A jury recently decided in Malheur County Circuit Court Case #16CV32005 that local farmers, Delos & Barbara Lee, were entitled to the lost profits they incurred when Owyhee Irrigation District (“OID”) failed in 2014 to deliver the Lees their entire allocation of water and delivered their 2015 allocation in late July. The jury decided OID was negligent based on a computer error that caused the Lees to receive the improper allocations of water.

The Lees grow alfalfa and have farmed in the Oregon Slope area their entire lives. The Lees discovered OID’s computer error in late 2015 after complaining to OID beginning in 2014 that even though they had timely paid their yearly assessments for water delivery, they were not receiving their full water allocation. While there was a drought in 2014 and 2015 that reduced water allocations throughout OID, the failure to deliver even the reduced allocation to the Lees’ 39 acre field caused their hay stand and hay production to suffer more than would otherwise have occurred if the Lees had received the reduced allocation of water.

In late July 2015, OID admitted that it failed to deliver any of the water allocated to the Lees’ 39 acre field in 2014 and had yet to deliver the 2015 water allocation. After its admission, OID then delivered water to the Lees, but it was too late for the Lees’ hay stand to produce as it would have otherwise. At trial, the jury found OID’s failure to deliver and failure to timely deliver water made OID negligent and awarded judgment in favor of the Lees for the entire amount of Lees’ lost profits.

Unfortunately, the judgment will not “make the Lees whole” due to the expense of the case going to trial rather than settling. Additionally, OID has now decided to appeal the decision to the Oregon Court of Appeals. OID argued at trial, and may take up a similar argument on appeal, that a U.S. Bureau of Reclamation (“BOR”) Repayment Contract from 1951 between the BOR and OID, along with other irrigation districts, makes OID wholly immune from liability even when OID failed to deliver water to the Lees when the water was allocated and available for delivery. The BOR repayment contract is a contract for the irrigation districts to repay the BOR for the construction obligations incurred to build the Owyhee Project.

Schroeder Law Offices was privileged to have the opportunity to work with the Lees to hold OID accountable for its failure to deliver water that was available, paid for, and allocated to the Lees.

2017 was an eventful year for the team at Schroeder Law Offices (“SLO”). As SLO moves toward a productive 2018, we are pleased to highlight the exciting events of 2017 and what’s ahead in the New Year!

In February we hosted a reception honoring Al Steninger at the Society for Range Management in St. George, Utah. Shareholders Laura Schroeder and Therese Ure, as well as Alan Schroeder, had the honor of celebrating the Sustained Lifetime Achievement Award for range consultant Steninger, long-time friend and consultant to the firm.

In April 2017, our Reno Office received a new home moving from the mid-town area to south Reno. The new office includes convenient parking and approx. 2,600 sq feet divided into a roomy, reception area, large and small conference rooms, multiple private offices, and work areas. Should our out-of-town client need a space to work or meet in Reno for a day or more, we have space to share.

After settling in, SLO hosted an open house for all of our clients, consultants and friends to come check out the new Reno space! We enjoyed this event as the Portland team came to Reno to assist in this celebration, complete with Stix Cattle Company barbequing tri tip!

Following the Open House event and team Schroeder’s participation in the Dust Devil Triathlon in Fallon, NV, the SLO team went out to the field! Our firm serves a wide variety of water users including local farmers, and we had a great time learning more about irrigation systems in Northern Nevada from local expert Norm Frey of Frey Ranches, learning about the cattle industry at Stix Cattle Company, and touring the local livestock auction at Fallon Livestock LLC.

While we had a busy year among our Reno Office move, open house, and field day, we are honored to highlight some of our SLO team member’s developments during 2017.

• Associate Attorney Lindsay Thane passed not only the Oregon State Bar in May 2017, but also passed the Montana State Bar in September 2017 – adding a seventh state to our firm’s licensing!
• Legal Secretary Mollie Finke joined our Portland team in April, making her debut in the legal field.
• In November, our Portland team added a new Paralegal, Rachelq Harman.
• In December, paralegal Tara J. Jackson took a sabbatical, chasing sunny weather with a couple of weeks exploring the north island of New Zealand, enjoying beautiful vistas and mountain biking and finished out her time in Arizona spending more time on her bike and with family. Tara is now back on board.

In the New Year, SLO is looking forward to hosting more classes and/or workshops regarding water law. In 2017 as well as past years, SLO Shareholders Therese Ure and Laura Schroeder have hosted water rights bootcamp classes as well as real estate water right classes. Keep an eye on our coming events list for classes and events to come in 2018, or check out our speaking and presentations page for a list of topics.

The Oregon Water Resources Department will no longer be issuing water use permits for “nursery operations use” in the Willamette, Sandy, and Goose & Summer Lakes Basins. This decision follows a very long history of the Department’s issuance of nursery operations permits all across the State, including these basins. The Department recently decided to read its Basin Program rules in such a way to not allow this popular and pervasive type of use in these particular basins.

Nursery water use permits are different than irrigation use permits. The “default” characteristics of a nursery use permit include year-round water use, a rate equal to one-fortieth cubic foot per second per acre for containerized nursery plants, and a duty of five acre feet per acre per year for containerized nursery plants. By contrast, irrigation use permits are limited to the “irrigation season” that is typically from March through October, one-eightieth cubic foot per second per acre, and two and a half acre feet per acre (depending on the location). Moreover, irrigation use is limited to artificial application of water to plants, while nursery operations use includes use in nursery facilities for much more than direct application to plants (soil preparation, temperature control, application of chemicals or fertilizers, etc.).

The Department’s Basin Program rules may be found at Oregon Administrative Rules Chapter 690 Division 500 and thereafter. Each Basin Program outlines classified water uses that are authorized within the basin, or within particular stream reaches of the basin. None of the Basin Programs specifically classify nursery operations use as an authorized water use. The Basin Programs do, however, classify irrigation and agricultural water use as authorized uses. Nursery use comes under the umbrella of these two types of water uses. As such, the Department issued nursery operations use permits on a regular basis throughout the State.

Division 500 provides definitions that are particular to the Basin Programs that follow. The definition of “irrigation use” in Division 500 is “the use of water for agricultural water use, cranberry use, irrigation, nursery operations use, or temperature control…” However, this definition is limited to specific Basin Programs, excluding the Willamette, Sandy, and Goose & Summer Lakes Basins. As such, Department staff recently informed us that the Department will no longer issue nursery operations use permits in the Willamette Basin. We assume the Department will have the same opinion as to the Sandy and Goose & Summer Lakes Basins. Further, it is possible the Department will also cease issuing cranberry use and/or temperature control permits in all three basins, depending on the specific classifications in the basins.

It will be very important for new applicants in the Willamette, Sandy, and Goose & Summer Lakes Basins to realize the limitations of different types of water uses available to them in different basins, and to clearly articulate all details of the requested water use. In our recent revision of a pending nursery use application in the Willamette Basin, our office drafted the specific water use conditions we were requesting on behalf of our client to ensure no errors occurred during permitting. Costs will also increase if additional fees must be paid to the Department to request multiple uses (such as irrigation and agricultural use) to replace the more “global” nursery operations use applications.

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

Update:

At the beginning of 2018, the Department rethought its position with regard to ceasing nursery use permits in the Willamette, Sandy, and Goose & Summer Lakes Basins. The Department resumed issuing such permits as of the date of this update. It is important to realize how agency policy and interpretation can shift over time, affecting water use rights in Oregon. This is a good example of that phenomenon.

The Oregon Association of Nurseries annual convention was held on November 3^rd and 4^th at the Salishan Spa and Golf Resort, in Gleneden Beach, Oregon. The convention is a forum used to discuss issues vital to Oregon nurseries, vote on OAN bylaws, and honor the industry’s achievers at the annual president’s Awards Banquet. In an effort to support OAN, Schroeder Law Offices donated two bottles of Oregon whiskey for the silent auction at the President’s Awards Banquet.

Schroeder Law Offices, P.C. will be closed for some holiday dates in 2017, as described below:

Thanksgiving
November 23, 2017 & November 24, 2017
Schroeder Law Offices will be closed on Thursday, November 23rd and Friday, November 24th.
We will reconvene regular business hours on Monday, November 27, 2017.

Christmas
December 25, 2017
Schroeder Law Offices will be closed on Monday, December 25th.
We will reconvene regular business hours on Tuesday, December 26, 2017.

New Year’s Day
January 1, 2018
Schroeder Law Offices be closed on Monday, January 1st.
We will reconvene regular business hours on Tuesday, January 2, 2018.

During these holiday periods, we will not be routinely responding to phone calls/ messages, emails, or mail. In an emergency, please phone or email your assigned team associate attorney directly or email counsel@water-law.com. The attorneys will check their email at least once each day and attempt to get back to you within 24 hours of your call or email.

Attorney Sarah Liljefelt and Paralegal Tara Jackson attended the Oregon Ground Water Association’s Fall Convention at the end of October. Tara’s team won fourth place in the annual golf tournament, winning machetes as part of their prize package! Tara also won the women’s long drive; way to go, Tara! Sarah presented at the convention on the topic of groundwater transfer challenges, and received great questions and feedback from attendees.

The Oregon Ground Water Association’s Fall Convention is always a blast with a lot of wonderful folks! Check out the organization at: http://www.ogwasite.org/.

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

Today is World Food Day and we see many promoting their initiatives to fight hunger as they celebrate October 16, 1945 – founding day of the Food and Agriculture Organization of the United Nations.

One of Schroeder Law Offices’ missions is to support people feeding the world. We do this by offering legal services for those farmers and ranchers out there who are growing crops to feed the world, or otherwise contributing to the food and fiber industries in this and other countries.

Just this summer, we toured our clients’ properties learning how they are using technology and advancements to increase their crop yields on the same acreage with the same water use. We also learned how our clients are working with nutritionists to feed cattle in the optimal fashion to raise beef and other meat sources. We are proud that we can support our clients’ water needs in their pursuit to sustainably feed the world!

What are you doing for World Food Day?

The Oregon Water Resources Department (“OWRD”) issued amended rules designating the Walla Walla subbasin as a Serious Water Management Problem Area (“SWMPA”).[1] The amended rules, filed on May 22, 2017, specify new groundwater permits will not be issued in the SWMPA and new groundwater uses will only be allowed for the statutorily exempt uses outlined in Oregon Revised Statutes (“ORS”) 537.545.[2] Some of the statutorily exempt uses for which groundwater may be used, as outlined in ORS 537.545, include stockwatering purposes, watering a one-half acre lawn or noncommercial garden, single or group domestic purposes not exceeding 15,000 gallons per day, or a commercial purpose in an amount not exceeding 5,000 gallons a day.

The SWMPA designation applies to the areas shown on the map accompanying the revised Oregon Administrative Rules (“OAR”).[3] Any already existing groundwater well that is drilled into the basalt and develops groundwater from the Columbia River Basalt Group will be required to install a totalizing flow meter on their well by January 1, 2019.[4] The totalizing flow meter measures and displays both the instantaneous flow rate of groundwater produced from the well and the total volume of groundwater produced from the well. The water right holder, well owner, or well operator will also be required to keep a complete record of the volume of water appropriated each month and submit an annual report of those water use measurements to OWRD.

OWRD implemented the new rules because it has tracked that groundwater levels have dropped by up to four feet per year in the deeper basalt aquifer and by about 100 feet over the past 80 years in the deeper basalt aquifer. The stated policy behind the new rules is to attempt to prevent the declining groundwater levels from growing worse and to ensure enough water is available for senior water use right holders. While some drillers and water users have concerns that OWRD did not consider the possibility that additional water is available in deeper basalt levels, some water use right holders have stated they are glad OWRD is taking steps to protect the resource.[5]

An additional concern was that the Walla Walla Subbasin spans the border between Oregon and Washington and that any action taken by Oregon water users to preserve the resource could be undermined by Washington; however, the two states advise that they have been working together to ensure neither state’s water usage undermines the water savings of the other state. OWRD also plans to work with the local community in the Milton-Freewater area to implement a voluntary, long-term water plan.

This is the first SWMPA established in Oregon.

[1] Or. Admin. R. 690-507-0030.

[2] Or. Admin. R. 690-507-0030(3).

[3] Or. Admin. R. 690-507-0030, Exhibit Map 507-1, available at http://www.oregon.gov/owrd/LAW/docs/law/690_507_Exhibitmaps_2017_May_22.pdf.

[4] Or. Admin. R. 690-5070-0030(4).

[5] Mateusz Perkowski, New Agricultural Wells Prohibited in Oregon’s Walla Walla Subbasin, East Oregonian (May 18, 2017) http://www.eastoregonian.com/eo/local-news/20170518/new-agricultural-wells-prohibited-in-oregons-walla-walla-subbasin

Law Clerk Jakob Wiley will be presenting on unitization approaches to aquifer governance at the next Groundwater Advisory Committee (“GWAC”) meeting held June 30, 2017. He will be presenting his research on voluntary aquifer governance agreements, focusing on aquifer governance rather than groundwater management. The approach is the topic of his graduate thesis as part of his master’s degree, as well as his portion of an upcoming book co-authored with Dr. Todd Jarvis titled Collective Aquifer Governance: Dispute Prevention for Groundwater and Aquifers through Unitization, currently being prepared for the Cambridge University Press.

Jakob’s presentation will show how groundwater governance has “missed the aquifer for the wells,” focusing attention on groundwater levels and failing to incorporate other aquifer resources, such as storage potential, heat exchange, water quality, or future aquifer uses like carbon sequestration. With some aquifers, the focus may lead to damage to the reservoir (See https://ngwa.confex.com/ngwa/renew08/techprogram/P5225.HTM).

Unitization techniques look at the aquifer as a whole, encourage subsurface exploration, and may create “aquifer communities” that create a regional identity with the aquifer. (See https://www.scribd.com/document/112436071/Jarvis-W-Todd-In-search-of-a-New-Identity-Good-Water-Neighbors). Contract approaches to groundwater governance have been seen internationally, but have yet to be clearly seen in the United States relating to groundwater. (Contract-based approaches are common in other natural resource areas, like the recent Candidate Conservation Agreement with Assurances for the sage grouse, see http://www.conservationhabitat.org/local-resources/Harney-County-Sage-Grouse-CCAA/36004/). Jakob will bring these examples to the GWAC meeting and present the approach as a possible addition to Oregon’s groundwater governance toolbox.

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

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

On June 10, 2017, Laura Schroeder attended and gave a presentation at Christ the Vine Lutheran Church in Damascus, Oregon on the topic of estate planning. Individuals and couples attended the event and learned more about how to plan for caring for their loved ones after their passing and the ins and outs of this preparation. The audience of around 30 people were engaged and asked many questions, making the presentation a fun and interactive way to learn. Schroeder Law Offices was very grateful for the opportunity to present to this faith community.

Our office does limited work with estate planning in conjunction with Laura’s service to her Lutheran faith community and can prepare these documents for individuals who wish to make a donation to their faith community or faith based organization such as Lutheran Community Services. Basic documents our office can prepare include Wills including trusts and codicils, Power of Attorney documents, advice on Advanced Directives and more. For more information on what these documents are or how our office can assist you with preparing them, please visit the Estate Planning section of our website.

The Oregon Department of Fish & Wildlife (“ODFW”) filed applications for numerous instream water use rights in the last few months for salmon habitat in the Hood River basin. Instream water use rights in Oregon are held by state agencies for the preservation of a public purpose, like preserving salmon habitat. Beginning in December 1, 2016, ODFW began filing a series of applications with the Oregon Water Resources Department (“OWRD”) in the Hood River basin. The most recent applications were filled May 1, 2017.

ODFW filed similar instream water use applications in the past on various Oregon stream reaches. Such applications have been protested on the grounds that ODFW requested more water than is actually available from the source, that the amount of water requested is more than what is necessary for fish preservation and is not supported by data, injury to senior water users, detriment to the public interest, and more. The amount of water requested in the Hood River basin applications ranges from 10 cubic feet per second (“cfs”) to 175 cfs, depending on the application and time of year.

OWRD’s regulations allow instream water use rights to exceed the volume of water actually available at the source. Instream water use rights may be granted when a stream is already fully appropriated, although regulations state that instream rights may not exceed natural flows. Therefore, should senior water use rights be cancelled in the future, such cancellation would not free up water for new appropriations; rather, the cancelled water use rights would be swallowed by the ODFW instream rights that appropriate more water than is available at the source.

ODFW must provide scientific information used to determine the habitat needs supporting its water use applications. Two scientific methods were used in the recent applications. First, the quantities were determined using the Oregon Method, developed by Thompson in 1972, which determines the theoretical minimum needed for salmon spawning, adult passage, and rearing. (See http://www.dfw.state.or.us/fish/water/). The method focuses on the shallowest portion of a stream and determines the minimum flow required for salmon habitat needs. Using another study, habitat for the East Fork of the Hood River was determined using river modeling software. (See the draft report at http://www.co.hood-river.or.us/vertical/sites/%7B4BB5BFDA-3709-449E-9B16-B62A0A0DD6E4%7D/uploads/Appendix_C_Instream_Flow_Assessment_Draft_Report.pdf).

While the public comment period has passed for many of the applications, comments may still be submitted for the May 1, 2017 applications (Application Numbers IS 88336, IS 88333, IS 88332) after OWRD issues Initial Reviews for those applications. Anyone may comment on the applications within 30 days of the initial review and public notice. Additionally, protests may be filed after OWRD issues Proposed Final Orders for the applications, and additional applications may still be filed by ODFW.

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

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

As many know, Oregon is home to some pretty diverse soil types that allows Oregon to grow a vast variety of food and fiber. The climate is varied from western to eastern Oregon that also allows farmers to have some choice in farming methods including irrigation practices.  The never ending issue is water, especially if “mother nature” provides too much or not enough at any given time in the growing cycle.

In Oregon, 2,040,200 acres are used for Field Crops (13.1% according to a 2010 study). Of those 2.04 million acres, 37,000 are used for barley, 30,000 acres are used for corn, 370,000 acres are used for alfalfa hay, and 6,600 are used for hops.  While barley and most grains can be grown without applied irrigation, on dry land, all other commodities generally require applied irrigation.   In 2009, hay (all types) and grass seed were among the top 10 commodities in Oregon according to the Oregon Department of Agriculture.  Hay is a feed crop necessary for meat protein production while grass seed is largely used by the landscape industry including golf courses. These two commodities, hay and grass seed, brought in nearly $2 Billion, according to the OSU Extension Service. We use more land on commodity agriculture than any other type of agriculture, it’s no wonder there’s sticker shock when shopping at grocery stores, particularly for organic foods that require more inputs.

You can learn more information about Oregon crops, by visiting the USDA website or by going to the Oregon Department of Agriculture’s website. To keep informed about water use issues and news, subscribe to our blog. 

Schroeder Law Offices is excited to announce that J.D. Paralegal Lindsay Thane passed the Oregon State Bar, and will be licensed to practice law in Oregon upon her swearing in ceremony scheduled for May 18^th, moving into the position of Associate Attorney.

Lindsay joined Schroeder Law Offices in their Portland, Oregon office in 2016 after graduating from the University of Montana School of Law. Lindsay is an avid runner and enjoys competing in local road races. She loves being outdoors hiking with friends and family. Lindsay has also spent many summers water skiing on Flathead Lake near her home town in Montana.

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

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

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

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

Partner Sarah Liljefelt and Assistant Administrator Kelley Wesson are heading to Olympia, Washington this weekend to race dragon boats with the Oregon Women Lawyers team, the Dragonflies, at the Port of Olympia. The Oregon Women Lawyers Dragonflies is an all-women, competitive dragon boat team made up of attorneys, paralegals, and other legal professionals. The team took bronze at last year’s race, and they are hoping to medal again this year! For more information about the team, visit their website. Come on down to the race if you are in the area. Sarah and Kelley would love to visit with you between race heats.

The Oregon Task Force on Drought Emergency Response met throughout 2016 to propose statewide recommendations to address current and future water shortages throughout the State. One of the task force’s recommendations has been embodied in House Bill 3051,[1] which has garnered support from Democrats and Republicans alike.

H.B. 3051 will help pay for the installation, repair, and replacement of measuring devices on authorized diversions and points of appropriation to measure groundwater use. The bill authorizes the use of the Water Measurement Cost Share Program Revolving Fund, which has been available since 2000 to incentivize surface water users to measure their water use, to now fund the installation or replacement of groundwater measuring devices.

This is a voluntary system that allows the Oregon Water Resources Department (“OWRD”) to work with landowners to install measuring devices at their points of appropriation or points of diversion. Additionally, the fund can pay up to seventy-five percent of the cost of installing the measuring device.

The widespread support for this bill stems from a desire to protect priority of water rights through improving the amount of information about groundwater use available to OWRD. OWRD uses this type of groundwater use data to better understand the availability of water in a basin, to determine how much water is available for withdrawal, and to better manage any interference between junior and senior groundwater users.

H.B. 3051 passed out of the Oregon House of Representatives on April 3, 2017 and has been referred to the Senate Environment and Natural Resources Committee.

[1] https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/HB3051 

Co-Authored By: Attorney Therese Ure & Lisa Mae Gage

In August 2015 the United State Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) put their stamp of approval on the Waters of the United States (“WOTUS”) final rule. The WOTUS rule significantly expanded the definition of “waters of the United States” under the Clean Water Act, granting federal regulatory control over virtually all waters in the United States. Many groups opposed this rule, arguing that it expands federal jurisdiction, resulting in the imposition of burdensome requirements on agricultural producers.

On February 28, 2017, President Donald Trump signed an executive order directing the Administrator of the EPA and the Assistant Secretary of the Army for Civil Works to review the WOTUS rule to ensure the nation’s navigable waters are protected, as well as to promote economic growth and show due regard for the roles of Congress and the States. See https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

President Trump also directed the administrators, along with the heads of all executive departments and agencies, to consider interpreting the term “navigable waters” as it is defined in 33 U.S.C. 1362(7), and consistent with the opinion of late Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Considering these interpretations, one might construe “navigable waters” as waters in the United States, including the territorial seas, that are “navigable in fact” or readily able of being so.

This executive order was preceded by a House Resolution . See https://www.congress.gov/bill/115th-congress/house-resolution/152/text. The Resolution states WOTUS should be withdrawn or vacated as the EPA and Corps did not follow proper procedural steps and claimed expansive jurisdiction that infringes upon State authority.

Several agricultural groups are strongly supporting the House Resolution and the Executive Order. As water is a valuable resource to all, regulation upon it must be closely scrutinized and controlled. According to the agricultural community, President Trump’s executive order and the House Resolution regarding WOTUS is a welcomed relief.

As the 2017 irrigation season approaches, Oregon water permit and certificate holders may want to review the terms of those permitted and certificated uses for measurement and reporting requirements.

Many groundwater permits and certificates require annual reporting of various water measurements, most notably measurements for static water levels of wells, flow meter readings or perhaps critical ground water area measurements depending on where these uses are located.

Measurements are typically due annually but sometimes are required to be tracked monthly and submitted to the Oregon Water Resources Department. These recordings allow the Department to track changes in water levels and depending on varying levels between the years may allow the Department to require users to discontinue or reduce the rate of their water use.

Our office encourages all water users to closely review the terms of their water permits and certificates in order to understand and be responsible for the requirements and meet the terms of these rights of use. We also provide services to clients including review of water permits, certificates and related documents, refer to qualified individuals to take these recording measurements and courtesy reminder letters to our clients.

For more information on water use reporting please visit the Oregon Water Resources Departments website. For more water news and information, keep reading Schroeder Law Offices blog!

Oregon Legislative Updates

A drought task force, authorized in 2016 by the Oregon Legislature, submitted their year-end report[1] to the Governor in November discussing how Oregon can better anticipate and adapt to increasingly common years of drought. Specifically, the report encourages the State to review the drought declaration process to better assist with drought response, to help communities with preparedness and resiliency, and to evaluate management options for stored water to better address instream and out-of-stream needs.

The Oregon Water Resources Department (“OWRD”) also extended reservations of water for future economic development in the Hood Basin, the Grande Ronde Basin, the Burnt River Basin, the Malheur Basin, and the Owyhee River Basin.         

Governor’s Office Updates

The Governor’s Office’s strategic initiatives for 2017 emphasize investing in water infrastructure to improve resilience and growth. Despite the decreased allocation of money to OWRD from the general fund budget, OWRD anticipates continued investment for development of instream and out-of-stream water supplies and for capital investment in sewage and water systems.

Cannabis Legalization on Water Usage

The passage of Measure 91 in Oregon has led to an increase in cannabis cultivation, part of which requires individuals who were growing cannabis before Measure 91, as well as new cannabis growers, to apply for water rights to irrigate their crop. However, only state water rights, not federal water rights, such as those under a Bureau of Reclamation contract, may be applied to irrigate cannabis. Federal water rights may be used to grow cannabis if the water is delivered from an irrigation district under a Bureau of Reclamation contract and is commingled with water under a state water right. An additional challenge is that water rights to grow cannabis will likely require a year-round water right and not simply a traditional irrigation season water right.

Upcoming Adjudications

With the Klamath Basin adjudication largely completed, OWRD announced it plans to begin adjudication of the Deer Creek Basin east of Roseburg in late 2016. OWRD will also begin two to four small adjudications in the South Coast Basin in late 2016 or early 2017.

Water Rights Auditing in Real Estate Transactions

The first day of the seminar wrapped up with a panel emphasizing the importance of determining the validity and extent of any water right that is part of a real estate transaction. The panel encouraged anyone involved in a transaction that includes water rights to request the files for any associated water rights from the applicable state department, such as OWRD or the Washington State Department of Ecology. This type of analysis is offered by Schroeder Law Offices at a flat fee. We encourage our clients to contact us for this service before any issue arises!

[1] https://www.oregon.gov/owrd/docs/HB4113/Draft_Final_Task_Force_Report_11_1_2016_Final.pdf.

The U.S. Army Corps of Engineers, Bonneville Power Administration, and the Bureau of Reclamation (“federal agencies”) are engaged in a five year process to analyze the effects of the Federal Columbia River Power System on salmonid species. In May 2016, District Court Judge Michael Simon found the federal agencies had violated the Endangered Species Act and the National Environmental Policy Act.[1] Specifically, Judge Simon said the federal agencies erred in failing to manage the Federal Columbia River Power System with strategies beyond the hydro-mitigation efforts that failed in the past.

Therefore, the Judge ordered the federal agencies to develop a new biological opinion to address: 1) mitigation measures to avoid jeopardy to salmonid species; 2) development of a Biological Opinion that complies with the Endangered Species Act; and 3) development of an Environmental Impact Statement that complies with the National Environmental Policy Act and addresses the impact of the Snake River dams on salmonid species. In his opinion, Judge Simon suggested a proper analysis should include considering breaching, bypassing, or removing the Lower Snake River dams.

The federal agencies will hold public scoping meetings around Washington, Idaho, and Oregon in the next weeks, in addition to two webinars.[2] Written comments will also be accepted until January 17, 2017. The meetings will be held from 4-7 PM as follows:

• November 29th, Boise, Idaho
• December 1st, Seattle, Washington
• December 6th, The Dalles, Oregon
• December 7th, Portland, Oregon
• December 8th, Astoria, Oregon

The scoping meetings are an important way for stakeholders to help the federal agencies narrow the issues and focus on key concerns. After the time period for the scoping meetings, the federal agencies will prepare a draft environmental impact statement that will be available for public comment.[3] The federal agencies must respond to all substantive comments on the draft environmental impact statement.

It is recommended that parties interested in the outcome of the federal agencies’ decision attend a scoping meeting and make comments. If an interested party later wants to challenge the federal agencies’ decision that a certain alternative should have been analyzed in the NEPA document, the court may not hear the concern.

Written comments may be made in person at one of the scoping meetings, submitted via mail, via email, or through the federal agencies’ online portal. Information about how to submit such comments is available at www.crso.info. 

[1] Nat’l Wildlife Federation v. Nat’l Marine Fisheries Serv., 2016 U.S. Dist. LEXIS 59195 (D. Or. 2016).

[2] www.crso.info

[3] 40 C.F.R § 1502.9