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, the Nevada Supreme Court weighed in on Nevada’s conjunctive management law.

Points of Contention

With limited water availability in the arid west, it is increasingly necessary to manage both groundwater and surface water as a single management unit to protect senior water rights. However, there is an understandable reluctance on the part of some junior water rights holders to curtail water use that has gone unchecked for decades.

One point of contention is whether the best available science supports the curtailment of a junior water right– does the best available science support a finding  a specific groundwater use is depleting the source of a senior surface water right? How much can a junior water rights holder still use and not affect the senior water rights? The Nevada State Engineer will determine what constitutes “best available science.”  Is it a full-blown scientific model, or will something less suffice?

A second point of contention has been whether the State Engineer has the authority to manage the waters of the State conjunctively. We finally have the answer: In January 2024, the Nevada Supreme Court issued its decision in Sullivan v. Lincoln County Water District recognizing the power of the State Engineer to conjunctively manage surface waters and groundwater. Case Nos. 84739, 84741, 84742, 84809, 85137, 2024 Nev. LEXIS 4 (Jan. 25, 2024).

The Court’s Decision

In reaching their decision, the Court primarily relied on provisions of the Nevada Revised Statutes (NRS) (state.nv.us) prohibiting the impairment of vested/existing water rights, “regardless of the water source.” The Court noted that “[a]ll statutorily granted water rights in Nevada are given subject to existing rights” and “[b]ecause vested water rights by definition exist prior to the grant of statutorily granted water rights… no statutorily granted water right may impair vested water rights.” Id. (citations omitted). In sum, the Court found that no matter the source, ground or surface water, the State Engineer must not allow any impairment of vested water rights. Hence, the State Engineer must have the power to conjunctively manage both sources of water in Nevada.

The Court’s decision also recognizes the legislative policy declared at NRS 533.024 “which require the State Engineer to ‘consider the best available science in rendering decisions concerning the available surface and underground sources of water’ and ‘[t]o manage conjunctively the appropriation, use and administration of all waters.” As such, the Court notes these policy declarations support the finding that the State Engineer has power to conjunctively manage the waters of the State of Nevada, decisively settling years of litigation over the matter.

What’s Next?

For years the State Engineer attempted to conjunctively manage but was hamstrung by scientific uncertainty regarding the hydrological connection between groundwater and surface water sources, leading to exhaustive litigation concerning the State Engineer’s management orders. The new Model on the Humbold River, reportedly nearing completion, will be integrated into the State Engineer’s future orders that will likely be further tested in the courts. Likewise, submission of Scientific Reports in the Lower White River Flow system were presented to the Nevada Court that will now determine if these reports are sufficient substantial evidence to support the State Engineer’s regulation orders.  It will be interesting to follow the litigation to see what level of “best available science” will withstand the scrutiny of the courts.

You might be interested in this article about Nevada Water Law.

Background

Chevron deference (“Chevron”) has been a cornerstone principle of administrative law for nearly forty years. Essentially, Chevron requires courts to defer or rule in the agency’s favor when a statute is the basis for a Court’s decision on an issue before it. Under Chevron, the Court’s decision is limited to determining whether the agency’s action was permissible based on the agency’s interpretation of the statute.

The Chevron Two Step

There are two steps to the Chevron doctrine. The first step requires the Court to recognize whether the law requires or forbids the agency interpretation of a legislative directive. If the Court finds that the agency is making an interpretation within the vague boundaries of the law, then the Court cannot implement its own interpretation through statutory analysis. The second step of Chevron requires a finding that the agency interpretation is reasonable. However, if step one is satisfied then it is very likely the agency will succeed on step two.

Chevron & Herring Fishing Regulations

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. It did not accept review as to whether federal agencies correctly interpreted the law. The issue at hand arose from federal agencies requiring fishers to absorb the cost of their own third-party monitors when there are no available federally funded observers. Such third-party monitors can cost up to 700 dollars a day. These expenses result from some herring vessels spending multiple weeks at sea and the costs of private observers becomes prohibitively expensive.

Should Chevron Stand?

However, for the vast majority of interested parties, the plight of the fishermen is of little interest. The crux of the issue is whether Chevron should stand. If is overruled, then the current status of administrative law will be turned on its head. For those defending the Chevron doctrine, they believe that the judge should not be interpreting a vague legislative directive. Rather, if there are multiple reasonable interpretations, it should be Constitutional for the agency in charge of carrying out the statute’s directive to decide. Those dismissive of Chevron and its nearly 40-year legacy find the doctrine to be unconstitutional and a perversion of federal power. Allowing administrative agencies to act as the legislative branch removes the responsibility of elected representatives and entangles the branches of government.

Chevron has arguably harmed agencies and has been a negative to the American public. Agencies are quietly transformed during each Presidential administration. Agency appointees by the new administration will institute new rule making, often in direct conflict with past statutory interpretations. This apparent discrpancy is due to the vastly permissive nature of Chevron deference. Thus, Americans become ensnared within an oscillating political vacuum regarding laws that impact everyday life.

Conclusion

Agencies, courts, and the legislature have been reliant on this doctrine for decades. A full or partial overruling by the Supreme Court would result in a seismic shift in operations of administrative law. As the decision will inevitably cause change within water law, Schroeder Law will thoughtfully guide clients through these turbulent times. Follow along with the Chevron doctrine by watching for updates on our blog: Blog – Schroeder Law Offices, PC (water-law.com).

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 Sackett II. Text of the proposed bill criticizes the Court’s decision for eliminating protection for wetlands that “perform vital functions such as sorting water to help reduce flooding, improving water quality by filtering pollutants, providing critical and important habitats for aquatic and other species, and recharging groundwater that provides drinking water and contributes to downstream flow.”  

 Importantly, the Act intends to widen the definition of “waters of the United States.” Restrictions, however, do remain as to not extend federal purview to all collections of water. The greatest emphasis is on the definition of “wetlands”, the source of contention in Sackett II. If the Act were to pass, wetlands would now be defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstance do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” This definition, of course, would circumvent the narrowing of the “water of the United States” that resulted from the Sackett II decision.

While there is little evidence to believe the proposed Act will become law, it is important to be aware of new legal developments that can and will affect water rights throughout the country. Currently, the proposed bill is in the early stages of the legislative process. At this time, the House and Senate have not yet considered the Clean Water Act of 2023.

Additional Resources

For the entire text of the proposed amendment to the Clean Water Act: CWA 2023 Bill Text (house.gov)

For more information on the Sackett Decision that sparked this Act: WOTUS: a Confusing Legacy – Schroeder Law Offices, PC (water-law.com)

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? The courts have been adjudicating questions like these for year. But earlier this year the US Supreme Court gave a definitive answer – for now.

What Happened?

There is no denying the positive changes that the Clean Water Act has rendered as once flammable waters again being fishable, boatable, and even swimmable. Even so, the definition of “waters of the United States,” that defines the reach of the federal government’s regulation of water, is controversial. On May 25, 2023, the U.S. Supreme Court decided in Sackett v. Environmental Protection Agency (“EPA”)how “waters” are to be defined for purposes of the CWA.

Background

To understand Sackett, we must begin with looking at Rapanos v. United States, 547 U.S. 715 (2006). Rapanos, found there are two tests to define “waters of the United States.”

• The “Plurality Test,” a two-prong test, that defines water of the United States as “(1) a relatively permanent body of water (2) connected to traditional interstate navigable waters.”
• The broader “significant nexus test.” Under this test “the wetlands, either alone or in combination with similarly situated lands, significantly affect the chemical, physical and biological integrity of the waters understood as “navigable,” are considered among the “waters of the US.”

The Sackett Decision

These two conflicting tests did not resolve the issue.

But now the May 2023, Supreme Court decision determined that the “Waters of the United States” extend “only to geographical features that are described in ordinary parlance as ‘stream, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from bodies of water due to a ‘continuous surface connection’.” Sackett v. EPA, 143 S. Ct. 1322, 1336 (2023). This decision adopted the plurality test from Rapanos reasoning that the significant-nexus text could grant endless jurisdiction and importantly interfere with State jurisdiction. 

WOTUS as a Confusing Legacy

The Supreme Court’s decision admitted there is obvious need for exceptions to it’s bright line rule such as when there are interruptions in surface connection because of low tide or dry spells to disrupt “continuous surface connection.”  Thus, it is evident that wetlands have not seen their last day in court.

As an ever evolving body, water law can be a confusing field. Here at Schroeder Law Offices, we help our clients by finding answers and making the complex appear simple. If you have any questions about how this affects your water rights, please contact us at (503) 281-4100 or m.jones@water-law.com.

On October 3^rd, 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 regulation from the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers under the Clean Water Act.

The case originated after Michael and Chantel Sackett purchased an Idaho property near Priest Lake in 2004. After the couple began building a home on the property in 2007, the EPA informed the Sacketts that they must stop construction and apply for a permit since their land contained a wetland that was adjacent to protected waters. Since the wetland is separated from Priest Lake by a road, the Sacketts claimed that their land is not subject to the Clean Water Act’s jurisdiction and sued the EPA. What followed is a legal battle that could potentially change which wetlands are considered WOTUS going forward.

The Clean Water Act was passed in 1972 in an effort to protect waters of the United States from pollution. Since then, the extent of protections provided by the Clean Water Act has been extensively questioned and changed. These changes  have been brought about by  Supreme Court rulings, plurality and concurring opinions of Supreme Court justices, and presidential administrations, especially those of Presidents Obama, Trump and Biden. 

The basis of both the Sacketts’ and EPA’s arguments can be found in the two waters tests proposed in the 2006 Supreme Court case Rapanos v. United States. The Sacketts have relied on the plurality opinion written by late Justice Antonin Scalia to support their case, which argued that wetlands should be considered WOTUS if the adjacent channels contained a “permanent” body of water such as a river, lake, or stream. Additionally, Justice Scalia argued that a wetland can only be considered WOTUS if it featured a “continuous surface connection” with a more permanent body of water.

The EPA is relying on retired Justice Anthony Kennedy’s concurring opinion in that same 2006 case. Justice Kennedy argued that wetlands must include a “significant nexus to navigable waters.” According to this definition, a wetland does not necessarily have to be continuously connected to navigable waters in order to be protected. Instead, the wetland must have a significant effect on the “chemical, physical, and biological integrity of the Nation’s waters.”

In response to  Sackett v. EPA, many agricultural groups have shared their experiences of uncertainty and hardship brought on by the shifting definition of WOTUS over the years. The Family Farm Alliance, along with other agricultural groups, including the USA Rice and National Association of Wheat Growers and the National Corn Growers Association, submitted an amicus (“friend of the court”) brief earlier this year to voice its perspective on the matter. The brief highlights the problems farmers and ranchers have faced due to the lack of clarity regarding the Clean Water Act’s jurisdiction, which has created confusion over whether waters on their property are subject to EPA and U.S. Army Corps of Engineers regulation.

During the October 3^rd oral argument hearing for Sackett v. EPA, Justice Ketanji Brown Jackson questioned the Sacketts’ legal counsel on the  difference between “abutting and neighboring wetlands” if the goal of the Clean Water Act is to protect the nations’ waters “chemical, physical, and biological integrity.” Justice Neil Gorsuch commented on the lack of clarity in the Clean Water Act’s definition of “adjacent,” which Justice Sonia Sotomayor pointed out made some of her colleagues critical of whether the term was “precise enough.” Justice Sotomayor went on to question whether there might be “another test that could be more precise and less open-ended” than the adjacency and significant nexus tests to determine which wetlands are protected. Sackett V. EPA, 21-454 U.S. (2022)  

As of now, Sackett v. EPA is pending adjudication before the Supreme Court. Considering the scope of the case, many expect the upcoming decision to have a significant impact on both environmental interests and the agricultural industry.

To learn more about wetlands and Clean Water Act jurisdiction, check out Schroeder Law Offices’ webinar on Wetlands: Due Diligence for Ditches, Drains and Ponds. 

[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, water rights are subject to cancellation for forfeiture. ORS 540.610. Thus, Oregon’s forfeiture statute enacts the “use it or lose it” principle that is common in Prior Appropriation water system states. Water right holders must use their water rights or risk cancellation.

In the late 1980s, the Oregon State Legislature recognized instream beneficial uses for water, allowing the State to hold or lease water rights for instream purposes such as recreation, navigation, pollution abatement, and fish and wildlife. Under ORS 537.348, water right holders may temporarily lease water rights to the State for instream purposes for up to five years, renewing such instream leases thereafter. The statute provides that water rights leased instream are “considered a beneficial use.” ORS 537.348(2). As such, the forfeiture provisions of ORS 540.610 are not triggered during the period a water right holder leases their water right instream. Many water right holders use the instream lease program to safeguard their water rights in times when such water rights might not otherwise be used once every five years. The instream lease program serves dual purposes of providing instream flows while protecting private property interests in water use.

WaterWatch of Oregon v. Water Resources Department, 369 Or 71 (2021), questioned whether a hydroelectric water right could be leased instream and thereafter, once the lease(s) expired, be used again for hydroelectric or other beneficial uses of water. At issue in this case is a hydroelectric water right held by Warm Springs Hydro, LLC (“Warm Springs”). In 1995, Warm Springs’ predecessor shut down the associated hydroelectric project and began a series of instream leases from 1995 to 2020. WaterWatch of Oregon (“WaterWatch”) petitioned for judicial review of the Oregon Water Resources Department’s (“OWRD’s”) final order approving the 2015-2020 instream lease, and Warm Springs intervened.

In addition to the forfeiture provisions that are applicable to all water rights, ORS 543A.305 (enacted in 1997) applies specifically to hydroelectric water rights. The statute provides:

Five years after the use of water under a hydroelectric water right ceases, or upon expiration of a hydroelectric water right not otherwise extended or reauthorized, or at any time earlier with the written consent of the holder of the hydroelectric water right, up to the full amount of the water right associated with the hydroelectric project shall be converted to an in-stream water right, upon a finding by the Water Resources Director that the conversion will not result in injury to other existing water rights.

ORS 543A.305(3). Further, the statute specifies that the conversion to an instream water right “shall be maintained in perpetuity, in trust for the people of the State of Oregon.” ORS 543A.305(2).

Prior to this case, OWRD interpreted ORS 543A.305(3) similar to the forfeiture statute; that is, so long as a hydroelectric water right continues to be used for hydroelectric water use or another beneficial use under an instream lease, the hydroelectric water right is not subject to conversion to a permanent instream water right. WaterWatch challenged OWRD’s interpretation, arguing hydroelectric water rights are subject to conversion five years after the specific hydroelectric use of water ceases. The Marion County Circuit Court and the Oregon Court of Appeals both ruled in favor of OWRD and Warm Springs, but the Oregon Supreme Court reversed and remanded the decision on December 23, 2021.

The Oregon Supreme Court reviewed the text of the two statutes in conjunction with the context of the statutes and legislative history. The Court held “the use of water under a hydroelectric water right” means water use only for hydroelectric purposes as specified in the water right certificate, and does not include beneficial use under an instream lease. WaterWatch of Oregon, 369 Or at 88-89. The Court reasoned that once a hydroelectric water right is leased instream, the beneficial use is converted to another purpose other than hydroelectric water use. Id. at 91-94. The Court further held that “ceases” under the statute has an ordinary meaning, so Warm Springs’ water right was subject to conversion to an instream water right in the year 2000, five years after the hydroelectric project was shut down. Id. at 89-91.

The Oregon Supreme Court’s ruling will have significant impacts on hydroelectric water rights in the State. Most obviously, other hydroelectric water right holders in situations analogous to Warm Springs may face conversion of their hydroelectric water rights to permanent instream water rights. As such, property owners who believed they were appropriately safeguarding valuable water right holdings through instream leases may find themselves mistaken.

Another consequence of the Court’s decision is that instream leases over four years in length are essentially “off the table” for hydroelectric water rights. Hydroelectric water uses must resume within five years or risk conversion to permanent instream water rights. Thus, there is no incentive for hydroelectric water users to lease their water rights instream to avoid forfeiture, and, in the process, guarantee instream flows. Instead, the ruling incentivizes quick transfers to other, possibly more consumptive, water uses through the transfer process before the hydroelectric water right is converted to a permanent instream water right. ORS 543A.305(7).

Finally, conversion of appropriative water rights to instream water rights allows the State to enforce against upstream junior water users to ensure instream rights are satisfied. Conversion of large, early priority hydroelectric water rights to permanent instream purposes may have the outcome of increased regulation against other water right holders.  

The original article is available in PDF format here.

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 decisions.  Unlike a civil courtroom, where both sides have an even playing field, an individual on the opposite side of an agency decision plays on slanted turf.  The ball rolls more easily to the agency’s goal post.

The cause of the uneven playing field is “agency deference.”  Federal and state establish agencies assuming that such agencies have expertise in the field – for example, water rights or public grazing – that a permittee or civil judge does not have.  This assumption is based on a special set of statutes called the Administrative Procedures Act (“APA”). The APA contains “rules” by which agency decisions are challenged.  There are both state APAs and the federal APA that govern the different types of agencies.  The APA as it is written and interpreted by courts allows for “agency deference.”  For more, see the Capital Press article.

Schroeder Law Offices is often involved in hearings before administrative law judges. The firm has extensive experience in this realm. Recent and pertinent educational videos are found in the Water Rights Video Handbook or Guide.

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 and Nevada, the post code adjudication process, types of evidence considered in determining a pre-code vested right and general components of decrees.

One major take away from this webinar is the Sunset Date for Nevada vested claims. Pursuant to Nevada Senate Bill 270 that was enacted in 2017, Nevada now has a “Sunset Deadline” of December 31, 2027 by which all vested claims must be filed with Nevada Division of Water Resources (“NDWR”). While this deadline merely directs the date on which the Proof of Appropriation must be filed with NDWR, it is recommended that consideration be paid to researching the supporting historical information required to “Prove Up” the vested claim once the source is ripe for adjudication. For more tips on researching historical water use, please go to http://www.water-law.com/water-rights-articles/nevada-water-rights/.

Schroeder Law Offices has been providing weekly webinars for an array of water related issues during the COVID 19 pandemic. To review any previous webinars, or to sign up for any future webinars, please visit https://www.water-law.com/webinars/.

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 same use. At first glance, the adoption of efficient irrigation technology appears to be a “no-brainer” with few downsides. However, the problem can be more complex than it first appears.

A core tenant of prior appropriation is the prevention of “injury” to existing water rights by reducing water available to fulfill existing rights of use. A component of a water right is the “consumptive use” or the amount of water for which the water user loses control usually from a described place of use or otherwise does not return to the source, the excess becomes available for subsequent use. Efficient irrigation technology alters irrigation’s consumptive use and runoff, sometimes reducing the water available to other water users that were benefitting from the “waste” created by inefficient irrigation techniques.

Often, inefficient irrigation seeps into shallow aquifers, sometimes contributing to surface streams days, months, or years later as return flow. Oregon’s conjunctive management rules have attempted to jointly regulate surface and groundwater sources, as described by Oregon Administrative Rules, Chapter 690, Division 9, yet these rules do not directly account for the effects of irrigation seepage on return flows. By encouraging efficient irrigation technologies, OWRD’s strategic planning might inadvertently cause injury to downstream water users that benefit from the increased return flow due to current irrigation techniques.

The United States Supreme Court (“Court”) addressed this issue in the case Montana v. Wyoming. 563 U.S. 368 (2011). The Yellowstone Compact distributes water of the Yellowstone River, which flows north from Wyoming into Montana. Water users in Wyoming adopted the use of more efficient sprinkler irrigation systems. The sprinklers increased the consumptive use portion of the water withdrawn compared to the earlier flood irrigation where a portion of the excess seeped into the ground. Montana alleged that the switch in technologies reduced seepage and runoff by 25% in some locations while still diverting the same quantity of water. In short, Montana lost access to water due to the increase in “efficiency” by Wyoming water users.

The Court decided that the switch did not cause injury to Montana water users, since these states appeared to only apply these rules to changes in “place of diversion, place or purpose of use” and not to changes in “crop changes or day-to-day irrigation adjustments or repairs.” The Court reasoned that a switch to efficient irrigation was more like an adjustment or repair than a change that would prompt the injury analysis. Likewise, the Court reasoned that the transition to sprinklers was akin to recapture doctrines under Wyoming and Montana, which allow water users to reuse water still remaining on their land after initial use. The Court reasoned that sprinklers are a form of efficient reuse of water rather than a fundamental change in water use supporting injury. The Court decided that Wyoming water users did not violate the Yellowstone Compact by using efficient irrigation technologies, even when significantly less water flowed to Montana.

The United States Government Accountability Office has recently released a report on irrigation technologies and their effects on return flows: https://www.gao.gov/products/GAO-20-128SP?utm_campaign=usgao_email&utm_content=daybook&utm_medium=email&utm_source=govdelivery#summary. The report notes that efficient irrigation can expand the area of irrigation, enabling more production, using the same volume of water. At the same time, the report identifies that return flows might be significantly reduced and might diminish water availability for downstream users.

The key issue to consider is if water that seeps into an aquifer is considered a part of the consumptive use or whether it is returned to a source for further use. If consumption only includes the volume of water used by plants, other water users might have a right to the runoff from inefficient irrigation practices (which fits more with Oregon’s conjunctive management policies). If consumption is any water placed on the land without regard to the destination of the water applied, any reduction in return flow might not be considered an injury. As efficient irrigation practices are increasingly adopted, the dark side of decreased runoff might rise as a real issue in the future!

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

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 surface water and groundwater to better match real-world hydrological effects.

            Groundwater often supplies water to rivers, called “baseflow” within a “gaining reach,” and pumping can reduce groundwater’s contribution to surface streams. (See https://water.usgs.gov/edu/rivers-contain-groundwater.html). Likewise, surface water recharges aquifers in “losing reaches.” Regulating surface water and groundwater together is a relatively new development in water law, as legal systems catch up to modern scientific understanding. California has never adopted a groundwater code, let alone explicitly adopt conjunctive management.

            The passage of California’s Sustainable Groundwater Management Act in 2014 ushered in new planning and review scheme for groundwater use and management in the State. (https://www.water-law.com/groundwater-sustainability-plan-regulations/ ). The legislation attempts to prevent “undesirable effects” of groundwater overconsumption and bring groundwater use into a sustainable pattern. Cal. Water Code § 10721(x)(1)-(6).

            Regulation of surface water in California has been affected by the Public Trust Doctrine. Nat’l Audubon Soc’y v. Superior Court explicitly recognized that the Public Trust Doctrine would supplement statutes governing surface water. 33 Cal. 3d 419 (1983) (“Audubon”). (The Public Trust Doctrine is a well-established principle in California that the State hold certain resources in trust for the benefit of the public, and must take these principles into account when making natural resource decisions.) The case dealt with diversions from non-navigable streams flowing into Mono Lake that is “navigable” under state law. The Court found support for the application of the Public Trust Doctrine to non-navigable tributaries in previous cases like Audubon, showing that the doctrine can reach upstream to prevent harms to downstream navigable streams and lakes.

            In the recent decision Environmental Law Foundation v. State Water Resources Control Board, California’s Third District Court of Appeals held that the Public Trust Doctrine can apply to groundwater that is hydraulically connected to navigable surface waters, like a “tributary” to the surface stream. 237 Cal. Rptr. 3d 393 (2018) (“Control Board”). (Interestingly, this application of the Public Trust Doctrine implicitly favors surface water over groundwater sources, since the reasoning does not support finding surface water as “tributary” to groundwater sources).

            Until Control Board, the courts did not apply the Public Trust Doctrine to groundwater, likely on the basis that aquifers are non-navigable. The court, using the reasoning found in Audubon, found groundwater extraction in the region near the Scott River would reduce surface flows and harm public trust interests in the navigable river. In effect, the Public Trust Doctrine would extend to any groundwater source that provides water, or has stopped providing water, to a navigable surface water body.

            This follows a trend in applying surface water laws and regulations to groundwater. In Hawaii Wildlife Fund. v. County of Maui, the Ninth Circuit decided that discharges into groundwater could be regulated by the Clean Water Act. 881 F.3d 754 (9th Cir. 2018). Typically, the Clean Water Act does not apply to groundwater. See 80 Fed. Reg. 37054, 37099 (June 29, 2015). But since the aquifer was hydraulically connected to the Pacific Ocean, the aquifer was a “conduit” transporting pollutants to the sea. For more information, see: https://www.water-law.com/ninth-circuit-upholds-groundwater-conduit-theory/. Like the Public Trust Doctrine in Audubon, the Clean Water Act has begun to seep into aquifers as courts attempt to wrestle with modern hydrogeological science.

            Will these rules seep into aquifer pore spaces as well? As discussed in previous blog posts, California courts are currently deciding if aquifer pore spaces are public or private property. (See https://www.water-law.com/who-owns-an-aquifer/). The Control Board decision adds another layer to the aquifer questions in California: Is there a public trust aspect to aquifer pore spaces that potentially hold (or held) groundwater? Or does the doctrine remain confined to the groundwater alone? Keeping the doctrine out of the pore spaces would be difficult, as aquifers are complex systems of transresources. (Transresource systems are interconnected, yet distinct, resources in a dynamic relationship, see https://www.water-law.com/new-associate-attorney-jakob-wiley-defends-collective-aquifer-governance-agreements/.) Scientifically, aquifers and groundwater are in a constant dynamic relationship. The legal question remains open whether aquifer pore spaces are public, like water, or private, like the land and geological materials that make up aquifers.

            As the Public Trust Doctrine sinks into the aquifer, California courts and agencies may face pressure to implement “backdoor conjunctive management” through litigation and planning for Groundwater Sustainability Plans related to the Public Trust Doctrine. Groundwater Sustainability Agencies in California will likely have to take the Public Trust Doctrine into account as they develop and review Groundwater Sustainability Plans and make land use decisions for groundwater development. (See https://californiawaterblog.com/2018/10/07/the-public-trust-and-sgma/ ). While never adopting a groundwater code or conjunctive management regulations, California may then begin to regulate surface water and groundwater as a connected resource.

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

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.

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!

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.

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 scope of the WOTUS Rule in a 2015 blog. The WOTUS Rule was stayed in 2015. Three year later, and after a ruling from the Supreme Court of the United States, litigation over the WOTUS Rule continues. 

On January 22, 2018, the United States Supreme Court issued its unanimous opinion, written by Justice Sotomayor, which settled the jurisdictional question of where challenges to the WOTUS Rule must be filed. The Court held that challenges to the WOTUS Rule must occur in federal district court rather than courts of appeals. The case was remanded to the Sixth Circuit and dismissed for lack of jurisdiction.

This decision by the Supreme Court will likely prolong litigation on the merits of the WOTUS Rule because a decision by a district court for either party is likely to be appealed. Environmentalists have applauded the proposed changes in the rule, while coalitions like the American Farm Bureau Federation and American Petroleum Institute have said the rule will stifle economic growth and add burdensome regulation on farmers and business owners because of expansion of CWA jurisdiction.

On July 27, 2017 the EPA and Corps published a notice of a new proposed rulemaking in the Federal Register. The agencies proposed to replace the stayed 2015 WOTUS Rule with their pre-2015 regulatory procedure. The agencies solicited public comment on the proposed procedure, although, making clear they did not seek public comment on the substance of the pre-2015 rule.

On February 6, 2018, the agencies published the final rule in the Federal Register. The final rule suspends the applicability of the 2015 WOTUS Rule until February 6, 2020. The agencies assert that the suspension of the rule gives agencies the time needed to reconsider the regulatory definition of “waters of the United States.” As reported by Capital Press, the same day the agencies published their final rule a lawsuit was filed by the Attorneys General of New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia in the Southern District of New York. Another lawsuit was filed by numerous environmental groups in Charleston, South Carolina District Court. Both lawsuits challenge the two-year delay in applicability of the WOTUS Rule.

The attorneys general and environmental groups both take the same positions on two issues in their complaints. First, the parties allege the agencies failed to provide meaningful opportunity for public comment in violation of the Administrative Procedure Act (“APA”) because the agencies solicited comments solely on the procedure of the rule, proscribing comment on the substance of the pre-2015 rule. Second, the parties allege the agencies failed to consider all the relevant issues and offer a rational explanation for the suspension of applicability rule, another alleged violation of the APA.

The attorneys general and environmental groups differ in their last claim, however. The attorneys general claim that the CWA does not give the agencies authority to suspend the WOTUS Rule after its effective date passed. The environmental groups claim the agencies violated the APA by failing to publish the pre-2015 rule in the Code of Federal Regulations.

Stay tuned as Schroeder Law Offices brings you updates!

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

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 Margaret Ann Etcheverry Family LP regarding the Nevada State Engineer’s issuance of water use permits to KVR. This dispute involved KVR’s proposed future mitigation plan. After several appeals and remands before the Nevada Division Water Resources, the Seventh District Court in Eureka County and the Supreme Court of Nevada, the matter ended.

The Etcheverry family, among others, fought for over seven years to protect their senior permitted and vested water rights from the impacts proposed by a series of change applications filed by Kobeh Valley Ranch. Evidence presented before the Nevada Division of Water Resources and the Courts showed conflicts to senior users would unarguably occur. Kobeh Valley Ranch asserted that it may be able to mitigate the conflicts through a proposed future mitigation plan. Without any guarantee that a proposed future mitigation plan would in fact protect the senior rights of water users, senior users fought back. This fight ended with a Supreme Court decision upholding the prior appropriation system, protecting senior water right holders and preventing a party such as KVR from circumventing the statutory requirements put in place to protect existing rights.

After the repeated appeals and remands and dragging the parties through multiple contests and court challenges, the Supreme Court offered a reprieve finding “KVR is not entitled to a second bite at the apple after previously failing to present sufficient evidence of mitigation”… and “KVR is not entitled to a do-over after failing to provide substantial mitigation evidence.” State Eng’r v. Eureka Cty., 133 Nev., Adv. Op. 71 (2017). Although it may seem like a small win to the parties to the matter, it is also a great victory in the battle to protect our valuable water resources.

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 rule may have on private and public interests, numerous lawsuits were filed challenging the regulation. Primarily, a lawsuit was filed in the Federal District Court of North Dakota, wherein thirteen states joined the lawsuit seeking to enjoin the rule’s implementation. On August 27, 2015, the North Dakota District Court issued an order granting the request for a preliminary injunction.

The thirteen states involved in the lawsuit include Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The EPA released a statement stating that “[u]nder the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.” Therefore, until the Court rules on the issue, the EPA considers the injunction a bar to implementation of rule in Nevada, and the other thirteen states involved in the case.

For Nevada Governor Brian Sandoval’s response, please visit http://gov.nv.gov/News-and-Media/Press/2015/Sandoval-Encouraged-by-District-Court-Granting-Nevada_s-Request-for-Injunction/.

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 conditions. WaterWatch of Oregon sought judicial review of the final orders granting the extension, challenging, among other things, the adequacy of fish persistence conditions.

As a matter of first impression, the court interpreted ORS 537.230(2)(c), which states:

“[T]he department finds that the undeveloped portion of the permit is conditioned to maintain, in the portions of waterways affected by water use under the permit, the persistence of fish species listed as sensitive, threatened or endangered under state or federal law. * * *.”

After extensive review of the legislative history of the statute, the court concluded that “the legislature intended that the undeveloped portions of the permits be subject to conditions—that is, fulfillment of the conditions are a prerequisite to diversion of the undeveloped portions—that preserve from decline the continued existence, or endurance, of listed fish species.”

The court interpreted the term “maintain * * * the persistence of fish species,” to focus on the “longterm preservation or endurance of fish population health in the affected waterway. . . . It does not express a policy that no habitat may be impaired or that no individual fish may be allowed to perish or leave.” So while the conditions imposed on a municipal extension of time to maintain fish persistence are required prior to diverting the undeveloped portion of the permit, the conditions must preserve from decline listed fish species over the long-term.

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 Engineer rulings on the issues of lack of perfection, forfeiture and abandonment.

Decisions on these transfers were complicated by two factors:

1. The United States issued individual contracts for the storage water in the Newlands Project rather than through an irrigation district (now the Truckee-Carson Irrigation District); and
2. The Orr Ditch Decree and Alpine Decree issued water rights to the Newlands Project farmers in a lump acres allocation rather than describing the allowed decreed water rights for irrigation to particularly described acres.

Today’s final order from the bench at last closed the matter.  Ultimately, a few farmers gained approved water right transfers, many farmers lost water righted acres, and some farmers simply withdrew as the transfer process became too costly over the many years.  A confirming written order will follow shortly.

Today- September 30, 2009, the Federal Circuit Court of Appeals issued a major decision in favor of Stockton East Water District and the Central San Joaquin Water Conservation District determining that the US Bureau of Reclamation and the Districts have binding contracts for specified quantities of water to which Reclamation is obligated to provide.

The underlying trial court, the Court of Claims found, Reclamation failed to provide those specified quantities from 1990 to 2004.  Accordingly the Court remanded the case to determine the amount of damages owed by the US Bureau of Reclamation to the Stockton and Central San Joaquin districts.

By Attorney Therese Ure & Law Clerk Nicole Widdis

This session, the Oregon Senate passed Senate Bill 311 legislation to amend the Oregon Tort Claims Act (OTCA). The OTCA limits the amount of money damages a plaintiff can receive from a state entity in a civil wrong (aka tort) case. OTCA passed originally in 1967 without limits on tort damages committed by state actors such as officers, employees and agents of the state entity. The 1991, OTCA amendments eliminated tort claims against public officers, employees or agents, when the tort arose from an omission occurring in the performance of a duty. These amendments additionally required the state entity or public body, in lieu of the individual, to be substituted in a lawsuit as the sole defendant.

After 1991, the OTCA effectively left many tort plaintiffs in the position of suing solely the public body. Additionally in section 30.270, the OTCA limited the recoverable damages to a range of $50,000.00 to $500,000.00 (depending on the number of plaintiffs and types of damages). Parties brought suits arguing these statutory limitations violate the Remedy Clause of the Oregon State Constitution, Article 1, Section 10. This section states that “…every man shall have remedy by due course of law for injury done him in his person, property or reputation.” However, in 2002 the Oregon Supreme Court found in Jensen v. Whitlow, that the OTCA on its face (in other words, as written), was not unconstitutional.

In December 2007, the Oregon Supreme Court determined the OTCA violated the Remedy Clause of the Oregon Constitution when applied to a medical malpractice case. In Clarke v. Oregon Health Sciences University, the plaintiff’s damages totaled over $17 million. However, OTCA party limitations required Oregon Health Sciences University (OHSU) to be substituted as the sole defendant. The damages recoverable by the plaintiff under these OTCA limitations capped the damages to $200,000. The Court determined that the statute as applied in this case clearly denied the plaintiff a constitutionally sufficient remedy. However, the Court went on to say the OTCA is constitutional as written. The Court ruled that while it was legal for the legislature to limit OTCA remedies, it was not permissible to eliminate the ability of the plaintiff to sue individual defendants (OHSU employees) whose negligence might have caused the injuries.

In 2009 the Oregon Legislature addressed this ruling in Senate Bill 311 which amends certain parts of OTCA, and repeals the previous statute setting damage limitations. New damage limits range in the millions rather than thousands of dollars. Furthermore, the new legislation widens the number of parties a plaintiff in these tort cases may sue, and sets the damages limits with respect to the state, officers, employees and agents acting within the scope of their employment or duties. The legislation will regulate liability limits for the state and other public bodies, and makes clear that OHSU, a state entity, is covered by the legislation. The OTCA legislation does not allow punitive damages.

Finally, the new legislation creates a legislative Task Force to study the impact of the new legislation and the operation of other laws governing tort liability of public bodies. The new laws will take effect July 1, 2009.

Sources: Oregon Senate Bill 311, 75th Oregon Legislative Assembly. Clarke v. Oregon Health Sciences University, 343 Or. 581, 175 P.3d 418 (2007). Jensen v. Whitlow, 334 Or. 412, 51 P.3d 599 (2002).