July 30, 2011 – Bend Bulletin – NOAA rule would give irrigators a break

The federal government may grant an exemption on the Deschutes River that would temporarily loosen some restraints brought on by steelhead’s threatened species designation and provide legal protection to those who harmed the fish while acting within the law.

This would allow landowners, municipalities and irrigators more time to work on conservation efforts. The National Oceanic and Atmospheric Association, which oversees the protection of steelhead in the area, published a draft rule in May that would designate the steelhead population recently reintroduced in the upper Deschutes River basin as nonessential and experimental.

That means the fish are still listed as threatened under the Endangered Species Act, but for a certain period of time the penalties and consultation requirements associated with harming the fish would be suspended. That allows groups using the river for commercial purposes like irrigation more leeway as they prepare for the effects the reintroduction will have on the river.

The period for public comment on the draft rule ended July 18, and now NOAA will consider the comments and eventually decide whether to formalize the rule.

There’s been an extensive effort by Portland General Electric and the Confederated Tribes of the Warm Springs Reservation to reintroduce Middle Columbia steelhead salmon and other species to the Deschutes River above the Pelton Round Butte project as part of the dam’s federal relicensing.

Steelhead are considered a threatened species, which means they must be protected under the Endangered Species Act. Companies, people and other entities are not allowed to harm, kill or in any way negatively impact a threatened species. Harming a threatened species beyond the law’s “take” restrictions is punishable by civil and criminal penalties, like fines or jail time.

But if NOAA’s draft rule goes through, it would temporarily eliminate those punishments as well as cut down on consultation requirements.

There were seven comments on the draft rule, most in favor.

The Ochoco Lumber Company in Prineville wrote in support of the rule, as did the Wild Steelhead Coalition. The coalition asked that some additional guidelines for protecting the fish be required.

A comment was also submitted on behalf of the Deschutes Basin Board of Control, which includes seven area irrigation districts, and on behalf of Prineville. That group supports the draft rule, which it says in the letter would further the conservation of steelhead.

American Rivers, Trout Unlimited and Waterwatch of Oregon wrote in their letter that while the groups supported parts of the draft rule, they worried it was too broad. The groups also believe the exemption should be in place for no more than seven years. The draft rule suggests the exemption last 12 years, long enough for several generations of fish to return to the area after their long journey to the ocean.

The National Marine Fisheries Service plan to designate the steelhead a “nonessential experimental population” is “short on language to explain or justify why the rule is necessary, locks in the designation longer than is justified, does not adequately explain — or inappropriately dismisses — how it will affect ongoing and future actions affecting the species.”

Kate Miller, the staff attorney for Trout Unlimited, said the group supports the reintroduction and trying to minimize the reintroduction’s burden on the community.

“I think the goal for us is to make sure that this decision is well thought through,” she said. “It’s a novel approach, and I think it’s worthwhile having the agency think through clearly, and clearly explain, their decision-making process. But mostly I think it’s making sure we’re using the right tool to accomplish the objectives we all share. I do think it’s important to find a way to allow this reintroduction in a way that’s supported by the local community, but I think our primary concern is to make sure it’s the right tool and it is as narrowly tailored as possible.”

‘Breathing room’

To Central Oregon Irrigation District Manager Steven Johnson, allowing irrigation, conservation and other groups to work together on projects like habitat conservation plans in the basin — even if they sometimes threaten steelhead — will in the long run help the species and the river.

“It gives us breathing room to continue the work we’ve been doing that will have positive effects for the species and not just for the steelhead” but for other fish as well.

Sheila G. Miller can be reached at 541-617-7831 or at smiller@bendbulletin.com.

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