With the recent discoveries of lead in Portland Public Schools drinking water and the September 15th discovery at the University of Oregon, it becomes a reminder for us all to ensure that our groundwater supply is providing healthy and safe drinking water.
According to the Oregon Health Authority, 90 percent of the population of the state draws all or part of their water supply from groundwater, which amounts to about one billion gallons of groundwater every day. Approximately 23 percent of Oregonians use domestic or private wells as their main source of water. For these well owners it is especially important to watch out for common types of contamination that might affect their water supply. These types of contamination include:
Improper storage or disposal of hazardous substances
Improper use of fertilizers, animal manures, herbicides, insecticides, and pesticides
Improperly abandoned wells (these include water wells, groundwater monitoring wells, and wells used in cleaning contaminated groundwater)
Poorly sited or constructed water wells
The Portland Water Bureau is currently working to finish a study looking at the issues of lead in Portland’s drinking water, but major changes won’t be possible until 2022. Private well owners can begin taking steps to protect their groundwater today by being more mindful of how they care for their wells and dispose of hazardous materials.
More information on how to keep your well clean and safe can be found by visiting the National Groundwater Association website.
State Bar of Nevada Environmental & Natural Resources Section’s Successful Meet & Greet Mixer
On, Thursday, September 1, 2016, the State Bar of Nevada’s Environmental and Natural Resource Section hosted a successful Meet & Greet mixer event for the section members with invited special guests. The special guests consisted of agency leaders from both state and federal environmental and natural resource agencies. The special guests in attendance included:
Name
Organization – Title
John Ruhs
BLM – Nevada State Director
Leo Drozdoff
DCNR – Director
Paul Thomsen
PUCN – Chairman
Jason King
NDWR – State Engineer
Tony Wasley
NDOW – Director
Mike Senn
U.S. FWS – Sacramento
Greg Lovato
NDEP – Deputy Administrator
The casual event included a cocktail hour followed by question and answer period with fun questions designed with the intent to learn about our agency leaders. This event provided a great opportunity for the section members to get to know the agency leaders of the decision making bodies of their profession. The mixer was organized and hosted by the Section Co-Chairs Linda Bullen and Therese Ure.
Next Generation Farmers Need Our Help
New studies have shown that a large number of older farmers are concerned with their ability to find a successor who is able to afford to buy their land, thus putting their plans for retirement at risk. Currently, the average age of the American farmer is 58 years old. Only less than 6% of American farmers are 35 years old or younger. With the vast majority of farmers nearing the average American retirement age, it is not surprising that over 60% of farmland is ready to be passed onto the next generation of farmers.
The problem is that the younger generation of farmers is losing the battle of being able to afford the land. According to a recent study by American Farmland Trust (”AFT”), land values are set too high for prospective landowners. This puts the land at risk while the banks, equity firms, and larger corporate farms take advantage of these opportunities to snatch up the land that the younger farmers cannot afford. A recent report by the U.S. Department of Agriculture (“USDA”) has shown that 2 of the biggest hurdles faced by the next generation of farmers are accessing credit for, and finding affordable farmland. Being bought out by larger corporations, or even just the threat of the possibility, along with stress of qualifying for a loan and finding affordable land, has led to a large number of younger farmers leaving the farming industry.
How Can You Help?
So, how do we help? The USDA and the AFT are working on programs to assist beginning farmers and ranchers enter the field and help pay farmers for the development rights to their land. But there are ways we all can help. Some examples include: buying direct, purchasing produce from farmers’ markets, or joining community supported agriculture programs. For more information, please see http://civileats.com/2016/08/05/digested-farm-together-now/
Participate in Targeted Grazing Discussions
The Bureau of Land Management has scheduled a workshop to explore the ideas of strategic targeted grazing. Targeted grazing is a natural approach using controlled livestock to accomplish vegetation management. More specific examples of vegetation management include: weed control, reducing the fuels of wildland fires, aiding in restoration projects as well as landscape enhancement. One of the primary tasks of the BLM for targeted grazing is to reduce the fine fuels that contribute to the severity of wildland fires. Through this workshop, the BLM hopes to involve all stakeholders through both collaboration and participation. In order to participate in this workshop, you must register.
World Water Week 2016 is currently underway in Stockholm, Sweden, an annual event hosted by the Stockholm International Water Institute (“SIWI”). World Water Week is the annual focal point for global water issues, consisting of more than 140 events covering a range of subjects. The main theme of the 2016 event is “Water for Sustainable Growth,” a follow-up to the previous year’s topics regarding Sustainable Development Goals (“SDGs”) as adopted by the United Nations General Assembly. The SDGs, as established by the United Nations at World Water Day in March 2016, focus on water and jobs as one of the keys to future water issues: “making a contribution to better the lives of millions of people by maintaining and creating meaningful jobs related to water and wastewater development, service provision, protection and management.”
Experts attending the event address the value of water and a shared sustainability on a global scale. Water and climate experts alike call for a Green Water Initiative, using the Water Revolution in Africa as an example. Large parts of the world are struggling to adapt to a drier reality, but challenges are especially dire in Africa’s drylands. Developmental options such as rainwater harvesting and other “greenwater” management methods are being suggested to combat the scarcity of water and help to build water resilience for food security and human well-being.
As organizations such as SIWI gather to address and make suggestions regarding water resilience, local concerns echo global concerns. Water shortages in the State of Nevada raise concern among residents and domestic well owners; more than 20 percent of water basins are over-appropriated – there is more water appropriated on paper than sources to supply it. Nevada’s Legislative Subcommittee to Study Water, whom held their most recent meeting on August 26, 2016 (details found here), has issued water-conscious statements recommending that local land-use decisions be tied to sustainable water supplies and that water management recognize the connection between surface and groundwater sources.
SIWI’s World Water Week is one of many global events organized with the goal of generating knowledge and power regarding water issues, hosting a number of decision-makers and water professionals in discussions about climate change, energy, sanitation, food, conflict resolution, water management and more. A few of World Water Week’s highlighted topics (i.e. rainwater harvesting) can be found at http://www.worldwaterweek.org/programme/#since-1991, with resources available in the program archive.
Schroeder Law Offices Welcomes Lindsay Thane to the Team!
Lindsay Thane
Schroeder Law Offices is happy to announce the newest addition the team, Lindsay Thane! Lindsay Thane has accepted the position as JD Paralegal in the Portland, OR office. Lindsay comes to Schroeder Law Offices from Montana where she received her J.D. from the University Of Montana School Of Law with a certificate in Natural Resource & Environmental Law. Prior to Law School, Lindsay earned her B.A. degree in Political Science from the University of Oregon. Lindsay has taken the Oregon State Bar exam and is currently awaiting the results with high hopes.
Lindsay brings a wide array of experience to Schroeder Law Offices including legal research, writing, and even judicial clinic experience. Through her experience, Lindsay has spent valuable time in the natural resources field including positions with the U.S. Department of the Interior as well as the U.S. Environmental Protection agency.
We are looking forward to working with Lindsay!
Other Employment
Schroeder Law Office is currently looking for the right attorney to fill a vacancy in the Reno, NV office. For more information regarding this position and how to apply, visit our website at: http://www.water-law.com/reno-attorney/
Forecasting 2017 Water Legislation in Nevada
New laws and legislation may affect you, stay tuned for tomorrow’s work session on topics of adaptive management, domestic use, cloud seeding, basin management, and mine dewatering!
Nevada’s Legislative Commission’s Subcommittee to Study Water will be holding a meeting on Friday morning, August 26, 2016 at 9:00AM at the Legislative Building, Room 4100, at 401 South Carson Street in Carson City.
Items on the agenda include the “Work Session Document” containing recommendations received by the Legislative Commission’s Subcommittee during the 2015-2016 Legislative Interim. This document is designed to assist the subcommittee members in determining which recommendations will be forwarded to the 2017 session, and what other actions the Subcommittee will endorse.
For those who may not be able to attend the meeting in Carson City, it will also be broadcast live over the internet via http://www.leg.state.nv.us, and can be viewed or listened to by clicking the link for “Calendar of Meetings/View” in the top right-hand corner of the page.
Items in the agenda as well as the Work Session Document and other information pertaining to the meeting can be found on the Nevada Legislature website under the “Meetings” tab. For written copies, please contact the Research Division, Legislative Counsel Bureau at (775) 684-6825.
A PDF link to the agenda including the Work Session Document can be found here.
“Use it or Lose it” Nevada’s Water in Times of Drought
The July 2016 Nevada Lawyer Magazine focuses on drought conditions and features Schroeder Law Offices’ Attorney Therese Ure’s article, “Use It or Lose It:” for Nevada’s Water in Times of Drought. The article discusses Nevada Revised Statute 534.090, which has become known as the “Use It or Lose It Doctrine” in reference to water rights and Nevada’s forfeiture law. As drought conditions fluctuate across the west, and particularly in arid desert states such as Nevada, statutory forfeiture provisions relating to partial forfeiture are in conflict with conservation measures such as planting crops that require less water. Click here to read more about defining the use of water and the forfeiture process in the State of Nevada, an online exclusive for Nevada Lawyer Magazine. A full copy of the July 2016 Nevada Lawyer Magazine can be found online.
California Water Right Ownership Updates Required
California Water Right Ownership Updates Required
The State of California wants to know when you sell or transfer water rights. As part of any land use transaction involving water rights, regulations require landowners to provide notice to the Water Resources Control Board (WRCB) when water rights transfer to new owners.
The WRCB will accept any change of ownership unless the change is challenged. If so, the WRCB will wait to update ownership listings until the dispute is settled outside of the agency.
Notification to WRCB should include information like the application number for the water right, name, and address of the new owner. The notice must also be signed by the previous owner. The process is easy. Forms are available at: http://www.waterboards.ca.gov/water_issues/programs/ewrims/ownership/. The forms may be sent electronically, by mail, or fax. Questions regarding the forms may be sent to: changerequest@waterboards.ca.gov.
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.
Idaho Ground Water Management Area Public Meetings are Scheduled
Below, please see the ground water management public meeting schedule posted by the Idaho Department of Water Resources.
Additional Information for Idaho Ground Water Management:
Senate Committee Proposes Budget Cuts to EPA and USFWS
In the wake of ongoing controversy over the reach of U.S. Agency jurisdiction, a Senate Appropriations Committee is taking steps to decrease funds available for many Agencies for the upcoming year, in an attempt to limit any overreach. On June 16, 2016 the Senate Committee approved budget cuts to the United States Fish and Wildlife Service (“USFWS”) and Environmental Protection Agency (“EPA”). Sponsored by Senator Lisa Murkowski from Alaska, the bill covers funding of many agencies and topics, with specific statements relating to public land agencies and funding.
Most notably, the bill proposes to cut the USFWS’s budget by $11.9 million as compared to the 2016 budget. Proposed cuts equally would affect the EPA’s budget to the tune of $31.2 million. Interestingly, and related to the funds allocated to the EPA, the bill states that, “None of the funds made available in this Act or any other Act, may be used to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act…”
While the measure is likely to be altered as it goes before the Senate, it marks a movement by many to limit funding to U.S. Agencies in charge of public lands, and seeks to limit the jurisdictional overreach the Agencies often assert. Those behind such measures believe that if the Agencies lack the funds to assert their jurisdiction, their resources will be dedicated in furtherance of the respective Agencies’ core goals, rather than working to increase their jurisdictional effect and power.
The Oregon Water Resources Commission’s (OWRC’s) rulemaking for the Greater Harney Valley Groundwater Area of Concern (Area of Concern) became effective on April 15, 2016. The new regulations limit pending and new applications for groundwater use in the Malheur Basin. Citing concern over lowering groundwater levels in the region, OWRC passed the new regulations to limit new water development until the Oregon Water Resources Department (OWRD) can adequately study the basin’s groundwater. This regulation is a component of the Malheur Basin Program. The drafts, maps, and rules are available at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.
Over a year ago, OWRD stopped issuing new ground water permits within the Area of Concern. Until the most recent rulemaking, however, no rules were in place allowing OWRD to halt permit processing and issuance. Usually, OWRC will create by rule Critical Groundwater Areas, Groundwater Limited Areas, and Serious Water Management Problem Areas prior to OWRD ceasing to issue new permits.
OWRC can designate Critical Groundwater Areas for multiple reasons, including declining groundwater levels, substantial interference between wells, overdraft of groundwater, or water quality degradation. OWRD must indicate the boundaries of the area and review the designation at least every 10 years. The designation allows OWRD to, for example, close the area to any further appropriation, limit the total withdrawal from the aquifer, and refuse applications for new groundwater permits.
Groundwater Limited Areas limit future appropriations of water to specified uses, but do not restrict existing consumption of water within the area. Serious Water Management Problem Areas allow OWRD to collect usage data from current water use right holders, but not restrict water consumption. These tools are used to collect information and guide future development of water resources in Oregon.
Rather than designating a critical or limited groundwater area, or a serious water management problem area, OWRD addressed the Harney Valley Groundwater Area of Concern by amending the Malheur Basin Program. Basin programs are used by OWRC to guide water right permitting decisions and coordinate with other state agencies. Within basin plans, OWRC may classify the highest and best uses for particular basins and waterways for future uses, including proscribing types of uses available to future applicants. Oregon’s basin programs are listed in the Oregon Administrative Rules Chapter 690, beginning at Division 500, and the Malheur Basin Program is located at Division 510, available at: http://arcweb.sos.state.or.us/pages/rules/oars_600/oar_690/690_510.html.
The new regulations for the Greater Harney Valley Groundwater Area of Concern propose to both limit future uses and collect information before OWRD completes a full study of the aquifer, expected to be completed by 2020. The proposed rules received 22 comments, which can be viewed at: http://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice¬ice_item_id=6640. In the meantime, 39 groundwater use applications are pending before OWRD, and these applications will not be approved, unless they meet conditions included in the new basin plan regulations. This is in direct opposition to the rule that applications must be processed based on the laws and regulations in effect at the time of filing, but OWRD is taking the position that groundwater is not available for the applications, rather than a regulatory change affected the outcome of the applications (this is not a new approach from OWRD).
The “area of concern” is, in effect, a moratorium on new groundwater development in the region. The new regulations create restrictions on new applications reminiscent of critical groundwater areas, but within the basin program scheme. The moratorium will put a halt to development in the region, at least while OWRD studies the groundwater in the area. Locals familiar with groundwater in the Malheur Basin are resentful of OWRD’s blanket moratorium when certain areas within the basin do not appear to show the same level of strain as others, and continue to produce great quantities of groundwater.
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.
California’s Sustainable Groundwater Management Act (“SGMA”) was passed in 2014. The SGMA requires local agencies to bear the burden of creating, implementing, and enforcing Groundwater Sustainability Plans (“GSP”) in certain groundwater basins to manage the aquifer in a “sustainable” manner. The California Department of Water Resources (“CDWR”) recently issued regulations that help clarify the requirements of the GSPs, but also include some information about how the law will impact local agencies and groundwater users in the State. However, the regulations fail to satisfy some fundamental questions raised by the SGMA.
The new regulations were issued on May 18, 2016 by CDWR provide some insights into how the agency plans to implement the Sustainable Groundwater Management Act. A copy of the regulations may be found at: http://water.ca.gov/groundwater/sgm/pdfs/Proposed_GSP_Regs_2016_05_10.pdf. Under the regulations, the agency set out the requirements for plan contents, including administrative information, a description of the basin, sustainable management criteria, a description of the monitoring network, and projects associated with the plans.
The administrative information section must include general information about the region, description of the local agency developing the plan, and the agency decision-making process with public engagement.
The basin setting section must thoroughly describe the basin’s hydro-geologic conditions and must create a “water budget” that describes all the surface and groundwater movement into and out of the basin. Under this section, the local agency must estimate the “sustainable yield” of the basin.
Sustainable Management Criteria have also been outlined by the regulations. These criteria require local agencies to set a sustainability goal that eliminates undesirable results of groundwater use within 20 years of the statutory deadline. CDWR will evaluate sustainability goals based on the achievement of minimum thresholds established by the local agency. The minimum thresholds expand on the statutory language for “undesirable results.” For example, a significant and unreasonable reduction in groundwater storage levels will be evaluated based on the locally defined “undesirable results,” supported by the “sustainable yield” of the basin. The local agency must also include a measuring system and “measurable objectives” that are revisited every five years.
The regulation also outlines the procedure that CDWR will use to evaluate plans, timelines for approval and reporting, and how local agencies can amend their plans. It also sets out the procedure for interagency agreements and addresses adjudications and alternatives to GSPs.
The real impact will come from the local agencies’ interpretation of the word “sustainable.” The new regulations use the term throughout, defining the quantity of water in the water budget available and defining allowable groundwater depletions. Traditionally, sustainable yield is considered the amount of water that can be withdrawn in balance with recharge. At first glance, the definition makes sense. The meaning, however, simplifies a more complex concept. When water is pumped from an aquifer, three results can occur: a reduction in stored water stored in the aquifer, capture of surface water (like rain or seepage from a river), or a reduction in discharge (like a spring or river baseflow), or any of these effects in combination depending on the specific aquifer. Ponce, Victor M., Sustainable Yield of Groundwater, (available at: http://ponce.sdsu.edu/groundwater_sustainable_yield.html). It remains to be seen how “unreasonable” and how “significant” the undesirable effects have to be in order to become unsustainable.
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.
Update: Klamath Basin Agreements in 2016
On April 6, 2016, amendments to the Klamath Hydroelectric Settlement Agreement (KHSA) and the new Klamath Power and Facilities Agreement (KPFA) were signed at a ceremony at the mouth of the Klamath River on the Yurok Indian Reservation. These changes come in the wake of the Congress’s decision not to pass legislation for the Klamath Basin Restoration Agreement (KBRA). Negotiations between the signatories of the new agreements in the Klamath Basin were kept secret, the results of their discussions can be seen in these new agreements, available at: https://www.oregon.gov/owrd/Pages/adj/index.aspx.
The amended KHSA’s purpose is to establish a process for removal of Iron Gate, Copco 1, Copco 2 and J.C. Boyle dams under the Federal Energy Regulatory Commissions relicensing procedures. The decision to remove the dams was made based on a cost-benefit analysis that was not released to the public. The amended agreement will also shield PacificCorp and its customers from liability for damages associated with dam removal. The amended agreement transfers the ownership of the dams to the Klamath River Renewal Corporation. The new corporation will conduct the dam removal, while PacificCorp will operate the dams until their decommissioning. The dams are expected to be removed in 2020. The U.S. Department of the Interior, the U.S. Department of Commerce, California and Oregon States, and PacificCorp were parties to the agreement.
The KPFA is an agreement designed to mitigate economic and regulatory issues facing users of water and land in the Klamath Basin. Oregon and California States, the Klamath Water Users Association, public interest groups (including American Rivers, Trout Unlimited, and Sustainable Northwest), the U.S. Department of the Interior, and the National Marine Fisheries Service were parties to the agreement. The KPFA stipulates that the signing parties must meet and confer when there is an unforeseen circumstance related to the fishery restoration and regulatory impacts on the local economy. It also obligates the U.S. Bureau of Reclamation (“BOR”), upon transfer of the operation of Link River and Keno Dams, to operate the dams without adding any associated costs to water users for the maintenance of infrastructure. The BOR will operate those dams consistent with existing contracts for irrigation and flood control, and attempt to prevent salmon from entering irrigation canals and ditches. Funding for projects preventing salmon entry into irrigation infrastructure will come from a variety of sources, including irrigation districts, federal, state, and private parties. The agreement also requires the signing parties to support and defend the KHSA, refrain from making statements in opposition to the KHSA, and support the KHSA in administrative and judicial forums. Notably, representatives of the local landowners that will be affected were not included in negotiations, and are not signatories to the agreement.
In short, after many years of receiving a clear message from Congress that it was not going to fund the KBRA’s dam removal plan, the proponents are moving forward without Congress’s approval, or the approval of the local residents that will be most affected. Rather than retrofit the dams to allow fish passage and other updates, the negotiating parties are removing the dams. Along with the dams, the negotiating parties are doing away with inexpensive power, jobs, and water storage for increased reliability within the basin, in a proverbial “flushing the baby with the bathwater” situation. It remains to be seen how severe the impacts from dam removal will be on top of the other stresses that the Klamath Basin has suffered since the administrative phase of the Klamath Basin Adjudication was completed, and since the region has suffered from severe drought for several years.
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.
New Oregon Water Permit Condition to Begin Construction
The Oregon Water Code provides that construction of a water system must be completed within certain time limits from issuance of water use permits (5 years for non-municipal water use permits, and 20 years for municipal permits). ORS 537.230 (“…the holder of a water right permit shall prosecute the construction of any proposed irrigation or other work with reasonable diligence and complete the construction within a reasonable time, as fixed in the permit…”); ORS 537.630. The same provisions allow the Oregon Water Resources Department (“the Department”) to grant extensions of time for completion of construction.
The Oregon Water Code also provides that water use permits may be cancelled when a permittee fails to begin construction within permit deadlines. ORS 537.410(1) (“Whenever the owner of a permit to appropriate the public waters of Oregon fails to commence actual construction work within the time required by law, or having commenced construction work as required by law, fails or neglects to prosecute the construction work with reasonable diligence, or fails to complete the construction work within the time required by law, or as fixed in the permit, or within such further time as may be allowed under ORS 537.230, or having completed construction work, fails or neglects to apply the water to beneficial use within the time fixed in the permit, the Water Resources Commission may cancel the permit on the records in the Water Resources Department as provided in ORS 537.410 to 537.450.”)
In determining whether to grant an extension of time, the Department considers: 1) the cost of the appropriation and application of water to a beneficial purpose, 2) the good faith of the appropriator, 3) the market for water or power to be supplied, 4) the present demand for the water or power to be supplied, and 5) the income or use that may be required to provide fair and reasonable returns upon the investment. ORS 537.230(3); ORS 539.010(5); see also OAR Chapter 690 Division 315. The Department’s general practice has been to liberally grant extensions of time if the permittee is able to show a financial investment to begin construction and/or water use under the permit and a reasonable explanation for the delay. Permit extension of time applications are available on the Department’s website at: http://www.oregon.gov/owrd/PUBS/docs/forms/App_Ext_WR_perm.docx.
Recently, the Department has added the following condition to new permits: “The deadline to begin construction may not be extended.” Although the new permit condition does not mark a departure from the Oregon Water Code’s provisions, it does mark increased seriousness from the Department about what is necessary to obtain an extension of time to develop a new water use right. Permittees should be sensitive to the change in climate regarding beginning construction and applying water to beneficial use.
Now, more than ever, it will be important to begin construction within the 5-year deadline in order to avoid permit cancellation. “Actual construction” means “physical work performed towards completion of the water system, which demonstrates both the present good faith of the water right permit holder and the water right permit holder’s intention to complete the project with reasonable diligence.” OAR 690-315-0020(3)(d)(A). This does not include planning, securing financing, entering into contracts, surveying, or purchasing (but not installing) equipment. OAR 690-315-0020(3)(d)(B).
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
Oregon water conservation projects receive $8.9 million in funding
The Oregon Water Resources Commission recently awarded nine water supply project proposals in the state of Oregon with a combined $8.9 million for projects focusing mainly on water conservation.
The Commission received funding in the amount of $14 million from the state to implement large-scale water conservation plans across the state. Although urged to fund as many projects as possible with the money, the Commission awarded grants to the nine Oregon Water Resources Department recommended projects.
Oregon is doing its part to conserve water on a large-scale.
U.S. Supreme Court Rules CWA Jurisdiction Reviewable in Federal Court
The Clean Water Act is an issue of gathering significance with the Environmental Protection Agency and adoption of a newly defined “waters of the United States” (“WOTUS”), wherein civil and criminal penalties can attach if pollutant is discharged into jurisdictional waters. Thus, whether water is defined as “jurisdictional” becomes an important significance. On May 31, 2016, the U.S. Supreme Court issued a ruling in United States Army Corps of Engineers v. Hawkes Co., Inc., et al., regarding Clean Water Act (“CWA”) application and the regulatory jurisdiction of the United States over water resources.
In the lawsuit, three peat mining companies sought a permit from the Army Corps of Engineers to discharge certain material into a wetland. The companies sought a “jurisdictional determination” from the Army Corps of Engineers stating that the property was jurisdictional under the Clean Water Act. Disagreeing with the determination, the companies sought review of the determination under the Administrative Procedure Act, appealing the determination to Federal District Court. The Federal District Court dismissed the matter, holding that a jurisdictional determination is not a “final agency action” allowing the right of an appeal to the Court.
Upon review by the U.S. Supreme Court, the Court overturned the lower court, and found that a jurisdictional determination is in fact a final agency action and judicially reviewable. While this ruling does not affect the current stay of the newly adopted rule governing the definition of WOTUS, it does shed light on procedure and available remedies should water be found to be jurisdictional, where a permit application disagrees.
This decision is overall good news for those seeking to comply under the Clean Water Act, and where the EPA and Corps may overstep their bounds in finding certain water to be jurisdictional. Any determination of jurisdiction is reviewable in Federal Court, where an individual can properly assert and provide evidence that certain water is in fact not jurisdictional. In any event, this decision sparks the beginning of likely a long line of cases pending around the country relating to the CWA’s jurisdictional reach.
Water resource users are some of the most environmental aware stewards since they must count every precious drop of water necessary to feed the world and provide safe drinking water. In the United States, we celebrate Earth Day: We have a bike-to-work week, we have recycling and environmental preservation programs in our communities, the list goes on. World Environment Day is the United Nations’ all-encompassing campaign that promotes these types of environmentally conscious activities and events and serves as a global platform for public outreach. The UN considers World Environment Day (“WED”) an important holiday for encouraging worldwide awareness and action for the protection of our environment. Also considered “The People’s Day,” the UN encourages this to be “a day for doing something to take care of the Earth or to become an agent of change. That ‘something’ can be focused locally, nationally or globally; it can be a solo action or involve a crowd – everyone is free to choose.” Each year, the UN organizes WED to revolve around a particularly pressing issue, this year they’re highlighting illegal wildlife trade with a themed slogan: “Go Wild for Life.” Activities are encouraged globally; in 2015, WED saw a total of 2,861 registered activities with 1.26 million people participating worldwide. Participants can visit the WED online site to register their environmental activities to be shared worldwide on a community map, with hopes of inspiring others with ideas or notable contributions. For those who wish to participate in the World Environment Day celebration, the UN offers this toolkit for a successful, positive route to taking action and encourages participants to share their activities. While Schroeder Law Office’s work in water resources is a bit removed from the 2016 theme “Go Wild for Life” we can say that we “Go Wild for Water.” We will celebrate this year’s World Environment Day by continuing to support our clients in smart and efficient beneficial use of our water resources.
The End of the Prior Appropriation Doctrine?
The debate continues on the prior appropriation system. During the 2016 Family Farm Alliance Annual Conference, the Alliance’s 2015 report on the prior appropriation doctrine raised some debate. This debate, now focusing on Nevada’s prior appropriation system, was again raised in equal vigor during the 2016 Nevada Water Resources Association annual conference. While many argue the system fundamentally works, some commenters took the stance that the prior appropriation doctrine was flawed and should be reconsidered.
One alternative suggestion presented during these discussions was to adopt the Australian Model which changes a water right to a water share, and strives to entitle these water license holders to a specific share in the available water and to take water at specific times, rates or extraction points. However a true understanding of prior appropriation provides for water use under these circumstances, with the main difference being, in a short water year, the difference class of shareholders receive different allocations. So instead of a month, day and year priority to govern who receives their water first, the Australian Model groups all users into classes of shares with perhaps 3-5 classes all together depending on the stream system. What we did not hear about was how the Australian system handles conjunctive management calls within these class-share systems.
We suspect this debate will continue throughout the western United States as climate change and the drought continue.
Co-authored by Therese A. Ure
Executive Order Makes California Water Conservation Permanent
On May 9, 2016, Governor Jerry Brown of California signed an executive order making certain water conservation measures permanent. The measure is meant to build on temporary emergency water restriction in place since last year. Brown’s office reports that “between June 2015 and March 2016, Californians reduced water use by 23.9 percent compared with the same months in 2013 – saving enough water to provide 6.5 million Californians with water for one year.”
The executive order primarily implements long term planning solutions for local drought and directs the California State Water Resources Control Board to develop further emergency provisions should the drought continue. This new action is summarized in the Governor’s plan to “Make Conservation a California Way of Life.”
More specifically, the plan requires additional monthly reporting by urban water suppliers, requiring information on use, conservation, and enforcement. The provisions further claim to eliminate water waste, prohibiting hosing off sidewalks, driveways, at home washing of autos using hoses not equipped with nozzles, and watering lawns in manner that causes runoff. The Water Board will also work to minimize system leaks responsible for wasting more than 700,000 acre-feet of water per year. While already strictly regulated, agriculture use is also heavily considered, updating the requirements for Agricultural Management Plans allowing irrigation districts to quantify customers’ use and appropriately plan for shortages.
While water restrictions and regulations are becoming more permanent, Californians will continue to face heavier scrutiny. It is ultimately the user who will face the increased burden, however, the hope is that the systems themselves will promote efficiency, providing a better use of water across all systems and types of use.
