Showing Diligence in Water Use by Tracking Water Use Meters
Due to recent crackdowns by the State Engineer in Nevada regarding both forfeitures and cancellations of groundwater rights not in full use, it is important to keep records of your water use. One method to show use is by recording your meter readings. This is important both for permitted wells and certificated wells respectively, to provide evidence to support a Proof of Beneficial Use as well as evidence of continued use.[1]
Many groundwater permits/certificates require monthly, quarterly, or annual reporting to the Nevada Division of Water Resources. If your use so requires recording and reporting, make sure you meet your specified deadlines to file your meter reading reports. If your wells are not metered, please be sure to verify whether you are required to maintain a meter. We predict that nearly all wells in Nevada will eventually require metering.
Schroeder Law Offices provides a routine monthly meter reading reminder email as a service to our clients. If you are a client of ours and wish to receive a monthly meter reading reminder, please request to be added to the “Well Meter Reminder” list by emailing request to counsel@water-law.com.
[1] Attorney Therese Ure assisted in the drafting of the legal issues discussed in this blog.
Montana Recognizes Interconnection of Groundwater and Surface Water Systems
The Montana Supreme Court recently issued its decision in the long fraught dispute about exempt groundwater wells. The ruling by the Montana Supreme Court in The Clark Fork Coalition v. Tubbs, will protect the rights of senior water users from exempt groundwater wells that often deplete the amount of available surface water.[1]
The Montana Water Use Act exempts certain groundwater appropriations from the state’s permitting process if the groundwater appropriation pumps below a certain threshold and is applied to a limited area. This type of exemption is common in water use acts in other states, including Oregon and Nevada. However, Montana’s Water Use Act has an exception to the exemption, which requires a permit for any “combined appropriation” from the same source by multiple wells that exceeds 10 acre-feet per year.[2]
In 1993 the Montana Department of Natural Resources and Conservation (“DNRC”) amended its 1987 administrative rule, interpreting the term “combined appropriation” within the Water Use Act’s exception to the exemption. The DNRC’s 1993 rule (the rule in effect through the deciding of this case) stated “combined appropriation” means “groundwater developments, that are physically manifold into the same system.”[3] In application, this rule allowed groundwater wells to be drilled and as long as the appropriator did not connect the wells, even though the wells drew water from the same source, the appropriator could avoid obtaining permits for the wells and could end up appropriating a limitless amount of water from the same source.
The Montana Supreme Court determined the DNRC’s rule interpreting the term “combined appropriation” in the Montana Water Use Act improperly allowed these infinite withdrawals from the same source. The Montana Supreme Court recognized that the purpose of the Montana Water Use Act is to protect senior water right users from appropriation by junior water right users when there is not enough water physically available. Therefore, the Montana Supreme Court invalidated the 1993 rule and determined the DNRC must issue a new rule reflecting the need to recognize the effect that multiple wells drawing from the same source have on other water appropriators.
Many states, like Montana, have exemptions that allow groundwater wells to be drilled for specific purposes without going through any sort of permitting process to determine if the well will have an effect on water availability in the region. Additionally, many states, Nevada being one, continue to manage groundwater and surface water as two separate systems, rather than through conjunctive management. The failure to recognize the interconnectedness of groundwater and surface water and the cumulative effect of exempt wells on water availability in a region leads to over appropriation and fails to protect senior appropriators.
Conjunctive management is continuing to gain more traction; however, there is still much discussion about how states can implement this new management approach. Schroeder Law Offices Shareholder Therese Ure will be adding her voice to the conversation at the International Commission on Irrigation and Drainage’s World Irrigation Forum in Thailand, November 6th – 12th. Attorney Ure’s paper that was accepted for the Forum discusses Nevada’s failure to conjunctively manage its groundwater and surface water systems, including the effects of mine dewatering in such a disjunctive system and suggestions for creating a “dynamic” system of water management.
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news about the upcoming World Irrigation Forum!
[1]The Clark Fork Coalition v. Tubbs, 2016 MT 229 (Mont. 2016).
New laws and legislation may affect you, stay tuned for tomorrow’s work session on topics of adaptive management, domestic use, cloud seeding, basin management, and mine dewatering!
Nevada’s Legislative Commission’s Subcommittee to Study Water will be holding a meeting on Friday morning, August 26, 2016 at 9:00AM at the Legislative Building, Room 4100, at 401 South Carson Street in Carson City.
Items on the agenda include the “Work Session Document” containing recommendations received by the Legislative Commission’s Subcommittee during the 2015-2016 Legislative Interim. This document is designed to assist the subcommittee members in determining which recommendations will be forwarded to the 2017 session, and what other actions the Subcommittee will endorse.
For those who may not be able to attend the meeting in Carson City, it will also be broadcast live over the internet via http://www.leg.state.nv.us, and can be viewed or listened to by clicking the link for “Calendar of Meetings/View” in the top right-hand corner of the page.
Items in the agenda as well as the Work Session Document and other information pertaining to the meeting can be found on the Nevada Legislature website under the “Meetings” tab. For written copies, please contact the Research Division, Legislative Counsel Bureau at (775) 684-6825.
A PDF link to the agenda including the Work Session Document can be found here.
New: Harney Valley Groundwater Area of Concern
Greater Harney County Groundwater Area of Concern
The Oregon Water Resources Commission’s (OWRC’s) rulemaking for the Greater Harney Valley Groundwater Area of Concern (Area of Concern) became effective on April 15, 2016. The new regulations limit pending and new applications for groundwater use in the Malheur Basin. Citing concern over lowering groundwater levels in the region, OWRC passed the new regulations to limit new water development until the Oregon Water Resources Department (OWRD) can adequately study the basin’s groundwater. This regulation is a component of the Malheur Basin Program. The drafts, maps, and rules are available at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.
Over a year ago, OWRD stopped issuing new ground water permits within the Area of Concern. Until the most recent rulemaking, however, no rules were in place allowing OWRD to halt permit processing and issuance. Usually, OWRC will create by rule Critical Groundwater Areas, Groundwater Limited Areas, and Serious Water Management Problem Areas prior to OWRD ceasing to issue new permits.
OWRC can designate Critical Groundwater Areas for multiple reasons, including declining groundwater levels, substantial interference between wells, overdraft of groundwater, or water quality degradation. OWRD must indicate the boundaries of the area and review the designation at least every 10 years. The designation allows OWRD to, for example, close the area to any further appropriation, limit the total withdrawal from the aquifer, and refuse applications for new groundwater permits.
Groundwater Limited Areas limit future appropriations of water to specified uses, but do not restrict existing consumption of water within the area. Serious Water Management Problem Areas allow OWRD to collect usage data from current water use right holders, but not restrict water consumption. These tools are used to collect information and guide future development of water resources in Oregon.
Rather than designating a critical or limited groundwater area, or a serious water management problem area, OWRD addressed the Harney Valley Groundwater Area of Concern by amending the Malheur Basin Program. Basin programs are used by OWRC to guide water right permitting decisions and coordinate with other state agencies. Within basin plans, OWRC may classify the highest and best uses for particular basins and waterways for future uses, including proscribing types of uses available to future applicants. Oregon’s basin programs are listed in the Oregon Administrative Rules Chapter 690, beginning at Division 500, and the Malheur Basin Program is located at Division 510, available at: http://arcweb.sos.state.or.us/pages/rules/oars_600/oar_690/690_510.html.
The new regulations for the Greater Harney Valley Groundwater Area of Concern propose to both limit future uses and collect information before OWRD completes a full study of the aquifer, expected to be completed by 2020. The proposed rules received 22 comments, which can be viewed at: http://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice¬ice_item_id=6640. In the meantime, 39 groundwater use applications are pending before OWRD, and these applications will not be approved, unless they meet conditions included in the new basin plan regulations. This is in direct opposition to the rule that applications must be processed based on the laws and regulations in effect at the time of filing, but OWRD is taking the position that groundwater is not available for the applications, rather than a regulatory change affected the outcome of the applications (this is not a new approach from OWRD).
The “area of concern” is, in effect, a moratorium on new groundwater development in the region. The new regulations create restrictions on new applications reminiscent of critical groundwater areas, but within the basin program scheme. The moratorium will put a halt to development in the region, at least while OWRD studies the groundwater in the area. Locals familiar with groundwater in the Malheur Basin are resentful of OWRD’s blanket moratorium when certain areas within the basin do not appear to show the same level of strain as others, and continue to produce great quantities of groundwater.
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.
California’s Sustainable Groundwater Management Act (“SGMA”) was passed in 2014. The SGMA requires local agencies to bear the burden of creating, implementing, and enforcing Groundwater Sustainability Plans (“GSP”) in certain groundwater basins to manage the aquifer in a “sustainable” manner. The California Department of Water Resources (“CDWR”) recently issued regulations that help clarify the requirements of the GSPs, but also include some information about how the law will impact local agencies and groundwater users in the State. However, the regulations fail to satisfy some fundamental questions raised by the SGMA.
The new regulations were issued on May 18, 2016 by CDWR provide some insights into how the agency plans to implement the Sustainable Groundwater Management Act. A copy of the regulations may be found at: http://water.ca.gov/groundwater/sgm/pdfs/Proposed_GSP_Regs_2016_05_10.pdf. Under the regulations, the agency set out the requirements for plan contents, including administrative information, a description of the basin, sustainable management criteria, a description of the monitoring network, and projects associated with the plans.
The administrative information section must include general information about the region, description of the local agency developing the plan, and the agency decision-making process with public engagement.
The basin setting section must thoroughly describe the basin’s hydro-geologic conditions and must create a “water budget” that describes all the surface and groundwater movement into and out of the basin. Under this section, the local agency must estimate the “sustainable yield” of the basin.
Sustainable Management Criteria have also been outlined by the regulations. These criteria require local agencies to set a sustainability goal that eliminates undesirable results of groundwater use within 20 years of the statutory deadline. CDWR will evaluate sustainability goals based on the achievement of minimum thresholds established by the local agency. The minimum thresholds expand on the statutory language for “undesirable results.” For example, a significant and unreasonable reduction in groundwater storage levels will be evaluated based on the locally defined “undesirable results,” supported by the “sustainable yield” of the basin. The local agency must also include a measuring system and “measurable objectives” that are revisited every five years.
The regulation also outlines the procedure that CDWR will use to evaluate plans, timelines for approval and reporting, and how local agencies can amend their plans. It also sets out the procedure for interagency agreements and addresses adjudications and alternatives to GSPs.
The real impact will come from the local agencies’ interpretation of the word “sustainable.” The new regulations use the term throughout, defining the quantity of water in the water budget available and defining allowable groundwater depletions. Traditionally, sustainable yield is considered the amount of water that can be withdrawn in balance with recharge. At first glance, the definition makes sense. The meaning, however, simplifies a more complex concept. When water is pumped from an aquifer, three results can occur: a reduction in stored water stored in the aquifer, capture of surface water (like rain or seepage from a river), or a reduction in discharge (like a spring or river baseflow), or any of these effects in combination depending on the specific aquifer. Ponce, Victor M., Sustainable Yield of Groundwater, (available at: http://ponce.sdsu.edu/groundwater_sustainable_yield.html). It remains to be seen how “unreasonable” and how “significant” the undesirable effects have to be in order to become unsustainable.
Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.
Sage Grouse Land Use Plans and Law Suits
On September 18, 2015, the Bureau of Land Management (“BLM”) and United States Forest Service (“USFS”) issued Records of Decision (“RODs”) related to land management in support of sage grouse populations on lands managed by the agencies. The RODs put land use plans in place in lieu of listing sage grouse under the Endangered Species Act (“ESA”). The land use plans are extremely long and complicated, and are summarized in the article Sage Grouse Conservation without an Endangered Species Act Listing: Digging into the National Greater Sage Grouse Planning Strategy Records of Decision, available at: http://www.water-law.com/water-rights-articles/sage-grouse-conservation/.
Law suits involving sage grouse have not halted in the shadow of these new, comprehensive land use plans. On March 29, 2016, Western Watersheds Project (“WWP”) filed suit in the U.S. District Court for the District of Nevada against the BLM for approving fences within the Argenta Allotment in Nevada, claiming the approval violated the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act (“APA”) and that alternatives to fencing existed that BLM should have considered. WWP also alleges that the BLM sage grouse use plan required BLM to consider certain alternatives. To view a copy of WWP’s complaint, visit: https://drive.google.com/file/d/0B1T2j7JW1SeoWV9FbVh2SW1wdEU/view. WWP’s law suit comes on top of other attacks against grazing in the Argenta Allotment that are currently being litigated.
Be sure to stay tuned to Schroeder Law Offices’ Water Law Blog for more news that could affect you!
Sage Grouse Workshop
BLM’s Sage Grouse Plan Collaboration-Implementation is underway.
As part of the BLM’s effort to ensure collaboration and engagement during implementation of the sage grouse plans, the BLM is sending out invitations to stakeholders to begin the dialogue.
These invitation only meetings will occur on:
April 22nd in Salt Lake City, UT
April 26th in Boise, ID
April 27th in Reno, NV
April 28th in Redmond, OR
You are requested to RSVP at the link below to reserve your spot by April 15, 2016, so that we can set up the workshop for the appropriate number of participants:
While space is limited for these invite-only dialogues, BLM plans to conduct additional public meetings later this spring and summer. Once these public meetings are scheduled, information will be available on: http://www.blm.gov/id/st/en/prog/wildlife_and_fisheries/greater_sage-grouse.html. If you are interested in receiving an invitation to these meetings, please contact your state BLM office.
California’s New Water Measuring, Recording & Reporting Law
California Governor Brown signed Senate Bill 88 into law on June 24, 2015. Part of that Bill amended the California Water Code to require that all persons who divert 10 acre-feet or more of water per year after January 1, 2016 must install a water measuring device to measure the rate of diversion (including diversion into and out of storage). Water users must report installation to the Water Board, as well as provide evidence that the measuring device is functioning properly at five-year intervals. Water users must maintain records of diversion at time intervals of one hour or less (in some cases) and total amounts of water diverted.
Annual diversion reports must be submitted to the Water Board, and the law states: “Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.” The new law imposes civil fines in an amount not to exceed $500 per violation, per day, which may be enforced civilly through the superior court, or administratively by the Water Board. The Water Board will provide forms for reporting.
On January 19, 2016, the Water Board adopted emergency regulations to implement the new water measuring law. Those regulations were sent to the Office of Administrative Law for approval. Of note, the proposed regulations give the Deputy Director of the Division of Water Rights the authority to require monthly, daily, or more frequent reporting in times when there are insufficient flows to support all diversions. Additionally, the regulations propose a phased approach that takes into account the amount of water diverted, with larger diverters needing to comply with more stringent requirements than smaller diverters.
The recent drought spurred California law makers to enact this law that will mark a drastic change in the way water users operate. The Water Board reports that this new measurement, recordkeeping, and reporting law will apply to approximately 12,000 water users in California. The Water Board hopes that the new law and regulations will improve water use regulation and planning. Industry groups, including the California Cattlemen’s Association, oppose the regulations.
In Oregon, the Water Resources Department has phased in water use measuring, recordkeeping, and reporting requirements into new water use permits that are issued. California’s new law and regulations impose a new condition on existing water use rights, raising red flags about regulatory takings.
Stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!
Klamath County Drought: Extension of Comment Period for Rulemaking
Earlier this month, the Oregon Water Resources Department announced in this press release that the Department would be submitting a second notice of proposed rulemaking, holding a second public hearing, and extending the comment period for proposed rules that grant preference for “human consumption” and “stockwatering” uses following the Governor’s declaration of a drought. The rules are solely directed at Klamath County, Oregon. After receiving comments from elected officials and concerned local governments stating that there was little notice or public involvement in crafting the proposed rule, the Department decided to hold the second round of comments and public hearings.
Besides making the temporary rule permanent, the rule is different from the original temporary rule in that it eliminates the differentiation between the regulation of surface water to include all water sources, including groundwater. How this proposed rule affects exempt well uses, including “domestic purposes” is unknown, and “domestic purposes” is clearly not included in the definition of “human consumption.”
In addition, granting preference for a particular use does not necessarily translate into a restriction to the access of the water supply. While the Department states that senior calls could “regulate off” a junior user, the preference for a human consumption and stockwatering uses does not speak to restricting access.
The department seems to be conflating the two different aspects between use and access. While shutting off a well or closing a diversion point may be the most efficient method of regulation, granting a preference for human consumption and stockwatering uses would still allow access, and require the department to use a more sophisticated regulation system other than just shutting off the supply: the uses would be regulated, not just the access to the supply. The City of Klamath Falls identified this distinction in its comments, noting its potential role as watermaster for all of its municipal subscribers to enforce the preference of uses as proposed, as municipal uses include industrial and landscape irrigation uses.
The comment period for the proposed rules will close at 5:00 PM on September 19, 2014, and the Commission is expected to take up the proposed rule during the week of September 22, 2014.
The next public hearing is scheduled at 6:00 pm on September 18, 2014 at the Oregon Institute of Technology Mt. Mazama Room, located at 3201 Campus Drive, Klamath Falls, OR.
