Thoughts on a HCP lawsuit

I have closely tracked the Deschutes Basin Habitat Conservation Plan from the very beginning. Well over a decade ago I submitted comments in support of listing the Oregon Spotted Frog as an endangered species. While the OSP is important, more important to me was the understanding that an ESA listing would force the irrigation districts to release more water into the Upper Deschutes River during the winter, parts of which had been essentially drained dry almost every winter for decades. For years, I attended seemingly endless meetings studying the Upper Deschutes with government agencies, NGOs, and irrigation districts which helped inform the creation of the Deschutes Basin Habitat Conservation Plan. Through all this I was often deeply disappointed and was certain that the HCP would be challenged in court. Now that a lawsuit appears imminent, I have mixed feelings. How can more water flow in the river without harming real agriculture in Central Oregon, especially given our increasingly hot climate? How can a lawsuit affect a meaningful outcome and not create a lengthy cycle of litigation?

The press release from the Center of Biological Diversity announcing their intent to sue provides a good high level summary of the issues with part of the HCP. (They do not discuss the even larger shortcomings in the HCP’s requirements for the Crooked River.) In short, the HCP does not guarantee the return of water to the river quickly enough, or mandate the necessary habitat restoration, to have a high level of confidence that the OSP will not continue to be harmed. This is true.

The CBD states the HCP “avoids real solutions that would help the frog and provide assurances to farmers down the road”. But, what are those “real solutions”? They do exist but are problematical. Over 100 years ago Oregon granted to local irrigators the right to beneficially use (not own) all of the water in the Upper Deschutes River. Today, some irrigators do use water to produce commercially viable agricultural products, the original intent of the “beneficial use” language in water law. Most, however, do not.

As the original large tracts of agricultural land in Central Oregon have been chopped into smaller and smaller pieces, a portion of the original water right has stayed with the land, now often covering only a few acres. These “hobby farmers” are typically not economically viable farmers at all, but they are required to continue to use their allocated water. Many use their water right simply to have a large lawn, garden, or private pond. This was not the original intent of beneficial use. After years of study, it is clear that the only way to expeditiously return more water to the Upper Deschutes without harming the irrigators who actually use their water beneficially is to redirect the water currently allocated to hobby farmers.

This is extremely problematic. Irrigation districts that primarily serve hobby farmers oppose changes in water allocation as it would jeopardize their continued operation. Attempts to entice hobby farmers to voluntarily reallocate their water have been largely suppressed by irrigation districts and have limited interest from hobby farmers themselves who want to maintain their lifestyle.

The most logical solution is to reallocate the water rights that were granted a century ago to reflect current conditions. This would lead to endless lawsuits and most likely not deliver water quickly to the Upper Deschutes. There is another solution, however.

Water in Oregon is owned by the citizens of Oregon, only the right to use that water has been granted. Irrigation districts charge individual irrigators for the maintenance of the water delivery system, but the water itself is free. The owners of the water, the citizens of Oregon, receive no compensation for its use for private benefit. Charging for water is a workable solution to the problem of water allocation.

A sliding scale based on economic productivity could be developed that would allow everyone to maintain their water right. Commercially viable farms would be charged little, hobby farmers would pay much more. Everyone has a right to pursue their hobby, but the cost of that hobby should not be borne by the river, wildlife, or Oregonians who use it for recreation. Hobby farmers who do not wish to pay for their hobby could retire their water rights which would then be allocated back to the river and to real agriculture. Proceeds from the sale of water could be used for much needed habitat restoration in the Upper Deschutes.

Unfortunately, our politicians refuse to work on this problem, which is why the third branch of government, the legal system, is being resorted to.