Taking time away from their busy schedule, Schroeder Law Offices attorneys and staff spent an educational weekend together while also celebrating their newest achievements!

Oktoberfest! On Friday, October 12, 2018, Schroeder Law Offices hosted an “Oktoberfest” event in downtown Portland to honor attorney Sarah Liljefelt as the newest Shareholder of the firm and to celebrate our newest associate attorney, Jakob Wiley. We were happy to share their recent accomplishments with many of our Oregon clients, consultants, family, and friends.

Farm Tour! After an evening celebrating, Schroeder Law Offices packed it up and headed out to the country on Saturday for an educational opportunity touring a client’s farm. We learned about different agricultural irrigation techniques, multiple land use opportunities combining mining and agriculture, and processing various agricultural products from farm to table.

Utilization Concepts! We then met up with Professor Todd Jarvis of the Institute for Natural Resources at Oregon State University to discuss water rights issues in the West, learning a bit about the water basin utilization project he and associate attorney Jakob Wiley are working on. Professor Jarvis and attorney Wiley (with some other contributors) are collaborating to write a book on the unitization of aquifers as a way to manage water use – while still in the research phase, the book is expected to be completed by the Summer of 2019. We look forward to sharing their discoveries and plans as they move forward.

We Escaped! Finally, Schroeder Law Offices took the opportunity to do some additional team building and participated in two different escape rooms at “Stumptown Escape Games.” The games were challenging but our teams escaped by putting their heads together and succeeding under pressure!

New Associate Attorney Jakob Wiley successfully completed his defense of Collective Aquifer Governance: It’s the Water and a “Hole” Lot More! on September 17, 2018, completing his Masters of Science in Water Resources Policy and Management. Jakob completed the Concurrent J.D./M.S. program between Oregon State University (“OSU”) and the University of Oregon School of law, https://gradwater.oregonstate.edu/concurrent-jdms-degree-program. Jakob’s successful defense of his research paper marked the capstone of his MS studies at OSU.

The paper unravels the differences between the current paradigms in groundwater and aquifer governance, showing that the present focus on groundwater has struggled to meet the challenges of true aquifer governance. Aquifers are composed of a variety of resources, like storage spaces, thermal properties, chemical and biological contaminants, and hydraulic pressures. Jakob coins the term transresources to describe these components, inspired by transdisciplinary approaches in academia. To achieve true aquifer governance, transresources must be included in the governance strategy. Unfortunately, traditional groundwater management only attempts to address these issues through the lens of groundwater regulation.

To provide a guide, Jakob’s paper compares aquifer governance with unitization agreements used in the oil and gas industry. These agreements were developed to counter the inefficient, competitive, and costly over-drilling of wells in the early years of hydrocarbon development. Unitization agreements are fundamentally a contract between reservoir owners. Unitization agreements convert the right to pump into shares of the resources present in the reservoir. By pooling the rights to withdraw oil and gas into a “unit”, a more equitable, efficient, and voluntary governance system is created, while also incorporating any pumping, spacing, and pressure management laws.

Jakob’s research translates this agreement approach into a system of aquifer governance. The theoretical approach would create an agreement among aquifer users, allowing them to contractually change the incentives and use patterns of the aquifer. For example, conversion from flood to sprinkler irrigation can improve “efficiency” but also dramatically reduce artificial recharge of the aquifer. A “collective aquifer governance agreement” – Jakob’s translation of a unitization agreement – could be used to incentivize groundwater users to adopt efficient sprinklers while incentivizing beneficial activities, like incidental aquifer recharge from flood irrigation, improving the overall sustainability of the aquifer system.

The key feature of a collective aquifer governance agreement is the design of shares. By allocating shares to each transresource, the system of water allocation can reflect the scientific and physical effects of groundwater and aquifer resource use (like geothermal energy production, storage, subsidence, in situ bioremediation, ect). Directly connecting rights with physical effects of aquifer use can internalize any negative externalities of aquifer use, when properly designed, and could support a conjunctive surface and ground-water (or any other transresource) market.

Jakob’s work on this topic will continue as he works with Dr. Todd Jarvis of OSU on an upcoming book expanding the theory and providing guidance for the next stage in groundwater management: collective aquifer governance, showing oil and water really do mix!

Jakob’s complete research paper is publicly available at the following link: http://ir.library.oregonstate.edu/concern/graduate_projects/pn89dd30b

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

A lot has changed since 1909, when Oregon enacted its Water Code and the water use permit system began. Obtaining a water use permit can be a lengthy and detailed process. If you’re not careful you can limit the flexibility of your water permit through self-imposed conditions without realizing it.

For example, Schroeder Law Offices recently represented a business that stated on its groundwater permit application that it planned to use drip irrigation. The business did not plan to exclusively use drip, but drip was one form of irrigation used for part of its operation. As a result, the Oregon Water Resources Department (OWRD) proposed to impose a condition in the Proposed Final Order (PFO) that the business would be limited exclusively to drip irrigation. This would have significantly reduced the business’s flexibility and the marketability of its property in the future. However, our office was able to successfully remove the proposed condition from the water use permit that was issued.

This example provides an important reminder to very carefully prepare water use permit applications, and closely review OWRD’s initial reviews, proposed orders, and final orders/permits. Otherwise, water users may be subject to unnecessarily restricting permit conditions. Water use professionals, such as attorneys or consultants, can provide assistance to prepare permit applications and review OWRD documentation regarding the applications. Water use application forms are available on OWRD’s website, https://www.oregon.gov/OWRD/pages/index.aspx. For more information about water right processing see: http://www.water-law.com/water-rights-articles/get-an-oregon-water-right/.

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

This article was drafted with the assistance of Law Clerk Nathan Klinger, a student at Willamette Law School.

On July 11 and 12, 2018, attorney Laura Schroeder and paralegal Rachelq Harman travelled to Caldwell and Twin Falls, Idaho, respectively, for the Idaho Rural Water Association’s (“IRWA”) annual Water Law to YOU Road Show to educate water users and managers all about their municipal water rights. The 6 hour classes discussed the basics of owning, maintaining, and utilizing water rights, along with tips on avoiding potential associated issues such as easement disputes and involuntary forfeiture. The classes also touched on recent developments in Idaho water law, and the status of the State’s multiple ongoing adjudications.

IRWA hosted these presentations that were offered as continuing education credits to satisfy both drinking water and wastewater CEU requirements. Some attendees also planned to seek real estate and/or attorney CE credits for those professional licenses. Attendees came from a variety of backgrounds, including ditch association managers, wastewater treatment operators, and even fellow water law attorneys!

Laura Schroeder’s new class incorporated additional information related to Idaho Department of Environmental Quality’s (“IDEP”) assumption of Idaho’s water quality program from the Environmental Protection Agency (“EPA”). Due to this recent development and the continuing efforts of the Idaho Department of Water Resources (“IDWR”) on the north Idaho adjudications, the class’s focus was expanded from water rights basics. Active participation from students in each session made each presentation unique, and allowed a focus on material of specific relevance and interest to each group.

While this year’s Road Show has come to an end, there are plenty of upcoming opportunities to brush up on your water rights education. Check out Schroeder Law Office’s events page to learn where you can find us next, and stay tuned to Schroeder Law Offices’ blog for more information on upcoming events and water law developments!

On March 13, 2018, Oregon Governor Kate Brown declared a drought in Klamath County under Oregon Executive Order No. 18-02, with an expiration date of 12/31/2018. The drought was declared largely due to the low snow pack in the region. According to the Capital Press, Klamath County was, at that time, experiencing 45 percent of its usual snowpack for the year. Since March 13, the Governor has made drought declarations in five additional counties: Grant, Harney, Lake, Douglas, and Baker. To check for current drought declarations, click here.

The Oregon Water Resources Department (OWRD) is currently issuing emergency drought permits for the Klamath Basin.  According to OWRD, temporary emergency use groundwater permits may be issued in designated drought areas. These permits allow surface water users under drought declaration access to temporarily use groundwater wells to gain access to water. In addition, approved drought permits will require metering, record keeping, and reporting of groundwater use over the season to the Department. To access the emergency drought application’s, click here.

Due to the low snow pack in the 2017-18 winter, and the limited rain fall Oregon has experienced, much of the west is expected to experience higher than usual fire danger. From October 2017 through April 2018 rainfall was approximately 70 percent of what is typical in southwest Idaho, and approximately 50 to 70 percent of what is typical in southeast Oregon. The Capital Press reported that The National Interagency Fire Center’s Predictive Services Unit (NIFC) reported on May 1 that it expects warmer and drier than average conditions across the west. According to the Capital Press the NIFC report also went on to say that southeastern Oregon’s warm, dry April stood out in contrast to cooler, wetter conditions in much of the northwest. The NIFC reported on June 1 that April’s cooler than average conditions across the northwestern states were replaced by above average temperatures in May. The June report went on to say that the above average temperatures are likely caused by the El Niño weather pattern that is expected to hit by mid-fall. The National Ocean Service classifies an El Niño by an unusually warm waters in the Pacific Ocean. Typically, it will occur during winter months like December. According to the National Ocean Service, it typically brings wetter than average conditions off the US Gulf Coast.

US News reported that as of April, all basins in Oregon were well behind on snow pack, most measuring 40 – 70 percent of normal levels. The US Drought Monitor map shows (click here to see the map) abnormally dry to moderate drought conditions, extending through the month of August.

Oregon has already had 259 fires across the state in 2018, which have burned 2400 acres, as of June 28 according to the Oregon Dept. of Forestry (ODF), Fire Blog. According to the NIFC, there are 55 fires currently burning throughout 10 states, and as of June 28, seven of those are new, with 29 of the fires currently burning, in Alaska alone. Of those 55 fires, nearly 500,000 acres have already burned and only three of them are considered contained.

As a result of the unusually low snow pack, unseasonably dry heat, and over all conditions, the 2018 summer is expected to continue to be busy for wildland fire fighters and irrigators alike. Stay tuned to Schroeder Law Offices’ Blog for more news.

Attorney Sarah Liljefelt presented at Halfmoon’s Water Laws and Regulations seminar on June 7^th on the topic of Oregon Groundwater, teaching a group of engineers about groundwater ownership, regulation, and acquisition of groundwater use rights in Oregon. This week, on June 28^th, Sarah will present at the Oregon State Bar Environmental & Natural Resources Section’s “brownbag” continuing legal education seminar on the topic of groundwater regulation in the Klamath Basin in Oregon. Her co-presenter is Lisa Brown of WaterWatch, who will speak about groundwater in Harney County. If you are interested in attending, please visit the Section’s Events page or Schroeder Law Offices’ Coming Events page for more information. Sarah’s presentation materials are available on the Section’s Events page.

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

Water use conditions in the Klamath Basin continue to worsen in 2018. On March 8, 2018, a water “call” was made in the Klamath Basin, and the Oregon Water Resources Department (“OWRD”) began the validation process for shutting off junior water users. Within the week, on March 13^th, Governor Kate Brown declared a drought in Klamath County, Oregon, the first drought declaration since 2015, coming much sooner than hoped or predicted.

In April, OWRD began regulating off water users in the Klamath Basin. On April 13, the Oregon Water Resources Commission approved temporary emergency rules granting a preference to water rights for human consumption and stock watering in Klamath County. The rules allow certain water users with water rights for human consumption and stock watering to continue using surface water for such uses despite OWRD’s regulation off of water use rights. Exempt uses of groundwater, including domestic and stock uses, may also continue despite OWRD’s regulation. The Commission passed similar temporary rules granting the same preferences during the last drought period.

Also in April, Klamath Project water users found themselves unable to begin irrigating due to a federal court injunction. The Hoopa Valley and Yurok Tribes in northern California previously brought suit against the Bureau of Reclamation and National Marine Fisheries Service in federal court, alleging mismanagement of the Klamath River below the four major dams lead to an outbreak of C. shasta, a parasite that infects juvenile Coho salmon. The court entered an injunction requiring 50,000 acre feet of water stored in Upper Klamath Lake to flush and dilute the parasite until most of the salmon have migrated to the ocean, usually occurring after the beginning of June. Irrigators and irrigation districts petitioned the court to lift the injunction, but the court declined to do so in 2018. For more information, see May 1 article from the Capital Press, Judge upholds Klamath River Injunction.

In May, the Klamath Irrigation District brought suit against OWRD, seeking to compel the agency to take exclusive charge of Upper Klamath Lake to distribute water according to the district’s water use rights determined by the agency in the Klamath Basin Adjudication. The district alleges that it disagrees with the Bureau of Reclamation and PacifiCorps as to the proper distribution of water, and those entities are releasing without valid water use rights, causing injury to the district and its patrons. 

Also in May, the Klamath Tribes filed suit in federal court in northern California against the Bureau of Reclamation, US Fish & Wildlife Service, and National Marine Fisheries Service, alleging violations of the Endangered Species Act and National Environmental Protection Act by failing to maintain appropriate elevations in Upper Klamath Lake. The Tribes seek declaration of the alleged violations, an injunction against further jeopardy and habitat modification, and for the agencies to reinitiate consultation resulting in a new biological opinion.

Finally, on April 27, 2018, the Klamath County Circuit Court issued a Case Management Order in the Klamath Adjudication, outlining a schedule for hearing the first substantive exceptions filed with the court since the judicial phase of the adjudication began in 2013. First the court will decide exceptions made against federally reserved water claims, excluding Tribal claims. Next, the court will decide exceptions against Walton and Klamath Termination Act claims. Third, the court will decide exceptions to Tribal claims. Numerous exceptions have been filed with the court, alleging OWRD awarded too much water to these claims, ignoring the pertinent legal standards for deciding these claims, to the detriment of other Klamath Basin water users. A decision on the first group of exceptions is not anticipated until 2019.

The Upper Klamath Basin Comprehensive Agreement was terminated on December 28, 2017. The agreement called for retirement of irrigation rights to increase stream flows into Upper Klamath Lake by 30,000 acre feet per year. This “retirement” (or cancellation) of water use rights, which was negotiated largely in the absence of upper basin irrigators, was viewed unfavorably by many of the affected irrigators, and was ultimately not funded by Congress. Discussions about alternative agreements continue to this date.

Overall, the return of drought conditions, coupled with fish disease and five years of merely procedural rulings in the Klamath Basin Adjudication, have left water users in the Klamath Basin in serious trouble.

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

Written by Alyssa Holland, Lisa Mae Gage, and Lisa Kane

Water Week 2018 is currently underway as water organizations across the country gather in Washington, D.C. to advocate the importance of water protection and conservation with hopes of ultimately elevating water to a national priority. Organizations in the water sector are using Water Week to ramp up their efforts to educate policymakers about the need for funding to benefit water infrastructure. Many organizations are collaborating for Water Week, including National Association of Clean Water Agencies (“NACWA”), Water Environment Federation (“WEF”), American Water Works Association (“AWWA”), and the National Water Resources Association (“NWRA”), for example.

A few main events will take place during Water Week:

• On April 17-18, 2018 the National Policy Fly-In:
  An event to provide the public with the opportunity to voice concerns and challenges to their policy makers.
• April 17-19, 2018: Water and Wastewater Equipment Manufacturers Association (“WWEMA”) 45th Washington Forum:
  “Effectively Communicating Change at the National, State, and Local Level,” a discussion regarding changes happening in Washington, D.C. and to the nationwide water infrastructure, environmental and public health protection, and legislative and regulatory changes that will impact the water sector.
• On April 19, 2018 the WateReuse Association Water Week 2018 Congressional Briefing:
  Four (4) different communities across the country will be highlighted for their use of water recycling and the local economic benefits that encourage other communities to do the same.

While each organization has a slightly different mission, each has a goal of advancing education regarding water issues and returning to their communities with the priority of educating the general public on the same issues. One of the main events, the Congressional Briefing, will directly discuss tools used in arid states (such as one of our main states of practice, Nevada) to address water scarcity and a way for communities to better manage their local water resources to help spur economic growth and plan for the future.

Schroeder Law Offices Nevada attorney Therese Ure also attends and hosts local conferences in Nevada to continue education regarding how to support the community’s resource challenges and even more particularly, how to support Northern Nevada’s agriculture industry. Click here to see our coming events for local education on the topic. Although attending these events may not be a possibility for everyone, we should all use Water Week as a time to reflect on how valuable water is to our everyday lives and to look for ways to conserve and protect water within our own communities.

As the 2018 irrigation season approaches, and on this eve of March 1^st, please remember to review your water use right permit and certificate documents to remind yourself of any measurements you are required to take!

Many water use permits and certificates require you to track your water use each month and then report your monthly use annually to the Oregon Water Resources Department. For more information about recording and tracking your monthly water use, please visit the Department’s Water Use Reporting page.

Many groundwater use permits and certificates require that a qualified individual record and report the water level in each well under the permit or certificate. This measurement is often referred to as a “static” water measurement. Typically, the measurement must be taken in March and reported within 30 days after it is taken, however you should review your permit or certificate closely to determine if you are required to report and when. Your permit or certificate document will also tell you who is qualified to take this measurement.

Additionally, while not outlined in your permit or certificate, those of you located in a Critical Ground Water Area are required to record weekly flow meter or power meter readings. The Department just released a new map showing groundwater area information that is helpful in determining if these rules apply to you.

Remember, complying with permit and certificate and statutory measurement conditions keeps your water use rights in good standing, making them more valuable to your property!

Stay tuned to Schroeder Law Offices’ blog for more timely reminders this irrigation season!

Groundwater is one of the world’s most essential natural resources! According to the United States Geological Survey department (“USGS”) groundwater makes up approximately 1/3 of the public drinking water supply delivered though our county and municipal systems. For rural populations not connected to county or city delivery systems, groundwater makes up about 90% of their drinking water. USGS also reports that groundwater provides over 50 billion gallons per day for agricultural use in the United States. Groundwater pumping has been steadily increasing. In some basins groundwater is being extracted at a faster rate than the basin can recharge. As we are seeing in many states, this excessive pumping can lead to wells drying up, water level decline in hydraulically connected streams and lakes, reduction in water quality, increased costs associated with pumping, and subsidence issues crossed by the loss of water supporting our ground and soils.

The National Groundwater Association (“NGWA”) encourages everyone to participate in National Groundwater Awareness Week. According to NGWA, this year’s theme is “Test. Tend. Treat” to encourage a more holistic approach to groundwater conservation. NGWA is encouraging others to share their stories during this week on social media using the hashtag #GWAW2018. If you are looking for other ways to get involved and promote ground water awareness, the USGS and other water organization have provided some ideas (http://groundwaterawarenessweek.com/). During 2018 National Groundwater Awareness Week, let’s evaluate our own water use and identify ways we can help protect this valuable resource!

Schroeder Law Offices’ attorney Therese Ure is in attendance at the 2018 Family Farm Alliance Conference in Reno, NV and was present for the Reclamation Roundtable wherein Commissioner Brenda Bunman addressed the Family Farm Alliance (“FFA”) membership goals regarding conveying Reclamations under the current administration. Key points of the FFA goals include: 1) creating infrastructure to provide water security and reliable energy; 2) reinvesting to modernize existing infrastructure, and considering creative ways to pay for theses project (welcoming ideas and comments); 3) streamlining projects from the way they are managed to streamlining of the NEPA process; 4) collaborating to create new ideas, listening, sharing, and being transparent; and 5) creating a culture at Reclamation of safety, respect and civility.

Other key points in the Reclamation Roundtable with all the regional directors included a water forecast for 2018, discussion of what current storage will secure or not secure, and how to deal with long term planning by:

• a) creating additional storage through raising dams;
• b) investigating new storage locations (new dams); and
• c) aquifer storage and recovery projects (underground storage) undergoing feasibility studies, working on creative ways to deal with ESA issue, and collaborating with stakeholders.

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.

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.

The Oregon Association of Nurseries annual convention was held on November 3^rd and 4^th at the Salishan Spa and Golf Resort, in Gleneden Beach, Oregon. The convention is a forum used to discuss issues vital to Oregon nurseries, vote on OAN bylaws, and honor the industry’s achievers at the annual president’s Awards Banquet. In an effort to support OAN, Schroeder Law Offices donated two bottles of Oregon whiskey for the silent auction at the President’s Awards Banquet.

Eastern Oregon is already experiencing above-average snowpack levels for this time of year, reports the Capital Press: link.

This follows above-average snowpack and precipitation reports from the 2016-2017 water year, and looks to be good news for Oregon water users as we continue to climb out of the recent drought. (You may remember seeing the Owyhee Reservoir draining water through the “Ring Gate” or “Glory Hole” in 2017 for the first time since 2011; see the video here.) See also, Natural Resources Conservation Service Oregon Basin Outlook Report (June 1, 2017): link.

The good start to the 2017-2018 water year, combined with carryover storage in some Eastern Oregon storage reservoirs, could even result in water releases for flood control in early 2018, according to the Capital Press.

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

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.

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/.