As the 2018 irrigation season approaches, and on this eve of March 1^st, please remember to review your water use right permit and certificate documents to remind yourself of any measurements you are required to take!

Many water use permits and certificates require you to track your water use each month and then report your monthly use annually to the Oregon Water Resources Department. For more information about recording and tracking your monthly water use, please visit the Department’s Water Use Reporting page.

Many groundwater use permits and certificates require that a qualified individual record and report the water level in each well under the permit or certificate. This measurement is often referred to as a “static” water measurement. Typically, the measurement must be taken in March and reported within 30 days after it is taken, however you should review your permit or certificate closely to determine if you are required to report and when. Your permit or certificate document will also tell you who is qualified to take this measurement.

Additionally, while not outlined in your permit or certificate, those of you located in a Critical Ground Water Area are required to record weekly flow meter or power meter readings. The Department just released a new map showing groundwater area information that is helpful in determining if these rules apply to you.

Remember, complying with permit and certificate and statutory measurement conditions keeps your water use rights in good standing, making them more valuable to your property!

Stay tuned to Schroeder Law Offices’ blog for more timely reminders this irrigation season!

Groundwater is one of the world’s most essential natural resources! According to the United States Geological Survey department (“USGS”) groundwater makes up approximately 1/3 of the public drinking water supply delivered though our county and municipal systems. For rural populations not connected to county or city delivery systems, groundwater makes up about 90% of their drinking water. USGS also reports that groundwater provides over 50 billion gallons per day for agricultural use in the United States. Groundwater pumping has been steadily increasing. In some basins groundwater is being extracted at a faster rate than the basin can recharge. As we are seeing in many states, this excessive pumping can lead to wells drying up, water level decline in hydraulically connected streams and lakes, reduction in water quality, increased costs associated with pumping, and subsidence issues crossed by the loss of water supporting our ground and soils.

The National Groundwater Association (“NGWA”) encourages everyone to participate in National Groundwater Awareness Week. According to NGWA, this year’s theme is “Test. Tend. Treat” to encourage a more holistic approach to groundwater conservation. NGWA is encouraging others to share their stories during this week on social media using the hashtag #GWAW2018. If you are looking for other ways to get involved and promote ground water awareness, the USGS and other water organization have provided some ideas (http://groundwaterawarenessweek.com/). During 2018 National Groundwater Awareness Week, let’s evaluate our own water use and identify ways we can help protect this valuable resource!

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.

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.  

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.

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!

The week of August 28 through September 1, 2017 is “World Water Week,” an international conference organized annually in Stockholm, Sweden that focuses on new thinking and positive action toward water-related challenges and their impact on the world’s environment, health, climate, economic and poverty reduction agendas. The World Water Week annual forum is held by the Stockholm International Water Institute (SIWI) to provide a platform for collaborating organizations to gather for seminars and events regarding water and development issues. Individuals from all over the world gather to present findings at scientific workshops and examine methods for examination and collaboration on water-related topics. Each annual conference has a theme, the 2017 theme is “Water and Waste: Reduce and Reuse.”

The 2017 conference will include more than 200 sessions of seminars, volunteer projects, events, exhibitions, closed meetings and social events that link scientific understanding with policy and decision-making to develop concrete solutions to water, environment, and development challenges. A list of participating organizations can be found on the SIWI World Water Week website.

Research and information shared at the World Water Week forum is exchanged between scientific, business, policy, and civic communities with the goal of implementing actions and commitments and impacting decisions related to international processes regarding water-related challenges. To learn more about SIWI’s dedication to to finding solutions to international water challenges, read more about the institute.

[Photo Credit to Stockholm International Water Institute (SIWI)]

The state of Nevada began regulating water use through the enactment of the water code in 1905.  Under the 1905 water code, statutory regulation for surface water began.  Later, in 1913 statutes came into play for artesian groundwater rights of use, and in 1939 we see statutes for percolating groundwater rights use. Water rights established prior to those dates are known as “vested water rights” or “vested water claims”.

In order to determine the extent and validity to a vested water use claim, the Nevada State Engineer follows an adjudication procedure outlined in Nevada Revised Statutes wherein the State Engineer issues a Notice of Order for Taking Proofs. This Notice alerts the public that the office of the State Engineer is preparing to review and analyze all claims to vested water rights and determine the validity and extent of each claim. The State Engineer provides a deadline for claimants to file their proofs of appropriation for that basin that is being adjudicated. The State Engineer then carefully considers each claim, with its supporting documentation, and makes a determination of each and every claim to a vested right in that basin.

Historically, there were no deadlines to file a proof of appropriation to claim a vested right to use water until the State Engineer began adjudicating specific basins. While many groundwater basins and surface water systems are adjudicated, there are many that have yet to undergo the process.  Prior to the 79^th Nevada Legislative Session, it was not until the State Engineer issued a Notice of Order for Taking Proofs to Determine Water Rights wherein a deadline to file Proofs of Appropriation was set. Senate Bill 270 has amended the statute to set a deadline of December 31, 2027 for any and all proofs of appropriation to be filed in any basin, whether or not an adjudication has been ordered for that basin. The newly revised statute reads “If a claimant fails to file such proof on or before December 31, 2027, the claim shall be deemed to be abandoned.” To read the full text, please visit https://www.leg.state.nv.us/Session/79th2017/Bills/SB/SB270_EN.pdf.

The State Engineer will be required to provide notice of the new deadline in the Newspaper of every groundwater basin in the state and online, and the deadline is still 10 years away. However, after this date no proofs of appropriation will be accepted by the State Engineer, with the only exception of Federal agencies claiming reserved rights. Anyone who believes they may have a claim to a vested right will need to keep this very important deadline in mind. For more information on what is required to support your proof of appropriation, go to https://www.leg.state.nv.us/NRS/NRS-533.html#NRS533Sec115 or http://www.water-law.com/water-rights-articles/nevada-water-rights/.

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.

The Nevada State Engineer is working on a plan to define how to conjunctively manage Humboldt River Decreed water rights hydrologically connected with groundwater rights. This plan will take form through an administrative rulemaking process and will affect many water right holders in and around the Humboldt River Corridor. Nevada Farm Bureau is assisting the State Engineer in setting up informational meetings to discuss concepts in forming the regulatory plan and to obtain feedback on the plan’s economic impacts to small business, farms and ranches.

Currently the United States Geological Survey (“USGS”) and the Desert Research Institute (“DRI”) have a four-year study in the 34 groundwater basins that adjoin the Humboldt River Corridor. The results from the study will determine which individual groundwater wells are hydrologically connected to the surface water flows of the Humboldt River, and to what extent their connection impacts surface flows. Armed with this information, the Conjunctive Management Plan aims to apply annual financial assessments to be paid by each injurious groundwater well in an attempt to recompense senior surface water right owners for their loss of water.

The State Engineer’s preliminary draft regulations for conjunctive management identify the purpose of the regulations as a means to establish rules for a Mitigation Program for the Humboldt River and tributaries identified in the Humboldt River Decree and hydrologically connected groundwater. The plan will establish rules for mitigating conflicts through water replacement or other mitigation measures. The plan will identify water rights of use that are subject to or exempt from plan regulation. The draft regulations identify affected parties as any holder of water rights under the Humboldt River Decree, groundwater right holders whose pumping is determined to capture at least one percent of any Humboldt River Decreed water right, and mining projects whose mine pit lakes capture at least one percent of any decreed surface right and holders of storage water in Rye Patch Reservoir.

The preliminary draft regulations state that the percentage of capture will be initially determined by the USGS/DRI study and thereafter by any further study found suitable by the State Engineer. The State Engineer will determine the amount of conflict to each surface water right and the amount of injurious depletion by groundwater rights, measured in acre-feet, for use in establishing and enforcing the Mitigation Program. The Mitigation Program will be mandatory for all groundwater users determined to be injurious to senior surface water right users. Administration of the program will be funded through existing groundwater and surface water assessments, and the program itself will be funded by groundwater right holders or responsible parties of mining projects, based on their injurious depletions.

The preliminary draft regulations offer regulated groundwater users an alternative to the Mitigation Program by working with the State Engineer to obtain an approved water replacement plan or other type of mitigation plan. If a groundwater right holder fails to participate in the Mitigation Program or have an alternative mitigation plan approved by the State Engineer, that water right holder will be prohibited from diverting any groundwater until the injurious depletion is mitigated and may be subject to penalties and fines.

If you would like to learn more about the draft Regulations for the Conjunctive Management of the Humboldt River Basin, or would like to offer feedback concerning potential economic impacts imposed by the regulations or Mitigation Plan to small businesses, you are encouraged to attend one of the following informational meetings.

Monday, July 17, 2017: 6:30 PM at the Lovelock Community Center in Lovelock Nevada;
Tuesday, July 18, 2017: 6:30 PM at the Humboldt County Cooperative Extension Office in Winnemucca Nevada;
Wednesday, July 19, 2017: 6:30 PM at the Battle Mountain Civic Center in Battle Mountain Nevada; and
Thursday, July 20, 2017: 6:30 PM at the Elko County Conference Center in Elko Nevada.

The Oregon Water Resources Department (“OWRD”) issued amended rules designating the Walla Walla subbasin as a Serious Water Management Problem Area (“SWMPA”).[1] The amended rules, filed on May 22, 2017, specify new groundwater permits will not be issued in the SWMPA and new groundwater uses will only be allowed for the statutorily exempt uses outlined in Oregon Revised Statutes (“ORS”) 537.545.[2] Some of the statutorily exempt uses for which groundwater may be used, as outlined in ORS 537.545, include stockwatering purposes, watering a one-half acre lawn or noncommercial garden, single or group domestic purposes not exceeding 15,000 gallons per day, or a commercial purpose in an amount not exceeding 5,000 gallons a day.

The SWMPA designation applies to the areas shown on the map accompanying the revised Oregon Administrative Rules (“OAR”).[3] Any already existing groundwater well that is drilled into the basalt and develops groundwater from the Columbia River Basalt Group will be required to install a totalizing flow meter on their well by January 1, 2019.[4] The totalizing flow meter measures and displays both the instantaneous flow rate of groundwater produced from the well and the total volume of groundwater produced from the well. The water right holder, well owner, or well operator will also be required to keep a complete record of the volume of water appropriated each month and submit an annual report of those water use measurements to OWRD.

OWRD implemented the new rules because it has tracked that groundwater levels have dropped by up to four feet per year in the deeper basalt aquifer and by about 100 feet over the past 80 years in the deeper basalt aquifer. The stated policy behind the new rules is to attempt to prevent the declining groundwater levels from growing worse and to ensure enough water is available for senior water use right holders. While some drillers and water users have concerns that OWRD did not consider the possibility that additional water is available in deeper basalt levels, some water use right holders have stated they are glad OWRD is taking steps to protect the resource.[5]

An additional concern was that the Walla Walla Subbasin spans the border between Oregon and Washington and that any action taken by Oregon water users to preserve the resource could be undermined by Washington; however, the two states advise that they have been working together to ensure neither state’s water usage undermines the water savings of the other state. OWRD also plans to work with the local community in the Milton-Freewater area to implement a voluntary, long-term water plan.

This is the first SWMPA established in Oregon.

[1] Or. Admin. R. 690-507-0030.

[2] Or. Admin. R. 690-507-0030(3).

[3] Or. Admin. R. 690-507-0030, Exhibit Map 507-1, available at http://www.oregon.gov/owrd/LAW/docs/law/690_507_Exhibitmaps_2017_May_22.pdf.

[4] Or. Admin. R. 690-5070-0030(4).

[5] Mateusz Perkowski, New Agricultural Wells Prohibited in Oregon’s Walla Walla Subbasin, East Oregonian (May 18, 2017) http://www.eastoregonian.com/eo/local-news/20170518/new-agricultural-wells-prohibited-in-oregons-walla-walla-subbasin

Law Clerk Jakob Wiley will be presenting on unitization approaches to aquifer governance at the next Groundwater Advisory Committee (“GWAC”) meeting held June 30, 2017. He will be presenting his research on voluntary aquifer governance agreements, focusing on aquifer governance rather than groundwater management. The approach is the topic of his graduate thesis as part of his master’s degree, as well as his portion of an upcoming book co-authored with Dr. Todd Jarvis titled Collective Aquifer Governance: Dispute Prevention for Groundwater and Aquifers through Unitization, currently being prepared for the Cambridge University Press.

Jakob’s presentation will show how groundwater governance has “missed the aquifer for the wells,” focusing attention on groundwater levels and failing to incorporate other aquifer resources, such as storage potential, heat exchange, water quality, or future aquifer uses like carbon sequestration. With some aquifers, the focus may lead to damage to the reservoir (See https://ngwa.confex.com/ngwa/renew08/techprogram/P5225.HTM).

Unitization techniques look at the aquifer as a whole, encourage subsurface exploration, and may create “aquifer communities” that create a regional identity with the aquifer. (See https://www.scribd.com/document/112436071/Jarvis-W-Todd-In-search-of-a-New-Identity-Good-Water-Neighbors). Contract approaches to groundwater governance have been seen internationally, but have yet to be clearly seen in the United States relating to groundwater. (Contract-based approaches are common in other natural resource areas, like the recent Candidate Conservation Agreement with Assurances for the sage grouse, see http://www.conservationhabitat.org/local-resources/Harney-County-Sage-Grouse-CCAA/36004/). Jakob will bring these examples to the GWAC meeting and present the approach as a possible addition to Oregon’s groundwater governance toolbox.

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

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

Schroeder Law Offices plays some serious water games, and so should you! Serious gaming is an emerging tool in negotiation, mediation, and water conflict. Serious water gaming acts is a way to share knowledge, interact in an engaging way, and build capacity to solve the real problems in water resources. The games allow for role-playing for social learning in a less-threatening environment. Parties that might otherwise be unable to cooperate build capacity, relationships, and deescalate tensions, at least momentary. Careful reflection after the game concludes provides lessons that can be applied to the real-life problems. When we aren’t helping you with your real-life water issues, we are honing our water gaming skills.

The United States Army Corp of Engineers has started playing too! They have built a dam-based game resembling the way the agency balances water needs for agriculture, flood control, habitat, water quality, and hydropower. The “River Basin Balancer Game” is available for free at: http://www.nwo.usace.army.mil/Missions/Dam-and-Lake-Projects/Missouri-River-Dams/Basin-Balancer/

The United Nations plays “Aqua Republica.” This game simulates the demands placed on water managers, balancing food, energy, and wildlife. The game includes social revolts, population increases, and economic impacts. There are multiple versions available representing different regions. Choices of crops, environmental policies, and irrigation technology all influence the player’s success. To begin playing for free, follow this link to the registration menu: http://capnet.aquarepublica.com/register

For those that enjoy board games, the California Water Crisis Game pits the three regions of California against each other in a competition for water, but also reputation! Different stages of water law are represented, including the Gold Rush era and today’s Sustainable Groundwater Management Act. (See our blog post on the Act here: https://www.water-law.com/california-will-have-regulations-on-groundwater-pumping/) More information is available here: http://www.californiarailmap.com/cawater

Schroeder Law Offices will be developing its own game to show the kinds of legal problems you could encounter with your water issues! For more information and games, see Dr. Todd Jarvis’s blog at http://rainbowwatercoalition.blogspot.com/2016/04/serious-gaming-in-water.html and the upcoming paper titled “Serious Water Gaming” by Shelby Hockaday, Todd Jarvis, and Fatima Taha.

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

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

The Oregon Task Force on Drought Emergency Response met throughout 2016 to propose statewide recommendations to address current and future water shortages throughout the State. One of the task force’s recommendations has been embodied in House Bill 3051,[1] which has garnered support from Democrats and Republicans alike.

H.B. 3051 will help pay for the installation, repair, and replacement of measuring devices on authorized diversions and points of appropriation to measure groundwater use. The bill authorizes the use of the Water Measurement Cost Share Program Revolving Fund, which has been available since 2000 to incentivize surface water users to measure their water use, to now fund the installation or replacement of groundwater measuring devices.

This is a voluntary system that allows the Oregon Water Resources Department (“OWRD”) to work with landowners to install measuring devices at their points of appropriation or points of diversion. Additionally, the fund can pay up to seventy-five percent of the cost of installing the measuring device.

The widespread support for this bill stems from a desire to protect priority of water rights through improving the amount of information about groundwater use available to OWRD. OWRD uses this type of groundwater use data to better understand the availability of water in a basin, to determine how much water is available for withdrawal, and to better manage any interference between junior and senior groundwater users.

H.B. 3051 passed out of the Oregon House of Representatives on April 3, 2017 and has been referred to the Senate Environment and Natural Resources Committee.

[1] https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/HB3051 

The upcoming 2017 Nevada Legislative Session includes proposed water law changes that could affect water rights users across the state. The 79th legislative session, which starts on February 6, 2017 and ends on June 5, 2017, contains a number of proposed water law changes. It appears there will be four senate bills submitted by the Nevada State Engineer and Nevada Division of Water Resources during the session, as well as five bills from the Nevada Legislative Committee to Study water, and five bills from individual legislators and committees.

The four senate bills to be introduced to the 2017 legislative session that include potential changes to water law in Nevada are as follows: Senate Bill 47 (SB47) proposes various changes to the appropriation of water; Senate Bill 51 (SB51) proposes various changes to the adjudication of vested water rights; and Senate Bills 73 and 74 (SB73 and SB74) propose the revision of various provisions relating to water rights and use in the State of Nevada. Any pre-filed bills, which include the senate bills listed above, are available for public viewing on the Nevada Legislature’s website at https://www.leg.state.nv.us/Session/79th2017/Reports/Prefiled.cfm. By clicking on the link for the proposed bill, users can view the full bill text as introduced to the Senate as well as the bill’s history of hearings or votes as the session moves along. These bills are also referred to the Senate Natural Resources Committee for review.

While proposed bills could bring changes to water law at a statewide level in Nevada, county officials and other local groups are also working to develop local water management plans. The Nevada Farm Bureau, for example, has a collected a group of interested volunteers to participate in a Water Discussion group for water management plans specific to volunteers’ areas around the state. The Bureau also continues to encourage interested parties to contact them for more information regarding such discussion. According to the Pahrump Valley Times, officials in Nye County have conducted studies on a number of wells in the Pahrump Valley that have the potential to go dry. Further, studies are ongoing in the Humboldt River Basin and being conducted by USGS and DRI. It appears scientists are looking to understand the groundwater system better.

Studies such as those being conducted in Nye County will likely continue across the state in preparation for recommendations on approval or denial of the proposed water law changes in Nevada’s 79th Legislative Session in 2017. Counties and hydrographic basins may have different needs based on appropriation and water sources available. The interested public can keep current with session information and the drafting and approval of bills as the session persists at the legislature’s website: https://www.leg.state.nv.us/Session/. County and city papers also continue to publish information regarding more local sessions.

In a move he hopes will ease the most arduous administrative burden faced by the Idaho Department of Water Resources, Director Gary Spackman has created the state’s largest groundwater management area, encompassing the Eastern Snake River Plain Aquifer (ESPA) region.

Hoping “to stop the drop” of the aquifer level, which has experienced an annual rate of decline estimated at 200,000 acre feet, Spackman signed the order designating Idaho’s 12^th GWMA. He announced the action to the Idaho Water Users Association on November 3.

His intent, Spackman said, was to bring all of the region’s water users “into the fold” with efforts to restore the aquifer. Although this was partly accomplished by the 2015 settlement agreement between ground water and surface water groups within the conjunctively managed ESPA region, users who were not members of a ground water district did not have an opportunity to take part.

“This is a tool to manage the aquifer so everyone is participating,” said Spackman, noting that the eventual management plan for the GWMA will work in cooperation with the settlement agreement. He offered no timeline for the development of the management plan, but it is expected to take at least two years.

The ESPA region GWMA extends from the upper eastern corner of the state, near Saint Anthony, to Thousand Springs near Hagerman where the ESPA discharges into the Snake River. Existing GWMAs and critical groundwater management areas — four of which located near Oakley — have been excluded from the ESPA region GWMA.

Additional information can be found on the IDWR website at http://www.idwr.idaho.gov/water-rights/ground-water-management-areas/designated.html

The International Commission on Irrigation and Draining (ICID) hosted the World Irrigation Forum (WIF) in Chiang Mai, Thailand. The 2016 conference serves as the second annual forum.

The intent of the World Irrigation Forum is to bring together all stakeholders in order to provide a platform for the world irrigation community to work to find solutions to the problems the irrigation community faces. Some of the stakeholders involved include policy makers, experts, research institutions, non-governmental organizations, and farms. The most prevalent issues the forum addresses are the depleting freshwater resources due to global warming and climate change as well as the idea of population growth in relation to food security. Through the forum, the ICID hopes to gain sustainable solution to water management for agriculture.

The World Irrigation Forum’s theme for 2016 was “Water Management in a Changing World: Role of Irrigation in Sustainable Food Production.” Under the main theme were three different sub-themes: (i) Key actors in balancing water, food, energy, and ecology, (ii) Management of climatic extremes with focus on floods and droughts, and (iii) Key and smart actions to alleviate hunger and poverty through irrigation and drainage.

The process of being selected to present at this event is a lengthy grueling process which includes multiple drafting and reviewing sessions. The abstracts and papers are viewed by a highly qualified committee which determine the selected papers for presentation. Laura and Therese both had the honor of participating in the Forum! Laura Schroeder was able to lead a presentation titled “Innovative Partnerships v. the Tragedy of the Commons” while Therese Ure was able to present a poster on “Securing Water Available for Irrigation in Times of Drought Must Move beyond Traditional Above Ground Storage Reservoirs.”

The Montana Supreme Court recently issued its decision in the long fraught dispute about exempt groundwater wells. The ruling by the Montana Supreme Court in The Clark Fork Coalition v. Tubbs, will protect the rights of senior water users from exempt groundwater wells that often deplete the amount of available surface water.[1]

The Montana Water Use Act exempts certain groundwater appropriations from the state’s permitting process if the groundwater appropriation pumps below a certain threshold and is applied to a limited area. This type of exemption is common in water use acts in other states, including Oregon and Nevada. However, Montana’s Water Use Act has an exception to the exemption, which requires a permit for any “combined appropriation” from the same source by multiple wells that exceeds 10 acre-feet per year.[2]

In 1993 the Montana Department of Natural Resources and Conservation (“DNRC”) amended its 1987 administrative rule, interpreting the term “combined appropriation” within the Water Use Act’s exception to the exemption. The DNRC’s 1993 rule (the rule in effect through the deciding of this case) stated “combined appropriation” means “groundwater developments, that are physically manifold into the same system.”[3] In application, this rule allowed groundwater wells to be drilled and as long as the appropriator did not connect the wells, even though the wells drew water from the same source, the appropriator could avoid obtaining permits for the wells and could end up appropriating a limitless amount of water from the same source.

The Montana Supreme Court determined the DNRC’s rule interpreting the term “combined appropriation” in the Montana Water Use Act improperly allowed these infinite withdrawals from the same source. The Montana Supreme Court recognized that the purpose of the Montana Water Use Act is to protect senior water right users from appropriation by junior water right users when there is not enough water physically available. Therefore, the Montana Supreme Court invalidated the 1993 rule and determined the DNRC must issue a new rule reflecting the need to recognize the effect that multiple wells drawing from the same source have on other water appropriators.

Many states, like Montana, have exemptions that allow groundwater wells to be drilled for specific purposes without going through any sort of permitting process to determine if the well will have an effect on water availability in the region. Additionally, many states, Nevada being one, continue to manage groundwater and surface water as two separate systems, rather than through conjunctive management. The failure to recognize the interconnectedness of groundwater and surface water and the cumulative effect of exempt wells on water availability in a region leads to over appropriation and fails to protect senior appropriators.

Conjunctive management is continuing to gain more traction; however, there is still much discussion about how states can implement this new management approach. Schroeder Law Offices Shareholder Therese Ure will be adding her voice to the conversation at the International Commission on Irrigation and Drainage’s World Irrigation Forum in Thailand, November 6th – 12th. Attorney Ure’s paper that was accepted for the Forum discusses Nevada’s failure to conjunctively manage its groundwater and surface water systems, including the effects of mine dewatering in such a disjunctive system and suggestions for creating a “dynamic” system of water management.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news about the upcoming World Irrigation Forum!

[1] The Clark Fork Coalition v. Tubbs, 2016 MT 229 (Mont. 2016).

[2] Mont. Code Ann. 85-2-306(3)(a)(iii).

[3] Admin R. M. 36.12.101(13) (1993).

With the recent discoveries of lead in Portland Public Schools drinking water and the September 15^th discovery at the University of Oregon, it becomes a reminder for us all to ensure that our groundwater supply is providing healthy and safe drinking water.

According to the Oregon Health Authority, 90 percent of the population of the state draws all or part of their water supply from groundwater, which amounts to about one billion gallons of groundwater every day. Approximately 23 percent of Oregonians use domestic or private wells as their main source of water. For these well owners it is especially important to watch out for common types of contamination that might affect their water supply. These types of contamination include:

1. Improper storage or disposal of hazardous substances
2. Improper use of fertilizers, animal manures, herbicides, insecticides, and pesticides
3. Chemical spills
4. Improperly built and/or maintained septic systems
5. Improperly abandoned wells (these include water wells, groundwater monitoring wells, and wells used in cleaning contaminated groundwater)
6. Poorly sited or constructed water wells

The Portland Water Bureau is currently working to finish a study looking at the issues of lead in Portland’s drinking water, but major changes won’t be possible until 2022. Private well owners can begin taking steps to protect their groundwater today by being more mindful of how they care for their wells and dispose of hazardous materials.

More information on how to keep your well clean and safe can be found by visiting the National Groundwater Association website.

Sources Consulted:

http://www.opb.org/news/series/lead/portland-corrosive-water-study-epa-timeline/

http://www.ngwa.org/Events-Education/groundwater-day/Pages/default.aspx

http://hosted.ap.org/dynamic/stories/O/OR_UO_LEAD_OROL-?SITE=ORLAG&SECTION=STATE&TEMPLATE=DEFAULT

http://www.ngwa.org/Events-Education/groundwater-day/Pages/default.aspx

Below, please see the ground water management public meeting schedule posted by the Idaho Department of Water Resources.

Additional Information for Idaho Ground Water Management:

IDWR’s website with the ESPA GWMA information:
http://www.idwr.idaho.gov/water-rights/GWMA/proposed.html

Director’s letter regarding ESPA GWMA:
http://www.idwr.idaho.gov/files/ground_water_mgmt/20160707-Letter-to-Waters-Users-from-Gary-Spackman-Re-Proposed-ESPA-GWMA.pdf

Map of Proposal:
http://www.idwr.idaho.gov/files/ground_water_mgmt/espa-gwma-boundary-map.pdf