According to Black’s Law Dictionary, the Public Trust Doctrine preserves submerged and submersible lands for public use and the state bears the responsibility of preserving and protecting the public’s right to use the water upon it. Can this doctrine have an impact on your water rights, and if so, how? The Nevada Supreme Court is currently considering how the Public Trust Doctrine will apply in Nevada. Specifically, the two certified questions being considered by the Court are:

1. Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent?
2. If the public trust doctrine applies and allows for reallocation of rights settled under the doctrine of prior appropriation, does the abrogation of such adjudicated or vested rights constitute a “taking” under the Nevada Constitution requiring payment of just compensation?

Several Amicus briefs have been filed and more are expected.

Most recently the Nevada Water Resources Association held a discussion at their annual conference debating the many issues related to the intersection of Public Trust Doctrine and already Decreed water rights on the Walker River system. Schroeder Law Offices’ shareholder Therese Ure will be presenting in March on the Public Trust Doctrine and how it applies to water rights to a small group in Lovelock Nevada, to further consider the intersection of Decreed water rights and this Doctrine.

The U.S. Society for Irrigation and Drainage Professionals (USCID) will be holding their 12^th International Conference on Irrigation and Drainage in Reno, NV on November 5-8, 2018 and we are excited to announce that Therese Ure has been selected as Conference Co-Chair. The conference theme this year is Basin Water Management – Challenges in Water Management at the Basin Scale. Under this theme the specific topics that will be presented on include:

• Basin Water Management/Governance/Jurisdictional Issues
• Competing Urban, Industrial, Agricultural and Environmental Water Uses
• Environment
• Basin Water Planning
• Water Supply and Demand Management
• Water Transfers
• Conjunctive Use of Groundwater and Surface Water
• Technologies

The conference planning committee is currently accepting abstracts for proposed papers that are specifically related the conference topics listed above. If you are interested in submitting your abstract the deadline is March 15, 2019. For additional information regarding the call for papers please see the call for papers announcement or visit the USCID.

For other relevant dates, please find the conference schedule listed below:

• Abstracts Due  —        March 15, 2019
• Notify Authors —        April 1, 2019
• Draft Papers Due —    June 3, 2019
• Comments to Authors  — July 22, 2019
• Final Papers Due —     August 30, 2019
• Conference — November 5-8, 2019

We hope you have the opportunity to attend this highly educational event!

As I attend hearings on the Diamond Valley Adjudication, I am continually reminded of the importance of historical research to show pre-code water use. While this has been a topic of blogs in the past, we cannot stress enough how spending the time now will only benefit you in the future. 

This is not an item to procrastinate on! One claimant mentioned he spent his time researching water use in the county records over the last few winters! Yes, it can take that long, so start now! 

In order to show this pre-code water use in an adjudication proceeding, information such as chain of title to the first possessory entry man is important. You may consider ordering the patent files from National Archives to obtain that information. Thoroughly review the pre-code tax records for your predecessor in interest to determine what they were being taxed on. This helps to establish proof of grazing if they were taxed on animals, establishes proof of irrigation if taxed on hay or crop production, etc.  Weaving this quilt to bring together all the historical facts is of utmost importance! 

While some of these adjudication proceedings might not occur for decades, it is important to complete this research now!  Find the records while they are easy to locate and you have the time to track them down!

For more information on the types of information that can support pre-code water rights, see our article previously posted titled How to Research Land & Water for Proof of Vested Nevada Water Right Claims.

The Fallon Range Training Complex (“FRTC”) Modernization Draft Environmental Impact Statement (“EIS”) comment period has now been extended so that public comments may be submitted through Thursday, February 14, 2019. There are several public informational materials available to the general public regarding the modernization, materials can be found at the draft EIS website and include fact sheets and maps regarding the management of natural and cultural resources for FRTC.

The FRTC Modernization Draft EIS assesses the potential environmental impacts of the proposed modernization of the Navy’s FRTC located in Fallon, Nevada and focuses specifically on modernizing the complex to provide the Navy with more realistic training capabilities while maintaining the safety of the local community. The public is encouraged to review the materials and submit comment should they have concerns regarding adverse impacts to the community; comments can be submitted to the Draft EIS by mail or online at the FRTC Modernization database. All comments that are submitted during the public comment become a part of the public record and substantive comments will be addressed in the Final EIS.

The Final EIS statement is expected to be prepared and available to the public by Fall 2019, and will include updates to the Draft EIS and response to any substantive comments submitted during the draft comment period. Once the Final EIS statement is released, there will be a 30-day waiting period for consideration of comments and public review. The Record of Decision is expected to be available by Winter 2019-2020.

Public workshops on the Humboldt River Modeling Efforts will be held in January 2019! The Nevada Division of Water Resources (“NDWR”), in conjunction with US Geological Survey and Desert Research Institute, will be presenting the latest information in the ongoing studies of the Humboldt River Basins. Times and locations for the public workshops can be found in NDWR’s official announcement.

The workshops are held for the general public and attendance is encouraged as officials work to prepare a conjunctive management plan for administration and management of groundwater and surface water of the Humboldt River and its tributaries.

Humboldt River Modeling workshops are held on an annual basis to update the public regarding governance and use of the river system. A study began in 2015 and the workshops are used to update and provide information to the draft report, with input from the public water users as well as hydrology and geology specialists at NDWR, the US Geological Survey, and the Desert Research Institute. A draft of the final report is expected to be prepared by the first quarter of 2019.

            Are aquifers public or private property? The question is more complicated than it first appears! To answer the question, one must dive down into the fundamental origins of our legal system, fraught with complicated Latin phrases, just like the dangers of the deep itself!

            Aquifers are scientifically defined as a “body of permeable rock which can contain or transmit groundwater.”[1] However, the word, in its common use, refers to the groundwater, not the permeable rock that actually makes up the aquifer. Traditionally, rocks, soil, and dirt are considered private property under the ad coelum doctrine, making them private property owned by the overlying landowner.[2] Ownership under this doctrine reaches from the atmosphere above to the center of the Earth, shaped like vertical column. However, water is traditionally seen as commonly owned by the public, available for private use under the ferae naturae doctrine. Under this doctrine, water is commonly owned, like wild animals, but can be captured and privately used, like by hunting and capturing it. The various water doctrines, including prior appropriation, the rule of capture, and riparianism, all derive from a negotiation between these two doctrines.

            The law continues to navigate the paradox of aquifer ownership: Is the aquifer the water or the rocks holding it? At least one court is now facing this challenge. The California case Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al places this question at the heart of the litigation.[3] The Agua Caliente Band of Cahuilla Indians (“Tribe”) filed a suit to protect the aquifer underlying their reservation from groundwater use that threatened to cause subsidence, contamination degrading water quality, and aquifer recharge activities that filled storage space with foreign water. As part of the Tribe’s claim, they assert that the Tribe owns pore spaces (storage) within the aquifer that are being permanently destroyed by subsidence. The Tribe argues under property principles that the pore spaces are a part of the reservation under principles of the ad coelum doctrine. The opposing parties argue that the pore spaces are publicly owned, and the Tribe cannot claim injury to something they never owned or, in the opposing argument, “captured” under the ferae naturae doctrine. While the trial is still ongoing, the court will eventually have to face the core question: Are aquifer pore spaces public or private property?

            While the debate over ancient Latin phrases, injury, and rocks may seem like an uninteresting legal squabble, the results of the case could have real ramifications for many groundwater issues! For example, could an artificial recharge project seeking to replenish depleted aquifers actually be trespassing, if aquifers are privately owned? Or, if publicly owned, can a neighbor to the recharge project whose land is inundated with water have shaky ground to make a claim, since they do not own the pore spaces? Courts will likely have to wrestle with these questions for many years to come.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect you!

[1] Oxford Online Dictionary,https://en.oxforddictionaries.com/definition/aquifer

[2] https://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos

[3] The case is presently before the United States District Court for the Central District of California, Docket No. ED CV 13-00883-JGB-SPX. The complaint was filed on May 14, 2013.

On Tuesday, November 6, Schroeder Law Offices traveled to Keizer, Oregon to teach a Water Law Bootcamp for 200 attendees, hosted by the Marion Soil & Water Conservation District. The Bootcamp was attended by small farmers, commercial farmers, homeowners with domestic wells, and more. Attorneys Laura Schroeder and Lindsay Thane were warmly welcomed by members of the community eager to hear all about water use rights in Oregon.

If you are interested in hosting a Water Rights Bootcamp in 2019, please contact Legal Secretary Mollie Finke at 503-281-4100 or m.finke@water-law.com.

The ongoing efforts to protect a central Washington aquifer and the economic interests jeopardized by its steady decline were the focus of the Columbia Basin Development League’s Conference and 54^th Annual Meeting, which was held November 1 at Moses Lake.

The CBDL, which identifies itself as a non-profit organization representing the interests of stakeholders of the Columbia Basin Project, the largest Bureau of Reclamation project in the United States, has staunchly advocated for full development of the Project. Initially authorized to provide irrigation for 1.1 million acres – water, diverted from the Columbia River at Grand Coulee Dam, was first delivered in 1948 – the Project currently serves approximately 700,000 acres. Irrigators on the eastern side of the Project area not served by the Project’s vast conveyance network – plans for full buildout were scuttled in the 1960s due to escalating costs – became reliant on groundwater sourced from the Odessa Aquifer.

To address the aquifer’s continual decline, which has caused numerous wells in the region – owned by municipalities as well as farmers – to fail, the state of Washington launched the Columbia River Initiative, which revived plans for expansion of the Project. In 2013, those plans took shape as the Odessa Ground Water Replacement Program.

OGWRP, intended to ease irrigation reliance on groundwater within the Odessa Subarea by switching eligible landowners over to Project surface water, is a two-step construction undertaking. The first phase, a $50 million expansion of OGWRP’s primary artery, the East Low Canal, and associated infrastructure to accommodate added capacity, is well under way. The second phase, building pumphouses and laterals to deliver water to eligible irrigators, is in the formative stages and expected to cost approximately $175 million.

After a panel discussion on OGWRP featuring a farmer/landowner, an Adams County administrator and two representatives from the East Columbia Basin Irrigation District, U.S. Rep. Dan Newhouse added his perspective in the conference’s keynote address. Newhouse lauded the progress made through the collaborative efforts of federal, state and local entities, then turned to the issue of financial support. “The state of Washington has done great job, but it’s time for the federal government to step up,” he said. “We need to make (the Columbia Basin Project) bear all the fruit it was designed to.”

Newhouse indicated the key to obtaining federal funding would be getting the Project included as a line item on the president’s budget rather than relying on receipt of an earmark through the appropriations process. With continued efforts to bring attention to OGWRP – and the potentially devastating economic and environmental consequences if it is not fully implemented – Newhouse believed that the need would be recognized.

“There’s a tremendous opportunity in the Columbia Basin for (President Trump) to put his stamp,” Newhouse said. “We’ve got a builder in the White House.”

For more information on OGWRP and the Columbia Basin Project go to https://www.cbdl.org/.

On October 23, 2018, President Trump signed America’s Water Infrastructure Act (“AWIA”), also known as the Water Resource Development Act, into law. This bipartisan bill, which previously passed the House of Representatives on September 13, 2018 and the Senate on October 10, 2018, aims to improve dams, levees, ports, and waterways throughout the United States. It also amends the Safe Water Drinking and allocates funds toward more efficient and sustainable water quality control and management, particularly in underserved communities.

As its name might suggest, one of AWIA’s main goals is to improve America’s water systems. Under AWIA, the U.S. Army Corps of Engineers will receive around $3.7 billion to plan, study, and develop water projects to alleviate strain on existing infrastructure. In the Northwest, the Port of Seattle is specifically slated to undergo construction to improve navigation channels, as are several other key ports around the United States. AWIA also has specific provisions that focus on flood protection measures on the Snake River and levee improvements in Clatsop County, Oregon, among others.

One of the most notable aspects of AWIA is how it addresses the ongoing water shortages in Northern California/Southern Oregon’s Klamath Basin. AWIA provides a much-needed $10 million annuity to the Bureau of Reclamation to address ongoing water issues in the Klamath Basin, and provides avenues for farmers to make use of Klamath Project canals to deliver water to their farms. AWIA also focuses on increasing efficiency and sustainability of hydropower and delivery of affordable electricity to those same farmers.

Stay tuned to Schroeder Law Offices’ blog for more updates on AWIA’s progress and impacts on water in the Northwest and the United States!

We all know that pumpkins make great fall decorations and are an icon of this Halloween holiday, however they also provide many more less known benefits. According to the Old Farmer’s Almanac, all parts of pumpkins are edible except the stem and if kept in a cool, dry space, will keep for up to 6 months or more! Pumpkins are a good source of fiber, vitamin C, several of the Vitamin B complexes, potassium and carotenoids that play a role in cancer prevention, controlling blood-sugar levels and boosts the immune system.

Adding pumpkins into crop rotations help farmers. Their presence helps soil maintain a nutrient balance, reduces weed problems and decreases the likelihood of disease spores, eggs and pests. According to Texas A&M Horticulture, planting pumpkins directly after harvesting sweet corn helps to decay a coarse crop refuse that is resistant to many other crops. And planting pumpkins directly after grass crops results in fewer diseases to the pumpkins. Pumpkins are also unique in that they can tolerate soils with low pH levels as well as extremely acidic soils.

Pumpkins are also somewhat tolerant of dry soil conditions and in certain locations farmers can rely solely on rainfall. When rainfall is inadequate, irrigation is essential especially during the pollination and fruit set periods. Many farmers have found that using a drip system to water their pumpkin crop saves time and money by using less water than flood irrigation or center pivot sprinklers.

Pumpkins have both male and female flowers and pollen transfer is a necessary event. Historically many farmers relied on native bees to transfer the pollen, however, due to a decline of bee population in certain areas, some farmers have resorted to renting bee hives for the first few weeks of flowering. Weeds, insects and diseases are a constant battle for pumpkin farmers as well. Farmers are in constant flux of fighting off pests and diseases while maintaining the integrity of the environment necessary for other activities such as bee pollination.

Pumpkins are beneficial in so many other ways than their decorative purposes. The next time you see a pumpkin, remember all of their unique qualities and ways they benefit the farming industry.

Taking time away from their busy schedule, Schroeder Law Offices attorneys and staff spent an educational weekend together while also celebrating their newest achievements!

Oktoberfest! On Friday, October 12, 2018, Schroeder Law Offices hosted an “Oktoberfest” event in downtown Portland to honor attorney Sarah Liljefelt as the newest Shareholder of the firm and to celebrate our newest associate attorney, Jakob Wiley. We were happy to share their recent accomplishments with many of our Oregon clients, consultants, family, and friends.

Farm Tour! After an evening celebrating, Schroeder Law Offices packed it up and headed out to the country on Saturday for an educational opportunity touring a client’s farm. We learned about different agricultural irrigation techniques, multiple land use opportunities combining mining and agriculture, and processing various agricultural products from farm to table.

Utilization Concepts! We then met up with Professor Todd Jarvis of the Institute for Natural Resources at Oregon State University to discuss water rights issues in the West, learning a bit about the water basin utilization project he and associate attorney Jakob Wiley are working on. Professor Jarvis and attorney Wiley (with some other contributors) are collaborating to write a book on the unitization of aquifers as a way to manage water use – while still in the research phase, the book is expected to be completed by the Summer of 2019. We look forward to sharing their discoveries and plans as they move forward.

We Escaped! Finally, Schroeder Law Offices took the opportunity to do some additional team building and participated in two different escape rooms at “Stumptown Escape Games.” The games were challenging but our teams escaped by putting their heads together and succeeding under pressure!

Schroeder Law Offices is celebrating 27 years of representing water users in the West! To celebrate, SLO’s attorneys and staff from several states will travel to Portland, Oregon for an Oktoberfest party at the Portland City Grill to thank our clients, consultants, friends, and families for their contributions to our success over the years. SLO will also be celebrating attorney Sarah Liljefelt as its newest shareholder, attorney Lindsay Thane’s admission to the Montana Bar, and our newest attorney in our Portland office, Jakob Wiley. As part of the weekend event, the SLO crew will visit a farmer and food processor client in the Willamette Valley to learn more about their operation. We are all very excited for the opportunity to spend time with the members of SLO from different states!  

New Associate Attorney Jakob Wiley successfully completed his defense of Collective Aquifer Governance: It’s the Water and a “Hole” Lot More! on September 17, 2018, completing his Masters of Science in Water Resources Policy and Management. Jakob completed the Concurrent J.D./M.S. program between Oregon State University (“OSU”) and the University of Oregon School of law, https://gradwater.oregonstate.edu/concurrent-jdms-degree-program. Jakob’s successful defense of his research paper marked the capstone of his MS studies at OSU.

The paper unravels the differences between the current paradigms in groundwater and aquifer governance, showing that the present focus on groundwater has struggled to meet the challenges of true aquifer governance. Aquifers are composed of a variety of resources, like storage spaces, thermal properties, chemical and biological contaminants, and hydraulic pressures. Jakob coins the term transresources to describe these components, inspired by transdisciplinary approaches in academia. To achieve true aquifer governance, transresources must be included in the governance strategy. Unfortunately, traditional groundwater management only attempts to address these issues through the lens of groundwater regulation.

To provide a guide, Jakob’s paper compares aquifer governance with unitization agreements used in the oil and gas industry. These agreements were developed to counter the inefficient, competitive, and costly over-drilling of wells in the early years of hydrocarbon development. Unitization agreements are fundamentally a contract between reservoir owners. Unitization agreements convert the right to pump into shares of the resources present in the reservoir. By pooling the rights to withdraw oil and gas into a “unit”, a more equitable, efficient, and voluntary governance system is created, while also incorporating any pumping, spacing, and pressure management laws.

Jakob’s research translates this agreement approach into a system of aquifer governance. The theoretical approach would create an agreement among aquifer users, allowing them to contractually change the incentives and use patterns of the aquifer. For example, conversion from flood to sprinkler irrigation can improve “efficiency” but also dramatically reduce artificial recharge of the aquifer. A “collective aquifer governance agreement” – Jakob’s translation of a unitization agreement – could be used to incentivize groundwater users to adopt efficient sprinklers while incentivizing beneficial activities, like incidental aquifer recharge from flood irrigation, improving the overall sustainability of the aquifer system.

The key feature of a collective aquifer governance agreement is the design of shares. By allocating shares to each transresource, the system of water allocation can reflect the scientific and physical effects of groundwater and aquifer resource use (like geothermal energy production, storage, subsidence, in situ bioremediation, ect). Directly connecting rights with physical effects of aquifer use can internalize any negative externalities of aquifer use, when properly designed, and could support a conjunctive surface and ground-water (or any other transresource) market.

Jakob’s work on this topic will continue as he works with Dr. Todd Jarvis of OSU on an upcoming book expanding the theory and providing guidance for the next stage in groundwater management: collective aquifer governance, showing oil and water really do mix!

Jakob’s complete research paper is publicly available at the following link: http://ir.library.oregonstate.edu/concern/graduate_projects/pn89dd30b

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect you!

In 2013, the Oregon legislature adopted Senate Bill 838, which imposed a five year moratorium on motorized mining techniques in rivers and streams designated as essential salmon habitat.[1] A group of mining companies, a mining district, and individual miners with mining claims on federal lands in Oregon who use motorized mining techniques called “suction dredge mining” sued the State of Oregon.[2]

While the litigation progressed, the Oregon legislature passed Senate Bill 3, which repealed Senate Bill 838; however, the litigation continued as a challenge to Senate Bill 3. Senate Bill 3 imposes a permanent restriction on the use of motorized mining equipment in waters classified as “essential anadromous salmonid habitat,” which is defined as “the habitat that is necessary to prevent the depletion of indigenous and anadromous salmonid species during their life history stages of spawning and rearing.”[3] The restriction in Senate Bill 3 only applies within rivers and streams and does not extend onto the banks of the waterways.[4]

Bureau of Land Management regulations issued under the Federal Land Policy and Management Act require mining operators comply with applicable state environmental laws that do not conflict with federal law.[5] The regulations also state there is no conflict between state and federal law when the state law requires a higher standard of protection for public lands than does the federal law.[6]

While “reasonable environmental regulation” may be imposed by state law on federal lands, the miners argued Senate Bill 3 is preempted by federal law because it is: (1) a state land use planning law, not an environmental regulation; (2) “prohibitory, not regulatory, in its fundamental character;” and (3) not a reasonable environmental regulation.[7] The miners asserted Senate Bill 3 is a land use planning law rather than environmental regulation because it prohibits a specific use of the land in particular zones.[8]

The District Court of Oregon’s grant of Summary Judgment in favor of the State of Oregon was appealed and heard by a panel of the Ninth Circuit Court of Appeals. The Court determined the Federal Mining and Minerals Policy Act of 1970 declared that a policy of the U.S. is to develop an “economically sound and stable domestic mining” industry, but subject to “environmental needs.”[9] The Court ruled Senate Bill 3 is an environmental regulation, not a land use planning law, and it has a specific environmental purpose: to protect sensitive fish habitat.[10] Additionally, the Court found Senate Bill 3 is not a prohibitory regulation that violates federal law because it does not completely prohibit all mining activities on federal lands.[11] Finally, the Court found Senate Bill 3 reasonably restricted mining activities in waters on federal land to protect essential salmonid habitat because it only regulated certain types of mining and in certain waters.[12]

Judge Smith dissented from the majority opinion, asserting that Senate Bill 3 is a land use regulation since it “does not identify an environmental standard to be achieved” and prohibits all motorized mining operations irrespective of the miner’s compliance with state and federal environmental standards, including the Endangered Species Act and Clean Water Act.[13]

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect you!

[1] Bohmker v. Oregon, __ F.3d __, 5 (9th Cir. 2018).

[2] Id. at 7.

[3] Id. at 7-8 (quoting ORS 196.810(1)(g)(B)).

[4] Id. at 9, fn 2.

[5] Id. at 21-22 (citing 43 C.F.R. § 3809.3).

[6] Id.

[7] Id. at 27.

[8] Id. at 30.

[9] Id. at 17 (quoting 30 U.S.C. § 21a).

[10] Id. at 27-28.

[11] Id. at 50.

[12] Id. at 53-54.

[13] Id. at 64, 67-68.

Incoming J.D. Paralegal (Attorney upon Bar passage) Jakob Wiley attended the University of California Cooperative Extension’s regular Rice Production Workshop held at Lundberg Family Farms in Richvale, California. The seminar was attended by farmers, local businesses, and water district personnel, providing a broad overview of rice production and the challenges faced by producers.

Water in rice production isn’t just about irrigation. Water serves a critical role in temperature regulation, weed control, and field management. For example, water is used to prevent excessive cooling of the rice flowers, which inhibits pollination. Exposure of the flower to cool temperatures can “blank” the rice (prevent the grain of rice from forming) and reduce yields. Water also acts as a blanket, keeping the flowers warm during cool nights. Careful management of water also ensures the safe use of pesticides and herbicides (and avoids costly fines). Water plays a critical role in the growth, development, and success of a rice field.

More information about rice production can be found in the 2018 Rice Production Workshop Manual available at http://rice.ucanr.edu/Reports-Publications/Rice_Production_Workshop_Manual/.

Jakob will add his new knowledge about rice production to his background in cattle ranching and alfalfa production to better assist with your water needs!

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect you!

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“agencies”)  issued a supplemental notice of proposed rulemaking to seek additional comments on the repeal of the 2015 “waters of the United States” rule under the Clean Water Act (“2015 WOTUS Rule”).

In July 2017, the agencies first issued a notice of a proposed rulemaking to repeal the 2015 WOTUS Rule. On February 6, 2018, the agencies published a final rule in the Federal Register adding an applicability date of February 6, 2020 to the 2015 WOTUS Rule, but at that time the agencies did not repeal the 2015 WOTUS Rule. The applicability date of February 6, 2020, makes it such that the pre-2015 regulatory definition of waters of the United States will be in effect until February 6, 2020 or until the 2015 WOTUS Rule is repealed. For additional background, see Schroeder Law Offices blog post, available here.

The agencies issued the supplemental notice to provide the public an opportunity to comment on additional agency considerations to support the repeal of the 2015 WOTUS Rule that were not discussed in the July 2017 notice of proposed rulemaking. The supplemental notice also aims to clarify that the agencies’ July 2017 proposal would completely and permanently repeal the 2015 WOTUS Rule in its entirety, replacing it with the pre-2015 regulatory definition.[1]

The supplemental notice also provides an additional comment period for interested parties to consider new factors and reasoning the agencies recently published as further support for the agencies’ decision to consider repealing the 2015 WOTUS Rule.[2] The additional information and comment period provided by the supplemental notice may also be designed to strengthen the July 2017 rulemaking process as any final rule will inevitably be challenged in a lawsuit.[3]

While the pre-2015 waters of the United States regulatory definition is in effect, the agencies will draft a new regulatory framework to define “waters of the United States.” The agencies will then publish a proposed rulemaking in the Federal Register to adopt a new definition.[4]

The public has 30 days to comment on the supplemental notice of proposed rulemaking. The comment period closes August 13, 2018.

[1] EPA New Release, EPA and Army Seek Additional Public Comment on ‘Waters of the U.S.’ Repeal (June 29, 2018) https://www.epa.gov/newsreleases/epa-and-army-seek-additional-public-comment-waters-us-repeal.

[2] Environmental Protection Agency, Definition of Waters of the United States-Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018) https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15104.

[3] Juan Carlos Rodriguez, EPA, Corps Expand Legal Case Against Obama Water Rule, Law360 (June 29, 2018) available at https://www.law360.com/articles/1059064/epa-corps-expand-legal-case-against-obama-water-rule.

[4] EPA, Waters of the United States (WOTUS) Rulemaking, https://www.epa.gov/wotus-rule/step-two-revise.

A lot has changed since 1909, when Oregon enacted its Water Code and the water use permit system began. Obtaining a water use permit can be a lengthy and detailed process. If you’re not careful you can limit the flexibility of your water permit through self-imposed conditions without realizing it.

For example, Schroeder Law Offices recently represented a business that stated on its groundwater permit application that it planned to use drip irrigation. The business did not plan to exclusively use drip, but drip was one form of irrigation used for part of its operation. As a result, the Oregon Water Resources Department (OWRD) proposed to impose a condition in the Proposed Final Order (PFO) that the business would be limited exclusively to drip irrigation. This would have significantly reduced the business’s flexibility and the marketability of its property in the future. However, our office was able to successfully remove the proposed condition from the water use permit that was issued.

This example provides an important reminder to very carefully prepare water use permit applications, and closely review OWRD’s initial reviews, proposed orders, and final orders/permits. Otherwise, water users may be subject to unnecessarily restricting permit conditions. Water use professionals, such as attorneys or consultants, can provide assistance to prepare permit applications and review OWRD documentation regarding the applications. Water use application forms are available on OWRD’s website, https://www.oregon.gov/OWRD/pages/index.aspx. For more information about water right processing see: http://www.water-law.com/water-rights-articles/get-an-oregon-water-right/.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect you!

This article was drafted with the assistance of Law Clerk Nathan Klinger, a student at Willamette Law School.

On July 11 and 12, 2018, attorney Laura Schroeder and paralegal Rachelq Harman travelled to Caldwell and Twin Falls, Idaho, respectively, for the Idaho Rural Water Association’s (“IRWA”) annual Water Law to YOU Road Show to educate water users and managers all about their municipal water rights. The 6 hour classes discussed the basics of owning, maintaining, and utilizing water rights, along with tips on avoiding potential associated issues such as easement disputes and involuntary forfeiture. The classes also touched on recent developments in Idaho water law, and the status of the State’s multiple ongoing adjudications.

IRWA hosted these presentations that were offered as continuing education credits to satisfy both drinking water and wastewater CEU requirements. Some attendees also planned to seek real estate and/or attorney CE credits for those professional licenses. Attendees came from a variety of backgrounds, including ditch association managers, wastewater treatment operators, and even fellow water law attorneys!

Laura Schroeder’s new class incorporated additional information related to Idaho Department of Environmental Quality’s (“IDEP”) assumption of Idaho’s water quality program from the Environmental Protection Agency (“EPA”). Due to this recent development and the continuing efforts of the Idaho Department of Water Resources (“IDWR”) on the north Idaho adjudications, the class’s focus was expanded from water rights basics. Active participation from students in each session made each presentation unique, and allowed a focus on material of specific relevance and interest to each group.

While this year’s Road Show has come to an end, there are plenty of upcoming opportunities to brush up on your water rights education. Check out Schroeder Law Office’s events page to learn where you can find us next, and stay tuned to Schroeder Law Offices’ blog for more information on upcoming events and water law developments!

On March 13, 2018, Oregon Governor Kate Brown declared a drought in Klamath County under Oregon Executive Order No. 18-02, with an expiration date of 12/31/2018. The drought was declared largely due to the low snow pack in the region. According to the Capital Press, Klamath County was, at that time, experiencing 45 percent of its usual snowpack for the year. Since March 13, the Governor has made drought declarations in five additional counties: Grant, Harney, Lake, Douglas, and Baker. To check for current drought declarations, click here.

The Oregon Water Resources Department (OWRD) is currently issuing emergency drought permits for the Klamath Basin.  According to OWRD, temporary emergency use groundwater permits may be issued in designated drought areas. These permits allow surface water users under drought declaration access to temporarily use groundwater wells to gain access to water. In addition, approved drought permits will require metering, record keeping, and reporting of groundwater use over the season to the Department. To access the emergency drought application’s, click here.

Due to the low snow pack in the 2017-18 winter, and the limited rain fall Oregon has experienced, much of the west is expected to experience higher than usual fire danger. From October 2017 through April 2018 rainfall was approximately 70 percent of what is typical in southwest Idaho, and approximately 50 to 70 percent of what is typical in southeast Oregon. The Capital Press reported that The National Interagency Fire Center’s Predictive Services Unit (NIFC) reported on May 1 that it expects warmer and drier than average conditions across the west. According to the Capital Press the NIFC report also went on to say that southeastern Oregon’s warm, dry April stood out in contrast to cooler, wetter conditions in much of the northwest. The NIFC reported on June 1 that April’s cooler than average conditions across the northwestern states were replaced by above average temperatures in May. The June report went on to say that the above average temperatures are likely caused by the El Niño weather pattern that is expected to hit by mid-fall. The National Ocean Service classifies an El Niño by an unusually warm waters in the Pacific Ocean. Typically, it will occur during winter months like December. According to the National Ocean Service, it typically brings wetter than average conditions off the US Gulf Coast.

US News reported that as of April, all basins in Oregon were well behind on snow pack, most measuring 40 – 70 percent of normal levels. The US Drought Monitor map shows (click here to see the map) abnormally dry to moderate drought conditions, extending through the month of August.

Oregon has already had 259 fires across the state in 2018, which have burned 2400 acres, as of June 28 according to the Oregon Dept. of Forestry (ODF), Fire Blog. According to the NIFC, there are 55 fires currently burning throughout 10 states, and as of June 28, seven of those are new, with 29 of the fires currently burning, in Alaska alone. Of those 55 fires, nearly 500,000 acres have already burned and only three of them are considered contained.

As a result of the unusually low snow pack, unseasonably dry heat, and over all conditions, the 2018 summer is expected to continue to be busy for wildland fire fighters and irrigators alike. Stay tuned to Schroeder Law Offices’ Blog for more news.

Attorney Sarah Liljefelt presented at Halfmoon’s Water Laws and Regulations seminar on June 7^th on the topic of Oregon Groundwater, teaching a group of engineers about groundwater ownership, regulation, and acquisition of groundwater use rights in Oregon. This week, on June 28^th, Sarah will present at the Oregon State Bar Environmental & Natural Resources Section’s “brownbag” continuing legal education seminar on the topic of groundwater regulation in the Klamath Basin in Oregon. Her co-presenter is Lisa Brown of WaterWatch, who will speak about groundwater in Harney County. If you are interested in attending, please visit the Section’s Events page or Schroeder Law Offices’ Coming Events page for more information. Sarah’s presentation materials are available on the Section’s Events page.

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