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

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

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

The COVID-19 Webinar series continued the following several weeks, giving you access to Schroeder Law Office’s educational events under the “social distancing” orders! Upcoming webinars will cover common water-related issues, including water use right cancellations, well construction issues, and illegal water uses. Follow our blog for the most up to date information and announcements!

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

The current schedule will include:

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

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

In 2014, the Idaho Department of Water Resources (“IDWR”) proposed adjudicating water rights in the Bear River Basin in Southern Idaho. Now, nearly 6 years later, a bill that would allow IDWR to commence the adjudication is up for legislative consideration. The Idaho House of Representatives unanimously passed House Bill 382 (“HB 382”) on February 10, 2020. The House then sent it to the Idaho State Senate with a “do pass” recommendation on February 11. The third Senate reading of HB 382 is scheduled to occur on February 26.

Adjudicating the Bear River Basin water rights will enable IDWR to “accurately record all existing water rights to resolve uncertainty and to help ensure fair and accurate water administration.” Revised Statement of Purpose RS27284C1/H0382, available here. Many of the water rights in the Bear River Basin hold senior priority dates, but uses have changed over time or are placed to use outside the claimed boundaries due to the passage of time and inconsistent record keeping. Additionally, because of the uncertain nature of many of the water right claims, until an adjudication is completed, senior users who face interference from junior users’ water use cannot seek enforcement of their priorities.

The Bear River Basin is one of only two basins in Idaho that have not yet been adjudicated. In 2014, IDWR signed a final decree closing the Snake River Basin Adjudication (“SRBA”). Several basins in Northern Idaho, including the Coeur d’Alene-Spokane, Palouse River, and Clark Fork-Pend Oreille basins, are currently being adjudicated as part of the Northern Idaho Adjudication project. IDWR’s website provides a summary of past, current, and upcoming adjudications here.

If HB 382 passes the Senate, the final step will be for Governor Brad Little to sign the bill into law. Then IDWR can commence the adjudication by sending notice to water users and property owners within the Bear River Basin. Those users will then have the opportunity to submit claims for historical and ongoing water use. Once the submission period closes, the Court will review all claims and, eventually, issue a decree confirming the water rights.

It is not uncommon for adjudication proceedings to take a significant number of years from their commencement to completion. Idaho has completed its prior adjudications in record time. Even so, the SRBA began in 1987, but a decree was not issued until 2014. Legislature similar to HB 382 authorizing the adjudications in Northern Idaho was passed in 2006; however, Phase 1 of 3 is still ongoing and Phase 2 only just began in April 2019. The Bear River Adjudication would not begin until adjudications in Northern Idaho are complete. Once commenced, it is expected to take 8-10 years.

Stay tuned to Schroeder Law Offices’ blog for updates on the Bear River Basin and other water projects!

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

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

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

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

By Caitlin Skulan and Lisa Mae Gage

On January 31, 2020 the Nevada State Engineer Tim Wilson issued the Order of Determination of the Relative Rights in and to All Waters of the Diamond Valley Hydrographic Basin. This order is the State Engineer’s final determinations of all the vested claims to water in the Diamond Valley Hydrographic Basin.  Nevada Revised Statutes “NRS” Chapter 533 governs the procedure for adjudications before the State Engineer and Court systems.

Filing Final Order with District Court

Now that a final order is issued, the State Engineer will file the Order of Determination with the clerk of the district court in which the water sources are located. The water rights subject to the Diamond Valley adjudication are not located wholly within one county, rather, they are located in Elko and Eureka counties. Elko County District Court is located in the Fourth Judicial District, while Eureka County is located in the Seventh Judicial District. When this happens, Nevada law directs the State Engineer to notify each of the judicial districts of his intention to file the Order of Determination, at which time the judges are to confer and agree upon where the court proceedings will be held. After the Judicial District is determined, the State Engineer will file the Order of Determination, evidence and transcripts with the court clerk. If the judges fail to notify the State Engineer of their decision within a statutorily prescribed period, the State Engineer can file the Order of Determination with the judicial district of his choosing.

Setting of Hearing on Order of Determination

Once the State Engineer’s record (Final Order, evidence and testimony) are filed with the District Court, the District Court will issue an order setting a Hearing on the Order of Determination. The court will provide the State Engineer with a copy of the Order Setting Hearing and the State Engineer will mail a copy to all interested parties. In addition, the State Engineer will publish the Order setting hearing in newspapers of general circulation for Elko and Eureka counties.

Exceptions to the Order of Determination

If any party feels aggrieved or dissatisfied with the Order of Determination they can file objections. At least five (5) days before the date of the hearing, that party must file with the District Court their objections by filing a Notice of Exceptions to the Order of Determination. This notice must state briefly the exceptions to the order and give the party’s requested prayer for relief.

Hearing on Order of Determination and Decree

If no exceptions to the Order of Determination are filed, on the day of the hearing the Court can issue its Findings of Fact, Judgment and Decree (“Decree”). If exceptions are filed, each party filing exceptions will appear at the hearing. The Court will prepare and provide all parties a copy of its Proposed Findings of Fact, Judgment and Decree at least thirty days before it intends to execute the Decree. Once the Decree has been executed by the District Court, there is a further opportunity to appeal to the Nevada Supreme Court.

While the issuance of the State Engineer’s Order of Determination is a good milestone in determining the vested rights in the Diamond Valley Hydrographic Basin, we may still be a long way from obtaining a final Decree.

In July, 2020, attorney Laura Schroeder will hit the road and travel to Idaho to teach a series of classes on “Water Law for Utilities.” The classes are put on by the Idaho Rural Water Association (IRWA) and are approved by the State of Idaho Bureau of Occupational Licenses for 0.6 drinking water or wastewater Continuing Education Units.

Laura regularly presents to small and large groups in and around the Portland metropolitan area. However, this is the first time since 2018 that she will make it to Idaho. Then, she worked with IRWA to teach a series on understanding and managing municipal drinking water rights. This time around, she will focus on water utilities.

In these classes, Laura will provide an overview of water rights in the State of Idaho and how water utilities are impacted by the laws and statutes that govern those rights. She will also address water quality, quantity, and access issues, including a brief discussion of easement law. Finally, she will go over some of Idaho’s public meeting laws and how they pertain to water utilities.

Laura will teach in Twin Falls, Idaho on Monday, July 14, in Pocatello, Idaho on Tuesday, July 15, and in Fruitland, Idaho on Thursday, July 17. For more information or to register, check out the calendar of events on the Idaho Rural Water Association’s website: https://www.idahoruralwater.com/Training/Calendar.aspx. And don’t forget to follow Schroeder Law Offices’ blog for more upcoming events and news on water law developments throughout the northwest!

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

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

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

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

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

Starting September 29, 2019, natural gas providers in Oregon will have a new, renewable way of powering their customers’ homes. Governor Kate Brown executed a new law at the end of July, 2019 allowing capture, treatment, and conversion of methane found in wastewater into renewable natural gas (“RNG” or “biogas”), which can then be used to provide power to homes using existing infrastructure.

While converting wastewater to RNG is more expensive than fracking, biogas burns more cleanly than traditionally-obtained natural gas and provides environmental and health benefits by significantly reducing carbon emissions. Additionally, the law requires utility companies to “deliver service as cheaply as possible,” a contingency aimed at preventing a steep increase in price to the consumer.

Lane County, Oregon will begin construction of facilities to produce RNG next year. The biogas will then be sold to public utilities for distribution to their customers as early as 2021. Originally, Lane County planned to use the biogas as an alternative source of fuel for vehicles. Now, the practical potential to use biogas as a renewable resource has expanded.

With the passage of this law, biogas can be used to power homes and businesses. However, RNG has long been used throughout the State of Oregon as a source of renewable energy.

Since 1986, the Columbia Boulevard Wastewater Treatment Plant in Portland, Oregon has used biogas produced and captured at the plant to heat the plant itself, along with a nearby industrial roofing facility. Portland is also developing facilities to convert methane to biogas for use as an alternate source of fuel for diesel engine vehicles. The fuel will be sold to the public and used for City vehicles. Production is expected to begin in early 2020.

Threemile Canyon Farms near Boardman, Oregon started converting cow manure into electricity in 2009, and has expanded its facilities multiple times in the past decade. Currently, the dairy is the largest manure digester in the western United States. In 2017, it announced its plan to begin converting wastewater into RNG. In April, 2019, the Department of Environmental Quality approved Threemile’s application for a modified air quality permit, allowing it to move forward with the project.

The Durham Water Resource Recovery Facility in Washington County, Oregon repurposes wastewater in a variety of ways. The facility has captured phosphorus in wastewater and converted it to fertilizer since 2009. The fertilizer is then sold commercially around the Pacific Northwest. Since 2016, it has also converted wastewater and food grease into electricity that provides 60% of the plant’s power.

In these ways, Oregonians have been meeting Clean Water Act and Clean Air Act requirements through innovations that also provide additional revenue streams. We are excited to continue watching these industries move forward and spread to larger applications.

Stay tuned to Schroeder Law Offices’ blog for updates on these and other projects!

Notice regarding final requests for revision of the mapping of Newlands Project Water Rights has been issued by the Nevada Division of Water Resources (“NDWR”). NDWR is overseeing the revision process of identifying and mapping water rights in the Newlands Project, and will be assisting water rights owners with identification and revision as is required. Though more information regarding the project schedule can be found on NDWR’s online database, the following workshop dates will be available to Newlands Project water right owners at the below-listed locations:

Fernley City Hall
Room 136
595 Silver Lace Blvd.
Fernley, NV 89408

• Monday, August 26, 1:00pm to 7:00pm
• Tuesday, August 27, 1:00pm to 7:00pm
• Wednesday, August 28, 9:00am to 3:00pm
• Thursday, August 29, 9:00am to 3:00pm

Churchill County Commissioners
Community Room
155 N. Taylor Street, Suite 110
Fallon, NV 89406

• Monday, September 9, 1:00pm to 7:00pm
• Tuesday, September 10, 1:00pm to 7:00pm
• Wednesday, September 11, 9:00am to 3:00pm
• Thursday, September 12, 9:00am to 3:00pm

The final map viewing and revision process started on July 1, 2019, with all Requests for Revision and supporting documentation due to NDWR no later than September 30, 2019. Upon review of water rights, owners can provide updates to NDWR via NDWR’s Request for Revision form.

Newlands Project water right owners are encouraged to review their water rights of use and submit the Request for Revision form if they believe that their water rights are inaccurately represented by the mapping project. Once all revision requests have been received and reviewed, the State Engineer will make final determinations. Currently, the completion date for the final report is set for September of 2020.

Upon request, Schroeder Law Offices can assist Project water users in the process or otherwise advise on the legal consequences of improperly mapped water rights.

On July 24, 2019, Tim Wilson, Nevada Division of Water Resources’ acting State Engineer gave an informative presentation on the 2019 Legislative Session. Mr. Wilson provided summaries of several water related bills that were introduced and/or passed during this session. A few of the more interesting bills are described below.

Assembly Bill 62 (AB 62)

AB 62 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of Nevada Division of Water Resources (“NDWR”) on November 19, 2018. This bill proposed legislative changes concerning the granting of Applications for Extensions of Time for Proofs of Completion only. It does not address Extensions of Time for Proofs of Beneficial Use. Currently a permittee is allowed any number of extensions of time to file a Proof of Completion of Work. According to Mr. Wilson, the threshold for granting an extension of time for a proof of completion is unreasonably low as the permittee need only show good faith and reasonable diligence to perfect their water right application. NRS 533.380 defines “reasonable diligence” as the “steady application of effort to perfect the application in a reasonably expedient and efficient manner under all the facts and circumstances.” Water cannot be placed to beneficial use unless and until the construction works are complete. Mr. Wilson noted that the granting of unlimited extensions of time is undermining the basic principal of beneficial use.

AB 62 sought to develop hard time limits on the filings of the Proofs of Completion of Work depending on the size of the project and the amount of money expended on the project. For example, a permit for municipal use would require a Proof of Completion to be filed within 15 years and at least $50,000 must be expended on the project. A permit for an irrigation or stockwater use would have a 5 year cap with a much smaller minimum expenditure. To accommodate permittees who are unable to complete construction of works for reason outside of their control, AB 62 proposed a “tolling” provision to suspend the time limit for express conditions such as the permittee is waiting on federal, state or local government consent necessary for the project or a pending court action or adjudication.

Many amendments were made to AB 62 and the bill was eventually passed by both the Assembly and the Senate. The Governor removed the majority of the language proposed, updated the statute to direct the State Engineer to adopt any regulation necessary to carry out provisions of the statute concerning Proofs of Completion and ordered that copies of the regulations be provided to any person upon request, signed the Bill, and directed NDWR to draft regulations. AB 62 as-enacted can be found at (https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/5987/Text). Workshops and public meetings will be held and NDWR plans to make the draft regulation language and updates available on their website at http://water.nv.gov/index.aspx.

Assembly Bill 95 (AB 95)

AB 95 was introduced by the Committee on Natural Resources, Agriculture, and Mining on behalf of the Legislative Committee on Public Lands on January 24, 2019. This bill proposed legislative changes for domestic well allowance during times of curtailment. Nevada statutes at NRS 534.110 require the State Engineer to conduct investigations of basins, or portions of basins; and, where it appears there is not enough groundwater supply to satisfy permittees and vested rights holders’ withdrawals, the State Engineer may order withdrawals (including withdrawals from domestic wells) to be restricted based on priority.

AB 95 amends the statutes so that in the event the State Engineer finds, or a court orders, State Engineer restriction, State Engineer curtailment, or basin designation under a Critical Management Area, the State Engineer can allow a domestic well to withdraw up to 0.5 acre feet annually, if it can be recorded by a water meter. The revised statute does not make domestic wells immune to curtailment but ensures they will still receive some water. AB 95 was passed by both the Assembly and Senate and was signed by the Governor. AB 95 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6082/Text.

Senate Bill 140 (SB 140)

SB 140 was introduced by the Committee on Natural Resources on February 11, 2019 and proposed to reserve 10 percent of water available for appropriation in certain basins not yet fully or over appropriated. Senator Pete Goicoechea testified that the intent of SB 140 is to “avoid over-appropriation of available water in basins by placing a marker for retention.” SB 140 was passed by the Senate and Assembly and signed by the Governor. SB 140 as-enacted can be found at https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6171/Text. As enrolled, NRS 533 will now include a provision wherein for each basin where there is uncommitted groundwater pursuant to existing permits, certificates or otherwise, the State Engineer shall reserve 10 percent of the total remaining, non-committed, unappropriated groundwater. As introduced, SB 140 intended for the reserved water to be available for use during times of drought or emergency, however, as enrolled, the statute further explains that the groundwater reserved in the basin is not available for any use.

During the presentation many questions and comments were posed as to how this will be implemented, and all the issues that come into play practically as well as legally. NDWR now must attempt to figure out the amounts of uncommitted water available: pending applications need to be resolved before this determination can be made; NDWR needs to determine how to address consumptive vs. non-consumptive uses; and, NDWR needs to decide how to address areas where basins share perennial yield amounts. One can only anticipate that this Bill will be amended in the future.

It is no secret that Nevada water is a precious resource that needs laws in place to protect its availability to current and future water users. Several bills in the 2019 session related to the protection and conservation of water. Nevada’s precarious water situation has gained the attention of our legislature and it will be interesting to see what water related bills will be introduced next session.

Schroeder Law Offices is pleased to announce that Attorney/Partner Sarah Liljefelt accepted the position of Water Resources Committee Chair for the Oregon Cattlemen’s Association, beginning in the coming year. Sarah has been a member of the Oregon Cattlemen’s Association for many years, and has been very active with the Oregon CattleWomen as Vice President and Legislative Committee Chair. She is excited to use her Oregon water resources knowledge to support and defend the Oregon Cattlemen’s Association’s water interests in the years to come.

Sarah’s new position was announced earlier this week when she presented at the Oregon Cattlemen’s Association’s Mid-Year Conference in Canyonville, Oregon. Sarah provided an update on the Klamath River Basin Adjudication and conjunctive surface water/groundwater management in the Klamath Basin. Some of the other highlights from the conference included an update of Western Resources Legal Center’s recent victories by Executive Director Caroline Lobdell (Sarah is a former WRLC law clerk), and a trip to Melrose Vineyards (https://www.melrosevineyards.com/) with the Oregon Cattlewomen – beautiful location, friendly staff, and great food and wine!

When most of us think about the changing seasons, we think about the change in weather. When we think about the transition to Summer, we think about the days getting warmer. When we think about the transition to Winter, we think about the days getting colder. There is much more to changing seasons than changes in weather.

According to Merriam-Webster, the definition of a season is “a period of the year characterized by or associated with a particular activity or phenomenon.” Examples of this definition include a period associated with activities of agriculture such as growth or harvesting, irrigation seasons, periods when animals engage in certain activities like migration, birth of offspring, and moving from high “summer” country to low “winter” country. In life, one can characterize the seasons with the circle of life with birth or renewal in the spring and death, hibernation and sleep in the winter. There are so many ways we can perceive these natural changes each year.

The National Oceanic and Atmospheric Administration points out that seasonal changes in turn affect soil moisture, evaporation rates, river flows and lake levels. The subsequent changes in vegetation also affect the amount and kinds of crops and food available for humans, animals and other organisms.

The effects of seasonal changes also present potential risks. The Federal Emergency Management Agency (“FEMA”) provides warnings of risks presented in the seasonal change to Spring. FEMA notes that while Spring typically brings warmer weather and longer days, it also brings risk associated with heavy rains, severe weather and rapid snowmelt that can lead to flooding and/or damage to levees and dams. For more information concerning risks and protection from spring flooding, please visit FEMA’s “What You Should Know” at https://www.ready.gov/sites/default/files/Spring_Flood_Fact_Sheet.pdf.

So, as the seasons change and we swap out our wardrobe for the changing temperature, lets remember a change in season is so much more than just a change in weather.

Each year during the month of March, the United Nations (“UN”) hosts a “World Water Day.” Friday, March 22nd marks 2019’s World Water Day focusing on sustainable water development goals for everyone by 2030. Annually, the UN hosts World Water Day to bring attention to the world’s water crisis and address reasons why so many people are left without clean drinking water. A series of international events are scheduled to call attention to the world’s water crisis and offer forums to exchange ideas regarding water availability through sustainable development.

As 2019’s theme is “Leaving no one behind,” the UN has made resources available to the public to explore the theme – what the problem is, how it relates to water, what “safe water” means, and why it’s so important as a human right. The UN’s notes that more than 2.1 billion people live without safe water at home, and as many as approximately 4 billion people (nearly two-thirds of the world’s population) experience severe water scarcity at least one month of the year. In effort to combat the possibility of 700 million people worldwide being displaced by intense water scarcity by the year 2030, this year’s theme focuses on what can be done to include all demographics in conversations about water development and recognizing the right to water for all people.

The “Fact Sheet” on World Water Day 2019 shows us how we can be involved, whether it’s sharing resources or through organizing events or activities. There is also a list of events found at their website, both local and international. Though many of the currently scheduled events are taking place internationally, sharing information with those around you is equally important.

The 20th annual National Groundwater Awareness Week will occur between March 10 – March 16, 2019, and this year’s theme for awareness is “Think.” Though a simple theme, through “Think,” the National Groundwater Association (“NGWA”) urges us to “think” about how we impact our groundwater resources in our everyday lives.

For National Groundwater Awareness Week 2019, NGWA encourages us to consider small steps taken to improve the general public’s awareness of groundwater use and its importance in our every day lives, i.e. “Think” about not running the water while you brush your teeth, or, “Think” about fixing the leaking faucet. Sometimes it’s the smallest things that makes the biggest differences!

Taking steps to conserve and protect groundwater is of utmost importance to all as we depend upon groundwater for basic needs. According to NGWA research, approximately 132 million American rely on groundwater for drinking water. Besides drinking water, groundwater consists of a major resource in food and power production, including irrigation, livestock, manufacturing, mining, thermoelectric power, and many other resources. NGWA offers the following facts for consideration:

• Americans use 79.6 billion gallons of groundwater each day.
• Groundwater makes up 20 to 30 times more water than all U.S. lakes, streams, and rivers combined.
• 44 percent of the U.S. population depends on groundwater for its drinking water supply.
• More than 13.2 million households have their own well, representing 34 million people.

“Think” about that!

As a part of 2019’s Groundwater Awareness Week, NGWA will be participating in the Water Resources Congressional Summit to bring federal support for groundwater awareness. Topics for the summit will focus on bringing federal support for detection and remediation regarding PFAS contamination, increasing efforts to promote groundwater recharge, and bolstering support for drinking water infrastructure improvement. More information and educational tools on the 2019 summit topics can be found at the NGWA’s online database.

“Think” about what you might do to bring groundwater awareness to your friends and family!

According to Black’s Law Dictionary, the Public Trust Doctrine preserves submerged and submersible lands for public use and the state bears the responsibility of preserving and protecting the public’s right to use the water upon it. Can this doctrine have an impact on your water rights, and if so, how? The Nevada Supreme Court is currently considering how the Public Trust Doctrine will apply in Nevada. Specifically, the two certified questions being considered by the Court are:

1. Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent?
2. If the public trust doctrine applies and allows for reallocation of rights settled under the doctrine of prior appropriation, does the abrogation of such adjudicated or vested rights constitute a “taking” under the Nevada Constitution requiring payment of just compensation?

Several Amicus briefs have been filed and more are expected.

Most recently the Nevada Water Resources Association held a discussion at their annual conference debating the many issues related to the intersection of Public Trust Doctrine and already Decreed water rights on the Walker River system. Schroeder Law Offices’ shareholder Therese Ure will be presenting in March on the Public Trust Doctrine and how it applies to water rights to a small group in Lovelock Nevada, to further consider the intersection of Decreed water rights and this Doctrine.

At the end of 2018, the Oregon Water Resources Commission adopted new rules to facilitate small municipal water suppliers’ completion of Water Management and Conservation Plans (“WMCP”). The Oregon Water Resources Department (“OWRD”) stated the new Oregon Administrative Rules (“OAR”), OAR 690-086-0300 to 0370, are intended to provide more flexibility for small municipal water suppliers to meet water conservation and curtailment objectives. Small municipal water suppliers in turn hope the new rules will reduce complexity to lessen the financial and staffing challenges previously associated with completing a WMCP.

WMCPs are only required to be submitted to OWRD if required by a water right permit condition, a Final Order approving a permit extension of time, or a Final Order approving a previous WMCP. While WMCPs are otherwise optional, OWRD encourages submission as a way to pursue long term water supply planning.

A Small Municipal Water Supplier is defined under the new OARs as: (1) a municipal water supplier that serves a population of less than 1,000 people or has less than 300 service connections, and (2) within the previous 5 years, the system’s maximum daily demand or maximum instantaneous rate, has not exceeded 2 million gallons per day or 3.1 cubic feet per second.[1] If a water supplier satisfies that definition, then it may be able to complete an “Alternate Municipal WMCP” in accordance with the new OARs.

Rather than submitting a regular WMCP, an Alternate Municipal WMCP may be submitted by a Small Municipal Water Supplier, if in order to meet current and projected demand in the next 10 years the supplier will not need to:

• Acquire a new water right; or
• Expand or initiate diversion of water allocated under an Extended Permit.[2]

Another notable change in the WMCP OARs is the revision to the annual Water Audit provisions. If a Municipal Water Supplier notes Water Losses exceed 10 percent within 2 years of approval of its WMCP, the supplier must undertake steps to explain the losses and remedy the situation.[3] However, Small Municipal Water Suppliers completing an annual Water Audit need only remedy losses if the Water Losses exceed 15 percent and the supplier serves a population greater than 300 people or has more than 100 service connections.[4]

Therefore, Small Municipal Water Suppliers that must soon complete a WMCP should determine whether an Alternate Municipal WMCP is appropriate, and what impact the new OARs will have on the supplier as it completes its WMCP. Schroeder Law Offices frequently works with municipal water suppliers and consultants to ensure WMCPs comply with the OARs and to assist in obtaining OWRD’s approval.

[1] OAR 690-086-0030(8).

[2] OAR 690-086-0300(1).

[3] OAR 690-086-0150(4)(e).

[4] OAR 690-086-0350(4)(e).

The Fallon Range Training Complex (“FRTC”) Modernization Draft Environmental Impact Statement (“EIS”) comment period has now been extended so that public comments may be submitted through Thursday, February 14, 2019. There are several public informational materials available to the general public regarding the modernization, materials can be found at the draft EIS website and include fact sheets and maps regarding the management of natural and cultural resources for FRTC.

The FRTC Modernization Draft EIS assesses the potential environmental impacts of the proposed modernization of the Navy’s FRTC located in Fallon, Nevada and focuses specifically on modernizing the complex to provide the Navy with more realistic training capabilities while maintaining the safety of the local community. The public is encouraged to review the materials and submit comment should they have concerns regarding adverse impacts to the community; comments can be submitted to the Draft EIS by mail or online at the FRTC Modernization database. All comments that are submitted during the public comment become a part of the public record and substantive comments will be addressed in the Final EIS.

The Final EIS statement is expected to be prepared and available to the public by Fall 2019, and will include updates to the Draft EIS and response to any substantive comments submitted during the draft comment period. Once the Final EIS statement is released, there will be a 30-day waiting period for consideration of comments and public review. The Record of Decision is expected to be available by Winter 2019-2020.

Public workshops on the Humboldt River Modeling Efforts will be held in January 2019! The Nevada Division of Water Resources (“NDWR”), in conjunction with US Geological Survey and Desert Research Institute, will be presenting the latest information in the ongoing studies of the Humboldt River Basins. Times and locations for the public workshops can be found in NDWR’s official announcement.

The workshops are held for the general public and attendance is encouraged as officials work to prepare a conjunctive management plan for administration and management of groundwater and surface water of the Humboldt River and its tributaries.

Humboldt River Modeling workshops are held on an annual basis to update the public regarding governance and use of the river system. A study began in 2015 and the workshops are used to update and provide information to the draft report, with input from the public water users as well as hydrology and geology specialists at NDWR, the US Geological Survey, and the Desert Research Institute. A draft of the final report is expected to be prepared by the first quarter of 2019.

            Are aquifers public or private property? The question is more complicated than it first appears! To answer the question, one must dive down into the fundamental origins of our legal system, fraught with complicated Latin phrases, just like the dangers of the deep itself!

            Aquifers are scientifically defined as a “body of permeable rock which can contain or transmit groundwater.”[1] However, the word, in its common use, refers to the groundwater, not the permeable rock that actually makes up the aquifer. Traditionally, rocks, soil, and dirt are considered private property under the ad coelum doctrine, making them private property owned by the overlying landowner.[2] Ownership under this doctrine reaches from the atmosphere above to the center of the Earth, shaped like vertical column. However, water is traditionally seen as commonly owned by the public, available for private use under the ferae naturae doctrine. Under this doctrine, water is commonly owned, like wild animals, but can be captured and privately used, like by hunting and capturing it. The various water doctrines, including prior appropriation, the rule of capture, and riparianism, all derive from a negotiation between these two doctrines.

            The law continues to navigate the paradox of aquifer ownership: Is the aquifer the water or the rocks holding it? At least one court is now facing this challenge. The California case Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al places this question at the heart of the litigation.[3] The Agua Caliente Band of Cahuilla Indians (“Tribe”) filed a suit to protect the aquifer underlying their reservation from groundwater use that threatened to cause subsidence, contamination degrading water quality, and aquifer recharge activities that filled storage space with foreign water. As part of the Tribe’s claim, they assert that the Tribe owns pore spaces (storage) within the aquifer that are being permanently destroyed by subsidence. The Tribe argues under property principles that the pore spaces are a part of the reservation under principles of the ad coelum doctrine. The opposing parties argue that the pore spaces are publicly owned, and the Tribe cannot claim injury to something they never owned or, in the opposing argument, “captured” under the ferae naturae doctrine. While the trial is still ongoing, the court will eventually have to face the core question: Are aquifer pore spaces public or private property?

            While the debate over ancient Latin phrases, injury, and rocks may seem like an uninteresting legal squabble, the results of the case could have real ramifications for many groundwater issues! For example, could an artificial recharge project seeking to replenish depleted aquifers actually be trespassing, if aquifers are privately owned? Or, if publicly owned, can a neighbor to the recharge project whose land is inundated with water have shaky ground to make a claim, since they do not own the pore spaces? Courts will likely have to wrestle with these questions for many years to come.

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

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

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

[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. The complaint was filed on May 14, 2013.

On October 23, 2018, President Trump signed America’s Water Infrastructure Act (“AWIA”), also known as the Water Resource Development Act, into law. This bipartisan bill, which previously passed the House of Representatives on September 13, 2018 and the Senate on October 10, 2018, aims to improve dams, levees, ports, and waterways throughout the United States. It also amends the Safe Water Drinking and allocates funds toward more efficient and sustainable water quality control and management, particularly in underserved communities.

As its name might suggest, one of AWIA’s main goals is to improve America’s water systems. Under AWIA, the U.S. Army Corps of Engineers will receive around $3.7 billion to plan, study, and develop water projects to alleviate strain on existing infrastructure. In the Northwest, the Port of Seattle is specifically slated to undergo construction to improve navigation channels, as are several other key ports around the United States. AWIA also has specific provisions that focus on flood protection measures on the Snake River and levee improvements in Clatsop County, Oregon, among others.

One of the most notable aspects of AWIA is how it addresses the ongoing water shortages in Northern California/Southern Oregon’s Klamath Basin. AWIA provides a much-needed $10 million annuity to the Bureau of Reclamation to address ongoing water issues in the Klamath Basin, and provides avenues for farmers to make use of Klamath Project canals to deliver water to their farms. AWIA also focuses on increasing efficiency and sustainability of hydropower and delivery of affordable electricity to those same farmers.

Stay tuned to Schroeder Law Offices’ blog for more updates on AWIA’s progress and impacts on water in the Northwest and the United States!