On Feb. 28, President Trump signed an executive order directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to rescind or revise the administrative rule issued by the Obama administration in 2015 that defines the terms “waters of the United States” as provided in the federal Clean Water Act (CWA). The definition of “waters of the United States” (WOTUS) does not of itself create regulatory water quality standards. Rather, the terms, regardless of how they are construed, determine which bodies of water across the U.S. are subject to federal water quality regulations under the CWA. Thus, the use or management of a water body will be subject to federal water quality regulations under the CWA only if it is of a character to fall within the definition of WOTUS.

The CWA provides that the EPA and the USACE shall have the authority to regulate all navigable waters within the United States. The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.” However, pursuant to the U.S. Supreme Court’s 1985 decision in United States v. Riverside Bayview Homes Inc., WOTUS are not strictly limited to waters that are actually navigable, but extend to wetlands that “actually abut” traditionally navigable waters. The Riverside Bayview Homes decision would be the first of three separate decisions issued by the U.S. Supreme Court in its efforts to distinguish the limits of the EPA’s and the USACE’s ability to regulate water bodies. The most recent and relevant for purposes of considering the Trump administration’s executive order is the 2006 decision entered in Rapanos v. United States.

In Rapanos, in a plurality opinion requiring that the case be sent back down to the lower courts, the late Justice Antonin Scalia stated: “ ‘waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as streams, … oceans, rivers (and) lakes” and, therefore, do not include “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

Although in agreement that the case should be remanded to the lower courts, Justice Anthony Kennedy in a separate opinion took issue with Scalia as to the factors that determine when a body of water qualifies as WOTUS. Scalia argued that a jurisdictional water body must consist of “permanent standing water or continuous flow, at least for a period of ‘some months’ ” and should exclude “wetlands lacking a continuous surface connection to other jurisdictional waters.” Kennedy disagreed, stating wetlands should be included as WOTUS if they “significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as “navigable.”

Not surprisingly, these two opposing approaches to defining WOTUS created only further uncertainty in the lower courts as they struggled to determine the reach of federal regulatory authority. However, the lower courts have generally followed Kennedy’s analysis, which has come to be known as the “significant nexus” test.

Given the continuing uncertainty, on May 27, 2015, the EPA and the USACE released a new rule attempting to define “waters of the United States.” It allegedly relied on Kennedy’s significant nexus test, but, according to many states and affected private and public stakeholder interests, expanded the types of water bodies over which the federal government assumed regulatory authority under the CWA. The 2015 rule has proven highly controversial as farming, forestry, small landowner, municipal, commercial and industrial interests alike feared the new rule would result in only more opportunities for federal regulation accompanied by increases in project approval costs and completion time. The final version of the 2015 rule was published in the Federal Register on June 29, 2015 and became effective on Aug. 28, 2015.

To prevent implementation, 31 states, together with other affected private and public stakeholders, filed complaints challenging the 2015 rule on constitutional grounds that it improperly expanded the reach of federal regulation under the CWA. One federal district court stayed implementation of the 2015 rule in 13 states pending completion of the case. However, a number of cases were also referred to be originally heard in the federal Sixth Circuit Court of Appeals, where a stay was issued for the nationwide 2015 rule. For those heard in the Sixth Circuit, an appellate three-judge panel ultimately determined the appellate court possessed authority to initially hear the challenges to the legality of the 2015 rule definition. Following the Sixth Circuit’s decision, and in consideration of the pending case in federal district court, on Jan. 13, 2017, the U.S. Supreme Court agreed to hear the issue of whether challenges to the 2015 rule should be heard in the federal district or appellate courts. It is possible that such a decision may not be issued until next year.

Section 3 of the executive order makes it clear the Trump administration will pursue a WOTUS definition “consistent” with Scalia’s opinion in Rapanos v. United States. When the administration may issue a revised or new WOTUS rule is anybody’s guess. For the fate of the existing 2015 rule to be determined by the courts, that could take an even longer period of time as well, especially if the U.S. Supreme Court determines that only the federal district courts possess the initial authority to hear challenges to the 2015 rule.

On the other hand, with possibly as much as a year or more before the U.S. Supreme Court even issues a decision, the Trump administration may have time to “revise or rescind” the existing 2015 rule, a process apt to take an appreciable period of time as well. Further, regardless of how quickly the administration can act, there is every reason to believe that issuance of any revised or new rule will be met with as much opposition in the courts as the Obama administration’s 2015 version. So, we may not see the courts define WOTUS any differently from the “significant nexus” test set forth in Rapanos for some time.

Peter Mohr is an environmental, water and natural resources lawyer at Jordan Ramis PC. Contact him at 503-598-7070 or peter.mohr@jordanramis.com.

The post OP-ED: A new rule defining ‘waters of the United States’ appeared first on Daily Journal of Commerce.

This past winter, in WaterWatch of Oregon v. Water Resources Department, the Oregon Court of Appeals reversed and remanded an Oregon Water Resources Department (OWRD) order granting a municipal water permit extension to the city of Cottage Grove, and issued instructions to vacate the related water right certificate.

In April, the Oregon Supreme Court granted review of the Court of Appeals’ decision. If upheld, the decision could significantly affect the ability of municipalities to perfect their municipal water rights to the full extent authorized in their existing permits.

Prior to appropriating water to meet its water service obligations to residential, commercial, industrial and other users, a municipality must obtain a water permit from OWRD. Once the municipality receives a permit, it has 20 years to complete construction of required water works and other facilities necessary to appropriate and then apply the water to authorized uses. Once the municipality submits evidence showing the water has been used in compliance with permit conditions, OWRD issues a water right certificate and the municipality then has a vested water right.

Given a variety of factors beyond their control (e.g., funding capabilities, unanticipated levels of water demand, changes in applicable government regulations, etc.), municipalities can struggle to complete construction of water works within 20 years. For this reason, a municipality often seeks an extension of time to satisfy its water permit. Any such approval, however, may be subject to conditions.

ORS 537.230(2)(a) – (c) allows OWRD to grant an extension of time to a municipal use permit holder to complete construction or to perfect its water right: (a) for good cause, provided that (b) “the holder may divert water beyond the maximum rate diverted for beneficial use before the extension only upon approval by OWRD of a water management and conservation plan.” Under subsection (c), the statute also provides that “for the first extension issued after June 29, 2005 for a permit for municipal use issued before Nov. 2, 1998, OWRD must find that the undeveloped portion of the permit is conditioned to maintain the persistence of (protected) fish species.” These statutory provisions are the central issue in the case.

In November 1977, the city of Cottage Grove obtained a water permit authorizing the diversion of 6.2 cubic feet per second (cfs) of water from the Row River for municipal use. The permit required all water works to be constructed by Oct. 1, 1979 and the water applied to beneficial use on or before Oct. 1, 1980. Thereafter, the city obtained permit extensions necessary to complete construction, the last of which expired in October 1999. However, due to prolonged rule-making involving extensions, OWRD did not require the city to obtain an additional extension until after the new rules became effective in late 2005.

In December 2007, after having substantially completed construction, the city submitted its application for extension of time. In May 2008, the city modified its diversion structure to allow diversion of the full 6.2 cfs authorized under its permit. In early 2008, OWRD granted the city’s request to place its extension application on administrative hold and approximately six months later the city diverted 6.2 cfs of water into its water works to apply its full amount of water to beneficial use. On Aug. 4, 2008, the city requested the administrative hold be lifted, and 15 days later OWRD issued a proposed final order granting an extension of time to Oct. 1, 2013 for completion of the water works and to apply the water to beneficial use consistent with the permit.

WaterWatch challenged the proposed order and, following a hearing in late 2009, an administrative law judge affirmed the extension. The ALJ concluded that because the full 6.2 cfs of water was applied to beneficial use, no portion of the permit remained to be perfected and therefore no basis existed under ORS 537.230(2)(b) and (c) requiring the preparation of a Water Management and Conservation Plan or conditioning the extension to maintain the persistence of fish species. In September 2010, OWRD issued a final order adopting the ALJ’s decision. Approximately one month later, OWRD issued a water right certificate confirming the city’s perfection of its water right to the full extent authorized under its permit.

Although it did not challenge the issuance of the certificate, in November 2010 WaterWatch petitioned the Court of Appeals for judicial review of OWRD’s final order.

On appeal, petitioners argued that, under ORS 537.230(2)(b) and (c), any portion of water not applied to beneficial use prior to expiration of the city’s permit or any extension thereof, may not be later perfected until a permit holder receives an extension that includes conditions requiring: (a) Department approval of a Water Management and Conservation Plan; and (b) because the original permit was issued before Nov. 2, 1998, a condition to maintain the persistence of fish species. OWRD and the city alleged that water may be applied to beneficial use following the expiration of a permit so long as an extension amending that deadline is approved prior to the permittee’s submittal of final proof confirming the perfection of its water right.

The Court of Appeals agreed with the petitioner’s interpretation of ORS 537.230(2)(b) and (c), stating that OWRD’s interpretation would allow “municipalities to circumvent the requirements for fish protection and approval of a water management and conservation plan simply by completing construction and applying the full amount of water allowed under the permit to the use before applying for an extension of the permit.” The court reversed the final order granting the permit extension and sent the case back to OWRD ordering it to cancel the water right certificate and reconsider the city’s extension application consistent with the court’s interpretation of ORS 537.230(2)(b) and (c).

Absent a substantive reversal of the Court of Appeals’ decision or a legislative fix, any extension granted to the city will include conditions for the persistence of listed fish species. As the city considers the potential of having to assume such a burden, other similarly situated municipalities would be wise to consider the potential impacts of this case and their ability to appropriate water in time, place and manner to the full extent provided under their existing water permits.

Peter Mohr is an attorney at Jordan Ramis PC and a member of its Dirt Law practice group. He regularly advises clients on natural resources, environmental, energy, and water law. Contact him at 503-598-5529 or peter.mohr@jordanramis.com.

The post OP-ED: Oregon Supreme Court to decide water rights case appeared first on Daily Journal of Commerce.

At a time when consensus on domestic policy seems to be rare, one of the few things policy makers have long agreed on is our nation’s need to achieve greater energy independence. However, when it comes to developing energy resources available on federal lands, the need for protecting wildlife habitat and other environmental resources has all too often conflicted with efforts to develop more traditional, often extraction-based energy projects.

The increasing promise of renewable energy development provides cause to believe such conflicts can be avoided. Executive orders issued by Presidents Bush and Obama directing federal agencies to expedite the review process for renewable energy projects on federal lands only seem to bolster such a position. But executive orders do not override the laws under which federal agencies must consider issuing approvals.

Regulatory hurdles

Proposals to site renewable energy or other major facilities on federal lands are subject to an extensive review process required under the National Environmental Policy Act.

NEPA requires federal agencies reviewing projects under their jurisdiction to consider the environmental impacts associated with construction and operation. The process does not distinguish between conventional and renewable energy projects. The permitting agency therefore must apply all of the same requirements to approve green energy development that apply to the more conventional extractive approach, even though the latter is more apt to pose significant environmental impacts to develop what ultimately is a finite energy supply.

The agency must issue a “detailed statement” that includes the environmental impacts of the proposed project, potential adverse environmental effects and alternatives to the proposed project. In most cases involving a utility-scale project, the agency must prepare an environmental impact statement to address these issues. Depending on the scope and complexity of the proposed project, preparation of an EIS can require a number of months, but more likely a number of years. The cost can range from a few hundred thousand dollars to a million or more.

Such delays and costs have led to increasing calls that NEPA, while appropriate for permitting conventional energy projects, lacks the necessary flexibility to encourage development of renewable energy resources on federal lands.

While more suited to address the often mutually exclusive conservation and development positions taken during the approval processes for conventional energy projects, NEPA is less suited to evaluate renewable energy projects, which by design seek to create significant environmental benefits through the production of clean renewable energy. As one commentator stated, “…there is some irony that NEPA, this nation’s environmental ‘Magna Carta,’ significantly delays” the completion of such projects.

Efforts to streamline the review process

The federal agency most involved in siting renewable energy facilities on public lands is the Bureau of Land Management. Charged with managing more than 245 million acres, the BLM administers more land than any of its federal counterparts.

BLM lands account for more than 15.7 million acres in Oregon and approximately 436,000 acres in Washington, together with approximately 23.4 million acres of federal subsurface minerals. BLM manages all of this under a multipurpose mission that includes energy production among many other activities.

The BLM has made significant efforts to streamline the approval process for renewable projects. Under its “fast track review,” the agency will complete an EIS within one year for certain renewable projects that are well developed and pose no significant impact. However, as beneficial as these efforts have been, such an option is still too limited, because most projects still fall prey to the traditionally longer and more costly NEPA review timeline.

Congress took up this issue this year with the introduction of three pieces of legislation – H.R. 2170, H.R. 2171 and H.R. 2172 – to streamline NEPA review for renewable energy development. The Obama administration opposes all of these bills for their alleged failure to effectively meet what it considers material NEPA safeguards.

Rather than face off on this issue, both Congress and the Obama administration need to build upon the BLM’s efforts and develop a streamlined NEPA process – one that allows approval where impacts may occur but can be mitigated in part by the equally compelling environmental and economic benefits that can be obtained by developing clean, reliable energy here.

Peter Mohr is an attorney Of Counsel in the Energy and the Environmental & Natural Resources Practice Groups at Tonkon Torp.

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Editor’s note: This is the final part of a three-part series. Read the first and second parts.

Most people in the metro area probably give little thought to how much water we use, and are content to simply know it is available when we need it. But anticipated climate change and projected population growth demand planning today to avoid water shortages tomorrow.

Planning to meet future demand isn’t simple. Water providers must secure long-term financing, design and build facilities, develop water conservation programs, find energy efficiencies in operations, provide environmental mitigation and, of course, identify additional long-term surface or groundwater supplies.

Most water providers can issue bonds, make assessments and levy taxes to pay for water development projects to increase capacity. Such projects are never cheap, but if properly designed and managed, they can pay for themselves over time. The cities of Lake Oswego and Tigard, for example, are working together on a Clackamas River project estimated to cost $136 million – a bargain, according to Tigard officials, when compared to how much customers would incur if they continued to rely primarily on service contracts from other sources.

Project timelines typically exceed 10 years, depending on scope, cost and time necessary for projected demand to match permitted amounts of water. Permit extensions may be obtained, though likely with conditions to ensure the persistence of protected fish species. Also, water conservation plans may be required to demonstrate a continuing need for additional water and that competing environmental and other interests won’t be adversely affected.

Because watersheds ignore political boundaries, future supply challenges are increasingly being considered at regional and local levels. In 1997, water providers created the Regional Water Providers Consortium to discuss the area’s water supply challenges. Presently, the consortium consists of Metro and 22 entities that provide water to more than 90 percent of the metro area. The RWPC’s updated five-year strategic plan, issued in 2008, identifies a number of objectives, including the ability to create adequate regional water supplies under both anticipated and emergency conditions.

To support these objectives, the RWPC has issued a regional water supply plan and a regional water transmission and storage strategy, which consider existing and future supply capabilities and demand at the regional and sub-regional levels.

The numbers are impressive. During peak days (June through September), the maximum daily demand of Clackamas County alone is expected to increase from 82.6 million gallons in 2000 to 137.4 million gallons in 2020, and to 184.1 million gallons in 2050. The maximum daily demand for the Washington County area in the same period is expected to increase from 132.5 million gallons in 2000 to 211.9 million gallons in 2020 and to 253.2 million gallons by 2050.

Meeting these projections under a relatively static water supply environment would require significant effort. Planning to meet them in the face of anticipated climate change alters the conversation considerably. With an expectation of increased rainfall during the wettest months and less precipitation during the drier season, basin flows will appreciably differ from what we experience today. Assuming these patterns occur, without a sufficient increase in storage capacity, water providers may find it difficult to satisfy peak demand in the summer.

The RWPC is considering these scenarios and how additional storage capacity and greater integration among members’ existing and future infrastructure may provide greater flexibility to address the region’s needs.

Meeting the metro area’s future water needs also should not rest entirely on the area’s municipalities and special districts. Affected county and state agencies must improve their understanding of how increasing demand for water will affect public and environmental health objectives and goals for continuing economic development. The need for such collaboration among local, county and state interests is greatest in the area of land-use planning.

Planning for future growth and development will require a more thorough understanding of not only the amount of water required, but how much can be expected to be available. This is especially true in those parts of the metro area that predominantly rely on groundwater.

We need to better understand, especially as the population grows, the carrying capacity of groundwater aquifers upon which thousands of residents and other users rely. Without proper management, these may decline in quantity and quality over time, and affect public health, property values and economic development. Availability of long-term water supplies needs to assume a more prominent role in the land-use planning and approval process.

Growth will also affect surface water quality as we increasingly divert water for out-of-stream uses. If and when climate change reduces flows at certain times of year, we’ll need more storage capacity to maintain in-stream flows and prevent high water temperatures or other water quality violations that may otherwise occur.

Finally, there is a critical requirement for educating the public. As demand increases, water will need to be used more efficiently by homeowners and businesses alike. Industries heavily reliant on water in particular will want to make sure their water providers or their own water rights will be able to meet their future needs. Homeowners are advised to understand where their water comes from, especially if sourced from an individual well.

Over time, water use in the metro region will become a more visible topic of conversation. Increasing competition for this precious resource, although anticipated, does not necessarily mean conflicts will occur. It will depend on how water providers, the area’s counties, affected state agencies and private stakeholders act over the next two decades to ensure end user and environmental water needs will be met for the next 10.

Peter Mohr is an attorney in the energy, and the environmental and natural resources practice groups at Tonkon Torp. Contact him at 503-802-5759 or at peter.mohr@tonkon.com.

The post Meeting Portland’s growing demand for water appeared first on Daily Journal of Commerce.

Editor’s note: This is the second part of a three-part series. The first part appeared in the Sept. 21 edition of the 91��Ƶ, and the final part will appear Nov. 16.

Like most Western states, Oregon’s water laws are rooted in the common law doctrine of prior appropriation. The doctrine was established more than 100 years ago among mining and farming communities to create fairness and order in allocation of the resource.

Prior appropriation gives a right to “appropriate” water on a “first in time, first in right” basis, established from the date a person or entity first began efforts to divert water from a source and apply it to the proposed use. The first user in time gets the prior right.

Subsequent users (from the same source) get “junior” rights according to the date each began taking efforts to divert water. When demand exceeds available flows, supply is allocated based on seniority of the right.

This system provides a level of risk assessment by allowing prospective users to consider demand of existing water rights against historic and current water supplies. It does not, however, authorize waste of the resource. Users may claim only so much water as necessary to achieve the reasonable and economic use of available supply – a principle known as “beneficial use.” Inefficient use or waste is to be avoided so that use can be maximized for other existing and future needs.

In 1909, Oregon codified these common law principles of prior appropriation with passage of the Water Rights Act, ORS 537.010, et seq. However, this statute addressed only the regulation of surface water. Forty-six years later the Oregon Legislature enacted the Ground Water Act of 1955, ORS 537.505, et seq. to better manage statewide groundwater resources. It incorporated the doctrine of prior appropriation and other policies provided under the 1909 act, and added new regulations peculiar to the management of groundwater.

Obtaining a water right

Although surface and ground waters in Oregon belong to the public, once a user lawfully takes possession of the water, title is removed from the public domain and becomes the protected property of the user.

Obtaining a surface or groundwater right requires approval from the Oregon Water Resources Department. There are primarily two ways to obtain approval: file for a new right or buy an existing one and request approval to change its terms and conditions to allow for a new use.

Applying for a new water right

The Oregon Water Resources Department evaluates applications for new water rights according to criteria designed to protect other existing water rights and the public interest. If and when the department issues a new water right permit, the applicant has a specified period of time to “prove up” the water right – that is, to begin using water for the authorized purpose in the amount, manner and location described in the conditional permit.

Municipalities enjoy more time than individuals or private entities to satisfy these requirements given that demand for water within their service areas will increase over time. But they still must show that the amounts claimed are warranted based on projections of future demand.

Once water has been applied to the authorized use within the time provided, the applicant must submit a “final proof survey” to confirm that all of the permit conditions have been met.  Timeliness is important in “proving up” the water right; otherwise, the applicant risks losing part or even all of the conditional interest to use the water. “Proving up” is a means of assuring that the right to use surface or groundwater is limited to avoid waste or speculation.

If and when terms of the conditional permit are met, the department issues a water right certificate that represents a vested property right. The vested water right continues as long as the water is applied according to its terms, unless it is lost to claims of forfeiture or abandonment.

Oregon statutes define forfeiture of a water right as when water has not been put to the authorized use for five consecutive years. By common law, a water right may be considered abandoned if the user’s conduct shows an intention to no longer apply the water to the authorized use.

Purchasing an existing water right

In water basins where there are so many existing water rights that any new – and therefore exceedingly junior right – would likely be entitled to little or no water during drier periods of the year, a prospective water user may choose to purchase a senior water right and then seek department approval to change it to accommodate a new use.

For example, an irrigation water right with a priority date of 1890 may be purchased and moved to other lands for irrigation, commercial, industrial, municipal, residential or other uses – subject to certain standards, including not harming other water rights. The greatest benefit of this approach is that the water right retains its original priority date.

Similar to a new water permit, once the Oregon Water Resources Department conditionally approves a proposed change, the applicant must prove that the new use has occurred according to the terms of the department’s order before a water right certificate is issued.

There are of course some exemptions from these two approval processes in order to obtain a water supply. The most significant is the ability of individual residential users to obtain groundwater without a permit and, therefore, without any consideration of potential harm to other existing senior water rights.

On a per-well basis, such withdrawals may appear of little consequence. However, there are thousands of residential wells, with more coming online every year, the aggregate impact of these withdrawals presents increasing concern to holders of senior water rights. This is especially the case where the exemption – rightly or wrongly – is utilized by residential subdivisions to avoid the traditional permitting process.

In addition, the federal Endangered Species Act (ESA) assumes “super-priority” status over state-authorized water rights. By requiring sufficient in-stream flow levels to avoid harming protected species such as salmon, ESA regulation can prevent private and public entities from making diversions under their water rights.

Peter Mohr is an attorney in the energy, and the environmental and natural resources practice groups at Tonkon Torp. Contact him at 503-802-5759 or at peter.mohr@tonkon.com.

The post Planning Portland’s future ‘waterscape’ appeared first on Daily Journal of Commerce.

Editor’s note: This is the first part of a three-part series. The next part will appear in the Oct. 19 edition of the 91��Ƶ, and the final part will appear Nov. 16.

In the arid western United States, litigating to establish or protect surface and groundwater supplies is a cost of doing business for many private and public entities. Although such disputes generally occur less frequently in the Pacific Northwest, when they do they more often arise within the drier parts of the region such as the Klamath and Okanogan basins. Such a regional stereotype, however, is showing signs of potential change.

In the face of predicted population growth and climate change, officials west of the Cascades, including in the Portland-metro area, are paying greater attention to water resource planning.

Does this mean water rights litigation is coming to the metro area? Not necessarily. But it does mean our ability to avoid such disputes in the future will be determined by how we plan over the next 10 to 20 years to meet our water supply needs for the next 100.

Population in the metro area, now greater than 2 million, is expected to reach 3 million by 2030. Couple that growth with predicted climate change, and the metro area likely will see increasing constraints on water supply, and thus greater competition for the resource.

It is too early to tell, however,  just how much future supply constraints will lead to potential water conflicts, especially when metro-area water providers have already shown some ability to work together to address future water needs.

Following is an overview of the metro area’s “waterscape,” the laws under which water is administered in Oregon, efforts to meet growing demand, and future considerations for meeting the area’s longer-term water supply needs.

Who uses our water?

Today, the metro area is home to more than 550,000 households that individually use an average of 200 gallons of water per day, a rate below the national average but still totaling about 73,000 gallons annually per home. Commercial, industrial and institutional use is relatively low compared to nationwide statistics, but plenty of water is still required to fuel the region’s economic engines.

The Portland Water Bureau alone provides commercial, industrial and institutional users about 8.7 billion gallons of water per year. This may seem like a lot until you consider that a single silicon wafer plant typically requires 2 million to 4 million gallons per day – enough to slake the thirst of a city of 40,000 to 50,000 people.

And while a particular business may not require a significant amount of water itself, its financial well-being often can be affected by suppliers and vendors who are significant water users. So, establishing a reliable long-term water supply is critical for growth of the metro-area economy.

Consider also that, while the metro area extends across much of the state’s three most urban counties, they also account for nearly 20 percent of Oregon’s overall farm production. Agricultural users often own their own water rights and may take water directly from surface and groundwater sources that are also relied upon by municipalities. The law readily allows for such competing uses by establishing an order of who is entitled to water when not all demands can be met simultaneously.

Who supplies our water?

The metro area receives most of its water for non-farming uses from municipalities and special water districts that maintain service areas that don’t necessarily follow political boundaries and often overlap. As the area’s single largest provider, the Portland Water Bureau serves more than 884,000 people – about one-quarter of the state’s population.

Among the municipalities that receive all or a portion of their water from the Portland Water Bureau are the cities of Tigard, Gresham and Tualatin. Some of these municipalities are engaged in efforts to establish alternative water supplies to reduce their reliance on the Portland Water Bureau.

As the largest provider to Multnomah County, the Portland Water Bureau obtains most of its water from the Bull Run watershed, which it supplements with groundwater from wells near Portland International Airport.

Multnomah County users may also get water from the Rockwood Water Public Utility District, which serves approximately 53,000 people in Portland, Gresham and Fairview through the operation of two groundwater wells.

In addition to relying on both of these suppliers, Gresham also maintains its own well field as a backup source and, in partnership with Rockwood PUD, is developing an additional groundwater supply system.

In Washington County, the Joint Water Commission is the largest supplier, with more than 400,000 customers. JWC facilities are co-owned by Tualatin Valley Water District and the cities of Hillsboro, Forest Grove, Beaverton and Tigard.

JWC water comes from the Tualatin River, Trask River (Barney Reservoir) and Scoggins Creek (Scoggins Reservoir/Hagg Lake). TVWD also obtains water from the Portland Water Bureau.  The Tualatin Valley Irrigation District also relies on some of the same surface water sources as the JWC to supply its agricultural water users.

The Clackamas River Water Providers, consisting of seven different municipalities and special districts, serve more than 300,000 Clackamas County customers. Each CRW member is autonomous, allowing for flexibility to coordinate efforts with both member and nonmember entities to meet their respective water needs.

For instance, in 2008, the city of Lake Oswego, a CRW member, entered into a joint agreement with the city of Tigard, a nonmember, to develop additional water supplies from the Clackamas River. The new system, expected to come online in 2016, is estimated to meet Tigard’s projected demand through at least 2035.

These providers are all working to meet the metro area’s growing demand for water. To begin to understand the complexity of the task, it helps to have overall knowledge of the laws that govern allocation of this critical resource. That will be discussed in the next column.

Peter Mohr is an attorney in the energy, and the environmental and natural resources practice groups at Tonkon Torp. Contact him at 503-802-5759 or at peter.mohr@tonkon.com.

The post Where does Portland’s water come from and where does it go? appeared first on Daily Journal of Commerce.

In the race to provide clean, renewable energy, geothermal development projects are gaining steam. According to the Geothermal Energy Association, in spring 2010, the United States led all countries in installed geothermal capacity, with approximately 3,086 megawatts throughout nine states. An additional 7,057 megawatts were being developed nationwide.

Most geothermal activity is occurring in western states, and Oregon ranks third in the U.S., behind only California and Nevada, with 370 megawatts in development.

And as with most renewable energy efforts, federal and state financial incentives have played a significant role in advancing the timeline to bring such projects to the fore. Last month, the U.S. Department of Energy announced a $96.8 million loan guarantee for a 23-megawatt project, the Neal Hot Springs, being developed in Southeastern Oregon.

Additional commercial-scale geothermal development in Oregon is planned for the Crump Geyser area in Lake County. With at least one well completed and an accompanying power plant expected to generate up to 30 megawatts, Crump Geyser is anticipated to be online before the end of 2013 in order to qualify for federal incentives. The developer has indicated that expansion of capacity may be a possibility.

A geothermal facility requires construction of a well up to thousands of feet deep to tap reservoirs of hot water. Once brought to the surface, the super-heated, mineral-laden water is used to spin a turbine to generate electricity. Water is then reinjected into the same formation from whence it came, to be reheated and withdrawn again.

Much like water resources, geothermal resources can provide base-load power at performance levels above those such as coal. Also like hydro, geothermal is more consistent than intermittent renewable energy sources such as wind and solar. Geothermal power also is considerably less expensive than solar or nuclear power and is typically comparable to wind, new coal plants or biomass.

Geothermal has a fairly benign environmental footprint. It requires minimal surface space, so the facilities do not take up a large amount of land. Also, greenhouse gas emissions are either nonexistent or minimal, depending on the type of geothermal system used.

Another benefit of geothermal development is speed. Projects typically can be developed within a three-year period and, with the advance of new technologies, can operate with fluids below 200 degrees Fahrenheit. This creates opportunities for new development in areas that only a few years ago were not considered viable.

So, with all of these favorable characteristics, does geothermal have a downside? Locating geothermal reservoirs sufficient to merit commercial-scale development requires significant up-front investment. By comparison, the process and risk associated with evaluating opportunities in other renewables such as wind and solar are essentially straightforward.

Extensive preliminary exploration efforts are required to identify areas with the highest probability of possessing a sufficiently sized geothermal reservoir. However, greater certainty of real production capacity does not occur until at least one well is completed. This is a significant consideration, because one well can cost millions of dollars, depending on depth and geologic conditions.

Subsequently, investment in such projects requires a certain stomach for risk. For most stakeholders in the renewable energy race, however, the payoff from being able to produce a long-term supply of clean, reliable, base-load power is certainly worth the gamble.

Peter Mohr is an attorney in the energy and the environmental and natural resources practice groups at Tonkon Torp. Contact him at 503-802-5759 or peter.mohr@tonkon.com.

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