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.

North Idaho Adjudication Ramping Up

With Idaho set to wrap up a 27-year water-rights adjudication of unprecedented scale nationwide, water administrators are gradually shifting their focus to the state’s northern basins and a procedure expected to take only a fraction of the time as the Snake River Basin Adjudication (SRBA).  The SRBA — involving all Idaho-situated tributaries of the Snake River, which extend over 90 percent of the state — will become the nation’s largest general adjudication brought to completion.  In comparison, the North Idaho Adjudication (NIA) will encompass parts of only six counties and stretches just 180 miles south of the Canadian border.

Three Phases

In actuality, the North Idaho Adjudication has been under way since 2008, and the first of its three phases, covering the Coeur d’Alene-Spokane River Basins, has predominantly taken shape. Nearly 11,500 claims have been filed, and director’s reports for all five basins are anticipated by mid-2016. The second phase of the NIA, involving the Palouse River Basin, is expected to commence next summer, while the third, for the Clark Fork-Pend Oreille River Basins, is projected to start before 2020. The state’s Adjudication Court anticipates it will see claims filed for up to 30,000 water rights, or roughly one-fifth the number it processed during the SRBA.

While the NIA’s scope promises a far more expedited process than did the SRBA, so does the experience gained in the prior adjudication. The Fifth Judicial District Court in Twin Falls will retain jurisdiction — although the staff will travel north on occasion, a majority of the court’s business will be conducted by way of video or audio teleconferencing — and the Idaho Department of Water Resources (IDWR) has become adept at handling whatever issues arise, whether they require extensive site investigations or guidance on basic procedural matters.

Water Rights Holders’ Responsibilities

Holders of water rights predating the NIA’s November 12, 2008 commencement must participate or the right will be extinguished once a final decree is entered. Rights that fit the statutory definition of domestic or stockwater use are deferrable, but IDWR advises such users to file claims as well, considering the insignificant cost ($25) as compared to the benefit of having a decreed right.

This may prove vital for users in Kootenai County — where Coeur d’Alene is located — if the state of Washington establishes proposed in-stream flows for the Spokane River in stretches west of the Idaho state line. Although Washington has no administrative authority over water users in Idaho, observers anticipate conflicting interstate demands will ultimately lead to litigation and an interstate compact.The priority date for the involved rights may very well determine which State (and its users) prevails.

For more information, go to http://www.idwr.idaho.gov/WaterManagement/NorthIdAdju/default.htm

On July 15, the California State Water Boards passed Resolution No. 2014-0038 to adopt urban water control regulations. These regulations are aimed at conservation for urban residents, providing fines for using water inconsistent with the conservation measures. Among the measures aimed at curbing water use, the Water Board has proposed restricting activities on individuals including:

(1) The application of potable water to outdoor landscapes in a manner that causes runoff such that water flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots, or structures;

(2) The use of a hose that dispenses potable water to wash a motor vehicle, except where the hose is fitted with a shut-off nozzle or device attached to it that causes it to cease dispensing water immediately when not in use;

(3) The application of potable water to driveways and sidewalks; and

(4) The use of potable water in a fountain or other decorative water feature, except where the water is part of a recirculating system.

Performing any of the above activities subjects the offender to civil fines or criminal penalties (as a criminal infraction), punishable by a fine of up to five hundred dollars ($500) for each day in which the violation occurs.

Additionally, urban water suppliers and public water suppliers are required to implement water restrictions on outdoor irrigation of ornamental landscapes or turf with potable water. Under the restrictions, ornamental landscaping and turf cannot be irrigated for no more than two days per week.

The regulations are planned to take effect on August 1, 2014 following review from the Office of Administrative Law, and the restrictions will be active for a period of 270 days (nine months), unless water availability conditions change.

As the drought in the Western US continues, communities can expect to see more of these types of water control regulations moving forward.

For more information, see the California Water Board’s Media Release.

On June 4, 2014 U.S. Senators John Barrasso and Mike Enzi introduced the Water Supply Permitting Coordination Act (S.2427). Representatives Tom McClintock and Cynthia Lummis introduced an identical bill in the House on January 31, 2014 (H.R.3980).

The intent of the Act is to make the process for approval of surface water storage projects on Federal lands easier by designating the Bureau of Reclamation (“BOR”) as the agency in charge of the permitting process. The BOR will be responsible for identifying appropriate Federal agencies and providing notification of the opportunity for these agencies to participate in the permitting process as cooperating agencies. The State in which the project is located may choose to participate in the project as a cooperating agency, thus making all State agencies subject to the Act. Additionally the Act charges the BOR with coordination responsibilities in the preparing of a unified environmental review document for the project, setting timelines for project reviews and determinations, and maintaining a consolidated administrative record in an electronic form to allow the material to be available to various parties.

Efficient administration of the permitting of storage projects on Federal lands may provide more irrigation options to our nation’s farmers in areas where appropriation from direct surface flow is limited due to geography. Contact Schroeder Law Offices for additional information as we follow this legislation!

For municipalities tasked with eliminating stormwater drainage, options tend to be expensive or regulatory steeple-chases with several iterations of reports, plans, approval processes, and permitting. A recent addition to the municipal toolbox of reducing stormwater runoff is the incorporation of Low Impact Development (LID) techniques that can serve as an alternative to the typical stormwater channelization and drainage systems.

The focus of LID is to improve water quality concerns with stormwater runoff; that is by using runoff on the site where it falls, as opposed to conveying the runoff to other locations and transporting pollutants, including sediments, with the runoff. Some of the techniques used include biofiltration and retention basins and swales, rain gardens, green streets, pavement minimization, and permeable pavements. In addition to reducing discharge into adjacent waterbodies, LID implementation can increase groundwater recharge and possibly lower demands on landscaping irrigation. Part of the driving force behind LID developments includes regulatory pressures from state and federal agencies. The Clean Water Act and National Pollutant Discharge Elimination System (NPDES) program require qualifying municipalities to develop and implement stormwater management programs under municipal separate storm sewer system (MS4) permits.

Exploring LID techniques may help a municipality decide if these kinds of practices would be beneficial, and incorporating LID as a stormwater discharge in the local planning codes can be a runoff reduction technique that can lower costs associated with MS4 water treatment and meet permitting planning requirements. In Oregon, the Department of Environmental Quality (DEQ) administers the MS4 program permits, and as part of the permitting requirements, some municipalities have developed stormwater management plans requiring new developments and redevelopments to implement LID where feasible.

LID used as a compliance tool in MS4 permitting

Depending on the size of the municipality, the DEQ can require either Phase I or Phase II MS4 permit, with Phase I sources have populations greater than 100,000, and Phase II sources with populations less than 100,000 and located within a Census-Bureau defined “Urbanized Area.” While the municipalities within these classifications are already aware of the MS4 requirements, entities experiencing growth may find themselves seeking waivers or become very familiar with MS4 permitting through necessary compliance.

For those entities already working within the MS4 permitting regime, LID programs within municipal control could offer compliance with permit conditions requiring “Minimum Control Measures” including:

1) Public Education and Outreach on Stormwater Impacts by identifying LID infrastructure with signage explaining the use and purpose of the bioswale, green street, permeable pavements, etc.;

2) Public Involvement/Participation through implementation LID design concepts in the local planning commissions;

3) Illicit Discharge Detection and Elimination through diverting some possible illicit discharges away from the traditional stormwater sewer system and identifying sources of the discharge closer to the originating site; and

4) Post-Construction Stormwater Management in New Development and Redevelopment through implementation of the localized LID policies and requirements, as readily identified to developers by clear planning and design standards.

For those entities not yet required to perform within the MS4 permitting regime, having LID concepts employed could serve as a technique to reduce the overall Total Maximum Daily Loads (TMDL) for stormwater sewer discharges, thereby possibly qualifying the entity for an MS4 permitting waiver under federal regulations.

LID as an alternative or compliment to Injection Systems

Rule authorized injection systems are subject to a laundry-list of certifications and requirements in order to protect groundwater supplies from contamination. Prior to authorizing an injection system, the DEQ requires developers to consider LID concepts when municipal stormwater sewer connections are unavailable, and certify that no other stormwater disposal method is appropriate. LID options offer a municipal or private entity the ability to remove stormwater without the degree of regulatory oversight as with injection systems, and can serve as either a primary way of disposing of stormwater or can complement injection system design by removing stormwater that cannot meet the quality requirements of the injection system regulations.

Issues with implementing LID

As with any proposed method of implementing local zoning regulations and design standards, LID may not be appropriate for the particular application. Planning and zoning codes should not be intended as static one-size-fits-all requirements. Issues could include high water tables, previous on-site contamination, or economic issues involving larger rights-of-way and private landowner compensation. Within the proposed local land use planning codes, drafters should incorporate flexibility into the application of LID requirements, while not making the exemptions so broad as to make implementation useless, should that be the desire of the local leadership. LID implementation could be a way for new development or redevelopment to reduce overall strormwater loads, and could be incentivized with a reduction in system development charges. While LID is not a cure-all to a municipality’s issues with stormwater drainage and treatment, it offers an alternative and an additional tool to use when stormwater discharge regulation is already an issue, or is easily visible on the horizon.