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!

As the first COVID-19 Webinar in new weekly series, Laura Schroeder and Therese Ure discussed the ins and outs of how watermasters regulate water in Oregon and Nevada. The webinar aired originally on April 15, 2020 from 12:00 PM to 1:00 PM.  You can view the webinar here! Stay tuned to our blog for announcements and information for the next webinars! You can view other webinars in the series here.

Learn the nuts and bolts of how watermasters regulate water, issue shut off orders, and the rules watermasters must follow to distribute water. Receive practical tips to challenge a watermaster’s decision, potentially preventing enforcement until the decision is reviewed. Topics will include:

• State Watermasters & Agency Roles
  • What are “existing water rights of record?”
  • How a “call” works when insufficient water is available for senior water users
• How Watermasters Enforce Water Codes
  • Oral and Written Orders
  • Final Orders
  • Service and Notice
• Final Order Validity
  • The components of a valid watermaster order
• Review of a Watermaster’s Order
  • Reconsideration, judicial review, and associated timelines
  • Stays in enforcement pending review

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! Upcoming webinars will cover common water-related issues, including water use right cancellations, well construction issues, and illegal water uses. Follow our blog for the most up to date information and announcements!

Was your upcoming water law conference cancelled? Or are you itching to learn more about Oregon water law, but could never attend one of Schroeder Law Offices speaking events? Stuck inside due to Covid-19 orders? You’re in luck! Laura Schroeder will be offering a series of free webinars this spring covering a wide range of water law topics on our website.

The current schedule will include:

• How to React to a “Red Tag” From the Water Master Shutting Off Your Water Righted Diversion? (April 15, 2020): This webinar will discuss the role of watermasters, the rules they enforce, and how to challenge incorrect watermaster decisions.
• What to Do When You Receive a Notice of Cancellation on Your Water Right? (April 22, 2020): This webinar covers the grounds for cancellation used by the Oregon Water Resources Department, how a cancellation is initiated, and how to protect your water rights of use!
• What Options Are Available When Your Receive Notice Your Well Construction is Non-compliant? (April 29, 2020): This webinar will review Oregon Water Resources Department and Oregon Health Authority rules regarding well construction, why well construction matters to water rights of use, and options to resolve the problems.
• How to Prepare a Response to a Notice of Violation Concerning Illegal Water Use? (May 6, 2020): This webinar provides an overview of the appeal process for challenging a notice of violation, what tools are available, and how the process works.

Further updates and instructions to attend will be coming soon. Stay tuned to our blog receive updates on these upcoming events and other water news!

National Ag Day is March 24, 2020. It’s a special day to recognize and celebrate the contributions of agriculture. We should all “thank a farmer” at every meal and every time we get dressed. Therefore, National Ag Day is an organized effort to do just that. See the Agriculture Council of America’s website for more details: https://www.agday.org/.

Especially today, the agricultural community is showing its every-day-grit. It does so by continuing its important calling of feeding and clothing the world in the face of the current COVID-19 outbreak. Today, children in rural families are home due to school closures. They are working alongside their parents to provide food and fiber for the other 99% of the population. Safety requires shutting down many industries to avoid spreading the virus. However, the agricultural and trucking sectors are working as hard as ever to ensure the rest of us have what we need to weather the storm. Planting, harvesting, milking, and calving do not stop in the face of a pandemic.

COVID-19 Restrictions Exclude Agriculture

Oregon Governor Kate Brown issued an executive order on March 17th prohibiting gatherings over 25 people. Certain organizations (like farmers markets) didn’t know whether they would need to shut down operations as a result of the order. Consequently the Oregon Department of Agriculture issued guidance on March 20th. This guidance identified farmers, ranchers, food processors, farm workers, truckers, and service suppliers as “essential services” that are not required to shut down in response to the Governor’s order.

Schroeder Law Offices extends a giant “THANK YOU!” to the agriculture community. Agriculture is the backbone of the Nation on National Ag Day, during times of illness, and every day! It is truly our pleasure to provide water rights support to the agriculture community on National Ag Day and always.

Photo: The children of Bingham Beef in North Powder, Oregon, hearing “another job” during their extended “spring break.” Photo credit: Carly Carlson.

Oregon dairy farmers produce great milk products for the northwest! Jakob Wiley attended the Oregon Dairy Farmers Association (“ODFA”) conference in Salem, Oregon this February. The conference included a fascinating keynote presentation by Alison Van Eenennaam of UC Davis. Her presentation addressed the intersection of climate change, dairy products, and cultured meat. Cultured meat is difficult to manufacture at any commercial scale. Her conclusion: cultured meat won’t be available anytime soon. 

Additionally, other topics at the Oregon Dairy Farmers conference included the carbon footprint of dairy products and the looming carbon cap and trade bill, resulting in the flight of Republican lawmakers just before and during the conference. A presentation by Troy Downing at the OSU Extension Service discussed the carbon cycle and its effects on climate. Likewise, David Grimes of the World Meteorological Organization discussed increasing variability in climate. Later, attendees mingled during the receptions with ODFA leadership, other dairy farmers, local businesses, and state lawmakers (at least those still in town!).

At least 200 multi-generational dairy farms provide milk products to Oregon consumers. All of these dairy farms have a “Grade A” license. These licenses allow production, transportation, and processing of milk for sale. You can find more information about dairy licenses here.

Later, attendees tried new products from local dairy companies, sampled ice cream, and visited with local vendors. You can find more information about the Oregon Dairy Farmers conference here. Jakob continues to support ODFA members and assist with their water right problems!

Oregon State University’s Family Business 360 Series for 2019-2020 will feature Laura Schroeder in a webinar on February 20, 2020. The webinar will have two parts. 

The first is an introduction to water rights drawing on Laura’s nearly 30 years’ experience as an Oregon water lawyer.

The second part addresses Due Diligence for Sellers and Buyers. This second part includes researching water rights associated with a property; assessing current use and status of water rights; and identifying related water rights.

You can watch this fast paced webinar at noon on Thursday, February 20, 2020. It is free to watch and open to the public. To watch it you must sign up here to receive a link to the presentation. Just scroll down to the February 20 webinar here, click the link and fill out the form. After you sign up the program manager will send your link to the webinar via email during the week of February 17.

More and more in Oregon, hopeful groundwater use applicants are finding that proposed uses of groundwater are denied by the Oregon Water Resources Department due to the agency’s finding of hydraulic connection with surface water sources and the potential for groundwater use to cause substantial interference with existing surface water rights. When the agency makes such findings, the Department looks at whether surface water is available to support the proposed new groundwater use, and, in most cases, it is not – either the administrative basin rules prohibit the new use, or surface water availability data shows that surface water is not available. In short, the proposed groundwater source is too connected to surface water for the agency to approve the application.

But an enigma exists in Oregon water law where the same source of groundwater is not connected enough to surface water to allow a surface-water-to-groundwater transfer. Transfers allow water right holders to change the terms of their water use rights. In some cases, surface water right holders may wish to change their surface water points of diversion to groundwater wells. That type of change is authorized under Oregon law, but the administrative rules impose certain distance and connectivity requirements. First, the well cannot be more than 500 feet from the authorized point of diversion, or else a geology report must accompany the application to attest to the connection between the sources of water. Second, the proposed groundwater use must affect the surface water source “similarly,” meaning the use of groundwater would result in stream depletion of at least 50 percent of the rate of appropriations within 10 days of pumping. The Oregon Water Resources Departments uses stream depletion modeling to determine if this factor is met.

It is often difficult for water users to predict whether their proposed use of groundwater will affect the surface water source similarly, especially because the Oregon Water Resources Department is far from consistent when it comes to its application of various models. However, in our experience, certain factors heavily affect the outcome of surface-water-to-groundwater transfers. For example, is the well existing or proposed? If the well is existing, the source aquifer for the groundwater use is certain, whereas the Department may make assumptions related to proposed wells. Applicants often do not include a certain depth figure for a proposed well in their transfer application because their well driller will need to make that determination during the drilling process. If the majority of the wells in the area of the proposed well are drilled into a confined aquifer, the Department is likely to assume that the proposed well will be similarly constructed in order to be productive, and may deny the application on the basis that the source of groundwater pumped from the proposed well will not be connected enough to the surface water source. Thus, the proposed source of groundwater should be unconfined, and the proposed well should be drilled extremely close to the authorized point of diversion to allow the applicant the best chance of success.

All too often, we talk to water users who were advised by other consultants that surface-water-to-groundwater transfers are automatically approved so long as the proposed well will be within 500 feet of the authorized surface water point of diversion. That is not the case! It can be difficult to get the Oregon Water Resources Department’s approval on these types of transfers, and therefore it is very important to understand the factors that affect the agency’s decision and the water user’s options.

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

The adoption of efficient water technologies is identified as a goal under Oregon Water Resources Department’s (“OWRD”) 2017 Integrated Water Resources Strategy (https://www.oregon.gov/OWRD/programs/Planning/IWRS/Pages/default.aspx). For agricultural uses, weather-based irrigation, soil moisture controls, computer controlled irrigation, and piping and drip irrigation systems are being developed to substantially reduce the amount of water applied to land for the same use. At first glance, the adoption of efficient irrigation technology appears to be a “no-brainer” with few downsides. However, the problem can be more complex than it first appears.

A core tenant of prior appropriation is the prevention of “injury” to existing water rights by reducing water available to fulfill existing rights of use. A component of a water right is the “consumptive use” or the amount of water for which the water user loses control usually from a described place of use or otherwise does not return to the source, the excess becomes available for subsequent use. Efficient irrigation technology alters irrigation’s consumptive use and runoff, sometimes reducing the water available to other water users that were benefitting from the “waste” created by inefficient irrigation techniques.

Often, inefficient irrigation seeps into shallow aquifers, sometimes contributing to surface streams days, months, or years later as return flow. Oregon’s conjunctive management rules have attempted to jointly regulate surface and groundwater sources, as described by Oregon Administrative Rules, Chapter 690, Division 9, yet these rules do not directly account for the effects of irrigation seepage on return flows. By encouraging efficient irrigation technologies, OWRD’s strategic planning might inadvertently cause injury to downstream water users that benefit from the increased return flow due to current irrigation techniques.

The United States Supreme Court (“Court”) addressed this issue in the case Montana v. Wyoming. 563 U.S. 368 (2011). The Yellowstone Compact distributes water of the Yellowstone River, which flows north from Wyoming into Montana. Water users in Wyoming adopted the use of more efficient sprinkler irrigation systems. The sprinklers increased the consumptive use portion of the water withdrawn compared to the earlier flood irrigation where a portion of the excess seeped into the ground. Montana alleged that the switch in technologies reduced seepage and runoff by 25% in some locations while still diverting the same quantity of water. In short, Montana lost access to water due to the increase in “efficiency” by Wyoming water users.

The Court decided that the switch did not cause injury to Montana water users, since these states appeared to only apply these rules to changes in “place of diversion, place or purpose of use” and not to changes in “crop changes or day-to-day irrigation adjustments or repairs.” The Court reasoned that a switch to efficient irrigation was more like an adjustment or repair than a change that would prompt the injury analysis. Likewise, the Court reasoned that the transition to sprinklers was akin to recapture doctrines under Wyoming and Montana, which allow water users to reuse water still remaining on their land after initial use. The Court reasoned that sprinklers are a form of efficient reuse of water rather than a fundamental change in water use supporting injury. The Court decided that Wyoming water users did not violate the Yellowstone Compact by using efficient irrigation technologies, even when significantly less water flowed to Montana.

The United States Government Accountability Office has recently released a report on irrigation technologies and their effects on return flows: https://www.gao.gov/products/GAO-20-128SP?utm_campaign=usgao_email&utm_content=daybook&utm_medium=email&utm_source=govdelivery#summary. The report notes that efficient irrigation can expand the area of irrigation, enabling more production, using the same volume of water. At the same time, the report identifies that return flows might be significantly reduced and might diminish water availability for downstream users.

The key issue to consider is if water that seeps into an aquifer is considered a part of the consumptive use or whether it is returned to a source for further use. If consumption only includes the volume of water used by plants, other water users might have a right to the runoff from inefficient irrigation practices (which fits more with Oregon’s conjunctive management policies). If consumption is any water placed on the land without regard to the destination of the water applied, any reduction in return flow might not be considered an injury. As efficient irrigation practices are increasingly adopted, the dark side of decreased runoff might rise as a real issue in the future!

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

Reports of a broken barge lock at the Bonneville Dam on the Columbia River surfaced on September 9th. The crack was discovered last week and crews began working Monday morning on repairs. The cause of the damage is unknown. To begin the repairs, the crews must first demolish the cracked concrete section. It remains unclear, however, when the repairs will be complete.

Navigation locks allow barges to pass through the concrete dams that were built across the Columbia and Snake Rivers to generate hydroelectricity for the West. A boat will enter the lock which is then sealed. The water is then lowered or raised inside the lock to match the level of the river on the other side of the dam. When the levels match, the lock is then opened and the boat exits.

The concrete that needs to be repaired acts as the seal for the lock. The damage to the concrete at the Bonneville Dam resulted in significant leaking—enough that water levels were falling when the lock was in operation. Thus, immediate repair was necessary.

The Columbia River is a major shipping highway and the shutdown means barges cannot transport millions of tons of wheat, wood, and other goods from the inland Pacific Northwest to other markets.

Eight million tons of cargo travel inland on the Columbia and Snake rivers each year. Kristin Meira, the executive director of the Pacific Northwest Waterways Association said that 53% of U.S. wheat exports were transported on the Columbia River in 2017.

According to the U.S. Army Corps of Engineers, about $2 billion in commercial cargo travels the system annually, and it is the top export gate in the U.S. for wheat and barley and the number two export gate for corn.

This shutdown comes as terrible news for farmers in inland Oregon, Washington, and Idaho trying to ship their wheat out. Rob Rich, vice president of marine services for Shaver Transportation, said that farmers truck their wheat to 27 inland grain elevators where it is loaded onto barges headed to the Pacific Ocean. He also stated that rail and trucking are not reliable alternatives.

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

Beginning Tuesday, September 3, Schroeder Law Offices, P.C., resumes regular office hours:

Monday through Friday
8:00 am – 5:00 p.m.

Schroeder Law will be closed, Monday, September 2, to observe Labor Day.

This summer we experimented with a nine day rotation, Monday through the next Thursday, 7:30 am – 5:30 pm. The tenth day, every other Friday, either the Reno or Portland office was closed covering work for the other office alternatively.

In an emergency, please phone or email your attorney directly. Our goal is to return your call or email within 24 hours.