Groundwater and streamflows in the Deschutes Basin are closely linked. In 1998, scientists confirmed what had been known for decades - groundwater feeds river flows in the Deschutes Basin. Because of this connection, groundwater pumping in the basin reduces stream flows in Central Oregon’s treasured rivers—the Deschutes, Metolius, Crooked and Wychus Creek. To address the reductions caused to streamflows protected by instream water rights and Oregon’s Scenic Waterway Act, Oregon determined that it could not issue new rights to pump groundwater without requiring “mitigation” to offset impacts to streamflows and instream water rights.   In 1998 Oregon put new groundwater permitting on hold and stakeholders were convened to help the state develop a groundwater mitigation plan.

In 2002, Oregon adopted rules containing the mitigation program. In 2005 the Oregon State Court of Appeals struck down those rules because they did not adequately protect Scenic Waterway Act streamflows or instream water rights in the basin. The law required year round protection of streamflows.   However, the 2005 Legislature rejected the Court of Appeals result and passed HB 3494 to let the mitigation rules program proceed without addressing any of the shortcomings identified by the court. HB 3494 included some important sideboards including a report to the Legislature in 2009 and a sunset of the rules program in 2014. 

The Deschutes Groundwater Mitigation Program has had mixed results.  In the summertime, mitigation efforts have been helpful in reducing impacts to streamflows.  The program has actually increased summer flows in the Middle Deschutes while holding Lower Deschutes River flows steady.  However, in the spring and fall months the Deschutes Mitigation Program is failing our rivers. State agency data confirms this result. In the spring and fall months, which are very important to fish, groundwater pumping continues to reduce streamflows. HB 2867 fails to address this defect in the mitigation program. 

It is important to note that the only interests being harmed by this program are instream water rights meant to protect flows for rivers and fish.  Municipalities and irrigation districts see no reduction in their water rights, as the state is not subtracting the flow losses caused by the mitigation program from their water rights.   

In 2008 the Water Resources Department convened a small group of stakeholders to review the groundwater mitigation rules. The group identified a short list of problems with the program including the fact that mitigation only occurs during the summer irrigation months. The group agreed on a few technical recommendations, but did not have adequate time to resolve the larger issues.  In 2009 the Water Resources Department submitted this report to the Legislature. . Most members of the workgroup agreed there would be further utility in attempting to address the issues that were identified but not resolved.  These discussions have not taken place as of yet. The rules are set to sunset in 2014.