Schroeder Law Offices does everything water, including educating others on the basics of water law, resource planning and water rights.

Recently at an educational one day “Boot Camp,” attorney Laura Schroeder covered an expansive list of water related topics for registrants from the Yamhill Soil and Water Conservation District. The class was tailored specifically to the audience’s questions and each attendee walked away with a gift certificate for a personal, free hour of consultation on water rights from Schroeder Law Offices, as well as wealth of new information.

Upcoming Water Rights Boot camps include this week with the Tualatin Soil and Water Conservation District on Thursday, November 21^st. A link to the event can be found here. 

Unable to attend this event but wanting to know more? Click here to learn about the presentation topics our office provides and how you can schedule and public or private presentation with one of our attorneys.

Starting September 29, 2019, natural gas providers in Oregon will have a new, renewable way of powering their customers’ homes. Governor Kate Brown executed a new law at the end of July, 2019 allowing capture, treatment, and conversion of methane found in wastewater into renewable natural gas (“RNG” or “biogas”), which can then be used to provide power to homes using existing infrastructure.

While converting wastewater to RNG is more expensive than fracking, biogas burns more cleanly than traditionally-obtained natural gas and provides environmental and health benefits by significantly reducing carbon emissions. Additionally, the law requires utility companies to “deliver service as cheaply as possible,” a contingency aimed at preventing a steep increase in price to the consumer.

Lane County, Oregon will begin construction of facilities to produce RNG next year. The biogas will then be sold to public utilities for distribution to their customers as early as 2021. Originally, Lane County planned to use the biogas as an alternative source of fuel for vehicles. Now, the practical potential to use biogas as a renewable resource has expanded.

With the passage of this law, biogas can be used to power homes and businesses. However, RNG has long been used throughout the State of Oregon as a source of renewable energy.

Since 1986, the Columbia Boulevard Wastewater Treatment Plant in Portland, Oregon has used biogas produced and captured at the plant to heat the plant itself, along with a nearby industrial roofing facility. Portland is also developing facilities to convert methane to biogas for use as an alternate source of fuel for diesel engine vehicles. The fuel will be sold to the public and used for City vehicles. Production is expected to begin in early 2020.

Threemile Canyon Farms near Boardman, Oregon started converting cow manure into electricity in 2009, and has expanded its facilities multiple times in the past decade. Currently, the dairy is the largest manure digester in the western United States. In 2017, it announced its plan to begin converting wastewater into RNG. In April, 2019, the Department of Environmental Quality approved Threemile’s application for a modified air quality permit, allowing it to move forward with the project.

The Durham Water Resource Recovery Facility in Washington County, Oregon repurposes wastewater in a variety of ways. The facility has captured phosphorus in wastewater and converted it to fertilizer since 2009. The fertilizer is then sold commercially around the Pacific Northwest. Since 2016, it has also converted wastewater and food grease into electricity that provides 60% of the plant’s power.

In these ways, Oregonians have been meeting Clean Water Act and Clean Air Act requirements through innovations that also provide additional revenue streams. We are excited to continue watching these industries move forward and spread to larger applications.

Stay tuned to Schroeder Law Offices’ blog for updates on these and other projects!

Reports of a broken barge lock at the Bonneville Dam on the Columbia River surfaced on September 9th. The crack was discovered last week and crews began working Monday morning on repairs. The cause of the damage is unknown. To begin the repairs, the crews must first demolish the cracked concrete section. It remains unclear, however, when the repairs will be complete.

Navigation locks allow barges to pass through the concrete dams that were built across the Columbia and Snake Rivers to generate hydroelectricity for the West. A boat will enter the lock which is then sealed. The water is then lowered or raised inside the lock to match the level of the river on the other side of the dam. When the levels match, the lock is then opened and the boat exits.

The concrete that needs to be repaired acts as the seal for the lock. The damage to the concrete at the Bonneville Dam resulted in significant leaking—enough that water levels were falling when the lock was in operation. Thus, immediate repair was necessary.

The Columbia River is a major shipping highway and the shutdown means barges cannot transport millions of tons of wheat, wood, and other goods from the inland Pacific Northwest to other markets.

Eight million tons of cargo travel inland on the Columbia and Snake rivers each year. Kristin Meira, the executive director of the Pacific Northwest Waterways Association said that 53% of U.S. wheat exports were transported on the Columbia River in 2017.

According to the U.S. Army Corps of Engineers, about $2 billion in commercial cargo travels the system annually, and it is the top export gate in the U.S. for wheat and barley and the number two export gate for corn.

This shutdown comes as terrible news for farmers in inland Oregon, Washington, and Idaho trying to ship their wheat out. Rob Rich, vice president of marine services for Shaver Transportation, said that farmers truck their wheat to 27 inland grain elevators where it is loaded onto barges headed to the Pacific Ocean. He also stated that rail and trucking are not reliable alternatives.

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

Beginning Tuesday, September 3, Schroeder Law Offices, P.C., resumes regular office hours:

Monday through Friday
8:00 am – 5:00 p.m.

Schroeder Law will be closed, Monday, September 2, to observe Labor Day.

This summer we experimented with a nine day rotation, Monday through the next Thursday, 7:30 am – 5:30 pm. The tenth day, every other Friday, either the Reno or Portland office was closed covering work for the other office alternatively.

In an emergency, please phone or email your attorney directly. Our goal is to return your call or email within 24 hours.

For the past decade, Schroeder Law Offices has provided opportunities to law students interested in learning water and natural resource law. Former SLO law clerks have established successful legal practices across the Pacific Northwest and beyond.

Schroeder Law Offices is pleased to introduce our 2019 summer law clerk, Katie Jourdan. Katie is returning to work with the attorneys and staff after having clerked previously with SLO during the fall of 2018.

Katie is entering her last year of law school at Lewis and Clark Law School, where she will complete her Juris Doctorate in May of 2020. With an emphasis on Natural Resource and Land Use Law, Ms. Jourdan has experience researching and analyzing water rights issues. Previously, Katie worked with the Western Resource Legal Center on land use and agriculture issues. She also interned with the Washington Cattlemen’s Association where she conducted research on recent land use legislation. 

Katie holds a Bachelor of Science in Environmental Studies and Journalism from Gonzaga University, where her enthusiasm for natural resources has paved her way to law school. Her background in agriculture and small farm life further nurtures an empathy for water users and the issues that rural America faces.

This summer, Katie is putting to good use her time spent in the classroom and exercising her proficiency in legal research. She is working with the attorneys and staff at Schroeder on client cases, educational presentations, and litigation preparation. In the fall, Katie will begin her final year at Lewis and Clark.

Schroeder Law Offices is pleased to announce that Attorney/Partner Sarah Liljefelt accepted the position of Water Resources Committee Chair for the Oregon Cattlemen’s Association, beginning in the coming year. Sarah has been a member of the Oregon Cattlemen’s Association for many years, and has been very active with the Oregon CattleWomen as Vice President and Legislative Committee Chair. She is excited to use her Oregon water resources knowledge to support and defend the Oregon Cattlemen’s Association’s water interests in the years to come.

Sarah’s new position was announced earlier this week when she presented at the Oregon Cattlemen’s Association’s Mid-Year Conference in Canyonville, Oregon. Sarah provided an update on the Klamath River Basin Adjudication and conjunctive surface water/groundwater management in the Klamath Basin. Some of the other highlights from the conference included an update of Western Resources Legal Center’s recent victories by Executive Director Caroline Lobdell (Sarah is a former WRLC law clerk), and a trip to Melrose Vineyards (https://www.melrosevineyards.com/) with the Oregon Cattlewomen – beautiful location, friendly staff, and great food and wine!

The year 2019 marks the 50th anniversary of the Willamette Valley Project, a tumultuous time in the history of the project. These dams are operated by the United States Army Corp of Engineers’ (“Corp”) Portland District, which utilizes 13 dams to prevent flooding and provide water storage for various water users and aquatic species in Western Oregon. (https://www.nwp.usace.army.mil/Locations/Willamette-Valley/) Since their construction, flooding like that seen in the Christmas Flood of 1964 has been rare. This April, the Willamette Valley saw substantial flooding as an “atmospheric river” overwhelmed the capacity of the dams, forcing the Corp release water at historic rates to prevent overtopping of the dams. (https://www.statesmanjournal.com/story/news/2019/04/07/oregon-flooding-willamette-river-santiam-river-eugene-salem/3393877002/). As these dams were created specifically to prevent flooding, what went wrong?

The various interests in water stored in these dams leads to considerable controversy over how to operate the Willamette Valley Project dams. Combined, these dams hold 1.6 million acre-feet in the summer months for various uses including municipal, irrigation, and hydropower. The controversy in operations relates to these uses. For example, storing additional water in the dams benefits electricity production and recreational boating uses (requiring high lake levels), but harms aquatic species and irrigators. Releasing the stored water during the summer reduces electricity production and leaves little for migrating salmon in the fall, but provides irrigation for many Willamette Valley farms. The Corp is left to balance these competing interests for the use of “conservation storage” (the water stored for use in the summer months).

Recently, the Corp considered reallocating water between theses interests, which focuses primarily on how to use the water stored in the summer months. We have discussed this potential reallocation here: https://www.water-law.com/study-willamette-valley-project-reallocation/. The allocations of uses between these interests has not been reconsidered since the original construction of the dams. (The Capital Press recently covered the discussion here: https://bit.ly/2IyzCfr). While the reallocation will determine how stored water is used, the dam regulation curves determine when the dams are emptied and space is made for flood mitigation.

Flood control is another “interest” competing for the Corp’s attention and a reservior’s capacity. In the winter, these dams are emptied to allow the space to be used to absorb the brunt of storms. In the spring, the dams are gradually refilled up to their maximum operating capacity during the summer, for use for power and water storage. The image to the right depicts the regulation curve for the Cougar Reservoir, which stores water from the South Fork of the McKenzie River. The Corp developed the operating curve for the Cougar Reservoir in 1964, located in the Cougar Reservoir Regulation Manual. (https://bit.ly/2PtpANm). Each dam has its own manual, determining how and when water is released from the reservoir. While the allocation determines how stored water is used, the “conservation storage” hump determines when, how much, and for how long the dams are filled.

This year’s atmospheric river struck on April 7-8, 2019, just as these dams were being filled for use as summer storage. While not at “max conservation pool” level (occurring around May 1), the dams were approaching their upper limits. Cougar Reservoir, for example, was at around 494 meters (1620 feet) before the storm and according to its operating curve, the reservoir should have been around 500 meters (1640 feet) (seen in the graph to the right, reservoir levels are measured by elevation to sea level, not depth). After April 12, 2019, the South Fork of the Willamette River discharged between 3,000 and 5,000 cubic feet per second (“cfs”) compared to its typical average of about 400-800 cfs at this time. (https://on.doi.gov/2Izcf5n). By April 13, 2019, Cougar Reservoir levels had shot up to nearly 515 meters (1690 feet), the maximum summer flood control level shown in the regulation curve above, several weeks early. By releasing record volumes of water from these dams, and using up any remaining storage capacity still available, the Corp prevented overtopping of the dams at the cost of downstream riparian landowners.

Water releases over this period prevented an overflow, but opens the question of whether more flood control space may be required for spring storms in the future. When the reservoirs are full late in the season, the Corp has little choice but to open the gates, flooding downstream homes, farms, and cities. Calls for changing the Corp’s dam regulation curves may also come alongside the calls to reallocate stored water, adding even more controversy for the Willamette Valley Project near its 50^th birthday.

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

At the 41^st Oregon Association of Water Utilities (OAWU) Annual Management and Technical Conference, Attorney Laura Schroeder was presented with the “Friend of Rural Water” award on March 6, 2019. To win this award, the individual must constantly “go above and beyond the call of duty” OAWU recognizes “a friend” as one who represents OAWU through “their work ethic, integrity, leadership and the servant attitude that they regularly demonstrate.”  Laura was quite surprised and honored to receive this award from OAWU where it is proudly displayed at Schroeder Law Offices, PC’s Portland, Oregon office.

            The Oregon Water Resources Department (“OWRD”) will present proposed temporary rules to the Water Resource Commission that would place a temporary hold on Upper Klamath Basin well regulation for two years, during which time OWRD would only regulate off wells within 500 feet of surface water sources in response to validated calls for water. Since the administrative phase of the Klamath Basin Adjudication concluded in 2013, groundwater users have challenged OWRD’s application of Oregon’s conjunctive management rules to wells in the Klamath Basin. The deluge of litigation has cost the OWRD millions of dollars and does not appear to have an end in sight.

            OWRD may be offering a temporary truce to groundwater users while the agency reviews and determines a “longer term approach” to water management in the Klamath Basin. The temporary rules, expected to go into effect in April, would remain in effect until March 1, 2021. The proposed rules would eliminate the rules adopted in preparation for the defunct Upper Klamath Basin Comprehensive Agreement (“UKBCA”), and replace them with deceptively simple rules for regulating calls for water. The Upper Klamath Basin has been regulated under original Division 25 and Division 9 rules since 2013, and the proposed temporary rules propose a third regulatory regime in under a decade, with a fourth to be revealed in two-years time. If no new rules are adopted by March 1, 2021, regulation would revert to the conjunctive management rules under OAR Division 9. The proposed rulemaking is available at the following link: https://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice&notice_item_id=8113.

            Under the prior appropriation doctrine, when a water user makes a call for water, OWRD’s watermasters investigate to validate the call. Junior water users may be ordered to shut off water use to allow senior water users to receive their full delivery of water. Oregon’s conjunctive management rules are designed to allow regulation of hydraulically connected surface water and groundwater as a single source of water. Oregon’s conjunctive management rules have historically been found in OWRD’s Division 9 rules (Oregon Administrative Rules Chapter 690 Division 9). However, a portion of the Division 9 rules were superseded by original Division 25 when those rules were in effect.

            The Division 9 rules require, under certain conditions, that water use rights appropriating water from groundwater sources be regulated in priority with surface water use rights when a valid, senior “call” is made. Unless the well drawing from an unconfined aquifer is within one-quarter mile of a surface water stream, OWRD must find that the source of water appropriated by the well is “hydraulically connected” to the surface stream, meaning that water can move between the surface water stream and the adjacent groundwater aquifer. OWRD presumes any well closer than one-quarter mile is hydraulically connected to the surface stream. Further, wells are presumed to cause “potential for substantial interference” if they are (1) within one-quarter mile of a stream, (2) the appropriated rate of groundwater use is greater than 5 cubic feet per second, and within one mile of the stream, (3) the appropriated rate of groundwater use exceeds 1% of a pertinent adopted minimum perennial streamflow or instream water use right, or the natural flow of the surface water source that is exceeded 80 percent of the time, or (4) continued use of the well for 30 days would result in stream depletion greater than 25% of the well’s rate of appropriation.  Stream depletion is calculated using computer modeling, the method for which OWRD has substantially changed over the last several years, creating a moving target for water users wishing to challenge OWRD’s application of the rules to their groundwater uses. Under Division 9, wells located over one mile from surface water sources may only be controlled through designation of a critical groundwater area.

            OWRD’s proposed temporary rules are designed to operate in lieu of Division 9 for the Upper Klamath Basin. Rather than merely putting the majority of groundwater regulation on hold while permanent rules are considered and adopted, OWRD’s proposed rules factually declare that all groundwater sources are hydraulically connected to surface water in the Klamath Basin, and that all wells that withdraw groundwater in the Klamath Basin reduce groundwater discharge and surface water flow. Since these factual findings are totally unnecessary for the purpose of temporarily staying regulation while enacting permanent rules, many view the rules as an attempt by OWRD to cut off current and future legal challenges to OWRD’s regulation of groundwater wells. Under the Oregon Administrative Procedures Act, state agencies are afforded a degree of deference by courts to their factual findings and legal conclusions, and OWRD’s efforts to make the aforementioned findings—findings that are currently disputed by the scientific community—have the (likely intended) effect of garnering support for a claim of deference by OWRD in legal disputes. Moreover, and perhaps most troubling, OWRD’s proposed rules state that OWRD can regulate off a groundwater user if interference “impends,” meaning the junior water user need not even be interfering with the senior water user’s right to be regulated off by OWRD. This provision is in clear contradiction with the Oregon Ground Water Act that requires actual “impairment or interference,” rather than mere speculation, prior to regulation. ORS 537.525(9).

            Many water users oppose the new rules, realizing that the inducement of temporary regulatory relief will come at a very high price that will likely eradicate groundwater irrigation of agriculture in the Upper Basin. Because the rules also determine that all wells in the Klamath Basin are hydraulically connected to surface water, the temporary rules remove the threshold question that allowed Division 9 rules to apply to an even larger area than previously implicated by the rules. (See: https://www.capitalpress.com/ag_sectors/water/scaled-back-klamath-groundwater-regulation-debated/article_8e22ab30-23fb-11e9-951c-33070f078fa7.html?utm_source=Capital+Press&utm_campaign=6366754200-EMAIL_CAMPAIGN_2019_01_30_05_40&utm_medium=email&utm_term=0_3bfe2c1612-6366754200-241522174.) Other persons have criticized OWRD’s temporary rules for harming downstream senior surface water users, like the Klamath Tribes that hold senior surface water rights. (See: https://www.heraldandnews.com/members/forum/letters/proposed-groundwater-drilling-rule-unsustainable/article_77126c71-c978-5ade-9be3-82c025359f40.html.)

            Under OWRD’s application of the Division 9 rules (which is currently being challenged in court), 140 wells in the Klamath Basin would be subject to regulation. Under the proposed temporary Division 25 rules, only 7 wells would be regulated until March 1, 2021. Over the next two years, OWRD asserts it will continue to study the hydrogeology of the Upper Klamath Basin and enact permanent rules to replace the temporary Division 25 rules. The water wars in the Klamath Basin continue, and groundwater users may get a very short period of relief from regulation while OWRD once again moves the bar for how OWRD will regulate off groundwater users in the Upper Klamath Basin.

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

At the end of 2018, the Oregon Water Resources Commission adopted new rules to facilitate small municipal water suppliers’ completion of Water Management and Conservation Plans (“WMCP”). The Oregon Water Resources Department (“OWRD”) stated the new Oregon Administrative Rules (“OAR”), OAR 690-086-0300 to 0370, are intended to provide more flexibility for small municipal water suppliers to meet water conservation and curtailment objectives. Small municipal water suppliers in turn hope the new rules will reduce complexity to lessen the financial and staffing challenges previously associated with completing a WMCP.

WMCPs are only required to be submitted to OWRD if required by a water right permit condition, a Final Order approving a permit extension of time, or a Final Order approving a previous WMCP. While WMCPs are otherwise optional, OWRD encourages submission as a way to pursue long term water supply planning.

A Small Municipal Water Supplier is defined under the new OARs as: (1) a municipal water supplier that serves a population of less than 1,000 people or has less than 300 service connections, and (2) within the previous 5 years, the system’s maximum daily demand or maximum instantaneous rate, has not exceeded 2 million gallons per day or 3.1 cubic feet per second.[1] If a water supplier satisfies that definition, then it may be able to complete an “Alternate Municipal WMCP” in accordance with the new OARs.

Rather than submitting a regular WMCP, an Alternate Municipal WMCP may be submitted by a Small Municipal Water Supplier, if in order to meet current and projected demand in the next 10 years the supplier will not need to:

• Acquire a new water right; or
• Expand or initiate diversion of water allocated under an Extended Permit.[2]

Another notable change in the WMCP OARs is the revision to the annual Water Audit provisions. If a Municipal Water Supplier notes Water Losses exceed 10 percent within 2 years of approval of its WMCP, the supplier must undertake steps to explain the losses and remedy the situation.[3] However, Small Municipal Water Suppliers completing an annual Water Audit need only remedy losses if the Water Losses exceed 15 percent and the supplier serves a population greater than 300 people or has more than 100 service connections.[4]

Therefore, Small Municipal Water Suppliers that must soon complete a WMCP should determine whether an Alternate Municipal WMCP is appropriate, and what impact the new OARs will have on the supplier as it completes its WMCP. Schroeder Law Offices frequently works with municipal water suppliers and consultants to ensure WMCPs comply with the OARs and to assist in obtaining OWRD’s approval.

[1] OAR 690-086-0030(8).

[2] OAR 690-086-0300(1).

[3] OAR 690-086-0150(4)(e).

[4] OAR 690-086-0350(4)(e).

It’s that time of year again! As 2018 draws to a close, Schroeder Law Offices wants to remind Oregon water users that the deadline to submit water use measurements to the Oregon Water Resources Department (“OWRD”) is December 31, 2018.

Many permits and certificates for both surface and groundwater rights contain language specifying the type of meter and frequency of measurements and reporting required in order for the user to remain in compliance with the terms of their water use rights. These requirements are typically along the lines of:

Before water use begins, the user must install a meter or other suitable measuring device approved by the Director at each point of appropriation or diversion. After use begins, the user must maintain the device in good working order.

The user must keep a monthly record of the volume of water diverted, and submit a report which includes these measurements to the Department annually, or more frequently if required by the Director. Further, the Director may require the user to report general water use information, including the place and nature of use of water under the permit.

Not all water users are required to report their water use; therefore, it is important to be aware of the conditions set forth in your permits and certificates and to make sure you remain in compliance.

If the water use reporting condition is included, you can find the reporting form on OWRD’s website here. You can also report your water use online here. You will note that the “water year,” as outlined in the reporting form, runs from October through September, annually.

Schroeder encourages water users with this condition to take meter readings at the end of each month and to keep that information in their files along with a copy of the reports submitted to OWRD annually.

Stay tuned to Schroeder Law Offices’ blog for more helpful tips and reminders, and don’t forget to submit your reports by December 31, 2018!

Schroeder Law Offices’ paralegal Tara Jackson spent a sunny weekend with fellow members of the Oregon Ground Water Association in August camping at beautiful Pelton Park for the Association’s annual Picnic/Camp out. The event is held by the Association every summer in appreciation of its members and provides a much needed respite for water professionals to unwind during an extremely busy time of year for the industry.

Friday night features a pot luck meal with prizes for the best dishes. Tara’s submissions have yet to win, but she will keep trying! Saturday is equal parts competition and relaxation! Many families spend the day on and in the waters of Lake Simtustus. Tara represented Schroeder Law Offices for the first time this year in Saturday morning’s annual horseshoe competition as the only female competitor. While the competition is all in good fun, there are some very serious competitors and teams are made by the luck of the draw. Luckily, Tara’s teammate was good enough and good-natured enough to carry her, despite the fact she had never before thrown a horseshoe. Perhaps some practice is needed before next year!

The theme this year was “Under the Big Top…come one, come all.” Both kids and adults had a great time dressing up in clown garb for photos, while enjoying Oysters on the BBQ, a much loved tradition of the Picnic. Campers enjoyed brisket and traditional BBQ sides for Saturday dinner.

During the dinner program, the Memorial Fund announced winners of its annual scholarships. Ryan Weaver won the fifteen hundred dollar 2018 Memorial Fund Scholarship and Emily Gill won the fifteen hundred dollar Family in Business Scholarship. These scholarships are only available to Association members, family members of an Association member, employees of an Association member, or direct family of an Association member employee, thus are a great resource for members of the Association. Applications for these scholarships are available on the Association’s website and are due April 1 of each year.

Following dessert and bingo (with prizes) campers dispersed to various campsites for further revelry. The campfire ban imposed due to a very tenuous fire season in Oregon this summer failed to quell the merriment.

As always, this was a great event. It is always nice to have a chance to interact with fellow Association members outside of a formal environment. Thank you Oregon Ground Water Association Picnic Committee for putting on such a lovely event for the Association membership!

On October 23, 2018, President Trump signed America’s Water Infrastructure Act (“AWIA”), also known as the Water Resource Development Act, into law. This bipartisan bill, which previously passed the House of Representatives on September 13, 2018 and the Senate on October 10, 2018, aims to improve dams, levees, ports, and waterways throughout the United States. It also amends the Safe Water Drinking and allocates funds toward more efficient and sustainable water quality control and management, particularly in underserved communities.

As its name might suggest, one of AWIA’s main goals is to improve America’s water systems. Under AWIA, the U.S. Army Corps of Engineers will receive around $3.7 billion to plan, study, and develop water projects to alleviate strain on existing infrastructure. In the Northwest, the Port of Seattle is specifically slated to undergo construction to improve navigation channels, as are several other key ports around the United States. AWIA also has specific provisions that focus on flood protection measures on the Snake River and levee improvements in Clatsop County, Oregon, among others.

One of the most notable aspects of AWIA is how it addresses the ongoing water shortages in Northern California/Southern Oregon’s Klamath Basin. AWIA provides a much-needed $10 million annuity to the Bureau of Reclamation to address ongoing water issues in the Klamath Basin, and provides avenues for farmers to make use of Klamath Project canals to deliver water to their farms. AWIA also focuses on increasing efficiency and sustainability of hydropower and delivery of affordable electricity to those same farmers.

Stay tuned to Schroeder Law Offices’ blog for more updates on AWIA’s progress and impacts on water in the Northwest and the United States!

Schroeder Law Offices is celebrating 27 years of representing water users in the West! To celebrate, SLO’s attorneys and staff from several states will travel to Portland, Oregon for an Oktoberfest party at the Portland City Grill to thank our clients, consultants, friends, and families for their contributions to our success over the years. SLO will also be celebrating attorney Sarah Liljefelt as its newest shareholder, attorney Lindsay Thane’s admission to the Montana Bar, and our newest attorney in our Portland office, Jakob Wiley. As part of the weekend event, the SLO crew will visit a farmer and food processor client in the Willamette Valley to learn more about their operation. We are all very excited for the opportunity to spend time with the members of SLO from different states!  

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.

Authored by: Valley Urricelqui

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[4] Id.

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

[6] Columbia River Treaty.

[7] Id.

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