As Winter gradually gives way to Spring, a small amphibian
is preparing to breed in the upper
reaches of the Deschutes River Basin's reservoirs and streams.
According to biologists its egg sacs along the banks in
marshy areas will need a reliable, early blanket of water--but not a
torrent-- to continue the life cycle to maturity.
How much of that water should be available and how it
should be released from the dams that regulate the mainstem Deschutes River are
issues now the subject of policy and legal wrangling that could affect the
future of agriculture and the broader Central Oregon economy.
At the center of the discussion is the Oregon Spotted
Frog (Rana Pretiosa), barely 4 inches
at most when grown, a species the US Fish and Wildlife Service listed in August
of 2014 as “threatened" under the Endangered Species Act in the Deschutes Basin.
The spotlight has turned to Central Oregon as
biologists have determined the spotted frog has disappeared west of the
Cascades and through much of its range that once extended from British Columbia
down to northern California.
In anticipation of the ESA listing for many months
Central Oregon irrigators who stand to
be most directly affected have been working with other parties including
federal agencies to develop what is known
under the species law as a Habitat Conservation Plan.
If approved, the HCP would result in USFWS issuing an
“incidental take permit” protecting irrigators and others from harm or “take”
of the frog if they followed provisions of the ESA law and the HCP.
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| Wickiup Dam and the Deschutes River-BOR photo |
At the table have been representatives of the irrigation districts, Bureau
of Reclamation, which owns the dams on the upper Deschutes, the USFWS, native tribes and other stakeholders from government and private sectors. Initially the
emphasis has been on assessing what conservation measures could result in
benefits to the frog.
But that effort now appears to be put in doubt with the
filing of two lawsuits by environmental groups that question whether ongoing studies and significant stream conservation are enough. They argue the frog is imperiled to the extent
immediate relief is necessary in the form of changes in the way water is
released from the dams this Spring.
And in a Feb. 11 motion for an injunction environmental
attorneys asked the US District Court in Eugene to order, by April
1, alterations in dam operations that could result in much agricultural land being fallowed, or dramatic crop reductions during the
coming growing season.
Irrigators say the
measures would unreasonably restrict streamflows regulated by the dam,
including one option that would in effect create a “run-of-the-river” natural
flow and make water storage in Wickiup Reservoir virtually impossible. The injunction would also restrict storage in Crane Prairie Reservoir above Wickiup and Crescent Reservoir, which feeds Crescent Creek.
The Board of Control has emphasized that irrigators have
already agreed with the Bureau of Reclamation and USFWS to make substantial changes
in release of stored water from Wickiup to accommodate the frog. These include a phased gradual
flow increase in Spring ramp-up and an extended slower Fall ramp-down.
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| Rip-rap construction on Wickiup Dam - 1944 |
Much of the impact of reduced water would be felt in Jefferson County where approximately 50,000 acres are irrigated within the North Unit Irrigation District. Overall in Central Oregon an estimated $70 million in crops are grown,
including carrot seed, mint, chickpeas, garlic and hay among others.
However, in its Draft Economic Analysis of the ESA
listing, USFWS concluded that, “Because
the Act's critical habitat protection requirements apply to Federal agency
actions, few conflicts between critical habitat and private property rights
should result...."
The Board of Control responded on behalf of
irrigators that the listing of the
frog should exempt routine irrigation district activities from ESA “take”
prohibitions. They also say the critical habitat designation in the Upper
Deschutes was “unlawfully overbroad” for including existing reservoir
operations.
The timeline of listing the spotted frog within the
Deschutes Basin extends as far back as 1991 when it was mentioned among
hundreds of other species as a potential ESA candidate. Then starting in 2003
there were petitions to list the frog, but USFWS had other priorities and it was not
until 2013 that the process was set in motion for the present frog listing.
There are a number of complicated factors that bear on
the evolving activities related to the listing:
- Although stakeholders working on an habitat conservation plan are concentrating mostly on water conservation, some biologists say managing the timing of flows could be as important to the frog’s life cycle.
- Most programs in the Deschutes have focused on improving instream flows for fish such as steelhead returning to some basin watersheds, and native bull trout. As recently as 2012 a Deschutes River Conservancy background paper on water storage and flows in the basin made no mention of the spotted frog.
- Related to the HCP process, Section 7 of the ESA requiring consultation of the federal agencies--Bureau of Reclamation and USFWS--is in the very early stages.
- A “biological opinion” by USFWS outlining recommended measures to avoid “take” of the spotted frog will likely be months in the making.
As the various efforts related to the ESA
listing continue, the environmentalists in their motion for injunction have
argued that action is needed immediately to avoid “irreparable harm” to the
frog.
Decisions in previous ESA litigation, they argue, have
established that, “the equities and public interest factors always tip in favor
of the protected species,” citing a 9th Circuit Court of Appeals
opinion.
` Until the ESA Section 7 consultation of the federal Bureau
of Reclamation and Fish and Wildlife Service and a Habitat Conservation Plan
are completed, the court should order immediate changes to dam operations, the
motion for injunction argues.
Looking back at the ESA’s history
At
its inception the 1973 Endangered Species Act enjoyed widespread Congressional
and Presidential support to the extent nearly unfathomable in today’s
contentious political climate.
In
July of 1973 the bill passed the Senate unanimously 92-0 and in September
of that year sailed through the House by a 390-14 vote before being reconciled in conference
and passed 355-4 in the House before signing Dec. 28, 1973 by President Nixon,
who had supported the legislation from its start.
Over
its 43 year history the ESA has engendered spirited and at times bitter debate
over the costs and benefits of saving certain species. In some cases a listed
species has resulted in the demise and delay of major public construction projects,
such as dams, and numerous private developments.
And
in other instances it has halted irrigation of agricultural land and was a factor in severely restricting the Northwest timber industry over the past
decades after listings of the spotted owl.
Among
the notable successes, the ESA has resulted in the survival and ultimate
thriving of the American Bald Eagle, once on the verge of extinction. Also
protected as threatened under the ESA, the population of the grizzly bear, ursus arctos horribilis, has increased
substantially in parts of its historic habitat in the lower 48 states. And the
sometimes controversial recovery of the gray wolf is attributed part to ESA
protection and managed
reintroduction.
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| The Grizzly is still listed as threatened in the lower 48 |
In
areas of the West Coast, several salmon species along with steelhead and bull
trout are now protected by decisions of one or both of “the services,” US Fish
and Wildlife and National Marine Fisheries Service, which have primary
authority for listings under the ESA.
In
recent years the law has faced, and thus far withstood, repeated attempts to
soften what critics say are its inflexible and unrealistic provisions. Yet it’s
this same “absolutist” fidelity to any threatened or endangered species that
its supporters defend so determinedly. In the debate over the ESA, finding a
middle ground is usually difficult.
And
the battles over species usually involve legions of attorneys, from
environmental advocates to those representing major corporate interests or small
landowners striving to maintain control over their land and economic welfare.
In what might be interpreted as a cynical--but to the point--observation a leading official of an ESA listing agency some years ago was explaining various
terms such as HCP, ITP and biological opinions to a continuing education
seminar of lawyers in Seattle.
“These
are all terms you’ll need to be familiar with if you’re to make money with the
ESA,” the presenter concluded.
Responsible
Agencies and Key provisions of the ESA
Two federal agencies are responsible
for listing species under the ESA and overseeing actions of other federal,
state and private interests related to species management and recover.
Under the US Department of Commerce,
National Marine Fisheries Service, which might be called a sub-agency of the
National Oceanic and Atmospheric Agency (NOAA), is responsible for marine
species including ocean migrating, or anadramous, fish such as salmon and
steelhead
US Fish and Wildlife Service, the other key
government agency, is part of the Department of Interior. It is responsible for
wildlife that could include plants as well as non ocean-migratory fish such as
bull trout and West slope cutthroat trout and the sage grouse.
Section
3 of the ESA affords protection for
all endangered and threatened species, "other than a species of the Class Insect
determined ..... to constitute a pest whose protection under the provisions of
this Act would present an overwhelming and overriding risk to man."
Some observers have interpreted the broad
powers of the ESA as protecting “all creatures great and small.” These have
included what biologists call “charismatic megafauna” such as the grizzly bear,
to the Delhi Sands flower-loving fly in Southern California.
Section 3 also defines "critical
habitat" as the, "specific areas within the geographical area
occupied by the species, at the time it is listed".. "specific areas
outside the geographical area occupied by the species"... "(that are
determined) essential for the conservation of the species," and,
"(areas) for which no critical habitat has heretofore been
established."
Although broad in scope, Section 3 does
provide that, "Except in those circumstances determined by the Secretary
critical habitat shall not include the entire geographical area which can be
occupied by the threatened or endangered species.."
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| Delhi Sands flower-loving fly |
In practice, the interpretation of habitat
is left largely at the agency rather than cabinet level, leaving "the
Services," as they’re known, with substantial power to make decisions.
Those decisions that result in listings must
be made, "solely on the basis of the best scientific and commercial data
available." Besides Section 3, the sections most often
cited in ESA discussions and media coverage include:
Section
4 stipulates that listing decisions
be made, "solely on the basis of the best scientific and commercial data
available to (the cabinet level officials) after conducting a review of the
status of the species and after taking into account those efforts, if any,
being made by any State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species.."
Section
4(b) provides that an agency can
designate "critical habitat, and make revisions thereto...on the basis of
the best scientific data available and after taking into consideration the
economic impact, and any other relevant impact..." But the law allows for
exclusion of, "any area from critical habitat if (the secretary of the
cabinet department) determines that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat, unless he
determines, based on the best scientific and commercial data available, that
the failure to designate such area as critical habitat will result in the
extinction of the species concerned."
Section
4(d) applies to threatened, rather
than endangered species, and requires issues regulations deemed,
"necessary and advisable to provide for the conservation of such
species."
Section 7 requires that federal agencies
"in consultation with" the listing agency "insure that any
action authorized, funded, or carried out by such agency ... is not likely to
jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of habitat of such
species ... after consultation as appropriate with affected States, to be
critical, unless such agency has been granted an exemption.... In fulfilling
the requirements of this paragraph each agency shall use the best scientific
and commercial data available."
Section
9 defines the responsibilities and
jurisdictions of ESA for "private persons," making it unlawful for
landowners to "take" threatened or endangered species.
Section
10 provides a remedy for allowing
the, "take" of a listed species with a permit, know as an
"incidental take permit."A permit to take listed species cannot be
issued, "unless the applicant therefore submits...a conservation plan that
specifies..the impact which will likely result...steps the applicant will take
to minimize and mitigate (them)..funding that will be available..(and) what
alternatives actions to such taking the applicant considered.."
