Every year the Oregon Water Resources Department (“OWRD”) allows 15 districts to change their place of use without going through a long Transfer Application process. This process, called the Irrigation District Pilot Project, allows one transfer application for every irrigation season. The Project started in 2003 and the Oregon State Legislature has extended it several times. Currently is set to sunset or end on January 2, 2022, and the most recent extension was in 2015 through the SB 267 bill. 

Through this program irrigation districts are able to change their place of use within their legal boundary only. A simple process for providing transfers in place of use can allow irrigation districts to better serve their users based on the best availability. 

Below is a list of the Districts who are a part of the Pilot Project for this 2020 season: 

1. Owyhee Irrigation District
2. Tualatin Valley Irrigation District
3. West Extension Irrigation District
4. Westland Irrigation District
5. Stanfield Irrigation District
6. Hermiston Irrigation District
7. Talent Irrigation District
8. Rogue River Valley Irrigation District
9. Arnold Irrigation District
10. Central Oregon Irrigation District
11. North Unit Irrigation District
12. Ochoco Irrigation District
13. Sutherlin Water Control District

If any Districts is unable or does not need to participate in the program, another District may take their place. Districts are identified by OWRD, who then post their information and Watermaster contact information in their public notice, per SB 267 requirement. For more information on types of Water Right Transfer Applications available to irrigation districts visit OWRD’s website regarding district transfers. 

To learn more about all things water browse our Schroeder Law Offices blog! 

Oregon dairy farmers produce great milk products for the northwest! Jakob Wiley attended the Oregon Dairy Farmers Association (“ODFA”) conference in Salem, Oregon this February. The conference included a fascinating keynote presentation by Alison Van Eenennaam of UC Davis. Her presentation addressed the intersection of climate change, dairy products, and cultured meat. Cultured meat is difficult to manufacture at any commercial scale. Her conclusion: cultured meat won’t be available anytime soon. 

Additionally, other topics at the Oregon Dairy Farmers conference included the carbon footprint of dairy products and the looming carbon cap and trade bill, resulting in the flight of Republican lawmakers just before and during the conference. A presentation by Troy Downing at the OSU Extension Service discussed the carbon cycle and its effects on climate. Likewise, David Grimes of the World Meteorological Organization discussed increasing variability in climate. Later, attendees mingled during the receptions with ODFA leadership, other dairy farmers, local businesses, and state lawmakers (at least those still in town!).

At least 200 multi-generational dairy farms provide milk products to Oregon consumers. All of these dairy farms have a “Grade A” license. These licenses allow production, transportation, and processing of milk for sale. You can find more information about dairy licenses here.

Later, attendees tried new products from local dairy companies, sampled ice cream, and visited with local vendors. You can find more information about the Oregon Dairy Farmers conference here. Jakob continues to support ODFA members and assist with their water right problems!

Associate Attorney Jakob Wiley recently co-authored an article titled “Groundwater Management: The Movement Toward Local, Community-Based, Voluntary Programs” in the Kansas Journal of Law and Public Policy (Volume 29, Issue 1) available for download here. Jakob’s contribution provided the western United States’ examples and perspectives for the paper. The paper is a product of a panel discussion at the American Water Resources Association’s 2016 conference in Orlando, Florida presented by the authors.

The article investigates a general trend in groundwater management towards bottom-up, basin-scale, voluntary organizations. This trend contrasts with the traditional top-down, regulatory approach to manage groundwater depletion. The paper analyzes the “voluntariness” of several case studies across the United States, including Kansas’s “Local Enhanced Management Areas” (or LEMAs), the Texas’s Edwards Aquifer Authority, and innovative uses of intergovernmental agreements and water districts in Oregon, California, and Colorado.

Co-author John Peck is a recently retired Connell Teaching Professor of Law Emeritus at the University of Kansas School of Law. Rick Illgner is a retired Groundwater Resources Specialist, working in Kansas and Texas. Constance Owen was formally an administrative law judge for the Division of Water Resources for the Kansas Department of Agriculture, but recently was appointed by the Kansas Senate as Chairperson of the Kansas Water Authority.

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

Oregon State University’s Family Business 360 Series for 2019-2020 will feature Laura Schroeder in a webinar on February 20, 2020. The webinar will have two parts. 

The first is an introduction to water rights drawing on Laura’s nearly 30 years’ experience as an Oregon water lawyer.

The second part addresses Due Diligence for Sellers and Buyers. This second part includes researching water rights associated with a property; assessing current use and status of water rights; and identifying related water rights.

You can watch this fast paced webinar at noon on Thursday, February 20, 2020. It is free to watch and open to the public. To watch it you must sign up here to receive a link to the presentation. Just scroll down to the February 20 webinar here, click the link and fill out the form. After you sign up the program manager will send your link to the webinar via email during the week of February 17.

            The Oregon Water Resources Department (“OWRD”) does not use a single definition of an aquifer. Instead, it uses different applications of the word depending on the context. Scientifically, there is a generally accepted definition (which we discussed here: https://www.water-law.com/who-owns-an-aquifer/): “body of permeable rock which can contain or transmit groundwater.”^[1] Depending on the location, context, and situation, OWRD and other state agencies might use a different definitions for “aquifer.” Each of these definitions have their own features, potentially leading to different interpretations.

OWRD’s General Definition

            OWRD generally defines an aquifer under Oregon Administrative Regulation (“OAR”) 690-200-0050(9) as “a geologic formation, group of formations, or part of a formation that contains saturated and permeable material capable of transmitting water in sufficient quantity to supply wells or springs and that contains water that is similar throughout in characteristics such as potentiometric head, chemistry, and temperature (see Figure 200-2 [above]).” Potentiometric “head” is akin to the pressure of the water at a given location.

            Compared to the scientific definition outlined above, OWRD restricts aquifers to those with similar potentiometric head, chemistry, and temperature. Aquifer characteristics can vary from location to location while still being within the same hydraulically connected system, called “anisotropic” or heterogeneous conditions. Permeability, water quality, and temperature can vary within an aquifer under the scientific definition above, but OWRD’s general definition does not allow for anisotropic conditions in a single aquifer.

“Aquifers” in the Upper Klamath Basin

            Another definition of “aquifer” is located in the newly adopted rules in OAR Chapter 690, Division 25. These rules are restricted to the Upper Klamath Basin and supplant the Division 9 rules during 2019 and 2020 only. Under these rules, “groundwater reservoir” or “aquifer” is defined as “a body of groundwater having boundaries which may be ascertained or reasonably inferred that yields quantities of water to wells or surface water sufficient for appropriation under an existing right of record.” OAR 690-025-0020(4).

            This definition merges the groundwater (the contents) with the aquifer (the container). Interestingly, this definition restricts the “aquifer” to areas that produce water “under an existing right of record.” This definition combines physical aspects, legal rights, and geographic components into a single non-scientific definition.

“Hydraulic Connection” under Divisions 9 & 25

            Oregon Revised Statute Chapter 690 Division 9 regulates conjunctive management of surface water and groundwater throughout the State. The regulations prescribe when new groundwater appropriations may be allowed, and when existing groundwater use rights must be regulated off in times of shortage when a senior surface water call is made. The Division 25 rules supplant the portion of Division 9 for the Upper Klamath Basin related to regulation of existing groundwater use rights.

          Under the Division 9 regulations, “hydraulic connection” means “water can move between a surface water source and an adjacent aquifer.” Under the Division 25 rules specific to the Upper Klamath Basin, however, “hydraulically connected” means “water can move between or among groundwater reservoirs and surface water.” Further, OWRD applies these differing definitions exactly the same, regulating down to deep, confined aquifers under Division 9 that are not “adjacent” to the surface water source, much as one would imagine OWRD doing under the more broad Division 25 definition that talks about water movement between various groundwater reservoirs.

Well Construction & Commingling Rules

            Another version of “aquifer” is found in OWRD’s well construction rules. OAR 690-200-0050(9) defines “aquifer” as a “geologic formation, group of formations, or part of a formation that contains saturated and permeable material capable of transmitting water in sufficient quantity to supply wells or springs and that contains water that is similar throughout in characteristics such as potentiometric head, chemistry, and temperature.”

           Under OAR 690-200-0043, a water supply well cannot be “constructed in a manner that allows commingling or leakage of groundwater by gravity flow or artesian pressure from one aquifer to another.” OWRD interprets its rules to prohibit comingling of groundwater between aquifers even when no water is currently present at the location of an alleged aquifer. Such is the case when a well is deepened due to the original water bearing zone no longer producing water. OAR 690-215-0045(4) prohibits the deepening of a well in such a way that will “result in commingling of aquifers.” OWRD interprets this rule to require sealing off the now-dry layers from the deeper water-bearing layers. Here, OWRD’s interpretation of an aquifer addresses the potential for commingling of groundwater, not actual commingling. In this case, the term “aquifer” refers to groundwater potentially, but not actually, present in a former water-bearing zone.

            When a well is constructed, the well driller submits a report called a “well log” to OWRD. These logs show the various types of soils and water bearing layers found during the course of the drilling. OWRD does not require well drillers to be certified geologists, so these descriptions are often informal and not scientifically reviewed. Well logs typically do not include potentiometric head, chemistry, or temperature information for each water-bearing zone encountered in a well. Thus, whether a water-bearing zone constitutes a distinct aquifer is a challenging question when only reviewing a well log without the scientific information required in the definition above.

            OWRD does not typically review well logs unless an issue arises. A bill introduced in this legislative session, H.B. 2331 A (2019), would have required OWRD to review well logs when received by the agency: https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB2331. However, this bill remained in committee and was not adopted. Therefore, OWRD continues at the present time to review well logs inconsistently and sometimes not until decades after well completion, and it can sometimes be challenging for drillers to identify separate aquifers for the purpose of meeting well drilling standards due to OWRD’s differing and numerous aquifer definitions.

DEQ Rules

          To compare with OWRD, the Department of Environmental Quality’s (“DEQ’s”) rules, defines aquifer as “an underground zone holding water that is capable of yielding a significant amount of water to a well or spring.” OAR 340-044-0005(2). This definition is the most similar to the scientific definition above, without the restriction to a certain characteristic (like water quality) or legal status (like status of water rights or ascertainable boundary).

Conclusion

            The definitions for “aquifer” used by OWRD and DEQ deviate from the generally accepted scientific definition. Under the scientific definition, the permeable rocks define the extent of the aquifer (even if no water is present at the time). Under both OWRD and DEQ definitions, the water-filled-portion of the aquifer determines its extent, rather than the permeable rock “container” for the groundwater. Further, OWRD’s definitions add other characteristics, like potentiometric pressure, chemical, temperature, ability to determine a boundary, location in proximity to surface water, or legal right to the basic scientific term, though it is questionable whether OWRD gives due regard to these additional elements, and OWRD usually regulates groundwater in the most restrictive manner regardless of the applicable definitions in each context. As groundwater management controversies continue, the differences between these definitions may (and should) come under additional scrutiny.

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

[1] Oxford Online Dictionary, https://www.lexico.com/definition/aquifer

More and more in Oregon, hopeful groundwater use applicants are finding that proposed uses of groundwater are denied by the Oregon Water Resources Department due to the agency’s finding of hydraulic connection with surface water sources and the potential for groundwater use to cause substantial interference with existing surface water rights. When the agency makes such findings, the Department looks at whether surface water is available to support the proposed new groundwater use, and, in most cases, it is not – either the administrative basin rules prohibit the new use, or surface water availability data shows that surface water is not available. In short, the proposed groundwater source is too connected to surface water for the agency to approve the application.

But an enigma exists in Oregon water law where the same source of groundwater is not connected enough to surface water to allow a surface-water-to-groundwater transfer. Transfers allow water right holders to change the terms of their water use rights. In some cases, surface water right holders may wish to change their surface water points of diversion to groundwater wells. That type of change is authorized under Oregon law, but the administrative rules impose certain distance and connectivity requirements. First, the well cannot be more than 500 feet from the authorized point of diversion, or else a geology report must accompany the application to attest to the connection between the sources of water. Second, the proposed groundwater use must affect the surface water source “similarly,” meaning the use of groundwater would result in stream depletion of at least 50 percent of the rate of appropriations within 10 days of pumping. The Oregon Water Resources Departments uses stream depletion modeling to determine if this factor is met.

It is often difficult for water users to predict whether their proposed use of groundwater will affect the surface water source similarly, especially because the Oregon Water Resources Department is far from consistent when it comes to its application of various models. However, in our experience, certain factors heavily affect the outcome of surface-water-to-groundwater transfers. For example, is the well existing or proposed? If the well is existing, the source aquifer for the groundwater use is certain, whereas the Department may make assumptions related to proposed wells. Applicants often do not include a certain depth figure for a proposed well in their transfer application because their well driller will need to make that determination during the drilling process. If the majority of the wells in the area of the proposed well are drilled into a confined aquifer, the Department is likely to assume that the proposed well will be similarly constructed in order to be productive, and may deny the application on the basis that the source of groundwater pumped from the proposed well will not be connected enough to the surface water source. Thus, the proposed source of groundwater should be unconfined, and the proposed well should be drilled extremely close to the authorized point of diversion to allow the applicant the best chance of success.

All too often, we talk to water users who were advised by other consultants that surface-water-to-groundwater transfers are automatically approved so long as the proposed well will be within 500 feet of the authorized surface water point of diversion. That is not the case! It can be difficult to get the Oregon Water Resources Department’s approval on these types of transfers, and therefore it is very important to understand the factors that affect the agency’s decision and the water user’s options.

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

The adoption of efficient water technologies is identified as a goal under Oregon Water Resources Department’s (“OWRD”) 2017 Integrated Water Resources Strategy (https://www.oregon.gov/OWRD/programs/Planning/IWRS/Pages/default.aspx). For agricultural uses, weather-based irrigation, soil moisture controls, computer controlled irrigation, and piping and drip irrigation systems are being developed to substantially reduce the amount of water applied to land for the same use. At first glance, the adoption of efficient irrigation technology appears to be a “no-brainer” with few downsides. However, the problem can be more complex than it first appears.

A core tenant of prior appropriation is the prevention of “injury” to existing water rights by reducing water available to fulfill existing rights of use. A component of a water right is the “consumptive use” or the amount of water for which the water user loses control usually from a described place of use or otherwise does not return to the source, the excess becomes available for subsequent use. Efficient irrigation technology alters irrigation’s consumptive use and runoff, sometimes reducing the water available to other water users that were benefitting from the “waste” created by inefficient irrigation techniques.

Often, inefficient irrigation seeps into shallow aquifers, sometimes contributing to surface streams days, months, or years later as return flow. Oregon’s conjunctive management rules have attempted to jointly regulate surface and groundwater sources, as described by Oregon Administrative Rules, Chapter 690, Division 9, yet these rules do not directly account for the effects of irrigation seepage on return flows. By encouraging efficient irrigation technologies, OWRD’s strategic planning might inadvertently cause injury to downstream water users that benefit from the increased return flow due to current irrigation techniques.

The United States Supreme Court (“Court”) addressed this issue in the case Montana v. Wyoming. 563 U.S. 368 (2011). The Yellowstone Compact distributes water of the Yellowstone River, which flows north from Wyoming into Montana. Water users in Wyoming adopted the use of more efficient sprinkler irrigation systems. The sprinklers increased the consumptive use portion of the water withdrawn compared to the earlier flood irrigation where a portion of the excess seeped into the ground. Montana alleged that the switch in technologies reduced seepage and runoff by 25% in some locations while still diverting the same quantity of water. In short, Montana lost access to water due to the increase in “efficiency” by Wyoming water users.

The Court decided that the switch did not cause injury to Montana water users, since these states appeared to only apply these rules to changes in “place of diversion, place or purpose of use” and not to changes in “crop changes or day-to-day irrigation adjustments or repairs.” The Court reasoned that a switch to efficient irrigation was more like an adjustment or repair than a change that would prompt the injury analysis. Likewise, the Court reasoned that the transition to sprinklers was akin to recapture doctrines under Wyoming and Montana, which allow water users to reuse water still remaining on their land after initial use. The Court reasoned that sprinklers are a form of efficient reuse of water rather than a fundamental change in water use supporting injury. The Court decided that Wyoming water users did not violate the Yellowstone Compact by using efficient irrigation technologies, even when significantly less water flowed to Montana.

The United States Government Accountability Office has recently released a report on irrigation technologies and their effects on return flows: https://www.gao.gov/products/GAO-20-128SP?utm_campaign=usgao_email&utm_content=daybook&utm_medium=email&utm_source=govdelivery#summary. The report notes that efficient irrigation can expand the area of irrigation, enabling more production, using the same volume of water. At the same time, the report identifies that return flows might be significantly reduced and might diminish water availability for downstream users.

The key issue to consider is if water that seeps into an aquifer is considered a part of the consumptive use or whether it is returned to a source for further use. If consumption only includes the volume of water used by plants, other water users might have a right to the runoff from inefficient irrigation practices (which fits more with Oregon’s conjunctive management policies). If consumption is any water placed on the land without regard to the destination of the water applied, any reduction in return flow might not be considered an injury. As efficient irrigation practices are increasingly adopted, the dark side of decreased runoff might rise as a real issue in the future!

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

Schroeder Law Offices does everything water, including educating others on the basics of water law, resource planning and water rights.

Recently at an educational one day “Boot Camp,” attorney Laura Schroeder covered an expansive list of water related topics for registrants from the Yamhill Soil and Water Conservation District. The class was tailored specifically to the audience’s questions and each attendee walked away with a gift certificate for a personal, free hour of consultation on water rights from Schroeder Law Offices, as well as wealth of new information.

Upcoming Water Rights Boot camps include this week with the Tualatin Soil and Water Conservation District on Thursday, November 21^st. A link to the event can be found here. 

Unable to attend this event but wanting to know more? Click here to learn about the presentation topics our office provides and how you can schedule and public or private presentation with one of our attorneys.

Starting September 29, 2019, natural gas providers in Oregon will have a new, renewable way of powering their customers’ homes. Governor Kate Brown executed a new law at the end of July, 2019 allowing capture, treatment, and conversion of methane found in wastewater into renewable natural gas (“RNG” or “biogas”), which can then be used to provide power to homes using existing infrastructure.

While converting wastewater to RNG is more expensive than fracking, biogas burns more cleanly than traditionally-obtained natural gas and provides environmental and health benefits by significantly reducing carbon emissions. Additionally, the law requires utility companies to “deliver service as cheaply as possible,” a contingency aimed at preventing a steep increase in price to the consumer.

Lane County, Oregon will begin construction of facilities to produce RNG next year. The biogas will then be sold to public utilities for distribution to their customers as early as 2021. Originally, Lane County planned to use the biogas as an alternative source of fuel for vehicles. Now, the practical potential to use biogas as a renewable resource has expanded.

With the passage of this law, biogas can be used to power homes and businesses. However, RNG has long been used throughout the State of Oregon as a source of renewable energy.

Since 1986, the Columbia Boulevard Wastewater Treatment Plant in Portland, Oregon has used biogas produced and captured at the plant to heat the plant itself, along with a nearby industrial roofing facility. Portland is also developing facilities to convert methane to biogas for use as an alternate source of fuel for diesel engine vehicles. The fuel will be sold to the public and used for City vehicles. Production is expected to begin in early 2020.

Threemile Canyon Farms near Boardman, Oregon started converting cow manure into electricity in 2009, and has expanded its facilities multiple times in the past decade. Currently, the dairy is the largest manure digester in the western United States. In 2017, it announced its plan to begin converting wastewater into RNG. In April, 2019, the Department of Environmental Quality approved Threemile’s application for a modified air quality permit, allowing it to move forward with the project.

The Durham Water Resource Recovery Facility in Washington County, Oregon repurposes wastewater in a variety of ways. The facility has captured phosphorus in wastewater and converted it to fertilizer since 2009. The fertilizer is then sold commercially around the Pacific Northwest. Since 2016, it has also converted wastewater and food grease into electricity that provides 60% of the plant’s power.

In these ways, Oregonians have been meeting Clean Water Act and Clean Air Act requirements through innovations that also provide additional revenue streams. We are excited to continue watching these industries move forward and spread to larger applications.

Stay tuned to Schroeder Law Offices’ blog for updates on these and other projects!

Reports of a broken barge lock at the Bonneville Dam on the Columbia River surfaced on September 9th. The crack was discovered last week and crews began working Monday morning on repairs. The cause of the damage is unknown. To begin the repairs, the crews must first demolish the cracked concrete section. It remains unclear, however, when the repairs will be complete.

Navigation locks allow barges to pass through the concrete dams that were built across the Columbia and Snake Rivers to generate hydroelectricity for the West. A boat will enter the lock which is then sealed. The water is then lowered or raised inside the lock to match the level of the river on the other side of the dam. When the levels match, the lock is then opened and the boat exits.

The concrete that needs to be repaired acts as the seal for the lock. The damage to the concrete at the Bonneville Dam resulted in significant leaking—enough that water levels were falling when the lock was in operation. Thus, immediate repair was necessary.

The Columbia River is a major shipping highway and the shutdown means barges cannot transport millions of tons of wheat, wood, and other goods from the inland Pacific Northwest to other markets.

Eight million tons of cargo travel inland on the Columbia and Snake rivers each year. Kristin Meira, the executive director of the Pacific Northwest Waterways Association said that 53% of U.S. wheat exports were transported on the Columbia River in 2017.

According to the U.S. Army Corps of Engineers, about $2 billion in commercial cargo travels the system annually, and it is the top export gate in the U.S. for wheat and barley and the number two export gate for corn.

This shutdown comes as terrible news for farmers in inland Oregon, Washington, and Idaho trying to ship their wheat out. Rob Rich, vice president of marine services for Shaver Transportation, said that farmers truck their wheat to 27 inland grain elevators where it is loaded onto barges headed to the Pacific Ocean. He also stated that rail and trucking are not reliable alternatives.

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

Beginning Tuesday, September 3, Schroeder Law Offices, P.C., resumes regular office hours:

Monday through Friday
8:00 am – 5:00 p.m.

Schroeder Law will be closed, Monday, September 2, to observe Labor Day.

This summer we experimented with a nine day rotation, Monday through the next Thursday, 7:30 am – 5:30 pm. The tenth day, every other Friday, either the Reno or Portland office was closed covering work for the other office alternatively.

In an emergency, please phone or email your attorney directly. Our goal is to return your call or email within 24 hours.

For the past decade, Schroeder Law Offices has provided opportunities to law students interested in learning water and natural resource law. Former SLO law clerks have established successful legal practices across the Pacific Northwest and beyond.

Schroeder Law Offices is pleased to introduce our 2019 summer law clerk, Katie Jourdan. Katie is returning to work with the attorneys and staff after having clerked previously with SLO during the fall of 2018.

Katie is entering her last year of law school at Lewis and Clark Law School, where she will complete her Juris Doctorate in May of 2020. With an emphasis on Natural Resource and Land Use Law, Ms. Jourdan has experience researching and analyzing water rights issues. Previously, Katie worked with the Western Resource Legal Center on land use and agriculture issues. She also interned with the Washington Cattlemen’s Association where she conducted research on recent land use legislation. 

Katie holds a Bachelor of Science in Environmental Studies and Journalism from Gonzaga University, where her enthusiasm for natural resources has paved her way to law school. Her background in agriculture and small farm life further nurtures an empathy for water users and the issues that rural America faces.

This summer, Katie is putting to good use her time spent in the classroom and exercising her proficiency in legal research. She is working with the attorneys and staff at Schroeder on client cases, educational presentations, and litigation preparation. In the fall, Katie will begin her final year at Lewis and Clark.

Schroeder Law Offices is pleased to announce that Attorney/Partner Sarah Liljefelt accepted the position of Water Resources Committee Chair for the Oregon Cattlemen’s Association, beginning in the coming year. Sarah has been a member of the Oregon Cattlemen’s Association for many years, and has been very active with the Oregon CattleWomen as Vice President and Legislative Committee Chair. She is excited to use her Oregon water resources knowledge to support and defend the Oregon Cattlemen’s Association’s water interests in the years to come.

Sarah’s new position was announced earlier this week when she presented at the Oregon Cattlemen’s Association’s Mid-Year Conference in Canyonville, Oregon. Sarah provided an update on the Klamath River Basin Adjudication and conjunctive surface water/groundwater management in the Klamath Basin. Some of the other highlights from the conference included an update of Western Resources Legal Center’s recent victories by Executive Director Caroline Lobdell (Sarah is a former WRLC law clerk), and a trip to Melrose Vineyards (https://www.melrosevineyards.com/) with the Oregon Cattlewomen – beautiful location, friendly staff, and great food and wine!

The year 2019 marks the 50th anniversary of the Willamette Valley Project, a tumultuous time in the history of the project. These dams are operated by the United States Army Corp of Engineers’ (“Corp”) Portland District, which utilizes 13 dams to prevent flooding and provide water storage for various water users and aquatic species in Western Oregon. (https://www.nwp.usace.army.mil/Locations/Willamette-Valley/) Since their construction, flooding like that seen in the Christmas Flood of 1964 has been rare. This April, the Willamette Valley saw substantial flooding as an “atmospheric river” overwhelmed the capacity of the dams, forcing the Corp release water at historic rates to prevent overtopping of the dams. (https://www.statesmanjournal.com/story/news/2019/04/07/oregon-flooding-willamette-river-santiam-river-eugene-salem/3393877002/). As these dams were created specifically to prevent flooding, what went wrong?

The various interests in water stored in these dams leads to considerable controversy over how to operate the Willamette Valley Project dams. Combined, these dams hold 1.6 million acre-feet in the summer months for various uses including municipal, irrigation, and hydropower. The controversy in operations relates to these uses. For example, storing additional water in the dams benefits electricity production and recreational boating uses (requiring high lake levels), but harms aquatic species and irrigators. Releasing the stored water during the summer reduces electricity production and leaves little for migrating salmon in the fall, but provides irrigation for many Willamette Valley farms. The Corp is left to balance these competing interests for the use of “conservation storage” (the water stored for use in the summer months).

Recently, the Corp considered reallocating water between theses interests, which focuses primarily on how to use the water stored in the summer months. We have discussed this potential reallocation here: https://www.water-law.com/study-willamette-valley-project-reallocation/. The allocations of uses between these interests has not been reconsidered since the original construction of the dams. (The Capital Press recently covered the discussion here: https://bit.ly/2IyzCfr). While the reallocation will determine how stored water is used, the dam regulation curves determine when the dams are emptied and space is made for flood mitigation.

Flood control is another “interest” competing for the Corp’s attention and a reservior’s capacity. In the winter, these dams are emptied to allow the space to be used to absorb the brunt of storms. In the spring, the dams are gradually refilled up to their maximum operating capacity during the summer, for use for power and water storage. The image to the right depicts the regulation curve for the Cougar Reservoir, which stores water from the South Fork of the McKenzie River. The Corp developed the operating curve for the Cougar Reservoir in 1964, located in the Cougar Reservoir Regulation Manual. (https://bit.ly/2PtpANm). Each dam has its own manual, determining how and when water is released from the reservoir. While the allocation determines how stored water is used, the “conservation storage” hump determines when, how much, and for how long the dams are filled.

This year’s atmospheric river struck on April 7-8, 2019, just as these dams were being filled for use as summer storage. While not at “max conservation pool” level (occurring around May 1), the dams were approaching their upper limits. Cougar Reservoir, for example, was at around 494 meters (1620 feet) before the storm and according to its operating curve, the reservoir should have been around 500 meters (1640 feet) (seen in the graph to the right, reservoir levels are measured by elevation to sea level, not depth). After April 12, 2019, the South Fork of the Willamette River discharged between 3,000 and 5,000 cubic feet per second (“cfs”) compared to its typical average of about 400-800 cfs at this time. (https://on.doi.gov/2Izcf5n). By April 13, 2019, Cougar Reservoir levels had shot up to nearly 515 meters (1690 feet), the maximum summer flood control level shown in the regulation curve above, several weeks early. By releasing record volumes of water from these dams, and using up any remaining storage capacity still available, the Corp prevented overtopping of the dams at the cost of downstream riparian landowners.

Water releases over this period prevented an overflow, but opens the question of whether more flood control space may be required for spring storms in the future. When the reservoirs are full late in the season, the Corp has little choice but to open the gates, flooding downstream homes, farms, and cities. Calls for changing the Corp’s dam regulation curves may also come alongside the calls to reallocate stored water, adding even more controversy for the Willamette Valley Project near its 50^th birthday.

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

At the 41^st Oregon Association of Water Utilities (OAWU) Annual Management and Technical Conference, Attorney Laura Schroeder was presented with the “Friend of Rural Water” award on March 6, 2019. To win this award, the individual must constantly “go above and beyond the call of duty” OAWU recognizes “a friend” as one who represents OAWU through “their work ethic, integrity, leadership and the servant attitude that they regularly demonstrate.”  Laura was quite surprised and honored to receive this award from OAWU where it is proudly displayed at Schroeder Law Offices, PC’s Portland, Oregon office.

            The Oregon Water Resources Department (“OWRD”) will present proposed temporary rules to the Water Resource Commission that would place a temporary hold on Upper Klamath Basin well regulation for two years, during which time OWRD would only regulate off wells within 500 feet of surface water sources in response to validated calls for water. Since the administrative phase of the Klamath Basin Adjudication concluded in 2013, groundwater users have challenged OWRD’s application of Oregon’s conjunctive management rules to wells in the Klamath Basin. The deluge of litigation has cost the OWRD millions of dollars and does not appear to have an end in sight.

            OWRD may be offering a temporary truce to groundwater users while the agency reviews and determines a “longer term approach” to water management in the Klamath Basin. The temporary rules, expected to go into effect in April, would remain in effect until March 1, 2021. The proposed rules would eliminate the rules adopted in preparation for the defunct Upper Klamath Basin Comprehensive Agreement (“UKBCA”), and replace them with deceptively simple rules for regulating calls for water. The Upper Klamath Basin has been regulated under original Division 25 and Division 9 rules since 2013, and the proposed temporary rules propose a third regulatory regime in under a decade, with a fourth to be revealed in two-years time. If no new rules are adopted by March 1, 2021, regulation would revert to the conjunctive management rules under OAR Division 9. The proposed rulemaking is available at the following link: https://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice&notice_item_id=8113.

            Under the prior appropriation doctrine, when a water user makes a call for water, OWRD’s watermasters investigate to validate the call. Junior water users may be ordered to shut off water use to allow senior water users to receive their full delivery of water. Oregon’s conjunctive management rules are designed to allow regulation of hydraulically connected surface water and groundwater as a single source of water. Oregon’s conjunctive management rules have historically been found in OWRD’s Division 9 rules (Oregon Administrative Rules Chapter 690 Division 9). However, a portion of the Division 9 rules were superseded by original Division 25 when those rules were in effect.

            The Division 9 rules require, under certain conditions, that water use rights appropriating water from groundwater sources be regulated in priority with surface water use rights when a valid, senior “call” is made. Unless the well drawing from an unconfined aquifer is within one-quarter mile of a surface water stream, OWRD must find that the source of water appropriated by the well is “hydraulically connected” to the surface stream, meaning that water can move between the surface water stream and the adjacent groundwater aquifer. OWRD presumes any well closer than one-quarter mile is hydraulically connected to the surface stream. Further, wells are presumed to cause “potential for substantial interference” if they are (1) within one-quarter mile of a stream, (2) the appropriated rate of groundwater use is greater than 5 cubic feet per second, and within one mile of the stream, (3) the appropriated rate of groundwater use exceeds 1% of a pertinent adopted minimum perennial streamflow or instream water use right, or the natural flow of the surface water source that is exceeded 80 percent of the time, or (4) continued use of the well for 30 days would result in stream depletion greater than 25% of the well’s rate of appropriation.  Stream depletion is calculated using computer modeling, the method for which OWRD has substantially changed over the last several years, creating a moving target for water users wishing to challenge OWRD’s application of the rules to their groundwater uses. Under Division 9, wells located over one mile from surface water sources may only be controlled through designation of a critical groundwater area.

            OWRD’s proposed temporary rules are designed to operate in lieu of Division 9 for the Upper Klamath Basin. Rather than merely putting the majority of groundwater regulation on hold while permanent rules are considered and adopted, OWRD’s proposed rules factually declare that all groundwater sources are hydraulically connected to surface water in the Klamath Basin, and that all wells that withdraw groundwater in the Klamath Basin reduce groundwater discharge and surface water flow. Since these factual findings are totally unnecessary for the purpose of temporarily staying regulation while enacting permanent rules, many view the rules as an attempt by OWRD to cut off current and future legal challenges to OWRD’s regulation of groundwater wells. Under the Oregon Administrative Procedures Act, state agencies are afforded a degree of deference by courts to their factual findings and legal conclusions, and OWRD’s efforts to make the aforementioned findings—findings that are currently disputed by the scientific community—have the (likely intended) effect of garnering support for a claim of deference by OWRD in legal disputes. Moreover, and perhaps most troubling, OWRD’s proposed rules state that OWRD can regulate off a groundwater user if interference “impends,” meaning the junior water user need not even be interfering with the senior water user’s right to be regulated off by OWRD. This provision is in clear contradiction with the Oregon Ground Water Act that requires actual “impairment or interference,” rather than mere speculation, prior to regulation. ORS 537.525(9).

            Many water users oppose the new rules, realizing that the inducement of temporary regulatory relief will come at a very high price that will likely eradicate groundwater irrigation of agriculture in the Upper Basin. Because the rules also determine that all wells in the Klamath Basin are hydraulically connected to surface water, the temporary rules remove the threshold question that allowed Division 9 rules to apply to an even larger area than previously implicated by the rules. (See: https://www.capitalpress.com/ag_sectors/water/scaled-back-klamath-groundwater-regulation-debated/article_8e22ab30-23fb-11e9-951c-33070f078fa7.html?utm_source=Capital+Press&utm_campaign=6366754200-EMAIL_CAMPAIGN_2019_01_30_05_40&utm_medium=email&utm_term=0_3bfe2c1612-6366754200-241522174.) Other persons have criticized OWRD’s temporary rules for harming downstream senior surface water users, like the Klamath Tribes that hold senior surface water rights. (See: https://www.heraldandnews.com/members/forum/letters/proposed-groundwater-drilling-rule-unsustainable/article_77126c71-c978-5ade-9be3-82c025359f40.html.)

            Under OWRD’s application of the Division 9 rules (which is currently being challenged in court), 140 wells in the Klamath Basin would be subject to regulation. Under the proposed temporary Division 25 rules, only 7 wells would be regulated until March 1, 2021. Over the next two years, OWRD asserts it will continue to study the hydrogeology of the Upper Klamath Basin and enact permanent rules to replace the temporary Division 25 rules. The water wars in the Klamath Basin continue, and groundwater users may get a very short period of relief from regulation while OWRD once again moves the bar for how OWRD will regulate off groundwater users in the Upper Klamath Basin.

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

At the end of 2018, the Oregon Water Resources Commission adopted new rules to facilitate small municipal water suppliers’ completion of Water Management and Conservation Plans (“WMCP”). The Oregon Water Resources Department (“OWRD”) stated the new Oregon Administrative Rules (“OAR”), OAR 690-086-0300 to 0370, are intended to provide more flexibility for small municipal water suppliers to meet water conservation and curtailment objectives. Small municipal water suppliers in turn hope the new rules will reduce complexity to lessen the financial and staffing challenges previously associated with completing a WMCP.

WMCPs are only required to be submitted to OWRD if required by a water right permit condition, a Final Order approving a permit extension of time, or a Final Order approving a previous WMCP. While WMCPs are otherwise optional, OWRD encourages submission as a way to pursue long term water supply planning.

A Small Municipal Water Supplier is defined under the new OARs as: (1) a municipal water supplier that serves a population of less than 1,000 people or has less than 300 service connections, and (2) within the previous 5 years, the system’s maximum daily demand or maximum instantaneous rate, has not exceeded 2 million gallons per day or 3.1 cubic feet per second.[1] If a water supplier satisfies that definition, then it may be able to complete an “Alternate Municipal WMCP” in accordance with the new OARs.

Rather than submitting a regular WMCP, an Alternate Municipal WMCP may be submitted by a Small Municipal Water Supplier, if in order to meet current and projected demand in the next 10 years the supplier will not need to:

• Acquire a new water right; or
• Expand or initiate diversion of water allocated under an Extended Permit.[2]

Another notable change in the WMCP OARs is the revision to the annual Water Audit provisions. If a Municipal Water Supplier notes Water Losses exceed 10 percent within 2 years of approval of its WMCP, the supplier must undertake steps to explain the losses and remedy the situation.[3] However, Small Municipal Water Suppliers completing an annual Water Audit need only remedy losses if the Water Losses exceed 15 percent and the supplier serves a population greater than 300 people or has more than 100 service connections.[4]

Therefore, Small Municipal Water Suppliers that must soon complete a WMCP should determine whether an Alternate Municipal WMCP is appropriate, and what impact the new OARs will have on the supplier as it completes its WMCP. Schroeder Law Offices frequently works with municipal water suppliers and consultants to ensure WMCPs comply with the OARs and to assist in obtaining OWRD’s approval.

[1] OAR 690-086-0030(8).

[2] OAR 690-086-0300(1).

[3] OAR 690-086-0150(4)(e).

[4] OAR 690-086-0350(4)(e).

It’s that time of year again! As 2018 draws to a close, Schroeder Law Offices wants to remind Oregon water users that the deadline to submit water use measurements to the Oregon Water Resources Department (“OWRD”) is December 31, 2018.

Many permits and certificates for both surface and groundwater rights contain language specifying the type of meter and frequency of measurements and reporting required in order for the user to remain in compliance with the terms of their water use rights. These requirements are typically along the lines of:

Before water use begins, the user must install a meter or other suitable measuring device approved by the Director at each point of appropriation or diversion. After use begins, the user must maintain the device in good working order.

The user must keep a monthly record of the volume of water diverted, and submit a report which includes these measurements to the Department annually, or more frequently if required by the Director. Further, the Director may require the user to report general water use information, including the place and nature of use of water under the permit.

Not all water users are required to report their water use; therefore, it is important to be aware of the conditions set forth in your permits and certificates and to make sure you remain in compliance.

If the water use reporting condition is included, you can find the reporting form on OWRD’s website here. You can also report your water use online here. You will note that the “water year,” as outlined in the reporting form, runs from October through September, annually.

Schroeder encourages water users with this condition to take meter readings at the end of each month and to keep that information in their files along with a copy of the reports submitted to OWRD annually.

Stay tuned to Schroeder Law Offices’ blog for more helpful tips and reminders, and don’t forget to submit your reports by December 31, 2018!

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

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

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

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

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

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

On October 23, 2018, President Trump signed America’s Water Infrastructure Act (“AWIA”), also known as the Water Resource Development Act, into law. This bipartisan bill, which previously passed the House of Representatives on September 13, 2018 and the Senate on October 10, 2018, aims to improve dams, levees, ports, and waterways throughout the United States. It also amends the Safe Water Drinking and allocates funds toward more efficient and sustainable water quality control and management, particularly in underserved communities.

As its name might suggest, one of AWIA’s main goals is to improve America’s water systems. Under AWIA, the U.S. Army Corps of Engineers will receive around $3.7 billion to plan, study, and develop water projects to alleviate strain on existing infrastructure. In the Northwest, the Port of Seattle is specifically slated to undergo construction to improve navigation channels, as are several other key ports around the United States. AWIA also has specific provisions that focus on flood protection measures on the Snake River and levee improvements in Clatsop County, Oregon, among others.

One of the most notable aspects of AWIA is how it addresses the ongoing water shortages in Northern California/Southern Oregon’s Klamath Basin. AWIA provides a much-needed $10 million annuity to the Bureau of Reclamation to address ongoing water issues in the Klamath Basin, and provides avenues for farmers to make use of Klamath Project canals to deliver water to their farms. AWIA also focuses on increasing efficiency and sustainability of hydropower and delivery of affordable electricity to those same farmers.

Stay tuned to Schroeder Law Offices’ blog for more updates on AWIA’s progress and impacts on water in the Northwest and the United States!