In an often-arid, agricultural community, nothing is more precious than water, particularly in drought years. However, flood years present their own set of challenges as well. When it comes to water allocation, it’s not just how much water that matters, but also when that water is received. Timing is as important as quantity when it comes to water delivery, especially when taking into account the impact snow pack and snow melt has on water supply.

For irrigators in Idaho’s Treasure Valley, this issue has long been a topic of discussion and debate. Water is accumulated and stored in three major reservoirs (Arrowrock, Anderson, and Lucky Peak) and is released throughout irrigation season to water users through a series of canals. Water is diverted to users at various points on the canals, at which time it begins to count toward a user’s annual allotment of water. This is typically not an issue during years of normal water accumulation and distribution. However, when above-average quantities of water accrue in the reservoirs, water must be released earlier in the spring to prevent overflow and flooding.

Early “flood water” releases are the root of the current conflict concerning regulation of water storage in Idaho. Water rights holders are allowed only a certain amount of water under the conditions of their permits and/or certificates. When water is released out of storage earlier in the year, Idaho Water Resources Department advises that the meter starts running regardless of whether or not the water right holder is ready to turn the water into its irrigation facilities. For senior users (holders of rights with earlier priority dates), this means seniors risk running out of water later in the season. Typically, if a senior is not receiving their allowed quantity of water as flows decrease in the hotter months, the senior is able to make a water call on junior priority water right holders. However, if, due to the early release of water, the senior has technically received the storage release of their senior priority water, the senior could be left high and dry.

This issue has been litigated in the Idaho courts as a contested case since 2013, with argument before the Idaho Supreme Court scheduled to occur on June 20, 2018. However, on June 6, 2018, a joint legislative committee met and unanimously called for Governor Butch Otter to hold a special session to pass legislation that would add a new Section 42-115 to the Idaho Code. Section 42-115 would ensure that future water storage projects do not interfere with existing reservoirs. While this proposed legislation will not fully resolve the ongoing issues, nor constitute a settlement between the parties, it may be a positive first step toward resolution.

Stay tuned to Schroder Law Offices’ blog for updates on this legislation, settlement, and other water law topics!

While the negotiation of U.S. international treaties has been in the news lately, the renegotiation of an international treaty of particular importance to the Pacific Northwest has not received much coverage. However, May 29-30, 2018 marked the first round of negotiations between the U.S. and Canada in the effort to renegotiate the Columbia River Treaty.

Notably, May 30, 2018 also marked the 70th anniversary of the historic Vanport flood that wiped out a town of approximately 18,000 residents situated between Portland, Oregon and Vancouver, Washington.[1] On that day in 1948, the Columbia River crested at Portland to fifteen feet above its flood plain and breached the embankment protecting Vanport, which just years earlier was Oregon’s second largest town.[2] While the town of Vanport no longer exists, one of the many legacies of the devastating flood is the Columbia River Treaty and its flood control provisions.

 A Columbia River Treaty between the U.S. and Canada was seriously considered beginning in 1944, but it was not until 1960 that the U.S. and Canada began negotiating the Treaty, which was signed in 1961 and took effect in 1964. The Treaty has no specific end date, but 2024 is the earliest either party may terminate the Treaty and to do so, the party must provide a minimum of 10 years written notice of termination.

The impetus for renegotiating now is that the assured annual flood control procedures in the Treaty will end after 2024 whether or not the Treaty is terminated.[3] After 2024, on-call flood control measures will apply requiring the U.S. to ask Canada to store water after the U.S. has used all available flood control space in U.S. reservoirs.[4] These on-call procedures have been referred to by Oregon and Washington’s Congressional Representatives Peter DeFazio and Cathy McMorris Rodgers as “ad hoc, unplanned” and with the likely potential to cause uncertainty and international disputes.[5]

The Canadian storage created by the Columbia River Treaty includes 15.5 million acre-feet of water in the upper reaches of the Columbia, including the storage behind Libby Dam, which sits near the U.S. and Canada border in Montana and created Lake Koocanusa, a reservoir that backs up 42 miles into British Columbia. While the U.S. benefits from the flood control measures, both countries realize a benefit from the power generated. However, the Treaty was not written specifically to provide water for irrigation or fish subsistence.[6]

Both Canada and the U.S. have spent recent years studying the effects of the Treaty and the various issues that will serve as levers in the negotiation to balance the current and future needs of both countries. These studies ultimately led both countries to consult with stakeholders in their regions and to issue regional recommendations that will serve as the basis for renegotiating the Treaty.[7]

While neither county has given notice of termination, the entities began renegotiating the Treaty on May 29-30, 2018. The next scheduled negotiation is August 15-16, 2018. [8] The renegotiation of the Columbia River Treaty will be important for Pacific Northwest irrigators and water users as the eventual revisions to the Treaty will likely: impact future reservoir storage, alter the timing of reservoir releases, take into account ecological and fish impacts of the Columbia River Power System, and effect utility rates for all electricity customers.

[1] Michael N. McGregor, The Vanport Flood, The Oregon History Project: Oregon Historical Society (Mar. 17, 2018) available at https://oregonhistoryproject.org/articles/essays/the-vanport-flood/#.WxhNxkgvyUm.

[2] Carl Abbott, Vanport, The Oregon Encyclopedia: Oregon Historical Society (Mar. 17, 2018) available at https://oregonencyclopedia.org/articles/vanport/#.WxhNwUgvyUn.

[3] Northwest Power & Conservation Council, Columbia River Treaty, available at https://www.nwcouncil.org/reports/columbia-river-history/columbiarivertreaty.

[4] Id.

[5] Cathy McMorris Rodgers & Peter DeFazio, Modernizing our Columbia River Treaty, OregonLive (Mar. 14, 2018) available at http://www.oregonlive.com/opinion/index.ssf/2018/03/peter_defazio_modernizing_our.html#article.

[6] Columbia River Treaty.

[7] Id.

[8] U.S. Dept. of State, Press Release: On the Opening of Negotiations to Modernize the Columbia River Treaty Regime (May 30, 2018) available at https://www.state.gov/r/pa/prs/ps/2018/05/282867.htm.

Schroeder Law Offices is happy to announce that intern, Valley Urricelqui is joining us this summer in the Reno Office. Valley was born and raised in the Northeastern part of California where her family runs a hay and cattle ranch.

Valley is a strong advocate in the Cattle Industry as she is the Public Relations Officer for the Chico State Young Cattleman’s Association. In April this year, Valley received the title of California State Beef Ambassador representing the North State. In this position she represents the State of California as a voice for the Beef Industry and is helping to spread the good word about the agriculture industry as a whole in efforts to gain more support from the public. Her goal is to present in elementary classrooms to educate our youth about where their food comes from, the hard work and processes necessary for raising livestock and food supplies, and the nutritional health benefits of our food.  Making the “farm-to-fork” connection is an important mission for Valley.

Valley is currently attending Chico State University where she plans to graduate with a degree in Agriculture Science and Education come Spring 2019. After graduation from Chico State, Valley plans to attend law school in hopes of becoming a water or land rights attorney. Being born and raised in the agriculture industry she has grown a strong passion for protecting individual property interests and natural resources. As Valley states, “I have watched my family, as well as other good ranching and farming families, deal with land and water right issues for years.”

Valley’s passion is providing support in the protection of farmers and ranchers, to ensure generations to come continue to add to the food security of our nation.   Regardless of the path Valley will choose, she wants to continue being an advocate for the industry and wants to increase awareness of agriculture especially with our younger generations.

On January 18, 2018, just eight days into the Washington State 2018 legislative session, the Legislature passed Senate Bill 6091, dubbed the “Hirst fix.” Hirst, refers to a 2016 Washington State Supreme Court decision in Whatcom County vs. Hirst, Futurewise, et al.

Washington State Counties can only issue building permits or approve subdivision development if the County can make a finding that an adequate water supply exists for the development. The Hirst Decision found that Whatcom County was incorrectly relying on Department of Ecology determinations to find evidence of an adequate water supply. This Decision caused many Counties to stop issuing building permits or place the burden for proving water was available fully on the applicant. This stalled development in Washington.

The Senate Bill 6091 amended, RCW 19.27.097, RCW 58.17.110, RCW 90.03.247, and RCW 90.03.290, added a new section to chapter 36.70A RCW and chapter 36.70 RCW, and added a new chapter to Title 90 RCW. These changes and additions provide a framework for Counties to issue building permits and approve development for projects that rely on water supplied by permit exempt groundwater uses without completion of a well by well analysis. However, depending on the watershed at issue, use of a permit-exempt groundwater well comes with limitations.

For Schroeder Law’s complete explanation of the Bill, check out the article on our webpage, here.

As always, stay tuned to Schroeder Law Offices’ blog for more updates on water related legislation!

Every year there are significant cases that affect water resources law, as well as administrative and legislative actions that impact the use of the water resource. We endeavor to stay apprised of such changes and the impacts such changes will have on our clients and the industries in which our clients work. As a part of such work, Schroeder Law Offices’ Portland attorneys wrote the 2017 Oregon Year in Review for the Water Resources chapter of the American Bar Association’s Environment, Energy, and Resources Law: The Year in Review 2017 publication.

The American Bar Association works with local attorneys in every state to determine the notable changes or occurrences affecting water resources in their state, from a legal perspective, and then publishes those updates in their annual Energy, Environment, and Resources Law Year in Review publication. The Year in Review 2017, Water Resources chapter is available here: https://www.americanbar.org/content/dam/aba/publications/yir/2017/YIR17_24_wr.authcheckdam.pdf.

The entire publication is available here: https://www.americanbar.org/content/dam/aba/publications/yir/2017/YIR17_final.authcheckdam.pdf

Water use conditions in the Klamath Basin continue to worsen in 2018. On March 8, 2018, a water “call” was made in the Klamath Basin, and the Oregon Water Resources Department (“OWRD”) began the validation process for shutting off junior water users. Within the week, on March 13^th, Governor Kate Brown declared a drought in Klamath County, Oregon, the first drought declaration since 2015, coming much sooner than hoped or predicted.

In April, OWRD began regulating off water users in the Klamath Basin. On April 13, the Oregon Water Resources Commission approved temporary emergency rules granting a preference to water rights for human consumption and stock watering in Klamath County. The rules allow certain water users with water rights for human consumption and stock watering to continue using surface water for such uses despite OWRD’s regulation off of water use rights. Exempt uses of groundwater, including domestic and stock uses, may also continue despite OWRD’s regulation. The Commission passed similar temporary rules granting the same preferences during the last drought period.

Also in April, Klamath Project water users found themselves unable to begin irrigating due to a federal court injunction. The Hoopa Valley and Yurok Tribes in northern California previously brought suit against the Bureau of Reclamation and National Marine Fisheries Service in federal court, alleging mismanagement of the Klamath River below the four major dams lead to an outbreak of C. shasta, a parasite that infects juvenile Coho salmon. The court entered an injunction requiring 50,000 acre feet of water stored in Upper Klamath Lake to flush and dilute the parasite until most of the salmon have migrated to the ocean, usually occurring after the beginning of June. Irrigators and irrigation districts petitioned the court to lift the injunction, but the court declined to do so in 2018. For more information, see May 1 article from the Capital Press, Judge upholds Klamath River Injunction.

In May, the Klamath Irrigation District brought suit against OWRD, seeking to compel the agency to take exclusive charge of Upper Klamath Lake to distribute water according to the district’s water use rights determined by the agency in the Klamath Basin Adjudication. The district alleges that it disagrees with the Bureau of Reclamation and PacifiCorps as to the proper distribution of water, and those entities are releasing without valid water use rights, causing injury to the district and its patrons. 

Also in May, the Klamath Tribes filed suit in federal court in northern California against the Bureau of Reclamation, US Fish & Wildlife Service, and National Marine Fisheries Service, alleging violations of the Endangered Species Act and National Environmental Protection Act by failing to maintain appropriate elevations in Upper Klamath Lake. The Tribes seek declaration of the alleged violations, an injunction against further jeopardy and habitat modification, and for the agencies to reinitiate consultation resulting in a new biological opinion.

Finally, on April 27, 2018, the Klamath County Circuit Court issued a Case Management Order in the Klamath Adjudication, outlining a schedule for hearing the first substantive exceptions filed with the court since the judicial phase of the adjudication began in 2013. First the court will decide exceptions made against federally reserved water claims, excluding Tribal claims. Next, the court will decide exceptions against Walton and Klamath Termination Act claims. Third, the court will decide exceptions to Tribal claims. Numerous exceptions have been filed with the court, alleging OWRD awarded too much water to these claims, ignoring the pertinent legal standards for deciding these claims, to the detriment of other Klamath Basin water users. A decision on the first group of exceptions is not anticipated until 2019.

The Upper Klamath Basin Comprehensive Agreement was terminated on December 28, 2017. The agreement called for retirement of irrigation rights to increase stream flows into Upper Klamath Lake by 30,000 acre feet per year. This “retirement” (or cancellation) of water use rights, which was negotiated largely in the absence of upper basin irrigators, was viewed unfavorably by many of the affected irrigators, and was ultimately not funded by Congress. Discussions about alternative agreements continue to this date.

Overall, the return of drought conditions, coupled with fish disease and five years of merely procedural rulings in the Klamath Basin Adjudication, have left water users in the Klamath Basin in serious trouble.

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

On Wednesday, May 16, attorney Lindsay Thane and paralegal Rachelq Harman attended the Oregon Association of Water Utilities’  (OAWU’s) 3^rd Annual Mini Expo in Rickreall, Oregon. At the Expo, they had the opportunity to meet with representatives from water districts and municipalities from across the state of Oregon. Lindsay taught an hour-long class on public meeting laws and regulations. The presentation highlighted some of the aspects of community involvement that aren’t always at the forefront of our minds. Lindsay and Rachelq also manned the Schroeder Law Offices booth, where they were able to talk one-on-one with attendees and provide some very useful water conversion magnets to boot.

While the Mini Expo is now past, OAWU puts on events year-round. You can find their events calendar here. Schroeder Law is keeping busy too! Classes and seminars are scheduled throughout the summer. You can check out the complete list here.

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

On April 21, 2018, Schroeder Law Offices showed its support for a local Student Stewards Summer Camp by participating in the 2nd Annual Healthy Parks Healthy People 5K Fun Run/Walk.

The proceeds from the Fun Run/Walk are being used to allow students to attend the 2018 Student Stewards Summer Camp where kids will learn about, and participate in, programs relating to the environment such as “Fish out of Water,” “Mighty Pollinators,” and “Rolling Stones.”

Schroeder Law Offices is an avid supporter of the wise use of our natural resources and activities that connect human and environmental health. As we enter Spring and the weather is warming up it is the perfect excuse to get outside and get active. Stay tuned for Schroeder Law Office’s next race!

For over half a century, the question of how to conserve and replenish water in Idaho’s largest aquifer, the Eastern Snake Plain Aquifer (ESPA), has been on the collective minds of the state’s water users. Serious droughts in the 1990s increased pressure on the ESPA resource, and preliminary recharge efforts were unsuccessful. Finally, in 2009, the ESPA Comprehensive Aquifer Management Plan, otherwise known as CAMP, was signed into law. CAMP’s goal is to annually recharge 100,000 acre feet (af) during the first ten years of the plan’s implementation, followed by 250,000 af per year thereafter.

The recharge comes from a combination of sources. The Idaho Department of Water Resources (IDWR) also supports canal companies and irrigation districts recharge projects, rotations and efficiency reductions.

The 100,000 af goal was not quite reached in the first few years. Recharge was roughly 75,000 af in both the 2014-2015 and 2015-2016 seasons. However, the 2016-2017 saw 317,000 af returned to the ESPA, far exceeding the 100,000 af goal. The 2017-2018 season is shaping up to be even better. Over 350,000 af have already been replenished.

ESPA’s recharge success is good news for the residents of southern and eastern Idaho, and Idaho in general, as roughly 25% of Idaho’s economy is dependent upon agricultural output from the region. Unfortunately, CAMP’s success in the ESPA has not been matched by similar programs throughout the state and region. The Rathdrum Prairie Aquifer (RPA) in the northern part of the state, which is responsible for roughly 8% of Idaho’s production of goods and services, has a CAMP program in place. However, the RPA has not been nearly as successful as the ESPA at achieving substantial recharge. Another CAMP program has been proposed for the Treasure Valley, but has been delayed due to ongoing discussion between legislators and constituents.

In Washington, the Odessa Groundwater Replacement Program (OGWRP) was implemented to reintroduce water back into the Odessa Aquifer. Several initiatives under the umbrella of this program have been enacted, and have had reasonable success. However, efforts have focused more on limiting usage of the aquifer rather than reintroducing water back into it. Oregon has also taken steps to encourage recharging of its aquifers. However, as illustrated by the attempts in the Umatilla Basin, these programs have struggled to achieve significant recharge.

CAMP’s success did not come overnight. As with any major experimental project, it took decades of planning, communication, and compromise to achieve the ESPA’s level of recharge. Nonetheless, the potential for aquifer recharge demonstrated is inspiring, and will hopefully pave the way for similar projects throughout the West.

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

Written by Alyssa Holland, Lisa Mae Gage, and Lisa Kane

Water Week 2018 is currently underway as water organizations across the country gather in Washington, D.C. to advocate the importance of water protection and conservation with hopes of ultimately elevating water to a national priority. Organizations in the water sector are using Water Week to ramp up their efforts to educate policymakers about the need for funding to benefit water infrastructure. Many organizations are collaborating for Water Week, including National Association of Clean Water Agencies (“NACWA”), Water Environment Federation (“WEF”), American Water Works Association (“AWWA”), and the National Water Resources Association (“NWRA”), for example.

A few main events will take place during Water Week:

• On April 17-18, 2018 the National Policy Fly-In:
  An event to provide the public with the opportunity to voice concerns and challenges to their policy makers.
• April 17-19, 2018: Water and Wastewater Equipment Manufacturers Association (“WWEMA”) 45th Washington Forum:
  “Effectively Communicating Change at the National, State, and Local Level,” a discussion regarding changes happening in Washington, D.C. and to the nationwide water infrastructure, environmental and public health protection, and legislative and regulatory changes that will impact the water sector.
• On April 19, 2018 the WateReuse Association Water Week 2018 Congressional Briefing:
  Four (4) different communities across the country will be highlighted for their use of water recycling and the local economic benefits that encourage other communities to do the same.

While each organization has a slightly different mission, each has a goal of advancing education regarding water issues and returning to their communities with the priority of educating the general public on the same issues. One of the main events, the Congressional Briefing, will directly discuss tools used in arid states (such as one of our main states of practice, Nevada) to address water scarcity and a way for communities to better manage their local water resources to help spur economic growth and plan for the future.

Schroeder Law Offices Nevada attorney Therese Ure also attends and hosts local conferences in Nevada to continue education regarding how to support the community’s resource challenges and even more particularly, how to support Northern Nevada’s agriculture industry. Click here to see our coming events for local education on the topic. Although attending these events may not be a possibility for everyone, we should all use Water Week as a time to reflect on how valuable water is to our everyday lives and to look for ways to conserve and protect water within our own communities.

The Ninth Circuit Court of Appeals affirmed a U.S. District Court opinion requiring the Army Corps of Engineers to increase spill at dams on the Federal Columbia River Power System (“FCRPS”) to the maximum spill levels that still meet total dissolved gas criteria allowed under state law. The increased spills required by the District Court’s order and affirmed by the Court of Appeals began on April 3, 2018. The Court of Appeals’ decision is available here.

The Court of Appeals’ decision in National Wildlife Federation v. National Marine Fisheries Service is the most recent decision in this case, which has been ongoing since 2000. The decision stems from a challenge to the National Marine Fisheries Service’s (“NMFS”) 2014 Biological Opinion (“BiOp”) that concluded operation of the FCRPS dams would jeopardize salmon and steelhead species (“listed species”) listed under the Endangered Species Act (“ESA”). Because NMFS’s BiOP concluded operation of the FCRPS dams would jeopardize the listed species, pursuant to NFMS responsibilities under the ESA, NFMS proposed an alternative action that included, among other measures, some spill over the FCRPS dams as a means to avoid jeopardizing the listed species.

However, in 2016 the District Court found NMFS’ violated the Endangered Species Act when NMFS concluded the alternative in the 2014 BiOp did not jeopardize the listed species. The District Court gave NMFS until March 1, 2018 to issue a new BiOp. (This deadline was later extended to December 31, 2018.) However, in January 2017, the plaintiffs moved for injunctive relief, requesting the District Court order additional spill at the maximum level from April through June at dams along the FCRPS. In April 2017, the District Court granted plaintiffs’ injunctions and ordered increased spills to take effect April 3, 2018. The District Court’s decision was appealed to the Ninth Circuit Court of Appeals.

The Court of Appeals issued its decision upholding the District Court’s order requiring increased spills on April 2, 2018, the day before the increased spills were to begin. The Court of Appeals found the District Court did not err under the ESA in finding the plaintiffs had shown the listed species would suffer irreparable harm sufficient to order the increased spill. Nor did the Court of Appeals find it error that the District Court analyzed the harm that would be caused to the listed species in operation of the FCRPS dams as a whole, rather than focusing only on the spill related components of the BiOp alternative NMFS selected.

As irrigation season begins in the areas of the Columbia and Snake Rivers that rely on the water flowing through the FCRPS, and as the increased spills begin to take effect, some congressional leaders in the affected states are attempting a congressional solution to negate the effects of the court decisions. House Bill 3144, introduced by Representative Cathy McMorris Rodgers (R-WA) in June 2017, reported out of the House Committee on Natural Resources on April 11, 2018. It remains to be seen if and when H.R. 3144 may be scheduled to be heard on the floor of the House of Representatives; however, the Court of Appeals’ decision has, and any outcomes from H.R. 3144 will have, immediate impacts on water rates and utility rates for irrigators and residents throughout the Pacific Northwest. H.R. 3144 is available here.

(Photo: Lake Koocanusa, Libby, MT)

On February 1, 2018, the Ninth Circuit Court of Appeals upheld the “groundwater conduit theory,” whereby a discharge of pollutants into groundwater that is fairly traceable to a navigable surface water is the functional equivalent of a discharge directly into the navigable water body for the purpose of regulation under the Clean Water Act. This argument has been proffered many times in the past, but prior to this case this theory had, at best, narrow and limited success. The full Ninth Circuit case is available here.

The case involved the County of Maui, Hawaii and its wastewater treatment plant. The plant uses four wells as its primary means of disposing effluent into groundwater and the Pacific Ocean. The County injects three to five million gallons of treated wastewater per day into its wells, and, according to the County’s expert, when the County injects 2.8 million gallons of effluent per day, the amount of effluent that reaches the ocean is 3,456 gallons per meter of coastline per day. The Court stated this is “roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline.”

Discharges of pollutants may be authorized by permit under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). Jurisdiction under the Clean Water Act requires three things: 1) addition of a pollutant 2) to a navigable water 3) from a point source. This case focuses on the third requirement. Clean Water Act cases hold that a point source is a discernible, confined, and discrete conveyance, which in a lot of cases really means a pipe, ditch, or canal.

Wells do not directly connect to navigable water (in this case, the Pacific Ocean). Instead, the water injected into wells must travel through groundwater to reach the ocean. In 2013, the EPA, Army Corps of Engineers, Hawaii Department of Health, and University of Hawaii conducted what is called a “tracer dye study.” Essentially, they put dye into the wells and then monitored the ocean for the dye. At its conclusion, the study found a hydraulic connection between two of the wells and the ocean.

The Ninth Circuit concluded that point source discharges that travel indirectly through groundwater to a navigable water, is a violation of the Clean Water Act if the discharger does not have a permit. The Court reasoned that “this case is about preventing the County from doing indirectly what it cannot do directly.” Since the County could not build a waste pipe that emptied directly into the ocean without a permit, it could do so indirectly through its wells to avoid the requirements of the Clean Water Act. 

There are currently cases before the Fourth and Sixth Circuits which also implicate the groundwater conduit theory. If the holding by the Ninth Circuit is adopted by other Circuits, it will represent a change for the NPDES permitting program and regulation under the Clean Water Act. On the other hand, if a split develops in the Circuits, it may lead to litigation in the United States Supreme Court.

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

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

On Thursday March 15, 2018, Schroeder Law Offices’ Portland office hosted first year law students for an annual “1L” (first year law student) reception, to learn more about our office and our water law practice. The students met with each attorney, Sarah Liljefelt, Laura Schroeder, and Lindsay Thane to learn about each of their practices at SLO. Next, Schroeder Law held a social gathering that allowed the law students to meet with the entire office.

The 1L reception program allows first year law students to tour multiple law firms, learn more about what each firm does, and begin to think about their career goals after law school. It also provides a “foot in the door” with potential employers for summer law clerk positions and eventual associate positions.

If you or someone you know is looking for a summer law clerk position and is currently a 2L or 3L student, Schroeder Law Offices’ Portland office is currently hiring. Click here to learn more.

Apparently there are several theories of how and why we started changing our clocks for daylight saving. Many people think it originated to allow children to help their families with farm work before having to go to school for the day. Another popular theory is that it was suggested by Benjamin Franklin in 1784 when he wrote a letter to the Journal of Paris advocating that if people woke up with the sun it would result in saving energy and resources in the need for candles.

According to National Geographic and David Prerau, author of Seize the Daylight: The Curious and Contentious Story of Daylight Saving Time, the idea of the modern concept of daylight saving was actually derived from George Hudson, an entomologist from New Zealand. In 1895 Mr. Hudson proposed a 2 hour time shift with the intention of having more sunlight after his day job to go bug hunting in the summer months.

The British Broadcasting Corporation attributes the modern day concept of daylight saving to British builder William Willett. Mr. Willett was horseback riding on a summer morning in 1905 and noticed how many curtains were drawn against the sunlight. His solution was to move the clocks forward before summer began. In 1907, Mr. Willett published a pamphlet called “Waste of Daylight” suggesting clocks be turned forward by 4 weekly twenty minute increments in April and reversing the same way in September. British politicians in favor of Willett’s suggestion proposed a Daylight Saving Bill, however it was defeated in 1909.

Author Prerau explains that the idea actually caught on during World War I when the German government started looking for ways to conserve energy. Because coal power was so predominant at that time, daylight saving really did result in saving energy. Germany adopted the system and soon after the United States, as well as nearly every other country fighting in the war began using the time change.

Although Benjamin Franklin may have identified the need for and the benefits of adjusting clocks, it appears we can thank George Hudson and William Willett for our modern day concept of daylight saving.

World Water Day is an event hosted annually by the United Nations on March 22nd. Each year the event has a theme, and 2018’s theme is “Nature for Water.” Events surrounding World Water Day will focus on nature and how we can use our natural resources to overcome the water challenges of the 21st century. There are water-related crises occurring around the world caused by both environmental damage and climate change. World Water Day 2018 will explore how nature-based solutions have the potential to solve many of the challenges we currently face as a global society. Click here for a list of events occurring for World Water Day across the globe.

The headline facts for World Water Day this year focus not only on water demand, but water availability and water quality. Here are a few of their headline facts on water demand, availability, and quality:

• Demand: 2.1 billion people lack access to safely managed drinking water services
• Availability: Today, around 1.9 billion people live in potentially severely water-scarce areas. By 2050 this could increase to around 3 billion people.
• Quality: Globally, over 80% of the wastewater generated by society flows back into the environment without being treated or reused.

In the United States, most regions have water districts and agencies that oversee water use as well as its reuse, helping to replenish local resources while monitoring for drought or scarcity issues. While this may be true for our country, United Nation’s Water (“UN Water”) works to bring awareness to those places in which regulations are not as well-monitored or addressed, and also brings awareness to improvements that can be made in developed regions. While World Water Day 2018 will bring focus to these issues, more research is required for solutions that impact all corners of the globe. On March 22nd, expect the World Water Development Report to be released highlighting the performance, impact, and scalability relevant to the nature-based solutions thus far.

The UN Water online database contains resources regarding sustainable development goals for clean water and sanitation for further information.

Groundwater is one of the world’s most essential natural resources! According to the United States Geological Survey department (“USGS”) groundwater makes up approximately 1/3 of the public drinking water supply delivered though our county and municipal systems. For rural populations not connected to county or city delivery systems, groundwater makes up about 90% of their drinking water. USGS also reports that groundwater provides over 50 billion gallons per day for agricultural use in the United States. Groundwater pumping has been steadily increasing. In some basins groundwater is being extracted at a faster rate than the basin can recharge. As we are seeing in many states, this excessive pumping can lead to wells drying up, water level decline in hydraulically connected streams and lakes, reduction in water quality, increased costs associated with pumping, and subsidence issues crossed by the loss of water supporting our ground and soils.

The National Groundwater Association (“NGWA”) encourages everyone to participate in National Groundwater Awareness Week. According to NGWA, this year’s theme is “Test. Tend. Treat” to encourage a more holistic approach to groundwater conservation. NGWA is encouraging others to share their stories during this week on social media using the hashtag #GWAW2018. If you are looking for other ways to get involved and promote ground water awareness, the USGS and other water organization have provided some ideas (http://groundwaterawarenessweek.com/). During 2018 National Groundwater Awareness Week, let’s evaluate our own water use and identify ways we can help protect this valuable resource!

Hydropower relicensing and compliance has become a process of constant adaptation and engagement, both with regulatory agencies and with stakeholders. Both adaptation in the licensing and relicensing process and engagement early and frequently helps hydropower facilities better anticipate and adapt to a regulatory process that undergoes many changes in the life of a hydropower license and even in the multiple years (or decades) it can take for relicensing.

Common themes at the Northwest Hydroelectric Association Conference last week in Portland included the importance of engagement with the Federal Energy Regulatory Commission (FERC) when undertaking relicensing, even in pre-filing phases, to determine the scope of a facility’s study plan. This focus on engagement with FERC is largely driven by the Integrated Licensing Process that requires more pre-filing consultation and involvement with FERC and other resource agencies and stakeholders, such as Indian Tribes, rather than the Traditional Licensing Approach in which review and consultation are a sequential process.

Not only is engagement critical, and now required by FERC, but it helps hydropower projects better adapt to changing natural resource protection requirements during the relicensing process. National Environmental Policy Act (NEPA) compliance continues to require extensive analysis in the pre-filing process to conduct scoping with FERC and the resource agencies. Throughout the regulatory workshop, participants emphasized that hydropower facilities’ staff can effectively manage issues, such as invasive species, and will have a better grasp of their license conditions to ensure compliance with and adaptability to license conditions once a license is issued if there is engagement.

Schroeder Law Offices’ attorney Therese Ure is in attendance at the 2018 Family Farm Alliance Conference in Reno, NV and was present for the Reclamation Roundtable wherein Commissioner Brenda Bunman addressed the Family Farm Alliance (“FFA”) membership goals regarding conveying Reclamations under the current administration. Key points of the FFA goals include: 1) creating infrastructure to provide water security and reliable energy; 2) reinvesting to modernize existing infrastructure, and considering creative ways to pay for theses project (welcoming ideas and comments); 3) streamlining projects from the way they are managed to streamlining of the NEPA process; 4) collaborating to create new ideas, listening, sharing, and being transparent; and 5) creating a culture at Reclamation of safety, respect and civility.

Other key points in the Reclamation Roundtable with all the regional directors included a water forecast for 2018, discussion of what current storage will secure or not secure, and how to deal with long term planning by:

• a) creating additional storage through raising dams;
• b) investigating new storage locations (new dams); and
• c) aquifer storage and recovery projects (underground storage) undergoing feasibility studies, working on creative ways to deal with ESA issue, and collaborating with stakeholders.

Do you need funding for a water related study or water use project? The Oregon Water Resources Department’s Development Program is part of Oregon’s 2017 Integrated Water Resources Strategy. The program helps individuals and communities address instream and out-of-stream water needs now and into the future by providing funding opportunities for planning and investing in water use projects. The program is now accepting applications for two funding opportunities: Water Project Grants and Loans and Feasibility Study Grants.

Water Project Grants and Loans are available for instream and out of stream water supply projects that result in economic, environmental, and social/cultural benefits. Loan application materials can be found here, and are due by 5PM on April 25, 2018.

Feasibility Study Grants provide funding to help evaluate the feasibility of a proposed conservation, reuse, or storage project. A grant can provide up to 50% of the total costs of the study, but no more than $500,000 per project. Application materials can be found here, and are due by 5PM on October 17, 2018. 

For more information regarding these funding opportunities please visit the Water Resources Department page.

In 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) issued a joint administrative rule, the “WOTUS Rule,” attempting to define the statutory term “waters of the United States” within the Clean Water Act (“CWA”) in order to more clearly define the agencies’ jurisdiction. Schroeder Law Offices summarized the background and scope of the WOTUS Rule in a 2015 blog. The WOTUS Rule was stayed in 2015. Three year later, and after a ruling from the Supreme Court of the United States, litigation over the WOTUS Rule continues. 

On January 22, 2018, the United States Supreme Court issued its unanimous opinion, written by Justice Sotomayor, which settled the jurisdictional question of where challenges to the WOTUS Rule must be filed. The Court held that challenges to the WOTUS Rule must occur in federal district court rather than courts of appeals. The case was remanded to the Sixth Circuit and dismissed for lack of jurisdiction.

This decision by the Supreme Court will likely prolong litigation on the merits of the WOTUS Rule because a decision by a district court for either party is likely to be appealed. Environmentalists have applauded the proposed changes in the rule, while coalitions like the American Farm Bureau Federation and American Petroleum Institute have said the rule will stifle economic growth and add burdensome regulation on farmers and business owners because of expansion of CWA jurisdiction.

On July 27, 2017 the EPA and Corps published a notice of a new proposed rulemaking in the Federal Register. The agencies proposed to replace the stayed 2015 WOTUS Rule with their pre-2015 regulatory procedure. The agencies solicited public comment on the proposed procedure, although, making clear they did not seek public comment on the substance of the pre-2015 rule.

On February 6, 2018, the agencies published the final rule in the Federal Register. The final rule suspends the applicability of the 2015 WOTUS Rule until February 6, 2020. The agencies assert that the suspension of the rule gives agencies the time needed to reconsider the regulatory definition of “waters of the United States.” As reported by Capital Press, the same day the agencies published their final rule a lawsuit was filed by the Attorneys General of New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia in the Southern District of New York. Another lawsuit was filed by numerous environmental groups in Charleston, South Carolina District Court. Both lawsuits challenge the two-year delay in applicability of the WOTUS Rule.

The attorneys general and environmental groups both take the same positions on two issues in their complaints. First, the parties allege the agencies failed to provide meaningful opportunity for public comment in violation of the Administrative Procedure Act (“APA”) because the agencies solicited comments solely on the procedure of the rule, proscribing comment on the substance of the pre-2015 rule. Second, the parties allege the agencies failed to consider all the relevant issues and offer a rational explanation for the suspension of applicability rule, another alleged violation of the APA.

The attorneys general and environmental groups differ in their last claim, however. The attorneys general claim that the CWA does not give the agencies authority to suspend the WOTUS Rule after its effective date passed. The environmental groups claim the agencies violated the APA by failing to publish the pre-2015 rule in the Code of Federal Regulations.

Stay tuned as Schroeder Law Offices brings you updates!

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.