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 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!

At the end of 2018, the Oregon Water Resources Commission adopted new rules to facilitate small municipal water suppliers’ completion of Water Management and Conservation Plans (“WMCP”). The Oregon Water Resources Department (“OWRD”) stated the new Oregon Administrative Rules (“OAR”), OAR 690-086-0300 to 0370, are intended to provide more flexibility for small municipal water suppliers to meet water conservation and curtailment objectives. Small municipal water suppliers in turn hope the new rules will reduce complexity to lessen the financial and staffing challenges previously associated with completing a WMCP.

WMCPs are only required to be submitted to OWRD if required by a water right permit condition, a Final Order approving a permit extension of time, or a Final Order approving a previous WMCP. While WMCPs are otherwise optional, OWRD encourages submission as a way to pursue long term water supply planning.

A Small Municipal Water Supplier is defined under the new OARs as: (1) a municipal water supplier that serves a population of less than 1,000 people or has less than 300 service connections, and (2) within the previous 5 years, the system’s maximum daily demand or maximum instantaneous rate, has not exceeded 2 million gallons per day or 3.1 cubic feet per second.[1] If a water supplier satisfies that definition, then it may be able to complete an “Alternate Municipal WMCP” in accordance with the new OARs.

Rather than submitting a regular WMCP, an Alternate Municipal WMCP may be submitted by a Small Municipal Water Supplier, if in order to meet current and projected demand in the next 10 years the supplier will not need to:

• Acquire a new water right; or
• Expand or initiate diversion of water allocated under an Extended Permit.[2]

Another notable change in the WMCP OARs is the revision to the annual Water Audit provisions. If a Municipal Water Supplier notes Water Losses exceed 10 percent within 2 years of approval of its WMCP, the supplier must undertake steps to explain the losses and remedy the situation.[3] However, Small Municipal Water Suppliers completing an annual Water Audit need only remedy losses if the Water Losses exceed 15 percent and the supplier serves a population greater than 300 people or has more than 100 service connections.[4]

Therefore, Small Municipal Water Suppliers that must soon complete a WMCP should determine whether an Alternate Municipal WMCP is appropriate, and what impact the new OARs will have on the supplier as it completes its WMCP. Schroeder Law Offices frequently works with municipal water suppliers and consultants to ensure WMCPs comply with the OARs and to assist in obtaining OWRD’s approval.

[1] OAR 690-086-0030(8).

[2] OAR 690-086-0300(1).

[3] OAR 690-086-0150(4)(e).

[4] OAR 690-086-0350(4)(e).

It’s that time of year again! As 2018 draws to a close, Schroeder Law Offices wants to remind Oregon water users that the deadline to submit water use measurements to the Oregon Water Resources Department (“OWRD”) is December 31, 2018.

Many permits and certificates for both surface and groundwater rights contain language specifying the type of meter and frequency of measurements and reporting required in order for the user to remain in compliance with the terms of their water use rights. These requirements are typically along the lines of:

Before water use begins, the user must install a meter or other suitable measuring device approved by the Director at each point of appropriation or diversion. After use begins, the user must maintain the device in good working order.

The user must keep a monthly record of the volume of water diverted, and submit a report which includes these measurements to the Department annually, or more frequently if required by the Director. Further, the Director may require the user to report general water use information, including the place and nature of use of water under the permit.

Not all water users are required to report their water use; therefore, it is important to be aware of the conditions set forth in your permits and certificates and to make sure you remain in compliance.

If the water use reporting condition is included, you can find the reporting form on OWRD’s website here. You can also report your water use online here. You will note that the “water year,” as outlined in the reporting form, runs from October through September, annually.

Schroeder encourages water users with this condition to take meter readings at the end of each month and to keep that information in their files along with a copy of the reports submitted to OWRD annually.

Stay tuned to Schroeder Law Offices’ blog for more helpful tips and reminders, and don’t forget to submit your reports by December 31, 2018!

Schroeder Law Offices’ paralegal Tara Jackson spent a sunny weekend with fellow members of the Oregon Ground Water Association in August camping at beautiful Pelton Park for the Association’s annual Picnic/Camp out. The event is held by the Association every summer in appreciation of its members and provides a much needed respite for water professionals to unwind during an extremely busy time of year for the industry.

Friday night features a pot luck meal with prizes for the best dishes. Tara’s submissions have yet to win, but she will keep trying! Saturday is equal parts competition and relaxation! Many families spend the day on and in the waters of Lake Simtustus. Tara represented Schroeder Law Offices for the first time this year in Saturday morning’s annual horseshoe competition as the only female competitor. While the competition is all in good fun, there are some very serious competitors and teams are made by the luck of the draw. Luckily, Tara’s teammate was good enough and good-natured enough to carry her, despite the fact she had never before thrown a horseshoe. Perhaps some practice is needed before next year!

The theme this year was “Under the Big Top…come one, come all.” Both kids and adults had a great time dressing up in clown garb for photos, while enjoying Oysters on the BBQ, a much loved tradition of the Picnic. Campers enjoyed brisket and traditional BBQ sides for Saturday dinner.

During the dinner program, the Memorial Fund announced winners of its annual scholarships. Ryan Weaver won the fifteen hundred dollar 2018 Memorial Fund Scholarship and Emily Gill won the fifteen hundred dollar Family in Business Scholarship. These scholarships are only available to Association members, family members of an Association member, employees of an Association member, or direct family of an Association member employee, thus are a great resource for members of the Association. Applications for these scholarships are available on the Association’s website and are due April 1 of each year.

Following dessert and bingo (with prizes) campers dispersed to various campsites for further revelry. The campfire ban imposed due to a very tenuous fire season in Oregon this summer failed to quell the merriment.

As always, this was a great event. It is always nice to have a chance to interact with fellow Association members outside of a formal environment. Thank you Oregon Ground Water Association Picnic Committee for putting on such a lovely event for the Association membership!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2] Id. at 7.

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

[4] Id. at 9, fn 2.

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

[6] Id.

[7] Id. at 27.

[8] Id. at 30.

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

[10] Id. at 27-28.

[11] Id. at 50.

[12] Id. at 53-54.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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!

This past weekend, thousands of families and agriculture enthusiasts attended Ag Fest at the State Fairgrounds in Salem, Oregon. The April 28-29, 2018 event marked the annual fest’s 31st anniversary.

The event features local organizations and locally grown products to teach children (and by proxy some adults) about Oregon agriculture. Kids learn where their food, fiber, and flora come from by taking part in educational activities offered by organizations at booths scattered throughout the indoor buildings, and can interact with animals in the barn! Kids get to take home a variety of free plants and crafts to continue the learning process.

Schroeder Law Offices’ members have participated in the event for years by working the booths for various organizations. This year Tara Jackson helped kids plant radishes and bean starts for home gardens at the Oregon Women for Agriculture booth and quizzed kids on water-related trivia at the Oregon Ground Water Association booth.

Mark your calendar now for next year’s Ag Fest. You do not want to miss this wonderful, fun, and low cost event. For more details click here.

Stay tuned to Schroeder Law Offices’ Blog for information on more community events!

On Saturday, April 21, 2018, members of Schroeder Law Offices’ Portland office attended the Oregon Women for Agriculture’s 31^st annual auction and dinner, at the Linn County Fair and Expo Center. This year’s theme was “Good Things are Growing.” Schroeder Law partnered with Country Side Nursery and Fairdale Nursery to donate a large Japanese maple and pot to the organization’s auction. Benefits and proceeds from the auction go to Oregon State University’s Ag Honors Scholarships, Crop identification signs, and the Oregon Agriculture in the Classroom Foundation.

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)