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Water Rights Articles

This page lists articles and information regarding water rights of general interest to water users.

Water Law: Informational and How-to Articles

American Bar Association: The Year in Review 2016 Schroeder Law Offices, P.C. contributed to the American Bar Association’s Environment, Energy, and Resources Law: The Year in Review 2016. Click the link to read more on our contributions regarding Water Resources and federal developments.

CLEAN WATER ACT CONTROVERSY Jim Browitt and Laura Schroeder discuss public opposition to EPA proposed expansion of the clean water act. in The Water Gram, publication of The Idaho Rural Water Association, Winter, 2014 (Page 20).
WATERWATCH OF OREGON, INC. V. WATER RESOURCES DEPARTMENT: In this article, Brian Sheets discusses the Oregon Court of Appeals decision in WaterWatch of Oregon, Inc. v. Water Resources Department. Municipal water developers and fish protection advocates should be especially interested in the Court’s opinion and its implications on fish persistence conditions.
CONJUNCTIVE MANAGEMENT: CHANGING WATER REGULATION AND EVOLVING STRATEGIES: In the past few decades, many western state legislatures have recognized that in some cases, surface water and groundwater is linked together in a hydrological manner. Because of that connection, physical effects from use at one source ripple to the connected source; however water management, especially from the legal side, does not always follow the physical facts.
How to Research Land & Water for Proof of Vested Water Right Claims: Prior to Nevada’s water code, water users did not need to apply to the state to obtain water right permits.  All that was necessary was that users diverted the water and placed it to beneficial use. This article examines these very old and valuable water rights.
Oregon Year in Review: Each year Schroeder Law Offices, PC, provides an article to the Oregon Section of The Year in Review (Environment, Energy, and Resources Law) booklet of the American Bar Association. These informative articles summarize important Legislative, Judicial, and Administrative developments of the year. See the following: 2014; 2011; 2010; 2009: 20082007; and 2006.
WATER RIGHT ASSIGNMENTS AND OWNERSHIP UPDATES
Creating and maintaining clear ownership interests in water
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states require that certain types of conveyances be recorded upon transfer. Failure to record a change in ownership will have different consequences, depending on the state at issue. (April, 2011)
THE FUTURE OF OREGON’S WATER SUPPLY AND MANAGEMENT
Oregon’s Domestic Groundwater Exemptions: Present and Future Considerations

This paper examines state laws which exempt domestic groundwater uses from permitting requirements, the methods states use to administer exempt and non-exempt uses simultaneously, and the recent actions taken by certain states to limit the effects of exempt groundwater uses. (March, 2011)
Water Right Processing in Oregon: Applicants obtain water rights through Oregon Water Resources Department in a process dictated by statute and rule. The process is detailed and can be lengthy for many applicants. For a complete and detailed discussion of the process see other articles below.
The Contested Case in Oregon: Under the Oregon administrative rules, a matter is adjudicated in a proceeding called a contested case. The contested case is the administrative equivalent to litigation. A contested case is a trial-like process in which the parties come before an adjudicating body to present evidence, give testimony and have their dispute decided. (This article is not currently available.)
The Protested Case: If an Oregon water right holder wishes to alter his use in any way, he must file a transfer application with the Oregon Water Resources Department. A change in manner or place of use or a change in a point of diversion can be of particular concern to water users and other interested parties.  Concerned parties may protest the application to either enjoin or limit any water right transfer.  This article offers guidance in preparing a protest to a water transfer and provides a brief discussion of some of the grounds that should be considered when filing a protest. You may want to first review Considerations in Protesting a Transfer Application.
Forfeiture and Cancellation: Water rights in Oregon are vulnerable to cancellation and forfeiture for non-use.  This article, current as of June, 2004, details the statutory law and administrative regulations regarding defending one’s right to use water against claims of abandonment. See also recent legislative review of Oregon Law in this blog post.
Oregon Water Right Transfers: Oregon law provides for both permanent (ORS 540.520) and temporary (ORS 540.523) transfer of a water use.
Water Rights Due Diligence: Considerations of concern to attorneys and others in water right transactions. Presented at the American Bar Association, Section of Environment, Energy, and Resources 19th Annual Water Law Conference, San Diego, California, February 14-16, 2001
Oregon Due Diligence Checklist: A reference checklist for Oregon water right transactions reprinted from the above paper, Water Rights Due Diligence
Use It or Lose It – Water Rights and Water Issues in Oregon: While the abundance or scarcity of water varies throughout the state, all Oregon water users live by the same set of rules. This article outlines the underlying principles. August, 2004.
Oregon Water Right Cancellations: OWRD has encouraged watermasters and other OWRD staff to cancel water rights no longer in use through either a voluntary process or forfeiture proceeding.

Other Water Related Articles

Guidance Controls Water Quality or Settlement? After the Flood: The Jurisdictional Reach of Navigable Waters in the Post Rapano West: The 2008 Guidance issued by the EPA and the Corps as those agencies interpreted the Rapanos decision expands Clean Water Act jurisdiction significantly to lands and waters in the arid West. (May, 2009)
Turbid Waters: The Interaction between Interbasin Transfer and the Clean Water Act. In Nevada, large scale interbasin transfer of water from rural areas is increasingly seen as a solution to the problem of dwindling water supply and steadily rising urban demand.  Whether such interbasin transfers are subject to permit requirements under the federal Clean Water Act (“CWA”) has major implications for the environment and the ability of municipal suppliers to secure additional water supplies.
Klamath Takings Case: In late August of 2005, the Court of Federal Claims denied the takings claim asserted by the Klamath irrigators in Klamath Irrigation District, v. United States, 2005 WL 2100579 (Fed.Cl.). This paper examines the effect of this ruling.
Drought 2005: Read this article by Laura Schroeder and Wyatt Rolfe for updates on Oregon and Federal drought procedures. Although the drought of 2005 failed to materialize this information remains timely.
Back to Basics: “Those who don’t like Oregon’s handling of recent water allocations are going back to basics, demanding the state comply with state orders establishing pre-1909 water rights.” By Tam Moore, reporting in Capital Press on a presentation by Laura Schroeder.
BPA vs. NMFS: Ninth Circuit upholds Bonneville Power Administration’s reliance on NMFS’ jeopardy opinion (June, 1999)
Boeing Protest: Negotiated Water Rights Settlement for Agricultural Project Draws Protests from Environmental Groups (July, 1999)
Irrigators vs. BOR: Ninth Circuit Rules in Favor of the Bureau of Reclamation: Irrigators Cannot Sue as Third Party Beneficiaries to Federal Dam Operation Contract and ESA Responsibilities Can Alter Pre-ESA Reclamation Contracts (October, 1999).
Is Agriculture Just Another Messy Industry? Klamath crisis shows our lack of compromise, sending industry, and now farming, overseas. Written by Laura Schroeder and published in THE OREGONIAN, Wednesday, May 9, 2001

Property Rights and Easement Articles

Law of Easements: A general overview of the law of easements, beginning with some definitions and moving on to explain the ways in which easements may be created and enforced.
The Nuts and Bolts of Adverse Possession: Gilinsky v. Sether, 187 Or App 152, 66 P3d 584 (2003), provides a helpful example of a very typical adverse possession claim. The case may serve as a basic reference whenever adverse possession is an issue.

Decrees

Schroeder Law Offices has assembled Oregon and Nevada River Decrees in PDF format.

Outside Resources

For more information also see Important Links.
Western Range Services article: The Greater Sage-Grouse Does Not Warrant Listing Under the Endangered Species Act.

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