“Hundreds of fish die due to low water level” announced the Oct. 19 Bulletin headline, leading into a story of a recent fish kill in the Upper Deschutes River, where nearly 3,000 fish died.
Storage season had begun for Wickiup Reservoir, and water that would otherwise flow down the river was being was held back for next summer's irrigation season. In the first two weeks of October, river flows dropped from 500 to 34 cubic feet per second, leaving fish high and dry.
In the Crooked River Basin, a similar event took place this summer. A 10-year cooperative effort to re-establish a native trout population in the South Fork Crooked River was wiped out.
A large water diversion by an upstream landowner drained the creek dry, killing off all native trout. With all native spawners dead, the fishery was destroyed.
A few years ago, a similar stranding event occurred in Whychus Creek. The Bulletin headline read “Water diversions kill more than 150 fish.” Other notorious fish kills in recent years include Fifteenmile Creek and, of course, the massive fish kill in the Klamath Basin.
Unfortunately, these events are all too common in Oregon. Even in the 21st century, dewatering a stream remains perfectly legal under Oregon water law.
In Oregon, the water flowing in our rivers belongs to the public. Despite this, no law exists to stop private water users from completely draining a stream.
Oregon operates under a water right system known as prior appropriation, which gives the first person to use water from a river the legal right to do so forever, regardless of the effect on the river or even other water users. Under this doctrine, irrigation districts claimed the lion's share of the Deschutes flows by the early 1900s.
Unfortunately for fish, instream users did not obtain the right to participate in this water right system until 1987, when WaterWatch pressed the Legislature to adopt the Instream Water Rights Act. The act set out a two-pronged approach to protecting and restoring water instream; state natural resource agencies could obtain new instream “water rights” to protect fish and wildlife, water quality and recreation and existing water right holders could transfer their rights instream — with the “senior” priority date preserved.
The Deschutes River provides a good illustration of the act's strengths and weaknesses. Middle Deschutes River flows have increased from 30 cubic feet per second in the summer to over 150, due largely to the transfer of senior irrigation rights instream.
Less rosy is the situation in Upper Deschutes — a potential blue ribbon fishery — which is dewatered every fall and winter because the circa-1987 instream water right has the lowest priority date on the stream.
That Oregon's rivers and streams can be drained dry with fish left gasping on the banks is, to many, outrageous. That water right holders have the law on their side does not make this situation right. Basic water right management tools available to the state — such as requiring measurement of all water diversions, enforcing against wasteful use of water and establishing efficiency standards — should be fully utilized. But people also need to learn to share.
In the Deschutes Basin it is widely believed that, unlike other areas of the state, there is enough water to meet all needs — agricultural, municipal and instream.
Creative solutions supported by wide-ranging stakeholder groups have helped many stressed streams of the Deschutes. Recently, a broad spectrum of water interests have come to the table to try to figure out a solution to the annual dewatering of the Upper Deschutes. While change can be difficult, WaterWatch believes that with some compromise that portion of the river will see a better future.
If nothing else, the outrage over this recent fish kill underscores the need to deliver solutions that substantially improve streamflows in the Upper Deschutes.