By Laura A. Schroeder and Tara J. Jackson

The answer to this question may depend on the paperwork you have to document domestic water use at the current or planned residence. When either a building permit or financing is required on a rural residential property, the permitting authority or lender will likely require that the domestic water use provided to the residence has either (1) a water use right for a surface water source or (2) a groundwater well that is properly recorded with Oregon Water Resources Department (“OWRD”) as a groundwater use that is exempt from permitting and bearing a well ID tag. ORS 537.130, 537.545(5)-(6), and 537.789.

As hinted at above, domestic water use from a surface water source is not exempt from OWRD’s permit requirements, meaning it is illegal without first obtaining a water use right from OWRD, while domestic use of groundwater within certain limits is allowed with no water use right. ORS 537.141 and 537.545(1)(d). Seems pretty straight forward, right? If the source of domestic water for your residence is above ground, you need to provide your lender or permitting authority proof of your water use right. If the source of domestic water for your residence is below ground, you need to provide proof of proper recording of the exempt use and that the well is fitted with an OWRD issued well ID tag. BUT WAIT, the domestic water use for your property is supplied by a spring? Well, now the question becomes complicated. Is the spring water, surface or groundwater?

If the spring comes to the surface without a “spring box,” possibly considered a well casing, OWRD will qualify the source as a surface water source requiring a water use right, unless OWRD finds that the source is not regulated as “public waters” because it does not leave the boundary of a private property.[1] However, OWRD rarely finds that water rising to the surface is not leaving the private property so this “private water” exception will not be routinely applied by OWRD unless proven by way of a court proceeding.

To obtain a surface water use right for domestic use of the spring at the property, the use would have had to be (a) registered (ORS 539.240), (2) adjudicated by a Court issuing a decree upon which a certificate of water right would be issued by OWRD (ORS 539.140 and 539.150), or (3) applied for and permitted through OWRD’s surface water permitting statutes and rules (ORS 537.130, 537.140; 537.150, 537.153, 537.170, and 537.211; OAR 690-310 and 690-320). Under the third option, OWRD permitting, a two-year processing window can be expected, even if the statutes and rules provide that water is available for such use.

Up to 15,000 gallons of water per day may be used from a groundwater source for domestic purposes under the exemption provided by ORS 537.545(1)(d). Oregon law defines groundwater as “any water, except capillary moisture, beneath the land surface or beneath the bed of any stream, lake, reservoir or other body of surface water within the boundaries for this state, whatever may be the geological formation or structure in which such water stands, flows, percolates or otherwise moves.” ORS 537.515. Accordingly, if development of the spring required excavation this may indicate that the source of the spring would be characterized as groundwater. For example, if the spring comes to the surface with a “spring box,” the water may then be considered groundwater by OWRD. However, at the current time, it is our experience that OWRD will typically find springs to be surface water. Moreover, if OWRD finds the source of a spring developed by excavation, such as a “spring box,” to be groundwater, it may then choose to regulate the “spring box” or similar structure for failing to meet well construction standards. ORS 537.775 and 537.787.

In addition to the uncertainty as to whether OWRD will characterize your spring as groundwater, such that your domestic use will be allowed without a permit, currently OWRD’s administrative rules only accommodate recording of exempt groundwater use registrations for wells. OAR 690-190-0005. Springs are not included in the statutory definition of a well.[2] As a result, a spring similarly does not qualify for a well ID tag. Thus, while use of a spring for domestic purposes without obtaining a water use permit may be allowable under Oregon law, it may not be possible to document the use to the standard that may be required by your lender or permitting authority.

Further, all wells may not be treated equally in the eyes of a lender or permitting authority. While reliance on ORS 537.545(1)(d) for the right to use water for domestic purposes without a permit from a well does not hinge on OWRD’s characterization of the water’s source, as is the case for a spring, it may still prove hard to obtain documentation for certain wells that will satisfy a lender or permitting authority’s requirements. For example, OWRD’s rules accommodate and require recording of exempt groundwater uses from new wells constructed after July 22, 2009. OAR 690-190-0005(2). Thus, while domestic use from wells constructed prior to this date is still allowed under the exemption, the use will not be recorded.[3] OWRD established the process for obtaining well ID tags in 1996. Accordingly, wells constructed prior to 1996 may not bear a well ID tag, but OWRD will issue a well ID tag for wells constructed prior to 1996. ORS 537.791. In the case where the exempt groundwater use from a well is not recorded, a lender may agree to move forward with only documentation that the well is furnished with the required ID tag, but such a determination, is dependent upon the lender.

THE BOTTOM LINE:  We love water use right puzzles here at Schroeder Law, but if you have a choice, the most expedient and sure method to move forward smoothly with the building permit or loan approval for your rural residential property is to work with a water well drilling professional to drill an exempt well, tapping the underground water source, and using the exemption for domestic use under ORS 537.545(1)(d). Otherwise, the documentation and analysis becomes complicated quickly!

The Oregon Groundwater Association is a great resource for information on reliable water well drilling professionals. Check out their website here!

Stay tuned to Schroeder Law Offices’ blog for all things water!

[1] Norden v. State by & Through Water Resources Dep’t, 153 Or App 127 (1999)

[2] ORS 537.515(9) defines well as “any artificial opening or artificially altered natural opening, however made, by which groundwater is sought or through which ground water flows under natural pressure or is artificially withdrawn.” The statute goes on to say that a well “does not include a temporary hold drilled for the purpose of gathering geotechnical groundwater quality or groundwater level information, a natural spring or a hole drilled for the purpose of:…”

[3] OWRD rules also require an exempt groundwater use from a well that was converted after July 22, 2009 to allow groundwater use for purposes that are exempt under ORS 537.545 after July 22, 2009 to be recorded. OAR 690-190-0005(2).

Schroeder Law Offices’ paralegal Tara Jackson spent a sunny weekend with fellow members of the Oregon Ground Water Association in August camping at beautiful Pelton Park for the Association’s annual Picnic/Camp out. The event is held by the Association every summer in appreciation of its members and provides a much needed respite for water professionals to unwind during an extremely busy time of year for the industry.

Friday night features a pot luck meal with prizes for the best dishes. Tara’s submissions have yet to win, but she will keep trying! Saturday is equal parts competition and relaxation! Many families spend the day on and in the waters of Lake Simtustus. Tara represented Schroeder Law Offices for the first time this year in Saturday morning’s annual horseshoe competition as the only female competitor. While the competition is all in good fun, there are some very serious competitors and teams are made by the luck of the draw. Luckily, Tara’s teammate was good enough and good-natured enough to carry her, despite the fact she had never before thrown a horseshoe. Perhaps some practice is needed before next year!

The theme this year was “Under the Big Top…come one, come all.” Both kids and adults had a great time dressing up in clown garb for photos, while enjoying Oysters on the BBQ, a much loved tradition of the Picnic. Campers enjoyed brisket and traditional BBQ sides for Saturday dinner.

During the dinner program, the Memorial Fund announced winners of its annual scholarships. Ryan Weaver won the fifteen hundred dollar 2018 Memorial Fund Scholarship and Emily Gill won the fifteen hundred dollar Family in Business Scholarship. These scholarships are only available to Association members, family members of an Association member, employees of an Association member, or direct family of an Association member employee, thus are a great resource for members of the Association. Applications for these scholarships are available on the Association’s website and are due April 1 of each year.

Following dessert and bingo (with prizes) campers dispersed to various campsites for further revelry. The campfire ban imposed due to a very tenuous fire season in Oregon this summer failed to quell the merriment.

As always, this was a great event. It is always nice to have a chance to interact with fellow Association members outside of a formal environment. Thank you Oregon Ground Water Association Picnic Committee for putting on such a lovely event for the Association membership!

On January 18, 2018, just eight days into the Washington State 2018 legislative session, the Legislature passed Senate Bill 6091, dubbed the “Hirst fix.” Hirst, refers to a 2016 Washington State Supreme Court decision in Whatcom County vs. Hirst, Futurewise, et al.

Washington State Counties can only issue building permits or approve subdivision development if the County can make a finding that an adequate water supply exists for the development. The Hirst Decision found that Whatcom County was incorrectly relying on Department of Ecology determinations to find evidence of an adequate water supply. This Decision caused many Counties to stop issuing building permits or place the burden for proving water was available fully on the applicant. This stalled development in Washington.

The Senate Bill 6091 amended, RCW 19.27.097, RCW 58.17.110, RCW 90.03.247, and RCW 90.03.290, added a new section to chapter 36.70A RCW and chapter 36.70 RCW, and added a new chapter to Title 90 RCW. These changes and additions provide a framework for Counties to issue building permits and approve development for projects that rely on water supplied by permit exempt groundwater uses without completion of a well by well analysis. However, depending on the watershed at issue, use of a permit-exempt groundwater well comes with limitations.

For Schroeder Law’s complete explanation of the Bill, check out the article on our webpage, here.

As always, stay tuned to Schroeder Law Offices’ blog for more updates on water related legislation!

This past weekend, thousands of families and agriculture enthusiasts attended Ag Fest at the State Fairgrounds in Salem, Oregon. The April 28-29, 2018 event marked the annual fest’s 31st anniversary.

The event features local organizations and locally grown products to teach children (and by proxy some adults) about Oregon agriculture. Kids learn where their food, fiber, and flora come from by taking part in educational activities offered by organizations at booths scattered throughout the indoor buildings, and can interact with animals in the barn! Kids get to take home a variety of free plants and crafts to continue the learning process.

Schroeder Law Offices’ members have participated in the event for years by working the booths for various organizations. This year Tara Jackson helped kids plant radishes and bean starts for home gardens at the Oregon Women for Agriculture booth and quizzed kids on water-related trivia at the Oregon Ground Water Association booth.

Mark your calendar now for next year’s Ag Fest. You do not want to miss this wonderful, fun, and low cost event. For more details click here.

Stay tuned to Schroeder Law Offices’ Blog for information on more community events!

At its February Spring Technical Seminar, the Oregon Ground Water Association celebrated 70 years as an Association. Laura Schroeder and Tara Jackson helped the Association celebrate its many years of successful advocacy to promote sustainable ground water development and management.

The anniversary banquet featured stories from patriarchs of the industry, complimented by a slide show of photos to jog memories even further. Scrap books were also on hand memorializing past events and Association members had a great time thumbing through the books.

It is Schroeder Law Offices’ pleasure to be a member of the Oregon Ground Water Association. The Association represents generations of family businesses that have provided access to groundwater for homes, farms, and businesses. The Association is actively engaged in the State legislative and rule making process and through the Association its small business members have a big voice at the State Capital.

Thank you Oregon Ground Water Association for 70 years of advocating for your members by informing our legislature and State agencies about the real world consequences of laws and polices!

Visit OGWA’s website for more information about the Association

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As the 2018 irrigation season approaches, and on this eve of March 1^st, please remember to review your water use right permit and certificate documents to remind yourself of any measurements you are required to take!

Many water use permits and certificates require you to track your water use each month and then report your monthly use annually to the Oregon Water Resources Department. For more information about recording and tracking your monthly water use, please visit the Department’s Water Use Reporting page.

Many groundwater use permits and certificates require that a qualified individual record and report the water level in each well under the permit or certificate. This measurement is often referred to as a “static” water measurement. Typically, the measurement must be taken in March and reported within 30 days after it is taken, however you should review your permit or certificate closely to determine if you are required to report and when. Your permit or certificate document will also tell you who is qualified to take this measurement.

Additionally, while not outlined in your permit or certificate, those of you located in a Critical Ground Water Area are required to record weekly flow meter or power meter readings. The Department just released a new map showing groundwater area information that is helpful in determining if these rules apply to you.

Remember, complying with permit and certificate and statutory measurement conditions keeps your water use rights in good standing, making them more valuable to your property!

Stay tuned to Schroeder Law Offices’ blog for more timely reminders this irrigation season!

Looking for a last bit of summer fun? Join Schroeder Law at the Oregon State Fair! Friday marks the start of the 10 day event, which runs from August 25 to September 4 at the Salem, Oregon Fairgrounds.

Tara Jackson will be working the Oregon Women for Agriculture booth from 3 pm to 6 pm on Saturday, August 26. You will find Sarah Liljefelt the following Saturday morning, September 2, at the Oregon CattleWomen’s booth.

Come celebrate and learn about the achievements of all Oregonians, including Oregon’s farmers and ranchers.

Find event details on the Oregon State Fair website, by clicking here.

Looking for a fun activity this weekend? Join Schroeder Law at the 30^th Annual Oregon Ag Fest at the Oregon State Fairgrounds in Salem! The event is FREE for children 12 and under with free parking.

Tara Jackson will be working the Oregon Ground Water Association booth Saturday morning and the Oregon Women for Agriculture booth Saturday afternoon. You will find Sarah Liljefelt at the Oregon CattleWomen’s and Cattlemen’s Association booths on Sunday.

Come experience Oregon agriculture! The event features hands-on exhibits, including pony rides, planting seedlings, sheep shearing demonstrations, and lots of farm animals to see and pet.

Find event details on the Ag Fest website by clicking here.

Schroeder Law spent a lovely Saturday morning with the ladies of the Yamhill County Chapter of Oregon Women for Agriculture, packing gift packs that are sold as the Chapter’s annual fundraiser. The activity is a 45 year tradition!

Assembling and offering the gift packs is a community wide effort. The Chapter obtains products through donations from Oregon growers in Yamhill and Polk counties. This year’s generous donors included: Kauer Farms, Scenery Farms, McKee Family Farms, Oregon Cherry Growers and Meduri Farms. Chapter members process the fresh produce.

The result is a showcase of Oregon treats including: dried Brooks prunes, pie-spice infused dried apples, shelled walnuts, dried hazelnuts, and maraschino cherries. Wilco stores in McMinnville and Newberg generously provide a space to the Chapter for display and purchase of the gift packs.

The Chapter uses the funds from the gift pack sales to offer scholarships for high school, and college students studying agriculture, teacher education programs, textbook publishing, and other education projects.

This fundraising project highlights Oregon Women for Agriculture’s importance at the local and State level in showcasing Oregon’s agricultural industry and products, promoting agriculture as a career and educating youth and adults about agriculture!

Schroeder Law is honored to participate in this organization.

To check out Oregon Women for Agriculture’s website click here.

Laura Schroeder and Tara Jackson are looking forward to unwinding and learning with the fine members of the Oregon Ground Water Association at their Fall Convention next week, October 14 through October 15 at Eagle Crest Resort in Redmond. Those in attendance will be treated to a presentation by attorney Schroeder on Water Law in Oregon, Transfers, Well Construction.

Hope to see some of you there!

http://www.ogwasite.org/images/pdf/2016_ogwa_fall_convention.pdf

http://www.ogwasite.org/

It’s getting close to that time of year again! As the 2016 irrigation season comes to a close, we here at Schroeder Law Offices want to remind you of the December deadlines to report measurements for your water uses to Water Resources Department (“OWRD”).

There are two different reporting deadlines to be aware of in December. The first applies to ground water uses in either the Stage Gulch or Butter Creek Critical Ground Water Areas (“CGWA”). Ground water users in these CGWA are required to report flow meter and/or power readings to OWRD by December 1^st each year. The photo below shows OWRD’s designation of various ground water areas.

More information about requirements for ground water use in the Stage Gulch or Butter Creek CGWA is contained in Oregon Administrative Rules 690-507-0610 to 690-507-0830.  http://arcweb.sos.state.or.us/pages/rules/oars_600/oar_690/690_507.html. To obtain the required reporting form contact OWRD’s ground water section.

The second December reporting deadline is a permit or certificate specific requirement and applies to both ground water and surface water rights. If your paper water right permit or water right certificate requires annual reporting it will include language along these lines:

You are also required to keep a complete record of the amount of water used each month and submit a report that includes the recorded water use measurements to OWRD annually, or more frequently if required by the Director.  Further, the Director may require you to report general water use information, including the place and nature of use of water under the permit.

Your annual water use report is due to OWRD by December 31 each year.

Water use recording and reporting forms are available on the OWRD website. Additionally, you may report your water use online.

As you will note, the reporting period is based on the “water year” rather than the calendar year. OWRD considers the “water year” October through September annually, as outlined in the enclosed form.

We encourage you to take meter readings at the end of each month and keep these readings in your own files along with a copy of the report that you submit to OWRD.

Stay tuned to the blog throughout the year for more helpful water use related reporting deadlines.

Many Oregonians use water wells on their properties. Since the 1960s, well drillers have been statutorily required to submit well logs to Oregon Water Resources Department (“OWRD”) for each water well they drill or modify. Well drillers are also statutorily required to record identification numbers on any water wells drilled, deepened, converted, or altered since 1996 within 30 days after completion of the construction.

Additionally, if a property with an unidentified water well is sold, the owner of the property is statutorily required to record an identification number obtained from OWRD on the water well within 30 days of the sale. This photo from the state’s Water Well Handbook shows an example of a water well with an identification number recorded on it. To apply to OWRD for an identification number for a water well on your recently purchased or sold property click here.

Property purchases are complicated! Here at Schroeder Law Offices, we find that many people who purchase or sell a property with a water well or water use rights overlook important housekeeping matters unique to water wells and water rights. Stay tuned to our blog for more helpful tips.

By Derek Bradley–

In an 8-1 decision the United States Supreme Court on Monday June 22^nd overturned the Ninth Circuit in Horne v. Department of Agriculture bringing an end to an unusual government practice that had existed for almost 80 years and providing a victory for property rights advocates.  A pair of raisin farmers challenged the constitutionality of the Raisin Administrative Committee’s (the Committee) ability to confiscate raisin crops and not pay farmers for them in an effort to artificially inflate raisin prices.  The farmers refused to relinquish their crops and were fined by the USDA.  They sued in federal court saying that this was a takings under the Fifth Amendment.

The Ninth Circuit came down in favor of the Committee saying that the Fifth Amendment’s Takings Clause only applied to real estate.  The US Supreme Court disagreed.  Writing for the majority, Chief Justice John Roberts clarified that the Takings Clause applies to all property and not just real estate.  He went on to clarify that this decision did not mean that the federal government cannot regulate raisins, or any other item that will affect interstate commerce, but that an actual seizing of the crops and a refusal to pay for them was a takings, “Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the government may hold hostage, to be ransomed by the waiver of constitutional protection.”  The Court rejected a number of arguments made by the government including that this was a similar practice to the controls on pesticides the government exercises, that this was not a complete takings as the government sometimes paid for the raisins, and that raisins were like oysters for which the government has power to limit the harvest.

The decision of the Court narrowed to 5-4 concerning the topic of compensation to the Hornes.  The majority held that the farmers should be relieved of the obligation to pay any fines associated with this case and the Committee.  Justice Breyer, joined by Justices Kagan and Ginsburg, wanted to remand the case to the Ninth Circuit to determine adequate compensation for the Hornes.  The decision marks a reaffirmation of the importance of property rights in the United States, and particularly goods that can be sold in interstate commerce.  It is a decisive victory for property rights and shows that there is little interest on the Court in allowing such heavy-handed government actions.

Please see the articles linked below for additional information on the decision and stay tuned to Schroeder Law information on future agriculture related decsions!

New York Time’s Article on the Decision

Wall Street Journal Article on the Decision

By Derek Bradley

After receiving negative feedback from both the Western Governors’ Association and a large bipartisan group of House Committee on Natural Resources (both letters are linked below), the U.S. Forest Service (USFS) announced last week it was permanently withdrawing its proposed groundwater rule concerning groundwater management on national forest lands.  The move comes after more than a year of consideration and a lengthy comment period.

In its testimony before the House Committee, the USFS stated the rule would not significantly impact state water management or give the USFS new authorities.  The proposed language of the rule, however, raised concerns that this was not the case, and that if the rule went into effect state water management powers would be severely curtailed.  From a water law perspective, the two major concerns with the rule were USFS’s attitude that it held title to all the waters on and under national forests, and an assumption that surface and groundwater are interconnected unless proven otherwise.

Current law, does not support USFS’s assumption that it holds title to all waters on or under federal forest lands, and the assumption of interconnectivity runs counter to many state laws.  The proposed rule in these two respects could create an opportunity for the USFS to challenge water use on lands adjacent to national forests, even when water users hold a valid state water permit.  Schroeder Law filed comments with the USFS outlining these and other concerns.

Ultimately, the USFS’ negative feedback on the expansive nature of this rule, likely prompted the proposed groundwater rule’s withdrawal.  The news of the withdrawal was applauded by the Chairman of the House Committee on Natural Resources Congressman Rob Bishop as well as other members of Congress.

Western Governors’ Association Letter Opposing the Rule

US House Committee on Natural Resources Letter Opposing the Rule

Official Notice of Rule Withdrawal

By Derek Bradley–

The June 18^th Oregon Water Resources Commission meeting included a presentation concerning the current state of groundwater in Harney County.   Harney County development expanded in recent years, with a lot of this development driven by agriculture.  Much of the water needed for this development, derives from groundwater causing the number of irrigated acres sourced from groundwater to nearly double since the year 2000.

Currently, the Oregon Water Resources Department (OWRD) estimates that 30,000 acre-feet are withdrawn above the annual net recharge rate of the basin.   Additionally, OWRD estimates 80,000 acre-feet exist in the form of undeveloped permits.  WaterWatch filed a protest with OWRD in mid-2014 concerning applications for groundwater permits in the basin.

As a result, OWRD declared it will reject almost all of the pending groundwater permit applications, and will approve very few future groundwater permit applications until a basin study is completed.  This study could take up to five years to complete, but it will provide OWRD with more concrete data concerning the amount of water appropriated from the basin, annual recharge to the basin, how much water exists in the basin, and how much water contributes to surface water flows.

Ensuring senior water users have access to groundwater, is OWRD’s major concern at this time.  Unfortunately, OWRD will not be certain about the potential harm to senior rights holders until it obtains more information about the status of the basin through the study.  Prior to the Commission meeting OWRD held a town hall in Harney County where residents commented on OWRD’s permit issuance moratorium.  Current water rights holders in the county expressed relief at OWRD’s direction, while those hoping to develop new water uses were dismayed.

For now, OWRD will engage in the study of groundwater in Harney County and will deny pending groundwater applications. However, should the situation deteriorate, OWRD may consider additional actions, such as classifying the groundwater basin to only allow exempt uses, or requiring mitigation for new uses similar to the Deschutes Ground Water Basin.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more information about water in the West!

Download a Copy of the OWRD’s Harney County Groundwater Presentation

The Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“USACE”) have recently released a new waters of the United States rule under the Clean Water Act (“CWA”) that has been in the works for over a year concerning the definition of what are the ‘Waters of the United States.’ The importance of this definition is that anything that is considered a water of the United States can be regulated under the CWA. The scope and effect of this rule are a point of considerable contention among stakeholders. Environmentalists have applauded the rule while industry-led coalitions, including the American Farm Bureau Federation and American Petroleum Institute, have said the rule will stifle economic growth and is overly burdensome on farmers and business owners. Within the Federal Government itself Republican lawmakers have classified the rule as a power grab by the Obama Administration. The joint EPA and USACE press release, however, described the rule as providing clarity as to which waters are governed by the CWA, and that this rule will help alleviate confusion generated by Supreme Court rulings handed down in 2001 and 2006.

The two Supreme Court rulings in question are Rapanos v. Unites States, 547 U.S. 715 (2006) and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC the Court held that the Federal Government could not invoke the migratory bird rule as the reason why it could regulate isolated waters; this is the first case where the Court focused in on whether or not their existed a “significant nexus” between waters attempting to be regulated and navigable waterways. Meanwhile in Rapanos the Court issued a split decision regarding what may constitute ‘waters of the United States’ for the purposes of invoking CWA jurisdiction. The plurality in Rapanos created a ‘relatively permanent flow’ test for deciding whether the Federal Government has jurisdiction over a body of water. Kennedy, in his concurrence, outlined a more expansive test focusing on whether or not a body of water affects the physical, biological, or chemical integrity of a downstream navigable waterway for determining whether or not there was a “significant nexus” between the two.

While proclaiming to have taken into account the plurality opinion as well, it is clear that the EPA and USACE tailored the rule to be more in line with Justice Kennedy’s opinion. This can be seen by the Executive Summary of the Rule quoting Justice Kennedy:

Justice Kennedy concluded that wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 547 U.S. at 780.

In the official discussion of the rule the EPA and USACE outline five different types of waters that this new rule will cover and describe how each of these types of bodies of waters can significantly affect navigable waterways. These five types of waters are Prairie Potholes, which are glacially formed pools in the central north of the country, they generally connect to navigable waterways through shallow subsurface flows or artificially created drainage mechanisms. Carolina and Delmarva bays exist on the Atlantic coast and are formed by precipitation with the bodies of water usually draining into shallow groundwater, these bodies of water tend to be lumped together and/or close to streams. The third type of body of water that the new rule will be covering are pocosins, which are found in the southeastern portion of the country and are peat accumulating wetlands that exist on a hill. Next are western vernal pools which are seasonal bodies of water, they form in wet months in the west and then either drain or evaporate during dry summer months. Finally coastal prairie wetlands found in Louisiana and Texas will be regulated; these are freshwater wetlands that are found in abundance and generally collectively drain to a common river or tributary. The rule goes in to great length discussing why the agencies find each of these types of waters to have a significant nexus to navigable waters. If a body of water on a piece of property is found to connect to similar small bodies of water that are ultimately hydrologically connected to a navigable waterway then they will fall under the jurisdiction of the CWA.

The EPA and USACE press release specifically notes that “ditches that are not constructed in streams and that flow only when it rains are not covered.” The Wall Street Journal reports that only about 3% more waterways will be put under federal jurisdiction with this new rule. But most of the concern regarding the rule surrounds the types of waters that the expansion covers and not the quantity. Four of the five new types of waters outlined in the rule occur in depressions on a variety of land, some of which could be on farmland and/or land used for mining purposes. The EPA and USACE have determined that these types of waters have a “significant nexus” to navigable waters. While the rule doesn’t change exemptions or exclusions to the CWA (including the agricultural exemptions and exceptions), concern arise from landowners being uncertain if a small body of water that forms on their land is a “prairie pothole” or other type of water covered by the CWA, or simply a large hydrologically disconnected pooling of water. Determining the hydrological connections of these pools of water could prove costly.

While the comment period for this rule has closed and the rule will go in to full effect in late July Schroeder Law Offices submitted comments on the draft rules on behalf of our clients. Ultimately, much of the uncertainty concerning this rule will not be clarified until it is in full effect and users/landowners can see how the Federal agencies apply it. Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that may affect you!

The 300 page document outlining and discussing the rule released by the agencies can be found here.

The USACE and EPA Press Release can be found here.

The Wall Street Journal Article can be found here.

In our April 19, 2013 blog posting, Schroeder Law Offices reported that the United States was undertaking review of the 1964 Columbia River Treaty in preparation for the upcoming 2014 opportunity for either party to seek modification or cancellation of the Treaty through the required notice provisions. September marked the 50 year anniversary of the ratification of the Treaty and accordingly the first date either party could provide the required 10 year notice of its wish to cancel or modify the Treaty.

The Columbia River Basin Development League’s September 29, 2014 News Drops Issue featured an article  from the Wenatchee World noting that while agencies from both Canada and the US have recommended modification of the Treaty, the parties have only begun to “engage internally.” In his October 15, 2014 Newsletter Senator Doug Whitsett provided additional information regarding the status of negotiations between the parties, based on his attendance at a meeting of the Council of State Governments Committee on River Governance, which included a delegation from British Columbia. He reported that one major issue in the negotiations may be the US’ desire to add a third component to the Treaty to encompass ecological management of the Columbia River, including reintroduction of salmon to the upper watershed, upstream from the Grand Coulee Dam into Canada. Mr. Whitsett reported that Canada opposes modification of the Treaty to include ecological management of the River. This position is supported by a 2013 document outlining responses from Canadian Entities to questions from the US Entity regarding the Columbia River Treaty review.

The infrastructure governed by the Treaty is important to the US for flood control reasons, as well as delivery of Columbia River water to Eastern Washington. Additionally, parties in Eastern Oregon have been in negotiations for an agreement to allow delivery of Columbia River water to farmland near Hermiston and Boardman to provide relief to the badly stressed groundwater aquifers in that area. We hope to be able to report positive movement on the Treaty negotiations in 2015.

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!

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.

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.