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!

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!

It’s that time of year again! As 2018 draws to a close, Schroeder Law Offices wants to remind Oregon water users that the deadline to submit water use measurements to the Oregon Water Resources Department (“OWRD”) is December 31, 2018.

Many permits and certificates for both surface and groundwater rights contain language specifying the type of meter and frequency of measurements and reporting required in order for the user to remain in compliance with the terms of their water use rights. These requirements are typically along the lines of:

Before water use begins, the user must install a meter or other suitable measuring device approved by the Director at each point of appropriation or diversion. After use begins, the user must maintain the device in good working order.

The user must keep a monthly record of the volume of water diverted, and submit a report which includes these measurements to the Department annually, or more frequently if required by the Director. Further, the Director may require the user to report general water use information, including the place and nature of use of water under the permit.

Not all water users are required to report their water use; therefore, it is important to be aware of the conditions set forth in your permits and certificates and to make sure you remain in compliance.

If the water use reporting condition is included, you can find the reporting form on OWRD’s website here. You can also report your water use online here. You will note that the “water year,” as outlined in the reporting form, runs from October through September, annually.

Schroeder encourages water users with this condition to take meter readings at the end of each month and to keep that information in their files along with a copy of the reports submitted to OWRD annually.

Stay tuned to Schroeder Law Offices’ blog for more helpful tips and reminders, and don’t forget to submit your reports by December 31, 2018!

A lot has changed since 1909, when Oregon enacted its Water Code and the water use permit system began. Obtaining a water use permit can be a lengthy and detailed process. If you’re not careful you can limit the flexibility of your water permit through self-imposed conditions without realizing it.

For example, Schroeder Law Offices recently represented a business that stated on its groundwater permit application that it planned to use drip irrigation. The business did not plan to exclusively use drip, but drip was one form of irrigation used for part of its operation. As a result, the Oregon Water Resources Department (OWRD) proposed to impose a condition in the Proposed Final Order (PFO) that the business would be limited exclusively to drip irrigation. This would have significantly reduced the business’s flexibility and the marketability of its property in the future. However, our office was able to successfully remove the proposed condition from the water use permit that was issued.

This example provides an important reminder to very carefully prepare water use permit applications, and closely review OWRD’s initial reviews, proposed orders, and final orders/permits. Otherwise, water users may be subject to unnecessarily restricting permit conditions. Water use professionals, such as attorneys or consultants, can provide assistance to prepare permit applications and review OWRD documentation regarding the applications. Water use application forms are available on OWRD’s website, https://www.oregon.gov/OWRD/pages/index.aspx. For more information about water right processing see: http://www.water-law.com/water-rights-articles/get-an-oregon-water-right/.

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

This article was drafted with the assistance of Law Clerk Nathan Klinger, a student at Willamette Law School.

On February 1, 2018, the Ninth Circuit Court of Appeals upheld the “groundwater conduit theory,” whereby a discharge of pollutants into groundwater that is fairly traceable to a navigable surface water is the functional equivalent of a discharge directly into the navigable water body for the purpose of regulation under the Clean Water Act. This argument has been proffered many times in the past, but prior to this case this theory had, at best, narrow and limited success. The full Ninth Circuit case is available here.

The case involved the County of Maui, Hawaii and its wastewater treatment plant. The plant uses four wells as its primary means of disposing effluent into groundwater and the Pacific Ocean. The County injects three to five million gallons of treated wastewater per day into its wells, and, according to the County’s expert, when the County injects 2.8 million gallons of effluent per day, the amount of effluent that reaches the ocean is 3,456 gallons per meter of coastline per day. The Court stated this is “roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline.”

Discharges of pollutants may be authorized by permit under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). Jurisdiction under the Clean Water Act requires three things: 1) addition of a pollutant 2) to a navigable water 3) from a point source. This case focuses on the third requirement. Clean Water Act cases hold that a point source is a discernible, confined, and discrete conveyance, which in a lot of cases really means a pipe, ditch, or canal.

Wells do not directly connect to navigable water (in this case, the Pacific Ocean). Instead, the water injected into wells must travel through groundwater to reach the ocean. In 2013, the EPA, Army Corps of Engineers, Hawaii Department of Health, and University of Hawaii conducted what is called a “tracer dye study.” Essentially, they put dye into the wells and then monitored the ocean for the dye. At its conclusion, the study found a hydraulic connection between two of the wells and the ocean.

The Ninth Circuit concluded that point source discharges that travel indirectly through groundwater to a navigable water, is a violation of the Clean Water Act if the discharger does not have a permit. The Court reasoned that “this case is about preventing the County from doing indirectly what it cannot do directly.” Since the County could not build a waste pipe that emptied directly into the ocean without a permit, it could do so indirectly through its wells to avoid the requirements of the Clean Water Act. 

There are currently cases before the Fourth and Sixth Circuits which also implicate the groundwater conduit theory. If the holding by the Ninth Circuit is adopted by other Circuits, it will represent a change for the NPDES permitting program and regulation under the Clean Water Act. On the other hand, if a split develops in the Circuits, it may lead to litigation in the United States Supreme Court.

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

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

As the 2018 irrigation season approaches, and on this eve of March 1^st, please remember to review your water use right permit and certificate documents to remind yourself of any measurements you are required to take!

Many water use permits and certificates require you to track your water use each month and then report your monthly use annually to the Oregon Water Resources Department. For more information about recording and tracking your monthly water use, please visit the Department’s Water Use Reporting page.

Many groundwater use permits and certificates require that a qualified individual record and report the water level in each well under the permit or certificate. This measurement is often referred to as a “static” water measurement. Typically, the measurement must be taken in March and reported within 30 days after it is taken, however you should review your permit or certificate closely to determine if you are required to report and when. Your permit or certificate document will also tell you who is qualified to take this measurement.

Additionally, while not outlined in your permit or certificate, those of you located in a Critical Ground Water Area are required to record weekly flow meter or power meter readings. The Department just released a new map showing groundwater area information that is helpful in determining if these rules apply to you.

Remember, complying with permit and certificate and statutory measurement conditions keeps your water use rights in good standing, making them more valuable to your property!

Stay tuned to Schroeder Law Offices’ blog for more timely reminders this irrigation season!

By Therese Ure and Lisa Mae Gage

Many people are familiar with looking up water right information on Nevada Division of Water Resources (“NDWR”) database and are familiar with reading water right applications, permits and certificates. Is that information reliable enough to conclusively show what your water rights are? The answer is no. Several factors affect the reliability of information found on NDWR’s database and information listed on water right applications, permits and certificates.

NDWR Database

NDWR’s database is not always an accurate reflection of the current standing of a water right. While NDWR strives to maintain its database with the most current and accurate information, you must remember the disclaimer wherein NDWR provides no warranty regarding the accuracy, adequacy, completeness, legality, reliability or usefulness of the information contained within the database. The database is a useful tool to start your search, but it is by no means the last step!

Dual Recording System

Reviewing the database ownership records helps, but often times, water owners forget to “record” water ownership transfers with NDWR after completing the process with the County Recorder. Like the official real property records being maintained by the County Recorder, another set of official records for water rights of use are maintained by NDWR. NDWR updates ownership of water rights, not land, but only upon notification by the water right owner. NDWR has no knowledge of the water use change in ownership until the new owner directly notifies NDWR by filing a Report of Conveyance. Oftentimes new water right holders are unaware of their responsibility to separately notify NDWR of a change in ownership of water rights and therefore NDWR’s listed owner of record may not be accurate.

Water title transfer histories can become vague and confusing, especially when land is subdivided or water rights are expressly transferred off the original place of use property. Following the chain of title of the water rights may take a great deal of time and effort. Most County Recorder offices are updating their systems to allow viewing of recorded documents online, however, research of older documents often times requires physical research and inspection at the County Recorder’s office.

Changes in Water Right Elements

A water right Certificate outlines the elements of a water right at the time it was issued, however these elements can be changed over time. Some of the main “elements” include the source of water, how and when the water can be used, where the water can be used, and the rate and duty the water use. After a permit or certificate is issued, change applications can be filed changing all or a portion of the water use. A water right holder can sell a portion of the right, subsequent permits and/or certificates can be issued for water that is stacked or comingled with the initial water right, or portions of water rights can be lost through cancellation, abandonment and/or forfeiture. It is important to review the entire water right file to verify if any elements of the water use elements have been changed.

Basin Wide Orders

The State Engineer administers water rights in the state of Nevada. Many of the hydrographic groundwater basins are over appropriated and in need of close monitoring. The State Engineer often times issues orders related to groundwater basins that may change terms or add additional requirements to a water use that were not originally listed on the Permit or Certificate. Reviewing information concerning the basin as a whole is an important tool to determining impacts to individual water rights.

It’s no question that water rights are and will always be a very valuable resource. Water right elements, terms and requirements can change over time. While we have outlined a few of the diligence items, often times there is more research that is required. Ensuring water use holders know the terms and conditions of their use will help them stay in compliance in order to continue beneficial use.

On December 19, 2017, Nevada State Engineer issued Order No. 1293, prohibiting the drilling of new domestic wells in the Pahrump Artesian Basin. Previously, the State Engineer designated lands in Pahrump Artesian Basin as coming under the provisions of underground water law through Orders 176, 193 and 205¹. Prior Orders stated that new applications would be denied with very limited exceptions. Recently the State Engineer conducted further investigation into this basin and determined that due to the rate and extent to which groundwater is being depleted, that prohibition of domestic wells under Order No. 1293 is vital to the welfare of the basin.

The State Engineer estimates that the perennial yield of the Pahrump Artesian Basin, or the maximum amount that can be withdrawn to still allow the basin to recharge, is 20,000 acre-feet annually. Yet, the State Engineer estimates that the amount of water from committed rights (amounts of water provided under Permits and Certificates issued by NDWR) amounts to approximately 59,175 acre-feet of withdrawals from the basin. Therefore, the permitted rights authorize almost triple the amount of water that can be withdrawn without impeding the ability of the basin to recharge itself. However, because domestic wells are not subject to permit requirements, this estimated withdrawal number is actually higher as domestic well withdrawals are not included. In fact, Order No. 1293 estimates that there are approximately 11,280 existing domestic wells in the Pahrump Artesian Basin.  Thus, if each well were withdrawing the maximum of 2 acre-feet per year, water withdrawals from the domestic wells alone would exceed the perennial yield. In theory, all wells in the basin may be withdrawing close to 4 times the amount the basin can manage.

Order 1293 prohibits the drilling of any new domestic well, unless a user can obtain an existing permitted right to cover the 2.0 acre feet per year to serve the “new” use. Thus, the only way to obtain a new domestic use will be to go out and buy a water right!  Once purchased, these acquired rights will be “given back” to the basin under a relinquishment process with NDWR while allowing the domestic use to continue without a water right. Further exempted from Order 1293 are domestic wells requiring rehabilitation under Nevada Administrative Code (“NAC”) 534.189, wells requiring reconditioning under NAC 534.188, or existing wells needing replacement.

The domestic well exemption was a great policy for many single families wishing to develop their property. However, protecting our valuable water resources is top priority, and this purchase and relinquishment program will still allow for property development with proper resource protection. For a full reading of Order 1293, please visit http://images.water.nv.gov/images/Orders/1293o.pdf.

¹Nevada Revised Statutes (“NRS”) chapter 534.013 defines domestic use as culinary and household purposes for a single-family dwelling, watering of a family garden and lawn and watering of livestock, domestic animals and household pets. Pursuant to NRS 534.180, if a well is being used for domestic use and the use does not exceed 2 acre-feet per year, the well is exempt from the permitting process under with Nevada Division of Water Resources (“NDWR”) for water use.  

The Oregon Water Resources Department will no longer be issuing water use permits for “nursery operations use” in the Willamette, Sandy, and Goose & Summer Lakes Basins. This decision follows a very long history of the Department’s issuance of nursery operations permits all across the State, including these basins. The Department recently decided to read its Basin Program rules in such a way to not allow this popular and pervasive type of use in these particular basins.

Nursery water use permits are different than irrigation use permits. The “default” characteristics of a nursery use permit include year-round water use, a rate equal to one-fortieth cubic foot per second per acre for containerized nursery plants, and a duty of five acre feet per acre per year for containerized nursery plants. By contrast, irrigation use permits are limited to the “irrigation season” that is typically from March through October, one-eightieth cubic foot per second per acre, and two and a half acre feet per acre (depending on the location). Moreover, irrigation use is limited to artificial application of water to plants, while nursery operations use includes use in nursery facilities for much more than direct application to plants (soil preparation, temperature control, application of chemicals or fertilizers, etc.).

The Department’s Basin Program rules may be found at Oregon Administrative Rules Chapter 690 Division 500 and thereafter. Each Basin Program outlines classified water uses that are authorized within the basin, or within particular stream reaches of the basin. None of the Basin Programs specifically classify nursery operations use as an authorized water use. The Basin Programs do, however, classify irrigation and agricultural water use as authorized uses. Nursery use comes under the umbrella of these two types of water uses. As such, the Department issued nursery operations use permits on a regular basis throughout the State.

Division 500 provides definitions that are particular to the Basin Programs that follow. The definition of “irrigation use” in Division 500 is “the use of water for agricultural water use, cranberry use, irrigation, nursery operations use, or temperature control…” However, this definition is limited to specific Basin Programs, excluding the Willamette, Sandy, and Goose & Summer Lakes Basins. As such, Department staff recently informed us that the Department will no longer issue nursery operations use permits in the Willamette Basin. We assume the Department will have the same opinion as to the Sandy and Goose & Summer Lakes Basins. Further, it is possible the Department will also cease issuing cranberry use and/or temperature control permits in all three basins, depending on the specific classifications in the basins.

It will be very important for new applicants in the Willamette, Sandy, and Goose & Summer Lakes Basins to realize the limitations of different types of water uses available to them in different basins, and to clearly articulate all details of the requested water use. In our recent revision of a pending nursery use application in the Willamette Basin, our office drafted the specific water use conditions we were requesting on behalf of our client to ensure no errors occurred during permitting. Costs will also increase if additional fees must be paid to the Department to request multiple uses (such as irrigation and agricultural use) to replace the more “global” nursery operations use applications.

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

Update:

At the beginning of 2018, the Department rethought its position with regard to ceasing nursery use permits in the Willamette, Sandy, and Goose & Summer Lakes Basins. The Department resumed issuing such permits as of the date of this update. It is important to realize how agency policy and interpretation can shift over time, affecting water use rights in Oregon. This is a good example of that phenomenon.

Do you remember when extensions of time were approved by the Oregon Water Resources Department routinely with ease? That time was over for municipal water providers years ago (see related article); however, until recently, other permit holders simply faced increasing amounts of application paperwork.  Now, that time may be over for every permit holder. Our office has seen requests for extensions of time receive increased scrutiny from the Department as of late.

Recently, a client applied for their first extension of time after investing substantial resources towards diligent development under their water use permit. The proposed final order approving the extension of time was 13 pages long, discussing every single inquiry from the extension application and whether the client’s response was sufficient. Even though the Department is proposing approval, it is clear that such approval will be more difficult to receive going forward.

Certain factors are of extreme importance for water users hoping to obtain extensions of time for their water use permits. Physical construction must begin and be diligently prosecuted during the time to complete construction under the permit or prior extension period. The Department will closely examine how much physical development of the water system has occurred and the permitee’s reasons for not completing construction. The Department will also evaluate and balance financial investment, market and present demands for water, the amount of water available to satisfy other affected water use rights, scenic waterway flows, and habitat needs of sensitive, threatened or endangered species.

Of additional importance is compliance with permit conditions. If a groundwater use permit requires annual static water level measurements following well construction, it is extremely important that the permittee complies with the condition. The same is true for installation of flow meters, submission of water use reports, and more. The Department may deny an application for extension of time for less than full compliance with all permit terms.

Applications for extensions of time have increased in length and complexity over the years. The current permit extension application is 12 pages long. (Extension of time application forms are available here.) Our office routinely completes extension of time applications for clients. It takes time to provide all the development details and documentation now required by the Department. Do not wait until the day before your permit expires to start your extension application. We recommend seeking assistance one year before your permit or current extension term expires to consider if an extension can be avoided, and, if not, making sure all conditions are met before an extension of time application is filed.

It is more important now than ever to make sure you have all your “ducks in a row” when using water under a permit and seeking an extension of time. Stay tuned to Schroeder Law Office’s Water Law Blog for more news that may affect you!

The State Engineer held informational meetings on July 17 through July 20, 2017 regarding its Preliminary Draft Humboldt River Conjunctive Management Regulations. The State Engineer is proceeding through administrative rulemaking process to define how Humboldt River Decreed water rights and groundwater rights will be conjunctively managed. If you were unable to attend the informational meetings, you can view the power point used during these meetings by visiting http://water.nv.gov/HumboldtRiver/Humboldt_regs_Small_Business_July_2017.pdf.

As a brief history, the Humboldt River was adjudicated in the 1930’s and large scale groundwater development began approximately 20 years later. Existing studies support the assertion that groundwater pumping is depleting surface river flows. The groundwater basins surrounding the Humboldt River are over-appropriated as the amount of water withdrawals allotted by water rights exceed the perennial yield. As an alternative to curtailing water, the State Engineer is considering Conjunctive Management Regulations. The main objectives of these regulations are to maximize beneficial use of our limited water supply, allow for continued and uninterrupted groundwater use and provide mitigation to senior Decreed water right holders for conflicts of their delivery of surface water. These regulations aim to allow for replacement of injurious depletions to the senior surface right holders, and if replacement water is not available, to require groundwater users to participate in a basin-wide mitigation plan providing mitigation by financial compensation.

At this stage in the rule making process, the State Engineer is attempting to determine if the regulations are likely to place an economic burden on small businesses, and if so, to determine the extent of the impact. Small businesses can submit economic impact statements to the State Engineer for consideration. There are no current deadlines imposed by NDWR for submission of small business impact statements or comments to statements, however, it is likely that we will see some movement within as little as 30 days.

As the 2017 irrigation season approaches, Oregon water permit and certificate holders may want to review the terms of those permitted and certificated uses for measurement and reporting requirements.

Many groundwater permits and certificates require annual reporting of various water measurements, most notably measurements for static water levels of wells, flow meter readings or perhaps critical ground water area measurements depending on where these uses are located.

Measurements are typically due annually but sometimes are required to be tracked monthly and submitted to the Oregon Water Resources Department. These recordings allow the Department to track changes in water levels and depending on varying levels between the years may allow the Department to require users to discontinue or reduce the rate of their water use.

Our office encourages all water users to closely review the terms of their water permits and certificates in order to understand and be responsible for the requirements and meet the terms of these rights of use. We also provide services to clients including review of water permits, certificates and related documents, refer to qualified individuals to take these recording measurements and courtesy reminder letters to our clients.

For more information on water use reporting please visit the Oregon Water Resources Departments website. For more water news and information, keep reading Schroeder Law Offices blog!

Last month, attorney Sarah Liljefelt organized a tour of the Whooshh Innovations fish passage structure constructed for the Washington Department of Fish and Wildlife on the Washougal River. Members of the Oregon State Bar Environmental and Natural Resources Section attended, including attorneys in private practice, working for the State of Oregon, and public interest.

Whooshh has patented new technology that propels fish through a rubber tube fish canon from one location to another in mere seconds, be the end result a truck to haul fish, or to the other side of a dam as a new type of fish passage. Studies have shown that stress on the fish is lesser in the Whooshh system than traditional fish passage, and the cost is only a fraction of renovating a dam for traditional fish passage.

Check out videos of the Whooshh system (and fish flying through the system) at Whooshh’s website: http://www.whooshh.com/.

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

The Oregon Water Code provides that construction of a water system must be completed within certain time limits from issuance of water use permits (5 years for non-municipal water use permits, and 20 years for municipal permits). ORS 537.230 (“…the holder of a water right permit shall prosecute the construction of any proposed irrigation or other work with reasonable diligence and complete the construction within a reasonable time, as fixed in the permit…”); ORS 537.630. The same provisions allow the Oregon Water Resources Department (“the Department”) to grant extensions of time for completion of construction.

The Oregon Water Code also provides that water use permits may be cancelled when a permittee fails to begin construction within permit deadlines. ORS 537.410(1) (“Whenever the owner of a permit to appropriate the public waters of Oregon fails to commence actual construction work within the time required by law, or having commenced construction work as required by law, fails or neglects to prosecute the construction work with reasonable diligence, or fails to complete the construction work within the time required by law, or as fixed in the permit, or within such further time as may be allowed under ORS 537.230, or having completed construction work, fails or neglects to apply the water to beneficial use within the time fixed in the permit, the Water Resources Commission may cancel the permit on the records in the Water Resources Department as provided in ORS 537.410 to 537.450.”)

In determining whether to grant an extension of time, the Department considers: 1) the cost of the appropriation and application of water to a beneficial purpose, 2) the good faith of the appropriator, 3) the market for water or power to be supplied, 4) the present demand for the water or power to be supplied, and 5) the income or use that may be required to provide fair and reasonable returns upon the investment. ORS 537.230(3); ORS 539.010(5); see also OAR Chapter 690 Division 315. The Department’s general practice has been to liberally grant extensions of time if the permittee is able to show a financial investment to begin construction and/or water use under the permit and a reasonable explanation for the delay. Permit extension of time applications are available on the Department’s website at: http://www.oregon.gov/owrd/PUBS/docs/forms/App_Ext_WR_perm.docx.

Recently, the Department has added the following condition to new permits: “The deadline to begin construction may not be extended.” Although the new permit condition does not mark a departure from the Oregon Water Code’s provisions, it does mark increased seriousness from the Department about what is necessary to obtain an extension of time to develop a new water use right. Permittees should be sensitive to the change in climate regarding beginning construction and applying water to beneficial use.

Now, more than ever, it will be important to begin construction within the 5-year deadline in order to avoid permit cancellation. “Actual construction” means “physical work performed towards completion of the water system, which demonstrates both the present good faith of the water right permit holder and the water right permit holder’s intention to complete the project with reasonable diligence.” OAR 690-315-0020(3)(d)(A). This does not include planning, securing financing, entering into contracts, surveying, or purchasing (but not installing) equipment. OAR 690-315-0020(3)(d)(B).

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

Oregon Revised Statute 537.225 was enacted in 2013, allowing water use permit holders with irrigation, nursery, temperature control, stock watering, or agricultural water uses and subsequent completion dates to apply for assignment of all or part of the water use permit, and for the issuance of a replacement water use permit that reflects that assignment. Thus, for the first time in Oregon, the Oregon Water Resources Department (“OWRD”) may issue a new permit after an assignment, rather than merely recognizing the assignment in OWRD’s records. Moreover, for the first time in Oregon, shared water use permits may be split so that holders of shared permits can move forward with perfection at their own pace, or make changes through the permit amendment process without affecting the other permittee’s portion of the shared water use permit.

Oregon Administrative Rule (“OAR”) Chapter 690 Division 325 was enacted in 2014, outlining the requirements for split permit applications. The OWRD forms for split permit applications were completed at the end of 2014, and are available at: http://www.oregon.gov/owrd/Pages/pubs/forms.aspx. OWRD disseminated information about the new split permit application to Certified Water Right Examiners so that they may advise their clients around the State of the new opportunity.

As provided in OAR 690-325-0060(1), the applicant is required to pay OWRD the full cost to processing the split permit application. OWRD is estimating costs in a similar manner to its Reimbursement Authority Program, and provides an Applicant Agreement for a nonrefundable fee of $125.00 that outlines the estimated costs for processing the application. The applicant can then sign the agreement and pay the estimated costs to move forward with their application.

This month, OWRD issued its first Proposed Final Order proposing to approve a split permit application, and the Final Order is set to issue at the end of January, 2016. The estimated cost outlined in the relevant Applicant Agreement was $585 (in addition to the $125 nonrefundable fee for estimate).

OWRD and water use permit holders are still waiting to see how efficiently the new split permit process works, but we are very excited about the new opportunities this process provides! We look forward at Schroeder Law in assisting permit holders in Oregon through this new process.

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

By Derek Bradley

Most municipalities have water use permits reserved for their current needs and projected future growth, typically in the form of one or more municipal water rights of use or permits. These water use permits have timelines for the cities to fully develop the beneficial use entitlement. Based on current population and use, cities may not be able to apply the full volume of water to beneficial use by the timeline allowed in the water permit. In order to retain the volume allowed and priority of the water use permit, a municipality may request an extension of time from the Oregon Water Resources Department (OWRD) for additional time to develop the volume of water allowed in their permit.

The Oregon Senate is currently considering Senate Bill 712 (SB712) that could impact how much of the permitted but undeveloped portion is available for future development by Oregon municipalities.  This bill concerns municipal water permits requiring extensions for development that currently are subject to fish persistence conditions, or restrictions on water use to maintain stream flows for wildlife.

SB712 is in response to a 2013 Oregon Court of Appeals ruling, WaterWatch of Oregon v. OWRD, 259 Or. App. 717, decided on December 11, 2013.  In this case, the Court held that the reference to “undeveloped portion of the permit” in ORS 537.230(2), which was passed in 2005 as House Bill 3038,  “is to be measured by reference to the maximum rate of water applied to beneficial use before the expiration of the document deadline in the permit or last-issued extension.” Id. at 742.  The Court’s holding required the fish persistence condition to apply to all water use  not yet  put to beneficial use when the municipality’s previous permit terms or extension expired. For example, if a city held a water right of use by permit to 10 cubic feet per second (cfs) and can demonstrate use of 3 cfs at the time the permit condition expired for development, a condition in granting an extension of time would require fish persistence conditions attached to the remaining 7 cfs.

If the legislature passes SB712, this extension system will change so that the undeveloped portion of the water right permit will be considered to be the volume of water being used by either December 11, 2013, or the time specified to complete construction to perfect the water right in the permit or last approved extension. This alters the quantity of water subject to fish persistence conditions to a specific set date for all municipality extension applicants which would hopefully limit the current unending rounds of litigation that the municipal extensions are currently requiring. This change would also eliminate the large backlog of permit extension applications presently pending with OWRD.  Without this change many cities will have conditions placed on water use they have already begun putting to beneficial use because of the large lag time between expiration of the permit terms and granting of the extension application.  This bill would keep municipalities from the retroactive application of fish persistence conditions being applied to water use presently in use, with some of that usage dating back to the 90s.

Some groups focused on fish habitat view this bill as an attempt to change the terms of the 2005 compromise bill.  However, the intervening litigation since passage of the 2005 act illustrates that the “fish persistence” requirement is procedurally unworkable.  In the meantime, the Oregon courts continue to refuse to adopt the “growing communities” doctrine that would have mitigated the issues presented by the “fish persistence” ideals of fish habitat advocates.

Of course, municipalities are interested in having as much water available for development for their future growth as possible. In addition, the large investment municipalities must make require them to experience as little disruption as possible. This bill seems particularly fair to smaller municipalities that have limited resources to litigate the nuances of the “fish persistence” requirement and need their dollars to invest in water infrastructure with their less flexible water supplies and interconnects to other municipalities and sources.

While it is easy to see the concern of groups opposing SB712, (as it can take well over a decade for an extension to be approved and a municipality can increase their water usage substantially in that time), passage of SB712 will ultimately affect only a small amount of Oregon’s surface source waters.  Once all the current applications are processed by OWRD, all undeveloped municipal permits will have at least a portion of their permitted volumes subject to fish persistence conditions.  With a substantial backlog in extension applications (some cases extending over a decade and a half in water investments already made by some municipalities), SB712 will provide certainty for this state’s towns and cities as they plan how to manage their water use and development for future growth.