Winter storage for use throughout the year may still be a viable option with surface water and hydrologically connected groundwater oftentimes unavailable for new permitting. It could be more important than ever during periods of prolonged drought!  

Laura Schroeder and Sarah Liljefelt will present a free, hour-long webinar on Tuesday, August 3rd, from noon to 1:00 PM, Pacific Time.

In this webinar you will learn about the roadblocks to developing surface water and hydraulically connected groundwater, and how to determine if water is available for winter storage. Then we will address the dual permitting process, how to optimize the storage location, and obtaining necessary flood easements. Finally, we will discuss what is involved in sharing storage by contractual arrangement.

There will be live Q&A. Questions will also be accepted in advance from registrants by email to Brittany Jesek b.jesek@water-law.com

Please register in advance for the new webinar at https://us02web.zoom.us/webinar/register/2616261961273/WN_CNx3ZdMBRf62SXFmD80EMw

We will then send you a link to the actual webinar.

This new topic is the fourth of our “VACCINE” webinar series. It follows upon last spring’s popular “COVID” webinar series. You can view recordings of our prior webinars at   Water Right Video Handbook or Guide.  

Also, stay tuned for additional upcoming topics:

• Tuesday, September 14—Due Diligence for Canal, Pond, and Drainage Maintenance: Wetlands Delineation.
• Tuesday, October 19—How to Change or Remove an Easement (Ditch, Road, Well Share) from Real Estate.
• Tuesday, November 9—Should or Can You Take Stormwater Into Your Existing System?

We look forward to having you with us next Tuesday!

In the second installment of the VACCINE webinar series, Schroeder Law Office presents “What to Do When There is No Water: Drought Tools Explained.”  This webinar took place on Tuesday, June 22, 2021, from noon to 1:00 PM, Pacific time. A recording is now posted.

Laura Schroeder and Caitlin Skulan will discuss drought tools in Oregon, Nevada, and Idaho.  The discussion will include the requirements for a declaration of drought in each jurisdiction, tools available to water managers and users during drought, and priorities of use during water shortages.

Can’t make it on June 22^nd?  Afterwards, webinars are available here.  Schroeder Law Offices gives you free “on demand” access to educational content while maintaining social distance! Also check out our “Where is the Water?” articles in the WaterSPOT (Nevada) and the upcoming issues of the Water Gram (Idaho), and H2Oregon. 

Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  The third installment of the VACCINE series, “What Terms to Include in a Well Share Agreement” was presented Tuesday, July 13, 2021.  You can find a recording of that webinar here.

If you have any issues viewing, please contact Scott Borison at scott@water-law.com.    

(Image credit:  https://www.cnbc.com/2014/09/16/droughts-predictions-are-difficult-on-when-theyll-end.html; https://www.kunr.org/post/drought-fires-and-heat-look-nevadas-climate-earth-day-2021#stream/0)

Back by popular demand is Schroeder Law Office’s FREE live webinar series.  The 2021 VACCINE series follows the 2020 COVID-19 series. It will span across seven topics of water law. 

The first webinar of the series, Contracting Out-of-Boundary Water and Wastewater Services will take place on Tuesday, May 18, 2021 from noon to 1:00 PM, Pacific time.  Laura Schroeder and Caitlin Skulan will discuss contracting water and wastewater services outside a municipal or utility service boundary in Oregon, Nevada, and Idaho. The discussion will include when out of boundary contracting can occur, the duties owed to those inside and out of boundary, and other terms that should be included in these agreements. Participants will also learn about the pros and cons of out-of-boundary contracts. Attendees must pre-register for this webinar here!

Future VACCINE webinar topics will inlcude:

• Tuesday, June 22^nd—What to Do When There Is No Water: Drought Tools Explained;
• Tuesday, July 13th —What Terms to Include in a Well Share Agreement?
• Tuesday, August 3rd – How to Take Advantage of a Winter Appropriation Using Storage;
• Tuesday, September 14—Due Diligence for Canal, Pond, and Drainage Maintenance: Wetlands Delineation;
• Tuesday, October 19—How to Change or Remove an Easement (Ditch, Road, Well Share) from Real Estate; and
• Tuesday, November 9—Should or Can You Take Stormwater into Your Existing System?

Afterward, webinars are available here.  Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com. 

2021 Idaho legislation seeks to classify irrigation pivot corners for taxation.  House Bill 252 proposes additional language to Idaho Code, Title 63. This language would ensure county assessors classify pivot corners as agricultural land.

Pivot corners are the parts of a square parcel that a center-pivot irrigation system misses.  Idaho law considers land “farmland” and “pasture” as long as it is at least five continuous productive acres.   However, according to House Bill 252’s sponsor, Rep. Aaron von Ehlinger, some county assessors classify unproductive pivot corners as residential or commercial land.  This allows counties to collect higher taxes for that land.

The proposed bill language includes land farmers use in tandem with qualifying agricultural land as those counties should appraise, assess, and tax as land “actively devoted to agriculture.”  This includes pivot corners for center pivot-irrigated crops. The bill also covers land for storing agricultural commodities or equipment.

House Bill 252 unanimously passed the House on March 9, 2021.  It is currently in its third reading in the Senate.  You can track the progress of the bill here.

Interested in more Idaho legislation?  Check out our blogs on the water law bills currently before the Idaho House and the Senate.

(Image credit: https://www.buzzfeed.com/mjs538/100-incredible-views-out-of-airplane-windows; https://agfax.com/2019/01/31/texas-water-management-integrating-center-pivot-irrigation-control-tech/)

The Idaho Senate introduced ten water related bills this legislative session in addition to the twelve the House introduced.  Like many of the House bills, some of the water related Senate bills already passed both houses.  Others are in various stages of committee or legislative review.  The Senate bills considered this legislative session are briefly described below.

Senate Bill 1005

Senate Bill 1005 amends existing law to authorize water districts to charge fees to certain water delivery organizations and water users.  This bill clarifies that when water is diverted and assessed in one water district but is conveyed and diverted within a second water district, the second district may level a fee instead of an assessment for the water that is rediverted.  Further, authorized fees that are levied are not considered an assessment and are not part of a water user’s voting credentials for voting within the second water district.

Senate Bill 1005 passed both the Senate and the House.

Senate Bill 1020

Senate Bill 1020 amends existing law regarding the limitation of liability of landowners towards persons entering land for recreational purposes.  The bill amends Idaho Code 36-1604 expanding the definition of land to include water facilities, parks, and campgrounds.  The bill also clarifies the property interest held by an “owner” and that recreational activities include traveling across the land owned by others for the purpose of recreating.

Senate Bill 1020 passed both the Senate and the House.

Senate Bill 1072

Senate Bill 1072 amends existing law regarding filling vacancies in irrigation districts.  The purpose of this bill is to align Idaho Code 43-209 with Idaho Code 43-201(3).  Under Idaho law, irrigation districts are divided into a minimum of three divisions, from which board directors are elected to represent water users.  Idaho Code 43-209 provides the process for filing irrigation district board vacancies, but limits the eligible candidates to living within their respective irrigation district division.  This amendment would allow irrigation districts that approved the expanded board member residency rule under Idaho Code 43-201(3) to fill vacancies under the same conditions therein.

Senate Bill 1072 passed both the Senate and the House.

Senate Bill 1073

Senate Bill 1073 clarifies that the statutory protection of water delivery facilities from claims of adverse possession extends to properties owned by water delivery entities.

Senate Bill 1073 passed both the Senate and the House.

Senate Bill 1079

Senate Bill 1079 establishes a fund for the annual appropriation of state general funds to support and fund nonpoint source agricultural best management practice projects in Idaho.  This appropriation was initially contemplated in the 2017 legislative session and intended to supplement DEQ’s federal nonpoint source program grant.  DEQ identified complications with appropriating, allocating, and disbursing these funds all within the same fiscal year.  The nature of these projects, spanning multiple years or season, and the short time frame in which DEQ has from appropriation to end of spending makes it difficult for recipients of this funding to get the work completed and invoices submitted for reimbursement before the end of the fiscal year in which money was appropriated. Under this legislation, DEQ requests a specific fund be set up for project funds that would allow a longer time frame for the project proponents and awardees to plan and complete projects that benefit Idaho’s waterways.

Senate Bill 1079a passed the Senate on February 25^th and is in its third reading in the House.

Sente Bill 1121

Senate Bill 1121 is a supplemental appropriation bill for the Department of Water Resources.  It requests funds from the General Fund for the Water Management Fund.  Funding would be used for costs related to the Anderson Ranch Reservoir Enlargement Project, the water supply for the Mountain Home Airforce Base, and aquifer recharge projects in the Upper Snake River Valley.

Senate Bill 1121 passed both the Senate and the House and is currently before the Governor for signature.

Senate Bill 1188

Senate Bill 1188 is an original appropriation bill for the DEQ.  Some of the funding will apply to the Lake Coeur d’Alene study, the Water Quality Program, the Agricultural Best Management Practice Fund, and the Water Pollution Control Fund.

Senate Bill 1188 is currently before the Joint Finance-Appropriations Committee.

Senate Bill 1190

Senate Bill 1190 is an original appropriation bill for the Department of Water Resources.  The funding will be used in part for the Bear River Adjudication, the Flood Management Program, and for Water Quality Monitoring.

Senate Bill 1190 is currently before the Joint Finance-Appropriations Committee.

Senate Concurrent Resolution 104

Senate Concurrent Resolution 104 states the Legislature’s findings and supports changes in the winter flood control curves of the Ririe Reservoir project to more properly balance Ririe River water supply and irrigation supplies with adequate flood control.

The Senate unanimously adopted SCR104 on February 18^th.  It is currently in its third reading in the House.

Senate Joint Memorial 103

Senate Joint Memorial 103 states the findings of the Legislature, opposing the removal or breaching of the dams on the Columbia-Snake River System and its tributaries, and recognizing certain benefits provided by the Port of Lewiston.  In the bill, the Idaho Legislature recognizes and supports the international competitiveness, multi-modal transportation, and economic development benefits provided by the Port of Lewiston and the Columbia-Snake River System.  The bill iterates Idaho’s sovereignty over its water resources and the benefits derived from this multiuse system that provides transportation, commodities, fish and wildlife habitat, recreation, hydropower, flood control, and irrigation.

The Senate adopted SJM103 on March 9^th.  It is currently in its third reading in the House.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Don’t miss our blog on the water related House bills this session!  Additionally, each bill page linked above provides the status of the bill and the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

(Image Sources: https://idahonews.com/news/local/idaho-senate-calls-it-quits-but-house-says-not-so-fast; https://www.kmvt.com/2021/01/14/idaho-senate-starts-effort-to-wrest-power-from-gov-little/) 

In the 2021 legislative session, the Idaho House introduced twelve water related bills and the state considers twenty-two water related bills in total.  The session began on January 11, 2021 and as of March 18, 2021, one of the proposed water bills is already law, one is before the Governor for signature, and multiple others have passed one or both houses. Needless to say, Idaho is making many changes and updates to its water law.  The House bills considered in this legislative session are briefly described below.  

House Bill 43

House Bill 43 amends and repeals existing law relating to the administrative determination of adverse claims, hearings, and orders of local groundwater boards, appeals from certain actions, and penalties.  The purpose of this bill is to eliminate inactive, outdated, and obsolete sections of the Idaho Code related to water right delivery calls. The adoption of the Rules for Conjunctive Management of Surface and Ground Water Resources (IDAPA 37.03.11) made these sections of law obsolete. 

House Bill 43 passed both the House and the Senate and has been signed into law. 

House Bill 57

House Bill 57 amends existing law regarding certain authority of the Water Resource Board and the Department of Water Resources. The purpose of this bill is also to eliminate inactive, outdated, and obsolete sections of the Idaho Code.  The sections removed in this bill contain language that conflict with other sections of the Idaho Code or are duplicative language and authority found elsewhere in Idaho law.  The bill proposes to remove language in Idaho Code, Title 42 related to penalties for certain statutory violations and invests in the Director of the Department of Water Resources the power and authority to enforce the provisions of the chapter and rules and regulations promulgated pursuant to it.  

House Bill 57 passed both the House and Senate and is before the Governor for signature.

House Bill 99

House Bill 99 adds to existing law to provide for water quality innovation and pollutant trading.  The purpose of the bill is for Idaho to establish a mature pollutant trading program that provides a benefit to the regulated community and Idaho’s most treasured water resources.  It authorizes a voluntary water quality innovation and pollutant trading program and provides the Department of Environmental Quality (“DEQ”) authority to regulate the program. 

House Bill 99 passed both the House and the Senate. 

House Bill 103

House Bill 103 amends Idaho Code, Title 30 to allow remote participation in meeting of non-profit corporation directors.  Such participation counts toward the requirements for a quorum. 

House Bill 103 passed the House on March 1^st and is in its third reading in the Senate.

House Bill 182

House Bill 182 provides for irrigation corporation boundary adjustments. The bill allows for a streamlined process to adjust canal company boundaries where there is no increased use and no injury to other water rights. 

House Bill 182 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 184

House Bill 184 revises provision of existing law regarding notifications of change in ownership of water rights. It proposes Idaho Code 42-248 be amended to provide notice of ownership updates to landowners in circumstances where the water rights used on the land are owned by a third party. The purpose of the bill is to remove outdated provisions and improve readability.  The bill also clarifies that a change of ownership in the records of the Department of Water Resources is not a determination of ownership and is not an administrative action subject to challenge. Lastly, it clarifies that disputes over water right ownership should be addressed through quiet title action. 

House Bill 184 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 185

House Bill 185 amends existing law to provide that lands annexed to a Flood Control District may be contiguous or noncontiguous to the existing district.

House Bill 185 passed the House on March 3^rd and is in its 3^rd reading in the Senate.

House Bill 186

House Bill 186 revises existing legal provisions regarding notices of claim associated with the use of stockwater on federal land and to revise provisions regarding the Department of Water Resources Director’s determination of specified elements to define and administer the water rights acquired under state law.  The bill amends Idaho Code 42-1409 and Idaho Code 42-1411 to create a presumption that (1) the priority date for stock water rights is the date of the original federal grazing authorization and (2) the current base property relates back to the base property associated with the original federal grazing authorization.  The bill also amends information required to identify the legal description of stockwater rights on federal grazing allotments.

House Bill 186 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 266

House Bill 266 adds to existing law to provide for statutory cloud seeding in Idaho.  House Bill 266 defines cloud seeding as “all acts undertaken to artificially distribute or create nuclei in cloud masses for the purposes of inducing precipitation, cloud forms, or other meteorological parameters.”  Cloud seeding has been done in various areas of Idaho for several years.  This legislation also states findings relating to cloud seeding in Idaho and provides that the Water Resources Board is responsible for authorizing cloud seeding and may participate in cloud seeding programs.  The legislation further states that water generated through cloud seeding will be administered in accordance with the prior appropriation doctrine and limits liability for participation in certain cloud seeding projects.  No state or local permits will be required for cloud seeding. 

House Bill 266 passed the House on March 8^th and is in its second reading in the Senate.

House Bill 267

House Bill 267 amends Idaho Code 42-1760, which establishes the Idaho Water Resource Board’s Water Management Account.  Amendments include (1) replacing the list of potential projects with authority for projects which conserve or increase water supply, improve drought resiliency, address water sustainability, or support flood management; (2) including aquifer recharge above Milner Dam on the list of specific projects for consideration; (3) confirming that all water rights, including hydropower water rights, must be protected and that identified water uses must be considered in the approval of projects; and (4) providing additional information as part of the Board’s annual report. 

House Bill 267 passed the House on March 4^th and is in its third reading in the Senate.

House Bill 268

House Bill 268 amends existing law to revise provisions regarding extensions for construction, work, or application of water to full beneficial use.  This legislation amends Idaho Code 42-204 to provide that the Department of Water Resources may extend the time required for development of a water right to accommodate delays caused by litigation relating to the land or water development.  Further, it amends Idaho Code 42-204 to clarify that a 10-year extension of development for a water permit may be granted for multiple permits relating to a common diversion or distribution system. 

House Bill 268 passed the House on March 4^th and is in its third reading in the Senate. 

House Bill 307

House Bill 307 repeals and amends certain right-of-way provisions.  The bill deletes Idaho Code 42-1101 which appears to recognize the riparian doctrine in Idaho. Idaho courts have long recognized that the riparian doctrine does not apply in Idaho.  This legislation also amends existing statutes in response to an increase in legal disputes regarding the nature and scope of rights-of-way and easements for irrigation ditches, canals, and conduits including (1) clarifying rights and obligations association with operating, cleaning, maintaining, and repairing rights-of-way and easements; (2) codifying the common law standard applied by Idaho courts regarding debris deposited in rights-of-way and easements; and (3) clarifies application of rights and obligations to rights-of-way and easements to existing embankments and irrigation facilities.  

House Bill 307 passed the House on March 12^th and is in its second reading in the Senate.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Each bill page linked above provides the status of the bill. Additionally, the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

What about the ten water related Senate bills introduced this session?  Keep an eye on our blog for a summary of the Senate bills as well.

(Image Sources: https://www.mtexpress.com/news/state_regional/idaho-legislature-to-discuss-elections-liability/article_8c592c0e-e338-11ea-81b4-d3b028f895cf.html; https://www.usnews.com/news/best-states/idaho/articles/2021-03-19/idaho-legislature-might-shut-down-due-to-covid-19-outbreak)

This post is one of a series highlighting the ways in which water users have adapted to life in the time of COVID-19.

Shelley Roberts is the CEO of the Idaho Rural Water Association (“IRWA”). IRWA is a resource for small water systems in the State of Idaho that offers training for drinking water and wastewater operators and aids those systems in times of need. Their objective is “to ensure Idaho’s rural communities are safe while still maintaining the high quality of life we hold so dear.”

For Shelley, the best part of working with IRWA has been the same since day one. As someone with a business background, she loves being able to utilize her education by running a non-profit corporation benefiting others. “I’ve never met such salt of the earth people as I have in the water industry,” she says. “They are all so genuine, caring, and kind.”

COVID-19’s impact on IRWA started during its Spring Conference in March, 2020, which concluded on Friday, March 13- the same day the Federal Government declared a state of emergency. The following Monday, all of IRWA’s administrative staff were directed to stay home. The week after, IRWA organized a work from home policy that allowed employees to perform their duties remotely. For IRWA’s circuit riders, though, it was a different story.

Drinking water and wastewater are essential services, and adjustments had to be made to ensure they continued to run smoothly. IRWA employs numerous circuit riders and field staff whose jobs require in-person and onsite contact with water system operators. However, thanks to video conferencing technology, much of their communications with the operators could be conducted remotely, limiting potential exposure. When site visits were required, field staff practiced social distancing as much as possible, including staying 6 feet apart and wearing face masks.

An unexpected benefit of remote work was an increased ability not only to contact the systems but for internal communication between IRWA’s employees, office and field staff alike. “We learned how to use Teams and started having weekly video conferences,” Shelly told us. “We weren’t able to do that before. It was nice for everyone [at IRWA] to have more contact with each other.”

According to Shelley, one of the biggest impacts COVID-19 had was fear of “what ifs.” The ability to communicate with water systems in remote locations without having to travel allowed the circuit riders to discuss those concerns quickly and determine what steps were needed to resolve any issues.

Another of IRWA’s major concerns was operator availability. Many of the small systems IRWA works with are operated by volunteers who have other commitments to day jobs and families. Should those operators fall ill or otherwise become unable to perform their duties, it can be difficult to find other operators to fill in.

IRWA has long worked with the Environmental Protection Agency (“EPA”) to locally administer the water/wastewater agency response network, otherwise known as WARN. In response, through WARN, IRWA was able to put together a list of volunteers who could assist if a system’s regular operator was not available.

Shelley says that IRWA’s response to COVID-19 did not greatly differ from their response to other emergencies in which the first step is typically outreach and communication with the systems IRWA works with. For example, on March 21, 2020, a magnitude 6.5 earthquake struck central Idaho. Circuit riders needed immediate contact with water systems to assess any potential damage caused by the quake. Luckily, the remote communication procedures implemented in response to COVID-19 allowed IRWA’s circuit riders to easily check in with system operators.

While the pandemic continues to impact daily life and operations for IRWA in general and Shelley personally, she looks forward to life after COVID-19. Professionally, she awaits opening up the new training center in Boise, Idaho IRWA constructed just prior to the shutdown. The center will host hands-on trainings for water and wastewater operators in addition to traditional classroom training. As for her personally? Being able to hug her friends and extended family.

Shelley participated in a panel discussion on the pandemic’s impact on the Idaho water sector as a part of the Idaho Association of Cities’ 2020 virtual conference, which you can watch in full here. For more information about IRWA, including details for upcoming trainings, check out their website here. And stay tuned to Schroeder Law Offices’ blog for more posts in this series and other water-related issues!

The State of the Water Industry Survey

In the June 2020 issue of Opflow, the American Water Works Association published a survey of 3,351 water industry professionals. The State of the Water Industry (SOTWI) survey identifies challenges to the water industry and seeks to understand their causes.

Several issues regarding water resource management made the top ten concerns of the industry professionals surveyed. “Long-term water supply availability” was the third-highest ranked issue on the list at #3, followed closely by “watershed/source water protection” (#5) and “groundwater management and over-use’ (#10).

Water Demand

Specifically, 57 percent of surveyed respondents indicated that their utilities could meet anticipated long-term water demand. However, about 12 percent of respondents claim that it will be challenging to meet future supply needs. This uncertainty creates reverberating effects throughout the industry. Uncertainty affects many other aspects of water resource management and quality, including the other issues mentioned in the survey. Future supply shortfalls will lead to increased price and competition as well as the potential for more frequent litigation over water rights.

Source Water Protection

In addition, source water protection was another critical issue for water resource managers. 76 percent of utility respondents to the survey said that they had implemented or were implementing a source water protection program. When considering only large utility respondents, that share increased to 89 percent. Clearly, utilities focus on strong source water protection programs. These programs are often cost-effective ways to protect and improve both water quality and quantity. Further, states are generally responsible for implementing water quality standards under the Safe Drinking Water and Clean Water Acts for drinking water. Recently, the AWIA, America’s Water Infrastructure Act amended the Safe Drinking Water Act, signed into law in 2018.

Groundwater

Finally, this was the second consecutive year that groundwater issues were front and center in the survey. 2019 California drought and wildfire conditions stressed groundwater resources, bringing those issues to the front of many survey respondents’ minds. Those issues show no signs of abating, as drought and wildfires continue to ravage the West.

In conclusion, many of the challenges highlighted by survey respondents are similar to those faced by water resource managers throughout the years. While there may be some cause for concern in certain areas, overall the survey shows a positive outlook for the future. Utilities are using existing water resources more efficiently as they comply with the AWIA, protect their water sources, and engage in asset management planning. The water industry has poised itself to meet its challenges with resilience.

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

In a previous blog, we looked into who owns an aquifer: does it belong to private individuals or the public? Under the ad coelum doctrine, the surface owner holds the ground itself – rocks, dirt, and the like – as private property, owned all the way down to the Earth’s core. On the other hand, the public collectively owns water, taken for private use through the rule of capture, or the ferae naturae doctrine.^[1] Because an aquifer is a “body of permeable rock which can contain or transmit groundwater,”^[2] the rules related to aquifers are a complex combination of the two competing doctrines. In our previous update, we highlighted a California district court case, Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al, that seeks an answer to the question of aquifer pore space ownership.^[3]

Background

The Agua Caliente Band of Cahuilla Indians (“Tribe”) sued the Coachella Valley Water District and Desert Water Authority (“Defendants”) to protect the aquifer under its reservation from groundwater depletion and water quality degradation. The Tribe argued that the pore spaces within the aquifer are its property under the ad coelum doctrine. The Defendants believe that the public owns pore spaces. The court has not yet addressed the question of whether the pore spaces are public or private property. However, the case has progressed since our last post and we are due for an update.

The Tribe and Defendants agreed to split the litigation into three phases when the Tribe first filed the case in 2013. Phase 1 was to decide whether the Tribe had a reserved right to groundwater in principle. Thereafter, Phase 2 would resolve if this reserved right contained a water quality component, the method of quantification of a reserved groundwater right, and if the Tribe owned pore spaces within the aquifer. Phase 3, if necessary, would quantify the Tribe’s reserved groundwater right and ownership of pore space.

In Phase 1, the court granted summary judgment to the Tribe on its groundwater right claim. The decision essentially declared without a trial that the Tribe did in fact have a reserved right to groundwater. Phase 2 was delayed while the Defendants unsuccessfully appealed to the 9th Circuit and then unsuccessfully sought Supreme Court review.

Update

Like Phase 1, Phase 2 proceeded to summary judgment. The court ruled that the Tribe can seek a declaration that it has an ownership interest in sufficient pore space to store its groundwater. However, the Tribe did not argue that it owns the pore space as a “constituent element” of its land ownership in its initial complaint, and the court could not consider it. Recently, the Tribe submitted an amended complaint including its pore space as “constituent element” of land ownership argument, which is now before the court.

The question of whether the Tribe has ownership of the pore space beneath its reservation is the only item left for the court to decide in this phase; the answer could have a real impact on groundwater issues, as it may be one of the first cases to directly address the pore space question. Another controversy is bubbling over pore spaces in North Dakota, starting with the case Mosser v. Denbury Res., Inc., 2017 ND 169 (2017), passage of H.B. 2344, and legal challenges to the bill by the NW Landowners. Keep an eye on the blog for our next update on this case that could affect you!

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

^[1] https://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos

^[2] Oxford Online Dictionary, https://en.oxforddictionaries.com/definition/aquifer

^[3] The case is presently before the United States District Court for the Central District of California, Docket No. ED CV 13-00883-JGB-SPX. Plaintiffs filed the complaint on May 14, 2013.

In case you missed it, on June 10, 2020, Schroeder Law Offices presented a webinar on stockwater on and off public land.  Panelists included Laura Schroeder and Therese Ure of Schroeder Law Offices, P.C. and Alan Schroeder of Schroeder Law in Boise Idaho.  The panelists discussed stockwater in Nevada, Idaho, and Oregon.

The webinar’s topics included:

• How to obtain stockwater rights under state law;
• Special rules for stockwater on federal land;
• Stockwater exemptions;
• Stockwater and federal grazing permits; and
• Common stockwater issues on federal land.

Participants’ questions confirmed the relevance of stockwater on public land.  Both Attorney’s Alan Schroeder and Laura Schroeder answered questions regarding the Limited Agency Agreement for the Purpose of Establishing and Maintaining Stockwater Rights Under the Laws of the State of Idaho. Many Bureau of Land Management permittees recently received these agreements.  Panelists discussed the issue of federal stockwater ownership in Idaho throughout the webinar. Discussion included consideration of the pending Idaho stockwater legislation and the Idaho Supreme Court decision in Joyce Livestock Company v. United State of America.

To view the full webinar, please visit:  https://www.water-law.com/webinars/stockwater-rights/

Schroeder Law Offices provided weekly webinars on an array of water related issues during the 2020 COVID-19 pandemic. To view any previous webinars, please visit: https://www.water-law.com/webinars/.

Please join, Laura Schroeder and Alan Schroeder for a bonus COVID-19 webinar on Idaho Limited Agency Agreements for Stockwater on Federal Land.  The webinar will be held on June 19, 2020 from 11:00 AM to 12:00 PM Pacific. You can register here.

Grazing permittees and licensees in Idaho have recently been receiving Limited Agency Agreements for the Purpose of Establishing and Maintaining Stockwater Rights Under the Laws of the State of Idaho from the Bureau of Land Management (“BLM”).  These agreements ask permittees/licensees to become agents of the BLM to ensure that under the 2020 enactment of HB 592 livestock water rights claimed in the name of the United States can continue to be used on all grazing allotments. Specifically, HB 592 amends Idaho Code 42-501, 42-502, and 52-504 and repeals Idaho Code 42-503. 

Attorneys Laura Schroeder and Alan Schroeder will discuss the contents of these agreement, considerations, and inquiries grazing permittees/licensees should make prior to signing the agreements before July 1, 2020. The discussion will include:

• History of federal ownership of stockwater in Idaho;
• Threats to forfeiture on stockwater rights held in the name of the United States;
• Agency Agreements;
• Considerations prior to signing Limited Agency Agreements for Stockwater; and
• Next steps for permittees;
  • Determining stockwater ownership; and
  • Strategies to protect stockwater rights on public land.

Afterward, we post our COVID-19 webinars here.  Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Stay tuned to the Schroeder Law Offices blog for announcements about upcoming and past webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com.

In the ninth COVID-19 webinar, Laura Schroeder and Alan Schroeder discussed stockwater on and off public land.  The webinar was held June 10, 2020. A recording of the presentation is available here.

This webinar focusses on acquisition of stockwater use in Nevada, Idaho, and Oregon.  Participants will learn how to obtain new stockwater permitted uses and how to establish rights existing prior to each state’s statutory water code.  Next, participants will learn how stockwater rights of use relate to federal grazing permits.  Last, participants will learn common issues with stockwater use on federal land. The general topics will include:

• Acquisition of Stockwater Rights of Use
  • On Federal Land
  • State Methods
    • Nevada
    • Idaho
    • Oregon
  • Stockwater Exemptions
• Stockwater and Grazing Permits
  • Status to Hold a Grazing Permit
  • Ownership of Water as “Base Property”
  • Water Developments on Federal Land
• Other Stockwater Issues on Federal Land
  • RS2399 Right-of-ways
  • Grazing in Wilderness

Please join Laura Schroeder and Alan Schroeder as they discuss stockwater on and off public land! Afterward, we will post this webinar here along with our other COVID-19 webinars. Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Our COVID-19 series continues for one more week.  Don’t miss our last webinar about water infrastructure easements on June 17, 2020 from 12:00 PM to 1:00 PM .  Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com.

(photo credit: https://www.rotorflush.com/applications/livestock-watering/; https://www.beefmagazine.com/blog/9-ranch-management-concepts-improve-your-ranch) 

For the sixth COVID-19 webinar, paralegals Rachelq Harman, Tara Jackson, and Lisa Mae Gage will discuss the research tools and resources available on the Idaho Department of Water Resources (IDWR), Oregon Water Resources Department (OWRD), and Nevada Division of Water Resources (NDWR) online databases. The webinar will occur in 3 parts on May 20, 2020.

First, Rachelq, moderated by attorney Laura Schroeder, will present on IDWR’s online resources from 11:00 AM to 11:30 AM Pacific Time (12:00 PM to 12:30 Mountain Time). Next, Tara, moderated by attorney Sarah Liljefelt, will present on OWRD from 12:00 PM to 12:30 PM Pacific Time. Finally, Lisa Mae, moderated by attorney Therese Ure, will present on NDWR from 1:00 PM to 1:30 PM Pacific Time.

Click on the state’s name to register for the Idaho, Oregon, and/or Nevada webinars. We invite you to attend all three, or just the one(s) most relevant to you. If you have any issues with registration, please contact Scott Borison at: scott@water-law.com. If you can’t make it, stay tuned to our blog for announcements for information about the next webinars. Our previous webinars in the COVID-19 Series are available here.

Each of the May 20th webinars will offer suggestions on how to get the most out of each state’s online resources and water right information. First, we will provide an overview of what tools are available on each state’s website, then narrow our focus to water right look up and mapping tools. We will then take you through the steps needed to search for individual water rights. We will also explore the various online mapping tools and files available to aid in water right research. 

Topics will include:

1. Website home page overview
2. Use and function of water right search systems
   1. Types of search fields
   2. Types of search results
3. Use and function of online mapping tools
   1. Finding a water right
   2. Finding a well
4. Other useful tips/tools for water right research

We will offer a surprise discount for online research assistance to be provided by one of the experienced water rights paralegals who are panelists to this webinar for webinar participants.

The COVID-19 Webinar series will continue over next several weeks, including topics related to real estate due diligence and water management organization. Previous webinars are available on our website, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

In 2014, the Idaho Department of Water Resources (“IDWR”) proposed adjudicating water rights in the Bear River Basin in Southern Idaho. Now, nearly 6 years later, a bill that would allow IDWR to commence the adjudication is up for legislative consideration. The Idaho House of Representatives unanimously passed House Bill 382 (“HB 382”) on February 10, 2020. The House then sent it to the Idaho State Senate with a “do pass” recommendation on February 11. The third Senate reading of HB 382 is scheduled to occur on February 26.

Adjudicating the Bear River Basin water rights will enable IDWR to “accurately record all existing water rights to resolve uncertainty and to help ensure fair and accurate water administration.” Revised Statement of Purpose RS27284C1/H0382, available here. Many of the water rights in the Bear River Basin hold senior priority dates, but uses have changed over time or are placed to use outside the claimed boundaries due to the passage of time and inconsistent record keeping. Additionally, because of the uncertain nature of many of the water right claims, until an adjudication is completed, senior users who face interference from junior users’ water use cannot seek enforcement of their priorities.

The Bear River Basin is one of only two basins in Idaho that have not yet been adjudicated. In 2014, IDWR signed a final decree closing the Snake River Basin Adjudication (“SRBA”). Several basins in Northern Idaho, including the Coeur d’Alene-Spokane, Palouse River, and Clark Fork-Pend Oreille basins, are currently being adjudicated as part of the Northern Idaho Adjudication project. IDWR’s website provides a summary of past, current, and upcoming adjudications here.

If HB 382 passes the Senate, the final step will be for Governor Brad Little to sign the bill into law. Then IDWR can commence the adjudication by sending notice to water users and property owners within the Bear River Basin. Those users will then have the opportunity to submit claims for historical and ongoing water use. Once the submission period closes, the Court will review all claims and, eventually, issue a decree confirming the water rights.

It is not uncommon for adjudication proceedings to take a significant number of years from their commencement to completion. Idaho has completed its prior adjudications in record time. Even so, the SRBA began in 1987, but a decree was not issued until 2014. Legislature similar to HB 382 authorizing the adjudications in Northern Idaho was passed in 2006; however, Phase 1 of 3 is still ongoing and Phase 2 only just began in April 2019. The Bear River Adjudication would not begin until adjudications in Northern Idaho are complete. Once commenced, it is expected to take 8-10 years.

Stay tuned to Schroeder Law Offices’ blog for updates on the Bear River Basin and other water projects!

In July, 2020, attorney Laura Schroeder will hit the road and travel to Idaho to teach a series of classes on “Water Law for Utilities.” The classes are put on by the Idaho Rural Water Association (IRWA) and are approved by the State of Idaho Bureau of Occupational Licenses for 0.6 drinking water or wastewater Continuing Education Units.

Laura regularly presents to small and large groups in and around the Portland metropolitan area. However, this is the first time since 2018 that she will make it to Idaho. Then, she worked with IRWA to teach a series on understanding and managing municipal drinking water rights. This time around, she will focus on water utilities.

In these classes, Laura will provide an overview of water rights in the State of Idaho and how water utilities are impacted by the laws and statutes that govern those rights. She will also address water quality, quantity, and access issues, including a brief discussion of easement law. Finally, she will go over some of Idaho’s public meeting laws and how they pertain to water utilities.

Laura will teach in Twin Falls, Idaho on Monday, July 14, in Pocatello, Idaho on Tuesday, July 15, and in Fruitland, Idaho on Thursday, July 17. For more information or to register, check out the calendar of events on the Idaho Rural Water Association’s website: https://www.idahoruralwater.com/Training/Calendar.aspx. And don’t forget to follow Schroeder Law Offices’ blog for more upcoming events and news on water law developments throughout the northwest!

Authored by: Valley Urricelqui

Did you know that an animal’s performance is based, in part, on their water intake?

Water is the most essential component for livestock’s proper growth, development and performance.

How much water do you think cattle drink each day? Well there are a lot of different factors that lead up to that. It all depends on what type of cattle we are talking about, the weather (What is the temperature outside? Is it summertime or wintertime?) as well as the stage in life the animal is currently in. But it is always important to  remember that, generally speaking, when it comes to watering cattle, the heavier the cattle, the higher the water intake.

Cattle should consume 1-2 gallons of water per 100 pounds of body weight. So if you have a 1500 pound cow, she should be drinking about 15-30 gallons of water on an average day.

Below is a list of the amount of water cattle drink each day:

For more detailed information visit: https://www.grass-fed-solutions.com/cattle-water.html

*Fun Fact: Did you know that cattle have 4 stomachs? The Rumen is the largest and can hold up to 50 gallons of feed!

*Fun Fact: The average cow can drink as much as 30-50 gallons of water on a hot summer day! For pairs to get through the summer time heat, they may need to drink 2x the amount of water.

*Fun Fact: Did you know what I mean by “a pair”? A pair is defined as a momma cow and her baby calf.

As the temperatures begin to increases over 40 degrees – cattle generally require an additional gallon of water for every 10 degree increase in temperature.

Water is crucial for the life of livestock, just as all mammals. In order for livestock owners to maintain healthy and happy livestock they must assure that the animals are properly taken care of. A large part of that starts with maintaining our livestock’s water supply.

On July 11 and 12, 2018, attorney Laura Schroeder and paralegal Rachelq Harman travelled to Caldwell and Twin Falls, Idaho, respectively, for the Idaho Rural Water Association’s (“IRWA”) annual Water Law to YOU Road Show to educate water users and managers all about their municipal water rights. The 6 hour classes discussed the basics of owning, maintaining, and utilizing water rights, along with tips on avoiding potential associated issues such as easement disputes and involuntary forfeiture. The classes also touched on recent developments in Idaho water law, and the status of the State’s multiple ongoing adjudications.

IRWA hosted these presentations that were offered as continuing education credits to satisfy both drinking water and wastewater CEU requirements. Some attendees also planned to seek real estate and/or attorney CE credits for those professional licenses. Attendees came from a variety of backgrounds, including ditch association managers, wastewater treatment operators, and even fellow water law attorneys!

Laura Schroeder’s new class incorporated additional information related to Idaho Department of Environmental Quality’s (“IDEP”) assumption of Idaho’s water quality program from the Environmental Protection Agency (“EPA”). Due to this recent development and the continuing efforts of the Idaho Department of Water Resources (“IDWR”) on the north Idaho adjudications, the class’s focus was expanded from water rights basics. Active participation from students in each session made each presentation unique, and allowed a focus on material of specific relevance and interest to each group.

While this year’s Road Show has come to an end, there are plenty of upcoming opportunities to brush up on your water rights education. Check out Schroeder Law Office’s events page to learn where you can find us next, and stay tuned to Schroeder Law Offices’ blog for more information on upcoming events and water law developments!

On March 13, 2018, Oregon Governor Kate Brown declared a drought in Klamath County under Oregon Executive Order No. 18-02, with an expiration date of 12/31/2018. The drought was declared largely due to the low snow pack in the region. According to the Capital Press, Klamath County was, at that time, experiencing 45 percent of its usual snowpack for the year. Since March 13, the Governor has made drought declarations in five additional counties: Grant, Harney, Lake, Douglas, and Baker. To check for current drought declarations, click here.

The Oregon Water Resources Department (OWRD) is currently issuing emergency drought permits for the Klamath Basin.  According to OWRD, temporary emergency use groundwater permits may be issued in designated drought areas. These permits allow surface water users under drought declaration access to temporarily use groundwater wells to gain access to water. In addition, approved drought permits will require metering, record keeping, and reporting of groundwater use over the season to the Department. To access the emergency drought application’s, click here.

Due to the low snow pack in the 2017-18 winter, and the limited rain fall Oregon has experienced, much of the west is expected to experience higher than usual fire danger. From October 2017 through April 2018 rainfall was approximately 70 percent of what is typical in southwest Idaho, and approximately 50 to 70 percent of what is typical in southeast Oregon. The Capital Press reported that The National Interagency Fire Center’s Predictive Services Unit (NIFC) reported on May 1 that it expects warmer and drier than average conditions across the west. According to the Capital Press the NIFC report also went on to say that southeastern Oregon’s warm, dry April stood out in contrast to cooler, wetter conditions in much of the northwest. The NIFC reported on June 1 that April’s cooler than average conditions across the northwestern states were replaced by above average temperatures in May. The June report went on to say that the above average temperatures are likely caused by the El Niño weather pattern that is expected to hit by mid-fall. The National Ocean Service classifies an El Niño by an unusually warm waters in the Pacific Ocean. Typically, it will occur during winter months like December. According to the National Ocean Service, it typically brings wetter than average conditions off the US Gulf Coast.

US News reported that as of April, all basins in Oregon were well behind on snow pack, most measuring 40 – 70 percent of normal levels. The US Drought Monitor map shows (click here to see the map) abnormally dry to moderate drought conditions, extending through the month of August.

Oregon has already had 259 fires across the state in 2018, which have burned 2400 acres, as of June 28 according to the Oregon Dept. of Forestry (ODF), Fire Blog. According to the NIFC, there are 55 fires currently burning throughout 10 states, and as of June 28, seven of those are new, with 29 of the fires currently burning, in Alaska alone. Of those 55 fires, nearly 500,000 acres have already burned and only three of them are considered contained.

As a result of the unusually low snow pack, unseasonably dry heat, and over all conditions, the 2018 summer is expected to continue to be busy for wildland fire fighters and irrigators alike. Stay tuned to Schroeder Law Offices’ Blog for more news.

In an often-arid, agricultural community, nothing is more precious than water, particularly in drought years. However, flood years present their own set of challenges as well. When it comes to water allocation, it’s not just how much water that matters, but also when that water is received. Timing is as important as quantity when it comes to water delivery, especially when taking into account the impact snow pack and snow melt has on water supply.

For irrigators in Idaho’s Treasure Valley, this issue has long been a topic of discussion and debate. Water is accumulated and stored in three major reservoirs (Arrowrock, Anderson, and Lucky Peak) and is released throughout irrigation season to water users through a series of canals. Water is diverted to users at various points on the canals, at which time it begins to count toward a user’s annual allotment of water. This is typically not an issue during years of normal water accumulation and distribution. However, when above-average quantities of water accrue in the reservoirs, water must be released earlier in the spring to prevent overflow and flooding.

Early “flood water” releases are the root of the current conflict concerning regulation of water storage in Idaho. Water rights holders are allowed only a certain amount of water under the conditions of their permits and/or certificates. When water is released out of storage earlier in the year, Idaho Water Resources Department advises that the meter starts running regardless of whether or not the water right holder is ready to turn the water into its irrigation facilities. For senior users (holders of rights with earlier priority dates), this means seniors risk running out of water later in the season. Typically, if a senior is not receiving their allowed quantity of water as flows decrease in the hotter months, the senior is able to make a water call on junior priority water right holders. However, if, due to the early release of water, the senior has technically received the storage release of their senior priority water, the senior could be left high and dry.

This issue has been litigated in the Idaho courts as a contested case since 2013, with argument before the Idaho Supreme Court scheduled to occur on June 20, 2018. However, on June 6, 2018, a joint legislative committee met and unanimously called for Governor Butch Otter to hold a special session to pass legislation that would add a new Section 42-115 to the Idaho Code. Section 42-115 would ensure that future water storage projects do not interfere with existing reservoirs. While this proposed legislation will not fully resolve the ongoing issues, nor constitute a settlement between the parties, it may be a positive first step toward resolution.

Stay tuned to Schroder Law Offices’ blog for updates on this legislation, settlement, and other water law topics!

While the negotiation of U.S. international treaties has been in the news lately, the renegotiation of an international treaty of particular importance to the Pacific Northwest has not received much coverage. However, May 29-30, 2018 marked the first round of negotiations between the U.S. and Canada in the effort to renegotiate the Columbia River Treaty.

Notably, May 30, 2018 also marked the 70th anniversary of the historic Vanport flood that wiped out a town of approximately 18,000 residents situated between Portland, Oregon and Vancouver, Washington.[1] On that day in 1948, the Columbia River crested at Portland to fifteen feet above its flood plain and breached the embankment protecting Vanport, which just years earlier was Oregon’s second largest town.[2] While the town of Vanport no longer exists, one of the many legacies of the devastating flood is the Columbia River Treaty and its flood control provisions.

 A Columbia River Treaty between the U.S. and Canada was seriously considered beginning in 1944, but it was not until 1960 that the U.S. and Canada began negotiating the Treaty, which was signed in 1961 and took effect in 1964. The Treaty has no specific end date, but 2024 is the earliest either party may terminate the Treaty and to do so, the party must provide a minimum of 10 years written notice of termination.

The impetus for renegotiating now is that the assured annual flood control procedures in the Treaty will end after 2024 whether or not the Treaty is terminated.[3] After 2024, on-call flood control measures will apply requiring the U.S. to ask Canada to store water after the U.S. has used all available flood control space in U.S. reservoirs.[4] These on-call procedures have been referred to by Oregon and Washington’s Congressional Representatives Peter DeFazio and Cathy McMorris Rodgers as “ad hoc, unplanned” and with the likely potential to cause uncertainty and international disputes.[5]

The Canadian storage created by the Columbia River Treaty includes 15.5 million acre-feet of water in the upper reaches of the Columbia, including the storage behind Libby Dam, which sits near the U.S. and Canada border in Montana and created Lake Koocanusa, a reservoir that backs up 42 miles into British Columbia. While the U.S. benefits from the flood control measures, both countries realize a benefit from the power generated. However, the Treaty was not written specifically to provide water for irrigation or fish subsistence.[6]

Both Canada and the U.S. have spent recent years studying the effects of the Treaty and the various issues that will serve as levers in the negotiation to balance the current and future needs of both countries. These studies ultimately led both countries to consult with stakeholders in their regions and to issue regional recommendations that will serve as the basis for renegotiating the Treaty.[7]

While neither county has given notice of termination, the entities began renegotiating the Treaty on May 29-30, 2018. The next scheduled negotiation is August 15-16, 2018. [8] The renegotiation of the Columbia River Treaty will be important for Pacific Northwest irrigators and water users as the eventual revisions to the Treaty will likely: impact future reservoir storage, alter the timing of reservoir releases, take into account ecological and fish impacts of the Columbia River Power System, and effect utility rates for all electricity customers.

[1] Michael N. McGregor, The Vanport Flood, The Oregon History Project: Oregon Historical Society (Mar. 17, 2018) available at https://oregonhistoryproject.org/articles/essays/the-vanport-flood/#.WxhNxkgvyUm.

[2] Carl Abbott, Vanport, The Oregon Encyclopedia: Oregon Historical Society (Mar. 17, 2018) available at https://oregonencyclopedia.org/articles/vanport/#.WxhNwUgvyUn.

[3] Northwest Power & Conservation Council, Columbia River Treaty, available at https://www.nwcouncil.org/reports/columbia-river-history/columbiarivertreaty.

[4] Id.

[5] Cathy McMorris Rodgers & Peter DeFazio, Modernizing our Columbia River Treaty, OregonLive (Mar. 14, 2018) available at http://www.oregonlive.com/opinion/index.ssf/2018/03/peter_defazio_modernizing_our.html#article.

[6] Columbia River Treaty.

[7] Id.

[8] U.S. Dept. of State, Press Release: On the Opening of Negotiations to Modernize the Columbia River Treaty Regime (May 30, 2018) available at https://www.state.gov/r/pa/prs/ps/2018/05/282867.htm.