By Laura A. Schroeder and Tara J. Jackson

The answer to this question may depend on the paperwork you have to document domestic water use at the current or planned residence. When either a building permit or financing is required on a rural residential property, the permitting authority or lender will likely require that the domestic water use provided to the residence has either (1) a water use right for a surface water source or (2) a groundwater well that is properly recorded with Oregon Water Resources Department (“OWRD”) as a groundwater use that is exempt from permitting and bearing a well ID tag. ORS 537.130, 537.545(5)-(6), and 537.789.

As hinted at above, domestic water use from a surface water source is not exempt from OWRD’s permit requirements, meaning it is illegal without first obtaining a water use right from OWRD, while domestic use of groundwater within certain limits is allowed with no water use right. ORS 537.141 and 537.545(1)(d). Seems pretty straight forward, right? If the source of domestic water for your residence is above ground, you need to provide your lender or permitting authority proof of your water use right. If the source of domestic water for your residence is below ground, you need to provide proof of proper recording of the exempt use and that the well is fitted with an OWRD issued well ID tag. BUT WAIT, the domestic water use for your property is supplied by a spring? Well, now the question becomes complicated. Is the spring water, surface or groundwater?

If the spring comes to the surface without a “spring box,” possibly considered a well casing, OWRD will qualify the source as a surface water source requiring a water use right, unless OWRD finds that the source is not regulated as “public waters” because it does not leave the boundary of a private property.[1] However, OWRD rarely finds that water rising to the surface is not leaving the private property so this “private water” exception will not be routinely applied by OWRD unless proven by way of a court proceeding.

To obtain a surface water use right for domestic use of the spring at the property, the use would have had to be (a) registered (ORS 539.240), (2) adjudicated by a Court issuing a decree upon which a certificate of water right would be issued by OWRD (ORS 539.140 and 539.150), or (3) applied for and permitted through OWRD’s surface water permitting statutes and rules (ORS 537.130, 537.140; 537.150, 537.153, 537.170, and 537.211; OAR 690-310 and 690-320). Under the third option, OWRD permitting, a two-year processing window can be expected, even if the statutes and rules provide that water is available for such use.

Up to 15,000 gallons of water per day may be used from a groundwater source for domestic purposes under the exemption provided by ORS 537.545(1)(d). Oregon law defines groundwater as “any water, except capillary moisture, beneath the land surface or beneath the bed of any stream, lake, reservoir or other body of surface water within the boundaries for this state, whatever may be the geological formation or structure in which such water stands, flows, percolates or otherwise moves.” ORS 537.515. Accordingly, if development of the spring required excavation this may indicate that the source of the spring would be characterized as groundwater. For example, if the spring comes to the surface with a “spring box,” the water may then be considered groundwater by OWRD. However, at the current time, it is our experience that OWRD will typically find springs to be surface water. Moreover, if OWRD finds the source of a spring developed by excavation, such as a “spring box,” to be groundwater, it may then choose to regulate the “spring box” or similar structure for failing to meet well construction standards. ORS 537.775 and 537.787.

In addition to the uncertainty as to whether OWRD will characterize your spring as groundwater, such that your domestic use will be allowed without a permit, currently OWRD’s administrative rules only accommodate recording of exempt groundwater use registrations for wells. OAR 690-190-0005. Springs are not included in the statutory definition of a well.[2] As a result, a spring similarly does not qualify for a well ID tag. Thus, while use of a spring for domestic purposes without obtaining a water use permit may be allowable under Oregon law, it may not be possible to document the use to the standard that may be required by your lender or permitting authority.

Further, all wells may not be treated equally in the eyes of a lender or permitting authority. While reliance on ORS 537.545(1)(d) for the right to use water for domestic purposes without a permit from a well does not hinge on OWRD’s characterization of the water’s source, as is the case for a spring, it may still prove hard to obtain documentation for certain wells that will satisfy a lender or permitting authority’s requirements. For example, OWRD’s rules accommodate and require recording of exempt groundwater uses from new wells constructed after July 22, 2009. OAR 690-190-0005(2). Thus, while domestic use from wells constructed prior to this date is still allowed under the exemption, the use will not be recorded.[3] OWRD established the process for obtaining well ID tags in 1996. Accordingly, wells constructed prior to 1996 may not bear a well ID tag, but OWRD will issue a well ID tag for wells constructed prior to 1996. ORS 537.791. In the case where the exempt groundwater use from a well is not recorded, a lender may agree to move forward with only documentation that the well is furnished with the required ID tag, but such a determination, is dependent upon the lender.

THE BOTTOM LINE:  We love water use right puzzles here at Schroeder Law, but if you have a choice, the most expedient and sure method to move forward smoothly with the building permit or loan approval for your rural residential property is to work with a water well drilling professional to drill an exempt well, tapping the underground water source, and using the exemption for domestic use under ORS 537.545(1)(d). Otherwise, the documentation and analysis becomes complicated quickly!

The Oregon Groundwater Association is a great resource for information on reliable water well drilling professionals. Check out their website here!

Stay tuned to Schroeder Law Offices’ blog for all things water!

[1] Norden v. State by & Through Water Resources Dep’t, 153 Or App 127 (1999)

[2] ORS 537.515(9) defines well as “any artificial opening or artificially altered natural opening, however made, by which groundwater is sought or through which ground water flows under natural pressure or is artificially withdrawn.” The statute goes on to say that a well “does not include a temporary hold drilled for the purpose of gathering geotechnical groundwater quality or groundwater level information, a natural spring or a hole drilled for the purpose of:…”

[3] OWRD rules also require an exempt groundwater use from a well that was converted after July 22, 2009 to allow groundwater use for purposes that are exempt under ORS 537.545 after July 22, 2009 to be recorded. OAR 690-190-0005(2).

In the second COVID-19 webinar, Laura Schroeder and Sarah Liljefelt discussed what to do when you receive a notice of cancellation of your water right in Oregon. The webinar aired originally on April 22, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!. Stay tuned to our blog for announcements for information about the next webinars! You can view the other webinars in the series here.

Learn the basics about water rights cancellation, including the types of cancellation applicable to different water use rights, the steps in the process, and how to address or challenge the agency’s cancellation decision. Receive practical information to protect your water use rights, determine if water use rights are in good standing when purchasing new property, and conduct assessments of the water use rights on property you already own. Topics will include:

• Regulation of Exempt Uses
  • What are exempt uses?
  • Can exempt uses be cancelled?
• Cancellation
  • What kinds of water use rights can be cancelled?
  • What is the process for cancellation?
  • How does one address or challenge a cancellation decision?
• Voluntary Cancellation or Abandonment
  • What is abandonment?
  • Why would anyone abandon a water use right?
• Avoiding Cancellation
  • How can a person protect their water use rights from cancellation?
  • What are the best kinds of records to maintain to protect water use rights?

The COVID-19 Webinar series will continued in following several weeks, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Later webinars will cover common water-related issues, including well construction issues, and illegal water uses. Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

As the first COVID-19 Webinar in new weekly series, Laura Schroeder and Therese Ure discussed the ins and outs of how watermasters regulate water in Oregon and Nevada. The webinar aired originally on April 15, 2020 from 12:00 PM to 1:00 PM.  You can view the webinar here! Stay tuned to our blog for announcements and information for the next webinars! You can view other webinars in the series here.

Learn the nuts and bolts of how watermasters regulate water, issue shut off orders, and the rules watermasters must follow to distribute water. Receive practical tips to challenge a watermaster’s decision, potentially preventing enforcement until the decision is reviewed. Topics will include:

• State Watermasters & Agency Roles
  • What are “existing water rights of record?”
  • How a “call” works when insufficient water is available for senior water users
• How Watermasters Enforce Water Codes
  • Oral and Written Orders
  • Final Orders
  • Service and Notice
• Final Order Validity
  • The components of a valid watermaster order
• Review of a Watermaster’s Order
  • Reconsideration, judicial review, and associated timelines
  • Stays in enforcement pending review

The COVID-19 Webinar series continued the following several weeks, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Upcoming webinars will cover common water-related issues, including water use right cancellations, well construction issues, and illegal water uses. Follow our blog for the most up to date information and announcements!

Was your upcoming water law conference cancelled? Or are you itching to learn more about Oregon water law, but could never attend one of Schroeder Law Offices speaking events? Stuck inside due to Covid-19 orders? You’re in luck! Laura Schroeder will be offering a series of free webinars this spring covering a wide range of water law topics on our website.

The current schedule will include:

• How to React to a “Red Tag” From the Water Master Shutting Off Your Water Righted Diversion? (April 15, 2020): This webinar will discuss the role of watermasters, the rules they enforce, and how to challenge incorrect watermaster decisions.
• What to Do When You Receive a Notice of Cancellation on Your Water Right? (April 22, 2020): This webinar covers the grounds for cancellation used by the Oregon Water Resources Department, how a cancellation is initiated, and how to protect your water rights of use!
• What Options Are Available When Your Receive Notice Your Well Construction is Non-compliant? (April 29, 2020): This webinar will review Oregon Water Resources Department and Oregon Health Authority rules regarding well construction, why well construction matters to water rights of use, and options to resolve the problems.
• How to Prepare a Response to a Notice of Violation Concerning Illegal Water Use? (May 6, 2020): This webinar provides an overview of the appeal process for challenging a notice of violation, what tools are available, and how the process works.

Further updates and instructions to attend will be coming soon. Stay tuned to our blog receive updates on these upcoming events and other water news!

Attorney Sarah Liljefelt is honored to be serving as the Oregon Cattlemen’s Association’s Water Resources Committee Chair. She started this role at the beginning of 2020. Sarah has been an OCA member for many years. She is also very involved with the Oregon CattleWomen. With the Oregon CattleWomen, she served as a former Vice President and is the current Legislative Committee Chair.

In her new role, Sarah is using her water law expertise to represent OCA’s members’ interests alongside staff and leadership. She is closely following the Governor’s proposed 100 Year Water Vision to ensure agriculture infrastructure is adequately included. This is necessary to support a resilient agricultural sector and food and fiber supply in the future. She also drafted comments to proposed agency actions involving water quality. That effort includes comments to the Oregon Department of Agriculture’s proposed changes to Water Quality Area Management Plans. Similarly, she drafted comments to the Oregon Department of Environmental Quality’s draft 2018-2020 Integrated Report.

As related to water litigation and legislation, Sarah is providing recommendations to OCA regarding involvement in current water resources cases that may impact Oregon water users for many years to come. She also prepared written testimony and appeared at the State Legislature in Salem to testify on water bills that would negatively impact Oregon water users. For a summary of the water bills of concern in the 2020 short session of the Legislature, see OCA’s article here.

Sarah is committed to representing the interests of water users in the West. She is excited to use her knowledge and experience to help OCA’s members navigate the many water resources challenges they face in order to support the cattle industry.

National Ag Day is March 24, 2020. It’s a special day to recognize and celebrate the contributions of agriculture. We should all “thank a farmer” at every meal and every time we get dressed. Therefore, National Ag Day is an organized effort to do just that. See the Agriculture Council of America’s website for more details: https://www.agday.org/.

Especially today, the agricultural community is showing its every-day-grit. It does so by continuing its important calling of feeding and clothing the world in the face of the current COVID-19 outbreak. Today, children in rural families are home due to school closures. They are working alongside their parents to provide food and fiber for the other 99% of the population. Safety requires shutting down many industries to avoid spreading the virus. However, the agricultural and trucking sectors are working as hard as ever to ensure the rest of us have what we need to weather the storm. Planting, harvesting, milking, and calving do not stop in the face of a pandemic.

COVID-19 Restrictions Exclude Agriculture

Oregon Governor Kate Brown issued an executive order on March 17th prohibiting gatherings over 25 people. Certain organizations (like farmers markets) didn’t know whether they would need to shut down operations as a result of the order. Consequently the Oregon Department of Agriculture issued guidance on March 20th. This guidance identified farmers, ranchers, food processors, farm workers, truckers, and service suppliers as “essential services” that are not required to shut down in response to the Governor’s order.

Schroeder Law Offices extends a giant “THANK YOU!” to the agriculture community. Agriculture is the backbone of the Nation on National Ag Day, during times of illness, and every day! It is truly our pleasure to provide water rights support to the agriculture community on National Ag Day and always.

Photo: The children of Bingham Beef in North Powder, Oregon, hearing “another job” during their extended “spring break.” Photo credit: Carly Carlson.

Schroeder Law Offices is working with COVID-19.

All of us at Schroeder Law Offices are equipped to work in the office, at home, or anywhere. Now we have relaxed our work at home policy. Some of us are well established in our home offices. Consequently, anyone or everyone can continue their work even in the face of quarantine or social isolation during this difficult time.

At Schroeder Law Offices we have long seen the benefits of technology. First of all, we digitize everything that comes into or leaves our office.  Moreover, we have been storing all client related material under the Worldox document management system since 2005. We use TABS3 Practicemaster for all our case management activities. Through technology our attorneys and staff can use Remote Desktop to access what they need anytime.  They can connect with our systems in the office from home or away 24 hours a day, 7 days a week. We are all working with COVID-19.

As a result the COVID-19 situation has not impacted our ability to stay immediately prepared to meet water law issues.  Now, with innovative use of Office 365 and the new and evolving Microsoft TEAMS platform we can enjoy office meetings and client meetings with a nearly face to face experience even when we are far apart.

Our teams have and will continue to have the option to work remotely, access client files, and meet with clients from anywhere on the globe. Laura Schroeder has shown this many times from such faraway places as Kabul, Afghanistan or Yerevan, Armenia.

Right now is a perfect time for Schroeder Law Offices to work on your water law needs.

Every year the Oregon Water Resources Department (“OWRD”) allows 15 districts to change their place of use without going through a long Transfer Application process. This process, called the Irrigation District Pilot Project, allows one transfer application for every irrigation season. The Project started in 2003 and the Oregon State Legislature has extended it several times. Currently is set to sunset or end on January 2, 2022, and the most recent extension was in 2015 through the SB 267 bill. 

Through this program irrigation districts are able to change their place of use within their legal boundary only. A simple process for providing transfers in place of use can allow irrigation districts to better serve their users based on the best availability. 

Below is a list of the Districts who are a part of the Pilot Project for this 2020 season: 

1. Owyhee Irrigation District
2. Tualatin Valley Irrigation District
3. West Extension Irrigation District
4. Westland Irrigation District
5. Stanfield Irrigation District
6. Hermiston Irrigation District
7. Talent Irrigation District
8. Rogue River Valley Irrigation District
9. Arnold Irrigation District
10. Central Oregon Irrigation District
11. North Unit Irrigation District
12. Ochoco Irrigation District
13. Sutherlin Water Control District

If any Districts is unable or does not need to participate in the program, another District may take their place. Districts are identified by OWRD, who then post their information and Watermaster contact information in their public notice, per SB 267 requirement. For more information on types of Water Right Transfer Applications available to irrigation districts visit OWRD’s website regarding district transfers. 

To learn more about all things water browse our Schroeder Law Offices blog! 

Oregon dairy farmers produce great milk products for the northwest! Jakob Wiley attended the Oregon Dairy Farmers Association (“ODFA”) conference in Salem, Oregon this February. The conference included a fascinating keynote presentation by Alison Van Eenennaam of UC Davis. Her presentation addressed the intersection of climate change, dairy products, and cultured meat. Cultured meat is difficult to manufacture at any commercial scale. Her conclusion: cultured meat won’t be available anytime soon. 

Additionally, other topics at the Oregon Dairy Farmers conference included the carbon footprint of dairy products and the looming carbon cap and trade bill, resulting in the flight of Republican lawmakers just before and during the conference. A presentation by Troy Downing at the OSU Extension Service discussed the carbon cycle and its effects on climate. Likewise, David Grimes of the World Meteorological Organization discussed increasing variability in climate. Later, attendees mingled during the receptions with ODFA leadership, other dairy farmers, local businesses, and state lawmakers (at least those still in town!).

At least 200 multi-generational dairy farms provide milk products to Oregon consumers. All of these dairy farms have a “Grade A” license. These licenses allow production, transportation, and processing of milk for sale. You can find more information about dairy licenses here.

Later, attendees tried new products from local dairy companies, sampled ice cream, and visited with local vendors. You can find more information about the Oregon Dairy Farmers conference here. Jakob continues to support ODFA members and assist with their water right problems!

Associate Attorney Jakob Wiley recently co-authored an article titled “Groundwater Management: The Movement Toward Local, Community-Based, Voluntary Programs” in the Kansas Journal of Law and Public Policy (Volume 29, Issue 1) available for download here. Jakob’s contribution provided the western United States’ examples and perspectives for the paper. The paper is a product of a panel discussion at the American Water Resources Association’s 2016 conference in Orlando, Florida presented by the authors.

The article investigates a general trend in groundwater management towards bottom-up, basin-scale, voluntary organizations. This trend contrasts with the traditional top-down, regulatory approach to manage groundwater depletion. The paper analyzes the “voluntariness” of several case studies across the United States, including Kansas’s “Local Enhanced Management Areas” (or LEMAs), the Texas’s Edwards Aquifer Authority, and innovative uses of intergovernmental agreements and water districts in Oregon, California, and Colorado.

Co-author John Peck is a recently retired Connell Teaching Professor of Law Emeritus at the University of Kansas School of Law. Rick Illgner is a retired Groundwater Resources Specialist, working in Kansas and Texas. Constance Owen was formally an administrative law judge for the Division of Water Resources for the Kansas Department of Agriculture, but recently was appointed by the Kansas Senate as Chairperson of the Kansas Water Authority.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

In 2014, the Idaho Department of Water Resources (“IDWR”) proposed adjudicating water rights in the Bear River Basin in Southern Idaho. Now, nearly 6 years later, a bill that would allow IDWR to commence the adjudication is up for legislative consideration. The Idaho House of Representatives unanimously passed House Bill 382 (“HB 382”) on February 10, 2020. The House then sent it to the Idaho State Senate with a “do pass” recommendation on February 11. The third Senate reading of HB 382 is scheduled to occur on February 26.

Adjudicating the Bear River Basin water rights will enable IDWR to “accurately record all existing water rights to resolve uncertainty and to help ensure fair and accurate water administration.” Revised Statement of Purpose RS27284C1/H0382, available here. Many of the water rights in the Bear River Basin hold senior priority dates, but uses have changed over time or are placed to use outside the claimed boundaries due to the passage of time and inconsistent record keeping. Additionally, because of the uncertain nature of many of the water right claims, until an adjudication is completed, senior users who face interference from junior users’ water use cannot seek enforcement of their priorities.

The Bear River Basin is one of only two basins in Idaho that have not yet been adjudicated. In 2014, IDWR signed a final decree closing the Snake River Basin Adjudication (“SRBA”). Several basins in Northern Idaho, including the Coeur d’Alene-Spokane, Palouse River, and Clark Fork-Pend Oreille basins, are currently being adjudicated as part of the Northern Idaho Adjudication project. IDWR’s website provides a summary of past, current, and upcoming adjudications here.

If HB 382 passes the Senate, the final step will be for Governor Brad Little to sign the bill into law. Then IDWR can commence the adjudication by sending notice to water users and property owners within the Bear River Basin. Those users will then have the opportunity to submit claims for historical and ongoing water use. Once the submission period closes, the Court will review all claims and, eventually, issue a decree confirming the water rights.

It is not uncommon for adjudication proceedings to take a significant number of years from their commencement to completion. Idaho has completed its prior adjudications in record time. Even so, the SRBA began in 1987, but a decree was not issued until 2014. Legislature similar to HB 382 authorizing the adjudications in Northern Idaho was passed in 2006; however, Phase 1 of 3 is still ongoing and Phase 2 only just began in April 2019. The Bear River Adjudication would not begin until adjudications in Northern Idaho are complete. Once commenced, it is expected to take 8-10 years.

Stay tuned to Schroeder Law Offices’ blog for updates on the Bear River Basin and other water projects!

Oregon State University’s Family Business 360 Series for 2019-2020 will feature Laura Schroeder in a webinar on February 20, 2020. The webinar will have two parts. 

The first is an introduction to water rights drawing on Laura’s nearly 30 years’ experience as an Oregon water lawyer.

The second part addresses Due Diligence for Sellers and Buyers. This second part includes researching water rights associated with a property; assessing current use and status of water rights; and identifying related water rights.

You can watch this fast paced webinar at noon on Thursday, February 20, 2020. It is free to watch and open to the public. To watch it you must sign up here to receive a link to the presentation. Just scroll down to the February 20 webinar here, click the link and fill out the form. After you sign up the program manager will send your link to the webinar via email during the week of February 17.

By Caitlin Skulan and Lisa Mae Gage

On January 31, 2020 the Nevada State Engineer Tim Wilson issued the Order of Determination of the Relative Rights in and to All Waters of the Diamond Valley Hydrographic Basin. This order is the State Engineer’s final determinations of all the vested claims to water in the Diamond Valley Hydrographic Basin.  Nevada Revised Statutes “NRS” Chapter 533 governs the procedure for adjudications before the State Engineer and Court systems.

Filing Final Order with District Court

Now that a final order is issued, the State Engineer will file the Order of Determination with the clerk of the district court in which the water sources are located. The water rights subject to the Diamond Valley adjudication are not located wholly within one county, rather, they are located in Elko and Eureka counties. Elko County District Court is located in the Fourth Judicial District, while Eureka County is located in the Seventh Judicial District. When this happens, Nevada law directs the State Engineer to notify each of the judicial districts of his intention to file the Order of Determination, at which time the judges are to confer and agree upon where the court proceedings will be held. After the Judicial District is determined, the State Engineer will file the Order of Determination, evidence and transcripts with the court clerk. If the judges fail to notify the State Engineer of their decision within a statutorily prescribed period, the State Engineer can file the Order of Determination with the judicial district of his choosing.

Setting of Hearing on Order of Determination

Once the State Engineer’s record (Final Order, evidence and testimony) are filed with the District Court, the District Court will issue an order setting a Hearing on the Order of Determination. The court will provide the State Engineer with a copy of the Order Setting Hearing and the State Engineer will mail a copy to all interested parties. In addition, the State Engineer will publish the Order setting hearing in newspapers of general circulation for Elko and Eureka counties.

Exceptions to the Order of Determination

If any party feels aggrieved or dissatisfied with the Order of Determination they can file objections. At least five (5) days before the date of the hearing, that party must file with the District Court their objections by filing a Notice of Exceptions to the Order of Determination. This notice must state briefly the exceptions to the order and give the party’s requested prayer for relief.

Hearing on Order of Determination and Decree

If no exceptions to the Order of Determination are filed, on the day of the hearing the Court can issue its Findings of Fact, Judgment and Decree (“Decree”). If exceptions are filed, each party filing exceptions will appear at the hearing. The Court will prepare and provide all parties a copy of its Proposed Findings of Fact, Judgment and Decree at least thirty days before it intends to execute the Decree. Once the Decree has been executed by the District Court, there is a further opportunity to appeal to the Nevada Supreme Court.

While the issuance of the State Engineer’s Order of Determination is a good milestone in determining the vested rights in the Diamond Valley Hydrographic Basin, we may still be a long way from obtaining a final Decree.

The public comment period for Nevada’s 2016-2018 Draft Water Quality Integrated Report closes on January 30, 2020. On December 26, 2019, the Nevada Division of Environmental Protection (NDEP) published its Public Notice, inviting comment on the Draft Nevada 2016-2018 Water Quality Integrated Report. The report was prepared in accordance with the Clean Water Act, §§ 303(d), 305(b), and 314. The Clean Water Act requires NDEP to conduct a comprehensive analysis of water quality data associated with Nevada’s surface waters.

The report is a combination of the reporting requirements under the Clean Water Act § 303 on impaired waters, and § 305 for an overall assessment of surface water quality within Nevada and a description of how current conditions provide for the protection of beneficial uses of the state’s waters.

Data on Nevada’s rivers, streams, lakes and reservoirs was collected from October 1, 2009 through September 30, 2016 and was evaluated to determine if State water quality standards are being met and beneficial uses are supported. The report will be used by the public, other entities, and NDEP for water quality management planning purposes.

Impaired Water Reporting Requirements

Under its § 303 reporting requirements, NDEP has produced a list of waters where current pollution control technologies alone cannot meet the water quality standards set for that water body. The list also contains water bodies that may soon become impaired. Impaired waters are prioritized base on the severity of the pollution and the designated use of the water body (e.g. fish propagation or recreation).  NDEP will also develop total maximum daily loads or TMDLs of pollutants in the impaired water bodies. These TMDLs designate the maximum concentration of each pollutants allowed in the water body and will help guide NDEP water resource management decision in an attempt to improve impaired waters.

Last Minute Commenting

The Draft Nevada 2016-2018 Water Quality Integrated Report is available at:

https://ndep.nv.gov/water/rivers-streams-lakes/water-quality-standards/303d-305b-water-quality-integrated-report

Links to the 2014 Water Quality Integrated Report and examples of its public comments can also be found at the link above.

The public comment period for the Draft Nevada 2016-2018 Water Quality Integrated Report closes on January 31, 2020 at 5:00 PM. Any last-minute comments should be submitted by mail or email to:

Dave Simpson
Nevada Division of Environmental Protection
Bureau of Water Quality Planning
901 S. Stewart St.
Carson City, NV 89701
dsimpson@ndep.nv.gov

What’s Next?

Once the report is submitted, Environmental Protection Agency (EPA) must notify NDEP of its approval or disapproval of the § 303 impaired waters list within thirty (30) days. If the list and associated TMDLs are approved, NDEP will incorporate them into its plan.  If they are disapproved, the burden shifts to EPA to identify impaired waters and determine the TMDLs necessary to implement the water quality standards applicable to each water. This must be completed by EPA in thirty days.  After such identification, if necessary, NDEP will then incorporate EPA’s § 303 list into its water quality plan.

The reports required under the Clean Water Act §§ 303 and 305 are performed biennial.  The next report will likely be drafted in 2021 with another opportunity to submit public comments on the Draft prior to its submission.

(Image Source: https://travelnevada.com/discover/26065/truckee-river)

In July, 2020, attorney Laura Schroeder will hit the road and travel to Idaho to teach a series of classes on “Water Law for Utilities.” The classes are put on by the Idaho Rural Water Association (IRWA) and are approved by the State of Idaho Bureau of Occupational Licenses for 0.6 drinking water or wastewater Continuing Education Units.

Laura regularly presents to small and large groups in and around the Portland metropolitan area. However, this is the first time since 2018 that she will make it to Idaho. Then, she worked with IRWA to teach a series on understanding and managing municipal drinking water rights. This time around, she will focus on water utilities.

In these classes, Laura will provide an overview of water rights in the State of Idaho and how water utilities are impacted by the laws and statutes that govern those rights. She will also address water quality, quantity, and access issues, including a brief discussion of easement law. Finally, she will go over some of Idaho’s public meeting laws and how they pertain to water utilities.

Laura will teach in Twin Falls, Idaho on Monday, July 14, in Pocatello, Idaho on Tuesday, July 15, and in Fruitland, Idaho on Thursday, July 17. For more information or to register, check out the calendar of events on the Idaho Rural Water Association’s website: https://www.idahoruralwater.com/Training/Calendar.aspx. And don’t forget to follow Schroeder Law Offices’ blog for more upcoming events and news on water law developments throughout the northwest!

            The Oregon Water Resources Department (“OWRD”) does not use a single definition of an aquifer. Instead, it uses different applications of the word depending on the context. Scientifically, there is a generally accepted definition (which we discussed here: https://www.water-law.com/who-owns-an-aquifer/): “body of permeable rock which can contain or transmit groundwater.”^[1] Depending on the location, context, and situation, OWRD and other state agencies might use a different definitions for “aquifer.” Each of these definitions have their own features, potentially leading to different interpretations.

OWRD’s General Definition

            OWRD generally defines an aquifer under Oregon Administrative Regulation (“OAR”) 690-200-0050(9) as “a geologic formation, group of formations, or part of a formation that contains saturated and permeable material capable of transmitting water in sufficient quantity to supply wells or springs and that contains water that is similar throughout in characteristics such as potentiometric head, chemistry, and temperature (see Figure 200-2 [above]).” Potentiometric “head” is akin to the pressure of the water at a given location.

            Compared to the scientific definition outlined above, OWRD restricts aquifers to those with similar potentiometric head, chemistry, and temperature. Aquifer characteristics can vary from location to location while still being within the same hydraulically connected system, called “anisotropic” or heterogeneous conditions. Permeability, water quality, and temperature can vary within an aquifer under the scientific definition above, but OWRD’s general definition does not allow for anisotropic conditions in a single aquifer.

“Aquifers” in the Upper Klamath Basin

            Another definition of “aquifer” is located in the newly adopted rules in OAR Chapter 690, Division 25. These rules are restricted to the Upper Klamath Basin and supplant the Division 9 rules during 2019 and 2020 only. Under these rules, “groundwater reservoir” or “aquifer” is defined as “a body of groundwater having boundaries which may be ascertained or reasonably inferred that yields quantities of water to wells or surface water sufficient for appropriation under an existing right of record.” OAR 690-025-0020(4).

            This definition merges the groundwater (the contents) with the aquifer (the container). Interestingly, this definition restricts the “aquifer” to areas that produce water “under an existing right of record.” This definition combines physical aspects, legal rights, and geographic components into a single non-scientific definition.

“Hydraulic Connection” under Divisions 9 & 25

            Oregon Revised Statute Chapter 690 Division 9 regulates conjunctive management of surface water and groundwater throughout the State. The regulations prescribe when new groundwater appropriations may be allowed, and when existing groundwater use rights must be regulated off in times of shortage when a senior surface water call is made. The Division 25 rules supplant the portion of Division 9 for the Upper Klamath Basin related to regulation of existing groundwater use rights.

          Under the Division 9 regulations, “hydraulic connection” means “water can move between a surface water source and an adjacent aquifer.” Under the Division 25 rules specific to the Upper Klamath Basin, however, “hydraulically connected” means “water can move between or among groundwater reservoirs and surface water.” Further, OWRD applies these differing definitions exactly the same, regulating down to deep, confined aquifers under Division 9 that are not “adjacent” to the surface water source, much as one would imagine OWRD doing under the more broad Division 25 definition that talks about water movement between various groundwater reservoirs.

Well Construction & Commingling Rules

            Another version of “aquifer” is found in OWRD’s well construction rules. OAR 690-200-0050(9) defines “aquifer” as a “geologic formation, group of formations, or part of a formation that contains saturated and permeable material capable of transmitting water in sufficient quantity to supply wells or springs and that contains water that is similar throughout in characteristics such as potentiometric head, chemistry, and temperature.”

           Under OAR 690-200-0043, a water supply well cannot be “constructed in a manner that allows commingling or leakage of groundwater by gravity flow or artesian pressure from one aquifer to another.” OWRD interprets its rules to prohibit comingling of groundwater between aquifers even when no water is currently present at the location of an alleged aquifer. Such is the case when a well is deepened due to the original water bearing zone no longer producing water. OAR 690-215-0045(4) prohibits the deepening of a well in such a way that will “result in commingling of aquifers.” OWRD interprets this rule to require sealing off the now-dry layers from the deeper water-bearing layers. Here, OWRD’s interpretation of an aquifer addresses the potential for commingling of groundwater, not actual commingling. In this case, the term “aquifer” refers to groundwater potentially, but not actually, present in a former water-bearing zone.

            When a well is constructed, the well driller submits a report called a “well log” to OWRD. These logs show the various types of soils and water bearing layers found during the course of the drilling. OWRD does not require well drillers to be certified geologists, so these descriptions are often informal and not scientifically reviewed. Well logs typically do not include potentiometric head, chemistry, or temperature information for each water-bearing zone encountered in a well. Thus, whether a water-bearing zone constitutes a distinct aquifer is a challenging question when only reviewing a well log without the scientific information required in the definition above.

            OWRD does not typically review well logs unless an issue arises. A bill introduced in this legislative session, H.B. 2331 A (2019), would have required OWRD to review well logs when received by the agency: https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB2331. However, this bill remained in committee and was not adopted. Therefore, OWRD continues at the present time to review well logs inconsistently and sometimes not until decades after well completion, and it can sometimes be challenging for drillers to identify separate aquifers for the purpose of meeting well drilling standards due to OWRD’s differing and numerous aquifer definitions.

DEQ Rules

          To compare with OWRD, the Department of Environmental Quality’s (“DEQ’s”) rules, defines aquifer as “an underground zone holding water that is capable of yielding a significant amount of water to a well or spring.” OAR 340-044-0005(2). This definition is the most similar to the scientific definition above, without the restriction to a certain characteristic (like water quality) or legal status (like status of water rights or ascertainable boundary).

Conclusion

            The definitions for “aquifer” used by OWRD and DEQ deviate from the generally accepted scientific definition. Under the scientific definition, the permeable rocks define the extent of the aquifer (even if no water is present at the time). Under both OWRD and DEQ definitions, the water-filled-portion of the aquifer determines its extent, rather than the permeable rock “container” for the groundwater. Further, OWRD’s definitions add other characteristics, like potentiometric pressure, chemical, temperature, ability to determine a boundary, location in proximity to surface water, or legal right to the basic scientific term, though it is questionable whether OWRD gives due regard to these additional elements, and OWRD usually regulates groundwater in the most restrictive manner regardless of the applicable definitions in each context. As groundwater management controversies continue, the differences between these definitions may (and should) come under additional scrutiny.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

[1] Oxford Online Dictionary, https://www.lexico.com/definition/aquifer

By: Caitlin Skulan and Leslie Velazquez

In spite of her busy schedule attending client needs, Attorney Ure put on her Professor’s hat and gave a three-hour Water Rights Class to Reno Real Estate Agents. The class, which Attorney Ure does regularly at real estate groups’ requests, focuses on water right laws in Nevada and some things Real Estate Agents especially should look out for when working with clients to buy or sell property.

Attorney Ure gave a brief overview of the history of water law in Nevada.  Remarkably, irrigation in the United States dates back to 300 A.D. The Hohokam Tribe wove mats of brush to divert water to cornfields.  Water law itself dates back to medieval England and the “Rule of Capture,” meaning you capture it, you own it. This concept then translated into early American gold mining camps when miners staked claims for mining gold they found or “captured.”  As miners began to settle in the West, the rule was applied to water. The first to capture the water had a right to the amount they captured. This is called the “first in time, first in right” rule and is the fundamental base for Nevada’s “Prior Appropriation” or priority-based water law system.

Next, Attorney Ure outlined the three fundamental principles of providing proof of a water right: beneficial use, priority, and appurtenance. Beneficial use is the basis, the measure, and the limit of all rights to the use of water. Almost any use that has a special value to the public is a beneficial use. Priority, as noted above, is the right to use water awarded to the first diverter from the natural course. Therefore, senior appropriators may use their entire right before junior users are able too. The priority date of a water right may be based on the date in which an application was filed with the Nevada Department of Water Resources. Alternatively, if the water use predates the enactment of Nevada’s 1905 Water Code, the priority date is determine in a special adjudication proceeding based on evidence of the earliest use and its continuation to present time. Finally, water rights are appurtenant to the land where perfected. This means water rights run with the land and unless otherwise noted, will transfer with land under general “appurtenance” language in a deed. All of these factors are important to real estate agents because they help determine what the water can be used for, how safe the water is in times of drought and curtailment, and if the transfer documents, both past and present, will result in the buyer obtaining water with the land they are purchasing.  These are all important factors for a buyer to consider.

Another important note was identifying the type of water being used; surface water or groundwater. Attorney Ure outlined the difference between surface water and groundwater, and various types of aquifers, including confined and alluvial/unconfined. For example, confined aquifers occur when impermeable dirt/rock layers prevent water from seeping into the aquifer from the surface. Unconfined aquifers occur when water seeps from the surface directly above the aquifer through porous sediment. The latter kind are more likely to be connected to sources of surface water through a “hydraulic connection,” which can be determined with the help of hydrogeologists.

Pumping of groundwater that has a hydraulic connection to surface water may result in the change of flow or water levels in nearby streams or lakes.  This makes conjunctive management of surface and groundwater extremely important to prevent surface right users with senior priority dates from injury by groundwater pumping. However, not all prior appropriation states have an established regulation scheme recognizing this interconnection between surface and groundwater, because water law predates the scientific discovery of hydraulic connections. Some states may explicitly prohibit groundwater use interfering with senior surface water rights, while others make no reference at all. 

Lastly, Attorney Ure demonstrated where Real Estate Agents can find water rights connected to specific lots of land and forms necessary for transactions involving water, leaving each student with some valuable tools to apply during their next property sale!

If your organization is in need of water related education, we are happy to be a resource and set up a class similar to this one! Visit our website for a full list of speaking and presentations topics:  https://www.water-law.com/speaking-and-presentations/

Here at Schroeder Law Offices P.C., we enjoy providing educational presentations both private and public to teach others the importance and complexity of water rights.

More and more in Oregon, hopeful groundwater use applicants are finding that proposed uses of groundwater are denied by the Oregon Water Resources Department due to the agency’s finding of hydraulic connection with surface water sources and the potential for groundwater use to cause substantial interference with existing surface water rights. When the agency makes such findings, the Department looks at whether surface water is available to support the proposed new groundwater use, and, in most cases, it is not – either the administrative basin rules prohibit the new use, or surface water availability data shows that surface water is not available. In short, the proposed groundwater source is too connected to surface water for the agency to approve the application.

But an enigma exists in Oregon water law where the same source of groundwater is not connected enough to surface water to allow a surface-water-to-groundwater transfer. Transfers allow water right holders to change the terms of their water use rights. In some cases, surface water right holders may wish to change their surface water points of diversion to groundwater wells. That type of change is authorized under Oregon law, but the administrative rules impose certain distance and connectivity requirements. First, the well cannot be more than 500 feet from the authorized point of diversion, or else a geology report must accompany the application to attest to the connection between the sources of water. Second, the proposed groundwater use must affect the surface water source “similarly,” meaning the use of groundwater would result in stream depletion of at least 50 percent of the rate of appropriations within 10 days of pumping. The Oregon Water Resources Departments uses stream depletion modeling to determine if this factor is met.

It is often difficult for water users to predict whether their proposed use of groundwater will affect the surface water source similarly, especially because the Oregon Water Resources Department is far from consistent when it comes to its application of various models. However, in our experience, certain factors heavily affect the outcome of surface-water-to-groundwater transfers. For example, is the well existing or proposed? If the well is existing, the source aquifer for the groundwater use is certain, whereas the Department may make assumptions related to proposed wells. Applicants often do not include a certain depth figure for a proposed well in their transfer application because their well driller will need to make that determination during the drilling process. If the majority of the wells in the area of the proposed well are drilled into a confined aquifer, the Department is likely to assume that the proposed well will be similarly constructed in order to be productive, and may deny the application on the basis that the source of groundwater pumped from the proposed well will not be connected enough to the surface water source. Thus, the proposed source of groundwater should be unconfined, and the proposed well should be drilled extremely close to the authorized point of diversion to allow the applicant the best chance of success.

All too often, we talk to water users who were advised by other consultants that surface-water-to-groundwater transfers are automatically approved so long as the proposed well will be within 500 feet of the authorized surface water point of diversion. That is not the case! It can be difficult to get the Oregon Water Resources Department’s approval on these types of transfers, and therefore it is very important to understand the factors that affect the agency’s decision and the water user’s options.

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

The adoption of efficient water technologies is identified as a goal under Oregon Water Resources Department’s (“OWRD”) 2017 Integrated Water Resources Strategy (https://www.oregon.gov/OWRD/programs/Planning/IWRS/Pages/default.aspx). For agricultural uses, weather-based irrigation, soil moisture controls, computer controlled irrigation, and piping and drip irrigation systems are being developed to substantially reduce the amount of water applied to land for the same use. At first glance, the adoption of efficient irrigation technology appears to be a “no-brainer” with few downsides. However, the problem can be more complex than it first appears.

A core tenant of prior appropriation is the prevention of “injury” to existing water rights by reducing water available to fulfill existing rights of use. A component of a water right is the “consumptive use” or the amount of water for which the water user loses control usually from a described place of use or otherwise does not return to the source, the excess becomes available for subsequent use. Efficient irrigation technology alters irrigation’s consumptive use and runoff, sometimes reducing the water available to other water users that were benefitting from the “waste” created by inefficient irrigation techniques.

Often, inefficient irrigation seeps into shallow aquifers, sometimes contributing to surface streams days, months, or years later as return flow. Oregon’s conjunctive management rules have attempted to jointly regulate surface and groundwater sources, as described by Oregon Administrative Rules, Chapter 690, Division 9, yet these rules do not directly account for the effects of irrigation seepage on return flows. By encouraging efficient irrigation technologies, OWRD’s strategic planning might inadvertently cause injury to downstream water users that benefit from the increased return flow due to current irrigation techniques.

The United States Supreme Court (“Court”) addressed this issue in the case Montana v. Wyoming. 563 U.S. 368 (2011). The Yellowstone Compact distributes water of the Yellowstone River, which flows north from Wyoming into Montana. Water users in Wyoming adopted the use of more efficient sprinkler irrigation systems. The sprinklers increased the consumptive use portion of the water withdrawn compared to the earlier flood irrigation where a portion of the excess seeped into the ground. Montana alleged that the switch in technologies reduced seepage and runoff by 25% in some locations while still diverting the same quantity of water. In short, Montana lost access to water due to the increase in “efficiency” by Wyoming water users.

The Court decided that the switch did not cause injury to Montana water users, since these states appeared to only apply these rules to changes in “place of diversion, place or purpose of use” and not to changes in “crop changes or day-to-day irrigation adjustments or repairs.” The Court reasoned that a switch to efficient irrigation was more like an adjustment or repair than a change that would prompt the injury analysis. Likewise, the Court reasoned that the transition to sprinklers was akin to recapture doctrines under Wyoming and Montana, which allow water users to reuse water still remaining on their land after initial use. The Court reasoned that sprinklers are a form of efficient reuse of water rather than a fundamental change in water use supporting injury. The Court decided that Wyoming water users did not violate the Yellowstone Compact by using efficient irrigation technologies, even when significantly less water flowed to Montana.

The United States Government Accountability Office has recently released a report on irrigation technologies and their effects on return flows: https://www.gao.gov/products/GAO-20-128SP?utm_campaign=usgao_email&utm_content=daybook&utm_medium=email&utm_source=govdelivery#summary. The report notes that efficient irrigation can expand the area of irrigation, enabling more production, using the same volume of water. At the same time, the report identifies that return flows might be significantly reduced and might diminish water availability for downstream users.

The key issue to consider is if water that seeps into an aquifer is considered a part of the consumptive use or whether it is returned to a source for further use. If consumption only includes the volume of water used by plants, other water users might have a right to the runoff from inefficient irrigation practices (which fits more with Oregon’s conjunctive management policies). If consumption is any water placed on the land without regard to the destination of the water applied, any reduction in return flow might not be considered an injury. As efficient irrigation practices are increasingly adopted, the dark side of decreased runoff might rise as a real issue in the future!

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

Schroeder Law Offices does everything water, including educating others on the basics of water law, resource planning and water rights.

Recently at an educational one day “Boot Camp,” attorney Laura Schroeder covered an expansive list of water related topics for registrants from the Yamhill Soil and Water Conservation District. The class was tailored specifically to the audience’s questions and each attendee walked away with a gift certificate for a personal, free hour of consultation on water rights from Schroeder Law Offices, as well as wealth of new information.

Upcoming Water Rights Boot camps include this week with the Tualatin Soil and Water Conservation District on Thursday, November 21^st. A link to the event can be found here. 

Unable to attend this event but wanting to know more? Click here to learn about the presentation topics our office provides and how you can schedule and public or private presentation with one of our attorneys.