For many years, California was the only Western State not regulating groundwater pumping. However, they are now faced with adjusting to a new system of groundwater use. On September 16, 2014, California’s Governor Jerry Brown signed legislation limiting underground water use by commercial and residential users. The new regulations take effect in January 2015 tasking local government officials to ensure underground water use is sustainable.

This legislation, driven by drought, is believed by Governor Jerry Brown to be a necessary step in protecting the state’s groundwater reserves from depletion. Some question the potential ripple effect on farmers and ranchers across the Northern coast. In fact, groups representing the agricultural industry opposed the new legislation as they turned to underground sources of water to irrigate and sustain their food and fiber crops.

For more information, please read “New groundwater laws to have ripple effect on agriculture” at http://www.pressdemocrat.com/home/2678118-181/groundwater-laws-to-have-ripple.

Oregon follows the Prior Appropriation principle for water use. The guiding principle of the Prior Appropriation Doctrine is “first in time, first in right.” Thus, water users with earlier priority dates may have their water use rights satisfied before junior water users, or may even require junior users to cease diversions, if there is not enough water in the system to supply all uses.

However, Oregon Revised Statute (“ORS”) 536.750(1)(c) allows the Oregon Water Resources Commission to create a preference for human consumption and stock watering uses after a declaration that a severe, continuing drought exists. The creation of a water use preference allows the State to regulate water use in a way that gives priority to junior users for the identified purpose in the preference statute. Here, the State may allow water users to take water out of priority for human consumption and stock watering uses.

A constitutional problem arises when the State regulates water use on the basis of the preference. The United States and Oregon Constitutions provide that private property shall not be taken for public purpose without just compensation. ORS 536.750(1)(c) was enacted in 1989. Water use rights that were perfected prior to the statute being enacted became vested real property rights before ORS 536.750 was in place. Now, based upon the statute and agency regulations (Oregon Administrative Rule, “OAR,” Chapter 690, Division 22), the Oregon Water Resources Department may order a senior irrigation right shut off, while allowing a junior domestic or stock water use to continue. Such an order deprives the senior water user of their priority date, which is a key feature of their water right.

The Oregon Supreme Court outlined the standard for a “temporary taking” under the Oregon Constitution as follows: “We think that, in order to distinguish between a “taking,” on the one hand, and simple administrative inconvenience or delay, on the other, it is necessary to require that a complaining party allege some degree of permanence in its loss. We hold that, in order to assert a claim for a “temporary taking” under the Oregon Constitution, the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical.” Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 199 (1997). Such a denial of all economic value might be proved, in the case of a senior’s water use regulation, by a showing that the senior user’s water use would have remained unregulated had the State not exercised a preference for junior domestic and stock water uses instead, and that such regulation denied the senior water right holder all economic value of their water right during the period of regulation, such as an irrigation season where a portion of a crop was lost.

A drought has been declared in Klamath County, Oregon this year. In response, the Oregon Water Resources Commission (“OWRC”) enacted temporary rules in OAR Chapter 690, Division 20, creating a surface water preference for domestic and stock watering, regardless of priority. OWRC is now proposing to amend the Division 22 rules to extend the preference to groundwater as well. The proposed rules are available on the Oregon Water Resources Department website at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.

A second public hearing on the proposed Division 22 rules will he held September 18, 2014 in Klamath Falls. Written Comments must be received by the Oregon Water Resources Department by 5:00 PM on September 19, 2014. More information about the public hearing and comments is available on the website provided above.

Schroeder Law Offices drafts comments on behalf of its clients to proposed rules or other agency actions. Contact Schroeder Law Offices if you have questions about a government action that is affecting your water use.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that could affect you!

Earlier this month, the Oregon Water Resources Department announced in this press release that the Department would be submitting a second notice of proposed rulemaking, holding a second public hearing, and extending the comment period for proposed rules that grant preference for “human consumption” and “stockwatering” uses following the Governor’s declaration of a drought. The rules are solely directed at Klamath County, Oregon. After receiving comments from elected officials and concerned local governments stating that there was little notice or public involvement in crafting the proposed rule, the Department decided to hold the second round of comments and public hearings.

Besides making the temporary rule permanent, the rule is different from the original temporary rule in that it eliminates the differentiation between the regulation of surface water to include all water sources, including groundwater. How this proposed rule affects exempt well uses, including “domestic purposes” is unknown, and “domestic purposes” is clearly not included in the definition of “human consumption.”

In addition, granting preference for a particular use does not necessarily translate into a restriction to the access of the water supply. While the Department states that senior calls could “regulate off” a junior user, the preference for a human consumption and stockwatering uses does not speak to restricting access.

The department seems to be conflating the two different aspects between use and access. While shutting off a well or closing a diversion point may be the most efficient method of regulation, granting a preference for human consumption and stockwatering uses would still allow access, and require the department to use a more sophisticated regulation system other than just shutting off the supply: the uses would be regulated, not just the access to the supply. The City of Klamath Falls identified this distinction in its comments, noting its potential role as watermaster for all of its municipal subscribers to enforce the preference of uses as proposed, as municipal uses include industrial and landscape irrigation uses.

The comment period for the proposed rules will close at 5:00 PM on September 19, 2014, and the Commission is expected to take up the proposed rule during the week of September 22, 2014.

The next public hearing is scheduled at 6:00 pm on September 18, 2014 at the Oregon Institute of Technology Mt. Mazama Room, located at 3201 Campus Drive, Klamath Falls, OR.

Schroeder Law Offices first highlighted the proposed rule change to the Clean Water Act in a May blog posting.

Growing opposition to the rule has caused the Environmental Protection Agency (“EPA”) to extend the public comment period through October 20, 2014 from the original comment deadline of July 21.

Opponents and supporters characterize the Revisions to the CWA as either a federal government “land grab” or a clarification of rules depending on point of view.

Opponents generally believe the Rule will give the EPA increased jurisdiction over water adversely affecting farmers and ranchers; while proponents of the change claim the proposal will help eliminate confusion over what types of waters are covered by federal regulations. Texas Attorney General and gubernatorial candidate Greg Abbott submitted comments and threatened to sue if the proposal is not withdrawn. Farm Bureau Federations in Oregon, Nevada, California and nationally are marshaling member support and urging the EPA to Ditch the proposed CWA provisions.

Supporters suggest the proposed rule clarifies issues regarding streams and wetlands.
The article linked here and the photos above demonstrate the varying opinions on the proposed rule change.
Information gathered from a variety of news sources.

Follow this link to leave comments.

Grazing and water use go hand in hand. This year Nevada continues to experience drought conditions causing ranchers and farmers to make adjustments, whether by their own choosing, or by the hand of the government.

On July 23, 2014, Nevada’s Battle Mountain District BLM held a meeting with the Permittees of the Argenta Grazing Allotment. The Permittees were notified that they must remove their cattle from their summer grazing country on the mountain down to the flat because “Triggers” had been met on a couple of riparian sites. There is some concern with the Permittees who feel there is still plenty of feed and water on the mountain and very little of both on the flat. Permittees have also expressed frustration with the time and cost of moving the cattle, hauling in water and the possibility of being forced to bring in the cattle and begin feeding hay much earlier than typical.

The Range Tour is intended to show the public the riparian areas that are the cause of the summer range close down. The tour will also depict a suggested solution by Permittees to fence and protect the sensitive areas to allow for continued grazing in the summer country.

The Tour will start at the Martin Ranch at 9:00 am and will continue through the entire allotment, ending at the Grass Camp for a BBQ. It is suggested that tour attendees bring snacks, plenty of water, and camp chairs for the BBQ. Any and all donations will benefit the Cowboy Express Ride from sea to shining sea in October. Everyone is welcome!

For more information call (775) 635-5610 or visit “Support Nevada’s Ranchers” on Faceboook at https://www.facebook.com/pages/Support-Nevadas-Ranchers/832072560151420.

Directions to the Ranch: Take the middle Battle Mountain, Nevada exit off Interstate 80 that connects to Highway 305, the Austin Highway. Turn South and take the first left beyond the freeway overpass. Follow signs for about 8 miles to the Tomera Ranch.

North Idaho Adjudication Ramping Up

With Idaho set to wrap up a 27-year water-rights adjudication of unprecedented scale nationwide, water administrators are gradually shifting their focus to the state’s northern basins and a procedure expected to take only a fraction of the time as the Snake River Basin Adjudication (SRBA).  The SRBA — involving all Idaho-situated tributaries of the Snake River, which extend over 90 percent of the state — will become the nation’s largest general adjudication brought to completion.  In comparison, the North Idaho Adjudication (NIA) will encompass parts of only six counties and stretches just 180 miles south of the Canadian border.

Three Phases

In actuality, the North Idaho Adjudication has been under way since 2008, and the first of its three phases, covering the Coeur d’Alene-Spokane River Basins, has predominantly taken shape. Nearly 11,500 claims have been filed, and director’s reports for all five basins are anticipated by mid-2016. The second phase of the NIA, involving the Palouse River Basin, is expected to commence next summer, while the third, for the Clark Fork-Pend Oreille River Basins, is projected to start before 2020. The state’s Adjudication Court anticipates it will see claims filed for up to 30,000 water rights, or roughly one-fifth the number it processed during the SRBA.

While the NIA’s scope promises a far more expedited process than did the SRBA, so does the experience gained in the prior adjudication. The Fifth Judicial District Court in Twin Falls will retain jurisdiction — although the staff will travel north on occasion, a majority of the court’s business will be conducted by way of video or audio teleconferencing — and the Idaho Department of Water Resources (IDWR) has become adept at handling whatever issues arise, whether they require extensive site investigations or guidance on basic procedural matters.

Water Rights Holders’ Responsibilities

Holders of water rights predating the NIA’s November 12, 2008 commencement must participate or the right will be extinguished once a final decree is entered. Rights that fit the statutory definition of domestic or stockwater use are deferrable, but IDWR advises such users to file claims as well, considering the insignificant cost ($25) as compared to the benefit of having a decreed right.

This may prove vital for users in Kootenai County — where Coeur d’Alene is located — if the state of Washington establishes proposed in-stream flows for the Spokane River in stretches west of the Idaho state line. Although Washington has no administrative authority over water users in Idaho, observers anticipate conflicting interstate demands will ultimately lead to litigation and an interstate compact.The priority date for the involved rights may very well determine which State (and its users) prevails.

For more information, go to http://www.idwr.idaho.gov/WaterManagement/NorthIdAdju/default.htm

On July 15, the California State Water Boards passed Resolution No. 2014-0038 to adopt urban water control regulations. These regulations are aimed at conservation for urban residents, providing fines for using water inconsistent with the conservation measures. Among the measures aimed at curbing water use, the Water Board has proposed restricting activities on individuals including:

(1) The application of potable water to outdoor landscapes in a manner that causes runoff such that water flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots, or structures;

(2) The use of a hose that dispenses potable water to wash a motor vehicle, except where the hose is fitted with a shut-off nozzle or device attached to it that causes it to cease dispensing water immediately when not in use;

(3) The application of potable water to driveways and sidewalks; and

(4) The use of potable water in a fountain or other decorative water feature, except where the water is part of a recirculating system.

Performing any of the above activities subjects the offender to civil fines or criminal penalties (as a criminal infraction), punishable by a fine of up to five hundred dollars ($500) for each day in which the violation occurs.

Additionally, urban water suppliers and public water suppliers are required to implement water restrictions on outdoor irrigation of ornamental landscapes or turf with potable water. Under the restrictions, ornamental landscaping and turf cannot be irrigated for no more than two days per week.

The regulations are planned to take effect on August 1, 2014 following review from the Office of Administrative Law, and the restrictions will be active for a period of 270 days (nine months), unless water availability conditions change.

As the drought in the Western US continues, communities can expect to see more of these types of water control regulations moving forward.

For more information, see the California Water Board’s Media Release.

On June 4, 2014 U.S. Senators John Barrasso and Mike Enzi introduced the Water Supply Permitting Coordination Act (S.2427). Representatives Tom McClintock and Cynthia Lummis introduced an identical bill in the House on January 31, 2014 (H.R.3980).

The intent of the Act is to make the process for approval of surface water storage projects on Federal lands easier by designating the Bureau of Reclamation (“BOR”) as the agency in charge of the permitting process. The BOR will be responsible for identifying appropriate Federal agencies and providing notification of the opportunity for these agencies to participate in the permitting process as cooperating agencies. The State in which the project is located may choose to participate in the project as a cooperating agency, thus making all State agencies subject to the Act. Additionally the Act charges the BOR with coordination responsibilities in the preparing of a unified environmental review document for the project, setting timelines for project reviews and determinations, and maintaining a consolidated administrative record in an electronic form to allow the material to be available to various parties.

Efficient administration of the permitting of storage projects on Federal lands may provide more irrigation options to our nation’s farmers in areas where appropriation from direct surface flow is limited due to geography. Contact Schroeder Law Offices for additional information as we follow this legislation!

For municipalities tasked with eliminating stormwater drainage, options tend to be expensive or regulatory steeple-chases with several iterations of reports, plans, approval processes, and permitting. A recent addition to the municipal toolbox of reducing stormwater runoff is the incorporation of Low Impact Development (LID) techniques that can serve as an alternative to the typical stormwater channelization and drainage systems.

The focus of LID is to improve water quality concerns with stormwater runoff; that is by using runoff on the site where it falls, as opposed to conveying the runoff to other locations and transporting pollutants, including sediments, with the runoff. Some of the techniques used include biofiltration and retention basins and swales, rain gardens, green streets, pavement minimization, and permeable pavements. In addition to reducing discharge into adjacent waterbodies, LID implementation can increase groundwater recharge and possibly lower demands on landscaping irrigation. Part of the driving force behind LID developments includes regulatory pressures from state and federal agencies. The Clean Water Act and National Pollutant Discharge Elimination System (NPDES) program require qualifying municipalities to develop and implement stormwater management programs under municipal separate storm sewer system (MS4) permits.

Exploring LID techniques may help a municipality decide if these kinds of practices would be beneficial, and incorporating LID as a stormwater discharge in the local planning codes can be a runoff reduction technique that can lower costs associated with MS4 water treatment and meet permitting planning requirements. In Oregon, the Department of Environmental Quality (DEQ) administers the MS4 program permits, and as part of the permitting requirements, some municipalities have developed stormwater management plans requiring new developments and redevelopments to implement LID where feasible.

LID used as a compliance tool in MS4 permitting

Depending on the size of the municipality, the DEQ can require either Phase I or Phase II MS4 permit, with Phase I sources have populations greater than 100,000, and Phase II sources with populations less than 100,000 and located within a Census-Bureau defined “Urbanized Area.” While the municipalities within these classifications are already aware of the MS4 requirements, entities experiencing growth may find themselves seeking waivers or become very familiar with MS4 permitting through necessary compliance.

For those entities already working within the MS4 permitting regime, LID programs within municipal control could offer compliance with permit conditions requiring “Minimum Control Measures” including:

1) Public Education and Outreach on Stormwater Impacts by identifying LID infrastructure with signage explaining the use and purpose of the bioswale, green street, permeable pavements, etc.;

2) Public Involvement/Participation through implementation LID design concepts in the local planning commissions;

3) Illicit Discharge Detection and Elimination through diverting some possible illicit discharges away from the traditional stormwater sewer system and identifying sources of the discharge closer to the originating site; and

4) Post-Construction Stormwater Management in New Development and Redevelopment through implementation of the localized LID policies and requirements, as readily identified to developers by clear planning and design standards.

For those entities not yet required to perform within the MS4 permitting regime, having LID concepts employed could serve as a technique to reduce the overall Total Maximum Daily Loads (TMDL) for stormwater sewer discharges, thereby possibly qualifying the entity for an MS4 permitting waiver under federal regulations.

LID as an alternative or compliment to Injection Systems

Rule authorized injection systems are subject to a laundry-list of certifications and requirements in order to protect groundwater supplies from contamination. Prior to authorizing an injection system, the DEQ requires developers to consider LID concepts when municipal stormwater sewer connections are unavailable, and certify that no other stormwater disposal method is appropriate. LID options offer a municipal or private entity the ability to remove stormwater without the degree of regulatory oversight as with injection systems, and can serve as either a primary way of disposing of stormwater or can complement injection system design by removing stormwater that cannot meet the quality requirements of the injection system regulations.

Issues with implementing LID

As with any proposed method of implementing local zoning regulations and design standards, LID may not be appropriate for the particular application. Planning and zoning codes should not be intended as static one-size-fits-all requirements. Issues could include high water tables, previous on-site contamination, or economic issues involving larger rights-of-way and private landowner compensation. Within the proposed local land use planning codes, drafters should incorporate flexibility into the application of LID requirements, while not making the exemptions so broad as to make implementation useless, should that be the desire of the local leadership. LID implementation could be a way for new development or redevelopment to reduce overall strormwater loads, and could be incentivized with a reduction in system development charges. While LID is not a cure-all to a municipality’s issues with stormwater drainage and treatment, it offers an alternative and an additional tool to use when stormwater discharge regulation is already an issue, or is easily visible on the horizon.

On April 21, 2014, the Federal Register published a proposed rule drafted to clarify the definition of “Waters of the U.S.” under the Clean Water Act.  According to the U.S. Environmental Protection Agency (“EPA”), the proposed rule was released by the EPA and the U.S. Corps of Engineers (“Corps”) with the intention of clarifying protection for streams and wetlands, that had become complex following recent Supreme Court Decisions, under the Clean Water Act.

The proposed rule has created controversy with some agricultural organizations who  worry that under the proposed expansion, all waters in the country will be subject to regulation by the EPA and Corps.

The public comment period for the proposed rule will be open until Monday, July 21, 2014.  To view the full text of the proposed rule, please visit the Federal Register’s online database at http://www.gpo.gov/fdsys/pkg/FR-2014-04-21/pdf/2014-07142.pdf.

Earth Day is a great reminder that we can all gather together to learn about our world’s ability to sustain life for ourselves and future generations.

In the legal field, the American Bar Association, Section of Environment, Energy, and Resources (“ABA”) is sponsoring a project in support of Earth Day.  It is a nationwide public service project called “One Million Trees”.  The goal is to plant one million trees across the United States.  The ABA has been working on this project since 2009 by planting trees themselves and by contributing to partnering organizations.

Likewise, Schroeder Law Office employees are participating in various activities throughout April to support our land’s sustainable resource and agricultural uses via Oregon’s Ag Fest, Oregon Women for Agriculture Auction and Dinner event, OSB Environmental and Natural Resource meetings, and Nevada Water Resource Association event planning meetings for future water programs.

Get outside and learn about water as part of Earth Day in 2014!

On March 13, 2014, the U.S. House of Representatives passed H.R. 3189, the “Water Rights Protection Act.” This piece of legislation was introduced by Rep. Scott Tipton of Colorado, and Rep. Mark Amodei of Nevada. In a press release, Rep. Mark Amodei states that, “[t]he bill would protect communities, businesses, recreation opportunities, farmers, ranchers and other individuals who rely on privately held water rights for their livelihoods. It would prohibit federal agencies from confiscating water rights through the use of permits, leases, and other land management arrangements.”

This Act prohibits the US government, and more specifically, the Secretary of the Interior and the Secretary of Agriculture, from conditioning the issuance, renewal, amendment, or extension of any land use or occupancy agreement on the transfer of any water right directly to the United States. Such prohibition is meant to protect privately held water rights from federal takings.

On March 4–7, the 2014 United States Committee on Irrigation and Drainage (USCID) met in Sacramento California on the topic of “Groundwater Issues and Water Management—Strategies Addressing the Challenges of Sustainability.”  The Conference included our study of “Conjunctive Management: Changing Water Regulation and Evolving Strategies.” This paper focused on western States regulation of surface and groundwater conjunctively (or not), concluding with creative approaches for water users to employ should groundwater be restricted or limited.

The common themes emerging from the conference included: the increasing reliance on groundwater when surface water becomes limited, salinity concerns from groundwater, and questions on whether California will implement centralized State-control of the groundwater supply. Given the past history of water regulation tied to cyclical droughts, water users and irrigation districts are uncertain about planning for future infrastructure investments when there is the possibility of potential State regulation of their groundwater use.

From an Oregon perspective, State-controlled groundwater use is a daily reality, and you can ask anyone in the Klamath River Basin on their possible concerns of their wells being turned off by the State. For the second year in a row, the Governor declared a drought in much of the southern half of Oregon, and the Oregon Water Resources Department is initiating rulemaking to restrict water diversions in Klamath County. The conference also included tours of two irrigation districts, demonstrating on-call water delivery with a pressurized irrigation pilot program, and an automated lateral demonstration project. These two projects brought irrigation into the 21^st century with water scheduling as easy to order as an airplane ticket.

During the tours I had to opportunity to discuss with irrigation district staff about whether the pressing water shortage will change the regulatory framework moving forward, or whether the will decrease after the rains return. Ideas about increased groundwater recharge and storage during times of water surplus are forthcoming now, but once the water returns, will these ideas remain in the forefront? California water users will be faced with important decision in the coming months, many of which will be how to provide for the nation’s pantries when faced with little to no allocation of surface water. Much like the implementation of automated water delivery of water is moving into the 21^st century, California will likely be at the forefront of 21^st century water storage technology given the stakes of deciding otherwise.

National Ground Water Awareness Week brings our attention to the “hot” issues in ground water now focused in Oregon, perhaps surprising to some, in the Klamath Basin.

On March 7, 2013, the Oregon Water Resources Department (“the Department”) issued its Findings of Fact and Order of Determination (“FFOD”), thus ending the administrative phase of the Klamath Basin Adjudication for pre-1909 surface water claims. Once the FFOD was entered, the Department became vested with the power to administer and regulate adjudicated water use rights according to priority of use, meaning that the Department may order junior water users to shut off water use if there is not enough water in the system to satisfy senior users to their full extent. During the 2013 irrigation season, the Klamath Tribes, holding the most senior water rights pursuant to the FFOD, made a call on the water to satisfy the Tribes’ instream adjudicated claims, and the Department sent notice letters to surface water users to regulate all junior surface water uses upstream.

Under Oregon Administrative Rules (“OAR”) Chapter 690, Division 9, the Department has authority to regulate ground water uses against substantial interference with surface water supplies where the use is hydraulically connected to the surface water. All wells located less than ¼ of a mile from a surface water source and producing water from an unconfined aquifer are presumed by the OAR to be hydraulically connected to the surface water source, unless the appropriator provides evidence to the contrary. Wells that pull water from an unconfined aquifer outside the ¼ boundary or from a confined aquifer must be evaluated by the Department for hydraulic connection to surface water sources.

http://pubs.usgs.gov/circ/circ1217/html/boxa.html, at figure A-2

Also by OAR, wells that produce water from a hydraulically connected aquifer are assumed to have the potential to cause substantial interference with a surface source if they are located within one mile of the surface source. In evaluating hydraulic connection in the Klamath Basin, the Department prepared a ground water model.

Recent information indicates that the Department will rely on its regional modeling to establish a presumption that wells within 1 mile of Klamath Lake, Agency Lake or within 1 mile of perennial gaining reaches of streams tributary to Upper Klamath Lake have the potential to cause substantial interference with the aforementioned surface sources (“gaining” reaches of streams are those that have increased flow as a result of ground water contribution to surface stream flows). Consequently, according to the OAR, these ground water uses will be subject to control (or regulation) by the Department.

Anticipating that the Department will begin shutting off wells within the “presumed” surface water connection boundary, Oregon Representative Gail Whitsett and Oregon Senator Doug Whitsett sponsored identical bills to add provisions within the Oregon Revised Statutes to protect ground water users by requiring the Department to tie regulation of a particular well or proposed well to scientific evidence that is specific to that use, rather than relying on a presumed surface water connection or a presumption created by a regional model. The full text of Senate Bill 1572 and House Bill 4044 can be accessed by following the links below.

https://olis.leg.state.or.us/liz/2014R1/Downloads/MeasureDocument/SB1572

https://olis.leg.state.or.us/liz/2014R1/Downloads/MeasureDocument/HB4044

The main focus of the bills was to require written notice prior to any action by the Department to regulate ground water use rights as a result of adjudicated claims, based upon the presumption of surface water interference and general regional modeling. The notice must be supported by the report of a qualified hydrologist finding a specific hydrologic connection between the well location at issue and the point of appropriation for the senior water use right. The supporting report must find that regulation of the ground water use would have a measurable effect on exercising the senior water use right. The bills also sought to prohibit the Department from amending a proposed final order to include additional supporting information following a request for hearing, and allow for collection of attorney’s fees by the water right applicant or water right holder under various circumstances.

Unfortunately, neither bill was passed during the 2014 regular session. The House bill was given a hearing, but no vote! Senator Whitsett and Representative Whitsett discussed their efforts during the February 21^st Oregon Cattlemen’s Association’s Quarterly Meeting, and reported that they intend to reintroduce the bills during the next legislative session.

Thus, the OARs will continue to place the burden on the ground water user to prove a negative in the case of a senior surface water call: that their well is not hydraulically connected to the nearest surface source.

Stay tuned to Schroeder Law Offices’ Water Law Blog as we follow the progression of this important legislation.

On February 13, 2014, Oregon Governor John Kitzhaber declared a drought emergency for four southeastern counties (Klamath, Lake, Harney, and Malheur) in Oregon Executive Order No. 14-01. “The unusual act of declaring a drought emergency in the middle of February is an indication of how severe the conditions are in southern Oregon and of the hardships being faced by communities throughout the region,” said Senator Wyden. The press release and Executive Order are available at: http://www.oregon.gov/owrd/pages/wr/drought.aspx.

The drought declaration increases flexibility for how water is managed in the counties where a drought has been declared. Water right holders who are unable to use water due to drought conditions may apply to the Oregon Water Resources Department (“OWRD”) for an Emergency Use Permit for temporary use from an alternative water source. Another option is a Temporary Drought Transfer, which allows a person who is unable to use water appurtenant to a certain parcel of property due to drought conditions to temporarily transfer a different permit, certificate, decreed right, or claim to the land needing the water without going through the normal notice and waiting requirements for a standard transfer. Finally, local governments and public corporations may enter into options or agreements to use water under an existing permit, certificate, or decreed water use right, allowing the entity to use the water at points of diversion and for beneficial uses other than those described in the water use right, provided OWRD approves the option or agreement.

Schroeder Law Offices has successfully worked with clients in obtaining water use through the drought mechanisms when droughts are declared. We recommend contacting Schroeder Law Offices early if you need, or might need assistance with a drought application.

According to the New York Times, the Colorado River has suffered a 14 year drought reducing the flow of the river and diminishing it’s man made reservoirs to less than half of their capacities. Approximately 75% of it’s water is used by agriculture in California’s Imperial Valley and Wyoming’s cattle herds (producing 15% of the nation’s food). Studies of global-warming are concluding that due to rising temperatures, the Colorado’s average flow will further be reduced by 2050 anywhere from 5% to 35%, even if rainfall remains the same, noting that most studies predict a reduction in rainfall.

Regional water agencies have allotments for river water, and in an effort to stretch those allotments they are seeking alternative resources. For example, some agencies are recycling sewage waste, while others have begun offering rebates to customers who remove their grass lawns or subsidize appliances with more water efficient models. Furthermore, this year the federal authorities will reduce the amount of water that flows into Lake Mead from Lake Powell. Lake Mead is one of the nation’s largest reservoirs. Lake Mead provides water to cities from Las Vegas to Los Angeles and is a critical source of water for millions of acres of farmland. According to the senior deputy manager of the Southern Nevada Water Authority (“SNWA”), if Lake Mead goes below an elevation of 1,000 feet above sea level, SNWA would lose the ability to pump water for municipal services. The SNWA has been drilling tunnels under the lake in an attempt to capture more water, and are currently drilling an $817 million tunnel, the third so far.

Seven states, and Mexico, share the water from the Colorado River, and although some states have made progress in conservation efforts, there is no united plan to deal with the shortages that could last several years or decades. In the 1920s, the Colorado basin states split the water 50-50 between the upper-basin states (i.e., Colorado, New Mexico, Utah and Wyoming) and the lower-basin states (i.e., Arizona, California and Nevada). However, at the time it was not anticipated that the fast-growing lower-basin states would need more water than it’s upper counterpart.

During the 1960’s Arizona proposed the Central Arizona Project, a web of canals designed to irrigate the state’s farms and cities. In return for support of federal legislation needed to build the project, California required priority on lower-basin water. In the event that Lake Mead continues to fall, Arizona could lose half of its Colorado River water before California loses any. If Arizona loses its Colorado River water, the Central Arizona Project could lose revenue resulting in a likely increase to water costs for remaining customers. The farmers will likely return to pumping groundwater for irrigation, which is what the Central Arizona Project was designed to prevent.

According to the New York Times, solutions to this problem are few and, in some cases, unrealistic. Living with a permanently drier Colorado River may be possible, but will be very difficult. Finding more water poses problems as there are too few alternative sources to make an impact on the shortage. Conservation appears to be the most realistic and practical option, and it has already begun. Arizona farmers have started using laser technology to ensure their fields are flat, thereby reducing runoff. Southern California’s Metropolitan Water District is recycling sewage waste and giving away high-efficiency water nozzles and subsidizations for alternative lawns and appliances. In Southern Nevada, nearly all water used indoors is treated and returned to Lake Mead. While federal officials are acknowledging these efforts and their impacts, they insist much greater conservation is possible and necessary for the 21st century.

For more information: http://www.nytimes.com/2014/01/06/us/colorado-river-drought-forces-a-painful-reckoning-for-states.html?

Last Wednesday, I had the opportunity to attend a Continuing Legal Education seminar, the topic being “Is Western Water Law Sustainable?’ Over the course of the hour and a half long discussion, we heard the history of the way the prior appropriation doctrine assumed its prominence in the water law of Oregon, and then a two sided argument about how Oregon’s water laws were, or weren’t up to the challenge to deal with issues related to depleted stream flows and decreased water availability.

The main points offered by the proponents of western water law being sustainable were that the laws are evolving to meet changing demands and public values. For example, allowing DEQ, ODFW, and OPRD to apply for in-stream water flows to promote increased water for wildlife, recreation, and pollution abatement. The opponents of western water law had a much more concise point, stating unabashedly that western water law is not sustainable, was the “mother of all train wrecks,” and “ a slow motion disaster.” Besides the hyperbole and fleeting reference to environmental philosophers, a reoccurring point of discussion that came up was how water was a public resource, and yet water users were not being charged to use the water associated with their water rights.

Besides being a directly economically crippling measure aimed at taking cropland out of production, the trickle down effects of charging for water use would be astronomical. Should Oregon be the only western state to impose a “tax,” “user fee,” or whatever label sounds appropriate at the time, locally sourced produce would increase in cost.  Oregon farmers would not be able to compete on a national level with regional or national producers. Would these out of business farmers be able to cover their bank loans after this water-use paradigm shift? Unlikely, so the financial industry would be harmed as well. What about municipalities? Would the municipalities be charged for consuming public water? And where would the costs shift? What about domestic wells? Of course, these are largely rhetorical questions because the answers are obvious: the consumer would face increased costs for “made in Oregon products,” face increased costs of living to reside in Oregon, and contribute to higher transportation activity when cheaper goods from out-of-state are imported. Disposable income would shrink, and the Oregon economy would contract.

What is apparent is that key philosophical differences and values involved in the “sustainability” discussion make a middle ground difficult to achieve, especially with a shared resource like water because nearly everyone has a stake in the decision making process. If we can take an example of conflicting values from history, such as the debate on which theological approach is correct, we have a ways to go to bridge the gap and gain consensus on this important and pressing issue.

Countdown to World Water Day 2014: 66 days!

World Water Day 2014 focuses on the relationship between water and energy.  The United Nations-Water and United Nations-Energy programs within the United Nations System are working with the UN’s Member States and other stakeholders to highlight the interconnected nature of water and energy.  Specifically, water is required to generate different forms of energy and energy is required to transport and treat water for consumption.  The UN’s goal is to contribute to policy discussions related to the water-energy relationship and determine meaningful ways for UN participation in development of water-energy programs to achieve economic and social benefits.

Please join Schroeder Law Offices in celebrating World Water Day 2014!

Additional information on the UN World Water Day 2014 may be found by following the link below:

http://www.unwater.org/worldwaterday/about-world-water-day/world-water-day-2014-water-and-energy/en/

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting the amended ORS 537.230(2) conditions. ORS 537.230(2) prescribes conditions for the Oregon Water Resources Department (“the Department”) to grant municipal permit extensions to complete construction and apply water to beneficial use in order to perfect water use rights. In this case, the City of Cottage Grove (“the City”) sought an extension, but then completed construction and application of water to beneficial use before the extension was granted. Based upon the language of the statute, the Department issued the extension without the ORS 537.230(2) conditions, and WaterWatch sought judicial review. The Oregon Court of Appeals reversed and remanded the Department’s final order.

In 2005, ORS 537.230(2) was amended by the passage of HB 3038 to allow municipal permittees to have up to 20 years to commence and complete construction of proposed water use infrastructure and apply water to beneficial use (as opposed to the previous 5-year deadline), so long as certain conditions are imposed. ORS 537.230(2) currently provides:

(2) The holder of a permit for municipal use shall commence and complete the construction of any proposed works within 20 years from the date on which a permit for municipal use is issued under ORS 537.211. The construction must proceed with reasonable diligence and be completed within the time specified in the permit, not to exceed 20 years. However, the department may order and allow an extension of time to complete construction or to perfect a water right beyond the time specified in the permit under the following conditions:

(a) The holder shows good cause. In determining the extension, the department shall give due weight to the considerations described under ORS 539.010 (5) and to whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right;

(b) The extension of time is conditioned to provide that the holder may divert water beyond the maximum rate diverted for beneficial use before the extension only upon approval by the department of a water management and conservation plan; and

(c) For the first extension issued after June 29, 2005, for a permit for municipal use issued before November 2, 1998, the department finds that the undeveloped portion of the permit is conditioned to maintain, in the portions of waterways affected by water use under the permit, the persistence of fish species listed as sensitive, threatened or endangered under state or federal law. The department shall base its finding on existing data and upon the advice of the State Department of Fish and Wildlife. An existing fish protection agreement between the permit holder and a state or federal agency that includes conditions to maintain the persistence of any listed fish species in the affected portion of the waterway is conclusive for purposes of the finding.

In the Cottage Grove Case, 2013 WL 6498547, 2013 Ore. App. LEXIS 1463 (December 11, 2013), the ORS 537.230(2)(b) and (c) conditions were tested. The City of Cottage Grove was issued a permit in 1977 with deadlines to complete construction in 1979 and apply water to beneficial use in 1980. The City was granted a number of extensions, ending in 1999.

In 2007, the City enlarged its water treatment plant and applied to the Department for an extension of time to perfect its water use right. Prior to being granted an extension, the City applied the full amount of water allowed under its permit to beneficial use. The Department thereafter approved the City’s extension, but without the ORS 537.230(2)(b) and (c) conditions because the Department determined that there was no undeveloped portion of the permit at the time of the most current extension. WaterWatch sought judicial review of the Department’s order approving the extension in the Oregon Court of Appeals. The Department thereafter issued a water right certificate to the City.

First, the Oregon Court of Appeals determined that WaterWatch’s action was no rendered moot by the issuance of a water right certificate. Although water right certificates may only be cancelled for certain statutory reasons (ORS 537.250(3)), and are generally “conclusive evidence of the priority and extent of the appropriation therein described” (ORS 537.270), the Court determined that the validity of the certificate was predicated upon the validity of the final order approving the extension application as a necessary prerequisite to the certificate. Therefore, if the final order approving the extension was reversed, the certificate could be cancelled as well.

Second, the Oregon Court of Appeals conducted statutory interpretation to determine whether the “undeveloped portion of the permit” should be measured at the time the extension application is considered by the Department (as argued by the Department and City), or whether it should be measured at the permit deadlines or previous extension deadlines (as argued by WaterWatch). The Court outlined the legislative history leading to the ORS 537.230 amendment, and concluded that the statutory amendment represented a compromise between environmental interests and municipal needs to engage in staged water development.

The Court ruled for WaterWatch, holding that the undeveloped portion of the permit before extension must be measured at the time specified in the permit or last extension. Otherwise, municipalities could avoid the ORS 537.230(2) conditions by developing additional amounts of water before applying for extensions. The Oregon Court of Appeals ruled that the Department’s failure to condition the permit extension on ORS 537.230(2)(b) and (c) was inconsistent with the statute. The Court reversed and remanded the Final Order for the Department to vacate the water right certificate and reconsider the permit extension in line with the Court’s decision.

The Cottage Grove Case is the first in a number of municipal extension judicial review cases. The statutory interpretation will affect numerous municipal entities throughout the State of Oregon, and require municipalities to implement water conservation management plans and protect the persistence of certain fish species when conducting staged water development that requires extensions of time. This will make staged development of water resources for municipal uses more challenging. It is currently unknown whether the Department or the City will seek review before the Oregon Supreme Court.

For a full version of this article, visit the Oregon State Bar Environmental & Natural Resources Section webpage, at: http://osbenviro.homestead.com/.

Stay tuned to Schroeder Law Offices Water Law Blog for more water news that could affect you!