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.

           The Nevada Division of Water Resources (NDWR) proposes substantial changes to Nevada’s water right procedures.  The agency first announced the proposed changes when it released a Small Business Impacts Survey on June 1, 2020. The survey invited participants to state if they believed the proposed regulation amendments would impact small businesses.  NDWR followed the survey on June 8, 2020 with a Notice of Public Workshop. The notice invites interested citizens to attend and give general input on the proposed amendments. 

Rulemaking Procedures

            NDWR is unique in Nevada. Unlike most Nevada agencies, NDWR is not bound by Nevada’s Administrative Procedure Act (“APA”).  The APA governs how Nevada agencies must conduct rulemaking.  Although NDWR is not strictly bound by the APA, it elects to follow APA rulemaking procedures. 

            Rulemaking under the Nevada APA is a seven-step process.  The agency must:

• • 1. Consider impacts on small business;
    2. Conduct a public workshop;
    3. Draft proposed regulations;
    4. Publish a 30-day Notice of Intent to Adopt Regulations;
    5. Hold a public hearing;
    6. Consider public comment; and
    7. Adopt final regulations.

Here, NDWR completed a small business impact review, drafted proposed regulations, and provided 15-day notice for its public workshop.  The workshop will take place at 9 AM on June 24, 2020.  Due to ongoing Covid-19 restrictions, the workshop will occur via telephone and skype.  Information for joining the workshop can be found on the Notice of Public Workshop.

            Interested citizens should also monitor http://water.nv.gov/ for the Notice of Intent to Adopt Regulations.  NDWR has not issued this notice.  However, a Notice of Intent to Adopt Regulations must include the date, time, place, and manner by which the public can submit comment.  NDWR will provide 30 days after the notice for the public to provide comment. NDWR will also hear oral comments at the public hearing.  

Proposed Changes

            The regulations propose substantial changes to Nevada Administrative Code (“NAC”), Chapter 533. The chapter governs the administrative process for permitting and certificating water rights.  You are highly encouraged to review the proposed changes here. However, some proposed changes to note include:

• • Definitions of “beneficial use” and “significant action”;
  • NDWR discretion to allow intervenors in Protest Hearings;
  • Changes regarding applications for extension of time:
    • Permittee must state number of extensions previously granted;
    • Permittee must show steps towards beneficial use since last extension granted;
    • Permittee must submit supporting documents justifying extension;
  • Provisions outlining publication of notice when permittee has received 10 or more years of extensions;
  • Procedures for protests to extension applications; and
  • Additional provisions and procedures regarding Water Right Surveyor Licenses.

Public Participation

                   Public participation is inherent in an agency’s rulemaking process.  If these changes affect you, exercise your right to participate in the process by attending the June 24, 2020 workshop, submitting public comment pursuant to the Notice of Intent to Adopt Regulations, and attending the upcoming public hearing.   

(Image Credit: https://www.bbklaw.com/news-events/insights/2018/authored-articles/12/public-comment-time-limit-ok-d-by-court,http://water.nv.gov/documents/AB%2062%20Informal%20Public%20Workshops.pdf )

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

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

Assembly Bill 62 (AB 62)

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

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

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

Assembly Bill 95 (AB 95)

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

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

Senate Bill 140 (SB 140)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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).

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“agencies”)  issued a supplemental notice of proposed rulemaking to seek additional comments on the repeal of the 2015 “waters of the United States” rule under the Clean Water Act (“2015 WOTUS Rule”).

In July 2017, the agencies first issued a notice of a proposed rulemaking to repeal the 2015 WOTUS Rule. On February 6, 2018, the agencies published a final rule in the Federal Register adding an applicability date of February 6, 2020 to the 2015 WOTUS Rule, but at that time the agencies did not repeal the 2015 WOTUS Rule. The applicability date of February 6, 2020, makes it such that the pre-2015 regulatory definition of waters of the United States will be in effect until February 6, 2020 or until the 2015 WOTUS Rule is repealed. For additional background, see Schroeder Law Offices blog post, available here.

The agencies issued the supplemental notice to provide the public an opportunity to comment on additional agency considerations to support the repeal of the 2015 WOTUS Rule that were not discussed in the July 2017 notice of proposed rulemaking. The supplemental notice also aims to clarify that the agencies’ July 2017 proposal would completely and permanently repeal the 2015 WOTUS Rule in its entirety, replacing it with the pre-2015 regulatory definition.[1]

The supplemental notice also provides an additional comment period for interested parties to consider new factors and reasoning the agencies recently published as further support for the agencies’ decision to consider repealing the 2015 WOTUS Rule.[2] The additional information and comment period provided by the supplemental notice may also be designed to strengthen the July 2017 rulemaking process as any final rule will inevitably be challenged in a lawsuit.[3]

While the pre-2015 waters of the United States regulatory definition is in effect, the agencies will draft a new regulatory framework to define “waters of the United States.” The agencies will then publish a proposed rulemaking in the Federal Register to adopt a new definition.[4]

The public has 30 days to comment on the supplemental notice of proposed rulemaking. The comment period closes August 13, 2018.

[1] EPA New Release, EPA and Army Seek Additional Public Comment on ‘Waters of the U.S.’ Repeal (June 29, 2018) https://www.epa.gov/newsreleases/epa-and-army-seek-additional-public-comment-waters-us-repeal.

[2] Environmental Protection Agency, Definition of Waters of the United States-Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018) https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15104.

[3] Juan Carlos Rodriguez, EPA, Corps Expand Legal Case Against Obama Water Rule, Law360 (June 29, 2018) available at https://www.law360.com/articles/1059064/epa-corps-expand-legal-case-against-obama-water-rule.

[4] EPA, Waters of the United States (WOTUS) Rulemaking, https://www.epa.gov/wotus-rule/step-two-revise.

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!

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!

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

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

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

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

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

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

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

Stay tuned as Schroeder Law Offices brings you updates!

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

On January 23, 2018, after more than 10 years of discussion and revision, the Washington Department of Ecology adopted the Reclaimed Water Rule. The Rule will go into effect on February 23, 2018. You can read the Rule in its entirety here.

Reclaimed water has long been used in the State of Washington for industrial, commercial, and construction purposes, as well as a way to replenish wetlands and aquifers. The Revised Code of Washington Chapter 90.46, put into effect in 1995, governs the acquisition, use, and treatment standards for reclaimed water, and establishes the permitting process for both wastewater discharge and reclaimed water use. The goal of the newly-enacted Reclaimed Water Rule is to work hand-in-hand with this existing legislation to streamline the process of acquiring permits and to make clear the methods and standards of treatment required in order for wastewater to be deemed acceptable for commercial, industrial, and institutional uses.

By making the route to reclaiming water more straightforward, the Department of Ecology hopes to encourage water users to limit their discharge of wastewater back into the environment and decrease overall draw from groundwater sources to preserve limited water resources, particularly during the dry summer months. If reclaimed water can be used in the place of potable water for purposes like flushing toilets or watering lawns, the impact of these activities can be substantially mitigated. A good overview of the potential uses and benefits of reclaimed water can be found on the Department’s website.

One of the main concerns about the Reclaimed Water Rule, and a major reason why it remained on the back burner for the better part of 12 years, is the potential for infringement upon senior water users’ rights. By reclaiming water that would otherwise flow into streams, lakes, or aquifers and reusing it without it being reintroduced into the originating source of water, the amount of water available to water right holders that had access to those “returns” could be diminished. As a result, the Rule was amended to include provisions for compensation and mitigation should such infringement occur; however, consistent with procedure for issuing all water right permits, no permits shall be issued to projects that impair the rights of senior water users.

While reclaimed water is not designated as drinkable, it is still subjected to strenuous testing and treatment processes similar to those which drinking water undergoes. Following initial treatment at a water treatment plant, wastewater is further filtered, disinfected, and repeatedly tested to ensure that it can be safely introduced into the environment. Once it has been approved as safe, reclaimed water can be used to irrigate crops, fight fires, clean streets, and control dust, among other uses. The Washington State Department of Health issued a “Frequently Asked Questions” memorandum last summer, (available on their website) that briefly details the public health protections covered in the Reclaimed Water Rule.

If you are interested in learning more about the Reclaimed Water Rule and the permitting process, the Washington Governor’s Office for Regulatory Innovation and Assistance has assembled an overview that provides greater detail about the Rule and the application process.

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

By: Lisa Mae Gage and Therese Ure

On September 27, 2017, the Supreme Court of the State of Nevada issued an opinion concluding the longstanding battle between the Nevada State Engineer, Nevada Division of Water Resources and Kobeh Valley Ranch LLC (“KVR”), and Eureka County, Kenneth F. Benson, Diamond Cattle Company, LLC., and Michel and Margaret Ann Etcheverry Family LP regarding the Nevada State Engineer’s issuance of water use permits to KVR. This dispute involved KVR’s proposed future mitigation plan. After several appeals and remands before the Nevada Division Water Resources, the Seventh District Court in Eureka County and the Supreme Court of Nevada, the matter ended.

The Etcheverry family, among others, fought for over seven years to protect their senior permitted and vested water rights from the impacts proposed by a series of change applications filed by Kobeh Valley Ranch. Evidence presented before the Nevada Division of Water Resources and the Courts showed conflicts to senior users would unarguably occur. Kobeh Valley Ranch asserted that it may be able to mitigate the conflicts through a proposed future mitigation plan. Without any guarantee that a proposed future mitigation plan would in fact protect the senior rights of water users, senior users fought back. This fight ended with a Supreme Court decision upholding the prior appropriation system, protecting senior water right holders and preventing a party such as KVR from circumventing the statutory requirements put in place to protect existing rights.

After the repeated appeals and remands and dragging the parties through multiple contests and court challenges, the Supreme Court offered a reprieve finding “KVR is not entitled to a second bite at the apple after previously failing to present sufficient evidence of mitigation”… and “KVR is not entitled to a do-over after failing to provide substantial mitigation evidence.” State Eng’r v. Eureka Cty., 133 Nev., Adv. Op. 71 (2017). Although it may seem like a small win to the parties to the matter, it is also a great victory in the battle to protect our valuable water resources.

Today is World Food Day and we see many promoting their initiatives to fight hunger as they celebrate October 16, 1945 – founding day of the Food and Agriculture Organization of the United Nations.

One of Schroeder Law Offices’ missions is to support people feeding the world. We do this by offering legal services for those farmers and ranchers out there who are growing crops to feed the world, or otherwise contributing to the food and fiber industries in this and other countries.

Just this summer, we toured our clients’ properties learning how they are using technology and advancements to increase their crop yields on the same acreage with the same water use. We also learned how our clients are working with nutritionists to feed cattle in the optimal fashion to raise beef and other meat sources. We are proud that we can support our clients’ water needs in their pursuit to sustainably feed the world!

What are you doing for World Food Day?

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

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

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

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

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

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

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

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

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

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

Co-Authored By: Attorney Therese Ure & Lisa Mae Gage

In August 2015 the United State Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) put their stamp of approval on the Waters of the United States (“WOTUS”) final rule. The WOTUS rule significantly expanded the definition of “waters of the United States” under the Clean Water Act, granting federal regulatory control over virtually all waters in the United States. Many groups opposed this rule, arguing that it expands federal jurisdiction, resulting in the imposition of burdensome requirements on agricultural producers.

On February 28, 2017, President Donald Trump signed an executive order directing the Administrator of the EPA and the Assistant Secretary of the Army for Civil Works to review the WOTUS rule to ensure the nation’s navigable waters are protected, as well as to promote economic growth and show due regard for the roles of Congress and the States. See https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

President Trump also directed the administrators, along with the heads of all executive departments and agencies, to consider interpreting the term “navigable waters” as it is defined in 33 U.S.C. 1362(7), and consistent with the opinion of late Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Considering these interpretations, one might construe “navigable waters” as waters in the United States, including the territorial seas, that are “navigable in fact” or readily able of being so.

This executive order was preceded by a House Resolution . See https://www.congress.gov/bill/115th-congress/house-resolution/152/text. The Resolution states WOTUS should be withdrawn or vacated as the EPA and Corps did not follow proper procedural steps and claimed expansive jurisdiction that infringes upon State authority.

Several agricultural groups are strongly supporting the House Resolution and the Executive Order. As water is a valuable resource to all, regulation upon it must be closely scrutinized and controlled. According to the agricultural community, President Trump’s executive order and the House Resolution regarding WOTUS is a welcomed relief.

On February 1, 2017, Laura Schroeder, Alan Schroeder, and Therese Ure had the honor of attending the Society of Range Management’s Award Ceremony to honor friend of Schroeder Law Offices, P.C. and Schroeder & Lezamiz Law Office, LLP, Al Steninger, in the receipt of the Sustained Lifetime Achievement Award. From the words of the Society for Range Management:

Al Steninger joined the Society for Range Management in 1961, and is a life member. A native of Elko, NV, Al has had a varied career. He’s been a buckaroo, a ranch manager, eared his BS/MS from Colorado State University, worked as a BLM Area Manager, range consultant, ranch broker, appraiser and arbitrator. Since 1968, he has operated Western Range Service and Nevada Ranch Service in Elko serving private clients west-wide. Al has improved management on millions of acres of rangeland. In all phases of his work, Al has maintained adherence to scientifically-based range management strategies. Al advocates that good range studies result in good range management decisions. Not only has he collected data, interpreted data, and turned data into management, he has applied the data on-the-ground on several large ranges he managed or advised, bring innovative range management into practice. Al’s consulting is built on strict ethical standards; he believes his clients deserve the truth based on facts. His brokerage and arbitration policy is: be thorough, be transparent, and provide service and ethics which are beyond reproach. His integrity has attracted collaboration with top scientists and educators in range management in conducting range studies and expert testimony. As part of a pioneering Elko family, Al has been active in support of the Elko County Fair, Northern Nevada Community College, Elko Historical Museum, and other civic projects. For his long-time efforts to combine good science with practical experience in managing rangelands The Society for Range Management recognizes Al Steninger with a 2017 Sustained Lifetime Achievement Award.

Schroeder Law Offices, P.C. and Schroeder & Lezamiz Law Office, LLP sponsored a reception after the Award Ceremony to honor Steninger’s achievements which was attended by 40-50 of Steninger’s range management colleagues. We were honored to be a part of this celebration.