In a move he hopes will ease the most arduous administrative burden faced by the Idaho Department of Water Resources, Director Gary Spackman has created the state’s largest groundwater management area, encompassing the Eastern Snake River Plain Aquifer (ESPA) region.

Hoping “to stop the drop” of the aquifer level, which has experienced an annual rate of decline estimated at 200,000 acre feet, Spackman signed the order designating Idaho’s 12^th GWMA. He announced the action to the Idaho Water Users Association on November 3.

His intent, Spackman said, was to bring all of the region’s water users “into the fold” with efforts to restore the aquifer. Although this was partly accomplished by the 2015 settlement agreement between ground water and surface water groups within the conjunctively managed ESPA region, users who were not members of a ground water district did not have an opportunity to take part.

“This is a tool to manage the aquifer so everyone is participating,” said Spackman, noting that the eventual management plan for the GWMA will work in cooperation with the settlement agreement. He offered no timeline for the development of the management plan, but it is expected to take at least two years.

The ESPA region GWMA extends from the upper eastern corner of the state, near Saint Anthony, to Thousand Springs near Hagerman where the ESPA discharges into the Snake River. Existing GWMAs and critical groundwater management areas — four of which located near Oakley — have been excluded from the ESPA region GWMA.

Additional information can be found on the IDWR website at http://www.idwr.idaho.gov/water-rights/ground-water-management-areas/designated.html

The International Commission on Irrigation and Draining (ICID) hosted the World Irrigation Forum (WIF) in Chiang Mai, Thailand. The 2016 conference serves as the second annual forum.

The intent of the World Irrigation Forum is to bring together all stakeholders in order to provide a platform for the world irrigation community to work to find solutions to the problems the irrigation community faces. Some of the stakeholders involved include policy makers, experts, research institutions, non-governmental organizations, and farms. The most prevalent issues the forum addresses are the depleting freshwater resources due to global warming and climate change as well as the idea of population growth in relation to food security. Through the forum, the ICID hopes to gain sustainable solution to water management for agriculture.

The World Irrigation Forum’s theme for 2016 was “Water Management in a Changing World: Role of Irrigation in Sustainable Food Production.” Under the main theme were three different sub-themes: (i) Key actors in balancing water, food, energy, and ecology, (ii) Management of climatic extremes with focus on floods and droughts, and (iii) Key and smart actions to alleviate hunger and poverty through irrigation and drainage.

The process of being selected to present at this event is a lengthy grueling process which includes multiple drafting and reviewing sessions. The abstracts and papers are viewed by a highly qualified committee which determine the selected papers for presentation. Laura and Therese both had the honor of participating in the Forum! Laura Schroeder was able to lead a presentation titled “Innovative Partnerships v. the Tragedy of the Commons” while Therese Ure was able to present a poster on “Securing Water Available for Irrigation in Times of Drought Must Move beyond Traditional Above Ground Storage Reservoirs.”

The Montana Supreme Court recently issued its decision in the long fraught dispute about exempt groundwater wells. The ruling by the Montana Supreme Court in The Clark Fork Coalition v. Tubbs, will protect the rights of senior water users from exempt groundwater wells that often deplete the amount of available surface water.[1]

The Montana Water Use Act exempts certain groundwater appropriations from the state’s permitting process if the groundwater appropriation pumps below a certain threshold and is applied to a limited area. This type of exemption is common in water use acts in other states, including Oregon and Nevada. However, Montana’s Water Use Act has an exception to the exemption, which requires a permit for any “combined appropriation” from the same source by multiple wells that exceeds 10 acre-feet per year.[2]

In 1993 the Montana Department of Natural Resources and Conservation (“DNRC”) amended its 1987 administrative rule, interpreting the term “combined appropriation” within the Water Use Act’s exception to the exemption. The DNRC’s 1993 rule (the rule in effect through the deciding of this case) stated “combined appropriation” means “groundwater developments, that are physically manifold into the same system.”[3] In application, this rule allowed groundwater wells to be drilled and as long as the appropriator did not connect the wells, even though the wells drew water from the same source, the appropriator could avoid obtaining permits for the wells and could end up appropriating a limitless amount of water from the same source.

The Montana Supreme Court determined the DNRC’s rule interpreting the term “combined appropriation” in the Montana Water Use Act improperly allowed these infinite withdrawals from the same source. The Montana Supreme Court recognized that the purpose of the Montana Water Use Act is to protect senior water right users from appropriation by junior water right users when there is not enough water physically available. Therefore, the Montana Supreme Court invalidated the 1993 rule and determined the DNRC must issue a new rule reflecting the need to recognize the effect that multiple wells drawing from the same source have on other water appropriators.

Many states, like Montana, have exemptions that allow groundwater wells to be drilled for specific purposes without going through any sort of permitting process to determine if the well will have an effect on water availability in the region. Additionally, many states, Nevada being one, continue to manage groundwater and surface water as two separate systems, rather than through conjunctive management. The failure to recognize the interconnectedness of groundwater and surface water and the cumulative effect of exempt wells on water availability in a region leads to over appropriation and fails to protect senior appropriators.

Conjunctive management is continuing to gain more traction; however, there is still much discussion about how states can implement this new management approach. Schroeder Law Offices Shareholder Therese Ure will be adding her voice to the conversation at the International Commission on Irrigation and Drainage’s World Irrigation Forum in Thailand, November 6th – 12th. Attorney Ure’s paper that was accepted for the Forum discusses Nevada’s failure to conjunctively manage its groundwater and surface water systems, including the effects of mine dewatering in such a disjunctive system and suggestions for creating a “dynamic” system of water management.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news about the upcoming World Irrigation Forum!

[1] The Clark Fork Coalition v. Tubbs, 2016 MT 229 (Mont. 2016).

[2] Mont. Code Ann. 85-2-306(3)(a)(iii).

[3] Admin R. M. 36.12.101(13) (1993).

Last month, attorney Sarah Liljefelt organized a tour of the Whooshh Innovations fish passage structure constructed for the Washington Department of Fish and Wildlife on the Washougal River. Members of the Oregon State Bar Environmental and Natural Resources Section attended, including attorneys in private practice, working for the State of Oregon, and public interest.

Whooshh has patented new technology that propels fish through a rubber tube fish canon from one location to another in mere seconds, be the end result a truck to haul fish, or to the other side of a dam as a new type of fish passage. Studies have shown that stress on the fish is lesser in the Whooshh system than traditional fish passage, and the cost is only a fraction of renovating a dam for traditional fish passage.

Check out videos of the Whooshh system (and fish flying through the system) at Whooshh’s website: http://www.whooshh.com/.

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

Schroeder Law Offices understands it can be a bit intimidating to contact a law firm when you encounter a problem you cannot solve alone. You are not alone:  Schroeder Law receives multiple initial potential client calls every day, and our goal is to listen, understand, and meet your goal to solve a problem in a cost effective and professional manner.

Unfortunately due to liability, attorneys cannot give legal advice on your initial, first-time call.  While it can be frustrating not to receive an immediate answer to what you may presume is a “quick legal question,” attorneys can only provide answers after conflicts are checked by running them through a system check and the client as well as the general issue are approved to be addressed by the firm.  All information requested of potential clients on the initial call is necessary in order to provide the best and most ethical advice and counsel possible.

When you call Schroeder Law Offices, your call is directed to an experienced member of our staff who will collect basic information and listen to the reason for your call. Below is a short list of the kinds of questions our staff will ask in order to determine what kind of legal assistance you need and if there are any potential conflicts that our office may encounter:

1. What is your contact info (phone number, email, mailing address)?
2. Where is the property at issue located? (we prefer lot descriptions)
3. What is the reason you are seeking legal help? (legal issue or goal for the representation)
4. What are the names or the people or companies and their attorneys (if you know them) that are involved?
5. Who is or might be opposed to what you are trying to accomplish?
6. Are there any immediate deadlines that you are facing?

Once we obtain the relevant information, we will run a conflict of interest check through our digital file system to ensure that any opposing parties are not current or previous clients, confirm that current or previous clients do not own or lease property near the property of concern, there is not a present  deadline that our firm cannot meet, or involve an issue that requires expertise other than what the firm may collectively lend its experience in addressing.

After we confirm there is no conflict, we pass the information to an attorney to review and help with next steps. Based on the next steps that our attorney advises, we will call or email you.  The response may be to offer you an initial attorney call at a flat fee, hourly fee or refer you to another attorney or organization better suited for your needs.  If a flat or hourly fee is involved, and you are interested in proceeding, a proposed fee agreement will be emailed to you.

Upon receipt of the flat or hourly fee agreement, we schedule an initial client conference between you and an attorney to understand your issue more fully, provide preliminary recommendations for moving forward, and legal advice in summary.  Following the initial client conference, you will receive a summary letter of any recommendations or advice provided in the conference.  The summary letter may also include a further contract for legal services with the scope of work tailored to fit your preferred course of action given the recommendations provided.

This process can take anywhere from twenty four hours to one week after conflicts are cleared. However, we understand how important the issues you call our office about are to you and we strive to work as quickly as possible to better serve you, the client!

If you are seeking an experienced Water Law attorney, you can call our office at:

Portland: 503-281-4100

Reno: 775-786-8800

The July 2016 Nevada Lawyer Magazine focuses on drought conditions and features Schroeder Law Offices’ Attorney Therese Ure’s article, “Use It or Lose It:” for Nevada’s Water in Times of Drought. The article discusses Nevada Revised Statute 534.090, which has become known as the “Use It or Lose It Doctrine” in reference to water rights and Nevada’s forfeiture law.  As drought conditions fluctuate across the west, and particularly in arid desert states such as Nevada, statutory forfeiture provisions relating to partial forfeiture are in conflict with conservation measures such as planting crops that require less water. Click here to read more about defining the use of water and the forfeiture process in the State of Nevada, an online exclusive for Nevada Lawyer Magazine. A full copy of the July 2016 Nevada Lawyer Magazine can be found online.

Forfeiture

We’ve all heard “Use it or Lose it” referring to the Prior Appropriation System.  The use it or lose it concept is the term we use for legal forfeiture which will apply to your water rights of use depending on your jurisdiction and type of water right.  Generally, this concept requires beneficial use of water appropriated under state law over a specific time interval.  In some states (like Nevada and Oregon), “use it or lose” is statutorily controlled, the law describes when a water user must exercise their water right of use.  In Oregon both groundwater and surface water certificates require water use once for every five consecutive year time frame. ORS 540.610. In Nevada, the statute provides that only groundwater certificated uses are subject to forfeiture for non-use if not used at least once every five years.  NRS 534.090. Thus, if you last used your certificated water right of use in 2011, you best put whatever water is available for appropriation under your certificate in place for 2016!  Make sure to use it so you are not at risk of losing it!

Abandonment

Use it or lose it as defined by the water code should not be confused with abandonment, a court made doctrine that may be more broadly applied.  Abandonment will cause cancellation of a water use by intention not to use.  Intention can be established by expression as in a written document or by a physical act.  The physical act of abandonment can include placing a permanent structure over or on top of water righted lands.  If you plan to build the next industrial sized plant, packing shed, scale house, onion storage, fill in your ditch, or take out your diversion structures, etc., you should file that water use transfer or change application prior to any construction!

While this gives you the very “basic” overview of these two legal concepts, Schroeder Law Offices can provide a more detailed explanation

The debate continues on the prior appropriation system. During the 2016 Family Farm Alliance Annual Conference, the Alliance’s 2015 report on the prior appropriation doctrine raised some debate. This debate, now focusing on Nevada’s prior appropriation system, was again raised in equal vigor during the 2016 Nevada Water Resources Association annual conference. While many argue the system fundamentally works, some commenters took the stance that the prior appropriation doctrine was flawed and should be reconsidered.

One alternative suggestion presented during these discussions was to adopt the Australian Model which changes a water right to a water share, and strives to entitle these water license holders to a specific share in the available water and to take water at specific times, rates or extraction points. However a true understanding of prior appropriation provides for water use under these circumstances, with the main difference being, in a short water year, the difference class of shareholders receive different allocations. So instead of a month, day and year priority to govern who receives their water first, the Australian Model groups all users into classes of shares with perhaps 3-5 classes all together depending on the stream system. What we did not hear about was how the Australian system handles conjunctive management calls within these class-share systems.

We suspect this debate will continue throughout the western United States as climate change and the drought continue.

Co-authored by Therese A. Ure

California Governor Brown signed Senate Bill 88 into law on June 24, 2015. Part of that Bill amended the California Water Code to require that all persons who divert 10 acre-feet or more of water per year after January 1, 2016 must install a water measuring device to measure the rate of diversion (including diversion into and out of storage). Water users must report installation to the Water Board, as well as provide evidence that the measuring device is functioning properly at five-year intervals. Water users must maintain records of diversion at time intervals of one hour or less (in some cases) and total amounts of water diverted.

Annual diversion reports must be submitted to the Water Board, and the law states: “Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.” The new law imposes civil fines in an amount not to exceed $500 per violation, per day, which may be enforced civilly through the superior court, or administratively by the Water Board. The Water Board will provide forms for reporting.

On January 19, 2016, the Water Board adopted emergency regulations to implement the new water measuring law. Those regulations were sent to the Office of Administrative Law for approval. Of note, the proposed regulations give the Deputy Director of the Division of Water Rights the authority to require monthly, daily, or more frequent reporting in times when there are insufficient flows to support all diversions. Additionally, the regulations propose a phased approach that takes into account the amount of water diverted, with larger diverters needing to comply with more stringent requirements than smaller diverters.

The recent drought spurred California law makers to enact this law that will mark a drastic change in the way water users operate. The Water Board reports that this new measurement, recordkeeping, and reporting law will apply to approximately 12,000 water users in California. The Water Board hopes that the new law and regulations will improve water use regulation and planning. Industry groups, including the California Cattlemen’s Association, oppose the regulations.

In Oregon, the Water Resources Department has phased in water use measuring, recordkeeping, and reporting requirements into new water use permits that are issued. California’s new law and regulations impose a new condition on existing water use rights, raising red flags about regulatory takings.

For access to S.B. 88 and the draft administrative rules, visit: http://www.waterboards.ca.gov/waterrights/water_issues/programs/measurement_regulation/.

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