Schroeder Law Offices is pleased to announce that Attorney/Partner Sarah Liljefelt accepted the position of Water Resources Committee Chair for the Oregon Cattlemen’s Association, beginning in the coming year. Sarah has been a member of the Oregon Cattlemen’s Association for many years, and has been very active with the Oregon CattleWomen as Vice President and Legislative Committee Chair. She is excited to use her Oregon water resources knowledge to support and defend the Oregon Cattlemen’s Association’s water interests in the years to come.

Sarah’s new position was announced earlier this week when she presented at the Oregon Cattlemen’s Association’s Mid-Year Conference in Canyonville, Oregon. Sarah provided an update on the Klamath River Basin Adjudication and conjunctive surface water/groundwater management in the Klamath Basin. Some of the other highlights from the conference included an update of Western Resources Legal Center’s recent victories by Executive Director Caroline Lobdell (Sarah is a former WRLC law clerk), and a trip to Melrose Vineyards (https://www.melrosevineyards.com/) with the Oregon Cattlewomen – beautiful location, friendly staff, and great food and wine!

            The Oregon Water Resources Department (“OWRD”) will present proposed temporary rules to the Water Resource Commission that would place a temporary hold on Upper Klamath Basin well regulation for two years, during which time OWRD would only regulate off wells within 500 feet of surface water sources in response to validated calls for water. Since the administrative phase of the Klamath Basin Adjudication concluded in 2013, groundwater users have challenged OWRD’s application of Oregon’s conjunctive management rules to wells in the Klamath Basin. The deluge of litigation has cost the OWRD millions of dollars and does not appear to have an end in sight.

            OWRD may be offering a temporary truce to groundwater users while the agency reviews and determines a “longer term approach” to water management in the Klamath Basin. The temporary rules, expected to go into effect in April, would remain in effect until March 1, 2021. The proposed rules would eliminate the rules adopted in preparation for the defunct Upper Klamath Basin Comprehensive Agreement (“UKBCA”), and replace them with deceptively simple rules for regulating calls for water. The Upper Klamath Basin has been regulated under original Division 25 and Division 9 rules since 2013, and the proposed temporary rules propose a third regulatory regime in under a decade, with a fourth to be revealed in two-years time. If no new rules are adopted by March 1, 2021, regulation would revert to the conjunctive management rules under OAR Division 9. The proposed rulemaking is available at the following link: https://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice&notice_item_id=8113.

            Under the prior appropriation doctrine, when a water user makes a call for water, OWRD’s watermasters investigate to validate the call. Junior water users may be ordered to shut off water use to allow senior water users to receive their full delivery of water. Oregon’s conjunctive management rules are designed to allow regulation of hydraulically connected surface water and groundwater as a single source of water. Oregon’s conjunctive management rules have historically been found in OWRD’s Division 9 rules (Oregon Administrative Rules Chapter 690 Division 9). However, a portion of the Division 9 rules were superseded by original Division 25 when those rules were in effect.

            The Division 9 rules require, under certain conditions, that water use rights appropriating water from groundwater sources be regulated in priority with surface water use rights when a valid, senior “call” is made. Unless the well drawing from an unconfined aquifer is within one-quarter mile of a surface water stream, OWRD must find that the source of water appropriated by the well is “hydraulically connected” to the surface stream, meaning that water can move between the surface water stream and the adjacent groundwater aquifer. OWRD presumes any well closer than one-quarter mile is hydraulically connected to the surface stream. Further, wells are presumed to cause “potential for substantial interference” if they are (1) within one-quarter mile of a stream, (2) the appropriated rate of groundwater use is greater than 5 cubic feet per second, and within one mile of the stream, (3) the appropriated rate of groundwater use exceeds 1% of a pertinent adopted minimum perennial streamflow or instream water use right, or the natural flow of the surface water source that is exceeded 80 percent of the time, or (4) continued use of the well for 30 days would result in stream depletion greater than 25% of the well’s rate of appropriation.  Stream depletion is calculated using computer modeling, the method for which OWRD has substantially changed over the last several years, creating a moving target for water users wishing to challenge OWRD’s application of the rules to their groundwater uses. Under Division 9, wells located over one mile from surface water sources may only be controlled through designation of a critical groundwater area.

            OWRD’s proposed temporary rules are designed to operate in lieu of Division 9 for the Upper Klamath Basin. Rather than merely putting the majority of groundwater regulation on hold while permanent rules are considered and adopted, OWRD’s proposed rules factually declare that all groundwater sources are hydraulically connected to surface water in the Klamath Basin, and that all wells that withdraw groundwater in the Klamath Basin reduce groundwater discharge and surface water flow. Since these factual findings are totally unnecessary for the purpose of temporarily staying regulation while enacting permanent rules, many view the rules as an attempt by OWRD to cut off current and future legal challenges to OWRD’s regulation of groundwater wells. Under the Oregon Administrative Procedures Act, state agencies are afforded a degree of deference by courts to their factual findings and legal conclusions, and OWRD’s efforts to make the aforementioned findings—findings that are currently disputed by the scientific community—have the (likely intended) effect of garnering support for a claim of deference by OWRD in legal disputes. Moreover, and perhaps most troubling, OWRD’s proposed rules state that OWRD can regulate off a groundwater user if interference “impends,” meaning the junior water user need not even be interfering with the senior water user’s right to be regulated off by OWRD. This provision is in clear contradiction with the Oregon Ground Water Act that requires actual “impairment or interference,” rather than mere speculation, prior to regulation. ORS 537.525(9).

            Many water users oppose the new rules, realizing that the inducement of temporary regulatory relief will come at a very high price that will likely eradicate groundwater irrigation of agriculture in the Upper Basin. Because the rules also determine that all wells in the Klamath Basin are hydraulically connected to surface water, the temporary rules remove the threshold question that allowed Division 9 rules to apply to an even larger area than previously implicated by the rules. (See: https://www.capitalpress.com/ag_sectors/water/scaled-back-klamath-groundwater-regulation-debated/article_8e22ab30-23fb-11e9-951c-33070f078fa7.html?utm_source=Capital+Press&utm_campaign=6366754200-EMAIL_CAMPAIGN_2019_01_30_05_40&utm_medium=email&utm_term=0_3bfe2c1612-6366754200-241522174.) Other persons have criticized OWRD’s temporary rules for harming downstream senior surface water users, like the Klamath Tribes that hold senior surface water rights. (See: https://www.heraldandnews.com/members/forum/letters/proposed-groundwater-drilling-rule-unsustainable/article_77126c71-c978-5ade-9be3-82c025359f40.html.)

            Under OWRD’s application of the Division 9 rules (which is currently being challenged in court), 140 wells in the Klamath Basin would be subject to regulation. Under the proposed temporary Division 25 rules, only 7 wells would be regulated until March 1, 2021. Over the next two years, OWRD asserts it will continue to study the hydrogeology of the Upper Klamath Basin and enact permanent rules to replace the temporary Division 25 rules. The water wars in the Klamath Basin continue, and groundwater users may get a very short period of relief from regulation while OWRD once again moves the bar for how OWRD will regulate off groundwater users in the Upper Klamath Basin.

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

On October 23, 2018, President Trump signed America’s Water Infrastructure Act (“AWIA”), also known as the Water Resource Development Act, into law. This bipartisan bill, which previously passed the House of Representatives on September 13, 2018 and the Senate on October 10, 2018, aims to improve dams, levees, ports, and waterways throughout the United States. It also amends the Safe Water Drinking and allocates funds toward more efficient and sustainable water quality control and management, particularly in underserved communities.

As its name might suggest, one of AWIA’s main goals is to improve America’s water systems. Under AWIA, the U.S. Army Corps of Engineers will receive around $3.7 billion to plan, study, and develop water projects to alleviate strain on existing infrastructure. In the Northwest, the Port of Seattle is specifically slated to undergo construction to improve navigation channels, as are several other key ports around the United States. AWIA also has specific provisions that focus on flood protection measures on the Snake River and levee improvements in Clatsop County, Oregon, among others.

One of the most notable aspects of AWIA is how it addresses the ongoing water shortages in Northern California/Southern Oregon’s Klamath Basin. AWIA provides a much-needed $10 million annuity to the Bureau of Reclamation to address ongoing water issues in the Klamath Basin, and provides avenues for farmers to make use of Klamath Project canals to deliver water to their farms. AWIA also focuses on increasing efficiency and sustainability of hydropower and delivery of affordable electricity to those same farmers.

Stay tuned to Schroeder Law Offices’ blog for more updates on AWIA’s progress and impacts on water in the Northwest and the United States!

Attorney Sarah Liljefelt presented at Halfmoon’s Water Laws and Regulations seminar on June 7^th on the topic of Oregon Groundwater, teaching a group of engineers about groundwater ownership, regulation, and acquisition of groundwater use rights in Oregon. This week, on June 28^th, Sarah will present at the Oregon State Bar Environmental & Natural Resources Section’s “brownbag” continuing legal education seminar on the topic of groundwater regulation in the Klamath Basin in Oregon. Her co-presenter is Lisa Brown of WaterWatch, who will speak about groundwater in Harney County. If you are interested in attending, please visit the Section’s Events page or Schroeder Law Offices’ Coming Events page for more information. Sarah’s presentation materials are available on the Section’s Events page.

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

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!

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.

Congress has adjourned for the year without passing a bill to authorize and fund the Klamath Agreements. The Klamath Basin agreements include: the Klamath Hydroelectric Settlement Agreement (“KHSA”), Klamath Basin Restoration Agreement (“KBRA”) and Upper Klamath Basin Comprehensive Agreement (“UKBCA”) that together lay out a comprehensive scheme for changes in management along the entire reach of the Klamath River. After years of litigation and negotiation, certain stakeholder groups came together to craft the trio of agreements. However, the agreements did not sit well with everyone. Particularly those in Klamath County and their California neighbors due primarily to the highly controversial dam removal provisions and drying up thousands of acres of farmland. For these among other reasons, the agreements, which required authorizing legislation and funding from Congress, failed to gain traction.

Senator Ron Wyden [D-OR] attempted multiple times to pass the necessary legislation to authorize the agreements. The latest version, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, has been stalled in committee since last January (2015). In an effort to move forward, on December 3, 2015, Representative Greg Walden [R-OR] released a draft bill intended to “help provide water and power certainty for agriculture and boost economic development and job creation for rural communities and tribes through a transfer of federal timber lands.” Walden’s draft bill omitted dam removal and authorized transferring up to 100,000 acres each of National Forest land to Klamath County, OR, and Siskiyou County, CA. These issues quickly became non-starters for the Tribes who held the “ears” of Senators Wyden and Merkley.

The KHSA is set to expire on January 1, 2016. While the parties can vote to extend it, some signatories are beginning to question if the agreements provide workable solutions for the Klamath basin. The Yurok Tribe clearly communicated its intent to terminate the agreement. Similarly, the Klamath Tribal Council has issued a dispute notice. Additionally, PacifiCorp, the company that owns the dams, has changed course and now indicates it will pursue re-licensing of the dams. Thus, many parties that initially favored the agreements are beginning to show their discontent. This may have been another reason authorizing legislation had difficulty making its ways through Congress.

In March of 2015, The Oregon Water Resources Department passed administrative rules, Oregon Administrative Rules 690-025, to help govern the region in accordance with the Upper Klamath Basin Comprehensive Agreement in anticipation of the agreement being authorized by Congress. The rules implement sections of the agreement to address control of well use in off-project areas when that use affects surface water supplies in the basin. However, these rules will no longer be effective once the agreement terminates, and groundwater regulation in the off-project area will again be in accordance with OAR 690-009.

As such, for better or worse, it appears the agreements will dissolve as portions of the agreements expire in the New Year. Thus, 2016 will likely involve the parties initiating new negotiations to resolve the critical water usage issues in the Klamath basin, potentially leading them back to court to resolve exceptions filed in the Klamath Basin Adjudication as that process is slated to continue through the coming year or years.

Photo: Rain – Klamath Basin Wildlife Refuge by Michael “Moik” McCllough

NINTH CIRCUIT UPHOLDS RULING — NPDES PERMITS ARE NOT REQUIRED FOR TRANSFERS OF WATER IN THE KLAMATH BASIN

ONRC Action v. United States Bureau of Reclamation (9th Cir. Or. Aug. 21, 2015)
cdn.ca9.uscourts.gov/datastore/opinions/2015/08/21/12-35831.pdf

The Ninth Circuit Court of Appeals was recently presented with the issue of whether the Bureau of Reclamation violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. Finding that the waters of the Klamath Straits Drain and Klamath River were not meaningfully distinct, and applying the reasoning from Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, (2013), the court concluded that a Clean Water Act permit was not required.

Background

The original case was filed in 1997 as a citizen’s suit under § 505(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), commonly referred to as the Clean Water Act. Plaintiff Oregon Natural Resources Council Action (“ONCR”), an environmental group, asserted that the Bureau of Reclamation and its commissioner violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. The case was stayed for settlement negotiations for years, dismissed, and then reopened on motion. The magistrate judge’s report and recommendation granting the Bureau’s motion for summary judgment were adopted by the district court. The recommendation was based on the conclusion that the Klamath Straits Drain, which connects Lower Klamath Lake and the Klamath River is a water of the United States as defined by the Clean Water Act, and therefore a discharge of water from the Klamath Straits Drain to the Klamath River would be exempt from the Clean Water Act’s permitting system by the EPA’s Water Transfers Rule. The Water Transfers Rule defines water transfers as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.” 40 CFR 122.3(i). Under the Rule, “water transfers” are exempt from the NPDES permitting requirements because the transfers do not result in the addition of a pollutant.

On appeal, ONCR raised the issues of whether the discharge of water from the Klamath Straits Drain and the Klamath River was exempted by the Water Transfers Rule and whether the adoption of the Water Transfers Rule was within the EPA’s authority.

The Ninth Circuit panel neatly sidestepped the issue of the validity of the Water Transfers Rule, relying on the holding in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __, 133 S. Ct. 710, 184 L. Ed. 2d 547 (2013), which was issued after the district court entered its decision. In the Los Angeles Flood Control Dist., the Supreme Court held that the flow of water from one portion of a river through a concrete channel or other engineered improvement within a river, then back into the river did not constitute a discharge of a pollutant under the Clean Water Act. In summary, the Court held that that “pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the Clean Water Act,” as no pollutants are being “added”. Id. at 711, citing to South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-12 (2004).

In the ONCR case, the Ninth Circuit panel found that the record demonstrated that waters of the Klamath Straits Drain were not meaningfully distinct from those of the Klamath River. In reaching this conclusion it summarized the flow of water through the Klamath Irrigation Project as originating from the Klamath River, then flowing through parts of the Project into Lower Klamath Lake, and then flowing back to the Klamath River via the Klamath Straits Drain. While recognizing that the water was combined with other waters during its journey, including waters from the Lost River Basin, from spring-fed streams, and from runoff, the court concluded that a substantial portion of the water returned to the Klamath River through the Klamath Straits Drain came originally from the Klamath River and was not meaningfully distinct.

Further, despite the excavation and channelization of the previously existing natural waterway, as well as the addition of two pumping stations to ensure the flow of water through the Klamath Straits Drain, the Ninth Circuit viewed the Klamath Straits Drain as essentially an improved version of the previously existing natural water way. The panel relied on the district court’s finding that the Klamath Straits Drain provided a hydrological connection between the lake and river, just as the original Klamath Straits, and that if the headgates and pumps of Klamath Straits Drain were removed, waters would flow between the Klamath River and the Klamath Straits Drain. Because the waters flowing into the Klamath River from the Klamath Straits Drain were not meaningfully distinct from those in Klamath River, the court held that no permit was required under the Clean Water Act.

The validity of the EPA’s Water Transfer Rule has been the source of much litigation, some of which is ongoing. Unfortunately, the Ninth Circuit panel decision did not reach the question of whether the rule adopted by the EPA was properly within its authority and was therefore valid.

Oregon follows the Prior Appropriation principle for water use. The guiding principle of the Prior Appropriation Doctrine is “first in time, first in right.” Thus, water users with earlier priority dates may have their water use rights satisfied before junior water users, or may even require junior users to cease diversions, if there is not enough water in the system to supply all uses.

However, Oregon Revised Statute (“ORS”) 536.750(1)(c) allows the Oregon Water Resources Commission to create a preference for human consumption and stock watering uses after a declaration that a severe, continuing drought exists. The creation of a water use preference allows the State to regulate water use in a way that gives priority to junior users for the identified purpose in the preference statute. Here, the State may allow water users to take water out of priority for human consumption and stock watering uses.

A constitutional problem arises when the State regulates water use on the basis of the preference. The United States and Oregon Constitutions provide that private property shall not be taken for public purpose without just compensation. ORS 536.750(1)(c) was enacted in 1989. Water use rights that were perfected prior to the statute being enacted became vested real property rights before ORS 536.750 was in place. Now, based upon the statute and agency regulations (Oregon Administrative Rule, “OAR,” Chapter 690, Division 22), the Oregon Water Resources Department may order a senior irrigation right shut off, while allowing a junior domestic or stock water use to continue. Such an order deprives the senior water user of their priority date, which is a key feature of their water right.

The Oregon Supreme Court outlined the standard for a “temporary taking” under the Oregon Constitution as follows: “We think that, in order to distinguish between a “taking,” on the one hand, and simple administrative inconvenience or delay, on the other, it is necessary to require that a complaining party allege some degree of permanence in its loss. We hold that, in order to assert a claim for a “temporary taking” under the Oregon Constitution, the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical.” Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 199 (1997). Such a denial of all economic value might be proved, in the case of a senior’s water use regulation, by a showing that the senior user’s water use would have remained unregulated had the State not exercised a preference for junior domestic and stock water uses instead, and that such regulation denied the senior water right holder all economic value of their water right during the period of regulation, such as an irrigation season where a portion of a crop was lost.

A drought has been declared in Klamath County, Oregon this year. In response, the Oregon Water Resources Commission (“OWRC”) enacted temporary rules in OAR Chapter 690, Division 20, creating a surface water preference for domestic and stock watering, regardless of priority. OWRC is now proposing to amend the Division 22 rules to extend the preference to groundwater as well. The proposed rules are available on the Oregon Water Resources Department website at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.

A second public hearing on the proposed Division 22 rules will he held September 18, 2014 in Klamath Falls. Written Comments must be received by the Oregon Water Resources Department by 5:00 PM on September 19, 2014. More information about the public hearing and comments is available on the website provided above.

Schroeder Law Offices drafts comments on behalf of its clients to proposed rules or other agency actions. Contact Schroeder Law Offices if you have questions about a government action that is affecting your water use.

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

Earlier this month, the Oregon Water Resources Department announced in this press release that the Department would be submitting a second notice of proposed rulemaking, holding a second public hearing, and extending the comment period for proposed rules that grant preference for “human consumption” and “stockwatering” uses following the Governor’s declaration of a drought. The rules are solely directed at Klamath County, Oregon. After receiving comments from elected officials and concerned local governments stating that there was little notice or public involvement in crafting the proposed rule, the Department decided to hold the second round of comments and public hearings.

Besides making the temporary rule permanent, the rule is different from the original temporary rule in that it eliminates the differentiation between the regulation of surface water to include all water sources, including groundwater. How this proposed rule affects exempt well uses, including “domestic purposes” is unknown, and “domestic purposes” is clearly not included in the definition of “human consumption.”

In addition, granting preference for a particular use does not necessarily translate into a restriction to the access of the water supply. While the Department states that senior calls could “regulate off” a junior user, the preference for a human consumption and stockwatering uses does not speak to restricting access.

The department seems to be conflating the two different aspects between use and access. While shutting off a well or closing a diversion point may be the most efficient method of regulation, granting a preference for human consumption and stockwatering uses would still allow access, and require the department to use a more sophisticated regulation system other than just shutting off the supply: the uses would be regulated, not just the access to the supply. The City of Klamath Falls identified this distinction in its comments, noting its potential role as watermaster for all of its municipal subscribers to enforce the preference of uses as proposed, as municipal uses include industrial and landscape irrigation uses.

The comment period for the proposed rules will close at 5:00 PM on September 19, 2014, and the Commission is expected to take up the proposed rule during the week of September 22, 2014.

The next public hearing is scheduled at 6:00 pm on September 18, 2014 at the Oregon Institute of Technology Mt. Mazama Room, located at 3201 Campus Drive, Klamath Falls, OR.