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.

Tired of entities and governments chipping away at your Newlands Project water rights? Schroeder Law Offices will host an informational meeting for water users in the Newlands Project. The meeting will address reduced water allocations pursuant to OCAP regulations governing the Truckee Carson Irrigation District. These reductions may be actionable in court as a breach of contract or an illegal “taking” of property for public use.

Project water users that would like to learn more or that may be interested in participating with a group of water users to pursue these causes of action are invited to attend the meeting. It will be held in from 6:00 to 8:00 pm on March 4, 2009 in the Commissioners’ Chambers of the Churchill County Administrative Complex, 155 N. Taylor Street, Fallon. There is no charge for the meeting and additional information will be provided at that time.

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.

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

Earlier this month, the U.S. Department of Interior and Commerce published final regulations amending certain aspects of the existing Section 7 consultation regulations under the ESA. The new regulations modify the existing regulations by specifying categories of project-specific actions which do not require consultation with permitting federal agencies. The new regulations are aimed at streamlining the permitting process and are supported by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. It is unknown how the new administration might further amend the new regulations.

To review the new regulations click here: http://www.doi.gov/initiatives/ESA_Section7FR.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

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On December 2, 2008 the grand jury in the Federal District Court of Nevada returned an indictment to the court charging the Truckee Carson Irrigation District (TCID) and four of it’s employees: David Overvold, Lyman McConnell, Shelby Cecil, and John Baker with conspiracy to defraud the United States Bureau of Reclamation, falsification of records, false claims, and false statements.

TCID manages the Newlands Project in Northern Nevada pursuant to the Operating Criteria and Procedures established by federal rules and regulation (43 CFR 418.1 et seq.). These federal indictments will have long range effects to those in the Newlands Project!

The charges allege that TCID and its employees essentially mis-managed the district by fraudulently obtaining incentive credits via submitting false data as to water deliveries. The list goes on.

If convicted, each individual defendant faces up to 20 years in prison for each falsification of record count, and five years in prison for each count of false claims, false statements, and conspiracy to defraud the US. The individual defendants also face maximum possible fines of $250,000 as to each count. If TCID is convicted it could be fined for each count twice the gross gain or loss suffered to another, or $500,000. TCID could also be subject to probation and a court-ordered monitoring program, among other things.

TCID is now faced with hiring criminal attorneys to represent the district and the four charged employees. With these costs of all the other pending litigations and issues the district is facing, TCID approved a plan to reduce their work force to approximately half its current size.

What will happen next? Will the water be flowing for the 2009 irrigation season? Stay tuned.

Accepting associations and referrals in Oregon, Washington, Idaho and Nevada, Schroeder Law Offices recently opened its new office in Reno, Nevada.  With a population of 250,000, Reno is at the center of water controversies on the Truckee, Carson, and Walker rivers.

Each of these desert rivers interestingly terminate at a lake with an associated Indian reservations adding to the possible legal issues.  Municipal and agricultural interests use and divert waters from these rivers adding to the on-going controversies over high valued water.  With the official opening of its staffed office in October, Schroeder Law Offices plans to expand its Nevada natural resources clientele.

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.

This fall, facilitators from Oregon State University, private business and Representative Jackie Dingfelder, Chair of the House Energy and Environmental Committee, have conducted a series of roundtable meetings throughout the State of Oregon to discuss Oregon’s current water situation with water users and citizens of this state. The stated purpose of these meetings has been 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 have all been activity involved and represented at these meetings.

We encourage you to attend and participate the last meeting in the roundtable series on Tuesday, October 21 in Salem Oregon.  The meeting will be begin at noon and adjourn at 6:00 pm and is free of charge to attend. For more information please visit: http://water.oregonstate.edu/roundtables/

With food prices at all time highs, agricultural market prices rising, and water rights at a premium, now is the time to plan for the future.  We suggest that water users create and update water management plans with an eye to water rights security, stability, and development.  A water management plan will analyze the current state of the water rights designated and appurtenant to property or other boundary and will provide a tool to consider options for their use, development or marketing.  One can begin this work by emailing Kelley Wesson for a water rights authorization packet.

By Lynn Steyaert and Laura Schroeder

As a result of concerns relating to failures of unpermitted dams, the Department of Ecology issued notice that owners of small reservoirs built without permits must report their dams for safety inspections by September 1, 2008 or face possible fines.  Following an inspection, owners may be required to hire an engineer to provide recommendations on how to bring facilities up to safety standards.

To reduce the possibility of dam breaches that create hazards for people and property downstream, the department has been scanning aerial photographs statewide to locate existing un-permitted reservoirs that are two acres or more that may hold 10 acre-feet of water or more.  Under RCW 90.03.350, the Department is responsible for regulating water reservoirs capable of storing 10 acre-feet or more above ground level for any use. As of August 4, 2008, the Department reported having spotted 594 un-permitted dams of two acres or more, with 244 of those appearing to be high hazard dams.

Owners, who fail to report their reservoirs, obtain needed state permits, and correct deficiencies, may face fines of up to $5,000 per day.  The Department may also order dangerous reservoirs be drained and dams removed.  The Department further recommends that even those reservoirs not requiring a permit, should be designed by licensed engineers and inspected periodically, as the owner may be liable for property damage if their dam were to fail.

At the end of last year, the Nevada Division of Water Resources issued a bulletin to water right professionals notifying them that the Division will be refocusing its review of applications for extension of time for proof of completion of works or extensions of time for proof of beneficial use.  NRS 533.380(3) precludes the State Engineer from granting an extension unless the applicant provided proof that he is proceeding in good faith and with reasonable diligence to perfect the application. Reasonable diligence was defined by statute as “the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all facts and circumstances.”

Unfortunately, the Division has not promulgated regulations that would clarify the type of activities that are sufficient to warranting the granting of an extension.  The application form instruction sheet does provide some examples, however, of what types of activities can be highlighted as indicative of progress made during the previous year, including descriptions of any facility or feature completed, identification of project reports or engineering drawings submitted for review or recorded pursuant to applicable law, and explanation of conditions that adversely effected the applicant’s ability to establish beneficial use.  Other suggestions are viewable on the Division’s website at http://water.nv.gov/Forms/formroom.cfm, on the instruction page of the form entitled NEW Extension of Time.

The Division ended its commentary suggesting that water right professionals should advise their clients that cancellation of their water use permits will result if they are unable to meet the statutory requirements for approval of an extension.

By Lynn Steyaert 

At the end of last year, the Nevada Division of Water Resources issued a bulletin to water right professionals notifying them that the Division will be refocusing its review of applications for extension of time for proof of completion of works or extensions of time for proof of beneficial use.  NRS 533.380(3) precludes the State Engineer from granting an extension unless the applicant has provided proof that he is proceeding in good faith and with reasonable diligence to perfect the application. Reasonable diligence has been defined by statute as “the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all facts and circumstances.” 

Unfortunately, the Division has not promulgated regulations that would clarify the type of activities that are sufficient to warranting the granting of an extension.  The application form instruction sheet does provide some examples, however, of what types of activities can be highlighted as indicative of progress having been made during the previous year, including descriptions of any facility or feature completed, identification of project reports or engineering drawings submitted for review or recorded pursuant to applicable law, and explanation of conditions that adversely effected the applicant’s ability to establish beneficial use.  Other suggestions are viewable on the Division’s website at http://water.nv.gov/Forms/formroom.cfm, on the instruction page of the form entitled NEW Extension of Time.

The Division ended its commentary suggesting that water right professionals should advise their clients that cancellation of their water use permits will result if they are unable to meet the statutory requirements for approval of an extension. 

By Laura Schroeder and Lynn Steyaert

The commencement hearing for the Northern Idaho Adjudication (NIA) is set for August 28, 2008. The State of Idaho has petitioned the court to approve a process for deferring the adjudication of small domestic and stock water use rights.  If approved, small domestic and stock water users may elect to defer filing a Notice of Claim and postpone the adjudication process until a later time.

To qualify for the deferral, the claimant’s uses are limited to those defined as domestic uses pursuant to Idaho Code  §42-111 and stockwater uses pursuant to Idaho Code §42-1401A(11).  Idaho Code §§ 42-111 and 42-1401(A)(11) can be found at the following links, respectively:

http://www3.state.id.us/cgi-bin/newidst?sctid=420010011.K http://www3.state.id.us/cgi-bin/newidst?sctid=420140001A.K 

Despite the availability of the deferral, the Department strongly recommends that such qualified users file a Notice of Claim in the adjudication.  If a user fails to file, and it is later determined that his/her use exceeds the statutory limitations, any claim to water will be limited to only that portion of his/her use that is within the statutorily defined limits.  Additionally, if a water user elects to defer filing a claim, but later needs to seek a change in the place of diversion, place of use, or nature of use or desires to legally settle ownership of his/her rights or seek confirmation of those rights for enforcement purposes, he/she will be required to file a claim prior to proceeding with these actions.  Â

For more information visit the Department’s adjudication web page at:

http://www.idwr.idaho.gov/water/North_Id_Adju/

By Laura Schroeder and Lynn Steyaert 

The State of Idaho recently filed a Petition in the District Court of the Fifth Judicial District of the State of Idaho in and for the County of Twin Falls to commence the adjudication of surface and ground water rights within the Coeur d’Alene-Spokane Basin.

A commencement hearing is set for August 28, 2008, at 10:00 a.m. (PDT) at the Federal Courthouse located at 205 North 4^th Street, Coeur d’Alene.  Any interested party that would like to present evidence or legal argument must file a Notice of Appearance with the Court before 5:00 p.m. (Mountain Time), August 14, 2008, together with a prehearing statement, and a brief or memorandum of law in support of any legal argument.    

The Court will address issues raised in the State of Idaho’s Petition.  http://www.idwr.idaho.gov/water/North_Id_Adju/Final_Signed_Petition.PDF

For more information consult the following links:

IDWR’s adjudication website.

http://www.idwr.idaho.gov/water/North_Id_Adju/  

 IDWR adjudication brochure.

http://www.idwr.idaho.gov/water/North_Id_Adju/NIALogoBrochure%207-29-08.pdf

IDWR Frequently Asked Questions flyer.

http://www.idwr.idaho.gov/water/North_Id_Adju/NIA_FAQ_Card.pdf

The U.S. Geological Survey (USGS) recently released a new report entitled “Ground-Water Availability in the United States.”  The article is written for a broad range of audiences which makes an interesting read for anyone interested in what scientists know (and don’t know) about the nation’s groundwater supply.  In addition, comprehensive maps and diagrams illustrate the varying features of aquifers around the county. 

Several facts and estimates cited in the report truly put into perspective how crucial the groundwater supply is to the country.  One recent study estimated the average pumpage of groundwater in the U.S. in 2000 to be 83 billion gallons per day.  However, compare this figure with the study’s estimate that 1 trillion gallons per day are naturally recharged to the groundwater supply and one might wonder how some aquifers continue to decline.  Part of the answer is some aquifers have much higher recharge capabilities.  As the report explains, the vast majority of aquifers in the arid west are recharged at less than inch per year while most of the eastern U.S. recharges at more than 10 inches per year. 

While broad in scope, the report offers a very comparative glimpse into the unique characteristics of aquifers throughout the country.  Just 20 “principal aquifers” account for about 90 percent of the ground water withdrawals in the nation.  Of these 20 aquifers, seven are located primarily in portions of Oregon, Washington, California, Nevada, Idaho, and Arizona.  Not surprisingly, many of these aquifers are suffering from declining water tables.      

To learn more, follow the link from the following webpage to download and view the document:

http://pubs.usgs.gov/circ/1323/.