On September 17th, 2024, the Oregon Water Resources Department (OWRD) implemented new groundwater rules that have sparked significant debate. While these rules aim to promote sustainable water use, they also raise several concerns that merit discussion.

Arbitrary Power and Political Influence

One of the primary criticisms of the new groundwater rules is that they grant the OWRD considerable discretionary power. The department can now deny groundwater permits based on criteria that some argue are too subjective and potentially influenced by the political climate at the time of filing. This level of control could lead to inconsistent decision-making, where permit approvals or denials hinge more on the prevailing political winds than on objective, scientific assessments.

New Groundwater Rules: Development by Unelected Officials

Another contentious point is that these rules were developed by unelected officials. The process involved various advisory committees and consultations, but ultimately, the decision-making power rested with individuals who are not directly accountable to the public. This has led to concerns about transparency and the democratic legitimacy of the rule-making process.

Influence of Powerful Non-Profit Organizations

The involvement of powerful non-profit organizations in shaping the new groundwater rules has also been a point of contention. Groups such as the Oregon Environmental Council and WaterWatch of Oregon played significant roles in the advisory process. While these organizations advocate for important environmental causes, their influence raises questions about whose interests are being prioritized. Critics argue that the rules may reflect the agendas of these groups more than the needs of all Oregonians.

Balancing Conservation and Agriculture

Water conservation is undeniably crucial, especially in the face of climate change and increasing water scarcity. However, the new groundwater rules must also consider the needs of Oregon’s robust agriculture industry. Agriculture is a vital part of the state’s economy, and overly restrictive water regulations could harm farmers and ranchers who rely on groundwater for irrigation and livestock.

Conclusion

While the new groundwater rules aim to address critical issues of sustainability and resource management, they also present several challenges. The potential for arbitrary decision-making, the influence of unelected officials and powerful non-profits, and the impact on the agriculture industry are all significant concerns that need to be addressed. Moving forward, it is essential to find a balanced approach that ensures water conservation while respecting the diverse needs of all Oregonians.

At Schroeder Law Offices, P.C., we can assist you in navigating the new and evermore complicated water laws in Oregon. Please contact us at (503) 281-4100 if you have any questions. Or for more about water rights in Oregon see this article.

California adjudication rules have changed! On October 10, 2023, California Governor Gavin Newsom signed AB 779 into law. This California law requires courts to consider sustainability and equality factors during groundwater basin adjudications. The intent behind this adjudication rule is to keep everyone informed and provide equal access to resources.

Adjudications of water basins are court cases that decide water use claims in a particular basin. Water users must file their claims by a certain date. Once the adjudication process concludes, the court orders a claim into a decreed water right. Oregon, Idaho, Washington, and Nevada also currently have active adjudications, but sustainability and equality that are not incorporated into a claim are not usually addressed is these other states.

This California adjudication rule requires the groundwater sustainability agency (“GSA”) to submit the required sustainability plan(s) for groundwater basins designated as high or medium priority to the court. This law also requires the GSA to notify the public when an adjudication begins. The public notice requirement stipulates that the GSA must host a public meeting to explain the adjudication process. The GSA must publicly post court documents for the public to follow the adjudication process. Further, the court must consider “the water use of and accessibility of water for small farmers and disadvantaged communities” before entering a judgment.

The Effects of AB 779

Adjudications are long, expensive processes. These considerations will help all parties participate in the process, no matter the size or financial resources. By the end, hopefully everyone receives access to the resources they need.

Other states conducting adjudications have notices requirements, but do not currently have public hearing requirements to explain the process at the outset.

Oregon and Nevada have notice requirements referred to as notice “by publication.” This is when the Director or the State Engineer publishes notice in a newspaper circulated in the area where the adjudication takes place. In comparison, in Idaho adjudications, Idaho Law requires the Idaho Department of Water Resources Director to serve notice by mail to affected parties. Finally, Washington law requires notice to property owners by publication or personal service.

States conducting adjudications often look to streamline the process. It will be interesting to see if neighboring legislatures to California push for similar requirements as this California adjudication rule. Although it may add time at the beginning and during the adjudication, it may save time later on in late filed claims, or applications for water rights.

If you are a water user in Oregon, Idaho, Washington, or Nevada, and there is an ongoing adjudication near you please contact us for information. You may also review the water department’s website in your state. 

Senior paralegal Tara Lomacz and her family will be attending the annual 2023 Oregon Ground Water Association Picnic and Campout! The event will be held on August 11th through August 13th at Pelton Park in Madras, OR. Join in celebrating OGWA’s 75th anniversary. Activities will include a potluck and cooking contest, the annual horseshoe tournament, and plenty of games and prizes. To learn more about OGWA’s annual campout, visit the event website here.

April 22^nd, 2023, is the 53^rd annual Earth Day celebration. The theme of this year’s holiday is “Invest in Our Planet.” The preservation and efficient use of water, a vital natural resource, leads all that we do at Schroeder Law Offices. As a water law office, Schroeder assists municipal water users and districts, individual and family farms, and ranches to promote sustainable water use throughout Oregon, Nevada, Idaho, and Washington. To celebrate, let’s brush up on some Earth Day history.

The beginnings of Earth Day can be traced back to an oil spill off the coast of Santa Barbara in 1969. Because of its devastating effect on the surrounding nature and wildlife, the public’s concern over what could be done to protect the environment grew. After the spill, Wisconsin senator Gaylord Nelson inspired a nationwide “teach-in” day. Senator Nelson enlisted the help of a young activist Denis Hayes, fellow senator Pete McCloskey, and numerous volunteers and activists thereby creating the first Earth Day on April 22^nd, 1970. 20 million people celebrated the first holiday, prompting nationwide demonstrations, protests, and teach-ins.

Earth Day is now a global event celebrated each year through demonstrations, events, and acts of service!

To keep the mission of Earth Day in mind this year, Earthday.org created a list of the many ways you can take care of the earth in your day-to-day life. Some ideas you might try:

• Attending a tree planting event
• Participating in a community beach cleanup
• Planting a pollinator garden to help the population of bees, butterflies, and other organisms in your local ecosystem
• Attending an Earth Day event (find one in your area using this interactive map)
• Reading more on Earth Day history to explore the origins of the holiday

This weekend, please join us in celebrating Earth Day’s mission.

To stay up to date on all things water, be sure to subscribe to our weekly e-newsletter to the right.

The Oregon Water Resources Department (“OWRD”) has stopped processing new groundwater applications and begun to severely limit groundwater permit extensions. This policy change places a significant burden on groundwater permittees and will directly impact agriculture in Oregon. Ultimately, OWRD’s policy change will significantly limit agricultural expansion in the state. 

In his article “Oregon Moves to Limit Groundwater Development,” Steve Shropshire cites “Draining Oregon,” the 2016 report published in The Oregonian, as the major catalyst for increased regulation. The Oregonian article covered groundwater issues in Oregon and argued that OWRD was over permitting the use of the state’s groundwater supply. Soon after The Oregonian article, OWRD updated their Integrated Water Resources Strategy to name groundwater as one of the biggest issues concerning Oregon’s water future.

Even though OWRD has not passed a rule, OWRD has ceased processing new groundwater applications and limited its issuance of groundwater permit extensions as a policy matter. OWRD has also limited the issuance of new groundwater rights in the Walla Walla, Harney, and Umatilla basins. These actions will pose a big change for agriculture in Oregon, as acquiring new groundwater rights will be much harder, if not impossible. To participate in the rule making process when that occurs, go to:  Water Resources Department: Proposed Rulemaking : Oregon Administrative Rules : State of Oregon

Stay informed on the latest groundwater issues, current events, and all things water by signing up for Schroeder Law Offices’ weekly email newsletter to the right.

On October 3^rd, 2022, the Supreme Court heard the oral argument for the first case of its 2022-2023 term: Sackett v. EPA. The case calls into question the definition of “Waters of the United States” (WOTUS), as it will decide the proper test to determine which wetlands are considered WOTUS, and therefore subject to federal regulation from the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers under the Clean Water Act.

The case originated after Michael and Chantel Sackett purchased an Idaho property near Priest Lake in 2004. After the couple began building a home on the property in 2007, the EPA informed the Sacketts that they must stop construction and apply for a permit since their land contained a wetland that was adjacent to protected waters. Since the wetland is separated from Priest Lake by a road, the Sacketts claimed that their land is not subject to the Clean Water Act’s jurisdiction and sued the EPA. What followed is a legal battle that could potentially change which wetlands are considered WOTUS going forward.

The Clean Water Act was passed in 1972 in an effort to protect waters of the United States from pollution. Since then, the extent of protections provided by the Clean Water Act has been extensively questioned and changed. These changes  have been brought about by  Supreme Court rulings, plurality and concurring opinions of Supreme Court justices, and presidential administrations, especially those of Presidents Obama, Trump and Biden. 

The basis of both the Sacketts’ and EPA’s arguments can be found in the two waters tests proposed in the 2006 Supreme Court case Rapanos v. United States. The Sacketts have relied on the plurality opinion written by late Justice Antonin Scalia to support their case, which argued that wetlands should be considered WOTUS if the adjacent channels contained a “permanent” body of water such as a river, lake, or stream. Additionally, Justice Scalia argued that a wetland can only be considered WOTUS if it featured a “continuous surface connection” with a more permanent body of water.

The EPA is relying on retired Justice Anthony Kennedy’s concurring opinion in that same 2006 case. Justice Kennedy argued that wetlands must include a “significant nexus to navigable waters.” According to this definition, a wetland does not necessarily have to be continuously connected to navigable waters in order to be protected. Instead, the wetland must have a significant effect on the “chemical, physical, and biological integrity of the Nation’s waters.”

In response to  Sackett v. EPA, many agricultural groups have shared their experiences of uncertainty and hardship brought on by the shifting definition of WOTUS over the years. The Family Farm Alliance, along with other agricultural groups, including the USA Rice and National Association of Wheat Growers and the National Corn Growers Association, submitted an amicus (“friend of the court”) brief earlier this year to voice its perspective on the matter. The brief highlights the problems farmers and ranchers have faced due to the lack of clarity regarding the Clean Water Act’s jurisdiction, which has created confusion over whether waters on their property are subject to EPA and U.S. Army Corps of Engineers regulation.

During the October 3^rd oral argument hearing for Sackett v. EPA, Justice Ketanji Brown Jackson questioned the Sacketts’ legal counsel on the  difference between “abutting and neighboring wetlands” if the goal of the Clean Water Act is to protect the nations’ waters “chemical, physical, and biological integrity.” Justice Neil Gorsuch commented on the lack of clarity in the Clean Water Act’s definition of “adjacent,” which Justice Sonia Sotomayor pointed out made some of her colleagues critical of whether the term was “precise enough.” Justice Sotomayor went on to question whether there might be “another test that could be more precise and less open-ended” than the adjacency and significant nexus tests to determine which wetlands are protected. Sackett V. EPA, 21-454 U.S. (2022)  

As of now, Sackett v. EPA is pending adjudication before the Supreme Court. Considering the scope of the case, many expect the upcoming decision to have a significant impact on both environmental interests and the agricultural industry.

To learn more about wetlands and Clean Water Act jurisdiction, check out Schroeder Law Offices’ webinar on Wetlands: Due Diligence for Ditches, Drains and Ponds. 

As of September 13^th, Oregon Water Resources Department Director Tom Byler has officially retired after 27 years working for the state of Oregon. A new OWRD director will be appointed by Oregon’s next governor. To serve for the remainder of her term, governor Kate Brown has appointed acting director Doug Woodcock, who previously worked as the Deputy Director of Water Management.  

During his tenure as the director, Tom Byler dedicated his time to modernizing the department’s programs and services to meet the Oregon community’s ever changing water needs. Byler also worked to increase OWRD’s capabilities to collect and analyze data to manage Oregon’s surface and groundwater resources throughout the state.

In the official press release regarding his retirement, Byler said, “As I look to the future of water resources in Oregon, I anticipate that water issues will continue to become more and more complex and challenging.” Byler added, “I am excited about the Department’s increasing capabilities to help communities address those issues.” Though he may be retiring from his current position, Byler intends to carry on his work in water and natural resources issues into his retirement.

The Oregon Water Resources Department is the state agency responsible for ensuring adequate and sustainable water supply to meet present and future needs. To learn more about OWRD, visit their website here: https://www.oregon.gov/owrd/. 

            Schroeder Law Offices had a blast working at the 2022 Oregon State Fair. If you weren’t able to make it down to Salem for the annual festivities, we’re here to fill you in. During the fair’s kickoff weekend, Tara Lomacz and Madeleine Criglow worked the Oregon Women for Agriculture booth in Salem Fairgrounds’ Columbia Hall. This space was dedicated to showcasing agriculture in Oregon along with the beautiful works of local authors, photographers, and textile artists. At the Oregon Women for Agriculture booth, Tara and Madeleine had a great time speaking with fairgoers on agriculture and water issues in Oregon.

            To encourage fairgoers to stop by the booth, guests were challenged to spin the trivia wheel for questions on agriculture and farming in Oregon. The questions tested guests’ knowledge on everything from Oregon’s state beverage (milk, if you’re wondering) to how many gallons of water a cow drinks in a day (a whopping 20-30 gallons!). Guests were delighted to realize that they already knew a thing or two about Oregon agriculture (and were pretty happy about the prizes, too).

The Oregon Women for Agriculture booth also featured a map highlighting the water issues currently affecting agriculture and local farmers throughout Oregon. As fairgoers read through the map, many shared their own experiences with water issues and asked about what might be done to protect the natural resource in Oregon. It was rewarding to see guests take such an interest in local agriculture, and Schroeder Law Offices was happy to spread the word on its importance to the environment and economy.

            As the trivia games and discussions came to a close, the fair was just getting started. There was still tons of fun to be had, from checking out live music to indulging in every snack you could imagine. Leaving the fair with an ice cream cone in hand, we were grateful for the opportunity to join in on the fun!

In the 2021 legislative session, the Idaho House introduced twelve water related bills and the state considers twenty-two water related bills in total.  The session began on January 11, 2021 and as of March 18, 2021, one of the proposed water bills is already law, one is before the Governor for signature, and multiple others have passed one or both houses. Needless to say, Idaho is making many changes and updates to its water law.  The House bills considered in this legislative session are briefly described below.  

House Bill 43

House Bill 43 amends and repeals existing law relating to the administrative determination of adverse claims, hearings, and orders of local groundwater boards, appeals from certain actions, and penalties.  The purpose of this bill is to eliminate inactive, outdated, and obsolete sections of the Idaho Code related to water right delivery calls. The adoption of the Rules for Conjunctive Management of Surface and Ground Water Resources (IDAPA 37.03.11) made these sections of law obsolete. 

House Bill 43 passed both the House and the Senate and has been signed into law. 

House Bill 57

House Bill 57 amends existing law regarding certain authority of the Water Resource Board and the Department of Water Resources. The purpose of this bill is also to eliminate inactive, outdated, and obsolete sections of the Idaho Code.  The sections removed in this bill contain language that conflict with other sections of the Idaho Code or are duplicative language and authority found elsewhere in Idaho law.  The bill proposes to remove language in Idaho Code, Title 42 related to penalties for certain statutory violations and invests in the Director of the Department of Water Resources the power and authority to enforce the provisions of the chapter and rules and regulations promulgated pursuant to it.  

House Bill 57 passed both the House and Senate and is before the Governor for signature.

House Bill 99

House Bill 99 adds to existing law to provide for water quality innovation and pollutant trading.  The purpose of the bill is for Idaho to establish a mature pollutant trading program that provides a benefit to the regulated community and Idaho’s most treasured water resources.  It authorizes a voluntary water quality innovation and pollutant trading program and provides the Department of Environmental Quality (“DEQ”) authority to regulate the program. 

House Bill 99 passed both the House and the Senate. 

House Bill 103

House Bill 103 amends Idaho Code, Title 30 to allow remote participation in meeting of non-profit corporation directors.  Such participation counts toward the requirements for a quorum. 

House Bill 103 passed the House on March 1^st and is in its third reading in the Senate.

House Bill 182

House Bill 182 provides for irrigation corporation boundary adjustments. The bill allows for a streamlined process to adjust canal company boundaries where there is no increased use and no injury to other water rights. 

House Bill 182 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 184

House Bill 184 revises provision of existing law regarding notifications of change in ownership of water rights. It proposes Idaho Code 42-248 be amended to provide notice of ownership updates to landowners in circumstances where the water rights used on the land are owned by a third party. The purpose of the bill is to remove outdated provisions and improve readability.  The bill also clarifies that a change of ownership in the records of the Department of Water Resources is not a determination of ownership and is not an administrative action subject to challenge. Lastly, it clarifies that disputes over water right ownership should be addressed through quiet title action. 

House Bill 184 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 185

House Bill 185 amends existing law to provide that lands annexed to a Flood Control District may be contiguous or noncontiguous to the existing district.

House Bill 185 passed the House on March 3^rd and is in its 3^rd reading in the Senate.

House Bill 186

House Bill 186 revises existing legal provisions regarding notices of claim associated with the use of stockwater on federal land and to revise provisions regarding the Department of Water Resources Director’s determination of specified elements to define and administer the water rights acquired under state law.  The bill amends Idaho Code 42-1409 and Idaho Code 42-1411 to create a presumption that (1) the priority date for stock water rights is the date of the original federal grazing authorization and (2) the current base property relates back to the base property associated with the original federal grazing authorization.  The bill also amends information required to identify the legal description of stockwater rights on federal grazing allotments.

House Bill 186 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 266

House Bill 266 adds to existing law to provide for statutory cloud seeding in Idaho.  House Bill 266 defines cloud seeding as “all acts undertaken to artificially distribute or create nuclei in cloud masses for the purposes of inducing precipitation, cloud forms, or other meteorological parameters.”  Cloud seeding has been done in various areas of Idaho for several years.  This legislation also states findings relating to cloud seeding in Idaho and provides that the Water Resources Board is responsible for authorizing cloud seeding and may participate in cloud seeding programs.  The legislation further states that water generated through cloud seeding will be administered in accordance with the prior appropriation doctrine and limits liability for participation in certain cloud seeding projects.  No state or local permits will be required for cloud seeding. 

House Bill 266 passed the House on March 8^th and is in its second reading in the Senate.

House Bill 267

House Bill 267 amends Idaho Code 42-1760, which establishes the Idaho Water Resource Board’s Water Management Account.  Amendments include (1) replacing the list of potential projects with authority for projects which conserve or increase water supply, improve drought resiliency, address water sustainability, or support flood management; (2) including aquifer recharge above Milner Dam on the list of specific projects for consideration; (3) confirming that all water rights, including hydropower water rights, must be protected and that identified water uses must be considered in the approval of projects; and (4) providing additional information as part of the Board’s annual report. 

House Bill 267 passed the House on March 4^th and is in its third reading in the Senate.

House Bill 268

House Bill 268 amends existing law to revise provisions regarding extensions for construction, work, or application of water to full beneficial use.  This legislation amends Idaho Code 42-204 to provide that the Department of Water Resources may extend the time required for development of a water right to accommodate delays caused by litigation relating to the land or water development.  Further, it amends Idaho Code 42-204 to clarify that a 10-year extension of development for a water permit may be granted for multiple permits relating to a common diversion or distribution system. 

House Bill 268 passed the House on March 4^th and is in its third reading in the Senate. 

House Bill 307

House Bill 307 repeals and amends certain right-of-way provisions.  The bill deletes Idaho Code 42-1101 which appears to recognize the riparian doctrine in Idaho. Idaho courts have long recognized that the riparian doctrine does not apply in Idaho.  This legislation also amends existing statutes in response to an increase in legal disputes regarding the nature and scope of rights-of-way and easements for irrigation ditches, canals, and conduits including (1) clarifying rights and obligations association with operating, cleaning, maintaining, and repairing rights-of-way and easements; (2) codifying the common law standard applied by Idaho courts regarding debris deposited in rights-of-way and easements; and (3) clarifies application of rights and obligations to rights-of-way and easements to existing embankments and irrigation facilities.  

House Bill 307 passed the House on March 12^th and is in its second reading in the Senate.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Each bill page linked above provides the status of the bill. Additionally, the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

What about the ten water related Senate bills introduced this session?  Keep an eye on our blog for a summary of the Senate bills as well.

(Image Sources: https://www.mtexpress.com/news/state_regional/idaho-legislature-to-discuss-elections-liability/article_8c592c0e-e338-11ea-81b4-d3b028f895cf.html; https://www.usnews.com/news/best-states/idaho/articles/2021-03-19/idaho-legislature-might-shut-down-due-to-covid-19-outbreak)

This post is one of a series highlighting the ways in which water users have adapted to life in the time of COVID-19.

Shelley Roberts is the CEO of the Idaho Rural Water Association (“IRWA”). IRWA is a resource for small water systems in the State of Idaho that offers training for drinking water and wastewater operators and aids those systems in times of need. Their objective is “to ensure Idaho’s rural communities are safe while still maintaining the high quality of life we hold so dear.”

For Shelley, the best part of working with IRWA has been the same since day one. As someone with a business background, she loves being able to utilize her education by running a non-profit corporation benefiting others. “I’ve never met such salt of the earth people as I have in the water industry,” she says. “They are all so genuine, caring, and kind.”

COVID-19’s impact on IRWA started during its Spring Conference in March, 2020, which concluded on Friday, March 13- the same day the Federal Government declared a state of emergency. The following Monday, all of IRWA’s administrative staff were directed to stay home. The week after, IRWA organized a work from home policy that allowed employees to perform their duties remotely. For IRWA’s circuit riders, though, it was a different story.

Drinking water and wastewater are essential services, and adjustments had to be made to ensure they continued to run smoothly. IRWA employs numerous circuit riders and field staff whose jobs require in-person and onsite contact with water system operators. However, thanks to video conferencing technology, much of their communications with the operators could be conducted remotely, limiting potential exposure. When site visits were required, field staff practiced social distancing as much as possible, including staying 6 feet apart and wearing face masks.

An unexpected benefit of remote work was an increased ability not only to contact the systems but for internal communication between IRWA’s employees, office and field staff alike. “We learned how to use Teams and started having weekly video conferences,” Shelly told us. “We weren’t able to do that before. It was nice for everyone [at IRWA] to have more contact with each other.”

According to Shelley, one of the biggest impacts COVID-19 had was fear of “what ifs.” The ability to communicate with water systems in remote locations without having to travel allowed the circuit riders to discuss those concerns quickly and determine what steps were needed to resolve any issues.

Another of IRWA’s major concerns was operator availability. Many of the small systems IRWA works with are operated by volunteers who have other commitments to day jobs and families. Should those operators fall ill or otherwise become unable to perform their duties, it can be difficult to find other operators to fill in.

IRWA has long worked with the Environmental Protection Agency (“EPA”) to locally administer the water/wastewater agency response network, otherwise known as WARN. In response, through WARN, IRWA was able to put together a list of volunteers who could assist if a system’s regular operator was not available.

Shelley says that IRWA’s response to COVID-19 did not greatly differ from their response to other emergencies in which the first step is typically outreach and communication with the systems IRWA works with. For example, on March 21, 2020, a magnitude 6.5 earthquake struck central Idaho. Circuit riders needed immediate contact with water systems to assess any potential damage caused by the quake. Luckily, the remote communication procedures implemented in response to COVID-19 allowed IRWA’s circuit riders to easily check in with system operators.

While the pandemic continues to impact daily life and operations for IRWA in general and Shelley personally, she looks forward to life after COVID-19. Professionally, she awaits opening up the new training center in Boise, Idaho IRWA constructed just prior to the shutdown. The center will host hands-on trainings for water and wastewater operators in addition to traditional classroom training. As for her personally? Being able to hug her friends and extended family.

Shelley participated in a panel discussion on the pandemic’s impact on the Idaho water sector as a part of the Idaho Association of Cities’ 2020 virtual conference, which you can watch in full here. For more information about IRWA, including details for upcoming trainings, check out their website here. And stay tuned to Schroeder Law Offices’ blog for more posts in this series and other water-related issues!

The Nevada Division of Water Resources (NDWR) gave notice to extend the deadline for submitting written comment and testimony on Proposed Orders to Designate Hydrographic Basins related to the hearings held October 12- October 26, 2020. Information on the hearings is available at:

http://water.nv.gov/hearings.aspx.

December 1, 2020 is the new deadline for written testimony, noting all testimony and comments must be postmarked for mailing to the State Engineer on this date.

For more information, go to http://water.nv.gov, under News > Proposed Orders > Notice_of_Hearing > Table_of_Hearings. Here you can find a Table of Hearings on Proposed Orders by location with the associated Hydrographic Basins.

For additional information regarding NDWR Proposed Orders, please read our prior blog. 

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The State of the Water Industry Survey

In the June 2020 issue of Opflow, the American Water Works Association published a survey of 3,351 water industry professionals. The State of the Water Industry (SOTWI) survey identifies challenges to the water industry and seeks to understand their causes.

Several issues regarding water resource management made the top ten concerns of the industry professionals surveyed. “Long-term water supply availability” was the third-highest ranked issue on the list at #3, followed closely by “watershed/source water protection” (#5) and “groundwater management and over-use’ (#10).

Water Demand

Specifically, 57 percent of surveyed respondents indicated that their utilities could meet anticipated long-term water demand. However, about 12 percent of respondents claim that it will be challenging to meet future supply needs. This uncertainty creates reverberating effects throughout the industry. Uncertainty affects many other aspects of water resource management and quality, including the other issues mentioned in the survey. Future supply shortfalls will lead to increased price and competition as well as the potential for more frequent litigation over water rights.

Source Water Protection

In addition, source water protection was another critical issue for water resource managers. 76 percent of utility respondents to the survey said that they had implemented or were implementing a source water protection program. When considering only large utility respondents, that share increased to 89 percent. Clearly, utilities focus on strong source water protection programs. These programs are often cost-effective ways to protect and improve both water quality and quantity. Further, states are generally responsible for implementing water quality standards under the Safe Drinking Water and Clean Water Acts for drinking water. Recently, the AWIA, America’s Water Infrastructure Act amended the Safe Drinking Water Act, signed into law in 2018.

Groundwater

Finally, this was the second consecutive year that groundwater issues were front and center in the survey. 2019 California drought and wildfire conditions stressed groundwater resources, bringing those issues to the front of many survey respondents’ minds. Those issues show no signs of abating, as drought and wildfires continue to ravage the West.

In conclusion, many of the challenges highlighted by survey respondents are similar to those faced by water resource managers throughout the years. While there may be some cause for concern in certain areas, overall the survey shows a positive outlook for the future. Utilities are using existing water resources more efficiently as they comply with the AWIA, protect their water sources, and engage in asset management planning. The water industry has poised itself to meet its challenges with resilience.

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

In a previous blog, we looked into who owns an aquifer: does it belong to private individuals or the public? Under the ad coelum doctrine, the surface owner holds the ground itself – rocks, dirt, and the like – as private property, owned all the way down to the Earth’s core. On the other hand, the public collectively owns water, taken for private use through the rule of capture, or the ferae naturae doctrine.^[1] Because an aquifer is a “body of permeable rock which can contain or transmit groundwater,”^[2] the rules related to aquifers are a complex combination of the two competing doctrines. In our previous update, we highlighted a California district court case, Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al, that seeks an answer to the question of aquifer pore space ownership.^[3]

Background

The Agua Caliente Band of Cahuilla Indians (“Tribe”) sued the Coachella Valley Water District and Desert Water Authority (“Defendants”) to protect the aquifer under its reservation from groundwater depletion and water quality degradation. The Tribe argued that the pore spaces within the aquifer are its property under the ad coelum doctrine. The Defendants believe that the public owns pore spaces. The court has not yet addressed the question of whether the pore spaces are public or private property. However, the case has progressed since our last post and we are due for an update.

The Tribe and Defendants agreed to split the litigation into three phases when the Tribe first filed the case in 2013. Phase 1 was to decide whether the Tribe had a reserved right to groundwater in principle. Thereafter, Phase 2 would resolve if this reserved right contained a water quality component, the method of quantification of a reserved groundwater right, and if the Tribe owned pore spaces within the aquifer. Phase 3, if necessary, would quantify the Tribe’s reserved groundwater right and ownership of pore space.

In Phase 1, the court granted summary judgment to the Tribe on its groundwater right claim. The decision essentially declared without a trial that the Tribe did in fact have a reserved right to groundwater. Phase 2 was delayed while the Defendants unsuccessfully appealed to the 9th Circuit and then unsuccessfully sought Supreme Court review.

Update

Like Phase 1, Phase 2 proceeded to summary judgment. The court ruled that the Tribe can seek a declaration that it has an ownership interest in sufficient pore space to store its groundwater. However, the Tribe did not argue that it owns the pore space as a “constituent element” of its land ownership in its initial complaint, and the court could not consider it. Recently, the Tribe submitted an amended complaint including its pore space as “constituent element” of land ownership argument, which is now before the court.

The question of whether the Tribe has ownership of the pore space beneath its reservation is the only item left for the court to decide in this phase; the answer could have a real impact on groundwater issues, as it may be one of the first cases to directly address the pore space question. Another controversy is bubbling over pore spaces in North Dakota, starting with the case Mosser v. Denbury Res., Inc., 2017 ND 169 (2017), passage of H.B. 2344, and legal challenges to the bill by the NW Landowners. Keep an eye on the blog for our next update on this case that could affect you!

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

^[1] https://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos

^[2] Oxford Online Dictionary, https://en.oxforddictionaries.com/definition/aquifer

^[3] The case is presently before the United States District Court for the Central District of California, Docket No. ED CV 13-00883-JGB-SPX. Plaintiffs filed the complaint on May 14, 2013.

The Nevada Division of Water Resources (NDWR) posted Notices for Hearings for Proposed Orders for hydrographic basins within numerous Nevada Counties. These include: Churchill, Clark, Elko, Esmeralda, Eureka, Humboldt, Lander, Lincoln, Lyon, Mineral, Nye, Pershing, Washoe, and White Pine Counties.  NDWR scheduled the hears for October 12, 2020 through October 26, 2020.  Information on the hearings is available at: http://water.nv.gov/hearings.aspx.

            Each proposed order designates and describes a hydrographic basin. The proposed orders state the perennial yield, committed groundwater resources, and, if any, the exceedance of perennial yield for each hydrographic basin.  The orders then list the legal description of land “in need of additional administration.” within the basin

            Further, some orders set additional standards.  For example, the proposed order for the Pueblo Valley Hydrographic Basin (01-100) in Humboldt County, Nevada excludes irrigation from preferred uses of groundwater resources. It also denies any application to appropriate groundwater outside of limited circumstances. See Pueblo Valley Proposed Order.

            Individuals with water rights in these designated basins should review the proposed orders and participate in the administrative hearings regarding those basins.

            The individual Notices for Hearings on Proposed Orders and proposed orders for each basin can be found at http://water.nv.gov/news.aspx?news=Proposed%20Orders. 

Well sharing agreements are more common than you might expect! These types of agreements allow neighbors to share a well along with the costs for electricity and maintenance. However, there are several pitfalls that can be a big headache for landowners!

What are well sharing agreements?

Basically, these kinds of agreements are a combination of easements and covenants. Easements allow owners land, called the dominant estate, to use adjacent property, called the servient estate. Another kind of easement, called an easement in gross, do not have a dominant estate, like utility easements. The easement components of these kinds of agreements typically allow access to the well, maintenance, and repairs.

On the other hand, the covenant portions of these agreements contain the contractual terms. These contractual requirements pass with the sale of the land to new owners. For example, the agreement typically require the landowners to share electrical and maintenance costs. Also, parties must typically share water production if water is not available to meet the demand. In addition, terms can include dispute resolution terms, limitations on adding new parties, limit water uses, or describe the process to withdraw.

In contrast, sometimes the terms of the agreement are not in writing. Selling adjacent property served by a common well or subdividing property and providing well water using a pipeline can create an unwritten wells sharing agreement. If a dispute arises, parties might file a lawsuit to establish the agreement as an implied easement or as irrevocable license. Since parties must establish the terms of an unwritten easement by costly litigation, parties sharing a well should consider drafting a written agreement instead of “handshake deals.” We discussed these kinds of agreements in a free webinar available here.

What are the common problems with well sharing agreements?

First, these agreements typically share electricity and other expenses equally. Conflicts often arise when one party allegedly uses more water than the others, but each party pays the same amount. To avoid this issue, terms can allocate costs to each party based on their use. This approach might require installation of water meters to measure water use to each property and renegotiation of the terms of the agreement.

Second, the costs for maintenance of the well often become a point of controversy. Many wells operated using a well sharing agreement were drilled many years ago and have fallen into disrepair. The costs to reconstruct a failing well or drill new well can be significant. Further, wells constructed in the past often do not meet modern well construction standards. We discussed well construction issues in a free webinar available here. When the agreement does not clearly determine cost allocations, parties often disagree about who should pay for the repairs.

Third, the agreements often omit terms related to legal requirements under the Water Code. Oregon law requires a water use right for any domestic use that exceeds 15,000 gallons per day under ORS 540.545(1)(d). In addition, irrigation from a single exempt group domestic well cannot exceeds ½ acre under ORS 540.545(1)(b), meaning the parties to the well sharing agreement must share the available ½ acre for irrigation. Each party is not allowed their own ½ acre of outdoor irrigation under Oregon law. However, landowners can drill their own wells to provide additional irrigation if needed. Unfortunately, these agreements often omit the explicit allocation of outdoor irrigation to the parties.

What do I do if I have an issue with my well sharing agreement?

Of course, the best way to prevent a dispute is to develop a fair and complete well sharing agreement that avoids the problems identified above. However, if you are already participating in an agreement and would like to modify its terms, the parties may renegotiate a new agreement. A written agreement can also supersede an unwritten well sharing agreement by explicitly outlining its terms. Plus, a written document that is recorded with the county notifies future buyers of the property.

We routinely review and draft these kinds of agreements, so if you have specific questions, please contact us! We provide an extensive overview on how we can assist you with your agreements and other water items in Nevada or Oregon. We recently created a series of free webinars covering a variety of water-related topics published as a Water Right Video Handbook available here. Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

In the third COVID-19 webinar, Laura Schroeder, Clint Kinney, and Bob Long discussed what to do when you receive a notice that your well construction is non-compliant. The webinar aired originally on April 29, 2020 from 12:00 PM to 1:00 PM. You can watch the webinar here! Stay tuned to our blog for announcements for information about the next webinars! You can view other webinars in the series here.

Learn the basics about well construction rules from the legal perspective, including why well construction matters, when it can interfere in water use right transactions, and what you can do to fix or avoid issues. Receive practical information to investigate wells, determine issues with wells when purchasing new property, and investigate well issues on property you already own. Topics will include:

• Agency Regulation of Wells
  • What agencies and rules apply to well construction?
• Well Construction
  • What forms are required to drill or reconstruct a well?
  • What construction rules apply?
  • What happens when these rules aren’t followed?
• Well Construction and Water Use Rights
  • What is the definition of an “aquifer?”
  • Does OWRD analyze well logs?
  • When does well construction interfere with water right issues?
• Remedies to Well Construction Issues
  • How can one overcome construction issues in OWRD applications?
  • Does the well driller need to fix (or pay to fix) the well?
  • What options are available to fix an improperly constructed well?

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! Other webinars covered common water-related issues, including due diligence reviews in water use rights. Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

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 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!

            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

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!