Domestic Groundwater Exemptions: Will a Constitutional Right to Life Effect the Exempt Well Debate? Laura A. Schroeder, May 18, 2011

Transcription

1 Domestic Groundwater Exemptions: Will a Constitutional Right to Life Effect the Exempt Well Debate? Laura A. Schroeder, May 18, 2011

2 Areas of Practice Laura A. Schroeder represents businesses and municipalities in transactions and litigation, including water rights acquisitions, sales, contracts, easements, dam removal/replacement, well share and water delivery agreements, adjudications, permitting, extensions, transfers, certification, regulatory compliance and litigation of water rights disputes before state administrative bodies, State and Federal trial and appellate courts. Laura works on water quality issues related to wetlands compliance and permitting, Endangered Species issues, and hydro-power re-licensing. She also has extensive experience working with the Bureau of Reclamation on behalf of her irrigation district clients in contract negotiations and title transfers. As an international consultant, Laura provides international water law experience to those countries developing decentralized and sustainable water use and wastewater licensing and permitting.

3 Areas of Practice Cont Cortney Duke, JD: Special districts/agricultural water organizations, formalities, transfers, certificates, contracts, instream leasing/transfers; surface/pond permitting; storage/ federal contracts; adjudications/walton Rights; Bureau of Reclamation Wyatt Rolfe, JD: Water rights review, resort development/permitting, group systems (domestic/commercial /industrial), nursery and wine industry water use; groundwater interference/connection; water easements, extensions, water transfers, business incorporation and formalities Therese Ure, JD: Water use permitting, extensions, transfers, certificates; ground water interference/connection, critical/limited areas; cancellation, forfeiture or abandonment; water right title/recording; special patron rights and responsibilities; public lands (easements/permitting uses/grazing permits BLM, USFS) private easements; agri-business; contracts; administrative appeals; civil litigation The authors of this document are employees of Schroeder Law Offices, PC. Permission to use the slides or presentation for any purpose should be made in writing to: Schroeder Law Offices, PC; Laura A. Schroeder; 1915 NE Cesar E. Chavez Blvd.; Portland, OR

4 Areas of Practice Cont Sarah R. Liljefelt, JD is an associate attorney at Schroeder Law Offices, P.C. She graduated cum laude from Lewis & Clark Law School in Portland, Oregon in June, 2010, and is licensed to practice law in Oregon. Sarah s interests include valuation of water rights, transactional water transfers, water marketing, federal and state regulatory compliance, and litigation.

5 Public Lands Schroeder & Lezamiz Law Offices, L.L.P. 447 West Myrtle Street P.O. Box 267 Boise, Idaho Telephone: Fax: W. Alan Schroeder, JD Public lands administered by BLM, National Forest System lands administered by USFS, reclamation lands administered by BOR, and refuge land administered by USFWS (grazing permits; range improvements, such as water developments and fencing; rights-of-way, such as roads, ditches and pipelines; land tenure, such as purchases, sales, exchanges, and land use permits; special use permits; trespass claims, such as grazing, timber, roads, and ditches; contract disputes; Endangered Species Act compliance and disputes, such as listing, Section 7 consultation, BA, BO, and Incidental Take Statements; Archeological Resource Protection Act compliance and disputes; National Environmental Policy Act compliance and disputes)

6 Attorney and staff contributors Informal discussions and comments on: Developing case law Legislation Water user experiences Regularly updated with information pertinent to Oregon, Nevada, Washington, Idaho and international water issues

7 History of Exempt Wells Well water became a necessity for supporting domestic needs and agricultural practices as America grew in the 1800s and families moved westward into the arid West.

8 Surface & Groundwater Codes

9 Domestic exempt uses (NRS ) Culinary and other household purposes of singlefamily dwelling Watering a family garden or lawn Providing water to livestock or domestic animals Exempt Group Domestic: Existed prior to 1983 No more than 3 single-family dwellings No more than 2 acre-feet per dwelling annually

10 Oregon s Exempt Groundwater Uses ORS Single or group domestic purposes in an amount not exceeding 15,000 gallons per day Industrial or commercial purposes not exceeding 5,000 gallons per day Stockwatering Watering lawn or noncommercial garden under ½ acre Certain school lawns under 10 acres Down-hole heat exchange purposes Certain qualified land applications

11 Oregon Limits on Exempt Use Only the use is exempt Register/notify the state of the use Flow meters & reporting Compliance with state well drilling standards No injury to existing water rights

12 Oregon Limits on Exempt Use Exempt use rights are equal to permitted groundwater rights and subject to beneficial use requirements OWRD may require well owner to submit information about well use (ORS (3)) Must register with OWRD & pay $300 fee within 30 days of completion of construction Must comply with general standards for construction and maintenance of wells ORS (b); OAR OWRD can enter private land to inspect wells ORS (e)

13 Washington Domestic Exempt Uses (RCW ) Stockwatering Watering lawns or non-commercial gardens not exceeding ½ acre Single or domestic uses not exceeding 5,000 gallons per day Appropriators can choose to be exempt or to apply for permit

14 Idaho Exempt Domestic Uses (IC ) Water for homes, organizational camps, public campgrounds, livestock, and other uses associated, including irrigation of up to ½ acre of land Up to 13,000 gallons per day

15 New Mexico No Domestic Exempt Use (NMCR (D)) Relaxed standards for domestic groundwater permitting No discretion for State Engineer to deny domestic groundwater application (unless well located in a limited use area)

16 Utah Only western state without a domestic groundwater use exemption All permits to appropriate groundwater must be permitted under the state s typical permitting process

17 State Attempts to Restrict Exempt Groundwater Uses Bounds v. New Mexico Held that State Engineer s non-discretionary approval of domestic groundwater permit applications is unconstitutional Reversed on Appeal Presently before the N.M. Supreme Court

18 Human Right to Water International Law - UN U.S. Right to Life

19 International United Nations Universal Declaration of Human Rights (1948) Everyone has a right to life, liberty & security of person Article 3 Everyone has right to standard of living, including food Article 25

20 United Nations International Convention on Law of Non-Navigable Uses of International Watercourses (1997) Idea of human right to water presented Convention did not pass

21 International United Nations Committee on Economic, Social and Cultural Rights Right to Water essential to person s right to health (2002) Set out fundamental conditions of survival: 1. Safe drinking water 2. Water for sanitation

22 International United Nations UN Resolution on Human Right to Water and Sanitation (2010) Recognizes human right to safe and clean drinking water and sanitation U.S. abstained

23 Law of other Nations Countries with Constitutional Right to Water include: South Africa Australia Ecuador Uganda

24 United States U.S. Constitutional Right to Life Fifth Amendment Federal Government may not deprive a person of life without due process Fourteenth Amendment Extends prohibition to states

25 State Constitutions Right to Life provided in: Nevada Idaho Washington Montana

26 Implications of Right to Life Water, food and sanitation essential (to human life) Implies water needed to grow food Water free for sustaining human life? Can State deny use of a public resource on one s land that is necessary to sustain life? Under what set of facts, if any, would a domestic well prohibition become unconstitutional as applied

27 THE END Laura A. Schroeder Schroeder Law Offices, P.C.