June 2, 2008 - Bend Bulletin Groundwater Mitigation: Not All State's Streams Are Faring Equally

June 3, 2008
June 2, 2008 - Bend Bulletin Groundwater Mitigation: Not All State's Streams Are Faring Equally

Groundwater mitigation: Not all state’s streams are faring equally
By Kimberley Priestley / Bulletin guest columnist

Published: June 02. 2008 4:00AM PST

"Water trade-off bolsters rivers” The Bulletin declares in its April 22 headline leading into a discussion of the five-year review of the Deschutes Groundwater Mitigation Plan. The lead-in follows: “System devised in ’01 works, its first formal review finds.” Even the photo caption optimistically declares: “The five-year review shows the Deschutes Groundwater Mitigation Plan is working.”

In actuality, things are not so rosy. It is true, as the article points out, that flows in the Middle Deschutes River (below Bend) have increased during the summer months, and thus the mitigation program could be said to be working for that section of river seasonally. What is not true, however, is that the Mitigation Program is working for the basin as a whole. It’s not offsetting the full impact of new groundwater development on Central Oregon’s beloved rivers. The Crooked, Metolius, Whychus and Lower Deschutes are, or will be, taking the hit from new groundwater development.

A little background. Streamflows throughout the Deschutes Basin are protected by the Scenic Waterway Act and Instream Water Right Act. Protected flows are set by month, representing the minimum biological needs of fish. The United States Geological Society determined that pumping groundwater will ultimately diminish streamflows in the basin. Where groundwater pumping will diminish protected streamflows, the law prohibits the state from issuing new groundwater permits unless mitigation water is put into the river to fully offset the impacts on the river. In 2002, the Water Resources Commission adopted rules to govern groundwater mitigation in the Deschutes Basin. Among other things, the rules allow mitigation water to be calculated on an “annual” basis without any requirement that the mitigation water be put in the river during all months that pumping actually affects river flows. They also fail to require that mitigation water be returned to the river where the river is being impacted.

As noted by The Bulletin, WaterWatch and 13 conservation groups, individuals and businesses filed suit in the Oregon Court of Appeals asserting that the mitigation rules failed to protect streamflows as required by law. The court agreed with us and invalidated the rules. Then, in a classic political maneuver, the Legislature did an end-run around the court opinion and “validated” the mitigation program without correcting a single one of the program’s flaws.

So here we are five years later. While the Water Resources Department is declaring the program a “success,” one look at the state’s modeling results shows that the mitigation program is having a negative impact on Lower Deschutes River flows from the late fall through the early spring. In other words, flows are going down. Importantly, the drop in streamflows coincides with spawning and rearing seasons for steelhead as well as spawning, incubation and rearing seasons of chinook salmon. And while some may ascribe to the myth that there is an abundance of water in the Lower River and thus a negative hit is not a problem, this is not in fact the case. In 1998, the WRD determined that protected flows in the Lower Deschutes were not being met nine months of the year. Data from the Oregon Department of Fish and Wildlife indicate that even a small decrease in flows in the Lower Deschutes River would have a significant impact on steelhead spawning habitat. And even in 2008, a banner “wet” year by all accounts, the state’s instream water rights for the Lower Deschutes were not met nearly all of January and February.

And the beloved Metolius? While there have been no mitigation projects on the Metolius yet, with some proposed new destination resorts in the making, what “can be” is troubling. The problem here is that while the impacts from new development will likely affect the headwater springs, if mitigation water is returned to the bottom of the river system, the rules would “call it good.” Moreover, in a recent letter to Gov. Kulongoski, the director of the WRD acknowledged that groundwater withdrawal outside of the Metolius sub-basin could have an impact on stream flow in the Metolius and that the mitigation program would not require mitigation of this impact.

So where are we? A report on the mitigation program is due to the Legislature in 2009. The Legislation “validating” the otherwise invalid rules sunsets in 2014. With these deadlines looming, rather than ignore the mitigation program’s failings, the state needs to be honest about the program’s successes and failures alike. Only when the state acknowledges this can all interests work together to modify the mitigation program and keep the entire Deschutes River system flowing.
Kimberley Priestley works for WaterWatch.

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