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Spotted Frog Listing Will Impact Water Management and Irrigation, Agricultural Practices, Development and Livestock Grazing

October 8, 2014

On August 29, 2014, the U.S. Fish and Wildlife Service (“USFWS”) issued its Final Rule listing the Oregon Spotted Frog as a “Threatened Species” under the Endangered Species Act. [1] The listing is intended to protect the species throughout its range, which extends from extreme southwestern British Columbia south through the Puget Trough and in the Cascade Range from south-central Washington to the Klamath Basin in southern Oregon. The listing will affect property development, irrigation activity, water management and diversions, agricultural practices and livestock grazing. A draft rule designating areas of critical habitat in Oregon and Washington was issued by the USFWS in August, 2013 with a final rule expected by the end of 2014.[2]

The Spotted Frog and Its Range

The Oregon spotted frog is named for the characteristic black spots that cover its head, back and legs. The frog is a highly aquatic species, inhabiting areas of wetlands and rarely emerging onto land. The historic range of the Oregon Spotted Frog has been reduced by up to 90 percent, leaving reduced and genetically isolated populations that are particularly vulnerable to human activity, disease, predation and climate change. The USFWS listing alleges that frog habitat is impacted or destroyed by human activities that result in the loss of wetlands, hydrologic changes, reduced water quality and the alteration of native vegetation. The USFWS has determined that imminent threats place the frog at risk of becoming in danger of extinction in the foreseeable future throughout all or a significant portion of its range.

Oregon spotted frogs occur in lower elevations in British Columbia and the State of Washington. In Washington, populations occur in Whatcom, Skagit, Thurston , Skamania and Klickitat counties. In Oregon, spotted frogs have a very limited distribution west of the Cascade range and are considered to have been extirpated in the Willamette Valley. In western Oregon, the spotted frog is restricted to a few lakes in the upper watersheds of the McKenzie and Middle Fork of the Willamette River. Generally, spotted frogs in the State of Oregon are found in higher elevation areas of Jackson, Lane, Deschutes, Crook, Wasco and Klamath counties. The Oregon spotted frog is found in or near a perennial body of water, such as a spring, pond, lake, sluggish stream, irrigation canal or roadside stream. The frog breeds in shallow pools that are near flowing water, or which are connected to larger bodies of water during seasonally high water or at flood stage. Vegetation must be low or sparse in areas where eggs are laid, with full sun exposure as a significant factor in the selection of egg laying habitat. Frogs are not typically found under a full forest canopy.

ESA Listing

The ESA listing and associated designation of critical habitat will preclude any actions that will result in harm to the spotted frog on federal, state and private lands. [3] Severe modification of spotted frog habitat can constitute “harm” and result in significant civil and criminal liability.[4] Any activities requiring federal approval, funding or actions in areas designated as critical habitat (even if on private property) will be subject to direct consultation with the USFWS under Section 7 of the ESA.[5] Consultation requires the acting federal agency to consult with USFWS to ensure that the federalized action is not likely to result in the destruction or adverse modification of critical habitat.[6] If the federalized action is likely to cause such an effect, then special management measures, termed “reasonable and prudent alternatives” will be imposed to avoid destruction or adverse modification of habitat. Such measures can be very restrictive and are likely to significantly impact many of the federal permits that are currently issued by agencies on a routine basis.  

Loss of Wetland Areas

The Oregon Spotted Frog is entirely dependent on areas of wetland for its habitat and breeding. The extensive loss of wetland areas in British Columbia, Oregon, Washington and California have worked to significantly reduce the frog’s historical range . Over the course of the last century, significant areas of wetlands have been drained and diked throughout the Pacific Northwest to facilitate agricultural production and development. While the historical rate of wetland loss has been dramatically reduced under existing state and federal regulations, critical areas of wetland habitat remain threatened. Currently, Section 404 of the Clean Water Act[7] provides the primary tool for the protection of spotted frog habitat. Section 404 and its implementing regulations establish a permit process under which the U.S. Army Corps of Engineers (Army Corps) regulates the fill and discharge of material into established areas of wetlands. While this existing regulatory scheme has worked to significantly slow the loss and degradation of wetland areas, the Clean Water Act continues to authorize actions that are highly detrimental to spotted frog habitat. Section 404(f) of the Clean Water Act[8] contains a number of broad exceptions from its permitting requirements that authorize the discharge of fill material into critical habitat areas for the Spotted Frog. For example, the discharge of dredge and fill material is exempt if associated with “normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber and forest practices or upland soil and water conservation practices.”[9] While the exemption is limited to activities associated with ongoing farming and ranching operations, the USFWS has determined that exempted activities could result in the destruction of critical frog habitat.[10] USFWS has determined that many of the activities routinely authorized under existing regulatory exemptions, such as the construction and maintenance of irrigation water diversion structures and ongoing farm maintenance activities that result in the alteration or fill of small areas of wetlands can have a significant and detrimental impact on the Oregon Spotted Frog.

In addition to its specified exemptions, Section 404 of the Clean Water Act authorizes the Army Corps to issue general permits, “on a State, regional or nationwide basis” for any categories of activities that are characterized to cause minimal individual or cumulative “adverse environmental effects.”[11] The general permits issued by the Army Corps under this section can remain valid for up to five years. A nationwide permit can authorize an activity anywhere in the country, unless revoked by the district in a specific state or geographic region. The Army Corps reports that its nationwide permit system authorizes approximately 40,000 reported activities each year, together with an estimated 30,000 additional activities that are not required to be reported to the Army Corps. Currently, the Army Corps has issued 52 nationwide permits that authorize a variety of different activities that include residential developments, utility lines, road crossings, mining activities, and certain wetland and stream restoration projects. Certain actions authorized by the Army Corps under the nationwide permit program do not require any pre-construction notification to the agency.[12] Activities exempt from the pre-construction notification process include, the construction of outfall and intake structures, certain utility work, minor dredging activities, bank stabilization projects and specified “lineal transportation projects.” [13] In Washington and Oregon, Army Corps regulations provide for the issuance of at least 15 of the 52 categories of activities identified under the nationwide permit program, each of which could result in a permanent loss of up to 500 feet of stream bank and 1-acre of wetlands.[14]

Projects authorized under a nationwide permit receive minimal public and agency review and, in many cases, outside agency notification is not required.  In some instances, areas of wetland can impacted with no requirement of compensatory mitigation. For example, the discharge of fill material into .25 acres of wetlands can be authorized under the program without any requirement for compensatory mitigation.[15] In addition, wetland impacts can be authorized if a permittee demonstrates that a project footprint has been designed to avoid most wetland impacts and unavoidable impacts can be mitigated through wetland creation, restoration or enhancement.[16] In its evaluation of existing regulatory protections, USFWS noted that most riparian habitat restoration projects in the Pacific northwest are targeted towards various species of salmon and do not target the type of wetland areas necessary for spotted frog habitat. As a result, the USFWS has determined that the Army Corps regulatory scheme under Section 404 is “inadequate to reduce threats to the Oregon Spotted Frog.” The listing of the frog as a “threatened species” under the ESA provides the necessary link to insure habitat protections under existing regulatory mechanisms. Under both the individual and nationwide permit programs, no activities can be authorized if they are likely to directly or indirectly (1) jeopardize the continued existence of a threatened or endangered species or (2) destroy or adversely modify critical habitat of such species, unless a Section 7 consultation addressing the effects of the proposed activity has been completed.  

As a consequence of this listing, many of the fill and removal actions that are currently authorized by the Army Corps under established Section 404 exemptions and exclusions will no longer be authorized without full consultation with the USFWS under Section 7 of the ESA.

Hydrologic Changes- Water Diversions

The construction and continued operation of both flood control systems and agricultural water diversion structures have worked to the significant detriment of spotted frog habitat. From a historical perspective, the construction of dams and reservoirs throughout the Cascade range have flooded and eliminated many of the large marsh systems that have supported suitable frog habitat. In addition, the use of dike and ditch systems to promote agricultural activities has significantly reduced the amount of shallow overflow habitat that was historically created by natural flood events. The extreme water fluctuations associated with the operation of existing reservoirs continues to impact frog habitat.  Studies show that changes in water levels at critical periods in the frog’s life cycle, whether natural or human caused, will negatively affect the species. The timing of water storage and associated water releases in our regional system of reservoirs is associated with agricultural production, hydroelectric power and flood control. Winter river flows are typically maintained at extremely low levels so that irrigation water can be released throughout the summer months. The pattern and magnitude of scheduled water releases is often inconsistent with the spotted frog’s lifecycle. Areas of potential breeding habitat may have insufficient water during the time periods critical for the propagation of eggs and the movement of frogs. Conversely, higher summer water levels can reduce or eliminate the warm areas of emergent vegetation that provide suitable habitat.

As a result of these factors, reservoir operations and irrigation districts will now face regulation to protect and preserve the spotted frog and its habitat. Current operating conditions will be deemed to constitute a “take” under Section 9 of the ESA which prohibits any activity that, “kills or injures a listed species through impairing essential behavior such as breeding, feeding or sheltering.”[17] This additional layer of regulation will create significant challenges in the management of regional water supplies. Reservoir operators and irrigation districts are currently balancing a wide variety of different water needs (irrigation uses, municipal water supplies and recreational needs) with the challenges of climate change and existing regulations mandating the protection of salmon, steelhead, bull trout and other federally listed species. Requirements for additional water releases in the winter and spring for frogs will directly conflict with the need to preserve summer water flows for steelhead, salmon and bull trout. To continue their current operations, water and irrigation districts will be required to work directly with the USFWS to negotiate complex “Habitat Conservation Plans” that evaluate the impact of operations on the spotted frog and other listed species and contain measures that will minimize the potential for a “take” to the “maximum extent practicable.”[18]

Water Quality Impacts

USFWS has determined that poor water quality and water contamination are playing a key role in the decline of the spotted frog. Oregon spotted frogs are highly aquatic throughout their life cycle, making the species particularly sensitive to extended periods of exposure to waterborne contaminants. Poor water quality and contaminants have been shown to inhibit fertilization and embryonic development thereby reducing the growth and survival of the spotted frog. Pesticides, heavy metals, nitrates and nitrites and other contaminants introduced into the aquatic environment from urban and agricultural areas are known to negatively affect various life stages of the spotted frog.[19] Exposure to pesticides will lower a frog’s immune function, increasing risks of disease. Studies have shown that certain chemicals will reduce growth and delay development, making frogs more susceptible to predators and reducing mobility during time periods where movement between habitats is essential for survival.[20]

In connection with this listing, the Service has documented reduced water quality concerns in many of the sub-basins currently occupied by the frog. In Oregon, many of the streams associated with spotted frog habitat are listed by the Oregon Department of Environmental Quality as not meeting water quality standards for multiple parameters, including temperature, dissolved oxygen, chlorophyll, pH, aquatic weeds, turbidity, sedimentation and algae. Water borne sewage and non-point source runoff from housing and urban areas that include nutrients, toxic chemicals and sediments may be increasing in intensity to the detriment of frog habitat. Other threats to water quality include chemical spraying associated with agriculture, forestry practices and the maintenance of power line corridors. These practices now face additional regulation for the protection of the Oregon Spotted Frog.

The Clean Water Act requires the states to set water quality standards to protect beneficial uses and to identify sources of pollution in waters that fail to meet the established standards.[21] Authority for implementing these laws have been delegated to the states. Oregon adopted water quality standards for temperature, dissolved oxygen and anti-degradation that were approved by the EPA in 2004. Washington adopted revised water quality standards for temperature and oxygen that were approved by the EPA in 2008. The temperature standards contained in both the Oregon and Washington rules were largely intended to protect sensitive native salmonids. Developed water quality plans in a number of Washington sub-basins have identified water bodies that fail to meet a variety of parameters including temperature, fecal coliform, pH and dissolved oxygen. In areas where streams fail to meet applicable temperature and fecal coliform standards, the established water quality plans call for planting trees and shrubs and excluding cattle. These specific activities are not conducive to the creation and maintenance of the emergent vegetation conditions that are critical to Oregon spotted frog habitat. As a consequence of the listing, established state water quality plans in both Oregon and Washington will need to be revisited to provide additional protections for the Oregon Spotted Frog. Plan revisions are likely to result in additional restrictions on chemical spraying, agricultural activity and forestry practices.

Development

Hydrologic changes resulting from patterns of residential and commercial development have been determined to be detrimental to the frog and its habitat. The construction of roadways, homes and commercial areas creates additional impervious surfaces that increase the quantity and velocity of runoff into adjacent wetland areas. Manmade barriers such as roads, ditches and culverts can work to disconnect critical areas of spotted frog habitat, impeding the movement of the species between breeding and other critical areas.[22] In addition, the removal or alteration of natural vegetation around streams and waterways can impact both water quality and water quantity. Development activities that are determined to alter water flows, increase seasonal flooding or reduce areas of established wetlands will face additional regulation for the benefit of the spotted frog. The Service has specifically noted increased population pressures in nearly all of the Oregon and Washington Counties that provide areas of spotted frog habitat.[23] The Service speculates that increased population pressures in these areas will alter vegetation and increase water flows and seasonal flooding to the detriment of the frog and its habitat.[24] While the Service has not yet determined the extent or severity of the threat of development, it is certain that future development projects in affected Oregon and Washington counties will receive additional scrutiny and regulation for the protection of the frog.

Livestock Grazing

Livestock grazing has been determined to have a mixed impact on the spotted frog. On the one hand, grazing can result in the trampling of frogs, a reduction in water quality and adverse changes in frog habitat. At the same time, controlled grazing can benefit frog habitat through the reduction of heavy infestations of invasive plants such as “reed canarygrass,” which has reduced or eliminated frog habitat in a number of locations absent the application of alternative management measures.

The uncontrolled grazing of livestock (primarily horses and cows) can result in the direct mortality of adult frogs through trampling. The trampling of egg masses can also occur when livestock are permitted in shallow water areas of frog habitat. Livestock can also graze and trample emergent riparian vegetation, compact soils in riparian areas and reduce bank stability causing increased erosion and sedimentation. The Service has noted severe habitat modification caused by cattle grazing in a number of locations, particularly when large numbers of cattle are permitted to remain at springs used by frogs as overwintering sites.[25] The impacts of grazing can be exacerbated by drought, resulting in the drying of pools and the stranding of frogs.  

The effects of livestock grazing appear to vary based on site conditions, livestock numbers and the timing and intensity of grazing activity. As noted above, moderate levels of grazing activity may work to control invasive non-native vegetation for the benefit of frog habitat. Grazing has been identified as a cost effective management tool to reduce infestations of reed canarygrass. The Service has specifically noted that, “[i]n controlled circumstances, moderate grazing can be beneficial if it is the only practical method for controlling invasive, nonnative vegetation and sustaining short vegetation characteristics for egg laying.” [26] As a result of these findings, future grazing activities on federal grazing allotments will face additional regulations for the benefit of the spotted frog. The likely result of increased federal management measures will be a reduction in allowed grazing intensity, the adjustment of seasonal turn-outs of cattle and the imposition of additional management conditions such as required offsite watering sources, the protection of identified frog ponds and the installation of new water retention structures.

Conclusion

The “threatened” listing of the Oregon Spotted Frog and its associated designation of critical habitat will affect the regulation of water storage and diversion practices, water quality regulations, development activity and agricultural practices in specified Oregon and Washington Counties. In the implementation of this listing, federal regulators will be required to balance the needs of the spotted frog with competing legal requirements that provide for the protection of other federally listed species. To reconcile this conflict, affected interests will need to work directly with the USFWS to insure future practices are in compliance with all applicable legal requirements.

For more information, please contact Myles Conway or any member of Marten Law’s Natural Resources practice group.

[1] 79 Fed. Reg. 51658-51709 (August 29, 2014); Endangered Species Act 16 U.S.C. 1531 et seq.

[2] 79 Fed. Reg. 53538-53579 (August 29, 2013)

[3] 16 U.S.C. 1532(19)

[4] Id.

[5] 16 U.S.C. 1536(a)(2).

[6] See standards contained in 50 C.F.R.402

[7] 33 U.S.C. 1344

[8] 33 U.S.C. 1344(f)

[9] 33 U.S.C. 1344(f)(1)(A)

[10] See 79 Fed. Reg. 51682 (August 29, 2014). Note that if an otherwise exempted action represents a new use of water and the activity would result in a reduction in reach or the impairment of flow or circulation of water, including wetlands, the activity is not exempt. In general, any discharge of dredge or fill material that converts a wetland area to upland is not exempt and requires a 404 permit. 33 U.S.C. 1344(f)(2).

[11] 33 U.S.C. 1344(e)

[12] 33 CFR 330.1(e)

[13] See 33 CFR Part 330

[14] 79 Fed. Reg. 51682-51683 (August 29, 2014).

[15] Id.

[16] In connection with its listing decision, USFWS references a Washington State wetland mitigation evaluation finding a resulting loss of wetlands, with or without compensatory mitigation, because wetland creation and enhancement projects were minimally successful or not successful in their implementation. 79 Fed. Reg. 51682-51683 (August 29, 2014).

[17] 16 U.S.C 1538

[18] 16 U.S.C 1539

[19] 79 Fed. Reg. 51689-51690 (August 29, 2014).

[20] Id.

[21] 33 U.S.C 1313(d)

[22] 79 Fed. Reg. 51670 (August 29, 2014).

[23] 79 Fed. Reg. 51673- 51674 (August 29, 2014).

[24] Id.

[25]79 Fed. Reg. 51674-51675 (August 29, 2014).

[26] 79 Fed. Reg. 51675 (August 29, 2014).

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