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!

By Derek Bradley

Most municipalities have water use permits reserved for their current needs and projected future growth, typically in the form of one or more municipal water rights of use or permits. These water use permits have timelines for the cities to fully develop the beneficial use entitlement. Based on current population and use, cities may not be able to apply the full volume of water to beneficial use by the timeline allowed in the water permit. In order to retain the volume allowed and priority of the water use permit, a municipality may request an extension of time from the Oregon Water Resources Department (OWRD) for additional time to develop the volume of water allowed in their permit.

The Oregon Senate is currently considering Senate Bill 712 (SB712) that could impact how much of the permitted but undeveloped portion is available for future development by Oregon municipalities.  This bill concerns municipal water permits requiring extensions for development that currently are subject to fish persistence conditions, or restrictions on water use to maintain stream flows for wildlife.

SB712 is in response to a 2013 Oregon Court of Appeals ruling, WaterWatch of Oregon v. OWRD, 259 Or. App. 717, decided on December 11, 2013.  In this case, the Court held that the reference to “undeveloped portion of the permit” in ORS 537.230(2), which was passed in 2005 as House Bill 3038,  “is to be measured by reference to the maximum rate of water applied to beneficial use before the expiration of the document deadline in the permit or last-issued extension.” Id. at 742.  The Court’s holding required the fish persistence condition to apply to all water use  not yet  put to beneficial use when the municipality’s previous permit terms or extension expired. For example, if a city held a water right of use by permit to 10 cubic feet per second (cfs) and can demonstrate use of 3 cfs at the time the permit condition expired for development, a condition in granting an extension of time would require fish persistence conditions attached to the remaining 7 cfs.

If the legislature passes SB712, this extension system will change so that the undeveloped portion of the water right permit will be considered to be the volume of water being used by either December 11, 2013, or the time specified to complete construction to perfect the water right in the permit or last approved extension. This alters the quantity of water subject to fish persistence conditions to a specific set date for all municipality extension applicants which would hopefully limit the current unending rounds of litigation that the municipal extensions are currently requiring. This change would also eliminate the large backlog of permit extension applications presently pending with OWRD.  Without this change many cities will have conditions placed on water use they have already begun putting to beneficial use because of the large lag time between expiration of the permit terms and granting of the extension application.  This bill would keep municipalities from the retroactive application of fish persistence conditions being applied to water use presently in use, with some of that usage dating back to the 90s.

Some groups focused on fish habitat view this bill as an attempt to change the terms of the 2005 compromise bill.  However, the intervening litigation since passage of the 2005 act illustrates that the “fish persistence” requirement is procedurally unworkable.  In the meantime, the Oregon courts continue to refuse to adopt the “growing communities” doctrine that would have mitigated the issues presented by the “fish persistence” ideals of fish habitat advocates.

Of course, municipalities are interested in having as much water available for development for their future growth as possible. In addition, the large investment municipalities must make require them to experience as little disruption as possible. This bill seems particularly fair to smaller municipalities that have limited resources to litigate the nuances of the “fish persistence” requirement and need their dollars to invest in water infrastructure with their less flexible water supplies and interconnects to other municipalities and sources.

While it is easy to see the concern of groups opposing SB712, (as it can take well over a decade for an extension to be approved and a municipality can increase their water usage substantially in that time), passage of SB712 will ultimately affect only a small amount of Oregon’s surface source waters.  Once all the current applications are processed by OWRD, all undeveloped municipal permits will have at least a portion of their permitted volumes subject to fish persistence conditions.  With a substantial backlog in extension applications (some cases extending over a decade and a half in water investments already made by some municipalities), SB712 will provide certainty for this state’s towns and cities as they plan how to manage their water use and development for future growth.

The Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“USACE”) have recently released a new waters of the United States rule under the Clean Water Act (“CWA”) that has been in the works for over a year concerning the definition of what are the ‘Waters of the United States.’ The importance of this definition is that anything that is considered a water of the United States can be regulated under the CWA. The scope and effect of this rule are a point of considerable contention among stakeholders. Environmentalists have applauded the rule while industry-led coalitions, including the American Farm Bureau Federation and American Petroleum Institute, have said the rule will stifle economic growth and is overly burdensome on farmers and business owners. Within the Federal Government itself Republican lawmakers have classified the rule as a power grab by the Obama Administration. The joint EPA and USACE press release, however, described the rule as providing clarity as to which waters are governed by the CWA, and that this rule will help alleviate confusion generated by Supreme Court rulings handed down in 2001 and 2006.

The two Supreme Court rulings in question are Rapanos v. Unites States, 547 U.S. 715 (2006) and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC the Court held that the Federal Government could not invoke the migratory bird rule as the reason why it could regulate isolated waters; this is the first case where the Court focused in on whether or not their existed a “significant nexus” between waters attempting to be regulated and navigable waterways. Meanwhile in Rapanos the Court issued a split decision regarding what may constitute ‘waters of the United States’ for the purposes of invoking CWA jurisdiction. The plurality in Rapanos created a ‘relatively permanent flow’ test for deciding whether the Federal Government has jurisdiction over a body of water. Kennedy, in his concurrence, outlined a more expansive test focusing on whether or not a body of water affects the physical, biological, or chemical integrity of a downstream navigable waterway for determining whether or not there was a “significant nexus” between the two.

While proclaiming to have taken into account the plurality opinion as well, it is clear that the EPA and USACE tailored the rule to be more in line with Justice Kennedy’s opinion. This can be seen by the Executive Summary of the Rule quoting Justice Kennedy:

Justice Kennedy concluded that wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 547 U.S. at 780.

In the official discussion of the rule the EPA and USACE outline five different types of waters that this new rule will cover and describe how each of these types of bodies of waters can significantly affect navigable waterways. These five types of waters are Prairie Potholes, which are glacially formed pools in the central north of the country, they generally connect to navigable waterways through shallow subsurface flows or artificially created drainage mechanisms. Carolina and Delmarva bays exist on the Atlantic coast and are formed by precipitation with the bodies of water usually draining into shallow groundwater, these bodies of water tend to be lumped together and/or close to streams. The third type of body of water that the new rule will be covering are pocosins, which are found in the southeastern portion of the country and are peat accumulating wetlands that exist on a hill. Next are western vernal pools which are seasonal bodies of water, they form in wet months in the west and then either drain or evaporate during dry summer months. Finally coastal prairie wetlands found in Louisiana and Texas will be regulated; these are freshwater wetlands that are found in abundance and generally collectively drain to a common river or tributary. The rule goes in to great length discussing why the agencies find each of these types of waters to have a significant nexus to navigable waters. If a body of water on a piece of property is found to connect to similar small bodies of water that are ultimately hydrologically connected to a navigable waterway then they will fall under the jurisdiction of the CWA.

The EPA and USACE press release specifically notes that “ditches that are not constructed in streams and that flow only when it rains are not covered.” The Wall Street Journal reports that only about 3% more waterways will be put under federal jurisdiction with this new rule. But most of the concern regarding the rule surrounds the types of waters that the expansion covers and not the quantity. Four of the five new types of waters outlined in the rule occur in depressions on a variety of land, some of which could be on farmland and/or land used for mining purposes. The EPA and USACE have determined that these types of waters have a “significant nexus” to navigable waters. While the rule doesn’t change exemptions or exclusions to the CWA (including the agricultural exemptions and exceptions), concern arise from landowners being uncertain if a small body of water that forms on their land is a “prairie pothole” or other type of water covered by the CWA, or simply a large hydrologically disconnected pooling of water. Determining the hydrological connections of these pools of water could prove costly.

While the comment period for this rule has closed and the rule will go in to full effect in late July Schroeder Law Offices submitted comments on the draft rules on behalf of our clients. Ultimately, much of the uncertainty concerning this rule will not be clarified until it is in full effect and users/landowners can see how the Federal agencies apply it. Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that may affect you!

The 300 page document outlining and discussing the rule released by the agencies can be found here.

The USACE and EPA Press Release can be found here.

The Wall Street Journal Article can be found here.

The April issue of Nevada Lawyer Magazine focuses on Agriculture Law. Matthew Curti, along with attorney Linda Bullen, authored an article about the importance of submitting comments to Environmental Protection Agency (EPA) rulemaking, as well as National Environmental Policy Act (NEPA) draft Environmental Impact Statements (EIS). The article provides an overview of the commenting process, and also provides tips for writing effective comments.

For the full article, visit http://nvbar.org/articles/sites/default/files/NevLawyer_April_2015_AG_Client.pdf

On February 3, 2015, the Nevada State Engineer issued Order 1250 curtailing 50% of all supplemental groundwater pumping for irrigation in both Mason and Smith Valleys. This action by the Nevada State Engineer was the first time curtailment of this magnitude has taken place in Nevada. Order 1250 determined supplemental groundwater use for irrigation to be a non-preferred use of water. Accordingly, the State Engineer proceeded to “tag” all supplemental irrigation wells identifying those subject to curtailment.

On March 4, 2015, a group of local water users (“Farmers Against Curtailment Order, LLC”) filed a Petition for Judicial Review challenging the State Engineer’s Order.  On March 9^th, the group moved for a preliminary injunction seeking to stop the Order from going into effect. District Court Judge Leon Aberasturi, after hearing argument on the injunction, granted the temporary injunction upon a finding that irreparable harm will occur to the farmers in Mason and Smith Valleys if the curtailment took place as written. The Judge stated that he intends to move this case along to its final ruling as quickly as possible.

For more information on this issue, please visit http://www.rgj.com/story/news/local/mason-valley/2015/04/03/judge-grants-injunction-curtailment/25243335/.

On March 27^th, 2015, California Governor Edmund G. Brown signed into law a $1 Billion emergency drought package. The emergency legislation (AB 91 and 92) provides funding for drought relief as well as to critical water projects in the state. Governor Brown states that “[t]his funding is just one piece of [a] much larger effort to help those most impacted by the drought and prepare the state for an uncertain future.” The bill will offer money for emergency food aid, drinking water, water recycling, conservation awareness, water system modeling, species tracking, and infrastructure and flood protection funding, to name a few.

The full text of AB 91 and 92 can be found at http://leginfo.legislature.ca.gov/.

This all comes just weeks after the California State Water Resource Control Board (“Board”) expanded its Emergency Water Conservation Regulations. The Board now prohibits certain potable water uses such as washing down driveways, and washing a motor vehicle with a hose not equipped with a “shut-off nozzle”, and commercial changes such as restaurants only providing water upon request. (A list of all changes to these regulations, can be found at http://www.swrcb.ca.gov/). Local agencies are able to fine property owners up to $500 a day for failure to implement conservation requirements of the Board.

More information about ongoing action in California pertaining to the drought can be found at http://ca.gov/drought/.

With the 2015 Oregon Legislative Session in full swing, below is a list of water-related bills that may be of interest:

• HB 2207 Authorizes Environmental Quality Commission to adopt by rule procedures for implementing alternative ballast water management strategies for vessels with empty ballast tanks

• HB 2451 Extends maximum loan term for loans made from Water Pollution Control Revolving Fund to 30 Years. Allows Department of Environmental Quality to buy or refinance debt obligations of public agencies for all projects otherwise qualified for financial assistance through Water Pollution Control Revolving Fund.

• HB 2498 Prohibits Environmental Quality Commission and Department of Environmental Quality from adopting any rule or issuing any order concerning water quality that imposes requirements, standards or any other limitation that exceeds requirements, standards or any other limitation imposed under federal law.

• HB 2499 Prohibits Environmental Quality Commission from adopting any rule concerning air quality and water quality that imposes requirements, standards or any other limitation that exceeds requirements, standards or any other limitation imposed under federal law.

• HB 2517 Modifies definition “native fish” for purposes of salmon and trout enhancement program.

• HB 2589 Requires State Department of Agriculture to adopt rules prohibiting application of pesticide products containing nitro-group neonicotinoids.

• HB 2666 Establishes process for county to evaluate whether proposed mining use causes significant change or significant increase in cost when federal or state agency has not issued permit authorizing proposed mining use. Requires county to find that proposed mining use does not force significant change in accepted farm or forest practice or significantly increase cost of accepted farm or forest practices if mining use complies with applicable federal, state and local environmental standards.

• HB 3123 Prohibits application of pesticide by aircraft except under terms and conditions of pest emergency declaration issued by State Department of Agriculture or State Forestry Department.

• HB 3220 Eliminates authority of irrigation districts to condemn real or personal property outside boundaries of district.

• HB 3415 Imposes 10-year moratorium on use of hydraulic fracturing for oil and gas exploration and production.

• SB 0191 Creates guidance document as new form for statement of state agency’s practice, policy or interpretation of law. Provides that issuance of guidance document is not subject to rulemaking procedures. [Although not 100% water-related, this bill relates to the way the Oregon Water Resources Department, Department of Environmental Quality, and Oregon Department of Fish and Wildlife operate, as well as the other Oregon agencies.]

• SB 0204 Establishes Working Forests and Farms Advisory Committee to provide advice regarding three new programs for maintaining or restoring conservation benefits of working forests and farms.

• SB 0205 Creates Task Force on Innovations in Water Quality.

• SB 0261 Increases ballast water trip fee to $88.

• SB 0412 Defines conditions when rock, gravel, sand, silt and other similar material removed from waters of state are and are not solid waste.

• SB 0537 Establishes Task Force on Standing in Proceedings Regarding Water.

• SB 0744 Requires agencies to estimate costs borne by businesses and industrial sectors to comply with proposed rules. Prohibits adoption of proposed rule unless estimated cost of compliance with proposed rule is offset by estimated cost reductions from other proposed rule, amendment or repeal of existing rules or modifications of existing compliance with regulatory burden placed on business, as specified by agency proposing rule. [Although not 100% water-related, this bill relates to the way the Oregon Water Resources Department, Department of Environmental Quality, and Oregon Department of Fish and Wildlife operate, as well as the other Oregon agencies.]

• SB 0829 Directs Environmental Quality Commission to adopt by rule methodology for Department of Environmental Quality to apply certain water quality standards in assessing waters of state.

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

On February 5, 2015, the Oregon Supreme Court dismissed the petition for review of the Court of Appeal’s decision interpreting ORS 537.230(2), simply stating, “The petition for review is dismissed as improvidently allowed.”

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting ORS 537.230(2), prescribing conditions for the Oregon Water Resources Department (“OWRD”) to grant municipal permit extensions to complete construction and apply water to beneficial use. The conditions require OWRD to approve the municipal water user’s water management and conservation plan, and to make a determination that the municipal permit will maintain the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.

Cottage Grove sought an extension to perfect its municipal permit, but then placed its application on administrative hold while it completed construction and application of water to beneficial use. Cottage Grove lifted the administrative hold after completing construction and beneficial use of all the water under its permit, and OWRD granted Cottage Grove’s extension without the ORS 537.230(2) conditions because Cottage Grove had already diverted all the water allowed under its permit, leaving no portion for imposing conditions upon.

WaterWatch sought judicial review of OWRD’s proposed final order approving the extension without the ORS 537.230(2) conditions. The Court of Appeals ruled that the undeveloped portion of the permit before extension must be measured at the time specified in the permit or last extension. Otherwise, municipalities could avoid the ORS 537.230(2) conditions by developing additional amounts of water before applying for extensions.

Although the Oregon Supreme Court originally agreed to hear the appeal, it dismissed the petition for review. This means that the Oregon Court of Appeal’s decision in 2013 will guide application of ORS 537.230(2). OWRD must condition municipal extensions on approval of a water management and conservation plan, and must condition development of the remaining water use upon persistence of fish species listed as sensitive, threatened or endangered.

For more water news that may affect you, stay tuned to Schroeder Law Offices’ Water Law Blog!