On January 23, 2018, after more than 10 years of discussion and revision, the Washington Department of Ecology adopted the Reclaimed Water Rule. The Rule will go into effect on February 23, 2018. You can read the Rule in its entirety here.

Reclaimed water has long been used in the State of Washington for industrial, commercial, and construction purposes, as well as a way to replenish wetlands and aquifers. The Revised Code of Washington Chapter 90.46, put into effect in 1995, governs the acquisition, use, and treatment standards for reclaimed water, and establishes the permitting process for both wastewater discharge and reclaimed water use. The goal of the newly-enacted Reclaimed Water Rule is to work hand-in-hand with this existing legislation to streamline the process of acquiring permits and to make clear the methods and standards of treatment required in order for wastewater to be deemed acceptable for commercial, industrial, and institutional uses.

By making the route to reclaiming water more straightforward, the Department of Ecology hopes to encourage water users to limit their discharge of wastewater back into the environment and decrease overall draw from groundwater sources to preserve limited water resources, particularly during the dry summer months. If reclaimed water can be used in the place of potable water for purposes like flushing toilets or watering lawns, the impact of these activities can be substantially mitigated. A good overview of the potential uses and benefits of reclaimed water can be found on the Department’s website.

One of the main concerns about the Reclaimed Water Rule, and a major reason why it remained on the back burner for the better part of 12 years, is the potential for infringement upon senior water users’ rights. By reclaiming water that would otherwise flow into streams, lakes, or aquifers and reusing it without it being reintroduced into the originating source of water, the amount of water available to water right holders that had access to those “returns” could be diminished. As a result, the Rule was amended to include provisions for compensation and mitigation should such infringement occur; however, consistent with procedure for issuing all water right permits, no permits shall be issued to projects that impair the rights of senior water users.

While reclaimed water is not designated as drinkable, it is still subjected to strenuous testing and treatment processes similar to those which drinking water undergoes. Following initial treatment at a water treatment plant, wastewater is further filtered, disinfected, and repeatedly tested to ensure that it can be safely introduced into the environment. Once it has been approved as safe, reclaimed water can be used to irrigate crops, fight fires, clean streets, and control dust, among other uses. The Washington State Department of Health issued a “Frequently Asked Questions” memorandum last summer, (available on their website) that briefly details the public health protections covered in the Reclaimed Water Rule.

If you are interested in learning more about the Reclaimed Water Rule and the permitting process, the Washington Governor’s Office for Regulatory Innovation and Assistance has assembled an overview that provides greater detail about the Rule and the application process.

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

By Therese Ure and Lisa Mae Gage

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

NDWR Database

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

Dual Recording System

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

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

Changes in Water Right Elements

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

Basin Wide Orders

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

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

In November 2017, the United States Army Corps of Engineers (Corps) published the Willamette Basin Review Feasibility Study, Draft Integrated Feasibility Report and Environmental Assessment (Study). The purpose of the Study (which can be viewed in its entirety here) is to evaluate the reallocation of 1,590,000 acre-feet of Willamette Valley Project stored water. The Study analyzes current and future water demand in the Willamette basin to determine how the water should be reallocated. The analyzed demand uses include agricultural irrigation, municipal and industrial water supply, and conservation storage for Endangered Species Act listed fish. 

The Corps constructed a series of thirteen federal reservoirs in the middle and upper Willamette Basin beginning in the 1930s. Currently, the water is stored under Bureau of Reclamation water use rights that authorize storage for irrigation. The Corps’ proposal would reallocate 962,800 acre-feet of water to fish and wildlife. This discrete category has been allocated the most water in the draft Study, followed by agricultural irrigation at 253,950 acre-feet, and municipal and industrial with the least at 73,300 acre-feet.

For those keeping score at home, those figures do not add up to the allocated 1,590,000 acre-feet. The Corps chose to earmark 299,950 acre-feet to what the agency is classifying as “joint-use.” Joint use allocation is water that can be assigned to any of the other three discrete categories. Thus, the Corps would simply hold that amount in reserve to accommodate “unforeseeable changes to demand trends.” Simply put, this provides the Corps flexibility in the future to disperse water according to demand while simultaneously allowing the agency to avoid allocating all of the water at the current time.

While everyone can agree more water available for appropriation is a good thing, some are unhappy about the way the Corps has proposed to allocate stored water. The Capital Press reported the Oregon Farm Bureau’s position is that water allocated to agricultural irrigation is “not nearly enough.” 

There is still much uncertainty about what will happen next and how long the process will take before water stored in the Willamette Valley Project is available for appropriation. The Study is currently a draft environmental assessment under the National Environmental Policy Act (NEPA). Therefore, the Corps is still in the stage where it is developing and evaluating the alternatives. The comment period on the draft Study closed on January 5, 2018.

If the Corps finds no significant impact from the chosen alternative action in the NEPA process, water will then need to be reallocated to the proposed uses. Because the Bureau of Reclamation currently holds the water right certificates that authorize storage for irrigation, the federal agencies must go through the Oregon Water Resources Department’s transfer review process to change the purposes of use for the Project storage rights.

Only after the water use rights authorizing storage in the Project are transferred to the reallocated uses will the water be available for new appropriations in addition to the current authorized use, irrigation. The reallocation could stimulate a rush to the Oregon Water Resources Department’s office for application submission. As the old adage goes, “the early-bird gets the worm.” More aptly, those ready to file for a water right upon the successful completion of the impending process are more likely to get to obtain a much-coveted water use right from the reallocated storage.

Stay tuned to Schroeder Law Offices’ Water Law Blog as this process unfolds!

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

A jury recently decided in Malheur County Circuit Court Case #16CV32005 that local farmers, Delos & Barbara Lee, were entitled to the lost profits they incurred when Owyhee Irrigation District (“OID”) failed in 2014 to deliver the Lees their entire allocation of water and delivered their 2015 allocation in late July. The jury decided OID was negligent based on a computer error that caused the Lees to receive the improper allocations of water.

The Lees grow alfalfa and have farmed in the Oregon Slope area their entire lives. The Lees discovered OID’s computer error in late 2015 after complaining to OID beginning in 2014 that even though they had timely paid their yearly assessments for water delivery, they were not receiving their full water allocation. While there was a drought in 2014 and 2015 that reduced water allocations throughout OID, the failure to deliver even the reduced allocation to the Lees’ 39 acre field caused their hay stand and hay production to suffer more than would otherwise have occurred if the Lees had received the reduced allocation of water.

In late July 2015, OID admitted that it failed to deliver any of the water allocated to the Lees’ 39 acre field in 2014 and had yet to deliver the 2015 water allocation. After its admission, OID then delivered water to the Lees, but it was too late for the Lees’ hay stand to produce as it would have otherwise. At trial, the jury found OID’s failure to deliver and failure to timely deliver water made OID negligent and awarded judgment in favor of the Lees for the entire amount of Lees’ lost profits.

Unfortunately, the judgment will not “make the Lees whole” due to the expense of the case going to trial rather than settling. Additionally, OID has now decided to appeal the decision to the Oregon Court of Appeals. OID argued at trial, and may take up a similar argument on appeal, that a U.S. Bureau of Reclamation (“BOR”) Repayment Contract from 1951 between the BOR and OID, along with other irrigation districts, makes OID wholly immune from liability even when OID failed to deliver water to the Lees when the water was allocated and available for delivery. The BOR repayment contract is a contract for the irrigation districts to repay the BOR for the construction obligations incurred to build the Owyhee Project.

Schroeder Law Offices was privileged to have the opportunity to work with the Lees to hold OID accountable for its failure to deliver water that was available, paid for, and allocated to the Lees.

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

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

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

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

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

2017 was an eventful year for the team at Schroeder Law Offices (“SLO”). As SLO moves toward a productive 2018, we are pleased to highlight the exciting events of 2017 and what’s ahead in the New Year!

In February we hosted a reception honoring Al Steninger at the Society for Range Management in St. George, Utah. Shareholders Laura Schroeder and Therese Ure, as well as Alan Schroeder, had the honor of celebrating the Sustained Lifetime Achievement Award for range consultant Steninger, long-time friend and consultant to the firm.

In April 2017, our Reno Office received a new home moving from the mid-town area to south Reno. The new office includes convenient parking and approx. 2,600 sq feet divided into a roomy, reception area, large and small conference rooms, multiple private offices, and work areas. Should our out-of-town client need a space to work or meet in Reno for a day or more, we have space to share.

After settling in, SLO hosted an open house for all of our clients, consultants and friends to come check out the new Reno space! We enjoyed this event as the Portland team came to Reno to assist in this celebration, complete with Stix Cattle Company barbequing tri tip!

Following the Open House event and team Schroeder’s participation in the Dust Devil Triathlon in Fallon, NV, the SLO team went out to the field! Our firm serves a wide variety of water users including local farmers, and we had a great time learning more about irrigation systems in Northern Nevada from local expert Norm Frey of Frey Ranches, learning about the cattle industry at Stix Cattle Company, and touring the local livestock auction at Fallon Livestock LLC.

While we had a busy year among our Reno Office move, open house, and field day, we are honored to highlight some of our SLO team member’s developments during 2017.

• Associate Attorney Lindsay Thane passed not only the Oregon State Bar in May 2017, but also passed the Montana State Bar in September 2017 – adding a seventh state to our firm’s licensing!
• Legal Secretary Mollie Finke joined our Portland team in April, making her debut in the legal field.
• In November, our Portland team added a new Paralegal, Rachelq Harman.
• In December, paralegal Tara J. Jackson took a sabbatical, chasing sunny weather with a couple of weeks exploring the north island of New Zealand, enjoying beautiful vistas and mountain biking and finished out her time in Arizona spending more time on her bike and with family. Tara is now back on board.

In the New Year, SLO is looking forward to hosting more classes and/or workshops regarding water law. In 2017 as well as past years, SLO Shareholders Therese Ure and Laura Schroeder have hosted water rights bootcamp classes as well as real estate water right classes. Keep an eye on our coming events list for classes and events to come in 2018, or check out our speaking and presentations page for a list of topics.

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

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

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

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

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

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

Update:

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

By: Lisa Mae Gage and Therese Ure

On September 27, 2017, the Supreme Court of the State of Nevada issued an opinion concluding the longstanding battle between the Nevada State Engineer, Nevada Division of Water Resources and Kobeh Valley Ranch LLC (“KVR”), and Eureka County, Kenneth F. Benson, Diamond Cattle Company, LLC., and Michel and Margaret Ann Etcheverry Family LP regarding the Nevada State Engineer’s issuance of water use permits to KVR. This dispute involved KVR’s proposed future mitigation plan. After several appeals and remands before the Nevada Division Water Resources, the Seventh District Court in Eureka County and the Supreme Court of Nevada, the matter ended.

The Etcheverry family, among others, fought for over seven years to protect their senior permitted and vested water rights from the impacts proposed by a series of change applications filed by Kobeh Valley Ranch. Evidence presented before the Nevada Division of Water Resources and the Courts showed conflicts to senior users would unarguably occur. Kobeh Valley Ranch asserted that it may be able to mitigate the conflicts through a proposed future mitigation plan. Without any guarantee that a proposed future mitigation plan would in fact protect the senior rights of water users, senior users fought back. This fight ended with a Supreme Court decision upholding the prior appropriation system, protecting senior water right holders and preventing a party such as KVR from circumventing the statutory requirements put in place to protect existing rights.

After the repeated appeals and remands and dragging the parties through multiple contests and court challenges, the Supreme Court offered a reprieve finding “KVR is not entitled to a second bite at the apple after previously failing to present sufficient evidence of mitigation”… and “KVR is not entitled to a do-over after failing to provide substantial mitigation evidence.” State Eng’r v. Eureka Cty., 133 Nev., Adv. Op. 71 (2017). Although it may seem like a small win to the parties to the matter, it is also a great victory in the battle to protect our valuable water resources.

Today is World Food Day and we see many promoting their initiatives to fight hunger as they celebrate October 16, 1945 – founding day of the Food and Agriculture Organization of the United Nations.

One of Schroeder Law Offices’ missions is to support people feeding the world. We do this by offering legal services for those farmers and ranchers out there who are growing crops to feed the world, or otherwise contributing to the food and fiber industries in this and other countries.

Just this summer, we toured our clients’ properties learning how they are using technology and advancements to increase their crop yields on the same acreage with the same water use. We also learned how our clients are working with nutritionists to feed cattle in the optimal fashion to raise beef and other meat sources. We are proud that we can support our clients’ water needs in their pursuit to sustainably feed the world!

What are you doing for World Food Day?

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

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

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

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

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

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

The state of Nevada began regulating water use through the enactment of the water code in 1905.  Under the 1905 water code, statutory regulation for surface water began.  Later, in 1913 statutes came into play for artesian groundwater rights of use, and in 1939 we see statutes for percolating groundwater rights use. Water rights established prior to those dates are known as “vested water rights” or “vested water claims”.

In order to determine the extent and validity to a vested water use claim, the Nevada State Engineer follows an adjudication procedure outlined in Nevada Revised Statutes wherein the State Engineer issues a Notice of Order for Taking Proofs. This Notice alerts the public that the office of the State Engineer is preparing to review and analyze all claims to vested water rights and determine the validity and extent of each claim. The State Engineer provides a deadline for claimants to file their proofs of appropriation for that basin that is being adjudicated. The State Engineer then carefully considers each claim, with its supporting documentation, and makes a determination of each and every claim to a vested right in that basin.

Historically, there were no deadlines to file a proof of appropriation to claim a vested right to use water until the State Engineer began adjudicating specific basins. While many groundwater basins and surface water systems are adjudicated, there are many that have yet to undergo the process.  Prior to the 79^th Nevada Legislative Session, it was not until the State Engineer issued a Notice of Order for Taking Proofs to Determine Water Rights wherein a deadline to file Proofs of Appropriation was set. Senate Bill 270 has amended the statute to set a deadline of December 31, 2027 for any and all proofs of appropriation to be filed in any basin, whether or not an adjudication has been ordered for that basin. The newly revised statute reads “If a claimant fails to file such proof on or before December 31, 2027, the claim shall be deemed to be abandoned.” To read the full text, please visit https://www.leg.state.nv.us/Session/79th2017/Bills/SB/SB270_EN.pdf.

The State Engineer will be required to provide notice of the new deadline in the Newspaper of every groundwater basin in the state and online, and the deadline is still 10 years away. However, after this date no proofs of appropriation will be accepted by the State Engineer, with the only exception of Federal agencies claiming reserved rights. Anyone who believes they may have a claim to a vested right will need to keep this very important deadline in mind. For more information on what is required to support your proof of appropriation, go to https://www.leg.state.nv.us/NRS/NRS-533.html#NRS533Sec115 or http://www.water-law.com/water-rights-articles/nevada-water-rights/.

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

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

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

The Nevada State Engineer is working on a plan to define how to conjunctively manage Humboldt River Decreed water rights hydrologically connected with groundwater rights. This plan will take form through an administrative rulemaking process and will affect many water right holders in and around the Humboldt River Corridor. Nevada Farm Bureau is assisting the State Engineer in setting up informational meetings to discuss concepts in forming the regulatory plan and to obtain feedback on the plan’s economic impacts to small business, farms and ranches.

Currently the United States Geological Survey (“USGS”) and the Desert Research Institute (“DRI”) have a four-year study in the 34 groundwater basins that adjoin the Humboldt River Corridor. The results from the study will determine which individual groundwater wells are hydrologically connected to the surface water flows of the Humboldt River, and to what extent their connection impacts surface flows. Armed with this information, the Conjunctive Management Plan aims to apply annual financial assessments to be paid by each injurious groundwater well in an attempt to recompense senior surface water right owners for their loss of water.

The State Engineer’s preliminary draft regulations for conjunctive management identify the purpose of the regulations as a means to establish rules for a Mitigation Program for the Humboldt River and tributaries identified in the Humboldt River Decree and hydrologically connected groundwater. The plan will establish rules for mitigating conflicts through water replacement or other mitigation measures. The plan will identify water rights of use that are subject to or exempt from plan regulation. The draft regulations identify affected parties as any holder of water rights under the Humboldt River Decree, groundwater right holders whose pumping is determined to capture at least one percent of any Humboldt River Decreed water right, and mining projects whose mine pit lakes capture at least one percent of any decreed surface right and holders of storage water in Rye Patch Reservoir.

The preliminary draft regulations state that the percentage of capture will be initially determined by the USGS/DRI study and thereafter by any further study found suitable by the State Engineer. The State Engineer will determine the amount of conflict to each surface water right and the amount of injurious depletion by groundwater rights, measured in acre-feet, for use in establishing and enforcing the Mitigation Program. The Mitigation Program will be mandatory for all groundwater users determined to be injurious to senior surface water right users. Administration of the program will be funded through existing groundwater and surface water assessments, and the program itself will be funded by groundwater right holders or responsible parties of mining projects, based on their injurious depletions.

The preliminary draft regulations offer regulated groundwater users an alternative to the Mitigation Program by working with the State Engineer to obtain an approved water replacement plan or other type of mitigation plan. If a groundwater right holder fails to participate in the Mitigation Program or have an alternative mitigation plan approved by the State Engineer, that water right holder will be prohibited from diverting any groundwater until the injurious depletion is mitigated and may be subject to penalties and fines.

If you would like to learn more about the draft Regulations for the Conjunctive Management of the Humboldt River Basin, or would like to offer feedback concerning potential economic impacts imposed by the regulations or Mitigation Plan to small businesses, you are encouraged to attend one of the following informational meetings.

Monday, July 17, 2017: 6:30 PM at the Lovelock Community Center in Lovelock Nevada;
Tuesday, July 18, 2017: 6:30 PM at the Humboldt County Cooperative Extension Office in Winnemucca Nevada;
Wednesday, July 19, 2017: 6:30 PM at the Battle Mountain Civic Center in Battle Mountain Nevada; and
Thursday, July 20, 2017: 6:30 PM at the Elko County Conference Center in Elko Nevada.

Law Clerk Jakob Wiley will be presenting on unitization approaches to aquifer governance at the next Groundwater Advisory Committee (“GWAC”) meeting held June 30, 2017. He will be presenting his research on voluntary aquifer governance agreements, focusing on aquifer governance rather than groundwater management. The approach is the topic of his graduate thesis as part of his master’s degree, as well as his portion of an upcoming book co-authored with Dr. Todd Jarvis titled Collective Aquifer Governance: Dispute Prevention for Groundwater and Aquifers through Unitization, currently being prepared for the Cambridge University Press.

Jakob’s presentation will show how groundwater governance has “missed the aquifer for the wells,” focusing attention on groundwater levels and failing to incorporate other aquifer resources, such as storage potential, heat exchange, water quality, or future aquifer uses like carbon sequestration. With some aquifers, the focus may lead to damage to the reservoir (See https://ngwa.confex.com/ngwa/renew08/techprogram/P5225.HTM).

Unitization techniques look at the aquifer as a whole, encourage subsurface exploration, and may create “aquifer communities” that create a regional identity with the aquifer. (See https://www.scribd.com/document/112436071/Jarvis-W-Todd-In-search-of-a-New-Identity-Good-Water-Neighbors). Contract approaches to groundwater governance have been seen internationally, but have yet to be clearly seen in the United States relating to groundwater. (Contract-based approaches are common in other natural resource areas, like the recent Candidate Conservation Agreement with Assurances for the sage grouse, see http://www.conservationhabitat.org/local-resources/Harney-County-Sage-Grouse-CCAA/36004/). Jakob will bring these examples to the GWAC meeting and present the approach as a possible addition to Oregon’s groundwater governance toolbox.

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

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

Schroeder Law Offices is excited to announce that J.D. Paralegal Lindsay Thane passed the Oregon State Bar, and will be licensed to practice law in Oregon upon her swearing in ceremony scheduled for May 18^th, moving into the position of Associate Attorney.

Lindsay joined Schroeder Law Offices in their Portland, Oregon office in 2016 after graduating from the University of Montana School of Law. Lindsay is an avid runner and enjoys competing in local road races. She loves being outdoors hiking with friends and family. Lindsay has also spent many summers water skiing on Flathead Lake near her home town in Montana.

The issue of updating ownership of water rights of use continues to rear its ugly head in the context of water right forfeiture proceedings. I can’t stress enough how important it is in Nevada to update ownership records with the Nevada Division of Water Resources. Currently, NRS 533.384 requires buyer to file ownership update information with the State Engineer.

Thus, when buying property, it is not enough to record your deed with the county, you must also update the records for water rights of use with the Nevada Division of Water Resources by filing a report of conveyance and abstract of title (these are specific forms with instructions available on the NDWR website). If there is a title issue that might take you some time or assistance to sort out, then file a Request for Correspondence (another form) with NDWR so you at least receive some kind of notice as to matters relating to your water rights. Don’t miss these important notices putting your water rights of use in jeopardy by failing to update ownership records!

Some title issues that come up in Reports of Conveyance and Abstracts of Title include deeds that inadvertently do not transfer all the property, deeds that have different names or entities thus causing additional supporting research to show they are one-in-the-same, having to research title back to the original water right holder, and having to sift through probate documents to show a transfer in ownership, to name a few. Regardless of the issue that needs resolving, now is the time to diligently check your rights of use and ensure you are in compliance with NRS 533.384.

by Lisa Kane and Therese Ure

The 2017 Nevada Legislative Session is currently in motion; the 79th legislative session began on February 6th and will continue through June of 2017. Meetings are being held daily by the senate and assembly committees as they review proposed changes to Nevada legislation. There are several already-proposed bills on water law that may affect water rights users in the state (click here for a more comprehensive list), however, a couple of new bills have been introduced in the past week that seek to address different water-related matters.

Assembly Bill 209 (AB 209), proposed by Assemblyman James Oscarson of Nye County, is drafted to address issues with extensions on groundwater rights and forfeiture prevention. The bill seeks to revise provisions concerning water law in the State of Nevada that would require the State Engineer to, under certain circumstances, extend the time necessary to work a forfeiture of certain water rights. The full text for this proposed bill can be found here.

Senate Bill 134 (SB 134), proposed by Senator Pete Goicoechea of Eureka County and Senator Aaron Ford of Clark County, was also newly introduced in the past week and focuses on providing legislative direction to the State Engineer in regards to water applicants and conflicts with existing water rights. Specifically, SB 134 would authorize the State Engineer to determine if such a conflict exists and if so, to impose a monitoring, management and mitigation plan upon applicants whose requested use conflicts with existing rights. The bill also requires that conflicts be eliminated in order for the water use application to be permitted. The full text for this proposed bill can be found here. While the current water law already requires the State Engineer to evaluate and not approve applications that conflict with existing rights, this legislation add the ability to impose monitoring, management, and mitigation plans (aka “3M Plans”) as a way to offset conflicts.

The Nevada State Legislature’s website provides session information as well as bill draft requests, fact sheets, bill text and further information. The Legislature’s calendar also provides links to daily meetings and allows the public to view live sessions across the state. To keep apprised of bill progress or view active work session agendas visit the legislature website at https://www.leg.state.nv.us/App/Calendar/A/.

The upcoming 2017 Nevada Legislative Session includes proposed water law changes that could affect water rights users across the state. The 79th legislative session, which starts on February 6, 2017 and ends on June 5, 2017, contains a number of proposed water law changes. It appears there will be four senate bills submitted by the Nevada State Engineer and Nevada Division of Water Resources during the session, as well as five bills from the Nevada Legislative Committee to Study water, and five bills from individual legislators and committees.

The four senate bills to be introduced to the 2017 legislative session that include potential changes to water law in Nevada are as follows: Senate Bill 47 (SB47) proposes various changes to the appropriation of water; Senate Bill 51 (SB51) proposes various changes to the adjudication of vested water rights; and Senate Bills 73 and 74 (SB73 and SB74) propose the revision of various provisions relating to water rights and use in the State of Nevada. Any pre-filed bills, which include the senate bills listed above, are available for public viewing on the Nevada Legislature’s website at https://www.leg.state.nv.us/Session/79th2017/Reports/Prefiled.cfm. By clicking on the link for the proposed bill, users can view the full bill text as introduced to the Senate as well as the bill’s history of hearings or votes as the session moves along. These bills are also referred to the Senate Natural Resources Committee for review.

While proposed bills could bring changes to water law at a statewide level in Nevada, county officials and other local groups are also working to develop local water management plans. The Nevada Farm Bureau, for example, has a collected a group of interested volunteers to participate in a Water Discussion group for water management plans specific to volunteers’ areas around the state. The Bureau also continues to encourage interested parties to contact them for more information regarding such discussion. According to the Pahrump Valley Times, officials in Nye County have conducted studies on a number of wells in the Pahrump Valley that have the potential to go dry. Further, studies are ongoing in the Humboldt River Basin and being conducted by USGS and DRI. It appears scientists are looking to understand the groundwater system better.

Studies such as those being conducted in Nye County will likely continue across the state in preparation for recommendations on approval or denial of the proposed water law changes in Nevada’s 79th Legislative Session in 2017. Counties and hydrographic basins may have different needs based on appropriation and water sources available. The interested public can keep current with session information and the drafting and approval of bills as the session persists at the legislature’s website: https://www.leg.state.nv.us/Session/. County and city papers also continue to publish information regarding more local sessions.

The Nevada Farm Bureau has adopted new and revised policies, which are available in their 2017 Policy Book. The policy positions were approved by farmer/rancher voting delegates at the general session of the 2016 Nevada Farm Bureau Annual Meeting. One important new policy adopted by the Nevada Farm Bureau relates to supporting groundwater management plans for critical management areas.

The Nevada Farm Bureau recognized that under state law, local citizens have an opportunity to propose groundwater management plans in order to bring allocated water rights of use back into balance with actual available water resources. The State Engineer has identified one water basin, Diamond Valley, as a Critical Management Area. This basin is open to Groundwater Management Plans, that can be proposed by local citizens. In the new policy, the Nevada Farm Bureau provides an outline of criteria a management plan must meet in order to obtain support of the Farm Bureau. Some key points, among others, stipulate that the proposed plan must be developed at the local level, must recognize priority of senior water right users, and must restrict the water covered by the plan from leaving the basin.

The Farm Bureau’s goal with the new policy concerning groundwater management plans is to address and provide guidance to possible changes in state water law that may come up in the next legislative session. The Farm Bureau believes this new policy will positively impact farming and ranching industries by protecting its most important resource.

Oregon Legislative Updates

A drought task force, authorized in 2016 by the Oregon Legislature, submitted their year-end report[1] to the Governor in November discussing how Oregon can better anticipate and adapt to increasingly common years of drought. Specifically, the report encourages the State to review the drought declaration process to better assist with drought response, to help communities with preparedness and resiliency, and to evaluate management options for stored water to better address instream and out-of-stream needs.

The Oregon Water Resources Department (“OWRD”) also extended reservations of water for future economic development in the Hood Basin, the Grande Ronde Basin, the Burnt River Basin, the Malheur Basin, and the Owyhee River Basin.         

Governor’s Office Updates

The Governor’s Office’s strategic initiatives for 2017 emphasize investing in water infrastructure to improve resilience and growth. Despite the decreased allocation of money to OWRD from the general fund budget, OWRD anticipates continued investment for development of instream and out-of-stream water supplies and for capital investment in sewage and water systems.

Cannabis Legalization on Water Usage

The passage of Measure 91 in Oregon has led to an increase in cannabis cultivation, part of which requires individuals who were growing cannabis before Measure 91, as well as new cannabis growers, to apply for water rights to irrigate their crop. However, only state water rights, not federal water rights, such as those under a Bureau of Reclamation contract, may be applied to irrigate cannabis. Federal water rights may be used to grow cannabis if the water is delivered from an irrigation district under a Bureau of Reclamation contract and is commingled with water under a state water right. An additional challenge is that water rights to grow cannabis will likely require a year-round water right and not simply a traditional irrigation season water right.

Upcoming Adjudications

With the Klamath Basin adjudication largely completed, OWRD announced it plans to begin adjudication of the Deer Creek Basin east of Roseburg in late 2016. OWRD will also begin two to four small adjudications in the South Coast Basin in late 2016 or early 2017.

Water Rights Auditing in Real Estate Transactions

The first day of the seminar wrapped up with a panel emphasizing the importance of determining the validity and extent of any water right that is part of a real estate transaction. The panel encouraged anyone involved in a transaction that includes water rights to request the files for any associated water rights from the applicable state department, such as OWRD or the Washington State Department of Ecology. This type of analysis is offered by Schroeder Law Offices at a flat fee. We encourage our clients to contact us for this service before any issue arises!

[1] https://www.oregon.gov/owrd/docs/HB4113/Draft_Final_Task_Force_Report_11_1_2016_Final.pdf.