Water Rights & Supplies

Increasing demands, decreasing supplies and the impacts of climate change are creating water resource scarcity and competition. Water access and allocation transactions are increasingly complicated by changing legal requirements and unpredictable precipitation cycles. Given these realities, surface water and groundwater management is dominating conversations in the western U.S. among farmers, ranchers, food processors, manufacturers, technology companies, real estate developers, Indian tribes, municipalities, utilities, regulators and policy makers.

Key Contacts

Richard R. Hall Partner Boise, ID
Wesley A. Miliband Of Counsel Sacramento, CA
Aaron C. Courtney Partner Portland, OR
David E. Filippi Partner Portland, OR
See all contacts
Overview

Water rights issues can arise when businesses expand, propose a new use of land or water, or ensure their viability by obtaining, enhancing and preserving access to groundwater and surface water. In this dynamic and often contentious environment it’s essential to understand the competing interests and reconcile the requirements and policies into strategies that achieve business objectives.

Our Water Resources team combines decades of industry and regulatory experience with proactive and practical solutions to challenges by local, state, tribal and federal stakeholders. While our clients represent a diversity of industries, we have particular depth in agribusiness, timber, manufacturing and natural resources development. We help with permitting and advocacy during project review and approval by state water resource agencies, environmental regulators, the Bureau of Reclamation, the U.S. Army Corps of Engineers and other governmental agencies. When water rights are held by an Indian tribe or tribal entity under federal laws and treaties, we negotiate agreements to secure water use rights and provide for mitigation if the project affects tribal interests.

We’re nationally recognized leaders in establishing and defending water rights, as well as enhancing the reliability of water supplies. Our reputation and success in high-profile water resource and access projects led to our being invited to help draft legislation that now shapes water rights policies throughout the western U.S. We enjoy constructive working relationships with government agencies, elected officials, tribal leaders and environmental groups and are adept at identifying the common ground needed to achieve your goals.

Our Services

  • Transactions involving purchases and sales of water rights
  • Water rights due diligence and opinions
  • Water rights disputes in administrative and judicial forums
  • Representation of claimants in groundwater and surface water adjudications, including administrative and judicial proceedings
  • Analysis and resolution of conflicts between water users
  • Changes to existing water right uses, points of diversion and places of use
  • Instream water right applications
  • Water supply planning
  • Development of recycled water supplies
  • Infrastructure planning and permitting
  • Project finance
  • Compliance with state and federal environmental protection requirements
  • Formation and management of irrigation districts, water improvement districts and various other special districts that manage and deliver water
  • Preparation of registration and other regulatory compliance statements
  • Counseling and advocacy involving water rate proceedings by state and local agencies
  • Negotiations with and for Indian tribes and tribal entities
  • Wetlands and shoreline permitting

The dynamic conditions surrounding water supply and access are creating opportunities for new business ventures. Our corporate transaction, intellectual property and construction attorneys help with development of new water supplies from recycled water and desalination plants, and building the necessary infrastructure for the treatment, distribution and storage of these emerging resources.

Knowing that water resource transactions can be challenged by environmental organizations, neighborhood groups or project competitors, we develop an administrative or transaction record to withstand dispute or litigation. Should litigation proceed, we enlist a team with extensive water law litigation experience including: instream water rights that seek to balance competing water flow needs; cases deriving from the intersection of water law principles with other state and federal laws, like the Endangered Species Act; and cases involving conflicts between water users whose operations compete for the same limited water supplies. We represent plaintiffs, intervenors and defendants at the administrative agency level and through all state and federal judicial levels of appeal.

Matters
  • We currently advise and represent the City of Sacramento in California WaterFix proceedings before the State Water Resources Control Board, with these proceedings bearing on the City’s water rights and supplies from various surface water sources. 
  • We advise the Deschutes Basin Board of Control, a governmental entity made up of eight irrigation districts, regarding the reintroduction of steelhead into the Upper Deschutes Basin in central Oregon and the listing of the Oregon Spotted Frog under the ESA. Our representation has included securing letters of prosecutorial discretion to avoid ESA enforcement by the NMFS, providing support for a recently adopted federal rule designating the reintroduced fish as an experimental population under the ESA, assisting in the development of a Habitat Conservation Plan, and defending against ESA claims brought by environmental groups in federal court. 
  • We represented an association of ranchers (Upper Klamath Water User’s Association) in multi-year negotiations with stakeholders, including the Klamath Tribes, the United States, the State of Oregon, environmental organizations and other irrigation interests, concerning water, power and tribal treaty rights disputes that resulted in a series of comprehensive settlement agreements.
Team
Insights & Presentations
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