“In Oregon, rivers and streams belong to the public, but no law stops private water users from completely draining a stream. It is often perfectly legal to take the last drops from a river, and our state agencies do little to correct, or even document the problem,” according to WaterWatch’s Rivers Without Water, Oregon’s Unnatural Disaster publication.
In 2014, the US Fish and Wildlife Service (USFW) listed the Oregon spotted frog as a threatened species under the Endangered Species Act. Deschutes, Lane, Klamath, Jackson, Wasco and Josephine counties are places where the spotted frog habitat potentially occurs. The spotted frog is native to the Pacific Northwest and is the most aquatic frog in the region—it spends most of its life in water, according to Oregon Fish and Wildlife.
On Jan. 11, WaterWatch of Oregon, a nonprofit conservation organization, filed a complaint against the U.S. Bureau of Reclamation, Central Oregon Irrigation District, North Unit Irrigation District and the Tumalo Irrigation District, under the Endangered Species Act which states that 90—but possibly 99 percent—of the spotted frogs’ habitat was unusable and dry because of dam operations, which left water levels low in just the main channels. Sediment deposits also hindered the frogs’ habitat by preventing the natural water flow from reaching its surroundings and by trapping the frog when water conditions are altered.
WaterWatch Communications Director Jim McCarthy says the organization spent eight years as part of a group trying to address river issues around the river basin including the stretch between the Wickiup and Bend. “When you treat the river like an irrigation ditch, it causes real harm to fish, aquatic insects, and water quality, not just the frogs,” he says. “We’ve seen fish kills up the river as a result of these operations, so not only is this affecting the frogs, but it’s killing trout and other native spices that are dependent on the river system.”
Jannette Brimmer is an attorney for Earthjustice and is also an attorney for WaterWatch in this case. She says the Bureau of Land Reclamation knew about the issues with spotted frog habitat before the suit was filed. “The problem with frogs being in trouble has been on the table for a very long time,” she says. “I know that in 2003 the Bureau of Reclamation was doing a consultation of biological opinion at that time for what the affects of the operations of the dams and reservoirs system was on a number of different species that were already listed in the system.”
The Deschutes Basin Board of Control, which includes the Tumalo, North Unit and Central irrigation districts, released a statement responding to the lawsuit over the spotted frog: “This is the second lawsuit filed over the Oregon spotted frog, further straining collaborative efforts by irrigation districts, local farmers and ranchers, state and federal agencies and conservation groups to improve habitat for this species in Oregon’s Deschutes Basin.”
Shon Rae, with the Central Oregon Irrigation District says, “The lawsuit is taking funding resources and staff away from working on the Habitat Conservation Plan and other necessary conservation projects to do this litigation.” The group has been working to establish the Deschutes Basin Habitat Conservation Plan since 2008 and has received $2.6 million in grants from the U.S. Fish and Wildlife Service. When the plan is complete, projected for 2018, it will make recommendations as to what will help the frogs’ habitat. Rae says the districts will give their proposals to USFW, but that will take a couple of years. “It’s not just in our hands,” she says. “WaterWatch is one of the agencies that has been at the collaborative table in this process. That doesn’t seem collaborative,” says Rae.
A draft of the plan will go to USFW and National Marine Fisheries in order that the agencies can review
the plan in accordance with the National Environmental Policy Act Review and then a public comment period will occur. Once the final copy of the plan is drafted and approved, USFW issues an incidental take permit. According to the USFW Endangered Species Permits page, “Thus, permit holders can proceed with an activity that is legal in all other respects, but that results in the ‘incidental’ taking of a listed species.”
McCarthy says WaterWatch is asking for river flows to be returned to levels that don’t harm frogs. “We’re not asking for the dams to be removed or the flows to be returned to the predevelopment state,” he says. “We’re asking for a science-based process to make that determination as required by law under the Endangered Species Act.” McCarthy adds there is no law preventing rivers from being run dry in Oregon unless
the absence of water is affecting a protected area or an endangered species.
This is not going to be a popular move in Central Oregon. “If environmental groups genuinely want to preserve habitat for the spotted frog,” Martin Richards of Madras writes, “they would contribute their support, expertise and financial resources to the progress we have already made to conserve water and protect species.”
Irrigated agriculture in Central Oregon requires access to water. Richards’ letter gives voice to the fear of losing water that is a real concern for local farmers and ranchers. “We are already feeling the impact of the lawsuits,” Richards says. “Now is the time when farmers and ranchers need to decide what crops to plant, purchase inputs for the coming season and invest in improvements to our businesses…the negative effect is beginning to ripple through the economy and the workforce.”
As to the reason for the lack of water protection laws, WaterWatch attorney Brimmer says, “Your guess is as good as mine.” She adds, “Part of the problem is the law hasn’t caught up with our scientific understanding of how things are connected. It’s not just that stream that you’re running dry, there’s that whole cascade of effects that comes from that,” she says.
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This article appears in Feb 3-10, 2016.
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seems pretty obvious that the problem will be studied until all the frogs are gone.
It is too bad that nothing was done without the threat of litigation. The USBR, OWRD, State Legislators, and the six irrigation districts all should have acted decades ago to improve the in stream flows on the Deschutes. The arrogance created by “Senior Water Rights” lulled these stakeholders into a huberous state of defiance. Water laws need to be changed. Just like native tribes have been given water rights “time immoral”, nature should be given the water rights “before time”. These in stream flows should be those determined by the ODFW and DEQ to be the minimum needed for stream and wildlife health. Nature was the first user of the water, but no one stood up for nature when all the water was given away. Nature’s claim to the water still exists and should be acted upon now in Salem.
It was so refreshing to read such a fact-free article,” A River used to run through it.” A whole page that could have been summed up in two sentences:.
Go to the WaterWatch web site. And yargle bargle.
For some actual facts, try going to http://www.deschutesriver.org/Instream-Flow-in-the-Deschutes-Basin.pdf. This is what the adults have been working on.
The article’s four references to the river running dry are alarmist, untrue, and simply parroting the WW site. The author makes no attempt to distinguish a private water holder from our regulated public water districts..
There is more water running down the Deschutes in than ever before, thanks to the efforts of the irrigation districts. Like you, they would like to see the day when not a drop of water is wasted.
Their investments in lining canals and piping for 3 sustainable hydro plants have resulted in increased flows during the off season and a revenue stream to fund fish restoration projects here on the Deschutes River.
The Instream Water Rights Act and Oregon’s State Scenic Waterways law, as well as the new groundwater mitigation fees are all part of the framework of existing water law that the districts operate within to improve flow levels.
Planning has been underway for years to address wildlife issues related to irrigation and is close to releasing its science-based conclusions. Water Watch has become an unreliable partner at the planning table to resort to a lawsuit at this time. With this move, its unlikely they will be invited back Their demand that a newly listed threatened spice be treated like an endangered spice…well, that’s the way she spelled it… OK, OK, species. is childish, not legal. .
The spotted frog has disappeared from much of it former range in the Willamette valley and Puget Sound. Invasive bullfrogs and Canary grass have pushed them out of much of their former range. The fact that it still thrives here is an indicator that 75 years of dam operations is not critical to the health of frog populations.
One of the major factor in frog health on the Deschutes is that the frogs do not live in the river, They live in ponds, backwaters and sloughs that are abundant along the Deschutes and Little Deschutes A quick Google survey found 41 backwaters on the river between Bend and Wikiup Res. The Little Deschutes between Sunriver and Gilchrist had about 37. By contrast, many valley rivers have had their backwaters filled for farming decades ago.
These backwaters are filled by high flows during the irrigation season and provide a stable water level for the frogs during their reproductive season.
Here’s a few fun facts from Wikifrog…
The Oregon spotted frog is a highly aquatic frog that seldom strays from areas of standing water. Bodies of water, lakes and slow-moving streams) that included zones of shallow water with abundant emergent or floating aquatic plants are suitable for the Oregon spotted frogs.
The Oregon spotted frog’s reproduction is strictly aquatic and their late winter breeding season is brief, less than four weeks in duration.
Breeding varies from late February-early March at lowland sites to late May-late June at montane sites in Oregon. They breed in warm shallow water, often 5.1–30.5 cm (2–12 in) deep in areas where grasses, sedges, and rushes are usually present.
They lay their eggs in fully exposed, shallow waters that are readily warmed by the sun so that development to hatching is hastened by warm conditions. However this also increases the vulnerability of the eggs to desiccation and/or freezing
My reading of this suggests that frogs benefit from dam operations and stable water levels during a critical time.
While most of these wetlands have remained intact on the Deschutes,, that’s not to say the local frogs are not facing problems. Jay Bowerman has fought a long battle to save frogs attempting to cross the roads as they emerge from the sloughs around Sunriver, The introduction of Bass to Crane Prarie is a serious obstacle to colonizing the wetlands there.
But there have also been improvements. The frogs have colonized the Sunriver sewage lake and there is a new pipe installed by ODFW to restore a wetland along the Deschutes near Benham Falls.
The irony of water rights on the Deschutes is that the most productive cropland around Madras has the most junior water rights. The most senior are just North of Bend. So the folks who produce the most are the first in line to get cut. Those who use it mostly for horse hay will be assured of a steady supply. Frogs are not the only problem with water law. The irrigators agree on that one.
I guess I can’t expect a reporter or lawyer from the valley to have the perspective that I have as a small water user, but I would encourage you to take a drive from Bend to Madras and drive a few slow back roads to let the impact of your actions sink in slowly. TBreeden
Just Add Water
Few people alive remember what the Upper Deschutes River was like before Wickiup Dam was built in 1949. It was then regarded as one of the finest fisheries in the US. In 1914 Clyde McKay received the Field and Stream award for the second largest stream caught rainbow on a fly in the US. The City of Bend used to have fish fries on the Fourth of July. A few anglers would go out and provide over 3000 fish caught with rod and reel over a four day period. There was once a 125 fish daily bag limit on the Deschutes.
The river flowed cold and clear. Seasonal fluctuations were minimal due to the porous geology spring fed nature of the upper basin. Spawning gravels for trout were abundant, there was a diversity of aquatic insects essential for food, deep pools for cover and large woody debris gave shelter.
The stream-sides were stable, with life-sustaining wetlands hosting a multitude of critters, including spotted frogs. Imagine a prolific stream like that flowing through our community today.
Wickiup Dam changed all of that. Wickiup Dam and its reservoir plugged the natural flow of the Deschutes River. The 200,000 acre-feet that it stores over the winter are now flushed down the river in the summer, like a toilet.
The Oregon Fish and Wildlife Commission realized the harm damming the river would have by reducing winter flows and requested no less than 200 cfs (cubic feet per second) minimum winter flows. The figure was felt the smallest flow that the river could tolerate in the winter to keep the river healthy. The State Engineer denied the request in the early 1950’s, and ruled that only 20 cfs would be sufficient. The historic flows of 700-900 cfs were reduced to next to nothing.
Today the fishery is all but gone. The spawning gravels are silted in like Mirror Pond. The river is highly manipulated. Flows are reduced to a trickle in the wintertime and run at flood stage in the summer eroding the banks. It is managed as an irrigation ditch with no concern for other public values.
The sad list of abuses goes on. There are dozens of studies on the upper river from a variety of sources. Two local organizations have attempted to solve the problem for decades by consensus building and working with the irrigation districts. They have had some success in the river below Bend. However their work has not improved flows at all above town.
The problem is not for lack of water. Studies have shown there is enough for both the farmlands and instream flows. The problem is the rampant waste by the districts. Often, only 1/3 of the water diverted gets to the crops. 2/3 of the water diverted is absurdly wasted in systems that were developed before there was any concept of conservation. Flood irrigation is still being used in many locations. 60% of COI’s patrons still use old methods that are only 30-45% efficient. There is not a demand system available for farmers to request only the amount of water they need. How can that amount of waste be considered a beneficial use?
There is even more trouble on the horizon. Our local irrigation districts are becoming mini energy companies. Most of COI’s revenues now come from generating electricity, not from farmers. They have plans for several additional hydro projects. It will become nigh impossible to get water back instream if they profit from its hydro potential in their canals.
After decades of failed ”collaborative” efforts to restore flows in the Upper Deschutes, it’s no wonder that law suits have been filed. If we want to have a healthy river that supports fish and wildlife and serves everyone not just irrigation districts, it’s time to act now before it’s too late.
There are very few options left other than filing lawsuits.
Craig Lacy
Past Chairman Coalition for the Deschutes