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!
Oregon Law Prohibiting Motorized Mining in Salmonid Habitat Is Not Preempted by Federal Law
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While the litigation progressed, the Oregon legislature passed Senate Bill 3, which repealed Senate Bill 838; however, the litigation continued as a challenge to Senate Bill 3.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).
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:
Type of Cattle
Gallons Per Day (GPD)
Heifers & dry cattle(females that are not pregnant
*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.
Careful of Self-Imposed Water Use Conditions
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.
Drought Declarations and Wildfire Season
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.
Oregon Groundwater Presentations
Attorney Sarah Liljefelt presented at Halfmoon’s Water Laws and Regulations seminar on June 7th on the topic of Oregon Groundwater, teaching a group of engineers about groundwater ownership, regulation, and acquisition of groundwater use rights in Oregon. This week, on June 28th, Sarah will present at the Oregon State Bar Environmental & Natural Resources Section’s “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!
Columbia River Treaty Negotiations Begin
Map from U.S. Bureau of Reclamation
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.
Every year there are significant cases that affect water resources law, as well as administrative and legislative actions that impact the use of the water resource. We endeavor to stay apprised of such changes and the impacts such changes will have on our clients and the industries in which our clients work. As a part of such work, Schroeder Law Offices’ Portland attorneys wrote the 2017 Oregon Year in Review for the Water Resources chapter of the American Bar Association’s Environment, Energy, and Resources Law: The Year in Review 2017 publication.
The American Bar Association works with local attorneys in every state to determine the notable changes or occurrences affecting water resources in their state, from a legal perspective, and then publishes those updates in their annual Energy, Environment, and Resources Law Year in Review publication. The Year in Review 2017, Water Resources chapter is available here: https://www.americanbar.org/content/dam/aba/publications/yir/2017/YIR17_24_wr.authcheckdam.pdf.
Water use conditions in the Klamath Basin continue to worsen in 2018. On March 8, 2018, a water “call” was made in the Klamath Basin, and the Oregon Water Resources Department (“OWRD”) began the validation process for shutting off junior water users. Within the week, on March 13th, Governor Kate Brown declared a drought in Klamath County, Oregon, the first drought declaration since 2015, coming much sooner than hoped or predicted.
In April, OWRD began regulating off water users in the Klamath Basin. On April 13, the Oregon Water Resources Commission approved temporary emergency rules granting a preference to water rights for human consumption and stock watering in Klamath County. The rules allow certain water users with water rights for human consumption and stock watering to continue using surface water for such uses despite OWRD’s regulation off of water use rights. Exempt uses of groundwater, including domestic and stock uses, may also continue despite OWRD’s regulation. The Commission passed similar temporary rules granting the same preferences during the last drought period.
Also in April, Klamath Project water users found themselves unable to begin irrigating due to a federal court injunction. The Hoopa Valley and Yurok Tribes in northern California previously brought suit against the Bureau of Reclamation and National Marine Fisheries Service in federal court, alleging mismanagement of the Klamath River below the four major dams lead to an outbreak of C. shasta, a parasite that infects juvenile Coho salmon. The court entered an injunction requiring 50,000 acre feet of water stored in Upper Klamath Lake to flush and dilute the parasite until most of the salmon have migrated to the ocean, usually occurring after the beginning of June. Irrigators and irrigation districts petitioned the court to lift the injunction, but the court declined to do so in 2018. For more information, see May 1 article from the Capital Press, Judge upholds Klamath River Injunction.
In May, the Klamath Irrigation District brought suit against OWRD, seeking to compel the agency to take exclusive charge of Upper Klamath Lake to distribute water according to the district’s water use rights determined by the agency in the Klamath Basin Adjudication. The district alleges that it disagrees with the Bureau of Reclamation and PacifiCorps as to the proper distribution of water, and those entities are releasing without valid water use rights, causing injury to the district and its patrons.
Also in May, the Klamath Tribes filed suit in federal court in northern California against the Bureau of Reclamation, US Fish & Wildlife Service, and National Marine Fisheries Service, alleging violations of the Endangered Species Act and National Environmental Protection Act by failing to maintain appropriate elevations in Upper Klamath Lake. The Tribes seek declaration of the alleged violations, an injunction against further jeopardy and habitat modification, and for the agencies to reinitiate consultation resulting in a new biological opinion.
Finally, on April 27, 2018, the Klamath County Circuit Court issued a Case Management Order in the Klamath Adjudication, outlining a schedule for hearing the first substantive exceptions filed with the court since the judicial phase of the adjudication began in 2013. First the court will decide exceptions made against federally reserved water claims, excluding Tribal claims. Next, the court will decide exceptions against Walton and Klamath Termination Act claims. Third, the court will decide exceptions to Tribal claims. Numerous exceptions have been filed with the court, alleging OWRD awarded too much water to these claims, ignoring the pertinent legal standards for deciding these claims, to the detriment of other Klamath Basin water users. A decision on the first group of exceptions is not anticipated until 2019.
The Upper Klamath Basin Comprehensive Agreement was terminated on December 28, 2017. The agreement called for retirement of irrigation rights to increase stream flows into Upper Klamath Lake by 30,000 acre feet per year. This “retirement” (or cancellation) of water use rights, which was negotiated largely in the absence of upper basin irrigators, was viewed unfavorably by many of the affected irrigators, and was ultimately not funded by Congress. Discussions about alternative agreements continue to this date.
Overall, the return of drought conditions, coupled with fish disease and five years of merely procedural rulings in the Klamath Basin Adjudication, have left water users in the Klamath Basin in serious trouble.
Schroeder Law Offices Presents at OAWU’s 3rd Annual Mini Expo
On Wednesday, May 16, attorney Lindsay Thane and paralegal Rachelq Harman attended the Oregon Association of Water Utilities’ (OAWU’s) 3rd Annual Mini Expo in Rickreall, Oregon. At the Expo, they had the opportunity to meet with representatives from water districts and municipalities from across the state of Oregon. Lindsay taught an hour-long class on public meeting laws and regulations. The presentation highlighted some of the aspects of community involvement that aren’t always at the forefront of our minds. Lindsay and Rachelq also manned the Schroeder Law Offices booth, where they were able to talk one-on-one with attendees and provide some very useful water conversion magnets to boot.
Attorney Lindsay Thane teaches Expo attendees about the finer details of Public Meeting Law
While the Mini Expo is now past, OAWU puts on events year-round. You can find their events calendar here. Schroeder Law is keeping busy too! Classes and seminars are scheduled throughout the summer. You can check out the complete list here.
Stay tuned to Schroeder Law Offices’ Blog for more news and events!
Schroeder Law Offices Educates Youth at 2018 Oregon Ag Fest!
This past weekend, thousands of families and agriculture enthusiasts attended Ag Fest at the State Fairgrounds in Salem, Oregon. The April 28-29, 2018 event marked the annual fest’s 31st anniversary.
The event features local organizations and locally grown products to teach children (and by proxy some adults) about Oregon agriculture. Kids learn where their food, fiber, and flora come from by taking part in educational activities offered by organizations at booths scattered throughout the indoor buildings, and can interact with animals in the barn! Kids get to take home a variety of free plants and crafts to continue the learning process.
Schroeder Law Offices’ members have participated in the event for years by working the booths for various organizations. This year Tara Jackson helped kids plant radishes and bean starts for home gardens at the Oregon Women for Agriculture booth and quizzed kids on water-related trivia at the Oregon Ground Water Association booth.
Mark your calendar now for next year’s Ag Fest. You do not want to miss this wonderful, fun, and low cost event. For more details click here.
Stay tuned to Schroeder Law Offices’ Blog for information on more community events!
Vicki Hamstreet of Yamhill County Chapter of Oregon Women for AgOregon Women for Ag booth
Schroeder Law Attends Oregon Women for Agriculture’s 31st Annual Auction and Dinner
On Saturday, April 21, 2018, members of Schroeder Law Offices’ Portland office attended the Oregon Women for Agriculture’s 31st annual auction and dinner, at the Linn County Fair and Expo Center. This year’s theme was “Good Things are Growing.” Schroeder Law partnered with Country Side Nursery and Fairdale Nursery to donate a large Japanese maple and pot to the organization’s auction. Benefits and proceeds from the auction go to Oregon State University’s Ag Honors Scholarships, Crop identification signs, and the Oregon Agriculture in the Classroom Foundation.
Increased Spill Beginning at Federal Columbia River Power System Dams
The Ninth Circuit Court of Appeals affirmed a U.S. District Court opinion requiring the Army Corps of Engineers to increase spill at dams on the Federal Columbia River Power System (“FCRPS”) to the maximum spill levels that still meet total dissolved gas criteria allowed under state law. The increased spills required by the District Court’s order and affirmed by the Court of Appeals began on April 3, 2018. The Court of Appeals’ decision is available here.
The Court of Appeals’ decision in National Wildlife Federation v. National Marine Fisheries Service is the most recent decision in this case, which has been ongoing since 2000. The decision stems from a challenge to the National Marine Fisheries Service’s (“NMFS”) 2014 Biological Opinion (“BiOp”) that concluded operation of the FCRPS dams would jeopardize salmon and steelhead species (“listed species”) listed under the Endangered Species Act (“ESA”). Because NMFS’s BiOP concluded operation of the FCRPS dams would jeopardize the listed species, pursuant to NFMS responsibilities under the ESA, NFMS proposed an alternative action that included, among other measures, some spill over the FCRPS dams as a means to avoid jeopardizing the listed species.
However, in 2016 the District Court found NMFS’ violated the Endangered Species Act when NMFS concluded the alternative in the 2014 BiOp did not jeopardize the listed species. The District Court gave NMFS until March 1, 2018 to issue a new BiOp. (This deadline was later extended to December 31, 2018.) However, in January 2017, the plaintiffs moved for injunctive relief, requesting the District Court order additional spill at the maximum level from April through June at dams along the FCRPS. In April 2017, the District Court granted plaintiffs’ injunctions and ordered increased spills to take effect April 3, 2018. The District Court’s decision was appealed to the Ninth Circuit Court of Appeals.
The Court of Appeals issued its decision upholding the District Court’s order requiring increased spills on April 2, 2018, the day before the increased spills were to begin. The Court of Appeals found the District Court did not err under the ESA in finding the plaintiffs had shown the listed species would suffer irreparable harm sufficient to order the increased spill. Nor did the Court of Appeals find it error that the District Court analyzed the harm that would be caused to the listed species in operation of the FCRPS dams as a whole, rather than focusing only on the spill related components of the BiOp alternative NMFS selected.
As irrigation season begins in the areas of the Columbia and Snake Rivers that rely on the water flowing through the FCRPS, and as the increased spills begin to take effect, some congressional leaders in the affected states are attempting a congressional solution to negate the effects of the court decisions. House Bill 3144, introduced by Representative Cathy McMorris Rodgers (R-WA) in June 2017, reported out of the House Committee on Natural Resources on April 11, 2018. It remains to be seen if and when H.R. 3144 may be scheduled to be heard on the floor of the House of Representatives; however, the Court of Appeals’ decision has, and any outcomes from H.R. 3144 will have, immediate impacts on water rates and utility rates for irrigators and residents throughout the Pacific Northwest. H.R. 3144 is available here.
(Photo: Lake Koocanusa, Libby, MT)
Oregon Ground Water Association Celebrates 70 Years!!
At its February Spring Technical Seminar, the Oregon Ground Water Association celebrated 70 years as an Association. Laura Schroeder and Tara Jackson helped the Association celebrate its many years of successful advocacy to promote sustainable ground water development and management.
The anniversary banquet featured stories from patriarchs of the industry, complimented by a slide show of photos to jog memories even further. Scrap books were also on hand memorializing past events and Association members had a great time thumbing through the books.
It is Schroeder Law Offices’ pleasure to be a member of the Oregon Ground Water Association. The Association represents generations of family businesses that have provided access to groundwater for homes, farms, and businesses. The Association is actively engaged in the State legislative and rule making process and through the Association its small business members have a big voice at the State Capital.
Thank you Oregon Ground Water Association for 70 years of advocating for your members by informing our legislature and State agencies about the real world consequences of laws and polices!
Visit OGWA’s website for more information about the Association
.
SOLVE-ing Litter, One Piece at a Time
One of the greatest luxuries we are afforded in the Pacific Northwest is the abundance of natural areas to explore. Oregon’s landscape provides us with easy access to mountains, rivers, lakes, forests, and, of course, the Oregon Coast. Unfortunately, as anyone who has spent time in these regions can attest, where people go, debris follows. Some of the litter is left intentionally, like cigarette butts ground into the sand or food wrappers thrown out of the window of a moving car. Some accidentally works its way out of pockets or backpacks and gets left behind on the trail. Either way, we can all agree that nothing breaks the tranquility of time spent in the great outdoors than seeing a soda bottle or old receipt laying on the ground.
Another great thing about the Northwest, though, is that we care enough to do something about it. Organizations across the state work to bring people together to clean up their communities and public lands to ensure that everyone is able to fully enjoy them. One of the major statewide organizations is SOLVE. Since 1969, SOLVE has organized volunteers from all over the state of Oregon to remove litter and invasive species from natural spaces through a variety of events hosted throughout the year.
Last Saturday, March 24, 2018, SOLVE held its annual beach cleanup and, according to its website, removed over 15,000 pounds of garbage up and down the Oregon coast. Schroeder Law Offices’ paralegal, Rachelq Harman participated in Manzanita, Oregon, where an impressive turnout of locals and out-of-towners alike gathered to clean up the beach.
Rachelq Harman helps clean up the beach at the 2018 SOLVE Beach Cleanup
Participating in the beach cleanup and seeing how much trash lingers even when a concerted effort is being put in has inspired Rachelq to seek out more opportunities to help clean up and maintain our beautiful state. While you certainly don’t need a group or event to get out and do some good, SOLVE keeps a list of upcoming opportunities posted on its website that anyone can take part in, though some do require preregistration.
April is Earth Month, and one of SOLVE’s biggest events, SOLVE IT for Earth Day, is coming up on April 21, 2018. Events will be held throughout western Oregon and southwest Washington. For details about specific meetups, you can check out the list here.
Stay tuned to Schroeder Law Offices’ Water Law Blog for more news and events!
Schroeder Law Hosts Lewis & Clark “1L” Reception
On Thursday March 15, 2018, Schroeder Law Offices’ Portland office hosted first year law students for an annual “1L” (first year law student) reception, to learn more about our office and our water law practice. The students met with each attorney, Sarah Liljefelt, Laura Schroeder, and Lindsay Thane to learn about each of their practices at SLO. Next, Schroeder Law held a social gathering that allowed the law students to meet with the entire office.
The 1L reception program allows first year law students to tour multiple law firms, learn more about what each firm does, and begin to think about their career goals after law school. It also provides a “foot in the door” with potential employers for summer law clerk positions and eventual associate positions.
If you or someone you know is looking for a summer law clerk position and is currently a 2L or 3L student, Schroeder Law Offices’ Portland office is currently hiring. Click here to learn more.
Well Level and Water Use Measurements Reminder
As the 2018 irrigation season approaches, and on this eve of March 1st, please remember to review your water use right permit and certificate documents to remind yourself of any measurements you are required to take!
Many water use permits and certificates require you to track your water use each month and then report your monthly use annually to the Oregon Water Resources Department. For more information about recording and tracking your monthly water use, please visit the Department’s Water Use Reporting page.
Many groundwater use permits and certificates require that a qualified individual record and report the water level in each well under the permit or certificate. This measurement is often referred to as a “static” water measurement. Typically, the measurement must be taken in March and reported within 30 days after it is taken, however you should review your permit or certificate closely to determine if you are required to report and when. Your permit or certificate document will also tell you who is qualified to take this measurement.
Additionally, while not outlined in your permit or certificate, those of you located in a Critical Ground Water Area are required to record weekly flow meter or power meter readings. The Department just released a new map showing groundwater area information that is helpful in determining if these rules apply to you.
Remember, complying with permit and certificate and statutory measurement conditions keeps your water use rights in good standing, making them more valuable to your property!
Stay tuned to Schroeder Law Offices’ blog for more timely reminders this irrigation season!
Oregon Water Resources Department’s Development Program
Do you need funding for a water related study or water use project? The Oregon Water Resources Department’s Development Program is part of Oregon’s 2017 Integrated Water Resources Strategy. The program helps individuals and communities address instream and out-of-stream water needs now and into the future by providing funding opportunities for planning and investing in water use projects. The program is now accepting applications for two funding opportunities: Water Project Grants and Loans and Feasibility Study Grants.
Water Project Grants and Loans are available for instream and out of stream water supply projects that result in economic, environmental, and social/cultural benefits. Loan application materials can be found here, and are due by 5PM on April 25, 2018.
Feasibility Study Grants provide funding to help evaluate the feasibility of a proposed conservation, reuse, or storage project. A grant can provide up to 50% of the total costs of the study, but no more than $500,000 per project. Application materials can be found here, and are due by 5PM on October 17, 2018.
For more information regarding these funding opportunities please visit the Water Resources Department page.
Schroeder Law Offices Announces Newly Hired J.D. Paralegal!
Schroeder Law Offices is excited to announce that Jakob Wiley will be joining the firm as a J.D. Paralegal this fall. He plans to later continue with the firm as an Associate Attorney at the Portland location after passage of the July, 2018 Oregon bar examination. He will receive a J.D. from the University of Oregon School of Law in May, 2018 and will also complete a concurrent M.S. in Water Resources Policy and Management at Oregon State University. His studies focus on aquifer governance, voluntary management agreements, and transboundary aquifer policy.
Jakob grew up in Fallon, Nevada on his family’s alfalfa farm and cattle ranch. Jakob enjoys hiking and ocean fishing near his parents’ new home near Toledo, Oregon. Jakob also enjoys traveling to Germany and Switzerland in his free time. He is excited to join the Schroeder team working to solve your water issues!
Study: Willamette Valley Project Reallocation
In November 2017, the United States Army Corps of Engineers (Corps) published the Willamette Basin Review Feasibility Study, Draft Integrated Feasibility Report and Environmental Assessment (Study). The purpose of the Study (which can be viewed in its entirety here) is to evaluate the reallocation of 1,590,000 acre-feet of Willamette Valley Project stored water. The Study analyzes current and future water demand in the Willamette basin to determine how the water should be reallocated. The analyzed demand uses include agricultural irrigation, municipal and industrial water supply, and conservation storage for Endangered Species Act listed fish.
The Corps constructed a series of thirteen federal reservoirs in the middle and upper Willamette Basin beginning in the 1930s. Currently, the water is stored under Bureau of Reclamation water use rights that authorize storage for irrigation. The Corps’ proposal would reallocate 962,800 acre-feet of water to fish and wildlife. This discrete category has been allocated the most water in the draft Study, followed by agricultural irrigation at 253,950 acre-feet, and municipal and industrial with the least at 73,300 acre-feet.
For those keeping score at home, those figures do not add up to the allocated 1,590,000 acre-feet. The Corps chose to earmark 299,950 acre-feet to what the agency is classifying as “joint-use.” Joint use allocation is water that can be assigned to any of the other three discrete categories. Thus, the Corps would simply hold that amount in reserve to accommodate “unforeseeable changes to demand trends.” Simply put, this provides the Corps flexibility in the future to disperse water according to demand while simultaneously allowing the agency to avoid allocating all of the water at the current time.
While everyone can agree more water available for appropriation is a good thing, some are unhappy about the way the Corps has proposed to allocate stored water. The Capital Press reported the Oregon Farm Bureau’s position is that water allocated to agricultural irrigation is “not nearly enough.”
There is still much uncertainty about what will happen next and how long the process will take before water stored in the Willamette Valley Project is available for appropriation. The Study is currently a draft environmental assessment under the National Environmental Policy Act (NEPA). Therefore, the Corps is still in the stage where it is developing and evaluating the alternatives. The comment period on the draft Study closed on January 5, 2018.
If the Corps finds no significant impact from the chosen alternative action in the NEPA process, water will then need to be reallocated to the proposed uses. Because the Bureau of Reclamation currently holds the water right certificates that authorize storage for irrigation, the federal agencies must go through the Oregon Water Resources Department’s transfer review process to change the purposes of use for the Project storage rights.
Only after the water use rights authorizing storage in the Project are transferred to the reallocated uses will the water be available for new appropriations in addition to the current authorized use, irrigation. The reallocation could stimulate a rush to the Oregon Water Resources Department’s office for application submission. As the old adage goes, “the early-bird gets the worm.” More aptly, those ready to file for a water right upon the successful completion of the impending process are more likely to get to obtain a much-coveted water use right from the reallocated storage.
Stay tuned to Schroeder Law Offices’ Water Law Blog as this process unfolds!
This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.
