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
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:
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.
Idaho Power has announced that the Boardman to Hemingway (B2H) project will be holding their Community Advisory Process Public Meetings.
Participants at these meetings will have the opportunity to:
1. Learn more about the Boardman to Hemingway Transmission Line Project.
2. Review and provide input on criteria for evaluating routes for the proposed transmission line.
3. Speak to Idaho Power representatives.
The meeting times and places are as follows:
Baker City
Wed., Aug. 12, 2009 4 p.m. to 8 p.m.
Baker City Community Center
2600 East St.
Baker City, OR 97814
La Grande
Thurs., Aug. 13, 2009 4 p.m. to 8 p.m.
Blue Mountain Conference Center
404 12th St.
La Grande, OR 97850
Pilot Rock
Wed., Aug. 19, 2009 4 p.m. to 8 p.m.
Pilot Rock Community Center
285 N.W. Cedar Pl.
Pilot Rock, OR 97868
Boardman
Thurs., Aug. 20, 2009 4 p.m. to 8 p.m.
Port of Morrow Convention Center
2 Marine Dr.
Boardman, OR 97818
Parma
Tues., Aug. 25, 2009 4 p.m. to 8 p.m.
Community House of Kirkpatrick Church
305 E. Bates Ave.
Parma, ID 83660
Marsing
Wed., Aug. 26, 2009 4 p.m. to 8 p.m.
Community Center – American Legion Hall
126 N. Bruneau Highway
Marsing, ID 83639
Ontario
Thurs., Aug. 27, 2009 4 p.m. to 8 p.m.
Four Rivers Cultural Center
676 S.W. Fifth Ave.
Ontario, OR 97914
For more information, follow the link to the Idaho Power website: B2H Public Meetings
The 2009 Legislative Session was full of excitement for Oregon’s water users. Specifically, new laws face those looking to drill a new ground water well for an exempt use. Oregon’s exempt ground water uses are outlined in ORS 537.545. These exempt uses include drilling a well for single or group domestic purposes not exceeding 15,000 gallons a day.
This “exempt” ground water statute, as amended by 2009 legislation (Senate Bill 788), now requires those drilling a new well for an exempt use to: 1) file a map with Oregon Water Resources Department showing the location of the well, and 2) pay a one-time fee of $300.00 to record the exempt use. Both the map and the fee must be submitted to Oregon Water Resources Department within 30 days after the completion of well construction.
According to the Department, these fees will be used to evaluate ground water supplies, carry out ground water monitoring, conduct ground water studies, and process the data collected.
For additional information on the new exempt ground water requirements, please contact our office at (503)281-4100.
Link to Exempt Well Statute: ORS 537.545
The Society for Range Management in partnership with the Bureau of Land Management has produced a 9 minute video that “serves to tell a story about the role of livestock grazing on western public rangelands and our collective hope for a future of sustained rangeland health and enjoyment.” “Hope on the Range” is a video worth watching!
To view this video, follow this link: Hope on the Range
By Therese Ure and Nicole Widdis
Those inheriting natural resource property — which may include land used for farming, forestland or a commercial fishing operation — may qualify for the Natural Resources Tax Credit. Oregon Revised Statute 118.140 allows credit towards inheritance tax obligations based on the value of natural resource and commercial fishery properties, and possibly the value of business working capital and equipment related to those properties.
The legislation’s purpose is protection of natural resource and commercial fishing properties that could otherwise be liquidated to cover inheritance tax obligations. The 2007 enactment of ORS 118.140 was later amended in May, 2008. The amendments are retroactive to an estate where the decedent died on or after January 1, 2007. In addition, eligibility limitations exist. In most situations the total adjusted gross estate must not exceed $15 million and the value of the credit-eligible property must make up at least 50% of the total adjusted gross estate. To qualify for the credit, the eligible property must also be transferred to a family member or the decedent’s registered domestic partner.
The 2009 Oregon Legislative session is considering further amendments to ORS 118.140, in House Bill 3305. These amendments include an adjustment to the credit to consider inflation. The proposed amendments, if passed, will not be retroactive. House Bill 3305 can be viewed at http://www.leg.state.or.us/09reg/measures/hb3300.dir/hb3305.intro.html
Those who have inherited any natural resources property should check with their tax consultant and attorney to discuss their eligibility and options.
*More information on the Natural Resources Credit can be found at http://www.oregon.gov/DOR/BUS/inher-adv.shtml.
*The 2008 Natural Resources credit form is located at http://www.oregon.gov/DOR/BUS/forms-fiduciary.shtml#2007_Tax_Year, under the link to 2008 Tax Year forms.
By Therese Ure and Lincoln Herman
Aquifer Storage and Recovery (ASR) is a device for the storage of excess surface water which has been appropriated under a valid water right. Originally, this device was used primarily for drinking water, however agricultural and other water users are considering ASR as a device to off set seasonal water shortages.
The process involves the injection of excess surface water into wells for storage and later recovery. The water that is injected into the wells must meet drinking water standards. The user can use new or existing rights for the ASR water uses including storage and recovery. However, it is important to realize that the ASR process must first undergo a testing program under a limited license. Only after completion of the testing program can an ASR applicant apply for a permanent permit. ASR activities are regulated by Oregon Revised Statutes §537.531 through 537.534 and Oregon Administrative Rules §690-350-0010 through 0030.
Artificial Recharge (AR) is a device for the storage of water to be used at a later time primarily for irrigation purposes. This device was created in 1961. Similar to the ASR device, water is added to the groundwater reservoir via injection wells or a seepage system. The recharge water cannot degrade or impair the ground water quality and the underlying water right must be for recharge only. Accordingly, it would be necessary to complete a transfer to change the type of use. In addition, if the AR user wants to recover any water under the storage (or recharge) permit, an additional use right must be applied for noting the source will be the recharged water. Permits are required to appropriate the source and also to pump out the recharged ground water. AR is regulated under ORS §537.135 and OAR 690-350-0120.
It is also important to note an emerging trend of leasing underground space for ASR and AR projects. For more information, contact Schroeder Law Office via phone at 503-281-4100.
Irrigation districts have many benefits. But just how much land is required to form one?It is surprising, but Oregon law contains no minimum acreage requirement for irrigation district formation! In the early 1900s when irrigation districts sprang up all over western United States, some in connection with projects constructed by the United States Bureau of Reclamation, most covered large spans of territory. According to a 1917 government study, the smallest U.S. irrigation district at that time was 500 acres. Today most irrigation districts in Oregon cover anywhere from hundreds to hundred thousands of acres of land. However, this does not mean a group seeking to form an irrigation district needs to be so large. Because the law does not require a minimum number of acres to form a district, it is worth considering the benefits of irrigation district formation of any size.
A comprehensive look at forming an irrigation district and the unique benefits there of can be found in a new guide and handbook called “Irrigation Districts: The HOW, WHAT , WHO, WHEN and WHY Guide and Handbook for Irrigation District in Oregon. To learn more about this handbook please contact me at Cortney@water.law.com.
By Attorney Therese Ure & Law Clerk Nicole Widdis
This session, the Oregon Senate passed Senate Bill 311 legislation to amend the Oregon Tort Claims Act (OTCA). The OTCA limits the amount of money damages a plaintiff can receive from a state entity in a civil wrong (aka tort) case. OTCA passed originally in 1967 without limits on tort damages committed by state actors such as officers, employees and agents of the state entity. The 1991, OTCA amendments eliminated tort claims against public officers, employees or agents, when the tort arose from an omission occurring in the performance of a duty. These amendments additionally required the state entity or public body, in lieu of the individual, to be substituted in a lawsuit as the sole defendant.
After 1991, the OTCA effectively left many tort plaintiffs in the position of suing solely the public body. Additionally in section 30.270, the OTCA limited the recoverable damages to a range of $50,000.00 to $500,000.00 (depending on the number of plaintiffs and types of damages). Parties brought suits arguing these statutory limitations violate the Remedy Clause of the Oregon State Constitution, Article 1, Section 10. This section states that “…every man shall have remedy by due course of law for injury done him in his person, property or reputation.” However, in 2002 the Oregon Supreme Court found in Jensen v. Whitlow, that the OTCA on its face (in other words, as written), was not unconstitutional.
In December 2007, the Oregon Supreme Court determined the OTCA violated the Remedy Clause of the Oregon Constitution when applied to a medical malpractice case. In Clarke v. Oregon Health Sciences University, the plaintiff’s damages totaled over $17 million. However, OTCA party limitations required Oregon Health Sciences University (OHSU) to be substituted as the sole defendant. The damages recoverable by the plaintiff under these OTCA limitations capped the damages to $200,000. The Court determined that the statute as applied in this case clearly denied the plaintiff a constitutionally sufficient remedy. However, the Court went on to say the OTCA is constitutional as written. The Court ruled that while it was legal for the legislature to limit OTCA remedies, it was not permissible to eliminate the ability of the plaintiff to sue individual defendants (OHSU employees) whose negligence might have caused the injuries.
In 2009 the Oregon Legislature addressed this ruling in Senate Bill 311 which amends certain parts of OTCA, and repeals the previous statute setting damage limitations. New damage limits range in the millions rather than thousands of dollars. Furthermore, the new legislation widens the number of parties a plaintiff in these tort cases may sue, and sets the damages limits with respect to the state, officers, employees and agents acting within the scope of their employment or duties. The legislation will regulate liability limits for the state and other public bodies, and makes clear that OHSU, a state entity, is covered by the legislation. The OTCA legislation does not allow punitive damages.
Finally, the new legislation creates a legislative Task Force to study the impact of the new legislation and the operation of other laws governing tort liability of public bodies. The new laws will take effect July 1, 2009.
Sources: Oregon Senate Bill 311, 75th Oregon Legislative Assembly. Clarke v. Oregon Health Sciences University, 343 Or. 581, 175 P.3d 418 (2007). Jensen v. Whitlow, 334 Or. 412, 51 P.3d 599 (2002).
By Law Clerk Lincoln Herman
“Rainwater Harvesting”
These are systems designed to capture water that runs off the roof of a structure. Under Oregon Law you may only capture the water that runs off of your roof in one of these systems. The purpose is to create a store of water that can be reused both in and outside of the structure. For example, water collected in a rain barrel may be reused for gardening. Also, water collected in a cistern system may be filtered.
There is a large volume of water that may be collected from a roof. For example, a home near Portland with a footprint of 2,000 square feet has a runoff of just over 39,000 gallons per year. All of that water may be captured and reused. The national average for household water usage is 127,400 gallons per year. Accordingly, a reduction in fresh water usage of almost one third is possible.
By Law Clerk Lincoln Herman
“Water Conservation Systems”
These are systems designed to capture gray water from your house. Examples of gray water are the water that flows out of your bathtub. The premise is that the water can be captured, filtered and reused for toilet flushing. The result is a measurable reduction in the amount of potable water that is used for supplying toilets. The benefit is a drastic reduction in the amount of fresh water that is used for a given structure. Specifically, the average household flushes a toilet six times per day per person. Consequently, a household of four will use just over 14,000 gallons per year for flushing toilets, assuming all of your toilets are low flow (1.6 gallons per flush). The ability to substitute the gray water for fresh water can result in not only a marked reduction in water usage but in cost savings as well. The guide also provides information about the various sizes of systems available, where to purchase the system, how to install it and how to maintain it.
The use of a water conservation system is an approved alternative to the state plumbing code requirements for supply of water to toilets. It is important to note however that complete capture of gray water is not possible at this time. This is because state law does not allow the capture of water from kitchen sinks or dishwashers due to the potentially high salts, fats, oils, food particles, and corrosive detergents content. These systems are regulated under Part II of Chapter 16 of the Plumbing Specialty Code of Oregon. More specific regulatory information concerning these systems may be found at: http://www.cbs.state.or.us/bcd/programs/plumbing/2008_opsc/Chapter_16_Pt_II.pdf.
By Law Clerk Lincoln Herman
Rainwater Harvesting and Water Conservation Systems: a Guide to Smart Water Capture and Reuse.
The Oregon Building Codes Division recently published Smart Guides for Rainwater Harvesting and Water Conservation Systems. These guides are filled with valuable information relating to collecting water from sources such as roof runoff as well as bathtubs, showers, bathroom sinks and washing machines. Additionally, the guides provide technical data concerning the planning for and installation of systems for the collection of water from these sources. Electronic copies of these guides may be found at www.cbs.state.or.us/external/bcd/.