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

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

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

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

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

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

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

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

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

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

The Oregon Water Resources Department (“OWRD”) issued amended rules designating the Walla Walla subbasin as a Serious Water Management Problem Area (“SWMPA”).[1] The amended rules, filed on May 22, 2017, specify new groundwater permits will not be issued in the SWMPA and new groundwater uses will only be allowed for the statutorily exempt uses outlined in Oregon Revised Statutes (“ORS”) 537.545.[2] Some of the statutorily exempt uses for which groundwater may be used, as outlined in ORS 537.545, include stockwatering purposes, watering a one-half acre lawn or noncommercial garden, single or group domestic purposes not exceeding 15,000 gallons per day, or a commercial purpose in an amount not exceeding 5,000 gallons a day.

The SWMPA designation applies to the areas shown on the map accompanying the revised Oregon Administrative Rules (“OAR”).[3] Any already existing groundwater well that is drilled into the basalt and develops groundwater from the Columbia River Basalt Group will be required to install a totalizing flow meter on their well by January 1, 2019.[4] The totalizing flow meter measures and displays both the instantaneous flow rate of groundwater produced from the well and the total volume of groundwater produced from the well. The water right holder, well owner, or well operator will also be required to keep a complete record of the volume of water appropriated each month and submit an annual report of those water use measurements to OWRD.

OWRD implemented the new rules because it has tracked that groundwater levels have dropped by up to four feet per year in the deeper basalt aquifer and by about 100 feet over the past 80 years in the deeper basalt aquifer. The stated policy behind the new rules is to attempt to prevent the declining groundwater levels from growing worse and to ensure enough water is available for senior water use right holders. While some drillers and water users have concerns that OWRD did not consider the possibility that additional water is available in deeper basalt levels, some water use right holders have stated they are glad OWRD is taking steps to protect the resource.[5]

An additional concern was that the Walla Walla Subbasin spans the border between Oregon and Washington and that any action taken by Oregon water users to preserve the resource could be undermined by Washington; however, the two states advise that they have been working together to ensure neither state’s water usage undermines the water savings of the other state. OWRD also plans to work with the local community in the Milton-Freewater area to implement a voluntary, long-term water plan.

This is the first SWMPA established in Oregon.

[1] Or. Admin. R. 690-507-0030.

[2] Or. Admin. R. 690-507-0030(3).

[3] Or. Admin. R. 690-507-0030, Exhibit Map 507-1, available at http://www.oregon.gov/owrd/LAW/docs/law/690_507_Exhibitmaps_2017_May_22.pdf.

[4] Or. Admin. R. 690-5070-0030(4).

[5] Mateusz Perkowski, New Agricultural Wells Prohibited in Oregon’s Walla Walla Subbasin, East Oregonian (May 18, 2017) http://www.eastoregonian.com/eo/local-news/20170518/new-agricultural-wells-prohibited-in-oregons-walla-walla-subbasin

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

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

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

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

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

Schroeder Law Offices plays some serious water games, and so should you! Serious gaming is an emerging tool in negotiation, mediation, and water conflict. Serious water gaming acts is a way to share knowledge, interact in an engaging way, and build capacity to solve the real problems in water resources. The games allow for role-playing for social learning in a less-threatening environment. Parties that might otherwise be unable to cooperate build capacity, relationships, and deescalate tensions, at least momentary. Careful reflection after the game concludes provides lessons that can be applied to the real-life problems. When we aren’t helping you with your real-life water issues, we are honing our water gaming skills.

The United States Army Corp of Engineers has started playing too! They have built a dam-based game resembling the way the agency balances water needs for agriculture, flood control, habitat, water quality, and hydropower. The “River Basin Balancer Game” is available for free at: http://www.nwo.usace.army.mil/Missions/Dam-and-Lake-Projects/Missouri-River-Dams/Basin-Balancer/

The United Nations plays “Aqua Republica.” This game simulates the demands placed on water managers, balancing food, energy, and wildlife. The game includes social revolts, population increases, and economic impacts. There are multiple versions available representing different regions. Choices of crops, environmental policies, and irrigation technology all influence the player’s success. To begin playing for free, follow this link to the registration menu: http://capnet.aquarepublica.com/register

For those that enjoy board games, the California Water Crisis Game pits the three regions of California against each other in a competition for water, but also reputation! Different stages of water law are represented, including the Gold Rush era and today’s Sustainable Groundwater Management Act. (See our blog post on the Act here: https://www.water-law.com/california-will-have-regulations-on-groundwater-pumping/) More information is available here: http://www.californiarailmap.com/cawater

Schroeder Law Offices will be developing its own game to show the kinds of legal problems you could encounter with your water issues! For more information and games, see Dr. Todd Jarvis’s blog at http://rainbowwatercoalition.blogspot.com/2016/04/serious-gaming-in-water.html and the upcoming paper titled “Serious Water Gaming” by Shelby Hockaday, Todd Jarvis, and Fatima Taha.

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

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

The Oregon Department of Fish & Wildlife (“ODFW”) filed applications for numerous instream water use rights in the last few months for salmon habitat in the Hood River basin. Instream water use rights in Oregon are held by state agencies for the preservation of a public purpose, like preserving salmon habitat. Beginning in December 1, 2016, ODFW began filing a series of applications with the Oregon Water Resources Department (“OWRD”) in the Hood River basin. The most recent applications were filled May 1, 2017.

ODFW filed similar instream water use applications in the past on various Oregon stream reaches. Such applications have been protested on the grounds that ODFW requested more water than is actually available from the source, that the amount of water requested is more than what is necessary for fish preservation and is not supported by data, injury to senior water users, detriment to the public interest, and more. The amount of water requested in the Hood River basin applications ranges from 10 cubic feet per second (“cfs”) to 175 cfs, depending on the application and time of year.

OWRD’s regulations allow instream water use rights to exceed the volume of water actually available at the source. Instream water use rights may be granted when a stream is already fully appropriated, although regulations state that instream rights may not exceed natural flows. Therefore, should senior water use rights be cancelled in the future, such cancellation would not free up water for new appropriations; rather, the cancelled water use rights would be swallowed by the ODFW instream rights that appropriate more water than is available at the source.

ODFW must provide scientific information used to determine the habitat needs supporting its water use applications. Two scientific methods were used in the recent applications. First, the quantities were determined using the Oregon Method, developed by Thompson in 1972, which determines the theoretical minimum needed for salmon spawning, adult passage, and rearing. (See http://www.dfw.state.or.us/fish/water/). The method focuses on the shallowest portion of a stream and determines the minimum flow required for salmon habitat needs. Using another study, habitat for the East Fork of the Hood River was determined using river modeling software. (See the draft report at http://www.co.hood-river.or.us/vertical/sites/%7B4BB5BFDA-3709-449E-9B16-B62A0A0DD6E4%7D/uploads/Appendix_C_Instream_Flow_Assessment_Draft_Report.pdf).

While the public comment period has passed for many of the applications, comments may still be submitted for the May 1, 2017 applications (Application Numbers IS 88336, IS 88333, IS 88332) after OWRD issues Initial Reviews for those applications. Anyone may comment on the applications within 30 days of the initial review and public notice. Additionally, protests may be filed after OWRD issues Proposed Final Orders for the applications, and additional applications may still be filed by ODFW.

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

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

Last month we were fortunate to take our sons to visit Glacier National Park in Montana. It was a great opportunity, especially in light of the fact that Glacier National Park’s glaciers are melting and will be gone in our lifetime! Last month, the United States Geological Survey (“USGS”) released data showing that the park’s 37 glaciers have melted an average of 40% since 1966. USGS’s research ecologist, Daniel Fagre warns that at this rate, they will be gone within our lifetime and notes that in order for the glaciers to survive, the area must experience significant cooling.

If the park loses its glaciers, significant changes will impact not only the environment, but also wildlife. The stream water volume, change in water temperature and timing of run-off will have direct impacts on the park’s aquatic wildlife. Glacier National Park’s glaciers are estimated to be 7,000 years old, however, it appears the same changes to our environment that threaten our water sources in times of drought are also taking away our precious National Monuments. Plan a visit to see these glaciers before they are gone!

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

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

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

Are you interested in learning more about successful conservation tactics? The National Water Resources Association (“NWRA”) is hosting a free seminar! The seminar will take place on August 7, 2017 at the Genoveva Community Chavez Center in Santa Fe New Mexico, following the NWRA Western Water Seminar. The Water Conservation Ideas Sharing Forum will host various agencies throughout the West, who will share their successes and setbacks in implementing their various water conservation programs. And the best part is, the Water Conservation Ideas seminar is free regardless of attendance to the Western Water Seminar! For more information on attending this seminar to gain valuable knowledge of conservation ideas, please see http://www.nwra.org/2017-municipal-caucus-meeting.html.

The Oregon Task Force on Drought Emergency Response met throughout 2016 to propose statewide recommendations to address current and future water shortages throughout the State. One of the task force’s recommendations has been embodied in House Bill 3051,[1] which has garnered support from Democrats and Republicans alike.

H.B. 3051 will help pay for the installation, repair, and replacement of measuring devices on authorized diversions and points of appropriation to measure groundwater use. The bill authorizes the use of the Water Measurement Cost Share Program Revolving Fund, which has been available since 2000 to incentivize surface water users to measure their water use, to now fund the installation or replacement of groundwater measuring devices.

This is a voluntary system that allows the Oregon Water Resources Department (“OWRD”) to work with landowners to install measuring devices at their points of appropriation or points of diversion. Additionally, the fund can pay up to seventy-five percent of the cost of installing the measuring device.

The widespread support for this bill stems from a desire to protect priority of water rights through improving the amount of information about groundwater use available to OWRD. OWRD uses this type of groundwater use data to better understand the availability of water in a basin, to determine how much water is available for withdrawal, and to better manage any interference between junior and senior groundwater users.

H.B. 3051 passed out of the Oregon House of Representatives on April 3, 2017 and has been referred to the Senate Environment and Natural Resources Committee.

[1] https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/HB3051 

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

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

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

Oregon Legislative Updates

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

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

Governor’s Office Updates

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

Cannabis Legalization on Water Usage

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

Upcoming Adjudications

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

Water Rights Auditing in Real Estate Transactions

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

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

Due to recent crackdowns by the State Engineer in Nevada regarding both forfeitures and cancellations of groundwater rights not in full use, it is important to keep records of your water use.  One method to show use is by recording your meter readings.  This is important both for permitted wells and certificated wells respectively, to provide evidence to support a Proof of Beneficial Use as well as evidence of continued use.^[1]

Many groundwater permits/certificates require monthly, quarterly, or annual reporting to the Nevada Division of Water Resources.  If your use so requires recording and reporting, make sure you meet your specified deadlines to file your meter reading reports.  If your wells are not metered, please be sure to verify whether you are required to maintain a meter.  We predict that nearly all wells in Nevada will eventually require metering.

Schroeder Law Offices provides a routine monthly meter reading reminder email as a service to our clients.  If you are a client of ours and wish to receive a monthly meter reading reminder, please request to be added to the “Well Meter Reminder” list by emailing request to counsel@water-law.com.

^[1] Attorney Therese Ure assisted in the drafting of the legal issues discussed in this blog.

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

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

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

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

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

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

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

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

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

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

On October 13, 2016, the Nevada Division of Water Resources (“NDWR”) provided notice that a new Application for Extension of Time form must be used when requesting an extension of time for the submission of a Proof of Completion of Work, Proof of Beneficial Use or Cultural Map.

It appears that NDWR is placing more emphasis on the section explaining the reason why the extension is being requested. The instructions sheet accompanying the Extension Request now states that the applicant must highlight progress made during the previous year, and must also “submit any proof and evidence that documents reasonable diligence.” Thus it is important to document what you have been doing on your project to prove up on your rights as well as keep records and documents showing your progress (ie – well driller receipt, pump, pipe, or other infrastructure purchase receipts, photographs with infrastructure installation (include the date, time, and place), and log books of you contact with agency personnel if your project involves working with other state or federal agencies).

Please keep this in mind when preparing an Application for Extension of Time. It appears the NDWR is cracking down and no longer “rubber stamping” approval on application requests.  You don’t want a request for an extension of time denied for lack of proof of due diligence! To view the new Application for Extension of Time form, please visit the NDWR’s website at http://water.nv.gov.

It’s getting close to that time of year again! As the 2016 irrigation season comes to a close, we here at Schroeder Law Offices want to remind you of the December deadlines to report measurements for your water uses to Water Resources Department (“OWRD”).

There are two different reporting deadlines to be aware of in December. The first applies to ground water uses in either the Stage Gulch or Butter Creek Critical Ground Water Areas (“CGWA”). Ground water users in these CGWA are required to report flow meter and/or power readings to OWRD by December 1^st each year. The photo below shows OWRD’s designation of various ground water areas.

More information about requirements for ground water use in the Stage Gulch or Butter Creek CGWA is contained in Oregon Administrative Rules 690-507-0610 to 690-507-0830.  http://arcweb.sos.state.or.us/pages/rules/oars_600/oar_690/690_507.html. To obtain the required reporting form contact OWRD’s ground water section.

The second December reporting deadline is a permit or certificate specific requirement and applies to both ground water and surface water rights. If your paper water right permit or water right certificate requires annual reporting it will include language along these lines:

You are also required to keep a complete record of the amount of water used each month and submit a report that includes the recorded water use measurements to OWRD annually, or more frequently if required by the Director.  Further, the Director may require you to report general water use information, including the place and nature of use of water under the permit.

Your annual water use report is due to OWRD by December 31 each year.

Water use recording and reporting forms are available on the OWRD website. Additionally, you may report your water use online.

As you will note, the reporting period is based on the “water year” rather than the calendar year. OWRD considers the “water year” October through September annually, as outlined in the enclosed form.

We encourage you to take meter readings at the end of each month and keep these readings in your own files along with a copy of the report that you submit to OWRD.

Stay tuned to the blog throughout the year for more helpful water use related reporting deadlines.

New laws and legislation may affect you, stay tuned for tomorrow’s work session on topics of adaptive management, domestic use, cloud seeding, basin management, and mine dewatering!

Nevada’s Legislative Commission’s Subcommittee to Study Water will be holding a meeting on Friday morning, August 26, 2016 at 9:00AM at the Legislative Building, Room 4100, at 401 South Carson Street in Carson City.

Items on the agenda include the “Work Session Document” containing recommendations received by the Legislative Commission’s Subcommittee during the 2015-2016 Legislative Interim. This document is designed to assist the subcommittee members in determining which recommendations will be forwarded to the 2017 session, and what other actions the Subcommittee will endorse.

For those who may not be able to attend the meeting in Carson City, it will also be broadcast live over the internet via http://www.leg.state.nv.us, and can be viewed or listened to by clicking the link for “Calendar of Meetings/View” in the top right-hand corner of the page.

Items in the agenda as well as the Work Session Document and other information pertaining to the meeting can be found on the Nevada Legislature website under the “Meetings” tab. For written copies, please contact the Research Division, Legislative Counsel Bureau at (775) 684-6825.

A PDF link to the agenda including the Work Session Document can be found here.

California Water Right Ownership Updates Required

The State of California wants to know when you sell or transfer water rights. As part of any land use transaction involving water rights, regulations require landowners to provide notice to the Water Resources Control Board (WRCB) when water rights transfer to new owners.

The WRCB will accept any change of ownership unless the change is challenged. If so, the WRCB will wait to update ownership listings until the dispute is settled outside of the agency.

Notification to WRCB should include information like the application number for the water right, name, and address of the new owner. The notice must also be signed by the previous owner. The process is easy. Forms are available at: http://www.waterboards.ca.gov/water_issues/programs/ewrims/ownership/. The forms may be sent electronically, by mail, or fax. Questions regarding the forms may be sent to: changerequest@waterboards.ca.gov.

For other states’ recording procedures and requirements, see: http://www.water-law.com/water-rights-articles/water-right-assignment-and-ownership/.

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

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

Forfeiture

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

Abandonment

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

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

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

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

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

Co-authored by Therese A. Ure