Schroeder Law Offices is excited to announce that Jakob Wiley will be joining the firm as a J.D. Paralegal this fall. He plans to later continue with the firm as an Associate Attorney at the Portland location after passage of the July, 2018 Oregon bar examination. He will receive a J.D. from the University of Oregon School of Law in May, 2018 and will also complete a concurrent M.S. in Water Resources Policy and Management at Oregon State University. His studies focus on aquifer governance, voluntary management agreements, and transboundary aquifer policy.

Jakob grew up in Fallon, Nevada on his family’s alfalfa farm and cattle ranch. Jakob enjoys hiking and ocean fishing near his parents’ new home near Toledo, Oregon. Jakob also enjoys traveling to Germany and Switzerland in his free time. He is excited to join the Schroeder team working to solve your water issues!

On January 23, 2018, after more than 10 years of discussion and revision, the Washington Department of Ecology adopted the Reclaimed Water Rule. The Rule will go into effect on February 23, 2018. You can read the Rule in its entirety here.

Reclaimed water has long been used in the State of Washington for industrial, commercial, and construction purposes, as well as a way to replenish wetlands and aquifers. The Revised Code of Washington Chapter 90.46, put into effect in 1995, governs the acquisition, use, and treatment standards for reclaimed water, and establishes the permitting process for both wastewater discharge and reclaimed water use. The goal of the newly-enacted Reclaimed Water Rule is to work hand-in-hand with this existing legislation to streamline the process of acquiring permits and to make clear the methods and standards of treatment required in order for wastewater to be deemed acceptable for commercial, industrial, and institutional uses.

By making the route to reclaiming water more straightforward, the Department of Ecology hopes to encourage water users to limit their discharge of wastewater back into the environment and decrease overall draw from groundwater sources to preserve limited water resources, particularly during the dry summer months. If reclaimed water can be used in the place of potable water for purposes like flushing toilets or watering lawns, the impact of these activities can be substantially mitigated. A good overview of the potential uses and benefits of reclaimed water can be found on the Department’s website.

One of the main concerns about the Reclaimed Water Rule, and a major reason why it remained on the back burner for the better part of 12 years, is the potential for infringement upon senior water users’ rights. By reclaiming water that would otherwise flow into streams, lakes, or aquifers and reusing it without it being reintroduced into the originating source of water, the amount of water available to water right holders that had access to those “returns” could be diminished. As a result, the Rule was amended to include provisions for compensation and mitigation should such infringement occur; however, consistent with procedure for issuing all water right permits, no permits shall be issued to projects that impair the rights of senior water users.

While reclaimed water is not designated as drinkable, it is still subjected to strenuous testing and treatment processes similar to those which drinking water undergoes. Following initial treatment at a water treatment plant, wastewater is further filtered, disinfected, and repeatedly tested to ensure that it can be safely introduced into the environment. Once it has been approved as safe, reclaimed water can be used to irrigate crops, fight fires, clean streets, and control dust, among other uses. The Washington State Department of Health issued a “Frequently Asked Questions” memorandum last summer, (available on their website) that briefly details the public health protections covered in the Reclaimed Water Rule.

If you are interested in learning more about the Reclaimed Water Rule and the permitting process, the Washington Governor’s Office for Regulatory Innovation and Assistance has assembled an overview that provides greater detail about the Rule and the application process.

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

By Therese Ure and Lisa Mae Gage

Many people are familiar with looking up water right information on Nevada Division of Water Resources (“NDWR”) database and are familiar with reading water right applications, permits and certificates. Is that information reliable enough to conclusively show what your water rights are? The answer is no. Several factors affect the reliability of information found on NDWR’s database and information listed on water right applications, permits and certificates.

NDWR Database

NDWR’s database is not always an accurate reflection of the current standing of a water right. While NDWR strives to maintain its database with the most current and accurate information, you must remember the disclaimer wherein NDWR provides no warranty regarding the accuracy, adequacy, completeness, legality, reliability or usefulness of the information contained within the database. The database is a useful tool to start your search, but it is by no means the last step!

Dual Recording System

Reviewing the database ownership records helps, but often times, water owners forget to “record” water ownership transfers with NDWR after completing the process with the County Recorder. Like the official real property records being maintained by the County Recorder, another set of official records for water rights of use are maintained by NDWR. NDWR updates ownership of water rights, not land, but only upon notification by the water right owner. NDWR has no knowledge of the water use change in ownership until the new owner directly notifies NDWR by filing a Report of Conveyance. Oftentimes new water right holders are unaware of their responsibility to separately notify NDWR of a change in ownership of water rights and therefore NDWR’s listed owner of record may not be accurate.

Water title transfer histories can become vague and confusing, especially when land is subdivided or water rights are expressly transferred off the original place of use property. Following the chain of title of the water rights may take a great deal of time and effort. Most County Recorder offices are updating their systems to allow viewing of recorded documents online, however, research of older documents often times requires physical research and inspection at the County Recorder’s office.

Changes in Water Right Elements

A water right Certificate outlines the elements of a water right at the time it was issued, however these elements can be changed over time. Some of the main “elements” include the source of water, how and when the water can be used, where the water can be used, and the rate and duty the water use. After a permit or certificate is issued, change applications can be filed changing all or a portion of the water use. A water right holder can sell a portion of the right, subsequent permits and/or certificates can be issued for water that is stacked or comingled with the initial water right, or portions of water rights can be lost through cancellation, abandonment and/or forfeiture. It is important to review the entire water right file to verify if any elements of the water use elements have been changed.

Basin Wide Orders

The State Engineer administers water rights in the state of Nevada. Many of the hydrographic groundwater basins are over appropriated and in need of close monitoring. The State Engineer often times issues orders related to groundwater basins that may change terms or add additional requirements to a water use that were not originally listed on the Permit or Certificate. Reviewing information concerning the basin as a whole is an important tool to determining impacts to individual water rights.

It’s no question that water rights are and will always be a very valuable resource. Water right elements, terms and requirements can change over time. While we have outlined a few of the diligence items, often times there is more research that is required. Ensuring water use holders know the terms and conditions of their use will help them stay in compliance in order to continue beneficial use.

In November 2017, the United States Army Corps of Engineers (Corps) published the Willamette Basin Review Feasibility Study, Draft Integrated Feasibility Report and Environmental Assessment (Study). The purpose of the Study (which can be viewed in its entirety here) is to evaluate the reallocation of 1,590,000 acre-feet of Willamette Valley Project stored water. The Study analyzes current and future water demand in the Willamette basin to determine how the water should be reallocated. The analyzed demand uses include agricultural irrigation, municipal and industrial water supply, and conservation storage for Endangered Species Act listed fish. 

The Corps constructed a series of thirteen federal reservoirs in the middle and upper Willamette Basin beginning in the 1930s. Currently, the water is stored under Bureau of Reclamation water use rights that authorize storage for irrigation. The Corps’ proposal would reallocate 962,800 acre-feet of water to fish and wildlife. This discrete category has been allocated the most water in the draft Study, followed by agricultural irrigation at 253,950 acre-feet, and municipal and industrial with the least at 73,300 acre-feet.

For those keeping score at home, those figures do not add up to the allocated 1,590,000 acre-feet. The Corps chose to earmark 299,950 acre-feet to what the agency is classifying as “joint-use.” Joint use allocation is water that can be assigned to any of the other three discrete categories. Thus, the Corps would simply hold that amount in reserve to accommodate “unforeseeable changes to demand trends.” Simply put, this provides the Corps flexibility in the future to disperse water according to demand while simultaneously allowing the agency to avoid allocating all of the water at the current time.

While everyone can agree more water available for appropriation is a good thing, some are unhappy about the way the Corps has proposed to allocate stored water. The Capital Press reported the Oregon Farm Bureau’s position is that water allocated to agricultural irrigation is “not nearly enough.” 

There is still much uncertainty about what will happen next and how long the process will take before water stored in the Willamette Valley Project is available for appropriation. The Study is currently a draft environmental assessment under the National Environmental Policy Act (NEPA). Therefore, the Corps is still in the stage where it is developing and evaluating the alternatives. The comment period on the draft Study closed on January 5, 2018.

If the Corps finds no significant impact from the chosen alternative action in the NEPA process, water will then need to be reallocated to the proposed uses. Because the Bureau of Reclamation currently holds the water right certificates that authorize storage for irrigation, the federal agencies must go through the Oregon Water Resources Department’s transfer review process to change the purposes of use for the Project storage rights.

Only after the water use rights authorizing storage in the Project are transferred to the reallocated uses will the water be available for new appropriations in addition to the current authorized use, irrigation. The reallocation could stimulate a rush to the Oregon Water Resources Department’s office for application submission. As the old adage goes, “the early-bird gets the worm.” More aptly, those ready to file for a water right upon the successful completion of the impending process are more likely to get to obtain a much-coveted water use right from the reallocated storage.

Stay tuned to Schroeder Law Offices’ Water Law Blog as this process unfolds!

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

A jury recently decided in Malheur County Circuit Court Case #16CV32005 that local farmers, Delos & Barbara Lee, were entitled to the lost profits they incurred when Owyhee Irrigation District (“OID”) failed in 2014 to deliver the Lees their entire allocation of water and delivered their 2015 allocation in late July. The jury decided OID was negligent based on a computer error that caused the Lees to receive the improper allocations of water.

The Lees grow alfalfa and have farmed in the Oregon Slope area their entire lives. The Lees discovered OID’s computer error in late 2015 after complaining to OID beginning in 2014 that even though they had timely paid their yearly assessments for water delivery, they were not receiving their full water allocation. While there was a drought in 2014 and 2015 that reduced water allocations throughout OID, the failure to deliver even the reduced allocation to the Lees’ 39 acre field caused their hay stand and hay production to suffer more than would otherwise have occurred if the Lees had received the reduced allocation of water.

In late July 2015, OID admitted that it failed to deliver any of the water allocated to the Lees’ 39 acre field in 2014 and had yet to deliver the 2015 water allocation. After its admission, OID then delivered water to the Lees, but it was too late for the Lees’ hay stand to produce as it would have otherwise. At trial, the jury found OID’s failure to deliver and failure to timely deliver water made OID negligent and awarded judgment in favor of the Lees for the entire amount of Lees’ lost profits.

Unfortunately, the judgment will not “make the Lees whole” due to the expense of the case going to trial rather than settling. Additionally, OID has now decided to appeal the decision to the Oregon Court of Appeals. OID argued at trial, and may take up a similar argument on appeal, that a U.S. Bureau of Reclamation (“BOR”) Repayment Contract from 1951 between the BOR and OID, along with other irrigation districts, makes OID wholly immune from liability even when OID failed to deliver water to the Lees when the water was allocated and available for delivery. The BOR repayment contract is a contract for the irrigation districts to repay the BOR for the construction obligations incurred to build the Owyhee Project.

Schroeder Law Offices was privileged to have the opportunity to work with the Lees to hold OID accountable for its failure to deliver water that was available, paid for, and allocated to the Lees.

On December 19, 2017, Nevada State Engineer issued Order No. 1293, prohibiting the drilling of new domestic wells in the Pahrump Artesian Basin. Previously, the State Engineer designated lands in Pahrump Artesian Basin as coming under the provisions of underground water law through Orders 176, 193 and 205¹. Prior Orders stated that new applications would be denied with very limited exceptions. Recently the State Engineer conducted further investigation into this basin and determined that due to the rate and extent to which groundwater is being depleted, that prohibition of domestic wells under Order No. 1293 is vital to the welfare of the basin.

The State Engineer estimates that the perennial yield of the Pahrump Artesian Basin, or the maximum amount that can be withdrawn to still allow the basin to recharge, is 20,000 acre-feet annually. Yet, the State Engineer estimates that the amount of water from committed rights (amounts of water provided under Permits and Certificates issued by NDWR) amounts to approximately 59,175 acre-feet of withdrawals from the basin. Therefore, the permitted rights authorize almost triple the amount of water that can be withdrawn without impeding the ability of the basin to recharge itself. However, because domestic wells are not subject to permit requirements, this estimated withdrawal number is actually higher as domestic well withdrawals are not included. In fact, Order No. 1293 estimates that there are approximately 11,280 existing domestic wells in the Pahrump Artesian Basin.  Thus, if each well were withdrawing the maximum of 2 acre-feet per year, water withdrawals from the domestic wells alone would exceed the perennial yield. In theory, all wells in the basin may be withdrawing close to 4 times the amount the basin can manage.

Order 1293 prohibits the drilling of any new domestic well, unless a user can obtain an existing permitted right to cover the 2.0 acre feet per year to serve the “new” use. Thus, the only way to obtain a new domestic use will be to go out and buy a water right!  Once purchased, these acquired rights will be “given back” to the basin under a relinquishment process with NDWR while allowing the domestic use to continue without a water right. Further exempted from Order 1293 are domestic wells requiring rehabilitation under Nevada Administrative Code (“NAC”) 534.189, wells requiring reconditioning under NAC 534.188, or existing wells needing replacement.

The domestic well exemption was a great policy for many single families wishing to develop their property. However, protecting our valuable water resources is top priority, and this purchase and relinquishment program will still allow for property development with proper resource protection. For a full reading of Order 1293, please visit http://images.water.nv.gov/images/Orders/1293o.pdf.

¹Nevada Revised Statutes (“NRS”) chapter 534.013 defines domestic use as culinary and household purposes for a single-family dwelling, watering of a family garden and lawn and watering of livestock, domestic animals and household pets. Pursuant to NRS 534.180, if a well is being used for domestic use and the use does not exceed 2 acre-feet per year, the well is exempt from the permitting process under with Nevada Division of Water Resources (“NDWR”) for water use.  

2017 was an eventful year for the team at Schroeder Law Offices (“SLO”). As SLO moves toward a productive 2018, we are pleased to highlight the exciting events of 2017 and what’s ahead in the New Year!

In February we hosted a reception honoring Al Steninger at the Society for Range Management in St. George, Utah. Shareholders Laura Schroeder and Therese Ure, as well as Alan Schroeder, had the honor of celebrating the Sustained Lifetime Achievement Award for range consultant Steninger, long-time friend and consultant to the firm.

In April 2017, our Reno Office received a new home moving from the mid-town area to south Reno. The new office includes convenient parking and approx. 2,600 sq feet divided into a roomy, reception area, large and small conference rooms, multiple private offices, and work areas. Should our out-of-town client need a space to work or meet in Reno for a day or more, we have space to share.

After settling in, SLO hosted an open house for all of our clients, consultants and friends to come check out the new Reno space! We enjoyed this event as the Portland team came to Reno to assist in this celebration, complete with Stix Cattle Company barbequing tri tip!

Following the Open House event and team Schroeder’s participation in the Dust Devil Triathlon in Fallon, NV, the SLO team went out to the field! Our firm serves a wide variety of water users including local farmers, and we had a great time learning more about irrigation systems in Northern Nevada from local expert Norm Frey of Frey Ranches, learning about the cattle industry at Stix Cattle Company, and touring the local livestock auction at Fallon Livestock LLC.

While we had a busy year among our Reno Office move, open house, and field day, we are honored to highlight some of our SLO team member’s developments during 2017.

• Associate Attorney Lindsay Thane passed not only the Oregon State Bar in May 2017, but also passed the Montana State Bar in September 2017 – adding a seventh state to our firm’s licensing!
• Legal Secretary Mollie Finke joined our Portland team in April, making her debut in the legal field.
• In November, our Portland team added a new Paralegal, Rachelq Harman.
• In December, paralegal Tara J. Jackson took a sabbatical, chasing sunny weather with a couple of weeks exploring the north island of New Zealand, enjoying beautiful vistas and mountain biking and finished out her time in Arizona spending more time on her bike and with family. Tara is now back on board.

In the New Year, SLO is looking forward to hosting more classes and/or workshops regarding water law. In 2017 as well as past years, SLO Shareholders Therese Ure and Laura Schroeder have hosted water rights bootcamp classes as well as real estate water right classes. Keep an eye on our coming events list for classes and events to come in 2018, or check out our speaking and presentations page for a list of topics.

During the second week of January, 2018, the Nevada Division of Water Resources (“NDWR”) will be hosting public workshops across Northern Nevada to report on the Humboldt River water studies being conducted by the U.S. Geological Survey and the Desert Research Institute. 

The workshops will be open to the public and will be held in Lovelock, Winnemucca, and Elko, Nevada on January 9^th and 10^th, 2018.  For those interested in attending, click this link for the official flyer for specifics regarding time and location for the meetings.

State and local agencies are working toward a conjunctive management plan, to coordinate the administration of groundwater and surface water, for the Humboldt River and its tributaries.  In July of 2017, the State Engineer held informational meetings regarding the Humboldt River Basin and the surface and ground water rights located therein.  While July’s meeting focused on the economic impacts to small business, January’s meetings will address the status of the water modeling studies affecting the entire basin!

The State Engineer issued Order 1292 on December 8, 2017 concerning underground water rights in Diamond Valley Hydrographic Basin, providing strict requirements for installation of meters, submission of records and access to wells without prior notice. Previous Order Nos. 809 and 813 were issued in 1982 and 1983 generally requiring totalizing meters or effective and authorized substitute measuring devices for permitted wells in Diamond Valley Basin. Order 1292 rescinds these previous orders and replaces them with far stricter requirements.

Order 1292 requires that all wells in the basin be equipped with totalizing meters by April 1, 2018. These meters must be placed in the discharge pipeline near the point of diversion. There are two exceptions under this metering Order: 1) domestic wells, and 2) stockwater wells, unless the permit or certificate requires a meter. Once a totalizing meter is installed, the owner must file a Report of Installation with Nevada Division of Water Resources (“NDWR”) within 30 days. Report of Installation forms can be found at http://water.nv.gov/forms/forms09/Totalizing_Meter.pdf.

Once the meter is installed, or if a meter has already been installed, the owner is required to keep monthly records of the amount of water pumped from each well and submit the records to NDWR within 15 days at the end of each calendar quarter. Meter data and pumpage record forms can be found at http://water.nv.gov/waterforms.aspx?water=Water Use Reporting. Further, pursuant to Order 1292, if a totalizing meter fails or any other deficiency is found in the metering equipment, the owner must immediately correct the failure or the State Engineer can impose fines and penalties. During the period a well owner is making repairs to a meter and is unable to collect meter data and/or pumpage records, the owner shall submit temporary estimations of the amount of water used in the form of a sworn affidavit in lieu of the required meter data and pumpage records.

Order 1292 also states that every groundwater right owner subject to meter requirements must allow and provide access to NDWR, without prior notice, for reading and inspecting meters.

It is widely known that the Diamond Valley Hydrographic Basin is over appropriated and in need of attention. Order 1292 has been issued to provide rules and regulations essential to protect the welfare of the Basin. It is necessary for water right holders to understand the new rules and requirements to ensure each well owner in Diamond Valley remains in compliance. A full copy of Order 1292 can be found at http://images.water.nv.gov/images/Orders/1292o.pdf.

The Oregon Water Resources Department will no longer be issuing water use permits for “nursery operations use” in the Willamette, Sandy, and Goose & Summer Lakes Basins. This decision follows a very long history of the Department’s issuance of nursery operations permits all across the State, including these basins. The Department recently decided to read its Basin Program rules in such a way to not allow this popular and pervasive type of use in these particular basins.

Nursery water use permits are different than irrigation use permits. The “default” characteristics of a nursery use permit include year-round water use, a rate equal to one-fortieth cubic foot per second per acre for containerized nursery plants, and a duty of five acre feet per acre per year for containerized nursery plants. By contrast, irrigation use permits are limited to the “irrigation season” that is typically from March through October, one-eightieth cubic foot per second per acre, and two and a half acre feet per acre (depending on the location). Moreover, irrigation use is limited to artificial application of water to plants, while nursery operations use includes use in nursery facilities for much more than direct application to plants (soil preparation, temperature control, application of chemicals or fertilizers, etc.).

The Department’s Basin Program rules may be found at Oregon Administrative Rules Chapter 690 Division 500 and thereafter. Each Basin Program outlines classified water uses that are authorized within the basin, or within particular stream reaches of the basin. None of the Basin Programs specifically classify nursery operations use as an authorized water use. The Basin Programs do, however, classify irrigation and agricultural water use as authorized uses. Nursery use comes under the umbrella of these two types of water uses. As such, the Department issued nursery operations use permits on a regular basis throughout the State.

Division 500 provides definitions that are particular to the Basin Programs that follow. The definition of “irrigation use” in Division 500 is “the use of water for agricultural water use, cranberry use, irrigation, nursery operations use, or temperature control…” However, this definition is limited to specific Basin Programs, excluding the Willamette, Sandy, and Goose & Summer Lakes Basins. As such, Department staff recently informed us that the Department will no longer issue nursery operations use permits in the Willamette Basin. We assume the Department will have the same opinion as to the Sandy and Goose & Summer Lakes Basins. Further, it is possible the Department will also cease issuing cranberry use and/or temperature control permits in all three basins, depending on the specific classifications in the basins.

It will be very important for new applicants in the Willamette, Sandy, and Goose & Summer Lakes Basins to realize the limitations of different types of water uses available to them in different basins, and to clearly articulate all details of the requested water use. In our recent revision of a pending nursery use application in the Willamette Basin, our office drafted the specific water use conditions we were requesting on behalf of our client to ensure no errors occurred during permitting. Costs will also increase if additional fees must be paid to the Department to request multiple uses (such as irrigation and agricultural use) to replace the more “global” nursery operations use applications.

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

Update:

At the beginning of 2018, the Department rethought its position with regard to ceasing nursery use permits in the Willamette, Sandy, and Goose & Summer Lakes Basins. The Department resumed issuing such permits as of the date of this update. It is important to realize how agency policy and interpretation can shift over time, affecting water use rights in Oregon. This is a good example of that phenomenon.

The Oregon Association of Nurseries annual convention was held on November 3^rd and 4^th at the Salishan Spa and Golf Resort, in Gleneden Beach, Oregon. The convention is a forum used to discuss issues vital to Oregon nurseries, vote on OAN bylaws, and honor the industry’s achievers at the annual president’s Awards Banquet. In an effort to support OAN, Schroeder Law Offices donated two bottles of Oregon whiskey for the silent auction at the President’s Awards Banquet.

Eastern Oregon is already experiencing above-average snowpack levels for this time of year, reports the Capital Press: link.

This follows above-average snowpack and precipitation reports from the 2016-2017 water year, and looks to be good news for Oregon water users as we continue to climb out of the recent drought. (You may remember seeing the Owyhee Reservoir draining water through the “Ring Gate” or “Glory Hole” in 2017 for the first time since 2011; see the video here.) See also, Natural Resources Conservation Service Oregon Basin Outlook Report (June 1, 2017): link.

The good start to the 2017-2018 water year, combined with carryover storage in some Eastern Oregon storage reservoirs, could even result in water releases for flood control in early 2018, according to the Capital Press.

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

Attorney Sarah Liljefelt and Paralegal Tara Jackson attended the Oregon Ground Water Association’s Fall Convention at the end of October. Tara’s team won fourth place in the annual golf tournament, winning machetes as part of their prize package! Tara also won the women’s long drive; way to go, Tara! Sarah presented at the convention on the topic of groundwater transfer challenges, and received great questions and feedback from attendees.

The Oregon Ground Water Association’s Fall Convention is always a blast with a lot of wonderful folks! Check out the organization at: http://www.ogwasite.org/.

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

By: Lisa Mae Gage and Therese Ure

On September 27, 2017, the Supreme Court of the State of Nevada issued an opinion concluding the longstanding battle between the Nevada State Engineer, Nevada Division of Water Resources and Kobeh Valley Ranch LLC (“KVR”), and Eureka County, Kenneth F. Benson, Diamond Cattle Company, LLC., and Michel and Margaret Ann Etcheverry Family LP regarding the Nevada State Engineer’s issuance of water use permits to KVR. This dispute involved KVR’s proposed future mitigation plan. After several appeals and remands before the Nevada Division Water Resources, the Seventh District Court in Eureka County and the Supreme Court of Nevada, the matter ended.

The Etcheverry family, among others, fought for over seven years to protect their senior permitted and vested water rights from the impacts proposed by a series of change applications filed by Kobeh Valley Ranch. Evidence presented before the Nevada Division of Water Resources and the Courts showed conflicts to senior users would unarguably occur. Kobeh Valley Ranch asserted that it may be able to mitigate the conflicts through a proposed future mitigation plan. Without any guarantee that a proposed future mitigation plan would in fact protect the senior rights of water users, senior users fought back. This fight ended with a Supreme Court decision upholding the prior appropriation system, protecting senior water right holders and preventing a party such as KVR from circumventing the statutory requirements put in place to protect existing rights.

After the repeated appeals and remands and dragging the parties through multiple contests and court challenges, the Supreme Court offered a reprieve finding “KVR is not entitled to a second bite at the apple after previously failing to present sufficient evidence of mitigation”… and “KVR is not entitled to a do-over after failing to provide substantial mitigation evidence.” State Eng’r v. Eureka Cty., 133 Nev., Adv. Op. 71 (2017). Although it may seem like a small win to the parties to the matter, it is also a great victory in the battle to protect our valuable water resources.

Today is World Food Day and we see many promoting their initiatives to fight hunger as they celebrate October 16, 1945 – founding day of the Food and Agriculture Organization of the United Nations.

One of Schroeder Law Offices’ missions is to support people feeding the world. We do this by offering legal services for those farmers and ranchers out there who are growing crops to feed the world, or otherwise contributing to the food and fiber industries in this and other countries.

Just this summer, we toured our clients’ properties learning how they are using technology and advancements to increase their crop yields on the same acreage with the same water use. We also learned how our clients are working with nutritionists to feed cattle in the optimal fashion to raise beef and other meat sources. We are proud that we can support our clients’ water needs in their pursuit to sustainably feed the world!

What are you doing for World Food Day?

Schroeder Law Offices (“SLO”) represents a wide variety of water users ranging from municipal to agricultural to domestic. On August 12, 2017, the Portland and Reno teams took an educational field trip to learn more about some of the industries that it supports in Northern Nevada.

The first half of the field trip included touring Western Nevada Cattle Feeders facilities in Fernley, NV, participating in an informational and educational discussion with feedlot owner Dave Stix about his cattle business as well as the cattle industry as a whole. Following the feed lot tour, the SLO team was able to tour two sale yards in Fallon, NV. The first sale yard, Fallon Livestock LLC, was not holding a sale which provided us the opportunity to walk through the entire facility and learn how cattle are bought and sold. The second sale yard, Nevada Livestock Market, was holding a special sale which provided the Schroeder Law team with a view the fast pace of a live auction.

The second half of the field trip included a tour of irrigated, farm land in Fallon, NV as well as learning about the sources and process of water delivery for the farmers of the Truckee-Carson Irrigation District with our tour guide and expert for the day, Norm Frey of Frey Ranches in Fallon, NV. This provided the Schroeder Law team the opportunity to learn about the Newlands project and gain a better understanding of farming and the specific irrigation systems in Northern Nevada. Education included identifying crops as well as learning more about how the science of farming in Northern Nevada including the tremendous strides made with the use of technology.

By taking field trips and learning about the businesses, industries and geographic regions that our clients reside in, our team’s goal is to be better prepared to understand the issues of our clients and to represent their interests.

Looking for a last bit of summer fun? Join Schroeder Law at the Oregon State Fair! Friday marks the start of the 10 day event, which runs from August 25 to September 4 at the Salem, Oregon Fairgrounds.

Tara Jackson will be working the Oregon Women for Agriculture booth from 3 pm to 6 pm on Saturday, August 26. You will find Sarah Liljefelt the following Saturday morning, September 2, at the Oregon CattleWomen’s booth.

Come celebrate and learn about the achievements of all Oregonians, including Oregon’s farmers and ranchers.

Find event details on the Oregon State Fair website, by clicking here.

Do you remember when extensions of time were approved by the Oregon Water Resources Department routinely with ease? That time was over for municipal water providers years ago (see related article); however, until recently, other permit holders simply faced increasing amounts of application paperwork.  Now, that time may be over for every permit holder. Our office has seen requests for extensions of time receive increased scrutiny from the Department as of late.

Recently, a client applied for their first extension of time after investing substantial resources towards diligent development under their water use permit. The proposed final order approving the extension of time was 13 pages long, discussing every single inquiry from the extension application and whether the client’s response was sufficient. Even though the Department is proposing approval, it is clear that such approval will be more difficult to receive going forward.

Certain factors are of extreme importance for water users hoping to obtain extensions of time for their water use permits. Physical construction must begin and be diligently prosecuted during the time to complete construction under the permit or prior extension period. The Department will closely examine how much physical development of the water system has occurred and the permitee’s reasons for not completing construction. The Department will also evaluate and balance financial investment, market and present demands for water, the amount of water available to satisfy other affected water use rights, scenic waterway flows, and habitat needs of sensitive, threatened or endangered species.

Of additional importance is compliance with permit conditions. If a groundwater use permit requires annual static water level measurements following well construction, it is extremely important that the permittee complies with the condition. The same is true for installation of flow meters, submission of water use reports, and more. The Department may deny an application for extension of time for less than full compliance with all permit terms.

Applications for extensions of time have increased in length and complexity over the years. The current permit extension application is 12 pages long. (Extension of time application forms are available here.) Our office routinely completes extension of time applications for clients. It takes time to provide all the development details and documentation now required by the Department. Do not wait until the day before your permit expires to start your extension application. We recommend seeking assistance one year before your permit or current extension term expires to consider if an extension can be avoided, and, if not, making sure all conditions are met before an extension of time application is filed.

It is more important now than ever to make sure you have all your “ducks in a row” when using water under a permit and seeking an extension of time. Stay tuned to Schroeder Law Office’s Water Law Blog for more news that may affect you!

In February 2017, the town of Oroville, California was in for quite the surprise! Butte County Sherriff’s Office issued a mandatory evacuation notice as the full reservoir (Oroville Lake) above Oroville threatened to wash out residents. The reservoir’s dam spillways were severely damaged by increased water flow caused by the seemingly unceasing rains. Now the question is when will it be fixed, and what happens next?

Many residents have noticed the hustle and bustle of workers and heavy machinery at the Oroville Dam and are wondering what is actually going on.  Rumors abound. According to the San Francisco Chronicle, some say the work must be a secret effort to mine undiscovered gold, or some suspect a missile is taking shape…not a new spillway. Regardless of what the rumor mill might be stirring, one question is on everyone’s mind – Will it be done in time for the winter and spring rains in 2018?

Officials say that they want the spillways to be operational by November 1^st, 2017 in case the lake fills up by then. Final touches, on the other hand, will have to wait until next summer. Some residents fear that the work is only a patch job and not a permanent fix, and skeptics are not going to wait around to be proven right or wrong.

One thing is for sure, the California Department of Water Resources is required to make sure that the dam is safe before it is fully operational. Arguably, residents should receive assurance of that the dam is safe before the 2018 rains hit and the lake fills up.

In the meantime, assignment of blame for the 2017 disaster continues. State officials are investigating the spillways and looking into the possibility that poor management is to blame for their damage. One official says that he expects the team’s findings to have implications for other dams in California, and beyond.

The State Engineer held informational meetings on July 17 through July 20, 2017 regarding its Preliminary Draft Humboldt River Conjunctive Management Regulations. The State Engineer is proceeding through administrative rulemaking process to define how Humboldt River Decreed water rights and groundwater rights will be conjunctively managed. If you were unable to attend the informational meetings, you can view the power point used during these meetings by visiting http://water.nv.gov/HumboldtRiver/Humboldt_regs_Small_Business_July_2017.pdf.

As a brief history, the Humboldt River was adjudicated in the 1930’s and large scale groundwater development began approximately 20 years later. Existing studies support the assertion that groundwater pumping is depleting surface river flows. The groundwater basins surrounding the Humboldt River are over-appropriated as the amount of water withdrawals allotted by water rights exceed the perennial yield. As an alternative to curtailing water, the State Engineer is considering Conjunctive Management Regulations. The main objectives of these regulations are to maximize beneficial use of our limited water supply, allow for continued and uninterrupted groundwater use and provide mitigation to senior Decreed water right holders for conflicts of their delivery of surface water. These regulations aim to allow for replacement of injurious depletions to the senior surface right holders, and if replacement water is not available, to require groundwater users to participate in a basin-wide mitigation plan providing mitigation by financial compensation.

At this stage in the rule making process, the State Engineer is attempting to determine if the regulations are likely to place an economic burden on small businesses, and if so, to determine the extent of the impact. Small businesses can submit economic impact statements to the State Engineer for consideration. There are no current deadlines imposed by NDWR for submission of small business impact statements or comments to statements, however, it is likely that we will see some movement within as little as 30 days.