Last month, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the repeal of the 2015 Waters of the United States (WOTUS) rule. The controversial 2015 rule incorporated changes to 1986 and 1988 regulations and incorporated the “significant nexus” standard articulated by Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S.  715 (2006).  The 2015 change occurred through the addition of the defined term “neighboring” which broadened the interpretation of “adjacent” waters (https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states at 37105).

The 2015 rule was the subject of numerous lawsuits and had been found illegal by five federal courts including: (1) the District Court for the District of North Dakota; (2) the District Court for the Southern District of Georgia; (3) the District Court for the Southern District of Texas; (4) the District Court for the District of Oregon; and (5) the District Court for the District of Ohio. With the repeal of the 2015 rule, EPA and the Army Corps of Engineers will reinstate the 1986 and 1988 regulations in the interim while a new rule is promulgated. These regulations are encompassed in: 33 C.F.R. 328; 40 C.F.R. 110; 40 C.F.R. 112; 40 C.F.R. 116; 40 C.F.R. 117; 40 C.F.R. 122, 40 C.F.R. 230; 40 C.F.R. 232; 40 C.F.R. 300; 40 C.F.R. 302; and 40 C.F.R. 400. 

The EPA and Army Corps of Engineers cited four primarily reasons for repealing the 2015 rule:

1. The rule did not implement the legal limits on the scope of agency authority under the Clean Water Act as intended by Congress and reflected by Supreme Court Cases, including Rapanos;
2. The rule failed to adequately consider and accord due weight to Congressional policy in the Clean Water Act § 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . .of land and water resources.” 33 U.S.C. 125(b);
3. The rule led agencies to interpret the rule in a way that pushed the limits of agency constitutional and statutory authority absent a clear statement from Congress, authorizing the encroachment of federal jurisdiction over traditional State land use planning authority; and
4. The distance-based limitations in the rule suffered procedural errors and lacked adequate support in the record.

With the repeal of the 2015 rule came the filing of lawsuits attacking the constitutionality of the 1986 and 1988 regulations. On the same day as the repeal was announced, the Pacific Legal Foundation filed a Complaint on behalf of the New Mexico Cattle Growers’ Association challenging the reversal and the allegedly even broader interpretation of WOTUS employed under the 1986 and 1988 rules (https://pacificlegal.org/press-release/epa-sued-for-relying-on-illegal-rules-following-wotus-repeal/). The Complaint can be found at: https://pacificlegal.org/wp-content/uploads/2019/10/nm_cattle_growers_v_epa_complaint.pdf.

In contrast, a group of eleven environmental organizations filed a law suit in the Federal District Court for the District of South Carolina challenging the 2015 rule’s repeal based on allegations that it “strips away crucial clean water protections from rivers, lakes, streams, and other waters that feed drinking-water sources for 200 Million Americans” (https://defenders.org/newsroom/conservation-groups-challenge-repeal-of-clean-water-act-protections-federal-court).  In light of these seemingly opposite claims, EPA and the Army Corps of Engineers will certainly suffer attacks from all sides as they attempt to establish a clear and implementable regulatory definition of WOTUS that better effectuates the language, structure, and purpose of the Clean Water Act.  

The repeal of the 2015 rule was published in the Federal Register on October 22, 2019 and can be found at: https://www.govinfo.gov/content/pkg/FR-2019-10-22/pdf/2019-20550.pdf.

(Photo Credit: https://www.tva.gov/Environment/Managing-the-River)

Starting September 29, 2019, natural gas providers in Oregon will have a new, renewable way of powering their customers’ homes. Governor Kate Brown executed a new law at the end of July, 2019 allowing capture, treatment, and conversion of methane found in wastewater into renewable natural gas (“RNG” or “biogas”), which can then be used to provide power to homes using existing infrastructure.

While converting wastewater to RNG is more expensive than fracking, biogas burns more cleanly than traditionally-obtained natural gas and provides environmental and health benefits by significantly reducing carbon emissions. Additionally, the law requires utility companies to “deliver service as cheaply as possible,” a contingency aimed at preventing a steep increase in price to the consumer.

Lane County, Oregon will begin construction of facilities to produce RNG next year. The biogas will then be sold to public utilities for distribution to their customers as early as 2021. Originally, Lane County planned to use the biogas as an alternative source of fuel for vehicles. Now, the practical potential to use biogas as a renewable resource has expanded.

With the passage of this law, biogas can be used to power homes and businesses. However, RNG has long been used throughout the State of Oregon as a source of renewable energy.

Since 1986, the Columbia Boulevard Wastewater Treatment Plant in Portland, Oregon has used biogas produced and captured at the plant to heat the plant itself, along with a nearby industrial roofing facility. Portland is also developing facilities to convert methane to biogas for use as an alternate source of fuel for diesel engine vehicles. The fuel will be sold to the public and used for City vehicles. Production is expected to begin in early 2020.

Threemile Canyon Farms near Boardman, Oregon started converting cow manure into electricity in 2009, and has expanded its facilities multiple times in the past decade. Currently, the dairy is the largest manure digester in the western United States. In 2017, it announced its plan to begin converting wastewater into RNG. In April, 2019, the Department of Environmental Quality approved Threemile’s application for a modified air quality permit, allowing it to move forward with the project.

The Durham Water Resource Recovery Facility in Washington County, Oregon repurposes wastewater in a variety of ways. The facility has captured phosphorus in wastewater and converted it to fertilizer since 2009. The fertilizer is then sold commercially around the Pacific Northwest. Since 2016, it has also converted wastewater and food grease into electricity that provides 60% of the plant’s power.

In these ways, Oregonians have been meeting Clean Water Act and Clean Air Act requirements through innovations that also provide additional revenue streams. We are excited to continue watching these industries move forward and spread to larger applications.

Stay tuned to Schroeder Law Offices’ blog for updates on these and other projects!

Since 1991, the Stockholm International Water Institute (“SIWI”) has organized and hosted World Water Week. This annual event is designed to bring awareness to water issues and developments around the world. This year, World Water Week takes place at the Tele2 Arena in Johanneshov, Sweden from August 25 through August 30.

Throughout the week, seminars and events will be hosted by individuals and organizations from every corner of the globe. The theme for 2019 is “Water for Society- Including All.” Topics include climate change and sustainability, sanitation and health, equal representation in water-related industries, the impact of modern technology on water consumption and monitoring, and the evolving use of water in farming and industrial practices, among others. These events provide opportunities for discussion of ongoing water issues between industry leaders and students alike.

World Water Week also provides an opportunity to honor achievements in conservation, preservation of resources, and water management. The Stockholm Water Prize and the Stockholm Junior Water Prize are awarded annually to major contributors and innovators in the water world. Anyone who has made “extraordinary water-related achievements” is eligible for nomination, and past winners have hailed from Denver, Colorado to Phnom Penh, Cambodia, and everywhere in between.

Of course, not everyone can make it to Sweden. However, there are still plenty of ways to celebrate World Water Week! SIWI’s website has a wealth of information about global water issues, including blog posts, news articles, and information on areas SIWA considers priorities in terms of water conservation and development. There are also organizations around the United States similarly dedicated to encouraging knowledge of and involvement in water issues on a local level. A list of organizations participating in World Water Week can be found here.

World Water Week provides a great opportunity to promote awareness of water usage and conservation around the world. Still, water issues persist year-round. Stay tuned to Schroeder Law Offices’ blog for water law and water new updates all year long!

Notice regarding final requests for revision of the mapping of Newlands Project Water Rights has been issued by the Nevada Division of Water Resources (“NDWR”). NDWR is overseeing the revision process of identifying and mapping water rights in the Newlands Project, and will be assisting water rights owners with identification and revision as is required. Though more information regarding the project schedule can be found on NDWR’s online database, the following workshop dates will be available to Newlands Project water right owners at the below-listed locations:

Fernley City Hall
Room 136
595 Silver Lace Blvd.
Fernley, NV 89408

• Monday, August 26, 1:00pm to 7:00pm
• Tuesday, August 27, 1:00pm to 7:00pm
• Wednesday, August 28, 9:00am to 3:00pm
• Thursday, August 29, 9:00am to 3:00pm

Churchill County Commissioners
Community Room
155 N. Taylor Street, Suite 110
Fallon, NV 89406

• Monday, September 9, 1:00pm to 7:00pm
• Tuesday, September 10, 1:00pm to 7:00pm
• Wednesday, September 11, 9:00am to 3:00pm
• Thursday, September 12, 9:00am to 3:00pm

The final map viewing and revision process started on July 1, 2019, with all Requests for Revision and supporting documentation due to NDWR no later than September 30, 2019. Upon review of water rights, owners can provide updates to NDWR via NDWR’s Request for Revision form.

Newlands Project water right owners are encouraged to review their water rights of use and submit the Request for Revision form if they believe that their water rights are inaccurately represented by the mapping project. Once all revision requests have been received and reviewed, the State Engineer will make final determinations. Currently, the completion date for the final report is set for September of 2020.

Upon request, Schroeder Law Offices can assist Project water users in the process or otherwise advise on the legal consequences of improperly mapped water rights.

On July 24, 2019, Tim Wilson, Nevada Division of Water Resources’ acting State Engineer gave an informative presentation on the 2019 Legislative Session. Mr. Wilson provided summaries of several water related bills that were introduced and/or passed during this session. A few of the more interesting bills are described below.

Assembly Bill 62 (AB 62)

AB 62 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of Nevada Division of Water Resources (“NDWR”) on November 19, 2018. This bill proposed legislative changes concerning the granting of Applications for Extensions of Time for Proofs of Completion only. It does not address Extensions of Time for Proofs of Beneficial Use. Currently a permittee is allowed any number of extensions of time to file a Proof of Completion of Work. According to Mr. Wilson, the threshold for granting an extension of time for a proof of completion is unreasonably low as the permittee need only show good faith and reasonable diligence to perfect their water right application. NRS 533.380 defines “reasonable diligence” as the “steady application of effort to perfect the application in a reasonably expedient and efficient manner under all the facts and circumstances.” Water cannot be placed to beneficial use unless and until the construction works are complete. Mr. Wilson noted that the granting of unlimited extensions of time is undermining the basic principal of beneficial use.

AB 62 sought to develop hard time limits on the filings of the Proofs of Completion of Work depending on the size of the project and the amount of money expended on the project. For example, a permit for municipal use would require a Proof of Completion to be filed within 15 years and at least $50,000 must be expended on the project. A permit for an irrigation or stockwater use would have a 5 year cap with a much smaller minimum expenditure. To accommodate permittees who are unable to complete construction of works for reason outside of their control, AB 62 proposed a “tolling” provision to suspend the time limit for express conditions such as the permittee is waiting on federal, state or local government consent necessary for the project or a pending court action or adjudication.

Many amendments were made to AB 62 and the bill was eventually passed by both the Assembly and the Senate. The Governor removed the majority of the language proposed, updated the statute to direct the State Engineer to adopt any regulation necessary to carry out provisions of the statute concerning Proofs of Completion and ordered that copies of the regulations be provided to any person upon request, signed the Bill, and directed NDWR to draft regulations. AB 62 as-enacted can be found at (https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/5987/Text). Workshops and public meetings will be held and NDWR plans to make the draft regulation language and updates available on their website at http://water.nv.gov/index.aspx.

Assembly Bill 95 (AB 95)

AB 95 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of the Legislative Committee on Public Lands on January 24, 2019. This bill proposed legislative changes for domestic well allowance during times of curtailment. Nevada statutes at NRS 534.110 require the State Engineer to conduct investigations of basins, or portions of basins; and, where it appears there is not enough groundwater supply to satisfy permittees and vested rights holders’ withdrawals, the State Engineer may order withdrawals (including withdrawals from domestic wells) to be restricted based on priority.

AB 95 amends the statutes so that in the event the State Engineer finds, or a court orders, State Engineer restriction, State Engineer curtailment, or basin designation under a Critical Management Area, the State Engineer can allow a domestic well to withdraw up to 0.5 acre feet annually, if it can be recorded by a water meter. The revised statute does not make domestic wells immune to curtailment but ensures they will still receive some water. AB 95 was passed by both the Assembly and Senate and was signed by the Governor. AB 95 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6082/Text.

Senate Bill 140 (SB 140)

SB 140 was introduced by the Committee on Natural Resources on February 11, 2019 and proposed to reserve 10 percent of water available for appropriation in certain basins not yet fully or over appropriated. Senator Pete Goicoechea testified that the intent of SB 140 is to “avoid over-appropriation of available water in basins by placing a marker for retention.” SB 140 was passed by the Senate and Assembly and signed by the Governor. SB 140 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6171/Text. As enrolled, NRS 533 will now include a provision wherein for each basin where there is uncommitted groundwater pursuant to existing permits, certificates or otherwise, the State Engineer shall reserve 10 percent of the total remaining, non-committed, unappropriated groundwater. As introduced, SB 140 intended for the reserved water to be available for use during times of drought or emergency, however, as enrolled, the statute further explains that the groundwater reserved in the basin is not available for any use.

During the presentation many questions and comments were posed as to how this will be implemented, and all the issues that come into play practically as well as legally. NDWR now must attempt to figure out the amounts of uncommitted water available: pending applications need to be resolved before this determination can be made; NDWR needs to determine how to address consumptive vs. non-consumptive uses; and, NDWR needs to decide how to address areas where basins share perennial yield amounts. One can only anticipate that this Bill will be amended in the future.

It is no secret that Nevada water is a precious resource that needs laws in place to protect its availability to current and future water users. Several bills in the 2019 session related to the protection and conservation of water. Nevada’s precarious water situation has gained the attention of our legislature and it will be interesting to see what water related bills will be introduced next session.

For the past decade, Schroeder Law Offices has provided opportunities to law students interested in learning water and natural resource law. Former SLO law clerks have established successful legal practices across the Pacific Northwest and beyond.

Schroeder Law Offices is pleased to introduce our 2019 summer law clerk, Katie Jourdan. Katie is returning to work with the attorneys and staff after having clerked previously with SLO during the fall of 2018.

Katie is entering her last year of law school at Lewis and Clark Law School, where she will complete her Juris Doctorate in May of 2020. With an emphasis on Natural Resource and Land Use Law, Ms. Jourdan has experience researching and analyzing water rights issues. Previously, Katie worked with the Western Resource Legal Center on land use and agriculture issues. She also interned with the Washington Cattlemen’s Association where she conducted research on recent land use legislation. 

Katie holds a Bachelor of Science in Environmental Studies and Journalism from Gonzaga University, where her enthusiasm for natural resources has paved her way to law school. Her background in agriculture and small farm life further nurtures an empathy for water users and the issues that rural America faces.

This summer, Katie is putting to good use her time spent in the classroom and exercising her proficiency in legal research. She is working with the attorneys and staff at Schroeder on client cases, educational presentations, and litigation preparation. In the fall, Katie will begin her final year at Lewis and Clark.

Schroeder Law Offices is pleased to announce that Attorney/Partner Sarah Liljefelt accepted the position of Water Resources Committee Chair for the Oregon Cattlemen’s Association, beginning in the coming year. Sarah has been a member of the Oregon Cattlemen’s Association for many years, and has been very active with the Oregon CattleWomen as Vice President and Legislative Committee Chair. She is excited to use her Oregon water resources knowledge to support and defend the Oregon Cattlemen’s Association’s water interests in the years to come.

Sarah’s new position was announced earlier this week when she presented at the Oregon Cattlemen’s Association’s Mid-Year Conference in Canyonville, Oregon. Sarah provided an update on the Klamath River Basin Adjudication and conjunctive surface water/groundwater management in the Klamath Basin. Some of the other highlights from the conference included an update of Western Resources Legal Center’s recent victories by Executive Director Caroline Lobdell (Sarah is a former WRLC law clerk), and a trip to Melrose Vineyards (https://www.melrosevineyards.com/) with the Oregon Cattlewomen – beautiful location, friendly staff, and great food and wine!

The year 2019 marks the 50th anniversary of the Willamette Valley Project, a tumultuous time in the history of the project. These dams are operated by the United States Army Corp of Engineers’ (“Corp”) Portland District, which utilizes 13 dams to prevent flooding and provide water storage for various water users and aquatic species in Western Oregon. (https://www.nwp.usace.army.mil/Locations/Willamette-Valley/) Since their construction, flooding like that seen in the Christmas Flood of 1964 has been rare. This April, the Willamette Valley saw substantial flooding as an “atmospheric river” overwhelmed the capacity of the dams, forcing the Corp release water at historic rates to prevent overtopping of the dams. (https://www.statesmanjournal.com/story/news/2019/04/07/oregon-flooding-willamette-river-santiam-river-eugene-salem/3393877002/). As these dams were created specifically to prevent flooding, what went wrong?

The various interests in water stored in these dams leads to considerable controversy over how to operate the Willamette Valley Project dams. Combined, these dams hold 1.6 million acre-feet in the summer months for various uses including municipal, irrigation, and hydropower. The controversy in operations relates to these uses. For example, storing additional water in the dams benefits electricity production and recreational boating uses (requiring high lake levels), but harms aquatic species and irrigators. Releasing the stored water during the summer reduces electricity production and leaves little for migrating salmon in the fall, but provides irrigation for many Willamette Valley farms. The Corp is left to balance these competing interests for the use of “conservation storage” (the water stored for use in the summer months).

Recently, the Corp considered reallocating water between theses interests, which focuses primarily on how to use the water stored in the summer months. We have discussed this potential reallocation here: https://www.water-law.com/study-willamette-valley-project-reallocation/. The allocations of uses between these interests has not been reconsidered since the original construction of the dams. (The Capital Press recently covered the discussion here: https://bit.ly/2IyzCfr). While the reallocation will determine how stored water is used, the dam regulation curves determine when the dams are emptied and space is made for flood mitigation.

Flood control is another “interest” competing for the Corp’s attention and a reservior’s capacity. In the winter, these dams are emptied to allow the space to be used to absorb the brunt of storms. In the spring, the dams are gradually refilled up to their maximum operating capacity during the summer, for use for power and water storage. The image to the right depicts the regulation curve for the Cougar Reservoir, which stores water from the South Fork of the McKenzie River. The Corp developed the operating curve for the Cougar Reservoir in 1964, located in the Cougar Reservoir Regulation Manual. (https://bit.ly/2PtpANm). Each dam has its own manual, determining how and when water is released from the reservoir. While the allocation determines how stored water is used, the “conservation storage” hump determines when, how much, and for how long the dams are filled.

This year’s atmospheric river struck on April 7-8, 2019, just as these dams were being filled for use as summer storage. While not at “max conservation pool” level (occurring around May 1), the dams were approaching their upper limits. Cougar Reservoir, for example, was at around 494 meters (1620 feet) before the storm and according to its operating curve, the reservoir should have been around 500 meters (1640 feet) (seen in the graph to the right, reservoir levels are measured by elevation to sea level, not depth). After April 12, 2019, the South Fork of the Willamette River discharged between 3,000 and 5,000 cubic feet per second (“cfs”) compared to its typical average of about 400-800 cfs at this time. (https://on.doi.gov/2Izcf5n). By April 13, 2019, Cougar Reservoir levels had shot up to nearly 515 meters (1690 feet), the maximum summer flood control level shown in the regulation curve above, several weeks early. By releasing record volumes of water from these dams, and using up any remaining storage capacity still available, the Corp prevented overtopping of the dams at the cost of downstream riparian landowners.

Water releases over this period prevented an overflow, but opens the question of whether more flood control space may be required for spring storms in the future. When the reservoirs are full late in the season, the Corp has little choice but to open the gates, flooding downstream homes, farms, and cities. Calls for changing the Corp’s dam regulation curves may also come alongside the calls to reallocate stored water, adding even more controversy for the Willamette Valley Project near its 50^th birthday.

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

Sheepherding in the West dates back to late1800s, and early 1900s when people migrated to California, Nevada, Oregon and Idaho in search of gold and silver. People soon realized (the Basques in particular) that while prospecting for gold and silver was a lucrative business, wealth realized from prospecting was unsteady and uncertain. A more reliable trade developed in clothing and feeding the gold and silver miners.

According to the University of Nevada, Sheep are resilient in harsh weather conditions and are capable of covering great distances while grazing. Nevada in particular provides an ideal opportunity with vast public lands and low start-up costs for building a herd. In fact, several early sheepherders accepted payment in sheep allowing them to build their own herd while they worked.

The industry, like all others, has overcome rises and falls. Overgrazing, scarcity of water, and conflicts between ranchers and graziers arose. Further, nomadic sheepherding could be a painfully lonesome lifestyle, moving to new grounds each day, and only seeing a camp tender maybe once a week or perhaps only a few times a month in the winter.

While the industry may have changed over the years, sheep herding continues to flourish in the western United States! This photo depicts shipping day in Ridgecrest, California!

For more information on sheepherding, please check out the multimedia exhibit created by University of Nevada at http://knowledgecenter.unr.edu/sheepherders/default.aspx.

As most of us are aware, Earth Day has become a global occurrence for which communities host events throughout the week of the holiday. This year, Earth Day fell on Monday, April 22, and communities around the world hosted festivities such as community clean-ups, tree-plantings, and educational events that focused on climate literacy and bringing awareness to climate science for the purpose of encouraging individuals to participate in the preservation of our communities.

Though celebrated annually, Schroeder Law Offices’ (“SLO”) mission includes providing services to those that feed our communities and we consider environmental preservation on a day-to-day basis. SLO works daily with clients such as municipal water users and districts, corporations, and both individual and family farmers to maximize production and efficiency of water use. As we like to say, we do EVERYTHING water!

For ideas on how you can take action for making every day an Earth Day, visit the Earth Day Network’s website for ideas and to learn about “A Billion Acts of Green,” the campaign to reach 3 billion acts of green for the Earth Day holiday’s 50th anniversary in 2020.

Research indicates that planting additional trees may have huge benefits in generating rainfall, thus, consider spending time outside this spring and plant a tree with the goal of bringing freshwater to your community!

On April 16, 2019, Schroeder Law Office will once again participate in the annual Healthy Parks Healthy People 5K. The event is put together by Truckee Meadows Parks Foundation and Washoe County and aims to raise awareness and appreciation for parks throughout Reno and Sparks.

Schroeder Law Offices supports a healthy lifestyle for its employees and encourages us to “get out and get moving.” The Reno Office of Schroeder Law Offices enjoyed this event last year as it was a time to connect as a team, be outside, breathe the fresh air, and enjoy the spring season!

If you would like to join Schroeder Law Office at the 3rd Annual Healthy Parks Healthy People 5k or learn more about Truckee Meadows Park Foundation, please visit https://www.tmparksfoundation.org/.

By: Therese Ure and Lisa Mae Gage

Other than providing legal services to our clients, a component of our mission at Schroeder Law Offices is to educate water users on water topics including law and resource planning.  

The attorneys at Schroeder are experienced in the world of water and frequently provide educational presentations at both public and private events. Due to the attorneys’ diverse experiences presenting, they are able to tailor their presentations to groups big and small and audiences from any industry.

Water Related Presentations topics include (among others):

• Basic Water Rights
• Advanced Water Rights
• Due Diligence & Compliance
• Research in Adjudications
• Water Quality
• Surface Water & Groundwater
• Conjunctive Management

If you or your organization is in need of water related education, please reach out as we are happy to be a resource for you!

Visit our website for a full list of speaking and presentation topics.

When most of us think about the changing seasons, we think about the change in weather. When we think about the transition to Summer, we think about the days getting warmer. When we think about the transition to Winter, we think about the days getting colder. There is much more to changing seasons than changes in weather.

According to Merriam-Webster, the definition of a season is “a period of the year characterized by or associated with a particular activity or phenomenon.” Examples of this definition include a period associated with activities of agriculture such as growth or harvesting, irrigation seasons, periods when animals engage in certain activities like migration, birth of offspring, and moving from high “summer” country to low “winter” country. In life, one can characterize the seasons with the circle of life with birth or renewal in the spring and death, hibernation and sleep in the winter. There are so many ways we can perceive these natural changes each year.

The National Oceanic and Atmospheric Administration points out that seasonal changes in turn affect soil moisture, evaporation rates, river flows and lake levels. The subsequent changes in vegetation also affect the amount and kinds of crops and food available for humans, animals and other organisms.

The effects of seasonal changes also present potential risks. The Federal Emergency Management Agency (“FEMA”) provides warnings of risks presented in the seasonal change to Spring. FEMA notes that while Spring typically brings warmer weather and longer days, it also brings risk associated with heavy rains, severe weather and rapid snowmelt that can lead to flooding and/or damage to levees and dams. For more information concerning risks and protection from spring flooding, please visit FEMA’s “What You Should Know” at https://www.ready.gov/sites/default/files/Spring_Flood_Fact_Sheet.pdf.

So, as the seasons change and we swap out our wardrobe for the changing temperature, lets remember a change in season is so much more than just a change in weather.

Each year during the month of March, the United Nations (“UN”) hosts a “World Water Day.” Friday, March 22nd marks 2019’s World Water Day focusing on sustainable water development goals for everyone by 2030. Annually, the UN hosts World Water Day to bring attention to the world’s water crisis and address reasons why so many people are left without clean drinking water. A series of international events are scheduled to call attention to the world’s water crisis and offer forums to exchange ideas regarding water availability through sustainable development.

As 2019’s theme is “Leaving no one behind,” the UN has made resources available to the public to explore the theme – what the problem is, how it relates to water, what “safe water” means, and why it’s so important as a human right. The UN’s notes that more than 2.1 billion people live without safe water at home, and as many as approximately 4 billion people (nearly two-thirds of the world’s population) experience severe water scarcity at least one month of the year. In effort to combat the possibility of 700 million people worldwide being displaced by intense water scarcity by the year 2030, this year’s theme focuses on what can be done to include all demographics in conversations about water development and recognizing the right to water for all people.

The “Fact Sheet” on World Water Day 2019 shows us how we can be involved, whether it’s sharing resources or through organizing events or activities. There is also a list of events found at their website, both local and international. Though many of the currently scheduled events are taking place internationally, sharing information with those around you is equally important.

            The Oregon Water Resources Department (“OWRD”) will present proposed temporary rules to the Water Resource Commission that would place a temporary hold on Upper Klamath Basin well regulation for two years, during which time OWRD would only regulate off wells within 500 feet of surface water sources in response to validated calls for water. Since the administrative phase of the Klamath Basin Adjudication concluded in 2013, groundwater users have challenged OWRD’s application of Oregon’s conjunctive management rules to wells in the Klamath Basin. The deluge of litigation has cost the OWRD millions of dollars and does not appear to have an end in sight.

            OWRD may be offering a temporary truce to groundwater users while the agency reviews and determines a “longer term approach” to water management in the Klamath Basin. The temporary rules, expected to go into effect in April, would remain in effect until March 1, 2021. The proposed rules would eliminate the rules adopted in preparation for the defunct Upper Klamath Basin Comprehensive Agreement (“UKBCA”), and replace them with deceptively simple rules for regulating calls for water. The Upper Klamath Basin has been regulated under original Division 25 and Division 9 rules since 2013, and the proposed temporary rules propose a third regulatory regime in under a decade, with a fourth to be revealed in two-years time. If no new rules are adopted by March 1, 2021, regulation would revert to the conjunctive management rules under OAR Division 9. The proposed rulemaking is available at the following link: https://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice&notice_item_id=8113.

            Under the prior appropriation doctrine, when a water user makes a call for water, OWRD’s watermasters investigate to validate the call. Junior water users may be ordered to shut off water use to allow senior water users to receive their full delivery of water. Oregon’s conjunctive management rules are designed to allow regulation of hydraulically connected surface water and groundwater as a single source of water. Oregon’s conjunctive management rules have historically been found in OWRD’s Division 9 rules (Oregon Administrative Rules Chapter 690 Division 9). However, a portion of the Division 9 rules were superseded by original Division 25 when those rules were in effect.

            The Division 9 rules require, under certain conditions, that water use rights appropriating water from groundwater sources be regulated in priority with surface water use rights when a valid, senior “call” is made. Unless the well drawing from an unconfined aquifer is within one-quarter mile of a surface water stream, OWRD must find that the source of water appropriated by the well is “hydraulically connected” to the surface stream, meaning that water can move between the surface water stream and the adjacent groundwater aquifer. OWRD presumes any well closer than one-quarter mile is hydraulically connected to the surface stream. Further, wells are presumed to cause “potential for substantial interference” if they are (1) within one-quarter mile of a stream, (2) the appropriated rate of groundwater use is greater than 5 cubic feet per second, and within one mile of the stream, (3) the appropriated rate of groundwater use exceeds 1% of a pertinent adopted minimum perennial streamflow or instream water use right, or the natural flow of the surface water source that is exceeded 80 percent of the time, or (4) continued use of the well for 30 days would result in stream depletion greater than 25% of the well’s rate of appropriation.  Stream depletion is calculated using computer modeling, the method for which OWRD has substantially changed over the last several years, creating a moving target for water users wishing to challenge OWRD’s application of the rules to their groundwater uses. Under Division 9, wells located over one mile from surface water sources may only be controlled through designation of a critical groundwater area.

            OWRD’s proposed temporary rules are designed to operate in lieu of Division 9 for the Upper Klamath Basin. Rather than merely putting the majority of groundwater regulation on hold while permanent rules are considered and adopted, OWRD’s proposed rules factually declare that all groundwater sources are hydraulically connected to surface water in the Klamath Basin, and that all wells that withdraw groundwater in the Klamath Basin reduce groundwater discharge and surface water flow. Since these factual findings are totally unnecessary for the purpose of temporarily staying regulation while enacting permanent rules, many view the rules as an attempt by OWRD to cut off current and future legal challenges to OWRD’s regulation of groundwater wells. Under the Oregon Administrative Procedures Act, state agencies are afforded a degree of deference by courts to their factual findings and legal conclusions, and OWRD’s efforts to make the aforementioned findings—findings that are currently disputed by the scientific community—have the (likely intended) effect of garnering support for a claim of deference by OWRD in legal disputes. Moreover, and perhaps most troubling, OWRD’s proposed rules state that OWRD can regulate off a groundwater user if interference “impends,” meaning the junior water user need not even be interfering with the senior water user’s right to be regulated off by OWRD. This provision is in clear contradiction with the Oregon Ground Water Act that requires actual “impairment or interference,” rather than mere speculation, prior to regulation. ORS 537.525(9).

            Many water users oppose the new rules, realizing that the inducement of temporary regulatory relief will come at a very high price that will likely eradicate groundwater irrigation of agriculture in the Upper Basin. Because the rules also determine that all wells in the Klamath Basin are hydraulically connected to surface water, the temporary rules remove the threshold question that allowed Division 9 rules to apply to an even larger area than previously implicated by the rules. (See: https://www.capitalpress.com/ag_sectors/water/scaled-back-klamath-groundwater-regulation-debated/article_8e22ab30-23fb-11e9-951c-33070f078fa7.html?utm_source=Capital+Press&utm_campaign=6366754200-EMAIL_CAMPAIGN_2019_01_30_05_40&utm_medium=email&utm_term=0_3bfe2c1612-6366754200-241522174.) Other persons have criticized OWRD’s temporary rules for harming downstream senior surface water users, like the Klamath Tribes that hold senior surface water rights. (See: https://www.heraldandnews.com/members/forum/letters/proposed-groundwater-drilling-rule-unsustainable/article_77126c71-c978-5ade-9be3-82c025359f40.html.)

            Under OWRD’s application of the Division 9 rules (which is currently being challenged in court), 140 wells in the Klamath Basin would be subject to regulation. Under the proposed temporary Division 25 rules, only 7 wells would be regulated until March 1, 2021. Over the next two years, OWRD asserts it will continue to study the hydrogeology of the Upper Klamath Basin and enact permanent rules to replace the temporary Division 25 rules. The water wars in the Klamath Basin continue, and groundwater users may get a very short period of relief from regulation while OWRD once again moves the bar for how OWRD will regulate off groundwater users in the Upper Klamath Basin.

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

The 20th annual National Groundwater Awareness Week will occur between March 10 – March 16, 2019, and this year’s theme for awareness is “Think.” Though a simple theme, through “Think,” the National Groundwater Association (“NGWA”) urges us to “think” about how we impact our groundwater resources in our everyday lives.

For National Groundwater Awareness Week 2019, NGWA encourages us to consider small steps taken to improve the general public’s awareness of groundwater use and its importance in our every day lives, i.e. “Think” about not running the water while you brush your teeth, or, “Think” about fixing the leaking faucet. Sometimes it’s the smallest things that makes the biggest differences!

Taking steps to conserve and protect groundwater is of utmost importance to all as we depend upon groundwater for basic needs. According to NGWA research, approximately 132 million American rely on groundwater for drinking water. Besides drinking water, groundwater consists of a major resource in food and power production, including irrigation, livestock, manufacturing, mining, thermoelectric power, and many other resources. NGWA offers the following facts for consideration:

• Americans use 79.6 billion gallons of groundwater each day.
• Groundwater makes up 20 to 30 times more water than all U.S. lakes, streams, and rivers combined.
• 44 percent of the U.S. population depends on groundwater for its drinking water supply.
• More than 13.2 million households have their own well, representing 34 million people.

“Think” about that!

As a part of 2019’s Groundwater Awareness Week, NGWA will be participating in the Water Resources Congressional Summit to bring federal support for groundwater awareness. Topics for the summit will focus on bringing federal support for detection and remediation regarding PFAS contamination, increasing efforts to promote groundwater recharge, and bolstering support for drinking water infrastructure improvement. More information and educational tools on the 2019 summit topics can be found at the NGWA’s online database.

“Think” about what you might do to bring groundwater awareness to your friends and family!

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.