New laws and legislation may affect you, stay tuned for tomorrow’s work session on topics of adaptive management, domestic use, cloud seeding, basin management, and mine dewatering!

Nevada’s Legislative Commission’s Subcommittee to Study Water will be holding a meeting on Friday morning, August 26, 2016 at 9:00AM at the Legislative Building, Room 4100, at 401 South Carson Street in Carson City.

Items on the agenda include the “Work Session Document” containing recommendations received by the Legislative Commission’s Subcommittee during the 2015-2016 Legislative Interim. This document is designed to assist the subcommittee members in determining which recommendations will be forwarded to the 2017 session, and what other actions the Subcommittee will endorse.

For those who may not be able to attend the meeting in Carson City, it will also be broadcast live over the internet via http://www.leg.state.nv.us, and can be viewed or listened to by clicking the link for “Calendar of Meetings/View” in the top right-hand corner of the page.

Items in the agenda as well as the Work Session Document and other information pertaining to the meeting can be found on the Nevada Legislature website under the “Meetings” tab. For written copies, please contact the Research Division, Legislative Counsel Bureau at (775) 684-6825.

A PDF link to the agenda including the Work Session Document can be found here.

Rights-of Way on Public Lands and Administrative Avoidance

Century old rights-of-way uses of public lands can only be confirmed through a long, expensive federal court process. Because the Bureau of Land Management (BLM) and U.S. Forest Service (USFS) cannot determine the validity of water delivery and road rights-of-way on public lands, farmers, ranchers, and local governments may face an uphill battle to legally confirm and adjudicate these long-standing uses.

Revised Statutes (RS) 2477 and 2339 were components of the Mining Law of 1866, also called H.R. 365. This Act recognized the activities of settlers and miners occupying the West and encourage development of federal lands.

RS 2477 recognized roads and highways on public lands not already withdrawn from entry. RS 2339 protects the use of water infrastructure used for mining, agriculture, manufacture, and other purposes in place prior to the lands being withdrawn as well. These road and ditch laws honored development protocols and uses based on the local custom and laws at the time of early settlement.

While these laws are no longer in effect with the passage of the Federal Land Policy and Management Act (FLPMA), these self-granting rights-of-ways created while the law was in effect have not disappeared.  FLPMA recognizes existing rights on public lands prior to its passage. See: http://www.blm.gov/ca/dir/pdfs/2003/ib/CAIB2003-023ATT2.pdf

Without a way for agencies to definitively determine RS 2477 and RS 2339 rights-of-way claims, federal courts are currently the only venue to address these issues.  For more information, see: http://nvbar.org/articles/content/rs-2477-public-rights-way-era-administrative-avoidance

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

In the wake of ongoing controversy over the reach of U.S. Agency jurisdiction, a Senate Appropriations Committee is taking steps to decrease funds available for many Agencies for the upcoming year, in an attempt to limit any overreach.  On June 16, 2016 the Senate Committee approved budget cuts to the United States Fish and Wildlife Service (“USFWS”) and Environmental Protection Agency (“EPA”). Sponsored by Senator Lisa Murkowski from Alaska, the bill covers funding of many agencies and topics, with specific statements relating to public land agencies and funding.

Most notably, the bill proposes to cut the USFWS’s budget by $11.9 million as compared to the 2016 budget. Proposed cuts equally would affect the EPA’s budget to the tune of $31.2 million. Interestingly, and related to the funds allocated to the EPA, the bill states that, “None of the funds made available in this Act or any other Act, may be used to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act…”

While the measure is likely to be altered as it goes before the Senate, it marks a movement by many to limit funding to U.S. Agencies in charge of public lands, and seeks to limit the jurisdictional overreach the Agencies often assert. Those behind such measures believe that if the Agencies lack the funds to assert their jurisdiction, their resources will be dedicated in furtherance of the respective Agencies’ core goals, rather than working to increase their jurisdictional effect and power.

For the full text of the proposed bill, please visit https://www.congress.gov/114/bills/s3068/BILLS-114s3068pcs.pdf.

California’s Sustainable Groundwater Management Act Regulations Issued

California’s Sustainable Groundwater Management Act (“SGMA”) was passed in 2014. The SGMA requires local agencies to bear the burden of creating, implementing, and enforcing Groundwater Sustainability Plans (“GSP”) in certain groundwater basins to manage the aquifer in a “sustainable” manner. The California Department of Water Resources (“CDWR”) recently issued regulations that help clarify the requirements of the GSPs, but also include some information about how the law will impact local agencies and groundwater users in the State. However, the regulations fail to satisfy some fundamental questions raised by the SGMA.

The new regulations were issued on May 18, 2016 by CDWR provide some insights into how the agency plans to implement the Sustainable Groundwater Management Act. A copy of the regulations may be found at: http://water.ca.gov/groundwater/sgm/pdfs/Proposed_GSP_Regs_2016_05_10.pdf. Under the regulations, the agency set out the requirements for plan contents, including administrative information, a description of the basin, sustainable management criteria, a description of the monitoring network, and projects associated with the plans.

The administrative information section must include general information about the region, description of the local agency developing the plan, and the agency decision-making process with public engagement.

The basin setting section must thoroughly describe the basin’s hydro-geologic conditions and must create a “water budget” that describes all the surface and groundwater movement into and out of the basin. Under this section, the local agency must estimate the “sustainable yield” of the basin.

Sustainable Management Criteria have also been outlined by the regulations. These criteria require local agencies to set a sustainability goal that eliminates undesirable results of groundwater use within 20 years of the statutory deadline. CDWR will evaluate sustainability goals based on the achievement of minimum thresholds established by the local agency. The minimum thresholds expand on the statutory language for “undesirable results.” For example, a significant and unreasonable reduction in groundwater storage levels will be evaluated based on the locally defined “undesirable results,” supported by the “sustainable yield” of the basin. The local agency must also include a measuring system and “measurable objectives” that are revisited every five years.

The regulation also outlines the procedure that CDWR will use to evaluate plans, timelines for approval and reporting, and how local agencies can amend their plans. It also sets out the procedure for interagency agreements and addresses adjudications and alternatives to GSPs.

The real impact will come from the local agencies’ interpretation of the word “sustainable.” The new regulations use the term throughout, defining the quantity of water in the water budget available and defining allowable groundwater depletions. Traditionally, sustainable yield is considered the amount of water that can be withdrawn in balance with recharge. At first glance, the definition makes sense. The meaning, however, simplifies a more complex concept. When water is pumped from an aquifer, three results can occur: a reduction in stored water stored in the aquifer, capture of surface water (like rain or seepage from a river), or a reduction in discharge (like a spring or river baseflow), or any of these effects in combination depending on the specific aquifer. Ponce, Victor M., Sustainable Yield of Groundwater, (available at: http://ponce.sdsu.edu/groundwater_sustainable_yield.html). It remains to be seen how “unreasonable” and how “significant” the undesirable effects have to be in order to become unsustainable.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

The debate continues on the prior appropriation system. During the 2016 Family Farm Alliance Annual Conference, the Alliance’s 2015 report on the prior appropriation doctrine raised some debate. This debate, now focusing on Nevada’s prior appropriation system, was again raised in equal vigor during the 2016 Nevada Water Resources Association annual conference. While many argue the system fundamentally works, some commenters took the stance that the prior appropriation doctrine was flawed and should be reconsidered.

One alternative suggestion presented during these discussions was to adopt the Australian Model which changes a water right to a water share, and strives to entitle these water license holders to a specific share in the available water and to take water at specific times, rates or extraction points. However a true understanding of prior appropriation provides for water use under these circumstances, with the main difference being, in a short water year, the difference class of shareholders receive different allocations. So instead of a month, day and year priority to govern who receives their water first, the Australian Model groups all users into classes of shares with perhaps 3-5 classes all together depending on the stream system. What we did not hear about was how the Australian system handles conjunctive management calls within these class-share systems.

We suspect this debate will continue throughout the western United States as climate change and the drought continue.

Co-authored by Therese A. Ure

In the Northwest, a substantial percentage of our power comes from hydroelectric projects. California’s new legislation requires utilities to provide electricity from 50% renewables by 2030, and Oregon’s new legislation requires the same by 2040. The hydro power industry is viewing these renewable standards as creating continuing demand for hydro power, but several trends are creating serious hurdles for the hydro power industry.

More large projects are going through FERC re-licensing than those large projects that would seek first-time licenses. The result is that older projects are becoming subject to new instream flow and fish passage requirements. The older projects going through re-licensing are usually required to make facility upgrades, and regulate the projects to send more water downstream.

Additionally, climate change means that water patterns are also changing. Scientists predict that more precipitation will fall during the winter, with less flows from snow pack runoff and precipitation in the spring and summer. Predicted changes will create a large burden on facilities that provide flood control, possibly exceeding the amounts of water the facilities were designed to withstand. Further, flows released to meet instream flow requirements in the spring could mean that water is not available for power production and water users later in the season when there is a larger demand.

Moreover, new in-stream storage projects often meet substantial opposition from environmental groups.  Therefore, some innovative hydroelectric developers are constructing out-of-stream projects. For example, the Snohomish Public Utility District in Washington is reviewing an opportunity to construct the Sunset Fish Passage and Energy Project, http://www.snopud.com/?p=1956. An underwater intake structure would divert water from the South Fork Skykomish River, and would flow one-half mile through an underground tunnel to the PUD powerhouse, thereafter emptying back into the river. The PUD would also update the Washington State Department of Fish & Wildlife’s trap-and-haul facility as part of the project. In this way, the PUD proposes an innovative way to create hydro power while satisfying those who are typically opposed to new projects.

Schroeder Law Offices is assisting a client to develop a closed-loop hydro power project using existing agricultural groundwater use rights. It is the first of its kind in Oregon, and will not have undesired effects on surface water streams or fish passage. These types of innovative hydro power designs will need to be used more and more if hydro power is to keep a foothold in renewable energy portfolios in the West.

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

California Governor Brown signed Senate Bill 88 into law on June 24, 2015. Part of that Bill amended the California Water Code to require that all persons who divert 10 acre-feet or more of water per year after January 1, 2016 must install a water measuring device to measure the rate of diversion (including diversion into and out of storage). Water users must report installation to the Water Board, as well as provide evidence that the measuring device is functioning properly at five-year intervals. Water users must maintain records of diversion at time intervals of one hour or less (in some cases) and total amounts of water diverted.

Annual diversion reports must be submitted to the Water Board, and the law states: “Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.” The new law imposes civil fines in an amount not to exceed $500 per violation, per day, which may be enforced civilly through the superior court, or administratively by the Water Board. The Water Board will provide forms for reporting.

On January 19, 2016, the Water Board adopted emergency regulations to implement the new water measuring law. Those regulations were sent to the Office of Administrative Law for approval. Of note, the proposed regulations give the Deputy Director of the Division of Water Rights the authority to require monthly, daily, or more frequent reporting in times when there are insufficient flows to support all diversions. Additionally, the regulations propose a phased approach that takes into account the amount of water diverted, with larger diverters needing to comply with more stringent requirements than smaller diverters.

The recent drought spurred California law makers to enact this law that will mark a drastic change in the way water users operate. The Water Board reports that this new measurement, recordkeeping, and reporting law will apply to approximately 12,000 water users in California. The Water Board hopes that the new law and regulations will improve water use regulation and planning. Industry groups, including the California Cattlemen’s Association, oppose the regulations.

In Oregon, the Water Resources Department has phased in water use measuring, recordkeeping, and reporting requirements into new water use permits that are issued. California’s new law and regulations impose a new condition on existing water use rights, raising red flags about regulatory takings.

For access to S.B. 88 and the draft administrative rules, visit: http://www.waterboards.ca.gov/waterrights/water_issues/programs/measurement_regulation/.

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

Congress has adjourned for the year without passing a bill to authorize and fund the Klamath Agreements. The Klamath Basin agreements include: the Klamath Hydroelectric Settlement Agreement (“KHSA”), Klamath Basin Restoration Agreement (“KBRA”) and Upper Klamath Basin Comprehensive Agreement (“UKBCA”) that together lay out a comprehensive scheme for changes in management along the entire reach of the Klamath River. After years of litigation and negotiation, certain stakeholder groups came together to craft the trio of agreements. However, the agreements did not sit well with everyone. Particularly those in Klamath County and their California neighbors due primarily to the highly controversial dam removal provisions and drying up thousands of acres of farmland. For these among other reasons, the agreements, which required authorizing legislation and funding from Congress, failed to gain traction.

Senator Ron Wyden [D-OR] attempted multiple times to pass the necessary legislation to authorize the agreements. The latest version, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, has been stalled in committee since last January (2015). In an effort to move forward, on December 3, 2015, Representative Greg Walden [R-OR] released a draft bill intended to “help provide water and power certainty for agriculture and boost economic development and job creation for rural communities and tribes through a transfer of federal timber lands.” Walden’s draft bill omitted dam removal and authorized transferring up to 100,000 acres each of National Forest land to Klamath County, OR, and Siskiyou County, CA. These issues quickly became non-starters for the Tribes who held the “ears” of Senators Wyden and Merkley.

The KHSA is set to expire on January 1, 2016. While the parties can vote to extend it, some signatories are beginning to question if the agreements provide workable solutions for the Klamath basin. The Yurok Tribe clearly communicated its intent to terminate the agreement. Similarly, the Klamath Tribal Council has issued a dispute notice. Additionally, PacifiCorp, the company that owns the dams, has changed course and now indicates it will pursue re-licensing of the dams. Thus, many parties that initially favored the agreements are beginning to show their discontent. This may have been another reason authorizing legislation had difficulty making its ways through Congress.

In March of 2015, The Oregon Water Resources Department passed administrative rules, Oregon Administrative Rules 690-025, to help govern the region in accordance with the Upper Klamath Basin Comprehensive Agreement in anticipation of the agreement being authorized by Congress. The rules implement sections of the agreement to address control of well use in off-project areas when that use affects surface water supplies in the basin. However, these rules will no longer be effective once the agreement terminates, and groundwater regulation in the off-project area will again be in accordance with OAR 690-009.

As such, for better or worse, it appears the agreements will dissolve as portions of the agreements expire in the New Year. Thus, 2016 will likely involve the parties initiating new negotiations to resolve the critical water usage issues in the Klamath basin, potentially leading them back to court to resolve exceptions filed in the Klamath Basin Adjudication as that process is slated to continue through the coming year or years.

Photo: Rain – Klamath Basin Wildlife Refuge by Michael “Moik” McCllough

Oregon Revised Statute 537.225 was enacted in 2013, allowing water use permit holders with irrigation, nursery, temperature control, stock watering, or agricultural water uses and subsequent completion dates to apply for assignment of all or part of the water use permit, and for the issuance of a replacement water use permit that reflects that assignment. Thus, for the first time in Oregon, the Oregon Water Resources Department (“OWRD”) may issue a new permit after an assignment, rather than merely recognizing the assignment in OWRD’s records. Moreover, for the first time in Oregon, shared water use permits may be split so that holders of shared permits can move forward with perfection at their own pace, or make changes through the permit amendment process without affecting the other permittee’s portion of the shared water use permit.

Oregon Administrative Rule (“OAR”) Chapter 690 Division 325 was enacted in 2014, outlining the requirements for split permit applications. The OWRD forms for split permit applications were completed at the end of 2014, and are available at: http://www.oregon.gov/owrd/Pages/pubs/forms.aspx. OWRD disseminated information about the new split permit application to Certified Water Right Examiners so that they may advise their clients around the State of the new opportunity.

As provided in OAR 690-325-0060(1), the applicant is required to pay OWRD the full cost to processing the split permit application. OWRD is estimating costs in a similar manner to its Reimbursement Authority Program, and provides an Applicant Agreement for a nonrefundable fee of $125.00 that outlines the estimated costs for processing the application. The applicant can then sign the agreement and pay the estimated costs to move forward with their application.

This month, OWRD issued its first Proposed Final Order proposing to approve a split permit application, and the Final Order is set to issue at the end of January, 2016. The estimated cost outlined in the relevant Applicant Agreement was $585 (in addition to the $125 nonrefundable fee for estimate).

OWRD and water use permit holders are still waiting to see how efficiently the new split permit process works, but we are very excited about the new opportunities this process provides! We look forward at Schroeder Law in assisting permit holders in Oregon through this new process.

Make sure to stay tuned to Schroeder Law Offices’ Water Law Blog for more news that may affect your water use!

Nevada’s Special Session opened December 16, 2015 with Senate Bill 1 , an act that will issue transferable tax credits and tax breaks to certain projects authorized by the government.  Section 64 of this bill relates to water use.  It is proposing to streamline the water use permitting processes in order to encourage economic development.  The Bill as it is currently proposed, may side step certain evaluations and studies the Nevada State Engineer takes into account when reviewing change applications involving transfers of water uses between basins.  In addition, the proposed Bill will limit the parties who can protest these water uses in the change application process.  This may be concerning a s a fundamental concept of western water use is protecting against conflicts, injury, and other impacts between users.  Will this Bill continue to protect these rights? 

Published by Therese A. Ure and Lisa Gage

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The 2009 Oregon Legislative Highlights, a Continuing Legal Education publication of the Oregon State Bar, is now available for purchase.  The publication provides summaries of hundreds of bills impacting nearly every area of law, such as commercial and consumer law, land use law, and environmental and natural resources law.  While much of the 2009 legislation is already in effect, some laws are slated to take effect on January 1, 2010 and now is a great time to make sure that you are aware of any new laws that may impact you or your business.

Please contact our office if you have any specific concerns about how any new legislation may impact you.  The Public Affairs Department at the Oregon State Bar can provide additional information on this publication at pubaff@osbar.org or (503) 431-6376 and you may also order this, or other publications, online.

As attorneys for the Oregon Ground Water Association (OGWA), Schroeder Law Offices was pleased to do the legal research that successfully overturned the Oregon Water Resources Department’s determination of fees. As a result of advocacy for OGWA, refunds of over $100,000 were paid back to Oregon citizens after the Oregon Water Resources Department was found to have erroneously “jumped the gun” and required payment of fees before the Governor had signed the fee increase into law. For details, see

http://www.capitalpress.info/content/ml-water-fees-101609