The Greater Idaho Movement is a fascinating and complex effort that has gained traction in recent years. This movement seeks to redraw the state boundaries. Several counties in eastern Oregon would become part of Idaho. The primary motivation behind this movement is the cultural and political differences between the rural, conservative eastern Oregon and the more urban, liberal western part of the state. 

Water: A Critical Issue in the Greater Idaho Movement

One of the critical issues at the heart of this movement is water rights. Water is a precious resource in the arid regions of eastern Oregon and Idaho. The management of water rights is crucial for agriculture, industry, and residential use. Water rights in the western United States are governed by the doctrine of prior appropriation, which essentially means “first in time, first in right.” This doctrine has been the foundation of water law in both Oregon and Idaho for over a century. However, the implementation and management of these rights can vary significantly between states.

In Oregon, water rights are managed by the Oregon Water Resources Department (OWRD). The state has a comprehensive water management plan that includes strict regulations on water usage, conservation efforts, and environmental protections. In addition, OWRD has ceded its application processes in large part to the Oregon Department of Fish & Wildlife (ODFW). These regulations can sometimes be viewed as burdensome by farmers and ranchers in eastern Oregon. They feel that their needs are not adequately represented in the state’s policies.

Idaho, on the other hand, has a more fluid approach to water management. The Idaho Department of Water Resources (IDWR) oversees water rights at the State level, but there is generally more local control and flexibility in how water is allocated and used.  Additional agencies, such as state fish and wildlife do not oversee or inform IDWR’s work. This approach is often seen as more favorable by those in the agricultural sector, as it allows for more adaptive management practices that can better respond to local conditions.

What if the Greater Idaho Movement Succeeds?

If the Greater Idaho Movement were to succeed, the counties that join Idaho would transition from Oregon’s water management system to Idaho’s. This shift could have several implications:

1. Regulatory Changes: Farmers and ranchers in these counties might experience a reduction in regulatory burdens, allowing for more flexible water usage. This could lead to increased agricultural productivity and economic benefits for the region.
2. Water Allocation: The change in state governance could also impact how water is allocated among different users. Idaho’s system might provide more opportunities for local stakeholders to influence water management decisions. That could lead to more equitable distribution of water resources.
3. Environmental Concerns: While the transition might benefit agricultural users, there could be concerns about the environmental impacts of less stringent water regulations. A critical challenge will be ensuring that water usage remains sustainable and that ecosystems are protected.
4. Interstate Water Compacts: The movement could also affect existing interstate water compacts and agreements. These legal agreements govern the allocation of water from shared rivers and aquifers between states. Any changes in state boundaries would require renegotiation of these compacts to ensure fair distribution of water resources.

Conclusion

The Greater Idaho Movement is more than just a political and cultural shift. It has significant implications for water rights and resource management. As the movement continues to evolve, it will be essential to carefully consider how these changes will impact the people and ecosystems that depend on water in this region. Balancing the needs of agricultural users with environmental sustainability will be key to ensuring a prosperous future for all involved.

Schroeder Law Offices works with clients in both Idaho and Oregon as well as Nevada, Washington and Utah.

House Bill 3419: What’s Next for Well Monitoring and Reporting?

Oregon House Bill 3419  has the potential to restrict how much water homeowners can pump from their exempt (non-permitted) wells. It requires meters to record water usage. This bill also focuses on constructing consistency in how water use is measured and reported, in hopes to refine water enforcement procedures.

Most types of water use require the user to obtain a permit from the Oregon Water Resources Department (“OWRD”). But Oregon law currently considers domestic use of up to 15,000 gallons of groundwater per day, including irrigation of lawns and non-commercial gardens less than one-half acre, exempt from permitting and reporting requirements. This could change under HB 3419.

Public Feedback

Public response to House Bill 3419 has been mixed. While environmental protection organizations like WaterWatch of Oregon, the Nature Conservancy, and the Oregon Environmental Council support the passage of House Bill 3419, many individuals have provided public comments in opposition. The Oregon Water Resources Congress (“OWRC”) also opposes HB 3419, stating, “We are not opposed generally to measurement and reporting… However [HB 3419] would provide OWRD with overly broad authority that will only compete with and undermine other ongoing water management efforts.”

Mark Owens, Oregon State Representative for House District 60, has said he is opposed to any bill that would establish constraints for rural residents who rely on exempt wells for their domestic water. House District 60 includes Baker, Grant, Harney, Lake, Malheur, and part of Deschutes Counties in central and eastern Oregon. Many residents of these rural counties rely on private wells to obtain domestic water. Owens’ aim is to make things less complicated for Oregonians. H wants to ensure access to secure and reliable water for their homes. He spoke about possibly setting up a fund to support repairs and replacements of wells that have been affected by droughts, fires, and contamination.

Conclusion

It is important that well owners, especially those who rely on exempt wells for domestic use, maintain awareness of potential rules and regulations that could require additional procedure concerning their water access. House Bill 3419 is currently in front of the Oregon House Committee on Agriculture, Land Use, Natural Resources, and Water. There are no scheduled hearings on this bill, and the deadline to submit testimony has expired. We will continue to monitor the progress of HB 3419, so check back for updates! If you’re interested in learning more about ongoing water right issues, visit our the Schroeder Law Offices, PC blog!

More Information about House Bill 3419

1. Oregon Well Owners Face New Restrictions: State Proposes Controversial Monitoring Plan – The Hillsboro Herald
2. Farmers fret water meter mandate (HB 3419 hearing) | Oregon Catalyst
3. Good News – The Oregon Legislature is Not Trying to Meter Your Domestic Well – Oregon Property Owners Association
4. Agriculture, Land Use, Natural Resources, and Water House 2025 Regular Session – Oregon Legislative Information System
5. OWRC Testimony

Oregon Snowpack: A Winter Wonderland in 2025

With the first day of spring just around the corner, Oregon’s snowpack is now a topic of significant interest and importance. This year, Oregon has experienced remarkable snowfall, leading to a snowpack that is not only above average but also the best in the western United States. What does this record-breaking year mean for the region?

A Record-Breaking Oregon Snowpack

As of February 2025, Oregon’s snowpack has reached an impressive 144% of normal levels with all watersheds at 77% or higher of median snow-water levels. The John Day, Malheur, Harney, and Lake County-Goose Lake watersheds all have more than 150% of median snow-water levels. The levels across the state look very similar to those in 2019.

The accumulation is due to a series of cold winter storms providing large amounts of snow across the state. The heavy snowfall has been a welcome sight for many, especially after several years of fluctuating snowpack that raised concerns about water supply and drought conditions. Oregon has enjoyed a successful winter ski season. Skiing is expected to continue far into the spring, with many ski areas near or at 100 inches of snow.

Implications for Water Supply

This substantial Oregon snowpack is not only enjoyed for recreational winter snow uses. It also bodes well for water users during the rest of the year. The current snowpack levels are a positive sign for Oregon’s water supply. With snowpack levels well above average, the state is better positioned to meet water demands for agricultural and recreational uses, especially with irrigation seasons starting in March. The ample snowpack reduces the immediate risk of drought, providing a buffer against dry conditions that could arise later in the year.

Looking Ahead

While the current Oregon snowpack levels are encouraging, it is important to remain cautious. In recent years, strong snowpacks have melted too quickly due to early warm temperatures in spring and summer. This faster melting reduces the snowpack’s ability to prevent wildfires. It is wise to approach the season with caution and to be well-prepared.

All in all, this is good news for Oregon water users, and we will hope for a bountiful summer.

Integrated Water Resources Strategy: Oregon IWRS

IWRS means Oregon’s statewide Integrated Water Resources Strategy. On November 12, 2024, six Oregon departments hosted a public meeting to discuss IWRS priorities for the next five to 7 years. Sponsoring departments included:

• Water Resources Department
• Department of Fish and Wildlife
• Department of Environmental Quality
• Department of Agriculture
• Watershed Enhancement Board
• Department of Land Conservation and Development

Over 50 people attended both online and in person in Salem, including Schroeder Law Offices, to learn what the agencies believed were the most important actions for the state to take related to water quality and quantity concerns.

What IWRS Is

The IWRS is a state-wide initiative for inter-agency communication to understand Oregon’s instream and out-of-stream water needs. Governor Kotek requested a pause on IWRS after the agencies issued the first draft of the priorities since many agencies were transitioning to new directors.

The IWRS has 47 required actions, and the agencies decided to break these actions down into three “buckets”. They are titled 1) Prevent Things from Getting Worse; 2) Optimize: Highest and Best Use; and 3) Help Communities Prepare and Adapt.

The first bucket concerns sustainable practices and limiting and reducing contamination of water resources. The second bucket concerns prioritizing innovative water solutions and data-driven projects for decision-making. The third bucket concerns informing the public of what the “water future” looks like, helping economies adapt to water changes, and increasing volunteer-based incentive programs for target priorities. The public had the opportunity to comment on the agencies’ priorities. They provided questions and feedback as well.

Commenters questioned the lack of enforcement language within the goals from the Department of Environmental Quality, such as in the Lower Umatilla Basin Groundwater Management Area. This area, referred to as the “LUBGWMA,” experiences challenges with nitrate levels in domestic wells that are not connected to a community or municipal system. Commenters also questioned the scale of the projects to ensure the projects could be feasibly implemented in all communities.

Next Draft Coming in January, 2025

The agencies will publish the next draft for the IWRS in January 2025 which will include these priority areas. The public can submit comments to the draft IWRS. If you have interest in these projects or concerns, be sure to submit comments to the agencies for their consideration. After public review and comment, the agencies will present the draft to the Water Resources Commission in March 2025 for a workshop discussion. The agencies expect to provide the Final Draft of the IWRS to Water Resources Commission in late Spring 2025, with a hope of official adoption in June 2025.

On September 17th, 2024, the Oregon Water Resources Department (OWRD) implemented new groundwater rules that have sparked significant debate. While these rules aim to promote sustainable water use, they also raise several concerns that merit discussion.

Arbitrary Power and Political Influence

One of the primary criticisms of the new groundwater rules is that they grant the OWRD considerable discretionary power. The department can now deny groundwater permits based on criteria that some argue are too subjective and potentially influenced by the political climate at the time of filing. This level of control could lead to inconsistent decision-making, where permit approvals or denials hinge more on the prevailing political winds than on objective, scientific assessments.

New Groundwater Rules: Development by Unelected Officials

Another contentious point is that these rules were developed by unelected officials. The process involved various advisory committees and consultations, but ultimately, the decision-making power rested with individuals who are not directly accountable to the public. This has led to concerns about transparency and the democratic legitimacy of the rule-making process.

Influence of Powerful Non-Profit Organizations

The involvement of powerful non-profit organizations in shaping the new groundwater rules has also been a point of contention. Groups such as the Oregon Environmental Council and WaterWatch of Oregon played significant roles in the advisory process. While these organizations advocate for important environmental causes, their influence raises questions about whose interests are being prioritized. Critics argue that the rules may reflect the agendas of these groups more than the needs of all Oregonians.

Balancing Conservation and Agriculture

Water conservation is undeniably crucial, especially in the face of climate change and increasing water scarcity. However, the new groundwater rules must also consider the needs of Oregon’s robust agriculture industry. Agriculture is a vital part of the state’s economy, and overly restrictive water regulations could harm farmers and ranchers who rely on groundwater for irrigation and livestock.

Conclusion

While the new groundwater rules aim to address critical issues of sustainability and resource management, they also present several challenges. The potential for arbitrary decision-making, the influence of unelected officials and powerful non-profits, and the impact on the agriculture industry are all significant concerns that need to be addressed. Moving forward, it is essential to find a balanced approach that ensures water conservation while respecting the diverse needs of all Oregonians.

At Schroeder Law Offices, P.C., we can assist you in navigating the new and evermore complicated water laws in Oregon. Please contact us at (503) 281-4100 if you have any questions. Or for more about water rights in Oregon see this article.

Oregon Women for Agriculture hosts its Annual Auction and Dinner on April 20^th, 2024, at the Linn County Fairgrounds in Albany, Oregon. The theme for this year is “Bee for Agriculture.” Senior paralegal Tara Lomacz, a member of the Yamhill County chapter of OWA, helps organize the event and will attend once again on behalf of Schroeder Law.

Willamette Valley farm women organized OWA 50 years ago. These women were concerned with regulatory issues impacting the grass seed industry. Since then, this all-volunteer group has broadened its scope to include nearly all facets of agriculture and areas of the state of Oregon. OWA provides volunteers and fundraising for Oregon AgFest in Salem every year, reaching 20,000 people. Volunteers put together bus ads and radio spots in metropolitan areas to help citizens understand where their food is grown. Further, OWA provides support for teachers who participate in Summer Agriculture Institute at Oregon State University. It is through these projects and more that OWA can accomplish their mission of working together to communicate the story of today’s agriculture.

The OWA Annual Auction is the only fundraiser of the year. The event includes a silent auction, dinner, and oral auction beginning at 7:15pm. If you want more information on this event, then visit the event website here. Tara hopes to see you there!

You just purchased property with a pond, or a reservoir. Within the documents provided by the prior owner, you did not find a “typical” stored water right certificate or permit to store water. But you did find a water right of use that allowed storage water to be used for irrigation. Now, you fear the prior owner did not apply for a permit to store water with the Oregon Water Resources Department (“OWRD”). You do not like the current location of the pond or reservoir. You worry you cannot change anything about the pond or reservoir due to the missing water right of use or water right certificate.

This may not be the case, but to be sure, you must research stored water rights in Oregon.

Applications and Use

OWRD may allocate water for “beneficial use.” To receive an allocation, a person must apply to the OWRD. A person can apply for a right of use to store water but needs a secondary right to “use” the stored water. In other words, OWRD requires two permits, one to store and one to use. For example, water use permits only apply to uses for irrigation, nursey, or recreation, not storage.

In the early 1990s, the State allowed owners of reservoirs built prior to 1995 to apply for a reservoir to be “exempt” from OWRD’s “typical” water right application process for storage. If the owner followed the proper steps, the reservoir would be exempt but would not necessarily receive a standard “certificate” from OWRD. In other words, the owner wouldn’t be subject to penalties for storing water in the reservoir even though OWRD didn’t issue a water right certificate. If a person did not qualify for or complete these steps, they would need to apply for a “typical” stored water use permit.

Transfer Applications for Stored Water

In your research, you find out that you have an exempt reservoir. You are relieved to find out that you can legally store water on your property. However, you are still unhappy with the location of the reservoir.

Due to a recent Oregon Court of Appeals ruling, you will be able to change the location of your reservoir with a transfer application submitted and approved by OWRD. Since 2018, OWRD argued it did not have the authority to transfer, or relocate, any storage water right of use under state law. In Bridge Creek Ranch, LLC v. Oregon Water Resources Department, the Oregon Court of Appeals did not agree with OWRD’s interpretation. The Court determined that a primary right to store water and a secondary right to use the stored water are “inextricably linked”. Therefore, OWRD must accept transfer (change) applications for stored water uses that were issued certificates.

This clarification could allow you to hopefully transfer the location of your reservoir to a more convenient part of your property and allow you to begin perfecting your water rights.

Looking for something fun and educational to do this weekend? Why not check out the Oregon State Fair! This year’s fair runs through Monday, September 4th. The event boasts tasty snacks, a stacked lineup of musical guests, and events celebrating Oregon’s farm and agriculture community. This coming weekend marks the second and final weekend of the fair and is being held as usual on the Salem, Oregon Fairgrounds.

While you’re there, be sure to stop by the Oregon Women for Agriculture booth. Founded in 1969, Oregon Women for Agriculture educates the community on the importance of sustainable agriculture to the environment and economy.

Find event details on the Oregon State Fair website by clicking here: https://oregonstatefair.org/.

The Oregon Water Resources Department (“OWRD”) has stopped processing new groundwater applications and begun to severely limit groundwater permit extensions. This policy change places a significant burden on groundwater permittees and will directly impact agriculture in Oregon. Ultimately, OWRD’s policy change will significantly limit agricultural expansion in the state. 

In his article “Oregon Moves to Limit Groundwater Development,” Steve Shropshire cites “Draining Oregon,” the 2016 report published in The Oregonian, as the major catalyst for increased regulation. The Oregonian article covered groundwater issues in Oregon and argued that OWRD was over permitting the use of the state’s groundwater supply. Soon after The Oregonian article, OWRD updated their Integrated Water Resources Strategy to name groundwater as one of the biggest issues concerning Oregon’s water future.

Even though OWRD has not passed a rule, OWRD has ceased processing new groundwater applications and limited its issuance of groundwater permit extensions as a policy matter. OWRD has also limited the issuance of new groundwater rights in the Walla Walla, Harney, and Umatilla basins. These actions will pose a big change for agriculture in Oregon, as acquiring new groundwater rights will be much harder, if not impossible. To participate in the rule making process when that occurs, go to:  Water Resources Department: Proposed Rulemaking : Oregon Administrative Rules : State of Oregon

Stay informed on the latest groundwater issues, current events, and all things water by signing up for Schroeder Law Offices’ weekly email newsletter to the right.

[This article was originally published in the February, 2022 Oregon Real Estate and Land Use Digest by the Section on Real Estate and Land Use, Oregon State Bar]

In Oregon, water rights must be beneficially used according to their terms at least once every five years to remain in good standing. If they are not, water rights are subject to cancellation for forfeiture. ORS 540.610. Thus, Oregon’s forfeiture statute enacts the “use it or lose it” principle that is common in Prior Appropriation water system states. Water right holders must use their water rights or risk cancellation.

In the late 1980s, the Oregon State Legislature recognized instream beneficial uses for water, allowing the State to hold or lease water rights for instream purposes such as recreation, navigation, pollution abatement, and fish and wildlife. Under ORS 537.348, water right holders may temporarily lease water rights to the State for instream purposes for up to five years, renewing such instream leases thereafter. The statute provides that water rights leased instream are “considered a beneficial use.” ORS 537.348(2). As such, the forfeiture provisions of ORS 540.610 are not triggered during the period a water right holder leases their water right instream. Many water right holders use the instream lease program to safeguard their water rights in times when such water rights might not otherwise be used once every five years. The instream lease program serves dual purposes of providing instream flows while protecting private property interests in water use.

WaterWatch of Oregon v. Water Resources Department, 369 Or 71 (2021), questioned whether a hydroelectric water right could be leased instream and thereafter, once the lease(s) expired, be used again for hydroelectric or other beneficial uses of water. At issue in this case is a hydroelectric water right held by Warm Springs Hydro, LLC (“Warm Springs”). In 1995, Warm Springs’ predecessor shut down the associated hydroelectric project and began a series of instream leases from 1995 to 2020. WaterWatch of Oregon (“WaterWatch”) petitioned for judicial review of the Oregon Water Resources Department’s (“OWRD’s”) final order approving the 2015-2020 instream lease, and Warm Springs intervened.

In addition to the forfeiture provisions that are applicable to all water rights, ORS 543A.305 (enacted in 1997) applies specifically to hydroelectric water rights. The statute provides:

Five years after the use of water under a hydroelectric water right ceases, or upon expiration of a hydroelectric water right not otherwise extended or reauthorized, or at any time earlier with the written consent of the holder of the hydroelectric water right, up to the full amount of the water right associated with the hydroelectric project shall be converted to an in-stream water right, upon a finding by the Water Resources Director that the conversion will not result in injury to other existing water rights.

ORS 543A.305(3). Further, the statute specifies that the conversion to an instream water right “shall be maintained in perpetuity, in trust for the people of the State of Oregon.” ORS 543A.305(2).

Prior to this case, OWRD interpreted ORS 543A.305(3) similar to the forfeiture statute; that is, so long as a hydroelectric water right continues to be used for hydroelectric water use or another beneficial use under an instream lease, the hydroelectric water right is not subject to conversion to a permanent instream water right. WaterWatch challenged OWRD’s interpretation, arguing hydroelectric water rights are subject to conversion five years after the specific hydroelectric use of water ceases. The Marion County Circuit Court and the Oregon Court of Appeals both ruled in favor of OWRD and Warm Springs, but the Oregon Supreme Court reversed and remanded the decision on December 23, 2021.

The Oregon Supreme Court reviewed the text of the two statutes in conjunction with the context of the statutes and legislative history. The Court held “the use of water under a hydroelectric water right” means water use only for hydroelectric purposes as specified in the water right certificate, and does not include beneficial use under an instream lease. WaterWatch of Oregon, 369 Or at 88-89. The Court reasoned that once a hydroelectric water right is leased instream, the beneficial use is converted to another purpose other than hydroelectric water use. Id. at 91-94. The Court further held that “ceases” under the statute has an ordinary meaning, so Warm Springs’ water right was subject to conversion to an instream water right in the year 2000, five years after the hydroelectric project was shut down. Id. at 89-91.

The Oregon Supreme Court’s ruling will have significant impacts on hydroelectric water rights in the State. Most obviously, other hydroelectric water right holders in situations analogous to Warm Springs may face conversion of their hydroelectric water rights to permanent instream water rights. As such, property owners who believed they were appropriately safeguarding valuable water right holdings through instream leases may find themselves mistaken.

Another consequence of the Court’s decision is that instream leases over four years in length are essentially “off the table” for hydroelectric water rights. Hydroelectric water uses must resume within five years or risk conversion to permanent instream water rights. Thus, there is no incentive for hydroelectric water users to lease their water rights instream to avoid forfeiture, and, in the process, guarantee instream flows. Instead, the ruling incentivizes quick transfers to other, possibly more consumptive, water uses through the transfer process before the hydroelectric water right is converted to a permanent instream water right. ORS 543A.305(7).

Finally, conversion of appropriative water rights to instream water rights allows the State to enforce against upstream junior water users to ensure instream rights are satisfied. Conversion of large, early priority hydroelectric water rights to permanent instream purposes may have the outcome of increased regulation against other water right holders.  

The original article is available in PDF format here.

The Oregon Legislature’s short session officially begins today, February 1^st. It is anticipated that water users and water managers alike can catch their breaths somewhat during the short session, since not as many water-related bills will be considered.

The 2021 regular session was a marathon for those of us closely following or involved in water resources policy and law. In that session, efforts continued to correct the State’s questionable opinion that storage water rights cannot be modified through the transfer process. Only character of use transfers are reauthorized for the time being. Additionally, a threat to the due process rights of regulated water users was advanced. Only through great efforts was the attempt abated with some compromises of additional procedures around stays of agency orders during judicial review. Moreover, an onerous and costly water use reporting bill was proposed, despite information from the Oregon Water Resources Department that other types of data should be pursued, like additional stream gages and satellite data for evapotranspiration. The bill did not pass, but it did spur broader conversations about water management and planning that continue currently. Finally, the groundwater exemption for livestock came under attack, as proponents unsuccessfully attempted to limit the exemption to a daily maximum. In addition to these bills, many more were proposed, some of which were enacted into law.

In 2020, I began the position of Water Resources Chair for the Oregon Cattlemen’s Association. The 2021 Legislative Session was my first opportunity to participate in a large number of legislative bills on behalf of the organization. The experience certainly kept me on my toes and gave me an entirely new perspective of legislators and those who engage heavily in legislation. The bills are numerous, long, and ever-changing throughout the session. There is always too much work to be done in too little time to build consensus, draft written testimony, and testify in hearings. In 2021, we also tackled the additional hurdle of remote hearings on proposed bills due to the Covid-19 pandemic. This is to say that the 2021 legislative session was challenging, but also very exciting and rewarding. I was honored to receive an award from the Oregon Cattlemen’s Association in recognition of these efforts for “distinguished Committee leadership, responsibility, knowledge, expertise, advocacy, and tireless service to cattle producers and the Oregon Cattlemen’s Association.”

Short sessions of the Legislature in Oregon are not intended to address substantial changes in the law. Thus, it is not surprising that less water-related bills are anticipated this year. However, one priority that began receiving additional attention in 2021 is anticipated to continue at the forefront in 2022: water theft for illegal cannabis operations. Funding was provided in a special session in 2021, and numerous news articles detail the problem in the midst of the severe and continuing drought in Oregon and the West. House Bill 4061 (2022) would allow the Oregon Water Resources Department to obtain warrants to inspect private property. Additionally, the bill would require persons who both deliver water and receive water deliveries to ensure such water is from legal sources and keep records to that effect. Finally, the bill proposes to increase civil penalties for illegal water use when the crop grown is cannabis.

It is possible that additional water-related bills will be proposed in the 2022 regular session. For the time being, I will enjoy a little bit of a break on this front, being mindful that the 2023 regular session is just around the corner!  

(The below article is reproduced from the January, 2022 issue of Oregon Cattleman, the publication of the Oregon Cattlemen’s Association. For a PDF copy of the article, use this link.)

2021 was a terrible water year in Oregon. We experienced record high temperatures and record low precipitation, after several years of already below-average precipitation, little or no carryover water in reservoirs, historically dry soils, and severe wildfires. This year highlighted the need for additional water storage to increase water security during times of drought.

At the Oregon Cattlemen’s Association’s annual meeting, the Water Resources Committee voted to adopt a resolution promoting water infrastructure and storage to guide the organization’s priorities going forward, and the Board adopted the resolution. This policy will be especially important in coming years, as we face increasing roadblocks to achieving water storage and infrastructure goals. State water policies are oftentimes conflicting, recognizing the importance of creating additional storage, while at the same time promoting activities that foreclose opportunities for storage.

For example, Oregon’s Integrated Water Resources Strategy includes a “recommended action” to plan and prepare for drought resiliency. The Strategy also includes a “recommended action” to develop instream water protections. These two strategies are not necessarily opposed, however, when one strategy is actively pursued while the other falls by the wayside, the State’s actions do not balance both needs. Moreover, only so much water exists within water basins, and the creation of instream water rights takes that water “off the table” for purposes of increasing or creating water storage.

In 1987, the Oregon State Legislature passed the Instream Water Right Act allowing the State to convert minimum perennial instream flows to instream water rights, apply for new instream water rights, and lease or transfer existing water rights to instream uses such as recreation, pollution abatement, and fish and wildlife. Thus, instream water rights are not a new concept. However, the Oregon Department of Fish and Wildlife’s (ODFW’s) website details that the agency “re-established” its instream water rights filing program in 2016, “consistent with Oregon’s Integrated Water Resources Strategy.” Thus, we have seen in the last few years hundreds of applications for instream water rights filed by ODFW in different water basins throughout the State. ODFW’s policy stated in its administrative regulations is “to obtain an in-stream water right on every waterway exhibiting fish and wildlife values.” OAR 635-400-0005.

Unlike appropriative water rights, instream water rights are not constrained by the amount of water actually available to fulfill the instream water right. Rather, ODFW’s applications may request the amount of water ODFW determines is needed to support the fish and/or wildlife species. As such, ODFW applications regularly include requested rates that exceed available stream flows. Such applications, if approved, have the effect of precluding any new appropriative water use rights within or upstream from the stream reach designated in the application.

Moreover, once instream water rights are in place, existing water right holders lose the flexibility to transfer their points of diversion upstream. The instream water right holder (the State) must consent to the “injury” the transfer would cause. In exchange for its consent, the State typically requires mitigation by placing a portion of the transferred water rights instream. The 1987 Instream Water Right Act provided, “The establishment of an in-stream water right…shall not take away or impair any permitted, certificated or decreed right to any waters or to use of any waters vested prior to the date the in-stream water right is established…” ORS 537.334(2). In practice, however, existing water right holders lose the flexibility they might have otherwise enjoyed to modify their water rights as needed for their operations.

This is not to say that instream water rights have no place or value. The reason for outlining the increased emphasis on instream rights recently, and the effects such rights have on new and existing appropriative water rights, is to point out that we, as a State, are falling short on drought resiliency preparation efforts at the same time water resources are being irreversibly committed to instream purposes. In 2013, when the Legislature passed Senate Bill 839, establishing the Water Supply Development Fund, many hoped that the fund would be used to increase water storage throughout the State. As a whole, that fund has not created substantial new storage. The State must do better to carry forward all components of the Integrated Water Resources Strategy, including planning and preparation for drought resiliency through water storage and infrastructure improvements.

The Oregon Water Resources Department (OWRD) received a large funding package in the 2021 regular session of the Legislature. The Oregon Cattlemen’s Association joined a coalition letter to OWRD outlining recommended priorities for implementing that funding. The first priority in that letter is a request that OWRD renew its focus on increasing storage and improving disaster resiliency. Congress recently passed the Infrastructure Investment Jobs Act, and the letter further asks OWRD to develop a plan to leverage federal funds in support of these efforts.

In addition to government reprioritization and implementation of plans to prepare for droughts, individuals and groups from the agriculture community will need to lead the way and identify projects in their communities. It is possible that storage opportunities may be identified through place-based planning efforts in partnership with State agencies. Soil and water conservation districts and other local entities can also assist individuals to navigate the myriad of questions and processes involved. The Oregon Cattlemen’s Association will continue to advocate for legislation and government actions in furtherance of this goal, and assist members who are interested in exploring new or expanded water storage opportunities.

If you are interested, you might also check out Schroeder Law Offices’ free webinar about winter storage, available at: http://water-law.com/water-right-video-handbook-guide/.

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. 

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.

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

In some painful ways the COVID-19 pandemic has stripped us of our ability to celebrate with those we love. Arielle Zamora of Small Yard Flowers in the St. Johns neighborhood of Portland, OR has seen this unfortunate trend firsthand.

“The wedding industry is totally turned upside down and looks nothing like it used to,” Zamora said. “Other florists and myself have lost a majority of our 2020 wedding clients. 2021 is up in the air as well. There are less florists buying wholesale flowers from farmers, so overall there has been a huge decline in the industry.”

A staple of celebrations, the floral industry provides a service typically used in large scale gatherings of the type banned in many states since the pandemic began earlier this year. As a small business using drip irrigation to cultivate locally grown and organic flowers, this has been especially tough on Small Yard Flowers. Zamora has remained positive, however, and has had to get inventive to keep her business afloat.

“I’ve made direct connections with other florists who have shops,” Zamora said. “I am providing weekly deliveries so I’m able to supply them with flowers. Additionally I’ve opened my own web store for people to order flower deliveries directly from me and my farm: https://www.smallyardflowers.com/.”

The need for joyful celebration remains constant, even in this COVID-19 era, and we are grateful for businesses like Zamora who are still producing and creating in the midst of the pandemic. Though times have been tough, Zamora is looking forward to the future. “I am looking forward to when normal sized weddings can take place and there will be the high demand for quality flowers again,” Zamora said. “I’m also looking forward to reconnecting with friends and professionals in my industry.”

To see more spotlights of those in the agriculture industry, sign up to follow the Schroeder Law Offices, PC blog. 

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.

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

Todd Nash is a rancher, Wallowa County Commissioner, and President Elect for the Oregon Cattlemen’s Association. He and his wife, Angie, own Nash Natural Beef. They run primarily an angus cow-calf operation in eastern Oregon, also raising a few bulls. They raise high quality natural beef (no antibiotics or hormones) in Wallowa County. Their cattle is grain finished in a custom yard in Vale, Oregon. The majority of Nash’s cattle go through the feed yard before harvest. Then, they become part of Painted Hills Natural Beef for sale in restaurants and high-end supermarkets. This year, however, COVID-19 created a disruption in the meat distribution chain. This caused Nash to change their business model to focus on direct customer sales.

Disruption to the Meat Distribution Chain

The COVID-19 virus created a meat processing bottleneck. Some of the larger packing plants shut down or slowed down due to sick employees. Nash received information in early 2020 that he should try to sell cattle on his own due to this challenge. The concept of direct customer sales was not totally foreign to Nash. They had done something similar in 2008 during the economic recession. This year, they shared their plans to take whole and half beef orders on Facebook. They worked directly with three local processors: Boston Beef House in Ontario, Hines Meat Company in La Grande, and Valley Meat Service in Wallowa. Customers paid only $2.50 per pound hanging weight, as well as the butchering fees. Most of the other sales Nash saw were over $3.00 per pound. This allowed customers to buy Nash Natural Beef at very affordable prices.

Nash was humbled and overwhelmed by the enthusiastic response they received from customers both near and far. They sold out their entire fat cattle crop in May. The animals were harvested in June and July. Customers were able to pick up their beef directly from the nearest of the three processors, rather than delivering the beef as they had done in 2008. Customer reviews were also spectacular. Nash Natural Beef has always focused on genetics and DNA markers for tenderness and marbling. They take a lot of pride in the product they raise. It was very rewarding for Nash to have a direct connection with Nash Natural Beef’s customers and to share in their enjoyment of Nash’s high-quality beef.

A Growing Need for Small Processors

Nash says that 2020 has really highlighted our vulnerabilities from concentrating U.S. food systems, and the need for small processing facilities throughout Oregon. In general, livestock producers in Oregon must sell their meat using United States Department of Agriculture (“USDA”) inspected facilities. It is very expensive for small processors to become USDA certified and hire additional staff. Additionally, staffing can be difficult in the meat processing industry. This results in a lot of meat being processed in large, out-of-state facilities. An exception to this rule is called “custom-exempt” processing. This allows non-USDA, state-licensed facilities to slaughter and process livestock for the exclusive use of livestock owners, their family, and nonpaying guests. As such, persons can purchase live animals for processing at “custom-exempt” facilities. However, “custom-exempt” sales are usually limited to whole or half beef sales due to the need to purchase the live animal. This excludes the ability to buy and sell small quantities and specific cuts.

Nash gave an interview for the Oregon Cattlemen’s Association earlier this year on the topic of the PRIME Act (Processing Revival and Intrastate Meat Exemption Act). The Act, cosponsored by Oregon Congressman Greg Walden, would expand the exemption for state-licensed “custom-exempt” facilities. The Act would allow meat distribution to household consumers within the State, as well as restaurants, hotels, boarding houses, grocery stores, or other establishments in the State that are involved in the preparation of meals sold directly to consumers or offer meat and meat food product for sale directly to consumers in the State. Nash says that the PRIME Act would help keep beef produced in Oregon in the State. It would provide more economic opportunities for Oregon’s rural communities. And it would allow consumers to trace where their meat is being raised and processed. Nash has seen first-hand that customers really appreciate knowing how and where their meat is raised and having a direct connection with their rancher.

Better Days Ahead

Post-COVID, Nash is looking forward to a better market and higher cattle prices. He has worked through the challenges that have come with COVID-19, and is optimistic that better days are ahead. He thinks that Nash Natural Beef will continue doing direct customer sales in the future. They have already received orders for next year, and cattle will be ready in May or June of 2021. Contact Nash Natural Beef directly for more information! Additionally, the Oregon Cattlemen’s Association started a directory of members who are willing to sell beef cattle directly to customers.

When asked whether he enjoys being a rancher, Nash explains that if he did anything else, anywhere else, ranching in Wallowa County is what he would want to do on vacation. Nash enjoys the independence of raising his own cattle, and the comradery that is shared with other ranchers. There is always something to do every day and a reason to get out of bed. Although COVID-19 has been difficult, he is looking forward to having a closer relationship with customers going forward. He is hopeful that a fix to current federal laws will create more opportunities for small, local producers to provide Oregon residents with the wonderful beef that is raised in-State.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news and stories!

          The Slink Fire rages on in the Carson-Iceberg Wilderness Area. Meanwhile, pilots fly an imaginary line to drop water on wildfires according to wilderness laws and procedures. This raises the question, are wilderness firefighting laws protecting or harming wilderness areas?

Wilderness Firefighting Laws 

          Congress passed the Wilderness Act of 1964 to minimize human impacts and preserve wilderness.  For example, the act limits and/or prohibits motorized vehicles in wilderness. See 16 U.S.C. 1131(a).  Additionally, it requires minimized human impacts from firefighting . One exception is the use of aircraft.  Aircraft may be used as necessary to control fire. P.L. 88-577 § 4(d)(1). However, the act applies conditions even to this use. Id. 

            Later wilderness laws echoed protective policies. The Endangered American Wilderness Act of 1978 directed the Secretaries of Interior and Agriculture to implement fire prevention and watershed protection. See P.L. 95-237 §§ 2(c)-(d).  The Secretaries were required to create special fire suppression measures and techniques. Id. The California Wilderness Act of 1984 included similar language. The Act created the Carson-Iceberg Wilderness and extended firefighting restrictions to it. See P.L. 98-425 § 103(b)(2). 

Firefighting Restrictions in Practice

How are these provisions applied in practice?  In the Carson-Iceberg Wilderness Area, impacts are minimized by restricting the place of water use. Firefighters must take water and use it in the same watershed.  In smaller wilderness areas, these restrictions are moot.  However, in the Carson-Iceberg, unique challenges are presented to firefighting crews. 

            As of Thursday, September 10, 2020, the Slink Fire raged over 22,474 acres.[1] The fire spanned across three watersheds: the Carson Watershed, the Silver King Watershed, and the Walker Watershed.  Don Zirbel, of the Clackamas Fire District, provided a community update. He noted that fire crews are struggling with restrictions for “crossing lines” during aerial water drops. These restrictions require pilots to take water from a watershed and drop it on fire only within the same watershed.  He also noted that multiple water “dip” cites were located within each of the three watersheds, so these restrictions did not hamper ground crews or helicopters from accessing and using the needed water. This is not always the case. 

            Regardless, the update started a heated public debate on whether wilderness firefighitng laws are hindering or helping the integrity of wilderness. With a fire season for the record books, the federal agencies managing these wilderness areas will likely face these same questions. 

[1] https://inciweb.nwcg.gov/incident/7105/ (last visited 9/10/2020)

(Photo Credit: https://inciweb.nwcg.gov/incident/7105/, and Don Zirbel, Clackamas Fire District)