On June 29, 2015 the Environmental Protection Agency (“EPA”) published a new rule under the Clean Water Act, re-defining “Waters of the United States,” and sought to expand federal jurisdiction over certain water sources. The new rule was set to go into effect on August 28, 2015. Due to the implications and potential effect the rule may have on private and public interests, numerous lawsuits were filed challenging the regulation. Primarily, a lawsuit was filed in the Federal District Court of North Dakota, wherein thirteen states joined the lawsuit seeking to enjoin the rule’s implementation. On August 27, 2015, the North Dakota District Court issued an order granting the request for a preliminary injunction.

The thirteen states involved in the lawsuit include Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The EPA released a statement stating that “[u]nder the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.” Therefore, until the Court rules on the issue, the EPA considers the injunction a bar to implementation of rule in Nevada, and the other thirteen states involved in the case.

For Nevada Governor Brian Sandoval’s response, please visit http://gov.nv.gov/News-and-Media/Press/2015/Sandoval-Encouraged-by-District-Court-Granting-Nevada_s-Request-for-Injunction/.

On August 27, 2015, the USDA unveiled a new plan to help conserve sage grouse habitat, and which many hope will keep the greater sage grouse from being listed under the Endangered Species Act. Agriculture Secretary Tom Vislack announced a four-year plan that will invest $211 Million in conservation funds to help build and preserve sage grouse habitat.

Vislack stated in the press release: “The Sage Grouse Initiative has proven itself as a model for how wildlife and agriculture can coexist and thrive in harmony, and that is why we are announcing steps today that will expand this important initiative throughout the life of the 2014 Farm Bill. I applaud America’s ranchers for their initiative in improving habitats and outcomes for sage grouse and other wildlife, and for their recognition that these efforts are also good for cattle, good for ranching operations, and good for America’s rural economy.”

Earlier this year, the bi-state sage grouse (related to the greater sage grouse) was determined to not require listing under the Endangered Species Act, due in large part to conservation efforts. With further conservation and a collaborative approach, those working in both wildlife and in agriculture can work to keep the  greater sage grouse off the listing as well, and avoid the damaging result such a listing would have on the farming and ranching community.

For the full press release, please visit http://www.usda.gov/wps/portal/usda/usdahome?contentid=2015/08/0238.xml&contentidonly=true.

During the 2015 Nevada Legislative Session, Assembly Bill 435 passed by the Legislature.  On May 27, 2015, AB 435 was signed into law by Governor Sandoval. This bill adds a new Judicial District to Nevada, and reorganizes the counties which make up certain Judicial Districts. The Sixth Judicial District Court, currently encompassing Pershing, Humboldt, and Lander Counties, will now only encompass Humboldt County. Lander and Pershing Counties, along with Mineral County (being pulled away from the Fifth Judicial District) will become the new Eleventh Judicial District. Judge Shirley, currently the Department 1 Judge in the Sixth Judicial District, will preside over the Eleventh Judicial District, and Judge Montero, currently the Department 2 Judge in the Sixth Judicial District Court, will preside over the Sixth Judicial District.

While the reorganization of the Judicial Districts will not make a difference to many, it does call into question which Court will preside over the Humboldt River Decree. The Humboldt River Decree is governed by Department 1 of the Sixth Judicial District Court of Humboldt County, currently Judge Shirley. Due to the shift in districts, this left an unknown as to whether the Decree jurisdiction would remain with Judge Shirley, or be moved over to Judge Montero. Assembly Bill 435 was updated to specifically address this issue. The new law provides that cases falling under the jurisdiction of the Humboldt River Decree Court will alternate between the Sixth and Eleventh Judicial Districts, and between Judge Shirley and Judge Montero. This greatly changes the dynamic of how Decree cases will now be handled.

The new law does not provide how alternating case assignment will be carried out, nor does it state how it is determined which cases are “arising from or relating to the administration of the Humboldt River Decree.” In the meantime,  we know that the Humboldt River Decree Court will shift once this new law goes into effect on July 1, 2015. If you’d like to read the new law as enacted, it can be found at https://www.leg.state.nv.us/Session/78th2015/Bills/AB/AB435_EN.pdf.

The Nevada Drought Forum announces its first meeting schedule. The Nevada Drought Forum was established by Governor Sandoval to assess and monitor the drought in Nevada, identify conservation practices and policy needs, and make recommendations to the Governor. The Forum seeks to evaluate drought findings and provide input on future steps in the form of a final report thus providing the Governor with information and action plans concerning the drought.

On June 11, 2015, the Nevada Drought Forum held an organizational kick-off meeting, open to the public, to provide introductions of the Drought Forum Members and to discuss the current drought status and forecast for the future. During this meeting they determined dates, times, and locations for future meetings and have circulated this information to encourage public attendance. The meeting schedule can be accessed at http://drought.nv.gov/Meetings/2015/Public_Meeting_Notification/. The drought in Nevada has profound and lasting effects on all who live here. Remember, your input and involvement can make a difference!

By Derek Bradley

Most municipalities have water use permits reserved for their current needs and projected future growth, typically in the form of one or more municipal water rights of use or permits. These water use permits have timelines for the cities to fully develop the beneficial use entitlement. Based on current population and use, cities may not be able to apply the full volume of water to beneficial use by the timeline allowed in the water permit. In order to retain the volume allowed and priority of the water use permit, a municipality may request an extension of time from the Oregon Water Resources Department (OWRD) for additional time to develop the volume of water allowed in their permit.

The Oregon Senate is currently considering Senate Bill 712 (SB712) that could impact how much of the permitted but undeveloped portion is available for future development by Oregon municipalities.  This bill concerns municipal water permits requiring extensions for development that currently are subject to fish persistence conditions, or restrictions on water use to maintain stream flows for wildlife.

SB712 is in response to a 2013 Oregon Court of Appeals ruling, WaterWatch of Oregon v. OWRD, 259 Or. App. 717, decided on December 11, 2013.  In this case, the Court held that the reference to “undeveloped portion of the permit” in ORS 537.230(2), which was passed in 2005 as House Bill 3038,  “is to be measured by reference to the maximum rate of water applied to beneficial use before the expiration of the document deadline in the permit or last-issued extension.” Id. at 742.  The Court’s holding required the fish persistence condition to apply to all water use  not yet  put to beneficial use when the municipality’s previous permit terms or extension expired. For example, if a city held a water right of use by permit to 10 cubic feet per second (cfs) and can demonstrate use of 3 cfs at the time the permit condition expired for development, a condition in granting an extension of time would require fish persistence conditions attached to the remaining 7 cfs.

If the legislature passes SB712, this extension system will change so that the undeveloped portion of the water right permit will be considered to be the volume of water being used by either December 11, 2013, or the time specified to complete construction to perfect the water right in the permit or last approved extension. This alters the quantity of water subject to fish persistence conditions to a specific set date for all municipality extension applicants which would hopefully limit the current unending rounds of litigation that the municipal extensions are currently requiring. This change would also eliminate the large backlog of permit extension applications presently pending with OWRD.  Without this change many cities will have conditions placed on water use they have already begun putting to beneficial use because of the large lag time between expiration of the permit terms and granting of the extension application.  This bill would keep municipalities from the retroactive application of fish persistence conditions being applied to water use presently in use, with some of that usage dating back to the 90s.

Some groups focused on fish habitat view this bill as an attempt to change the terms of the 2005 compromise bill.  However, the intervening litigation since passage of the 2005 act illustrates that the “fish persistence” requirement is procedurally unworkable.  In the meantime, the Oregon courts continue to refuse to adopt the “growing communities” doctrine that would have mitigated the issues presented by the “fish persistence” ideals of fish habitat advocates.

Of course, municipalities are interested in having as much water available for development for their future growth as possible. In addition, the large investment municipalities must make require them to experience as little disruption as possible. This bill seems particularly fair to smaller municipalities that have limited resources to litigate the nuances of the “fish persistence” requirement and need their dollars to invest in water infrastructure with their less flexible water supplies and interconnects to other municipalities and sources.

While it is easy to see the concern of groups opposing SB712, (as it can take well over a decade for an extension to be approved and a municipality can increase their water usage substantially in that time), passage of SB712 will ultimately affect only a small amount of Oregon’s surface source waters.  Once all the current applications are processed by OWRD, all undeveloped municipal permits will have at least a portion of their permitted volumes subject to fish persistence conditions.  With a substantial backlog in extension applications (some cases extending over a decade and a half in water investments already made by some municipalities), SB712 will provide certainty for this state’s towns and cities as they plan how to manage their water use and development for future growth.

The April issue of Nevada Lawyer Magazine focuses on Agriculture Law. Matthew Curti, along with attorney Linda Bullen, authored an article about the importance of submitting comments to Environmental Protection Agency (EPA) rulemaking, as well as National Environmental Policy Act (NEPA) draft Environmental Impact Statements (EIS). The article provides an overview of the commenting process, and also provides tips for writing effective comments.

For the full article, visit http://nvbar.org/articles/sites/default/files/NevLawyer_April_2015_AG_Client.pdf

On February 3, 2015, the Nevada State Engineer issued Order 1250 curtailing 50% of all supplemental groundwater pumping for irrigation in both Mason and Smith Valleys. This action by the Nevada State Engineer was the first time curtailment of this magnitude has taken place in Nevada. Order 1250 determined supplemental groundwater use for irrigation to be a non-preferred use of water. Accordingly, the State Engineer proceeded to “tag” all supplemental irrigation wells identifying those subject to curtailment.

On March 4, 2015, a group of local water users (“Farmers Against Curtailment Order, LLC”) filed a Petition for Judicial Review challenging the State Engineer’s Order.  On March 9^th, the group moved for a preliminary injunction seeking to stop the Order from going into effect. District Court Judge Leon Aberasturi, after hearing argument on the injunction, granted the temporary injunction upon a finding that irreparable harm will occur to the farmers in Mason and Smith Valleys if the curtailment took place as written. The Judge stated that he intends to move this case along to its final ruling as quickly as possible.

For more information on this issue, please visit http://www.rgj.com/story/news/local/mason-valley/2015/04/03/judge-grants-injunction-curtailment/25243335/.

On March 27^th, 2015, California Governor Edmund G. Brown signed into law a $1 Billion emergency drought package. The emergency legislation (AB 91 and 92) provides funding for drought relief as well as to critical water projects in the state. Governor Brown states that “[t]his funding is just one piece of [a] much larger effort to help those most impacted by the drought and prepare the state for an uncertain future.” The bill will offer money for emergency food aid, drinking water, water recycling, conservation awareness, water system modeling, species tracking, and infrastructure and flood protection funding, to name a few.

The full text of AB 91 and 92 can be found at http://leginfo.legislature.ca.gov/.

This all comes just weeks after the California State Water Resource Control Board (“Board”) expanded its Emergency Water Conservation Regulations. The Board now prohibits certain potable water uses such as washing down driveways, and washing a motor vehicle with a hose not equipped with a “shut-off nozzle”, and commercial changes such as restaurants only providing water upon request. (A list of all changes to these regulations, can be found at http://www.swrcb.ca.gov/). Local agencies are able to fine property owners up to $500 a day for failure to implement conservation requirements of the Board.

More information about ongoing action in California pertaining to the drought can be found at http://ca.gov/drought/.

With the 2015 Oregon Legislative Session in full swing, below is a list of water-related bills that may be of interest:

• HB 2207 Authorizes Environmental Quality Commission to adopt by rule procedures for implementing alternative ballast water management strategies for vessels with empty ballast tanks

• HB 2451 Extends maximum loan term for loans made from Water Pollution Control Revolving Fund to 30 Years. Allows Department of Environmental Quality to buy or refinance debt obligations of public agencies for all projects otherwise qualified for financial assistance through Water Pollution Control Revolving Fund.

• HB 2498 Prohibits Environmental Quality Commission and Department of Environmental Quality from adopting any rule or issuing any order concerning water quality that imposes requirements, standards or any other limitation that exceeds requirements, standards or any other limitation imposed under federal law.

• HB 2499 Prohibits Environmental Quality Commission from adopting any rule concerning air quality and water quality that imposes requirements, standards or any other limitation that exceeds requirements, standards or any other limitation imposed under federal law.

• HB 2517 Modifies definition “native fish” for purposes of salmon and trout enhancement program.

• HB 2589 Requires State Department of Agriculture to adopt rules prohibiting application of pesticide products containing nitro-group neonicotinoids.

• HB 2666 Establishes process for county to evaluate whether proposed mining use causes significant change or significant increase in cost when federal or state agency has not issued permit authorizing proposed mining use. Requires county to find that proposed mining use does not force significant change in accepted farm or forest practice or significantly increase cost of accepted farm or forest practices if mining use complies with applicable federal, state and local environmental standards.

• HB 3123 Prohibits application of pesticide by aircraft except under terms and conditions of pest emergency declaration issued by State Department of Agriculture or State Forestry Department.

• HB 3220 Eliminates authority of irrigation districts to condemn real or personal property outside boundaries of district.

• HB 3415 Imposes 10-year moratorium on use of hydraulic fracturing for oil and gas exploration and production.

• SB 0191 Creates guidance document as new form for statement of state agency’s practice, policy or interpretation of law. Provides that issuance of guidance document is not subject to rulemaking procedures. [Although not 100% water-related, this bill relates to the way the Oregon Water Resources Department, Department of Environmental Quality, and Oregon Department of Fish and Wildlife operate, as well as the other Oregon agencies.]

• SB 0204 Establishes Working Forests and Farms Advisory Committee to provide advice regarding three new programs for maintaining or restoring conservation benefits of working forests and farms.

• SB 0205 Creates Task Force on Innovations in Water Quality.

• SB 0261 Increases ballast water trip fee to $88.

• SB 0412 Defines conditions when rock, gravel, sand, silt and other similar material removed from waters of state are and are not solid waste.

• SB 0537 Establishes Task Force on Standing in Proceedings Regarding Water.

• SB 0744 Requires agencies to estimate costs borne by businesses and industrial sectors to comply with proposed rules. Prohibits adoption of proposed rule unless estimated cost of compliance with proposed rule is offset by estimated cost reductions from other proposed rule, amendment or repeal of existing rules or modifications of existing compliance with regulatory burden placed on business, as specified by agency proposing rule. [Although not 100% water-related, this bill relates to the way the Oregon Water Resources Department, Department of Environmental Quality, and Oregon Department of Fish and Wildlife operate, as well as the other Oregon agencies.]

• SB 0829 Directs Environmental Quality Commission to adopt by rule methodology for Department of Environmental Quality to apply certain water quality standards in assessing waters of state.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news about these bills!

On February 5, 2015, the Oregon Supreme Court dismissed the petition for review of the Court of Appeal’s decision interpreting ORS 537.230(2), simply stating, “The petition for review is dismissed as improvidently allowed.”

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting ORS 537.230(2), prescribing conditions for the Oregon Water Resources Department (“OWRD”) to grant municipal permit extensions to complete construction and apply water to beneficial use. The conditions require OWRD to approve the municipal water user’s water management and conservation plan, and to make a determination that the municipal permit will maintain the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.

Cottage Grove sought an extension to perfect its municipal permit, but then placed its application on administrative hold while it completed construction and application of water to beneficial use. Cottage Grove lifted the administrative hold after completing construction and beneficial use of all the water under its permit, and OWRD granted Cottage Grove’s extension without the ORS 537.230(2) conditions because Cottage Grove had already diverted all the water allowed under its permit, leaving no portion for imposing conditions upon.

WaterWatch sought judicial review of OWRD’s proposed final order approving the extension without the ORS 537.230(2) conditions. The Court of Appeals ruled 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.

Although the Oregon Supreme Court originally agreed to hear the appeal, it dismissed the petition for review. This means that the Oregon Court of Appeal’s decision in 2013 will guide application of ORS 537.230(2). OWRD must condition municipal extensions on approval of a water management and conservation plan, and must condition development of the remaining water use upon persistence of fish species listed as sensitive, threatened or endangered.

For more water news that may affect you, stay tuned to Schroeder Law Offices’ Water Law Blog!

March 8th through March 14, 2015 is National Groundwater Awareness Week.

Protecting groundwater is essential to human life, and spreading awareness of this resource has gained national attention. Underground water is a primary resource for providing drinking water as well as providing the necessary life force for crop and food production.

To learn more, consider attending one of the National Ground Water Associations webinars and receive information to encourage all Americans to conserve and protect valuable groundwater. To find more ways to get involved, please visit the NGWA website at http://www.ngwa.org/Events-Education/awareness/Pages/default.aspx.

The 2015 legislative session is underway, and on the docket are two Bill Draft Requests (“BDRs”) related to water rights and water resource management. While these BDRs are likely to change significantly throughout the legislative session, below is a brief summary of their contents.

Senate Bill 65 (SB65) proposes changes to the procedure for adjudicating vested water rights in Nevada, as well as revising law related to applications, permits and certificates. The bill draft also revises rules relating to groundwater withdrawals in certain areas. The following may be sections of interest:

• Sections 4, 67, and 75 redefine what constitutes “wasting” water in the state.
• Sections 5-8 and 12-44 are new provisions governing adjudications of vested rights.
• Section 13 adds requirements that the State Engineer set forth the date when proofs of appropriation under a vested claim are to be submitted, and also requires notice to persons who are known to claim rights to a source.
• Section 18 changes rules regarding the order of determination of relative rights during an adjudication, and authorizes the State Engineer to post the order online in lieu of sending a paper copy to each claimant.
• Section 20 states that a hearing on objections to the a preliminary order of determination be held within 60 days after the order is issued, and hearings on such orders are now to be reported by a court reporter.
• Section 32 adds provisions allowing the State Engineer to require water rotation under an adjudicated system.
• Sections 9 and 45-63 amend provisions relating to water right applications, permits, and certificates, and requires to State Engineer to quantify the amount of water put to beneficial use under a certificate.
• Section 54 provides requirements for submitting evidence of good faith diligence in putting water to beneficial use, and allows the State Engineer to deny an extension in an area designated as an active management area or critical management area.
• Section 60 sets a hard deadline for when one must petition the State Engineer to review a permit or certificate cancellation decision.
• Section 64 increases fees before the State Engineer.
• Section 73 requires a person wishing to appropriate groundwater to prove that wildlife interests in springs are protected.

Senate Bill 81 (SB 81) revises provisions relating to the designation and regulation of groundwater basins by the State Engineer and creates and updates provisions for the establishment of “Active Management Areas” and “Critical Groundwater Areas.” The following are sections of interest:

• Section 3 establishes the criteria to establish an active management areas.
• Section 4 creates additional powers the State Engineer can use to more effectively manage active management areas.
• Section 8 further updates rules relating to critical groundwater areas and the signature requirements to petition for such a designation.
• Section 9 adds, as a consideration for granting an extension to put water to beneficial use, active management area designation.

The above is a summary of the primary changes to water law being contemplated at this year’s legislative session.  However, there may be additional issues that may be of individual interest. You can visit the Nevada Legislature website at http://www.leg.state.nv.us/ and review the BDRs in their entirety. Both of these bills have already been heard in the Senate Government Affairs Committees.

At 12:15 PM today, Oregon Governor John Kitzhaber announced his resignation, effective Wednesday, February 18, 2015 at 10:00 AM. Kitzhaber’s resignation is the first time in Oregon history that a Governor has resigned amid active criminal and ethical investigations.

Secretary of State Kate Brown will assume the office of Governor, and will hold office at least until a special election for Governor is held in November, 2016.

The change of administration signals some uncertainty for the natural resources community, as appointed department officials are possibly subject to replacement with the new chief executive assuming office. Similarly, policy viewpoints and agenda items previously announced and relied upon may be shifting from the Governor’s office, and may impact the 2015 legislative session.

As the transition takes place in the coming days, weeks, and months, we hope that the new administration continues to support natural resource users that make Oregon a national and international force in food, fiber, and timber production.

On February 5, 2015, the Nevada State Engineer issued Order Number 1251 concerning metering requirements for owners of underground water rights within the Humboldt River Basin Hydrographic Region.

The Nevada State Engineer determined it is in the public interest to assign metering requirements in order to protect underground water within the Humboldt River Basin. Order No. 1251 set February 2, 2016 as the deadline to install totalizing meters in the discharge pipeline near points of diversion for wells within this basin. Within 30 days of the installation of this meter, each owner must file a report of installation with State Engineer. This report is available from the Nevada Division of Water Resources at http://water.nv.gov/forms/.

The Order further specifies that once the installation of the meter is complete, each owner must keep monthly records of the amount of water pumped from each well and must submit these records to the State Engineer within 15 days after the end of each calendar quarter.

The Nevada State Engineer provided a few exceptions to this Order, generally for domestic wells, wells drilled for stockwater or wells with an authorization of less than 5 acre-feet annually. For more information, please see Order 1251 at http://images.water.nv.gov/images/orders/1251o.pdf.

Schroeder Law Offices is happy to provide further explanation and/or review of this Order and how it pertains to specific water rights. We can also assist you in navigating the installation process and metering records reporting to ensure compliance with this Order. If you have any questions or requests for assistance, please call our office at (775) 786-8800.

Schroeder Law Offices, P.C. is pleased to present the Oregon Irrigation District Election Manual.

This manual provides an overview of the Irrigation District election process, and presents timelines and special considerations involved in regular and special elections.

This manual includes the topics of:

• Elector Voting Rights
• Director Qualifications
• Director Nominations
• Voting by Mail
• Pre-election Procedures
• Election Day Responsibilities
• Post-election Vote Counting and Election Certification

Our office has assisted special districts including Irrigation Districts, Water Control Districts, and others in their elections preparations and procedures, and we welcome the opportunity to discuss a special district’s elections with staff and board members needing assistance. The information in this manual should only be relied upon after consulting with an attorney to discuss a special district’s particular situation.

On May 12, 2015 the Nevada State Engineer will begin taking Proofs of Appropriation to determine the rights to the waters of Honey Lake Valley and Skedaddle Creek Valley and its tributaries.

On November 14, 2014, the State Engineer gave notice, through Order Number 1237, of the commencement of taking proofs of appropriation in Honey Lake Valley and Skedaddle Creek Valley. The Order states that all claimants must submit Proofs of Appropriation to the Nevada Division of Water Resources on or before July 18, 2015.

If you have pre-water code water uses in these areas, now is the time to submit your Proof of Appropriation (aka vested water right or vested claim). Our office can assist in determining your water right of use and/or claims in these valleys, as well as assist in preparing Proofs of Appropriation in accordance with the Nevada Revised Statutes.

On December 31, 2014, the Oregon Court of Appeals decided WaterWatch of Oregon Inc., v. Water Resources Department, 268 Or. App. 187 (2014). The Court of Appeals reviewed three final orders for extensions of time for municipal water permits in the Clackamas River. After contested case hearings, the Water Resources department granted the extensions, subject to fish persistence conditions. WaterWatch of Oregon sought judicial review of the final orders granting the extension, challenging, among other things, the adequacy of fish persistence conditions.

As a matter of first impression, the court interpreted ORS 537.230(2)(c), which states:

“[T]he 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. * * *.”

After extensive review of the legislative history of the statute, the court concluded that “the legislature intended that the undeveloped portions of the permits be subject to conditions—that is, fulfillment of the conditions are a prerequisite to diversion of the undeveloped portions—that preserve from decline the continued existence, or endurance, of listed fish species.”

The court interpreted the term “maintain * * * the persistence of fish species,” to focus on the “longterm preservation or endurance of fish population health in the affected waterway. . . . It does not express a policy that no habitat may be impaired or that no individual fish may be allowed to perish or leave.” So while the conditions imposed on a municipal extension of time to maintain fish persistence are required prior to diverting the undeveloped portion of the permit, the conditions must preserve from decline listed fish species over the long-term.

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.