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!

By: Caitlin Skulan and Leslie Velazquez

In spite of her busy schedule attending client needs, Attorney Ure put on her Professor’s hat and gave a three-hour Water Rights Class to Reno Real Estate Agents. The class, which Attorney Ure does regularly at real estate groups’ requests, focuses on water right laws in Nevada and some things Real Estate Agents especially should look out for when working with clients to buy or sell property.

Attorney Ure gave a brief overview of the history of water law in Nevada.  Remarkably, irrigation in the United States dates back to 300 A.D. The Hohokam Tribe wove mats of brush to divert water to cornfields.  Water law itself dates back to medieval England and the “Rule of Capture,” meaning you capture it, you own it. This concept then translated into early American gold mining camps when miners staked claims for mining gold they found or “captured.”  As miners began to settle in the West, the rule was applied to water. The first to capture the water had a right to the amount they captured. This is called the “first in time, first in right” rule and is the fundamental base for Nevada’s “Prior Appropriation” or priority-based water law system.

Next, Attorney Ure outlined the three fundamental principles of providing proof of a water right: beneficial use, priority, and appurtenance. Beneficial use is the basis, the measure, and the limit of all rights to the use of water. Almost any use that has a special value to the public is a beneficial use. Priority, as noted above, is the right to use water awarded to the first diverter from the natural course. Therefore, senior appropriators may use their entire right before junior users are able too. The priority date of a water right may be based on the date in which an application was filed with the Nevada Department of Water Resources. Alternatively, if the water use predates the enactment of Nevada’s 1905 Water Code, the priority date is determine in a special adjudication proceeding based on evidence of the earliest use and its continuation to present time. Finally, water rights are appurtenant to the land where perfected. This means water rights run with the land and unless otherwise noted, will transfer with land under general “appurtenance” language in a deed. All of these factors are important to real estate agents because they help determine what the water can be used for, how safe the water is in times of drought and curtailment, and if the transfer documents, both past and present, will result in the buyer obtaining water with the land they are purchasing.  These are all important factors for a buyer to consider.

Another important note was identifying the type of water being used; surface water or groundwater. Attorney Ure outlined the difference between surface water and groundwater, and various types of aquifers, including confined and alluvial/unconfined. For example, confined aquifers occur when impermeable dirt/rock layers prevent water from seeping into the aquifer from the surface. Unconfined aquifers occur when water seeps from the surface directly above the aquifer through porous sediment. The latter kind are more likely to be connected to sources of surface water through a “hydraulic connection,” which can be determined with the help of hydrogeologists.

Pumping of groundwater that has a hydraulic connection to surface water may result in the change of flow or water levels in nearby streams or lakes.  This makes conjunctive management of surface and groundwater extremely important to prevent surface right users with senior priority dates from injury by groundwater pumping. However, not all prior appropriation states have an established regulation scheme recognizing this interconnection between surface and groundwater, because water law predates the scientific discovery of hydraulic connections. Some states may explicitly prohibit groundwater use interfering with senior surface water rights, while others make no reference at all. 

Lastly, Attorney Ure demonstrated where Real Estate Agents can find water rights connected to specific lots of land and forms necessary for transactions involving water, leaving each student with some valuable tools to apply during their next property sale!

If your organization is in need of water related education, we are happy to be a resource and set up a class similar to this one! Visit our website for a full list of speaking and presentations topics:  https://www.water-law.com/speaking-and-presentations/

Here at Schroeder Law Offices P.C., we enjoy providing educational presentations both private and public to teach others the importance and complexity of water rights.

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!

Schroeder Law Offices does everything water, including educating others on the basics of water law, resource planning and water rights.

Recently at an educational one day “Boot Camp,” attorney Laura Schroeder covered an expansive list of water related topics for registrants from the Yamhill Soil and Water Conservation District. The class was tailored specifically to the audience’s questions and each attendee walked away with a gift certificate for a personal, free hour of consultation on water rights from Schroeder Law Offices, as well as wealth of new information.

Upcoming Water Rights Boot camps include this week with the Tualatin Soil and Water Conservation District on Thursday, November 21^st. A link to the event can be found here. 

Unable to attend this event but wanting to know more? Click here to learn about the presentation topics our office provides and how you can schedule and public or private presentation with one of our attorneys.

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.

For the past decade, Schroeder Law Offices has provided opportunities to law students interested in learning water and natural resource law. Former SLO law clerks have established successful legal practices across the Pacific Northwest and beyond.

Schroeder Law Offices is pleased to introduce our 2019 summer law clerk, Katie Jourdan. Katie is returning to work with the attorneys and staff after having clerked previously with SLO during the fall of 2018.

Katie is entering her last year of law school at Lewis and Clark Law School, where she will complete her Juris Doctorate in May of 2020. With an emphasis on Natural Resource and Land Use Law, Ms. Jourdan has experience researching and analyzing water rights issues. Previously, Katie worked with the Western Resource Legal Center on land use and agriculture issues. She also interned with the Washington Cattlemen’s Association where she conducted research on recent land use legislation. 

Katie holds a Bachelor of Science in Environmental Studies and Journalism from Gonzaga University, where her enthusiasm for natural resources has paved her way to law school. Her background in agriculture and small farm life further nurtures an empathy for water users and the issues that rural America faces.

This summer, Katie is putting to good use her time spent in the classroom and exercising her proficiency in legal research. She is working with the attorneys and staff at Schroeder on client cases, educational presentations, and litigation preparation. In the fall, Katie will begin her final year at Lewis and Clark.

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!

As most of us are aware, Earth Day has become a global occurrence for which communities host events throughout the week of the holiday. This year, Earth Day fell on Monday, April 22, and communities around the world hosted festivities such as community clean-ups, tree-plantings, and educational events that focused on climate literacy and bringing awareness to climate science for the purpose of encouraging individuals to participate in the preservation of our communities.

Though celebrated annually, Schroeder Law Offices’ (“SLO”) mission includes providing services to those that feed our communities and we consider environmental preservation on a day-to-day basis. SLO works daily with clients such as municipal water users and districts, corporations, and both individual and family farmers to maximize production and efficiency of water use. As we like to say, we do EVERYTHING water!

For ideas on how you can take action for making every day an Earth Day, visit the Earth Day Network’s website for ideas and to learn about “A Billion Acts of Green,” the campaign to reach 3 billion acts of green for the Earth Day holiday’s 50th anniversary in 2020.

Research indicates that planting additional trees may have huge benefits in generating rainfall, thus, consider spending time outside this spring and plant a tree with the goal of bringing freshwater to your community!

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 Oregon Water Resources Department (“OWRD”) will present proposed temporary rules to the Water Resource Commission that would place a temporary hold on Upper Klamath Basin well regulation for two years, during which time OWRD would only regulate off wells within 500 feet of surface water sources in response to validated calls for water. Since the administrative phase of the Klamath Basin Adjudication concluded in 2013, groundwater users have challenged OWRD’s application of Oregon’s conjunctive management rules to wells in the Klamath Basin. The deluge of litigation has cost the OWRD millions of dollars and does not appear to have an end in sight.

            OWRD may be offering a temporary truce to groundwater users while the agency reviews and determines a “longer term approach” to water management in the Klamath Basin. The temporary rules, expected to go into effect in April, would remain in effect until March 1, 2021. The proposed rules would eliminate the rules adopted in preparation for the defunct Upper Klamath Basin Comprehensive Agreement (“UKBCA”), and replace them with deceptively simple rules for regulating calls for water. The Upper Klamath Basin has been regulated under original Division 25 and Division 9 rules since 2013, and the proposed temporary rules propose a third regulatory regime in under a decade, with a fourth to be revealed in two-years time. If no new rules are adopted by March 1, 2021, regulation would revert to the conjunctive management rules under OAR Division 9. The proposed rulemaking is available at the following link: https://apps.wrd.state.or.us/apps/misc/vault/vault.aspx?Type=WrdNotice&notice_item_id=8113.

            Under the prior appropriation doctrine, when a water user makes a call for water, OWRD’s watermasters investigate to validate the call. Junior water users may be ordered to shut off water use to allow senior water users to receive their full delivery of water. Oregon’s conjunctive management rules are designed to allow regulation of hydraulically connected surface water and groundwater as a single source of water. Oregon’s conjunctive management rules have historically been found in OWRD’s Division 9 rules (Oregon Administrative Rules Chapter 690 Division 9). However, a portion of the Division 9 rules were superseded by original Division 25 when those rules were in effect.

            The Division 9 rules require, under certain conditions, that water use rights appropriating water from groundwater sources be regulated in priority with surface water use rights when a valid, senior “call” is made. Unless the well drawing from an unconfined aquifer is within one-quarter mile of a surface water stream, OWRD must find that the source of water appropriated by the well is “hydraulically connected” to the surface stream, meaning that water can move between the surface water stream and the adjacent groundwater aquifer. OWRD presumes any well closer than one-quarter mile is hydraulically connected to the surface stream. Further, wells are presumed to cause “potential for substantial interference” if they are (1) within one-quarter mile of a stream, (2) the appropriated rate of groundwater use is greater than 5 cubic feet per second, and within one mile of the stream, (3) the appropriated rate of groundwater use exceeds 1% of a pertinent adopted minimum perennial streamflow or instream water use right, or the natural flow of the surface water source that is exceeded 80 percent of the time, or (4) continued use of the well for 30 days would result in stream depletion greater than 25% of the well’s rate of appropriation.  Stream depletion is calculated using computer modeling, the method for which OWRD has substantially changed over the last several years, creating a moving target for water users wishing to challenge OWRD’s application of the rules to their groundwater uses. Under Division 9, wells located over one mile from surface water sources may only be controlled through designation of a critical groundwater area.

            OWRD’s proposed temporary rules are designed to operate in lieu of Division 9 for the Upper Klamath Basin. Rather than merely putting the majority of groundwater regulation on hold while permanent rules are considered and adopted, OWRD’s proposed rules factually declare that all groundwater sources are hydraulically connected to surface water in the Klamath Basin, and that all wells that withdraw groundwater in the Klamath Basin reduce groundwater discharge and surface water flow. Since these factual findings are totally unnecessary for the purpose of temporarily staying regulation while enacting permanent rules, many view the rules as an attempt by OWRD to cut off current and future legal challenges to OWRD’s regulation of groundwater wells. Under the Oregon Administrative Procedures Act, state agencies are afforded a degree of deference by courts to their factual findings and legal conclusions, and OWRD’s efforts to make the aforementioned findings—findings that are currently disputed by the scientific community—have the (likely intended) effect of garnering support for a claim of deference by OWRD in legal disputes. Moreover, and perhaps most troubling, OWRD’s proposed rules state that OWRD can regulate off a groundwater user if interference “impends,” meaning the junior water user need not even be interfering with the senior water user’s right to be regulated off by OWRD. This provision is in clear contradiction with the Oregon Ground Water Act that requires actual “impairment or interference,” rather than mere speculation, prior to regulation. ORS 537.525(9).

            Many water users oppose the new rules, realizing that the inducement of temporary regulatory relief will come at a very high price that will likely eradicate groundwater irrigation of agriculture in the Upper Basin. Because the rules also determine that all wells in the Klamath Basin are hydraulically connected to surface water, the temporary rules remove the threshold question that allowed Division 9 rules to apply to an even larger area than previously implicated by the rules. (See: https://www.capitalpress.com/ag_sectors/water/scaled-back-klamath-groundwater-regulation-debated/article_8e22ab30-23fb-11e9-951c-33070f078fa7.html?utm_source=Capital+Press&utm_campaign=6366754200-EMAIL_CAMPAIGN_2019_01_30_05_40&utm_medium=email&utm_term=0_3bfe2c1612-6366754200-241522174.) Other persons have criticized OWRD’s temporary rules for harming downstream senior surface water users, like the Klamath Tribes that hold senior surface water rights. (See: https://www.heraldandnews.com/members/forum/letters/proposed-groundwater-drilling-rule-unsustainable/article_77126c71-c978-5ade-9be3-82c025359f40.html.)

            Under OWRD’s application of the Division 9 rules (which is currently being challenged in court), 140 wells in the Klamath Basin would be subject to regulation. Under the proposed temporary Division 25 rules, only 7 wells would be regulated until March 1, 2021. Over the next two years, OWRD asserts it will continue to study the hydrogeology of the Upper Klamath Basin and enact permanent rules to replace the temporary Division 25 rules. The water wars in the Klamath Basin continue, and groundwater users may get a very short period of relief from regulation while OWRD once again moves the bar for how OWRD will regulate off groundwater users in the Upper Klamath Basin.

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

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!

As I attend hearings on the Diamond Valley Adjudication, I am continually reminded of the importance of historical research to show pre-code water use. While this has been a topic of blogs in the past, we cannot stress enough how spending the time now will only benefit you in the future. 

This is not an item to procrastinate on! One claimant mentioned he spent his time researching water use in the county records over the last few winters! Yes, it can take that long, so start now! 

In order to show this pre-code water use in an adjudication proceeding, information such as chain of title to the first possessory entry man is important. You may consider ordering the patent files from National Archives to obtain that information. Thoroughly review the pre-code tax records for your predecessor in interest to determine what they were being taxed on. This helps to establish proof of grazing if they were taxed on animals, establishes proof of irrigation if taxed on hay or crop production, etc.  Weaving this quilt to bring together all the historical facts is of utmost importance! 

While some of these adjudication proceedings might not occur for decades, it is important to complete this research now!  Find the records while they are easy to locate and you have the time to track them down!

For more information on the types of information that can support pre-code water rights, see our article previously posted titled How to Research Land & Water for Proof of Vested Nevada Water Right Claims.

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).

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.

It’s that time of year again! As 2018 draws to a close, Schroeder Law Offices wants to remind Oregon water users that the deadline to submit water use measurements to the Oregon Water Resources Department (“OWRD”) is December 31, 2018.

Many permits and certificates for both surface and groundwater rights contain language specifying the type of meter and frequency of measurements and reporting required in order for the user to remain in compliance with the terms of their water use rights. These requirements are typically along the lines of:

Before water use begins, the user must install a meter or other suitable measuring device approved by the Director at each point of appropriation or diversion. After use begins, the user must maintain the device in good working order.

The user must keep a monthly record of the volume of water diverted, and submit a report which includes these measurements to the Department annually, or more frequently if required by the Director. Further, the Director may require the user to report general water use information, including the place and nature of use of water under the permit.

Not all water users are required to report their water use; therefore, it is important to be aware of the conditions set forth in your permits and certificates and to make sure you remain in compliance.

If the water use reporting condition is included, you can find the reporting form on OWRD’s website here. You can also report your water use online here. You will note that the “water year,” as outlined in the reporting form, runs from October through September, annually.

Schroeder encourages water users with this condition to take meter readings at the end of each month and to keep that information in their files along with a copy of the reports submitted to OWRD annually.

Stay tuned to Schroeder Law Offices’ blog for more helpful tips and reminders, and don’t forget to submit your reports by December 31, 2018!

We all know that pumpkins make great fall decorations and are an icon of this Halloween holiday, however they also provide many more less known benefits. According to the Old Farmer’s Almanac, all parts of pumpkins are edible except the stem and if kept in a cool, dry space, will keep for up to 6 months or more! Pumpkins are a good source of fiber, vitamin C, several of the Vitamin B complexes, potassium and carotenoids that play a role in cancer prevention, controlling blood-sugar levels and boosts the immune system.

Adding pumpkins into crop rotations help farmers. Their presence helps soil maintain a nutrient balance, reduces weed problems and decreases the likelihood of disease spores, eggs and pests. According to Texas A&M Horticulture, planting pumpkins directly after harvesting sweet corn helps to decay a coarse crop refuse that is resistant to many other crops. And planting pumpkins directly after grass crops results in fewer diseases to the pumpkins. Pumpkins are also unique in that they can tolerate soils with low pH levels as well as extremely acidic soils.

Pumpkins are also somewhat tolerant of dry soil conditions and in certain locations farmers can rely solely on rainfall. When rainfall is inadequate, irrigation is essential especially during the pollination and fruit set periods. Many farmers have found that using a drip system to water their pumpkin crop saves time and money by using less water than flood irrigation or center pivot sprinklers.

Pumpkins have both male and female flowers and pollen transfer is a necessary event. Historically many farmers relied on native bees to transfer the pollen, however, due to a decline of bee population in certain areas, some farmers have resorted to renting bee hives for the first few weeks of flowering. Weeds, insects and diseases are a constant battle for pumpkin farmers as well. Farmers are in constant flux of fighting off pests and diseases while maintaining the integrity of the environment necessary for other activities such as bee pollination.

Pumpkins are beneficial in so many other ways than their decorative purposes. The next time you see a pumpkin, remember all of their unique qualities and ways they benefit the farming industry.