As follows is a timeline and overview of the steps that have resulted in the listing of the Oregon Spotted Frog as "threatened" under the federal Endangered Species Act. Additional posts to the blog will provide a more in-depth analysis of the listing as it potentially could affect dam operations on the Upper Deschutes River and related irrigation of agricultural land throughout the basin.
BACKGROUND
LISTING OF THE OREGON SPOTTED FROG AS
THREATENED UNDER THE FEDERAL ENDANGERED SPECIES ACT OF 1973
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| Rana Pretiosa - Oregon Spotted Frog |
A Timeline Up to Current Situation in February 2016:
- August 29, 2013 - US Fish and Wildlife Service issues a proposed rule designating critical habitat for the Oregon Spotted Frog that would encompass nearly 70,000 acres and 24 stream miles in Washington and Oregon. (The spotted frog had been noted by the USFWS as early as 1991 in a Federal Register list of hundreds of species as possible candidates for ESA listing).
- August 28, 2014 - The US Fish and Wildlife Service listed the Oregon Spotted Frog (Rana Pretiosa) as threatened under the federal Endangered Species Act. Concurrently the agency also designated "critical habitat" of the frog that includes areas from northern California into the Kalmath Basin and north into the Deschutes Basin which accounts for more than half of the nearly 70,000 acres. http://www.fws.gov/wafwo/species/osf/OSF_Listing%20Final%20Rule_29Aug2014.pdf .
- September 10, 2014 - USFS and the developer of the Old Mill District as well as related Old Mill businesses sign a 20-year Candidate Conservation Agreement with Assurances related to the Spotted Frog in the ares of the Old Mill District on the Deschutes River. As defined in the agreement, a CCAA is a “..voluntary agreement whereby landowners agree to manage their lands to remove or reduce threats to species at risk in return for assurances against additional regulatory requirements should that species ever be listed under the Endangered Species Act of 1973...” http://ecos.fws.gov/docs/plan_documents/ccaa/ccaa_1324.pdf
- Fall of 2014 - Seven irrigation districts and the City of Prineville acting through the Deschutes Basin Board of Control begin a $1.5 million Upper Deschutes River Basin Study, funded 50-50 with the Bureau of Reclamation, intended over a three-year period to “provide a current and broadly-shared basis for future water management in the basin..” http://dbbcirrigation.com/basin-study/
- December of 2016 - The Center for Biological Diversity, an Arizona environmental group, files suit in US District Court in Eugene arguing that operation of Craine Prairie and Wickiup Dams on the Upper Deschutes River damages spotted frog habitat.
- January of 2016 - WaterWatch of Oregon files suit against the Bureau of Reclamation, also contending the dam operations adversely impact spotted frog habitat. The federal court subsequently consolidates the two suits.
- February 8, 2016 - The National Parks Service announces placement of a 1.5 mile section of the Pilot Butte Canal operated by the Central Oregon Irrigation District on the National Register of Historic Places. The action creates doubts as to whether the irrigation district can proceed with earlier plans to pipe the ditch to conserve water lost to evaporation and leakage from open canals.
- February 10, 2016 - The Center for Biological Diversity and WaterWatch file a motion for an injunction, to be effective by the first week of April, that would alter historic dam operation to provide more natural river flows. The motion argues for two dam operating options on the mainstem of the Deschutes after April 1 and a separate option for Crescent Lake Reservoir.
- A “regulated” option for the main stem of the Deschutes and Crane Prairie Reservoir that would maintain summer flows of 770cfs (cubic feet per second) and 600cfs in winter in “most years” from Wickiup Reservoir outflow to Bend.
- A “run-of-the-river” option for the main stem of the Deschutes and Crane Prairie that would require Crane Prairie and Wickiup “be left open” (with Crane Prairie levels maintained at 4,443.3 feet) throughout the year.
- Maintain Crescent Lake Reservoir at a flow of 40cfs into Crescent Creek and the Little Deschutes above Wickiup. Essentially, plaintiff environmental groups’ argue in their motion for an injunction that a drastic change change in dam operation is necessary to “...avoid or at least minimize harm pending completion of a biological opinion and Habitat Conservation Plan, conditions in the upper Deschutes Basin must move to a state that is closer to natural flow conditions.” (In this case, Italics have been used instead of capitals as in the plaintiffs’ motion, IV, Case 6:15-cv-02358-TC-page 31) The environmental groups cite affidavits by frog biologists that large variations in water flows in the Deschutes River, as regulated by the dams, result in too little water in early Spring breeding periods followed by damaging high water that washes away eggs when flows increase to provide water downstream for irrigation. Fluctuating flows also prevent frogs from establishing stable breeding and rearing habitat areas and low winter flows do not provide adequate water for surviving colder weather, the environmental groups argue.
- February
10, 2016 - The Deschutes Basin
Board of Control responds to the motion for injunction that it would
require “...the court impose abrupt and severe restrictions on the use of
the reservoirs, which may completely eliminate the ability to store water
in them for irrigation purposes.”
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| Oregon Spotted Frog Range-USFWS |
The Basis for ESA Listing of the Oregon Spotted Frog:
Section 4 of the ESA stipulates
that listing decisions be made, “solely on the basis of the best scientific and
commercial data available.”
In its listing of the Oregon
Spotted Frog, USFWS cited a combination of factors leading to the species
decline, primarily loss of habitat for the frog’s various life cycles including
loss of wetlands by “land conversions;
hydrologic changes resulting from operation of existing water
diversions/manipulation structures, new and existing residential and road
developments, drought, and removal of beavers; changes in water temperature and
vegetation structure resulting from reed canarygrass invasions, plant
succession, and restoration plantings; and increased sedimentation, increased
water temperatures, reduced water quality, and vegetation changes resulting
from the timing and intensity of livestock grazing (or in some instances,
removal of livestock grazing at locations where it maintains vegetation
structure essential for breeding.”
Also noted were the “...introductions of bullfrogs and non-native
fishes..by predation, and indirectly by outcompeting or displacing them from
their habitat.”
At one time, USFWS
estimates, the approximately 2-4 inch frog was found in a range of 31
sub-basisns from the Lower Fraser River
of British Columbia south to the Pit River of northeastern California. At the
time of listing USFWS estimated that as much as 90 percent of the frog’s range
had been lost, and that it could have been extirpated from the Willamette
Valley of Oregon and all of California.
The Process following an ESA Listing:
Section 7 of ESA; “jeopardy”; “biological opinions”;
Habitat Conservation Plans “incidental take permits”and "economic analysis"
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| The Upper Deschutes below Wickiup Dam-Lee Hicks |
Section 7
requires the BOR to conduct a “biological
assessment” to determine if any
action will adversely affect a listed species, and provide that information to
the listing agency, USFWS, in the consultation process. USFWS is then obligated
to complete a “biological opinion”
that outlines the preferred objectives
and management plan to protect the species.
Complicating listing of the spotted frog in Central Oregon, irrigators and other stakeholders have been working toward development of a Habitat Conversation Plan, or HCP, although a biological opinion has not been completed to form the basis of future action. Moreover, the federal agencies, BOR and USFWS, have not completed their required Section 7 “consultation.” A HCP would provide stakeholders, including irrigation districts, an “incidental take permit” (ITP) under Section 10 of the ESA. This would enable legal protection against a violation of the ESA if a species is harmed providing the permit holder has otherwise complied with the HCP provisions.
The economic impacts of the listing
The listing agency is also required to conduct an "economic analysis" to determine if the potential economic effects of a listing outweigh the benefits. There were considerable written objections from Oregon and Washington cattlemen associations, several county commissions in Oregon and Washington, and Modoc County in California, along with individual ranchers and farmers on the basis of impacts to grazing and irrigation. However, USFWS in the listing as published in the Federal Register said, "The economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat....Because the Act's critical habitat protection requirements apply to Federal agency actions, few conflicts between critical habitat and private property rights should result...."
Responding to the Draft Economic Analysis in comments dated July 18, 2014, attorneys for the Deschutes Basin Board of Control wrote that the a listing of the frog should exempt routine irrigation district activies form ESA “take” prohibitions; (applying to harming a listed species), and that the proposed critical habitat designation in the Upper Deschutes was “unlawfully overbroad” for including existing reservoir operations.
Complicating listing of the spotted frog in Central Oregon, irrigators and other stakeholders have been working toward development of a Habitat Conversation Plan, or HCP, although a biological opinion has not been completed to form the basis of future action. Moreover, the federal agencies, BOR and USFWS, have not completed their required Section 7 “consultation.” A HCP would provide stakeholders, including irrigation districts, an “incidental take permit” (ITP) under Section 10 of the ESA. This would enable legal protection against a violation of the ESA if a species is harmed providing the permit holder has otherwise complied with the HCP provisions.
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| Reservoir levels 02.13.16 (link below for current data) |
The economic impacts of the listing
The listing agency is also required to conduct an "economic analysis" to determine if the potential economic effects of a listing outweigh the benefits. There were considerable written objections from Oregon and Washington cattlemen associations, several county commissions in Oregon and Washington, and Modoc County in California, along with individual ranchers and farmers on the basis of impacts to grazing and irrigation. However, USFWS in the listing as published in the Federal Register said, "The economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat....Because the Act's critical habitat protection requirements apply to Federal agency actions, few conflicts between critical habitat and private property rights should result...."
Responding to the Draft Economic Analysis in comments dated July 18, 2014, attorneys for the Deschutes Basin Board of Control wrote that the a listing of the frog should exempt routine irrigation district activies form ESA “take” prohibitions; (applying to harming a listed species), and that the proposed critical habitat designation in the Upper Deschutes was “unlawfully overbroad” for including existing reservoir operations.
Attorneys for the board also
wrote that the DEA overstated economic benefits that might result from
conservation measures in the basin, “in relation to the costs..” as well as
failed to consider “perception costs,” such as the perceived value of private land affected
by the ESA critical habitat decision.
Rather than assigning potential lost dollar value, the attorneys said the DEA, “involved nothing more than determining the cost was less than $100 million...(or) “that the public perception costs of the proposed crditical designation are more than zero but less than $100 milion per year.” Relying on that analysis wold be, “arbitrary and capricious,” according to the filed comments.
Rather than assigning potential lost dollar value, the attorneys said the DEA, “involved nothing more than determining the cost was less than $100 million...(or) “that the public perception costs of the proposed crditical designation are more than zero but less than $100 milion per year.” Relying on that analysis wold be, “arbitrary and capricious,” according to the filed comments.
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References & Source Material:
United States Fish and Wildlife Service-Overview of
Oregon Spotted Frog Listing, Habitat et. al.
The Endangered Species Act - A Primer
by Patrick W. Ryan and Galen Schuler, Perkins Coie
LLP, Seattle, WA
A Primer on the Endangered Species Act: The Species
List, Take Prohibition, Permits, Federal
Consultation Requirements
by Cherise M. Gaffney, Stoel Rives LLP, Seattle, WA
Deschutes Basin Board of Control-Deschutes Project
Interim Operations Through Completion of Section 7 Consultation
http://www.northunitid.com/images/guidelines/dbbc%20interim%20operations%20fact%20sheet%202-9-16.pdf
Summary of Deschutes Reservoir Operations under
Preliminary Injunction Sought by CBD (Center for Biological Diversity) and
WaterWatch)
Bureau of Reclamation, Pacific Northwest Region-
Major Storage Reservoirs in the Deschutes Basin (includes graphs and charts with historic reservoir storage and stream flow data)
http://www.usbr.gov/pn/hydromet/destea.html
http://www.usbr.gov/pn/hydromet/desesatea.html
compiled by R. Lee Hicks
