Comments on Deschutes River Conservation Plan

Fish and Wildlife Service

Deschutes River Habitat Conservation Plan comments

The following are comments on the Deschutes Basin Habitat Conservation Plan (HCP) are submitted on behalf of Restore Our Deschutes (ROD). The main problem with the HCP is that its starting assumptions are backward. The plan is designed primarily to protect the economic interests of irrigators and only secondarily the ecological integrity of the Deschutes River and associated tributaries.
The Deschutes River is one of the most important waterways in the West. It once had some of the purest water and the most even flow of any major river in the West. The Deschutes is a designated a state and federal Wild and Scenic River. I wish to point out that this is more than regional interest. The Deschutes flows through Forest Service and BLM lands; thus, the ecological function and health of the Deschutes River are of national interest. And the FWS must consider the broader state and civic interests of all citizens.
In its original condition, the Deschutes provided habitat for many species, though today, due to irrigation withdrawals and flow changes, many species including Oregon spotted frog, bull trout as well as steelhead, chinook salmon and sockeye salmon are endangered or exist at far lower populations than otherwise would occur.
However, it is essential to note that the ecological degradation of the river affects more than endangered species. A reduction in fish populations reduces food for everything from bald eagle and osprey to river otter and mink. If it also has economic consequences for other commercial interests. For instance, if the Deschutes were returned to its original condition, the resulting fisheries would be world-class. They would support a fishing industry of much higher economic value than using the Deschutes River water for the growth of low-value crops like hay.
The main problem is that irrigation degrades the river channel and hydrological function, destroying the ecological integrity of the waterway. High flows in the Upper Deschutes in summer has turned the river into nothing more than an irrigation canal, with the result of more significant bank erosion. Meanwhile, restricted flows in winter harm fish and channel integrity, subjecting it to freeze-thaw abrasion.
Why should irrigators be permitted to degrade this public resource with immunity? If I were to dump sediments into the river or I were to kill fish, I would be fined or even thrown in jail. But irrigators are permitted to kill tens of thousands of fish annually with immunity. Where are the ethics in that?
But it is more than ethnics. The law clearly says that the public interest has primary interest over the interests of any secondary uses like irrigation. The HCP should consider the overall value of an intact river vs. the ecosystem value of any commodity production by irrigation.
The most crucial function of any conservation plan should be restoring the ecological role. All other uses should be secondary. The water in the Deschutes River belongs to the citizens of the state of Oregon. And to the degree that any withdrawals occur, they should only be permitted if they do not compromise the ecological integrity of the river.
Under Oregon law, all water is publicly owned. With some exceptions, cities, irrigators, businesses, and other water users must obtain a permit or license from the Water Resources Department to use water from any source – whether it is underground, or from lakes or streams. Generally speaking, landowners with water flowing past, through, or under their property do not automatically have the right to use that water without authorization from the Department. https://www.oregon.gov/owrd/programs/WaterRights/Pages/default.aspx
According to Oregon law, if a river is capable in its natural state of being used for purposes of commerce such as floating logs to a mill, as in the case of the Deschutes, it is navigable. It becomes in law a public river or highway.
As noted by Robin Kundis Craig in the Ecology Law Journal, “The severe restriction on the power of the state as trustee to modify water resources is predicated not only upon the importance of the public use of such waters and lands, but upon the exhaustible and irreplaceable nature of the resources and its fundamental importance to our society and our environment. These resources, after all, can only be spent once. Therefore, the law has historically and consistently recognized that rivers and estuaries, once destroyed or diminished, may never be restored to the public and, accordingly, has required the highest degree of protection from the public trustee.”https://www.law.berkeley.edu/files/CLEE/Sevens_19EnvtlL605_PublicTrustInstreamUses.pdf
Oregon’s Water Rights Act explicitly acknowledges the public trust doctrine and prohibits instream water rights from diminishing public rights in waters under that doctrine. Clearly then, the on-going degradation of the Deschutes River by irrigators is illegal. In a way, the proposed HCP is thus illegal because it permits the on-going deterioration of the river, giving priority to the private commercial interests over the public interest.
OR. REV. STAT., Chapter 537: Water Rights Act. “All water within the state from all sources of water supply belongs to the public,” including groundwater. The Act allows for instream water rights for public uses, and public uses include but are not limited to recreation, “conservation, maintenance, and enhancement of aquatic and fish life, wildlife, fish and wildlife habitat, and any other ecological values,” pollution abatement, and navigation. In addition, “[p]ublic uses are beneficial uses,” but “[t]he recognition of an in-stream water right . .. shall not diminish the public’s rights.
This is an important qualification. Any use of water like irrigation cannot diminish the public’s rights to instream flows and must be adequate to maintain aquatic ecosystems and other ecological values.
As a result, the state of Oregon has a public trust responsibility to protect the river’s ecological integrity.
The proposed stream flows in the HCP are inadequate to protect the river’s ecosystem and dependent species, thus a violation of the public trust obligation of the state (and by extension the federal government) to protect the public’s interest in intact and ecologically functioning rivers.
Before major withdrawals, the Deschutes flow used to average between 700 and 800 CFS. Anything less than 600 CFS is likely not even to approach the historical conditions.
The HCP calls for restoring some water flow to the river, which is an improvement over the current situation; however, the time frame is totally unacceptable. The target winter flows of 400 CFS are inadequate and are not even reached for 30 years. The HCP should require restoration of winter flows of 600-700 CFS within five years. Further delays do not work for the imperiled species.
The HCP should examine the irrigation uses of water. Most of the water is used for irrigated pasture and hay production. Does it make sense to compromise the ecological function of the Deschutes River to produce agricultural crops that can be produced elsewhere without irrigation?
According to a report by Headwaters Economics in Bozeman, there are seven irrigation districts that divert water from the Deschutes River. They serve 123,334 acres of cropland, pasture, and residential landscapes in the Upper Deschutes River Basin. The two largest irrigation districts are the Central Oregon Irrigation District (COID), located primarily in Deschutes County, and the North Unit Irrigation District (NUID), located in Jefferson County. Together, the two irrigation districts account for nearly 84 percent of all water diverted from the Deschutes River. (Agriculture and Irrigation in Oregon’s Deschutes and Jefferson Counties, Headwaters Economics). The other five irrigation districts include Arnold, Lone Pine, Swalley, Tumalo, and Walker Basin irrigation districts, which collectively irrigate less than 20,000 acres of farmland in Deschutes County.
By 2012, Deschutes County reported 1,025 irrigated farms, and Jefferson County reported 304 irrigated farms. These farms use the bulk of all water taken from the Deschutes River. Much of it for irrigated pasture and hay production. Indeed, much of the annual output of the hay/alfalfa is exported out of the basin, even to China, so we are, in effect, “exporting” the Deschutes River water from the river ecosystem for private profit.
Indeed, according to Headwaters Economic about 44% of the irrigated acres in Deschutes County is pasture, while 56% is irrigated cropland (primarily hay). Only 239 irrigated acres of specialty crops are grown in Deschutes County annually. In Jefferson County 90.1% is irrigated cropland, but only 13,000 irrigated acres are especially crops. (Headwaters Economics 2017).
However, even these crops are not necessarily crops that can’t be raised elsewhere without irrigation.
Most farms in Deschutes County are “hobby farms,” where people have 5-10 acres in a pasture to raise a few horses or some llamas. One study indicated that one-third of the total irrigated acreage in Deschutes County was on farms between 10 and 50 acres in size. According to the Census of Agriculture, out of 1238 farms that existed in 2012, only 173 earned more than $20,000. In reality, the number of farms that actually have economic viability is small– only 31 earned more than $100,000.
I recognize this is a value judgment, but the underlying assumption of the HCP appears to be that irrigators use and farms must be protected a value judgment as well.
However, one is in line with the public trust obligation to protect the ecological function of the river, while the other is a judgment to protect economic users over the ecological integrity of the river. The state and the federal government must protect the interests of all citizens, not just local commercial interests like Ag irrigation users.
Even the vegetable crops that are produced are not particularly unique. Every crop grown with the Deschutes River water like carrot seeds can be produced elsewhere without irrigation. From any rational examination, using scarce water from the Deschutes River to grow crops in the desert that can be produced elsewhere without irrigation makes no sense.
By contrast, restoring the ecological function of the Deschutes River has tremendous non-agricultural economic value. For instance, non-labor income, or investment, retirement, social security, medical payments, and other transfer payments were more than $3.3 billion in 2014 and accounted for about half of the total income in Deschutes County. Non-labor income includes retirement funds, royalty payments, and other sources that result from investments.
One must ask why do all these people “choose” to live in Deschutes County. I would maintain much has to do with the surrounding beauty of the region’s natural landscape. And part of this landscape is the Deschutes River. Restoring the river’s ecological function would add significantly to the overall natural values of the region.
One solution would be to buy out farms just as there is a voluntary buyout of grazing allotments on public lands. A voluntary buyout could permanently restore water to the river and also reduce all the collateral damage that results from agriculture production, including the pollution of the lower Deschutes River with pesticides, fertilizers, sedimentation, and other consequences of the agricultural output.
However, the bottom line is that putting the interests of irrigators and farmers ahead of the interests of all citizens, including the national interest, is not acceptable.
The FWS must put the protection of the Deschutes River ecological integrity and function ahead of economic interests. The FWS must remember that it is working on behalf of all citizens, and even more important it is working for all the creatures whose voices are not being heard.
George Wuerthner
RESTORE OUR DESCHUTES
Bend, OR 97708

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