Water Law Blog

By Lynn Steyaert and Laura Schroeder

As a result of concerns relating to failures of unpermitted dams, the Department of Ecology issued notice that owners of small reservoirs built without permits must report their dams for safety inspections by September 1, 2008 or face possible fines.  Following an inspection, owners may be required to hire an engineer to provide recommendations on how to bring facilities up to safety standards.

To reduce the possibility of dam breaches that create hazards for people and property downstream, the department has been scanning aerial photographs statewide to locate existing unpermitted reservoirs that are two acres or more that may hold 10 acre-feet of water or more.  Under RCW 90.03.350, the Department is responsible for regulating water reservoirs capable of storing 10 acre-feet or more above ground level for any use.  As of August 4, 2008, the Department reported having spotted 594 unpermitted dams of two acres or more, with 244 of those appearing to be high hazard dams.

Owners, who fail to report their reservoirs, obtain needed state permits, and correct deficiencies, may face fines of up to $5,000 per day.  The Department may also order dangerous reservoirs be drained and dams removed.  The Department further recommends that even those reservoirs not requiring a permit, should be designed by licensed engineers and inspected periodically, as the owner may be liable for property damage if their dam were to fail.

At the end of last year, the Nevada Division of Water Resources issued a bulletin to water right professionals notifying them that the Division will be refocusing its review of applications for extension of time for proof of completion of works or extensions of time for proof of beneficial use.  NRS 533.380(3) precludes the State Engineer from granting an extension unless the applicant provided proof that he is proceeding in good faith and with reasonable diligence to perfect the application. Reasonable diligence was defined by statute as “the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all facts and circumstances.”

Unfortunately, the Division has not promulgated regulations that would clarify the type of activities that are sufficient to warranting the granting of an extension.  The application form instruction sheet does provide some examples, however, of what types of activities can be highlighted as indicative of progress made during the previous year, including descriptions of any facility or feature completed, identification of project reports or engineering drawings submitted for review or recorded pursuant to applicable law, and explanation of conditions that adversely effected the applicant’s ability to establish beneficial use.  Other suggestions are viewable on the Division’s website at http://water.nv.gov/Forms/formroom.cfm, on the instruction page of the form entitled NEW Extension of Time.

The Division ended its commentary suggesting that water right professionals should advise their clients that cancellation of their water use permits will result if they are unable to meet the statutory requirements for approval of an extension.

By Lynn Steyaert 

At the end of last year, the Nevada Division of Water Resources issued a bulletin to water right professionals notifying them that the Division will be refocusing its review of applications for extension of time for proof of completion of works or extensions of time for proof of beneficial use.  NRS 533.380(3) precludes the State Engineer from granting an extension unless the applicant has provided proof that he is proceeding in good faith and with reasonable diligence to perfect the application. Reasonable diligence has been defined by statute as “the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all facts and circumstances.” 

Unfortunately, the Division has not promulgated regulations that would clarify the type of activities that are sufficient to warranting the granting of an extension.  The application form instruction sheet does provide some examples, however, of what types of activities can be highlighted as indicative of progress having been made during the previous year, including descriptions of any facility or feature completed, identification of project reports or engineering drawings submitted for review or recorded pursuant to applicable law, and explanation of conditions that adversely effected the applicant’s ability to establish beneficial use.  Other suggestions are viewable on the Division’s website at http://water.nv.gov/Forms/formroom.cfm, on the instruction page of the form entitled NEW Extension of Time.

The Division ended its commentary suggesting that water right professionals should advise their clients that cancellation of their water use permits will result if they are unable to meet the statutory requirements for approval of an extension. 

While much of Oregon’s manufacturing industry as a whole continues to decline, food manufacturing has maintained a rather steady presence over the past 50 years.

Oregon Business Magazine recently published findings made by WorkSource Oregon that show that the industry has continued to support over 20,000 jobs in the state throughout all the ups and downs of the economy.  WorkSource’s website currently reports the figure to be at 23,200, up 0.4% over the last year, while manufacturing as a whole is down by nearly 4.0%. 

To view the article, click on the following link:

http://www.oregonbusiness.com/.docs/action/detail/rid/33278/pg/10002

For more information and statistics regarding Oregon’s economy, check out the following sites:

WorkSource Oregon.

http://www.worksourceoregon.org and http://www.qualityinfo.org

Northwest Food Processors Association.

http://www.nwfpa.org

By Laura Schroeder and Lynn Steyaert

The commencement hearing for the Northern Idaho Adjudication (“NIA”) is set for August 28, 2008.  The State of Idaho has petitioned the court to approve a process for deferring the adjudication of small domestic and stock water use rights.  If approved, small domestic and stock water users may elect to defer filing a Notice of Claim and postpone the adjudication process until a later time.

To qualify for the deferral, the claimant’s uses are limited to those defined as domestic uses pursuant to Idaho Code  §42-111 and stockwater uses pursuant to Idaho Code §42-1401A(11).  Idaho Code §§ 42-111 and 42-1401(A)(11) can be found at the following links, respectively:

http://www3.state.id.us/cgi-bin/newidst?sctid=420010011.K http://www3.state.id.us/cgi-bin/newidst?sctid=420140001A.K 

By Laura Schroeder and Lynn Steyaert 

The State of Idaho recently filed a Petition in the District Court of the Fifth Judicial District of the State of Idaho in and for the County of Twin Falls to commence the adjudication of surface and ground water rights within the Coeur d’Alene-Spokane Basin.

A commencement hearing is set for August 28, 2008, at 10:00 a.m. (PDT) at the Federal Courthouse located at 205 North 4^th Street, Coeur d’Alene.  Any interested party that would like to present evidence or legal argument must file a Notice of Appearance with the Court before 5:00 p.m. (Mountain Time), August 14, 2008, together with a prehearing statement, and a brief or memorandum of law in support of any legal argument.    

The Court will address issues raised in the State of Idaho’s Petition.  http://www.idwr.idaho.gov/water/North_Id_Adju/Final_Signed_Petition.PDF

For more information consult the following links:

IDWR’s adjudication website.

http://www.idwr.idaho.gov/water/North_Id_Adju/  

 IDWR adjudication brochure.

http://www.idwr.idaho.gov/water/North_Id_Adju/NIALogoBrochure%207-29-08.pdf

IDWR Frequently Asked Questions flyer.

http://www.idwr.idaho.gov/water/North_Id_Adju/NIA_FAQ_Card.pdf

The U.S. Geological Survey (USGS) recently released a new report entitled “Ground-Water Availability in the United States.”  The article is written for a broad range of audiences which makes an interesting read for anyone interested in what scientists know (and don’t know) about the nation’s groundwater supply.  In addition, comprehensive maps and diagrams illustrate the varying features of aquifers around the county. 

Several facts and estimates cited in the report truly put into perspective how crucial the groundwater supply is to the country.  One recent study estimated the average pumpage of groundwater in the U.S. in 2000 to be 83 billion gallons per day.  However, compare this figure with the study’s estimate that 1 trillion gallons per day are naturally recharged to the groundwater supply and one might wonder how some aquifers continue to decline.  Part of the answer is some aquifers have much higher recharge capabilities.  As the report explains, the vast majority of aquifers in the arid west are recharged at less than inch per year while most of the eastern U.S. recharges at more than 10 inches per year. 

While broad in scope, the report offers a very comparative glimpse into the unique characteristics of aquifers throughout the country.  Just 20 “principal aquifers” account for about 90 percent of the ground water withdrawals in the nation.  Of these 20 aquifers, seven are located primarily in portions of Oregon, Washington, California, Nevada, Idaho, and Arizona.  Not surprisingly, many of these aquifers are suffering from declining water tables.      

To learn more, follow the link from the following webpage to download and view the document:

http://pubs.usgs.gov/circ/1323/.

Recently, a New Mexico court ruled that the State Engineer is required to review all new applications for exempt domestic wells.  Prior to the ruling, those drilling exempt wells were merely required to file for a “permit” that would be automatically approved by the State Engineer.  The recent ruling requires the State Engineer to review each new application to insure the proposed exempt domestic well will not deny water to any prior users in the same watershed. 

The decision settles a conflict between New Mexico’s traditional principal of prior appropriation of water and a law passed in the 1950s exempting domestic wells from permitting requirements, regardless of their affect on prior users in the watershed.  The Court concluded that those with senior priority rights should not be denied access to the water they hold rights to, even by exempt domestic users.   

Groups supporting the decision applauded it for “closing a loophole” in New Mexico water law.  Those who saw the ruling as a victory noted that increased exempt domestic well drilling was a threat to New Mexico’s water supplies.  Others groups focused on limiting growth in New Mexico’s complemented the decision for its recognition of New Mexico’s finite water resources.  Conversely, the decision will make bringing water to new developments that rely on exempt domestic wells troublesome for developers.            

In the 1950s, at the time the exemption for domestic wells was passed, only a small number of new exempt wells were drilled each year.  Today the State Engineer’s office issues between 7000 and 8000 new exempt well permits on an annual basis.  

The case was originally brought by New Mexico farmers Horace and Jo Bounds against the State Engineer for permitting exempt wells in their watershed when the Bounds were denied a full historic allotment of water under their water rights.  The Court’s ruling did not prohibit exempt wells or revoke any permits already issued.  In the Boundses’ case, the decision did not free up any water in their watershed.   

The new requirement will do little to change wells already permitted, it will dramatically increase the State Engineer’s workload, creating a need for an increase in the State Engineer’s staff.  The State Engineer has not yet indicated whether the decision will be appealed.  He did remark that he agreed with the decision, despite being on the losing side.  He further noted that prior to the decision there were ongoing attempts to get the New Mexico legislature to fix the problem in light of the old exempt domestic well law’s likely unconstitutionality.  
   
   

The Oregon Water Resources Department recently announced that the Department has $1.6 million available for funding under the Water Conservation, Reuse and Storage Grant Program.  Under the Program, OWRD will match up to $500,000 in funding from another source for each project.  The intent of the Program is to encourage feasibility studies and environmental analysis to investigate “innovative water conservation and reuse programs and environmentally sound storage projects.”  Applications are due September 1, 2008, and to be eligible applicants must have funding from a source other than the Program secured or in the process of being secured.  The Oregon Legislature established the Program in SB 1069 during the 2008 Session.

By Dominic Corollo

The House Subcommittee on Water and Power held a hearing adressing concerns over the impacts of invasive quagga mussels on Tuesday, June 24, 2008.

The hearing, entitled “The Silent Invasion: Finding Solutions to Minimize the Impacts of Invasive Quagga Mussels on Water Rates, Water Infrastructure and the Environment,” particularly focused on the threat the quagga mussels pose to water and power systems in the west.

The quaaga mussel is related the better-known zebra mussel.  Both species are thought to have been introduced to North America around 1988 from ballast water in ships from Eastern Europe entering the Great Lakes.  Since their introduction, both mussels have proliferated in the northern regions of the Midwest and have been documented in several western states, including California and Nevada.  Most scientists believe that quaggas have spread to new water bodies from the hulls of recreational boats.  In the right humidity and temperature range, the mussels can live up to a month out of water.

The quagga is a both a prolific feeder and breeder.  They rapidly filter algae out of the water, thereby altering the food chain and severely impacting ecosystems.  In addition to thriving off the nutrients in the water, the mussels rapidly reproduce and attach to both soft and hard surfaces, causing significant economic impact by clogging water intake structures, interfering with flows, decreasing pumping capacities, and impairing water quality.  At the hearing, aquatic specialist Dr. Charles O’Neill of Cornell University reported to the Committee that the impact of the quagga mussel has been felt across 23 states to the magnitude of $1 billion and $1.5 billion.  Dr. O’Neill explained that roughly one-half of the financial burden has been borne by the electric power generation industry, while the drinking water industry has paid out nearly one-third of the total cost. 

Researchers are still trying to develop effective methods for controlling the quagga mussel where it has already been established.  Thus, many states have implemented programs designed to increase public awareness and slow the spread of the mussel into new bodies of water.  In 2002, Oregon established the Invasive Species Council to address issues relating invasive species and the Oregon State Marine Board has a Clean Marina Program that encourages boaters to thoroughly clean their boats to prevent the transfer of invasive species between water bodies.  Fortunately, Oregon has yet to document the quagga anywhere in the state, but the mussel has already found its way into certain waters in California and Nevada. 

The quagga was first documented in the west in January 2007 when it was discovered in Lake Mead.  Since that time, the mussel has been recorded throughout the Lower Colorado system, including into California.  The Statesman Journal reports that the Southern California Metropolitan Water Authority spent $6 million last spring cleaning freshwater aqueducts of quagga mussels.

While western states are beginning to ramp up efforts to slow the mussel’s proliferation, the Committee hearing highlights just how large of a problem the mussels are causing.  Many people realize the destructive environmental effects of invasive species, but the effects the mussels are having on water systems are bringing this issue to the national level.

For people interested in learning more about invasive species, visit Oregon Invasive Species Council’s website at:   http://www.oregon.gov/OISC/ .   The Oregon Invasive Species Summit is scheduled for July 22, 2008.  To see a short video feature about the quagga mussel see the Oregon Public Broadcasting website link at: http://www.opb.org/programs/ofg/videos/view/11-Quagga-Mussles For a special report about the quagga mussel by the Statesman Journal see: http://www.statesmanjournal.com/apps/pbcs.dll/article?AID=/20080210/INVASIVE06/802100309/1034 For information regarding Oregon’s Clean Marina Program, see: http://www.boatoregon.com/OSMB/Clean/ANS.shtml

As the weather starts to heat up for the summer and water becomes scarce, many areas are affected by drought.  Fortunately, the average domestic water user can avoid being a passive victim of droughts by conserving water.  Individuals and families that conserve water will reduce their personal expenses and help their community by limiting the impact of a drought.  There are many ways a household can conserve water.  Small changes in routine in the bathroom, in the kitchen, in the laundry room, in the yard and around the house can significantly reduce water consumption.  These changes could be as simple as taking shorter showers, turning off faucets when water is not being used, and keeping track of water consumption to avoid leaks.  Click on the following link to learn 53 easy tips tp use less water.

(June, 9th 2008) Today the Environmental Protection Agency (EPA) announced a new rule excluding transfers of water from one body of water to another from the permitting requirements of the National Pollutant Discharge Elimination System (NPDES). 

The new rule stipulates that water transfer activities that do not introduce pollutants into transferred water will not be subject to NPDES regulations.  The rule defines water transfers as activities that convey or connect waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. 

“The EPA’s Water Transfer Rule gives communities greater certainty and makes clear they have the flexibility to protect water quality and promote the public good without going through a new federal permitting process,” said Assistant Administrator for Water Benjamin H. Grumbles. “Clean water permits should focus on water pollution, not water movement. EPA is committed to working with our state, tribal, and local partners to reduce environmental impacts associated with transfers and will continue to use all appropriate tools such as standards, best management practices, and watershed plans.”

The new rule is meant to clarify water transfer requirements so that municipalities, irrigators and other water users that rely on water transfers are not needlessly burdened with regulation aimed at preventing pollution when engaging in water transfers that do not pollute.

In South Florida Water Management District v. Miccosukee Tribe of Indiansthe Supreme Court declined to rule in the issue of whether NPDES permits were required for water transfers.  In the face of this uncertainty, the EPA issued an interpretive statement in 2005 explaining that Congress intended water resource-management agencies and other state authorities to oversee water transfers, not the NPDES permitting program.  This rule codifies that position.

The Oregon Water Resources Commission received staff guidance and public comment on a number of issues during a May 30 meeting in Burns, Or, including an aggressive budget proposal by the Water Resources Department for the 2009-2011 biennium. 

The overwhelming focus of the budget proposal was on the $50 million dollars the Department proposed for funding Water Conservation and Supply Infrastructure.  Senate Bill 1069 directs OWRD to establish a grant program for both planning studies and project development.  As part of this program, the Commission and the Department have begun to formulate an Integrated Water Conservation and Supply Strategy.  While the program is still in its infancy, the Department expects the need for project implementation to occur soon.  Thus, they see the $50 million as necessary seed money to begin a grant program for funding projects such as the Umatilla Basin Aquifer Recovery Project.

The budget proposal prompted several public comments.  Both the WaterWatch of Oregon and the Nature Conservancy had concerns with moving forward on any projects before more studying and planning was able to proceed first.  However, the Special Districts Association of Oregon and the League of Oregon Cities both came out in support of the proposal.  They agreed with the Department that the Commission should not delay in moving forward with the project component of SB 1069.  The Commission will decide whether or not to support the budget request later this year.  If approved in total by the Legislature, the Department would see their budget triple from the $32.3 million allocated in the current biennium to $95.9 million for 2009-2011. 

The Commission also voted to adopt rules establishing special well construction areas for Eola Hills Ground Water Limited Area and Pete’s Mountain Area.  The Department received substantial public comment on the matter and ultimately decided to require at least a six-inch diameter casing on all new wells and a 3/4-inch dedicated measuring tube in all water supply wells at the time of pump installation or repair.

Lastly, several local groups took advantage of the remotely-held meeting and updated the Commission on a few issues in the region.  The Owyhee Irrigation District shed some light on a unique situation developing in the far southeast corner of the state.  In particular, the District is concerned about efforts by the Shoshone Tribe to shore up treaty rights to water in Nevada that the tribe had previously failed to develop.  The Owyhee flows through Oregon, Idaho and Nevada and the states do not have an interstate compact governing the allocation of the system’s water.

A representative from the City of Bend also participated in the public comment session and echoed support for funding Conservation and Supply Infrastructure.  

The Oregon Water Resources Department (OWRD) committed to initiate a rulemaking to address concerns by well drillers and contractors over potential liability for well alterations under current OWRD policy.

OWRD’s historic policy allowed well alterations without automatically requiring that the entire well be brought up to current construction standards.  However, recent Department policy now requires a contractor undertaking a well alteration to either bring the entire well up to code or submit a “Special Standard” for the Department to consider.   This policy shift has prevented contractors from performing certain well alterations for fear of taking on liability for contamination risks of the entire well, irrespective of the scope of the alteration performed. 

In attempt to remedy this problem, Schroeder Law Offices drafted a petition for rulemaking on behalf of the Oregon Ground Water Association (OGWA) that proposed to allow well alterations without requiring well constructors to address the well’s overall compliance with construction standards.  It would have also limited liability for well alterations to the work actually performed, rather than the entire well.  While the Commission denied the petition in a meeting in Burns on May 30, OGWA member testimony from Floyd Sippel and Paul Christensen helped persuade the Commission to require that OWRD draft a rule addressing OGWA’s concerns for approval at the fall Water Resources Commission meeting.

Department staff initially informed the Commission of their intention to begin drafting a rule that would be adopted no earlier than 2009.  However, it was clear that well drillers’ testimony concerned the Commission, prompting the OWRD Director, Phil Ward to suggest a timeline that will hopefully result in rule before the end of the year.

Interested parties should expect the Department to issue a notice of rulemaking sometime this summer.  Further comment by OGWA and others will likely be necessary to ensure that contractors are protected.

Retired Reclamation Commissioner John Keyes passing is sad news. I first “engaged” Reclamation with John at the helm in the Boise Regional office in 1992 when working for the Teel Irrigation District. We were dealing with issues surrounding “water spreading” then making headlines in the Umatilla Project by Water Watch of Oregon. Over the years, we kept in close touch on various Reclamation issues. Most recently, John assisted me in obtaining a position with the USAID working in Armenia. He was a southern gentleman in the best way. Kind and considerate always interested in a balance between what was best for the individual as well as the public. He told me that retirement to him meant a chance to spend more time flying.

The recent draining of Roslyn Lake could pose potential problems for nearby homeowners that have relied on leaks from the lake to augment their shallow wells.

The manmade lake was scheduled to be drained for some time as a necessary step in decommissioning Marmot Dam on the Sandy River. PGE warned 22 homeowners that their wells would likely be affected, but the Oregonian reports that as many as 60 could see their wells dry up. PGE denies responsibility for any costs associated with having to drill deeper wells; cost that could reach $20,000 to $30,000.

Many residents feel that they were underrepresented in the administrative process leading up to the decision to drain Roslyn Lake. Certainly, this issue appears to have received little attention.

Unfortunately, injured residents that failed to comment on the removal project could have difficulty litigating this matter. However, with the trend of decommissioning diversion dam systems similar to Marmot, the situation serves as a reminder to rural homeowners to familiarize themselves with their water rights and the vulnerabilities of their water systems.

For the Oregonian’s account, see: http://www.oregonlive.com/

     The Oregon Water Resources Congress (OWRC), the Washington State Water Resources Association (WSWRA) , and the Idaho Water Users Association (IWUA) met in Spokane Washington on May 16, 2008 for the first of three Tri-State Meetings to be held this year.    

 OWRC, WSWRA, and IWUA are all organizations which promote the protection and use of water rights for its members though legislative action and policy development. The memberships of these organizations are primarily irrigation districts, canal companies and other special districts which supply or control water for agricultural use.    

The next Tri-State meeting will be held in Boise Idaho in August followed by a November meeting in Portland Oregon. To learn more about these organizations and their members go to:

OWRC: http://www.owrc.org/
WSWRA: http://www.wswra.org/
IWUA: http://iwua.org/

Focusing on the soon to be launched adjudication in north Idaho, water and real estate lawyers gathered in Coeur d”Alene, Idaho May 15 and 16, 2008.

As in other McCarran adjudications in which we are involved, issues expected to be included will be federal including Indian, Forest Service and Reclamation issues; instream including hydro, water quality, and endangered species issues; and state issues including municipal, water district, and individual claims. It is likely that in all adjudications, the best water attorneys will be picked up early and conflicted out quickly. Speaker Steven C. Moore, a staff attorney for the Native American Rights Fund out of Boulder, Colorado, quoted Professor Drew Kershen at the University of Oklahoma College of Law stating “A good water rights case can be willed to your kids.”

We suggest that our clients and potential clients contact us early to prepare and review potential claims BEFORE the claim is filed.

The Federal Court made its decision on the jurisdictional question by sending the case back to Lyon County District Court last week. See http://www.kesq.com/Global/story.asp?S=8229832 for more information.

Interestingly, many farmers have still not received water that is due to them as insufficient flows continue in the Truckee-Carson Canal. Crops are being stressed and damaged.

Many meetings are taking place in Fernely and Fallon with the Bureau of Reclamation to help resolve these issues. Obviously, if enough water is not diverted from the Truckee River over to the Carson River via the Canal, the amount of water allocated to Fallon side water users in the project, as well as those in Fernley will diminish. With the “water year” already at 90% of the allocation, there may not be enough water to fulfill the allocation if Truckee water is not available.

We encourage your attendance to voice your concerns at these meetings! The next meeting is scheduled for Thursday, May 1, 2008, from 6:00 - 9:00 PM at the Lahontan Elementary School, Multi-Purpose Room,1099 Merton Drive, Fallon.