The Oregon Water Code provides that construction of a water system must be completed within certain time limits from issuance of water use permits (5 years for non-municipal water use permits, and 20 years for municipal permits). ORS 537.230 (“…the holder of a water right permit shall prosecute the construction of any proposed irrigation or other work with reasonable diligence and complete the construction within a reasonable time, as fixed in the permit…”); ORS 537.630. The same provisions allow the Oregon Water Resources Department (“the Department”) to grant extensions of time for completion of construction.

The Oregon Water Code also provides that water use permits may be cancelled when a permittee fails to begin construction within permit deadlines. ORS 537.410(1) (“Whenever the owner of a permit to appropriate the public waters of Oregon fails to commence actual construction work within the time required by law, or having commenced construction work as required by law, fails or neglects to prosecute the construction work with reasonable diligence, or fails to complete the construction work within the time required by law, or as fixed in the permit, or within such further time as may be allowed under ORS 537.230, or having completed construction work, fails or neglects to apply the water to beneficial use within the time fixed in the permit, the Water Resources Commission may cancel the permit on the records in the Water Resources Department as provided in ORS 537.410 to 537.450.”)

In determining whether to grant an extension of time, the Department considers: 1) the cost of the appropriation and application of water to a beneficial purpose, 2) the good faith of the appropriator, 3) the market for water or power to be supplied, 4) the present demand for the water or power to be supplied, and 5) the income or use that may be required to provide fair and reasonable returns upon the investment. ORS 537.230(3); ORS 539.010(5); see also OAR Chapter 690 Division 315. The Department’s general practice has been to liberally grant extensions of time if the permittee is able to show a financial investment to begin construction and/or water use under the permit and a reasonable explanation for the delay. Permit extension of time applications are available on the Department’s website at: http://www.oregon.gov/owrd/PUBS/docs/forms/App_Ext_WR_perm.docx.

Recently, the Department has added the following condition to new permits: “The deadline to begin construction may not be extended.” Although the new permit condition does not mark a departure from the Oregon Water Code’s provisions, it does mark increased seriousness from the Department about what is necessary to obtain an extension of time to develop a new water use right. Permittees should be sensitive to the change in climate regarding beginning construction and applying water to beneficial use.

Now, more than ever, it will be important to begin construction within the 5-year deadline in order to avoid permit cancellation. “Actual construction” means “physical work performed towards completion of the water system, which demonstrates both the present good faith of the water right permit holder and the water right permit holder’s intention to complete the project with reasonable diligence.” OAR 690-315-0020(3)(d)(A). This does not include planning, securing financing, entering into contracts, surveying, or purchasing (but not installing) equipment. OAR 690-315-0020(3)(d)(B).

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

Many Oregonians use water wells on their properties. Since the 1960s, well drillers have been statutorily required to submit well logs to Oregon Water Resources Department (“OWRD”) for each water well they drill or modify. Well drillers are also statutorily required to record identification numbers on any water wells drilled, deepened, converted, or altered since 1996 within 30 days after completion of the construction.

Additionally, if a property with an unidentified water well is sold, the owner of the property is statutorily required to record an identification number obtained from OWRD on the water well within 30 days of the sale. This photo from the state’s Water Well Handbook shows an example of a water well with an identification number recorded on it. To apply to OWRD for an identification number for a water well on your recently purchased or sold property click here.

Property purchases are complicated! Here at Schroeder Law Offices, we find that many people who purchase or sell a property with a water well or water use rights overlook important housekeeping matters unique to water wells and water rights. Stay tuned to our blog for more helpful tips.

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

Water resource users are some of the most environmental aware stewards since they must count every precious drop of water necessary to feed the world and provide safe drinking water. In the United States, we celebrate Earth Day: We have a bike-to-work week, we have recycling and environmental preservation programs in our communities, the list goes on. World Environment Day is the United Nations’ all-encompassing campaign that promotes these types of environmentally conscious activities and events and serves as a global platform for public outreach. The UN considers World Environment Day (“WED”) an important holiday for encouraging worldwide awareness and action for the protection of our environment.  Also considered “The People’s Day,” the UN encourages this to be “a day for doing something to take care of the Earth or to become an agent of change. That ‘something’ can be focused locally, nationally or globally; it can be a solo action or involve a crowd – everyone is free to choose.” Each year, the UN organizes WED to revolve around a particularly pressing issue, this year they’re highlighting illegal wildlife trade with a themed slogan: “Go Wild for Life.” Activities are encouraged globally; in 2015, WED saw a total of 2,861 registered activities with 1.26 million people participating worldwide.  Participants can visit the WED online site to register their environmental activities to be shared worldwide on a community map, with hopes of inspiring others with ideas or notable contributions.  For those who wish to participate in the World Environment Day celebration, the UN offers this toolkit for a successful, positive route to taking action and encourages participants to share their activities. While Schroeder Law Office’s work in water resources is a bit removed from the 2016 theme “Go Wild for Life” we can say that we “Go Wild for Water.”  We will celebrate this year’s World Environment Day by continuing to support our clients in smart and efficient beneficial use of our water resources.

Nevada is taking a close look at water rights of use, thus now is the time to make sure your use rights are in good standing. With a shuffling of basin engineers within the Nevada Division of Water Resources, water rights are being reviewed to determine compliance!

• Are your rights of use in your name? If not, it is time to bring the ownership current as required under Nevada Law!
• If you have a permitted right, are you diligently developing your use to bring it towards certification?
• If you are not using your groundwater, are you at risk for forfeiture?
• Do you have a metering requirement? if yes, is your meter installed and are you recording monthly measurement readings?

All of these items and more are under scrutiny by the State Engineer’s office. In the last few months we have seen a number of forfeiture letters go out to unsuspecting water users, don’t let this be you! Do not wait to review your water use rights to ensure they are in compliance!

BLM’s Sage Grouse Plan Collaboration-Implementation is underway.

As part of the BLM’s effort to ensure collaboration and engagement during implementation of the sage grouse plans, the BLM is sending out invitations to stakeholders to begin the dialogue.

These invitation only meetings will occur on:

April 22^nd in Salt Lake City, UT

April 26^th in Boise, ID

April 27^th in Reno, NV

April 28^th in Redmond, OR

You are requested to RSVP at the link below to reserve your spot by April 15, 2016, so that we can set up the workshop for the appropriate number of participants:

http://bit.ly/SageGrouseWorkshop

While space is limited for these invite-only dialogues, BLM plans to conduct additional public meetings later this spring and summer.  Once these public meetings are scheduled, information will be available on: http://www.blm.gov/id/st/en/prog/wildlife_and_fisheries/greater_sage-grouse.html.  If you are interested in receiving an invitation to these meetings, please contact your state BLM office.

In the Northwest, a substantial percentage of our power comes from hydroelectric projects. California’s new legislation requires utilities to provide electricity from 50% renewables by 2030, and Oregon’s new legislation requires the same by 2040. The hydro power industry is viewing these renewable standards as creating continuing demand for hydro power, but several trends are creating serious hurdles for the hydro power industry.

More large projects are going through FERC re-licensing than those large projects that would seek first-time licenses. The result is that older projects are becoming subject to new instream flow and fish passage requirements. The older projects going through re-licensing are usually required to make facility upgrades, and regulate the projects to send more water downstream.

Additionally, climate change means that water patterns are also changing. Scientists predict that more precipitation will fall during the winter, with less flows from snow pack runoff and precipitation in the spring and summer. Predicted changes will create a large burden on facilities that provide flood control, possibly exceeding the amounts of water the facilities were designed to withstand. Further, flows released to meet instream flow requirements in the spring could mean that water is not available for power production and water users later in the season when there is a larger demand.

Moreover, new in-stream storage projects often meet substantial opposition from environmental groups.  Therefore, some innovative hydroelectric developers are constructing out-of-stream projects. For example, the Snohomish Public Utility District in Washington is reviewing an opportunity to construct the Sunset Fish Passage and Energy Project, http://www.snopud.com/?p=1956. An underwater intake structure would divert water from the South Fork Skykomish River, and would flow one-half mile through an underground tunnel to the PUD powerhouse, thereafter emptying back into the river. The PUD would also update the Washington State Department of Fish & Wildlife’s trap-and-haul facility as part of the project. In this way, the PUD proposes an innovative way to create hydro power while satisfying those who are typically opposed to new projects.

Schroeder Law Offices is assisting a client to develop a closed-loop hydro power project using existing agricultural groundwater use rights. It is the first of its kind in Oregon, and will not have undesired effects on surface water streams or fish passage. These types of innovative hydro power designs will need to be used more and more if hydro power is to keep a foothold in renewable energy portfolios in the West.

Stay tuned to Schroeder Law Offices, PC’s Water Law Blog for water news that could affect you!

Spring is approaching on the West Coast and we all know what this means: watering season!  Time to check your sprinkler systems for leaks, read and record meters, and make sure your system is ready for spring irrigation.

Though forecasts were set for an “El Niño” winter on the West Coast, projections from the March Nevada Water Supply Outlook Report, issued yearly by the Natural Resources Conservation Service, suggest that the 2016 water year is not yet the end of Nevada’s drought.  Currently, (as of March 1, 2016) the Bridgeport Reservoir on the East Walker River is at 24.4 percent full, while the Topaz Reservoir on the West Walker River is at about 28.6 percent full.  Despite the two reservoirs having about twice as much water as they did at this time last year, streamflow numbers as of April 1 will calculate the upcoming curtailment order on groundwater rights issued by the Nevada State Engineer’s Office.

After several years of drought, the influx of melting snow pack will provide some relief for Nevada residents, but mindfulness is going to be key.  In Pershing County, the newly improved Rye Patch Reservoir is set to provide water to Lovelock Valley farmers but the county’s water conservation district manager recommends the 2016 irrigation season be postponed.  After consecutive years of drought, the dry ground in irrigation ditches and canals will absorb much of the water initially released from the reservoir, until at least another 10-12,000 acre-feet of water are available for use.

Ranchers in Northern Nevada are facing designations proposed by state water officials last week that order groundwater well metering, meaning more monitoring, regulation, and study of the Humboldt River Basin’s limited resources.  As orders such as these become more common, residents can do their part by monitoring individual irrigation systems and meters.

Upon facing the fourth year of consecutive drought, the Nevada Drought Forum formed in April 2015 by Nevada Governor Brian Sandoval to assist with water resource challenges in the State of Nevada. The Forum was comprised of members representing various governmental and quasi-governmental agencies in charge of managing water resources in the State. In September 2015, a Drought Summit was held at the Nevada Legislature, where those involved discussed many of the drought problems Nevada is facing, and numerous presentations were offered on these issues. At the conclusion of the Forum activities, and in December 2015, the Governor was presented with a Recommendations Report summarizing the conclusions made by the Form, and proposed future action.

The Drought Forum recommendations come in seven (7) categories including: 1) Water Conservation, 2) Nevada Water Law, 3) Monitoring and Research Data, 4) Financial and Technical Assistance, 5) Supply Augmentation and Long-Range Planning, 6) Information Sharing and Outreach, and 7) Drought Declarations/Emergency Actions. Each category offers specific suggested action items for the Governor’s consideration. Strategies include requiring meters on all groundwater connections, tiered rate structures, updates to Nevada water law, judicial education on water issues, and refinement to drought criteria, among others.

At this stage, no specific action is taking place on the issues presented; however, the conversation is started on where Nevada will head in response to ongoing drought conditions. While real action can sometimes take years to implement, the Recommendations come as a positive sign that Governor Sandoval is interested in suggested strategies advocated by water professionals around the state. There remains time for those interested in becoming involved to voice their concerns and positions with the Governor in upcoming events dedicated to this ongoing discussion.

For more information about the Governor’s Drought Form visit http://drought.nv.gov/.

For Additional information concerning the Recommendations Report visit http://drought.nv.gov/News/Nevada_Drought_Forum__Recommendations_Report_-_December_2015/.

Final rulemaking related to Forest Service permits for Ski Area Water Rights was released on December 30, 2015. Unlike an earlier directive passed in 2011, the Ski Area Water Clause will not require ski areas to transfer water rights to the federal government as a condition of operating on public land. Instead, the new clause will require ski areas to prove there is a “sufficient quantity of water to operate a ski area.” The new directive will take effect on January 29, 2016.

In 2011, sparked by the concerns that ski areas might sell their water rights in lieu of using them to operate due to rising temperatures and water scarcity, the Forest Service issued a directive that would require joint ownership of water rights by ski areas and the United States. Since water rights are typically held by the lessee, this directive would have required a transfer of rights into shared ownership in some instances, and for water rights to be acquired in the name of the United States in others. The National Ski Area Association (NSAA) brought suit against the Forest Service challenging the directive on January 9, 2012, characterizing the directive as government overreach. In December, 2012 a federal judge agreed with the NSAA and ordered the Forest Service not to enforce the proposed rule.

The December 30th directive abandons the original proposal that ski areas transfer water rights to the federal government. Instead, after an extensive public comment period, the final directive requires an applicant for a ski area permit to submit documentation prepared by a hydrologist that demonstrates there is sufficient water to operate a ski area for the entirety of the ski area permit term. The final directive explains that “sufficient water to operate a ski area” means that under typical conditions, taking into account fluctuations in utilization of the authorized improvements, fluctuations in weather and climate, changes in technology, and other factors deemed appropriate by the applicant’s qualified hydrologist of licensed engineer, the applicant has sufficient rights or access to a sufficient quantity of water to operate the permitted facilities, and to provide for the associated activities to be authorized under the ski area permit in accordance with proposed operating plan.

Additionally, if there is a change such as a change in ownership, and a ski area water facility will not be primarily used for operating a ski area, the authorization for the facility under the ski area permit will be terminated and the facility must be removed from National Forest Service lands. Lastly, if a ski area permit is terminated or revoked, the holder must give a right of first refusal of the water rights associated with the permit to the succeeding ski area permit holder. If the water use right is jointly owned with the United States, the holder must give a right of first refusal to the government.

The stated goal of this new rule is to promote the long-term sustainability of ski areas on National Forest Service lands and the communities that depend on the ski areas for revenue. There are 122 ski areas that lease approximately 180,000 acres of lands managed by the Forest Service. Ski areas received about 23 million visitors annually, contributing $3 billion to local economies and supporting approximately 64,000 full and part-time jobs in rural communities. In the West, water use rights for many ski areas are business assets, property interests that operate as collateral when re-financing. One major criticism of the original rule, was that requiring water rights to be co-owned by the federal government would limit a ski area’s ability to control their assets and thus their ability to finance operations.

Thus, the directive ensures that ski areas not only have adequate water supply for operating, but that infrastructure to handle the water supply is used only for permitted purposes under the special use permit. Hailed as a success by both the Forest Service and the ski industry, these actions demonstrate a coordinated effort to eliminate the risk of sales or transfer of water rights that might prevent a ski area from operating in the future and ensure that water will remain available for ski areas across the West.

On December 22, 2015, the United States Environmental Protection Agency (“EPA”) announced funding of more than $19 Million for drinking water and wastewater infrastructure projects in Nevada. The program funds fall under Nevada’s Clean Water State Revolving Fund, and provides money for state projects that promote clean water through wastewater treatment projects and improvements to drinking water infrastructure in the State. The EPA’s Regional Administrator stated that “This substantial investment at the federal level helps communities develop the infrastructure needed for clean, safe drinking water and proper wastewater treatment. EPA is committed to protecting the water resources so important public health and Nevada’s economy.”

Funds supplied under the EPA program will go to provide financing for state projects such as upgrading septic systems to sewer, and renovations to wastewater treatment facilities to increase efficiency, as well as support projects for better and more efficient access to clean drinking water, such as water storage and water system upgrades. The funds this year will combine with over $200 Million in federal funding previously provided to Nevada’s Clean Water and Drinking Water State Revolving Fund since the project began. While the EPA’s influence can at times be controversial, federal funding is important to State projects, where both municipal and agriculture interests can often benefit from the funds supplied for needed water projects.

More information on the topic can be found at the EPA Web Site.