The Idaho Senate introduced ten water related bills this legislative session in addition to the twelve the House introduced.  Like many of the House bills, some of the water related Senate bills already passed both houses.  Others are in various stages of committee or legislative review.  The Senate bills considered this legislative session are briefly described below.

Senate Bill 1005

Senate Bill 1005 amends existing law to authorize water districts to charge fees to certain water delivery organizations and water users.  This bill clarifies that when water is diverted and assessed in one water district but is conveyed and diverted within a second water district, the second district may level a fee instead of an assessment for the water that is rediverted.  Further, authorized fees that are levied are not considered an assessment and are not part of a water user’s voting credentials for voting within the second water district.

Senate Bill 1005 passed both the Senate and the House.

Senate Bill 1020

Senate Bill 1020 amends existing law regarding the limitation of liability of landowners towards persons entering land for recreational purposes.  The bill amends Idaho Code 36-1604 expanding the definition of land to include water facilities, parks, and campgrounds.  The bill also clarifies the property interest held by an “owner” and that recreational activities include traveling across the land owned by others for the purpose of recreating.

Senate Bill 1020 passed both the Senate and the House.

Senate Bill 1072

Senate Bill 1072 amends existing law regarding filling vacancies in irrigation districts.  The purpose of this bill is to align Idaho Code 43-209 with Idaho Code 43-201(3).  Under Idaho law, irrigation districts are divided into a minimum of three divisions, from which board directors are elected to represent water users.  Idaho Code 43-209 provides the process for filing irrigation district board vacancies, but limits the eligible candidates to living within their respective irrigation district division.  This amendment would allow irrigation districts that approved the expanded board member residency rule under Idaho Code 43-201(3) to fill vacancies under the same conditions therein.

Senate Bill 1072 passed both the Senate and the House.

Senate Bill 1073

Senate Bill 1073 clarifies that the statutory protection of water delivery facilities from claims of adverse possession extends to properties owned by water delivery entities.

Senate Bill 1073 passed both the Senate and the House.

Senate Bill 1079

Senate Bill 1079 establishes a fund for the annual appropriation of state general funds to support and fund nonpoint source agricultural best management practice projects in Idaho.  This appropriation was initially contemplated in the 2017 legislative session and intended to supplement DEQ’s federal nonpoint source program grant.  DEQ identified complications with appropriating, allocating, and disbursing these funds all within the same fiscal year.  The nature of these projects, spanning multiple years or season, and the short time frame in which DEQ has from appropriation to end of spending makes it difficult for recipients of this funding to get the work completed and invoices submitted for reimbursement before the end of the fiscal year in which money was appropriated. Under this legislation, DEQ requests a specific fund be set up for project funds that would allow a longer time frame for the project proponents and awardees to plan and complete projects that benefit Idaho’s waterways.

Senate Bill 1079a passed the Senate on February 25^th and is in its third reading in the House.

Sente Bill 1121

Senate Bill 1121 is a supplemental appropriation bill for the Department of Water Resources.  It requests funds from the General Fund for the Water Management Fund.  Funding would be used for costs related to the Anderson Ranch Reservoir Enlargement Project, the water supply for the Mountain Home Airforce Base, and aquifer recharge projects in the Upper Snake River Valley.

Senate Bill 1121 passed both the Senate and the House and is currently before the Governor for signature.

Senate Bill 1188

Senate Bill 1188 is an original appropriation bill for the DEQ.  Some of the funding will apply to the Lake Coeur d’Alene study, the Water Quality Program, the Agricultural Best Management Practice Fund, and the Water Pollution Control Fund.

Senate Bill 1188 is currently before the Joint Finance-Appropriations Committee.

Senate Bill 1190

Senate Bill 1190 is an original appropriation bill for the Department of Water Resources.  The funding will be used in part for the Bear River Adjudication, the Flood Management Program, and for Water Quality Monitoring.

Senate Bill 1190 is currently before the Joint Finance-Appropriations Committee.

Senate Concurrent Resolution 104

Senate Concurrent Resolution 104 states the Legislature’s findings and supports changes in the winter flood control curves of the Ririe Reservoir project to more properly balance Ririe River water supply and irrigation supplies with adequate flood control.

The Senate unanimously adopted SCR104 on February 18^th.  It is currently in its third reading in the House.

Senate Joint Memorial 103

Senate Joint Memorial 103 states the findings of the Legislature, opposing the removal or breaching of the dams on the Columbia-Snake River System and its tributaries, and recognizing certain benefits provided by the Port of Lewiston.  In the bill, the Idaho Legislature recognizes and supports the international competitiveness, multi-modal transportation, and economic development benefits provided by the Port of Lewiston and the Columbia-Snake River System.  The bill iterates Idaho’s sovereignty over its water resources and the benefits derived from this multiuse system that provides transportation, commodities, fish and wildlife habitat, recreation, hydropower, flood control, and irrigation.

The Senate adopted SJM103 on March 9^th.  It is currently in its third reading in the House.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Don’t miss our blog on the water related House bills this session!  Additionally, each bill page linked above provides the status of the bill and the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

(Image Sources: https://idahonews.com/news/local/idaho-senate-calls-it-quits-but-house-says-not-so-fast; https://www.kmvt.com/2021/01/14/idaho-senate-starts-effort-to-wrest-power-from-gov-little/) 

In the eighth COVID-19 webinar, Laura Schroeder, Michelle Owen, and Scott Revell discussed various types of water organizations. The webinar aired originally on June 3, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!

Above all, learn the differences between public and private water organizations. For instance, the panelists will provide examples of the different types of public and private water management organizations. Further, the presentation reviews the generally applicable rules pertaining to public water agencies and regulatory oversight of private water utilities. Generally, topics will include:

• Types of Water Management Organizations
  • Residential and domestic
  • Irrigation
  • Flood control and drainage
• Comparing Public and Private Water Management
  • Formation, organization, and dissolution
• Public Water Organizations
  • Municipal, irrigation, domestic, and flood control agencies in Oregon, Nevada, and Washington
  • Applicable laws, rules, and requirements for public agencies
• Private Water Organizations
  • Corporations, ditch companies, and community water systems
  • Different agencies providing oversight of private water management organizations

Afterwards, we posted our webinars in the COVID-19 Series here, giving you “on demand” access to Schroeder Law Office’s educational events under the “social distancing” orders! Additionally, the COVID-19 Webinar series continued over several weeks covering topics, including livestock water rights on public lands. If you can’t make it, stay tuned to our blog for announcements for information about the next webinars or watch the webinars later on our website. If you have any issues with registration or viewing the webinars, please contact Scott Borison at: scott@water-law.com.

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

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

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

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

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

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

When most of us think about the changing seasons, we think about the change in weather. When we think about the transition to Summer, we think about the days getting warmer. When we think about the transition to Winter, we think about the days getting colder. There is much more to changing seasons than changes in weather.

According to Merriam-Webster, the definition of a season is “a period of the year characterized by or associated with a particular activity or phenomenon.” Examples of this definition include a period associated with activities of agriculture such as growth or harvesting, irrigation seasons, periods when animals engage in certain activities like migration, birth of offspring, and moving from high “summer” country to low “winter” country. In life, one can characterize the seasons with the circle of life with birth or renewal in the spring and death, hibernation and sleep in the winter. There are so many ways we can perceive these natural changes each year.

The National Oceanic and Atmospheric Administration points out that seasonal changes in turn affect soil moisture, evaporation rates, river flows and lake levels. The subsequent changes in vegetation also affect the amount and kinds of crops and food available for humans, animals and other organisms.

The effects of seasonal changes also present potential risks. The Federal Emergency Management Agency (“FEMA”) provides warnings of risks presented in the seasonal change to Spring. FEMA notes that while Spring typically brings warmer weather and longer days, it also brings risk associated with heavy rains, severe weather and rapid snowmelt that can lead to flooding and/or damage to levees and dams. For more information concerning risks and protection from spring flooding, please visit FEMA’s “What You Should Know” at https://www.ready.gov/sites/default/files/Spring_Flood_Fact_Sheet.pdf.

So, as the seasons change and we swap out our wardrobe for the changing temperature, lets remember a change in season is so much more than just a change in weather.

The U.S. Society for Irrigation and Drainage Professionals (USCID) will be holding their 12^th International Conference on Irrigation and Drainage in Reno, NV on November 5-8, 2018 and we are excited to announce that Therese Ure has been selected as Conference Co-Chair. The conference theme this year is Basin Water Management – Challenges in Water Management at the Basin Scale. Under this theme the specific topics that will be presented on include:

• Basin Water Management/Governance/Jurisdictional Issues
• Competing Urban, Industrial, Agricultural and Environmental Water Uses
• Environment
• Basin Water Planning
• Water Supply and Demand Management
• Water Transfers
• Conjunctive Use of Groundwater and Surface Water
• Technologies

The conference planning committee is currently accepting abstracts for proposed papers that are specifically related the conference topics listed above. If you are interested in submitting your abstract the deadline is March 15, 2019. For additional information regarding the call for papers please see the call for papers announcement or visit the USCID.

For other relevant dates, please find the conference schedule listed below:

• Abstracts Due  —        March 15, 2019
• Notify Authors —        April 1, 2019
• Draft Papers Due —    June 3, 2019
• Comments to Authors  — July 22, 2019
• Final Papers Due —     August 30, 2019
• Conference — November 5-8, 2019

We hope you have the opportunity to attend this highly educational event!

New Associate Attorney Jakob Wiley successfully completed his defense of Collective Aquifer Governance: It’s the Water and a “Hole” Lot More! on September 17, 2018, completing his Masters of Science in Water Resources Policy and Management. Jakob completed the Concurrent J.D./M.S. program between Oregon State University (“OSU”) and the University of Oregon School of law, https://gradwater.oregonstate.edu/concurrent-jdms-degree-program. Jakob’s successful defense of his research paper marked the capstone of his MS studies at OSU.

The paper unravels the differences between the current paradigms in groundwater and aquifer governance, showing that the present focus on groundwater has struggled to meet the challenges of true aquifer governance. Aquifers are composed of a variety of resources, like storage spaces, thermal properties, chemical and biological contaminants, and hydraulic pressures. Jakob coins the term transresources to describe these components, inspired by transdisciplinary approaches in academia. To achieve true aquifer governance, transresources must be included in the governance strategy. Unfortunately, traditional groundwater management only attempts to address these issues through the lens of groundwater regulation.

To provide a guide, Jakob’s paper compares aquifer governance with unitization agreements used in the oil and gas industry. These agreements were developed to counter the inefficient, competitive, and costly over-drilling of wells in the early years of hydrocarbon development. Unitization agreements are fundamentally a contract between reservoir owners. Unitization agreements convert the right to pump into shares of the resources present in the reservoir. By pooling the rights to withdraw oil and gas into a “unit”, a more equitable, efficient, and voluntary governance system is created, while also incorporating any pumping, spacing, and pressure management laws.

Jakob’s research translates this agreement approach into a system of aquifer governance. The theoretical approach would create an agreement among aquifer users, allowing them to contractually change the incentives and use patterns of the aquifer. For example, conversion from flood to sprinkler irrigation can improve “efficiency” but also dramatically reduce artificial recharge of the aquifer. A “collective aquifer governance agreement” – Jakob’s translation of a unitization agreement – could be used to incentivize groundwater users to adopt efficient sprinklers while incentivizing beneficial activities, like incidental aquifer recharge from flood irrigation, improving the overall sustainability of the aquifer system.

The key feature of a collective aquifer governance agreement is the design of shares. By allocating shares to each transresource, the system of water allocation can reflect the scientific and physical effects of groundwater and aquifer resource use (like geothermal energy production, storage, subsidence, in situ bioremediation, ect). Directly connecting rights with physical effects of aquifer use can internalize any negative externalities of aquifer use, when properly designed, and could support a conjunctive surface and ground-water (or any other transresource) market.

Jakob’s work on this topic will continue as he works with Dr. Todd Jarvis of OSU on an upcoming book expanding the theory and providing guidance for the next stage in groundwater management: collective aquifer governance, showing oil and water really do mix!

Jakob’s complete research paper is publicly available at the following link: http://ir.library.oregonstate.edu/concern/graduate_projects/pn89dd30b

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

Water use conditions in the Klamath Basin continue to worsen in 2018. On March 8, 2018, a water “call” was made in the Klamath Basin, and the Oregon Water Resources Department (“OWRD”) began the validation process for shutting off junior water users. Within the week, on March 13^th, Governor Kate Brown declared a drought in Klamath County, Oregon, the first drought declaration since 2015, coming much sooner than hoped or predicted.

In April, OWRD began regulating off water users in the Klamath Basin. On April 13, the Oregon Water Resources Commission approved temporary emergency rules granting a preference to water rights for human consumption and stock watering in Klamath County. The rules allow certain water users with water rights for human consumption and stock watering to continue using surface water for such uses despite OWRD’s regulation off of water use rights. Exempt uses of groundwater, including domestic and stock uses, may also continue despite OWRD’s regulation. The Commission passed similar temporary rules granting the same preferences during the last drought period.

Also in April, Klamath Project water users found themselves unable to begin irrigating due to a federal court injunction. The Hoopa Valley and Yurok Tribes in northern California previously brought suit against the Bureau of Reclamation and National Marine Fisheries Service in federal court, alleging mismanagement of the Klamath River below the four major dams lead to an outbreak of C. shasta, a parasite that infects juvenile Coho salmon. The court entered an injunction requiring 50,000 acre feet of water stored in Upper Klamath Lake to flush and dilute the parasite until most of the salmon have migrated to the ocean, usually occurring after the beginning of June. Irrigators and irrigation districts petitioned the court to lift the injunction, but the court declined to do so in 2018. For more information, see May 1 article from the Capital Press, Judge upholds Klamath River Injunction.

In May, the Klamath Irrigation District brought suit against OWRD, seeking to compel the agency to take exclusive charge of Upper Klamath Lake to distribute water according to the district’s water use rights determined by the agency in the Klamath Basin Adjudication. The district alleges that it disagrees with the Bureau of Reclamation and PacifiCorps as to the proper distribution of water, and those entities are releasing without valid water use rights, causing injury to the district and its patrons. 

Also in May, the Klamath Tribes filed suit in federal court in northern California against the Bureau of Reclamation, US Fish & Wildlife Service, and National Marine Fisheries Service, alleging violations of the Endangered Species Act and National Environmental Protection Act by failing to maintain appropriate elevations in Upper Klamath Lake. The Tribes seek declaration of the alleged violations, an injunction against further jeopardy and habitat modification, and for the agencies to reinitiate consultation resulting in a new biological opinion.

Finally, on April 27, 2018, the Klamath County Circuit Court issued a Case Management Order in the Klamath Adjudication, outlining a schedule for hearing the first substantive exceptions filed with the court since the judicial phase of the adjudication began in 2013. First the court will decide exceptions made against federally reserved water claims, excluding Tribal claims. Next, the court will decide exceptions against Walton and Klamath Termination Act claims. Third, the court will decide exceptions to Tribal claims. Numerous exceptions have been filed with the court, alleging OWRD awarded too much water to these claims, ignoring the pertinent legal standards for deciding these claims, to the detriment of other Klamath Basin water users. A decision on the first group of exceptions is not anticipated until 2019.

The Upper Klamath Basin Comprehensive Agreement was terminated on December 28, 2017. The agreement called for retirement of irrigation rights to increase stream flows into Upper Klamath Lake by 30,000 acre feet per year. This “retirement” (or cancellation) of water use rights, which was negotiated largely in the absence of upper basin irrigators, was viewed unfavorably by many of the affected irrigators, and was ultimately not funded by Congress. Discussions about alternative agreements continue to this date.

Overall, the return of drought conditions, coupled with fish disease and five years of merely procedural rulings in the Klamath Basin Adjudication, have left water users in the Klamath Basin in serious trouble.

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

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

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

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

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

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

On April 6, 2016, amendments to the Klamath Hydroelectric Settlement Agreement (KHSA) and the new Klamath Power and Facilities Agreement (KPFA) were signed at a ceremony at the mouth of the Klamath River on the Yurok Indian Reservation. These changes come in the wake of the Congress’s decision not to pass legislation for the Klamath Basin Restoration Agreement (KBRA). Negotiations between the signatories of the new agreements in the Klamath Basin were kept secret, the results of their discussions can be seen in these new agreements, available at: https://www.oregon.gov/owrd/Pages/adj/index.aspx.

The amended KHSA’s purpose is to establish a process for removal of Iron Gate, Copco 1, Copco 2 and J.C. Boyle dams under the Federal Energy Regulatory Commissions relicensing procedures. The decision to remove the dams was made based on a cost-benefit analysis that was not released to the public. The amended agreement will also shield PacificCorp and its customers from liability for damages associated with dam removal. The amended agreement transfers the ownership of the dams to the Klamath River Renewal Corporation. The new corporation will conduct the dam removal, while PacificCorp will operate the dams until their decommissioning. The dams are expected to be removed in 2020. The U.S. Department of the Interior, the U.S. Department of Commerce, California and Oregon States, and PacificCorp were parties to the agreement.

The KPFA is an agreement designed to mitigate economic and regulatory issues facing users of water and land in the Klamath Basin. Oregon and California States, the Klamath Water Users Association, public interest groups (including American Rivers, Trout Unlimited, and Sustainable Northwest), the U.S. Department of the Interior, and the National Marine Fisheries Service were parties to the agreement. The KPFA stipulates that the signing parties must meet and confer when there is an unforeseen circumstance related to the fishery restoration and regulatory impacts on the local economy. It also obligates the U.S. Bureau of Reclamation (“BOR”), upon transfer of the operation of Link River and Keno Dams, to operate the dams without adding any associated costs to water users for the maintenance of infrastructure. The BOR will operate those dams consistent with existing contracts for irrigation and flood control, and attempt to prevent salmon from entering irrigation canals and ditches. Funding for projects preventing salmon entry into irrigation infrastructure will come from a variety of sources, including irrigation districts, federal, state, and private parties. The agreement also requires the signing parties to support and defend the KHSA, refrain from making statements in opposition to the KHSA, and support the KHSA in administrative and judicial forums. Notably, representatives of the local landowners that will be affected were not included in negotiations, and are not signatories to the agreement.

In short, after many years of receiving a clear message from Congress that it was not going to fund the KBRA’s dam removal plan, the proponents are moving forward without Congress’s approval, or the approval of the local residents that will be most affected. Rather than retrofit the dams to allow fish passage and other updates, the negotiating parties are removing the dams. Along with the dams, the negotiating parties are doing away with inexpensive power, jobs, and water storage for increased reliability within the basin, in a proverbial “flushing the baby with the bathwater” situation. It remains to be seen how severe the impacts from dam removal will be on top of the other stresses that the Klamath Basin has suffered since the administrative phase of the Klamath Basin Adjudication was completed, and since the region has suffered from severe drought for several years.

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.

On March 11, 2016, Schroeder Law Offices sponsored and participated in the celebration of the finalization of the title transfer process of the Rye Patch Dan and Reservoir from the United State Bureau of Reclamation (BOR) to Pershing County Water Conservation District (PCWCD). This title transfer process has taken 20+ years to substantially complete. The Pershing County Community Center provided the celebration venue on the evening of Friday, March 11, 2016. Those in attendance included the PCWCD Board of Directors, District constituents, community members, individuals involved in the process from the Bureau of Reclamation and Bureau of Land Management as well as Congressmen, Senators, and Assemblymen from the State of Nevada. The award ceremony included a brief history of the process and speeches from individuals involved in the title transfer process with plaques given to those who have been directly involved and influential in the process. The ceremony was followed by a BBQ tri-tip dinner sponsored by PCWCD, Schroeder Law Offices, Bullen Law, LLC, and Stix Livestock. For more information and specifics on the title transfer please see the news release published by Schroeder Law Offices, P.C. on February 5, 2016 announcing the completion of the transfer. . The Irrigation Leader magazine has also published an article on the Humboldt Project title transfer. The article “Seeing a Strong Conviction Through: The Humboldt Project Title Transfer” is based on an interview with Distract Manger Hodges.

Spring is approaching on the West Coast and we all know what this means: watering season!  Time to check your sprinkler systems for leaks, read and record meters, and make sure your system is ready for spring irrigation.

Though forecasts were set for an “El Niño” winter on the West Coast, projections from the March Nevada Water Supply Outlook Report, issued yearly by the Natural Resources Conservation Service, suggest that the 2016 water year is not yet the end of Nevada’s drought.  Currently, (as of March 1, 2016) the Bridgeport Reservoir on the East Walker River is at 24.4 percent full, while the Topaz Reservoir on the West Walker River is at about 28.6 percent full.  Despite the two reservoirs having about twice as much water as they did at this time last year, streamflow numbers as of April 1 will calculate the upcoming curtailment order on groundwater rights issued by the Nevada State Engineer’s Office.

After several years of drought, the influx of melting snow pack will provide some relief for Nevada residents, but mindfulness is going to be key.  In Pershing County, the newly improved Rye Patch Reservoir is set to provide water to Lovelock Valley farmers but the county’s water conservation district manager recommends the 2016 irrigation season be postponed.  After consecutive years of drought, the dry ground in irrigation ditches and canals will absorb much of the water initially released from the reservoir, until at least another 10-12,000 acre-feet of water are available for use.

Ranchers in Northern Nevada are facing designations proposed by state water officials last week that order groundwater well metering, meaning more monitoring, regulation, and study of the Humboldt River Basin’s limited resources.  As orders such as these become more common, residents can do their part by monitoring individual irrigation systems and meters.

Schroeder Law Offices, P.C. is pleased to present the Oregon Irrigation District Election Manual.

This manual provides an overview of the Irrigation District election process, and presents timelines and special considerations involved in regular and special elections.

This manual includes the topics of:

• Elector Voting Rights
• Director Qualifications
• Director Nominations
• Voting by Mail
• Pre-election Procedures
• Election Day Responsibilities
• Post-election Vote Counting and Election Certification

Our office has assisted special districts including Irrigation Districts, Water Control Districts, and others in their elections preparations and procedures, and we welcome the opportunity to discuss a special district’s elections with staff and board members needing assistance. The information in this manual should only be relied upon after consulting with an attorney to discuss a special district’s particular situation.

TCID’s Policy Committee will meet on Monday, September 8, 2008 at the TCID office (2666 Harrigan Road, Fallon NV) to review their policy and  decide on a  “Possible Increase in ‘In Lieu’ Charges for the Retiring of Water Rights.” Your attendance is encouraged.
The In Lieu charges are those one-time payments that TCID Policy provides it should receive when a land owner retires his water rights through AB380 program, through individual settlement of the Tribe’s Petition acres, or through any other retirement.  For example, if a person entered into an individual settlement of his water rights wherein a portion of his water rights were retired (meaning the  water rights are no longer available for diversion from the source by TCID to the landowner), that individual is required to pay TCID.

TCID’s policy states  that “in lieu” payments help them offset “the proportionate share of tolls, charges, fees, assessments, and tax levies that such water rights would have paid in the future.” (See TCID Management Policies dated September 7, 2000). The “in lieu” payment policy was created out of the AB 380 program wherein TCID would receive the “in lieu” payment from federal funds upon the successful retirement of water rights challenged by the Tribe through the AB380 program.  There is no more money in the AB 380 program.

TCID also remains whole on the backs of its patrons.  Despite the fact that TCID patrons paid TCID assessments for challenged acres while not receiving a water allocation, TCID patrons now retiring these same non-allocated water rights are required to pay the “in lieu” fee to TCID.  Pursuant to TCID policy, TCID patrons are to pay  $1200 per water righted acre that is retired in order for TCID to remove the retired acres from the assessment roles.

While there is little question that TCID has authority to charge an Operation and Maintenance (O&M) fee for each assessed acres to which TCID provides water delivery services through an allocation, the question is whether TCID has authority to charge O&M for water righted acres to which it does not deliver an allocation?  In addition, there is a question as to the authority of OCAP and TCID acting under OCAP to deny water allocations since this effectively cancels the water rights?  Cancellation is a function of state law and requires that the landowner be afforded due process before the loss of his property interest.

TCID’s role is to deliver water to water right holders in the Newlands Project.  TCID is governed by the Alpine and Orr Ditch Decrees as well as the Bureau of Reclamation under OCAP or the Operating Criteria and Procedures for the Newlands Reclamation Project, Nevada (found at 43 C.F.R. 418 et seq).  No where in OCAP or the Decrees does it say that TCID is the owner of the water rights, or that TCID can charge  landowners when it does not delivery water to existing water righted acreage.  In fact, OCAP at Sec. 418.26 states that TCID should give consideration to adopting a financing and accounting system that provides reasonable financial incentives for the economical and efficient use of water.

While it may be appropriate to “charge” a fee to remove water righted acres from the assessment roles, patrons retiring water rights that have not received an allocation under these “retired” water rights for years are owed some consideration for their many years of payments to TCID.  TCID should not be allowed to effectively condemn landowner water rights by making OCAP non-allocation orders, take money from the landowners for delivery when TCID has no intention to provide water delivery, and charge the landowner again to remove non-allocated/cancelled water rights from the assessment roles when the landowner retires them.

Retired Reclamation Commissioner John Keyes passing is sad news. I first “engaged” Reclamation with John at the helm in the Boise Regional office in 1992 when working for the Teel Irrigation District. We were dealing with issues surrounding “water spreading” then making headlines in the Umatilla Project by Water Watch of Oregon. Over the years, we kept in close touch on various Reclamation issues. Most recently, John assisted me in obtaining a position with the USAID working in Armenia. He was a southern gentleman in the best way. Kind and considerate always interested in a balance between what was best for the individual as well as the public. He told me that retirement to him meant a chance to spend more time flying.

The Federal Court made its decision on the jurisdictional question by sending the case back to Lyon County District Court last week. See http://www.kesq.com/Global/story.asp?S=8229832 for more information.

Interestingly, many farmers have still not received water that is due to them as insufficient flows continue in the Truckee-Carson Canal. Crops are being stressed and damaged.

Many meetings are taking place in Fernely and Fallon with the Bureau of Reclamation to help resolve these issues. Obviously, if enough water is not diverted from the Truckee River over to the Carson River via the Canal, the amount of water allocated to Fallon side water users in the project, as well as those in Fernley will diminish. With the “water year” already at 90% of the allocation, there may not be enough water to fulfill the allocation if Truckee water is not available.

We encourage your attendance to voice your concerns at these meetings! The next meeting is scheduled for Thursday, May 1, 2008, from 6:00 – 9:00 PM at the Lahontan Elementary School, Multi-Purpose Room,1099 Merton Drive, Fallon.

In the aftermath of the January 2008 flood after the Truckee-Carson Canal break, many lawsuits have been filed.  These suits have been filed in both state and federal courts in Nevada and present many questions as to which Court holds jurisdiction to hear these issues.  Proper jurisdiction depends on the parties to the lawsuit as well as the subject matter of the action.

Recently, an action for an injunction to stop certain amounts of water from flowing down the Truckee-Carson Canal was filed for fear that the higher water levels and amounts of water would cause additional damages to them and potentially cause another ditch break.  While this action was limited to the parties involved and served in the pending lawsuit, this caused an uproar by Newlands Project water users.  Many users have contemplated intervening in this action as the reduced amount of water going over to the project has and will directly affect project water deliveries to the users on the Canal itself, and downstream in the project.

The action for an injunction has questionable subject matter jurisdiction because it was not filed with the Decree Court that administers the water deliveries affected. How can a Court that does not have subject matter jurisdiction of the waters affected make any affective order?

The Alpine and Orr Ditch were Decreed in Federal Court and that court retains jurisdiction to administer the Decree that defines exactly how much water each user is entitled to receive and where that water is to be delivered. Thus, presumably an action to limit the amount of water delivered down the Canal should be brought in the Decree Court. The problem is that those seeking the injunction may not have standing in the Decree Court because they have no water rights issued by the Decree Court.

An interesting question still to be decided.

An historic agreement has been reached in a dispute over water in the Rio Grande Project. It has taken 29 years in a process stagnated by several lawsuits to prepare an operating agreement negotiated between the Bureau of Reclamation, Elephant Butte Irrigation District (EBID), and the El Paso County Water Improvement District No. 1. No previous operating agreement has been signed by either of these districts. Rather, they have been complying with the Bureau’s requests and procedures on a yearly basis. In working to negotiate the new operating agreement, EBID used the “Managing for Excellence” report prepared by the Bureau of Reclamation to guide settlement discussions.

The Managing for Excellence Plan was created in response to a comprehensive report regarding the Bureau’s construction and infrastructure, prepared by the National Research Council and the National Academy of Sciences. Ultimately, the principles outlined in the Managing for Excellence report helped to develop an agreement which aims to increase transparency, cost effectiveness, and efficiency while allowing irrigation districts some independence in their operation. The agreement will also allow regional issues to be addressed and will allow for carryover of conserved water to be stored in project reservoirs on a yearly basis, promoting recreation and allowing upstream storage of water. The agreement is notable not only for resolving this long standing dispute, but also for establishing an interstate agreement between New Mexico and Texas, which could be used as a model for other states.

To read the full operating agreement visit http://ebid-nm.org/static/pdf/opag/opag.pdf.
To learn more about other water issues like this visit the Family Farm Alliance at http://www.familyfarmalliance.org/ and click on the Water Review Link.