For municipalities tasked with eliminating stormwater drainage, options tend to be expensive or regulatory steeple-chases with several iterations of reports, plans, approval processes, and permitting. A recent addition to the municipal toolbox of reducing stormwater runoff is the incorporation of Low Impact Development (LID) techniques that can serve as an alternative to the typical stormwater channelization and drainage systems.

The focus of LID is to improve water quality concerns with stormwater runoff; that is by using runoff on the site where it falls, as opposed to conveying the runoff to other locations and transporting pollutants, including sediments, with the runoff. Some of the techniques used include biofiltration and retention basins and swales, rain gardens, green streets, pavement minimization, and permeable pavements. In addition to reducing discharge into adjacent waterbodies, LID implementation can increase groundwater recharge and possibly lower demands on landscaping irrigation. Part of the driving force behind LID developments includes regulatory pressures from state and federal agencies. The Clean Water Act and National Pollutant Discharge Elimination System (NPDES) program require qualifying municipalities to develop and implement stormwater management programs under municipal separate storm sewer system (MS4) permits.

Exploring LID techniques may help a municipality decide if these kinds of practices would be beneficial, and incorporating LID as a stormwater discharge in the local planning codes can be a runoff reduction technique that can lower costs associated with MS4 water treatment and meet permitting planning requirements. In Oregon, the Department of Environmental Quality (DEQ) administers the MS4 program permits, and as part of the permitting requirements, some municipalities have developed stormwater management plans requiring new developments and redevelopments to implement LID where feasible.

LID used as a compliance tool in MS4 permitting

Depending on the size of the municipality, the DEQ can require either Phase I or Phase II MS4 permit, with Phase I sources have populations greater than 100,000, and Phase II sources with populations less than 100,000 and located within a Census-Bureau defined “Urbanized Area.” While the municipalities within these classifications are already aware of the MS4 requirements, entities experiencing growth may find themselves seeking waivers or become very familiar with MS4 permitting through necessary compliance.

For those entities already working within the MS4 permitting regime, LID programs within municipal control could offer compliance with permit conditions requiring “Minimum Control Measures” including:

1) Public Education and Outreach on Stormwater Impacts by identifying LID infrastructure with signage explaining the use and purpose of the bioswale, green street, permeable pavements, etc.;

2) Public Involvement/Participation through implementation LID design concepts in the local planning commissions;

3) Illicit Discharge Detection and Elimination through diverting some possible illicit discharges away from the traditional stormwater sewer system and identifying sources of the discharge closer to the originating site; and

4) Post-Construction Stormwater Management in New Development and Redevelopment through implementation of the localized LID policies and requirements, as readily identified to developers by clear planning and design standards.

For those entities not yet required to perform within the MS4 permitting regime, having LID concepts employed could serve as a technique to reduce the overall Total Maximum Daily Loads (TMDL) for stormwater sewer discharges, thereby possibly qualifying the entity for an MS4 permitting waiver under federal regulations.

LID as an alternative or compliment to Injection Systems

Rule authorized injection systems are subject to a laundry-list of certifications and requirements in order to protect groundwater supplies from contamination. Prior to authorizing an injection system, the DEQ requires developers to consider LID concepts when municipal stormwater sewer connections are unavailable, and certify that no other stormwater disposal method is appropriate. LID options offer a municipal or private entity the ability to remove stormwater without the degree of regulatory oversight as with injection systems, and can serve as either a primary way of disposing of stormwater or can complement injection system design by removing stormwater that cannot meet the quality requirements of the injection system regulations.

Issues with implementing LID

As with any proposed method of implementing local zoning regulations and design standards, LID may not be appropriate for the particular application. Planning and zoning codes should not be intended as static one-size-fits-all requirements. Issues could include high water tables, previous on-site contamination, or economic issues involving larger rights-of-way and private landowner compensation. Within the proposed local land use planning codes, drafters should incorporate flexibility into the application of LID requirements, while not making the exemptions so broad as to make implementation useless, should that be the desire of the local leadership. LID implementation could be a way for new development or redevelopment to reduce overall strormwater loads, and could be incentivized with a reduction in system development charges. While LID is not a cure-all to a municipality’s issues with stormwater drainage and treatment, it offers an alternative and an additional tool to use when stormwater discharge regulation is already an issue, or is easily visible on the horizon.

On April 21, 2014, the Federal Register published a proposed rule drafted to clarify the definition of “Waters of the U.S.” under the Clean Water Act.  According to the U.S. Environmental Protection Agency (“EPA”), the proposed rule was released by the EPA and the U.S. Corps of Engineers (“Corps”) with the intention of clarifying protection for streams and wetlands, that had become complex following recent Supreme Court Decisions, under the Clean Water Act.

The proposed rule has created controversy with some agricultural organizations who  worry that under the proposed expansion, all waters in the country will be subject to regulation by the EPA and Corps.

The public comment period for the proposed rule will be open until Monday, July 21, 2014.  To view the full text of the proposed rule, please visit the Federal Register’s online database at http://www.gpo.gov/fdsys/pkg/FR-2014-04-21/pdf/2014-07142.pdf.

Earth Day is a great reminder that we can all gather together to learn about our world’s ability to sustain life for ourselves and future generations.

In the legal field, the American Bar Association, Section of Environment, Energy, and Resources (“ABA”) is sponsoring a project in support of Earth Day.  It is a nationwide public service project called “One Million Trees”.  The goal is to plant one million trees across the United States.  The ABA has been working on this project since 2009 by planting trees themselves and by contributing to partnering organizations.

Likewise, Schroeder Law Office employees are participating in various activities throughout April to support our land’s sustainable resource and agricultural uses via Oregon’s Ag Fest, Oregon Women for Agriculture Auction and Dinner event, OSB Environmental and Natural Resource meetings, and Nevada Water Resource Association event planning meetings for future water programs.

Get outside and learn about water as part of Earth Day in 2014!

On March 13, 2014, the U.S. House of Representatives passed H.R. 3189, the “Water Rights Protection Act.” This piece of legislation was introduced by Rep. Scott Tipton of Colorado, and Rep. Mark Amodei of Nevada. In a press release, Rep. Mark Amodei states that, “[t]he bill would protect communities, businesses, recreation opportunities, farmers, ranchers and other individuals who rely on privately held water rights for their livelihoods. It would prohibit federal agencies from confiscating water rights through the use of permits, leases, and other land management arrangements.”

This Act prohibits the US government, and more specifically, the Secretary of the Interior and the Secretary of Agriculture, from conditioning the issuance, renewal, amendment, or extension of any land use or occupancy agreement on the transfer of any water right directly to the United States. Such prohibition is meant to protect privately held water rights from federal takings.

On March 4–7, the 2014 United States Committee on Irrigation and Drainage (USCID) met in Sacramento California on the topic of “Groundwater Issues and Water Management—Strategies Addressing the Challenges of Sustainability.”  The Conference included our study of “Conjunctive Management: Changing Water Regulation and Evolving Strategies.” This paper focused on western States regulation of surface and groundwater conjunctively (or not), concluding with creative approaches for water users to employ should groundwater be restricted or limited.

The common themes emerging from the conference included: the increasing reliance on groundwater when surface water becomes limited, salinity concerns from groundwater, and questions on whether California will implement centralized State-control of the groundwater supply. Given the past history of water regulation tied to cyclical droughts, water users and irrigation districts are uncertain about planning for future infrastructure investments when there is the possibility of potential State regulation of their groundwater use.

From an Oregon perspective, State-controlled groundwater use is a daily reality, and you can ask anyone in the Klamath River Basin on their possible concerns of their wells being turned off by the State. For the second year in a row, the Governor declared a drought in much of the southern half of Oregon, and the Oregon Water Resources Department is initiating rulemaking to restrict water diversions in Klamath County. The conference also included tours of two irrigation districts, demonstrating on-call water delivery with a pressurized irrigation pilot program, and an automated lateral demonstration project. These two projects brought irrigation into the 21^st century with water scheduling as easy to order as an airplane ticket.

During the tours I had to opportunity to discuss with irrigation district staff about whether the pressing water shortage will change the regulatory framework moving forward, or whether the will decrease after the rains return. Ideas about increased groundwater recharge and storage during times of water surplus are forthcoming now, but once the water returns, will these ideas remain in the forefront? California water users will be faced with important decision in the coming months, many of which will be how to provide for the nation’s pantries when faced with little to no allocation of surface water. Much like the implementation of automated water delivery of water is moving into the 21^st century, California will likely be at the forefront of 21^st century water storage technology given the stakes of deciding otherwise.

National Ground Water Awareness Week brings our attention to the “hot” issues in ground water now focused in Oregon, perhaps surprising to some, in the Klamath Basin.

On March 7, 2013, the Oregon Water Resources Department (“the Department”) issued its Findings of Fact and Order of Determination (“FFOD”), thus ending the administrative phase of the Klamath Basin Adjudication for pre-1909 surface water claims. Once the FFOD was entered, the Department became vested with the power to administer and regulate adjudicated water use rights according to priority of use, meaning that the Department may order junior water users to shut off water use if there is not enough water in the system to satisfy senior users to their full extent. During the 2013 irrigation season, the Klamath Tribes, holding the most senior water rights pursuant to the FFOD, made a call on the water to satisfy the Tribes’ instream adjudicated claims, and the Department sent notice letters to surface water users to regulate all junior surface water uses upstream.

Under Oregon Administrative Rules (“OAR”) Chapter 690, Division 9, the Department has authority to regulate ground water uses against substantial interference with surface water supplies where the use is hydraulically connected to the surface water. All wells located less than ¼ of a mile from a surface water source and producing water from an unconfined aquifer are presumed by the OAR to be hydraulically connected to the surface water source, unless the appropriator provides evidence to the contrary. Wells that pull water from an unconfined aquifer outside the ¼ boundary or from a confined aquifer must be evaluated by the Department for hydraulic connection to surface water sources.

http://pubs.usgs.gov/circ/circ1217/html/boxa.html, at figure A-2

Also by OAR, wells that produce water from a hydraulically connected aquifer are assumed to have the potential to cause substantial interference with a surface source if they are located within one mile of the surface source. In evaluating hydraulic connection in the Klamath Basin, the Department prepared a ground water model.

Recent information indicates that the Department will rely on its regional modeling to establish a presumption that wells within 1 mile of Klamath Lake, Agency Lake or within 1 mile of perennial gaining reaches of streams tributary to Upper Klamath Lake have the potential to cause substantial interference with the aforementioned surface sources (“gaining” reaches of streams are those that have increased flow as a result of ground water contribution to surface stream flows). Consequently, according to the OAR, these ground water uses will be subject to control (or regulation) by the Department.

Anticipating that the Department will begin shutting off wells within the “presumed” surface water connection boundary, Oregon Representative Gail Whitsett and Oregon Senator Doug Whitsett sponsored identical bills to add provisions within the Oregon Revised Statutes to protect ground water users by requiring the Department to tie regulation of a particular well or proposed well to scientific evidence that is specific to that use, rather than relying on a presumed surface water connection or a presumption created by a regional model. The full text of Senate Bill 1572 and House Bill 4044 can be accessed by following the links below.

https://olis.leg.state.or.us/liz/2014R1/Downloads/MeasureDocument/SB1572

https://olis.leg.state.or.us/liz/2014R1/Downloads/MeasureDocument/HB4044

The main focus of the bills was to require written notice prior to any action by the Department to regulate ground water use rights as a result of adjudicated claims, based upon the presumption of surface water interference and general regional modeling. The notice must be supported by the report of a qualified hydrologist finding a specific hydrologic connection between the well location at issue and the point of appropriation for the senior water use right. The supporting report must find that regulation of the ground water use would have a measurable effect on exercising the senior water use right. The bills also sought to prohibit the Department from amending a proposed final order to include additional supporting information following a request for hearing, and allow for collection of attorney’s fees by the water right applicant or water right holder under various circumstances.

Unfortunately, neither bill was passed during the 2014 regular session. The House bill was given a hearing, but no vote! Senator Whitsett and Representative Whitsett discussed their efforts during the February 21^st Oregon Cattlemen’s Association’s Quarterly Meeting, and reported that they intend to reintroduce the bills during the next legislative session.

Thus, the OARs will continue to place the burden on the ground water user to prove a negative in the case of a senior surface water call: that their well is not hydraulically connected to the nearest surface source.

Stay tuned to Schroeder Law Offices’ Water Law Blog as we follow the progression of this important legislation.

On February 13, 2014, Oregon Governor John Kitzhaber declared a drought emergency for four southeastern counties (Klamath, Lake, Harney, and Malheur) in Oregon Executive Order No. 14-01. “The unusual act of declaring a drought emergency in the middle of February is an indication of how severe the conditions are in southern Oregon and of the hardships being faced by communities throughout the region,” said Senator Wyden. The press release and Executive Order are available at: http://www.oregon.gov/owrd/pages/wr/drought.aspx.

The drought declaration increases flexibility for how water is managed in the counties where a drought has been declared. Water right holders who are unable to use water due to drought conditions may apply to the Oregon Water Resources Department (“OWRD”) for an Emergency Use Permit for temporary use from an alternative water source. Another option is a Temporary Drought Transfer, which allows a person who is unable to use water appurtenant to a certain parcel of property due to drought conditions to temporarily transfer a different permit, certificate, decreed right, or claim to the land needing the water without going through the normal notice and waiting requirements for a standard transfer. Finally, local governments and public corporations may enter into options or agreements to use water under an existing permit, certificate, or decreed water use right, allowing the entity to use the water at points of diversion and for beneficial uses other than those described in the water use right, provided OWRD approves the option or agreement.

Schroeder Law Offices has successfully worked with clients in obtaining water use through the drought mechanisms when droughts are declared. We recommend contacting Schroeder Law Offices early if you need, or might need assistance with a drought application.

According to the New York Times, the Colorado River has suffered a 14 year drought reducing the flow of the river and diminishing it’s man made reservoirs to less than half of their capacities. Approximately 75% of it’s water is used by agriculture in California’s Imperial Valley and Wyoming’s cattle herds (producing 15% of the nation’s food). Studies of global-warming are concluding that due to rising temperatures, the Colorado’s average flow will further be reduced by 2050 anywhere from 5% to 35%, even if rainfall remains the same, noting that most studies predict a reduction in rainfall.

Regional water agencies have allotments for river water, and in an effort to stretch those allotments they are seeking alternative resources. For example, some agencies are recycling sewage waste, while others have begun offering rebates to customers who remove their grass lawns or subsidize appliances with more water efficient models. Furthermore, this year the federal authorities will reduce the amount of water that flows into Lake Mead from Lake Powell. Lake Mead is one of the nation’s largest reservoirs. Lake Mead provides water to cities from Las Vegas to Los Angeles and is a critical source of water for millions of acres of farmland. According to the senior deputy manager of the Southern Nevada Water Authority (“SNWA”), if Lake Mead goes below an elevation of 1,000 feet above sea level, SNWA would lose the ability to pump water for municipal services. The SNWA has been drilling tunnels under the lake in an attempt to capture more water, and are currently drilling an $817 million tunnel, the third so far.

Seven states, and Mexico, share the water from the Colorado River, and although some states have made progress in conservation efforts, there is no united plan to deal with the shortages that could last several years or decades. In the 1920s, the Colorado basin states split the water 50-50 between the upper-basin states (i.e., Colorado, New Mexico, Utah and Wyoming) and the lower-basin states (i.e., Arizona, California and Nevada). However, at the time it was not anticipated that the fast-growing lower-basin states would need more water than it’s upper counterpart.

During the 1960’s Arizona proposed the Central Arizona Project, a web of canals designed to irrigate the state’s farms and cities. In return for support of federal legislation needed to build the project, California required priority on lower-basin water. In the event that Lake Mead continues to fall, Arizona could lose half of its Colorado River water before California loses any. If Arizona loses its Colorado River water, the Central Arizona Project could lose revenue resulting in a likely increase to water costs for remaining customers. The farmers will likely return to pumping groundwater for irrigation, which is what the Central Arizona Project was designed to prevent.

According to the New York Times, solutions to this problem are few and, in some cases, unrealistic. Living with a permanently drier Colorado River may be possible, but will be very difficult. Finding more water poses problems as there are too few alternative sources to make an impact on the shortage. Conservation appears to be the most realistic and practical option, and it has already begun. Arizona farmers have started using laser technology to ensure their fields are flat, thereby reducing runoff. Southern California’s Metropolitan Water District is recycling sewage waste and giving away high-efficiency water nozzles and subsidizations for alternative lawns and appliances. In Southern Nevada, nearly all water used indoors is treated and returned to Lake Mead. While federal officials are acknowledging these efforts and their impacts, they insist much greater conservation is possible and necessary for the 21st century.

For more information: http://www.nytimes.com/2014/01/06/us/colorado-river-drought-forces-a-painful-reckoning-for-states.html?

Last Wednesday, I had the opportunity to attend a Continuing Legal Education seminar, the topic being “Is Western Water Law Sustainable?’ Over the course of the hour and a half long discussion, we heard the history of the way the prior appropriation doctrine assumed its prominence in the water law of Oregon, and then a two sided argument about how Oregon’s water laws were, or weren’t up to the challenge to deal with issues related to depleted stream flows and decreased water availability.

The main points offered by the proponents of western water law being sustainable were that the laws are evolving to meet changing demands and public values. For example, allowing DEQ, ODFW, and OPRD to apply for in-stream water flows to promote increased water for wildlife, recreation, and pollution abatement. The opponents of western water law had a much more concise point, stating unabashedly that western water law is not sustainable, was the “mother of all train wrecks,” and “ a slow motion disaster.” Besides the hyperbole and fleeting reference to environmental philosophers, a reoccurring point of discussion that came up was how water was a public resource, and yet water users were not being charged to use the water associated with their water rights.

Besides being a directly economically crippling measure aimed at taking cropland out of production, the trickle down effects of charging for water use would be astronomical. Should Oregon be the only western state to impose a “tax,” “user fee,” or whatever label sounds appropriate at the time, locally sourced produce would increase in cost.  Oregon farmers would not be able to compete on a national level with regional or national producers. Would these out of business farmers be able to cover their bank loans after this water-use paradigm shift? Unlikely, so the financial industry would be harmed as well. What about municipalities? Would the municipalities be charged for consuming public water? And where would the costs shift? What about domestic wells? Of course, these are largely rhetorical questions because the answers are obvious: the consumer would face increased costs for “made in Oregon products,” face increased costs of living to reside in Oregon, and contribute to higher transportation activity when cheaper goods from out-of-state are imported. Disposable income would shrink, and the Oregon economy would contract.

What is apparent is that key philosophical differences and values involved in the “sustainability” discussion make a middle ground difficult to achieve, especially with a shared resource like water because nearly everyone has a stake in the decision making process. If we can take an example of conflicting values from history, such as the debate on which theological approach is correct, we have a ways to go to bridge the gap and gain consensus on this important and pressing issue.

Countdown to World Water Day 2014: 66 days!

World Water Day 2014 focuses on the relationship between water and energy.  The United Nations-Water and United Nations-Energy programs within the United Nations System are working with the UN’s Member States and other stakeholders to highlight the interconnected nature of water and energy.  Specifically, water is required to generate different forms of energy and energy is required to transport and treat water for consumption.  The UN’s goal is to contribute to policy discussions related to the water-energy relationship and determine meaningful ways for UN participation in development of water-energy programs to achieve economic and social benefits.

Please join Schroeder Law Offices in celebrating World Water Day 2014!

Additional information on the UN World Water Day 2014 may be found by following the link below:

http://www.unwater.org/worldwaterday/about-world-water-day/world-water-day-2014-water-and-energy/en/

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting the amended ORS 537.230(2) conditions. ORS 537.230(2) prescribes conditions for the Oregon Water Resources Department (“the Department”) to grant municipal permit extensions to complete construction and apply water to beneficial use in order to perfect water use rights. In this case, the City of Cottage Grove (“the City”) sought an extension, but then completed construction and application of water to beneficial use before the extension was granted. Based upon the language of the statute, the Department issued the extension without the ORS 537.230(2) conditions, and WaterWatch sought judicial review. The Oregon Court of Appeals reversed and remanded the Department’s final order.

In 2005, ORS 537.230(2) was amended by the passage of HB 3038 to allow municipal permittees to have up to 20 years to commence and complete construction of proposed water use infrastructure and apply water to beneficial use (as opposed to the previous 5-year deadline), so long as certain conditions are imposed. ORS 537.230(2) currently provides:

(2) The holder of a permit for municipal use shall commence and complete the construction of any proposed works within 20 years from the date on which a permit for municipal use is issued under ORS 537.211. The construction must proceed with reasonable diligence and be completed within the time specified in the permit, not to exceed 20 years. However, the department may order and allow an extension of time to complete construction or to perfect a water right beyond the time specified in the permit under the following conditions:

(a) The holder shows good cause. In determining the extension, the department shall give due weight to the considerations described under ORS 539.010 (5) and to whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right;

(b) The extension of time is conditioned to provide that the holder may divert water beyond the maximum rate diverted for beneficial use before the extension only upon approval by the department of a water management and conservation plan; and

(c) For the first extension issued after June 29, 2005, for a permit for municipal use issued before November 2, 1998, the department finds that the undeveloped portion of the permit is conditioned to maintain, in the portions of waterways affected by water use under the permit, the persistence of fish species listed as sensitive, threatened or endangered under state or federal law. The department shall base its finding on existing data and upon the advice of the State Department of Fish and Wildlife. An existing fish protection agreement between the permit holder and a state or federal agency that includes conditions to maintain the persistence of any listed fish species in the affected portion of the waterway is conclusive for purposes of the finding.

In the Cottage Grove Case, 2013 WL 6498547, 2013 Ore. App. LEXIS 1463 (December 11, 2013), the ORS 537.230(2)(b) and (c) conditions were tested. The City of Cottage Grove was issued a permit in 1977 with deadlines to complete construction in 1979 and apply water to beneficial use in 1980. The City was granted a number of extensions, ending in 1999.

In 2007, the City enlarged its water treatment plant and applied to the Department for an extension of time to perfect its water use right. Prior to being granted an extension, the City applied the full amount of water allowed under its permit to beneficial use. The Department thereafter approved the City’s extension, but without the ORS 537.230(2)(b) and (c) conditions because the Department determined that there was no undeveloped portion of the permit at the time of the most current extension. WaterWatch sought judicial review of the Department’s order approving the extension in the Oregon Court of Appeals. The Department thereafter issued a water right certificate to the City.

First, the Oregon Court of Appeals determined that WaterWatch’s action was no rendered moot by the issuance of a water right certificate. Although water right certificates may only be cancelled for certain statutory reasons (ORS 537.250(3)), and are generally “conclusive evidence of the priority and extent of the appropriation therein described” (ORS 537.270), the Court determined that the validity of the certificate was predicated upon the validity of the final order approving the extension application as a necessary prerequisite to the certificate. Therefore, if the final order approving the extension was reversed, the certificate could be cancelled as well.

Second, the Oregon Court of Appeals conducted statutory interpretation to determine whether the “undeveloped portion of the permit” should be measured at the time the extension application is considered by the Department (as argued by the Department and City), or whether it should be measured at the permit deadlines or previous extension deadlines (as argued by WaterWatch). The Court outlined the legislative history leading to the ORS 537.230 amendment, and concluded that the statutory amendment represented a compromise between environmental interests and municipal needs to engage in staged water development.

The Court ruled for WaterWatch, holding 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. The Oregon Court of Appeals ruled that the Department’s failure to condition the permit extension on ORS 537.230(2)(b) and (c) was inconsistent with the statute. The Court reversed and remanded the Final Order for the Department to vacate the water right certificate and reconsider the permit extension in line with the Court’s decision.

The Cottage Grove Case is the first in a number of municipal extension judicial review cases. The statutory interpretation will affect numerous municipal entities throughout the State of Oregon, and require municipalities to implement water conservation management plans and protect the persistence of certain fish species when conducting staged water development that requires extensions of time. This will make staged development of water resources for municipal uses more challenging. It is currently unknown whether the Department or the City will seek review before the Oregon Supreme Court.

For a full version of this article, visit the Oregon State Bar Environmental & Natural Resources Section webpage, at: http://osbenviro.homestead.com/.

Stay tuned to Schroeder Law Offices Water Law Blog for more water news that could affect you!

Nevada’s State Engineer had granted the Southern Nevada Water Authority (“SNWA”), formerly known as Las Vegas Valley Water District, the largest water appropriation in Nevada’s history for use of water from Spring Valley, Cave Valley, Dry Lake Valley and Delamar Valley, even after several parties protested the applications. The protestants, Great Basin Water Network, White Pine County of Nevada, Millard and Juab Counties in Utah, the Ely Shoshone and Duckwater Shoshone Tribes, the Confederate Tribe of the Goshute Reservation and the Churchill Latter-Day Saints on behalf of the Cleveland Ranch succeeded on appeal arguing that measures were not adequately established to protect ranchers and other water users. Senior district Judge Robert Estes agreed.

This SNWA project would include constructing a 285-mile pipeline to move billions of gallons of water from Cave, Delamar, Dry Lake, and Spring Valleys. Many agricultural communities rely on the water in these valleys, and while they understand Las Vegas’ plight, they believe exploration of alternatives should be conducted to assess sustainable ways for Las Vegas to live within its means.

In his decision, Judge Estes ruled that water from Cave, Dry Lake, and Delamar Valleys has already been appropriated. Although Spring Valley possesses much more water than Cave, Dry Lake and Delamar, Judge Estes found that not enough information regarding impacts, conflicts and environmental effects was provided to ensure the withdrawals would not injure existing water right holders or the environment. He was also concerned that no information was provided to show when and if Spring Valley’s groundwater would reach it’s new equilibrium.

The State Engineer and SNWA had agreed upon a hydrologic and biologic Monitoring, Management and Mitigation plan (MMM) as a condition of the appropriation of water. Judge Estes ruled that the MMM Plan was flawed as it did not provide objective standards as to how or when monitoring, managing or mitigating would take place. Further, the MMM Plan did not specifically included Snake Valley, Utah. Judge Estes remanded the decision back to the State Engineer to recalculate water availability, include Juab and Millard counties in the mitigation plans, and to define standards, thresholds and triggers of mitigation.

Senator Doug Whitsett”s recent e-newsletter provides some insight into EPA’s proposed rule concerning Clean Water Act Jurisdiction.  Read more here.

The Yakima River Basin Integrated Plan was the predominant topic at the Washington State Water Resources Association annual conference, with legislators, agency representatives, and stakeholders alike discussing the status of an ecological restoration project that supporters maintain is unprecedented in the United States.

Conference speakers, including state Rep. Judy Warnick and state Sen. Jim Honeyford as well as members of the plan’s working group, particularly focused on three implementation-phase issues: a state-budget allocation of $137 million for funding from 2013-15; the purchase of 50,000 acres of private forestland in the Teanaway drainage by the Dept. of Natural Resources; and the development of environmental impact statements for proposed projects. The U.S. Dept. of Reclamation and the Washington State Dept. of Ecology are soliciting comments on the EIS scope of three projects proposed in Kittitas County–Cle Elum Pool Raise, Kachess Drought Relief Pumping, and Keechelus to Kachess Conveyance–through Dec. 16. Information on the submission process can be found at http://www.ecy.wa.gov/programs/wr/cwp/ybip.html.

A collaborative project which gained traction in 2011 after four decades of scatter shot development, the Integrated Plan identifies seven elements in its approach to water management: fish passage, fish habitat enhancement, modification of existing structures and operations, surface storage, market-based reallocation, groundwater storage, and enhanced water conservation. Having integrated input from federal, state, tribal and municipal entities as well as environmental and agricultural interests, the plan is anticipated to cost as much as $6 billion over 30 years. The plan’s website is http://yakimabasinplan.org/.

The 68^th edition of the WSWRA annual conference and membership meeting was held Dec. 4-6 at Spokane.

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

Nevada senators introduced a new bill that seeks to provide federal funding for conservation easements that would prohibit development on thousands of acres of land in the Carson Valley. If passed, the bill will transfer some federal land to the county, return some cultural sites to the Washoe Tribe, and will encourage local ranchers and property owners to enter into conservation easements. The conservation easements will provide property owners with monetary compensation and tax benefits in exchange for the relinquishment of their development rights to the government.

A previous federal bill provided for the funding of similar easements. J.B. Lekumberry, a Northern Nevada rancher who owns the first land claim in Nevada, is the last in line to receive payment for a conservation easement from the previous bill. He owns thousands of acres of undeveloped pastureland behind his ranch that will be protected by the conservation easement.

Protecting undeveloped land is especially important in Carson Valley as it plays a significant role to preventing flooding. Carson Valley is the first major floodplain for the Carson Basin. About 15,000 acres of land have already been conserved in Douglas County and the majority of that land is floodplain.

Although the process of entering into a Conservation Easement may seem burdensome, many ranchers believe it is worth the work. According to many ranchers, ranching focuses on the future and protecting the future through the establishment of a conservation easement requires that the land remain in ranching for the duration of the conservation easement.

To learn more about this bill, please visit http://www.kunr.org/news/bill-seeks-to-conserve-land-and-way-of-life-in-carson-valley.

On November 8, 2013, the federal Environmental Protection Agency’s (“EPA”) regional administrator for the Pacific Southwest, Jared Blumenfeld, announced that $15 million in grants would be provided to Nevada. Grants were awarded to the Nevada Division of Environmental Protection (“NDEP”) for improvements in drinking water and waste-water treatment.

NDEP was awarded a $6.5 million grant for its Clean Water State Revolving Fund and an $8.5 million grant for its Drinking Water State Revolving Fund for water pollution control and drinking water projects.

In the last 24 years, the EPA has provided Nevada with over $320 million in funding for water projects. Historically, the state has used similar loans to reduce arsenic levels in Tonopah, and to reduce the amount of bacteria and chemicals entering Lake Meade by making improvements to the treatment plant in Clark County.

Administrator Blumenfeld stated that investments such as these allow many communities in Nevada to provide for basic needs for clean, safe drinking water.

We, as well as many water right permit holders and Certified Water Right Examiners, have had October 1st circled in red on our calendars for many years. Historically, the Oregon Water Resources Department (“OWRD”) has set the deadline for Permittees to complete perfection of their water right on October 1^st of the applicable year and the corresponding statutorily set deadline to submit the Claim of Beneficial Use (“COBU”) deadline the following year. Consequently, in our office, the weeks and months leading up to October 1^st have typically been marked by a flurry of activity to assist our clients and consultants in complying with or extending these completion and COBU deadlines.

However, in 2008 OWRD changed the deadline language in water right permits to require completion five years from the date of permit issuance, which means October 1, 2014, and every subsequent October 1, will be just another normal day in the water rights world! We encourage you to take a fresh look at any permits issued since 2008 to confirm completion and COBU deadlines.

Additionally, as many of you may know, OWRD updated its COBU form in July of 2013. Most notably a submission fee will now be charged for COBUs for transfers with a priority date after  July 8, 1987. Take care to ensure you are using the most current version! Should you be looking for these forms on OWRD’s website, please note that they have been relocated to a special CWRE section per the link below:

http://www.oregon.gov/owrd/pages/wr/cwre_info.aspx#Claim_of_Beneficial_Use_Forms_and_Completeness_Checklist

Good luck with today’s deadlines and remember “We do everything water!”

Schroeder Law Offices is joining forces with the Nevada Farm Bureau to provide an informational presentation on water issues in the Walker River Basin. Join us on November 7, from 6:00 p.m. until 8:00 p.m. at Casino West, in Yerington Nevada, as we discuss the Settlement with the National Fish and Wildlife Foundation and Walker River Irrigation District, the Willing Seller Program, and the Walker River Federal Court Litigation.

NFWF Settlement with WRID:
We will be providing a status update regarding the settlement between NFWF and WRID. This discussion will include consideration of the settlement on pending protests and next steps in the process.

Willing Seller Program (aka Water Rights Acquisition Program):
The presentation will include a program overview, and will discuss the status of Purchase and Sale Agreements.

Walker River Federal Court Litigation:
We will be providing to the public a case overview, including Mineral County’s request for water rights with a Nevada statehood priority date, USA and Walker River Paiute Tribe’s request for water rights for tribal lands. We will consider how the requests for water will affect agricultural water users. Finally we will review the litigation service efforts on ALL surface and ground water holders, as well as your ability to participate in the litigation.

For more information on attending this Informational Presentation, please call Schroeder Law Offices at (775) 786-8800 or the Nevada Farm Bureau at (775) 674-4000.

On June 21, 2013, the Nevada Division of Water Resources (“NDWR” or “the Division”) issued a bulletin announcing changes in fees charged by the Division and in accordance with Senate Bill 468, increasing established fees by approximately 20% and adding 5 new fees. This change in fees became effective July 1, 2013. It is important to be aware of these changes in fees as failure to submit the proper fee may result in a delay in processing. Please follow this link to the NDWR’s webpage for a complete list of the new fee schedule. http://water.nv.gov/documents/Fees_2013.pdf. As always, please feel free to contact Schroeder Law Offices, PC with any questions or concerns relating to your water use.

March 7, 2013 marked the end of the administrative phase of the Klamath Basin Adjudication. On that date, the Oregon Water Resources Department issued its Findings of Fact and Order of Determination, adjudicating all pre-1909 surface water claims in the Klamath Basin. Claims that were affirmed in the administrative phase are now enforceable, unless a stay of the Order of Determination is granted.

Although the Klamath Basin Adjudication is not complete –the Klamath County Circuit Court will hear exceptions to the administrative decision and appeals from the court’s decision are expected–pre-1909 water users are already calling for water to ensure enough water for the following purposes: the Klamath Tribes made a call for instream water to support native fish; the U.S. Bureau of Reclamation made a call for water to supply the Klamath Project; and the U.S. Fish and Wildlife Service made a call for wildlife refuges.

The Associated Press reports that watermasters are currently going ranch to ranch along the Sprague River and its tributaries to shut off water users in order to satisfy recently adjudicated pre-1909 water rights. It is expected that similar shut offs will follow on the Wood and Williamson Rivers. The referenced Associated Press articles may be found at the Oregon Live Site here and here. (Last visited June 13, 2013)

A “call” on water means that water users with later-in-time priority dates may have to stop using water to ensure the senior (pre-1909) water uses are satisfied.  To be a final order that can be challenged, a “call” must be made by the Oregon Water Resources Department in writing and provide notice of rights of appeal.  In Oregon, challenging a “call” includes filing a petition for judicial review which may provide an automatic stay of the shut off order.  It is recommended that you scan a copy of your written notice on “call” and send it to your attorney who can advise you concerning your legal options.

It is difficult for outsiders to appreciate the momentous effect that pre-1909 water rights enforcement will have in the Klamath Basin and the number of farmers and ranchers that are now facing possible water shut-offs. It is important that water users understand their rights and are prepared to protect those rights in court if need be.

Schroeder Law Offices represents clients in the Klamath Basin Adjudication. Stay tuned to the Water Law Blog for more information that may affect your water use!