I was able to attend the Rocky Mountain Mineral Law Foundation’s course on Advanced Public Lands held in Santa Fe this January. Between all agencies, there is approximately 652 million acres of federally managed lands. Given the timing of the conference, many speculated and discussed what development of public lands might bring under the current Trump Administration. Many speculate that this Administration will bring more of a use, disposal and/or privatization model.

Various models of public lands use have come and gone throughout the history of the US including Acquisition, Disposal, Privatization, Retention, Management, and Nature Conservation, among others. With many forces driving our models including population growth, energy development, increased recreation and environmental values, and limited natural resources, it will be interesting to see how this is all balanced in the next four years.

Those at the RMMLF conference speculate that we will see reform to the ESA, Antiquities Act, Federal Land Transfers, Energy Initiative, Land Use, and Ocean Withdrawal Orders. There is speculation that the President will revise National Monument Orders and/or reverse several of the Executive Orders signed in the last months of the Obama Administration. Will there be administrative reform on the coal moratoriums, climate initiatives and BLM plan and regulations? Exciting times are ahead as we are in a front seat to watch history change with regard to public land use!

During the month of January, the Nevada Cattlemen’s Association is hosting a series of workshops around the state regarding grazing permits on federal lands. The Bureau of Land Management and U.S. Forest Service agencies (and other agency representatives) will be giving presentations on their plans to implement land use changes that have been established for managing federal lands.

Materials to be reviewed during the meetings include the January 5, 2015 Order No. 336 by the Secretary of the Interior regarding Rangeland Fire Prevention, Management and Restoration policy and strategies, as well as resource management plans as drafted by the BLM. Attendees are strongly encouraged to review the materials to be informed prior to attending the meetings.

There will be five workshops beginning in mid-January in locations across the state; Nevada. Meetings will be held in Winnemucca, Elko, Ely, Battle Mountain and Fallon, more information regarding location and time can be found below or by contacting the Nevada Cattlemen’s Executive Director, Kaley Sproul, at (775) 738-3214.

• January 17: 2-6:30pm, Winnemucca, Humboldt Coop Extension

• January 18: 2-6:30pm, Elko, Great Basin College (HSCI Room #108)

• January 19: 2-6:30pm, Ely, Bristlecone Convention

• January 20: 2-6:30pm, Battle Mountain, Battle Mountain Civic

• January 21: 12 to 4:30pm, Fallon, Old Post Office

World Water Week 2016 is currently underway in Stockholm, Sweden, an annual event hosted by the Stockholm International Water Institute (“SIWI”).  World Water Week is the annual focal point for global water issues, consisting of more than 140 events covering a range of subjects.  The main theme of the 2016 event is “Water for Sustainable Growth,” a follow-up to the previous year’s topics regarding Sustainable Development Goals (“SDGs”) as adopted by the United Nations General Assembly.  The SDGs, as established by the United Nations at World Water Day in March 2016, focus on water and jobs as one of the keys to future water issues: “making a contribution to better the lives of millions of people by maintaining and creating meaningful jobs related to water and wastewater development, service provision, protection and management.”

Experts attending the event address the value of water and a shared sustainability on a global scale.  Water and climate experts alike call for a Green Water Initiative, using the Water Revolution in Africa as an example.  Large parts of the world are struggling to adapt to a drier reality, but challenges are especially dire in Africa’s drylands.  Developmental options such as rainwater harvesting and other “greenwater” management methods are being suggested to combat the scarcity of water and help to build water resilience for food security and human well-being.

As organizations such as SIWI gather to address and make suggestions regarding water resilience, local concerns echo global concerns.  Water shortages in the State of Nevada raise concern among residents and domestic well owners; more than 20 percent of water basins are over-appropriated – there is more water appropriated on paper than sources to supply it.  Nevada’s Legislative Subcommittee to Study Water, whom held their most recent meeting on August 26, 2016 (details found here), has issued water-conscious statements recommending that local land-use decisions be tied to sustainable water supplies and that water management recognize the connection between surface and groundwater sources.

SIWI’s World Water Week is one of many global events organized with the goal of generating knowledge and power regarding water issues, hosting a number of decision-makers and water professionals in discussions about climate change, energy, sanitation, food, conflict resolution, water management and more.  A few of World Water Week’s highlighted topics (i.e. rainwater harvesting) can be found at http://www.worldwaterweek.org/programme/#since-1991, with resources available in the program archive.

New laws and legislation may affect you, stay tuned for tomorrow’s work session on topics of adaptive management, domestic use, cloud seeding, basin management, and mine dewatering!

Nevada’s Legislative Commission’s Subcommittee to Study Water will be holding a meeting on Friday morning, August 26, 2016 at 9:00AM at the Legislative Building, Room 4100, at 401 South Carson Street in Carson City.

Items on the agenda include the “Work Session Document” containing recommendations received by the Legislative Commission’s Subcommittee during the 2015-2016 Legislative Interim. This document is designed to assist the subcommittee members in determining which recommendations will be forwarded to the 2017 session, and what other actions the Subcommittee will endorse.

For those who may not be able to attend the meeting in Carson City, it will also be broadcast live over the internet via http://www.leg.state.nv.us, and can be viewed or listened to by clicking the link for “Calendar of Meetings/View” in the top right-hand corner of the page.

Items in the agenda as well as the Work Session Document and other information pertaining to the meeting can be found on the Nevada Legislature website under the “Meetings” tab. For written copies, please contact the Research Division, Legislative Counsel Bureau at (775) 684-6825.

A PDF link to the agenda including the Work Session Document can be found here.

The Oregon Water Resources Commission’s (OWRC’s) rulemaking for the Greater Harney Valley Groundwater Area of Concern (Area of Concern) became effective on April 15, 2016. The new regulations limit pending and new applications for groundwater use in the Malheur Basin. Citing concern over lowering groundwater levels in the region, OWRC passed the new regulations to limit new water development until the Oregon Water Resources Department (OWRD) can adequately study the basin’s groundwater. This regulation is a component of the Malheur Basin Program. The drafts, maps, and rules are available at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.

Over a year ago, OWRD stopped issuing new ground water permits within the Area of Concern. Until the most recent rulemaking, however, no rules were in place allowing OWRD to halt permit processing and issuance. Usually, OWRC will create by rule Critical Groundwater Areas, Groundwater Limited Areas, and Serious Water Management Problem Areas prior to OWRD ceasing to issue new permits.

OWRC can designate Critical Groundwater Areas for multiple reasons, including declining groundwater levels, substantial interference between wells, overdraft of groundwater, or water quality degradation. OWRD must indicate the boundaries of the area and review the designation at least every 10 years. The designation allows OWRD to, for example, close the area to any further appropriation, limit the total withdrawal from the aquifer, and refuse applications for new groundwater permits.

Groundwater Limited Areas limit future appropriations of water to specified uses, but do not restrict existing consumption of water within the area. Serious Water Management Problem Areas allow OWRD to collect usage data from current water use right holders, but not restrict water consumption. These tools are used to collect information and guide future development of water resources in Oregon.

Rather than designating a critical or limited groundwater area, or a serious water management problem area, OWRD addressed the Harney Valley Groundwater Area of Concern by amending the Malheur Basin Program. Basin programs are used by OWRC to guide water right permitting decisions and coordinate with other state agencies. Within basin plans, OWRC may classify the highest and best uses for particular basins and waterways for future uses, including proscribing types of uses available to future applicants.  Oregon’s basin programs are listed in the Oregon Administrative Rules Chapter 690, beginning at Division 500, and the Malheur Basin Program is located at Division 510, available at: http://arcweb.sos.state.or.us/pages/rules/oars_600/oar_690/690_510.html.

The new regulations for the Greater Harney Valley Groundwater Area of Concern propose to both limit future uses and collect information before OWRD completes a full study of the aquifer, expected to be completed by 2020. The proposed rules received 22 comments, which can be viewed at: http://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice&notice_item_id=6640. In the meantime, 39 groundwater use applications are pending before OWRD, and these applications will not be approved, unless they meet conditions included in the new basin plan regulations. This is in direct opposition to the rule that applications must be processed based on the laws and regulations in effect at the time of filing, but OWRD is taking the position that groundwater is not available for the applications, rather than a regulatory change affected the outcome of the applications (this is not a new approach from OWRD).

The “area of concern” is, in effect, a moratorium on new groundwater development in the region. The new regulations create restrictions on new applications reminiscent of critical groundwater areas, but within the basin program scheme.   The moratorium will put a halt to development in the region, at least while OWRD studies the groundwater in the area. Locals familiar with groundwater in the Malheur Basin are resentful of OWRD’s blanket moratorium when certain areas within the basin do not appear to show the same level of strain as others, and continue to produce great quantities of groundwater.

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

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

If you don’t know the Hammond family of Harney County, Oregon, you will soon. As the Hammond protest builds momentum backed by a voluntary militia, Dwight Hammond, 73, and his son, Steven Hammond, 46, are making headlines again. Three years ago, the pair made headlines when convicted in Federal Court of arson for fires lit on the Hammond Ranch in 2001 and 2006 to reduce the growth of invasive plants and protect their property from wildfires. Convicted under an anti-terrorism act, Dwight Hammond served three months’ time for the conviction while his son Steven served a full year.

As the Federal Judge suspended the minimum sentence under the guidelines as “shock[ing] the conscience,” the U.S. Attorney appealed the sentence to the Ninth Circuit who ruled that both are due to return to prison to serve the federal prison terms of five years. Private landowners often find themselves at the mercy of the federal government as large parts of the West Coast are in government hands, the story of the Hammond’s conviction and resentencing may be all too familiar to private ranchers in the area who have already felt the pressures of forced sales.

Though the Hammonds have planned to report to prison today, January 4, 2016, as ordered, riled up liberty supporters from surrounding states have a different disposition. Ammon Bundy, son of Nevada rancher Cliven Bundy whom was involved in a standoff with the government and Bureau of Land Management (BLM) in 2014 over grazing rights, has joined with a growing band of armed militiamen acting as organized sympathizers to the Hammonds. Though the Hammonds have no direct involvement with the militia, Bundy and others valiantly stake support claims that the Hammonds should not be tried as terrorists and have rights to the tried actions per purchase rights and federal grazing allotments. The Hammonds have and will continue respecting the rule of law and follow court orders without incident or violation. Click here to view their statement.

The Hammond family’s farm has been eyed by US Fish and Wildlife Service (FWS) and BLM since the 1970s when ranches adjacent to the Hammonds and others were sold and added to the Malheur National Wildlife Refuge. Though approached by FWS and BLM many times, the Hammonds (as well as other ranchers) refused to sell. While many ranchers in the area were forced to leave, another 32 out of 53 permits were revoked, and grazing fees were raised significantly for those who remained in the area. By the 1990s, the Hammonds were one of very few ranchers that were still private owners of property adjacent to the Malheur National Wildlife Refuge. The four year resentencing request for Dwight and Steven Hammond comes from an appeal filed by the BLM Field Manager and Refuge Manager for the Malheur Refuge.

The Hammonds attorneys report that “the Hammonds will continue their legal efforts to renew their grazing permits. They will also pursue Executive Clemency. We hope that President Obama will agree with us and with the veteran judge who presided over the trial that the mandatory five-year minimum sentence is far too long for these ranchers.”

To sign the Petition in support of a reduction in sentencing and Executive Clemency go to: https://petitions.whitehouse.gov/petition/commute-sentences-dwight-lincoln-hammond-jr-and-steven-dwight-hammond-both-harney-county-oregon.

The Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“USACE”) have recently released a new waters of the United States rule under the Clean Water Act (“CWA”) that has been in the works for over a year concerning the definition of what are the ‘Waters of the United States.’ The importance of this definition is that anything that is considered a water of the United States can be regulated under the CWA. The scope and effect of this rule are a point of considerable contention among stakeholders. Environmentalists have applauded the rule while industry-led coalitions, including the American Farm Bureau Federation and American Petroleum Institute, have said the rule will stifle economic growth and is overly burdensome on farmers and business owners. Within the Federal Government itself Republican lawmakers have classified the rule as a power grab by the Obama Administration. The joint EPA and USACE press release, however, described the rule as providing clarity as to which waters are governed by the CWA, and that this rule will help alleviate confusion generated by Supreme Court rulings handed down in 2001 and 2006.

The two Supreme Court rulings in question are Rapanos v. Unites States, 547 U.S. 715 (2006) and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC the Court held that the Federal Government could not invoke the migratory bird rule as the reason why it could regulate isolated waters; this is the first case where the Court focused in on whether or not their existed a “significant nexus” between waters attempting to be regulated and navigable waterways. Meanwhile in Rapanos the Court issued a split decision regarding what may constitute ‘waters of the United States’ for the purposes of invoking CWA jurisdiction. The plurality in Rapanos created a ‘relatively permanent flow’ test for deciding whether the Federal Government has jurisdiction over a body of water. Kennedy, in his concurrence, outlined a more expansive test focusing on whether or not a body of water affects the physical, biological, or chemical integrity of a downstream navigable waterway for determining whether or not there was a “significant nexus” between the two.

While proclaiming to have taken into account the plurality opinion as well, it is clear that the EPA and USACE tailored the rule to be more in line with Justice Kennedy’s opinion. This can be seen by the Executive Summary of the Rule quoting Justice Kennedy:

Justice Kennedy concluded that wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 547 U.S. at 780.

In the official discussion of the rule the EPA and USACE outline five different types of waters that this new rule will cover and describe how each of these types of bodies of waters can significantly affect navigable waterways. These five types of waters are Prairie Potholes, which are glacially formed pools in the central north of the country, they generally connect to navigable waterways through shallow subsurface flows or artificially created drainage mechanisms. Carolina and Delmarva bays exist on the Atlantic coast and are formed by precipitation with the bodies of water usually draining into shallow groundwater, these bodies of water tend to be lumped together and/or close to streams. The third type of body of water that the new rule will be covering are pocosins, which are found in the southeastern portion of the country and are peat accumulating wetlands that exist on a hill. Next are western vernal pools which are seasonal bodies of water, they form in wet months in the west and then either drain or evaporate during dry summer months. Finally coastal prairie wetlands found in Louisiana and Texas will be regulated; these are freshwater wetlands that are found in abundance and generally collectively drain to a common river or tributary. The rule goes in to great length discussing why the agencies find each of these types of waters to have a significant nexus to navigable waters. If a body of water on a piece of property is found to connect to similar small bodies of water that are ultimately hydrologically connected to a navigable waterway then they will fall under the jurisdiction of the CWA.

The EPA and USACE press release specifically notes that “ditches that are not constructed in streams and that flow only when it rains are not covered.” The Wall Street Journal reports that only about 3% more waterways will be put under federal jurisdiction with this new rule. But most of the concern regarding the rule surrounds the types of waters that the expansion covers and not the quantity. Four of the five new types of waters outlined in the rule occur in depressions on a variety of land, some of which could be on farmland and/or land used for mining purposes. The EPA and USACE have determined that these types of waters have a “significant nexus” to navigable waters. While the rule doesn’t change exemptions or exclusions to the CWA (including the agricultural exemptions and exceptions), concern arise from landowners being uncertain if a small body of water that forms on their land is a “prairie pothole” or other type of water covered by the CWA, or simply a large hydrologically disconnected pooling of water. Determining the hydrological connections of these pools of water could prove costly.

While the comment period for this rule has closed and the rule will go in to full effect in late July Schroeder Law Offices submitted comments on the draft rules on behalf of our clients. Ultimately, much of the uncertainty concerning this rule will not be clarified until it is in full effect and users/landowners can see how the Federal agencies apply it. Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that may affect you!

The 300 page document outlining and discussing the rule released by the agencies can be found here.

The USACE and EPA Press Release can be found here.

The Wall Street Journal Article can be found here.

The April issue of Nevada Lawyer Magazine focuses on Agriculture Law. Matthew Curti, along with attorney Linda Bullen, authored an article about the importance of submitting comments to Environmental Protection Agency (EPA) rulemaking, as well as National Environmental Policy Act (NEPA) draft Environmental Impact Statements (EIS). The article provides an overview of the commenting process, and also provides tips for writing effective comments.

For the full article, visit http://nvbar.org/articles/sites/default/files/NevLawyer_April_2015_AG_Client.pdf

Oregon follows the Prior Appropriation principle for water use. The guiding principle of the Prior Appropriation Doctrine is “first in time, first in right.” Thus, water users with earlier priority dates may have their water use rights satisfied before junior water users, or may even require junior users to cease diversions, if there is not enough water in the system to supply all uses.

However, Oregon Revised Statute (“ORS”) 536.750(1)(c) allows the Oregon Water Resources Commission to create a preference for human consumption and stock watering uses after a declaration that a severe, continuing drought exists. The creation of a water use preference allows the State to regulate water use in a way that gives priority to junior users for the identified purpose in the preference statute. Here, the State may allow water users to take water out of priority for human consumption and stock watering uses.

A constitutional problem arises when the State regulates water use on the basis of the preference. The United States and Oregon Constitutions provide that private property shall not be taken for public purpose without just compensation. ORS 536.750(1)(c) was enacted in 1989. Water use rights that were perfected prior to the statute being enacted became vested real property rights before ORS 536.750 was in place. Now, based upon the statute and agency regulations (Oregon Administrative Rule, “OAR,” Chapter 690, Division 22), the Oregon Water Resources Department may order a senior irrigation right shut off, while allowing a junior domestic or stock water use to continue. Such an order deprives the senior water user of their priority date, which is a key feature of their water right.

The Oregon Supreme Court outlined the standard for a “temporary taking” under the Oregon Constitution as follows: “We think that, in order to distinguish between a “taking,” on the one hand, and simple administrative inconvenience or delay, on the other, it is necessary to require that a complaining party allege some degree of permanence in its loss. We hold that, in order to assert a claim for a “temporary taking” under the Oregon Constitution, the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical.” Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 199 (1997). Such a denial of all economic value might be proved, in the case of a senior’s water use regulation, by a showing that the senior user’s water use would have remained unregulated had the State not exercised a preference for junior domestic and stock water uses instead, and that such regulation denied the senior water right holder all economic value of their water right during the period of regulation, such as an irrigation season where a portion of a crop was lost.

A drought has been declared in Klamath County, Oregon this year. In response, the Oregon Water Resources Commission (“OWRC”) enacted temporary rules in OAR Chapter 690, Division 20, creating a surface water preference for domestic and stock watering, regardless of priority. OWRC is now proposing to amend the Division 22 rules to extend the preference to groundwater as well. The proposed rules are available on the Oregon Water Resources Department website at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.

A second public hearing on the proposed Division 22 rules will he held September 18, 2014 in Klamath Falls. Written Comments must be received by the Oregon Water Resources Department by 5:00 PM on September 19, 2014. More information about the public hearing and comments is available on the website provided above.

Schroeder Law Offices drafts comments on behalf of its clients to proposed rules or other agency actions. Contact Schroeder Law Offices if you have questions about a government action that is affecting your water use.

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

Earlier this month, the Oregon Water Resources Department announced in this press release that the Department would be submitting a second notice of proposed rulemaking, holding a second public hearing, and extending the comment period for proposed rules that grant preference for “human consumption” and “stockwatering” uses following the Governor’s declaration of a drought. The rules are solely directed at Klamath County, Oregon. After receiving comments from elected officials and concerned local governments stating that there was little notice or public involvement in crafting the proposed rule, the Department decided to hold the second round of comments and public hearings.

Besides making the temporary rule permanent, the rule is different from the original temporary rule in that it eliminates the differentiation between the regulation of surface water to include all water sources, including groundwater. How this proposed rule affects exempt well uses, including “domestic purposes” is unknown, and “domestic purposes” is clearly not included in the definition of “human consumption.”

In addition, granting preference for a particular use does not necessarily translate into a restriction to the access of the water supply. While the Department states that senior calls could “regulate off” a junior user, the preference for a human consumption and stockwatering uses does not speak to restricting access.

The department seems to be conflating the two different aspects between use and access. While shutting off a well or closing a diversion point may be the most efficient method of regulation, granting a preference for human consumption and stockwatering uses would still allow access, and require the department to use a more sophisticated regulation system other than just shutting off the supply: the uses would be regulated, not just the access to the supply. The City of Klamath Falls identified this distinction in its comments, noting its potential role as watermaster for all of its municipal subscribers to enforce the preference of uses as proposed, as municipal uses include industrial and landscape irrigation uses.

The comment period for the proposed rules will close at 5:00 PM on September 19, 2014, and the Commission is expected to take up the proposed rule during the week of September 22, 2014.

The next public hearing is scheduled at 6:00 pm on September 18, 2014 at the Oregon Institute of Technology Mt. Mazama Room, located at 3201 Campus Drive, Klamath Falls, OR.