On December 22, 2015, the United States Environmental Protection Agency (“EPA”) announced funding of more than $19 Million for drinking water and wastewater infrastructure projects in Nevada. The program funds fall under Nevada’s Clean Water State Revolving Fund, and provides money for state projects that promote clean water through wastewater treatment projects and improvements to drinking water infrastructure in the State. The EPA’s Regional Administrator stated that “This substantial investment at the federal level helps communities develop the infrastructure needed for clean, safe drinking water and proper wastewater treatment. EPA is committed to protecting the water resources so important public health and Nevada’s economy.”

Funds supplied under the EPA program will go to provide financing for state projects such as upgrading septic systems to sewer, and renovations to wastewater treatment facilities to increase efficiency, as well as support projects for better and more efficient access to clean drinking water, such as water storage and water system upgrades. The funds this year will combine with over $200 Million in federal funding previously provided to Nevada’s Clean Water and Drinking Water State Revolving Fund since the project began. While the EPA’s influence can at times be controversial, federal funding is important to State projects, where both municipal and agriculture interests can often benefit from the funds supplied for needed water projects.

More information on the topic can be found at the EPA Web Site.

The news of Dwight and Steven Hammond’s resentencing is an open platform for change in federal handling policies, but the fear incited by Ammon Bundy’s voluntary militia of protesters is clouding evidence that backs claims of federal government mismanagement. Protesters are against the Hammonds’ re sentencing and believe they were convicted unfairly under laws intended for acts of terror for which they’ve been given excessive sentences but are not explicitly calling upon the issue at hand, a reduction of the Hammonds’ sentences.

While much of the news coverage related to the Hammond family has broadcasted Ammon Bundy’s armed militia protest, the legal issue at its core is beginning to come into focus. Bundy and his supporters have set up camp on federal land, demanding that control over the asserted public land be remanded to its local people such as the Hammond ranching family. As the American Bar Assocation Journal suggests, the Hammonds became a cause celebre among anti-government activists in part because of mandatory minimum sentencing regarding disputed use of land with the federal government. Both Dwight and Steven Hammond had served their initially imposed sentences when the government successfully appealed to the San Francisco-based 9^th U.S. Circuit Court of Appeals. Under said appeal, the Hammonds were re-sentenced to the five-year mandatory minimum, re-trying the pair as if they were terrorists though initially sentenced for arson.

While Bundy’s actions are drawing attention to private land conflicts with federal government land rights, they are slowly distracting from the application of said protest: the plight of the Hammonds. At the center of this standoff are a pair of Oregon ranchers who were denied the chance to make their claim to the U.S. Supreme Court. The re-sentencing of the Hammonds turned them quickly from arsonists to terrorists, despite original claims that sentencing the two to the minimum mandatory sentence of five years was acknowledged by a federal district judge as “grossly disproportionate” and a violation of the Eighth Amendment’s ban on cruel and unusual punishment. A 2014 ruling by a panel of the court acknowledged that the Supreme Court has upheld longer sentences for comparable or less serious crimes. In March of 2015, the Supreme court rejected the Hammonds’ petitions for certiorari.

Dwight and Steven Hammond respect the rule of law. They have litigated this matter within the federal courts for over five years and, in every instance, have followed the order of the court without incident or violation. That includes serving the entire sentences imposed in this case by the judge who heard the evidence at trial and who concluded that imposition of a five-year sentence under these circumstances would “shock the conscience.”

As the Hammonds have previously stated, they will be reporting to the United States Bureau of Prisons today to serve their sentences.

The Hammonds will continue their legal efforts to renew their grazing permits. They will also pursue Executive Clemency. We hope that President Obama will agree with us and with the veteran judge who presided over the trial that the mandatory five-year minimum sentence is far too long for these ranchers

Alan Schroeder, Counsel Hammond Ranches, Inc.

Kendra M. Matthews, Counsel Dwight L. Hammond, Jr.

Lawrence Matasar, Counsel Steven D. Hammond

Congress has adjourned for the year without passing a bill to authorize and fund the Klamath Agreements. The Klamath Basin agreements include: the Klamath Hydroelectric Settlement Agreement (“KHSA”), Klamath Basin Restoration Agreement (“KBRA”) and Upper Klamath Basin Comprehensive Agreement (“UKBCA”) that together lay out a comprehensive scheme for changes in management along the entire reach of the Klamath River. After years of litigation and negotiation, certain stakeholder groups came together to craft the trio of agreements. However, the agreements did not sit well with everyone. Particularly those in Klamath County and their California neighbors due primarily to the highly controversial dam removal provisions and drying up thousands of acres of farmland. For these among other reasons, the agreements, which required authorizing legislation and funding from Congress, failed to gain traction.

Senator Ron Wyden [D-OR] attempted multiple times to pass the necessary legislation to authorize the agreements. The latest version, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, has been stalled in committee since last January (2015). In an effort to move forward, on December 3, 2015, Representative Greg Walden [R-OR] released a draft bill intended to “help provide water and power certainty for agriculture and boost economic development and job creation for rural communities and tribes through a transfer of federal timber lands.” Walden’s draft bill omitted dam removal and authorized transferring up to 100,000 acres each of National Forest land to Klamath County, OR, and Siskiyou County, CA. These issues quickly became non-starters for the Tribes who held the “ears” of Senators Wyden and Merkley.

The KHSA is set to expire on January 1, 2016. While the parties can vote to extend it, some signatories are beginning to question if the agreements provide workable solutions for the Klamath basin. The Yurok Tribe clearly communicated its intent to terminate the agreement. Similarly, the Klamath Tribal Council has issued a dispute notice. Additionally, PacifiCorp, the company that owns the dams, has changed course and now indicates it will pursue re-licensing of the dams. Thus, many parties that initially favored the agreements are beginning to show their discontent. This may have been another reason authorizing legislation had difficulty making its ways through Congress.

In March of 2015, The Oregon Water Resources Department passed administrative rules, Oregon Administrative Rules 690-025, to help govern the region in accordance with the Upper Klamath Basin Comprehensive Agreement in anticipation of the agreement being authorized by Congress. The rules implement sections of the agreement to address control of well use in off-project areas when that use affects surface water supplies in the basin. However, these rules will no longer be effective once the agreement terminates, and groundwater regulation in the off-project area will again be in accordance with OAR 690-009.

As such, for better or worse, it appears the agreements will dissolve as portions of the agreements expire in the New Year. Thus, 2016 will likely involve the parties initiating new negotiations to resolve the critical water usage issues in the Klamath basin, potentially leading them back to court to resolve exceptions filed in the Klamath Basin Adjudication as that process is slated to continue through the coming year or years.

Photo: Rain – Klamath Basin Wildlife Refuge by Michael “Moik” McCllough

Oregon Revised Statute 537.225 was enacted in 2013, allowing water use permit holders with irrigation, nursery, temperature control, stock watering, or agricultural water uses and subsequent completion dates to apply for assignment of all or part of the water use permit, and for the issuance of a replacement water use permit that reflects that assignment. Thus, for the first time in Oregon, the Oregon Water Resources Department (“OWRD”) may issue a new permit after an assignment, rather than merely recognizing the assignment in OWRD’s records. Moreover, for the first time in Oregon, shared water use permits may be split so that holders of shared permits can move forward with perfection at their own pace, or make changes through the permit amendment process without affecting the other permittee’s portion of the shared water use permit.

Oregon Administrative Rule (“OAR”) Chapter 690 Division 325 was enacted in 2014, outlining the requirements for split permit applications. The OWRD forms for split permit applications were completed at the end of 2014, and are available at: http://www.oregon.gov/owrd/Pages/pubs/forms.aspx. OWRD disseminated information about the new split permit application to Certified Water Right Examiners so that they may advise their clients around the State of the new opportunity.

As provided in OAR 690-325-0060(1), the applicant is required to pay OWRD the full cost to processing the split permit application. OWRD is estimating costs in a similar manner to its Reimbursement Authority Program, and provides an Applicant Agreement for a nonrefundable fee of $125.00 that outlines the estimated costs for processing the application. The applicant can then sign the agreement and pay the estimated costs to move forward with their application.

This month, OWRD issued its first Proposed Final Order proposing to approve a split permit application, and the Final Order is set to issue at the end of January, 2016. The estimated cost outlined in the relevant Applicant Agreement was $585 (in addition to the $125 nonrefundable fee for estimate).

OWRD and water use permit holders are still waiting to see how efficiently the new split permit process works, but we are very excited about the new opportunities this process provides! We look forward at Schroeder Law in assisting permit holders in Oregon through this new process.

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

The latest chapter in Schroeder Law Offices’ long-standing relationship with the Idaho Rural Water Association can be found in the Fall 2015 edition of IRWA’s quarterly publication, The Water Gram.

In it, Laura Schroeder and James Browitt discuss the current status of Idaho’s ambitious adjudication process, which has worked its way from the Snake River basin to the state’s panhandle. You can read about it here.

In 2014, Browitt wrote this blog about three phases of the ongoing North Idaho Adjudication. As the Water Gram story updates, the second phase, the Palouse River Basin Adjudication, is expected to get under way this coming spring.

Schroeder and Browitt, both of whom are licensed in Idaho, have worked closely with IRWA for many years. They regularly serve as instructors at the association’s annual conferences and have recently developed day-long road-show workshops. The next series of these workshops, entitled Water Law to You, is tentatively scheduled for June of 2016. Information on these and other IRWA-related activities will posted on our Coming Events page when it becomes available.

Nevada’s Special Session opened December 16, 2015 with Senate Bill 1 , an act that will issue transferable tax credits and tax breaks to certain projects authorized by the government.  Section 64 of this bill relates to water use.  It is proposing to streamline the water use permitting processes in order to encourage economic development.  The Bill as it is currently proposed, may side step certain evaluations and studies the Nevada State Engineer takes into account when reviewing change applications involving transfers of water uses between basins.  In addition, the proposed Bill will limit the parties who can protest these water uses in the change application process.  This may be concerning a s a fundamental concept of western water use is protecting against conflicts, injury, and other impacts between users.  Will this Bill continue to protect these rights? 

Published by Therese A. Ure and Lisa Gage

On October 16, 2015, the office of the State Engineer of the State of Nevada issued an Order of Adjudication for the public waters of Northern Nevada’s Diamond Valley. The past years’ drought has made vested water rights and claims in Eureka County an ongoing and important legal issue. Water rights’ holders will need strict proof of beneficial use, as will any future applicant. The order provides Nevada landowners six months to respond.

As such, State Engineer Jason King will commence (resume) taking Proofs of Appropriation in the Matter of Determination of the Relative Rights In and To All Waters, Both Surface and Underground, located within Diamond Valley, Eureka and Elko Counties, Nevada, on November 30th. Order No. 1266 states, “All claimants to waters of said Diamond Valley must file their Proofs of Appropriation in the Office of the State Engineer on or before the 31st day of May, 2016 as provided for under NRS 533.110.”

These Proofs of Appropriation relate to water uses that began prior to the development of Nevada’s surface and ground water codes. All subsequent uses go through an application and permitting process with the Nevada Division of Water Resources. If you think you can prove a historical water right of use dating back prior to the water codes, now is the time for further research.

Schroeder Law Offices has assisted many clients in research guidance and assistance in gathering support for vested claim water rights filings. Some of the types of proofs often used to support vested water rights claims in an adjudication are outlined in an article entitled “How to Research Land & Water for Proof of Vested Nevada Water Right Claims,” by Katie Delong and Sarah R. Liljefelt, Therese A. Ure of Schroeder Law Offices.

El Niño is gracing the West Coast of the United States and water watchers are enjoying relief from the past few years of drought, but the catch-up game may take longer than hopefuls could dream. Reports from the U.S. Climate Prediction Center indicate that wetter weather is forecast for the West Coast through at least November 24th, but may only be enough to recover part of the damage caused by drought. Not only would water storage reservoirs need to be restored to normal, levels of both surface and groundwater would also need to at least approach normalcy for El Niño to solve the West’s water scarcity issues.

Organizations such as the Agricultural Conservation Easement Program are seeking to aid with scarcity issues, whether El Niño proves itself as a force this winter or not. On November 16, 2015, U.S. Department of Agriculture Secretary Tom Vilsack announced the availability of $350 million funded through the ACEP to benefit the restoration and protection of working agricultural lands and wetlands. The funding was created by the 2014 Farm Bill to protect critical water resources and wildlife habitats, but is also extended to landowners to help protect and restore key farmlands, grasslands and wetlands across the nation. According to a news release by the USDA’s Natural Resources Conservation Service, private landowners can use programs like the ACEP to maintain land for farming and ranching purposes. Voluntary easement sales can help landowners engage in the conservation efforts by limiting future development to protect key resources such as water.

The news of ACEP’s funding comes down right alongside a Presidential Memorandum written in early November. The memorandum is addressed to secretaries such as USDA’s Vilsack and specifically directs such programs to, “Avoid and then minimize the harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water- disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities.” (Western Livestock Journal)

While El Niño may bring hope to the West Coast, efforts from the USDA and ACEP will be needed to aid the long-term protection of farmland, grassland and wetland in the US, as well as the restoration and consistency of water quality and levels.

On November 3, 2015, the United States Senate voted on legislation meant to repeal the federal regulation re-defining “Waters of the United States” (“WOTUS”). WOTUS sets EPA’s jurisdiction, and thereby how far the EPA can reach to regulate various waterways. The regulation increases federal jurisdiction over water within the United States, which many believe will increase federal oversight over certain water sources, especially that used for agriculture. The primary concern is that water use that was once exempt, will now fall under federal jurisdiction requiring new permitting and regulatory procedure, adding additional costs to use of this “jurisdictional” water. Through a bipartisan vote, with 57 senators voting for, and 41 against, the legislation failed to meet the 60 vote requirement, effectively scrapping the Bill.

On November 6, 2015, in a follow-up attempt to repeal with “WOTUS” Rule, Sen. Joni Ernst from Iowa sponsored a joint resolution of disapproval of the Rule. With the joint resolution passing in the Senate, Sen. Ernst stated, “Today’s passage to scrap the expanded WOTUS rule is a major win for our hardworking farmers, ranchers, manufacturers, and small businesses who are continuously ignored by the EPA. It is abundantly clear that the WOTUS rule is ill-conceived and breeds uncertainty, confusion, and more red tape that threatens the livelihoods of many in Iowa and across the country.” The House will now consider the joint resolution, however, President Obama has expressed his intent to veto any law that seeks to repeal or alter the current WOTUS rule.

In the meantime, legal battles over WOTUS continue, as now more than 30 states have filed lawsuits against the EPA seeking to stay the Rule’s implementation. The effect of WOTUS remains stayed for a number of states until the EPA works through the legal challenges.

Update:

Since the November 6, 2015 vote by the United States Senate in support of a Joint Resolution (S.J. Res. 22) to set aside the EPA’s new rule under the CWA concerning “Waters of the United States” on January 6, 2016, the United States House of Representatives equally voted in support of the Joint Resolution. This vote effectively sent the matter to the President, and as predicted, on January 19, 2016, President Obama vetoed the Joint Resolution, his ninth veto since taking office.

In the President’s press release regarding his veto of the Joint Resolution, he stated that, “The rule, which is a product of extensive public involvement and years of work, is critical to our efforts to protect the Nation’s waters and keep them clean, is responsive to calls for rulemaking from the Congress, industry, and community stakeholders, and is consistent with decisions of the United States Supreme Court.” President Obama went on to state that “Pollution from upstream sources ends up in the rivers, lakes, reservoirs, and coastal waters near which most Americans live and on which they depend for their drinking water, recreation, and economic development.”

Senator Joni Ernst, a Republican from Iowa who sponsored the Resolution, stated in response that “This rule is not about clean water. Rather, it is about how much authority the federal government and unelected bureaucrats should have to regulate what is done on private land.”

The President’s veto, and the Rule’s implementation comes as a large regulatory hurdle many farmers and ranchers will have to navigate, with the potential for additional permitting and fees to operate in and around private water sources. While the Rule does exempt irrigation waters under certain circumstances, many questions remain as to the reach the Rule will have. While the Rule continues to be implemented, it remains stayed pending further Court action.

This week, the Duncan Family contributed to feeding the world by gathering their annual calf crop and sending them to others who would raise them for market.  Raising stock, “ranching,” is an age old way of life a culture that is passed down through generations.  The four generations in the Duncan Family presented in these photographs, illustrate that living off the land and turning forage from lands unsuitable for vegetable crops and grown into beef still persists.  Since approximately 1968, rancher and cattle buyer, Dave Stix has purchased the Duncan calf crop.  Through generations, Schroeder Law Offices purposefully supports these ranching families in developing and maintaining their water and forage use needs to support their heritage and way of life.

Photo Credit: Joan Duncan

Pictured: Maxine Duncan, Dan Duncan, AJ Duncan, Kelli Duncan Edmonds (and children), Rusty Kiel, John Aufdermaur, Dave Stix

On June 29, 2015 the Environmental Protection Agency (“EPA”) published a new rule under the Clean Water Act, re-defining “Waters of the United States,” and sought to expand federal jurisdiction over certain water sources. The new rule was set to go into effect on August 28, 2015. Due to the implications and potential effect the rule may have on private and public interests, numerous lawsuits were filed challenging the regulation. Primarily, a lawsuit was filed in the Federal District Court of North Dakota, wherein thirteen states joined the lawsuit seeking to enjoin the rule’s implementation. On August 27, 2015, the North Dakota District Court issued an order granting the request for a preliminary injunction.

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

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

NINTH CIRCUIT UPHOLDS RULING — NPDES PERMITS ARE NOT REQUIRED FOR TRANSFERS OF WATER IN THE KLAMATH BASIN

ONRC Action v. United States Bureau of Reclamation (9th Cir. Or. Aug. 21, 2015)
cdn.ca9.uscourts.gov/datastore/opinions/2015/08/21/12-35831.pdf

The Ninth Circuit Court of Appeals was recently presented with the issue of whether the Bureau of Reclamation violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. Finding that the waters of the Klamath Straits Drain and Klamath River were not meaningfully distinct, and applying the reasoning from Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, (2013), the court concluded that a Clean Water Act permit was not required.

Background

The original case was filed in 1997 as a citizen’s suit under § 505(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), commonly referred to as the Clean Water Act. Plaintiff Oregon Natural Resources Council Action (“ONCR”), an environmental group, asserted that the Bureau of Reclamation and its commissioner violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. The case was stayed for settlement negotiations for years, dismissed, and then reopened on motion. The magistrate judge’s report and recommendation granting the Bureau’s motion for summary judgment were adopted by the district court. The recommendation was based on the conclusion that the Klamath Straits Drain, which connects Lower Klamath Lake and the Klamath River is a water of the United States as defined by the Clean Water Act, and therefore a discharge of water from the Klamath Straits Drain to the Klamath River would be exempt from the Clean Water Act’s permitting system by the EPA’s Water Transfers Rule. The Water Transfers Rule defines water transfers as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.” 40 CFR 122.3(i). Under the Rule, “water transfers” are exempt from the NPDES permitting requirements because the transfers do not result in the addition of a pollutant.

On appeal, ONCR raised the issues of whether the discharge of water from the Klamath Straits Drain and the Klamath River was exempted by the Water Transfers Rule and whether the adoption of the Water Transfers Rule was within the EPA’s authority.

The Ninth Circuit panel neatly sidestepped the issue of the validity of the Water Transfers Rule, relying on the holding in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __, 133 S. Ct. 710, 184 L. Ed. 2d 547 (2013), which was issued after the district court entered its decision. In the Los Angeles Flood Control Dist., the Supreme Court held that the flow of water from one portion of a river through a concrete channel or other engineered improvement within a river, then back into the river did not constitute a discharge of a pollutant under the Clean Water Act. In summary, the Court held that that “pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the Clean Water Act,” as no pollutants are being “added”. Id. at 711, citing to South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-12 (2004).

In the ONCR case, the Ninth Circuit panel found that the record demonstrated that waters of the Klamath Straits Drain were not meaningfully distinct from those of the Klamath River. In reaching this conclusion it summarized the flow of water through the Klamath Irrigation Project as originating from the Klamath River, then flowing through parts of the Project into Lower Klamath Lake, and then flowing back to the Klamath River via the Klamath Straits Drain. While recognizing that the water was combined with other waters during its journey, including waters from the Lost River Basin, from spring-fed streams, and from runoff, the court concluded that a substantial portion of the water returned to the Klamath River through the Klamath Straits Drain came originally from the Klamath River and was not meaningfully distinct.

Further, despite the excavation and channelization of the previously existing natural waterway, as well as the addition of two pumping stations to ensure the flow of water through the Klamath Straits Drain, the Ninth Circuit viewed the Klamath Straits Drain as essentially an improved version of the previously existing natural water way. The panel relied on the district court’s finding that the Klamath Straits Drain provided a hydrological connection between the lake and river, just as the original Klamath Straits, and that if the headgates and pumps of Klamath Straits Drain were removed, waters would flow between the Klamath River and the Klamath Straits Drain. Because the waters flowing into the Klamath River from the Klamath Straits Drain were not meaningfully distinct from those in Klamath River, the court held that no permit was required under the Clean Water Act.

The validity of the EPA’s Water Transfer Rule has been the source of much litigation, some of which is ongoing. Unfortunately, the Ninth Circuit panel decision did not reach the question of whether the rule adopted by the EPA was properly within its authority and was therefore valid.

The Sacramento Superior Court of California on July 10, 2015, granted a TRO temporarily restraining the California State Water Resources Control Board’s drought curtailment action against certain senior water rights holders. The court held that the Board’s action violates due process rights and would cause irreparable harm.

On May 1, 2015 and June 12, 2015 the California State Water Resources Control Board issued notices of curtailment to West Side Irrigation District (West Side), Central Delta Water Agency (CDWA) and South Delta Water Agency (SDWA), respectively. The notices declared that the recipients were not entitled to divert water because the water was needed to meet the needs of senior water right holders.

West Side, CDWA and SDWA filed an ex parte application seeking a stay or temporary restraining order/order to show cause. While a petition for reconsideration was pending with the Board regarding the May curtailment letter, the Superior Court found that the letter was subject to a judicial determination as to whether it constituted a violation of the petitioner’s due process rights. It noted that there was the administrative process did not have to be exhausted before a temporary restraining order could be issued because the circumstances were such that irreparable harm would occur to the petitioners absent a temporary restraining order. Moreover the court found every day the letter remained in effect constituted a violation of the petitioners’ constitutional rights, so that a temporary restraining order was appropriate while the administrative process was proceeding.

With regard to the June curtailment letter, CDWA and SDWA were found to have adequately plead that the agencies’ landowners exercised pre-1914 appropriative and/or permit licenses rights that were subject to the directives of that letter, providing the petitioners standing to bring the ex parte application.

The court viewed the curtailment letter’s language, that which provided that the recipients were not entitled to divert water because that water was necessary to meet senior water right holders’ needs, as a declaration and determination by the Board of the recipients’ water rights priorities.

Further the court determined that the language in the letter instructing the recipients to “immediately stop diverting water” and complete an online Curtailment Certification Form documenting receipt of the curtailment letter and cessation of diversion, was not merely instructional as alleged by the Board. It viewed the letters as coercive, finding that they could reasonably be interpreted as an order, not a mere request for voluntary cessation of diversion activities.

Concluding that the curtailment letters resulted a violation of the petitioners’ due process rights in that there was a taking of the petitioners’ property rights without a pre-deprivation hearing, the court granted the ex parte application for a temporary restraining order/order to show cause as to why a preliminary injunction should not issue.

By: Laura Schroeder and Derek Bradley

Despite being a landlocked country with an arid climate Afghanistan possesses a surprising number of fresh water surface sources thanks to snowpack originating in its mountainous terrain.  While the country has several freshwater sources contained within it (namely the Northern water basin) all four of the country’s largest river basins are transboundary rivers.

Despite repeated attempts by Afghanistan’s neighbors and Western nations active in rebuilding the country, the government of Afghanistan has been hesitant to enter into any international watercourse agreements.  In fact only one of the rivers has a treaty associated with it, the Helmand River.  The Helmand treaty between Afghanistan and Iran was negotiated after many years and was finally signed in the early 1970s with the treaty going in to force in 1977.  Since the signing of this treaty both countries have experienced major shifts in their governments.  As a result of these government shifts, many provisions of the 1970s treaty have been ignored by both nations throughout the treaty’s history.

In addition to the Helmand River basin, there are also the Kabul, Hari-Rud, and Amu Darya basins.  The riparian countries of the Kabul river basin include Pakistan, India, Afghanistan, and China.  Afghanistan signed a treaty with Great Britain in 1921 dealing with usage of the river for irrigation and residential use on both sides of the Kabul river.  The Kabul treaty, however, dates back to Great Britain’s occupation of land that is now Pakistan.  The treaty has not been updated and neither country relies upon it.

The Hari-Rud river basin is shared between Afghanistan, Turkmenistan, and Iran.  Leaving out Afghanistan, Turkmenistan and Iran negotiated an agreement concerning the Hari-Rud.  In 2004, Turkmenistan and Iran completed a dam that provides irrigation and drinking water for Iran’s second largest city Mashhad.  Afghanistan intends to build its own dam upstream of the 2004 dam which has the potential to cut off more than 70% of the water Iran receives from the Hari-Rud.

The Amu Darya acts as the border for significant areas between Afghanistan, Tajikistan, Uzbekistan, and Turkmenistan.  While there are some treaties between Afghanistan and its neighbors concerning borders, cooperation issues, and joint management of the Amu Darya there are no treaties concerning allocation and usage of water.  Further complicating the benefit of any of these treaties is that they were made between Afghanistan and the Soviet Union.  Since the departure of the Soviet Union, no new agreements have been made between the new democratic government of Afghanistan and those of the Central Asian Republics.

While Afghanistan has access to a significant amount of water it has not been able to fully utilize much of it due to a lack of infrastructure.  USAID and many other organizations have been interested in assisting Afghanistan build this infrastructure but Western Donor Countries have been hesitant to provide resources for major water infrastructure projects because of the lack of necessary international water allocation agreements.  Decision makers have been distrustful of their neighbors and have generally not been cooperative when it comes to providing information to other countries about how various water projects would influence transboundary waters.

Despite little progress since the establishment of a democratically elected government in Afghanistan there has been some advances in putting Afghanistan in a player’s position with regard to international watercourse treaties.  The World Bank, beginning in 2006, has facilitated negotiations between Pakistan and Afghanistan.  These efforts culminated in the finance ministers of both countries signing an agreement in August 2013 to build a large scale hydropower dam on the Kunar River (part of the Kabul River Basin).  While a positive first step, moving forward to the next step will require internal resolution within the Afghani government.  Furthermore, the World Bank has recently approved funding for Pakistani hydropower projects despite Afghanistan objecting to one of them. This has led some Afghani decision makers to view the World Bank as skeptically as Pakistan.  However, the recently elected Afghan government of President Ghani in May of 2015 publicly stated that they are committed to the Kunar dam and that they are interested in pursuing closer ties with Pakistan.  This comes on the heels of China announcing earlier this year that they would help pay for the dam, revitalizing hope that the Pakistan and Afghanistan will work more closely together in the coming years concerning transboundary waters.

On the Western side of Afghanistan things are faring worse than to the East.  Afghanistan’s only international water use treaty with Iran regarding the Helmand has done little to establish positive relationships between Iran and Afghanistan.  Adding to this tension, is development of the Hari-Rud dams as well as further dam construction on the Helmand.  Since the “removal” of the Taliban, Afghanistan and Iran have been in talks to resolve the disputes concerning both of these rivers, but no real progress has been made.  Both countries insist they are hard at work concerning these negotiations and are putting in a good faith effort; but it would appear that with both nations trying to unilaterally make use of the Hari-Rud tensions might actually be increasing between the two.

As pressure on water resources continues to grow in Central Asia and as more infrastructure is built within Afghanistan to capture and utilize the water within its major river basins, international disputes will also continue to become more frequent and heated.  International agencies and Western nations should continue to pressure Afghanistan to enter in to transboundary water agreements, but more than anything it appears it will require local decision makers to adjust positions for any progress to be made.

By Derek Bradley–

In an 8-1 decision the United States Supreme Court on Monday June 22^nd overturned the Ninth Circuit in Horne v. Department of Agriculture bringing an end to an unusual government practice that had existed for almost 80 years and providing a victory for property rights advocates.  A pair of raisin farmers challenged the constitutionality of the Raisin Administrative Committee’s (the Committee) ability to confiscate raisin crops and not pay farmers for them in an effort to artificially inflate raisin prices.  The farmers refused to relinquish their crops and were fined by the USDA.  They sued in federal court saying that this was a takings under the Fifth Amendment.

The Ninth Circuit came down in favor of the Committee saying that the Fifth Amendment’s Takings Clause only applied to real estate.  The US Supreme Court disagreed.  Writing for the majority, Chief Justice John Roberts clarified that the Takings Clause applies to all property and not just real estate.  He went on to clarify that this decision did not mean that the federal government cannot regulate raisins, or any other item that will affect interstate commerce, but that an actual seizing of the crops and a refusal to pay for them was a takings, “Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the government may hold hostage, to be ransomed by the waiver of constitutional protection.”  The Court rejected a number of arguments made by the government including that this was a similar practice to the controls on pesticides the government exercises, that this was not a complete takings as the government sometimes paid for the raisins, and that raisins were like oysters for which the government has power to limit the harvest.

The decision of the Court narrowed to 5-4 concerning the topic of compensation to the Hornes.  The majority held that the farmers should be relieved of the obligation to pay any fines associated with this case and the Committee.  Justice Breyer, joined by Justices Kagan and Ginsburg, wanted to remand the case to the Ninth Circuit to determine adequate compensation for the Hornes.  The decision marks a reaffirmation of the importance of property rights in the United States, and particularly goods that can be sold in interstate commerce.  It is a decisive victory for property rights and shows that there is little interest on the Court in allowing such heavy-handed government actions.

Please see the articles linked below for additional information on the decision and stay tuned to Schroeder Law information on future agriculture related decsions!

New York Time’s Article on the Decision

Wall Street Journal Article on the Decision

During the 2015 Nevada Legislative Session, Assembly Bill 435 passed by the Legislature.  On May 27, 2015, AB 435 was signed into law by Governor Sandoval. This bill adds a new Judicial District to Nevada, and reorganizes the counties which make up certain Judicial Districts. The Sixth Judicial District Court, currently encompassing Pershing, Humboldt, and Lander Counties, will now only encompass Humboldt County. Lander and Pershing Counties, along with Mineral County (being pulled away from the Fifth Judicial District) will become the new Eleventh Judicial District. Judge Shirley, currently the Department 1 Judge in the Sixth Judicial District, will preside over the Eleventh Judicial District, and Judge Montero, currently the Department 2 Judge in the Sixth Judicial District Court, will preside over the Sixth Judicial District.

While the reorganization of the Judicial Districts will not make a difference to many, it does call into question which Court will preside over the Humboldt River Decree. The Humboldt River Decree is governed by Department 1 of the Sixth Judicial District Court of Humboldt County, currently Judge Shirley. Due to the shift in districts, this left an unknown as to whether the Decree jurisdiction would remain with Judge Shirley, or be moved over to Judge Montero. Assembly Bill 435 was updated to specifically address this issue. The new law provides that cases falling under the jurisdiction of the Humboldt River Decree Court will alternate between the Sixth and Eleventh Judicial Districts, and between Judge Shirley and Judge Montero. This greatly changes the dynamic of how Decree cases will now be handled.

The new law does not provide how alternating case assignment will be carried out, nor does it state how it is determined which cases are “arising from or relating to the administration of the Humboldt River Decree.” In the meantime,  we know that the Humboldt River Decree Court will shift once this new law goes into effect on July 1, 2015. If you’d like to read the new law as enacted, it can be found at https://www.leg.state.nv.us/Session/78th2015/Bills/AB/AB435_EN.pdf.

By Derek Bradley

After receiving negative feedback from both the Western Governors’ Association and a large bipartisan group of House Committee on Natural Resources (both letters are linked below), the U.S. Forest Service (USFS) announced last week it was permanently withdrawing its proposed groundwater rule concerning groundwater management on national forest lands.  The move comes after more than a year of consideration and a lengthy comment period.

In its testimony before the House Committee, the USFS stated the rule would not significantly impact state water management or give the USFS new authorities.  The proposed language of the rule, however, raised concerns that this was not the case, and that if the rule went into effect state water management powers would be severely curtailed.  From a water law perspective, the two major concerns with the rule were USFS’s attitude that it held title to all the waters on and under national forests, and an assumption that surface and groundwater are interconnected unless proven otherwise.

Current law, does not support USFS’s assumption that it holds title to all waters on or under federal forest lands, and the assumption of interconnectivity runs counter to many state laws.  The proposed rule in these two respects could create an opportunity for the USFS to challenge water use on lands adjacent to national forests, even when water users hold a valid state water permit.  Schroeder Law filed comments with the USFS outlining these and other concerns.

Ultimately, the USFS’ negative feedback on the expansive nature of this rule, likely prompted the proposed groundwater rule’s withdrawal.  The news of the withdrawal was applauded by the Chairman of the House Committee on Natural Resources Congressman Rob Bishop as well as other members of Congress.

Western Governors’ Association Letter Opposing the Rule

US House Committee on Natural Resources Letter Opposing the Rule

Official Notice of Rule Withdrawal

By Derek Bradley–

The June 18^th Oregon Water Resources Commission meeting included a presentation concerning the current state of groundwater in Harney County.   Harney County development expanded in recent years, with a lot of this development driven by agriculture.  Much of the water needed for this development, derives from groundwater causing the number of irrigated acres sourced from groundwater to nearly double since the year 2000.

Currently, the Oregon Water Resources Department (OWRD) estimates that 30,000 acre-feet are withdrawn above the annual net recharge rate of the basin.   Additionally, OWRD estimates 80,000 acre-feet exist in the form of undeveloped permits.  WaterWatch filed a protest with OWRD in mid-2014 concerning applications for groundwater permits in the basin.

As a result, OWRD declared it will reject almost all of the pending groundwater permit applications, and will approve very few future groundwater permit applications until a basin study is completed.  This study could take up to five years to complete, but it will provide OWRD with more concrete data concerning the amount of water appropriated from the basin, annual recharge to the basin, how much water exists in the basin, and how much water contributes to surface water flows.

Ensuring senior water users have access to groundwater, is OWRD’s major concern at this time.  Unfortunately, OWRD will not be certain about the potential harm to senior rights holders until it obtains more information about the status of the basin through the study.  Prior to the Commission meeting OWRD held a town hall in Harney County where residents commented on OWRD’s permit issuance moratorium.  Current water rights holders in the county expressed relief at OWRD’s direction, while those hoping to develop new water uses were dismayed.

For now, OWRD will engage in the study of groundwater in Harney County and will deny pending groundwater applications. However, should the situation deteriorate, OWRD may consider additional actions, such as classifying the groundwater basin to only allow exempt uses, or requiring mitigation for new uses similar to the Deschutes Ground Water Basin.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more information about water in the West!

Download a Copy of the OWRD’s Harney County Groundwater Presentation

The Nevada Drought Forum announces its first meeting schedule. The Nevada Drought Forum was established by Governor Sandoval to assess and monitor the drought in Nevada, identify conservation practices and policy needs, and make recommendations to the Governor. The Forum seeks to evaluate drought findings and provide input on future steps in the form of a final report thus providing the Governor with information and action plans concerning the drought.

On June 11, 2015, the Nevada Drought Forum held an organizational kick-off meeting, open to the public, to provide introductions of the Drought Forum Members and to discuss the current drought status and forecast for the future. During this meeting they determined dates, times, and locations for future meetings and have circulated this information to encourage public attendance. The meeting schedule can be accessed at http://drought.nv.gov/Meetings/2015/Public_Meeting_Notification/. The drought in Nevada has profound and lasting effects on all who live here. Remember, your input and involvement can make a difference!