Water Law Blog

The Director of the Nevada Department of Conservation and Natural Resources recently announced the appointment of Acting State Engineer Jason King to the position of State Engineer.  Mr. King has spent more than 19 years with the Division of Water Resources.  A press release from the Nevada Department of Conservation and Natural Resources on this appointment is available here.

As we reported in early February, the Oregon Department of Environmental Quality (“DEQ”) has released a Water Quality Management Plan for the Upper Klamath and Lost River Subbasins for public review and comment.

Due to ongoing drought conditions in the Klamath Basin, DEQ has extended the public comment period by 45 days to May 27, 2010. Additionally, DEQ announced that a public hearing is scheduled for 6 PM on May 12, 2010 at the Oregon Institute of Technology, College Union Auditorium, in Klamath Falls.  More information on the Water Quality Management Plan or Comment Period Extension is available on the DEQ website.

On January 28, 2010, the Nevada Supreme Court issued its opinion in the matter of Great Basin Water Network, et al. v. State Engineer and Southern Nevada Water Authority, wherein the Court determined that the State Engineer had violated the statutory duty under NRS § 533.370(2), which requires that the State Engineer approve or reject any application made prior to the 2003 legislative amendments within 1 year after the final date for filing a protest. Subsequently, the Nevada Legislature issued a Motion to Express Legislative Intent during a Special Session indicating that the resolution of the issues raised in Great Basin Water Network is of critical importance.

On March 16, 2010 the State Engineer held a workshop to consider possible amendments to Nevada water law to address the issues raised in Great Basin Water Network including (1) the protection of existing water rights, (2) the status of pending applications, (3) the preservation of priorities, and (4) the application of the protest period provisions. The State Engineer has posted written comments filed during the workshop along with suggested language to address the issues raised on the workshop webpage.

The State Engineer will accept proposed amendments that address the issues raised in Great Basin Water Network until Friday, March 26, 2010. Any proposed amendments will be posted on the workshop webpage, and comments to the proposed amendments will be accepted until Friday, April 2, 2010.

For more information, including links to the Supreme Court decision and the Legislature’s motion, visit the workshop webpage.

The Source Water Collaborative (“SWC”) is a group comprised of federal, state and local partners working to protect the source of America’s drinking water in lakes, rivers, streams and aquifers.  The SWC recently launched a new tool, “Your Water Your Decision” designed to help organizations and communities highlight their specific water protection needs to local officials and decision makers by creating an original guide containing specific content, photos, contacts and resources for the community or region.

You can learn more at www.yourwateryourdecision.org.

The DEQ has determined that certain stream segments in the Upper Klamath and Lost River subbasins do not meet state water quality standards.  DEQ has identified water quality problems associated with temperature, nitrogen, phosphorus and biochemical oxygen demand, or “BOD.”  Under the guides of the Federal Clean Water Act, the DEQ has developed a plan to improve water quality by establishing Total Maximum Daily Load (“TMDL”) limits and a Water Quality Management Plan (“WQMP”) for the subbasins.

DEQ released this plan for public review and is currently requesting public comments on the plan.  Additionally, DEQ has scheduled a public meeting on March 16, 2010 at the Klamath Basin Extension Center in Klamath Falls and invites interested members of the public and local government agencies to attend.  The agency will accept public comment on the DRAFT Upper Klamath and Lost River Subbasins Total Maximum Daily Load and Water Quality Management Plan until April 12, 2010.  DEQ has also released a two page fact sheet for public review.

For more information you can contact Steve Kirk, DEQ’s Klamath Basin Coordinator at (541) 633-2023 or at kirk.steve@deq.state.or.us.

The Oregon Water Resources Department recently released a fact-sheet detailing the 2009 Instream Accomplishments. According to the Department, Oregon’s instream program leads the nation with leases or transfers of approximately 1,700 cubit feet per second allocated to instream use for “fish and wildlife, recreation, and pollution abatement.” Consequently, the Department also reports that at least 50% of all calls to enforce water right priorities in Oregon have been made to protect these instream rights.

During the 2010 Special Session of the Oregon Legislature, the House Committee on Environment and Water is considering House Bill 3661.  This Bill proposes to change the current ground water exemption statute: ORS 537.545.  Under the Bill, exempt well water use for single domestic purposes would be limited to an amount not more than 5,000 gallons per day.  Currently, the law allows exempt use of 15,000 gallons per day for “single or group domestic purposes.”

The current law allows for an additional separate exemption, “watering any lawn or noncommercial garden not exceeding one-half acre . . .”  Under the proposed legislation, the associated gallon per day limit (i.e. 5,000 gallons per day for single domestic purposes, 15,000 gallons per day for group domestic purposes or 5,000 gallons per day for industrial or commercial purposes) would include any water used for qualifying lawn or noncommercial gardens in addition to other consumption.  Exempt well users would no longer have the ability to stack the ground water exemptions to achieve a larger withdrawal.

Finally, the proposed legislation would allow the Water Resources Commission to require an otherwise exempt well water user to obtain a permit when the source of groundwater has been (1) classified pursuant to ORS 536.340 as to the highest and best use of the water resource, (2) withdrawn from appropriation under ORS 536.410, or (3) designated as a critical ground water area under ORS 537.730.

The amendments contained in HB 3661 would apply to exempt ground water uses under ORS 537.545 initiated on or after the effective date of the law.

The U.S. Environmental Protection Agency announced new regulation, effective December 18, 2009, of the allowable level of endothall residues in or on commodities.  By establishing tolerances for the level of endothall, the EPA has cleared the way for the use of such products in irrigation and livestock watering.

The new tolerances were requested by United Phosphorus, Inc. (“UPI”) who has announced the release two new products, Cascade and Teton, for use in irrigation canal treatments.  These products are designed to help control common pondweed, hydrilla and algae species found in irrigation systems.  UPI called this “the most significant improvement in products approved for control of submerged plants in irrigation canals in the past 40 years.”

The Oregon Department of Environmental Quality recently released a memo detailing the fiscal outlook for Oregon’s Clean Water State Revolving Fund (CWSRF) Loan Program.  Since the CWSRF Loan Program was established in 1990, the DEQ has made low interest loans totaling more than $750 million to eligible projects.  Congress increased CWSRF loan program funding for fiscal year 2010 and Oregon’s share should come to about $23 million.  Additionally, the jobs creation bill currently in Congress would, if signed in its current form, provide an estimated $11 million in additional funding for Oregon’s CWSRF loan program.

The loan program targets various water quality improvement projects such as wastewater and sewer upgrades, irrigation system improvements, riparian habitat restoration and water quality monitoring.  Entities eligible to receive the low interest CWSRF loans include, but are not limited to, cities, counties, irrigation districts, and soil and water conservation districts.  DEQ accepts and processes applications year-round and those interested in more information should contact the DEQ CWSRF regional Project Officer (listed at the end of the DEQ memo).

The 2009 Oregon Legislative Highlights, a Continuing Legal Education publication of the Oregon State Bar, is now available for purchase.  The publication provides summaries of hundreds of bills impacting nearly every area of law, such as commercial and consumer law, land use law, and environmental and natural resources law.  While much of the 2009 legislation is already in effect, some laws are slated to take effect on January 1, 2010 and now is a great time to make sure that you are aware of any new laws that may impact you or your business.

Please contact our office if you have any specific concerns about how any new legislation may impact you.  The Public Affairs Department at the Oregon State Bar can provide additional information on this publication at pubaff@osbar.org or (503) 431-6376 and you may also order this, or other publications, online.

On December 12th Laura Schroeder, along with Brent Keith, presented a 5-hour Advanced Water Law Academy in Bend, Oregon.  Held just prior to the opening of the Oregon Cattlemen’s Association Annual Convention and Trade Show, the interaction with attendees proved to be both educational and entertaining.  During the Academy presentation, materials and topics covered were tailored to the interests of the attendees.  The Bend group showed a special interest in federal control of water and federal legislation impacting water resources.

Nearly every attendee left with a Water Rights Authorization Packet and a Gift Certificate good for one hour of free consultation.  Under the Water Rights Authorization Packet, for $375 Schroeder Law will submit a specific public records request and pull all water rights files in the area designated to provide a full electronic copy of OWRD official files. Email Ms. Daryl Cole at d.cole@water-law.com to obtain a Water Rights Authorization Packet.

The Agricultural Law Section of the Oregon State Bar recently released its 2009 Legislative Report.  The report covers a wide range of legislative developments impacting agricultural interests such as an increase in Oregon state gas tax and title fees, a field burning ban for most of the Willamette Valley, and a bill allowing for utility citing on exclusive farm use land.  The report also highlights several bills related to well drilling, the creation of an Integrated Water Resources Strategy in Oregon and changes to the fees charged by the Oregon Water Resources Department.

For more information about any of these items or other items included in the  report, contact our office or follow this link to the 2009 Agricultural Law Section Legislative Report.