More and more in Oregon, hopeful groundwater use applicants are finding that proposed uses of groundwater are denied by the Oregon Water Resources Department due to the agency’s finding of hydraulic connection with surface water sources and the potential for groundwater use to cause substantial interference with existing surface water rights. When the agency makes such findings, the Department looks at whether surface water is available to support the proposed new groundwater use, and, in most cases, it is not – either the administrative basin rules prohibit the new use, or surface water availability data shows that surface water is not available. In short, the proposed groundwater source is too connected to surface water for the agency to approve the application.

But an enigma exists in Oregon water law where the same source of groundwater is not connected enough to surface water to allow a surface-water-to-groundwater transfer. Transfers allow water right holders to change the terms of their water use rights. In some cases, surface water right holders may wish to change their surface water points of diversion to groundwater wells. That type of change is authorized under Oregon law, but the administrative rules impose certain distance and connectivity requirements. First, the well cannot be more than 500 feet from the authorized point of diversion, or else a geology report must accompany the application to attest to the connection between the sources of water. Second, the proposed groundwater use must affect the surface water source “similarly,” meaning the use of groundwater would result in stream depletion of at least 50 percent of the rate of appropriations within 10 days of pumping. The Oregon Water Resources Departments uses stream depletion modeling to determine if this factor is met.

It is often difficult for water users to predict whether their proposed use of groundwater will affect the surface water source similarly, especially because the Oregon Water Resources Department is far from consistent when it comes to its application of various models. However, in our experience, certain factors heavily affect the outcome of surface-water-to-groundwater transfers. For example, is the well existing or proposed? If the well is existing, the source aquifer for the groundwater use is certain, whereas the Department may make assumptions related to proposed wells. Applicants often do not include a certain depth figure for a proposed well in their transfer application because their well driller will need to make that determination during the drilling process. If the majority of the wells in the area of the proposed well are drilled into a confined aquifer, the Department is likely to assume that the proposed well will be similarly constructed in order to be productive, and may deny the application on the basis that the source of groundwater pumped from the proposed well will not be connected enough to the surface water source. Thus, the proposed source of groundwater should be unconfined, and the proposed well should be drilled extremely close to the authorized point of diversion to allow the applicant the best chance of success.

All too often, we talk to water users who were advised by other consultants that surface-water-to-groundwater transfers are automatically approved so long as the proposed well will be within 500 feet of the authorized surface water point of diversion. That is not the case! It can be difficult to get the Oregon Water Resources Department’s approval on these types of transfers, and therefore it is very important to understand the factors that affect the agency’s decision and the water user’s options.

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

Starting September 29, 2019, natural gas providers in Oregon will have a new, renewable way of powering their customers’ homes. Governor Kate Brown executed a new law at the end of July, 2019 allowing capture, treatment, and conversion of methane found in wastewater into renewable natural gas (“RNG” or “biogas”), which can then be used to provide power to homes using existing infrastructure.

While converting wastewater to RNG is more expensive than fracking, biogas burns more cleanly than traditionally-obtained natural gas and provides environmental and health benefits by significantly reducing carbon emissions. Additionally, the law requires utility companies to “deliver service as cheaply as possible,” a contingency aimed at preventing a steep increase in price to the consumer.

Lane County, Oregon will begin construction of facilities to produce RNG next year. The biogas will then be sold to public utilities for distribution to their customers as early as 2021. Originally, Lane County planned to use the biogas as an alternative source of fuel for vehicles. Now, the practical potential to use biogas as a renewable resource has expanded.

With the passage of this law, biogas can be used to power homes and businesses. However, RNG has long been used throughout the State of Oregon as a source of renewable energy.

Since 1986, the Columbia Boulevard Wastewater Treatment Plant in Portland, Oregon has used biogas produced and captured at the plant to heat the plant itself, along with a nearby industrial roofing facility. Portland is also developing facilities to convert methane to biogas for use as an alternate source of fuel for diesel engine vehicles. The fuel will be sold to the public and used for City vehicles. Production is expected to begin in early 2020.

Threemile Canyon Farms near Boardman, Oregon started converting cow manure into electricity in 2009, and has expanded its facilities multiple times in the past decade. Currently, the dairy is the largest manure digester in the western United States. In 2017, it announced its plan to begin converting wastewater into RNG. In April, 2019, the Department of Environmental Quality approved Threemile’s application for a modified air quality permit, allowing it to move forward with the project.

The Durham Water Resource Recovery Facility in Washington County, Oregon repurposes wastewater in a variety of ways. The facility has captured phosphorus in wastewater and converted it to fertilizer since 2009. The fertilizer is then sold commercially around the Pacific Northwest. Since 2016, it has also converted wastewater and food grease into electricity that provides 60% of the plant’s power.

In these ways, Oregonians have been meeting Clean Water Act and Clean Air Act requirements through innovations that also provide additional revenue streams. We are excited to continue watching these industries move forward and spread to larger applications.

Stay tuned to Schroeder Law Offices’ blog for updates on these and other projects!

Reports of a broken barge lock at the Bonneville Dam on the Columbia River surfaced on September 9th. The crack was discovered last week and crews began working Monday morning on repairs. The cause of the damage is unknown. To begin the repairs, the crews must first demolish the cracked concrete section. It remains unclear, however, when the repairs will be complete.

Navigation locks allow barges to pass through the concrete dams that were built across the Columbia and Snake Rivers to generate hydroelectricity for the West. A boat will enter the lock which is then sealed. The water is then lowered or raised inside the lock to match the level of the river on the other side of the dam. When the levels match, the lock is then opened and the boat exits.

The concrete that needs to be repaired acts as the seal for the lock. The damage to the concrete at the Bonneville Dam resulted in significant leaking—enough that water levels were falling when the lock was in operation. Thus, immediate repair was necessary.

The Columbia River is a major shipping highway and the shutdown means barges cannot transport millions of tons of wheat, wood, and other goods from the inland Pacific Northwest to other markets.

Eight million tons of cargo travel inland on the Columbia and Snake rivers each year. Kristin Meira, the executive director of the Pacific Northwest Waterways Association said that 53% of U.S. wheat exports were transported on the Columbia River in 2017.

According to the U.S. Army Corps of Engineers, about $2 billion in commercial cargo travels the system annually, and it is the top export gate in the U.S. for wheat and barley and the number two export gate for corn.

This shutdown comes as terrible news for farmers in inland Oregon, Washington, and Idaho trying to ship their wheat out. Rob Rich, vice president of marine services for Shaver Transportation, said that farmers truck their wheat to 27 inland grain elevators where it is loaded onto barges headed to the Pacific Ocean. He also stated that rail and trucking are not reliable alternatives.

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

Since 1991, the Stockholm International Water Institute (“SIWI”) has organized and hosted World Water Week. This annual event is designed to bring awareness to water issues and developments around the world. This year, World Water Week takes place at the Tele2 Arena in Johanneshov, Sweden from August 25 through August 30.

Throughout the week, seminars and events will be hosted by individuals and organizations from every corner of the globe. The theme for 2019 is “Water for Society- Including All.” Topics include climate change and sustainability, sanitation and health, equal representation in water-related industries, the impact of modern technology on water consumption and monitoring, and the evolving use of water in farming and industrial practices, among others. These events provide opportunities for discussion of ongoing water issues between industry leaders and students alike.

World Water Week also provides an opportunity to honor achievements in conservation, preservation of resources, and water management. The Stockholm Water Prize and the Stockholm Junior Water Prize are awarded annually to major contributors and innovators in the water world. Anyone who has made “extraordinary water-related achievements” is eligible for nomination, and past winners have hailed from Denver, Colorado to Phnom Penh, Cambodia, and everywhere in between.

Of course, not everyone can make it to Sweden. However, there are still plenty of ways to celebrate World Water Week! SIWI’s website has a wealth of information about global water issues, including blog posts, news articles, and information on areas SIWA considers priorities in terms of water conservation and development. There are also organizations around the United States similarly dedicated to encouraging knowledge of and involvement in water issues on a local level. A list of organizations participating in World Water Week can be found here.

World Water Week provides a great opportunity to promote awareness of water usage and conservation around the world. Still, water issues persist year-round. Stay tuned to Schroeder Law Offices’ blog for water law and water new updates all year long!

Notice regarding final requests for revision of the mapping of Newlands Project Water Rights has been issued by the Nevada Division of Water Resources (“NDWR”). NDWR is overseeing the revision process of identifying and mapping water rights in the Newlands Project, and will be assisting water rights owners with identification and revision as is required. Though more information regarding the project schedule can be found on NDWR’s online database, the following workshop dates will be available to Newlands Project water right owners at the below-listed locations:

Fernley City Hall
Room 136
595 Silver Lace Blvd.
Fernley, NV 89408

• Monday, August 26, 1:00pm to 7:00pm
• Tuesday, August 27, 1:00pm to 7:00pm
• Wednesday, August 28, 9:00am to 3:00pm
• Thursday, August 29, 9:00am to 3:00pm

Churchill County Commissioners
Community Room
155 N. Taylor Street, Suite 110
Fallon, NV 89406

• Monday, September 9, 1:00pm to 7:00pm
• Tuesday, September 10, 1:00pm to 7:00pm
• Wednesday, September 11, 9:00am to 3:00pm
• Thursday, September 12, 9:00am to 3:00pm

The final map viewing and revision process started on July 1, 2019, with all Requests for Revision and supporting documentation due to NDWR no later than September 30, 2019. Upon review of water rights, owners can provide updates to NDWR via NDWR’s Request for Revision form.

Newlands Project water right owners are encouraged to review their water rights of use and submit the Request for Revision form if they believe that their water rights are inaccurately represented by the mapping project. Once all revision requests have been received and reviewed, the State Engineer will make final determinations. Currently, the completion date for the final report is set for September of 2020.

Upon request, Schroeder Law Offices can assist Project water users in the process or otherwise advise on the legal consequences of improperly mapped water rights.

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

Assembly Bill 62 (AB 62)

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

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

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

Assembly Bill 95 (AB 95)

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

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

Senate Bill 140 (SB 140)

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

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

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

Schroeder Law Offices is pleased to announce that Attorney/Partner Sarah Liljefelt accepted the position of Water Resources Committee Chair for the Oregon Cattlemen’s Association, beginning in the coming year. Sarah has been a member of the Oregon Cattlemen’s Association for many years, and has been very active with the Oregon CattleWomen as Vice President and Legislative Committee Chair. She is excited to use her Oregon water resources knowledge to support and defend the Oregon Cattlemen’s Association’s water interests in the years to come.

Sarah’s new position was announced earlier this week when she presented at the Oregon Cattlemen’s Association’s Mid-Year Conference in Canyonville, Oregon. Sarah provided an update on the Klamath River Basin Adjudication and conjunctive surface water/groundwater management in the Klamath Basin. Some of the other highlights from the conference included an update of Western Resources Legal Center’s recent victories by Executive Director Caroline Lobdell (Sarah is a former WRLC law clerk), and a trip to Melrose Vineyards (https://www.melrosevineyards.com/) with the Oregon Cattlewomen – beautiful location, friendly staff, and great food and wine!

As most of us are aware, Earth Day has become a global occurrence for which communities host events throughout the week of the holiday. This year, Earth Day fell on Monday, April 22, and communities around the world hosted festivities such as community clean-ups, tree-plantings, and educational events that focused on climate literacy and bringing awareness to climate science for the purpose of encouraging individuals to participate in the preservation of our communities.

Though celebrated annually, Schroeder Law Offices’ (“SLO”) mission includes providing services to those that feed our communities and we consider environmental preservation on a day-to-day basis. SLO works daily with clients such as municipal water users and districts, corporations, and both individual and family farmers to maximize production and efficiency of water use. As we like to say, we do EVERYTHING water!

For ideas on how you can take action for making every day an Earth Day, visit the Earth Day Network’s website for ideas and to learn about “A Billion Acts of Green,” the campaign to reach 3 billion acts of green for the Earth Day holiday’s 50th anniversary in 2020.

Research indicates that planting additional trees may have huge benefits in generating rainfall, thus, consider spending time outside this spring and plant a tree with the goal of bringing freshwater to your community!

Other than providing legal services to our clients, a component of our mission at Schroeder Law Offices is to educate water users on water topics including law and resource planning.  

The attorneys at Schroeder are experienced in the world of water and frequently provide educational presentations at both public and private events. Due to the attorneys’ diverse experiences presenting, they are able to tailor their presentations to groups big and small and audiences from any industry.

Water Related Presentations topics include (among others):

• Basic Water Rights
• Advanced Water Rights
• Due Diligence & Compliance
• Research in Adjudications
• Water Quality
• Surface Water & Groundwater
• Conjunctive Management

If you or your organization is in need of water related education, please reach out as we are happy to be a resource for you!

Visit our website for a full list of speaking and presentation topics.

When most of us think about the changing seasons, we think about the change in weather. When we think about the transition to Summer, we think about the days getting warmer. When we think about the transition to Winter, we think about the days getting colder. There is much more to changing seasons than changes in weather.

According to Merriam-Webster, the definition of a season is “a period of the year characterized by or associated with a particular activity or phenomenon.” Examples of this definition include a period associated with activities of agriculture such as growth or harvesting, irrigation seasons, periods when animals engage in certain activities like migration, birth of offspring, and moving from high “summer” country to low “winter” country. In life, one can characterize the seasons with the circle of life with birth or renewal in the spring and death, hibernation and sleep in the winter. There are so many ways we can perceive these natural changes each year.

The National Oceanic and Atmospheric Administration points out that seasonal changes in turn affect soil moisture, evaporation rates, river flows and lake levels. The subsequent changes in vegetation also affect the amount and kinds of crops and food available for humans, animals and other organisms.

The effects of seasonal changes also present potential risks. The Federal Emergency Management Agency (“FEMA”) provides warnings of risks presented in the seasonal change to Spring. FEMA notes that while Spring typically brings warmer weather and longer days, it also brings risk associated with heavy rains, severe weather and rapid snowmelt that can lead to flooding and/or damage to levees and dams. For more information concerning risks and protection from spring flooding, please visit FEMA’s “What You Should Know” at https://www.ready.gov/sites/default/files/Spring_Flood_Fact_Sheet.pdf.

So, as the seasons change and we swap out our wardrobe for the changing temperature, lets remember a change in season is so much more than just a change in weather.

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

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

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

The 20th annual National Groundwater Awareness Week will occur between March 10 – March 16, 2019, and this year’s theme for awareness is “Think.” Though a simple theme, through “Think,” the National Groundwater Association (“NGWA”) urges us to “think” about how we impact our groundwater resources in our everyday lives.

For National Groundwater Awareness Week 2019, NGWA encourages us to consider small steps taken to improve the general public’s awareness of groundwater use and its importance in our every day lives, i.e. “Think” about not running the water while you brush your teeth, or, “Think” about fixing the leaking faucet. Sometimes it’s the smallest things that makes the biggest differences!

Taking steps to conserve and protect groundwater is of utmost importance to all as we depend upon groundwater for basic needs. According to NGWA research, approximately 132 million American rely on groundwater for drinking water. Besides drinking water, groundwater consists of a major resource in food and power production, including irrigation, livestock, manufacturing, mining, thermoelectric power, and many other resources. NGWA offers the following facts for consideration:

• Americans use 79.6 billion gallons of groundwater each day.
• Groundwater makes up 20 to 30 times more water than all U.S. lakes, streams, and rivers combined.
• 44 percent of the U.S. population depends on groundwater for its drinking water supply.
• More than 13.2 million households have their own well, representing 34 million people.

“Think” about that!

As a part of 2019’s Groundwater Awareness Week, NGWA will be participating in the Water Resources Congressional Summit to bring federal support for groundwater awareness. Topics for the summit will focus on bringing federal support for detection and remediation regarding PFAS contamination, increasing efforts to promote groundwater recharge, and bolstering support for drinking water infrastructure improvement. More information and educational tools on the 2019 summit topics can be found at the NGWA’s online database.

“Think” about what you might do to bring groundwater awareness to your friends and family!

According to Black’s Law Dictionary, the Public Trust Doctrine preserves submerged and submersible lands for public use and the state bears the responsibility of preserving and protecting the public’s right to use the water upon it. Can this doctrine have an impact on your water rights, and if so, how? The Nevada Supreme Court is currently considering how the Public Trust Doctrine will apply in Nevada. Specifically, the two certified questions being considered by the Court are:

1. Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent?
2. If the public trust doctrine applies and allows for reallocation of rights settled under the doctrine of prior appropriation, does the abrogation of such adjudicated or vested rights constitute a “taking” under the Nevada Constitution requiring payment of just compensation?

Several Amicus briefs have been filed and more are expected.

Most recently the Nevada Water Resources Association held a discussion at their annual conference debating the many issues related to the intersection of Public Trust Doctrine and already Decreed water rights on the Walker River system. Schroeder Law Offices’ shareholder Therese Ure will be presenting in March on the Public Trust Doctrine and how it applies to water rights to a small group in Lovelock Nevada, to further consider the intersection of Decreed water rights and this Doctrine.

The U.S. Society for Irrigation and Drainage Professionals (USCID) will be holding their 12^th International Conference on Irrigation and Drainage in Reno, NV on November 5-8, 2018 and we are excited to announce that Therese Ure has been selected as Conference Co-Chair. The conference theme this year is Basin Water Management – Challenges in Water Management at the Basin Scale. Under this theme the specific topics that will be presented on include:

• Basin Water Management/Governance/Jurisdictional Issues
• Competing Urban, Industrial, Agricultural and Environmental Water Uses
• Environment
• Basin Water Planning
• Water Supply and Demand Management
• Water Transfers
• Conjunctive Use of Groundwater and Surface Water
• Technologies

The conference planning committee is currently accepting abstracts for proposed papers that are specifically related the conference topics listed above. If you are interested in submitting your abstract the deadline is March 15, 2019. For additional information regarding the call for papers please see the call for papers announcement or visit the USCID.

For other relevant dates, please find the conference schedule listed below:

• Abstracts Due  —        March 15, 2019
• Notify Authors —        April 1, 2019
• Draft Papers Due —    June 3, 2019
• Comments to Authors  — July 22, 2019
• Final Papers Due —     August 30, 2019
• Conference — November 5-8, 2019

We hope you have the opportunity to attend this highly educational event!

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.

It’s that time of year again! As 2018 draws to a close, Schroeder Law Offices wants to remind Oregon water users that the deadline to submit water use measurements to the Oregon Water Resources Department (“OWRD”) is December 31, 2018.

Many permits and certificates for both surface and groundwater rights contain language specifying the type of meter and frequency of measurements and reporting required in order for the user to remain in compliance with the terms of their water use rights. These requirements are typically along the lines of:

Before water use begins, the user must install a meter or other suitable measuring device approved by the Director at each point of appropriation or diversion. After use begins, the user must maintain the device in good working order.

The user must keep a monthly record of the volume of water diverted, and submit a report which includes these measurements to the Department annually, or more frequently if required by the Director. Further, the Director may require the user to report general water use information, including the place and nature of use of water under the permit.

Not all water users are required to report their water use; therefore, it is important to be aware of the conditions set forth in your permits and certificates and to make sure you remain in compliance.

If the water use reporting condition is included, you can find the reporting form on OWRD’s website here. You can also report your water use online here. You will note that the “water year,” as outlined in the reporting form, runs from October through September, annually.

Schroeder encourages water users with this condition to take meter readings at the end of each month and to keep that information in their files along with a copy of the reports submitted to OWRD annually.

Stay tuned to Schroeder Law Offices’ blog for more helpful tips and reminders, and don’t forget to submit your reports by December 31, 2018!

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!

We all know that pumpkins make great fall decorations and are an icon of this Halloween holiday, however they also provide many more less known benefits. According to the Old Farmer’s Almanac, all parts of pumpkins are edible except the stem and if kept in a cool, dry space, will keep for up to 6 months or more! Pumpkins are a good source of fiber, vitamin C, several of the Vitamin B complexes, potassium and carotenoids that play a role in cancer prevention, controlling blood-sugar levels and boosts the immune system.

Adding pumpkins into crop rotations help farmers. Their presence helps soil maintain a nutrient balance, reduces weed problems and decreases the likelihood of disease spores, eggs and pests. According to Texas A&M Horticulture, planting pumpkins directly after harvesting sweet corn helps to decay a coarse crop refuse that is resistant to many other crops. And planting pumpkins directly after grass crops results in fewer diseases to the pumpkins. Pumpkins are also unique in that they can tolerate soils with low pH levels as well as extremely acidic soils.

Pumpkins are also somewhat tolerant of dry soil conditions and in certain locations farmers can rely solely on rainfall. When rainfall is inadequate, irrigation is essential especially during the pollination and fruit set periods. Many farmers have found that using a drip system to water their pumpkin crop saves time and money by using less water than flood irrigation or center pivot sprinklers.

Pumpkins have both male and female flowers and pollen transfer is a necessary event. Historically many farmers relied on native bees to transfer the pollen, however, due to a decline of bee population in certain areas, some farmers have resorted to renting bee hives for the first few weeks of flowering. Weeds, insects and diseases are a constant battle for pumpkin farmers as well. Farmers are in constant flux of fighting off pests and diseases while maintaining the integrity of the environment necessary for other activities such as bee pollination.

Pumpkins are beneficial in so many other ways than their decorative purposes. The next time you see a pumpkin, remember all of their unique qualities and ways they benefit the farming industry.

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.