New Associate Attorney Jakob Wiley successfully completed his defense of Collective Aquifer Governance: It’s the Water and a “Hole” Lot More! on September 17, 2018, completing his Masters of Science in Water Resources Policy and Management. Jakob completed the Concurrent J.D./M.S. program between Oregon State University (“OSU”) and the University of Oregon School of law, https://gradwater.oregonstate.edu/concurrent-jdms-degree-program. Jakob’s successful defense of his research paper marked the capstone of his MS studies at OSU.

The paper unravels the differences between the current paradigms in groundwater and aquifer governance, showing that the present focus on groundwater has struggled to meet the challenges of true aquifer governance. Aquifers are composed of a variety of resources, like storage spaces, thermal properties, chemical and biological contaminants, and hydraulic pressures. Jakob coins the term transresources to describe these components, inspired by transdisciplinary approaches in academia. To achieve true aquifer governance, transresources must be included in the governance strategy. Unfortunately, traditional groundwater management only attempts to address these issues through the lens of groundwater regulation.

To provide a guide, Jakob’s paper compares aquifer governance with unitization agreements used in the oil and gas industry. These agreements were developed to counter the inefficient, competitive, and costly over-drilling of wells in the early years of hydrocarbon development. Unitization agreements are fundamentally a contract between reservoir owners. Unitization agreements convert the right to pump into shares of the resources present in the reservoir. By pooling the rights to withdraw oil and gas into a “unit”, a more equitable, efficient, and voluntary governance system is created, while also incorporating any pumping, spacing, and pressure management laws.

Jakob’s research translates this agreement approach into a system of aquifer governance. The theoretical approach would create an agreement among aquifer users, allowing them to contractually change the incentives and use patterns of the aquifer. For example, conversion from flood to sprinkler irrigation can improve “efficiency” but also dramatically reduce artificial recharge of the aquifer. A “collective aquifer governance agreement” – Jakob’s translation of a unitization agreement – could be used to incentivize groundwater users to adopt efficient sprinklers while incentivizing beneficial activities, like incidental aquifer recharge from flood irrigation, improving the overall sustainability of the aquifer system.

The key feature of a collective aquifer governance agreement is the design of shares. By allocating shares to each transresource, the system of water allocation can reflect the scientific and physical effects of groundwater and aquifer resource use (like geothermal energy production, storage, subsidence, in situ bioremediation, ect). Directly connecting rights with physical effects of aquifer use can internalize any negative externalities of aquifer use, when properly designed, and could support a conjunctive surface and ground-water (or any other transresource) market.

Jakob’s work on this topic will continue as he works with Dr. Todd Jarvis of OSU on an upcoming book expanding the theory and providing guidance for the next stage in groundwater management: collective aquifer governance, showing oil and water really do mix!

Jakob’s complete research paper is publicly available at the following link: http://ir.library.oregonstate.edu/concern/graduate_projects/pn89dd30b

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

Schroeder Law Offices, P.C. is pleased to present the Oregon Irrigation District Election Manual.

This manual provides an overview of the Irrigation District election process, and presents timelines and special considerations involved in regular and special elections.

This manual includes the topics of:

• Elector Voting Rights
• Director Qualifications
• Director Nominations
• Voting by Mail
• Pre-election Procedures
• Election Day Responsibilities
• Post-election Vote Counting and Election Certification

Our office has assisted special districts including Irrigation Districts, Water Control Districts, and others in their elections preparations and procedures, and we welcome the opportunity to discuss a special district’s elections with staff and board members needing assistance. The information in this manual should only be relied upon after consulting with an attorney to discuss a special district’s particular situation.

TCID’s Policy Committee will meet on Monday, September 8, 2008 at the TCID office (2666 Harrigan Road, Fallon NV) to review their policy and  decide on a  “Possible Increase in ‘In Lieu’ Charges for the Retiring of Water Rights.” Your attendance is encouraged.
The In Lieu charges are those one-time payments that TCID Policy provides it should receive when a land owner retires his water rights through AB380 program, through individual settlement of the Tribe’s Petition acres, or through any other retirement.  For example, if a person entered into an individual settlement of his water rights wherein a portion of his water rights were retired (meaning the  water rights are no longer available for diversion from the source by TCID to the landowner), that individual is required to pay TCID.

TCID’s policy states  that “in lieu” payments help them offset “the proportionate share of tolls, charges, fees, assessments, and tax levies that such water rights would have paid in the future.” (See TCID Management Policies dated September 7, 2000). The “in lieu” payment policy was created out of the AB 380 program wherein TCID would receive the “in lieu” payment from federal funds upon the successful retirement of water rights challenged by the Tribe through the AB380 program.  There is no more money in the AB 380 program.

TCID also remains whole on the backs of its patrons.  Despite the fact that TCID patrons paid TCID assessments for challenged acres while not receiving a water allocation, TCID patrons now retiring these same non-allocated water rights are required to pay the “in lieu” fee to TCID.  Pursuant to TCID policy, TCID patrons are to pay  $1200 per water righted acre that is retired in order for TCID to remove the retired acres from the assessment roles.

While there is little question that TCID has authority to charge an Operation and Maintenance (O&M) fee for each assessed acres to which TCID provides water delivery services through an allocation, the question is whether TCID has authority to charge O&M for water righted acres to which it does not deliver an allocation?  In addition, there is a question as to the authority of OCAP and TCID acting under OCAP to deny water allocations since this effectively cancels the water rights?  Cancellation is a function of state law and requires that the landowner be afforded due process before the loss of his property interest.

TCID’s role is to deliver water to water right holders in the Newlands Project.  TCID is governed by the Alpine and Orr Ditch Decrees as well as the Bureau of Reclamation under OCAP or the Operating Criteria and Procedures for the Newlands Reclamation Project, Nevada (found at 43 C.F.R. 418 et seq).  No where in OCAP or the Decrees does it say that TCID is the owner of the water rights, or that TCID can charge  landowners when it does not delivery water to existing water righted acreage.  In fact, OCAP at Sec. 418.26 states that TCID should give consideration to adopting a financing and accounting system that provides reasonable financial incentives for the economical and efficient use of water.

While it may be appropriate to “charge” a fee to remove water righted acres from the assessment roles, patrons retiring water rights that have not received an allocation under these “retired” water rights for years are owed some consideration for their many years of payments to TCID.  TCID should not be allowed to effectively condemn landowner water rights by making OCAP non-allocation orders, take money from the landowners for delivery when TCID has no intention to provide water delivery, and charge the landowner again to remove non-allocated/cancelled water rights from the assessment roles when the landowner retires them.