Integrated Water Resources Strategy: Oregon IWRS

IWRS means Oregon’s statewide Integrated Water Resources Strategy. On November 12, 2024, six Oregon departments hosted a public meeting to discuss IWRS priorities for the next five to 7 years. Sponsoring departments included:

• Water Resources Department
• Department of Fish and Wildlife
• Department of Environmental Quality
• Department of Agriculture
• Watershed Enhancement Board
• Department of Land Conservation and Development

Over 50 people attended both online and in person in Salem, including Schroeder Law Offices, to learn what the agencies believed were the most important actions for the state to take related to water quality and quantity concerns.

What IWRS Is

The IWRS is a state-wide initiative for inter-agency communication to understand Oregon’s instream and out-of-stream water needs. Governor Kotek requested a pause on IWRS after the agencies issued the first draft of the priorities since many agencies were transitioning to new directors.

The IWRS has 47 required actions, and the agencies decided to break these actions down into three “buckets”. They are titled 1) Prevent Things from Getting Worse; 2) Optimize: Highest and Best Use; and 3) Help Communities Prepare and Adapt.

The first bucket concerns sustainable practices and limiting and reducing contamination of water resources. The second bucket concerns prioritizing innovative water solutions and data-driven projects for decision-making. The third bucket concerns informing the public of what the “water future” looks like, helping economies adapt to water changes, and increasing volunteer-based incentive programs for target priorities. The public had the opportunity to comment on the agencies’ priorities. They provided questions and feedback as well.

Commenters questioned the lack of enforcement language within the goals from the Department of Environmental Quality, such as in the Lower Umatilla Basin Groundwater Management Area. This area, referred to as the “LUBGWMA,” experiences challenges with nitrate levels in domestic wells that are not connected to a community or municipal system. Commenters also questioned the scale of the projects to ensure the projects could be feasibly implemented in all communities.

Next Draft Coming in January, 2025

The agencies will publish the next draft for the IWRS in January 2025 which will include these priority areas. The public can submit comments to the draft IWRS. If you have interest in these projects or concerns, be sure to submit comments to the agencies for their consideration. After public review and comment, the agencies will present the draft to the Water Resources Commission in March 2025 for a workshop discussion. The agencies expect to provide the Final Draft of the IWRS to Water Resources Commission in late Spring 2025, with a hope of official adoption in June 2025.

Schroeder Law Offices, P.C. legal assistant Melissa Teter, has volunteered at The Growers  Grange, a local farm in Corbett, OR, for the last two growing seasons. The Growers Grange is a small farm run by Bianca and Ethan Nati. Their focus is on preserving their Italian tradition by growing heirloom vegetables and fruit.

In addition to vegetable production for the local community and restaurants, Nati’s utilize 1/8 of an acre for saving seeds of select crops for True Love Seeds and The Italian Garden Projects. Some favorite produce grown by the Nati’s are eggplant, basil, garlic, Anellino beans, a variety of peppers, and of course, tomatoes.

In 2023, Natis added fig trees in collaboration with The Italian Garden Project’s Legacy Fig Collection. They are hoping to offer fruit from these trees in a few years.

While volunteering, Melissa helped harvest, seed, and weed, and even participated in a work share program where in exchange for her work, she received a box of produce. In addition to produce, the farm hosts goats, geese, and chickens, as well as 4 large guard dogs that deter bears and cougars. Mateen, the oldest of the dogs is pictured below.

Melissa’s favorite volunteer activities included trying new fruits and vegetables that she otherwise would not have tried and learning more about farming in Oregon.

Did You Know? Rice Crops in California Use Water Efficiently

California is renowned for its rich agricultural diversity. It produces almonds, avocados, grapes, and pistachios. Having an arid climate the state must use water efficiently.

Did you know California is the second-largest rice producer in the United States? Thanks to their Mediterranean climate—with sparse rain and cool nights— the Sacramento and San Joaquin Valleys are perfect for rice growing. Rice there takes up about 500,000 acres. In particular Sacramento Valley’s clay soil effectively retains moisture, creating optimal growing conditions. The average yield is over four tons of rice per acre. California’s rice industry contributes over $775 million to the state economy.

Rice is grown in paddies

Driving through the Sacramento Valley, you might have seen submerged rice crops, or paddies. Earthen levees. surround the paddies where rice grows. This method not only curtails weed growth but also acts as a natural herbicide.

The precise amount of water used to prevent weed growth is highly important, as water that is too deep may inhibit rice stand establishment, while water that is too shallow may still allow weed seed germination. On average, it takes 370 gallons of water to produce 2.2 pounds of rice, consuming an estimated 34-43% of the world’s irrigation water. Rice crops must use water efficiently!

Tricks for using water efficiently

While rice may use a lot of water, rice farmers have found ways to utilize every drop of water efficiently, allowing the water to flow from one field to the next in the levee system. With separate field channels water is delivered to individual seed beds as needed. The precise time and location of irrigation and prevents runoff. Shallow tillage operations and puddling further help to prevent water loss.

Any remaining standing water percolates and re-charges groundwater and surface water. Hence, when planning new or existing crops, considering your water rights is crucial to comply with statewide water regulations while ensuring you will have enough water to grow your crops.

Shareholder attorney Therese Stix visited Lundberg Family Farms in Richvale, California and learned firsthand about the water use, efficiencies, and delivery means and methods in rice growing operations. She enjoyed the passion the Lundberg Family has for growing rice.

The McCarran Amendment

A current Ninth Circuit Case could upset pre-1952 water rights adjudications in certain circumstances!

Enacted by Congress in 1952, the McCarran Amendment, 43 U.S.C. § 666, waives the United States’ sovereign immunity in state court water rights adjudications. The Amendment acknowledges the power of a state to regulate ownership and use of the waters within its boundaries. This allows the federal government to be joined as a defendant in a suit to determine ownership and priority of water rights from a particular source.

But, what happens in the circumstance where vested water rights were adjudicated before the McCarran Amendment was enacted? If the federal government could have joined state adjudication proceedings in the past, and chose not to, can they still assert reserved water rights to the fully adjudicated water source?

The Challenge

That is precisely the issue that arose in the Nevada federal court case Backer Ranches, Inc. v. Haaland. In Baker Ranches, owners of decreed water rights to Baker and Lehman Creeks sued the United States for interfering with their water rights to the creeks.

The state court adjudication establishing the owner’s water rights to Baker and Lehman Creeks occurred in 1934, before the McCarran Amendment. Because the federal government had sovereign immunity to state court proceedings concerning water rights at the time, the federal government was not a party to the adjudication, though it was informed and provided with updates about the proceedings.

Years later, the federal government allegedly began to divert the flows of the creeks, interfering with the plaintiffs’ decreed water rights and triggering the lawsuit. The federal government moved to dismiss the case, claiming that it had reserved water rights superior to the plaintiffs and that the court lacked subject matter jurisdiction because the federal government was not a party to the 1934 adjudication and had sovereign immunity.

Plaintiffs argued that the McCarran Amendment waived federal sovereign immunity and that the state adjudication should control ownership and use of the water at issue. The court ultimately sided with the federal government, noting that the waiver of sovereign immunity found in the McCarran Act only applied to circumstances where the adjudication of water rights is comprehensive – i.e. when all parties asserting water rights are able to participate in the adjudication.

District Court Findings

The court found that the federal government’s reserved water rights were not part of the 1934 adjudication and that the federal government had not waived its sovereign immunity. Hence, the court dismissed the case, finding that it lacked subject matter jurisdiction. The court’s decision to dismiss the case is currently being appealed to the Ninth Circuit Court of Appeals.

If the court’s decision in Baker Ranches is upheld it has the potential to upset what has been considered settled priorities for water use throughout the arid western United States. If upheld, the federal government will have the ability to assert reserved water rights to a water source that has already been adjudicated in state court if the adjudication occurred before the passage of the McCarran Amendment and the federal government was not a party. In certain circumstances, the result could be as drastic as the complete loss of an individual’s water use.

Schroeder Law Offices is happy to review your circumstances with you.

On September 17th, 2024, the Oregon Water Resources Department (OWRD) implemented new groundwater rules that have sparked significant debate. While these rules aim to promote sustainable water use, they also raise several concerns that merit discussion.

Arbitrary Power and Political Influence

One of the primary criticisms of the new groundwater rules is that they grant the OWRD considerable discretionary power. The department can now deny groundwater permits based on criteria that some argue are too subjective and potentially influenced by the political climate at the time of filing. This level of control could lead to inconsistent decision-making, where permit approvals or denials hinge more on the prevailing political winds than on objective, scientific assessments.

New Groundwater Rules: Development by Unelected Officials

Another contentious point is that these rules were developed by unelected officials. The process involved various advisory committees and consultations, but ultimately, the decision-making power rested with individuals who are not directly accountable to the public. This has led to concerns about transparency and the democratic legitimacy of the rule-making process.

Influence of Powerful Non-Profit Organizations

The involvement of powerful non-profit organizations in shaping the new groundwater rules has also been a point of contention. Groups such as the Oregon Environmental Council and WaterWatch of Oregon played significant roles in the advisory process. While these organizations advocate for important environmental causes, their influence raises questions about whose interests are being prioritized. Critics argue that the rules may reflect the agendas of these groups more than the needs of all Oregonians.

Balancing Conservation and Agriculture

Water conservation is undeniably crucial, especially in the face of climate change and increasing water scarcity. However, the new groundwater rules must also consider the needs of Oregon’s robust agriculture industry. Agriculture is a vital part of the state’s economy, and overly restrictive water regulations could harm farmers and ranchers who rely on groundwater for irrigation and livestock.

Conclusion

While the new groundwater rules aim to address critical issues of sustainability and resource management, they also present several challenges. The potential for arbitrary decision-making, the influence of unelected officials and powerful non-profits, and the impact on the agriculture industry are all significant concerns that need to be addressed. Moving forward, it is essential to find a balanced approach that ensures water conservation while respecting the diverse needs of all Oregonians.

At Schroeder Law Offices, P.C., we can assist you in navigating the new and evermore complicated water laws in Oregon. Please contact us at (503) 281-4100 if you have any questions. Or for more about water rights in Oregon see this article.

At Schroeder Law Offices we are dedicated to providing exceptional service to our clients. Leveraging advanced technology like TABS3, NetDocuments, Zoom, and Microsoft 365 helps us achieve this goal. They streamline our operations and enhance client satisfaction.

TABS3: Leveraging Technology in Practice Management

TABS3 is a comprehensive practice management software that benefits clients in several ways:

• Efficient Billing and Accounting: Automated billing cycles and detailed financial reports ensure transparency and accuracy. You always know where your case stands financially.
• Accurate Time Tracking: We meticulously track every billable hour, ensuring fair and accurate billing for the time dedicated to your case.
• Organized Case Management: TABS3 centralizes all case-related information, allowing us to manage your case files, deadlines, and communications efficiently.

NetDocuments: Leveraging Technology in Document Management

NetDocuments is our go-to solution for managing legal documents securely and efficiently:

• Secure Cloud Storage: Your documents are stored securely in the cloud, making them accessible from anywhere, which is valuable for remote consultations and collaboration.
• Robust Security and Compliance: NetDocuments protects your sensitive information with top-notch encryption and access controls, ensuring compliance with industry standards.
• Seamless Collaboration: Our team can collaborate on documents in real-time, leading to faster turnaround times and reduced risk of errors.
• Quick Document Retrieval: Advanced search capabilities allow us to locate your documents quickly, ensuring prompt responses to your needs.

Zoom: Leveraging Technology for Remote Consultations

Zoom enables us to connect with you no matter where you are:

• Virtual Meetings: We can hold virtual consultations, making it convenient for you to discuss your case without needing to travel.
• Secure Communication: Zoom provides secure, encrypted communication, ensuring your privacy during our meetings.
• Flexibility: Whether you’re at home or on the go, Zoom allows us to stay connected and keep you updated on your case.
• Integrated Phone, Meetings and Webinars: Zoom handles all our voice and video from internal and external phone calls to client meetings to webinars.

Microsoft 365: Leveraging Technology for Productivity and Collaboration

Microsoft 365 is an essential tool for our daily operations:

• Email Management: Outlook integrates seamlessly with NetDocuments so that we can manage our communications efficiently, ensuring timely responses and organized email history.
• Document Creation and Sharing: Tools like Word, Excel, and PowerPoint allow us to create, edit, and share documents.

Conclusion

At Schroeder Law Offices embracing technology is essential to delivering the best possible service to our clients. TABS3, NetDocuments, Zoom, and Microsoft 365 are just a few examples of how we leverage advanced tools to manage our practice more effectively. By using these technologies, we can focus on what we do best—advocating for you and achieving the best outcomes for your legal matters.

Thank you for trusting us with your legal needs. If you have any questions about how we use technology to your benefit please call or email.

The Chevron deference two-step is no longer. A once powerful doctrine applicable to judicial review of administrative action is overruled by Loper Bright Enterprises v. Raimondo. The outcome is no surprise, Chief Justice John Roberts long found Chevron as an inappropriate leverage of executive power over the judiciary branch.

Chevron deference required Courts to defer to an agency’s interpretation of relevant legislation unless the agency’s interpretation was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[1] Essentially, Chevron found that federal agents are the subject matter experts and thus better suited to interpret congressional intent and thereby promulgate administrative rules relevant to achieving legislative objectives. Thus, deference to the agency.

Critics of Chevron deference believe the Loper decision will usher an era of transparent rulemaking. Others, fond of strong deference to agency action, find Loper to be at odds with stare decisis and curtails agency ability to carry out congressional directives.

What is Chevron Deference?

Chevron v. Natural Resources Defense Council (or “Chevron”)was decided in the backdrop of the 1946 Administrative Procedure Act (“APA”). Congress wished to establish judicial review procedures for agency rulemaking and adjudication.

Since the APA did not clarify that legislative and regulatory interpretation weighed in favor of the agency, Chevron was the Supreme Court’s set out a two-step analysis to support deference to the agency. 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 explication within the vague boundaries of the law, then the Court cannot implement its own statutory analysis. The second step of Chevron requires a finding that the agency interpretation is reasonable. However, if an agency satisfies step one, then it is very likely the agency will succeed on step two. To learn more about the Chevron two-step and how it came under review by the Supreme Court, visit our previous post: Chevron Deference, a Complicated Legacy.

What Loper Does

Loper ends the Chevron deference doctrine. The Supreme Court in this decision relied on the APA and Article III incompatibility with Chevron’s directive that the judicial branch defer questions of law to the executive branch. Further, Chief Justice Roberts argued that Chevron clouded administrative rulemaking as the “two-step” approach permitted various agency interpretations of the same legislative directive. He found that such broad allowance of agency power led to more confusion and litigation. In essence, rather than clarifying the APA, Roberts argued that Chevron complicated administrative law. It was also argued that Chevron was unconstitutional as questions of law belonged to the judicial branch rather than the executive branch as favoring legal analyses of agencies unconstitutionally empowered unelected officials to promulgate rules under the guise of poorly worded laws. This, in this Court’s opinion, is within the province of the judicial branch.

What Does this Mean for Water Law?

            Not much. Water law is governed by state law, not federal law.  Chevron and now Loper are applications of agency deference to federal law. Each state has its own administrative procedures act and case law supporting agency deference.  So, time will tell whether we see any respective following in Oregon, Washington, Idaho, Nevada, and Utah, which all handle agency deference differently.  In the meantime, we can assume that hearing officers will continue to make the gross assumption that the “agency is always right unless proven wrong”!

Conclusion

            United States Senators and Representatives may be accused of relying on ambiguously written laws to avoid alienating voters by “passing the buck” on politically appointed administrative officers to interpret vague statutes in their favor. This may promote efficient and detailed law making within the federal legislative branch. This, one can argue, provides greater transparency and empowers voters to hold federal representatives accountable for inaction on important issues that were once delegated to agency rulemaking. Regardless, what is certain is that Loper will make future challenges to agency rulemaking easier.

 Here at Schroeder Law Offices, P.C. we follow legal developments to ensure our clients are offered the best possible advice. If you have any questions regarding your water rights, please contact us at (503) 281-4100 or check out our website www.water-law.com

[1] 5 U.S.C. § 706(2)(A).

The United States Committee for Irrigation and Drainage (USCID) fall conference registration is now open. www.uscid.org  As the current president of this organization, I’m letting my “friends of Schroeder Law Offices” know what we are up to when not working in the office representing our clients.

What is USCID?

The USCID is a non-profit organization dedicated to sharing and collaborating on all water issues. These especially relate to planning, design, construction, operation, and maintenance of irrigation, drainage and flow control works. They particularly include agricultural economics; water law; and environmental and social issues affecting irrigated agriculture.  As you might tell, given my upbringing in irrigated agriculture, these are all areas near and dear to me.  With all the challenges facing water use in the United States, this organization of scientists, engineers, extension representatives, irrigation managers, agency representatives, policy makers, and product engineers and manufactures, is the place to be when it comes to learning about cutting edge developments and studies in handing the ever-increasing water scarcity. 

At Schroeder Law Offices, we strive to understand water use in all facets from growing food and fiber and supplying safe water supplies for our clients. Participating in these organizations it keeps us in touch with cutting edge ideas and solutions that help us better serve our clients. 

The USCID Fall Conference

The USCID Fall Conference, on Implementing Sustainable Water Management, is open for registration.  The conference this year will be in Sacramento, October 1-4^th.  Please consider joining this important organization and attending our conference.  In addition to the “conference room” presentations providing valuable educational opportunities, the USCID planning committee has lined up some great tours.  Tuesday morning’s tour will head to Vacaville and visit the Solano Irrigation District.  Here we will learn what SID has done to modernize its irrigation system to bring more accurate delivery to its constituents. 

Friday’s tour, will head to Oroville Dam and Lundberg Family Farms.  Oroville is the tallest earth-fill dams in the United States at 770 feet high and 6920 feet long.  We experience the dam up close to learn about the spillway failure in 2017 and its emergency recovery and repair.  We will also learn about the importance of the dam in supporting agriculture, power generation and flood control. At Lundberg Family Farms, we will learn about the farming operations for various varieties of rice. We will learn about the Lundberg Family’s dedication to sustainability in crop nourishment and use of water.  Lundberg is a regenerative organic certified operation and has a goal of moving its organic operation to 100% regenerative organic certified by 2027.

Along with the tours, the planning committee has accepted around 30 presentations to bring you a well rounded conference focusing on Implementing Sustainable Water Management.  I am especially interested in learning some of these sustainable water management strategies as I hope to take them back to Nevada as we struggle with implementing a conjunctive management system on the Humboldt River.

We hope to see you there!

Therese

While not a new topic on our blog, we wanted to take this opportunity to remind you that Nevada’s vested water right sunset date of December 31, 2027 is fast approaching!  This deadline is the “last call” to file for any pre-water code rights. If you know that your predecessors were irrigating or watering their livestock as a “grandfathered right” on property that you own or use, and you do not have a vested or permitted water right on file with the State Engineer’s office, now is the time to determine whether or not you have the historical support to file a vested proof of appropriation.  While “grandfathered” rights imply a historical right, calling it a “grandfathered” right, in and of itself, does not equate to a legal right to use water.  The historical use must pre-date the water code.  In Nevada, these water code dates are: 1905 for surface water, 1913 for artesian or percolating water, and 1939 for groundwater developments. 

When filing a vested proof of appropriation, make sure that your water use has adequate evidentiary support to predate the water code. To assist you, we recently updated an article entitled, “How to Research Your Land and Water”. This article provides guidance on how to research the information necessary to support a vested proof of appropriation.  Now is not too late to start this process!

In April 2024, the Environmental Protection Agency (“EPA”) announced a new maximum contaminant level (“MCL”) for monitoring and regulation of six PFAS (Perfluoroalky and Polyfluoroalkyl Substances, aka “forever chemicals”).

PFAS are identified by extremely strong bonds of fluorine and carbon which do not easily disintegrate in the environment or in the human body. These “forever chemicals” have been utilized since the 1940’s because they are highly effective at repelling oil and water. 

All community[1] and non-transient non-community water systems[2] must comply with the PFAS MCLs beginning in 2027. Until now, all prior information from the EPA regarding PFAS was advisory. The prior advisory level from the EPA for PFAS was 70 parts per trillion (“ppt”). The new MCLs for the six PFAS are as follows:

• 4 ppt for PFOA
• 4 ppt for PFOS
• 10 ppt for PFNA
• 10 ppt for PFHxS
• 10 ppt for HFPO-DA
• 1 (unitless) hazard index of a mixture of two or more PFAS chemicals: PFNA, PFHxS, PFBS, and HFPO-DA (commonly known as Gen X)

Often, state governments required larger drinking water systems to monitor the amount of PFAS in their drinking water. Although, they did not impose a regulation. Now, all community and non-transient non-community water systems must begin monitoring for PFAS by 2027. Systems must provide their monitoring data to the EPA. If a water system has a level at or over the MCL, they must implement infrastructure to reduce the PFAS below the limits.

Realities of PFAS Monitoring

One of the difficult realities of measuring for these MCLs is finding a lab with analytical capabilities to detect that level of PFAS in a sample, and at an affordable rate. Many labs do not currently have the analytical capabilities to detect 4 ppt or lower in a sample. Before a water system submits its sample to a particular lab, it should ensure the lab can detect 4 ppt or lower. The sample must show 3.99 ppt or lower to be in compliance with the MCL for PFOA and PFOS. PFOA and PFOS are the most common PFAS in drinking water. Typically, the smaller the detection limit required, the more expensive the test.

Funding is available from the Drinking Water State Revolving Fund and the EPA’s Emerging Contaminants in Small or Disadvantaged Communities Grant Program to assist with making the impacted water systems compliant with this new regulation. There are also other federal programs available to assist with any additional costs. Another program, the Water Infrastructure Finance and Innovation Act (“WIFIA”), provides low-cost, flexible funding to communities for water infrastructure projects. WIFIA funding is available year-round.

Although the EPA provided three years for systems to begin the process, the sooner a system understands their situation the better. Schroeder Law Offices, P.C. assists many municipal water systems regarding compliance with drinking water standards. Please contact our office if you have any questions regarding your water system.

[1] “Community Water System” means a public water system that has 15 or more service connections used by year-round residents, or that regularly serves 25 or more year-round residents. 40 CFR § 141.2.

[2] “Non-Transient Non-Community Water System” or “NTNC” means a public water system that regularly serves at least 25 of the same persons over 6 months per year. 40 CFR § 141.2.

In 2019, we previously posted a blog on the Public Trust Doctrine in Nevada which you can find here. Since then, the Nevada Supreme Court made its decision in Mineral Cty. v. Lyon Cty., 136 Nev. 503, 473 P.3d 418 (2020). We provide a brief recap of the Public Trust Doctrine and an update on the status of the doctrine in Nevada.

The Nevada Supreme Court formally recognized the Public Trust Doctrine in 2011 in Lawrence v. Clark County. However, the Court in Lawrence only recognized the doctrine in the context of navigable waters. In Mineral County, the Court later clarified that the doctrine applies to all waters within the state, whether navigable or non-navigable. The Court also adopted the position that the Public Trust Doctrine has been in place in Nevada since statehood, despite the doctrine not being formally acknowledged until Lawrence.

What is the Public Trust Doctrine?

The public trust doctrine “generally acts as a restraint on the state in alienating public trust resources.” Id. at 509. However, arguably the doctrine has broader implications than only the alienation of public resources by the State. The doctrine enshrines the principle that the public trust resources are owned by the State, and the State cannot use them for just any purpose. Rather, the State acts as a fiduciary. This means the State must use and maintain public trust resources for the benefit of the public. Therefore, because the State owns all the water of the State and holds those waters in trust for the public, the State has a duty to protect the water from misuse or contamination. As an acting fiduciary, the State’s protection is for the benefit of current and future residents of the State.

How does the decision in Mineral County affect your water rights?

The Court in Mineral County found that even though the Public Trust Doctrine “applies to all waters within the state, including those previously allocated under prior appropriation,” the doctrine does not allow for the reallocation of rights settled under the doctrine of prior appropriation. Id. at 506. The Court reasoned that the “state’s statutory water scheme [which is based on the doctrine of prior appropriation] is consistent with the public trust doctrine by requiring the State Engineer to consider the public interest when allocating and administering water rights.” Id. / The Court went on to explain, “in recognizing the significance of finality in water rights, our Legislature has expressly prohibited reallocating adjudicated water rights that have not been otherwise abandoned or forfeited in accordance with the state’s water statutes.” Id.

Due to the Mineral County decision, courts in Nevada will recognize the Public Trust Doctrine as it applies to the disposition of water rights by the State under the state’s statutory scheme. The Court in Mineral County cautioned “that rights holders must continually use water beneficially or lose those rights.” Id. at 518. If you need assistance ensuring your water is placed to beneficial use, research attorneys that can help you comply with State regulations.

Across the United States roughly 20% of office spaces remain vacant; one of many lingering effects of the COVID-19 pandemic. With increasing permanence of hybrid and remote roles, some studies project more than 300 million square feet of United States office space will become vacant by 2030. As these empty buildings serve as a frustration to many landlords, municipalities are working to find creative solutions for these empty offices — a prominent one being vertical farming.

Surprisingly, office buildings already provide a well-suited environment for farming. Office buildings are air conditioned, heated, and well ventilated. These features allow individuals to monitor change temperatures in response to their crop production. Vertical farming can be a more cost-effective way to utilize empty office spaces, unlike converting these spaces into housing.

When done correctly, vertical farming can yield just as much produce as traditional farming methods. Vertical farming allows for more control over the uncertainties of climate and pests, allowing for more consistent, year-round production. Vertical farming also uses 95 percent less water than traditional methods, which touches on concerns regarding increased water scarcity.

AgriPlay Ventures, an indoor farm in Calgary, Alberta, is an example of how successful this method of farming can be. Although currently operating on only one floor of the Calgary Tower Center, AgriPlay is able to provide fresh produce, with some crops providing 30 harvest a year, to a community with the highest rate of food insecurity among Canadian provinces. AgriPlay illustrates that indoor farms are an asset to the community, not just property owners.

While vertical farming should not be the only solution to these unused spaces, it is a solution that can mitigate multiple problems at once and reshape our urban centers. By utilizing empty office spaces in this way, we can support the local community by alleviating food insecurity. This solution also creates local green spaces. Vertical farms are an innovative development in adaptation to our changing environment.   

Read the full article here:

Smithsonian: Empty Office Buildings Are Being Turned Into Vertical Farms | Smithsonian (smithsonianmag.com)

How is it that after another heavy snowfall in the Sierra, the Nevada Irrigation District (“NID”) declared a water shortage emergency within its’ service boundaries? In March of 2024, NID’s General Manager’s Newsletter requested customers cut their water use by 20% for the remainer of the year. Although the reduction is voluntary, water users in Placer and Nevada County face a limited water supply.

This declared “water reduction” emergency results from unanticipated infrastructure repairs in the Sierra Nevada headwaters. Although a sufficient water supply exists in the headwaters, a landslide produced severe damage to the Pacific Gas & Electric Company’s (“PG&E”) portion of the South Yuba Canal. Conveyance to foothill reservoirs is near impossible until repairs are made to the canal.

The South Yuba Canal acts as the primary source of water to NID’s Deer Creek System and Scotts Flat Reservoir. Given the damage, the District has limited access to normal watershed runoff and cannot recharge the South Yuba or Drum Canals. Further, a PG&E powerhouse “sustained a failure that curtailed flows into the Drum Canal that provides water to Rollins Reservoir and the Bear River”. According to the March newsletter, the PG&E should complete repairs by June 8th.

What About Irrigators in the NID?

With the irrigation season scheduled to start on April 15th, the timing poses huge inconveniences to agricultural customers. Irrigators in the District must rely on existing stored water in the Scotts Flat and Rollins reservoirs. The NID Board of Directors expressed concerns about relying upon limited water storage if the outage extends into the summer. NID estimated that any delays in repairing the South Yuba Canal will result in mandatory water restrictions.

NID provides irrigation and drinking water to more than 25,000 customers. This District is also a leading water agency in the production of clean hydropower. Many individuals and companies will be greatly affected by this situation. Lake levels over the summer could also be affected.

If you are affected by water shortage consider this article on how to locate a water rights attorney.

You just purchased property with a pond, or a reservoir. Within the documents provided by the prior owner, you did not find a “typical” stored water right certificate or permit to store water. But you did find a water right of use that allowed storage water to be used for irrigation. Now, you fear the prior owner did not apply for a permit to store water with the Oregon Water Resources Department (“OWRD”). You do not like the current location of the pond or reservoir. You worry you cannot change anything about the pond or reservoir due to the missing water right of use or water right certificate.

This may not be the case, but to be sure, you must research stored water rights in Oregon.

Applications and Use

OWRD may allocate water for “beneficial use.” To receive an allocation, a person must apply to the OWRD. A person can apply for a right of use to store water but needs a secondary right to “use” the stored water. In other words, OWRD requires two permits, one to store and one to use. For example, water use permits only apply to uses for irrigation, nursey, or recreation, not storage.

In the early 1990s, the State allowed owners of reservoirs built prior to 1995 to apply for a reservoir to be “exempt” from OWRD’s “typical” water right application process for storage. If the owner followed the proper steps, the reservoir would be exempt but would not necessarily receive a standard “certificate” from OWRD. In other words, the owner wouldn’t be subject to penalties for storing water in the reservoir even though OWRD didn’t issue a water right certificate. If a person did not qualify for or complete these steps, they would need to apply for a “typical” stored water use permit.

Transfer Applications for Stored Water

In your research, you find out that you have an exempt reservoir. You are relieved to find out that you can legally store water on your property. However, you are still unhappy with the location of the reservoir.

Due to a recent Oregon Court of Appeals ruling, you will be able to change the location of your reservoir with a transfer application submitted and approved by OWRD. Since 2018, OWRD argued it did not have the authority to transfer, or relocate, any storage water right of use under state law. In Bridge Creek Ranch, LLC v. Oregon Water Resources Department, the Oregon Court of Appeals did not agree with OWRD’s interpretation. The Court determined that a primary right to store water and a secondary right to use the stored water are “inextricably linked”. Therefore, OWRD must accept transfer (change) applications for stored water uses that were issued certificates.

This clarification could allow you to hopefully transfer the location of your reservoir to a more convenient part of your property and allow you to begin perfecting your water rights.

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 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).

We are pleased to share an article from the wellcare Well Owners Network published by an organization that provides free resource to domestic well owners, the Water Systems Council:  www.watersystemscouncil.org.

It’s that time of year again, January is National Radon Action Month!

There is good news though! Radon exposure is completely preventable! Click here to learn more about radon. Find a certified lab in your area for both air and water radon testing.

Pershing County Water Conservation District (PCWCD) is accepting applications for the position of Secretary/Manager.

A successful applicant will be responsible for managing the day-to-day operations of a 40,000-acre irrigation district located in Lovelock Nevada.  This irrigation district is a surface water district receiving water from the Humboldt River water system via its privately owned and operated reservoir.  This position is an at-will position to a 7 member Board. Salary commensurate with experience.

If interested, send a cover letter, resume, and three references to Peggy Holland at PCWCD by email to pholland@irrigation.lovelock.nv.us or contact 775-273-2293 for questions and a complete job description. 

Our Team, from left to right: Laura, Maricruz, Therese, Tara, Scott, Caitlin, Rachel, Max, Jess, Kelsey, Jeff, Jim, Melissa and Rita

As 2023 comes to a close, we at Schroeder Law Offices want to extend our thanks to all of our clients, friends, consultants and colleagues.  It has been an interesting year in the water rights attorney world. 

In Nevada we have made great headways in collaborating with Nevada Division of Water Resources and stakeholders on the Humboldt River Basin issues and conjunctive management.  Many submitted presentations and ideas ranging from strict prior appropriation all the way to socio-economic management. It is clear that ideas on management range the complete spectrum and it will be interesting how our prior appropriation state will ultimately decide on this issue.

This year I spent a lot of time working with United States Committee for Irrigation and Drainage (USCID) in bringing the organization back online after a changing of our Executive Director during the COVID years.  We are glad that is behind us and the organization is back on track and moving forward. At our conference in Fort Collins Colorado I was able to learn about how Colorado tackles and deals with conjunctive management issues.  Interestingly, everyone on the river system knows exactly where they are “on the priority line”.  Perhaps someday this will be the same mode of operation in Nevada?!  If you are interested in USCID, learn more here.

I am excited to participate in USCID and their parent, ICID in working to bring the innovations in irrigation and drainage to other countries and assist in solving world wide water scarcity and shortage problems.  I hope to have some international travels in my future as part of this work!

Other work I have done this year, included continuing my Secretarial duties for the Nevada Heritage Foundation, where we promote education in agriculture by providing support and scholarships to Nevada’s youth.  As you can tell, promoting agriculture is a passion of mine as it runs in my blood.

Finally, this year is my last year serving on the Board of the Nevada State Bar Environmental & Natural Resource Section.  It has been a great tenure and it’s been a great avenue to develop relationships in the legal world with other attorneys practicing in the same areas as Schroeder Law Offices.  I firmly believe that building relationship and communication is a key to success in any business.

Well, on that note, we wish you all a wonderful Christmas and Holiday Season and we look forward to a happy, healthy, and prosperous 2024!

~Therese

Visit our Home Page. View our Blog. Send us your questions. Email us at counsel@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)