By Derek Bradley

Most municipalities have water use permits reserved for their current needs and projected future growth, typically in the form of one or more municipal water rights of use or permits. These water use permits have timelines for the cities to fully develop the beneficial use entitlement. Based on current population and use, cities may not be able to apply the full volume of water to beneficial use by the timeline allowed in the water permit. In order to retain the volume allowed and priority of the water use permit, a municipality may request an extension of time from the Oregon Water Resources Department (OWRD) for additional time to develop the volume of water allowed in their permit.

The Oregon Senate is currently considering Senate Bill 712 (SB712) that could impact how much of the permitted but undeveloped portion is available for future development by Oregon municipalities.  This bill concerns municipal water permits requiring extensions for development that currently are subject to fish persistence conditions, or restrictions on water use to maintain stream flows for wildlife.

SB712 is in response to a 2013 Oregon Court of Appeals ruling, WaterWatch of Oregon v. OWRD, 259 Or. App. 717, decided on December 11, 2013.  In this case, the Court held that the reference to “undeveloped portion of the permit” in ORS 537.230(2), which was passed in 2005 as House Bill 3038,  “is to be measured by reference to the maximum rate of water applied to beneficial use before the expiration of the document deadline in the permit or last-issued extension.” Id. at 742.  The Court’s holding required the fish persistence condition to apply to all water use  not yet  put to beneficial use when the municipality’s previous permit terms or extension expired. For example, if a city held a water right of use by permit to 10 cubic feet per second (cfs) and can demonstrate use of 3 cfs at the time the permit condition expired for development, a condition in granting an extension of time would require fish persistence conditions attached to the remaining 7 cfs.

If the legislature passes SB712, this extension system will change so that the undeveloped portion of the water right permit will be considered to be the volume of water being used by either December 11, 2013, or the time specified to complete construction to perfect the water right in the permit or last approved extension. This alters the quantity of water subject to fish persistence conditions to a specific set date for all municipality extension applicants which would hopefully limit the current unending rounds of litigation that the municipal extensions are currently requiring. This change would also eliminate the large backlog of permit extension applications presently pending with OWRD.  Without this change many cities will have conditions placed on water use they have already begun putting to beneficial use because of the large lag time between expiration of the permit terms and granting of the extension application.  This bill would keep municipalities from the retroactive application of fish persistence conditions being applied to water use presently in use, with some of that usage dating back to the 90s.

Some groups focused on fish habitat view this bill as an attempt to change the terms of the 2005 compromise bill.  However, the intervening litigation since passage of the 2005 act illustrates that the “fish persistence” requirement is procedurally unworkable.  In the meantime, the Oregon courts continue to refuse to adopt the “growing communities” doctrine that would have mitigated the issues presented by the “fish persistence” ideals of fish habitat advocates.

Of course, municipalities are interested in having as much water available for development for their future growth as possible. In addition, the large investment municipalities must make require them to experience as little disruption as possible. This bill seems particularly fair to smaller municipalities that have limited resources to litigate the nuances of the “fish persistence” requirement and need their dollars to invest in water infrastructure with their less flexible water supplies and interconnects to other municipalities and sources.

While it is easy to see the concern of groups opposing SB712, (as it can take well over a decade for an extension to be approved and a municipality can increase their water usage substantially in that time), passage of SB712 will ultimately affect only a small amount of Oregon’s surface source waters.  Once all the current applications are processed by OWRD, all undeveloped municipal permits will have at least a portion of their permitted volumes subject to fish persistence conditions.  With a substantial backlog in extension applications (some cases extending over a decade and a half in water investments already made by some municipalities), SB712 will provide certainty for this state’s towns and cities as they plan how to manage their water use and development for future growth.

The Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“USACE”) have recently released a new waters of the United States rule under the Clean Water Act (“CWA”) that has been in the works for over a year concerning the definition of what are the ‘Waters of the United States.’ The importance of this definition is that anything that is considered a water of the United States can be regulated under the CWA. The scope and effect of this rule are a point of considerable contention among stakeholders. Environmentalists have applauded the rule while industry-led coalitions, including the American Farm Bureau Federation and American Petroleum Institute, have said the rule will stifle economic growth and is overly burdensome on farmers and business owners. Within the Federal Government itself Republican lawmakers have classified the rule as a power grab by the Obama Administration. The joint EPA and USACE press release, however, described the rule as providing clarity as to which waters are governed by the CWA, and that this rule will help alleviate confusion generated by Supreme Court rulings handed down in 2001 and 2006.

The two Supreme Court rulings in question are Rapanos v. Unites States, 547 U.S. 715 (2006) and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC the Court held that the Federal Government could not invoke the migratory bird rule as the reason why it could regulate isolated waters; this is the first case where the Court focused in on whether or not their existed a “significant nexus” between waters attempting to be regulated and navigable waterways. Meanwhile in Rapanos the Court issued a split decision regarding what may constitute ‘waters of the United States’ for the purposes of invoking CWA jurisdiction. The plurality in Rapanos created a ‘relatively permanent flow’ test for deciding whether the Federal Government has jurisdiction over a body of water. Kennedy, in his concurrence, outlined a more expansive test focusing on whether or not a body of water affects the physical, biological, or chemical integrity of a downstream navigable waterway for determining whether or not there was a “significant nexus” between the two.

While proclaiming to have taken into account the plurality opinion as well, it is clear that the EPA and USACE tailored the rule to be more in line with Justice Kennedy’s opinion. This can be seen by the Executive Summary of the Rule quoting Justice Kennedy:

Justice Kennedy concluded that wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 547 U.S. at 780.

In the official discussion of the rule the EPA and USACE outline five different types of waters that this new rule will cover and describe how each of these types of bodies of waters can significantly affect navigable waterways. These five types of waters are Prairie Potholes, which are glacially formed pools in the central north of the country, they generally connect to navigable waterways through shallow subsurface flows or artificially created drainage mechanisms. Carolina and Delmarva bays exist on the Atlantic coast and are formed by precipitation with the bodies of water usually draining into shallow groundwater, these bodies of water tend to be lumped together and/or close to streams. The third type of body of water that the new rule will be covering are pocosins, which are found in the southeastern portion of the country and are peat accumulating wetlands that exist on a hill. Next are western vernal pools which are seasonal bodies of water, they form in wet months in the west and then either drain or evaporate during dry summer months. Finally coastal prairie wetlands found in Louisiana and Texas will be regulated; these are freshwater wetlands that are found in abundance and generally collectively drain to a common river or tributary. The rule goes in to great length discussing why the agencies find each of these types of waters to have a significant nexus to navigable waters. If a body of water on a piece of property is found to connect to similar small bodies of water that are ultimately hydrologically connected to a navigable waterway then they will fall under the jurisdiction of the CWA.

The EPA and USACE press release specifically notes that “ditches that are not constructed in streams and that flow only when it rains are not covered.” The Wall Street Journal reports that only about 3% more waterways will be put under federal jurisdiction with this new rule. But most of the concern regarding the rule surrounds the types of waters that the expansion covers and not the quantity. Four of the five new types of waters outlined in the rule occur in depressions on a variety of land, some of which could be on farmland and/or land used for mining purposes. The EPA and USACE have determined that these types of waters have a “significant nexus” to navigable waters. While the rule doesn’t change exemptions or exclusions to the CWA (including the agricultural exemptions and exceptions), concern arise from landowners being uncertain if a small body of water that forms on their land is a “prairie pothole” or other type of water covered by the CWA, or simply a large hydrologically disconnected pooling of water. Determining the hydrological connections of these pools of water could prove costly.

While the comment period for this rule has closed and the rule will go in to full effect in late July Schroeder Law Offices submitted comments on the draft rules on behalf of our clients. Ultimately, much of the uncertainty concerning this rule will not be clarified until it is in full effect and users/landowners can see how the Federal agencies apply it. Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that may affect you!

The 300 page document outlining and discussing the rule released by the agencies can be found here.

The USACE and EPA Press Release can be found here.

The Wall Street Journal Article can be found here.

The April issue of Nevada Lawyer Magazine focuses on Agriculture Law. Matthew Curti, along with attorney Linda Bullen, authored an article about the importance of submitting comments to Environmental Protection Agency (EPA) rulemaking, as well as National Environmental Policy Act (NEPA) draft Environmental Impact Statements (EIS). The article provides an overview of the commenting process, and also provides tips for writing effective comments.

For the full article, visit http://nvbar.org/articles/sites/default/files/NevLawyer_April_2015_AG_Client.pdf

On February 3, 2015, the Nevada State Engineer issued Order 1250 curtailing 50% of all supplemental groundwater pumping for irrigation in both Mason and Smith Valleys. This action by the Nevada State Engineer was the first time curtailment of this magnitude has taken place in Nevada. Order 1250 determined supplemental groundwater use for irrigation to be a non-preferred use of water. Accordingly, the State Engineer proceeded to “tag” all supplemental irrigation wells identifying those subject to curtailment.

On March 4, 2015, a group of local water users (“Farmers Against Curtailment Order, LLC”) filed a Petition for Judicial Review challenging the State Engineer’s Order.  On March 9^th, the group moved for a preliminary injunction seeking to stop the Order from going into effect. District Court Judge Leon Aberasturi, after hearing argument on the injunction, granted the temporary injunction upon a finding that irreparable harm will occur to the farmers in Mason and Smith Valleys if the curtailment took place as written. The Judge stated that he intends to move this case along to its final ruling as quickly as possible.

For more information on this issue, please visit http://www.rgj.com/story/news/local/mason-valley/2015/04/03/judge-grants-injunction-curtailment/25243335/.

On March 27^th, 2015, California Governor Edmund G. Brown signed into law a $1 Billion emergency drought package. The emergency legislation (AB 91 and 92) provides funding for drought relief as well as to critical water projects in the state. Governor Brown states that “[t]his funding is just one piece of [a] much larger effort to help those most impacted by the drought and prepare the state for an uncertain future.” The bill will offer money for emergency food aid, drinking water, water recycling, conservation awareness, water system modeling, species tracking, and infrastructure and flood protection funding, to name a few.

The full text of AB 91 and 92 can be found at http://leginfo.legislature.ca.gov/.

This all comes just weeks after the California State Water Resource Control Board (“Board”) expanded its Emergency Water Conservation Regulations. The Board now prohibits certain potable water uses such as washing down driveways, and washing a motor vehicle with a hose not equipped with a “shut-off nozzle”, and commercial changes such as restaurants only providing water upon request. (A list of all changes to these regulations, can be found at http://www.swrcb.ca.gov/). Local agencies are able to fine property owners up to $500 a day for failure to implement conservation requirements of the Board.

More information about ongoing action in California pertaining to the drought can be found at http://ca.gov/drought/.

With the 2015 Oregon Legislative Session in full swing, below is a list of water-related bills that may be of interest:

• HB 2207 Authorizes Environmental Quality Commission to adopt by rule procedures for implementing alternative ballast water management strategies for vessels with empty ballast tanks

• HB 2451 Extends maximum loan term for loans made from Water Pollution Control Revolving Fund to 30 Years. Allows Department of Environmental Quality to buy or refinance debt obligations of public agencies for all projects otherwise qualified for financial assistance through Water Pollution Control Revolving Fund.

• HB 2498 Prohibits Environmental Quality Commission and Department of Environmental Quality from adopting any rule or issuing any order concerning water quality that imposes requirements, standards or any other limitation that exceeds requirements, standards or any other limitation imposed under federal law.

• HB 2499 Prohibits Environmental Quality Commission from adopting any rule concerning air quality and water quality that imposes requirements, standards or any other limitation that exceeds requirements, standards or any other limitation imposed under federal law.

• HB 2517 Modifies definition “native fish” for purposes of salmon and trout enhancement program.

• HB 2589 Requires State Department of Agriculture to adopt rules prohibiting application of pesticide products containing nitro-group neonicotinoids.

• HB 2666 Establishes process for county to evaluate whether proposed mining use causes significant change or significant increase in cost when federal or state agency has not issued permit authorizing proposed mining use. Requires county to find that proposed mining use does not force significant change in accepted farm or forest practice or significantly increase cost of accepted farm or forest practices if mining use complies with applicable federal, state and local environmental standards.

• HB 3123 Prohibits application of pesticide by aircraft except under terms and conditions of pest emergency declaration issued by State Department of Agriculture or State Forestry Department.

• HB 3220 Eliminates authority of irrigation districts to condemn real or personal property outside boundaries of district.

• HB 3415 Imposes 10-year moratorium on use of hydraulic fracturing for oil and gas exploration and production.

• SB 0191 Creates guidance document as new form for statement of state agency’s practice, policy or interpretation of law. Provides that issuance of guidance document is not subject to rulemaking procedures. [Although not 100% water-related, this bill relates to the way the Oregon Water Resources Department, Department of Environmental Quality, and Oregon Department of Fish and Wildlife operate, as well as the other Oregon agencies.]

• SB 0204 Establishes Working Forests and Farms Advisory Committee to provide advice regarding three new programs for maintaining or restoring conservation benefits of working forests and farms.

• SB 0205 Creates Task Force on Innovations in Water Quality.

• SB 0261 Increases ballast water trip fee to $88.

• SB 0412 Defines conditions when rock, gravel, sand, silt and other similar material removed from waters of state are and are not solid waste.

• SB 0537 Establishes Task Force on Standing in Proceedings Regarding Water.

• SB 0744 Requires agencies to estimate costs borne by businesses and industrial sectors to comply with proposed rules. Prohibits adoption of proposed rule unless estimated cost of compliance with proposed rule is offset by estimated cost reductions from other proposed rule, amendment or repeal of existing rules or modifications of existing compliance with regulatory burden placed on business, as specified by agency proposing rule. [Although not 100% water-related, this bill relates to the way the Oregon Water Resources Department, Department of Environmental Quality, and Oregon Department of Fish and Wildlife operate, as well as the other Oregon agencies.]

• SB 0829 Directs Environmental Quality Commission to adopt by rule methodology for Department of Environmental Quality to apply certain water quality standards in assessing waters of state.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news about these bills!

On February 5, 2015, the Oregon Supreme Court dismissed the petition for review of the Court of Appeal’s decision interpreting ORS 537.230(2), simply stating, “The petition for review is dismissed as improvidently allowed.”

On December 11, 2013, the Oregon Court of Appeals issued a ruling interpreting ORS 537.230(2), prescribing conditions for the Oregon Water Resources Department (“OWRD”) to grant municipal permit extensions to complete construction and apply water to beneficial use. The conditions require OWRD to approve the municipal water user’s water management and conservation plan, and to make a determination that the municipal permit will maintain the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.

Cottage Grove sought an extension to perfect its municipal permit, but then placed its application on administrative hold while it completed construction and application of water to beneficial use. Cottage Grove lifted the administrative hold after completing construction and beneficial use of all the water under its permit, and OWRD granted Cottage Grove’s extension without the ORS 537.230(2) conditions because Cottage Grove had already diverted all the water allowed under its permit, leaving no portion for imposing conditions upon.

WaterWatch sought judicial review of OWRD’s proposed final order approving the extension without the ORS 537.230(2) conditions. The Court of Appeals ruled 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.

Although the Oregon Supreme Court originally agreed to hear the appeal, it dismissed the petition for review. This means that the Oregon Court of Appeal’s decision in 2013 will guide application of ORS 537.230(2). OWRD must condition municipal extensions on approval of a water management and conservation plan, and must condition development of the remaining water use upon persistence of fish species listed as sensitive, threatened or endangered.

For more water news that may affect you, stay tuned to Schroeder Law Offices’ Water Law Blog!

March 8th through March 14, 2015 is National Groundwater Awareness Week.

Protecting groundwater is essential to human life, and spreading awareness of this resource has gained national attention. Underground water is a primary resource for providing drinking water as well as providing the necessary life force for crop and food production.

To learn more, consider attending one of the National Ground Water Associations webinars and receive information to encourage all Americans to conserve and protect valuable groundwater. To find more ways to get involved, please visit the NGWA website at http://www.ngwa.org/Events-Education/awareness/Pages/default.aspx.

The 2015 legislative session is underway, and on the docket are two Bill Draft Requests (“BDRs”) related to water rights and water resource management. While these BDRs are likely to change significantly throughout the legislative session, below is a brief summary of their contents.

Senate Bill 65 (SB65) proposes changes to the procedure for adjudicating vested water rights in Nevada, as well as revising law related to applications, permits and certificates. The bill draft also revises rules relating to groundwater withdrawals in certain areas. The following may be sections of interest:

• Sections 4, 67, and 75 redefine what constitutes “wasting” water in the state.
• Sections 5-8 and 12-44 are new provisions governing adjudications of vested rights.
• Section 13 adds requirements that the State Engineer set forth the date when proofs of appropriation under a vested claim are to be submitted, and also requires notice to persons who are known to claim rights to a source.
• Section 18 changes rules regarding the order of determination of relative rights during an adjudication, and authorizes the State Engineer to post the order online in lieu of sending a paper copy to each claimant.
• Section 20 states that a hearing on objections to the a preliminary order of determination be held within 60 days after the order is issued, and hearings on such orders are now to be reported by a court reporter.
• Section 32 adds provisions allowing the State Engineer to require water rotation under an adjudicated system.
• Sections 9 and 45-63 amend provisions relating to water right applications, permits, and certificates, and requires to State Engineer to quantify the amount of water put to beneficial use under a certificate.
• Section 54 provides requirements for submitting evidence of good faith diligence in putting water to beneficial use, and allows the State Engineer to deny an extension in an area designated as an active management area or critical management area.
• Section 60 sets a hard deadline for when one must petition the State Engineer to review a permit or certificate cancellation decision.
• Section 64 increases fees before the State Engineer.
• Section 73 requires a person wishing to appropriate groundwater to prove that wildlife interests in springs are protected.

Senate Bill 81 (SB 81) revises provisions relating to the designation and regulation of groundwater basins by the State Engineer and creates and updates provisions for the establishment of “Active Management Areas” and “Critical Groundwater Areas.” The following are sections of interest:

• Section 3 establishes the criteria to establish an active management areas.
• Section 4 creates additional powers the State Engineer can use to more effectively manage active management areas.
• Section 8 further updates rules relating to critical groundwater areas and the signature requirements to petition for such a designation.
• Section 9 adds, as a consideration for granting an extension to put water to beneficial use, active management area designation.

The above is a summary of the primary changes to water law being contemplated at this year’s legislative session.  However, there may be additional issues that may be of individual interest. You can visit the Nevada Legislature website at http://www.leg.state.nv.us/ and review the BDRs in their entirety. Both of these bills have already been heard in the Senate Government Affairs Committees.

On February 5, 2015, the Nevada State Engineer issued Order Number 1251 concerning metering requirements for owners of underground water rights within the Humboldt River Basin Hydrographic Region.

The Nevada State Engineer determined it is in the public interest to assign metering requirements in order to protect underground water within the Humboldt River Basin. Order No. 1251 set February 2, 2016 as the deadline to install totalizing meters in the discharge pipeline near points of diversion for wells within this basin. Within 30 days of the installation of this meter, each owner must file a report of installation with State Engineer. This report is available from the Nevada Division of Water Resources at http://water.nv.gov/forms/.

The Order further specifies that once the installation of the meter is complete, each owner must keep monthly records of the amount of water pumped from each well and must submit these records to the State Engineer within 15 days after the end of each calendar quarter.

The Nevada State Engineer provided a few exceptions to this Order, generally for domestic wells, wells drilled for stockwater or wells with an authorization of less than 5 acre-feet annually. For more information, please see Order 1251 at http://images.water.nv.gov/images/orders/1251o.pdf.

Schroeder Law Offices is happy to provide further explanation and/or review of this Order and how it pertains to specific water rights. We can also assist you in navigating the installation process and metering records reporting to ensure compliance with this Order. If you have any questions or requests for assistance, please call our office at (775) 786-8800.

Schroeder Law Offices, P.C. is pleased to present the Oregon Irrigation District Election Manual.

This manual provides an overview of the Irrigation District election process, and presents timelines and special considerations involved in regular and special elections.

This manual includes the topics of:

• Elector Voting Rights
• Director Qualifications
• Director Nominations
• Voting by Mail
• Pre-election Procedures
• Election Day Responsibilities
• Post-election Vote Counting and Election Certification

Our office has assisted special districts including Irrigation Districts, Water Control Districts, and others in their elections preparations and procedures, and we welcome the opportunity to discuss a special district’s elections with staff and board members needing assistance. The information in this manual should only be relied upon after consulting with an attorney to discuss a special district’s particular situation.

On May 12, 2015 the Nevada State Engineer will begin taking Proofs of Appropriation to determine the rights to the waters of Honey Lake Valley and Skedaddle Creek Valley and its tributaries.

On November 14, 2014, the State Engineer gave notice, through Order Number 1237, of the commencement of taking proofs of appropriation in Honey Lake Valley and Skedaddle Creek Valley. The Order states that all claimants must submit Proofs of Appropriation to the Nevada Division of Water Resources on or before July 18, 2015.

If you have pre-water code water uses in these areas, now is the time to submit your Proof of Appropriation (aka vested water right or vested claim). Our office can assist in determining your water right of use and/or claims in these valleys, as well as assist in preparing Proofs of Appropriation in accordance with the Nevada Revised Statutes.

The USDA Farm Service Agency January 2015 Nevada Newsletter is published. Please review this information for important program deadlines affecting farmers and ranchers, as well as general information related to the Farm Bill and other USDA programs. To view newsletter, click here: http://content.govdelivery.com/accounts/USFSA/bulletins/e98f05

In our April 19, 2013 blog posting, Schroeder Law Offices reported that the United States was undertaking review of the 1964 Columbia River Treaty in preparation for the upcoming 2014 opportunity for either party to seek modification or cancellation of the Treaty through the required notice provisions. September marked the 50 year anniversary of the ratification of the Treaty and accordingly the first date either party could provide the required 10 year notice of its wish to cancel or modify the Treaty.

The Columbia River Basin Development League’s September 29, 2014 News Drops Issue featured an article  from the Wenatchee World noting that while agencies from both Canada and the US have recommended modification of the Treaty, the parties have only begun to “engage internally.” In his October 15, 2014 Newsletter Senator Doug Whitsett provided additional information regarding the status of negotiations between the parties, based on his attendance at a meeting of the Council of State Governments Committee on River Governance, which included a delegation from British Columbia. He reported that one major issue in the negotiations may be the US’ desire to add a third component to the Treaty to encompass ecological management of the Columbia River, including reintroduction of salmon to the upper watershed, upstream from the Grand Coulee Dam into Canada. Mr. Whitsett reported that Canada opposes modification of the Treaty to include ecological management of the River. This position is supported by a 2013 document outlining responses from Canadian Entities to questions from the US Entity regarding the Columbia River Treaty review.

The infrastructure governed by the Treaty is important to the US for flood control reasons, as well as delivery of Columbia River water to Eastern Washington. Additionally, parties in Eastern Oregon have been in negotiations for an agreement to allow delivery of Columbia River water to farmland near Hermiston and Boardman to provide relief to the badly stressed groundwater aquifers in that area. We hope to be able to report positive movement on the Treaty negotiations in 2015.

On December 31, 2014, the Oregon Court of Appeals decided WaterWatch of Oregon Inc., v. Water Resources Department, 268 Or. App. 187 (2014). The Court of Appeals reviewed three final orders for extensions of time for municipal water permits in the Clackamas River. After contested case hearings, the Water Resources department granted the extensions, subject to fish persistence conditions. WaterWatch of Oregon sought judicial review of the final orders granting the extension, challenging, among other things, the adequacy of fish persistence conditions.

As a matter of first impression, the court interpreted ORS 537.230(2)(c), which states:

“[T]he 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. * * *.”

After extensive review of the legislative history of the statute, the court concluded that “the legislature intended that the undeveloped portions of the permits be subject to conditions—that is, fulfillment of the conditions are a prerequisite to diversion of the undeveloped portions—that preserve from decline the continued existence, or endurance, of listed fish species.”

The court interpreted the term “maintain * * * the persistence of fish species,” to focus on the “longterm preservation or endurance of fish population health in the affected waterway. . . . It does not express a policy that no habitat may be impaired or that no individual fish may be allowed to perish or leave.” So while the conditions imposed on a municipal extension of time to maintain fish persistence are required prior to diverting the undeveloped portion of the permit, the conditions must preserve from decline listed fish species over the long-term.

For many years, California was the only Western State not regulating groundwater pumping. However, they are now faced with adjusting to a new system of groundwater use. On September 16, 2014, California’s Governor Jerry Brown signed legislation limiting underground water use by commercial and residential users. The new regulations take effect in January 2015 tasking local government officials to ensure underground water use is sustainable.

This legislation, driven by drought, is believed by Governor Jerry Brown to be a necessary step in protecting the state’s groundwater reserves from depletion. Some question the potential ripple effect on farmers and ranchers across the Northern coast. In fact, groups representing the agricultural industry opposed the new legislation as they turned to underground sources of water to irrigate and sustain their food and fiber crops.

For more information, please read “New groundwater laws to have ripple effect on agriculture” at http://www.pressdemocrat.com/home/2678118-181/groundwater-laws-to-have-ripple.

Oregon follows the Prior Appropriation principle for water use. The guiding principle of the Prior Appropriation Doctrine is “first in time, first in right.” Thus, water users with earlier priority dates may have their water use rights satisfied before junior water users, or may even require junior users to cease diversions, if there is not enough water in the system to supply all uses.

However, Oregon Revised Statute (“ORS”) 536.750(1)(c) allows the Oregon Water Resources Commission to create a preference for human consumption and stock watering uses after a declaration that a severe, continuing drought exists. The creation of a water use preference allows the State to regulate water use in a way that gives priority to junior users for the identified purpose in the preference statute. Here, the State may allow water users to take water out of priority for human consumption and stock watering uses.

A constitutional problem arises when the State regulates water use on the basis of the preference. The United States and Oregon Constitutions provide that private property shall not be taken for public purpose without just compensation. ORS 536.750(1)(c) was enacted in 1989. Water use rights that were perfected prior to the statute being enacted became vested real property rights before ORS 536.750 was in place. Now, based upon the statute and agency regulations (Oregon Administrative Rule, “OAR,” Chapter 690, Division 22), the Oregon Water Resources Department may order a senior irrigation right shut off, while allowing a junior domestic or stock water use to continue. Such an order deprives the senior water user of their priority date, which is a key feature of their water right.

The Oregon Supreme Court outlined the standard for a “temporary taking” under the Oregon Constitution as follows: “We think that, in order to distinguish between a “taking,” on the one hand, and simple administrative inconvenience or delay, on the other, it is necessary to require that a complaining party allege some degree of permanence in its loss. We hold that, in order to assert a claim for a “temporary taking” under the Oregon Constitution, the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical.” Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 199 (1997). Such a denial of all economic value might be proved, in the case of a senior’s water use regulation, by a showing that the senior user’s water use would have remained unregulated had the State not exercised a preference for junior domestic and stock water uses instead, and that such regulation denied the senior water right holder all economic value of their water right during the period of regulation, such as an irrigation season where a portion of a crop was lost.

A drought has been declared in Klamath County, Oregon this year. In response, the Oregon Water Resources Commission (“OWRC”) enacted temporary rules in OAR Chapter 690, Division 20, creating a surface water preference for domestic and stock watering, regardless of priority. OWRC is now proposing to amend the Division 22 rules to extend the preference to groundwater as well. The proposed rules are available on the Oregon Water Resources Department website at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.

A second public hearing on the proposed Division 22 rules will he held September 18, 2014 in Klamath Falls. Written Comments must be received by the Oregon Water Resources Department by 5:00 PM on September 19, 2014. More information about the public hearing and comments is available on the website provided above.

Schroeder Law Offices drafts comments on behalf of its clients to proposed rules or other agency actions. Contact Schroeder Law Offices if you have questions about a government action that is affecting your water use.

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

Earlier this month, the Oregon Water Resources Department announced in this press release that the Department would be submitting a second notice of proposed rulemaking, holding a second public hearing, and extending the comment period for proposed rules that grant preference for “human consumption” and “stockwatering” uses following the Governor’s declaration of a drought. The rules are solely directed at Klamath County, Oregon. After receiving comments from elected officials and concerned local governments stating that there was little notice or public involvement in crafting the proposed rule, the Department decided to hold the second round of comments and public hearings.

Besides making the temporary rule permanent, the rule is different from the original temporary rule in that it eliminates the differentiation between the regulation of surface water to include all water sources, including groundwater. How this proposed rule affects exempt well uses, including “domestic purposes” is unknown, and “domestic purposes” is clearly not included in the definition of “human consumption.”

In addition, granting preference for a particular use does not necessarily translate into a restriction to the access of the water supply. While the Department states that senior calls could “regulate off” a junior user, the preference for a human consumption and stockwatering uses does not speak to restricting access.

The department seems to be conflating the two different aspects between use and access. While shutting off a well or closing a diversion point may be the most efficient method of regulation, granting a preference for human consumption and stockwatering uses would still allow access, and require the department to use a more sophisticated regulation system other than just shutting off the supply: the uses would be regulated, not just the access to the supply. The City of Klamath Falls identified this distinction in its comments, noting its potential role as watermaster for all of its municipal subscribers to enforce the preference of uses as proposed, as municipal uses include industrial and landscape irrigation uses.

The comment period for the proposed rules will close at 5:00 PM on September 19, 2014, and the Commission is expected to take up the proposed rule during the week of September 22, 2014.

The next public hearing is scheduled at 6:00 pm on September 18, 2014 at the Oregon Institute of Technology Mt. Mazama Room, located at 3201 Campus Drive, Klamath Falls, OR.

Schroeder Law Offices first highlighted the proposed rule change to the Clean Water Act in a May blog posting.

Growing opposition to the rule has caused the Environmental Protection Agency (“EPA”) to extend the public comment period through October 20, 2014 from the original comment deadline of July 21.

Opponents and supporters characterize the Revisions to the CWA as either a federal government “land grab” or a clarification of rules depending on point of view.

Opponents generally believe the Rule will give the EPA increased jurisdiction over water adversely affecting farmers and ranchers; while proponents of the change claim the proposal will help eliminate confusion over what types of waters are covered by federal regulations. Texas Attorney General and gubernatorial candidate Greg Abbott submitted comments and threatened to sue if the proposal is not withdrawn. Farm Bureau Federations in Oregon, Nevada, California and nationally are marshaling member support and urging the EPA to Ditch the proposed CWA provisions.

Supporters suggest the proposed rule clarifies issues regarding streams and wetlands.
The article linked here and the photos above demonstrate the varying opinions on the proposed rule change.
Information gathered from a variety of news sources.

Follow this link to leave comments.

Grazing and water use go hand in hand. This year Nevada continues to experience drought conditions causing ranchers and farmers to make adjustments, whether by their own choosing, or by the hand of the government.

On July 23, 2014, Nevada’s Battle Mountain District BLM held a meeting with the Permittees of the Argenta Grazing Allotment. The Permittees were notified that they must remove their cattle from their summer grazing country on the mountain down to the flat because “Triggers” had been met on a couple of riparian sites. There is some concern with the Permittees who feel there is still plenty of feed and water on the mountain and very little of both on the flat. Permittees have also expressed frustration with the time and cost of moving the cattle, hauling in water and the possibility of being forced to bring in the cattle and begin feeding hay much earlier than typical.

The Range Tour is intended to show the public the riparian areas that are the cause of the summer range close down. The tour will also depict a suggested solution by Permittees to fence and protect the sensitive areas to allow for continued grazing in the summer country.

The Tour will start at the Martin Ranch at 9:00 am and will continue through the entire allotment, ending at the Grass Camp for a BBQ. It is suggested that tour attendees bring snacks, plenty of water, and camp chairs for the BBQ. Any and all donations will benefit the Cowboy Express Ride from sea to shining sea in October. Everyone is welcome!

For more information call (775) 635-5610 or visit “Support Nevada’s Ranchers” on Faceboook at https://www.facebook.com/pages/Support-Nevadas-Ranchers/832072560151420.

Directions to the Ranch: Take the middle Battle Mountain, Nevada exit off Interstate 80 that connects to Highway 305, the Austin Highway. Turn South and take the first left beyond the freeway overpass. Follow signs for about 8 miles to the Tomera Ranch.