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The death of a unique Oregon lake (OPINION)

By Guest Columnist Oregonian

on May 02, 2016 at 10:59 AM, updated May 02, 2016 at 12:09 PM
By Michael Blumm and Viki Nadol

Until recently, Lake Abert, Oregon’s only saltwater lake, supplied habitat for some 3 million migratory shorebirds and supported a commercial brine shrimp fishery. Now the desert lake, located about 30 miles north of Lakeview, is dying from a lack of water.

The lake’s surface area — once 64 square miles — is now less than five square miles, a 90 percent decline, due to drought and water diversions on the Chewaucan River, the saline lake’s principal water source. The decline in freshwater inflow has exposed alkali salts, creating a serious source of air pollution, and has also increased the lake’s salinity beyond levels tolerable to the lake’s shrimp, which have disappeared — along with the migratory birds which fed off them.

No one knows where the birds have gone. But Lake Abert was — with California’s Mono Lake and Utah’s Great Salt Lake — one of the only saltwater lakes on the thousands-of-miles Pacific flyway, so the loss of habitat is significant. Abert Lake’s death may be a migratory bird disaster. We don’t really know, since neither federal nor state officials have studied where the birds have gone, or what alternative food sources and habitat they are using. Nor has there been any government effort to ascertain or correct the causes of Lake Abert’s decline.

The reason for the lake’s loss of freshwater inflow is not entirely clear. Some claim that upstream ranchers and farmers have increased diversions. The ranchers and farmers claim the decline is due to drought (although the lake has declined several times more than the snowpack has) or perhaps due to a state and federally financed project diverting the Chewaucan to restore native redband trout to the town of Paisley.

Then, there is the private dam and reservoir for the River’s End Ranch that diverts the Chewaucan just above Lake Abert, approved with state agency recommendations that approval be conditioned on maintenance of lake levels. Last year, the state water agency even recommended extending the dam’s permit. The apparent plan is to simply ignore its effect on the lake.

Unlike the diverters, the lake itself has no recognized water rights. Lake Abert has the great misfortune of being located in Oregon, just 40 miles from California, where three decades ago Mono Lake was protected, considerably restored, and ultimately saved by a historic decision of the California Supreme Court. That court ruled that the state’s public trust doctrine (PTD) effectively gave Mono Lake water rights, thus requiring the state to exercise “continuous supervisory control” over the lake. The court also held that no water rights holder had a vested interest against the public trust.

Application of the PTD to Lake Abert would require the state to address and investigate the causes of the lake’s demise and act to avoid further unnecessary ecological loss. But Oregon officials, many of whom claim concern for the environment, have never considered the state’s PTD to apply to water rights or to Lake Abert. Instead, they assume they may ignore the lake’s death and the ecological catastrophe it spells, refusing to even examine why. Oregon, once celebrated for its leadership for its bottle bill, ocean beach access, and land-use regulation, is apparently a hollow shell of what it once was.

For example, the state attorney general has her lawyers fighting in court against any state PTD obligation to effectively combat climate change or to ensure public access to the allegedly privatized Oswego Lake. Winning those cases will doom Lake Abert.

Maybe Lake Abert, without a vocal recreational use constituency, is just too remote to be of concern to most Oregonians. If so, sign the lake’s death warrant, since state officials have made clear they think they have no obligation to protect Oregon’s only saltwater lake and the migratory birds that relied on it.

Michael Blumm is Jeffrey Bain Faculty Scholar and professor of law at Lewis & Clark Law School. Viki Nadol is master of laws graduate of the law school.

Source:http://www.oregonlive.com/opinion/index.ssf/2016/05/the_death_of_a_unique_oregon_l.html#incart_river_index

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