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Update on Endangered Species Act (ESA) Consultation Process

On Monday, April 2, 2012, the National Marine Fisheries Service (“NMFS”) released its Biological Opinion pursuant to section 7 of the Endangered Species on the effects of the Bureau of Reclamation’s future operation and maintenance of the Rogue River Basin Project which includes the Talent, Medford, and Rogue River Valley Irrigation Districts (“Districts”).

In this opinion, NMFS concludes that the proposed action is not likely to jeopardize the continued existence of Southern Oregon and Northern California Coasts Coho salmon or result in the destruction or adverse modification of designated critical habitat for Coho salmon. The details of this long and detailed opinion and how it affects the operations of the Districts are being reviewed. The Districts are encouraged that it appears in crafting this opinion, NMFS has used the science and operational knowledge of the system that was developed during the consultation process.

For several years, the Talent, Medford, and Rogue River Valley Irrigation Districts have been engaged in an Endangered Species Act (“ESA”) consultation with the U.S. Bureau of Reclamation (“BOR”) regarding the operations of the Rogue River Basin Project (“Project”). The Project is a Bureau of Reclamation project supplying irrigation water to more than 35,000 acres of agricultural lands in the Bear Creek basin. These high-value irrigated farm lands were a significant contributor to the estimated $64,000,000.00 in gross farm and ranch sales in Jackson County in 2010 (Source: 2010-2011 Oregon Agriculture & Fisheries Statistics, published by USDA and ODA). In addition, the region’s irrigated agricultural lands are responsible for thousands of family wage jobs.

The consultation process is required by Section 7 of the ESA because Coho salmon are listed as a threatened species in the Rogue River basin, including Bear Creek, Little Butte Creek, and their tributaries. These same stream systems serve as the source of water for the Project’s agricultural lands in the Bear Creek basin. The ESA requires that the BOR consult with the NMFS in order to minimize impacts that Project operations could have on listed species.

Over the last several years, the Districts and their patrons have committed an incredible amount of time and resources to this process to make sure that, in developing the opinion, the federal agencies have before them the best available science and operational information about how the Project operates. Certain operational changes will be necessary due to this opinion, but the Districts are both confident and cautious that these changes will be manageable and feasible. Through collaboration, coordination and hard work, the Biological Opinion we have today appears to provide more water for fish, while allowing the continued delivery of irrigation water that sustains the Rogue Valley’s economic engine. The results of this opinion ultimately afford the opportunity for most of the citizens of the Rogue valley to continue to reside here. Also, with continued operation of the Project, flood control is preserved along with recreational opportunities the irrigation reservoirs provide.

Irrigation Districts Continue Efforts in Endangered Species Act (ESA) Consultation Process For several years, the Talent, Medford, and Rogue River Valley Irrigation Districts (“Districts”) have been engaged in an Endangered Species Act (“ESA”) consultation with the U.S. Bureau of Reclamation (“BOR”) regarding the operations of the Talent Division of the Rogue River Basin Project (“Project”). The Project is a BOR reclamation project supplying irrigation water to more than 35,000 acres of agricultural lands in the Bear Creek basin. These high-value irrigated farm lands were a significant contributor to the estimated $64,000,000.00 in gross farm and ranch sales in Jackson County in 2010 (Source: 2010-2011 Oregon Agriculture & Fisheries Statistics, published by USDA and ODA). In addition, the region’s irrigated agricultural lands are responsible for thousands of family wage jobs. The consultation process is required by Section 7 of the ESA because coho salmon are listed as a threatened species in the Rogue River basin, including Bear Creek, Little Butte Creek, and their tributaries. These same stream systems serve as the source of water for the Project’s agricultural lands in the Bear Creek basin. The ESA requires that the BOR consult with the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NMFS”) in order to minimize impacts that Project operations could have on listed species.

As multi-generational farmers, ranchers, orchardists, and wine grape growers, the owners of irrigated land in the basin understand the need for sustainable practices and good stewardship of our natural resources. Therefore, the Districts, who supply water to those landowners, are deeply committed to engagement in the consultation process as necessary to produce a final product that is grounded in solid and reliable science, and that allows project water to be delivered to the Districts in accordance with their BOR contracts. To that end, the Districts have been providing technical and operational input to BOR and NMFS in the development of a practical, scientifically based environmental review process. The outcome of that process will be new scientific models that are far more certain to lead to improved fish habitat in the context of present operations—a win-win result for fish, irrigated agriculture, and the local economy.

Unfortunately, on February 7, 2012, Oregon Wild (an environmental plaintiff group) sued BOR for failure to complete the consultation in a timely fashion. The complaint seeks an injunction against further project storage and diversions until the consultation is completed. The basis of this request is Oregon Wild’s allegation that Project operations are resulting in harm to a listed species. That allegation is based in large part on an outdated May 2011 draft biological opinion, which NMFS itself has now concluded no longer reflects the best available science. Moreover, during the 2011-2012 winter storage season, the Districts have voluntarily left water instream that otherwise would have been stored in Project reservoirs. BOR and NMFS have endorsed this bypass flow regime.

Oregon Wild failed to do its homework before filing this lawsuit. As a result, the suit is based on outdated assumptions and asks for a remedy that is already being provided by BOR—namely a rapid conclusion to the consultation process. The Districts believe that the Oregon Wild litigation will, ironically, only serve to prolong an already lengthy process. It will divert attention and resources away from the consultation and into the court room. This is a bad outcome for all parties, and will put into jeopardy thousands of family wage jobs that depend on irrigation water deliveries in the basin.

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ROGUE BASIN WATER USERS COUNCIL, INC.

P.O. BOX 467
TALENT, OR 97540
NEWSLETTER, OCTOBER 2003

MEMBERS ARE COMPRISED OF THE
TALENT IRRIGATION DISTRICT
MEDFORD IRRIGATION DISTRICT
ROGUE RIVER VALLEY IRRIGATION DISTRICT

The purpose of this first Newsletter from the Rogue Basin Water Users Council, Inc. (RBWUCI) is to introduce the water users of the Talent, Medford and Rogue River Valley Irrigation Districts to this new organization. The organization was formed by the three irrigation districts in August of 2003 in response to the 60-Day Notice of Intent to Sue sent to the Bureau of Reclamation (Upper Columbia) Office by the Oregon Natural Resource Council (ONRC) and the Northcoast Environmental Center (NEC). The purpose of the formation of this new organization is to try to protect the water rights and shared issues of the three irrigation districts.

The following is a brief history of what has happened, to-date, on this matter:

Over seven years ago, the Talent, Medford and Rogue River Valley Irrigation Districts entered into pre-consultation activities with the United States Bureau of Reclamation (Bureau) under Section 7 of the Endangered Species Act to prepare a Biological Assessment (BA) for all three Districts. The decision to prepare a Biological Assessment was to establish an environmental baseline for the districts and to see if any federal actions are “likely to adversely affect” listed species. The Biological Assessment is a biologist’s view of how the Districts’ operations impact endangered species and plants within our area of operation.

On January 30, 2003 William Carpenter, on behalf of the Oregon Natural Resource Council (ONRC) and the Northcoast Environmental Center (NEC) filed a 60-day Notice of Intent against the Bureau of Reclamation. The Notice of Intent was filed in part, because the Bureau of Reclamation had not completed the consultation process for the Rogue Basin.

The 60-day Notice of Intent mentioned the Rogue Basin’s annual average diversion of approximately 30,000 acre-feet of water from the Klamath River Drainage to the Rogue Basin. To give the Talent Irrigation District water users an idea of how much water this is, it is equal to one-half of the District’s annual average water supply. For Medford and Rogue River Valley Irrigation District water users, the 30,000 acre-feet of water is more than the full storage capacities of Fourmile Lake, Fish Lake and Agate Lake combined. The loss of this amount of water would be devastating to the districts and would severely impact livability in the Rogue River Valley by reducing stream flows throughout the Basin. The following are just some of the water uses that would be impacted: agricultural production and yields, agricultural employment, parks, schools, golf courses, etc., as well as municipal supplies for some cities.

It appears that ONRC and NEC, filers of the 60-day Notice of Intent, want to transfer Fourmile Lake, Howard Prairie and Hyatt Lake water back to the Klamath River Drainage and divert what they feel is needed down Jenny Creek to improve the water situation in the Klamath River. The 30,000 acre-feet of water is a very small amount over the scope of the needs in the Klamath River and will do little to relieve the water problems. In addition, the 30,000 acre-feet of water is not available when the water is needed in the Klamath River. The water is only available during the spring runoff season and without the use of the lakes for storing the water, it will run down the Klamath River earlier than it is needed. In other words the 30,000 acre-feet, in reality, is stored from early spring runoff when stream flows are high.

The Bureau started work on the consultation process over two years ago, however, ONRC and NEC determined that the Bureau had not proceeded with its’ completion in a timely manner. The Bureau continued to work on the Rogue Basin Biological Assessment and as the chapters were drafted, the irrigation districts’ intermittently met with the Bureau of Reclamation to give their input on the information. The original proposed date for completion of the final BA was to be sometime later this year. However, in a settlement agreement between ONRC and the Department of Justice (on behalf of the Bureau of Reclamation) to avoid a lawsuit from ONRC, the Department of Justice agreed to the following timeline for completion of the Biological Assessment and Biological Opinion:

    1) Reclamation was to deliver the Biological Assessment to the National Oceanic and Atmospheric Administration and the United States Fish and Wildlife Service by August 31, 2003 (it did).
    2) The National Oceanic and Atmospheric Administration and the United States Fish and Wildlife Service will complete a Biological Opinion by April 1, 2004.
    3) The Oregon Natural Resource Council will be provided with a copy of the Biological Assessment and Biological Opinion when it is submitted to NOAA and USFWS.
    4) ONRC reserves the right to sue the Bureau of Reclamation at a later date, however, they will need to file another 60-day Notice of Intent to Sue, prior to filing any lawsuit.

The irrigation districts were not allowed to participate, or even made aware of any part of the settlement agreement between the Department of Justice and ONRC. The districts were told after the settlement agreement was negotiated, that the Bureau of Reclamation was not to divulge any information about the negotiations.

The Bureau wrote the BA and released it to the National Oceanic and Atmospheric Administration (NOAA) and the United States Fish and Wildlife Service (USFWS) who are reviewing the BA and will issue a Biological Opinion (Bi-Op). (To clarify the relevance of this situation, the Bi-Op from NOAA and USFWS is what forced the water shutoff in the Klamath Basin last year.) The BA states that certain species are likely to be adversely affected by the Bureau’s operations. On the basis of the BA and other information, the Bi-Op will either find “no jeopardy” for the listed species or plants in the districts’ area of operation, or it will find that the species or plants have “jeopardy”. If NOAA and/or USFWS find there is “jeopardy”, then the districts will enter into negotiations for mitigation of the districts’ impact upon that particular species or plant. Once mitigation is agreed to, NOAA will then issue the districts an Incidental Take Permit. The Incidental Take Permit protects the districts from the threat of citizen’s lawsuits for the districts’ impact upon the species or plants in its day-to-day operations.

In the beginning the districts were asked by the Bureau to consult on the project for both the private and federal facilities. The Bureau now refuses to include important private facilities. The districts asked for “Applicant” status in the consultation. The Bureau was very concerned about granting the status due to the fact that it would enable the districts to convene the “God Squad”. The Bureau originally assured us that we would receive the most important aspects of “Applicant” status, that would include a “seat at the table” so the districts would have immediate and effective review and input on the Biological Opinion. The Bureau refused this request; the Districts employed counsel who asked the Bureau to reconsider, which it did, but again, refused to change its mind. Follow-up discussions have not resolved the problem, and litigation is possible on this issue. A “seat at the table” is absolutely critical because the BA is flawed with questionable science and analysis. The districts cannot afford to wait to correct this flaw. We must be proactive. Our scientists feel that absent “Applicant” status, an adverse Bi-Op is an inevitable conclusion.

The Talent, Medford and Rogue River Valley Irrigation Districts are taking this proceeding as a serious threat to our water supply. By forming the Rogue Basin Water Users Council, Inc., the three irrigation districts are combining resources to be proactive in the protection of our water supply and the future of agriculture in the Rogue Valley. By coming together and pooling our resources we hope to minimize the cost to all of the districts patrons. It is also the hope of the RBWUCI to gather support from other affected agencies and individuals, in addition to the water users of the three irrigation districts. The RBWUCI has setup a tax-deductible fund that anyone can contribute to. Contributions to this fund can be made to the Rogue Basin Water Users Council, Inc., P.O. Box 467, Talent, Oregon 97540. If you have questions, please contact your irrigation district office.

The districts have enlisted the services of a spokesperson to help educate the public and get the word out about this issue. This person is John Dimick. John is a resident of Eagle Point and a fifth generation Oregonian. He taught agriculture classes for 33 years and is now retired. John has a small cattle ranch in Eagle Point and another ranch in Burns. In the near future, John will be available to make presentations on this issue to service groups on behalf of the Rogue Basin Water Users Council, Inc.

The water users from all three irrigation districts should be aware that it is necessary for the districts to raise funds to fight this battle to protect our water rights. It will be up to the Board of Director’s of each individual district to determine how their district will collect funds for this extreme threat to the Rogue Valley’s water supply. We must achieve “Applicant” status now, whether through negotiation or our own lawsuit. For the districts to have any reasonable chance for success, we must be able to pay for our own scientists and lawyers. We will need your help.

For future updates to this issue please visit the irrigation district websites at:

    www.talentid.org
      www.medfordid.org
        www.rrvid.org

      TALENT IRRIGATION DISTRICT
      MEDFORD IRRIGATION DISTRICT
      ROGUE RIVER VALLEYIRRIGATIONDISTRICT
      PO BOX 467
      TALENT OR 97540


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