Water use conditions in the Klamath Basin continue to worsen in 2018. On March 8, 2018, a water “call” was made in the Klamath Basin, and the Oregon Water Resources Department (“OWRD”) began the validation process for shutting off junior water users. Within the week, on March 13^th, Governor Kate Brown declared a drought in Klamath County, Oregon, the first drought declaration since 2015, coming much sooner than hoped or predicted.

In April, OWRD began regulating off water users in the Klamath Basin. On April 13, the Oregon Water Resources Commission approved temporary emergency rules granting a preference to water rights for human consumption and stock watering in Klamath County. The rules allow certain water users with water rights for human consumption and stock watering to continue using surface water for such uses despite OWRD’s regulation off of water use rights. Exempt uses of groundwater, including domestic and stock uses, may also continue despite OWRD’s regulation. The Commission passed similar temporary rules granting the same preferences during the last drought period.

Also in April, Klamath Project water users found themselves unable to begin irrigating due to a federal court injunction. The Hoopa Valley and Yurok Tribes in northern California previously brought suit against the Bureau of Reclamation and National Marine Fisheries Service in federal court, alleging mismanagement of the Klamath River below the four major dams lead to an outbreak of C. shasta, a parasite that infects juvenile Coho salmon. The court entered an injunction requiring 50,000 acre feet of water stored in Upper Klamath Lake to flush and dilute the parasite until most of the salmon have migrated to the ocean, usually occurring after the beginning of June. Irrigators and irrigation districts petitioned the court to lift the injunction, but the court declined to do so in 2018. For more information, see May 1 article from the Capital Press, Judge upholds Klamath River Injunction.

In May, the Klamath Irrigation District brought suit against OWRD, seeking to compel the agency to take exclusive charge of Upper Klamath Lake to distribute water according to the district’s water use rights determined by the agency in the Klamath Basin Adjudication. The district alleges that it disagrees with the Bureau of Reclamation and PacifiCorps as to the proper distribution of water, and those entities are releasing without valid water use rights, causing injury to the district and its patrons. 

Also in May, the Klamath Tribes filed suit in federal court in northern California against the Bureau of Reclamation, US Fish & Wildlife Service, and National Marine Fisheries Service, alleging violations of the Endangered Species Act and National Environmental Protection Act by failing to maintain appropriate elevations in Upper Klamath Lake. The Tribes seek declaration of the alleged violations, an injunction against further jeopardy and habitat modification, and for the agencies to reinitiate consultation resulting in a new biological opinion.

Finally, on April 27, 2018, the Klamath County Circuit Court issued a Case Management Order in the Klamath Adjudication, outlining a schedule for hearing the first substantive exceptions filed with the court since the judicial phase of the adjudication began in 2013. First the court will decide exceptions made against federally reserved water claims, excluding Tribal claims. Next, the court will decide exceptions against Walton and Klamath Termination Act claims. Third, the court will decide exceptions to Tribal claims. Numerous exceptions have been filed with the court, alleging OWRD awarded too much water to these claims, ignoring the pertinent legal standards for deciding these claims, to the detriment of other Klamath Basin water users. A decision on the first group of exceptions is not anticipated until 2019.

The Upper Klamath Basin Comprehensive Agreement was terminated on December 28, 2017. The agreement called for retirement of irrigation rights to increase stream flows into Upper Klamath Lake by 30,000 acre feet per year. This “retirement” (or cancellation) of water use rights, which was negotiated largely in the absence of upper basin irrigators, was viewed unfavorably by many of the affected irrigators, and was ultimately not funded by Congress. Discussions about alternative agreements continue to this date.

Overall, the return of drought conditions, coupled with fish disease and five years of merely procedural rulings in the Klamath Basin Adjudication, have left water users in the Klamath Basin in serious trouble.

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

For over half a century, the question of how to conserve and replenish water in Idaho’s largest aquifer, the Eastern Snake Plain Aquifer (ESPA), has been on the collective minds of the state’s water users. Serious droughts in the 1990s increased pressure on the ESPA resource, and preliminary recharge efforts were unsuccessful. Finally, in 2009, the ESPA Comprehensive Aquifer Management Plan, otherwise known as CAMP, was signed into law. CAMP’s goal is to annually recharge 100,000 acre feet (af) during the first ten years of the plan’s implementation, followed by 250,000 af per year thereafter.

The recharge comes from a combination of sources. The Idaho Department of Water Resources (IDWR) also supports canal companies and irrigation districts recharge projects, rotations and efficiency reductions.

The 100,000 af goal was not quite reached in the first few years. Recharge was roughly 75,000 af in both the 2014-2015 and 2015-2016 seasons. However, the 2016-2017 saw 317,000 af returned to the ESPA, far exceeding the 100,000 af goal. The 2017-2018 season is shaping up to be even better. Over 350,000 af have already been replenished.

ESPA’s recharge success is good news for the residents of southern and eastern Idaho, and Idaho in general, as roughly 25% of Idaho’s economy is dependent upon agricultural output from the region. Unfortunately, CAMP’s success in the ESPA has not been matched by similar programs throughout the state and region. The Rathdrum Prairie Aquifer (RPA) in the northern part of the state, which is responsible for roughly 8% of Idaho’s production of goods and services, has a CAMP program in place. However, the RPA has not been nearly as successful as the ESPA at achieving substantial recharge. Another CAMP program has been proposed for the Treasure Valley, but has been delayed due to ongoing discussion between legislators and constituents.

In Washington, the Odessa Groundwater Replacement Program (OGWRP) was implemented to reintroduce water back into the Odessa Aquifer. Several initiatives under the umbrella of this program have been enacted, and have had reasonable success. However, efforts have focused more on limiting usage of the aquifer rather than reintroducing water back into it. Oregon has also taken steps to encourage recharging of its aquifers. However, as illustrated by the attempts in the Umatilla Basin, these programs have struggled to achieve significant recharge.

CAMP’s success did not come overnight. As with any major experimental project, it took decades of planning, communication, and compromise to achieve the ESPA’s level of recharge. Nonetheless, the potential for aquifer recharge demonstrated is inspiring, and will hopefully pave the way for similar projects throughout the West.

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

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

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

A few main events will take place during Water Week:

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

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

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

On February 1, 2018, the Ninth Circuit Court of Appeals upheld the “groundwater conduit theory,” whereby a discharge of pollutants into groundwater that is fairly traceable to a navigable surface water is the functional equivalent of a discharge directly into the navigable water body for the purpose of regulation under the Clean Water Act. This argument has been proffered many times in the past, but prior to this case this theory had, at best, narrow and limited success. The full Ninth Circuit case is available here.

The case involved the County of Maui, Hawaii and its wastewater treatment plant. The plant uses four wells as its primary means of disposing effluent into groundwater and the Pacific Ocean. The County injects three to five million gallons of treated wastewater per day into its wells, and, according to the County’s expert, when the County injects 2.8 million gallons of effluent per day, the amount of effluent that reaches the ocean is 3,456 gallons per meter of coastline per day. The Court stated this is “roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline.”

Discharges of pollutants may be authorized by permit under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). Jurisdiction under the Clean Water Act requires three things: 1) addition of a pollutant 2) to a navigable water 3) from a point source. This case focuses on the third requirement. Clean Water Act cases hold that a point source is a discernible, confined, and discrete conveyance, which in a lot of cases really means a pipe, ditch, or canal.

Wells do not directly connect to navigable water (in this case, the Pacific Ocean). Instead, the water injected into wells must travel through groundwater to reach the ocean. In 2013, the EPA, Army Corps of Engineers, Hawaii Department of Health, and University of Hawaii conducted what is called a “tracer dye study.” Essentially, they put dye into the wells and then monitored the ocean for the dye. At its conclusion, the study found a hydraulic connection between two of the wells and the ocean.

The Ninth Circuit concluded that point source discharges that travel indirectly through groundwater to a navigable water, is a violation of the Clean Water Act if the discharger does not have a permit. The Court reasoned that “this case is about preventing the County from doing indirectly what it cannot do directly.” Since the County could not build a waste pipe that emptied directly into the ocean without a permit, it could do so indirectly through its wells to avoid the requirements of the Clean Water Act. 

There are currently cases before the Fourth and Sixth Circuits which also implicate the groundwater conduit theory. If the holding by the Ninth Circuit is adopted by other Circuits, it will represent a change for the NPDES permitting program and regulation under the Clean Water Act. On the other hand, if a split develops in the Circuits, it may lead to litigation in the United States Supreme Court.

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

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

World Water Day is an event hosted annually by the United Nations on March 22nd. Each year the event has a theme, and 2018’s theme is “Nature for Water.” Events surrounding World Water Day will focus on nature and how we can use our natural resources to overcome the water challenges of the 21st century. There are water-related crises occurring around the world caused by both environmental damage and climate change. World Water Day 2018 will explore how nature-based solutions have the potential to solve many of the challenges we currently face as a global society. Click here for a list of events occurring for World Water Day across the globe.

The headline facts for World Water Day this year focus not only on water demand, but water availability and water quality. Here are a few of their headline facts on water demand, availability, and quality:

• Demand: 2.1 billion people lack access to safely managed drinking water services
• Availability: Today, around 1.9 billion people live in potentially severely water-scarce areas. By 2050 this could increase to around 3 billion people.
• Quality: Globally, over 80% of the wastewater generated by society flows back into the environment without being treated or reused.

In the United States, most regions have water districts and agencies that oversee water use as well as its reuse, helping to replenish local resources while monitoring for drought or scarcity issues. While this may be true for our country, United Nation’s Water (“UN Water”) works to bring awareness to those places in which regulations are not as well-monitored or addressed, and also brings awareness to improvements that can be made in developed regions. While World Water Day 2018 will bring focus to these issues, more research is required for solutions that impact all corners of the globe. On March 22nd, expect the World Water Development Report to be released highlighting the performance, impact, and scalability relevant to the nature-based solutions thus far.

The UN Water online database contains resources regarding sustainable development goals for clean water and sanitation for further information.

Groundwater is one of the world’s most essential natural resources! According to the United States Geological Survey department (“USGS”) groundwater makes up approximately 1/3 of the public drinking water supply delivered though our county and municipal systems. For rural populations not connected to county or city delivery systems, groundwater makes up about 90% of their drinking water. USGS also reports that groundwater provides over 50 billion gallons per day for agricultural use in the United States. Groundwater pumping has been steadily increasing. In some basins groundwater is being extracted at a faster rate than the basin can recharge. As we are seeing in many states, this excessive pumping can lead to wells drying up, water level decline in hydraulically connected streams and lakes, reduction in water quality, increased costs associated with pumping, and subsidence issues crossed by the loss of water supporting our ground and soils.

The National Groundwater Association (“NGWA”) encourages everyone to participate in National Groundwater Awareness Week. According to NGWA, this year’s theme is “Test. Tend. Treat” to encourage a more holistic approach to groundwater conservation. NGWA is encouraging others to share their stories during this week on social media using the hashtag #GWAW2018. If you are looking for other ways to get involved and promote ground water awareness, the USGS and other water organization have provided some ideas (http://groundwaterawarenessweek.com/). During 2018 National Groundwater Awareness Week, let’s evaluate our own water use and identify ways we can help protect this valuable resource!

Hydropower relicensing and compliance has become a process of constant adaptation and engagement, both with regulatory agencies and with stakeholders. Both adaptation in the licensing and relicensing process and engagement early and frequently helps hydropower facilities better anticipate and adapt to a regulatory process that undergoes many changes in the life of a hydropower license and even in the multiple years (or decades) it can take for relicensing.

Common themes at the Northwest Hydroelectric Association Conference last week in Portland included the importance of engagement with the Federal Energy Regulatory Commission (FERC) when undertaking relicensing, even in pre-filing phases, to determine the scope of a facility’s study plan. This focus on engagement with FERC is largely driven by the Integrated Licensing Process that requires more pre-filing consultation and involvement with FERC and other resource agencies and stakeholders, such as Indian Tribes, rather than the Traditional Licensing Approach in which review and consultation are a sequential process.

Not only is engagement critical, and now required by FERC, but it helps hydropower projects better adapt to changing natural resource protection requirements during the relicensing process. National Environmental Policy Act (NEPA) compliance continues to require extensive analysis in the pre-filing process to conduct scoping with FERC and the resource agencies. Throughout the regulatory workshop, participants emphasized that hydropower facilities’ staff can effectively manage issues, such as invasive species, and will have a better grasp of their license conditions to ensure compliance with and adaptability to license conditions once a license is issued if there is engagement.

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

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

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

Do you need funding for a water related study or water use project? The Oregon Water Resources Department’s Development Program is part of Oregon’s 2017 Integrated Water Resources Strategy. The program helps individuals and communities address instream and out-of-stream water needs now and into the future by providing funding opportunities for planning and investing in water use projects. The program is now accepting applications for two funding opportunities: Water Project Grants and Loans and Feasibility Study Grants.

Water Project Grants and Loans are available for instream and out of stream water supply projects that result in economic, environmental, and social/cultural benefits. Loan application materials can be found here, and are due by 5PM on April 25, 2018.

Feasibility Study Grants provide funding to help evaluate the feasibility of a proposed conservation, reuse, or storage project. A grant can provide up to 50% of the total costs of the study, but no more than $500,000 per project. Application materials can be found here, and are due by 5PM on October 17, 2018. 

For more information regarding these funding opportunities please visit the Water Resources Department page.

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

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

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

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

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

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

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

Stay tuned as Schroeder Law Offices brings you updates!

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

By Therese Ure and Lisa Mae Gage

Many people are familiar with looking up water right information on Nevada Division of Water Resources (“NDWR”) database and are familiar with reading water right applications, permits and certificates. Is that information reliable enough to conclusively show what your water rights are? The answer is no. Several factors affect the reliability of information found on NDWR’s database and information listed on water right applications, permits and certificates.

NDWR Database

NDWR’s database is not always an accurate reflection of the current standing of a water right. While NDWR strives to maintain its database with the most current and accurate information, you must remember the disclaimer wherein NDWR provides no warranty regarding the accuracy, adequacy, completeness, legality, reliability or usefulness of the information contained within the database. The database is a useful tool to start your search, but it is by no means the last step!

Dual Recording System

Reviewing the database ownership records helps, but often times, water owners forget to “record” water ownership transfers with NDWR after completing the process with the County Recorder. Like the official real property records being maintained by the County Recorder, another set of official records for water rights of use are maintained by NDWR. NDWR updates ownership of water rights, not land, but only upon notification by the water right owner. NDWR has no knowledge of the water use change in ownership until the new owner directly notifies NDWR by filing a Report of Conveyance. Oftentimes new water right holders are unaware of their responsibility to separately notify NDWR of a change in ownership of water rights and therefore NDWR’s listed owner of record may not be accurate.

Water title transfer histories can become vague and confusing, especially when land is subdivided or water rights are expressly transferred off the original place of use property. Following the chain of title of the water rights may take a great deal of time and effort. Most County Recorder offices are updating their systems to allow viewing of recorded documents online, however, research of older documents often times requires physical research and inspection at the County Recorder’s office.

Changes in Water Right Elements

A water right Certificate outlines the elements of a water right at the time it was issued, however these elements can be changed over time. Some of the main “elements” include the source of water, how and when the water can be used, where the water can be used, and the rate and duty the water use. After a permit or certificate is issued, change applications can be filed changing all or a portion of the water use. A water right holder can sell a portion of the right, subsequent permits and/or certificates can be issued for water that is stacked or comingled with the initial water right, or portions of water rights can be lost through cancellation, abandonment and/or forfeiture. It is important to review the entire water right file to verify if any elements of the water use elements have been changed.

Basin Wide Orders

The State Engineer administers water rights in the state of Nevada. Many of the hydrographic groundwater basins are over appropriated and in need of close monitoring. The State Engineer often times issues orders related to groundwater basins that may change terms or add additional requirements to a water use that were not originally listed on the Permit or Certificate. Reviewing information concerning the basin as a whole is an important tool to determining impacts to individual water rights.

It’s no question that water rights are and will always be a very valuable resource. Water right elements, terms and requirements can change over time. While we have outlined a few of the diligence items, often times there is more research that is required. Ensuring water use holders know the terms and conditions of their use will help them stay in compliance in order to continue beneficial use.

In November 2017, the United States Army Corps of Engineers (Corps) published the Willamette Basin Review Feasibility Study, Draft Integrated Feasibility Report and Environmental Assessment (Study). The purpose of the Study (which can be viewed in its entirety here) is to evaluate the reallocation of 1,590,000 acre-feet of Willamette Valley Project stored water. The Study analyzes current and future water demand in the Willamette basin to determine how the water should be reallocated. The analyzed demand uses include agricultural irrigation, municipal and industrial water supply, and conservation storage for Endangered Species Act listed fish. 

The Corps constructed a series of thirteen federal reservoirs in the middle and upper Willamette Basin beginning in the 1930s. Currently, the water is stored under Bureau of Reclamation water use rights that authorize storage for irrigation. The Corps’ proposal would reallocate 962,800 acre-feet of water to fish and wildlife. This discrete category has been allocated the most water in the draft Study, followed by agricultural irrigation at 253,950 acre-feet, and municipal and industrial with the least at 73,300 acre-feet.

For those keeping score at home, those figures do not add up to the allocated 1,590,000 acre-feet. The Corps chose to earmark 299,950 acre-feet to what the agency is classifying as “joint-use.” Joint use allocation is water that can be assigned to any of the other three discrete categories. Thus, the Corps would simply hold that amount in reserve to accommodate “unforeseeable changes to demand trends.” Simply put, this provides the Corps flexibility in the future to disperse water according to demand while simultaneously allowing the agency to avoid allocating all of the water at the current time.

While everyone can agree more water available for appropriation is a good thing, some are unhappy about the way the Corps has proposed to allocate stored water. The Capital Press reported the Oregon Farm Bureau’s position is that water allocated to agricultural irrigation is “not nearly enough.” 

There is still much uncertainty about what will happen next and how long the process will take before water stored in the Willamette Valley Project is available for appropriation. The Study is currently a draft environmental assessment under the National Environmental Policy Act (NEPA). Therefore, the Corps is still in the stage where it is developing and evaluating the alternatives. The comment period on the draft Study closed on January 5, 2018.

If the Corps finds no significant impact from the chosen alternative action in the NEPA process, water will then need to be reallocated to the proposed uses. Because the Bureau of Reclamation currently holds the water right certificates that authorize storage for irrigation, the federal agencies must go through the Oregon Water Resources Department’s transfer review process to change the purposes of use for the Project storage rights.

Only after the water use rights authorizing storage in the Project are transferred to the reallocated uses will the water be available for new appropriations in addition to the current authorized use, irrigation. The reallocation could stimulate a rush to the Oregon Water Resources Department’s office for application submission. As the old adage goes, “the early-bird gets the worm.” More aptly, those ready to file for a water right upon the successful completion of the impending process are more likely to get to obtain a much-coveted water use right from the reallocated storage.

Stay tuned to Schroeder Law Offices’ Water Law Blog as this process unfolds!

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

On December 19, 2017, Nevada State Engineer issued Order No. 1293, prohibiting the drilling of new domestic wells in the Pahrump Artesian Basin. Previously, the State Engineer designated lands in Pahrump Artesian Basin as coming under the provisions of underground water law through Orders 176, 193 and 205¹. Prior Orders stated that new applications would be denied with very limited exceptions. Recently the State Engineer conducted further investigation into this basin and determined that due to the rate and extent to which groundwater is being depleted, that prohibition of domestic wells under Order No. 1293 is vital to the welfare of the basin.

The State Engineer estimates that the perennial yield of the Pahrump Artesian Basin, or the maximum amount that can be withdrawn to still allow the basin to recharge, is 20,000 acre-feet annually. Yet, the State Engineer estimates that the amount of water from committed rights (amounts of water provided under Permits and Certificates issued by NDWR) amounts to approximately 59,175 acre-feet of withdrawals from the basin. Therefore, the permitted rights authorize almost triple the amount of water that can be withdrawn without impeding the ability of the basin to recharge itself. However, because domestic wells are not subject to permit requirements, this estimated withdrawal number is actually higher as domestic well withdrawals are not included. In fact, Order No. 1293 estimates that there are approximately 11,280 existing domestic wells in the Pahrump Artesian Basin.  Thus, if each well were withdrawing the maximum of 2 acre-feet per year, water withdrawals from the domestic wells alone would exceed the perennial yield. In theory, all wells in the basin may be withdrawing close to 4 times the amount the basin can manage.

Order 1293 prohibits the drilling of any new domestic well, unless a user can obtain an existing permitted right to cover the 2.0 acre feet per year to serve the “new” use. Thus, the only way to obtain a new domestic use will be to go out and buy a water right!  Once purchased, these acquired rights will be “given back” to the basin under a relinquishment process with NDWR while allowing the domestic use to continue without a water right. Further exempted from Order 1293 are domestic wells requiring rehabilitation under Nevada Administrative Code (“NAC”) 534.189, wells requiring reconditioning under NAC 534.188, or existing wells needing replacement.

The domestic well exemption was a great policy for many single families wishing to develop their property. However, protecting our valuable water resources is top priority, and this purchase and relinquishment program will still allow for property development with proper resource protection. For a full reading of Order 1293, please visit http://images.water.nv.gov/images/Orders/1293o.pdf.

¹Nevada Revised Statutes (“NRS”) chapter 534.013 defines domestic use as culinary and household purposes for a single-family dwelling, watering of a family garden and lawn and watering of livestock, domestic animals and household pets. Pursuant to NRS 534.180, if a well is being used for domestic use and the use does not exceed 2 acre-feet per year, the well is exempt from the permitting process under with Nevada Division of Water Resources (“NDWR”) for water use.  

2017 was an eventful year for the team at Schroeder Law Offices (“SLO”). As SLO moves toward a productive 2018, we are pleased to highlight the exciting events of 2017 and what’s ahead in the New Year!

In February we hosted a reception honoring Al Steninger at the Society for Range Management in St. George, Utah. Shareholders Laura Schroeder and Therese Ure, as well as Alan Schroeder, had the honor of celebrating the Sustained Lifetime Achievement Award for range consultant Steninger, long-time friend and consultant to the firm.

In April 2017, our Reno Office received a new home moving from the mid-town area to south Reno. The new office includes convenient parking and approx. 2,600 sq feet divided into a roomy, reception area, large and small conference rooms, multiple private offices, and work areas. Should our out-of-town client need a space to work or meet in Reno for a day or more, we have space to share.

After settling in, SLO hosted an open house for all of our clients, consultants and friends to come check out the new Reno space! We enjoyed this event as the Portland team came to Reno to assist in this celebration, complete with Stix Cattle Company barbequing tri tip!

Following the Open House event and team Schroeder’s participation in the Dust Devil Triathlon in Fallon, NV, the SLO team went out to the field! Our firm serves a wide variety of water users including local farmers, and we had a great time learning more about irrigation systems in Northern Nevada from local expert Norm Frey of Frey Ranches, learning about the cattle industry at Stix Cattle Company, and touring the local livestock auction at Fallon Livestock LLC.

While we had a busy year among our Reno Office move, open house, and field day, we are honored to highlight some of our SLO team member’s developments during 2017.

• Associate Attorney Lindsay Thane passed not only the Oregon State Bar in May 2017, but also passed the Montana State Bar in September 2017 – adding a seventh state to our firm’s licensing!
• Legal Secretary Mollie Finke joined our Portland team in April, making her debut in the legal field.
• In November, our Portland team added a new Paralegal, Rachelq Harman.
• In December, paralegal Tara J. Jackson took a sabbatical, chasing sunny weather with a couple of weeks exploring the north island of New Zealand, enjoying beautiful vistas and mountain biking and finished out her time in Arizona spending more time on her bike and with family. Tara is now back on board.

In the New Year, SLO is looking forward to hosting more classes and/or workshops regarding water law. In 2017 as well as past years, SLO Shareholders Therese Ure and Laura Schroeder have hosted water rights bootcamp classes as well as real estate water right classes. Keep an eye on our coming events list for classes and events to come in 2018, or check out our speaking and presentations page for a list of topics.

The Oregon Water Resources Department will no longer be issuing water use permits for “nursery operations use” in the Willamette, Sandy, and Goose & Summer Lakes Basins. This decision follows a very long history of the Department’s issuance of nursery operations permits all across the State, including these basins. The Department recently decided to read its Basin Program rules in such a way to not allow this popular and pervasive type of use in these particular basins.

Nursery water use permits are different than irrigation use permits. The “default” characteristics of a nursery use permit include year-round water use, a rate equal to one-fortieth cubic foot per second per acre for containerized nursery plants, and a duty of five acre feet per acre per year for containerized nursery plants. By contrast, irrigation use permits are limited to the “irrigation season” that is typically from March through October, one-eightieth cubic foot per second per acre, and two and a half acre feet per acre (depending on the location). Moreover, irrigation use is limited to artificial application of water to plants, while nursery operations use includes use in nursery facilities for much more than direct application to plants (soil preparation, temperature control, application of chemicals or fertilizers, etc.).

The Department’s Basin Program rules may be found at Oregon Administrative Rules Chapter 690 Division 500 and thereafter. Each Basin Program outlines classified water uses that are authorized within the basin, or within particular stream reaches of the basin. None of the Basin Programs specifically classify nursery operations use as an authorized water use. The Basin Programs do, however, classify irrigation and agricultural water use as authorized uses. Nursery use comes under the umbrella of these two types of water uses. As such, the Department issued nursery operations use permits on a regular basis throughout the State.

Division 500 provides definitions that are particular to the Basin Programs that follow. The definition of “irrigation use” in Division 500 is “the use of water for agricultural water use, cranberry use, irrigation, nursery operations use, or temperature control…” However, this definition is limited to specific Basin Programs, excluding the Willamette, Sandy, and Goose & Summer Lakes Basins. As such, Department staff recently informed us that the Department will no longer issue nursery operations use permits in the Willamette Basin. We assume the Department will have the same opinion as to the Sandy and Goose & Summer Lakes Basins. Further, it is possible the Department will also cease issuing cranberry use and/or temperature control permits in all three basins, depending on the specific classifications in the basins.

It will be very important for new applicants in the Willamette, Sandy, and Goose & Summer Lakes Basins to realize the limitations of different types of water uses available to them in different basins, and to clearly articulate all details of the requested water use. In our recent revision of a pending nursery use application in the Willamette Basin, our office drafted the specific water use conditions we were requesting on behalf of our client to ensure no errors occurred during permitting. Costs will also increase if additional fees must be paid to the Department to request multiple uses (such as irrigation and agricultural use) to replace the more “global” nursery operations use applications.

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

Update:

At the beginning of 2018, the Department rethought its position with regard to ceasing nursery use permits in the Willamette, Sandy, and Goose & Summer Lakes Basins. The Department resumed issuing such permits as of the date of this update. It is important to realize how agency policy and interpretation can shift over time, affecting water use rights in Oregon. This is a good example of that phenomenon.

Eastern Oregon is already experiencing above-average snowpack levels for this time of year, reports the Capital Press: link.

This follows above-average snowpack and precipitation reports from the 2016-2017 water year, and looks to be good news for Oregon water users as we continue to climb out of the recent drought. (You may remember seeing the Owyhee Reservoir draining water through the “Ring Gate” or “Glory Hole” in 2017 for the first time since 2011; see the video here.) See also, Natural Resources Conservation Service Oregon Basin Outlook Report (June 1, 2017): link.

The good start to the 2017-2018 water year, combined with carryover storage in some Eastern Oregon storage reservoirs, could even result in water releases for flood control in early 2018, according to the Capital Press.

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

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

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

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

What are you doing for World Food Day?

Schroeder Law Offices (“SLO”) represents a wide variety of water users ranging from municipal to agricultural to domestic. On August 12, 2017, the Portland and Reno teams took an educational field trip to learn more about some of the industries that it supports in Northern Nevada.

The first half of the field trip included touring Western Nevada Cattle Feeders facilities in Fernley, NV, participating in an informational and educational discussion with feedlot owner Dave Stix about his cattle business as well as the cattle industry as a whole. Following the feed lot tour, the SLO team was able to tour two sale yards in Fallon, NV. The first sale yard, Fallon Livestock LLC, was not holding a sale which provided us the opportunity to walk through the entire facility and learn how cattle are bought and sold. The second sale yard, Nevada Livestock Market, was holding a special sale which provided the Schroeder Law team with a view the fast pace of a live auction.

The second half of the field trip included a tour of irrigated, farm land in Fallon, NV as well as learning about the sources and process of water delivery for the farmers of the Truckee-Carson Irrigation District with our tour guide and expert for the day, Norm Frey of Frey Ranches in Fallon, NV. This provided the Schroeder Law team the opportunity to learn about the Newlands project and gain a better understanding of farming and the specific irrigation systems in Northern Nevada. Education included identifying crops as well as learning more about how the science of farming in Northern Nevada including the tremendous strides made with the use of technology.

By taking field trips and learning about the businesses, industries and geographic regions that our clients reside in, our team’s goal is to be better prepared to understand the issues of our clients and to represent their interests.

The week of August 28 through September 1, 2017 is “World Water Week,” an international conference organized annually in Stockholm, Sweden that focuses on new thinking and positive action toward water-related challenges and their impact on the world’s environment, health, climate, economic and poverty reduction agendas. The World Water Week annual forum is held by the Stockholm International Water Institute (SIWI) to provide a platform for collaborating organizations to gather for seminars and events regarding water and development issues. Individuals from all over the world gather to present findings at scientific workshops and examine methods for examination and collaboration on water-related topics. Each annual conference has a theme, the 2017 theme is “Water and Waste: Reduce and Reuse.”

The 2017 conference will include more than 200 sessions of seminars, volunteer projects, events, exhibitions, closed meetings and social events that link scientific understanding with policy and decision-making to develop concrete solutions to water, environment, and development challenges. A list of participating organizations can be found on the SIWI World Water Week website.

Research and information shared at the World Water Week forum is exchanged between scientific, business, policy, and civic communities with the goal of implementing actions and commitments and impacting decisions related to international processes regarding water-related challenges. To learn more about SIWI’s dedication to to finding solutions to international water challenges, read more about the institute.

[Photo Credit to Stockholm International Water Institute (SIWI)]

In February 2017, the town of Oroville, California was in for quite the surprise! Butte County Sherriff’s Office issued a mandatory evacuation notice as the full reservoir (Oroville Lake) above Oroville threatened to wash out residents. The reservoir’s dam spillways were severely damaged by increased water flow caused by the seemingly unceasing rains. Now the question is when will it be fixed, and what happens next?

Many residents have noticed the hustle and bustle of workers and heavy machinery at the Oroville Dam and are wondering what is actually going on.  Rumors abound. According to the San Francisco Chronicle, some say the work must be a secret effort to mine undiscovered gold, or some suspect a missile is taking shape…not a new spillway. Regardless of what the rumor mill might be stirring, one question is on everyone’s mind – Will it be done in time for the winter and spring rains in 2018?

Officials say that they want the spillways to be operational by November 1^st, 2017 in case the lake fills up by then. Final touches, on the other hand, will have to wait until next summer. Some residents fear that the work is only a patch job and not a permanent fix, and skeptics are not going to wait around to be proven right or wrong.

One thing is for sure, the California Department of Water Resources is required to make sure that the dam is safe before it is fully operational. Arguably, residents should receive assurance of that the dam is safe before the 2018 rains hit and the lake fills up.

In the meantime, assignment of blame for the 2017 disaster continues. State officials are investigating the spillways and looking into the possibility that poor management is to blame for their damage. One official says that he expects the team’s findings to have implications for other dams in California, and beyond.