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

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

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

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

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

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

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

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

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

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

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

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

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

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting the amended ORS 537.230(2) conditions. ORS 537.230(2) prescribes conditions for the Oregon Water Resources Department (“the Department”) to grant municipal permit extensions to complete construction and apply water to beneficial use in order to perfect water use rights. In this case, the City of Cottage Grove (“the City”) sought an extension, but then completed construction and application of water to beneficial use before the extension was granted. Based upon the language of the statute, the Department issued the extension without the ORS 537.230(2) conditions, and WaterWatch sought judicial review. The Oregon Court of Appeals reversed and remanded the Department’s final order.

In 2005, ORS 537.230(2) was amended by the passage of HB 3038 to allow municipal permittees to have up to 20 years to commence and complete construction of proposed water use infrastructure and apply water to beneficial use (as opposed to the previous 5-year deadline), so long as certain conditions are imposed. ORS 537.230(2) currently provides:

(2) The holder of a permit for municipal use shall commence and complete the construction of any proposed works within 20 years from the date on which a permit for municipal use is issued under ORS 537.211. The construction must proceed with reasonable diligence and be completed within the time specified in the permit, not to exceed 20 years. However, the department may order and allow an extension of time to complete construction or to perfect a water right beyond the time specified in the permit under the following conditions:

(a) The holder shows good cause. In determining the extension, the department shall give due weight to the considerations described under ORS 539.010 (5) and to whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right;

(b) The extension of time is conditioned to provide that the holder may divert water beyond the maximum rate diverted for beneficial use before the extension only upon approval by the department of a water management and conservation plan; and

(c) For the first extension issued after June 29, 2005, for a permit for municipal use issued before November 2, 1998, the department finds that the undeveloped portion of the permit is conditioned to maintain, in the portions of waterways affected by water use under the permit, the persistence of fish species listed as sensitive, threatened or endangered under state or federal law. The department shall base its finding on existing data and upon the advice of the State Department of Fish and Wildlife. An existing fish protection agreement between the permit holder and a state or federal agency that includes conditions to maintain the persistence of any listed fish species in the affected portion of the waterway is conclusive for purposes of the finding.

In the Cottage Grove Case, 2013 WL 6498547, 2013 Ore. App. LEXIS 1463 (December 11, 2013), the ORS 537.230(2)(b) and (c) conditions were tested. The City of Cottage Grove was issued a permit in 1977 with deadlines to complete construction in 1979 and apply water to beneficial use in 1980. The City was granted a number of extensions, ending in 1999.

In 2007, the City enlarged its water treatment plant and applied to the Department for an extension of time to perfect its water use right. Prior to being granted an extension, the City applied the full amount of water allowed under its permit to beneficial use. The Department thereafter approved the City’s extension, but without the ORS 537.230(2)(b) and (c) conditions because the Department determined that there was no undeveloped portion of the permit at the time of the most current extension. WaterWatch sought judicial review of the Department’s order approving the extension in the Oregon Court of Appeals. The Department thereafter issued a water right certificate to the City.

First, the Oregon Court of Appeals determined that WaterWatch’s action was no rendered moot by the issuance of a water right certificate. Although water right certificates may only be cancelled for certain statutory reasons (ORS 537.250(3)), and are generally “conclusive evidence of the priority and extent of the appropriation therein described” (ORS 537.270), the Court determined that the validity of the certificate was predicated upon the validity of the final order approving the extension application as a necessary prerequisite to the certificate. Therefore, if the final order approving the extension was reversed, the certificate could be cancelled as well.

Second, the Oregon Court of Appeals conducted statutory interpretation to determine whether the “undeveloped portion of the permit” should be measured at the time the extension application is considered by the Department (as argued by the Department and City), or whether it should be measured at the permit deadlines or previous extension deadlines (as argued by WaterWatch). The Court outlined the legislative history leading to the ORS 537.230 amendment, and concluded that the statutory amendment represented a compromise between environmental interests and municipal needs to engage in staged water development.

The Court ruled for WaterWatch, holding that the undeveloped portion of the permit before extension must be measured at the time specified in the permit or last extension. Otherwise, municipalities could avoid the ORS 537.230(2) conditions by developing additional amounts of water before applying for extensions. The Oregon Court of Appeals ruled that the Department’s failure to condition the permit extension on ORS 537.230(2)(b) and (c) was inconsistent with the statute. The Court reversed and remanded the Final Order for the Department to vacate the water right certificate and reconsider the permit extension in line with the Court’s decision.

The Cottage Grove Case is the first in a number of municipal extension judicial review cases. The statutory interpretation will affect numerous municipal entities throughout the State of Oregon, and require municipalities to implement water conservation management plans and protect the persistence of certain fish species when conducting staged water development that requires extensions of time. This will make staged development of water resources for municipal uses more challenging. It is currently unknown whether the Department or the City will seek review before the Oregon Supreme Court.

For a full version of this article, visit the Oregon State Bar Environmental & Natural Resources Section webpage, at: http://osbenviro.homestead.com/.

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

Senator Doug Whitsett”s recent e-newsletter provides some insight into EPA’s proposed rule concerning Clean Water Act Jurisdiction.  Read more here.

Our office often receives questions from clients regarding the availability of water in a particular area.  The Oregon Water Resources Department has a search engine that we often use to get started on this type of research.

To access the search engine use the following link:

http://apps.wrd.state.or.us/apps/misc/lkp_trsqq_features/default.aspx.

Enter the latitude and longitude or address for the parcel you would like to research. The search will generate a report outlining the basin and sub-basin, as well as Wild & Scenic designation, whether minimum stream flows are instituted, and other useful information. Use the basin and sub-basin designation to look up applicable regulations in the Oregon Administrative Rules, Chapter 690, Divisions 502 et. seq., available at: http://arcweb.sos.state.or.us/pages/rules/oars_600/oar_690/690_tofc.html. 

Sometimes the search generates codes, which may require a call to the Department to decipher.  The report may also link to information regarding what times of year water use is allowed or restricted.

The search engine is one of several tools to determine whether water is available for appropriation. Give us a call if you have further questions about water availability in your area, and be sure to stay tuned to the Schroeder Law Offices Water Blog for more information that may affect your water use!

The 2013 Oregon Legislature session will begin Monday, February 4. Of over 1200 bills introduced, several expressly or implicitly relate to water use and water management. In particular the Oregon Water Resources Department (“Department”) has introduced several bills related to water management and water use fees.

SB 217, introduced by the Department, proposes a water management fee of $100 for all water rights of record.  The water management fee is proposed to apply to primary, supplement, secondary use, storage, municipal, district and federally held water rights. The water management fee will be capped at $1,000 per water right holder. In-stream water rights and domestic exempt water uses are not proposed to be subject to the fee. To read the full text of the bill as introduced please use the following link.

http://landru.leg.state.or.us/13reg/measures/sb0200.dir/sb0217.intro.html

The current rate schedule used by the Department is set to sunset in 2013. SB 2259, introduced by the Department, proposes to extend and adjust the fee schedule. To read the full text of the bill as introduced please use the following link.

http://landru.leg.state.or.us/13reg/measures/hb2200.dir/hb2259.intro.html

Find contact information for your local representative here: http://www.leg.state.or.us/findlegsltr/

The following annoucenment was issued by the Bureau of Reclamation on January 4, 2012:

The Bureau of Reclamation has reissued for public comment four draft Reclamation Manual releases regarding water-related contracting activities. These draft releases provide definitions of key terms and revise existing definitions for water-related contracts, restructure and clarify Reclamation’s water transfer and conversion policy and consolidate and set-out basic pricing requirements for water-related contracts. Comments are due to Reclamation by April 3.

The four draft releases are:

• Draft RM Policy Water-Related Contract and Repayment General Principles and Requirements (PEC P05).
• Draft RM D&S Water Rates and Pricing (PEC 05-01).
• Draft RM Policy Transfers and Conversions of Project Water (PEC 09).
• Draft RM D&S Conversions of Project Water from Irrigation Use to Municipal and Industrial Use (PEC 09-01)

These releases have been updated to reflect comments received during the first comment period from September 29 to November 30. The changes are highlighted with redline-strikeout throughout the documents.

The Reclamation Manual establishes Reclamation requirements, assigns program responsibility and establishes and documents Reclamation methods of doing business.

These draft updates are available for detailed review at: www.usbr.gov/recman. A summary of the draft updates can be found at: http://on.doi.gov/rMciUA. Comments or questions may be directed to Owen Walker at owalker@usbr.gov.

The Director’s Report for the Oregon Water Resources Commission January Meeting breaks down water conditions in the State:

“Current Water Conditions: The surface water supply index (SWSI) is a numerical index computed for the 14 major water basins in Oregon. The index ranges from + 4.0 indicating extremely wet conditions to – 4.0 indicting extremely dry conditions. An index of 0 would indicate normal conditions. The index is computed monthly and generally considers snowpack, rainfall, irrigation reservoir content and average monthly streamflow. On December 1, 2011 the indices in the 14 basins ranged from -1.5 in the Klamath Basin to +1.6 in the Deschutes Basin. According to the SWSI, water conditions in Oregon are generally below normal and trending downward.

On January 9, 2012 snowpack conditions range from a high of 55 percent of normal in the Grande Ronde, Powder, Burnt and Imnaha Basin Basins to a low of 19 percent of normal in the Owyhee Basin. Generally, snowpack is currently well below normal after 3.5 months into the water year.

We normally experience the bulk of our snowpack accumulation in December, January and
February. Total precipitation for the water year ranges from a high of 69 percent of normal in the
Grande Ronde, Powder, Burnt and Imnaha Basins to a low of 44 percent of normal in the Lake
County/Goose Lake Basin.

Storage carryover in the major irrigation reservoirs puts them at near normal capacity.
The northwest is still under the influence of La Niña conditions and continues to be forecasted for below normal temperatures and above normal precipitation over the winter period. However, these conditions have not been consistent with the moving three month forecast. Storms have been consistently pushed to the north, leaving the state with below normal water conditions.”

 Under Oregon law, a city may provide utility services to its inhabitants “[w]hen the power to do so is conferred by or contained in its charter or act of incorporation.” (ORS 225.020).  This includes providing water and sewer services “for profit” so long as the city’s charter provides and the public trust is not violated in doing so.

Portland is currently facing a lawsuit that will push the City’s water and sewer disposal expenditures to the forefront.  The claimants, a group of ratepayers, assert that Portland violates the city’s charter by diverting water and sewer funds toward projects and expenditures unrelated to the provision of those services.  The suit seeks an independent accounting of water and sewer disposal fund expenditures, together with an order of reimbursement.

The court will be asked to interpret key portions of Portland’s City Charter, including whether Portland’s charter restricts the City Council from using rate-payer funds to finance so-called “pet” projects.  The court will also be asked to determine whether various past expenditures were reasonably related to the provision of water and sewer services.

Follow this link to an article discussing the suit:  http://www.oregonlive.com/portland/index.ssf/2011/12/portland_faces_lawsuit_over_ut.html\

Oregon Public Broadcasting (“OPB”) News recently featured a brief story on the Oregon Natural Desert Association’s (“ONDA”) agreement with a rancher in the Bend, Oregon area.

The agreement allows for retirement of a nearly 3,000 acre federal grazing permit. Typically, the law requires retired permits to be reissued; however this particular allotment falls under a land management plan that provides for the voluntary retirement of grazing permits without re-issuance to the next preference holder. Thus, this grazing permit will remain retired for the duration of the management plan, which is about ten years.

This story evidences the continuing conflict that surrounds the use and management of Federal lands. While this story is about voluntary retirement of a grazing permit and not a cancellation, it highlights the influence that special interest groups are attempting to gain in this regulatory arena.

Click here to view the original OBP News story: http://news.opb.org/article/14357-onda-reaches-agreement-retire-3000-acre-grazing-permit-near-bend/

USG Oregon, LLC, a subsidiary of U.S. Geothermal, Inc., has acquired two geothermal mineral ownership interests in the Neal Hot Springs Project in Eastern Oregon.  USG Oregon now holds significant mineral ownership interests in the Neal Hot Springs geothermal reservoir.  The lands to which the mineral interests are appurtenant currently have two existing production wells and there are plans for new production and injection wells.  USG Oregon’s current plans predict development of 26MW of power production.  For additional information please see the articles linked below.

http://www.usgeothermal.com/NealHotSpringProject.aspx

http://thinkgeoenergy.com/archives/5092

Laura Schroeder will present her popular “Water Rights Bootcamp” on JUNE 2 in Sisters, Oregon. This presentation will be an educational seminar suitable for all with and interest and concern for water rights in Oregon. For details and an agenda see the Schroeder Law Offices web site.

As we reported in early February, the Oregon Department of Environmental Quality (“DEQ”) has released a Water Quality Management Plan for the Upper Klamath and Lost River Subbasins for public review and comment.

Due to ongoing drought conditions in the Klamath Basin, DEQ has extended the public comment period by 45 days to May 27, 2010. Additionally, DEQ announced that a public hearing is scheduled for 6 PM on May 12, 2010 at the Oregon Institute of Technology, College Union Auditorium, in Klamath Falls.  More information on the Water Quality Management Plan or Comment Period Extension is available on the DEQ website.

The DEQ has determined that certain stream segments in the Upper Klamath and Lost River subbasins do not meet state water quality standards.  DEQ has identified water quality problems associated with temperature, nitrogen, phosphorus and biochemical oxygen demand, or “BOD.”  Under the guides of the Federal Clean Water Act, the DEQ has developed a plan to improve water quality by establishing Total Maximum Daily Load (“TMDL”) limits and a Water Quality Management Plan (“WQMP”) for the subbasins.

DEQ released this plan for public review and is currently requesting public comments on the plan.  Additionally, DEQ has scheduled a public meeting on March 16, 2010 at the Klamath Basin Extension Center in Klamath Falls and invites interested members of the public and local government agencies to attend.  The agency will accept public comment on the DRAFT Upper Klamath and Lost River Subbasins Total Maximum Daily Load and Water Quality Management Plan until April 12, 2010.  DEQ has also released a two page fact sheet for public review.

For more information you can contact Steve Kirk, DEQ’s Klamath Basin Coordinator at (541) 633-2023 or at kirk.steve@deq.state.or.us.

The Oregon Department of Environmental Quality recently released a memo detailing the fiscal outlook for Oregon’s Clean Water State Revolving Fund (CWSRF) Loan Program.  Since the CWSRF Loan Program was established in 1990, the DEQ has made low interest loans totaling more than $750 million to eligible projects.  Congress increased CWSRF loan program funding for fiscal year 2010 and Oregon’s share should come to about $23 million.  Additionally, the jobs creation bill currently in Congress would, if signed in its current form, provide an estimated $11 million in additional funding for Oregon’s CWSRF loan program.

The loan program targets various water quality improvement projects such as wastewater and sewer upgrades, irrigation system improvements, riparian habitat restoration and water quality monitoring.  Entities eligible to receive the low interest CWSRF loans include, but are not limited to, cities, counties, irrigation districts, and soil and water conservation districts.  DEQ accepts and processes applications year-round and those interested in more information should contact the DEQ CWSRF regional Project Officer (listed at the end of the DEQ memo).

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

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

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

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

The 2009 Legislative Session passed House Bill 3369. Among other things, this Bill tasked Oregon Water Resources Department (OWRD) with developing Oregon’s Integrated Water Resources Strategy (IWRS). The IWRS goals are to build resources and tools to assist Oregon in looking at its future water needs in terms of water quantity, water quality, ecological needs, economic needs, social needs, and implications of climate change.

Issue papers were drafted addressing these areas and are found by following the link below. These issue papers are open for public comment. All comments received by the OWRD Project Team before October 31st will be available at the next Water Resources Commission meeting currently scheduled for November 19th and 20th in Salem.

According to the Project Team’s September 23, 2009 Briefing, the intent of the IWRS is to “develop a framework, consisting of a set of tools, data, and resources with statewide relevance that communities can use to develop their water resource needs.” We encourage everyone to become involved in this process as submit comments.

Integrated Water Resources Website: http://www.wrd.state.or.us/OWRD/LAW/Integrated_Water_Supply_Strategy.shtml

Do you keep your deeds in the safe? A secure file?  If so, you surely know what water uses you are entitled to and have these records kept safe and secure reviewing them annually?

If not, you’re lucky that the state has records on the water uses related to your property.  However, it’s unlikely these records have not been reviewed in the recent past.  It is also probable that there are lurking “time bombs” in your water use records.  Such “time bombs” include:  (1) Permits or Transfer orders that need extensions; (2)  Permit Conditions that have not been met; (3) Final Proofs past due; (4)  Certificates yet to be issued.

For a fixed fee of $375 and a copy of your property deeds, Schroeder Law Offices, PC, will make a public records request to the proper agency, make a complete copy of your water rights providing you with either a paper or electronic copy or both, as well as one hour of free consultation to provide you an overview on the phone and a summary in writing of issues spotted in your water right files needing attention.

Email Ms Daryl Cole (d.cole@water-law.com) now to begin the process—and start the New Year out right knowing that your water rights are secure!

During the next two years, OWRD and other Oregon state government agencies will be closed on the following Fridays:

• October 16, 2009

• November 27, 2009

• March 19, 2010

• April 16, 2010

• June 18, 2010

• August 20, 2010

• September 17, 2010

• November 26, 2010

• March 18, 2011

• May 20, 2011

At Schroeder Law Offices, P.C., we routinely work with our clients to develop efficient water use and management systems. Upon reviewing the competition offered below, we thought of you! Thus, if you are an innovative and efficient water user, or perhaps want to share your ideas with others then you might check out this competition!

Imagine H2O is running its inaugural competition this fall on “Water Efficiency.” Kick-off is September 1st. Competitors will provide solutions that reduce the demand or use of water in either agriculture, commercial and industrial, or residential applications. This could be done via demand response, recycling, reuse, or through any other smart management ideas. Total prizes given in 2009-10 will be $50,000. Winners will receive cash, in-depth business incubation including introductions to financiers, potential beta customers and go-to-market partners, and reduced-rate or free office space.

Imagine H2O is a not-for-profit company based in San Francisco, turning water problems into entrepreneurial opportunities. For more information on the Water Efficiency Competition, you can check out their website at www.imagineh2o.org

Good Luck in the Competition! Be sure to let us know how it goes.