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 Fallon Range Training Complex (“FRTC”) Modernization Draft Environmental Impact Statement (“EIS”) comment period has now been extended so that public comments may be submitted through Thursday, February 14, 2019. There are several public informational materials available to the general public regarding the modernization, materials can be found at the draft EIS website and include fact sheets and maps regarding the management of natural and cultural resources for FRTC.

The FRTC Modernization Draft EIS assesses the potential environmental impacts of the proposed modernization of the Navy’s FRTC located in Fallon, Nevada and focuses specifically on modernizing the complex to provide the Navy with more realistic training capabilities while maintaining the safety of the local community. The public is encouraged to review the materials and submit comment should they have concerns regarding adverse impacts to the community; comments can be submitted to the Draft EIS by mail or online at the FRTC Modernization database. All comments that are submitted during the public comment become a part of the public record and substantive comments will be addressed in the Final EIS.

The Final EIS statement is expected to be prepared and available to the public by Fall 2019, and will include updates to the Draft EIS and response to any substantive comments submitted during the draft comment period. Once the Final EIS statement is released, there will be a 30-day waiting period for consideration of comments and public review. The Record of Decision is expected to be available by Winter 2019-2020.

Public workshops on the Humboldt River Modeling Efforts will be held in January 2019! The Nevada Division of Water Resources (“NDWR”), in conjunction with US Geological Survey and Desert Research Institute, will be presenting the latest information in the ongoing studies of the Humboldt River Basins. Times and locations for the public workshops can be found in NDWR’s official announcement.

The workshops are held for the general public and attendance is encouraged as officials work to prepare a conjunctive management plan for administration and management of groundwater and surface water of the Humboldt River and its tributaries.

Humboldt River Modeling workshops are held on an annual basis to update the public regarding governance and use of the river system. A study began in 2015 and the workshops are used to update and provide information to the draft report, with input from the public water users as well as hydrology and geology specialists at NDWR, the US Geological Survey, and the Desert Research Institute. A draft of the final report is expected to be prepared by the first quarter of 2019.

            Are aquifers public or private property? The question is more complicated than it first appears! To answer the question, one must dive down into the fundamental origins of our legal system, fraught with complicated Latin phrases, just like the dangers of the deep itself!

            Aquifers are scientifically defined as a “body of permeable rock which can contain or transmit groundwater.”[1] However, the word, in its common use, refers to the groundwater, not the permeable rock that actually makes up the aquifer. Traditionally, rocks, soil, and dirt are considered private property under the ad coelum doctrine, making them private property owned by the overlying landowner.[2] Ownership under this doctrine reaches from the atmosphere above to the center of the Earth, shaped like vertical column. However, water is traditionally seen as commonly owned by the public, available for private use under the ferae naturae doctrine. Under this doctrine, water is commonly owned, like wild animals, but can be captured and privately used, like by hunting and capturing it. The various water doctrines, including prior appropriation, the rule of capture, and riparianism, all derive from a negotiation between these two doctrines.

            The law continues to navigate the paradox of aquifer ownership: Is the aquifer the water or the rocks holding it? At least one court is now facing this challenge. The California case Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al places this question at the heart of the litigation.[3] The Agua Caliente Band of Cahuilla Indians (“Tribe”) filed a suit to protect the aquifer underlying their reservation from groundwater use that threatened to cause subsidence, contamination degrading water quality, and aquifer recharge activities that filled storage space with foreign water. As part of the Tribe’s claim, they assert that the Tribe owns pore spaces (storage) within the aquifer that are being permanently destroyed by subsidence. The Tribe argues under property principles that the pore spaces are a part of the reservation under principles of the ad coelum doctrine. The opposing parties argue that the pore spaces are publicly owned, and the Tribe cannot claim injury to something they never owned or, in the opposing argument, “captured” under the ferae naturae doctrine. While the trial is still ongoing, the court will eventually have to face the core question: Are aquifer pore spaces public or private property?

            While the debate over ancient Latin phrases, injury, and rocks may seem like an uninteresting legal squabble, the results of the case could have real ramifications for many groundwater issues! For example, could an artificial recharge project seeking to replenish depleted aquifers actually be trespassing, if aquifers are privately owned? Or, if publicly owned, can a neighbor to the recharge project whose land is inundated with water have shaky ground to make a claim, since they do not own the pore spaces? Courts will likely have to wrestle with these questions for many years to come.

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

[1] Oxford Online Dictionary,https://en.oxforddictionaries.com/definition/aquifer

[2] https://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos

[3] The case is presently before the United States District Court for the Central District of California, Docket No. ED CV 13-00883-JGB-SPX. The complaint was filed on May 14, 2013.

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

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

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

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

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

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

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

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

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

New Associate Attorney Jakob Wiley successfully completed his defense of Collective Aquifer Governance: It’s the Water and a “Hole” Lot More! on September 17, 2018, completing his Masters of Science in Water Resources Policy and Management. Jakob completed the Concurrent J.D./M.S. program between Oregon State University (“OSU”) and the University of Oregon School of law, https://gradwater.oregonstate.edu/concurrent-jdms-degree-program. Jakob’s successful defense of his research paper marked the capstone of his MS studies at OSU.

The paper unravels the differences between the current paradigms in groundwater and aquifer governance, showing that the present focus on groundwater has struggled to meet the challenges of true aquifer governance. Aquifers are composed of a variety of resources, like storage spaces, thermal properties, chemical and biological contaminants, and hydraulic pressures. Jakob coins the term transresources to describe these components, inspired by transdisciplinary approaches in academia. To achieve true aquifer governance, transresources must be included in the governance strategy. Unfortunately, traditional groundwater management only attempts to address these issues through the lens of groundwater regulation.

To provide a guide, Jakob’s paper compares aquifer governance with unitization agreements used in the oil and gas industry. These agreements were developed to counter the inefficient, competitive, and costly over-drilling of wells in the early years of hydrocarbon development. Unitization agreements are fundamentally a contract between reservoir owners. Unitization agreements convert the right to pump into shares of the resources present in the reservoir. By pooling the rights to withdraw oil and gas into a “unit”, a more equitable, efficient, and voluntary governance system is created, while also incorporating any pumping, spacing, and pressure management laws.

Jakob’s research translates this agreement approach into a system of aquifer governance. The theoretical approach would create an agreement among aquifer users, allowing them to contractually change the incentives and use patterns of the aquifer. For example, conversion from flood to sprinkler irrigation can improve “efficiency” but also dramatically reduce artificial recharge of the aquifer. A “collective aquifer governance agreement” – Jakob’s translation of a unitization agreement – could be used to incentivize groundwater users to adopt efficient sprinklers while incentivizing beneficial activities, like incidental aquifer recharge from flood irrigation, improving the overall sustainability of the aquifer system.

The key feature of a collective aquifer governance agreement is the design of shares. By allocating shares to each transresource, the system of water allocation can reflect the scientific and physical effects of groundwater and aquifer resource use (like geothermal energy production, storage, subsidence, in situ bioremediation, ect). Directly connecting rights with physical effects of aquifer use can internalize any negative externalities of aquifer use, when properly designed, and could support a conjunctive surface and ground-water (or any other transresource) market.

Jakob’s work on this topic will continue as he works with Dr. Todd Jarvis of OSU on an upcoming book expanding the theory and providing guidance for the next stage in groundwater management: collective aquifer governance, showing oil and water really do mix!

Jakob’s complete research paper is publicly available at the following link: http://ir.library.oregonstate.edu/concern/graduate_projects/pn89dd30b

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

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

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

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

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

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

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

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

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

[2] Id. at 7.

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

[4] Id. at 9, fn 2.

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

[6] Id.

[7] Id. at 27.

[8] Id. at 30.

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

[10] Id. at 27-28.

[11] Id. at 50.

[12] Id. at 53-54.

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

Incoming J.D. Paralegal (Attorney upon Bar passage) Jakob Wiley attended the University of California Cooperative Extension’s regular Rice Production Workshop held at Lundberg Family Farms in Richvale, California. The seminar was attended by farmers, local businesses, and water district personnel, providing a broad overview of rice production and the challenges faced by producers.

Water in rice production isn’t just about irrigation. Water serves a critical role in temperature regulation, weed control, and field management. For example, water is used to prevent excessive cooling of the rice flowers, which inhibits pollination. Exposure of the flower to cool temperatures can “blank” the rice (prevent the grain of rice from forming) and reduce yields. Water also acts as a blanket, keeping the flowers warm during cool nights. Careful management of water also ensures the safe use of pesticides and herbicides (and avoids costly fines). Water plays a critical role in the growth, development, and success of a rice field.

More information about rice production can be found in the 2018 Rice Production Workshop Manual available at http://rice.ucanr.edu/Reports-Publications/Rice_Production_Workshop_Manual/.

Jakob will add his new knowledge about rice production to his background in cattle ranching and alfalfa production to better assist with your water needs!

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

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.

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

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

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

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

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

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!

In an often-arid, agricultural community, nothing is more precious than water, particularly in drought years. However, flood years present their own set of challenges as well. When it comes to water allocation, it’s not just how much water that matters, but also when that water is received. Timing is as important as quantity when it comes to water delivery, especially when taking into account the impact snow pack and snow melt has on water supply.

For irrigators in Idaho’s Treasure Valley, this issue has long been a topic of discussion and debate. Water is accumulated and stored in three major reservoirs (Arrowrock, Anderson, and Lucky Peak) and is released throughout irrigation season to water users through a series of canals. Water is diverted to users at various points on the canals, at which time it begins to count toward a user’s annual allotment of water. This is typically not an issue during years of normal water accumulation and distribution. However, when above-average quantities of water accrue in the reservoirs, water must be released earlier in the spring to prevent overflow and flooding.

Early “flood water” releases are the root of the current conflict concerning regulation of water storage in Idaho. Water rights holders are allowed only a certain amount of water under the conditions of their permits and/or certificates. When water is released out of storage earlier in the year, Idaho Water Resources Department advises that the meter starts running regardless of whether or not the water right holder is ready to turn the water into its irrigation facilities. For senior users (holders of rights with earlier priority dates), this means seniors risk running out of water later in the season. Typically, if a senior is not receiving their allowed quantity of water as flows decrease in the hotter months, the senior is able to make a water call on junior priority water right holders. However, if, due to the early release of water, the senior has technically received the storage release of their senior priority water, the senior could be left high and dry.

This issue has been litigated in the Idaho courts as a contested case since 2013, with argument before the Idaho Supreme Court scheduled to occur on June 20, 2018. However, on June 6, 2018, a joint legislative committee met and unanimously called for Governor Butch Otter to hold a special session to pass legislation that would add a new Section 42-115 to the Idaho Code. Section 42-115 would ensure that future water storage projects do not interfere with existing reservoirs. While this proposed legislation will not fully resolve the ongoing issues, nor constitute a settlement between the parties, it may be a positive first step toward resolution.

Stay tuned to Schroder Law Offices’ blog for updates on this legislation, settlement, and other water law topics!

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!

Written by Alyssa Holland, Lisa Mae Gage, and Lisa Kane

Water Week 2018 is currently underway as water organizations across the country gather in Washington, D.C. to advocate the importance of water protection and conservation with hopes of ultimately elevating water to a national priority. Organizations in the water sector are using Water Week to ramp up their efforts to educate policymakers about the need for funding to benefit water infrastructure. Many organizations are collaborating for Water Week, including National Association of Clean Water Agencies (“NACWA”), Water Environment Federation (“WEF”), American Water Works Association (“AWWA”), and the National Water Resources Association (“NWRA”), for example.

A few main events will take place during Water Week:

• On April 17-18, 2018 the National Policy Fly-In:
  An event to provide the public with the opportunity to voice concerns and challenges to their policy makers.
• April 17-19, 2018: Water and Wastewater Equipment Manufacturers Association (“WWEMA”) 45th Washington Forum:
  “Effectively Communicating Change at the National, State, and Local Level,” a discussion regarding changes happening in Washington, D.C. and to the nationwide water infrastructure, environmental and public health protection, and legislative and regulatory changes that will impact the water sector.
• On April 19, 2018 the WateReuse Association Water Week 2018 Congressional Briefing:
  Four (4) different communities across the country will be highlighted for their use of water recycling and the local economic benefits that encourage other communities to do the same.

While each organization has a slightly different mission, each has a goal of advancing education regarding water issues and returning to their communities with the priority of educating the general public on the same issues. One of the main events, the Congressional Briefing, will directly discuss tools used in arid states (such as one of our main states of practice, Nevada) to address water scarcity and a way for communities to better manage their local water resources to help spur economic growth and plan for the future.

Schroeder Law Offices Nevada attorney Therese Ure also attends and hosts local conferences in Nevada to continue education regarding how to support the community’s resource challenges and even more particularly, how to support Northern Nevada’s agriculture industry. Click here to see our coming events for local education on the topic. Although attending these events may not be a possibility for everyone, we should all use Water Week as a time to reflect on how valuable water is to our everyday lives and to look for ways to conserve and protect water within our own communities.

The Ninth Circuit Court of Appeals affirmed a U.S. District Court opinion requiring the Army Corps of Engineers to increase spill at dams on the Federal Columbia River Power System (“FCRPS”) to the maximum spill levels that still meet total dissolved gas criteria allowed under state law. The increased spills required by the District Court’s order and affirmed by the Court of Appeals began on April 3, 2018. The Court of Appeals’ decision is available here.

The Court of Appeals’ decision in National Wildlife Federation v. National Marine Fisheries Service is the most recent decision in this case, which has been ongoing since 2000. The decision stems from a challenge to the National Marine Fisheries Service’s (“NMFS”) 2014 Biological Opinion (“BiOp”) that concluded operation of the FCRPS dams would jeopardize salmon and steelhead species (“listed species”) listed under the Endangered Species Act (“ESA”). Because NMFS’s BiOP concluded operation of the FCRPS dams would jeopardize the listed species, pursuant to NFMS responsibilities under the ESA, NFMS proposed an alternative action that included, among other measures, some spill over the FCRPS dams as a means to avoid jeopardizing the listed species.

However, in 2016 the District Court found NMFS’ violated the Endangered Species Act when NMFS concluded the alternative in the 2014 BiOp did not jeopardize the listed species. The District Court gave NMFS until March 1, 2018 to issue a new BiOp. (This deadline was later extended to December 31, 2018.) However, in January 2017, the plaintiffs moved for injunctive relief, requesting the District Court order additional spill at the maximum level from April through June at dams along the FCRPS. In April 2017, the District Court granted plaintiffs’ injunctions and ordered increased spills to take effect April 3, 2018. The District Court’s decision was appealed to the Ninth Circuit Court of Appeals.

The Court of Appeals issued its decision upholding the District Court’s order requiring increased spills on April 2, 2018, the day before the increased spills were to begin. The Court of Appeals found the District Court did not err under the ESA in finding the plaintiffs had shown the listed species would suffer irreparable harm sufficient to order the increased spill. Nor did the Court of Appeals find it error that the District Court analyzed the harm that would be caused to the listed species in operation of the FCRPS dams as a whole, rather than focusing only on the spill related components of the BiOp alternative NMFS selected.

As irrigation season begins in the areas of the Columbia and Snake Rivers that rely on the water flowing through the FCRPS, and as the increased spills begin to take effect, some congressional leaders in the affected states are attempting a congressional solution to negate the effects of the court decisions. House Bill 3144, introduced by Representative Cathy McMorris Rodgers (R-WA) in June 2017, reported out of the House Committee on Natural Resources on April 11, 2018. It remains to be seen if and when H.R. 3144 may be scheduled to be heard on the floor of the House of Representatives; however, the Court of Appeals’ decision has, and any outcomes from H.R. 3144 will have, immediate impacts on water rates and utility rates for irrigators and residents throughout the Pacific Northwest. H.R. 3144 is available here.

(Photo: Lake Koocanusa, Libby, MT)

Schroeder Law Offices’ attorney Therese Ure is in attendance at the 2018 Family Farm Alliance Conference in Reno, NV and was present for the Reclamation Roundtable wherein Commissioner Brenda Bunman addressed the Family Farm Alliance (“FFA”) membership goals regarding conveying Reclamations under the current administration. Key points of the FFA goals include: 1) creating infrastructure to provide water security and reliable energy; 2) reinvesting to modernize existing infrastructure, and considering creative ways to pay for theses project (welcoming ideas and comments); 3) streamlining projects from the way they are managed to streamlining of the NEPA process; 4) collaborating to create new ideas, listening, sharing, and being transparent; and 5) creating a culture at Reclamation of safety, respect and civility.

Other key points in the Reclamation Roundtable with all the regional directors included a water forecast for 2018, discussion of what current storage will secure or not secure, and how to deal with long term planning by:

• a) creating additional storage through raising dams;
• b) investigating new storage locations (new dams); and
• c) aquifer storage and recovery projects (underground storage) undergoing feasibility studies, working on creative ways to deal with ESA issue, and collaborating with stakeholders.

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.

Schroeder Law Offices is excited to announce that Jakob Wiley will be joining the firm as a J.D. Paralegal this fall. He plans to later continue with the firm as an Associate Attorney at the Portland location after passage of the July, 2018 Oregon bar examination. He will receive a J.D. from the University of Oregon School of Law in May, 2018 and will also complete a concurrent M.S. in Water Resources Policy and Management at Oregon State University. His studies focus on aquifer governance, voluntary management agreements, and transboundary aquifer policy.

Jakob grew up in Fallon, Nevada on his family’s alfalfa farm and cattle ranch. Jakob enjoys hiking and ocean fishing near his parents’ new home near Toledo, Oregon. Jakob also enjoys traveling to Germany and Switzerland in his free time. He is excited to join the Schroeder team working to solve your water issues!