2021 Idaho legislation seeks to classify irrigation pivot corners for taxation.  House Bill 252 proposes additional language to Idaho Code, Title 63. This language would ensure county assessors classify pivot corners as agricultural land.

Pivot corners are the parts of a square parcel that a center-pivot irrigation system misses.  Idaho law considers land “farmland” and “pasture” as long as it is at least five continuous productive acres.   However, according to House Bill 252’s sponsor, Rep. Aaron von Ehlinger, some county assessors classify unproductive pivot corners as residential or commercial land.  This allows counties to collect higher taxes for that land.

The proposed bill language includes land farmers use in tandem with qualifying agricultural land as those counties should appraise, assess, and tax as land “actively devoted to agriculture.”  This includes pivot corners for center pivot-irrigated crops. The bill also covers land for storing agricultural commodities or equipment.

House Bill 252 unanimously passed the House on March 9, 2021.  It is currently in its third reading in the Senate.  You can track the progress of the bill here.

Interested in more Idaho legislation?  Check out our blogs on the water law bills currently before the Idaho House and the Senate.

(Image credit: https://www.buzzfeed.com/mjs538/100-incredible-views-out-of-airplane-windows; https://agfax.com/2019/01/31/texas-water-management-integrating-center-pivot-irrigation-control-tech/)

Will Nevada establish water conservation programs? The Nevada Division of Water Resources, Office of the State Engineer (“NDWR”) under the direction of Acting State Engineer Adam Sullivan distributed two draft bills to various lobbying entities.  One seeks to establish a water bank system while the other considers the creation of water conservation initiatives.  As of February 17, 2021, neither of the bills were pre-filed with the Nevada Legislature for the 2021 legislative session.  However, the content of the bill drafts is outlined below.

Water Banking Bill

            What its water banking?  Water banking is a system used to manage water supplies throughout the Western United States.  Water right holders can forego water use and “deposit” or transfer water into the water bank, making it available for “withdrawal” or use by another.  Water banks are often managed at the state level and vary from state to state to accommodate specific regional needs.

NDWR’s water banking bill would amend Nevada Revised Statutes, Chapter 533.  The bill would allow for banking and leasing of water rights for irrigation use.  The bill as drafted will give NDWR the authority to approve of two kinds of water banks: statutory water banks and contract water banks.  Both types of water banks manage the deposit and lease of water rights and inform NDWR of banked water uses.  The bill also includes reporting requirements for these water banks.  While the bill recognizes some differences in the requirements of the two bank types, there is concern that the definition of each bank type is unclear in the current draft.

Another critique of the bill is its failure to limit banked water usage to a specific geographic or hydrographic area.  This raises concern that a water bank could be used to transfer water to any location in the state including outside of its respective hydrographic basin.

One of the bill’s highlights is the exemption banked water rights will receive from NDWR’s “beneficial use” requirement.  Under this exemption, irrigators who are not prepared to use their water can avoid forfeiture and receive the benefit of banking unused water rights.  This will allow for temporary use by another until the original owner is ready to place the water to beneficial use.

Water Conservation Bill

A. Conserved Irrigation Water

NDWR’s proposed water conservation program seeks to “encourage and progressively promote” the conservation and efficient use of water.  The bill encourages water conservation upgrades for irrigation.  As proposed, the bill will be retroactive for water conservation projects performed in the 5 years prior to its passage as well as future conservation efforts.

Applicants for this program will submit their water conservation measure proposal describing to the state how they plan to use conserved water.  It is yet unclear if the water’s usage is limited to irrigation of additional lands, or if irrigators can add conserved water to already irrigated lands to increase the water applied in a single location.

Limitations to conservation are considered in the bill.  For example, irrigators within an irrigation district must obtain district approval.  Additionally, of the amount of water conserved, the irrigator may only retain 75% for the proposed new use.  The remaining 25% of conserved water transfers to the state.  The state will then retain all conserved water until a basin exceeds perennial yield by 10%.  At that point, the state may make any additional water available for new appropriation.  State Agencies and political subdivisions may also hold conserved irrigation water rights for instream flow.

B. Retirement of Water Rights

            The water conservation bill also proposes the creation of a state account for the purchase and retirement of water rights.  NDWR would target certain over-appropriated basins in the following order:

(1)       Basins with greater than 200% over-allocation and over-pumping for the past 5 consecutive years;

(2)        Basins with great than 150% over-allocation; and

(3)       Basins with greater than 100% over-allocation.

Under this program, water would be purchased at fair market appraised value.

Conclusion

The content, structure, and language of these bills will likely develop as NDWR receives feedback and moves through the legislative process. It is important to remember that the public has a voice in this process through lobbying groups as well as their legislators. The public can stay on top of bills, once filed with the legislature here.

Interested in more information on water related legislation?  Read our blog on AB 5, AB 6, and AB 15 for the 2021 legislative session and keep an eye out for more legislature updates at www.water-law.com/blog.

As most of us are aware, Earth Day has become a global occurrence for which communities host events throughout the week of the holiday. This year, Earth Day fell on Monday, April 22, and communities around the world hosted festivities such as community clean-ups, tree-plantings, and educational events that focused on climate literacy and bringing awareness to climate science for the purpose of encouraging individuals to participate in the preservation of our communities.

Though celebrated annually, Schroeder Law Offices’ (“SLO”) mission includes providing services to those that feed our communities and we consider environmental preservation on a day-to-day basis. SLO works daily with clients such as municipal water users and districts, corporations, and both individual and family farmers to maximize production and efficiency of water use. As we like to say, we do EVERYTHING water!

For ideas on how you can take action for making every day an Earth Day, visit the Earth Day Network’s website for ideas and to learn about “A Billion Acts of Green,” the campaign to reach 3 billion acts of green for the Earth Day holiday’s 50th anniversary in 2020.

Research indicates that planting additional trees may have huge benefits in generating rainfall, thus, consider spending time outside this spring and plant a tree with the goal of bringing freshwater to your community!

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 ongoing efforts to protect a central Washington aquifer and the economic interests jeopardized by its steady decline were the focus of the Columbia Basin Development League’s Conference and 54^th Annual Meeting, which was held November 1 at Moses Lake.

The CBDL, which identifies itself as a non-profit organization representing the interests of stakeholders of the Columbia Basin Project, the largest Bureau of Reclamation project in the United States, has staunchly advocated for full development of the Project. Initially authorized to provide irrigation for 1.1 million acres – water, diverted from the Columbia River at Grand Coulee Dam, was first delivered in 1948 – the Project currently serves approximately 700,000 acres. Irrigators on the eastern side of the Project area not served by the Project’s vast conveyance network – plans for full buildout were scuttled in the 1960s due to escalating costs – became reliant on groundwater sourced from the Odessa Aquifer.

To address the aquifer’s continual decline, which has caused numerous wells in the region – owned by municipalities as well as farmers – to fail, the state of Washington launched the Columbia River Initiative, which revived plans for expansion of the Project. In 2013, those plans took shape as the Odessa Ground Water Replacement Program.

OGWRP, intended to ease irrigation reliance on groundwater within the Odessa Subarea by switching eligible landowners over to Project surface water, is a two-step construction undertaking. The first phase, a $50 million expansion of OGWRP’s primary artery, the East Low Canal, and associated infrastructure to accommodate added capacity, is well under way. The second phase, building pumphouses and laterals to deliver water to eligible irrigators, is in the formative stages and expected to cost approximately $175 million.

After a panel discussion on OGWRP featuring a farmer/landowner, an Adams County administrator and two representatives from the East Columbia Basin Irrigation District, U.S. Rep. Dan Newhouse added his perspective in the conference’s keynote address. Newhouse lauded the progress made through the collaborative efforts of federal, state and local entities, then turned to the issue of financial support. “The state of Washington has done great job, but it’s time for the federal government to step up,” he said. “We need to make (the Columbia Basin Project) bear all the fruit it was designed to.”

Newhouse indicated the key to obtaining federal funding would be getting the Project included as a line item on the president’s budget rather than relying on receipt of an earmark through the appropriations process. With continued efforts to bring attention to OGWRP – and the potentially devastating economic and environmental consequences if it is not fully implemented – Newhouse believed that the need would be recognized.

“There’s a tremendous opportunity in the Columbia Basin for (President Trump) to put his stamp,” Newhouse said. “We’ve got a builder in the White House.”

For more information on OGWRP and the Columbia Basin Project go to https://www.cbdl.org/.

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

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

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

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

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

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

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

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

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

The debate continues on the prior appropriation system. During the 2016 Family Farm Alliance Annual Conference, the Alliance’s 2015 report on the prior appropriation doctrine raised some debate. This debate, now focusing on Nevada’s prior appropriation system, was again raised in equal vigor during the 2016 Nevada Water Resources Association annual conference. While many argue the system fundamentally works, some commenters took the stance that the prior appropriation doctrine was flawed and should be reconsidered.

One alternative suggestion presented during these discussions was to adopt the Australian Model which changes a water right to a water share, and strives to entitle these water license holders to a specific share in the available water and to take water at specific times, rates or extraction points. However a true understanding of prior appropriation provides for water use under these circumstances, with the main difference being, in a short water year, the difference class of shareholders receive different allocations. So instead of a month, day and year priority to govern who receives their water first, the Australian Model groups all users into classes of shares with perhaps 3-5 classes all together depending on the stream system. What we did not hear about was how the Australian system handles conjunctive management calls within these class-share systems.

We suspect this debate will continue throughout the western United States as climate change and the drought continue.

Co-authored by Therese A. Ure