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/

Congratulations to Finegan Farms, winner of the 2012 Agricultural Achievement award from the Hillsboro Chamber of Commerce! Finegan Farms is one of Washington County’s most successful family farms, growing sweet corn, green beans, wheat and clover for export to markets around the world. Since the 1950’s Finegan Farms has been carefully passed down through the generations. Today brothers Joe and Ken Finegan carry on the family heritage, running the farm along with their wives Jennifer and Angela. The Agricultural Achievement award honors Finegan Farms as one of Hillsboro’s outstanding citizens, not only for its farming success but for the countless hours the Finegans have donated to the community. Please join us in congratulating Finegan Farms as Hillsboro’s 2012 agricultural “shining star”!

The Portland based conservation group, Oregon Wild, has filed suit against the Bureau of Reclamation alleging BOR has failed to adopt a Biological Opinion that will protect wild coho in the Little Butte Creek Basin. Oregon Wild alleges BOR was to provide the Biological Opinion by March 2010. Since 2003 Oregon Wild has sought changes to the manner and extent of water releases from Emigrant Lake to ensure minimum flow levels in various tributaries in the Little Butte Creek Basin to protect wild coho. The changes requested by Oregon Wild will affect how BOR can store and move water for agricultural uses, including water delivery for Talent Irrigation District.

For more information see: http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20120208/NEWS/202080319/-1/rss01

The following annoucenment 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.

Improved technology and surveying techniques may lead to the discovery that your water rights are located where believed or are actually authorized on incorrect property. If you are a holder of a water right which incorrectly includes a portion of authorized use appurtenant to land owned by another party (such as a neighbor) or another inconvenient place, the clarification process outlined below may be of assistance to you.

Clarification of a water right is authorized by ORS 540.560 and administrative rule OAR 690-380-9000. These provisions of law provide that the Director of the Oregon Water Resources Department (“Department”) may issue an order clarifying and defining the description of land to which a water right is appurtenant when it is required for the management, delivery or transfer of a water right. The sole purpose of the clarification process is to better define the location to which a water right is appurtenant. No other changes – i.e. rate of use, amount of use, type of use – may be changed by the clarification process.

To clarify your water rights, you may “petition” the Director for an order to clarify the location of your rights by letter. The letter should include:

1. Relevant and historic information sufficient to establish that the “clarified” location is the same location where water use has always occurred;

2. An explanation of why the present location description is inadequate or deficient;

3. A description of the “clarified” location including an explanation of the difference between the current location and the “clarified” location. This description may be supported by a map.

If the Department determines that clarification is required, an order is issued clarifying the water right. The Department must serve the order on the legal owner and occupant of the land to which the water is appurtenant as described in the certificate. The legal owner or occupant of the land may request a hearing to object to the clarification within 30 days of service of the order. If no request for a hearing is made, the order issued by the Department shall become final and become an addendum to the certificate.

If you are interested in obtaining or discussing additional information regarding the clarification process, please contact Attorney Cortney Duke at c.duke@water-law.com or our office at (503) 281-4100.

It is practically impossible to avoid a new story, article or observations about the economy these days. Commentary on the economy commonly concerns interest rates, the stock market, and the latest moves by the Fed. In the article “Is water the new gold?” author Anthony Mirthaydan addresses the interplay of the demand for clean fresh water for domestic, agricultural, industrial and other uses with the local, regional and world economies. As pointed out by Mr. Mirthaydan, as the demand for water increases so too does the stakes to control water sources. Because all signs point to continued escalated demands for water, now is the time to ensure your water rights and resources are secure now and for the future.

http://money.msn.com/exchange-traded-fund/is-water-the-new-gold-mirhaydari.aspx?GT1=33002

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

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

Clip 1

Clip 2

Clip 3

Clip 4

Clip 5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Laura Schroeder 

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

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

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

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

Contracts for recreational use should include terms addressing:

1.Approved recreational uses and extent of recreational use;

2. Liability for injuries caused by recreational use;

3. Protection of stored irrigation water;

4. Duties and obligations regarding maintenance and repair work;

5. Reimbursement for maintaining a “minimum pool”.

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