In the spring of 2001, after drought conditions reduced the amount of water available in Upper Klamath Lake, Oregon, a federal judge ruled 1,400 farms would go without irrigation water, saying the Endangered Species Act (ESA) gave threatened and endangered fish highest priority during times of drought.
If a proposed water rights agreement between the town of Patagonia and The Nature Conservancy (TNC) had received the expected town council approval, the stage would have been set for a similar fate to befall the residents of this southern Arizona border town if drought reduced flows of Sonoita Creek through TNC’s Patagonia-Sonoita Creek Preserve. The circumstances in both communities were strikingly similar.
The Upper Klamath Lake is home to two species of sucker fish, both designated as endangered under the ESA. The mainstream Klamath River, which flows from Upper Klamath Lake, is inhabited by a threatened salmon.
The endangered Gila topminnow, and three threatened native fish, inhabit Sonoita Creek.
In Oregon, the biological opinions of the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service established that higher minimum levels in Upper Klamath Lake were necessary to sustain the endangered suckers, and increased flows in Klamath River were required for the threatened salmon. The biological opinions have been found by the National Academy of Sciences to be fundamentally flawed on technical and scientific grounds.
Similarly flawed are the streamflow data gathered by TNC employees and used in TNC’s application to the Arizona Department of Water Resources (ADWR) for instream flow appropriation–flows TNC had claimed were necessary to sustain native fish populations living in Sonoita Creek.
The biological opinion of the USFWS was based on a streamflow study of the Klamath River, referred to as the “Hardy Flows” report, prepared by Utah State University environmental engineer/biologist Dr. Thomas B. Hardy.
A biological study of the habitat requirements for the endangered and threatened fish of Sonoita Creek was performed for TNC by the firm Hardy, Addley and Associates, Inc., of Logan, Utah. Dr. Thomas B. Hardy and R.C. Addley are the principal partners of the firm.
Victory for the grassroots
Patagonia’s fiscal year 2001/2002 budget allocates just $9,000 for legal expenses. If a lawsuit challenging the town’s water use were filed in federal court under the ESA, the legal fees would almost certainly bankrupt the town.
The current population of the town of Patagonia is 881 residents, 64 percent of whom are of low to moderate income, with little or no resources to contribute toward a legal battle. Bankruptcy could cause property taxes to take a quantum leap, making it difficult or impossible for most Patagonians to continue living in the town where their families have lived for generations.
Fearful of the TNC proposal’s potential financial impact, community members banded together to file an official protest against the group’s application to ADWR. The Patagonians also successfully filed an initiative measure that has been placed on the town election ballot. The measure will seek voter approval of an ordinance requiring that, before town officials enter into any agreement or obligation affecting town water rights,
- full public hearings be held;
- the town council make scientific findings of fact that the agreement is in the best interests of the town, considering several factors; and
- the council approve the agreement by unanimous vote.
Because of these efforts by the citizens of Patagonia, TNC has withdrawn the proposed water rights agreement with the town and removed from ADWR consideration its application for instream flow appropriation.
No one would fault Patagonians if they had joyously celebrated their victory against TNC and its tax-exempt $2 billion annual budget. But reaction among the townfolk remains guarded.
Initiative organizers sponsored a gathering on February 2 to encourage public comment and open discussion of the proposed ordinance. They continue their efforts to register voters for the upcoming election, to ensure voter approval of the ordinance.
Randy Heiss is chairman of Unidos Hacemos Fuerza.