Record low snow accumulation and warm temperatures in Western river basins raise concern about water supply in the Western U.S.[1]. The future of the Colorado River Basin, one of the most contested water resources in the nation, impacts over 5 million acres of agricultural land and drinking water for a population of over 40 million. It also affects economic stability for major municipalities including Las Vegas. [2] These are all affected by drought and the “Law of the River”.

Spanning water use by seven “Basin States” including southern Nevada, the Basin provides a life source to those states and Tribal Nations. It even crosses the international border into Mexico. This valuable water source has been subject to a multitude of legal disputes for over a century. It additionally faced a critical deadline this past Friday, February 14, 2026. There is much concern about Drought and the Law of the River. The concern is not new according to an earlier article on this site.

Understanding the “Law of the River”

Without a working agreement between the many parties who rely upon it, the future of the Colorado River Basin water supply is increasingly threatened for agricultural, domestic, and municipal users alike. As the threat increases, understanding the tools for water use agreements between states becomes ever more important. So, what really dictates access to water?

Interstate water compacts are negotiated agreements among states (think of the domestic equivalent of international treaties) endorsed by the U.S. Supreme Court as an alternative to litigation. [3]

The Colorado River Compact represents one of the first “successful” interstate water dispute negotiations. It equitably apportions use of the Colorado River between the Upper and Lower Basin states. Nevada, one of the Lower Basin states and the driest state in the country, relies heavily on this apportionment. The compact is still in effect today over a century after its ratification.[4]

Equitable apportionment is a resolution tool specifically designed for disputes between states. When interstate water disputes arise, the Court invokes equitable apportionment principles to distribute water between the parties in line with the water laws of the contending states. 

The “Law of the River” includes a series of legal documents: compacts including the Colorado River Compact of 1922, supreme court decisions, federally recognized Tribal reserved water rights, and the 1944 international treaty with Mexico.[5] Together, these treaties, compacts, and decrees govern the allocation of the Colorado River Basin waters. The multitude of users who rely on it each year are governed by these rules.

Drought Contingency Plan

The 2019 Agreement, also known as the Upper Basin and Lower Basin Drought Contingency Plans (DCP) is a more recent addition to address drought and the Law of the River. The DCP is the culmination of negotiations between the seven Basin States facing a 19-year drought.[6] In the DCP, the Basin States voluntarily agreed to reduce water use to avoid regulation by the federal government and hold the Upper Basin States accountable. This theoretically leaves enough water downstream for the Lower Basin States even in years of drought. This type of cooperation is a necessary sacrifice in the face of warmer, drier years ahead and sets a precedent for conservation of the vital water supply. However, the current allocation agreement is at risk due to failure of the Basin States to come to an updated compromise that meets the modern needs of the Basin.

Changes in snow, rain, and temperature distribution as well as increasing pressure on water supply threaten the continued functionality of the current Basin water allocations. The original allocations cannot sustain the current demand. Use already exceeds the current river flows. [7]

The Current Status of Drought and the Law of the River.

Increasingly at odds across the Upper and Lower Basins, the seven states governed by the terms of the Colorado Compact have yet again missed a deadline set by the Secretary of the Interior to properly manage the river water. While Lower Basin users are offering to reduce their allocation, the Upper Basin claims that the Lower Basin States are seeking water that “simply does not exist. This has led to the current impasse.[8]

Failure by the Basin States to reach a deal by February 14, 2026, has resulted in the Secretary of the Interior, the watermaster under the Colorado Compact, taking over negotiations and compelling the states to agree on a compromise plan. The Bureau of Reclamation announced last week that the Department of the Interior will progress with finalizing “operating guidelines” for the Basin by October of this year. This ends a multi-years long process to find adequate alternatives to the current agreement and hopefully avoiding expensive litigation.[9]

Monitoring What is Next

As this (dis)agreement progresses, it is important to stay informed about where your water comes from and who really has a right to it. Sustainable management highly depends on water users knowing and protecting their rights, playing an active role in water use agreements, and speaking up about local policymaking that will aid the longevity of one of the most important water supplies in the West. Only by working together will the future of the Colorado River Basin be stabilized.

[1] https://www.drought.gov/drought-status-updates/snow-drought-current-conditions-and-impacts-west-2026-01-08

[2] https://www.reuters.com/legal/litigation/western-states-miss-deadline-colorado-river-water-rights-2026-02-14/

[3] Legal Control of Water Resources by Barton H. Thompson, Jr.  

[4] https://www.unr.edu/nevada-climate-office/about-our-climate

[5] https://www.usbr.gov/lc/region/pao/lawofrvr.html

[6] https://www.usbr.gov/ColoradoRiverBasin/dcp/index.html

[7] https://www.nytimes.com/2019/03/19/climate/colorado-river-water.html

[8] https://www.reuters.com/legal/litigation/western-states-miss-deadline-colorado-river-water-rights-2026-02-14/

[9] https://www.usbr.gov/newsroom/news-release/5283

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Whether their interests lie on the ski slopes, in agricultural fields, or both, Nevadans “in the know” closely watch the snow forecast over the winter. Tracking Nevada snowpack in the various mountain ranges is not only indicative of the quality of winter recreation. It provides a forecast for the next irrigation season among Nevada Farmers. It can help provide insights on how full the various reservoir lakes will be come spring.

 Nevada is the driest state in the Nation, with annual precipitation averaging only 10.3 inches per year. As such, snow build up in the Sierras, Carson Range, Ruby Mountains and the countless other state mountain ranges is one of the primary driving forces for surface water recharge. Nevada’s lakes, rivers, and streams are heavily fed by spring run off as snowpack begins to melt in April and May. 

However, not all snow-enthusiasts are aware of the various publicly available resources to better understanding how snowpack is measuring up throughout the season.  Luckily, public forecasting and monitoring tools far exceed the weekly weather forecast and the meteorologist on the local five-o-clock news.

USDA Nevada Snowpack and Stream Forecast Tools

The United States Department of Agriculture (“USDA”) publishes a suite of “Nevada Snow Survey Products” online. These include various reports and maps of daily conditions. An interactive mapping tool can lead to the same information. The primarily information displayed in these various tools compares the current amount of snowpack to the median snowpack experienced historically on the same day.  For example, value in the Lake Tahoe regions of 40% indicates the current snowpack in that region is 40% of the median (middle) amount of snowpack historically experienced. In other words, the snowpack is low compared to historical snowpack.

NOAA Drought Tools

The National Oceanic Atmospheric Administration (“NOAA”) is another federal agency that provides public information related to Nevada snowpack.  NOAA’s reporting is primarily related to drought conditions. However, as snowpack plays a key role in drought conditions throughout the year, the agency publishes information on its website related to “Snow Drought” conditions. Information provided by NOAA is also categorized by region. Nevada’s drought information is available along with conditions in California. Information on NOAA reporting is arguable more user friendly. The agency provides percentages as well as categorization of current conditions ranging from “abnormally dry” to “exceptional drought.”

Conclusion

These are just some of the tools available to stay informed about current snowpack conditions in Nevada’s mountain.  As the season continues, those who are interested can track snowpack accumulation. Other information related to water availability is available through

• updates from the United States Bureau of Reclamation,
• local irrigation companies and dam/reservoir managers,
• and spring/summer related drought tools.

Together, all of these tools can help irrigators plan for their upcoming water year. They help anticipate the water that will be available for crop production.

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A Must-Attend Event for Water Resouces Professionals

Registration is now open for the upcoming United States Commitee on Irrigation and Drainage (USCID) 2025 Conference. The event is set for October 21-24 at the Eldorado Resort Casino in Reno, Nevada. Conferences | USCID 

This annual event is a premier gathering for professionals in irrigation and drainage, offering a unique opportunity to engage with experts, share innovative solutions, and learn from each other’s experiences.

Tuesday Workshop: 

The USCID 2025 conference kicks off with a half-day study workshop on Tuesday morning! This workshop will delve into critical topics in canal lining and seepage reduction.  Attendees will consider justifications for lining canals, consider options for lining and non-lining alternatives, and consider the differences in various geotextiles.   This workshop, led by ITRC Chairman Dr. Howes, will be ideal for irrigation project managers to attend.  Attendees will walk away with practical insights and strategies to enhance their work.

Friday Tour

The USCID 2025 conference concludes with an exciting tour on Friday through Nevada’s the Walker River Basin. This tour allows attendees to explore real-world applications of the concepts discussed during the conference. It’s a fantastic opportunity to see innovative irrigation and infrastructure modernization solutions in action and network with fellow professionals in a more informal setting.

Presentation Topics at the USCID 2025 Conference

Throughout the conference, attendees will have the chance to attend focused oral presentations during Technical & Policy Sessions on Wednesday and Thursday. These sessions will cover a wide range of topics, including:

• Advanced irrigation techniques
• Water supply and demand management
• Evapotranspiration Applications
• Policy and regulatory updates in water management

Invited speakers will also share their perspectives during meals, providing valuable insights into the latest trends and challenges in the field. 

Don’t miss out on this incredible opportunity to advance your knowledge, network with peers, and contribute to the future of water resources management. Register now and join us in Reno for the 2025 USCID Conference!

For more information and to register, visit USCID’s official website 

We look forward to seeing you there!

Therese Ure Stix, President, USCID and Shareholder, Schroeder Law Offices, PC

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Wildfires and Drinking Water Flavor: Insights from the Wine Industry

Oregon debates how to fund wildfire prevention and response. Legislation that would repeal Oregon’s controversial statewide Wildfire Hazard Map sits in the Oregon House. Republicans, Democrats, and the Oregon Governor negotiate. Oregon had a record 1.9 million acres of its 61.6 million acres burn in wildfires in 2024. That’s 3% burn in one year! And all the wildfires affect drinking water flavor.

What it Means for Drinking Water Flavor

From a drinking water standpoint, what are the ramifications of wildfires in Oregon? To answer that question an article published in the American Water Works Association June 2025 issue of Opflow put the focus on flavor.

Ash entering source water creates pollution that can be removed by conventional water treatment. It’s another story for the smoky flavor that cannot be removed even months after a fire. This flavor issue has domestic water purveyors scratching their heads. Little research exists as to what chemicals cause the smoky flavor. It’s a combination of compounds with a layering effect making it difficult to differentiate between odors that create the smoky flavor.

Clues from the Wine Industry

Interestingly, water quality engineers are looking to the wine and food and beverage industry’s production of liquid smoke for answers to drinking water flavor. The wine industry because certain wines include smoky flavors intentionally, which is not the case for the beer industry! Of course, fires carry other pollutants to the air which sit on vineyard grapes destroying this and other crops. This has a disastrous effect on Schroeder Law’s agricultural clients.

What Causes so many Fires?

In 2024, Oregon reported that human activity caused 70% of the wildfires. Debris burning was the leading cause. Unfortunately, Oregon expects that wildfires largely caused by human carelessness will continue. And so too their effect on source waters, particularly those that are currently provided for domestic use without treatment.

Water Treatment Operators will monitor and continue to adjust their treatment strategies to perserve drinking water flavor to our growing, careless population. Growers will continue to do their best to adjust harvest schedules to avoid crop loss caused by wildfires. In the end, it is up to each of us to be vigilant to avoid igniting fires.

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USCID Call for Papers – Consider Participating!

The United States Committee on Irrigation and Drainage (USCID www.uscid.org) is excited to announce the call for papers for its Annual Conference, scheduled to take place from October 21-24, 2025, in Reno, Nevada. This year’s conference will focus on the critical issues surrounding water supply and demand, emphasizing sustainable basin water management in the face of increasing scarcity and competing uses.

Conference Overview

The USCID Conference in Reno aims to address the challenges of water planning and management, particularly in the context of agricultural, urban, and environmental demands. With changing weather patterns, regulatory constraints, and the evolving science of hydrology and hydrogeology, the conference will explore innovative solutions to ensure reliable water supplies and effective resource management.

Call for Papers

USCID invites abstracts for papers and presentations that align with the conference’s themes. Authors can submit abstracts for either a 20-minute oral presentation with a paper or a 15-minute oral presentation without a paper. Accepted papers will be included in the Conference Proceedings, providing a valuable resource for attendees and the broader water management community.

Key Topics

The conference will cover a wide range of topics, including but not limited to:

1. Basin Water Management and Governance
   • Basin supply and demand management
   • Regional management governance structures
   • Implementing sustainable groundwater basin rules
2. Competing Uses of Water
   • Shared facilities
   • Surface water/groundwater exchanges
     • Recycling and wastewater reuse
3. Water Planning
   • Integrating regional water resources
   • Reservoir management and operation modeling
   • Stakeholder involvement
4. Water Supply and Demand Management
   • Urban and agricultural irrigation conservation
   • Deficit irrigation and drought management
   • Salinity and water quality management
5. Water Transfers
   • Water rights concerns
   • Improvements in agricultural and urban water transfers
   • Environmental permitting and policy
6. Technologies
   • Evapotranspiration and consumptive use
   • Flow measurement and SCADA systems
   • Precision irrigation and smart device applications

Submission Guidelines

Authors are encouraged to submit a 250-300 word abstract, including the paper or presentation title, author names and affiliations, and contact information. Abstracts should be submitted as a .doc or .docx file to megan@agamsi.com by May 1, 2025.

Important Dates

• Abstracts Due: May 1, 2025
• Notification to Authors: May 15, 2025
• Draft Papers Due: July 15, 2025
• Comments to Authors: August 15, 2025
• Final Papers Due: September 15, 2025
• Conference Dates: October 21-24, 2025

Join us in Reno for an engaging and informative conference that promises to advance the field of irrigation and drainage. We look forward to your contributions and participation in this important event. For more information, visit USCID’s call for papers website.

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As the writer at the Federal Reserve Bank commented in his article Are Water Resources Keeping Up with U.S. Economic Needs? – San Francisco Fed water is not something we can transport from a water rich area to a water poor one.  While the research studies cited in the article advise that the United States is not over-all water short, the arable where the United States depends for its fresh fruits and vegetables, are those areas most water short. 

The unstated suggestion of the author is simply that we could move agricultural production to the water rich areas. But the author does not opine on what crops can be grown in the “water rich” areas.  It may be that if indeed we must move crop production to the Midwest where the growing season does not produce 3-5 crops per year of the vegetables that US citizen have come to love from southern California that American’s diets will be require change or that a larger share of individual gross income will be spent on food.

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Katherine Schroeder is crossing the United States for the second time on her bicycle. This week at the headwaters of the Mississippi, she encountered the sculpture titled “Heartwaters – Caretaker Woman.” The bronze sculpture was created by artist and member of the Fond du Lac Band Jeff Savage in 2005.

The sculpture depicts a woman with long, flowing hair releasing a group of turtles from a basket. The caption accompanying the piece describes that the woman is “renewing the seasons and continuing the waters of life.” The piece holds a deep meaning and reverence for water which can be found in the Anishinaabe (Ojibwe) belief that women are the caretakers of water. The turtles depicted in the sculpture are also symbols of water, as well as the many directions life can go (as turtles live in water, walk on land, and breathe air).

Ultimately, this beautiful work of art symbolizes the fundamental importance of water as a source of life and as a resource that must be preserved for future generations. The piece can be found at the Mary Gibbs Mississippi Headwaters Center in Itasca State Park. We thank Katherine Schroeder for sharing these photos as she makes her way across the country!  

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

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

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

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

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

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

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What brought you to Schroeder Law Offices?

I had been interested in the legal field for some years before I started with Schroeder Law Offices. I was working in a different industry and was finally ready to make a change when I found SLO. Ultimately, it was the close-knit office culture, opportunities for education, and fascinating specialty that convinced me that this was where I was meant to be.

What is your go-to productivity trick?

I am a strict to-do list person. No matter how small the task is, it’s added to my list. If I really need to buckle down and focus on a large task I have found that listening to brown noise is extremely effective at calming and providing focus.

What is something you find fascinating about water law?

The first aspect that drew me in was the history. I love to research water rights, and it is also so interesting to learn about rights stemming from the early 20^th century and even earlier.

What do you like to do for fun on the weekends?

My favorite down time activity is spending time with my husband and my dog, either at home or exploring the trails in the Pacific Northwest. Otherwise, I like to binge watch a good television show and catch up on reading.

What is your favorite book or movie?

Pride and Prejudice by Jane Austen.

What’s it like to work at Schroeder Law Offices?

Every day is a new adventure.

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April 22^nd, 2023, is the 53^rd annual Earth Day celebration. The theme of this year’s holiday is “Invest in Our Planet.” The preservation and efficient use of water, a vital natural resource, leads all that we do at Schroeder Law Offices. As a water law office, Schroeder assists municipal water users and districts, individual and family farms, and ranches to promote sustainable water use throughout Oregon, Nevada, Idaho, and Washington. To celebrate, let’s brush up on some Earth Day history.

The beginnings of Earth Day can be traced back to an oil spill off the coast of Santa Barbara in 1969. Because of its devastating effect on the surrounding nature and wildlife, the public’s concern over what could be done to protect the environment grew. After the spill, Wisconsin senator Gaylord Nelson inspired a nationwide “teach-in” day. Senator Nelson enlisted the help of a young activist Denis Hayes, fellow senator Pete McCloskey, and numerous volunteers and activists thereby creating the first Earth Day on April 22^nd, 1970. 20 million people celebrated the first holiday, prompting nationwide demonstrations, protests, and teach-ins.

Earth Day is now a global event celebrated each year through demonstrations, events, and acts of service!

To keep the mission of Earth Day in mind this year, Earthday.org created a list of the many ways you can take care of the earth in your day-to-day life. Some ideas you might try:

• Attending a tree planting event
• Participating in a community beach cleanup
• Planting a pollinator garden to help the population of bees, butterflies, and other organisms in your local ecosystem
• Attending an Earth Day event (find one in your area using this interactive map)
• Reading more on Earth Day history to explore the origins of the holiday

This weekend, please join us in celebrating Earth Day’s mission.

To stay up to date on all things water, be sure to subscribe to our weekly e-newsletter to the right.

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What brought you to Schroeder Law Offices?

I came to Schroeder Law Offices right after graduating law school.  During my last year of school I was looking for a post-grad job related to natural resource law.  Having interned in jobs lobbying, in-house counsel for nonprofits, at an Attorney General’s Office, and at a large law firm, I knew I wanted to work in private practice, but in a boutique setting.

During my last semester of law school, I was working with The Freshwater Trust, a nonprofit in Portland, Oregon that does river restoration work. In that internship I had some exposure to water law and found it fascinating.  Schroeder was looking for an associate in Reno at the time. I was looking for a job in a location that would allow more of a rural lifestyle, so it was a perfect fit. I also loved that all the partners were women as this field is so often dominated by men.

What is your go-to productivity trick?

I am very to-do list oriented.  I tend to have one master list with all my projects and then one to two tiers of lists with more immediate tasks that need to be done in the next day or week.  A lot of my motivation comes from crossing something off a list.

What is something you find fascinating about water law?

Water law is one of the few niche practice areas that is incredibly diverse.  Unlike family or criminal law, where the issues, rules, and case law are often recycled, water law issues are always different.  In the last few years I have worked on property law, contract law, tort law, secured transaction law, tribal law, as well as federal issues like the National Environmental Policy Act (NEPA) and historic rights-of-way across federal land. I’ve never enjoyed monotony in a job. At Schroeder, I’m certainly never bored and almost always challenged in a new way!

What do you like to do for fun on the weekends?

Outside of work I like to cook, read, and work in my garden or on my farm. I also like to get outside for an adventure with my hodge-podge pack of dogs. On longer breaks, I like to backpack or kayak with my husband, travel internationally to see new places, learn about history, and try new foods.

What is your favorite book or movie?

I don’t have an all-time favorite book or movie that comes to mind.  Lately, I’ve really enjoyed anything written by Kate Quinn.  I love her portrayals of women’s forgotten roles in history, especially during WWII. 

What’s it like to work at Schroeder Law Offices?

Working at Schroeder is working with a close-knit team. We help each other out and really care about one another as people.  I’ve always felt supported and heard. The leadership has always been invested in my growth as a professional and outside of work. They also encourage me to build and maintain a life outside of the office.

Caitlin Skulan is an associate attorney at Schroeder Law Offices, PC.

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Join the US Committee on Irrigation and Drainage (USCID) on April 12th, 2023 at 11:00 AM (Pacific Time) for a webinar on How to Obtain Title Transfer for Federal Water Projects. Frank Dimick, of Dimick Water Resources Engineering, will host the 30-minute presentation and Q+A session via Zoom. Participants will also learn how the United States can gain international recognition on water projects. After, Schroeder Law Offices’ shareholder and USCID Vice President Therese Stix will give an update on USCID and share more details about the upcoming USCID Conference in October 2023. We hope to see you there!

To learn more about USCID’s mission and upcoming conference, visit their website here.

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At the end of 2021, the Nevada Division of Water Resources (NDWR) completed a public survey to update the 1999 State Water Plan. The previous plan made general water data and information available to the public and addressed water policy issues and recommended actions for a sustainable water future. A lot has changed since 1999, and to address those changes, in 2022 NDWR released the results of the 2021 survey.

1,192 people in total participated, including a wide range of agricultural producers, business owners, tribal members, and more. Respondents were also from both urban and rural areas, with 39% of respondents living in rural or semi-rural areas of Nevada.

The biggest consensus in response to the survey was that of water sustainability. A striking 77% of respondents agreed that the sustainable use of water is extremely important. 79% shared that they now think about water issues more than they did in the past.

Among the biggest concerns were long-term water planning, wasteful or inefficient water use, and the need for conserving water for the future. In rural areas, water availability for agriculture and the transfer of water from rural basins to supply urban areas were major concerns.

Respondents were also asked to give their thoughts on potential long-term plans going forward. Many called for more public outreach, emphasizing the need for accessible, research-based data. Respondents also urged NDWR to provide more opportunities for stakeholder engagement. 

NDWR plans to use these findings to develop a water plan that addresses respondents’ concerns. The agency will consider the survey results when mapping out the direction of future outreach and education efforts. To read the full overview of survey responses, click here.

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

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

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

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

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

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

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

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Schroeder Law Offices not only advises on water issues, but we practice what we teach.  Schroeder Law Offices strives to connect with our clients on a personal level and to understand the practical implications and inconveniences client issues have on your lives.  We can do this, because we are people, too!

Schroeder Law Office Attorneys are ranchers, farmers, and rural homeowners.  Attorney Caitlin Skulan recently lived out some of these rural inconveniences when dealing with failed rural home water and sewer infrastructure. 

In her free time, Skulan spends time on a small 5-acre, in her words, “fixer upper” farm purchased with her husband in 2020.  Before and after work, Caitlin gardens, takes care of livestock, fixes fences, repairs and remodels outbuildings, and chases escapee chickens.  Being on a rural lot, Caitlin’s water is provided by a well.  The home is also equipped with a septic system for sewer. 

All was good as far as the water and sewer infrastructure for the first two years.  However, as any experienced rural homeowner knows, the lack of monthly sewer and water bills eventually comes with a price. 

I. Lessons in 1960s Septic Systems 

Imagine, your in-laws are visiting for a week from out of town, your spouse is away for work, you are working full time developing cases for trial, and you receive a call from your house guests that the showers aren’t draining!  You think nothing of it.  The drain is probably clogged with your sister-in-law’s hair.  You’ll take care of it when you get home.  Then the second call comes, the toilets aren’t flushing!  Now you start to worry.

Fast forward two days, three plumber visits, and a houseful of very disgruntled relatives, and you make a band aid fix, receive a quote for a complete septic line replacement, and are internally cursing the inventor of “Orangeburg” piping.

Orangeburg pipe is a bituminized fiber pipe made from layers of ground, compressed, wood pulp, bound by adhesive, and impregnated with coal tar pitch.  Effectively, it’s a cardboard pipe lined with tar. Also known as “no-corrode” pipe, Orangeburg pipe was commonly used for sewer pipes in homes built between 1945 and 1972.  The product owes its origins to World War II when iron and steel commonly used for sewer pipes were critical to the war effort and thus in short supply for building homes. The use of Orangeburg piping continued after the war ended because it was inexpensive.

Even when installed, the pipe was generally expected to last 50 years before deteriorating conditions would cause the systems to falter. As Orangeburg piping is essentially asphalt soaked paper that is in constant contact with water combined with the pressure of the soil above the pipe and subject to penetrating tree roots, it is not surprising pipes collapses and the system fails.  This is what Caitlin experiences in her 1960s home, requiring the pipe to be dug up, removed, and replaced with a new line. 

II. Sediment, Well Casing, and Calcium Deposits

A few weeks after the septic repairs, Caitlin noticed a reduction in water pressure and sediment in the water coming out of her faucets. Luckily, no house guests were present at the time. Initial research indicated this could be an issue with the well and a well company was called.

The well inspection indicated two things.  First, the water tank was flushed, and the well was in working order, but needed a sediment filter to filter tiny flakes of well casing out of the water. This is a cheap and minor fix as far as well repairs go.  Second, the water filtration system for the well needed to be replaced.  Caitlin, having completed the well inspection, sellers’ disclosures, and water quality test at the time she and her husband purchased their home, didn’t even know a water filtration system existed on the property and had, in fact, been advised not only to the contrary, but that given good water quality, one was not necessary. 

A new water sample was taken and a water quality test conducted to ensure the scope of filtration needed for the well.  While the water quality was within the limits of safe drinking water, the calcium levels were high enough to create concerns with the plumbing in the long term.  Calcium deposits in pipes are common in homes with “hard water” or high mineral contents.  Hard water can, and typically does, build up in drains and pipes. When left unresolved, this can cause corrosion or blockages.  While blockages in drainpipes can be easily and inexpensively resolved, the same is not the case for water supply pipes.  As such, the industry recommendation is to install a water softening system to prevent blockages from occurring or increasing.

III. Takeaways

At Schroeder Law Offices we emphasize due diligence before purchasing a property in an effort to “spend a dime to save a dollar.”  In the context of our practice, this usually means researching the validity, ownership, status, and adequacy of water rights that accompany rural properties.  However, completing due diligence research and inspections on rural water related infrastructure is important, too.

For water supply, a well inspection and water quality test by a reputable company is a must when considering purchasing a rural home.  However, lessons learned would recommend the well inspection and water quality test both be taken one step further.  Rather than rely on seller or realtor representation regarding water supply infrastructure, attend the well inspection yourself.  Ask the inspector to explain the system and its maintenance and upkeep. If necessary, schedule regular inspections to ensure everything is in working order. 

When water quality tests come back, even if safe for human consumption, ask the well inspector or a plumber if there are any concerns from an infrastructure perspective. If the water is hard, will it cause build up and is there any sign of mineral build up at the time of the inspection?  If a water filtration system must be installed, consider it in your purchase price or asking that one be installed by the seller prior to closing.

For septic systems, if the home was built between 1940 and 1990, strongly consider an inspection of the piping.  As Caitlin learned the hard way, having a septic inspection and service does not include an inspection of the pipeline from the home to the septic system.  Consider paying for a plumber knowledgeable in Orangeburg pipeline to camera and inspect the lines from the home to the septic system.  If the pipe is Orangeburg, factor replacing it into your purchase price or consider requesting the pipe be replaced by the seller as a latent defect in the property. 

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

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

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

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

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

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

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On October 3^rd, 2022, the Supreme Court heard the oral argument for the first case of its 2022-2023 term: Sackett v. EPA. The case calls into question the definition of “Waters of the United States” (WOTUS), as it will decide the proper test to determine which wetlands are considered WOTUS, and therefore subject to federal regulation from the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers under the Clean Water Act.

The case originated after Michael and Chantel Sackett purchased an Idaho property near Priest Lake in 2004. After the couple began building a home on the property in 2007, the EPA informed the Sacketts that they must stop construction and apply for a permit since their land contained a wetland that was adjacent to protected waters. Since the wetland is separated from Priest Lake by a road, the Sacketts claimed that their land is not subject to the Clean Water Act’s jurisdiction and sued the EPA. What followed is a legal battle that could potentially change which wetlands are considered WOTUS going forward.

The Clean Water Act was passed in 1972 in an effort to protect waters of the United States from pollution. Since then, the extent of protections provided by the Clean Water Act has been extensively questioned and changed. These changes  have been brought about by  Supreme Court rulings, plurality and concurring opinions of Supreme Court justices, and presidential administrations, especially those of Presidents Obama, Trump and Biden. 

The basis of both the Sacketts’ and EPA’s arguments can be found in the two waters tests proposed in the 2006 Supreme Court case Rapanos v. United States. The Sacketts have relied on the plurality opinion written by late Justice Antonin Scalia to support their case, which argued that wetlands should be considered WOTUS if the adjacent channels contained a “permanent” body of water such as a river, lake, or stream. Additionally, Justice Scalia argued that a wetland can only be considered WOTUS if it featured a “continuous surface connection” with a more permanent body of water.

The EPA is relying on retired Justice Anthony Kennedy’s concurring opinion in that same 2006 case. Justice Kennedy argued that wetlands must include a “significant nexus to navigable waters.” According to this definition, a wetland does not necessarily have to be continuously connected to navigable waters in order to be protected. Instead, the wetland must have a significant effect on the “chemical, physical, and biological integrity of the Nation’s waters.”

In response to  Sackett v. EPA, many agricultural groups have shared their experiences of uncertainty and hardship brought on by the shifting definition of WOTUS over the years. The Family Farm Alliance, along with other agricultural groups, including the USA Rice and National Association of Wheat Growers and the National Corn Growers Association, submitted an amicus (“friend of the court”) brief earlier this year to voice its perspective on the matter. The brief highlights the problems farmers and ranchers have faced due to the lack of clarity regarding the Clean Water Act’s jurisdiction, which has created confusion over whether waters on their property are subject to EPA and U.S. Army Corps of Engineers regulation.

During the October 3^rd oral argument hearing for Sackett v. EPA, Justice Ketanji Brown Jackson questioned the Sacketts’ legal counsel on the  difference between “abutting and neighboring wetlands” if the goal of the Clean Water Act is to protect the nations’ waters “chemical, physical, and biological integrity.” Justice Neil Gorsuch commented on the lack of clarity in the Clean Water Act’s definition of “adjacent,” which Justice Sonia Sotomayor pointed out made some of her colleagues critical of whether the term was “precise enough.” Justice Sotomayor went on to question whether there might be “another test that could be more precise and less open-ended” than the adjacency and significant nexus tests to determine which wetlands are protected. Sackett V. EPA, 21-454 U.S. (2022)  

As of now, Sackett v. EPA is pending adjudication before the Supreme Court. Considering the scope of the case, many expect the upcoming decision to have a significant impact on both environmental interests and the agricultural industry.

To learn more about wetlands and Clean Water Act jurisdiction, check out Schroeder Law Offices’ webinar on Wetlands: Due Diligence for Ditches, Drains and Ponds. 

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

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

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

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

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

Dave Simpson: dsimpson@ndep.nv.gov

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

P: (775) 687-9548  F: (775) 687-5856 

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

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