Schroeder Law Offices is pleased to announce that Kelsey Seibel has joined the firm as a new associate attorney in Portland, Oregon. Kelsey received her Juris Doctorate from the University of Denver Sturm College of Law in May 2021. She was admitted to the Oregon State Bar on February 24, 2022.

            Kelsey Seibel gained experience in water law through working on the University of Denver Water Law Review during law school, of which she served on the editorial board for two years as an Articles Editor. Kelsey also received a Bachelor of Arts in Economics and Environmental Studies from the University of Wisconsin – Madison. While studying for her Bachelor’s, Kelsey’s area of focus included environmental policy and history surrounding global environmental issues.

            Kelsey’s previous professional experience includes clerking for Judge Christine C. Antoun in the Colorado Judicial Branch Second Judicial District in Denver, Colorado. During her time, she was awarded “2022 Outstanding Courtroom Employee.”

            Kelsey grew up in Milwaukee, Wisconsin along Lake Michigan. When asked about her interest in water law, Kelsey says, “I always knew I wanted to work with natural resources and in the environmental law area. When I decided to go to the University of Denver for law school, I chose to write on the Water Law Review to learn more about water law and water rights in the west. I enjoy the area of water law because it combines my interests in efficient use of natural resources with sustainable growth and allocation of resources.”

            For fun, Kelsey enjoys outdoor activities like camping, running, and biking, as well as baking, cooking, and watching Wisconsin football.

            Kelsey could not be more excited to join Schroeder Law Offices and is determined to work as a passionate advocate to assist in all client needs.

Therese Stix has been appointed by its Board of Directors as Vice President of the United States Committee on Irrigation and Drainage.  USCID’s mission is to promote progressive and sustainable irrigation, drainage, and flood control practices in support of food and fiber production and public safety, recognizing that sustainability embodies economic, social, and environmental goals.  Therese was appointed to this position after stepping in to help USCID launch after a hiatus during the non-conference years of COVID and the retirement of the past executive director. 

Therese grew up on a row crop farm in eastern Oregon, is passionate about agricultural customs and culture, and continues to support farming and ranching operations in her law practice.  As Vice President, Therese will continue to take an active role in supporting the USCID’s mission while bringing the organization back online.

In addition, USCID is in the process of on boarding Jane Townsend from Ag Association Management Services to assist in promoting and pursuing USCID’s mission post-COVID. We are excited to have Jane assisting us and are currently planning our next conference to take place in Fort Collins, Colorado April 25-28, 2023.  We hope to see you there!

The Oregon Water Resources Department (“OWRD”) has stopped processing new groundwater applications and begun to severely limit groundwater permit extensions. This policy change places a significant burden on groundwater permittees and will directly impact agriculture in Oregon. Ultimately, OWRD’s policy change will significantly limit agricultural expansion in the state. 

In his article “Oregon Moves to Limit Groundwater Development,” Steve Shropshire cites “Draining Oregon,” the 2016 report published in The Oregonian, as the major catalyst for increased regulation. The Oregonian article covered groundwater issues in Oregon and argued that OWRD was over permitting the use of the state’s groundwater supply. Soon after The Oregonian article, OWRD updated their Integrated Water Resources Strategy to name groundwater as one of the biggest issues concerning Oregon’s water future.

Even though OWRD has not passed a rule, OWRD has ceased processing new groundwater applications and limited its issuance of groundwater permit extensions as a policy matter. OWRD has also limited the issuance of new groundwater rights in the Walla Walla, Harney, and Umatilla basins. These actions will pose a big change for agriculture in Oregon, as acquiring new groundwater rights will be much harder, if not impossible. To participate in the rule making process when that occurs, go to:  Water Resources Department: Proposed Rulemaking : Oregon Administrative Rules : State of Oregon

Stay informed on the latest groundwater issues, current events, and all things water by signing up for Schroeder Law Offices’ weekly email newsletter to the right.

The current moment presents a number of unique challenges for water sustainability, including for farmers. When farmers do not have enough water to meet the population’s need for food and goods, the results can be devastating to certain population groups. In his article There Has Never Been a More Important Time to Protect American Food Production, Dan Keppen writes that farmers are facing this water challenge right now.

Due to years-long extreme drought in the west, farmers have been struggling to make ends meet. This has led to a decrease in local agricultural production in the U.S. Unfortunately, this decline comes at a time when the world has been rocked by extreme climate events and global supply chain issues. These challenges make food more costly to produce and purchase.

What makes the situation so urgent is that the need for food is rising. A 2022 GAP Report found that 40 million people around the world experienced “emergency or catastrophic levels” of food insecurity. To meet the population’s growing needs, agricultural output will have to increase by 1.73 percent each year. Keppen writes that bringing U.S. communities the nutritious, affordable food they need will require an increase in local agricultural production.

To learn more about water use and conservation, check out Dan Keppen’s previous blog “There’s a Crisis on the Colorado River.” The article explores the challenges faced by farmers when their water access is reduced. Though reduced water access may be done in an effort to conserve, the reduction can lead to food shortages and financial insecurity for local communities. With so many interests involved, the situation in the west illustrates that a solution to water issues will have to be complex and innovative.

In the first year back since COVID-19, the Nevada State Bar, Environmental & Natural Resources Section held its Annual Meet & Greet event on November 3, 2022.  A social, after work event, honorees included Adam Sullivan (Nevada State Engineer), Micheline Fairbank (Nevada Deputy Administrator for Nevada Division of Water Resources), David Bobzien (Nevada’s Office of Energy), Jim Lawrence (Acting Director, Nevada Department of Conservation & Natural Resources), and Chad Blanchard (Federal Water Master for the Truckee & Carson Rivers).

Section members attending networked with our Nevada agency leads on a more personal level without the stresses of adversarial positions. During the event, Section leaders asked our honorees fun “icebreaker” questions such as: 1) What is your idea of perfect happiness? 2) With which historical person do you most identify? 3) What is your greatest extravagance? and, 4) Which talent would you most like to have?  Of course, these questions sparked fun answers that provided a glimpse into our leaders as people.  Spending time with these Nevada agency leaders on a personal level ultimately allows us to know and appreciate the work we all pursue. 

            In our earlier blog, Schroeder Law Offices announced the Nevada Division of Environmental Protections’ (NDEP) workshop on Legislative Counsel Bureau (LCB) Draft R113-22.  LCB R113-22 proposed changes to Nevada’s water quality regulations for Nevada surface waters. 

            Now NDEP proposes to adopt additional regulations under the following LCB Numbers:  R114-22, R115-22, and R116-22 amending Chapter 445A of the Nevada Administrative Code for Standards for Water Quality.  More on the proposed regulations is available here.  Changes include setting site-specific selenium criteria for the Las Vegas Wash, adopting the federal Environmental Protection Agency (EPA) drinking water standards for certain contaminants, and assigning beneficial uses and criteria better suited for flood-conveyance channels in Las Vegas.  

            NDEP announced a workshop for these new proposed regulations on October 19, 2022 from 1:00 PM to 3:00 PM.  The workshop will occur online and can be joined by this link or by calling in:

Phone Number: 1-775-321-611
Conference ID: 253-622-142#

            Public comment will be accepted during the workshop and written comments will be accepted until October 24, 2022.  Written comments can be submitted to:

Dave Simpson: dsimpson@ndep.nv.gov

Nevada Division of Environmental Protection
Bureau of Water Quality Planning
901 S. Stewart Street, Suite 4001
Carson City, Nevada 89701

P: (775) 687-9548  F: (775) 687-5856 

Public participation is an important aspect of creating Nevada law.  NDEP regulation changes are governed by the Nevada Administrative Procedure Act.  The agency must solicit and consider public comments in adopting new regulations.  If these issues affect you, Schroeder Law Offices encourages you to participate!

As of September 13^th, Oregon Water Resources Department Director Tom Byler has officially retired after 27 years working for the state of Oregon. A new OWRD director will be appointed by Oregon’s next governor. To serve for the remainder of her term, governor Kate Brown has appointed acting director Doug Woodcock, who previously worked as the Deputy Director of Water Management.  

During his tenure as the director, Tom Byler dedicated his time to modernizing the department’s programs and services to meet the Oregon community’s ever changing water needs. Byler also worked to increase OWRD’s capabilities to collect and analyze data to manage Oregon’s surface and groundwater resources throughout the state.

In the official press release regarding his retirement, Byler said, “As I look to the future of water resources in Oregon, I anticipate that water issues will continue to become more and more complex and challenging.” Byler added, “I am excited about the Department’s increasing capabilities to help communities address those issues.” Though he may be retiring from his current position, Byler intends to carry on his work in water and natural resources issues into his retirement.

The Oregon Water Resources Department is the state agency responsible for ensuring adequate and sustainable water supply to meet present and future needs. To learn more about OWRD, visit their website here: https://www.oregon.gov/owrd/. 

In the article “Trends in Clinical Legal Education Affecting Agriculture” by Caroline Lobdell and Scott Horngren, the authors provide a thorough look into the current state of environmental, agricultural, and animal law programs in law schools throughout the country. Though environmental law programs have steadily increased since the passage of groundbreaking environmental laws in the 1970s, the authors argue that these programs fail to offer a balanced education on agriculture and environmental law. Instead, they often focus exclusively on fighting for environmental causes. In doing so, they neglect to cover the interests of farmers, ranchers, and other natural resource users, who make up a huge part of environmental and agricultural interests.

Rather than viewing natural resource use as inherently wrong or not worthy of study, the article urges law programs to educate students on the interests of natural resource users and the cases they may come across in these industries as lawyers. In doing so, law students will get a more well-rounded understanding of environmental and agricultural issues, be better equipped to anticipate opposing arguments, and even work together with natural resource users in pursuing conservation efforts.  

To showcase the positive impact of a well-balanced environmental and agricultural education, the article uses Lewis & Clark’s Western Resource Legal Center (WRLC) as a case study. The law clinic, incorporated by Laura A. Schroeder, aimed to help students understand the interests of ranching, farming, timber, and other resource dependent industries. WRLC was later incorporated into Lewis & Clark to follow a seminar format to address legal issues affecting these industries in addition to an externship program that has partnered with the Oregon Farm Bureau, the Oregon Cattleman’s Association, American Forest Resource Council, Schroeder Law Offices, and others. With so many students willing to share positive experiences, the article makes a compelling argument for law schools to implement similar programs in their environmental law curriculums.  

WRLC’s founder and former Dean of Lewis and Clark Law School, James Huffman described the program as “a little boat that is finally afloat.”  On WRLC’s inception, Huffman stated “[t]here is a lot more to be done to make it seaworthy and expand the fleet, but it can be done.”  As budding law students with agricultural backgrounds, WRLC alumni, such as Schroeder Law Offices’ Associate Attorney Caitlin Skulan, were able to obtain a more balanced legal education as it pertains to the natural world and the resources we rely on. WRLC was a life raft in a sea full of environmental advocacy opinions on the Lewis and Clark campus.  The balance of working with farmers, ranchers, timber harvesters, and other sustainable natural resources users offers law students a reprieve from viewpoints that organizations like Farm Bureau and Cattlemen’s Associations are the villains of the environmental story. 

Similar to environmental advocacy focused clinics, students are still exposed to a whole host of environmental laws including the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, and state and federal Administrative Procedure Acts.  WRLC students have an opportunity to participate in real cases with the people who work and rely on natural resources and take pride in their roles as stewards of the land their livelihoods rely on.  As an employer of WRLC Alumni, Schroeder Law Offices hopes to see similar programs emerging at other law schools to better prepare future lawyers to represent our valued clientele.   

To learn more about WRLC and the current state of environmental, agricultural, and animal law programs, check out the link to the full article here.

            Schroeder Law Offices had a blast working at the 2022 Oregon State Fair. If you weren’t able to make it down to Salem for the annual festivities, we’re here to fill you in. During the fair’s kickoff weekend, Tara Lomacz and Madeleine Criglow worked the Oregon Women for Agriculture booth in Salem Fairgrounds’ Columbia Hall. This space was dedicated to showcasing agriculture in Oregon along with the beautiful works of local authors, photographers, and textile artists. At the Oregon Women for Agriculture booth, Tara and Madeleine had a great time speaking with fairgoers on agriculture and water issues in Oregon.

            To encourage fairgoers to stop by the booth, guests were challenged to spin the trivia wheel for questions on agriculture and farming in Oregon. The questions tested guests’ knowledge on everything from Oregon’s state beverage (milk, if you’re wondering) to how many gallons of water a cow drinks in a day (a whopping 20-30 gallons!). Guests were delighted to realize that they already knew a thing or two about Oregon agriculture (and were pretty happy about the prizes, too).

The Oregon Women for Agriculture booth also featured a map highlighting the water issues currently affecting agriculture and local farmers throughout Oregon. As fairgoers read through the map, many shared their own experiences with water issues and asked about what might be done to protect the natural resource in Oregon. It was rewarding to see guests take such an interest in local agriculture, and Schroeder Law Offices was happy to spread the word on its importance to the environment and economy.

            As the trivia games and discussions came to a close, the fair was just getting started. There was still tons of fun to be had, from checking out live music to indulging in every snack you could imagine. Leaving the fair with an ice cream cone in hand, we were grateful for the opportunity to join in on the fun!

The Nevada Division of Environmental Protection (NDEP) is proposing new regulations on water quality.  NDEP announced an official regulation workshop on August 31, 2022 to solicit public comment and input on Legislative Counsel Bureau (LCB) Draft of Proposed Regulation R113-22.

R113-22 sets forth a process for the State Environmental Commission to classify a surface water of the State or a segment thereof as a water of extraordinary ecological, aesthetic, or recreational value.  The Commission then establishes provisions for antidegradation protections to these specially classified surface waters. The draft regulations can be viewed here.

The Workshop will be August 31, 2022 at 10:00 AM to 1:00 PM Pacific Standard Time. More information and the agenda can be viewed on NDEP’s Workshop Notice.

Due to technical difficulties related to the workshop online registration form, attendees may join by:

1. Going to the following link: https://www.microsoft.com/en-us/microsoft-teams/join-a-meeting?rtc=1
2. Entering the Meeting ID:  216 866 144 018
3. Entering the Passcode:  nqZR8P

NDEP will also attempt to accommodate anyone wishing to participate in person at:

Bryan Building
901 South Steward Street
Humboldt Conference Room, 3^rd Floor
Carson City, NV

Interested in more water quality activities?  Check out our blog on NDEP’s last Integrated Water Quality Report for 2020-2022 and stay tuned for the next Integrated Water Quality Report Comment Period in 2023. 

Nevada Division of Water Resources (“NDWR”) has drafted proposed water related regulations and the public is encouraged to get involved by attending the upcoming workshops. The draft regulations concerning water use are R169-20 (concerning extensions of time) and R170-20 (concerning Water Right Surveyor licenses).

R169-20
This draft regulation proposes, among other things, to include new definitions such as defining “beneficial use,” “perfecting an appropriation” and “steady application of effort.” The proposed regulation also adds additional requirements necessary on an Application of Extension of Time to file a proof of completion and/or proof of beneficial use. The proposal provides guidelines for evidence the State Engineer can consider in determining if the applicant has demonstrated significant action toward perfecting their appropriation when considering whether to grant a requested extensions. The workshop for this proposed regulation will take place on January 13, 2021 at 9:00 am.

R170-20
This draft regulation proposes additional definitions and requirements related to Professional Engineers, Professional Land Surveyors and appointed state Water Right Surveyors as well as proposed disciplinary actions against surveyors. The workshop for this regulation will take place on February 5, 2021 at 9:00 am.

The upcoming workshops are anticipated to be held virtually. The current deadline to provide public comment is through the date of the workshops.

If you would like to participate in the water related proposed regulations, please consider attending the workshops!

This post is one of a series highlighting the ways in which water users have adapted to life in the time of COVID-19.

Todd Nash is a rancher, Wallowa County Commissioner, and President Elect for the Oregon Cattlemen’s Association. He and his wife, Angie, own Nash Natural Beef. They run primarily an angus cow-calf operation in eastern Oregon, also raising a few bulls. They raise high quality natural beef (no antibiotics or hormones) in Wallowa County. Their cattle is grain finished in a custom yard in Vale, Oregon. The majority of Nash’s cattle go through the feed yard before harvest. Then, they become part of Painted Hills Natural Beef for sale in restaurants and high-end supermarkets. This year, however, COVID-19 created a disruption in the meat distribution chain. This caused Nash to change their business model to focus on direct customer sales.

Disruption to the Meat Distribution Chain

The COVID-19 virus created a meat processing bottleneck. Some of the larger packing plants shut down or slowed down due to sick employees. Nash received information in early 2020 that he should try to sell cattle on his own due to this challenge. The concept of direct customer sales was not totally foreign to Nash. They had done something similar in 2008 during the economic recession. This year, they shared their plans to take whole and half beef orders on Facebook. They worked directly with three local processors: Boston Beef House in Ontario, Hines Meat Company in La Grande, and Valley Meat Service in Wallowa. Customers paid only $2.50 per pound hanging weight, as well as the butchering fees. Most of the other sales Nash saw were over $3.00 per pound. This allowed customers to buy Nash Natural Beef at very affordable prices.

Nash was humbled and overwhelmed by the enthusiastic response they received from customers both near and far. They sold out their entire fat cattle crop in May. The animals were harvested in June and July. Customers were able to pick up their beef directly from the nearest of the three processors, rather than delivering the beef as they had done in 2008. Customer reviews were also spectacular. Nash Natural Beef has always focused on genetics and DNA markers for tenderness and marbling. They take a lot of pride in the product they raise. It was very rewarding for Nash to have a direct connection with Nash Natural Beef’s customers and to share in their enjoyment of Nash’s high-quality beef.

A Growing Need for Small Processors

Nash says that 2020 has really highlighted our vulnerabilities from concentrating U.S. food systems, and the need for small processing facilities throughout Oregon. In general, livestock producers in Oregon must sell their meat using United States Department of Agriculture (“USDA”) inspected facilities. It is very expensive for small processors to become USDA certified and hire additional staff. Additionally, staffing can be difficult in the meat processing industry. This results in a lot of meat being processed in large, out-of-state facilities. An exception to this rule is called “custom-exempt” processing. This allows non-USDA, state-licensed facilities to slaughter and process livestock for the exclusive use of livestock owners, their family, and nonpaying guests. As such, persons can purchase live animals for processing at “custom-exempt” facilities. However, “custom-exempt” sales are usually limited to whole or half beef sales due to the need to purchase the live animal. This excludes the ability to buy and sell small quantities and specific cuts.

Nash gave an interview for the Oregon Cattlemen’s Association earlier this year on the topic of the PRIME Act (Processing Revival and Intrastate Meat Exemption Act). The Act, cosponsored by Oregon Congressman Greg Walden, would expand the exemption for state-licensed “custom-exempt” facilities. The Act would allow meat distribution to household consumers within the State, as well as restaurants, hotels, boarding houses, grocery stores, or other establishments in the State that are involved in the preparation of meals sold directly to consumers or offer meat and meat food product for sale directly to consumers in the State. Nash says that the PRIME Act would help keep beef produced in Oregon in the State. It would provide more economic opportunities for Oregon’s rural communities. And it would allow consumers to trace where their meat is being raised and processed. Nash has seen first-hand that customers really appreciate knowing how and where their meat is raised and having a direct connection with their rancher.

Better Days Ahead

Post-COVID, Nash is looking forward to a better market and higher cattle prices. He has worked through the challenges that have come with COVID-19, and is optimistic that better days are ahead. He thinks that Nash Natural Beef will continue doing direct customer sales in the future. They have already received orders for next year, and cattle will be ready in May or June of 2021. Contact Nash Natural Beef directly for more information! Additionally, the Oregon Cattlemen’s Association started a directory of members who are willing to sell beef cattle directly to customers.

When asked whether he enjoys being a rancher, Nash explains that if he did anything else, anywhere else, ranching in Wallowa County is what he would want to do on vacation. Nash enjoys the independence of raising his own cattle, and the comradery that is shared with other ranchers. There is always something to do every day and a reason to get out of bed. Although COVID-19 has been difficult, he is looking forward to having a closer relationship with customers going forward. He is hopeful that a fix to current federal laws will create more opportunities for small, local producers to provide Oregon residents with the wonderful beef that is raised in-State.

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

What is the Agriculture Innovation Agenda?
The USDA seeks to stimulate agriculture innovations that by 2050 will (1) increase agricultural production by 40%, and (2) reduce the environmental footprint of U.S. agriculture by half. Other benchmarks include:

• Reduce food loss and waste by 50% by 2030
• Build landscape resiliency by investing in active forest management and forest restoration through increased Shared Stewardship Agreements with states
• Enhance carbon sequestration through soil health and forestry, capitalize on innovative technologies and practices to achieve net reduction of the agricultural sector’s current carbon footprint by 2050
• Improve water quality; reduce nutrient loss by 30% nationally by 2050

In the recent comment by Society for Range Management, it makes an excellent point that the USDA proposal neglects consideration of “the contributions of rangelands to agriculture production in the U.S. Native rangelands cover nearly one third of the total land area of the U.S. and are a major source of forage for livestock production in the western U.S.”  If truly the objective by 2050 is to increase agricultural production by 40% and reduce the environmental footprint of U.S. agriculture by half, then rangelands must be considered.  USDA must build “landscape resiliency by investing in active forest management and forest restoration through increased Shared Stewardship Agreements with states,” and build landscape resiliency by investing in active rangeland management and, as applicable or needed, rangeland restoration through increased Shared Stewardship Agreements with Permittees dependent upon federal land use and with the applicable States. 

How to Submit Comments?

1. Register your comments using the Federal eRulemaking Portal
2. Cite the proposed Agriculture Innovation Agenda
3. Submit written comments by August 1, 2020

Sources:
Society for Range Management Comments
USDA Press Release
Agriculture Innovation USDA white paper

By Therese Ure and Lisa Mae Gage

Nevada Division of Water Resources (“NDWR”) submitted draft administrative regulation amendments to the Legislative Council Bureau for this regulation cycle (the proposed amendments can be found at http://water.nv.gov/documents/NDWR_Prop_Admin_Regs-Hearings_EOT_Water_Right_Surveyor_6-8-2020.pdf ). A public workshop concerning the administrative regulation amendments was hosted by NDWR on June 24, 2020 wherein NDWR received public comments during the workshop and subsequent written comments. Since the workshop NDWR has made revisions to the proposed regulation amendments based on the comments received.

In an effort to keep the public informed of its revised regulation amendment proposal, and in order to allow the public continued opportunity to provide comments, NDWR has advised that 1) it has created and is maintaining an email distribution list to provide communications concerning its ongoing revisions; 2) it is planning on holding at least three (3) additional public workshops prior to the beginning of the 2021 legislative session; 3) it will provide bi-monthly updates regarding the planned workshops; and 4) it does not intend to take the regulations to a public hearing until after the 2021 legislative session concludes.

To stay informed and up-to-date on these possible administrative regulation changes that may affect water right holders throughout the state of Nevada, we suggest signing up for updates via NDWR’s email distribution list. Instructions for subscribing to the notification list can be found by visiting http://water.nv.gov/documents/AdminRegs%20Listserv%20Instructions.pdf.

In the second COVID-19 webinar, Laura Schroeder and Sarah Liljefelt discussed what to do when you receive a notice of cancellation of your water right in Oregon. The webinar aired originally on April 22, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!. Stay tuned to our blog for announcements for information about the next webinars! You can view the other webinars in the series here.

Learn the basics about water rights cancellation, including the types of cancellation applicable to different water use rights, the steps in the process, and how to address or challenge the agency’s cancellation decision. Receive practical information to protect your water use rights, determine if water use rights are in good standing when purchasing new property, and conduct assessments of the water use rights on property you already own. Topics will include:

• Regulation of Exempt Uses
  • What are exempt uses?
  • Can exempt uses be cancelled?
• Cancellation
  • What kinds of water use rights can be cancelled?
  • What is the process for cancellation?
  • How does one address or challenge a cancellation decision?
• Voluntary Cancellation or Abandonment
  • What is abandonment?
  • Why would anyone abandon a water use right?
• Avoiding Cancellation
  • How can a person protect their water use rights from cancellation?
  • What are the best kinds of records to maintain to protect water use rights?

The COVID-19 Webinar series will continued in following several weeks, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Later webinars will cover common water-related issues, including well construction issues, and illegal water uses. Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

It’s time to call your Congressman—House Bill H.R. 5737, introduced on January 30, 2020 proposes the implementation of procedures to permanently retire federal grazing allotments.

H.R. 5737 or the “Voluntary Grazing Permit Retirement Act” (the Act) proposes the ability of grazing permittees to sell or “waive” their right to graze under their Bureau of Land Management (BLM) or Forest Service grazing permit. The permittees would be compensated for the waiver, however, the BLM or Forest Service would then be barred from permitting any further grazing on the allotment under the permit. For allotments that are covered by multiple permits, the managing agency would be forced to permanently reduce the grazing level by the amount in the waived permit. The BLM and Forest Service would have no say in the retirement of the allotment, nor receive any compensation for its retirement.

The Act as proposed will present a conflict with the Taylor Grazing Act (TGA) and the Federal Land Policy Management Act (FLPMA) by claiming cattle grazing should be “simply removed” in favor of the multiple uses of federal land, such as recreation and wildlife. Both the TGA and FLPMA recognized and protect grazing on federal land as an intended multiple use, and the Act fails to make this recognition. 

The Act also appears to misunderstand the nature of cattle grazing permits, which are generally have 10 year terms. Yet, it will allow the termed permittee to waive any future grazing on the allotment through waiver of their current grazing rights. The Act allows for the retirement of 100 grazing permits per year, with up to 25 in any one state. 

The implementation of this Act as proposed, will likely result in the devastation of public lands grazing and the cattle industry in Western States. The Act proposes no administrative review nor even notice for the waiver of a grazing permit, resulting in permanent retirement of a grazing allotment. Rather it places the management and control of federal land grazing in the hands of the permittee and third parties, mainly environmental groups seeking permanent retirement of grazing areas. 

The Act is supported by numerous environmental groups including the Sierra Club, Natural Resource Defense Council, Defenders of Wildlife, Center for Biological Diversity, Wilderness Watch, the Lands Council, and Southern Utah Wilderness Alliance. It also currently has 10 Democratic cosponsors. 

The Act is currently opposed by the National Cattlemen’s Beef Association and Public Lands Council.

Call your Congressman today to provide your opinion on this Act.

The full text of the Act can be found at:  https://www.congress.gov/bill/116th-congress/house-bill/5737/text

For a more in-depth review, please review the Voluntary Grazing Permit Retirement Act article.

Photo Credit: https://www.agweb.com/article/key-things-to-know-about-federal-land-grazing-in-the-west-NAA-associated-press

Oregon dairy farmers produce great milk products for the northwest! Jakob Wiley attended the Oregon Dairy Farmers Association (“ODFA”) conference in Salem, Oregon this February. The conference included a fascinating keynote presentation by Alison Van Eenennaam of UC Davis. Her presentation addressed the intersection of climate change, dairy products, and cultured meat. Cultured meat is difficult to manufacture at any commercial scale. Her conclusion: cultured meat won’t be available anytime soon. 

Additionally, other topics at the Oregon Dairy Farmers conference included the carbon footprint of dairy products and the looming carbon cap and trade bill, resulting in the flight of Republican lawmakers just before and during the conference. A presentation by Troy Downing at the OSU Extension Service discussed the carbon cycle and its effects on climate. Likewise, David Grimes of the World Meteorological Organization discussed increasing variability in climate. Later, attendees mingled during the receptions with ODFA leadership, other dairy farmers, local businesses, and state lawmakers (at least those still in town!).

At least 200 multi-generational dairy farms provide milk products to Oregon consumers. All of these dairy farms have a “Grade A” license. These licenses allow production, transportation, and processing of milk for sale. You can find more information about dairy licenses here.

Later, attendees tried new products from local dairy companies, sampled ice cream, and visited with local vendors. You can find more information about the Oregon Dairy Farmers conference here. Jakob continues to support ODFA members and assist with their water right problems!

            The Oregon Water Resources Department (“OWRD”) does not use a single definition of an aquifer. Instead, it uses different applications of the word depending on the context. Scientifically, there is a generally accepted definition (which we discussed here: https://www.water-law.com/who-owns-an-aquifer/): “body of permeable rock which can contain or transmit groundwater.”^[1] Depending on the location, context, and situation, OWRD and other state agencies might use a different definitions for “aquifer.” Each of these definitions have their own features, potentially leading to different interpretations.

OWRD’s General Definition

            OWRD generally defines an aquifer under Oregon Administrative Regulation (“OAR”) 690-200-0050(9) as “a geologic formation, group of formations, or part of a formation that contains saturated and permeable material capable of transmitting water in sufficient quantity to supply wells or springs and that contains water that is similar throughout in characteristics such as potentiometric head, chemistry, and temperature (see Figure 200-2 [above]).” Potentiometric “head” is akin to the pressure of the water at a given location.

            Compared to the scientific definition outlined above, OWRD restricts aquifers to those with similar potentiometric head, chemistry, and temperature. Aquifer characteristics can vary from location to location while still being within the same hydraulically connected system, called “anisotropic” or heterogeneous conditions. Permeability, water quality, and temperature can vary within an aquifer under the scientific definition above, but OWRD’s general definition does not allow for anisotropic conditions in a single aquifer.

“Aquifers” in the Upper Klamath Basin

            Another definition of “aquifer” is located in the newly adopted rules in OAR Chapter 690, Division 25. These rules are restricted to the Upper Klamath Basin and supplant the Division 9 rules during 2019 and 2020 only. Under these rules, “groundwater reservoir” or “aquifer” is defined as “a body of groundwater having boundaries which may be ascertained or reasonably inferred that yields quantities of water to wells or surface water sufficient for appropriation under an existing right of record.” OAR 690-025-0020(4).

            This definition merges the groundwater (the contents) with the aquifer (the container). Interestingly, this definition restricts the “aquifer” to areas that produce water “under an existing right of record.” This definition combines physical aspects, legal rights, and geographic components into a single non-scientific definition.

“Hydraulic Connection” under Divisions 9 & 25

            Oregon Revised Statute Chapter 690 Division 9 regulates conjunctive management of surface water and groundwater throughout the State. The regulations prescribe when new groundwater appropriations may be allowed, and when existing groundwater use rights must be regulated off in times of shortage when a senior surface water call is made. The Division 25 rules supplant the portion of Division 9 for the Upper Klamath Basin related to regulation of existing groundwater use rights.

          Under the Division 9 regulations, “hydraulic connection” means “water can move between a surface water source and an adjacent aquifer.” Under the Division 25 rules specific to the Upper Klamath Basin, however, “hydraulically connected” means “water can move between or among groundwater reservoirs and surface water.” Further, OWRD applies these differing definitions exactly the same, regulating down to deep, confined aquifers under Division 9 that are not “adjacent” to the surface water source, much as one would imagine OWRD doing under the more broad Division 25 definition that talks about water movement between various groundwater reservoirs.

Well Construction & Commingling Rules

            Another version of “aquifer” is found in OWRD’s well construction rules. OAR 690-200-0050(9) defines “aquifer” as a “geologic formation, group of formations, or part of a formation that contains saturated and permeable material capable of transmitting water in sufficient quantity to supply wells or springs and that contains water that is similar throughout in characteristics such as potentiometric head, chemistry, and temperature.”

           Under OAR 690-200-0043, a water supply well cannot be “constructed in a manner that allows commingling or leakage of groundwater by gravity flow or artesian pressure from one aquifer to another.” OWRD interprets its rules to prohibit comingling of groundwater between aquifers even when no water is currently present at the location of an alleged aquifer. Such is the case when a well is deepened due to the original water bearing zone no longer producing water. OAR 690-215-0045(4) prohibits the deepening of a well in such a way that will “result in commingling of aquifers.” OWRD interprets this rule to require sealing off the now-dry layers from the deeper water-bearing layers. Here, OWRD’s interpretation of an aquifer addresses the potential for commingling of groundwater, not actual commingling. In this case, the term “aquifer” refers to groundwater potentially, but not actually, present in a former water-bearing zone.

            When a well is constructed, the well driller submits a report called a “well log” to OWRD. These logs show the various types of soils and water bearing layers found during the course of the drilling. OWRD does not require well drillers to be certified geologists, so these descriptions are often informal and not scientifically reviewed. Well logs typically do not include potentiometric head, chemistry, or temperature information for each water-bearing zone encountered in a well. Thus, whether a water-bearing zone constitutes a distinct aquifer is a challenging question when only reviewing a well log without the scientific information required in the definition above.

            OWRD does not typically review well logs unless an issue arises. A bill introduced in this legislative session, H.B. 2331 A (2019), would have required OWRD to review well logs when received by the agency: https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB2331. However, this bill remained in committee and was not adopted. Therefore, OWRD continues at the present time to review well logs inconsistently and sometimes not until decades after well completion, and it can sometimes be challenging for drillers to identify separate aquifers for the purpose of meeting well drilling standards due to OWRD’s differing and numerous aquifer definitions.

DEQ Rules

          To compare with OWRD, the Department of Environmental Quality’s (“DEQ’s”) rules, defines aquifer as “an underground zone holding water that is capable of yielding a significant amount of water to a well or spring.” OAR 340-044-0005(2). This definition is the most similar to the scientific definition above, without the restriction to a certain characteristic (like water quality) or legal status (like status of water rights or ascertainable boundary).

Conclusion

            The definitions for “aquifer” used by OWRD and DEQ deviate from the generally accepted scientific definition. Under the scientific definition, the permeable rocks define the extent of the aquifer (even if no water is present at the time). Under both OWRD and DEQ definitions, the water-filled-portion of the aquifer determines its extent, rather than the permeable rock “container” for the groundwater. Further, OWRD’s definitions add other characteristics, like potentiometric pressure, chemical, temperature, ability to determine a boundary, location in proximity to surface water, or legal right to the basic scientific term, though it is questionable whether OWRD gives due regard to these additional elements, and OWRD usually regulates groundwater in the most restrictive manner regardless of the applicable definitions in each context. As groundwater management controversies continue, the differences between these definitions may (and should) come under additional scrutiny.

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

[1] Oxford Online Dictionary, https://www.lexico.com/definition/aquifer

The adoption of efficient water technologies is identified as a goal under Oregon Water Resources Department’s (“OWRD”) 2017 Integrated Water Resources Strategy (https://www.oregon.gov/OWRD/programs/Planning/IWRS/Pages/default.aspx). For agricultural uses, weather-based irrigation, soil moisture controls, computer controlled irrigation, and piping and drip irrigation systems are being developed to substantially reduce the amount of water applied to land for the same use. At first glance, the adoption of efficient irrigation technology appears to be a “no-brainer” with few downsides. However, the problem can be more complex than it first appears.

A core tenant of prior appropriation is the prevention of “injury” to existing water rights by reducing water available to fulfill existing rights of use. A component of a water right is the “consumptive use” or the amount of water for which the water user loses control usually from a described place of use or otherwise does not return to the source, the excess becomes available for subsequent use. Efficient irrigation technology alters irrigation’s consumptive use and runoff, sometimes reducing the water available to other water users that were benefitting from the “waste” created by inefficient irrigation techniques.

Often, inefficient irrigation seeps into shallow aquifers, sometimes contributing to surface streams days, months, or years later as return flow. Oregon’s conjunctive management rules have attempted to jointly regulate surface and groundwater sources, as described by Oregon Administrative Rules, Chapter 690, Division 9, yet these rules do not directly account for the effects of irrigation seepage on return flows. By encouraging efficient irrigation technologies, OWRD’s strategic planning might inadvertently cause injury to downstream water users that benefit from the increased return flow due to current irrigation techniques.

The United States Supreme Court (“Court”) addressed this issue in the case Montana v. Wyoming. 563 U.S. 368 (2011). The Yellowstone Compact distributes water of the Yellowstone River, which flows north from Wyoming into Montana. Water users in Wyoming adopted the use of more efficient sprinkler irrigation systems. The sprinklers increased the consumptive use portion of the water withdrawn compared to the earlier flood irrigation where a portion of the excess seeped into the ground. Montana alleged that the switch in technologies reduced seepage and runoff by 25% in some locations while still diverting the same quantity of water. In short, Montana lost access to water due to the increase in “efficiency” by Wyoming water users.

The Court decided that the switch did not cause injury to Montana water users, since these states appeared to only apply these rules to changes in “place of diversion, place or purpose of use” and not to changes in “crop changes or day-to-day irrigation adjustments or repairs.” The Court reasoned that a switch to efficient irrigation was more like an adjustment or repair than a change that would prompt the injury analysis. Likewise, the Court reasoned that the transition to sprinklers was akin to recapture doctrines under Wyoming and Montana, which allow water users to reuse water still remaining on their land after initial use. The Court reasoned that sprinklers are a form of efficient reuse of water rather than a fundamental change in water use supporting injury. The Court decided that Wyoming water users did not violate the Yellowstone Compact by using efficient irrigation technologies, even when significantly less water flowed to Montana.

The United States Government Accountability Office has recently released a report on irrigation technologies and their effects on return flows: https://www.gao.gov/products/GAO-20-128SP?utm_campaign=usgao_email&utm_content=daybook&utm_medium=email&utm_source=govdelivery#summary. The report notes that efficient irrigation can expand the area of irrigation, enabling more production, using the same volume of water. At the same time, the report identifies that return flows might be significantly reduced and might diminish water availability for downstream users.

The key issue to consider is if water that seeps into an aquifer is considered a part of the consumptive use or whether it is returned to a source for further use. If consumption only includes the volume of water used by plants, other water users might have a right to the runoff from inefficient irrigation practices (which fits more with Oregon’s conjunctive management policies). If consumption is any water placed on the land without regard to the destination of the water applied, any reduction in return flow might not be considered an injury. As efficient irrigation practices are increasingly adopted, the dark side of decreased runoff might rise as a real issue in the future!

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

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!