Schroeder Law Offices had a blast working at the 2022 Oregon State Fair. If you weren’t able to make it down to Salem for the annual festivities, we’re here to fill you in. During the fair’s kickoff weekend, Tara Lomacz and Madeleine Criglow worked the Oregon Women for Agriculture booth in Salem Fairgrounds’ Columbia Hall. This space was dedicated to showcasing agriculture in Oregon along with the beautiful works of local authors, photographers, and textile artists. At the Oregon Women for Agriculture booth, Tara and Madeleine had a great time speaking with fairgoers on agriculture and water issues in Oregon.

            To encourage fairgoers to stop by the booth, guests were challenged to spin the trivia wheel for questions on agriculture and farming in Oregon. The questions tested guests’ knowledge on everything from Oregon’s state beverage (milk, if you’re wondering) to how many gallons of water a cow drinks in a day (a whopping 20-30 gallons!). Guests were delighted to realize that they already knew a thing or two about Oregon agriculture (and were pretty happy about the prizes, too).

The Oregon Women for Agriculture booth also featured a map highlighting the water issues currently affecting agriculture and local farmers throughout Oregon. As fairgoers read through the map, many shared their own experiences with water issues and asked about what might be done to protect the natural resource in Oregon. It was rewarding to see guests take such an interest in local agriculture, and Schroeder Law Offices was happy to spread the word on its importance to the environment and economy.

            As the trivia games and discussions came to a close, the fair was just getting started. There was still tons of fun to be had, from checking out live music to indulging in every snack you could imagine. Leaving the fair with an ice cream cone in hand, we were grateful for the opportunity to join in on the fun!

The Nevada Division of Environmental Protection (NDEP) is proposing new regulations on water quality.  NDEP announced an official regulation workshop on August 31, 2022 to solicit public comment and input on Legislative Counsel Bureau (LCB) Draft of Proposed Regulation R113-22.

R113-22 sets forth a process for the State Environmental Commission to classify a surface water of the State or a segment thereof as a water of extraordinary ecological, aesthetic, or recreational value.  The Commission then establishes provisions for antidegradation protections to these specially classified surface waters. The draft regulations can be viewed here.

The Workshop will be August 31, 2022 at 10:00 AM to 1:00 PM Pacific Standard Time. More information and the agenda can be viewed on NDEP’s Workshop Notice.

Due to technical difficulties related to the workshop online registration form, attendees may join by:

1. Going to the following link: https://www.microsoft.com/en-us/microsoft-teams/join-a-meeting?rtc=1
2. Entering the Meeting ID:  216 866 144 018
3. Entering the Passcode:  nqZR8P

NDEP will also attempt to accommodate anyone wishing to participate in person at:

Bryan Building
901 South Steward Street
Humboldt Conference Room, 3^rd Floor
Carson City, NV

Interested in more water quality activities?  Check out our blog on NDEP’s last Integrated Water Quality Report for 2020-2022 and stay tuned for the next Integrated Water Quality Report Comment Period in 2023. 

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

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

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

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

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

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

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

Where can I find you on the weekend?

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

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

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

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

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

Echo Zhang is a summer law clerk at Schroeder Law Offices. As a new addition to the office, she is eager to learn everything about water law and gain the necessary skills as a practicing attorney. A few questions we asked Echo:

What brought you to Schroeder Law Offices, and what’s your experience?

I’m currently a rising 3L student at the University of Washington. Before joining Schroeder Law Offices, I had law clerk experiences at Chinese law firms specializing in commercial dispute resolution. On the other hand, I developed an interest in general environmental law and water law. Pursuing my interests, I joined the Washington Journal of Social & Environmental Justice and now serve as the Executive Managing Editor.

I first learned of Schroeder Law Offices when I browsed through its website. I was fascinated by the passion for water law shown there. I went through the educational water rights videos on the website and decided that I wanted to learn more about water law. After coming to work here, I found that everyone is excellent, and I’m eager to learn more from everyone!

What is your go-to productivity trick?

Caffeine in the morning, and music at night.

Favorite recipe?

I love cooking slow-cooked recipes, especially braised beef brisket with tomatoes.

Are you an early bird or a night owl?

Night owl. Although fresh air in the morning is great, I love the feeling of freedom at night!

Where can I find you on the weekend?

At home cooking or going to Gas Works Park with my friends to get some fresh air and admire the Seattle skyline.

Coffee or tea?

Both!

Describe your job in three words:

Fun, challenging, and supportive.

What is working at Schroeder Law Office like?

Everyone is supportive and willing to teach me new things. I’m happy to explore water law with my colleagues.

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

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

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

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

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

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

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

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

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

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

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

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

The original article is available in PDF format here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Schroeder Law Offices’ 2021 VACCINE webinar series is already half over.  Lucky for you, all webinars are available on-demand! In case you missed it, be sure to watch the 2021 VACCINE Webinars that already took place:

(1)       Contracting Out-of-Boundary Water and Wastewater Services;

(2)       What to do When There Is No Water: Drought Tools Explained

(3)       Terms to Put in a Well Share Agreement; and

(4)       How to Take Advantage of a Winter Appropriation Using Storage.

Don’t miss out on the upcoming webinars either!  The following topics are still in the works for the 2021 VACCINE Series:

(1)       Tuesday, September 14:  Due Diligence for Canal, Pond, and Drainage Maintenance: Wetlands Delineation:

(2)        Tuesday, October 19: How to Change or Remove an Easement (Ditch, Road, Well Share) from Real Estate; and

(3)        Tuesday, November 9: Should or Can you Take Stormwater into your existing system? 

Check back on our blog for more information on registration for upcoming webinars in the 2021 VACCINE webinar series. Afterward, webinars are available on-demand here.  Schroeder Law offices gives you continued access to educational content online.  If you have any problems with access or viewing, please contact Scott Borison at scott@water-law.com.

In the 2021 Nevada legislative session the Assembly considers nine water related bills and the State considers 15 water related bills total.  The 2021 legislative session began on February 1, 2021 and will conclude on June 1, 2021.  The Assembly bills are in various stages of consideration as the session approaches its conclusion. However, the clock has already run for certain bills.  Under Joint Standing Rule 14.3.1 the final standing committee to which a bill or joint resolution is referred in its house of origin may only take action on the bill or joint resolution on or before the 68^th calendar day of the legislative session. Under Joint Standing Rule 14.6, certain exemptions apply for re-referral of a bill to the Senate Committee on Finance or the Assembly Committee on Ways and Means.  The 68^th day of the Session was April 9, 2021.

Other deadlines apply pursuant to Joint Standing Rule 14.3. These include:

1. Final action may only be taken by the House of origin on or before the 79^th calendar day of the legislative session (April 20, 2021);
2. Final standing committee to which a bill is referred in the second House may only take action until the 103^rd day of the legislative session (May 14, 2021) unless referred to the Senate Committee on Finance or the Assembly Committee on Ways and Means; and
3. Final action on the bill may only be taken by the second House on or before the 110^th day of the legislative session (May 21, 2021).

As a result, some of the bills are dead in the water and will progress no further.  Summaries of pre-filed Assembly Bills 5, 6, and 16 can be found in our earlier blog post.  The remaining water related Assembly bills are summarized below.

Assembly Bill 146

Assembly Bill 146 proposes various changes to Nevada Revised Statute (“NRS”), chapter 445A regarding water pollution, including:

1. Requiring the State Department of Conservation and Natural Resources to establish a program regulating water pollution resulting from diffuse sources;
2. Establishing requirements for applicants for certain permits relating to water pollution to post a bond or other surety;
3. Revising the requirements for regulations adopted by the State Environmental Commission relating to water pollution, including the notice requirement relating to adoption of these regulations;
4. Revising provision related to the Director of the Department of Conservation and Natural Resources’ control of water pollution, including control of diffuse sources of water pollution;
5. Revising requirements for permits to discharge pollutants or inject fluids through a well; and
6. Requiring consultation and notification to Indian tribes of certain actions related to water pollution.

Assembly Bill 146 has not passed the Assembly Committee of Natural Resources but is exempt from Standing Rule 14.3.1.

Assembly Bill 354

Assembly Bill 354 is the fruition of one of the bill drafts discussed in this earlier blog.  This bill authorizes the creation and sets forth the authority and duties of water banks.  It additionally requires the State Engineer to submit a biennial report to the legislature related to water banks and provides penalties for violations of its provisions.

Further action on Assembly Bill 354 is not allowed, pursuant to Joint Standing Rule 14.3.1.

Assembly Bill 356

Assembly Bill 356 is the fruition of the other bill draft discussed in this earlier blog.  This bill creates and sets forth the requirements for a voluntary water conservation program and creates an account for the Nevada Division of Water Resources to purchase and retire water rights in targeted basins.

Assembly Bill 356 passed the Assembly Committee of Natural Resources and is being considered by the Assembly Committee of Ways and Means.

Assembly Concurrent Resolution 4

Assembly Concurrent Resolution 4 does not directly affect water resources or water quality.  However, it does direct the Legislative Commission to appoint a committee to conduct an interim study on general improvement districts (“GIDs”).  GID’s provide certain services and facilities to residents of the district, often times including water services.  Assembly Concurrent Resolution 4 will create a committee to study GIDs to: (1) improve accountability and effectiveness; (2) identify areas of continuing abuse and potential abuse in the creation, financing, operation, and oversight of GIDs; (3) consider modifying requirements related to GIDs; and (4) recommend possible legislative solutions to any continuing abuses.

Assembly Concurrent Resolution 4 was referred to the Committee on Legislative Operations and Elections.

Assembly Joint Resolution 2

Assembly Joint Resolution 2 recognizes that that health of forests, rangelands, and soils are inextricably linked to the quantity and quality of water.  It further expresses and supports the Federal Government, state agencies, conservation districts, and local governments to work collaboratively with water purveyors, land managers, private land owners, land users, and other stakeholders to identify watersheds that can be improved by better forest, rangeland, and soil health measures and to identify or establish voluntary programs within the limits of the legislative appropriations, and other available money to address the health of forests, rangelands, and soil.

Assembly Joint Resolution 2 passed the Assembly and is currently being considered by the Senate Committee on Natural Resources.

Assembly Joint Resolution 3

Assembly Joint Resolution 3 urgers various actions relating to the protection and conservation of land and water.  In the resolution, the Legislature expresses its support for the goal of protecting 30 percent of the lands and water in Nevada by 2030.  The resolution urges:

1. State and local agencies to honor tribal jurisdictions and the rights of indigenous tribes in efforts to protect land and water;
2. Fair treatments of all races in efforts to protect land and water;
3. Private landowners to participate in voluntary programs to protect wildlife habitat and increase carbon sequestration; and
4. Nevada Congressional Delegation to identify opportunities for federal legislation and regulatory action to expand protection and conservation measures on public land in Nevada.

Assembly Joint Resolution 3 passed the Assembly and is currently before the Senate Committee on Natural Resources.

Interested in more legislative updates?  Keep an eye on our blog for a summary of the 2021 water related Senate bills.

(Image Credit: https://mynews4.com/news/local/explaining-the-mining-gaming-and-sales-tax-proposals-of-the-2021-nevada-legislature; https://www.reviewjournal.com/news/politics-and-government/nevada/district-map-in-nevada-assembly-skews-blue-study-finds/)

The Idaho Senate introduced ten water related bills this legislative session in addition to the twelve the House introduced.  Like many of the House bills, some of the water related Senate bills already passed both houses.  Others are in various stages of committee or legislative review.  The Senate bills considered this legislative session are briefly described below.

Senate Bill 1005

Senate Bill 1005 amends existing law to authorize water districts to charge fees to certain water delivery organizations and water users.  This bill clarifies that when water is diverted and assessed in one water district but is conveyed and diverted within a second water district, the second district may level a fee instead of an assessment for the water that is rediverted.  Further, authorized fees that are levied are not considered an assessment and are not part of a water user’s voting credentials for voting within the second water district.

Senate Bill 1005 passed both the Senate and the House.

Senate Bill 1020

Senate Bill 1020 amends existing law regarding the limitation of liability of landowners towards persons entering land for recreational purposes.  The bill amends Idaho Code 36-1604 expanding the definition of land to include water facilities, parks, and campgrounds.  The bill also clarifies the property interest held by an “owner” and that recreational activities include traveling across the land owned by others for the purpose of recreating.

Senate Bill 1020 passed both the Senate and the House.

Senate Bill 1072

Senate Bill 1072 amends existing law regarding filling vacancies in irrigation districts.  The purpose of this bill is to align Idaho Code 43-209 with Idaho Code 43-201(3).  Under Idaho law, irrigation districts are divided into a minimum of three divisions, from which board directors are elected to represent water users.  Idaho Code 43-209 provides the process for filing irrigation district board vacancies, but limits the eligible candidates to living within their respective irrigation district division.  This amendment would allow irrigation districts that approved the expanded board member residency rule under Idaho Code 43-201(3) to fill vacancies under the same conditions therein.

Senate Bill 1072 passed both the Senate and the House.

Senate Bill 1073

Senate Bill 1073 clarifies that the statutory protection of water delivery facilities from claims of adverse possession extends to properties owned by water delivery entities.

Senate Bill 1073 passed both the Senate and the House.

Senate Bill 1079

Senate Bill 1079 establishes a fund for the annual appropriation of state general funds to support and fund nonpoint source agricultural best management practice projects in Idaho.  This appropriation was initially contemplated in the 2017 legislative session and intended to supplement DEQ’s federal nonpoint source program grant.  DEQ identified complications with appropriating, allocating, and disbursing these funds all within the same fiscal year.  The nature of these projects, spanning multiple years or season, and the short time frame in which DEQ has from appropriation to end of spending makes it difficult for recipients of this funding to get the work completed and invoices submitted for reimbursement before the end of the fiscal year in which money was appropriated. Under this legislation, DEQ requests a specific fund be set up for project funds that would allow a longer time frame for the project proponents and awardees to plan and complete projects that benefit Idaho’s waterways.

Senate Bill 1079a passed the Senate on February 25^th and is in its third reading in the House.

Sente Bill 1121

Senate Bill 1121 is a supplemental appropriation bill for the Department of Water Resources.  It requests funds from the General Fund for the Water Management Fund.  Funding would be used for costs related to the Anderson Ranch Reservoir Enlargement Project, the water supply for the Mountain Home Airforce Base, and aquifer recharge projects in the Upper Snake River Valley.

Senate Bill 1121 passed both the Senate and the House and is currently before the Governor for signature.

Senate Bill 1188

Senate Bill 1188 is an original appropriation bill for the DEQ.  Some of the funding will apply to the Lake Coeur d’Alene study, the Water Quality Program, the Agricultural Best Management Practice Fund, and the Water Pollution Control Fund.

Senate Bill 1188 is currently before the Joint Finance-Appropriations Committee.

Senate Bill 1190

Senate Bill 1190 is an original appropriation bill for the Department of Water Resources.  The funding will be used in part for the Bear River Adjudication, the Flood Management Program, and for Water Quality Monitoring.

Senate Bill 1190 is currently before the Joint Finance-Appropriations Committee.

Senate Concurrent Resolution 104

Senate Concurrent Resolution 104 states the Legislature’s findings and supports changes in the winter flood control curves of the Ririe Reservoir project to more properly balance Ririe River water supply and irrigation supplies with adequate flood control.

The Senate unanimously adopted SCR104 on February 18^th.  It is currently in its third reading in the House.

Senate Joint Memorial 103

Senate Joint Memorial 103 states the findings of the Legislature, opposing the removal or breaching of the dams on the Columbia-Snake River System and its tributaries, and recognizing certain benefits provided by the Port of Lewiston.  In the bill, the Idaho Legislature recognizes and supports the international competitiveness, multi-modal transportation, and economic development benefits provided by the Port of Lewiston and the Columbia-Snake River System.  The bill iterates Idaho’s sovereignty over its water resources and the benefits derived from this multiuse system that provides transportation, commodities, fish and wildlife habitat, recreation, hydropower, flood control, and irrigation.

The Senate adopted SJM103 on March 9^th.  It is currently in its third reading in the House.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Don’t miss our blog on the water related House bills this session!  Additionally, each bill page linked above provides the status of the bill and the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

(Image Sources: https://idahonews.com/news/local/idaho-senate-calls-it-quits-but-house-says-not-so-fast; https://www.kmvt.com/2021/01/14/idaho-senate-starts-effort-to-wrest-power-from-gov-little/) 

In the 2021 legislative session, the Idaho House introduced twelve water related bills and the state considers twenty-two water related bills in total.  The session began on January 11, 2021 and as of March 18, 2021, one of the proposed water bills is already law, one is before the Governor for signature, and multiple others have passed one or both houses. Needless to say, Idaho is making many changes and updates to its water law.  The House bills considered in this legislative session are briefly described below.  

House Bill 43

House Bill 43 amends and repeals existing law relating to the administrative determination of adverse claims, hearings, and orders of local groundwater boards, appeals from certain actions, and penalties.  The purpose of this bill is to eliminate inactive, outdated, and obsolete sections of the Idaho Code related to water right delivery calls. The adoption of the Rules for Conjunctive Management of Surface and Ground Water Resources (IDAPA 37.03.11) made these sections of law obsolete. 

House Bill 43 passed both the House and the Senate and has been signed into law. 

House Bill 57

House Bill 57 amends existing law regarding certain authority of the Water Resource Board and the Department of Water Resources. The purpose of this bill is also to eliminate inactive, outdated, and obsolete sections of the Idaho Code.  The sections removed in this bill contain language that conflict with other sections of the Idaho Code or are duplicative language and authority found elsewhere in Idaho law.  The bill proposes to remove language in Idaho Code, Title 42 related to penalties for certain statutory violations and invests in the Director of the Department of Water Resources the power and authority to enforce the provisions of the chapter and rules and regulations promulgated pursuant to it.  

House Bill 57 passed both the House and Senate and is before the Governor for signature.

House Bill 99

House Bill 99 adds to existing law to provide for water quality innovation and pollutant trading.  The purpose of the bill is for Idaho to establish a mature pollutant trading program that provides a benefit to the regulated community and Idaho’s most treasured water resources.  It authorizes a voluntary water quality innovation and pollutant trading program and provides the Department of Environmental Quality (“DEQ”) authority to regulate the program. 

House Bill 99 passed both the House and the Senate. 

House Bill 103

House Bill 103 amends Idaho Code, Title 30 to allow remote participation in meeting of non-profit corporation directors.  Such participation counts toward the requirements for a quorum. 

House Bill 103 passed the House on March 1^st and is in its third reading in the Senate.

House Bill 182

House Bill 182 provides for irrigation corporation boundary adjustments. The bill allows for a streamlined process to adjust canal company boundaries where there is no increased use and no injury to other water rights. 

House Bill 182 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 184

House Bill 184 revises provision of existing law regarding notifications of change in ownership of water rights. It proposes Idaho Code 42-248 be amended to provide notice of ownership updates to landowners in circumstances where the water rights used on the land are owned by a third party. The purpose of the bill is to remove outdated provisions and improve readability.  The bill also clarifies that a change of ownership in the records of the Department of Water Resources is not a determination of ownership and is not an administrative action subject to challenge. Lastly, it clarifies that disputes over water right ownership should be addressed through quiet title action. 

House Bill 184 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 185

House Bill 185 amends existing law to provide that lands annexed to a Flood Control District may be contiguous or noncontiguous to the existing district.

House Bill 185 passed the House on March 3^rd and is in its 3^rd reading in the Senate.

House Bill 186

House Bill 186 revises existing legal provisions regarding notices of claim associated with the use of stockwater on federal land and to revise provisions regarding the Department of Water Resources Director’s determination of specified elements to define and administer the water rights acquired under state law.  The bill amends Idaho Code 42-1409 and Idaho Code 42-1411 to create a presumption that (1) the priority date for stock water rights is the date of the original federal grazing authorization and (2) the current base property relates back to the base property associated with the original federal grazing authorization.  The bill also amends information required to identify the legal description of stockwater rights on federal grazing allotments.

House Bill 186 passed the House on March 3^rd and is in its third reading in the Senate.

House Bill 266

House Bill 266 adds to existing law to provide for statutory cloud seeding in Idaho.  House Bill 266 defines cloud seeding as “all acts undertaken to artificially distribute or create nuclei in cloud masses for the purposes of inducing precipitation, cloud forms, or other meteorological parameters.”  Cloud seeding has been done in various areas of Idaho for several years.  This legislation also states findings relating to cloud seeding in Idaho and provides that the Water Resources Board is responsible for authorizing cloud seeding and may participate in cloud seeding programs.  The legislation further states that water generated through cloud seeding will be administered in accordance with the prior appropriation doctrine and limits liability for participation in certain cloud seeding projects.  No state or local permits will be required for cloud seeding. 

House Bill 266 passed the House on March 8^th and is in its second reading in the Senate.

House Bill 267

House Bill 267 amends Idaho Code 42-1760, which establishes the Idaho Water Resource Board’s Water Management Account.  Amendments include (1) replacing the list of potential projects with authority for projects which conserve or increase water supply, improve drought resiliency, address water sustainability, or support flood management; (2) including aquifer recharge above Milner Dam on the list of specific projects for consideration; (3) confirming that all water rights, including hydropower water rights, must be protected and that identified water uses must be considered in the approval of projects; and (4) providing additional information as part of the Board’s annual report. 

House Bill 267 passed the House on March 4^th and is in its third reading in the Senate.

House Bill 268

House Bill 268 amends existing law to revise provisions regarding extensions for construction, work, or application of water to full beneficial use.  This legislation amends Idaho Code 42-204 to provide that the Department of Water Resources may extend the time required for development of a water right to accommodate delays caused by litigation relating to the land or water development.  Further, it amends Idaho Code 42-204 to clarify that a 10-year extension of development for a water permit may be granted for multiple permits relating to a common diversion or distribution system. 

House Bill 268 passed the House on March 4^th and is in its third reading in the Senate. 

House Bill 307

House Bill 307 repeals and amends certain right-of-way provisions.  The bill deletes Idaho Code 42-1101 which appears to recognize the riparian doctrine in Idaho. Idaho courts have long recognized that the riparian doctrine does not apply in Idaho.  This legislation also amends existing statutes in response to an increase in legal disputes regarding the nature and scope of rights-of-way and easements for irrigation ditches, canals, and conduits including (1) clarifying rights and obligations association with operating, cleaning, maintaining, and repairing rights-of-way and easements; (2) codifying the common law standard applied by Idaho courts regarding debris deposited in rights-of-way and easements; and (3) clarifies application of rights and obligations to rights-of-way and easements to existing embankments and irrigation facilities.  

House Bill 307 passed the House on March 12^th and is in its second reading in the Senate.

Interested in More Water Legislation?

Want to stay updated on Idaho’s water bills?  Each bill page linked above provides the status of the bill. Additionally, the progress of the bills can be found in one comprehensive list on the Idaho Water Users Association’s (“IWUA’s”) website.

What about the ten water related Senate bills introduced this session?  Keep an eye on our blog for a summary of the Senate bills as well.

(Image Sources: https://www.mtexpress.com/news/state_regional/idaho-legislature-to-discuss-elections-liability/article_8c592c0e-e338-11ea-81b4-d3b028f895cf.html; https://www.usnews.com/news/best-states/idaho/articles/2021-03-19/idaho-legislature-might-shut-down-due-to-covid-19-outbreak)

The discussion of a specialized water judiciary is ramping up as Nevada considers creating water courts in both the legislative and judicial branches.

I. Proposed Legislation

On November 18, 2020, Senate Joint Resolution No. 1, commonly known as SJR1 was pre-filed for the 2021 legislative session. SJR1 was originally proposed by the Nevada Division of Water Resources, Office of the State Engineer (“Engineer”).  Then, the Nevada Legislative Counsel Bureau drafted the bill’s text for prefiling. SJR1 proposes to amend the Nevada Constitution to provide that the Nevada Court of Appeals has original jurisdiction over certain cases relating to water.  These cases contemplated in the bill include civil cases arising from a final order or decision of the State Engineer.  Currently, the original jurisdiction of these cases falls with the district courts.

The actual amendments to sections 4 and 6 of the Nevada Constitution are brief. However, under them, the appeals of complex and technical State Engineer decisions would bypass the district courts and end up directly in front of the Court of Appeals. Water users and legal observers alike raised many concerns about SJR1 even before lawmakers arrived in Carson City on February 1, 2021 for the start of the legislative session.  For example, water users in Battle Mountain who dispute State Engineer rulings would be required to travel hundreds of miles to Las Vegas or Carson City to appeal their case before the Court of Appeals.  A common theme of concern was the limited access to justice that would result from this reorganization.

Acting State Engineer Adam Sullivan expressed agreements with these concerns.  The State Engineer’s office ultimately decided not to pursue SJR1 as written.

However, the State Engineer also expressed the importance of the premise originally contemplated in SJR1.  The idea behind the bill was to create a small group of judges that, over time, would hear many water cases and would develop a subject-area expertise in water law.  It is no secret that water law is a science heavy and technical area of law. Many attorneys who practice water law specialize in it for this reason.  Other states also recognize this type of specialization in the judiciary.  Colorado for example created its Water Courts in 1969, appointing a water judge for each of its seven water divisions.  These judges have specialized jurisdiction in the determination of water rights, use and administration of water, and all other water matters within their division.

II. Judicial Petition

As the State Engineer moves away from SJR1, Supreme Court Chief Justice Hardesty moves forward with a petition to empanel a commission that will examine the creation of specialty water courts in Nevada.  The goal of the petition is to bring more water law expertise to the judiciary.  The petition, identified as ADKT 576,would study improvement of education, training, specialization, timeliness, and efficiency of Nevada’s district courts in the judicial review of water cases.  It would further consider the authority of the Chief Justice of the Supreme Court to designate trained district judges to serve on water cases.  The petition suggests the inclusion of the follow representatives on the commission:

1. 1. 1. Nevada Department of Conservation and Natural Resources/State Engineer;
      2. Water Rights Engineers/Hydrologists;
      3. Water Rights Attorneys;
      4. Urban Municipal Water Purveyors;
      5. Rural Water Interests;
      6. Agriculture;
      7. Irrigation Districts;
      8. Mining;
      9. Environmental Organizations;
      10. District Court Judges;
      11. Rural Nevada Communities; and
      12. Urban Nevada Communities.

III. Public Hearing

The Supreme Court held a public hearing on ADKT 576 on March 3, 2021. During the hearing, Justice Hardesty identified water as a “challenging, complexing, and consistently disagreed upon” area of the law.  The Court took comment on the petition during the hearing.  While the representation at the hearing was diverse, there was a common consensus:  general support for the creation of the commission and a new way to judicially review State Engineer decisions.

Deputy Administrator Micheline Fairbank and Acting State Engineer Adam Sullivan represented the State Engineer’s Office. “We believe an understanding of the law and precedent is not only required but important to the ability and desire to make sense of the technical scientific data,” Fairbank commented.  Sullivan echoed the sentinent and expanded, stating that the commission needs diverse and broad representation of all Nevadans, including Tribal Nations. The State Engineer also requested the Court expand the scope of the water court’s jurisdiction to adjudication proceedings.

Representatives for the Truckee Meadows Water Authority, water law attorneys, and environmental groups also generally supported the petition.

The Court took no action on the proposal during the March 3, 2021 hearing.  You cna track the status of the petition here.

Interested in more legislative water law updates?  Check out our blog on AB 5, AB 6, and AB 15 and keep an eye on blog postings for future updates.

The Nevada Assembly Committee on Natural Resources (“Committee”) is considering a handful of water related bills in the upcoming 2021 legislative session. While we are continually receiving notice of new proposed bills, we wanted to provide a brief summary on the first few we reviewed.  Assembly Bills (“AB”) 5, 6, and 15 were prefiled for the 2021 legislative session on November 18, 2020. If passed the bills with effect procedures currently required for temporary change applications and judicial review of Nevada Division of Water Resources, Office of the State Engineer (“State Engineer”) decisions.  AB 16 also proposes reorganization of the Colorado River Commission.

Assembly Bill 5

AB 5 proposes various new provisions relating to judicial review of State Engineer orders and decisions. As drafted, Nevada Revised Statute (“NRS”) 533.450 allows a person aggrieved by a State Engineer action to seek judicial review in the nature of an appeal.  AB 5 limits circumstances under which a person can seek judicial review. Under AB 5 the State Engineer decision being reviewed must be (1) a formal order, ruling or decision that is a final decision in writing; and (2) must materially affect the person’s interest.  AB 5 also clarifies that the judicial review of State Engineer decisions shall apply civil appellate practices.

The progress and text of AB 5 can be viewed here.

Assembly Bill 6

AB 6 contains proposed revisions of the laws governing temporary change applications for appropriated water.  NRS 533.325 requires a water right holder wishing to make a temporary change to place of use, point of diversion, or manner of use of their water to file an application with the State Engineer.  NRS 533.345 requires the State Engineer to hold a hearing if the State Engineer determines that the temporary change may not be in the public interest or may impair existing right. AB 6 proposes that the hearing under NRS 533.345 be discretionary. This will allow the State Engineer to either hold a hearing or make a decision absent one.

The progress and text of AB 6 can be viewed here.

Assembly Bill 15

AB 15 considers the reorganizing of the Colorado River Commission of Nevada (“Commission”), which exists under NRS 538.041 to 538.251.  The Commission currently consists of four members appointed by the Governor for three-year terms, and three members appointed by the Southern Nevada Water Authority.  AB 15 proposes reducing the number of members appointed by the Governor to three and adding the State Engineer as an ex folio member of the Commission.  Under both the existing and proposed version, the chairman of the Commission is chosen by the governor among the members he appointed.

The progress and text of AB 15 can be viewed here.  Keep an eye on our blog for more legislative updates!

Trading Water as a Commodity

Unappropriated water has long been considered a public resource. It is subject to private ownership rights and development, to be sure. But the law generally treats water differently compared to commodities like consumer goods or other natural resources like lumber. The UN recognized water’s essential role in the public commons in Resolution 64/292. It declared a “human right to water” and acknowledged “clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” However, recent developments in water markets could signal a shift in long-held perspectives. In early December, California water futures contracts began trading on stock exchanges for the first time ever, bringing water in line with other commodities like gold and oil.

At its most basic level, a futures contract is an agreement to buy or sell a commodity at a future date. The price and amount is set at the time of the contract. This gives cost certainty to buyers in volatile markets, but also invites outside speculation. The water futures here are tied to the Nasdaq Veles California Water Index, which tracks the spot market for water in California. The index has doubled in value over the past year. Tying futures contracts to the index allows buyers to “lock in” a price long before they will actually purchase water.

Pros and Cons

Proponents of the venture claim that the futures will add price certainty and transparency to the traditional spot water markets. Spot markets typically bring high prices and uncertainty for water users in dry times. Farmers, municipalities, manufacturers, and energy producers can look to the futures market for data on current and past prices. They can use that information to make informed decisions about what future prices might look like in dry times down the road. This allows water users to enter into futures contracts to offset the higher cost of water in the future.

However, some detractors fear placing water futures on the open market undermines water’s value as a basic human right. Pedro Arrojo-Agudo, a UN expert on water, worries that the futures market poses a risk to individual water users. This is because “large agricultural and industrial players and large-scale utilities are the ones who can buy, marginalizing and impacting the vulnerable sector of the economy such as small-scale farmers.” Additionally, trading futures on stock exchanges invites speculation from outside investors like hedge funds and banks. Speculation could lead to bubbles like we saw in 2008 with the housing and food markets. After all, western states that regulate water under the Prior Appropriation Doctrine prohibit water speculation. This fear may be far from realization, though. Analysts believe that water is currently too abundant worldwide to become a highly sought after commodity on global financial markets.

Looking Forward

Though brand new, California’s water futures trading represents an interesting experiment in water market innovation. Currently, spot water markets are the dominant avenue to buy and sell water. Some entities, like the Western Water Market, are trying to make the process easier. These futures are another step in that direction. In Schroeder Law Office’s webinar, “Buying and Selling Water Rights,” we noted the difficulties in developing water markets. For example, water isn’t fungible, water rights include specific conditions and restrictions, and the transfer process is often lengthy, limited in allowable scope, and expensive. On top of that, scarcity issues abound. Although the new water futures trading will not solve those particular problems, it is worth keeping an eye on. Water futures may successfully help California water users better manage prices. If so, futures trading could spread throughout other western states.

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

This blog was drafted with assistance from law clerk Drew Hancherick, a student at Lewis & Clark Law School.

The Nevada Division of Water Resources (NDWR) gave notice to extend the deadline for submitting written comment and testimony on Proposed Orders to Designate Hydrographic Basins related to the hearings held October 12- October 26, 2020. Information on the hearings is available at:

http://water.nv.gov/hearings.aspx.

December 1, 2020 is the new deadline for written testimony, noting all testimony and comments must be postmarked for mailing to the State Engineer on this date.

For more information, go to http://water.nv.gov, under News > Proposed Orders > Notice_of_Hearing > Table_of_Hearings. Here you can find a Table of Hearings on Proposed Orders by location with the associated Hydrographic Basins.

For additional information regarding NDWR Proposed Orders, please read our prior blog. 

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In a previous blog, we looked into who owns an aquifer: does it belong to private individuals or the public? Under the ad coelum doctrine, the surface owner holds the ground itself – rocks, dirt, and the like – as private property, owned all the way down to the Earth’s core. On the other hand, the public collectively owns water, taken for private use through the rule of capture, or the ferae naturae doctrine.^[1] Because an aquifer is a “body of permeable rock which can contain or transmit groundwater,”^[2] the rules related to aquifers are a complex combination of the two competing doctrines. In our previous update, we highlighted a California district court case, Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al, that seeks an answer to the question of aquifer pore space ownership.^[3]

Background

The Agua Caliente Band of Cahuilla Indians (“Tribe”) sued the Coachella Valley Water District and Desert Water Authority (“Defendants”) to protect the aquifer under its reservation from groundwater depletion and water quality degradation. The Tribe argued that the pore spaces within the aquifer are its property under the ad coelum doctrine. The Defendants believe that the public owns pore spaces. The court has not yet addressed the question of whether the pore spaces are public or private property. However, the case has progressed since our last post and we are due for an update.

The Tribe and Defendants agreed to split the litigation into three phases when the Tribe first filed the case in 2013. Phase 1 was to decide whether the Tribe had a reserved right to groundwater in principle. Thereafter, Phase 2 would resolve if this reserved right contained a water quality component, the method of quantification of a reserved groundwater right, and if the Tribe owned pore spaces within the aquifer. Phase 3, if necessary, would quantify the Tribe’s reserved groundwater right and ownership of pore space.

In Phase 1, the court granted summary judgment to the Tribe on its groundwater right claim. The decision essentially declared without a trial that the Tribe did in fact have a reserved right to groundwater. Phase 2 was delayed while the Defendants unsuccessfully appealed to the 9th Circuit and then unsuccessfully sought Supreme Court review.

Update

Like Phase 1, Phase 2 proceeded to summary judgment. The court ruled that the Tribe can seek a declaration that it has an ownership interest in sufficient pore space to store its groundwater. However, the Tribe did not argue that it owns the pore space as a “constituent element” of its land ownership in its initial complaint, and the court could not consider it. Recently, the Tribe submitted an amended complaint including its pore space as “constituent element” of land ownership argument, which is now before the court.

The question of whether the Tribe has ownership of the pore space beneath its reservation is the only item left for the court to decide in this phase; the answer could have a real impact on groundwater issues, as it may be one of the first cases to directly address the pore space question. Another controversy is bubbling over pore spaces in North Dakota, starting with the case Mosser v. Denbury Res., Inc., 2017 ND 169 (2017), passage of H.B. 2344, and legal challenges to the bill by the NW Landowners. Keep an eye on the blog for our next update on this case that could affect you!

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

^[1] https://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos

^[2] Oxford Online Dictionary, https://en.oxforddictionaries.com/definition/aquifer

^[3] The case is presently before the United States District Court for the Central District of California, Docket No. ED CV 13-00883-JGB-SPX. Plaintiffs filed the complaint on May 14, 2013.

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

Wilderness Firefighting Laws 

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

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

Firefighting Restrictions in Practice

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

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

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

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

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

By Therese Ure and Lisa Mae Gage

Nevada Division of Water Resources (“NDWR”) submitted draft administrative regulation amendments to the Legislative Council Bureau for this regulation cycle (the proposed amendments can be found at http://water.nv.gov/documents/NDWR_Prop_Admin_Regs-Hearings_EOT_Water_Right_Surveyor_6-8-2020.pdf ). A public workshop concerning the administrative regulation amendments was hosted by NDWR on June 24, 2020 wherein NDWR received public comments during the workshop and subsequent written comments. Since the workshop NDWR has made revisions to the proposed regulation amendments based on the comments received.

In an effort to keep the public informed of its revised regulation amendment proposal, and in order to allow the public continued opportunity to provide comments, NDWR has advised that 1) it has created and is maintaining an email distribution list to provide communications concerning its ongoing revisions; 2) it is planning on holding at least three (3) additional public workshops prior to the beginning of the 2021 legislative session; 3) it will provide bi-monthly updates regarding the planned workshops; and 4) it does not intend to take the regulations to a public hearing until after the 2021 legislative session concludes.

To stay informed and up-to-date on these possible administrative regulation changes that may affect water right holders throughout the state of Nevada, we suggest signing up for updates via NDWR’s email distribution list. Instructions for subscribing to the notification list can be found by visiting http://water.nv.gov/documents/AdminRegs%20Listserv%20Instructions.pdf.

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 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.