Water Law Blog

Connecting urban and rural Oregon is a common theme of Oregon Agriculture. The Oregon Cattlemen’s Association recently released the DVD “Land of Contrasts, Ranching’s Commitment to Oregon,” in an effort to communicate with the general public about the values and stewardship practices Oregon ranchers have been using, and continue to use, in managing their lands.  Several segments are available on YouTube and do a great job of telling the story of Oregon ranchers. The YouTube segments highlight the efforts Oregon ranchers take to ensure that their families can continue to manage and improve the land for years, and generations, to come and while providing food to Oregon, the Country and beyond.

Copies of the DVD are available by calling Oregon Cattlemen’s Association at (503) 361-8941. The YouTube clips can be viewed by using the links below:

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The Agri-Business Council of Oregon’s annual 2009 Denim & Diamonds Dinner and Auction was a smashing success! Schroeder Law Offices affirmed its commitment to the Agri-Business Council of Oregon and the Keeping Ag Viable program, by being a sponsor of the event as in the past. This year, I was honored to serve as the chair of the Denim & Diamonds Planning Committee.  As always, this event brought together people from all parts of Oregon and all sectors of Oregon agriculture for an evening filled with outstanding Oregon wine and produce prepared by local chefs.

All the money raised at the 2009 Denim and Diamonds gala will be dedicated to the new campaign for Keeping Agriculture Viable, which seeks to promote the values of Oregon agriculture directly to the customer.  If you would like more information about Denim and Diamonds or Keeping Ag Viable, follow the links provided above.

Irrigation districts have many benefits.  But just how much land is required to form one?It is surprising, but Oregon law contains no minimum acreage requirement for irrigation district formation!  In the early 1900s when irrigation districts sprang up all over western United States, some in connection with projects constructed by the United States Bureau of Reclamation, most covered large spans of territory.  According to a 1917 government study, the smallest U.S. irrigation district at that time was 500 acres.  Today most irrigation districts in Oregon cover anywhere from hundreds to hundred thousands of acres of land.  However, this does not mean a group seeking to form an irrigation district needs to be so large.  Because the law does not require a minimum number of acres to form a district, it is worth considering the benefits of irrigation district formation of any size.

A comprehensive look at forming an irrigation district and the unique benefits there of can be found in a new guide and handbook called “Irrigation Districts: The HOW, WHAT , WHO, WHEN and WHY Guide and Handbook for Irrigation District in Oregon. To learn more about this handbook please contact me at Cortney@water.law.com.

The importance of maintaining and protecting water rights is more crucial then ever. Oregon agriculture, supported by valid water rights, has long been the State’s leading sector of the economy. The impacts of Oregon agriculture are felt state and nationwide. A relatively new organization emphasizes the philanthropy of farmers around Oregon.  Farmers Ending Hunger is an organization that was formed to harness the production power of Oregon’s farmers to tackle hunger statewide.  Farmers Ending Hunger recently recognized one of its first farmer contributors, Darrin Ditchen of Golden Valley East Farms near Silverton, Oregon.  Ditchen has contributed wheat for pancake mix and frozen peas to the Oregon Food Bank.  To learn more about Farmers Ending Hunger and Darrin Ditchen’s contribution, visit Farmers Ending Hunger. You can also hear Darrin’s thoughts on farmers’ contributions to ending hunger in Oregon as featured on Oregon Public Broadcasting’s April 21, 2009 program Think Out Loud.

Though much of the news out of Salem involves discussion of the budget and shortfalls, the 2009 Legislature is considering some important water bills with an immediate impact on water use in Oregon. The summary below includes three water bills that are of interest. We encourage you to contact your Senator or Representative regarding your support, objection or suggested amendment to any of these bills.You can find contact information here: http://www.leg.state.or.us/findlegsltr/

SB 740: Provides for the Water Resources Department to charge an annual fee on holders of water rights. The fee proposed is between $50 – $300 for individuals and up to $1,200 for larger entities. The purpose of the fee is to create an operating fund for the Water Resources Department which currently receives 70 – 75% of its budget from the general fund. The bill proposes that failure to pay the annual fee will be grounds for cancellation of the water right.

The Oregon Department of State Lands is holding a series of workshops covering the administrative rules pertaining to Removal and Fill permitting. These workshops will be very useful for anyone requiring a Removal-Fill permit within wetlands and waters of Oregon. To see a schedule of the time and place of the workshops please visit http://www.oregon.gov/DSL/docs/removal_fill_rule_hearings_nov2008.pdf

Earlier this month, the U.S. Department of Interior and Commerce published final regulations amending certain aspects of the existing Section 7 consultation regulations under the ESA. The new regulations modify the existing regulations by specifying categories of project-specific actions which do not require consultation with permitting federal agencies. The new regulations are aimed at streamlining the permitting process and are supported by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. It is unknown how the new administration might further amend the new regulations.

To review the new regulations click here: http://www.doi.gov/initiatives/ESA_Section7FR.pdf

Throughout the fall of 2007, facilitators from Oregon State University, private business and Representative Jackie Dingfelder, Chair of the House Energy and Environmental Committee,  conducted a series of roundtable meetings throughout the State of Oregon to discuss Oregon’s current water needs and priorities with water users and citizens of this state. The stated purpose of these meetings was to idenitify Oregon’s water issues, opportunities and threats as viewed by water users, water purveyors, local governments, environmental groups and citizens, with an eye toward developing an Oregon plan for long-term water supply. The Governor’s office, the Oregon Legislature and the Oregon Water Resources Commission were all represented at these  meetings.

The facilitators of these meetings have prepared a synopsis of the “findings” from each  roundtable held this fall. You can find and review the synopsis here: http://water.oregonstate.edu/roundtables/docs.htm

The Bureau of Reclamation recently announced they are seeking letters of interest from non-Federal entities throughout the western states to conduct river basin or sub-basin studies.  The Bureau is conducting the studies as part of the Water for America initiative. The Basin studies are to be cost-shared on a 50/50 basis with state, tribal and local partners. Letters of interest must be received by regional Reclamation offices by February 4, 2009.

For more information  including regional office information please see: www.usbr.gov/wfa

Applicants obtain water rights through Oregon Water Resources Department (OWRD) in a process dictated by statute and rule.  There are three general phases to obtaining water rights:

1. Water Right Application
2. Water Right Permit
3. Water Right Certificate

The administrative process undertaken by OWRD from the application stage to the certificate stage is detailed and specifically governed by the applicable rules. Because the process can be extremely time consuming – taking at least 6 – 8 months to obtain a permit after submission of an application and 10 -15 years to obtain a certificate after perfection of a permit - it is important for an applicant to understand the rules and time-lines involved. Understanding the process can help ”speed” the process along.  For a complete discussion of the administrative process and applicable time-lines please go to: http://www.water-law.com/resources/OregonProcessing.html

By Laura Schroeder 

This fall, facilitators from Oregon State University, private business and Representative Jackie Dingfelder, Chair of the House Energy and Environmental Committee, have conducted a series of roundtable meetings throughout the State of Oregon to discuss Oregon’s current water situation with water users and citizens of this state. The stated purpose of these meetings has been to idenitify Oregon’s water issues, opportunities and threats as viewed by water users, water purveyors, local governments, environmental groups and citizens, with an eye toward developing an Oregon plan for long-term water supply. The Governor’s office, the Oregon Legislature and the Oregon Water Resources Commission have all been activity involved and represented at these meetings.

We encourage you to attend and participate the last meeting in the roundtable series on Tuesday, October 21 in Salem Oregon.  The meeting will be begin at noon and adjourn at 6:00 pm and is free of charge to attend. For more information please visit: http://water.oregonstate.edu/roundtables/

Throughout the arid West, water users, state agencies and federal agencies have constructed reservoirs and ponds of varying size and capacity to store water for a variety of uses. Many irrigation districts or other water delivery organizations have acquired sizable reservoirs that were initially constructed by the Bureau of Reclamation or another federal agency for the storage of irrigation water.  These reservoirs create unique recreational opportunities for the citizens of the state who enjoy the use of these reservoirs for camping, fishing, boating and swimming.  In most circumstances, the recreational use occurring is promoted or encouraged by one or more state agency, though the state agency has no ownership interest in the facility.  

Owners of such facilities have a unique opportunity to enter into a recreational use contract(s) with the appropriate state agency to allow the recreational use. Recreational use contracts are beneficial to owner and operators of these facilities to protect the interests of the water organizations and users who use the water for irrigation and to maximize the fiscal opportunities to the organization.

Contracts for recreational use should include terms addressing:

1.Approved recreational uses and extent of recreational use;

2. Liability for injuries caused by recreational use;

3. Protection of stored irrigation water;

4. Duties and obligations regarding maintenance and repair work;

5. Reimbursement for maintaining a “minimum pool”.

These are a few, among many other, terms that should be included in a recreational use contract. Owners considering this action should consult legal counsel before entering a contract of this kind.

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

     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/

While irrigation districts formed under ORS 545 have no specific authority to accept municipal storm water or to convey that water, many irrigation districts have allowed near by cities to use their irrigation ditches and agricultural drains for storm water runoff. As urbanization continues to increase, the demand on the districts’ canals has reached new heights. Increased demand coupled with more environmental concerns and regulatory oversight have caused many districts to re-evaluate allowing use of their irrigation canals or agricultural drains for accepting urban, suburban and municipal drainage. Recently, the Pioneer Irrigation District initiated a lawsuit against the City of Caldwell Idaho to prevent the City from dumping municipal storm water into its irrigation canals.

From a City’s perspective, utilizing the existing delivery and drainage infrastructure is an attractive prospect. From the district’s perspective, allowing a city to use its canals requires consideration of the legal, financial and political issues that may arise. First the district must consider whether it may even accept the storm water pursuant to its authorizing statute and pursuant to it’s organizational by-laws, rules and regulations. Second the district must consider the impact the storm water will have on its users and the quality and quantity of water in its canals. If the district determines it may accept the storm water, it is imperative the terms and conditions of the city’s use of its canals and drains be specifically detailed in a storm water contract or other intergovernmental agreement. Many times these agreements can be a benefit to the district by increasing the financial resources of the district. Schroeder Laws Offices, P.C. can help districts consider these factors and make these determinations and agreements that will protect the district’s interests.

The Oregon Supreme Court will hear oral arguments and review the Oregon Court of Appeals decision in the case Fort Vannoy Irrigation District v. Water Resources Commission. The review arises from a 2002 dispute between the irrigation district and a district landowner. The landowner submitted an application to the Oregon Water Resources Department (“OWRD”) seeking to transfer the points of diversion of five water rights certificates to two new consolidated points of diversion. The proposed new points of diversion would be located out of the district facilities and would be beyond the control of the irrigation district. Two of the water right certificates made part of the transfer were issued in the name of the irrigation district.

The irrigation district protested transfer applications and initiated a contested case hearing in which it argued that the landowner could not request a transfer on the water rights issued in the name of the irrigation district without the district’s permission. The irrigation district argued it was a co-owner of the water rights and thus any transfer would require its involvement. OWRD participated in the contested case and argued against the irrigation district’s co-ownership position. The administrative law judge (“ALJ”) issued a final order rejecting the irrigation district’s position. The Water Resources Commission agreed with the ALJ decision and issued a final order dismissing the irrigation district’s protest and approving the land owners transfer application. In it’s final order, the Commission acknowledged that “the ownership of a water right certificate within an irrigation district is a recurring question” but ultimately determined it did not need to resolve the question of ownership because under the transfer rules (ORS 540.505 et. seq.) “the only permission that is required is that of the owner of the land to which the water right is appurtenant.”

The irrigation district filed a petition for judicial review of the Commission’s decision. Last summer, the Oregon Court of Appeals reversed the Commission’s order. The Court of Appeals held that an irrigation district holding a water rights certificate is the “holder of a water use subject to transfer” under ORS 540.510 and thus is the entity authorized to seek the change requested. A copy of the Court of Appeals decision can be found here: http://www.publications.ojd.state.or.us/A130508.htm.

The Supreme Court’s review of the case will be narrow. The issue on review before the Supreme Court is whether the property owner to whose land a water right certificate is appurtenant is a “holder of any water use subject to transfer” under ORS 540.510, such that the owner may apply to change the point at which the water is diverted from its source. The case will be heard on May 13, 2008 at 10:30 am, at the Enterprise High School in Enterprise Oregon.