By Law Clerk Nicole Widdis

The Eleventh Circuit Court of Appeals, in an order filed today, was the first court to interpret a recent Environmental Protection Agency (EPA) regulation, the Water Transfers Rule (40 C.F.R. § 122.3(i)), which affects the Clean Water Act National Pollution Discharge Elimination System (NPDES).

The case before the Court involved litigation brought by environmental groups and the Miccosukee Tribe of Indians claiming the South Florida Water Management District was violating the Clean Water Act by pumping waters polluted by a “loathsome concoction of chemical contaminants into Lake Okeechobee.” The EPA joined the case on the side of the Water District arguing that a NPEDS permit was not necessary. The trial court concluded the District violated the Clean Water Act and ordered the executive director of the Water District to apply for a NPDES permit.

The big issue in the case and on appeal was the meaning of the word “addition.” The Clean Water Act bans the discharge of any pollutant without a permit, and “discharge” is defined as “any addition of any pollutant to navigable waters from any point source.” Unfortunately for the courts and many litigants, the Clean Water Act did not define “addition.”

The EPA argued that no permit was necessary for the water district in this case, because the water was already polluted when it passed through the pumps (the point sources) into the lake, and that “navigable waters” means all of the United States navigable waters as a whole. Thus, according to the EPA no pollutants were added to the navigable waters as they passed through district managed pumps to the lake. The metaphor used by the U.S. Supreme Court describing this “unitary waters theory” is a soup pot. When you scoop soup into a ladle and then pour it back into the pot you have not “added” any soup to the pot. Under the unitary waters theory, all of the United States navigable waters are one pot of soup.

Previous courts rejected the unitary waters theory. The difference here is that the 11th Circuit could include consideration of the Water Transfers Rule recently adopted by the EPA to support a unitary waters theory. In order to apply the Water Transfers Rule, the Court had to determine whether the language of the Clean Water Act was “ambiguous.” Both sides of the controversy argued reasonable but conflicting interpretations of the “navigable waters” language. Does it mean one collective group of water, or does it mean any distinct body of water? The Court determines that since it could mean either, the language was ambiguous.

Because of the ambiguity, the Court was required to defer to EPA’s Water Transfers Rule enacted by the EPA, because it matched one of the reasonable interpretations of the statute. Thus, unless and until the EPA rescinds their rule or Congress overrides it, all bodies of navigable water in the United States are to be considered one body of water for the purpose of NPDES permits.

Since South Florida Water District was not adding the pollutants to the water initially, and was merely transferring polluted water from one place to another, the District was not required to obtain a permit, something the environmental groups in the case find contrary to the purpose of the Clean Water Act.

Eleventh Circuit Case: Friends of the Everglades, Florida Wildlife Federation et al. v. South Florida Water Management District, et. al. D.C. Docket No. 02-80309-CV-CMA, Order filed June 4, 2009.

By Law Clerk Nicole Widdis

The Truckee-Carson Canal breached in early 2008, however the litigation continues. See Water Law Blog entries from April 24 and 30, 2008 for background on the matter.

The latest attempt by the homeowners in this case to limit the amount of water going down the canal was heard in Nevada Federal District Court for three days beginning May 11, 2009. The homeowners renewed their 2008 motions for a preliminary injunction to stop water going down the canal. However this year, the homeowners put a new spin on their request. They asked the court to make a ruling that if there was a mere forecast of a storm event, that the water in the canal would have to be dropped from 350 CFS flow to 100 CFS flow.

On May 12, 2009, the federal judge in Nevada denied the preliminary injunction, without prejudice. This means that though the court has denied the request at this time, the parties are free to renew their request for injunction at a later date. The flow in the canal will remain at the 350 CFS flow which is the maximum flow allowed in the canal under the 2008 court order. The court also ordered post-trial briefing on some of the issues discussed at the hearing. In other words, this case will continue to be litigated. Stay tuned.

The Nevada Federal District Court case numbers for these matters are: 03:08-cv-00246-LDG-RAM, 3:08-cv-00621-LDG-RAM; and, 3:08-cv-00285-LDG-RAM.

By Law Clerk Nicole Widdis

On May 6, 2009, Governor Gibbons signed into law Assembly Bill 226, changing the financial requirements of irrigation districts in Nevada. This law will go into effect July 1, 2009.

The existing law had limited the amount of money spent on a single purchase by a district on machinery or materials for constructing or repairing an irrigation system to no more than 5 cents per acre of land in the district. The new amendment will remove that cost limit. Also, the new law will allow irrigation districts to incur up to $500,000 in debt, rather than the $350,000 limit under the existing law.

Finally, under the existing law, assessments of $1.50 per acre could be collected and used for ordinary and current expenses of the district, for example salaries of officers. The new law will still allow for collection of such assessments. The new law will also allow for assessments by an irrigation district of not more than $5.00, per acre, for deposit into a capital fund for the construction, reconstruction or maintenance of the irrigation system.

However, the new law limits the total cumulative assessment for capital fund and ordinary expenses, at $5.00, per acre. Thus, the district will not be able to tax $6.50 per acre in order to contribute to a capital fund and pay ordinary expenses. The total assessments must not exceed $5.00 per acre.

Nevada Revised Statutes 539.255 and 539.480. Changes to become effective July 1, 2009.

As evidenced in the recent amendments to proposed HB 3369 concerning revisions to loan and grant funding for Oregon water projects, climate change issues are finding their way into Oregon statutes. One might ask if this is proper given the lack of science surrounding climate change issues.

The Environmental Protection Agency realizes that the science is not fully developed. Specifically, the EPA states: “Important scientific questions remain about how much warming will occur, how fast it will occur, and how the warming will affect the rest of the climate system including precipitation patterns and storms.” http://www.epa.gov/climatechange/science/stateofknowledge.html. To answer these questions with any degree of certainty will thus require advancements in scientific knowledge in many areas including “determining the relative contribution to climate change of human activities and natural causes.” Id.

With so many unknowns as to climate change analyses, it is likely an exercise in futility to put any climate change analysis into the requirement mix for a water project loan application. Oregon House Bill 3369 currently provides that anyone making a loan application include project impacts such as the “expected environmental public benefits including a plan describing possibilities for adaptation of the project in response to long term climate change.” Other proposals in this Bill require analyses as to “global” climate change. Can one even begin to outline possibilities to adapt a project to “long term” climate change when “questions remain” as to the affects of warming on the climate systems? Adding such provisions to a loan and grant application would be futile to the success of any water project funding program. Perhaps more importantly, Oregon and the west have a long history of considering water shortage implications to water projects and infusing climate change with a unique status is unnecessary.

If the State of Oregon is going to have a successful funding program for water projects, having mandatory provisions to consider “the likely impact of global climate change in regard to the project,” is simply unnecessary, bad law.

The Oregon Ground Water Association (OGWA) is holding their Spring Technical Conference on March 6-7, 2009 at the Oregon Garden Resort in Silverton Oregon.

Schroeder Law Offices’ Therese Ure will join the panel discussion on Government Affairs which will discuss and consider the 2009 Legislation’s proposed bills relating to the ground water industry.

For more information, you can contact Therese Ure or view the OGWA’s website at www.ogwa.org.

In Senate Bill 424, Oregon considers changes to the water right forfeiture law. Currently a water right in Oregon is subject to forfeiture if the water has not been applied to beneficial use under the certificate once in every five year period. As proposed, this bill sponsored by Senator Girod and Representative Gilliam would allow certificated water right holders to file affidavits for exemptions to the forfeiture clock in certain very limited instances. These limited instances include crop rotation or tiling. The responsibility of filing the affidavit is placed on the water user and must be done in the same calendar year as the crop rotation or tiling was done in lieu of irrigation under the water right certificate.

We suggest that an exemption via affidavit should be made available for any reason, not just crop rotation and tilling. This would allow certificated water right holders to make environmentally sound decisions to use less water and not simply to waste it for purposes of “holding” onto the right.

Oregon might look to the broader Nevada law found at NRS 534.090 that allows the certificated water right hold to submit an affidavit in the 5th year of non-use and accepts reasons such as good cause, unavailability of water, economic conditions or natural disasters, prolonged period of precipitation wherein appropriated water use is not needed, and efficiency of irrigation and water use practices to excuse the non-use. In addition, Nevada’s law provides consequences, in that a certificated holder must file a proof of beneficial use once he has filed a non-use affidavit. This would provide the “checks and balances” to assure that use continues as required.

The Oregon bill as proposed requires the water user to be overly cautious in filing an affidavit in the same year as the non-use, however that same user might be able to apply water to beneficial use in the following year or two years, thus creating the need to simultaneously file an extra burden, and quite frankly not needed to meet the 5 year burden in many instances. In this regard, the Oregon law as proposed would also increase in administrative burden to the Water Resources Department unnecessarily.

The concept is environmentally sound; however, we would encourage the Senators to look at NRS 534.090 for further guidance.

On Tuesday, January 27th while speaking on hot topics in water at the annual Oregon Water Coalition meeting in Hermiston Oregon, Laura Schroeder, Cortney Duke and Therese Ure announced the Schroeder Law Office new Hermiston Oregon location.

Attorney Therese Ure will be making a monthly rotation of up to 10 days a month in the Hermiston, Schroeder Law Office location. In general, Therese will be in the Hermiston office during the first week of the month. Appointments can be made with Therese by contacting Ms Daryl Cole at 1-800-574-8813. You may also contact Therese directly via email at t.ure@water-law.com or via telephone at 541-612-4840.

Schroeder Law Office attorneys represent water users, municipalities, agri-businesses, and other agricultural based organizations in Oregon, Nevada, Washington, and Idaho. Laura Schroeder is also working as a water consultant internationally. Attorney Ure’s practice focuses on agricultural and rural water issues. She is well suited to this focus being a native of rural eastern Oregon and a member of a fourth generation of family farmers.

Schroeder’s law practice includes offices in Portland Oregon and Reno Nevada.

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In January 2009, Schroeder Law Offices’ Therese Ure was elected to serve on the Agricultural Law Section’s Executive Committee for the Oregon State Bar. This section, among others, monitors issues facing agricultural interests and also provides guidance and comment to the Oregon State Bar on new legislative ideas, such as the Oregon Water Courts proposals that are facing the Judicial and Administrative sectors in the state. Therese is working with the committee to organize their annual early summer CLE program. This year the topics for this seminar will surround estate and land planning issues for the agricultural client including tax exemptions.

Therese, a native of Eastern Oregon and a member of the fourth generation of family farmers is especially dedicated to the agricultural interests. Therese continues to focus her legal practice in water rights, easements, public lands, and grazing rights, among other things.

For more information on the Agricultural Law Section you may contact Therese Ure at t.ure@water-law.com.

For the Oregon Water Coalition’s 2009 Annual Membership Meeting and Water Conference, Laura A. Schroeder, Cortney D. Duke, and Therese A. Ure will present a two hour seminar covering two main topics including:

1) Ground Water
a) Critical Ground Water
b) Division 33 Rules
c) Peak Flows

2) New Legislation
a) SB 1069
b) Long Term Planning
c) Columbia River Mitigation

The conference will be on Tuesday, January 27, 2009, from 8:30 AM to 1:15 PM at the Hermiston Conference Center. 415 S. Highway 395, Hermiston Oregon.

For registration and more information contact 541-567-6151

2,4-D is a herbicide commonly used to attack broad leafed plants, but it is less harmful to grasses. In agricultural applications, herbicide is applied to wheat, small grains, sorghum, corn, rice, sugar cane, low-till soybeans, orchards, rangeland, and pasture. Others mix it with other herbicides or pesticides for application onto non-producing lands such as roadsides, lawn turf and forestry. 2,4-D is one of the widest used herbicides in its class for weed control.

On November 6, 2008, the Natural Resource Defense Council (NRDC) filed a petition with the Environmental Protection Agency (EPA) requesting the EPA to revoke the use of 2,4-D via revoking all tolerances and canceling all registrations for the pesticide. NRDC believes that the petitioned action would create proper compliance with the safety standards of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and the Federal Food Drug and
Cosmetic Act (FFDCA), section 408, as amended by the Food Quality Protection Act (FQPA) of 1996.

You can submit comments to this petition that must be received by the EPA on or before January 23, 2009. Send comments to the EPA: 1) via following the links to submit comments online through the Federal eRulemaking Portal: http://www.regulations.gov, or 2) mail to: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

Reference Docket No. EPA-HQ-OPP-2008-0877 on all comment submission to the EPA.

For more information go to: http://www.epa.gov/fedrgstr/EPA-PEST/2008/December/Day-24/p30527.htm

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On December 2, 2008 the grand jury in the Federal District Court of Nevada returned an indictment to the court charging the Truckee Carson Irrigation District (TCID) and four of it’s employees: David Overvold, Lyman McConnell, Shelby Cecil, and John Baker with conspiracy to defraud the United States Bureau of Reclamation, falsification of records, false claims, and false statements.

TCID manages the Newlands Project in Northern Nevada pursuant to the Operating Criteria and Procedures established by federal rules and regulation (43 CFR 418.1 et seq.). These federal indictments will have long range effects to those in the Newlands Project!

The charges allege that TCID and its employees essentially mis-managed the district by fraudulently obtaining incentive credits via submitting false data as to water deliveries. The list goes on.

If convicted, each individual defendant faces up to 20 years in prison for each falsification of record count, and five years in prison for each count of false claims, false statements, and conspiracy to defraud the US. The individual defendants also face maximum possible fines of $250,000 as to each count. If TCID is convicted it could be fined for each count twice the gross gain or loss suffered to another, or $500,000. TCID could also be subject to probation and a court-ordered monitoring program, among other things.

TCID is now faced with hiring criminal attorneys to represent the district and the four charged employees. With these costs of all the other pending litigations and issues the district is facing, TCID approved a plan to reduce their work force to approximately half its current size.

What will happen next? Will the water be flowing for the 2009 irrigation season? Stay tuned.

A meeting was held on Monday, November 3rd wherein many landowners were educated on many issues surrounding the B2H high powered transmission project.

For more information on the meeting, follow this link: http://www.argusobserver.com/articles/2008/11/04/news/doc49108e808f901907365579.txt

Schroeder Law Offices was in attendance at this meeting and urged landowners to participate in submitting comments to the Bureau of Land Management and Oregon Department of Energy. Comments are due (and must be received by) November 14th and should be submitted to both agencies at the following addresses:

Boardman to Hemingway Project
Attn: Lucas Lucero
Bureau of Land Management
4701 N. Torrey Pines Drive
Las Vegas, NV 89301
Fax: (702) 515-5010
B2HComments@blm.gov

Boardman to Hemingway Project
Attn: Adam Bless
Oregon Department of Energy
625 Marion St. NE
Salem, OR 97301
Fax: (503) 373-7806
Adam.bless@state.or.us

For more information, or legal assistance in drafting comments, contact our office at 503-281-4100.

The B2H Project will construct a new high power (500 kilovolt) electric transmission line over 298 miles of private and public lands throughout North-Central to Eastern Oregon and Idaho. The B2H Project is currently scheduled to begin construction in 2011 and begin service in 2012. Between now and 2011, the project is undergoing the permitting and engineering phases. There are opportunities to participate and submit written comments!

This project will affect landowners’ property interests. Approximately 86% of the project crosses private land. The other 14% is land managed by the Bureau of Land Management, the United States Forest Service, the States of Oregon and Idaho, and other various public entities. In the last month, approximately 800 landowners received a mailing from Idaho Power providing notice of the project. These landowners hold property interests in the “notification zone.” Idaho Power will work to acquire easements, and or rights-of-way (ROW) with the private landowners. In some cases, Idaho Power may purchase the land in fee simple. If these options fail, Idaho Power will acquire easements and ROW through eminent domain.

The ROW will be approximately 250 feet wide, however, the proposed corridors, including alternate corridors, maintain a 2 mile width for evaluation purposes. The average distance between the 100 to 190 feet tall lattice steel towers and H-frame steel power structures will be 1200 to 1300 feet. The amount of land affected during construction includes 13,500 acres whereas the land affected during operation will include 7,550 acres. During the scoping meeting, each landowner is encouraged to provide written comment to question and discuss the limitations of these identified corridors. The landowner knows best!

Because this project traverses both public and private lands, two review procedures will occur simultaneously. These processes include National Environmental Protection Act (NEPA) compliance at the federal level via an environmental impact statement (EIS). BLM will be the lead agency in charge of the EIS. On a local level, the Oregon Department of Energy, Energy Facility Siting Council (ODOE-EFSC) reviews the Notice of Intent (NOI) received from Idaho Power. The NOI is then noticed to the public and persons can submit their written comments to the NOI which is available on the project website. The NOI was submitted on August 28, 2008.
-Public Written Comments to the EIS Scoping phase are due on November 14, 2008, and can be submitted to the Federal Project Manager, Lucas Lucero at 4701 N. Torrey Pines Dr., Las Vegas NV 89130.
-Public Written Comments to the ODOE-EFSC are also due on November 14, 2008, and can be submitted to the Energy Facility Analyst for ODOE, Adam Bless at 625 Marion St. NE, Salem OR 97301.

Transmission lines over private property do affect property values and options. Humans and animals are sometimes affected when living under or near transmission lines. Health and safety issues must be considered in light of the public need for these transmission lines.

Public information and scoping meetings are being held in October from 4:00 pm to 7:00 pm at the following locations. You are encouraged to attend!
• October 21: Marsing, Idaho (Marsing American Legion Comm. Cntr, 126 N. Bruneau Hwy)
• October 22: Ontario, Oregon (Four Rivers Cultural Cntr, 676 S.W. 5th Ave)
• October 23: Baker City, Oregon (Baker County Fairgrounds, 2610 Grove St.)
• October 28: Island City, Oregon (OSU Agricultural Service Cntr, 10507 N. McAlister Rd.)
• October 29: Pendleton, Oregon (Pendleton Convention Cntr, 1601 Westgate)
• October 30: Boardman, Oregon (Port of Morrow Riverfront Cntr, 2 Marine Dr.)

For more information, copy and paste this link in your brower: http://www.boardmantohemingway.com/default.aspx

At Schroeder Law Office we are versed in navigating through the permitting process, submitting comments to BLM and ODOE, and protecting property interests. Submitting comments is an imperative part in protecting your property interests. Please contact our office if you have any questions or desire to employ our assistance.

One can’t help but notice the increasing amount of wind-generation farms that are being installed throughout Oregon, Washington and the U.S.  At first glance, wind energy seems like a great idea with many people looking to jump on the bandwagon.  It provides clean renewable energy and helps stabilize energy costs and our nation’s dependence on foreign fuel sources.  However, it is not as simple as it may seem and careful feasibility and due diligence analysis must be made to determine if wind energy is right for you and your land.

There are three categories of systems that are available:

1.  Small Scale – for your own residential or commercial (office or farm) facility. These are small wind generation towers. These help to offset the individual owner’s utility costs.
Some of these systems allow the owner to be hooked up to the power grid, wherein any extra power the owner currently generates is fed directly to the grid.  Later when the owner needs power, they can take back from the grid at no-cost and use the credit on the power they previously supplied to the grid. This system is known as net metering. The owners power meter will actually track in both positive and negative directions.  Of course the owner doesn’t have to be connected to the grid and thus their power generation would be used at that moment in time unless additional equipment, like batteries, are installed to capture that generation – the stand alone system.
These smaller systems cost anywhere from $10,000 to $80,000 installed. They generally produce around 10 kilowatts (kW) to 25 kW in generating capacity, and can be up and running in about a year.

2.Community Program – group of landowners come together to install mid-sized wind generation towers and the power created is spread amongst the group.

3.  Large Scale and Utility Scale – wind farms that generate power to sell to distributors like PGE, Pacific Power, and Idaho Power for a profit.  These are the systems that usually produce 10 megawatts (“MW”) or more.  The cost is anywhere from $800,000 to $1,200,000 per turbine, in a multiple turbine system, and can be up and running in about five years, from first idea to completed construction.

Leasing the wind rights on your land to a developer is a viable option if you are not interested in going through the development process, and can provide you as the landowner with $3,000 to $4,000 per year for one 1.4 MW turbine, using .5 acre footprint that is spread over 50-75 acres of land.  Of course profit will be based on the amount of wind produced by that turbine, thus you want to make sure you have “windy land.”

The level of due diligence required to determine cost/benefits and feasibility will change depending on which system you are interested in.  The key things to remember and look at when assessing any of these systems are: goals including leasing versus developing, wind resources, amount of available land, energy needs or interconnection to the power grid, permitting through local and state governments, capital contributions available and amount of risk you are willing to assume, government grants and incentives and tax incentives and consequences.  There are different ways to structure these projects to make it worth the investment and minimize risks, but like property, each project is unique.  It is important to spend the time and money up-front in researching the opportunities and feasibility of any new business opportunity.

While the costs may ward off many potential developer candidates in prime site locations, there are several grants available for all systems including financing for the feasibility study.  There are also several different incentive programs available for project costs, taxes and production.  The range of these programs is great and should be considered specific to the proposed system.   With these grants and incentives, it can turn an $80,000 project into $10,000 project with a positive return on investment.  Thus with careful time and consideration spent up front, a landowner or company could turn this clean renewable energy resource into a profitable venture.

The Federal Court made its decision on the jurisdictional question by sending the case back to Lyon County District Court last week. See http://www.kesq.com/Global/story.asp?S=8229832 for more information.

Interestingly, many farmers have still not received water that is due to them as insufficient flows continue in the Truckee-Carson Canal. Crops are being stressed and damaged.

Many meetings are taking place in Fernely and Fallon with the Bureau of Reclamation to help resolve these issues. Obviously, if enough water is not diverted from the Truckee River over to the Carson River via the Canal, the amount of water allocated to Fallon side water users in the project, as well as those in Fernley will diminish. With the “water year” already at 90% of the allocation, there may not be enough water to fulfill the allocation if Truckee water is not available.

We encourage your attendance to voice your concerns at these meetings! The next meeting is scheduled for Thursday, May 1, 2008, from 6:00 – 9:00 PM at the Lahontan Elementary School, Multi-Purpose Room,1099 Merton Drive, Fallon.

In the aftermath of the January 2008 flood after the Truckee-Carson Canal break, many lawsuits have been filed.  These suits have been filed in both state and federal courts in Nevada and present many questions as to which Court holds jurisdiction to hear these issues.  Proper jurisdiction depends on the parties to the lawsuit as well as the subject matter of the action.

Recently, an action for an injunction to stop certain amounts of water from flowing down the Truckee-Carson Canal was filed for fear that the higher water levels and amounts of water would cause additional damages to them and potentially cause another ditch break.  While this action was limited to the parties involved and served in the pending lawsuit, this caused an uproar by Newlands Project water users.  Many users have contemplated intervening in this action as the reduced amount of water going over to the project has and will directly affect project water deliveries to the users on the Canal itself, and downstream in the project.

The action for an injunction has questionable subject matter jurisdiction because it was not filed with the Decree Court that administers the water deliveries affected. How can a Court that does not have subject matter jurisdiction of the waters affected make any affective order?

The Alpine and Orr Ditch were Decreed in Federal Court and that court retains jurisdiction to administer the Decree that defines exactly how much water each user is entitled to receive and where that water is to be delivered. Thus, presumably an action to limit the amount of water delivered down the Canal should be brought in the Decree Court. The problem is that those seeking the injunction may not have standing in the Decree Court because they have no water rights issued by the Decree Court.

An interesting question still to be decided.