No immediate change to Deschutes water use

Mar 22, 2016

Bend Bulletin

No immediate change to Deschutes water use

Federal judge says she wants long-term conservation effort for spotted frog

By Taylor W. Anderson / The Bulletin

EUGENE — A federal judge presiding over a case that could alter the way water is managed in Central Oregon said Tuesday she wouldn’t grant immediate changes to water management in the Deschutes River basin, as a pair of environmental groups had sought.

U.S. District Judge Ann Aiken made clear during oral arguments in two cases filed in recent months that she prefers groups work together to protect the threatened Oregon spotted frog at the center of litigation.

Aiken said she wouldn’t rule in favor of two groups seeking an immediate injunction this month that would have required three local irrigation districts to release water from their reservoirs, which farmers said could have been devastating, particularly in the North Unit Irrigation District in Jefferson County.

“I’m going to deny” the motion, Aiken said. “That’s my opinion at this point.”

Aiken said she would file her written opinion ruling against WaterWatch of Oregon and the Center for Biological Diversity, which asked for a preliminary injunction to change the water storage practices in the Wickiup and Crane Prairie reservoirs and Crescent Lake starting April 1.

The environmental groups filed two similar suits in U.S. District Court in Eugene, seeking changes to how the North Unit, Tumalo and Central Oregon irrigation districts and U.S. Bureau of Reclamation store Deschutes River water in winter and release it in summer months.

They said the practice of collecting the water in local reservoirs in winter and releasing it in summer creates unnatural river flow changes that harm the Oregon spotted frog, a brownish-red amphibian the U.S. Fish and Wildlife Service listed as threatened in August 2014.

The suit might have affected the region’s agricultural economy heading into growing season, primarily in Jefferson County, where farmers hold junior water rights and rely on reservoir storage.

The region’s farmers said they faced uncertainty if the court sided with the environmental groups, which asked for immediate action requiring the irrigation districts to release water from their reservoirs and return the Upper and Little Deschutes rivers to a more natural flow.

Aiken’s decision to not immediately alter water flows this year was welcome news to many in a crowded courtroom and an overflow room in Eugene, largely made up of Jefferson County farmers.

“I would have lost everything,” said Fidel Cruz, a Madras hay, carrot and grass seed farmer who added that he bought supplies over the winter months in preparation for spring. “No water, I lose completely. I would have lost the whole thing.”

The decision was unexpected heading into Tuesday’s proceedings, as onlookers believed Aiken would wait to announce her ruling later this month. But she opened up the hearing by telling attorneys representing the environmental groups they had “a long way to go to persuade me” to grant the immediate injunction.

The judge said she preferred environmental groups work with local farmers and ranchers to find long-term changes in water management that would protect the spotted frog. “The battle is to do better, rather than just do all-or-nothing litigation,” said Aiken, who later added, “Trust is hard to build.”

The judge pointed to ongoing efforts to put together a habitat protection plan that would increase river flows. Attorneys for the irrigation districts and the Bureau of Reclamation said the plan would be available in a little over a year.

“We have to get water for irrigation. If we hadn’t had the two or three years of drought, we could have been putting more water down the river,” said Marty Richards, a Jefferson County farmer who is also chairman of the North Unit Irrigation District. “Nature has dealt us this hand, and WaterWatch has exploited it.”

WaterWatch of Oregon was involved in the collaborative effort but filed the lawsuit in January, seeking quicker changes.

Janette Brimmer, an attorney for WaterWatch, said before the hearing the group didn’t believe the effort was progressing quickly enough to protect the frog, which the group says is harmed by the drastic changes between high summer and low winter flows.

“There has been some agreement from the districts to release some water on April 1, but there’s still going to be a remainder of an issue for the remainder of the year,” Brimmer said before the hearing. She was not available for comment after the hearing.

The Center for Biological Diversity filed a similar lawsuit in December against the irrigation districts and the Bureau of Reclamation, an agency within the Department of Interior that oversees water resource management.

“These groups may be saying the frogs are holding on, but … they are at risk for extirpation,” said Lauren Rule, an attorney for the Center for Biological Diversity.

The groups allege the Upper Deschutes River between Bend and the Wickiup Reservoir is being used as an irrigation ditch.

The U.S. Fish and Wildlife Service listed the spotted frog as endangered after noticing declines in population. The frog once inhabited much of the Pacific Northwest, but healthy populations are largely limited to Central Oregon today, which an official from the Fish and Wildlife Service said Tuesday remains similar to the population when the agency listed the species as threatened.

“The current water management does make it very challenging for the frog to meet its life history needs,” said Bridget Moran, supervisor of the agency’s Bend office. “We’re in a very large collaborative effort to resolve that.”

While the judge’s ruling against the preliminary injunction could be appealed to the 9th U.S. Circuit Court of Appeals and the original cases remain ongoing, the early ruling provided relief to some.

“I think the crowd is very pleased,” said Wade Flegel, an alfalfa farmer and rancher from Prineville, as streams of people left the courthouse. “But it’s not over.”

— Reporter: 406-589-4347,

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