“The Endangered Species Act Does Not Require Recovery, Just A Recovery Plan.”

Contrary to prior press releases and news reports, a final decision on all aspects of the Deschutes Basin Habitat Conservation Plan has not been made.  Final documents were made available only two days ago (1/11/2021).  There’s a ton of material there, some documents have multiple volumes, so have a fresh bottle of wine ready, maybe two.  Below is a brief overview.  Note that while a “record of decision” has been made to issue an Incidental Take Permit for Oregon Spotted Frog and Bull Trout later this month, the HCP is still under review for issuance of an ITP for steelhead. 

In the Deschutes Basin, Oregon Spotted Frog, Bull Trout, and Mid-Columbia Summer Steelhead are all covered by the Endangered Species Act.  The Act requires that a recovery plan be put in place and that activities that will kill (“take”) these species be covered by an “Incidental Take Permit”.  In other words, it’s OK to kill endangered species, but only “incidentally”.  Local irrigation districts and the City of Prineville take water from rivers where one or more of these species reside and they need an ITP to continue operations.  After 12 years they have finally delivered a plan that has been deemed at least partly acceptable by the US government (the decision on steelhead has not been made).

An ITP is issued to an applicant(s) after the approval of a “Habitat Conservation Plan”.  The HCP is developed by those whose actions will incidentally kill ESA-covered species.  It is a plan to at least stabilize populations and potentially recover them.

The HCP is supposed to meet the needs of the covered species as stated in a “Biological Opinion”.  The BiOp is written by the US Fish & Wildlife Service.  An Environmental Impact Statement is also required to assess potential impacts from the implementation of the HCP.

Each of these elements can be legally challenged.  Is the BiOp well-reasoned and based on the best available science?  Are the needs of the species for recovery adequately addressed in the BiOp?  Will implementation of the HCP meet these needs and in a timely manner?  Will implementation of the plan create other detrimental environmental impacts?  Based on recent history, I would not be surprised by legal challenges in these areas later this year, although challenges can come over the next six years.

I have been watching and participating in this process from the start and know that the HCP has improved significantly from its truly laughable beginnings.  The applicants (irrigators and the City of Prineville) have put significant effort into crafting a plan that would result in the issuance of an ITP.  The HCP now has some merit, but there are good reasons to believe that this plan will not lead to recovery.

Tod Heisler at Central Oregon Land Watch has written a worthwhile series of high level posts about the HCP and some of its shortcomings.  In summary, his position is that species need more water than planned, and they need it much more quickly.  I have posted repeatedly about the HCP as well.  My focus has been on the outrageous cost of canal piping (overwhelmingly funded by taxpayers), the omittance of the Middle Deschutes in the plan in any meaningful manner, and the complete lack of consideration for water quality.  Our rivers need more water, but it can’t be severely polluted like it is in the Crooked River and Lake Billy Chinook, home to bull trout and steelhead.

In addition, there is a bigger picture which I have also written about.  In summary, our climate is clearly heating.  Wickiup Reservoir will not fill again this winter, in fact it will likely start next irrigation season at its lowest level ever.  Central Oregon has been in a state of drought for most of the past 20+ years, ranging from “abnormally dry” to “extreme”.  At the same time our population is booming and our aquifers are declining to the point that some residential wells are going dry.

The merits of canal piping and on-farm efficiency are undeniable, but they are expensive and will take decades to provide marginal benefit to the upper Deschutes, Wychus Creek, and the Crooked River, and no real benefit to the Middle Deschutes.  Isn’t it time to look at the bigger picture?

Oregon water laws were written over 100 years ago at a time when the state was being settled.  Are these laws still appropriate?  What is the most beneficial use of the public’s water today?  Clearly, agriculture plays a critical role, but should it be 90% of water use?  How can we shift the discussion to making equitable, fundamental changes rather than merely quibbling about which tactic is best for spending massive amounts of taxpayer dollars to achieve minor benefit over decades? Isn’t it time to plan for the next 100 years?  It can be done.  Currently, it seems we are simply rearranging deck chairs on the Titanic.