Water Law Blog

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.

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!

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 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

2,4-D is a herbicide commonly used to attack broad leafed plants, but it is less harmful to grasses. In agricultural applications, herbicide is applied to wheat, small grains, sorghum, corn, rice, sugar cane, low-till soybeans, orchards, rangeland, and pasture. Others mix it with other herbicides or pesticides for application onto non-producing lands such as roadsides, lawn turf and forestry. 2,4-D is one of the widest used herbicides in its class for weed control.

On November 6, 2008, the Natural Resource Defense Council (NRDC) filed a petition with the Environmental Protection Agency (EPA) requesting the EPA to revoke the use of 2,4-D via revoking all tolerances and canceling all registrations for the pesticide. NRDC believes that the petitioned action would create proper compliance with the safety standards of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and the Federal Food Drug and
Cosmetic Act (FFDCA), section 408, as amended by the Food Quality Protection Act (FQPA) of 1996.

You can submit comments to this petition that must be received by the EPA on or before January 23, 2009. Send comments to the EPA: 1) via following the links to submit comments online through the Federal eRulemaking Portal: http://www.regulations.gov, or 2) mail to: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

Reference Docket No. EPA-HQ-OPP-2008-0877 on all comment submission to the EPA.

For more information go to: http://www.epa.gov/fedrgstr/EPA-PEST/2008/December/Day-24/p30527.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

The B2H Project will construct a new high power (500 kilovolt) electric transmission line over 298 miles of private and public lands throughout North-Central to Eastern Oregon and Idaho. The B2H Project is currently scheduled to begin construction in 2011 and begin service in 2012. Between now and 2011, the project is undergoing the permitting and engineering phases. There are opportunities to participate and submit written comments!

This project will affect landowners’ property interests. Approximately 86% of the project crosses private land. The other 14% is land managed by the Bureau of Land Management, the United States Forest Service, the States of Oregon and Idaho, and other various public entities. In the last month, approximately 800 landowners received a mailing from Idaho Power providing notice of the project. These landowners hold property interests in the “notification zone.” Idaho Power will work to acquire easements, and or rights-of-way (ROW) with the private landowners. In some cases, Idaho Power may purchase the land in fee simple. If these options fail, Idaho Power will acquire easements and ROW through eminent domain.

The ROW will be approximately 250 feet wide, however, the proposed corridors, including alternate corridors, maintain a 2 mile width for evaluation purposes. The average distance between the 100 to 190 feet tall lattice steel towers and H-frame steel power structures will be 1200 to 1300 feet. The amount of land affected during construction includes 13,500 acres whereas the land affected during operation will include 7,550 acres. During the scoping meeting, each landowner is encouraged to provide written comment to question and discuss the limitations of these identified corridors. The landowner knows best!

Because this project traverses both public and private lands, two review procedures will occur simultaneously. These processes include National Environmental Protection Act (NEPA) compliance at the federal level via an environmental impact statement (EIS). BLM will be the lead agency in charge of the EIS. On a local level, the Oregon Department of Energy, Energy Facility Siting Council (ODOE-EFSC) reviews the Notice of Intent (NOI) received from Idaho Power. The NOI is then noticed to the public and persons can submit their written comments to the NOI which is available on the project website. The NOI was submitted on August 28, 2008.
-Public Written Comments to the EIS Scoping phase are due on November 14, 2008, and can be submitted to the Federal Project Manager, Lucas Lucero at 4701 N. Torrey Pines Dr., Las Vegas NV 89130.
-Public Written Comments to the ODOE-EFSC are also due on November 14, 2008, and can be submitted to the Energy Facility Analyst for ODOE, Adam Bless at 625 Marion St. NE, Salem OR 97301.

Transmission lines over private property do affect property values and options. Humans and animals are sometimes affected when living under or near transmission lines. Health and safety issues must be considered in light of the public need for these transmission lines.

Public information and scoping meetings are being held in October from 4:00 pm to 7:00 pm at the following locations. You are encouraged to attend!
• October 21: Marsing, Idaho (Marsing American Legion Comm. Cntr, 126 N. Bruneau Hwy)
• October 22: Ontario, Oregon (Four Rivers Cultural Cntr, 676 S.W. 5th Ave)
• October 23: Baker City, Oregon (Baker County Fairgrounds, 2610 Grove St.)
• October 28: Island City, Oregon (OSU Agricultural Service Cntr, 10507 N. McAlister Rd.)
• October 29: Pendleton, Oregon (Pendleton Convention Cntr, 1601 Westgate)
• October 30: Boardman, Oregon (Port of Morrow Riverfront Cntr, 2 Marine Dr.)

For more information, copy and paste this link in your brower: http://www.boardmantohemingway.com/default.aspx

At Schroeder Law Office we are versed in navigating through the permitting process, submitting comments to BLM and ODOE, and protecting property interests. Submitting comments is an imperative part in protecting your property interests. Please contact our office if you have any questions or desire to employ our assistance.

PAYETTE NATIONAL FOREST RELEASES A DRAFT EIS AS RELATED TO BIGHORN SHEEP AND DOMESTIC SHEEP THAT OMITS COMMITMENTS MADE IN 1997 AND THAT OMITS ANALYSIS OF MANY CRITICAL ELEMENTS

By Alan Schroeder

To view the full text of this press release please click here.

Weiser, Idaho. October 7, 2008. Is removing domestic sheep from the Payette National Forest (PNF) the answer to protecting bighorn sheep? The Forest Service says yes, but Ron Shirts of Shirts Brothers Sheep and Frank Shirts, Jr. — who are third generation domestic sheep operators that are permitted to graze on several domestic sheep allotments in the Payette National Forest — disagree.

The Forest Service released a Draft Supplemental Environmental Impact Statement (DEIS) on September 18, 2008. The Forest Service proposes in its DEIS to eliminate domestic sheep grazing on all but 4 domestic sheep allotments within the PNF in an effort to protect the bighorns due to a claimed disease transmission problem between the bighorns and the domestic sheep.

The Forest Service’s proposal ignores the fact that the bighorns in Hells Canyon in Idaho were reintroduced only through a commitment that the domestic sheep operators would be held harmless from any disease transmission problem associated with the bighorn reintroduction.

Beyond the 1997 commitment, the Forest Service’s proposal is based upon a premise that certain pathogens (bugs) exist which bighorns and domestic sheep can share, and that if these bugs are transmitted between the two animals, the bugs may cause the death of the bighorns. However, there are several elements that are necessary to confirm this premise, including, but not limited to, the following: (1) The scientific research needs to document that disease transmission occurs between bighorns and domestic sheep; (2) he facts need to disclose that the bighorns themselves are free of the offending bugs; (3) The facts need to disclose that the domestic sheep upon the allotments are carriers of the offending bugs. The Forest Service ignores any discussion in its DEIS of these elements in an apparent effort to advocate for the objective to separate the bighorns and domestic sheep and to eliminate domestic sheep allotments on the PNF.

Comments should be submitted before January 2, 2009, asking the Forest Service to redo its DEIS and to maintain the existing domestic sheep allotments on the PNF. In so asking, you will not be advocating for or against bighorns or for or against domestic sheep. Instead, you will be advocating for an objective analysis of bighorn and domestic sheep interaction and for ratification of the commitments made in 1997.

With food prices at all time highs, agricultural market prices rising, and water rights at a premium, now is the time to plan for the future.  We suggest that water users create and update water management plans with an an eye to water rights security, stability, and development.  A water management plan will analyze the current state of the water rights designated and appurtenant to property or other boundary and will provide a tool to consider options for their use, development or marketing.  One can begin this work by emailing Ms. Daryl Cole for a water rights authorization packet.

One can’t help but notice the increasing amount of wind-generation farms that are being installed throughout Oregon, Washington and the U.S.  At first glance, wind energy seems like a great idea with many people looking to jump on the bandwagon.  It provides clean renewable energy and helps stabilize energy costs and our nation’s dependence on foreign fuel sources.  However, it is not as simple as it may seem and careful feasibility and due diligence analysis must be made to determine if wind energy is right for you and your land.

There are three categories of systems that are available:

1.  Small Scale – for your own residential or commercial (office or farm) facility. These are small wind generation towers.  These help to offset the individual owner’s utility costs.
Some of these systems allow the owner to be hooked up to the power grid, wherein any extra power the owner currently generates is fed directly to the grid.  Later when the owner needs power, they can “take back” from the grid at no-cost and use the credit on the power they previously supplied to the grid.  This system is known as “net metering.”  The owners power meter will actually track in both positive and negative directions.  Of course the owner doesn’t have to be connected to the grid and thus their power generation would be used at that moment in time unless additional equipment, like batteries, are installed to capture that generation – “the stand alone system.”
These smaller systems cost anywhere from $10,000 to $80,000 installed. They generally produce around 10 kilowatts (“kW”) to 25 kW in generating capacity, and can be up and running in about a year.

2.  Community Program – group of landowners come together to install mid-sized wind generation towers and the power created is spread amongst the group.

3.  Large Scale and Utility Scale – wind farms that generate power to sell to distributors like PGE, Pacific Power, and Idaho Power for a profit.  These are the systems that usually produce 10 megawatts (“MW”) or more.  The cost is anywhere from $800,000 to $1,200,000 per turbine, in a multiple turbine system, and can be up and running in about five years, from first idea to completed construction.

Leasing the wind rights on your land to a developer is a viable option if you are not interested in going through the development process, and can provide you as the landowner with $3,000 to $4,000 per year for one 1.4 MW turbine, using .5 acre footprint that is spread over 50-75 acres of land.  Of course profit will be based on the amount of wind produced by that turbine, thus you want to make sure you have “windy land.”

The level of due diligence required to determine cost/benefits and feasibility will change depending on which system you are interested in.  The key things to remember and look at when assessing any of these systems are: goals including leasing versus developing, wind resources, amount of available land, energy needs or interconnection to the power grid, permitting through local and state governments, capital contributions available and amount of risk you are willing to assume, government grants and incentives and tax incentives and consequences.  There are different ways to structure these projects to make it worth the investment and minimize risks, but like property, each project is unique.  It is important to spend the time and money up-front in researching the opportunities and feasibility of any new business opportunity.

While the costs may ward off many potential developer candidates in prime site locations, there are several grants available for all systems including financing for the feasibility study.  There are also several different incentive programs available for project costs, taxes and production.  The range of these programs is great and should be considered specific to the proposed system.  With these grants and incentives, it can turn an $80,000 project into $10,000 project with a positive return on investment.  Thus with careful time and consideration spent up front, a landowner or company could turn this clean renewable energy resource into a profitable venture.

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

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/

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.

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.

Our work in Armenia involves reviewing contracts between the State and a couple of the largest water purveying companies in the world, Veolia and Suez, which are headquartered in France.

Interestingly, we have found that these French companies, through their subsidiaries Veolia Water North America and United Water, also have contracts in Oregon, Washington, and Idaho. Examples include Operation and Maintenance contracts between Veolia and the cities of Wilsonville, OR and Vancouver, WA, and contracts between United Water and Boise, ID.

Links to these companies can be found at www.veoliawaterna.com and www.unitedwater.com.