Water Law Blog

The 2013 Oregon Legislature session will begin Monday, February 4. Of over 1200 bills introduced, several expressly or implicitly relate to water use and water management. In particular the Oregon Water Resources Department (“Department”) has introduced several bills related to water management and water use fees.

SB 217, introduced by the Department, proposes a water management fee of $100 for all water rights of record.  The water management fee is proposed to apply to primary, supplement, secondary use, storage, municipal, district and federally held water rights. The water management fee will be capped at $1,000 per water right holder. In-stream water rights and domestic exempt water uses are not proposed to be subject to the fee. To read the full text of the bill as introduced please use the following link.

http://landru.leg.state.or.us/13reg/measures/sb0200.dir/sb0217.intro.html

The current rate schedule used by the Department is set to sunset in 2013. SB 2259, introduced by the Department, proposes to extend and adjust the fee schedule. To read the full text of the bill as introduced please use the following link.

http://landru.leg.state.or.us/13reg/measures/hb2200.dir/hb2259.intro.html

Find contact information for your local representative here: http://www.leg.state.or.us/findlegsltr/

The following annoucnment was issued by the Bureau of Reclamation on January 4, 2012:

The Bureau of Reclamation has reissued for public comment four draft Reclamation Manual releases regarding water-related contracting activities. These draft releases provide definitions of key terms and revise existing definitions for water-related contracts, restructure and clarify Reclamation’s water transfer and conversion policy and consolidate and set-out basic pricing requirements for water-related contracts. Comments are due to Reclamation by April 3.

The four draft releases are:

• Draft RM Policy Water-Related Contract and Repayment General Principles and Requirements (PEC P05).
• Draft RM D&S Water Rates and Pricing (PEC 05-01).
• Draft RM Policy Transfers and Conversions of Project Water (PEC 09).
• Draft RM D&S Conversions of Project Water from Irrigation Use to Municipal and Industrial Use (PEC 09-01)

These releases have been updated to reflect comments received during the first comment period from September 29 to November 30. The changes are highlighted with redline-strikeout throughout the documents.

The Reclamation Manual establishes Reclamation requirements, assigns program responsibility and establishes and documents Reclamation methods of doing business.

These draft updates are available for detailed review at: www.usbr.gov/recman. A summary of the draft updates can be found at: http://on.doi.gov/rMciUA. Comments or questions may be directed to Owen Walker at owalker@usbr.gov.

 Under Oregon law, a city may provide utility services to its inhabitants “[w]hen the power to do so is conferred by or contained in its charter or act of incorporation.” (ORS 225.020).  This includes providing water and sewer services “for profit” so long as the city’s charter provides and the public trust is not violated in doing so.

Portland is currently facing a lawsuit that will push the City’s water and sewer disposal expenditures to the forefront.  The claimants, a group of ratepayers, assert that Portland violates the city’s charter by diverting water and sewer funds toward projects and expenditures unrelated to the provision of those services.  The suit seeks an independent accounting of water and sewer disposal fund expenditures, together with an order of reimbursement.

The court will be asked to interpret key portions of Portland’s City Charter, including whether Portland’s charter restricts the City Council from using rate-payer funds to finance so-called “pet” projects.  The court will also be asked to determine whether various past expenditures were reasonably related to the provision of water and sewer services.

Follow this link to an article discussing the suit:  http://www.oregonlive.com/portland/index.ssf/2011/12/portland_faces_lawsuit_over_ut.html\

Oregon Public Broadcasting (“OPB”) News recently featured a brief story on the Oregon Natural Desert Association’s (“ONDA”) agreement with a rancher in the Bend, Oregon area.

The agreement allows for retirement of a nearly 3,000 acre federal grazing permit. Typically, the law requires retired permits to be reissued; however this particular allotment falls under a land management plan that provides for the voluntary retirement of grazing permits without re-issuance to the next preference holder. Thus, this grazing permit will remain retired for the duration of the management plan, which is about ten years.

This story evidences the continuing conflict that surrounds the use and management of Federal lands. While this story is about voluntary retirement of a grazing permit and not a cancellation, it highlights the influence that special interest groups are attempting to gain in this regulatory arena.

Click here to view the original OBP News story: http://news.opb.org/article/14357-onda-reaches-agreement-retire-3000-acre-grazing-permit-near-bend/

USG Oregon, LLC, a subsidiary of U.S. Geothermal, Inc., has acquired two geothermal mineral ownership interests in the Neal Hot Springs Project in Eastern Oregon.  USG Oregon now holds significant mineral ownership interests in the Neal Hot Springs geothermal reservoir.  The lands to which the mineral interests are appurtenant currently have two existing production wells and there are plans for new production and injection wells.  USG Oregon’s current plans predict development of 26MW of power production.  For additional information please see the articles linked below.

http://www.usgeothermal.com/NealHotSpringProject.aspx

http://thinkgeoenergy.com/archives/5092

Laura Schroeder will present her popular “Water Rights Bootcamp” on JUNE 2 in Sisters, Oregon. This presentation will be an educational seminar suitable for all with and interest and concern for water rights in Oregon. For details and an agenda see the Schroeder Law Offices web site.

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.

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 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.

As attorneys for the Oregon Ground Water Association (OGWA), Schroeder Law Offices was pleased to do the legal research that successfully overturned the Oregon Water Resources Department’s determination of fees. As a result of advocacy for OGWA, refunds of over $100,000 were paid back to Oregon citizens after the Oregon Water Resources Department was found to have erroneously “jumped the gun” and required payment of fees before the Governor had signed the fee increase into law. For details, see

http://www.capitalpress.info/content/ml-water-fees-101609

The 2009 Legislative Session passed House Bill 3369. Among other things, this Bill tasked Oregon Water Resources Department (OWRD) with developing Oregon’s Integrated Water Resources Strategy (IWRS). The IWRS goals are to build resources and tools to assist Oregon in looking at its future water needs in terms of water quantity, water quality, ecological needs, economic needs, social needs, and implications of climate change.

Issue papers were drafted addressing these areas and are found by following the link below. These issue papers are open for public comment. All comments received by the OWRD Project Team before October 31st will be available at the next Water Resources Commission meeting currently scheduled for November 19th and 20th in Salem.

According to the Project Team’s September 23, 2009 Briefing, the intent of the IWRS is to “develop a framework, consisting of a set of tools, data, and resources with statewide relevance that communities can use to develop their water resource needs.” We encourage everyone to become involved in this process as submit comments.

Integrated Water Resources Website: http://www.wrd.state.or.us/OWRD/LAW/Integrated_Water_Supply_Strategy.shtml

Do you keep your deeds in the safe? A secure file?  If so, you surely know what water uses you are entitled to and have these records kept safe and secure reviewing them annually?

If not, you’re lucky that the state has records on the water uses related to your property.  However, it’s unlikely these records have not been reviewed in the recent past.  It is also probable that there are lurking “time bombs” in your water use records.  Such “time bombs” include:  (1) Permits or Transfer orders that need extensions; (2)  Permit Conditions that have not been met; (3) Final Proofs past due; (4)  Certificates yet to be issued.

For a fixed fee of $375 and a copy of your property deeds, Schroeder Law Offices, PC, will make a public records request to the proper agency, make a complete copy of your water rights providing you with either a paper or electronic copy or both, as well as one hour of free consultation to provide you an overview on the phone and a summary in writing of issues spotted in your water right files needing attention.

Email Ms Daryl Cole (d.cole@water-law.com) now to begin the process—and start the New Year out right knowing that your water rights are secure!

During the next two years, OWRD and other Oregon state government agencies will be closed on the following Fridays:

• October 16, 2009

• November 27, 2009

• March 19, 2010

• April 16, 2010

• June 18, 2010

• August 20, 2010

• September 17, 2010

• November 26, 2010

• March 18, 2011

• May 20, 2011

At Schroeder Law Offices, P.C., we routinely work with our clients to develop efficient water use and management systems. Upon reviewing the competition offered below, we thought of you! Thus, if you are an innovative and efficient water user, or perhaps want to share your ideas with others then you might check out this competition!

Imagine H2O is running its inaugural competition this fall on “Water Efficiency.” Kick-off is September 1st. Competitors will provide solutions that reduce the demand or use of water in either agriculture, commercial and industrial, or residential applications. This could be done via demand response, recycling, reuse, or through any other smart management ideas. Total prizes given in 2009-10 will be $50,000. Winners will receive cash, in-depth business incubation including introductions to financiers, potential beta customers and go-to-market partners, and reduced-rate or free office space.

Imagine H2O is a not-for-profit company based in San Francisco, turning water problems into entrepreneurial opportunities. For more information on the Water Efficiency Competition, you can check out their website at www.imagineh2o.org

Good Luck in the Competition! Be sure to let us know how it goes.

Idaho Power has announced that the Boardman to Hemingway (B2H) project will be holding their Community Advisory Process Public Meetings.

Participants at these meetings will have the opportunity to:
1. Learn more about the Boardman to Hemingway Transmission Line Project.
2. Review and provide input on criteria for evaluating routes for the proposed transmission line.
3. Speak to Idaho Power representatives.

The meeting times and places are as follows:
Baker City
Wed., Aug. 12, 2009 4 p.m. to 8 p.m.
Baker City Community Center
2600 East St.
Baker City, OR 97814

La Grande
Thurs., Aug. 13, 2009 4 p.m. to 8 p.m.
Blue Mountain Conference Center
404 12th St.
La Grande, OR 97850

Pilot Rock
Wed., Aug. 19, 2009 4 p.m. to 8 p.m.
Pilot Rock Community Center
285 N.W. Cedar Pl.
Pilot Rock, OR 97868

Boardman
Thurs., Aug. 20, 2009 4 p.m. to 8 p.m.
Port of Morrow Convention Center
2 Marine Dr.
Boardman, OR 97818

Parma
Tues., Aug. 25, 2009 4 p.m. to 8 p.m.
Community House of Kirkpatrick Church
305 E. Bates Ave.
Parma, ID 83660

Marsing
Wed., Aug. 26, 2009 4 p.m. to 8 p.m.
Community Center – American Legion Hall
126 N. Bruneau Highway
Marsing, ID 83639

Ontario
Thurs., Aug. 27, 2009 4 p.m. to 8 p.m.
Four Rivers Cultural Center
676 S.W. Fifth Ave.
Ontario, OR 97914

For more information, follow the link to the Idaho Power website: B2H Public Meetings

The 2009 Legislative Session was full of excitement for Oregon’s water users. Specifically, new laws face those looking to drill a new ground water well for an exempt use. Oregon’s exempt ground water uses are outlined in ORS 537.545. These exempt uses include drilling a well for single or group domestic purposes not exceeding 15,000 gallons a day.

This “exempt” ground water statute, as amended by 2009 legislation (Senate Bill 788), now requires those drilling a new well for an exempt use to: 1) file a map with Oregon Water Resources Department showing the location of the well, and 2) pay a one-time fee of $300.00 to record the exempt use. Both the map and the fee must be submitted to Oregon Water Resources Department within 30 days after the completion of well construction.

According to the Department, these fees will be used to evaluate ground water supplies, carry out ground water monitoring, conduct ground water studies, and process the data collected.

For additional information on the new exempt ground water requirements, please contact our office at (503)281-4100.

Link to Exempt Well Statute: ORS 537.545

The Society for Range Management in partnership with the Bureau of Land Management has produced a 9 minute video that “serves to tell a story about the role of livestock grazing on western public rangelands and our collective hope for a future of sustained rangeland health and enjoyment.” “Hope on the Range” is a video worth watching!

To view this video, follow this link: Hope on the Range

By Therese Ure and Nicole Widdis

Those inheriting natural resource property — which may include land used for farming, forestland or a commercial fishing operation — may qualify for the Natural Resources Tax Credit. Oregon Revised Statute 118.140 allows credit towards inheritance tax obligations based on the value of natural resource and commercial fishery properties, and possibly the value of business working capital and equipment related to those properties.

The legislation’s purpose is protection of natural resource and commercial fishing properties that could otherwise be liquidated to cover inheritance tax obligations. The 2007 enactment of ORS 118.140 was later amended in May, 2008. The amendments are retroactive to an estate where the decedent died on or after January 1, 2007. In addition, eligibility limitations exist. In most situations the total adjusted gross estate must not exceed $15 million and the value of the credit-eligible property must make up at least 50% of the total adjusted gross estate. To qualify for the credit, the eligible property must also be transferred to a family member or the decedent’s registered domestic partner.

The 2009 Oregon Legislative session is considering further amendments to ORS 118.140, in House Bill 3305. These amendments include an adjustment to the credit to consider inflation. The proposed amendments, if passed, will not be retroactive. House Bill 3305 can be viewed at http://www.leg.state.or.us/09reg/measures/hb3300.dir/hb3305.intro.html

Those who have inherited any natural resources property should check with their tax consultant and attorney to discuss their eligibility and options.

*More information on the Natural Resources Credit can be found at http://www.oregon.gov/DOR/BUS/inher-adv.shtml.
*The 2008 Natural Resources credit form is located at http://www.oregon.gov/DOR/BUS/forms-fiduciary.shtml#2007_Tax_Year, under the link to 2008 Tax Year forms.

By Therese Ure and Lincoln Herman

Aquifer Storage and Recovery (ASR) is a device for the storage of excess surface water which has been appropriated under a valid water right. Originally, this device was used primarily for drinking water, however agricultural and other water users are considering ASR as a device to off set seasonal water shortages.

The process involves the injection of excess surface water into wells for storage and later recovery. The water that is injected into the wells must meet drinking water standards. The user can use new or existing rights for the ASR water uses including storage and recovery. However, it is important to realize that the ASR process must first undergo a testing program under a limited license. Only after completion of the testing program can an ASR applicant apply for a permanent permit. ASR activities are regulated by Oregon Revised Statutes §537.531 through 537.534 and Oregon Administrative Rules §690-350-0010 through 0030.

Artificial Recharge (AR) is a device for the storage of water to be used at a later time primarily for irrigation purposes. This device was created in 1961. Similar to the ASR device, water is added to the groundwater reservoir via injection wells or a seepage system. The recharge water cannot degrade or impair the ground water quality and the underlying water right must be for recharge only. Accordingly, it would be necessary to complete a transfer to change the type of use. In addition, if the AR user wants to recover any water under the storage (or recharge) permit, an additional use right must be applied for noting the source will be the recharged water. Permits are required to appropriate the source and also to pump out the recharged ground water. AR is regulated under ORS §537.135 and OAR 690-350-0120.

It is also important to note an emerging trend of leasing underground space for ASR and AR projects. For more information, contact Schroeder Law Office via phone at 503-281-4100.