Schroeder Law Offices will be working the Women for Agriculture booth at the Oregon State Fair on Friday, August 26th from 1:00 PM to 3:30 PM and Sunday, August 28th from 3:30 PM to 6:00 PM.

This year’s Oregon State Fair boasts some truly spectacular sights, including agriculture competitions, musical guests, and plenty of opportunities to learn about Oregon farmers and ranchers. If you’re looking to end your summer on a high note, why not Join Schroeder Law Offices at the Oregon State Fair? Friday marks the start of the 11 day event, which runs from August 26^th to September 5^th at the Salem, Oregon Fairgrounds.

Tara Lomacz will be working the Oregon Women for Agriculture booth on Friday, August 26^th from 1 to 3:30 PM and Sunday, August 28^th from 3:30 PM to 6 PM. Madeleine Criglow will also be working the booth that Sunday afternoon to join in on the fun.

Come celebrate and learn about the achievements of all Oregonians, including Oregon’s farmers and ranchers. While you’re there, check out the exciting special events, thrilling competitions, and tasty food.

Find event details on the Oregon State Fair website by clicking here: https://oregonstatefair.org/. We hope to see you there!

Laura A. Schroeder is the founding partner of Schroeder Law Offices. Long respected in the water rights arena, Laura has generously shared her valuable experiences and provided some great advice. A few questions we asked Laura:

What motivated you to practice water law and start Schroeder Law Offices?

I used to work on a farm and did work related to irrigation. From that experience, I learned the importance of water. Also, my father was a lawyer and I got Influenced by him and became a lawyer. In my early practice years, I worked in a number of law firms and practiced in different areas of law. I then realized that my passion was in water law, so I started my practice.

What is your go-to productivity trick? How do you stay motivated?

The most important thing is that I really enjoy what I do, and I like the people I work with, so I always get motivated when I work. Also, I have the habit of mediation. Meditation helps me center myself.

What do you consider the most important thing about being a good lawyer?

I find the most important thing is to be proud of your profession. I dislike jokes about lawyers because that is disrespectful.

Where can I find you on the weekend?

I love spending time with my family! Last weekend I helped with cleaning at my son’s place, and the week before that I attended my niece’s wedding. I always consider family the most important thing. When I have free time, I also help with writing family genealogy.

What is one thing you like the most about working at Schroeder Law Office?

I like it because lawyering is an intellectually challenging job. In the legal profession, the challenge you need to face constantly changes, and you need to develop new strategies based on the new challenge. Also, at Schroeder Law Offices, everyone has different perspectives on solving problems. I enjoy discussing and developing new strategies with everyone.

Do you have some advice that you can give to young lawyers and law students who are interested in water law?

Beside law school, it is important to have real-life practice experiences as much as possible, because in the legal profession you need to work with people. When I started to practice, I did clerkship with the government, worked with my father, and worked in private law firms. I learned from that experience that working with different kinds of people and lawyers is essential, because it offers you an opportunity to learn from the people you interact with. If you just focus on just one thing, you will definitely miss out on other things.

[This article was originally published in the February, 2022 Oregon Real Estate and Land Use Digest by the Section on Real Estate and Land Use, Oregon State Bar]

In Oregon, water rights must be beneficially used according to their terms at least once every five years to remain in good standing. If they are not, water rights are subject to cancellation for forfeiture. ORS 540.610. Thus, Oregon’s forfeiture statute enacts the “use it or lose it” principle that is common in Prior Appropriation water system states. Water right holders must use their water rights or risk cancellation.

In the late 1980s, the Oregon State Legislature recognized instream beneficial uses for water, allowing the State to hold or lease water rights for instream purposes such as recreation, navigation, pollution abatement, and fish and wildlife. Under ORS 537.348, water right holders may temporarily lease water rights to the State for instream purposes for up to five years, renewing such instream leases thereafter. The statute provides that water rights leased instream are “considered a beneficial use.” ORS 537.348(2). As such, the forfeiture provisions of ORS 540.610 are not triggered during the period a water right holder leases their water right instream. Many water right holders use the instream lease program to safeguard their water rights in times when such water rights might not otherwise be used once every five years. The instream lease program serves dual purposes of providing instream flows while protecting private property interests in water use.

WaterWatch of Oregon v. Water Resources Department, 369 Or 71 (2021), questioned whether a hydroelectric water right could be leased instream and thereafter, once the lease(s) expired, be used again for hydroelectric or other beneficial uses of water. At issue in this case is a hydroelectric water right held by Warm Springs Hydro, LLC (“Warm Springs”). In 1995, Warm Springs’ predecessor shut down the associated hydroelectric project and began a series of instream leases from 1995 to 2020. WaterWatch of Oregon (“WaterWatch”) petitioned for judicial review of the Oregon Water Resources Department’s (“OWRD’s”) final order approving the 2015-2020 instream lease, and Warm Springs intervened.

In addition to the forfeiture provisions that are applicable to all water rights, ORS 543A.305 (enacted in 1997) applies specifically to hydroelectric water rights. The statute provides:

Five years after the use of water under a hydroelectric water right ceases, or upon expiration of a hydroelectric water right not otherwise extended or reauthorized, or at any time earlier with the written consent of the holder of the hydroelectric water right, up to the full amount of the water right associated with the hydroelectric project shall be converted to an in-stream water right, upon a finding by the Water Resources Director that the conversion will not result in injury to other existing water rights.

ORS 543A.305(3). Further, the statute specifies that the conversion to an instream water right “shall be maintained in perpetuity, in trust for the people of the State of Oregon.” ORS 543A.305(2).

Prior to this case, OWRD interpreted ORS 543A.305(3) similar to the forfeiture statute; that is, so long as a hydroelectric water right continues to be used for hydroelectric water use or another beneficial use under an instream lease, the hydroelectric water right is not subject to conversion to a permanent instream water right. WaterWatch challenged OWRD’s interpretation, arguing hydroelectric water rights are subject to conversion five years after the specific hydroelectric use of water ceases. The Marion County Circuit Court and the Oregon Court of Appeals both ruled in favor of OWRD and Warm Springs, but the Oregon Supreme Court reversed and remanded the decision on December 23, 2021.

The Oregon Supreme Court reviewed the text of the two statutes in conjunction with the context of the statutes and legislative history. The Court held “the use of water under a hydroelectric water right” means water use only for hydroelectric purposes as specified in the water right certificate, and does not include beneficial use under an instream lease. WaterWatch of Oregon, 369 Or at 88-89. The Court reasoned that once a hydroelectric water right is leased instream, the beneficial use is converted to another purpose other than hydroelectric water use. Id. at 91-94. The Court further held that “ceases” under the statute has an ordinary meaning, so Warm Springs’ water right was subject to conversion to an instream water right in the year 2000, five years after the hydroelectric project was shut down. Id. at 89-91.

The Oregon Supreme Court’s ruling will have significant impacts on hydroelectric water rights in the State. Most obviously, other hydroelectric water right holders in situations analogous to Warm Springs may face conversion of their hydroelectric water rights to permanent instream water rights. As such, property owners who believed they were appropriately safeguarding valuable water right holdings through instream leases may find themselves mistaken.

Another consequence of the Court’s decision is that instream leases over four years in length are essentially “off the table” for hydroelectric water rights. Hydroelectric water uses must resume within five years or risk conversion to permanent instream water rights. Thus, there is no incentive for hydroelectric water users to lease their water rights instream to avoid forfeiture, and, in the process, guarantee instream flows. Instead, the ruling incentivizes quick transfers to other, possibly more consumptive, water uses through the transfer process before the hydroelectric water right is converted to a permanent instream water right. ORS 543A.305(7).

Finally, conversion of appropriative water rights to instream water rights allows the State to enforce against upstream junior water users to ensure instream rights are satisfied. Conversion of large, early priority hydroelectric water rights to permanent instream purposes may have the outcome of increased regulation against other water right holders.  

The original article is available in PDF format here.

The Oregon Legislature’s short session officially begins today, February 1^st. It is anticipated that water users and water managers alike can catch their breaths somewhat during the short session, since not as many water-related bills will be considered.

The 2021 regular session was a marathon for those of us closely following or involved in water resources policy and law. In that session, efforts continued to correct the State’s questionable opinion that storage water rights cannot be modified through the transfer process. Only character of use transfers are reauthorized for the time being. Additionally, a threat to the due process rights of regulated water users was advanced. Only through great efforts was the attempt abated with some compromises of additional procedures around stays of agency orders during judicial review. Moreover, an onerous and costly water use reporting bill was proposed, despite information from the Oregon Water Resources Department that other types of data should be pursued, like additional stream gages and satellite data for evapotranspiration. The bill did not pass, but it did spur broader conversations about water management and planning that continue currently. Finally, the groundwater exemption for livestock came under attack, as proponents unsuccessfully attempted to limit the exemption to a daily maximum. In addition to these bills, many more were proposed, some of which were enacted into law.

In 2020, I began the position of Water Resources Chair for the Oregon Cattlemen’s Association. The 2021 Legislative Session was my first opportunity to participate in a large number of legislative bills on behalf of the organization. The experience certainly kept me on my toes and gave me an entirely new perspective of legislators and those who engage heavily in legislation. The bills are numerous, long, and ever-changing throughout the session. There is always too much work to be done in too little time to build consensus, draft written testimony, and testify in hearings. In 2021, we also tackled the additional hurdle of remote hearings on proposed bills due to the Covid-19 pandemic. This is to say that the 2021 legislative session was challenging, but also very exciting and rewarding. I was honored to receive an award from the Oregon Cattlemen’s Association in recognition of these efforts for “distinguished Committee leadership, responsibility, knowledge, expertise, advocacy, and tireless service to cattle producers and the Oregon Cattlemen’s Association.”

Short sessions of the Legislature in Oregon are not intended to address substantial changes in the law. Thus, it is not surprising that less water-related bills are anticipated this year. However, one priority that began receiving additional attention in 2021 is anticipated to continue at the forefront in 2022: water theft for illegal cannabis operations. Funding was provided in a special session in 2021, and numerous news articles detail the problem in the midst of the severe and continuing drought in Oregon and the West. House Bill 4061 (2022) would allow the Oregon Water Resources Department to obtain warrants to inspect private property. Additionally, the bill would require persons who both deliver water and receive water deliveries to ensure such water is from legal sources and keep records to that effect. Finally, the bill proposes to increase civil penalties for illegal water use when the crop grown is cannabis.

It is possible that additional water-related bills will be proposed in the 2022 regular session. For the time being, I will enjoy a little bit of a break on this front, being mindful that the 2023 regular session is just around the corner!  

(The below article is reproduced from the January, 2022 issue of Oregon Cattleman, the publication of the Oregon Cattlemen’s Association. For a PDF copy of the article, use this link.)

2021 was a terrible water year in Oregon. We experienced record high temperatures and record low precipitation, after several years of already below-average precipitation, little or no carryover water in reservoirs, historically dry soils, and severe wildfires. This year highlighted the need for additional water storage to increase water security during times of drought.

At the Oregon Cattlemen’s Association’s annual meeting, the Water Resources Committee voted to adopt a resolution promoting water infrastructure and storage to guide the organization’s priorities going forward, and the Board adopted the resolution. This policy will be especially important in coming years, as we face increasing roadblocks to achieving water storage and infrastructure goals. State water policies are oftentimes conflicting, recognizing the importance of creating additional storage, while at the same time promoting activities that foreclose opportunities for storage.

For example, Oregon’s Integrated Water Resources Strategy includes a “recommended action” to plan and prepare for drought resiliency. The Strategy also includes a “recommended action” to develop instream water protections. These two strategies are not necessarily opposed, however, when one strategy is actively pursued while the other falls by the wayside, the State’s actions do not balance both needs. Moreover, only so much water exists within water basins, and the creation of instream water rights takes that water “off the table” for purposes of increasing or creating water storage.

In 1987, the Oregon State Legislature passed the Instream Water Right Act allowing the State to convert minimum perennial instream flows to instream water rights, apply for new instream water rights, and lease or transfer existing water rights to instream uses such as recreation, pollution abatement, and fish and wildlife. Thus, instream water rights are not a new concept. However, the Oregon Department of Fish and Wildlife’s (ODFW’s) website details that the agency “re-established” its instream water rights filing program in 2016, “consistent with Oregon’s Integrated Water Resources Strategy.” Thus, we have seen in the last few years hundreds of applications for instream water rights filed by ODFW in different water basins throughout the State. ODFW’s policy stated in its administrative regulations is “to obtain an in-stream water right on every waterway exhibiting fish and wildlife values.” OAR 635-400-0005.

Unlike appropriative water rights, instream water rights are not constrained by the amount of water actually available to fulfill the instream water right. Rather, ODFW’s applications may request the amount of water ODFW determines is needed to support the fish and/or wildlife species. As such, ODFW applications regularly include requested rates that exceed available stream flows. Such applications, if approved, have the effect of precluding any new appropriative water use rights within or upstream from the stream reach designated in the application.

Moreover, once instream water rights are in place, existing water right holders lose the flexibility to transfer their points of diversion upstream. The instream water right holder (the State) must consent to the “injury” the transfer would cause. In exchange for its consent, the State typically requires mitigation by placing a portion of the transferred water rights instream. The 1987 Instream Water Right Act provided, “The establishment of an in-stream water right…shall not take away or impair any permitted, certificated or decreed right to any waters or to use of any waters vested prior to the date the in-stream water right is established…” ORS 537.334(2). In practice, however, existing water right holders lose the flexibility they might have otherwise enjoyed to modify their water rights as needed for their operations.

This is not to say that instream water rights have no place or value. The reason for outlining the increased emphasis on instream rights recently, and the effects such rights have on new and existing appropriative water rights, is to point out that we, as a State, are falling short on drought resiliency preparation efforts at the same time water resources are being irreversibly committed to instream purposes. In 2013, when the Legislature passed Senate Bill 839, establishing the Water Supply Development Fund, many hoped that the fund would be used to increase water storage throughout the State. As a whole, that fund has not created substantial new storage. The State must do better to carry forward all components of the Integrated Water Resources Strategy, including planning and preparation for drought resiliency through water storage and infrastructure improvements.

The Oregon Water Resources Department (OWRD) received a large funding package in the 2021 regular session of the Legislature. The Oregon Cattlemen’s Association joined a coalition letter to OWRD outlining recommended priorities for implementing that funding. The first priority in that letter is a request that OWRD renew its focus on increasing storage and improving disaster resiliency. Congress recently passed the Infrastructure Investment Jobs Act, and the letter further asks OWRD to develop a plan to leverage federal funds in support of these efforts.

In addition to government reprioritization and implementation of plans to prepare for droughts, individuals and groups from the agriculture community will need to lead the way and identify projects in their communities. It is possible that storage opportunities may be identified through place-based planning efforts in partnership with State agencies. Soil and water conservation districts and other local entities can also assist individuals to navigate the myriad of questions and processes involved. The Oregon Cattlemen’s Association will continue to advocate for legislation and government actions in furtherance of this goal, and assist members who are interested in exploring new or expanded water storage opportunities.

If you are interested, you might also check out Schroeder Law Offices’ free webinar about winter storage, available at: http://water-law.com/water-right-video-handbook-guide/.

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

In some painful ways the COVID-19 pandemic has stripped us of our ability to celebrate with those we love. Arielle Zamora of Small Yard Flowers in the St. Johns neighborhood of Portland, OR has seen this unfortunate trend firsthand.

“The wedding industry is totally turned upside down and looks nothing like it used to,” Zamora said. “Other florists and myself have lost a majority of our 2020 wedding clients. 2021 is up in the air as well. There are less florists buying wholesale flowers from farmers, so overall there has been a huge decline in the industry.”

A staple of celebrations, the floral industry provides a service typically used in large scale gatherings of the type banned in many states since the pandemic began earlier this year. As a small business using drip irrigation to cultivate locally grown and organic flowers, this has been especially tough on Small Yard Flowers. Zamora has remained positive, however, and has had to get inventive to keep her business afloat.

“I’ve made direct connections with other florists who have shops,” Zamora said. “I am providing weekly deliveries so I’m able to supply them with flowers. Additionally I’ve opened my own web store for people to order flower deliveries directly from me and my farm: https://www.smallyardflowers.com/.”

The need for joyful celebration remains constant, even in this COVID-19 era, and we are grateful for businesses like Zamora who are still producing and creating in the midst of the pandemic. Though times have been tough, Zamora is looking forward to the future. “I am looking forward to when normal sized weddings can take place and there will be the high demand for quality flowers again,” Zamora said. “I’m also looking forward to reconnecting with friends and professionals in my industry.”

To see more spotlights of those in the agriculture industry, sign up to follow the Schroeder Law Offices, PC blog. 

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

Todd Nash is a rancher, Wallowa County Commissioner, and President Elect for the Oregon Cattlemen’s Association. He and his wife, Angie, own Nash Natural Beef. They run primarily an angus cow-calf operation in eastern Oregon, also raising a few bulls. They raise high quality natural beef (no antibiotics or hormones) in Wallowa County. Their cattle is grain finished in a custom yard in Vale, Oregon. The majority of Nash’s cattle go through the feed yard before harvest. Then, they become part of Painted Hills Natural Beef for sale in restaurants and high-end supermarkets. This year, however, COVID-19 created a disruption in the meat distribution chain. This caused Nash to change their business model to focus on direct customer sales.

Disruption to the Meat Distribution Chain

The COVID-19 virus created a meat processing bottleneck. Some of the larger packing plants shut down or slowed down due to sick employees. Nash received information in early 2020 that he should try to sell cattle on his own due to this challenge. The concept of direct customer sales was not totally foreign to Nash. They had done something similar in 2008 during the economic recession. This year, they shared their plans to take whole and half beef orders on Facebook. They worked directly with three local processors: Boston Beef House in Ontario, Hines Meat Company in La Grande, and Valley Meat Service in Wallowa. Customers paid only $2.50 per pound hanging weight, as well as the butchering fees. Most of the other sales Nash saw were over $3.00 per pound. This allowed customers to buy Nash Natural Beef at very affordable prices.

Nash was humbled and overwhelmed by the enthusiastic response they received from customers both near and far. They sold out their entire fat cattle crop in May. The animals were harvested in June and July. Customers were able to pick up their beef directly from the nearest of the three processors, rather than delivering the beef as they had done in 2008. Customer reviews were also spectacular. Nash Natural Beef has always focused on genetics and DNA markers for tenderness and marbling. They take a lot of pride in the product they raise. It was very rewarding for Nash to have a direct connection with Nash Natural Beef’s customers and to share in their enjoyment of Nash’s high-quality beef.

A Growing Need for Small Processors

Nash says that 2020 has really highlighted our vulnerabilities from concentrating U.S. food systems, and the need for small processing facilities throughout Oregon. In general, livestock producers in Oregon must sell their meat using United States Department of Agriculture (“USDA”) inspected facilities. It is very expensive for small processors to become USDA certified and hire additional staff. Additionally, staffing can be difficult in the meat processing industry. This results in a lot of meat being processed in large, out-of-state facilities. An exception to this rule is called “custom-exempt” processing. This allows non-USDA, state-licensed facilities to slaughter and process livestock for the exclusive use of livestock owners, their family, and nonpaying guests. As such, persons can purchase live animals for processing at “custom-exempt” facilities. However, “custom-exempt” sales are usually limited to whole or half beef sales due to the need to purchase the live animal. This excludes the ability to buy and sell small quantities and specific cuts.

Nash gave an interview for the Oregon Cattlemen’s Association earlier this year on the topic of the PRIME Act (Processing Revival and Intrastate Meat Exemption Act). The Act, cosponsored by Oregon Congressman Greg Walden, would expand the exemption for state-licensed “custom-exempt” facilities. The Act would allow meat distribution to household consumers within the State, as well as restaurants, hotels, boarding houses, grocery stores, or other establishments in the State that are involved in the preparation of meals sold directly to consumers or offer meat and meat food product for sale directly to consumers in the State. Nash says that the PRIME Act would help keep beef produced in Oregon in the State. It would provide more economic opportunities for Oregon’s rural communities. And it would allow consumers to trace where their meat is being raised and processed. Nash has seen first-hand that customers really appreciate knowing how and where their meat is raised and having a direct connection with their rancher.

Better Days Ahead

Post-COVID, Nash is looking forward to a better market and higher cattle prices. He has worked through the challenges that have come with COVID-19, and is optimistic that better days are ahead. He thinks that Nash Natural Beef will continue doing direct customer sales in the future. They have already received orders for next year, and cattle will be ready in May or June of 2021. Contact Nash Natural Beef directly for more information! Additionally, the Oregon Cattlemen’s Association started a directory of members who are willing to sell beef cattle directly to customers.

When asked whether he enjoys being a rancher, Nash explains that if he did anything else, anywhere else, ranching in Wallowa County is what he would want to do on vacation. Nash enjoys the independence of raising his own cattle, and the comradery that is shared with other ranchers. There is always something to do every day and a reason to get out of bed. Although COVID-19 has been difficult, he is looking forward to having a closer relationship with customers going forward. He is hopeful that a fix to current federal laws will create more opportunities for small, local producers to provide Oregon residents with the wonderful beef that is raised in-State.

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

          The Slink Fire rages on in the Carson-Iceberg Wilderness Area. Meanwhile, pilots fly an imaginary line to drop water on wildfires according to wilderness laws and procedures. This raises the question, are wilderness firefighting laws protecting or harming wilderness areas?

Wilderness Firefighting Laws 

          Congress passed the Wilderness Act of 1964 to minimize human impacts and preserve wilderness.  For example, the act limits and/or prohibits motorized vehicles in wilderness. See 16 U.S.C. 1131(a).  Additionally, it requires minimized human impacts from firefighting . One exception is the use of aircraft.  Aircraft may be used as necessary to control fire. P.L. 88-577 § 4(d)(1). However, the act applies conditions even to this use. Id. 

            Later wilderness laws echoed protective policies. The Endangered American Wilderness Act of 1978 directed the Secretaries of Interior and Agriculture to implement fire prevention and watershed protection. See P.L. 95-237 §§ 2(c)-(d).  The Secretaries were required to create special fire suppression measures and techniques. Id. The California Wilderness Act of 1984 included similar language. The Act created the Carson-Iceberg Wilderness and extended firefighting restrictions to it. See P.L. 98-425 § 103(b)(2). 

Firefighting Restrictions in Practice

How are these provisions applied in practice?  In the Carson-Iceberg Wilderness Area, impacts are minimized by restricting the place of water use. Firefighters must take water and use it in the same watershed.  In smaller wilderness areas, these restrictions are moot.  However, in the Carson-Iceberg, unique challenges are presented to firefighting crews. 

            As of Thursday, September 10, 2020, the Slink Fire raged over 22,474 acres.[1] The fire spanned across three watersheds: the Carson Watershed, the Silver King Watershed, and the Walker Watershed.  Don Zirbel, of the Clackamas Fire District, provided a community update. He noted that fire crews are struggling with restrictions for “crossing lines” during aerial water drops. These restrictions require pilots to take water from a watershed and drop it on fire only within the same watershed.  He also noted that multiple water “dip” cites were located within each of the three watersheds, so these restrictions did not hamper ground crews or helicopters from accessing and using the needed water. This is not always the case. 

            Regardless, the update started a heated public debate on whether wilderness firefighitng laws are hindering or helping the integrity of wilderness. With a fire season for the record books, the federal agencies managing these wilderness areas will likely face these same questions. 

[1] https://inciweb.nwcg.gov/incident/7105/ (last visited 9/10/2020)

(Photo Credit: https://inciweb.nwcg.gov/incident/7105/, and Don Zirbel, Clackamas Fire District)

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

What are well sharing agreements?

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

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

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

What are the common problems with well sharing agreements?

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

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

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

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

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

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

In the final COVID-19 webinar, Laura Schroeder, Therese Ure, and Sarah Liljefelt discuss various types of easements and how to protect water access. The webinar airs on June 17, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!

First, learn the different types of easements, how they are created, and when they might apply. Secondly, the panelists discuss the interpretation of easements and how the interpretation can evolve over time. Further, the presentation outlines common easement issues specifically related to water and protecting water access. Generally, topics will include:

• Basics of property law
  • Estates, deeds, and the “bundle of sticks”
• Types of Easements
  • Express, implied, prescriptive, and “irrevocable licenses”
  • The specific attributes of each kind of easement
  • How you can protect water access to points of diversion, ditches, and pipelines
• Utility easements
• Well sharing agreements

Afterwards, we post 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! This is the final webinar in our COVID-19 series, so stay tuned to our blog for announcements for information about our next events. If you have any issues with viewing the webinars, please contact Scott Borison at: scott@water-law.com.

In the ninth COVID-19 webinar, Laura Schroeder and Alan Schroeder discussed stockwater on and off public land.  The webinar was held June 10, 2020. A recording of the presentation is available here.

This webinar focusses on acquisition of stockwater use in Nevada, Idaho, and Oregon.  Participants will learn how to obtain new stockwater permitted uses and how to establish rights existing prior to each state’s statutory water code.  Next, participants will learn how stockwater rights of use relate to federal grazing permits.  Last, participants will learn common issues with stockwater use on federal land. The general topics will include:

• Acquisition of Stockwater Rights of Use
  • On Federal Land
  • State Methods
    • Nevada
    • Idaho
    • Oregon
  • Stockwater Exemptions
• Stockwater and Grazing Permits
  • Status to Hold a Grazing Permit
  • Ownership of Water as “Base Property”
  • Water Developments on Federal Land
• Other Stockwater Issues on Federal Land
  • RS2399 Right-of-ways
  • Grazing in Wilderness

Please join Laura Schroeder and Alan Schroeder as they discuss stockwater on and off public land! Afterward, we will post this webinar here along with our other COVID-19 webinars. Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Our COVID-19 series continues for one more week.  Don’t miss our last webinar about water infrastructure easements on June 17, 2020 from 12:00 PM to 1:00 PM .  Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com.

(photo credit: https://www.rotorflush.com/applications/livestock-watering/; https://www.beefmagazine.com/blog/9-ranch-management-concepts-improve-your-ranch) 

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.

In the seventh COVID-19 webinar, Laura Schroeder and Catherine Hansford explained the basic steps in determining the value of water rights. The webinar aired originally on May 27, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!

First, participants learn the different water right components that might either add value to your home, farm, commercial operation, or provide separate value if severed to transfer for a different use. Secondly, the presentation will explain what assessors use to gauge the value of water rights, the most desirable kinds of water rights, and water markets. Further, the webinar covers both the law and economics of water right sales and transfers. Generally, topics will include:

• Real Estate Components and Value of Water Rights
  • Surface Water vs Groundwater Sales
  • How elements of a water right determine value
• The “Legal” Value of Water Use Types
  • Compare exempt uses, permits, certificates, and decreed rights and water use in “closed” basins
• Valuation of Water Rights
  • “Assessments” of the value of water rights
• Water Markets
  • The issues with developing water markets
  • Discussion of the Deschutes Groundwater Mitigation Program
  • Concurrency laws and water banking

Afterwards, we posted all our webinars in the COVID-19 Series here, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Additionally, the COVID-19 Webinar series continued over several weeks. These webinars covered topics related to water management organizations and livestock water rights on public lands. 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 viewing the webinars, please contact Scott Borison at: scott@water-law.com.

For the sixth COVID-19 webinar, paralegals Rachelq Harman, Tara Jackson, and Lisa Mae Gage will discuss the research tools and resources available on the Idaho Department of Water Resources (IDWR), Oregon Water Resources Department (OWRD), and Nevada Division of Water Resources (NDWR) online databases. The webinar will occur in 3 parts on May 20, 2020.

First, Rachelq, moderated by attorney Laura Schroeder, will present on IDWR’s online resources from 11:00 AM to 11:30 AM Pacific Time (12:00 PM to 12:30 Mountain Time). Next, Tara, moderated by attorney Sarah Liljefelt, will present on OWRD from 12:00 PM to 12:30 PM Pacific Time. Finally, Lisa Mae, moderated by attorney Therese Ure, will present on NDWR from 1:00 PM to 1:30 PM Pacific Time.

Click on the state’s name to register for the Idaho, Oregon, and/or Nevada webinars. We invite you to attend all three, or just the one(s) most relevant to you. If you have any issues with registration, please contact Scott Borison at: scott@water-law.com. If you can’t make it, stay tuned to our blog for announcements for information about the next webinars. Our previous webinars in the COVID-19 Series are available here.

Each of the May 20th webinars will offer suggestions on how to get the most out of each state’s online resources and water right information. First, we will provide an overview of what tools are available on each state’s website, then narrow our focus to water right look up and mapping tools. We will then take you through the steps needed to search for individual water rights. We will also explore the various online mapping tools and files available to aid in water right research. 

Topics will include:

1. Website home page overview
2. Use and function of water right search systems
   1. Types of search fields
   2. Types of search results
3. Use and function of online mapping tools
   1. Finding a water right
   2. Finding a well
4. Other useful tips/tools for water right research

We will offer a surprise discount for online research assistance to be provided by one of the experienced water rights paralegals who are panelists to this webinar for webinar participants.

The COVID-19 Webinar series will continue over next several weeks, including topics related to real estate due diligence and water management organization. Previous webinars are available on our website, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

In the fifth COVID-19 webinar, Laura Schroeder and Therese Ure discussed adjudications and filing a claim for a “vested” water right. The webinar originally aired on May 13, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here! Stay tuned to our blog for announcements for information about the next webinars. You can view previous webinars in the series here.

Learn the elements of a claim and the process of adjudication leading to an enforceable pre-code priority water right. Receive the “how to” provide evidence of a claim, and prepare for the inevitable issues that arise in the adjudication process. If you hold a decreed right, you will leave knowing how to “read” the Court’s decree. Topics will include:

• History of water rights in Oregon and Nevada
  • Water codes generally
  • Pre-code water rights
• Adjudications
  • Initiation, process, claims, and types of evidence
• Decrees
  • General discussion of decrees, appeals, and final decrees
• Important deadlines
  • Nevada’s sunset date
  • Oregon claim registration deadline

The COVID-19 Webinar series will continue over next several weeks, including topics related to online water right research, water right sales, and water management organizations. Previous webinars are available on our website, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

In the fourth COVID-19 webinar, Laura Schroeder and Wyatt Rolfe discussed how to conduct due diligence on water use rights. The webinar originally aired on May 6, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here! Stay tuned to our blog for announcements for information about the next webinars. You can watch previous webinars in the series here.

Learn the basics about water use rights in property transactions and determining if any issues are present. Receive practical information to locate any “red flags,” the most common issues encountered in water use right due diligence, including those related to small utilities. Topics will include:

• Why conduct a water use right due diligence review?
  • What gets missed in the typical process.
• What water use rights do I have?
  • General overview of water right types.
• What are the major issues encountered with water use right due diligence?
  • Discussion of forfeiture, abandonment, deviations from allowed uses, compliance, and conditions of use.
• What red flags are associated with water use right due diligence?
  • Learn the most commonly encountered issues and special considerations for cannabis producers.
• What special considerations pertain to water utilities and water providers?
  • Consider the issues of purpose, water management and conservation planning, and service boundaries for public water providers.

The COVID-19 Webinar series continued over several weeks, including topics related to using the OWRD website to locate information and real property issues associated with water use rights. All webinars are available on our website, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

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

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

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

The COVID-19 Webinar series continued the following several weeks, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Other webinars covered common water-related issues, including due diligence reviews in water use rights. Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!

By Laura A. Schroeder and Tara J. Jackson

The answer to this question may depend on the paperwork you have to document domestic water use at the current or planned residence. When either a building permit or financing is required on a rural residential property, the permitting authority or lender will likely require that the domestic water use provided to the residence has either (1) a water use right for a surface water source or (2) a groundwater well that is properly recorded with Oregon Water Resources Department (“OWRD”) as a groundwater use that is exempt from permitting and bearing a well ID tag. ORS 537.130, 537.545(5)-(6), and 537.789.

As hinted at above, domestic water use from a surface water source is not exempt from OWRD’s permit requirements, meaning it is illegal without first obtaining a water use right from OWRD, while domestic use of groundwater within certain limits is allowed with no water use right. ORS 537.141 and 537.545(1)(d). Seems pretty straight forward, right? If the source of domestic water for your residence is above ground, you need to provide your lender or permitting authority proof of your water use right. If the source of domestic water for your residence is below ground, you need to provide proof of proper recording of the exempt use and that the well is fitted with an OWRD issued well ID tag. BUT WAIT, the domestic water use for your property is supplied by a spring? Well, now the question becomes complicated. Is the spring water, surface or groundwater?

If the spring comes to the surface without a “spring box,” possibly considered a well casing, OWRD will qualify the source as a surface water source requiring a water use right, unless OWRD finds that the source is not regulated as “public waters” because it does not leave the boundary of a private property.[1] However, OWRD rarely finds that water rising to the surface is not leaving the private property so this “private water” exception will not be routinely applied by OWRD unless proven by way of a court proceeding.

To obtain a surface water use right for domestic use of the spring at the property, the use would have had to be (a) registered (ORS 539.240), (2) adjudicated by a Court issuing a decree upon which a certificate of water right would be issued by OWRD (ORS 539.140 and 539.150), or (3) applied for and permitted through OWRD’s surface water permitting statutes and rules (ORS 537.130, 537.140; 537.150, 537.153, 537.170, and 537.211; OAR 690-310 and 690-320). Under the third option, OWRD permitting, a two-year processing window can be expected, even if the statutes and rules provide that water is available for such use.

Up to 15,000 gallons of water per day may be used from a groundwater source for domestic purposes under the exemption provided by ORS 537.545(1)(d). Oregon law defines groundwater as “any water, except capillary moisture, beneath the land surface or beneath the bed of any stream, lake, reservoir or other body of surface water within the boundaries for this state, whatever may be the geological formation or structure in which such water stands, flows, percolates or otherwise moves.” ORS 537.515. Accordingly, if development of the spring required excavation this may indicate that the source of the spring would be characterized as groundwater. For example, if the spring comes to the surface with a “spring box,” the water may then be considered groundwater by OWRD. However, at the current time, it is our experience that OWRD will typically find springs to be surface water. Moreover, if OWRD finds the source of a spring developed by excavation, such as a “spring box,” to be groundwater, it may then choose to regulate the “spring box” or similar structure for failing to meet well construction standards. ORS 537.775 and 537.787.

In addition to the uncertainty as to whether OWRD will characterize your spring as groundwater, such that your domestic use will be allowed without a permit, currently OWRD’s administrative rules only accommodate recording of exempt groundwater use registrations for wells. OAR 690-190-0005. Springs are not included in the statutory definition of a well.[2] As a result, a spring similarly does not qualify for a well ID tag. Thus, while use of a spring for domestic purposes without obtaining a water use permit may be allowable under Oregon law, it may not be possible to document the use to the standard that may be required by your lender or permitting authority.

Further, all wells may not be treated equally in the eyes of a lender or permitting authority. While reliance on ORS 537.545(1)(d) for the right to use water for domestic purposes without a permit from a well does not hinge on OWRD’s characterization of the water’s source, as is the case for a spring, it may still prove hard to obtain documentation for certain wells that will satisfy a lender or permitting authority’s requirements. For example, OWRD’s rules accommodate and require recording of exempt groundwater uses from new wells constructed after July 22, 2009. OAR 690-190-0005(2). Thus, while domestic use from wells constructed prior to this date is still allowed under the exemption, the use will not be recorded.[3] OWRD established the process for obtaining well ID tags in 1996. Accordingly, wells constructed prior to 1996 may not bear a well ID tag, but OWRD will issue a well ID tag for wells constructed prior to 1996. ORS 537.791. In the case where the exempt groundwater use from a well is not recorded, a lender may agree to move forward with only documentation that the well is furnished with the required ID tag, but such a determination, is dependent upon the lender.

THE BOTTOM LINE:  We love water use right puzzles here at Schroeder Law, but if you have a choice, the most expedient and sure method to move forward smoothly with the building permit or loan approval for your rural residential property is to work with a water well drilling professional to drill an exempt well, tapping the underground water source, and using the exemption for domestic use under ORS 537.545(1)(d). Otherwise, the documentation and analysis becomes complicated quickly!

The Oregon Groundwater Association is a great resource for information on reliable water well drilling professionals. Check out their website here!

Stay tuned to Schroeder Law Offices’ blog for all things water!

[1] Norden v. State by & Through Water Resources Dep’t, 153 Or App 127 (1999)

[2] ORS 537.515(9) defines well as “any artificial opening or artificially altered natural opening, however made, by which groundwater is sought or through which ground water flows under natural pressure or is artificially withdrawn.” The statute goes on to say that a well “does not include a temporary hold drilled for the purpose of gathering geotechnical groundwater quality or groundwater level information, a natural spring or a hole drilled for the purpose of:…”

[3] OWRD rules also require an exempt groundwater use from a well that was converted after July 22, 2009 to allow groundwater use for purposes that are exempt under ORS 537.545 after July 22, 2009 to be recorded. OAR 690-190-0005(2).

In the second COVID-19 webinar, Laura Schroeder and Sarah Liljefelt discussed what to do when you receive a notice of cancellation of your water right in Oregon. The webinar aired originally on April 22, 2020 from 12:00 PM to 1:00 PM. You can view the webinar here!. Stay tuned to our blog for announcements for information about the next webinars! You can view the other webinars in the series here.

Learn the basics about water rights cancellation, including the types of cancellation applicable to different water use rights, the steps in the process, and how to address or challenge the agency’s cancellation decision. Receive practical information to protect your water use rights, determine if water use rights are in good standing when purchasing new property, and conduct assessments of the water use rights on property you already own. Topics will include:

• Regulation of Exempt Uses
  • What are exempt uses?
  • Can exempt uses be cancelled?
• Cancellation
  • What kinds of water use rights can be cancelled?
  • What is the process for cancellation?
  • How does one address or challenge a cancellation decision?
• Voluntary Cancellation or Abandonment
  • What is abandonment?
  • Why would anyone abandon a water use right?
• Avoiding Cancellation
  • How can a person protect their water use rights from cancellation?
  • What are the best kinds of records to maintain to protect water use rights?

The COVID-19 Webinar series will continued in following several weeks, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Later webinars will cover common water-related issues, including well construction issues, and illegal water uses. Follow Schroeder Law Offices’ Water Law Blog for the most up to date information and announcements!