Developments in case law relating to water law issues
The Chevron deference two-step is no longer. A once powerful doctrine applicable to judicial review of administrative action is overruled by Loper Bright Enterprises v. Raimondo. The outcome is no surprise, Chief Justice John Roberts long found Chevron as an inappropriate leverage of executive power over the judiciary branch. Chevron deference required Courts to defer […]
Chevron Deference, Loper and the Future of Water Law Read More »
In 2019, we previously posted a blog on the Public Trust Doctrine in Nevada which you can find here. Since then, the Nevada Supreme Court made its decision in Mineral Cty. v. Lyon Cty., 136 Nev. 503, 473 P.3d 418 (2020). We provide a brief recap of the Public Trust Doctrine and an update on
The Public Trust Doctrine and Water Rights in Nevada Read More »
Conjunctive management recognizes there may be a hydrological connection between groundwater and surface water within an area. This means, drawing down groundwater may affect the availability of surface water, and vice versa. In prior appropriation states like Nevada, where senior water rights have priority, surface water rights will generally trump groundwater right. In January 2024,
Nevada Supreme Court Weighs in on Conjunctive Management Read More »
Chevron will be under review by the Supreme Court as a result of herring fishery regulations. However, the Court made clear that any published opinion will solely be interpreting the extent to which Chevron is a Constitutional doctrine
Chevron Deference, a Complicated Legacy Read More »
Democrats in the U.S. House of Representatives have taken action to clarify the Clean Water Act following the Sackett decision, introducing new legislation into Congress in October of 2023. The purpose of the “Clean Water Act of 2023” is to counteract the narrow interpretation of the term “navigable waters” set forth in the Supreme Court’s
Clean Water Act of 2023 Read More »
The Clean Water Act’s extension of what waters it attempts to regulate is leaves WOTUS a confusing legacy. Does it apply to wetlands? If so, what if wetlands stand alone and don’t adjoin navigable waterways?
WOTUS: a Confusing Legacy Read More »
On October 3rd, 2022, the Supreme Court heard the oral argument for the first case of its 2022-2023 term: Sackett v. EPA. The case calls into question the definition of “Waters of the United States” (WOTUS), as it will decide the proper test to determine which wetlands are considered WOTUS, and therefore subject to federal
[This article was originally published in the February, 2022 Oregon Real Estate and Land Use Digest by the Section on Real Estate and Land Use, Oregon State Bar] In Oregon, water rights must be beneficially used according to their terms at least once every five years to remain in good standing. If they are not,
Oregon Hydroelectric Water Right Converted Instream Read More »
Laura Schroeder and Therese Ure Stix joined Alan Schroeder in questioning agency deference in a recent op-ed piece published by the Capital Press: Commentary: Get ready for sage grouse management plan 4.0 | Columns | capitalpress.com It is not unusual for natural resource attorneys to be on the opposing side of federal and state agency
By Therese Ure and Lisa Mae Gage In case you missed it, on May 13, 2020, Schroeder Law Offices presented a very informative webinar regarding water right adjudications. (To view the full webinar, please visit https://www.water-law.com/webinars/water-right-adjudication/). During this webinar, attorneys Laura Schroeder and Therese Ure provided attendees with valuable information concerning water codes in Oregon
The adoption of efficient water technologies is identified as a goal under Oregon Water Resources Department’s (“OWRD”) 2017 Integrated Water Resources Strategy (https://www.oregon.gov/OWRD/programs/Planning/IWRS/Pages/default.aspx). For agricultural uses, weather-based irrigation, soil moisture controls, computer controlled irrigation, and piping and drip irrigation systems are being developed to substantially reduce the amount of water applied to land for the
The “Dark Side” of Water Efficiency: The Rise of Return Flow Injury Read More »
The Public Trust Doctrine is seeping to California’s aquifers, bringing something like conjunctive surface water and groundwater management to the state. Conjunctive management is a legal approach to managing surface water and groundwater as an interconnected resource. Often states separate the regulation of groundwater from surface water. Conjunctive management attempts to reconnect the regulation of
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
Attorney Sarah Liljefelt presented at Halfmoon’s Water Laws and Regulations seminar on June 7th 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 28th, Sarah will present at the Oregon State Bar Environmental & Natural Resources Section’s
Oregon Groundwater Presentations Read More »
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
Ninth Circuit Upholds Groundwater Conduit Theory Read More »
In 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) issued a joint administrative rule, the “WOTUS Rule,” attempting to define the statutory term “waters of the United States” within the Clean Water Act (“CWA”) in order to more clearly define the agencies’ jurisdiction. Schroeder Law Offices summarized the background and
WOTUS Rule Litigation Update Read More »
By: Lisa Mae Gage and Therese Ure On September 27, 2017, the Supreme Court of the State of Nevada issued an opinion concluding the longstanding battle between the Nevada State Engineer, Nevada Division of Water Resources and Kobeh Valley Ranch LLC (“KVR”), and Eureka County, Kenneth F. Benson, Diamond Cattle Company, LLC., and Michel and
NV Supreme Court Issues Opinion Protecting Senior Users Read More »
On June 29, 2015 the Environmental Protection Agency (“EPA”) published a new rule under the Clean Water Act, re-defining “Waters of the United States,” and sought to expand federal jurisdiction over certain water sources. The new rule was set to go into effect on August 28, 2015. Due to the implications and potential effect the
Court Grants Injunction to EPA Rule Read More »
On December 31, 2014, the Oregon Court of Appeals decided WaterWatch of Oregon Inc., v. Water Resources Department, 268 Or. App. 187 (2014). The Court of Appeals reviewed three final orders for extensions of time for municipal water permits in the Clackamas River. After contested case hearings, the Water Resources department granted the extensions, subject to fish persistence
Fish Persistence in Municipal Water Permit Extensions Read More »
Federal Judge Robert C. Jones called Schroeder Law Offices attorney Laura Schroeder and others to court today to end 29 years of litigation related to over 200 transfer applications filed by various farmers in the Newlands Project, Nevada. These transfers were tied up for years by the Pyramid Lake Indian Tribe appeals to Nevada State
Nevada Water Right Transfer Litigation Finally Ends Read More »
