industry and wants to increase awareness of agriculture especially with our younger generations.

Every year there are significant cases that affect water resources law, as well as administrative and legislative actions that impact the use of the water resource. We endeavor to stay apprised of such changes and the impacts such changes will have on our clients and the industries in which our clients work. As a part of such work, Schroeder Law Offices’ Portland attorneys wrote the 2017 Oregon Year in Review for the Water Resources chapter of the American Bar Association’s Environment, Energy, and Resources Law: The Year in Review 2017 publication.

The American Bar Association works with local attorneys in every state to determine the notable changes or occurrences affecting water resources in their state, from a legal perspective, and then publishes those updates in their annual Energy, Environment, and Resources Law Year in Review publication. The Year in Review 2017, Water Resources chapter is available here: https://www.americanbar.org/content/dam/aba/publications/yir/2017/YIR17_24_wr.authcheckdam.pdf.

The entire publication is available here: https://www.americanbar.org/content/dam/aba/publications/yir/2017/YIR17_final.authcheckdam.pdf

Water use conditions in the Klamath Basin continue to worsen in 2018. On March 8, 2018, a water “call” was made in the Klamath Basin, and the Oregon Water Resources Department (“OWRD”) began the validation process for shutting off junior water users. Within the week, on March 13^th, Governor Kate Brown declared a drought in Klamath County, Oregon, the first drought declaration since 2015, coming much sooner than hoped or predicted.

In April, OWRD began regulating off water users in the Klamath Basin. On April 13, the Oregon Water Resources Commission approved temporary emergency rules granting a preference to water rights for human consumption and stock watering in Klamath County. The rules allow certain water users with water rights for human consumption and stock watering to continue using surface water for such uses despite OWRD’s regulation off of water use rights. Exempt uses of groundwater, including domestic and stock uses, may also continue despite OWRD’s regulation. The Commission passed similar temporary rules granting the same preferences during the last drought period.

Also in April, Klamath Project water users found themselves unable to begin irrigating due to a federal court injunction. The Hoopa Valley and Yurok Tribes in northern California previously brought suit against the Bureau of Reclamation and National Marine Fisheries Service in federal court, alleging mismanagement of the Klamath River below the four major dams lead to an outbreak of C. shasta, a parasite that infects juvenile Coho salmon. The court entered an injunction requiring 50,000 acre feet of water stored in Upper Klamath Lake to flush and dilute the parasite until most of the salmon have migrated to the ocean, usually occurring after the beginning of June. Irrigators and irrigation districts petitioned the court to lift the injunction, but the court declined to do so in 2018. For more information, see May 1 article from the Capital Press, Judge upholds Klamath River Injunction.

In May, the Klamath Irrigation District brought suit against OWRD, seeking to compel the agency to take exclusive charge of Upper Klamath Lake to distribute water according to the district’s water use rights determined by the agency in the Klamath Basin Adjudication. The district alleges that it disagrees with the Bureau of Reclamation and PacifiCorps as to the proper distribution of water, and those entities are releasing without valid water use rights, causing injury to the district and its patrons. 

Also in May, the Klamath Tribes filed suit in federal court in northern California against the Bureau of Reclamation, US Fish & Wildlife Service, and National Marine Fisheries Service, alleging violations of the Endangered Species Act and National Environmental Protection Act by failing to maintain appropriate elevations in Upper Klamath Lake. The Tribes seek declaration of the alleged violations, an injunction against further jeopardy and habitat modification, and for the agencies to reinitiate consultation resulting in a new biological opinion.

Finally, on April 27, 2018, the Klamath County Circuit Court issued a Case Management Order in the Klamath Adjudication, outlining a schedule for hearing the first substantive exceptions filed with the court since the judicial phase of the adjudication began in 2013. First the court will decide exceptions made against federally reserved water claims, excluding Tribal claims. Next, the court will decide exceptions against Walton and Klamath Termination Act claims. Third, the court will decide exceptions to Tribal claims. Numerous exceptions have been filed with the court, alleging OWRD awarded too much water to these claims, ignoring the pertinent legal standards for deciding these claims, to the detriment of other Klamath Basin water users. A decision on the first group of exceptions is not anticipated until 2019.

The Upper Klamath Basin Comprehensive Agreement was terminated on December 28, 2017. The agreement called for retirement of irrigation rights to increase stream flows into Upper Klamath Lake by 30,000 acre feet per year. This “retirement” (or cancellation) of water use rights, which was negotiated largely in the absence of upper basin irrigators, was viewed unfavorably by many of the affected irrigators, and was ultimately not funded by Congress. Discussions about alternative agreements continue to this date.

Overall, the return of drought conditions, coupled with fish disease and five years of merely procedural rulings in the Klamath Basin Adjudication, have left water users in the Klamath Basin in serious trouble.

Stay tuned to Schroeder Law Offices‘ Water Law Blog for more water news!

On April 21, 2018, Schroeder Law Offices showed its support for a local Student Stewards Summer Camp by participating in the 2nd Annual Healthy Parks Healthy People 5K Fun Run/Walk.

The proceeds from the Fun Run/Walk are being used to allow students to attend the 2018 Student Stewards Summer Camp where kids will learn about, and participate in, programs relating to the environment such as “Fish out of Water,” “Mighty Pollinators,” and “Rolling Stones.”

Schroeder Law Offices is an avid supporter of the wise use of our natural resources and activities that connect human and environmental health. As we enter Spring and the weather is warming up it is the perfect excuse to get outside and get active. Stay tuned for Schroeder Law Office’s next race!

On Saturday, April 21, 2018, members of Schroeder Law Offices’ Portland office attended the Oregon Women for Agriculture’s 31^st annual auction and dinner, at the Linn County Fair and Expo Center. This year’s theme was “Good Things are Growing.” Schroeder Law partnered with Country Side Nursery and Fairdale Nursery to donate a large Japanese maple and pot to the organization’s auction. Benefits and proceeds from the auction go to Oregon State University’s Ag Honors Scholarships, Crop identification signs, and the Oregon Agriculture in the Classroom Foundation.

Written by Alyssa Holland, Lisa Mae Gage, and Lisa Kane

Water Week 2018 is currently underway as water organizations across the country gather in Washington, D.C. to advocate the importance of water protection and conservation with hopes of ultimately elevating water to a national priority. Organizations in the water sector are using Water Week to ramp up their efforts to educate policymakers about the need for funding to benefit water infrastructure. Many organizations are collaborating for Water Week, including National Association of Clean Water Agencies (“NACWA”), Water Environment Federation (“WEF”), American Water Works Association (“AWWA”), and the National Water Resources Association (“NWRA”), for example.

A few main events will take place during Water Week:

• On April 17-18, 2018 the National Policy Fly-In:
  An event to provide the public with the opportunity to voice concerns and challenges to their policy makers.
• April 17-19, 2018: Water and Wastewater Equipment Manufacturers Association (“WWEMA”) 45th Washington Forum:
  “Effectively Communicating Change at the National, State, and Local Level,” a discussion regarding changes happening in Washington, D.C. and to the nationwide water infrastructure, environmental and public health protection, and legislative and regulatory changes that will impact the water sector.
• On April 19, 2018 the WateReuse Association Water Week 2018 Congressional Briefing:
  Four (4) different communities across the country will be highlighted for their use of water recycling and the local economic benefits that encourage other communities to do the same.

While each organization has a slightly different mission, each has a goal of advancing education regarding water issues and returning to their communities with the priority of educating the general public on the same issues. One of the main events, the Congressional Briefing, will directly discuss tools used in arid states (such as one of our main states of practice, Nevada) to address water scarcity and a way for communities to better manage their local water resources to help spur economic growth and plan for the future.

Schroeder Law Offices Nevada attorney Therese Ure also attends and hosts local conferences in Nevada to continue education regarding how to support the community’s resource challenges and even more particularly, how to support Northern Nevada’s agriculture industry. Click here to see our coming events for local education on the topic. Although attending these events may not be a possibility for everyone, we should all use Water Week as a time to reflect on how valuable water is to our everyday lives and to look for ways to conserve and protect water within our own communities.

The Ninth Circuit Court of Appeals affirmed a U.S. District Court opinion requiring the Army Corps of Engineers to increase spill at dams on the Federal Columbia River Power System (“FCRPS”) to the maximum spill levels that still meet total dissolved gas criteria allowed under state law. The increased spills required by the District Court’s order and affirmed by the Court of Appeals began on April 3, 2018. The Court of Appeals’ decision is available here.

The Court of Appeals’ decision in National Wildlife Federation v. National Marine Fisheries Service is the most recent decision in this case, which has been ongoing since 2000. The decision stems from a challenge to the National Marine Fisheries Service’s (“NMFS”) 2014 Biological Opinion (“BiOp”) that concluded operation of the FCRPS dams would jeopardize salmon and steelhead species (“listed species”) listed under the Endangered Species Act (“ESA”). Because NMFS’s BiOP concluded operation of the FCRPS dams would jeopardize the listed species, pursuant to NFMS responsibilities under the ESA, NFMS proposed an alternative action that included, among other measures, some spill over the FCRPS dams as a means to avoid jeopardizing the listed species.

However, in 2016 the District Court found NMFS’ violated the Endangered Species Act when NMFS concluded the alternative in the 2014 BiOp did not jeopardize the listed species. The District Court gave NMFS until March 1, 2018 to issue a new BiOp. (This deadline was later extended to December 31, 2018.) However, in January 2017, the plaintiffs moved for injunctive relief, requesting the District Court order additional spill at the maximum level from April through June at dams along the FCRPS. In April 2017, the District Court granted plaintiffs’ injunctions and ordered increased spills to take effect April 3, 2018. The District Court’s decision was appealed to the Ninth Circuit Court of Appeals.

The Court of Appeals issued its decision upholding the District Court’s order requiring increased spills on April 2, 2018, the day before the increased spills were to begin. The Court of Appeals found the District Court did not err under the ESA in finding the plaintiffs had shown the listed species would suffer irreparable harm sufficient to order the increased spill. Nor did the Court of Appeals find it error that the District Court analyzed the harm that would be caused to the listed species in operation of the FCRPS dams as a whole, rather than focusing only on the spill related components of the BiOp alternative NMFS selected.

As irrigation season begins in the areas of the Columbia and Snake Rivers that rely on the water flowing through the FCRPS, and as the increased spills begin to take effect, some congressional leaders in the affected states are attempting a congressional solution to negate the effects of the court decisions. House Bill 3144, introduced by Representative Cathy McMorris Rodgers (R-WA) in June 2017, reported out of the House Committee on Natural Resources on April 11, 2018. It remains to be seen if and when H.R. 3144 may be scheduled to be heard on the floor of the House of Representatives; however, the Court of Appeals’ decision has, and any outcomes from H.R. 3144 will have, immediate impacts on water rates and utility rates for irrigators and residents throughout the Pacific Northwest. H.R. 3144 is available here.

(Photo: Lake Koocanusa, Libby, MT)

On February 1, 2018, the Ninth Circuit Court of Appeals upheld the “groundwater conduit theory,” whereby a discharge of pollutants into groundwater that is fairly traceable to a navigable surface water is the functional equivalent of a discharge directly into the navigable water body for the purpose of regulation under the Clean Water Act. This argument has been proffered many times in the past, but prior to this case this theory had, at best, narrow and limited success. The full Ninth Circuit case is available here.

The case involved the County of Maui, Hawaii and its wastewater treatment plant. The plant uses four wells as its primary means of disposing effluent into groundwater and the Pacific Ocean. The County injects three to five million gallons of treated wastewater per day into its wells, and, according to the County’s expert, when the County injects 2.8 million gallons of effluent per day, the amount of effluent that reaches the ocean is 3,456 gallons per meter of coastline per day. The Court stated this is “roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline.”

Discharges of pollutants may be authorized by permit under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). Jurisdiction under the Clean Water Act requires three things: 1) addition of a pollutant 2) to a navigable water 3) from a point source. This case focuses on the third requirement. Clean Water Act cases hold that a point source is a discernible, confined, and discrete conveyance, which in a lot of cases really means a pipe, ditch, or canal.

Wells do not directly connect to navigable water (in this case, the Pacific Ocean). Instead, the water injected into wells must travel through groundwater to reach the ocean. In 2013, the EPA, Army Corps of Engineers, Hawaii Department of Health, and University of Hawaii conducted what is called a “tracer dye study.” Essentially, they put dye into the wells and then monitored the ocean for the dye. At its conclusion, the study found a hydraulic connection between two of the wells and the ocean.

The Ninth Circuit concluded that point source discharges that travel indirectly through groundwater to a navigable water, is a violation of the Clean Water Act if the discharger does not have a permit. The Court reasoned that “this case is about preventing the County from doing indirectly what it cannot do directly.” Since the County could not build a waste pipe that emptied directly into the ocean without a permit, it could do so indirectly through its wells to avoid the requirements of the Clean Water Act. 

There are currently cases before the Fourth and Sixth Circuits which also implicate the groundwater conduit theory. If the holding by the Ninth Circuit is adopted by other Circuits, it will represent a change for the NPDES permitting program and regulation under the Clean Water Act. On the other hand, if a split develops in the Circuits, it may lead to litigation in the United States Supreme Court.

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

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

On Thursday March 15, 2018, Schroeder Law Offices’ Portland office hosted first year law students for an annual “1L” (first year law student) reception, to learn more about our office and our water law practice. The students met with each attorney, Sarah Liljefelt, Laura Schroeder, and Lindsay Thane to learn about each of their practices at SLO. Next, Schroeder Law held a social gathering that allowed the law students to meet with the entire office.

The 1L reception program allows first year law students to tour multiple law firms, learn more about what each firm does, and begin to think about their career goals after law school. It also provides a “foot in the door” with potential employers for summer law clerk positions and eventual associate positions.

If you or someone you know is looking for a summer law clerk position and is currently a 2L or 3L student, Schroeder Law Offices’ Portland office is currently hiring. Click here to learn more.

Apparently there are several theories of how and why we started changing our clocks for daylight saving. Many people think it originated to allow children to help their families with farm work before having to go to school for the day. Another popular theory is that it was suggested by Benjamin Franklin in 1784 when he wrote a letter to the Journal of Paris advocating that if people woke up with the sun it would result in saving energy and resources in the need for candles.

According to National Geographic and David Prerau, author of Seize the Daylight: The Curious and Contentious Story of Daylight Saving Time, the idea of the modern concept of daylight saving was actually derived from George Hudson, an entomologist from New Zealand. In 1895 Mr. Hudson proposed a 2 hour time shift with the intention of having more sunlight after his day job to go bug hunting in the summer months.

The British Broadcasting Corporation attributes the modern day concept of daylight saving to British builder William Willett. Mr. Willett was horseback riding on a summer morning in 1905 and noticed how many curtains were drawn against the sunlight. His solution was to move the clocks forward before summer began. In 1907, Mr. Willett published a pamphlet called “Waste of Daylight” suggesting clocks be turned forward by 4 weekly twenty minute increments in April and reversing the same way in September. British politicians in favor of Willett’s suggestion proposed a Daylight Saving Bill, however it was defeated in 1909.

Author Prerau explains that the idea actually caught on during World War I when the German government started looking for ways to conserve energy. Because coal power was so predominant at that time, daylight saving really did result in saving energy. Germany adopted the system and soon after the United States, as well as nearly every other country fighting in the war began using the time change.

Although Benjamin Franklin may have identified the need for and the benefits of adjusting clocks, it appears we can thank George Hudson and William Willett for our modern day concept of daylight saving.

World Water Day is an event hosted annually by the United Nations on March 22nd. Each year the event has a theme, and 2018’s theme is “Nature for Water.” Events surrounding World Water Day will focus on nature and how we can use our natural resources to overcome the water challenges of the 21st century. There are water-related crises occurring around the world caused by both environmental damage and climate change. World Water Day 2018 will explore how nature-based solutions have the potential to solve many of the challenges we currently face as a global society. Click here for a list of events occurring for World Water Day across the globe.

The headline facts for World Water Day this year focus not only on water demand, but water availability and water quality. Here are a few of their headline facts on water demand, availability, and quality:

• Demand: 2.1 billion people lack access to safely managed drinking water services
• Availability: Today, around 1.9 billion people live in potentially severely water-scarce areas. By 2050 this could increase to around 3 billion people.
• Quality: Globally, over 80% of the wastewater generated by society flows back into the environment without being treated or reused.

In the United States, most regions have water districts and agencies that oversee water use as well as its reuse, helping to replenish local resources while monitoring for drought or scarcity issues. While this may be true for our country, United Nation’s Water (“UN Water”) works to bring awareness to those places in which regulations are not as well-monitored or addressed, and also brings awareness to improvements that can be made in developed regions. While World Water Day 2018 will bring focus to these issues, more research is required for solutions that impact all corners of the globe. On March 22nd, expect the World Water Development Report to be released highlighting the performance, impact, and scalability relevant to the nature-based solutions thus far.

The UN Water online database contains resources regarding sustainable development goals for clean water and sanitation for further information.