In a real estate transaction, the document transferring the real estate interest, describes that property in the deed or easement. Many times, we find that metes and bounds descriptions use “chains” rather than the section lines familiar under the public land survey system (PLSS). While we heavily rely on the geographic information system (GIS), GIS locations are not always accurate. The GIS is a computer system for capturing, storing, checking and displaying data related to positions on the earth’s surface. In a boundary dispute, we require the services of surveyors to locate property lines, especially if the descriptions involve very difficult to interpret descriptions in chains.
What is a surveyor’s chain? It is a measuring device used for land survey. One chain is 66 feet in length and contains 100 links. One link, then, is 1/100 of a chain. This odd length assisted in calculating the area of a tract of land. It was designed and introduced in 1620 by English clergyman and mathematician Edmund Gunter (1581–1626). This introduction was long before the development of the theodolite and other more sophisticated surveying equipment. The surveyor’s chain enabled plots of land to be accurately surveyed and plotted for legal and commercial purposes.
If you need assistance in diving into the details of a deed or title report with its many exceptions, Schroeder Law Offices, PC is available to assist. Please contact us at counsel@water-law.com with any inquiries you may have.
New California Adjudication Rule
California adjudication rules have changed! On October 10, 2023, California Governor Gavin Newsom signed AB 779 into law. This California law requires courts to consider sustainability and equality factors during groundwater basin adjudications. The intent behind this adjudication rule is to keep everyone informed and provide equal access to resources.
Adjudications of water basins are court cases that decide water use claims in a particular basin. Water users must file their claims by a certain date. Once the adjudication process concludes, the court orders a claim into a decreed water right. Oregon, Idaho, Washington, and Nevada also currently have active adjudications, but sustainability and equality that are not incorporated into a claim are not usually addressed is these other states.
This California adjudication rule requires the groundwater sustainability agency (“GSA”) to submit the required sustainability plan(s) for groundwater basins designated as high or medium priority to the court. This law also requires the GSA to notify the public when an adjudication begins. The public notice requirement stipulates that the GSA must host a public meeting to explain the adjudication process. The GSA must publicly post court documents for the public to follow the adjudication process. Further, the court must consider “the water use of and accessibility of water for small farmers and disadvantaged communities” before entering a judgment.
The Effects of AB 779
Adjudications are long, expensive processes. These considerations will help all parties participate in the process, no matter the size or financial resources. By the end, hopefully everyone receives access to the resources they need.
Other states conducting adjudications have notices requirements, but do not currently have public hearing requirements to explain the process at the outset.
Oregon and Nevada have notice requirements referred to as notice “by publication.” This is when the Director or the State Engineer publishes notice in a newspaper circulated in the area where the adjudication takes place. In comparison, in Idaho adjudications, Idaho Law requires the Idaho Department of Water Resources Director to serve notice by mail to affected parties. Finally, Washington law requires notice to property owners by publication or personal service.
States conducting adjudications often look to streamline the process. It will be interesting to see if neighboring legislatures to California push for similar requirements as this California adjudication rule. Although it may add time at the beginning and during the adjudication, it may save time later on in late filed claims, or applications for water rights.
If you are a water user in Oregon, Idaho, Washington, or Nevada, and there is an ongoing adjudication near you please contact us for information. You may also review the water department’s website in your state.
WOTUS: a Confusing Legacy
The Clean Water Act’s extension of what waters it attempts to regulate is leaves WOTUS a confusing legacy. Does it apply to wetlands? If so, what if wetlands stand alone and don’t adjoin navigable waterways? The courts have been adjudicating questions like these for year. But earlier this year the US Supreme Court gave a definitive answer – for now.
What Happened?
There is no denying the positive changes that the Clean Water Act has rendered as once flammable waters again being fishable, boatable, and even swimmable. Even so, the definition of “waters of the United States,” that defines the reach of the federal government’s regulation of water, is controversial. On May 25, 2023, the U.S. Supreme Court decided in Sackett v. Environmental Protection Agency (“EPA”)how “waters” are to be defined for purposes of the CWA.
Background
To understand Sackett, we must begin with looking at Rapanos v. United States, 547 U.S. 715 (2006). Rapanos, found there are two tests to define “waters of the United States.”
The “Plurality Test,” a two-prong test, that defines water of the United States as “(1) a relatively permanent body of water (2) connected to traditional interstate navigable waters.”
The broader “significant nexus test.” Under this test “the wetlands, either alone or in combination with similarly situated lands, significantly affect the chemical, physical and biological integrity of the waters understood as “navigable,” are considered among the “waters of the US.”
The Sackett Decision
These two conflicting tests did not resolve the issue.
But now the May 2023, Supreme Court decision determined that the “Waters of the United States” extend “only to geographical features that are described in ordinary parlance as ‘stream, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from bodies of water due to a ‘continuous surface connection’.” Sackett v. EPA, 143 S. Ct. 1322, 1336 (2023). This decision adopted the plurality test from Rapanos reasoning that the significant-nexus text could grant endless jurisdiction and importantly interfere with State jurisdiction.
WOTUS as a Confusing Legacy
The Supreme Court’s decision admitted there is obvious need for exceptions to it’s bright line rule such as when there are interruptions in surface connection because of low tide or dry spells to disrupt “continuous surface connection.” Thus, it is evident that wetlands have not seen their last day in court.
As an ever evolving body, water law can be a confusing field. Here at Schroeder Law Offices, we help our clients by finding answers and making the complex appear simple. If you have any questions about how this affects your water rights, please contact us at (503) 281-4100 or m.jones@water-law.com.
New Hires – Welcome to SLO
Schroeder Law Offices, P.C. is growing again! We are welcoming three new hires and want to introduce them to you.
Max Jones
Max Jones has joined the firm as a new associate attorney in Portland, Oregon. Before joining the firm, Max attended Santa Clara University, earning his Juris Doctorate in 2023. Then, he was admitted to the Oregon State Bar in October of 2023. His emphasis on various aspects of water law includes securing water rights; public lands (easements/right-of-way, permitting uses, grazing); groundwater interference and connection; and agriculture, municipal, and irrigation district water use permitting, extension, perfection, transfers, compliance, and protection. Max is looking forward to helping clients with all water-law matters.
In June of 2023, Jeff Nadeau joined the firm as a new associate attorney in our office located in Reno, Nevada. Jeff studied environmental and natural resource sciences during his graduate studies, where he first became interested in water law. Then, Jeff attended Lewis and Clark, Northwestern School of Law to earn his Juris Doctorate. He was admitted to the Nevada State Bar in 2011. Jeff has always been interested in expanding his knowledge and is ready to apply his extensive skill set to any water-law questions you may have.
Rita Powers joined the firm in August of 2023. She is working as a legal assistant at our office in Reno, Nevada. Earlier this year, in May of 2023, Rita graduated with her bachelor’s degree from the University of Nevada, Reno. Rita’s interest in water law stems from spending her youth on her family’s ranch in California. She is looking forward to further developing her knowledge of water-law and how it affects her local community.
Katherine Schroeder is crossing the United States for the second time on her bicycle. This week at the headwaters of the Mississippi, she encountered the sculpture titled “Heartwaters – Caretaker Woman.” The bronze sculpture was created by artist and member of the Fond du Lac Band Jeff Savage in 2005.
The sculpture depicts a woman with long, flowing hair releasing a group of turtles from a basket. The caption accompanying the piece describes that the woman is “renewing the seasons and continuing the waters of life.” The piece holds a deep meaning and reverence for water which can be found in the Anishinaabe (Ojibwe) belief that women are the caretakers of water. The turtles depicted in the sculpture are also symbols of water, as well as the many directions life can go (as turtles live in water, walk on land, and breathe air).
Ultimately, this beautiful work of art symbolizes the fundamental importance of water as a source of life and as a resource that must be preserved for future generations. The piece can be found at the Mary Gibbs Mississippi Headwaters Center in Itasca State Park. We thank Katherine Schroeder for sharing these photos as she makes her way across the country!
Kelsey Seibel Joins Schroeder Law Offices
Schroeder Law Offices is pleased to announce that Kelsey Seibel has joined the firm as a new associate attorney in Portland, Oregon. Kelsey received her Juris Doctorate from the University of Denver Sturm College of Law in May 2021. She was admitted to the Oregon State Bar on February 24, 2022.
Kelsey Seibel gained experience in water law through working on the University of Denver Water Law Review during law school, of which she served on the editorial board for two years as an Articles Editor. Kelsey also received a Bachelor of Arts in Economics and Environmental Studies from the University of Wisconsin – Madison. While studying for her Bachelor’s, Kelsey’s area of focus included environmental policy and history surrounding global environmental issues.
Kelsey’s previous professional experience includes clerking for Judge Christine C. Antoun in the Colorado Judicial Branch Second Judicial District in Denver, Colorado. During her time, she was awarded “2022 Outstanding Courtroom Employee.”
Kelsey grew up in Milwaukee, Wisconsin along Lake Michigan. When asked about her interest in water law, Kelsey says, “I always knew I wanted to work with natural resources and in the environmental law area. When I decided to go to the University of Denver for law school, I chose to write on the Water Law Review to learn more about water law and water rights in the west. I enjoy the area of water law because it combines my interests in efficient use of natural resources with sustainable growth and allocation of resources.”
For fun, Kelsey enjoys outdoor activities like camping, running, and biking, as well as baking, cooking, and watching Wisconsin football.
Kelsey could not be more excited to join Schroeder Law Offices and is determined to work as a passionate advocate to assist in all client needs.
Employee Spotlight: Rachel Shahidzadeh
What brought you to Schroeder Law Offices?
I had been interested in the legal field for some years before I started with Schroeder Law Offices. I was working in a different industry and was finally ready to make a change when I found SLO. Ultimately, it was the close-knit office culture, opportunities for education, and fascinating specialty that convinced me that this was where I was meant to be.
What is your go-to productivity trick?
I am a strict to-do list person. No matter how small the task is, it’s added to my list. If I really need to buckle down and focus on a large task I have found that listening to brown noise is extremely effective at calming and providing focus.
What is something you find fascinating about water law?
The first aspect that drew me in was the history. I love to research water rights, and it is also so interesting to learn about rights stemming from the early 20th century and even earlier.
What do you like to do for fun on the weekends?
My favorite down time activity is spending time with my husband and my dog, either at home or exploring the trails in the Pacific Northwest. Otherwise, I like to binge watch a good television show and catch up on reading.
What is your favorite book or movie?
Pride and Prejudice by Jane Austen.
What’s it like to work at Schroeder Law Offices?
Every day is a new adventure.
For Sale by Owner
This weekend my brother Paul explained how he had successfully used Facebook Marketplace to sell extra furniture. Wow, I thought, this is a great resource. But then a potential client called today. The potential client posted For Sale by Owner on Facebook Marketplace without legal advice. The problem was NOT with the platform, but with selling real property without professional help.
Lawyers, title companies, real estate agents are expensive. Many of the documents used in a real estate transaction can be bought for next to nothing online. Tempting, but should you proceed without professional help?
Water rights, easements for access, well share agreements – they all need an experienced legal hand. Even attorneys whose business is limited to real estate transactions often do not have the experience to advise on water use as it relates to real property.
It’s a lot cheaper to hire legal help to do it right before your “For Sale by Owner” than after. If you have a mistake the legal team will charge at their much higher litigation rates than at their more reasonable transactional rates. If you are still unsure about needing professional help check out one of our webinars: Water-Related Disclosure Requirements – Schroeder Law Offices, PC (water-law.com)
Another thing: realize that your lawyer, title company and realtor are all having the same labor shortage as every business. Contacting your legal team before you put up your ad on Facebook Marketplace, Zillow, or another “For Sale by Owner” platform is a good plan. Save yourself from improperly disclosing important information about your property, water rights and easements before you list!
Earth Day 2023 at Schroeder Law Offices
April 22nd, 2023, is the 53rd annual Earth Day celebration. The theme of this year’s holiday is “Invest in Our Planet.” The preservation and efficient use of water, a vital natural resource, leads all that we do at Schroeder Law Offices. As a water law office, Schroeder assists municipal water users and districts, individual and family farms, and ranches to promote sustainable water use throughout Oregon, Nevada, Idaho, and Washington. To celebrate, let’s brush up on some Earth Day history.
The beginnings of Earth Day can be traced back to an oil spill off the coast of Santa Barbara in 1969. Because of its devastating effect on the surrounding nature and wildlife, the public’s concern over what could be done to protect the environment grew. After the spill, Wisconsin senator Gaylord Nelson inspired a nationwide “teach-in” day. Senator Nelson enlisted the help of a young activist Denis Hayes, fellow senator Pete McCloskey, and numerous volunteers and activists thereby creating the first Earth Day on April 22nd, 1970. 20 million people celebrated the first holiday, prompting nationwide demonstrations, protests, and teach-ins.
Earth Day is now a global event celebrated each year through demonstrations, events, and acts of service!
To keep the mission of Earth Day in mind this year, Earthday.org created a list of the many ways you can take care of the earth in your day-to-day life. Some ideas you might try:
Attending a tree planting event
Participating in a community beach cleanup
Planting a pollinator garden to help the population of bees, butterflies, and other organisms in your local ecosystem
Attending an Earth Day event (find one in your area using this interactive map)
Reading more on Earth Day history to explore the origins of the holiday
This weekend, please join us in celebrating Earth Day’s mission.
To stay up to date on all things water, be sure to subscribe to our weekly e-newsletter to the right.
Oregon Women for Agriculture Annual Auction
Oregon Women for Agriculture will be hosting their Annual Auction and Dinner on April 15th, 2023 at the Linn County Fair & Expo Center in Albany, Oregon. This year’s theme is “From Farm to Forest- and Everything in Between.” Shareholder Laura Schroeder, firm administrator Scott Borison, and senior paralegal Tara Lomacz are excited to be attending the event.
Founded in 1969, Oregon Women for Agriculture began with the mission to “work together to communicate the story of today’s agriculture.” The organization is passionate about educating the community on the importance of sustainable agriculture to the environment and economy. Their work can be found in their support of programs including Oregon Agriculture in the Classroom and the Summer Agriculture Institute. These programs are meant to help students learn the importance of agriculture in their day-to-day life, like understanding how their food makes it from the farm to the grocery store. OWA is also responsible for the popular crop identification signs that can be found all along Oregon’s roadways. These signs help spread the word on the hundreds of different crops farmers grow all across the state.
The 2023 Oregon Women for Agriculture Annual Auction will help support OWA so that they can continue their work in the Oregon community for years to come! The event will feature a silent auction and dinner, as well as a live auction beginning at 7:15 pm. Visit the event website here for details on ticket cost, reserving a table, and more. We hope to see you there!
Employee Spotlight: Caitlin Skulan
What brought you to Schroeder Law Offices?
I came to Schroeder Law Offices right after graduating law school. During my last year of school I was looking for a post-grad job related to natural resource law. Having interned in jobs lobbying, in-house counsel for nonprofits, at an Attorney General’s Office, and at a large law firm, I knew I wanted to work in private practice, but in a boutique setting.
During my last semester of law school, I was working with The Freshwater Trust, a nonprofit in Portland, Oregon that does river restoration work. In that internship I had some exposure to water law and found it fascinating. Schroeder was looking for an associate in Reno at the time. I was looking for a job in a location that would allow more of a rural lifestyle, so it was a perfect fit. I also loved that all the partners were women as this field is so often dominated by men.
What is your go-to productivity trick?
I am very to-do list oriented. I tend to have one master list with all my projects and then one to two tiers of lists with more immediate tasks that need to be done in the next day or week. A lot of my motivation comes from crossing something off a list.
What is something you find fascinating about water law?
Water law is one of the few niche practice areas that is incredibly diverse. Unlike family or criminal law, where the issues, rules, and case law are often recycled, water law issues are always different. In the last few years I have worked on property law, contract law, tort law, secured transaction law, tribal law, as well as federal issues like the National Environmental Policy Act (NEPA) and historic rights-of-way across federal land. I’ve never enjoyed monotony in a job. At Schroeder, I’m certainly never bored and almost always challenged in a new way!
What do you like to do for fun on the weekends?
Outside of work I like to cook, read, and work in my garden or on my farm. I also like to get outside for an adventure with my hodge-podge pack of dogs. On longer breaks, I like to backpack or kayak with my husband, travel internationally to see new places, learn about history, and try new foods.
What is your favorite book or movie?
I don’t have an all-time favorite book or movie that comes to mind. Lately, I’ve really enjoyed anything written by Kate Quinn. I love her portrayals of women’s forgotten roles in history, especially during WWII.
What’s it like to work at Schroeder Law Offices?
Working at Schroeder is working with a close-knit team. We help each other out and really care about one another as people. I’ve always felt supported and heard. The leadership has always been invested in my growth as a professional and outside of work. They also encourage me to build and maintain a life outside of the office.
Caitlin Skulan is an associate attorney at Schroeder Law Offices, PC.
Title Transfer of USBR Projects
Reminder! Join us for the USCID webinar on April 12, 2023 at 11:00 AM (Pacific) to learn about title transfer of Federal reclamation projects to users and to take a look at an international database of irrigation projects throughout the world.
When the U. S Bureau of Reclamation implements and completes a project, such as a new reservoir or dam, it retains title and ownership. The operation and maintenance of the project is typically the responsibility and obligation of the project users. Title transfer is the process of conveying the title and ownership of these Bureau of Reclamation facilities to the project users.
In the past, absent an Act of Congress or otherwise, project users could not receive title to their water projects. In 2019 the law changed and now provides authority to move through the transfer process without separate and distinct Act of Congress. See: Title Transfer | Bureau of Reclamation (usbr.gov)
USCID Logo
Hear from Frank Dimick, of Dimick Water Resources Engineering, to learn firsthand from someone who has undergone title transfer process both before and after the new law. Hear about how the transfer process is putting the United States on the map with international water projects!
This webinar is hosted by the United States Comittee on Irrigation and Drainage (USCID) Together with Schroeder Law Offices, PC.
USCID and Schroeder Law Offices to Host Webinar on How to Obtain Title Transfer for Federal Water Projects
Join the US Committee on Irrigation and Drainage (USCID) on April 12th, 2023 at 11:00 AM (Pacific Time) for a webinar on How to Obtain Title Transfer for Federal Water Projects. Frank Dimick, of Dimick Water Resources Engineering, will host the 30-minute presentation and Q+A session via Zoom. Participants will also learn how the United States can gain international recognition on water projects. After, Schroeder Law Offices’ shareholder and USCID Vice President Therese Stix will give an update on USCID and share more details about the upcoming USCID Conference in October 2023. We hope to see you there!
To learn more about USCID’s mission and upcoming conference, visit their website here.
NDWR Releases Findings from 2021 Water Resource Public Survey
At the end of 2021, the Nevada Division of Water Resources (NDWR) completed a public survey to update the 1999 State Water Plan. The previous plan made general water data and information available to the public and addressed water policy issues and recommended actions for a sustainable water future. A lot has changed since 1999, and to address those changes, in 2022 NDWR released the results of the 2021 survey.
1,192 people in total participated, including a wide range of agricultural producers, business owners, tribal members, and more. Respondents were also from both urban and rural areas, with 39% of respondents living in rural or semi-rural areas of Nevada.
The biggest consensus in response to the survey was that of water sustainability. A striking 77% of respondents agreed that the sustainable use of water is extremely important. 79% shared that they now think about water issues more than they did in the past.
Among the biggest concerns were long-term water planning, wasteful or inefficient water use, and the need for conserving water for the future. In rural areas, water availability for agriculture and the transfer of water from rural basins to supply urban areas were major concerns.
Respondents were also asked to give their thoughts on potential long-term plans going forward. Many called for more public outreach, emphasizing the need for accessible, research-based data. Respondents also urged NDWR to provide more opportunities for stakeholder engagement.
NDWR plans to use these findings to develop a water plan that addresses respondents’ concerns. The agency will consider the survey results when mapping out the direction of future outreach and education efforts. To read the full overview of survey responses, click here.
Therese Stix Appointed USCID Vice President!
Therese Stix has been appointed by its Board of Directors as Vice President of the United States Committee on Irrigation and Drainage. USCID’s mission is to promote progressive and sustainable irrigation, drainage, and flood control practices in support of food and fiber production and public safety, recognizing that sustainability embodies economic, social, and environmental goals. Therese was appointed to this position after stepping in to help USCID launch after a hiatus during the non-conference years of COVID and the retirement of the past executive director.
Therese grew up on a row crop farm in eastern Oregon, is passionate about agricultural customs and culture, and continues to support farming and ranching operations in her law practice. As Vice President, Therese will continue to take an active role in supporting the USCID’s mission while bringing the organization back online.
In addition, USCID is in the process of on boarding Jane Townsend from Ag Association Management Services to assist in promoting and pursuing USCID’s mission post-COVID. We are excited to have Jane assisting us and are currently planning our next conference to take place in Fort Collins, Colorado April 25-28, 2023. We hope to see you there!
Oregon Water Resources Department Pushes for More Regulation
The Oregon Water Resources Department (“OWRD”) has stopped processing new groundwater applications and begun to severely limit groundwater permit extensions. This policy change places a significant burden on groundwater permittees and will directly impact agriculture in Oregon. Ultimately, OWRD’s policy change will significantly limit agricultural expansion in the state.
In his article “Oregon Moves to Limit Groundwater Development,” Steve Shropshire cites “Draining Oregon,” the 2016 report published in The Oregonian, as the major catalyst for increased regulation. The Oregonian article covered groundwater issues in Oregon and argued that OWRD was over permitting the use of the state’s groundwater supply. Soon after The Oregonian article, OWRD updated their Integrated Water Resources Strategy to name groundwater as one of the biggest issues concerning Oregon’s water future.
Even though OWRD has not passed a rule, OWRD has ceased processing new groundwater applications and limited its issuance of groundwater permit extensions as a policy matter. OWRD has also limited the issuance of new groundwater rights in the Walla Walla, Harney, and Umatilla basins. These actions will pose a big change for agriculture in Oregon, as acquiring new groundwater rights will be much harder, if not impossible. To participate in the rule making process when that occurs, go to: Water Resources Department: Proposed Rulemaking : Oregon Administrative Rules : State of Oregon
Stay informed on the latest groundwater issues, current events, and all things water by signing up for Schroeder Law Offices’ weekly email newsletter to the right.
The Joys of Rural Home Ownership: Wells and Septic Repairs
Schroeder Law Offices not only advises on water issues, but we practice what we teach. Schroeder Law Offices strives to connect with our clients on a personal level and to understand the practical implications and inconveniences client issues have on your lives. We can do this, because we are people, too!
Schroeder Law Office Attorneys are ranchers, farmers, and rural homeowners. Attorney Caitlin Skulan recently lived out some of these rural inconveniences when dealing with failed rural home water and sewer infrastructure.
In her free time, Skulan spends time on a small 5-acre, in her words, “fixer upper” farm purchased with her husband in 2020. Before and after work, Caitlin gardens, takes care of livestock, fixes fences, repairs and remodels outbuildings, and chases escapee chickens. Being on a rural lot, Caitlin’s water is provided by a well. The home is also equipped with a septic system for sewer.
All was good as far as the water and sewer infrastructure for the first two years. However, as any experienced rural homeowner knows, the lack of monthly sewer and water bills eventually comes with a price.
I. Lessons in 1960s Septic Systems
Imagine, your in-laws are visiting for a week from out of town, your spouse is away for work, you are working full time developing cases for trial, and you receive a call from your house guests that the showers aren’t draining! You think nothing of it. The drain is probably clogged with your sister-in-law’s hair. You’ll take care of it when you get home. Then the second call comes, the toilets aren’t flushing! Now you start to worry.
Fast forward two days, three plumber visits, and a houseful of very disgruntled relatives, and you make a band aid fix, receive a quote for a complete septic line replacement, and are internally cursing the inventor of “Orangeburg” piping.
Orangeburg pipe is a bituminized fiber pipe made from layers of ground, compressed, wood pulp, bound by adhesive, and impregnated with coal tar pitch. Effectively, it’s a cardboard pipe lined with tar. Also known as “no-corrode” pipe, Orangeburg pipe was commonly used for sewer pipes in homes built between 1945 and 1972. The product owes its origins to World War II when iron and steel commonly used for sewer pipes were critical to the war effort and thus in short supply for building homes. The use of Orangeburg piping continued after the war ended because it was inexpensive.
Even when installed, the pipe was generally expected to last 50 years before deteriorating conditions would cause the systems to falter. As Orangeburg piping is essentially asphalt soaked paper that is in constant contact with water combined with the pressure of the soil above the pipe and subject to penetrating tree roots, it is not surprising pipes collapses and the system fails. This is what Caitlin experiences in her 1960s home, requiring the pipe to be dug up, removed, and replaced with a new line.
II. Sediment, Well Casing, and Calcium Deposits
A few weeks after the septic repairs, Caitlin noticed a reduction in water pressure and sediment in the water coming out of her faucets. Luckily, no house guests were present at the time. Initial research indicated this could be an issue with the well and a well company was called.
The well inspection indicated two things. First, the water tank was flushed, and the well was in working order, but needed a sediment filter to filter tiny flakes of well casing out of the water. This is a cheap and minor fix as far as well repairs go. Second, the water filtration system for the well needed to be replaced. Caitlin, having completed the well inspection, sellers’ disclosures, and water quality test at the time she and her husband purchased their home, didn’t even know a water filtration system existed on the property and had, in fact, been advised not only to the contrary, but that given good water quality, one was not necessary.
A new water sample was taken and a water quality test conducted to ensure the scope of filtration needed for the well. While the water quality was within the limits of safe drinking water, the calcium levels were high enough to create concerns with the plumbing in the long term. Calcium deposits in pipes are common in homes with “hard water” or high mineral contents. Hard water can, and typically does, build up in drains and pipes. When left unresolved, this can cause corrosion or blockages. While blockages in drainpipes can be easily and inexpensively resolved, the same is not the case for water supply pipes. As such, the industry recommendation is to install a water softening system to prevent blockages from occurring or increasing.
III. Takeaways
At Schroeder Law Offices we emphasize due diligence before purchasing a property in an effort to “spend a dime to save a dollar.” In the context of our practice, this usually means researching the validity, ownership, status, and adequacy of water rights that accompany rural properties. However, completing due diligence research and inspections on rural water related infrastructure is important, too.
For water supply, a well inspection and water quality test by a reputable company is a must when considering purchasing a rural home. However, lessons learned would recommend the well inspection and water quality test both be taken one step further. Rather than rely on seller or realtor representation regarding water supply infrastructure, attend the well inspection yourself. Ask the inspector to explain the system and its maintenance and upkeep. If necessary, schedule regular inspections to ensure everything is in working order.
When water quality tests come back, even if safe for human consumption, ask the well inspector or a plumber if there are any concerns from an infrastructure perspective. If the water is hard, will it cause build up and is there any sign of mineral build up at the time of the inspection? If a water filtration system must be installed, consider it in your purchase price or asking that one be installed by the seller prior to closing.
For septic systems, if the home was built between 1940 and 1990, strongly consider an inspection of the piping. As Caitlin learned the hard way, having a septic inspection and service does not include an inspection of the pipeline from the home to the septic system. Consider paying for a plumber knowledgeable in Orangeburg pipeline to camera and inspect the lines from the home to the septic system. If the pipe is Orangeburg, factor replacing it into your purchase price or consider requesting the pipe be replaced by the seller as a latent defect in the property.
Water Issues Affecting Local Food Production
The current moment presents a number of unique challenges for water sustainability, including for farmers. When farmers do not have enough water to meet the population’s need for food and goods, the results can be devastating to certain population groups. In his article There Has Never Been a More Important Time to Protect American Food Production, Dan Keppen writes that farmers are facing this water challenge right now.
Due to years-long extreme drought in the west, farmers have been struggling to make ends meet. This has led to a decrease in local agricultural production in the U.S. Unfortunately, this decline comes at a time when the world has been rocked by extreme climate events and global supply chain issues. These challenges make food more costly to produce and purchase.
What makes the situation so urgent is that the need for food is rising. A 2022 GAP Report found that 40 million people around the world experienced “emergency or catastrophic levels” of food insecurity. To meet the population’s growing needs, agricultural output will have to increase by 1.73 percent each year. Keppen writes that bringing U.S. communities the nutritious, affordable food they need will require an increase in local agricultural production.
To learn more about water use and conservation, check out Dan Keppen’s previous blog “There’s a Crisis on the Colorado River.” The article explores the challenges faced by farmers when their water access is reduced. Though reduced water access may be done in an effort to conserve, the reduction can lead to food shortages and financial insecurity for local communities. With so many interests involved, the situation in the west illustrates that a solution to water issues will have to be complex and innovative.
Schroeder Law Offices Attends Nevada State Bar Environmental & Natural Resources Section Meet & Greet
In the first year back since COVID-19, the Nevada State Bar, Environmental & Natural Resources Section held its Annual Meet & Greet event on November 3, 2022. A social, after work event, honorees included Adam Sullivan (Nevada State Engineer), Micheline Fairbank (Nevada Deputy Administrator for Nevada Division of Water Resources), David Bobzien (Nevada’s Office of Energy), Jim Lawrence (Acting Director, Nevada Department of Conservation & Natural Resources), and Chad Blanchard (Federal Water Master for the Truckee & Carson Rivers).
The Nevada State Bar, Environmental & Natural Resources Section held its Annual Meet & Greet on November 3rd, 2022. Schroeder Law Offices was happy to be in attendance.
Section members attending networked with our Nevada agency leads on a more personal level without the stresses of adversarial positions. During the event, Section leaders asked our honorees fun “icebreaker” questions such as: 1) What is your idea of perfect happiness? 2) With which historical person do you most identify? 3) What is your greatest extravagance? and, 4) Which talent would you most like to have? Of course, these questions sparked fun answers that provided a glimpse into our leaders as people. Spending time with these Nevada agency leaders on a personal level ultimately allows us to know and appreciate the work we all pursue.
Supreme Court Case Sackett v. EPA Will Decide Which Wetlands Are Federally Protected According to the Clean Water Act
On October 3rd, 2022, the Supreme Court heard the oral argument for the first case of its 2022-2023 term: Sackett v. EPA. The case calls into question the definition of “Waters of the United States” (WOTUS), as it will decide the proper test to determine which wetlands are considered WOTUS, and therefore subject to federal regulation from the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers under the Clean Water Act.
The case originated after Michael and Chantel Sackett purchased an Idaho property near Priest Lake in 2004. After the couple began building a home on the property in 2007, the EPA informed the Sacketts that they must stop construction and apply for a permit since their land contained a wetland that was adjacent to protected waters. Since the wetland is separated from Priest Lake by a road, the Sacketts claimed that their land is not subject to the Clean Water Act’s jurisdiction and sued the EPA. What followed is a legal battle that could potentially change which wetlands are considered WOTUS going forward.
The Clean Water Act was passed in 1972 in an effort to protect waters of the United States from pollution. Since then, the extent of protections provided by the Clean Water Act has been extensively questioned and changed. These changes have been brought about by Supreme Court rulings, plurality and concurring opinions of Supreme Court justices, and presidential administrations, especially those of Presidents Obama, Trump and Biden.
The basis of both the Sacketts’ and EPA’s arguments can be found in the two waters tests proposed in the 2006 Supreme Court case Rapanos v. United States. The Sacketts have relied on the plurality opinion written by late Justice Antonin Scalia to support their case, which argued that wetlands should be considered WOTUS if the adjacent channels contained a “permanent” body of water such as a river, lake, or stream. Additionally, Justice Scalia argued that a wetland can only be considered WOTUS if it featured a “continuous surface connection” with a more permanent body of water.
The EPA is relying on retired Justice Anthony Kennedy’s concurring opinion in that same 2006 case. Justice Kennedy argued that wetlands must include a “significant nexus to navigable waters.” According to this definition, a wetland does not necessarily have to be continuously connected to navigable waters in order to be protected. Instead, the wetland must have a significant effect on the “chemical, physical, and biological integrity of the Nation’s waters.”
In response to Sackett v. EPA, many agricultural groups have shared their experiences of uncertainty and hardship brought on by the shifting definition of WOTUS over the years. The Family Farm Alliance, along with other agricultural groups, including the USA Rice and National Association of Wheat Growers and the National Corn Growers Association, submitted an amicus (“friend of the court”) brief earlier this year to voice its perspective on the matter. The brief highlights the problems farmers and ranchers have faced due to the lack of clarity regarding the Clean Water Act’s jurisdiction, which has created confusion over whether waters on their property are subject to EPA and U.S. Army Corps of Engineers regulation.
During the October 3rd oral argument hearing for Sackett v. EPA, Justice Ketanji Brown Jackson questioned the Sacketts’ legal counsel on the difference between “abutting and neighboring wetlands” if the goal of the Clean Water Act is to protect the nations’ waters “chemical, physical, and biological integrity.” Justice Neil Gorsuch commented on the lack of clarity in the Clean Water Act’s definition of “adjacent,” which Justice Sonia Sotomayor pointed out made some of her colleagues critical of whether the term was “precise enough.” Justice Sotomayor went on to question whether there might be “another test that could be more precise and less open-ended” than the adjacency and significant nexus tests to determine which wetlands are protected. Sackett V. EPA, 21-454 U.S. (2022)
As of now, Sackett v. EPA is pending adjudication before the Supreme Court. Considering the scope of the case, many expect the upcoming decision to have a significant impact on both environmental interests and the agricultural industry.
