The importance of maintaining and protecting water rights is more crucial then ever. Oregon agriculture, supported by valid water rights, has long been the State’s leading sector of the economy. The impacts of Oregon agriculture are felt state and nationwide. A relatively new organization emphasizes the philanthropy of farmers around Oregon.  Farmers Ending Hunger is an organization that was formed to harness the production power of Oregon’s farmers to tackle hunger statewide.  Farmers Ending Hunger recently recognized one of its first farmer contributors, Darrin Ditchen of Golden Valley East Farms near Silverton, Oregon.  Ditchen has contributed wheat for pancake mix and frozen peas to the Oregon Food Bank.  To learn more about Farmers Ending Hunger and Darrin Ditchen’s contribution, visit Farmers Ending Hunger. You can also hear Darrin’s thoughts on farmers’ contributions to ending hunger in Oregon as featured on Oregon Public Broadcasting’s April 21, 2009 program Think Out Loud.

As evidenced in the recent amendments to proposed HB 3369 concerning revisions to loan and grant funding for Oregon water projects, climate change issues are finding their way into Oregon statutes. One might ask if this is proper given the lack of science surrounding climate change issues.

The Environmental Protection Agency realizes that the science is not fully developed. Specifically, the EPA states: “Important scientific questions remain about how much warming will occur, how fast it will occur, and how the warming will affect the rest of the climate system including precipitation patterns and storms.” http://www.epa.gov/climatechange/science/stateofknowledge.html. To answer these questions with any degree of certainty will thus require advancements in scientific knowledge in many areas including “determining the relative contribution to climate change of human activities and natural causes.” Id.

With so many unknowns as to climate change analyses, it is likely an exercise in futility to put any climate change analysis into the requirement mix for a water project loan application. Oregon House Bill 3369 currently provides that anyone making a loan application include project impacts such as the “expected environmental public benefits including a plan describing possibilities for adaptation of the project in response to long term climate change.” Other proposals in this Bill require analyses as to “global” climate change. Can one even begin to outline possibilities to adapt a project to “long term” climate change when “questions remain” as to the affects of warming on the climate systems? Adding such provisions to a loan and grant application would be futile to the success of any water project funding program. Perhaps more importantly, Oregon and the west have a long history of considering water shortage implications to water projects and infusing climate change with a unique status is unnecessary.

If the State of Oregon is going to have a successful funding program for water projects, having mandatory provisions to consider “the likely impact of global climate change in regard to the project,” is simply unnecessary, bad law.

Tough times dictate that we cut our discretionary spending.  Property owners may defer some maintenance and other due diligence.  But spending money on education and protecting your property interests must be considered a continued important investment that is not discretionary.

Hunkering down and waiting for it to pass us by will not work.  Business as usual will not work because the usual isn’t any more.  Everything has changed. It is unlikely that what we once thought “normal” will ever be again.

For only $75, you will be both educated and entertained at a full day advanced water rights educational seminar.  Register at www.water-law.com.  If you missed our bootcamp, no matter:  We will answer any questions you bring to the advanced seminar to raise you to the advanced level!

Another opportunity for only $375 is to have us make a specific public records request and pull all your water rights files to provide you with a full electronic copy. Likely you keep your deed to the property is a safe place, your water right files should have equal status.  Many property owners have more value in their water rights than the dirt and don’t even know it.  At minimum, we recommend obtaining your water rights files.  Email Ms. Daryl Cole:  d.cole@water-law.com to obtain a water rights authorization form to make this due diligence investment.

Most Western states allow an exemption from water right permitting for domestic wells.  In New Mexico this exemption was recently challenged as being inconsistent with the prior appropriation doctrine.  Other western states seek to legislatively limit the scope of such exemptions.

Oregon which has perhaps the broadest statutory groundwater exemption is seeking in this legislative session to reduce the allowable group domestic exemption.  Given the pressure to establish critical and limited groundwater areas in Oregon, such a reduction should be given some environmental and practical consideration.

Interestingly, the opponents to the reduction come from the agricultural sector, those who are most affected by group domestic withdrawals which impact aquifer recharge and thus critical and limited groundwater area water rights.  One must presume that the natural law rights to domestic water weigh heavier in the minds of the opponents than the allocation issue.

Though much of the news out of Salem involves discussion of the budget and shortfalls, the 2009 Legislature is considering some important water bills with an immediate impact on water use in Oregon. The summary below includes three water bills that are of interest. We encourage you to contact your Senator or Representative regarding your support, objection or suggested amendment to any of these bills.You can find contact information here: http://www.leg.state.or.us/findlegsltr/

SB 740: Provides for the Water Resources Department to charge an annual fee on holders of water rights. The fee proposed is between $50 – $300 for individuals and up to $1,200 for larger entities. The purpose of the fee is to create an operating fund for the Water Resources Department which currently receives 70 – 75% of its budget from the general fund. The bill proposes that failure to pay the annual fee will be grounds for cancellation of the water right.

The Oregon Ground Water Association (OGWA) is holding their Spring Technical Conference on March 6-7, 2009 at the Oregon Garden Resort in Silverton Oregon.

Schroeder Law Offices’ Therese Ure will join the panel discussion on Government Affairs which will discuss and consider the 2009 Legislation’s proposed bills relating to the ground water industry.

For more information, you can contact Therese Ure or view the OGWA’s website at www.ogwa.org.

In Senate Bill 424, Oregon considers changes to the water right forfeiture law. Currently a water right in Oregon is subject to forfeiture if the water has not been applied to beneficial use under the certificate once in every five year period. As proposed, this bill sponsored by Senator Girod and Representative Gilliam would allow certificated water right holders to file affidavits for exemptions to the forfeiture clock in certain very limited instances. These limited instances include crop rotation or tiling. The responsibility of filing the affidavit is placed on the water user and must be done in the same calendar year as the crop rotation or tiling was done in lieu of irrigation under the water right certificate.

We suggest that an exemption via affidavit should be made available for any reason, not just crop rotation and tilling. This would allow certificated water right holders to make environmentally sound decisions to use less water and not simply to waste it for purposes of “holding” onto the right.

Oregon might look to the broader Nevada law found at NRS 534.090 that allows the certificated water right hold to submit an affidavit in the 5th year of non-use and accepts reasons such as good cause, unavailability of water, economic conditions or natural disasters, prolonged period of precipitation wherein appropriated water use is not needed, and efficiency of irrigation and water use practices to excuse the non-use. In addition, Nevada’s law provides consequences, in that a certificated holder must file a proof of beneficial use once he has filed a non-use affidavit. This would provide the “checks and balances” to assure that use continues as required.

The Oregon bill as proposed requires the water user to be overly cautious in filing an affidavit in the same year as the non-use, however that same user might be able to apply water to beneficial use in the following year or two years, thus creating the need to simultaneously file an extra burden, and quite frankly not needed to meet the 5 year burden in many instances. In this regard, the Oregon law as proposed would also increase in administrative burden to the Water Resources Department unnecessarily.

The concept is environmentally sound; however, we would encourage the Senators to look at NRS 534.090 for further guidance.

On Tuesday, January 27th while speaking on hot topics in water at the annual Oregon Water Coalition meeting in Hermiston Oregon, Laura Schroeder, Cortney Duke and Therese Ure announced the Schroeder Law Office new Hermiston Oregon location.

Attorney Therese Ure will be making a monthly rotation of up to 10 days a month in the Hermiston, Schroeder Law Office location. In general, Therese will be in the Hermiston office during the first week of the month. Appointments can be made with Therese by contacting Ms Daryl Cole at 1-800-574-8813. You may also contact Therese directly via email at t.ure@water-law.com or via telephone at 541-612-4840.

Schroeder Law Office attorneys represent water users, municipalities, agri-businesses, and other agricultural based organizations in Oregon, Nevada, Washington, and Idaho. Laura Schroeder is also working as a water consultant internationally. Attorney Ure’s practice focuses on agricultural and rural water issues. She is well suited to this focus being a native of rural eastern Oregon and a member of a fourth generation of family farmers.

Schroeder’s law practice includes offices in Portland Oregon and Reno Nevada.

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In January 2009, Schroeder Law Offices’ Therese Ure was elected to serve on the Agricultural Law Section’s Executive Committee for the Oregon State Bar. This section, among others, monitors issues facing agricultural interests and also provides guidance and comment to the Oregon State Bar on new legislative ideas, such as the Oregon Water Courts proposals that are facing the Judicial and Administrative sectors in the state. Therese is working with the committee to organize their annual early summer CLE program. This year the topics for this seminar will surround estate and land planning issues for the agricultural client including tax exemptions.

Therese, a native of Eastern Oregon and a member of the fourth generation of family farmers is especially dedicated to the agricultural interests. Therese continues to focus her legal practice in water rights, easements, public lands, and grazing rights, among other things.

For more information on the Agricultural Law Section you may contact Therese Ure at t.ure@water-law.com.

The Oregon Water Coalition has asked Laura  Schroeder to present Chet Prior with its annual “Friend of Farmer” award on January 27, 2009, in Hermiston, Oregon.

The Oregon Water Coalition actively supports water development projects including the recently funded research to develop aquifer recharge and aquifer storage in the critical ground water areas located in Morrow and Umatilla Counties.

Attorneys Cortney Duke and Therese Ure presented a half day seminar at the January 27 Hermiston meeting on “hot topics” in water law including: exempt well use, sharing and stacking groundwater exemptions;  critical groundwater regulation and compliance; forfeiture of water rights in critical groundwater areas; reclamation contracts and jurisdiction; Overlap of Division 33/Peak Flows, Division 9 and Scenic waterways; and Oregon water courts.  Many of these topics may be considered in the 2009 session of the Oregon Legislature and in the Oregon administrative rule making process.

For the Oregon Water Coalition’s 2009 Annual Membership Meeting and Water Conference, Laura A. Schroeder, Cortney D. Duke, and Therese A. Ure will present a two hour seminar covering two main topics including:

1) Ground Water
a) Critical Ground Water
b) Division 33 Rules
c) Peak Flows

2) New Legislation
a) SB 1069
b) Long Term Planning
c) Columbia River Mitigation

The conference will be on Tuesday, January 27, 2009, from 8:30 AM to 1:15 PM at the Hermiston Conference Center. 415 S. Highway 395, Hermiston Oregon.

For registration and more information contact 541-567-6151

2,4-D is a herbicide commonly used to attack broad leafed plants, but it is less harmful to grasses. In agricultural applications, herbicide is applied to wheat, small grains, sorghum, corn, rice, sugar cane, low-till soybeans, orchards, rangeland, and pasture. Others mix it with other herbicides or pesticides for application onto non-producing lands such as roadsides, lawn turf and forestry. 2,4-D is one of the widest used herbicides in its class for weed control.

On November 6, 2008, the Natural Resource Defense Council (NRDC) filed a petition with the Environmental Protection Agency (EPA) requesting the EPA to revoke the use of 2,4-D via revoking all tolerances and canceling all registrations for the pesticide. NRDC believes that the petitioned action would create proper compliance with the safety standards of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and the Federal Food Drug and
Cosmetic Act (FFDCA), section 408, as amended by the Food Quality Protection Act (FQPA) of 1996.

You can submit comments to this petition that must be received by the EPA on or before January 23, 2009. Send comments to the EPA: 1) via following the links to submit comments online through the Federal eRulemaking Portal: http://www.regulations.gov, or 2) mail to: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

Reference Docket No. EPA-HQ-OPP-2008-0877 on all comment submission to the EPA.

For more information go to: http://www.epa.gov/fedrgstr/EPA-PEST/2008/December/Day-24/p30527.htm

The Oregon Department of State Lands is holding a series of workshops covering the administrative rules pertaining to Removal and Fill permitting. These workshops will be very useful for anyone requiring a Removal-Fill permit within wetlands and waters of Oregon. To see a schedule of the time and place of the workshops please visit http://www.oregon.gov/DSL/docs/removal_fill_rule_hearings_nov2008.pdf

Throughout the fall of 2007, facilitators from Oregon State University, private business and Representative Jackie Dingfelder, Chair of the House Energy and Environmental Committee,  conducted a series of roundtable meetings throughout the State of Oregon to discuss Oregon’s current water needs and priorities with water users and citizens of this state. The stated purpose of these meetings was to idenitify Oregon’s water issues, opportunities and threats as viewed by water users, water purveyors, local governments, environmental groups and citizens, with an eye toward developing an Oregon plan for long-term water supply. The Governor’s office, the Oregon Legislature and the Oregon Water Resources Commission were all represented at these  meetings.

The facilitators of these meetings have prepared a synopsis of the “findings” from each  roundtable held this fall. You can find and review the synopsis here: http://water.oregonstate.edu/roundtables/docs.htm

The Bureau of Reclamation recently announced they are seeking letters of interest from non-Federal entities throughout the western states to conduct river basin or sub-basin studies.  The Bureau is conducting the studies as part of the Water for America initiative. The Basin studies are to be cost-shared on a 50/50 basis with state, tribal and local partners. Letters of interest must be received by regional Reclamation offices by February 4, 2009.

For more information  including regional office information please see: www.usbr.gov/wfa

Applicants obtain water rights through Oregon Water Resources Department (OWRD) in a process dictated by statute and rule.  There are three general phases to obtaining water rights:

1. Water Right Application
2. Water Right Permit
3. Water Right Certificate

The administrative process undertaken by OWRD from the application stage to the certificate stage is detailed and specifically governed by the applicable rules. Because the process can be extremely time consuming – taking at least 6 – 8 months to obtain a permit after submission of an application and 10 -15 years to obtain a certificate after perfection of a permit - it is important for an applicant to understand the rules and time-lines involved. Understanding the process can help “speed” the process along.  For a complete discussion of the administrative process and applicable time-lines please go to: http://www.water-law.com/resources/OregonProcessing.html

A meeting was held on Monday, November 3rd wherein many landowners were educated on many issues surrounding the B2H high powered transmission project.

For more information on the meeting, follow this link: http://www.argusobserver.com/articles/2008/11/04/news/doc49108e808f901907365579.txt

Schroeder Law Offices was in attendance at this meeting and urged landowners to participate in submitting comments to the Bureau of Land Management and Oregon Department of Energy. Comments are due (and must be received by) November 14th and should be submitted to both agencies at the following addresses:

Boardman to Hemingway Project
Attn: Lucas Lucero
Bureau of Land Management
4701 N. Torrey Pines Drive
Las Vegas, NV 89301
Fax: (702) 515-5010
B2HComments@blm.gov

Boardman to Hemingway Project
Attn: Adam Bless
Oregon Department of Energy
625 Marion St. NE
Salem, OR 97301
Fax: (503) 373-7806
Adam.bless@state.or.us

For more information, or legal assistance in drafting comments, contact our office at 503-281-4100.

To get a working basic knowledge of water law in Oregon, consider attending a Water Law Bootcamp. Laura Schroeder teaches an all day educational water law seminar for free. The sponsoring organization, usually Water for Life, provides coffee and lunch and charges less than 25% of other similar continuing education accredited seminars.

As a former educator with a major in Theatre, Laura makes the day not only educational, but fun and entertaining! The day is filled with information on the history of water law; the prior appropriation doctrine; obtaining permits, extensions, transfers, and certificates; avoiding forfeiture and abandonment; and general due diligence tips related to water marketing.

By Laura Schroeder 

The B2H Project will construct a new high power (500 kilovolt) electric transmission line over 298 miles of private and public lands throughout North-Central to Eastern Oregon and Idaho. The B2H Project is currently scheduled to begin construction in 2011 and begin service in 2012. Between now and 2011, the project is undergoing the permitting and engineering phases. There are opportunities to participate and submit written comments!

This project will affect landowners’ property interests. Approximately 86% of the project crosses private land. The other 14% is land managed by the Bureau of Land Management, the United States Forest Service, the States of Oregon and Idaho, and other various public entities. In the last month, approximately 800 landowners received a mailing from Idaho Power providing notice of the project. These landowners hold property interests in the “notification zone.” Idaho Power will work to acquire easements, and or rights-of-way (ROW) with the private landowners. In some cases, Idaho Power may purchase the land in fee simple. If these options fail, Idaho Power will acquire easements and ROW through eminent domain.

The ROW will be approximately 250 feet wide, however, the proposed corridors, including alternate corridors, maintain a 2 mile width for evaluation purposes. The average distance between the 100 to 190 feet tall lattice steel towers and H-frame steel power structures will be 1200 to 1300 feet. The amount of land affected during construction includes 13,500 acres whereas the land affected during operation will include 7,550 acres. During the scoping meeting, each landowner is encouraged to provide written comment to question and discuss the limitations of these identified corridors. The landowner knows best!

Because this project traverses both public and private lands, two review procedures will occur simultaneously. These processes include National Environmental Protection Act (NEPA) compliance at the federal level via an environmental impact statement (EIS). BLM will be the lead agency in charge of the EIS. On a local level, the Oregon Department of Energy, Energy Facility Siting Council (ODOE-EFSC) reviews the Notice of Intent (NOI) received from Idaho Power. The NOI is then noticed to the public and persons can submit their written comments to the NOI which is available on the project website. The NOI was submitted on August 28, 2008.
-Public Written Comments to the EIS Scoping phase are due on November 14, 2008, and can be submitted to the Federal Project Manager, Lucas Lucero at 4701 N. Torrey Pines Dr., Las Vegas NV 89130.
-Public Written Comments to the ODOE-EFSC are also due on November 14, 2008, and can be submitted to the Energy Facility Analyst for ODOE, Adam Bless at 625 Marion St. NE, Salem OR 97301.

Transmission lines over private property do affect property values and options. Humans and animals are sometimes affected when living under or near transmission lines. Health and safety issues must be considered in light of the public need for these transmission lines.

Public information and scoping meetings are being held in October from 4:00 pm to 7:00 pm at the following locations. You are encouraged to attend!
• October 21: Marsing, Idaho (Marsing American Legion Comm. Cntr, 126 N. Bruneau Hwy)
• October 22: Ontario, Oregon (Four Rivers Cultural Cntr, 676 S.W. 5th Ave)
• October 23: Baker City, Oregon (Baker County Fairgrounds, 2610 Grove St.)
• October 28: Island City, Oregon (OSU Agricultural Service Cntr, 10507 N. McAlister Rd.)
• October 29: Pendleton, Oregon (Pendleton Convention Cntr, 1601 Westgate)
• October 30: Boardman, Oregon (Port of Morrow Riverfront Cntr, 2 Marine Dr.)

For more information, copy and paste this link in your brower: http://www.boardmantohemingway.com/default.aspx

At Schroeder Law Office we are versed in navigating through the permitting process, submitting comments to BLM and ODOE, and protecting property interests. Submitting comments is an imperative part in protecting your property interests. Please contact our office if you have any questions or desire to employ our assistance.