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U.S. District Court Denies Spotted Frog Injunction

April 20, 2016

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 (“ESA”) in 2014.[1] A Final Rule designating areas of critical habitat for the Oregon Spotted Frog is expected in spring 2016. The spotted frog listing and associated litigation now threatens water management and irrigation practices throughout the northwest. Pending litigation in the U.S. District Court for the District of Oregon challenges longstanding U.S. Bureau of Reclamation (“BOR”) and irrigation district operations of several large water projects in the Deschutes River Basin[2]. The lawsuits challenge water management and dam release practices. The cases raise difficult questions regarding the timing of river flows necessary to protect the spotted frog and its habitat. In a recent ruling, U.S. District Court Judge Ann Aiken declined to issue a preliminary injunction that would have required immediate and sweeping changes to flow levels on the Deschutes River. The Court ruled the requested injunction would “interfere with a collaborative process among relevant public and private stakeholders, potentially harm protected fish and tribal interests, and cause certain harm to surrounding communities and farmers.”[3]  Following this ruling, the USFWS will continue working with the affected irrigation districts and conservation groups to complete a Habitat Conservation Plan (“HCP”) that will govern future reservoir operations in the Deschutes River basin. The results of this ongoing process will likely impact water management practices in other areas where the spotted frog is located.

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 ESA listing states that significant portions of frog habitat have been 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 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.

The construction and continued operation of both flood control systems and agricultural water diversion structures have worked to the detriment of spotted frog habitat. The construction of dams and reservoirs throughout the Cascade Range have flooded and eliminated many of the large marsh systems that historically supported 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. Extreme water fluctuations from reservoir operations can also impact frog habitat. USFWS studies show that changes in water levels during critical periods of the frog’s life cycle, whether natural or human caused, can negatively affect the species. The timing of water storage and associated reservoir release patterns is commonly 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 District Court suits allege that the pattern and magnitude of scheduled water releases is often inconsistent with the spotted frog’s lifecycle.

ESA Listing- Section 7 Consultation

The ESA listing and associated designation of critical habitat precludes any actions that will result in harm to the spotted frog on federal, state and private lands.[4] Severe modification of spotted frog habitat can constitute “harm” and result in significant civil and criminal liability.[5] Any activities requiring federal approval, funding or actions in areas designated as critical habitat (even if on private property) are subject to direct consultation with the USFWS under Section 7 of the ESA.[6] 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.[7] 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. The Section 7 consultation process culminates in the issuance of a biological opinion determining whether the proposed agency action is “likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.”[8]

The BOR initiated what it characterizes as “limited” consultation with the USFWS regarding the spotted frog in 2015.[9] To date the agencies have exchanged necessary data, completed their hydrologic model of water operations and identified monitoring needs. BOR anticipates completion of a biological assessment in October 2016, with USFWS completing its final biological opinion in June 2017.

Critical Habitat Designation

The USFWS issued a proposed rule designating critical habitat for the spotted frog on August 29, 2013.[10] The final rule is expected to be issued in the spring of 2016. Section 3 of the ESA defines critical habitat as areas that are “essential to the conservation of the species” and “which may require special management considerations or protections.”  Designated areas of critical habitat are primarily limited to geographic areas occupied by the frog but can include areas not occupied at the time of listing based on a determination that such areas are “essential to the conservation of the species.” The USFWS proposes to designated 68,192 acres of land and approximately 24 stream miles in Oregon and Washington as critical habitat. The proposed critical habitat areas include lands under both public and private ownership.  The 14 areas proposed for critical habitat are: (1) Lower Chilliwack River; (2) South Nooksack River; (3) Samish River; (4) Black River; (5) White Salmon River; (6) Middle Klickitat River; (7) Lower Deschutes River; (8) Upper Deschutes River; (9) Little Deschutes River; (10) McKenzie River; (11) Middle Fork Willamette River; (12) Williamson River; (13) Upper Klamath Lake; and (14) Upper Klamath. The critical habitat designation includes approximately 24,398 acres of land in the Upper Deschutes River basin.   

Section 4(b) of the ESA authorizes USFWS to exclude an area from its critical habitat designation if the benefits of excluding the area outweigh the benefits of inclusion and will not result in the extinction of the frog. In connection with its final critical habitat rule, the USFWS is considering the exclusion of several areas- the Trout Lake Natural Area Preserve in Washington and the Sunriver/Crosswater and Old Mill Pond areas in Oregon.[11] In connection with the exclusion process, the USFWS will evaluate a variety of factors which may include: how ongoing conservation efforts provide for the conservation of essential habitat; the history and demonstrated success of ongoing conservation efforts; whether conservation plans have been finalized with a reasonable expectation of future implementation and funding and whether conservation plans contain monitoring and adaptive management programs to ensure planned conservation measures are effective in response to any new information and data obtained in the future. A decision on the proposed exclusion areas will be contained in the final critical habitat rule.   

Pending Lawsuits

Reservoir operations and irrigation districts face additional regulation to protect and preserve the spotted frog and its habitat. Section 9 of the ESA prohibits any “take” of the frog which is defined as any activity that “kills or injures a listed species through impairing essential behavior such as breeding, feeding or sheltering.”[12] This potential liability creates 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 can conflict with the need to preserve summer water flows for steelhead, salmon and bull trout. To continue their current operations, water and irrigation districts are working directly with the USFWS to negotiate complex HCP’s (discussed below) 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.”[13]

Conservation groups have filed two now consolidated cases in the U. S. District Court alleging that immediate changes are required to reservoir operations on the Deschutes River. The lawsuits allege that water management practices in the Deschutes River Basin are jeopardizing the survival and recovery of the spotted frog and its habitat. The first suit was filed by the “Center for Biological Diversity” against the BOR and alleges harm to the Oregon Spotted Frog based on BOR’s operation of the Crane Prairie and Wikiup dams on the Upper Deschutes River. The second lawsuit was filed by the Portland based “WaterWatch of Oregon” and names the BOR, together with the Central Oregon Irrigation District, the North Unit Irrigation District and the Tumalo Irrigation District as defendants.

The plaintiffs seek to enjoin continued reservoir operations, arguing that the altered river flows associated with ongoing dam and irrigation operations harm the spotted frog by “inundating habitat and spawning areas and by dewatering habitat and spawning areas at times and at flow levels that are harmful to various frog life stages, leaving eggs and juveniles stranded in too much or too little water and/or desiccated, and leaving adults and juveniles exposed to winter freezing.”[14]  Plaintiff seek to impose alternative flow and release patterns on the Upper Deschutes River that they believe provide better protection to the spotted frog and their habitat.[15]  The suits allege that extreme fluctuations in seasonal river levels below the dams have significantly altered channel morphology by eroding the streambank and de-stabilizing vegetation critical to the survival of the frog.

In response to the consolidated lawsuits, the BOR and irrigation district defendants argue that the Upper Deschutes Basin provides some of the best remaining habitat for the spotted frog. Evidence demonstrates that spotted frogs have existed in this area and adapted to flow regimes for over 70 years. The defendants argue there is no evidence that dam operations are likely to impact frog populations and that ongoing conservation efforts are likely to improve frog habitat.  The defendants also argue that plaintiffs request to modify or curtail long established river flow patterns would result in a “rapid, untested and extreme change in the hydrology of the entire sub-basin” which would adversely affect frog habitat.  In addition, the ongoing HCP process will result in specific mitigation measures to protect designed to protect frog habitat.

USWS has expressed concerns with the immediate and drastic flow changes requested by conservation groups in the ongoing lawsuit. USFWS notes there are significant gaps in scientific knowledge as to how the spotted frog has adopted to the highly altered environment of the upper Deschutes basin.[16] Natural river flows in the upper Deschutes Basin have been highly disrupted after 70 years of dam operations and regulated river flows. Regulated flows have created physical changes to the river channel and impacted the seasonal wetland areas that are critical to all life stages of the spotted frog. Any sudden or aggressive changes to river flows “may have an unintended negative impact to the spotted frog since the species has likely adapted to utilizing particular habitat within the altered flow regime that has been influencing ecological process within the river since dam construction.”[17]

The plaintiffs initially sought a preliminary injunction arguing the ongoing consultation and HCP process was insufficient to prevent imminent and irreparable harm to the spotted frog.  However, the District Court ruled against the requested injunction, finding a genuine dispute as to whether the plaintiffs requested relief would, in fact, benefit the frog or its habitat.  The court noted that an injunction would disrupt the ongoing, collaborative efforts by BOR, irrigation districts, the State of Oregon, tribal interests and affected stakeholders to address long-term changes to dam operations. In addition, an injunction would create hardship for area agriculture and create potential flood risks downstream of the dams.  

Ongoing Habitat Conservation Plan Process

The prohibition against a “take” of a threatened or endangered species under Section 9 of the ESA is not absolute.  A non-federal entity, such as an individual or irrigation district, can avoid liability under Section 9 of the ESA by obtaining an “incidental take permit” under Section 10 of the ESA.[18] To obtain an incidental take permit, the irrigation districts must negotiate an HCP with the USFWS.[19]  HCP’s provide for partnerships with non-federal parties to conserve the ecosystems upon which listed species depend, ultimately contributing to their recovery.[20]  An HCP must describe the anticipated effects of a proposed taking of a listed species and how those impacts will be minimized or mitigated. The HCP must also specify how funding will be achieved to accomplish conservation objectives.

Efforts to develop a multi-species HCP for the Deschutes River Basin have been ongoing since 2008. At that time, a number of the Deschutes basin irrigation districts (organized as the Deschutes Basin Board of Control), together with the City of Prineville, sought an incidental take permit for city and district activities that potentially impacted the Middle Columbia Steelhead, bull trout, the spotted frog and a number of currently unlisted species. The parties initiated the “Deschutes Basin Multi-Species Habitat Conservation” process which consists of state, federal, tribal and non-governmental entities working collaboratively to ensure that listed and sensitive species in the Deschutes basin are protected and conserved. The species currently covered under this ongoing HCP process include: the spotted frog, bull trout, Chinook salmon, steelhead, willow flycatcher and the yellow-breasted chat.[21] This collaborative effort to develop a habitat conservation plan covers a large geographic area that represents a substantial portion of the Deschutes basin’s 10,500 mile range. The planning effort includes a variety of federal, state and tribal experts, including reservoir managers, hydrologists and biologists.

A draft HCP is expected to be issued in 2016 with analysis under the National Environmental Policy Act (“NEPA”) to immediately follow in 2017. Under the current schedule, a draft HCP is expected for public comment in September 2017, with the plan finalized by February 2019. Biologists have determined that that additional study and analysis of the frog, reservoir flow regimes and the associated impacts on frog habitat are necessary to complete the HCP process.[22] To that end, affected parties have created the “OSF Technical Group,” which consists of scientists from USFWS, the U.S. Forest Service, the Oregon Department of Fish and Wildlife, the Oregon Water Resources Department and affected irrigation districts to develop specific measures to evaluate how hydrologic changes to river flows will affect the frog and their habitat.

In connection with the ongoing HCP process, USFWS has recommended that irrigators adjust river flows and dam releases in a manner that coincides with the spotted frog breeding season to improve water and habitat conditions. Based on the studies conducted to date, USFWS has indicated its support for “a gradual and adapted restoration approach, with considerable monitoring to assess and adjust follows to optimize conditions for the frog.”[23]  

Interim Measures to Protect the Frog

The OSF Technical Group has developed an operating regime and interim measures for the operation of Crane Prairie and Crescent Lake reservoirs that are intended to benefit the spotted frog and its habitat.  The interim measures will be implemented and monitored in connection with the development of a long- term flow management regime for the basin. In its development of the interim measures, the technical group considered the potential implications of making drastic changes to longstanding flow regimes that could inadvertently impact the existing and stable spotted frog populations in affected locales. The interim measures will be voluntarily implemented by affected irrigation districts[24] until the HCP process is completed.

The interim management measures voluntarily adopted by the irrigation districts include water storage limitations on the Crane Prairie, Wickiup and Crescent lake reservoirs, the prioritization and dedication of storage water and releases for the benefit of the spotted flog, minimal seasonal release and instream flow requirements to benefit breeding, rearing and wetland areas and measures to reduce annual fluctuations in water levels, particularly at the end of the scheduled irrigation season[25] The interim measures also include significant additional monitoring of known frog breeding locations. This includes the monitoring of wetland habitat conditions at known breeding locations during the October ramp-down of irrigation deliveries and periodic monitoring through the winter to access hydrologic conditions in wetland areas.[26] All monitoring is to be conducted under the guidance and direction of USFWS and the data obtained to be utilized in connection with the ongoing consultation and HCP processes.  The spotted frog has lived in habitat areas impacted by the reservoir operations for decades and the interim measures are designed to preserve and enhance habitat until more detailed conservation measures can be implemented through the HCP and consultation process.

Conclusion

The “threatened” listing of the Oregon Spotted Frog and its associated designation of critical habitat will affect water storage, dam releases and the delivery of irrigation water.  The USFWS and affected irrigation districts are working to complete an HCP that will specify new and additional limitations on the timing, flow and delivery of irrigation water in the Deschutes Basin. Prior to the completion of this process, irrigation districts are working to implement voluntary interim measures that are intended to protect and preserve the spotted frog and its habitat. The data, study and analysis utilized in the ongoing HCP process are likely to impact water management practices in other locales and will dictate acceptable water management practices in other areas where critical habitat has been designated. 

For more information please contact Myles Conway or any member of Marten Law’s Permitting and Environmental Review team.

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

[2] Case No. 6:15-CV-15-02358-TC, Case No. 6:16-CV-00035-TC, filed in the U.S. District Court for the District of Oregon, Eugene Division. The Arnold Irrigation District and the Lone Pine Irrigation District have intervened as defendants and the Confederated Tribes of the Warm Springs Reservation and the State of Oregon have appeared as amicus curiae

[3] U.S. District Court, Opinion and Order dated April 6, 2016 (Case Nos. 6:15-cv-02358-JR and 6:16-cv-00035-JR)

[4] 16 U.S.C. 1532(19)

[5] Id.

[6] 16 U.S.C. 1536(a)(2).

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

[8] 16 U.S.C.1536(b)(3)(A)

[9] Consultation has been limited because the BOR previously transferred operational control of the affected reservoirs in the Deschutes basin directly to the irrigation districts pursuant to contract. The U.S. retains title to the facilities but irrigation districts retain decision making authority regarding the storage and water releases necessary for environmental compliance.

[10] 78 Fed. Reg. 53538 (August 29, 2013)

[11] The Trout Lake area is managed by the Washington Department of Natural Resources under the Trout Lake Natural Area Plan. The Sunriver/Crosswater and Old Mill areas in Oregon are managed under “Candidate Conservation Agreements with Assurances” entered between private property owners and the USFWS. For a discussion of sites considered for exclusion from critical habitat, see 78 Fed. Reg 53554.

[12] 16 U.S.C 1538

[13] 16 U.S.C 1539

[14] WaterWatch of Oregon, First Amended Complaint for Declaratory and Injunctive Relief, Section 2

[15] In its preliminary injunction motion, the plaintiffs offered the Court what they characterized as a “Regulated Option” and a “Run-of-the-River” option for river flows until a Habitat Conservation Plan can be completed by USFWS. The “Regulated Option” would mandate specific flows from the reservoirs during critical periods for the frog. The “Run-of-the-River” option would require that the Crane Prairie and Wickiup reservoir controls be left open throughout the year, allowing natural flows to pass through the system and down the river.

[16] Declaration of USFWS Field Supervisor Bridget Moran, submitted in response to Plaintiff’s Motion of Preliminary Injunction, Center for Biological Diversity v. Bureau of Reclamation, et al, page 4.

[17] Moran Declaration, page 8

[18] 16 U.S.C. 1539

[19] 16 U.S.C. 1539(a)(2)(A)

[20] USFWS, Habitat Conservation Plans under the Endangered Species Act, April 2001

[21] In this process, the USFWS is working collaboratively with the National Oceanic and Atmospheric Administration (“NOAA”) to develop conservation measures for steelhead and salmon species under NOAA jurisdiction.

[22] The Deschutes Basin Study Working Group (a multi-stakeholder collaboration between state and federal agencies, affected irrigation districts, the Confederated Tribes of Warm Springs and interested conservation groups) has recognized the need for better scientific information to support water management decisions in the basin.

[23] Moran Declaration, page 4

[24] Arnold Irrigation District, Central Oregon Irrigation District, Lone Pine Irrigation District, North Unit Irrigation District and the Tumalo Irrigation District

[25] Deschutes Project Interim Operations Pending Completion of Section 7 Consultation, February 5, 2016

[26] Deschutes Project Interim Operations Pending Completion of Section 7 Consultation, February 5, 2016

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