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RETURN FLOWS Winter 2000 Ranchers
Celebrate Camp Creek Decision New Executive Director W ater for Life is pleased to announce that Brad Harper has been hired as its new executive director.As an attorney, Harper has been involved with natural resource issues since 1997. In
addition to working as state coordinator for Oregon Lands Coalition, another non-profit
group devoted to natural resource producers, Harper most recently served as the committee
administrator for the Oregon State Senate Committee on Agriculture and Natural Resources
during the 1999 legislative session. "We are very excited about bringing Brad on board," said Water for Life’s president Rex Barber. "His legal skills and legislative background will further our ability to advocate for the sound and responsible use of Oregon’s waters for agricultural production." "It is an honor and a privilege to work for such a high caliber organization," stated Harper, "I would venture to say that no other non-profit group has devoted itself so strongly to the principle of protecting the water rights of all producers." Harper is replacing Todd Heidgerken, who accepted a challenging position with the Tualatin Valley Water District. "We appreciate Todd’s many years of tireless efforts on behalf of Water for Life and wish him all the best in his new job," said Barber. Ranchers Celebrate Camp Creek Decision I n November the U.S. Supreme Court announced it would not hear an appeal by environmental groups seeking to overturn the landmark Camp Creek decision handed down by the Ninth Circuit Court last year. This ends years of legal wrangling and signals a huge victory for Oregon’s ranching community.In 1994 Robert and Diana Burill were sued over their permit to graze fifty head of cattle near Camp Creek and the Middle Fork of the John Day River within the Malheur National Forest. The dispute centered on whether the federal Clean Water Act required ranchers with federal grazing permits to obtain a second permit from the state Department of Environmental Quality, known as a "401" certificate. The environmental activists who initiated the lawsuit won at the district court level when Judge Ancer Haggerty determined that cattle were potential sources of "non-point source pollution." This term is defined as any pollution not traceable to a fixed point of discharge, such as an effluent pipe. Judge Haggerty reasoned that the Clean Water Act applied and, therefore, ranchers required a second permit to certify that the federally approved grazing would not violate state water quality standards. On appeal the Ninth Circuit reversed the earlier decision and made a sweeping proclamation that the state certification requirements of the Clean Water Act do not apply to non-point sources. By refusing to hear the case, the Supreme Court has essentially agreed with the Ninth Circuit’s logic. Humorously, the activists made a straight-faced argument that ranchers are still required to have state 401 certificates because cattle can be defined as point sources of pollution. The Ninth Circuit disagreed and replied "it would be strange indeed to classify as a point source something as inherently mobile as a cow." Ranchers from across the nation took notice of this monumental decision in protection of grazing on public lands. The Oregon Cattlemen’s Association’s new President John V. Hays met with Water for Life’s Board of Directors at our November meeting and heralded the importance of this legal victory. "For too long ranchers like me have been the poster child for the misguided movement to require 401 certificates for grazing," said Hays. "The Camp Creek decision finally takes that weight off our shoulders and we should do everything possible to explain the wisdom of this decision to the public." Looking toward the future, Cattlemen’s executive director Glen Stonebrink explained how the Camp Creek case radically changes traditional thinking about the Clean Water Act. "Before Camp Creek most people seemed to accept the claim the Act applied equally to point and non-point sources of pollution," said Stonebrink. "Now that we have proven it doesn’t, it calls into question many other assumptions we have been operating under. For example, Vice-president Gore’s Clean Water Initiative and Action Plan are revealed to be bogus and unenforceable." Stonebrink added, "it may even be time to revisit Senate Bill 1010 [1993 law creating state agriculture water quality management planning] and scale back the most burdensome provisions that many state legislators and lobbyists thought were mandatory under federal law." WFL Protests USFWS Applications for a New Type of Water Use W ater for Life is preparing protests against the U. S. Fish & Wildlife Service’s applications to appropriate 820 cubic feet per second of water from the Donner und Blitzen River and its tributaries for year-round use on the Malheur National Wildlife Refuge.USFWS has paid fees in excess of $180,000 to transfer existing water rights with priority dates from the mid-1800s and to create a new water right for a year round beneficial use they describe as "wildlife refuge management." With the assistance of local residents, Water for Life is protesting this new type of beneficial use to protect both senior and junior water right holders surrounding the Refuge. Because the term "wildlife refuge management" is so vague, it could prove difficult to determine whether waste is occurring. So long as USFWS claims to be using water to manage the refuge, regardless of the method, it will be nearly impossible to prove otherwise. A comparable type of water use is that enjoyed by municipalities. A city or town with a municipal water right is permitted to use its water however it sees fit. The question arises: why does the USFWS need to enlarge and expand its certified water use from irrigation and stock watering to this larger, basically unregulated municipal water use scheme? In addition to preparing protests, Water for Life’s executive director, Brad Harper, testified before the Joint Interim Committee on Water, Agriculture & Natural Resources last month and briefed them about the issue. "The committee was very interested," said Harper. "In particular, the committee chairs, Sen. Veral Tarno [R-Coquille] and Rep. Jeff Kropf [R-Halsey] were alarmed by our observation that this might be a new approach by the Fish & Wildlife Service to obtain an otherwise unauthorized federally reserved water right." NMFS Plays Hardball With Methow Valley Producers T he National Marine Fisheries Service is trying to persuade irrigators in Methow Valley, Washington, to accept a memorandum of agreement [MOA] or risk substantial civil and criminal penalties. The MOA proposed by NMFS is a voluntary conservation plan committing irrigators to contribute "proportionate shares" of their water rights during periods where streamflows drop below certain levels. Although the target flows sought by NMFS have not been determined, the purpose is to benefit endangered fish species during the approximately three year period before a basin-wide habitat conservation plan can be implemented as required by the Endangered Species Act.Methow Valley irrigators are concerned that the MOA disregards the fundamental principle of how water is allocated in the West: first in time, first in right. Instead, NMFS wants local agricultural water users to voluntarily agree to limit their water use regardless of the priority date of their water rights. Okanogan County commission chair Dave Schulz was quoted to say "I’m having some trouble with that proportionate share in relation to western water law." And it appears that this dispute over how to treat senior and junior water rights is holding up the MOA. In an October letter sent to all Methow Valley water diverters, NMFS warned that without an MOA water users could face civil penalties up to $25,000 and criminal penalties up to $100,000 and a year in jail for harming a listed species. Potential criminal actions include "withdrawing or diverting water resulting in insufficient streamflows." Unfortunately NMFS is not guaranteeing to protect water users if they agree to the MOA. Instead, the federal agency only promises that the agreement could "reduce the likelihood that NMFS would prosecute a diverter so long as he or she were participating in the voluntary water conservation and management program." After all is said and done, the agreement being offered to Methow Valley seems to be neither voluntary nor reassuring. Family and Friends Say Goodbye to Longtime WFL Supporter W FL is sad to report J.P. "Paddy" McAuliffe, 60, of Fort Klamath and Cottonwood, Calif., passed away on Oct. 16. Known for his lifetime commitment to ranching, McAuliffe competed in team roping and rodeo events and was involved in brandings and team pennings with his family. He and his wife, Hulda, also raised and sold quarter horses and cow dogs.McAuliffe was a member of Water for Life, Oregon and California Cattlemen’s Associations, as well as Cascade and U.S. Team Penning. His family asked that memorial donations be made to Water for Life, or the Mercy Radiation Oncology Department, P.O. Box 496009, Redding, CA 96049. Federal Listing of Plant Likely For Northeast Oregon A small flower related to carnations, Spalding’s catchfly, is facing listing as a threatened species under the federal Endangered Species Act. Already listed as endangered under Oregon’s state ESA, the federal listing will apply to Wallow County, Oregon, as well as areas in Idaho, Montana, and Washington. The catchfly is also currently identified as a "sensitive species" by the Bureau of Land Management and the U.S. Forest Service.According to the U.S. Fish & Wildlife Service, more than 98 percent of the catchfly’s habitat has been lost or modified by agricultural conversion, grazing, noxious weeds, fire management practices, and urbanization. Furthermore, USFWS is claiming that 52 percent of catchfly populations are located on privately owned property. This is significant because state ESA regulations apply only to state owned lands, while the federal ESA forbids any activities that might harm endangered species regardless of whether on private or public lands. As reported in the Federal Register, the largest catchfly population in Oregon is on private land near Wallowa lake and "may be threatened by development because of its proximity to existing recreational facilities and residences." USFWS is not proposing any immediate ban on grazing management, pesticide applications or other agricultural activities authorized, funded or carried out by the federal governmental agencies. However, consultations – which can be complex and time consuming – will be required in accordance with the federal ESA. Send requests for hearing and any comments to:
For further information, you can call Supervisor Ruesink at (208) 378-5243, and fax him at (208) 378-5262. Steens Mountains in National Spotlight A t the direction of President Clinton, Secretary of Interior Bruce Babbitt is searching for areas to designate as national monuments and the Steens Mountains are being seriously considered. The area under consideration is over 900,000 acres, of which almost one-third is privately owned land and two-thirds is managed by the Bureau of Land Management.Under the Antiquities Act of 1906, the President may designate national monuments without state or congressional approval. A notable example of this federal law in action was the 1996 designation of the Grand Staircase-Escalante National Monument in Utah. Sen. Gordon Smith and Rep. Greg Walden, as well as the Oregon Senate, sent letters to Babbitt opposing a administrative designation, and instead requesting that any national monument proposal for the Steens be brought before Congress. Babbitt has stated that he is willing to work with state and local stakeholders to come up with a management plan to protect the integrity of the Steens, but has warned that if an acceptable management plan is not presented to Congress when it convenes in January 2000, he will consider asking Clinton to invoke the Antiquities Act. Local residents are actively opposing any designation. The Steens resource advisory committee recently endorsed a Steens Mountain cooperative management program involving private landowners with federal representatives and other interested parties. This program would be in lieu of federal designations as a national monument, national park, or national conservation area. Fred Otley, a rancher based in Diamond and a WFL board member, points out that the history of cooperation between public land managers and private landowners is excellent. "A lot has gotten done on the ground without unnecessary rules and red tape,’ said Otley. "Water quality and fish habitat are good and getting better. National monument designation will slow, if not stop, the progressive management leading to these gains." He strongly encourages people to phone or send a letter or fax to Babbitt and Clinton opposing administrative designation.
T wo years after its inception, the Oregon Plan continues to develop as the state’s response to the federal Endangered Species Act. The major component for 1999 was the legislature’s implementation of Ballot Measure 66. Under that voter approved initiative, over the next two years nearly $44 million of lottery funds will be used for the restoration and protection of native salmonid populations, watersheds, fish and wildlife habitats and water quality.These funds are being administered by the Oregon Watershed Enhancement Board, formerly known as the Governor’s Watershed Enhancement Board. OWEB is required to use 65 percent of the lottery dollars for capital expenditure projects, such as development, construction, and implementation of restoration, enhancement and protection activities. For more information, see Water for Life’s 1999 Oregon Final Legislative Report. This is a biennial publication provided free of charge to our members. Contact us if you have not received a report or would like additional copies. WFL Prepares for Spring Bull Sales W ater for Life is looking forward to the spring bull sales: Red Bluff, Klamath, Rogue River Ranch, and more! As you attend these events, keep your eyes open for the Water for Life booth. We will be available at events throughout the state to discuss water issues facing ranchers and farmers – hope to see you there.Jan. 25-29 Red Bluff Bull & Gelding Sale (Red Bluff, Calif.) Feb. 3-5 Klamath Bull & Horse Sale (Klamath Falls, Ore.) March 11 Rogue River Ranch Bull Sale (Central Point, Ore.) Klamath Basin Adjudication Update The Oregon Water Resources Department has extended the open inspection period from January 14, 2000 to March 31, 2000. During this period interested persons can inspect the Department’s Preliminary Evaluations of claims for right to use Klamath Basin water that began before 1909. The claims and evaluations are located at the Department’s Salem office: 158 12th Street NE. In order to dispute a claim and receive a hearing, contests may be filed beginning April 3, 2000, and must be received by the Department no later than May 8, 2000. Contest forms can be accessed at the Department’s web site: http://www.wrd.state.or.us/programs/klamath/index.shtml |