In our earlier blog, Schroeder Law Offices announced the Nevada Division of Environmental Protections’ (NDEP) workshop on Legislative Counsel Bureau (LCB) Draft R113-22.  LCB R113-22 proposed changes to Nevada’s water quality regulations for Nevada surface waters. 

            Now NDEP proposes to adopt additional regulations under the following LCB Numbers:  R114-22, R115-22, and R116-22 amending Chapter 445A of the Nevada Administrative Code for Standards for Water Quality.  More on the proposed regulations is available here.  Changes include setting site-specific selenium criteria for the Las Vegas Wash, adopting the federal Environmental Protection Agency (EPA) drinking water standards for certain contaminants, and assigning beneficial uses and criteria better suited for flood-conveyance channels in Las Vegas.  

            NDEP announced a workshop for these new proposed regulations on October 19, 2022 from 1:00 PM to 3:00 PM.  The workshop will occur online and can be joined by this link or by calling in:

Phone Number: 1-775-321-611
Conference ID: 253-622-142#

            Public comment will be accepted during the workshop and written comments will be accepted until October 24, 2022.  Written comments can be submitted to:

Dave Simpson: dsimpson@ndep.nv.gov

Nevada Division of Environmental Protection
Bureau of Water Quality Planning
901 S. Stewart Street, Suite 4001
Carson City, Nevada 89701

P: (775) 687-9548  F: (775) 687-5856 

Public participation is an important aspect of creating Nevada law.  NDEP regulation changes are governed by the Nevada Administrative Procedure Act.  The agency must solicit and consider public comments in adopting new regulations.  If these issues affect you, Schroeder Law Offices encourages you to participate!

As of September 13^th, Oregon Water Resources Department Director Tom Byler has officially retired after 27 years working for the state of Oregon. A new OWRD director will be appointed by Oregon’s next governor. To serve for the remainder of her term, governor Kate Brown has appointed acting director Doug Woodcock, who previously worked as the Deputy Director of Water Management.  

During his tenure as the director, Tom Byler dedicated his time to modernizing the department’s programs and services to meet the Oregon community’s ever changing water needs. Byler also worked to increase OWRD’s capabilities to collect and analyze data to manage Oregon’s surface and groundwater resources throughout the state.

In the official press release regarding his retirement, Byler said, “As I look to the future of water resources in Oregon, I anticipate that water issues will continue to become more and more complex and challenging.” Byler added, “I am excited about the Department’s increasing capabilities to help communities address those issues.” Though he may be retiring from his current position, Byler intends to carry on his work in water and natural resources issues into his retirement.

The Oregon Water Resources Department is the state agency responsible for ensuring adequate and sustainable water supply to meet present and future needs. To learn more about OWRD, visit their website here: https://www.oregon.gov/owrd/. 

In the article “Trends in Clinical Legal Education Affecting Agriculture” by Caroline Lobdell and Scott Horngren, the authors provide a thorough look into the current state of environmental, agricultural, and animal law programs in law schools throughout the country. Though environmental law programs have steadily increased since the passage of groundbreaking environmental laws in the 1970s, the authors argue that these programs fail to offer a balanced education on agriculture and environmental law. Instead, they often focus exclusively on fighting for environmental causes. In doing so, they neglect to cover the interests of farmers, ranchers, and other natural resource users, who make up a huge part of environmental and agricultural interests.

Rather than viewing natural resource use as inherently wrong or not worthy of study, the article urges law programs to educate students on the interests of natural resource users and the cases they may come across in these industries as lawyers. In doing so, law students will get a more well-rounded understanding of environmental and agricultural issues, be better equipped to anticipate opposing arguments, and even work together with natural resource users in pursuing conservation efforts.  

To showcase the positive impact of a well-balanced environmental and agricultural education, the article uses Lewis & Clark’s Western Resource Legal Center (WRLC) as a case study. The law clinic, incorporated by Laura A. Schroeder, aimed to help students understand the interests of ranching, farming, timber, and other resource dependent industries. WRLC was later incorporated into Lewis & Clark to follow a seminar format to address legal issues affecting these industries in addition to an externship program that has partnered with the Oregon Farm Bureau, the Oregon Cattleman’s Association, American Forest Resource Council, Schroeder Law Offices, and others. With so many students willing to share positive experiences, the article makes a compelling argument for law schools to implement similar programs in their environmental law curriculums.  

WRLC’s founder and former Dean of Lewis and Clark Law School, James Huffman described the program as “a little boat that is finally afloat.”  On WRLC’s inception, Huffman stated “[t]here is a lot more to be done to make it seaworthy and expand the fleet, but it can be done.”  As budding law students with agricultural backgrounds, WRLC alumni, such as Schroeder Law Offices’ Associate Attorney Caitlin Skulan, were able to obtain a more balanced legal education as it pertains to the natural world and the resources we rely on. WRLC was a life raft in a sea full of environmental advocacy opinions on the Lewis and Clark campus.  The balance of working with farmers, ranchers, timber harvesters, and other sustainable natural resources users offers law students a reprieve from viewpoints that organizations like Farm Bureau and Cattlemen’s Associations are the villains of the environmental story. 

Similar to environmental advocacy focused clinics, students are still exposed to a whole host of environmental laws including the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, and state and federal Administrative Procedure Acts.  WRLC students have an opportunity to participate in real cases with the people who work and rely on natural resources and take pride in their roles as stewards of the land their livelihoods rely on.  As an employer of WRLC Alumni, Schroeder Law Offices hopes to see similar programs emerging at other law schools to better prepare future lawyers to represent our valued clientele.   

To learn more about WRLC and the current state of environmental, agricultural, and animal law programs, check out the link to the full article here.

As fall rains shower Northern Nevada and the first snow fall for Lake Tahoe is on the books for September 19, 2022, it is easy to forget that Nevada remains in a long-standing drought. However, it is important that Nevada continue to take measures to prepare and stay informed about these long-term conditions, even as they begin to improve.

How can Nevadans be best prepared to live with drought?  A number of state and federal resources are available to all Nevadans to track, understand, and adapt to long term drought conditions. These resources include:

State Drought Reports:  The State Climate Office and University of Nevada Reno publishes a monthly 2-3 page drought report with updated drought conditions and projects.  The most recent report can be found here.

US Drought Monitor: Similarly, the US Drought Monitor updates current drought conditions for all states weekly.  The monitor page for Nevada can be found here.

Nevada Drought Planning Workshops: Online and tabletop workshops are held periodically and are announced on the National Integrated Drought Information System, published by the National Oceanic Atmospheric Administration (NOAA).  The Nevada page is available here, including links to further information about upcoming drought webinars and workshops.

United States Dept. of Agriculture Mapping:  USDA offers a number of drought mapping tools to track and project drought.  These include the USDA Snotel Mapping system, which maps snowpack, an important seasonal contributor to water recharge in the arid west and the Streamflow Forecast Map, which predicts seasonal streamflow and various points of diversion to allow users to estimate if streamflow will be high enough to meet minimum flow requirements and any senior in-stream water rights that may preclude junior surface water diversion.

These are just some of the many tools available to stay informed about drought.  Want to learn more about drought and drought tools?  Check out our on-demand Western State drought tools webinar here.

            Schroeder Law Offices had a blast working at the 2022 Oregon State Fair. If you weren’t able to make it down to Salem for the annual festivities, we’re here to fill you in. During the fair’s kickoff weekend, Tara Lomacz and Madeleine Criglow worked the Oregon Women for Agriculture booth in Salem Fairgrounds’ Columbia Hall. This space was dedicated to showcasing agriculture in Oregon along with the beautiful works of local authors, photographers, and textile artists. At the Oregon Women for Agriculture booth, Tara and Madeleine had a great time speaking with fairgoers on agriculture and water issues in Oregon.

            To encourage fairgoers to stop by the booth, guests were challenged to spin the trivia wheel for questions on agriculture and farming in Oregon. The questions tested guests’ knowledge on everything from Oregon’s state beverage (milk, if you’re wondering) to how many gallons of water a cow drinks in a day (a whopping 20-30 gallons!). Guests were delighted to realize that they already knew a thing or two about Oregon agriculture (and were pretty happy about the prizes, too).

The Oregon Women for Agriculture booth also featured a map highlighting the water issues currently affecting agriculture and local farmers throughout Oregon. As fairgoers read through the map, many shared their own experiences with water issues and asked about what might be done to protect the natural resource in Oregon. It was rewarding to see guests take such an interest in local agriculture, and Schroeder Law Offices was happy to spread the word on its importance to the environment and economy.

            As the trivia games and discussions came to a close, the fair was just getting started. There was still tons of fun to be had, from checking out live music to indulging in every snack you could imagine. Leaving the fair with an ice cream cone in hand, we were grateful for the opportunity to join in on the fun!

The Nevada Division of Environmental Protection (NDEP) is proposing new regulations on water quality.  NDEP announced an official regulation workshop on August 31, 2022 to solicit public comment and input on Legislative Counsel Bureau (LCB) Draft of Proposed Regulation R113-22.

R113-22 sets forth a process for the State Environmental Commission to classify a surface water of the State or a segment thereof as a water of extraordinary ecological, aesthetic, or recreational value.  The Commission then establishes provisions for antidegradation protections to these specially classified surface waters. The draft regulations can be viewed here.

The Workshop will be August 31, 2022 at 10:00 AM to 1:00 PM Pacific Standard Time. More information and the agenda can be viewed on NDEP’s Workshop Notice.

Due to technical difficulties related to the workshop online registration form, attendees may join by:

1. Going to the following link: https://www.microsoft.com/en-us/microsoft-teams/join-a-meeting?rtc=1
2. Entering the Meeting ID:  216 866 144 018
3. Entering the Passcode:  nqZR8P

NDEP will also attempt to accommodate anyone wishing to participate in person at:

Bryan Building
901 South Steward Street
Humboldt Conference Room, 3^rd Floor
Carson City, NV

Interested in more water quality activities?  Check out our blog on NDEP’s last Integrated Water Quality Report for 2020-2022 and stay tuned for the next Integrated Water Quality Report Comment Period in 2023. 

This year’s Oregon State Fair boasts some truly spectacular sights, including agriculture competitions, musical guests, and plenty of opportunities to learn about Oregon farmers and ranchers. If you’re looking to end your summer on a high note, why not Join Schroeder Law Offices at the Oregon State Fair? Friday marks the start of the 11 day event, which runs from August 26^th to September 5^th at the Salem, Oregon Fairgrounds.

Tara Lomacz will be working the Oregon Women for Agriculture booth on Friday, August 26^th from 1 to 3:30 PM and Sunday, August 28^th from 3:30 PM to 6 PM. Madeleine Criglow will also be working the booth that Sunday afternoon to join in on the fun.

Come celebrate and learn about the achievements of all Oregonians, including Oregon’s farmers and ranchers. While you’re there, check out the exciting special events, thrilling competitions, and tasty food.

Find event details on the Oregon State Fair website by clicking here: https://oregonstatefair.org/. We hope to see you there!

Hopefully you didn’t miss the first annual Nevada Agricultural Fair on July 7 through 10, 2022!  Schroeder Law Offices staff didn’t miss it, but if you did, here is a recap:       

Thursday, July 7:  Youth participants checked in livestock including market and breeder goats, sheep, pigs, cattle, and poultry.  Schroeder Law Offices staff assisted with large animal check in and assigning stalls and ear tags.  Then, SLO helped with poultry check in by performing health checks on show and market chickens.

Thursday Night kicked off the three-day Mayhemalition Derby with lawn mower races. Youth agriculture participants attended the derby events for free and were recruited to throw water balloons at the drivers!

Friday, July 8:  The livestock show began with youth showmanship classes.  Youth are judged on how well they show their livestock and general knowledge of the species.  Youth could also participate in Hippology and Horse Judging competitions on Friday.

After the livestock shows, SLO staff hosted a wine wall at the Mayhemalition Demolition Derby to raise funds for next year’s Youth awards.

Saturday, July 9:  Saturday hosted the busiest show day with market and breeder classes. In market and breeder classes, youth are judged by the quality of the animal they raised for the show. Livestock is judged by its breed standard with awards going to best of breed, best of class, and best of show. SLO staff helped run the poultry show, including market, breeder, and showmanship poultry classes. SLO staff also supported the youth market auction by bidding on market chickens.  We even won a couple pens!

Sunday, July 10:  The 2022 Fair wrapped up on Sunday with the Horse Show.  The Horse Show was open to youth and adults, with participant ages ranging from one-and-a-half years to some individuals enjoying retirement.

The first annual Nevada Agriculture Fair proved to be a busy weekend for SLO staff.  However, we had fun, got to connect with some of our clients, and supported local youth agriculture. Keep an eye out for details on next year’s fair at https://www.nvagfair.com/. We will be!

Laura A. Schroeder is the founding partner of Schroeder Law Offices. Long respected in the water rights arena, Laura has generously shared her valuable experiences and provided some great advice. A few questions we asked Laura:

What motivated you to practice water law and start Schroeder Law Offices?

I used to work on a farm and did work related to irrigation. From that experience, I learned the importance of water. Also, my father was a lawyer and I got Influenced by him and became a lawyer. In my early practice years, I worked in a number of law firms and practiced in different areas of law. I then realized that my passion was in water law, so I started my practice.

What is your go-to productivity trick? How do you stay motivated?

The most important thing is that I really enjoy what I do, and I like the people I work with, so I always get motivated when I work. Also, I have the habit of mediation. Meditation helps me center myself.

What do you consider the most important thing about being a good lawyer?

I find the most important thing is to be proud of your profession. I dislike jokes about lawyers because that is disrespectful.

Where can I find you on the weekend?

I love spending time with my family! Last weekend I helped with cleaning at my son’s place, and the week before that I attended my niece’s wedding. I always consider family the most important thing. When I have free time, I also help with writing family genealogy.

What is one thing you like the most about working at Schroeder Law Office?

I like it because lawyering is an intellectually challenging job. In the legal profession, the challenge you need to face constantly changes, and you need to develop new strategies based on the new challenge. Also, at Schroeder Law Offices, everyone has different perspectives on solving problems. I enjoy discussing and developing new strategies with everyone.

Do you have some advice that you can give to young lawyers and law students who are interested in water law?

Beside law school, it is important to have real-life practice experiences as much as possible, because in the legal profession you need to work with people. When I started to practice, I did clerkship with the government, worked with my father, and worked in private law firms. I learned from that experience that working with different kinds of people and lawyers is essential, because it offers you an opportunity to learn from the people you interact with. If you just focus on just one thing, you will definitely miss out on other things.

Echo Zhang is a summer law clerk at Schroeder Law Offices. As a new addition to the office, she is eager to learn everything about water law and gain the necessary skills as a practicing attorney. A few questions we asked Echo:

What brought you to Schroeder Law Offices, and what’s your experience?

I’m currently a rising 3L student at the University of Washington. Before joining Schroeder Law Offices, I had law clerk experiences at Chinese law firms specializing in commercial dispute resolution. On the other hand, I developed an interest in general environmental law and water law. Pursuing my interests, I joined the Washington Journal of Social & Environmental Justice and now serve as the Executive Managing Editor.

I first learned of Schroeder Law Offices when I browsed through its website. I was fascinated by the passion for water law shown there. I went through the educational water rights videos on the website and decided that I wanted to learn more about water law. After coming to work here, I found that everyone is excellent, and I’m eager to learn more from everyone!

What is your go-to productivity trick?

Caffeine in the morning, and music at night.

Favorite recipe?

I love cooking slow-cooked recipes, especially braised beef brisket with tomatoes.

Are you an early bird or a night owl?

Night owl. Although fresh air in the morning is great, I love the feeling of freedom at night!

Where can I find you on the weekend?

At home cooking or going to Gas Works Park with my friends to get some fresh air and admire the Seattle skyline.

Coffee or tea?

Both!

Describe your job in three words:

Fun, challenging, and supportive.

What is working at Schroeder Law Office like?

Everyone is supportive and willing to teach me new things. I’m happy to explore water law with my colleagues.

Schroeder Law Offices Fundraises for Youth Agriculture

            Schroeder Law Offices continues to support and fundraise for youth agriculture. SLO attorney Caitlin Skulan recently organized and ran a Wine Wall fundraiser for the Nevada Agricultural Fair.  Skulan sits on the volunteer Fair Board which prioritizes a youth livestock show and horse show during the annual fair in Douglas County, Nevada. 

            The Wine Wall fundraiser was hosted at Carson Valley Days on June 11^th and 12^th in Gardnerville, Nevada.  Carson Valley Days is organized by the Carson Valley 20-30 Club, an active partner in the Nevada Agricultural Fair. 

            Skulan, Fair Board President Chelsy Simerson, and the booth’s mascot “Atlas” succeeded in raising funds for the Fair and marketing with various businesses, youth livestock clubs, and potential buyers for the youth livestock auction.  The proceeds for the fundraiser will be used to purchase ribbons and buckles as well as offset other costs associated with the youth livestock show on July 8^th-10^th at the Douglas County Fairgrounds.  More information regarding the Fair can be found at:  https://www.nvagfair.com/. 

            SLO encourages attorneys and staff to get involved in the community. Youth agriculture is important to many of SLO’s clients, who have children involved in these activities. Youth livestock shows, 4-H, Grange, and FFA provide youth with an opportunity to learn about animal husbandry and agricultural business at a young age.  Events like the Nevada Agricultural Fair allow youth to showcase their knowledge and animals. 

            We hope to see you at the Fair!

Schroeder Law Offices Returns to the Nevada Junior Livestock Show!

On May 7, 2022, Schroeder Law Offices attended the Nevada Junior Livestock Show in Reno, Nevada.  The three-day show was at the Reno-Sparks Livestock Event Center. The show is a place for the National FFA Organization, 4-H, youth Grange, and independent youth members to exhibit their livestock projects before the public. They develop skills and practices related to livestock production.  These youth organizations are a popular part of Nevada’s agricultural community. They often are an important family activity for our agricultural clients.

Animals at the show included turkeys, pigs, lambs, goats, and steers.  Livestock were judged for quality and breed standards. Youths also competed in showmanship events. These events judged their skills and knowledge in animal handling and rearing.  The show ended with the annual market auction.  Youth are encouraged to contact local businesses and individuals. Then they can attend the auction and bid on livestock. The Western Nevada Grange invited Schroeder to bid on broad breasted white turkeys raised by the Club’s youth members. 

Winning at the Auction

We loved seeing familiar faces in the crowd and attending the Buyer’s dinner. AND we won the bid for Western Nevada Grange Member Sabella Thompson’s turkey! This was Sabella’s first year showing and selling an auction animal for Grange. Sabella sent Schroeder staff home with homemade cookies and her own artwork as a thank you for being her buyer.  The cookies didn’t last long, but Sabella’s art is proudly displayed in the office.   Schroeder Law Office staff also bid on other livestock to support additional local youth in their livestock rearing endeavors.

[This article was originally published in the February, 2022 Oregon Real Estate and Land Use Digest by the Section on Real Estate and Land Use, Oregon State Bar]

In Oregon, water rights must be beneficially used according to their terms at least once every five years to remain in good standing. If they are not, water rights are subject to cancellation for forfeiture. ORS 540.610. Thus, Oregon’s forfeiture statute enacts the “use it or lose it” principle that is common in Prior Appropriation water system states. Water right holders must use their water rights or risk cancellation.

In the late 1980s, the Oregon State Legislature recognized instream beneficial uses for water, allowing the State to hold or lease water rights for instream purposes such as recreation, navigation, pollution abatement, and fish and wildlife. Under ORS 537.348, water right holders may temporarily lease water rights to the State for instream purposes for up to five years, renewing such instream leases thereafter. The statute provides that water rights leased instream are “considered a beneficial use.” ORS 537.348(2). As such, the forfeiture provisions of ORS 540.610 are not triggered during the period a water right holder leases their water right instream. Many water right holders use the instream lease program to safeguard their water rights in times when such water rights might not otherwise be used once every five years. The instream lease program serves dual purposes of providing instream flows while protecting private property interests in water use.

WaterWatch of Oregon v. Water Resources Department, 369 Or 71 (2021), questioned whether a hydroelectric water right could be leased instream and thereafter, once the lease(s) expired, be used again for hydroelectric or other beneficial uses of water. At issue in this case is a hydroelectric water right held by Warm Springs Hydro, LLC (“Warm Springs”). In 1995, Warm Springs’ predecessor shut down the associated hydroelectric project and began a series of instream leases from 1995 to 2020. WaterWatch of Oregon (“WaterWatch”) petitioned for judicial review of the Oregon Water Resources Department’s (“OWRD’s”) final order approving the 2015-2020 instream lease, and Warm Springs intervened.

In addition to the forfeiture provisions that are applicable to all water rights, ORS 543A.305 (enacted in 1997) applies specifically to hydroelectric water rights. The statute provides:

Five years after the use of water under a hydroelectric water right ceases, or upon expiration of a hydroelectric water right not otherwise extended or reauthorized, or at any time earlier with the written consent of the holder of the hydroelectric water right, up to the full amount of the water right associated with the hydroelectric project shall be converted to an in-stream water right, upon a finding by the Water Resources Director that the conversion will not result in injury to other existing water rights.

ORS 543A.305(3). Further, the statute specifies that the conversion to an instream water right “shall be maintained in perpetuity, in trust for the people of the State of Oregon.” ORS 543A.305(2).

Prior to this case, OWRD interpreted ORS 543A.305(3) similar to the forfeiture statute; that is, so long as a hydroelectric water right continues to be used for hydroelectric water use or another beneficial use under an instream lease, the hydroelectric water right is not subject to conversion to a permanent instream water right. WaterWatch challenged OWRD’s interpretation, arguing hydroelectric water rights are subject to conversion five years after the specific hydroelectric use of water ceases. The Marion County Circuit Court and the Oregon Court of Appeals both ruled in favor of OWRD and Warm Springs, but the Oregon Supreme Court reversed and remanded the decision on December 23, 2021.

The Oregon Supreme Court reviewed the text of the two statutes in conjunction with the context of the statutes and legislative history. The Court held “the use of water under a hydroelectric water right” means water use only for hydroelectric purposes as specified in the water right certificate, and does not include beneficial use under an instream lease. WaterWatch of Oregon, 369 Or at 88-89. The Court reasoned that once a hydroelectric water right is leased instream, the beneficial use is converted to another purpose other than hydroelectric water use. Id. at 91-94. The Court further held that “ceases” under the statute has an ordinary meaning, so Warm Springs’ water right was subject to conversion to an instream water right in the year 2000, five years after the hydroelectric project was shut down. Id. at 89-91.

The Oregon Supreme Court’s ruling will have significant impacts on hydroelectric water rights in the State. Most obviously, other hydroelectric water right holders in situations analogous to Warm Springs may face conversion of their hydroelectric water rights to permanent instream water rights. As such, property owners who believed they were appropriately safeguarding valuable water right holdings through instream leases may find themselves mistaken.

Another consequence of the Court’s decision is that instream leases over four years in length are essentially “off the table” for hydroelectric water rights. Hydroelectric water uses must resume within five years or risk conversion to permanent instream water rights. Thus, there is no incentive for hydroelectric water users to lease their water rights instream to avoid forfeiture, and, in the process, guarantee instream flows. Instead, the ruling incentivizes quick transfers to other, possibly more consumptive, water uses through the transfer process before the hydroelectric water right is converted to a permanent instream water right. ORS 543A.305(7).

Finally, conversion of appropriative water rights to instream water rights allows the State to enforce against upstream junior water users to ensure instream rights are satisfied. Conversion of large, early priority hydroelectric water rights to permanent instream purposes may have the outcome of increased regulation against other water right holders.  

The original article is available in PDF format here.

The Oregon Legislature’s short session officially begins today, February 1^st. It is anticipated that water users and water managers alike can catch their breaths somewhat during the short session, since not as many water-related bills will be considered.

The 2021 regular session was a marathon for those of us closely following or involved in water resources policy and law. In that session, efforts continued to correct the State’s questionable opinion that storage water rights cannot be modified through the transfer process. Only character of use transfers are reauthorized for the time being. Additionally, a threat to the due process rights of regulated water users was advanced. Only through great efforts was the attempt abated with some compromises of additional procedures around stays of agency orders during judicial review. Moreover, an onerous and costly water use reporting bill was proposed, despite information from the Oregon Water Resources Department that other types of data should be pursued, like additional stream gages and satellite data for evapotranspiration. The bill did not pass, but it did spur broader conversations about water management and planning that continue currently. Finally, the groundwater exemption for livestock came under attack, as proponents unsuccessfully attempted to limit the exemption to a daily maximum. In addition to these bills, many more were proposed, some of which were enacted into law.

In 2020, I began the position of Water Resources Chair for the Oregon Cattlemen’s Association. The 2021 Legislative Session was my first opportunity to participate in a large number of legislative bills on behalf of the organization. The experience certainly kept me on my toes and gave me an entirely new perspective of legislators and those who engage heavily in legislation. The bills are numerous, long, and ever-changing throughout the session. There is always too much work to be done in too little time to build consensus, draft written testimony, and testify in hearings. In 2021, we also tackled the additional hurdle of remote hearings on proposed bills due to the Covid-19 pandemic. This is to say that the 2021 legislative session was challenging, but also very exciting and rewarding. I was honored to receive an award from the Oregon Cattlemen’s Association in recognition of these efforts for “distinguished Committee leadership, responsibility, knowledge, expertise, advocacy, and tireless service to cattle producers and the Oregon Cattlemen’s Association.”

Short sessions of the Legislature in Oregon are not intended to address substantial changes in the law. Thus, it is not surprising that less water-related bills are anticipated this year. However, one priority that began receiving additional attention in 2021 is anticipated to continue at the forefront in 2022: water theft for illegal cannabis operations. Funding was provided in a special session in 2021, and numerous news articles detail the problem in the midst of the severe and continuing drought in Oregon and the West. House Bill 4061 (2022) would allow the Oregon Water Resources Department to obtain warrants to inspect private property. Additionally, the bill would require persons who both deliver water and receive water deliveries to ensure such water is from legal sources and keep records to that effect. Finally, the bill proposes to increase civil penalties for illegal water use when the crop grown is cannabis.

It is possible that additional water-related bills will be proposed in the 2022 regular session. For the time being, I will enjoy a little bit of a break on this front, being mindful that the 2023 regular session is just around the corner!  

(The below article is reproduced from the January, 2022 issue of Oregon Cattleman, the publication of the Oregon Cattlemen’s Association. For a PDF copy of the article, use this link.)

2021 was a terrible water year in Oregon. We experienced record high temperatures and record low precipitation, after several years of already below-average precipitation, little or no carryover water in reservoirs, historically dry soils, and severe wildfires. This year highlighted the need for additional water storage to increase water security during times of drought.

At the Oregon Cattlemen’s Association’s annual meeting, the Water Resources Committee voted to adopt a resolution promoting water infrastructure and storage to guide the organization’s priorities going forward, and the Board adopted the resolution. This policy will be especially important in coming years, as we face increasing roadblocks to achieving water storage and infrastructure goals. State water policies are oftentimes conflicting, recognizing the importance of creating additional storage, while at the same time promoting activities that foreclose opportunities for storage.

For example, Oregon’s Integrated Water Resources Strategy includes a “recommended action” to plan and prepare for drought resiliency. The Strategy also includes a “recommended action” to develop instream water protections. These two strategies are not necessarily opposed, however, when one strategy is actively pursued while the other falls by the wayside, the State’s actions do not balance both needs. Moreover, only so much water exists within water basins, and the creation of instream water rights takes that water “off the table” for purposes of increasing or creating water storage.

In 1987, the Oregon State Legislature passed the Instream Water Right Act allowing the State to convert minimum perennial instream flows to instream water rights, apply for new instream water rights, and lease or transfer existing water rights to instream uses such as recreation, pollution abatement, and fish and wildlife. Thus, instream water rights are not a new concept. However, the Oregon Department of Fish and Wildlife’s (ODFW’s) website details that the agency “re-established” its instream water rights filing program in 2016, “consistent with Oregon’s Integrated Water Resources Strategy.” Thus, we have seen in the last few years hundreds of applications for instream water rights filed by ODFW in different water basins throughout the State. ODFW’s policy stated in its administrative regulations is “to obtain an in-stream water right on every waterway exhibiting fish and wildlife values.” OAR 635-400-0005.

Unlike appropriative water rights, instream water rights are not constrained by the amount of water actually available to fulfill the instream water right. Rather, ODFW’s applications may request the amount of water ODFW determines is needed to support the fish and/or wildlife species. As such, ODFW applications regularly include requested rates that exceed available stream flows. Such applications, if approved, have the effect of precluding any new appropriative water use rights within or upstream from the stream reach designated in the application.

Moreover, once instream water rights are in place, existing water right holders lose the flexibility to transfer their points of diversion upstream. The instream water right holder (the State) must consent to the “injury” the transfer would cause. In exchange for its consent, the State typically requires mitigation by placing a portion of the transferred water rights instream. The 1987 Instream Water Right Act provided, “The establishment of an in-stream water right…shall not take away or impair any permitted, certificated or decreed right to any waters or to use of any waters vested prior to the date the in-stream water right is established…” ORS 537.334(2). In practice, however, existing water right holders lose the flexibility they might have otherwise enjoyed to modify their water rights as needed for their operations.

This is not to say that instream water rights have no place or value. The reason for outlining the increased emphasis on instream rights recently, and the effects such rights have on new and existing appropriative water rights, is to point out that we, as a State, are falling short on drought resiliency preparation efforts at the same time water resources are being irreversibly committed to instream purposes. In 2013, when the Legislature passed Senate Bill 839, establishing the Water Supply Development Fund, many hoped that the fund would be used to increase water storage throughout the State. As a whole, that fund has not created substantial new storage. The State must do better to carry forward all components of the Integrated Water Resources Strategy, including planning and preparation for drought resiliency through water storage and infrastructure improvements.

The Oregon Water Resources Department (OWRD) received a large funding package in the 2021 regular session of the Legislature. The Oregon Cattlemen’s Association joined a coalition letter to OWRD outlining recommended priorities for implementing that funding. The first priority in that letter is a request that OWRD renew its focus on increasing storage and improving disaster resiliency. Congress recently passed the Infrastructure Investment Jobs Act, and the letter further asks OWRD to develop a plan to leverage federal funds in support of these efforts.

In addition to government reprioritization and implementation of plans to prepare for droughts, individuals and groups from the agriculture community will need to lead the way and identify projects in their communities. It is possible that storage opportunities may be identified through place-based planning efforts in partnership with State agencies. Soil and water conservation districts and other local entities can also assist individuals to navigate the myriad of questions and processes involved. The Oregon Cattlemen’s Association will continue to advocate for legislation and government actions in furtherance of this goal, and assist members who are interested in exploring new or expanded water storage opportunities.

If you are interested, you might also check out Schroeder Law Offices’ free webinar about winter storage, available at: http://water-law.com/water-right-video-handbook-guide/.

NDWR launched a survey to gain your perspective and gather input to update the State Water Plan. 

The Nevada Division of Water Resources wants your input!

 The survey takes 10-20 minutes and can be found here Nevada State Water Plan Survey (qualtrics.com)  According to NDWR, “The updated plan is envisioned to serve as a high-level policy and planning guide to help inform and direct water resource initiatives in the near and distant future.” 

Make your voice be known and participate!

Stormwater and Water Delivery: Should I welcome stormwater into my water delivery system? With so much drought, suppliers and golf courses look everywhere for precious water. They need to augment the dwindling water supply. And they look to storm water as a solution.

But should they? Sediments, human and animal waste, fertilizers, and street oils are all classified as pollutants. The pollutants are transported with the water into your system. Do you take the precious water anyway, for free or by contract? What are the liabilities? These are all questions regarding stormwater and water delivery.

This webinar will discuss storm water management strategies. Is contracting to take stormwater ever a good idea? And what are the best management strategies to limit liability?

Laura Schroeder will present this fact filled webinar on this timely topic. This November 9th webinar will start at Noon, pacific time.  You will need to register in advance at this link. 

This webinar will be the 7th in our 2021 series of webinars we have called the “Vaccine” Series. This series is in respect to the on going fight against COVID.  And this series follows upon the 8+ webinars recorded in 2020. Recordings  of the past webinars can be viewed at our Water Rights Video Handbook or Guide.

We look forward to seeing you Tuesday!

How can you remove easements and other adverse interests from real property?  Suppose you are buying, selling, or developing real property. A lot about the property can be revealed through due diligence, the preliminary title report, or the deed. Sometimes – hopefully not often– this work can surprise property interests and impact a successful conveyance.

In this webinar attorneys Sarah Liljefelt, Nicole Vetter, and Laura Schroeder will share legal strategies to investigate and discover adverse property interests. They will look at title reports and on ground inspection and other sources. Such interests might include

• well sharing agreements,
• ditch easements,
• pipeline or water infrastructure or utility easements.
• or road easements.

Removing or amending these adverse property interests could be critical depending on your transaction goals.

You must register in advance for the webinar by following this link: https://us02web.zoom.us/webinar/register/7816340806642/WN_e2G4lGikT0Sss2sTz11tDw

This webinar will be the 6th in our 2021 series of webinars we have called the “Vaccine” Series. This series is in respect to the on going fight against COVID.  Replays or the past webinars can be viewed at our Water Rights Video Handbook or Guide.

The last webinar of the series will be next month on November 9. It will ask “Should You or Can You Take Storm Water into Your Existing System?”

Wetlands delineation and the Clean Water Act have come into focus again.

You may be about to invest in cleaning ditches or drains, or raising or deepening your reservoir or pond. Before you do, participate in this webinar to

• Learn how to identify potential development issues related to Clean Water Act jurisdiction, the agricultural exemption, the agencies involved in making determinations and their legal powers to levy fines.
• Learn why a wetlands delineation maybe required, and the steps a professional consultant undertakes in making wetland determinations.
• Learn what mitigation techniques are available in the event wetlands issues are hindering your activities.

Laura Schroeder and Therese Ure Stix together with Andrea Rabe of Rabe Consulting will present an hour long webinar to address these issues. The Webinar is scheduled for Tuesday, September 14. it will start at noon, pacific time.

You must register in advance here.

This live webinar is the most recent of 21 webinars presented during 2020 and 2021. We have dubbed the current series  the “Vaccine” series in view of our ongoing fight with COVID. You can watch recordings of all 20 previous webinars here.

Visit our site to learn more about Oregon Water Law or Nevada Water Law.

Schroeder Law Offices’ 2021 VACCINE webinar series is already half over.  Lucky for you, all webinars are available on-demand! In case you missed it, be sure to watch the 2021 VACCINE Webinars that already took place:

(1)       Contracting Out-of-Boundary Water and Wastewater Services;

(2)       What to do When There Is No Water: Drought Tools Explained

(3)       Terms to Put in a Well Share Agreement; and

(4)       How to Take Advantage of a Winter Appropriation Using Storage.

Don’t miss out on the upcoming webinars either!  The following topics are still in the works for the 2021 VACCINE Series:

(1)       Tuesday, September 14:  Due Diligence for Canal, Pond, and Drainage Maintenance: Wetlands Delineation:

(2)        Tuesday, October 19: How to Change or Remove an Easement (Ditch, Road, Well Share) from Real Estate; and

(3)        Tuesday, November 9: Should or Can you Take Stormwater into your existing system? 

Check back on our blog for more information on registration for upcoming webinars in the 2021 VACCINE webinar series. Afterward, webinars are available on-demand here.  Schroeder Law offices gives you continued access to educational content online.  If you have any problems with access or viewing, please contact Scott Borison at scott@water-law.com.