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!

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.

Eastern Oregon is already experiencing above-average snowpack levels for this time of year, reports the Capital Press: link.

This follows above-average snowpack and precipitation reports from the 2016-2017 water year, and looks to be good news for Oregon water users as we continue to climb out of the recent drought. (You may remember seeing the Owyhee Reservoir draining water through the “Ring Gate” or “Glory Hole” in 2017 for the first time since 2011; see the video here.) See also, Natural Resources Conservation Service Oregon Basin Outlook Report (June 1, 2017): link.

The good start to the 2017-2018 water year, combined with carryover storage in some Eastern Oregon storage reservoirs, could even result in water releases for flood control in early 2018, according to the Capital Press.

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

The week of August 28 through September 1, 2017 is “World Water Week,” an international conference organized annually in Stockholm, Sweden that focuses on new thinking and positive action toward water-related challenges and their impact on the world’s environment, health, climate, economic and poverty reduction agendas. The World Water Week annual forum is held by the Stockholm International Water Institute (SIWI) to provide a platform for collaborating organizations to gather for seminars and events regarding water and development issues. Individuals from all over the world gather to present findings at scientific workshops and examine methods for examination and collaboration on water-related topics. Each annual conference has a theme, the 2017 theme is “Water and Waste: Reduce and Reuse.”

The 2017 conference will include more than 200 sessions of seminars, volunteer projects, events, exhibitions, closed meetings and social events that link scientific understanding with policy and decision-making to develop concrete solutions to water, environment, and development challenges. A list of participating organizations can be found on the SIWI World Water Week website.

Research and information shared at the World Water Week forum is exchanged between scientific, business, policy, and civic communities with the goal of implementing actions and commitments and impacting decisions related to international processes regarding water-related challenges. To learn more about SIWI’s dedication to to finding solutions to international water challenges, read more about the institute.

[Photo Credit to Stockholm International Water Institute (SIWI)]

The State Engineer held informational meetings on July 17 through July 20, 2017 regarding its Preliminary Draft Humboldt River Conjunctive Management Regulations. The State Engineer is proceeding through administrative rulemaking process to define how Humboldt River Decreed water rights and groundwater rights will be conjunctively managed. If you were unable to attend the informational meetings, you can view the power point used during these meetings by visiting http://water.nv.gov/HumboldtRiver/Humboldt_regs_Small_Business_July_2017.pdf.

As a brief history, the Humboldt River was adjudicated in the 1930’s and large scale groundwater development began approximately 20 years later. Existing studies support the assertion that groundwater pumping is depleting surface river flows. The groundwater basins surrounding the Humboldt River are over-appropriated as the amount of water withdrawals allotted by water rights exceed the perennial yield. As an alternative to curtailing water, the State Engineer is considering Conjunctive Management Regulations. The main objectives of these regulations are to maximize beneficial use of our limited water supply, allow for continued and uninterrupted groundwater use and provide mitigation to senior Decreed water right holders for conflicts of their delivery of surface water. These regulations aim to allow for replacement of injurious depletions to the senior surface right holders, and if replacement water is not available, to require groundwater users to participate in a basin-wide mitigation plan providing mitigation by financial compensation.

At this stage in the rule making process, the State Engineer is attempting to determine if the regulations are likely to place an economic burden on small businesses, and if so, to determine the extent of the impact. Small businesses can submit economic impact statements to the State Engineer for consideration. There are no current deadlines imposed by NDWR for submission of small business impact statements or comments to statements, however, it is likely that we will see some movement within as little as 30 days.

The Nevada State Engineer is working on a plan to define how to conjunctively manage Humboldt River Decreed water rights hydrologically connected with groundwater rights. This plan will take form through an administrative rulemaking process and will affect many water right holders in and around the Humboldt River Corridor. Nevada Farm Bureau is assisting the State Engineer in setting up informational meetings to discuss concepts in forming the regulatory plan and to obtain feedback on the plan’s economic impacts to small business, farms and ranches.

Currently the United States Geological Survey (“USGS”) and the Desert Research Institute (“DRI”) have a four-year study in the 34 groundwater basins that adjoin the Humboldt River Corridor. The results from the study will determine which individual groundwater wells are hydrologically connected to the surface water flows of the Humboldt River, and to what extent their connection impacts surface flows. Armed with this information, the Conjunctive Management Plan aims to apply annual financial assessments to be paid by each injurious groundwater well in an attempt to recompense senior surface water right owners for their loss of water.

The State Engineer’s preliminary draft regulations for conjunctive management identify the purpose of the regulations as a means to establish rules for a Mitigation Program for the Humboldt River and tributaries identified in the Humboldt River Decree and hydrologically connected groundwater. The plan will establish rules for mitigating conflicts through water replacement or other mitigation measures. The plan will identify water rights of use that are subject to or exempt from plan regulation. The draft regulations identify affected parties as any holder of water rights under the Humboldt River Decree, groundwater right holders whose pumping is determined to capture at least one percent of any Humboldt River Decreed water right, and mining projects whose mine pit lakes capture at least one percent of any decreed surface right and holders of storage water in Rye Patch Reservoir.

The preliminary draft regulations state that the percentage of capture will be initially determined by the USGS/DRI study and thereafter by any further study found suitable by the State Engineer. The State Engineer will determine the amount of conflict to each surface water right and the amount of injurious depletion by groundwater rights, measured in acre-feet, for use in establishing and enforcing the Mitigation Program. The Mitigation Program will be mandatory for all groundwater users determined to be injurious to senior surface water right users. Administration of the program will be funded through existing groundwater and surface water assessments, and the program itself will be funded by groundwater right holders or responsible parties of mining projects, based on their injurious depletions.

The preliminary draft regulations offer regulated groundwater users an alternative to the Mitigation Program by working with the State Engineer to obtain an approved water replacement plan or other type of mitigation plan. If a groundwater right holder fails to participate in the Mitigation Program or have an alternative mitigation plan approved by the State Engineer, that water right holder will be prohibited from diverting any groundwater until the injurious depletion is mitigated and may be subject to penalties and fines.

If you would like to learn more about the draft Regulations for the Conjunctive Management of the Humboldt River Basin, or would like to offer feedback concerning potential economic impacts imposed by the regulations or Mitigation Plan to small businesses, you are encouraged to attend one of the following informational meetings.

Monday, July 17, 2017: 6:30 PM at the Lovelock Community Center in Lovelock Nevada;
Tuesday, July 18, 2017: 6:30 PM at the Humboldt County Cooperative Extension Office in Winnemucca Nevada;
Wednesday, July 19, 2017: 6:30 PM at the Battle Mountain Civic Center in Battle Mountain Nevada; and
Thursday, July 20, 2017: 6:30 PM at the Elko County Conference Center in Elko Nevada.

Last month we were fortunate to take our sons to visit Glacier National Park in Montana. It was a great opportunity, especially in light of the fact that Glacier National Park’s glaciers are melting and will be gone in our lifetime! Last month, the United States Geological Survey (“USGS”) released data showing that the park’s 37 glaciers have melted an average of 40% since 1966. USGS’s research ecologist, Daniel Fagre warns that at this rate, they will be gone within our lifetime and notes that in order for the glaciers to survive, the area must experience significant cooling.

If the park loses its glaciers, significant changes will impact not only the environment, but also wildlife. The stream water volume, change in water temperature and timing of run-off will have direct impacts on the park’s aquatic wildlife. Glacier National Park’s glaciers are estimated to be 7,000 years old, however, it appears the same changes to our environment that threaten our water sources in times of drought are also taking away our precious National Monuments. Plan a visit to see these glaciers before they are gone!

Are you interested in learning more about successful conservation tactics? The National Water Resources Association (“NWRA”) is hosting a free seminar! The seminar will take place on August 7, 2017 at the Genoveva Community Chavez Center in Santa Fe New Mexico, following the NWRA Western Water Seminar. The Water Conservation Ideas Sharing Forum will host various agencies throughout the West, who will share their successes and setbacks in implementing their various water conservation programs. And the best part is, the Water Conservation Ideas seminar is free regardless of attendance to the Western Water Seminar! For more information on attending this seminar to gain valuable knowledge of conservation ideas, please see http://www.nwra.org/2017-municipal-caucus-meeting.html.

The Oregon Task Force on Drought Emergency Response met throughout 2016 to propose statewide recommendations to address current and future water shortages throughout the State. One of the task force’s recommendations has been embodied in House Bill 3051,[1] which has garnered support from Democrats and Republicans alike.

H.B. 3051 will help pay for the installation, repair, and replacement of measuring devices on authorized diversions and points of appropriation to measure groundwater use. The bill authorizes the use of the Water Measurement Cost Share Program Revolving Fund, which has been available since 2000 to incentivize surface water users to measure their water use, to now fund the installation or replacement of groundwater measuring devices.

This is a voluntary system that allows the Oregon Water Resources Department (“OWRD”) to work with landowners to install measuring devices at their points of appropriation or points of diversion. Additionally, the fund can pay up to seventy-five percent of the cost of installing the measuring device.

The widespread support for this bill stems from a desire to protect priority of water rights through improving the amount of information about groundwater use available to OWRD. OWRD uses this type of groundwater use data to better understand the availability of water in a basin, to determine how much water is available for withdrawal, and to better manage any interference between junior and senior groundwater users.

H.B. 3051 passed out of the Oregon House of Representatives on April 3, 2017 and has been referred to the Senate Environment and Natural Resources Committee.

[1] https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/HB3051 

The Nevada Farm Bureau has adopted new and revised policies, which are available in their 2017 Policy Book. The policy positions were approved by farmer/rancher voting delegates at the general session of the 2016 Nevada Farm Bureau Annual Meeting. One important new policy adopted by the Nevada Farm Bureau relates to supporting groundwater management plans for critical management areas.

The Nevada Farm Bureau recognized that under state law, local citizens have an opportunity to propose groundwater management plans in order to bring allocated water rights of use back into balance with actual available water resources. The State Engineer has identified one water basin, Diamond Valley, as a Critical Management Area. This basin is open to Groundwater Management Plans, that can be proposed by local citizens. In the new policy, the Nevada Farm Bureau provides an outline of criteria a management plan must meet in order to obtain support of the Farm Bureau. Some key points, among others, stipulate that the proposed plan must be developed at the local level, must recognize priority of senior water right users, and must restrict the water covered by the plan from leaving the basin.

The Farm Bureau’s goal with the new policy concerning groundwater management plans is to address and provide guidance to possible changes in state water law that may come up in the next legislative session. The Farm Bureau believes this new policy will positively impact farming and ranching industries by protecting its most important resource.

The International Commission on Irrigation and Draining (ICID) hosted the World Irrigation Forum (WIF) in Chiang Mai, Thailand. The 2016 conference serves as the second annual forum.

The intent of the World Irrigation Forum is to bring together all stakeholders in order to provide a platform for the world irrigation community to work to find solutions to the problems the irrigation community faces. Some of the stakeholders involved include policy makers, experts, research institutions, non-governmental organizations, and farms. The most prevalent issues the forum addresses are the depleting freshwater resources due to global warming and climate change as well as the idea of population growth in relation to food security. Through the forum, the ICID hopes to gain sustainable solution to water management for agriculture.

The World Irrigation Forum’s theme for 2016 was “Water Management in a Changing World: Role of Irrigation in Sustainable Food Production.” Under the main theme were three different sub-themes: (i) Key actors in balancing water, food, energy, and ecology, (ii) Management of climatic extremes with focus on floods and droughts, and (iii) Key and smart actions to alleviate hunger and poverty through irrigation and drainage.

The process of being selected to present at this event is a lengthy grueling process which includes multiple drafting and reviewing sessions. The abstracts and papers are viewed by a highly qualified committee which determine the selected papers for presentation. Laura and Therese both had the honor of participating in the Forum! Laura Schroeder was able to lead a presentation titled “Innovative Partnerships v. the Tragedy of the Commons” while Therese Ure was able to present a poster on “Securing Water Available for Irrigation in Times of Drought Must Move beyond Traditional Above Ground Storage Reservoirs.”

By 2025, an estimated 1.8 billion people will live in areas plagued by water scarcity.  Two-thirds of the world’s population will be living in water-stressed regions where is there a water security risk. This issue is no longer relegated to the developing world!

We as water lawyers practicing throughout the Western United States are developing new legal strategies to help our small municipal, ranching and farming clients to conserve, maximize efficiency, and change water use patterns to meet these challenges.

To help understand these challenges our lawyers educate, teach and train water users throughout the West and world to use the existing law and traditions to address present and anticipated scarcity challenges. Here is a partial list of presentations we can offer.

The July 2016 Nevada Lawyer Magazine focuses on drought conditions and features Schroeder Law Offices’ Attorney Therese Ure’s article, “Use It or Lose It:” for Nevada’s Water in Times of Drought. The article discusses Nevada Revised Statute 534.090, which has become known as the “Use It or Lose It Doctrine” in reference to water rights and Nevada’s forfeiture law.  As drought conditions fluctuate across the west, and particularly in arid desert states such as Nevada, statutory forfeiture provisions relating to partial forfeiture are in conflict with conservation measures such as planting crops that require less water. Click here to read more about defining the use of water and the forfeiture process in the State of Nevada, an online exclusive for Nevada Lawyer Magazine. A full copy of the July 2016 Nevada Lawyer Magazine can be found online.

The debate continues on the prior appropriation system. During the 2016 Family Farm Alliance Annual Conference, the Alliance’s 2015 report on the prior appropriation doctrine raised some debate. This debate, now focusing on Nevada’s prior appropriation system, was again raised in equal vigor during the 2016 Nevada Water Resources Association annual conference. While many argue the system fundamentally works, some commenters took the stance that the prior appropriation doctrine was flawed and should be reconsidered.

One alternative suggestion presented during these discussions was to adopt the Australian Model which changes a water right to a water share, and strives to entitle these water license holders to a specific share in the available water and to take water at specific times, rates or extraction points. However a true understanding of prior appropriation provides for water use under these circumstances, with the main difference being, in a short water year, the difference class of shareholders receive different allocations. So instead of a month, day and year priority to govern who receives their water first, the Australian Model groups all users into classes of shares with perhaps 3-5 classes all together depending on the stream system. What we did not hear about was how the Australian system handles conjunctive management calls within these class-share systems.

We suspect this debate will continue throughout the western United States as climate change and the drought continue.

Co-authored by Therese A. Ure

Spring is approaching on the West Coast and we all know what this means: watering season!  Time to check your sprinkler systems for leaks, read and record meters, and make sure your system is ready for spring irrigation.

Though forecasts were set for an “El Niño” winter on the West Coast, projections from the March Nevada Water Supply Outlook Report, issued yearly by the Natural Resources Conservation Service, suggest that the 2016 water year is not yet the end of Nevada’s drought.  Currently, (as of March 1, 2016) the Bridgeport Reservoir on the East Walker River is at 24.4 percent full, while the Topaz Reservoir on the West Walker River is at about 28.6 percent full.  Despite the two reservoirs having about twice as much water as they did at this time last year, streamflow numbers as of April 1 will calculate the upcoming curtailment order on groundwater rights issued by the Nevada State Engineer’s Office.

After several years of drought, the influx of melting snow pack will provide some relief for Nevada residents, but mindfulness is going to be key.  In Pershing County, the newly improved Rye Patch Reservoir is set to provide water to Lovelock Valley farmers but the county’s water conservation district manager recommends the 2016 irrigation season be postponed.  After consecutive years of drought, the dry ground in irrigation ditches and canals will absorb much of the water initially released from the reservoir, until at least another 10-12,000 acre-feet of water are available for use.

Ranchers in Northern Nevada are facing designations proposed by state water officials last week that order groundwater well metering, meaning more monitoring, regulation, and study of the Humboldt River Basin’s limited resources.  As orders such as these become more common, residents can do their part by monitoring individual irrigation systems and meters.

Upon facing the fourth year of consecutive drought, the Nevada Drought Forum formed in April 2015 by Nevada Governor Brian Sandoval to assist with water resource challenges in the State of Nevada. The Forum was comprised of members representing various governmental and quasi-governmental agencies in charge of managing water resources in the State. In September 2015, a Drought Summit was held at the Nevada Legislature, where those involved discussed many of the drought problems Nevada is facing, and numerous presentations were offered on these issues. At the conclusion of the Forum activities, and in December 2015, the Governor was presented with a Recommendations Report summarizing the conclusions made by the Form, and proposed future action.

The Drought Forum recommendations come in seven (7) categories including: 1) Water Conservation, 2) Nevada Water Law, 3) Monitoring and Research Data, 4) Financial and Technical Assistance, 5) Supply Augmentation and Long-Range Planning, 6) Information Sharing and Outreach, and 7) Drought Declarations/Emergency Actions. Each category offers specific suggested action items for the Governor’s consideration. Strategies include requiring meters on all groundwater connections, tiered rate structures, updates to Nevada water law, judicial education on water issues, and refinement to drought criteria, among others.

At this stage, no specific action is taking place on the issues presented; however, the conversation is started on where Nevada will head in response to ongoing drought conditions. While real action can sometimes take years to implement, the Recommendations come as a positive sign that Governor Sandoval is interested in suggested strategies advocated by water professionals around the state. There remains time for those interested in becoming involved to voice their concerns and positions with the Governor in upcoming events dedicated to this ongoing discussion.

For more information about the Governor’s Drought Form visit http://drought.nv.gov/.

For Additional information concerning the Recommendations Report visit http://drought.nv.gov/News/Nevada_Drought_Forum__Recommendations_Report_-_December_2015/.

On October 16, 2015, the office of the State Engineer of the State of Nevada issued an Order of Adjudication for the public waters of Northern Nevada’s Diamond Valley. The past years’ drought has made vested water rights and claims in Eureka County an ongoing and important legal issue. Water rights’ holders will need strict proof of beneficial use, as will any future applicant. The order provides Nevada landowners six months to respond.

As such, State Engineer Jason King will commence (resume) taking Proofs of Appropriation in the Matter of Determination of the Relative Rights In and To All Waters, Both Surface and Underground, located within Diamond Valley, Eureka and Elko Counties, Nevada, on November 30th. Order No. 1266 states, “All claimants to waters of said Diamond Valley must file their Proofs of Appropriation in the Office of the State Engineer on or before the 31st day of May, 2016 as provided for under NRS 533.110.”

These Proofs of Appropriation relate to water uses that began prior to the development of Nevada’s surface and ground water codes. All subsequent uses go through an application and permitting process with the Nevada Division of Water Resources. If you think you can prove a historical water right of use dating back prior to the water codes, now is the time for further research.

Schroeder Law Offices has assisted many clients in research guidance and assistance in gathering support for vested claim water rights filings. Some of the types of proofs often used to support vested water rights claims in an adjudication are outlined in an article entitled “How to Research Land & Water for Proof of Vested Nevada Water Right Claims,” by Katie Delong and Sarah R. Liljefelt, Therese A. Ure of Schroeder Law Offices.

El Niño is gracing the West Coast of the United States and water watchers are enjoying relief from the past few years of drought, but the catch-up game may take longer than hopefuls could dream. Reports from the U.S. Climate Prediction Center indicate that wetter weather is forecast for the West Coast through at least November 24th, but may only be enough to recover part of the damage caused by drought. Not only would water storage reservoirs need to be restored to normal, levels of both surface and groundwater would also need to at least approach normalcy for El Niño to solve the West’s water scarcity issues.

Organizations such as the Agricultural Conservation Easement Program are seeking to aid with scarcity issues, whether El Niño proves itself as a force this winter or not. On November 16, 2015, U.S. Department of Agriculture Secretary Tom Vilsack announced the availability of $350 million funded through the ACEP to benefit the restoration and protection of working agricultural lands and wetlands. The funding was created by the 2014 Farm Bill to protect critical water resources and wildlife habitats, but is also extended to landowners to help protect and restore key farmlands, grasslands and wetlands across the nation. According to a news release by the USDA’s Natural Resources Conservation Service, private landowners can use programs like the ACEP to maintain land for farming and ranching purposes. Voluntary easement sales can help landowners engage in the conservation efforts by limiting future development to protect key resources such as water.

The news of ACEP’s funding comes down right alongside a Presidential Memorandum written in early November. The memorandum is addressed to secretaries such as USDA’s Vilsack and specifically directs such programs to, “Avoid and then minimize the harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water- disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities.” (Western Livestock Journal)

While El Niño may bring hope to the West Coast, efforts from the USDA and ACEP will be needed to aid the long-term protection of farmland, grassland and wetland in the US, as well as the restoration and consistency of water quality and levels.

The Sacramento Superior Court of California on July 10, 2015, granted a TRO temporarily restraining the California State Water Resources Control Board’s drought curtailment action against certain senior water rights holders. The court held that the Board’s action violates due process rights and would cause irreparable harm.

On May 1, 2015 and June 12, 2015 the California State Water Resources Control Board issued notices of curtailment to West Side Irrigation District (West Side), Central Delta Water Agency (CDWA) and South Delta Water Agency (SDWA), respectively. The notices declared that the recipients were not entitled to divert water because the water was needed to meet the needs of senior water right holders.

West Side, CDWA and SDWA filed an ex parte application seeking a stay or temporary restraining order/order to show cause. While a petition for reconsideration was pending with the Board regarding the May curtailment letter, the Superior Court found that the letter was subject to a judicial determination as to whether it constituted a violation of the petitioner’s due process rights. It noted that there was the administrative process did not have to be exhausted before a temporary restraining order could be issued because the circumstances were such that irreparable harm would occur to the petitioners absent a temporary restraining order. Moreover the court found every day the letter remained in effect constituted a violation of the petitioners’ constitutional rights, so that a temporary restraining order was appropriate while the administrative process was proceeding.

With regard to the June curtailment letter, CDWA and SDWA were found to have adequately plead that the agencies’ landowners exercised pre-1914 appropriative and/or permit licenses rights that were subject to the directives of that letter, providing the petitioners standing to bring the ex parte application.

The court viewed the curtailment letter’s language, that which provided that the recipients were not entitled to divert water because that water was necessary to meet senior water right holders’ needs, as a declaration and determination by the Board of the recipients’ water rights priorities.

Further the court determined that the language in the letter instructing the recipients to “immediately stop diverting water” and complete an online Curtailment Certification Form documenting receipt of the curtailment letter and cessation of diversion, was not merely instructional as alleged by the Board. It viewed the letters as coercive, finding that they could reasonably be interpreted as an order, not a mere request for voluntary cessation of diversion activities.

Concluding that the curtailment letters resulted a violation of the petitioners’ due process rights in that there was a taking of the petitioners’ property rights without a pre-deprivation hearing, the court granted the ex parte application for a temporary restraining order/order to show cause as to why a preliminary injunction should not issue.

On March 27^th, 2015, California Governor Edmund G. Brown signed into law a $1 Billion emergency drought package. The emergency legislation (AB 91 and 92) provides funding for drought relief as well as to critical water projects in the state. Governor Brown states that “[t]his funding is just one piece of [a] much larger effort to help those most impacted by the drought and prepare the state for an uncertain future.” The bill will offer money for emergency food aid, drinking water, water recycling, conservation awareness, water system modeling, species tracking, and infrastructure and flood protection funding, to name a few.

The full text of AB 91 and 92 can be found at http://leginfo.legislature.ca.gov/.

This all comes just weeks after the California State Water Resource Control Board (“Board”) expanded its Emergency Water Conservation Regulations. The Board now prohibits certain potable water uses such as washing down driveways, and washing a motor vehicle with a hose not equipped with a “shut-off nozzle”, and commercial changes such as restaurants only providing water upon request. (A list of all changes to these regulations, can be found at http://www.swrcb.ca.gov/). Local agencies are able to fine property owners up to $500 a day for failure to implement conservation requirements of the Board.

More information about ongoing action in California pertaining to the drought can be found at http://ca.gov/drought/.