The Bulletin - U.S. Fish and Wildlife could face lawsuit over spotted frog protections

January 19, 2023
The Bulletin - U.S. Fish and Wildlife could face lawsuit over spotted frog protections

A plan to protect the Oregon spotted frog in the Upper Deschutes River lacks teeth to be sufficiently effective.

That’s the assessment of the Center for Biological Diversity, a Tucson, Arizona-based nonprofit that wants federal agencies to make changes to the Deschutes Basin Habitat Conservation Plan, which is designed to protect the frog and several species of fish that inhabit the Deschutes River.

The plan is a collaboration of the eight irrigation districts in Central Oregon and the city of Prineville, created over 12 years with help from local environmental nonprofits to increase water flowing in the Deschutes River in winter.Last week the center sent a formal notice to two federal agencies who signed off on the plan — the U.S. Fish and Wildlife Service and the Bureau of Reclamation — that it intends to sue them for Endangered Species Act violations.

The agencies have 60 days to act before the center says it could start the litigation process.

The notice is addressed to Department of the Interior Secretary Deb Haaland, Bureau of Reclamation Commissioner Camille Calimlim Touton, and U.S. Fish and Wildlife Service Director Martha Williams.

The notice states the agencies have failed to ensure that the habitat conservation plan will not jeopardize the continued existence of the spotted frog or destroy its habitat in the Upper Deschutes Basin.

It’s addressed to Department of the Interior Secretary Deb Haaland, Bureau of Reclamation Commissioner Camille Calimlim Touton, and U.S. Fish and Wildlife Service Director Martha Williams.

Oregon spotted frogs — aquatic animals rarely found away from water —are listed as a threatened species under the Endangered Species Act. They are found across the Upper Deschutes Basin but their habitat in the Deschutes River has been decimated over the past 70 years since the construction of Wickiup Dam, which has dramatically changed the way the water naturally flowed.

Prior to the construction of Wickiup Dam in the 1940s, the spring-fed river was known for its year-round stability. The dam holds back water in winter for agricultural use and releases it in a torrent in the summer months. Conservationists say that fluctuation has widened the river channel and also disrupts the breeding of the spotted frog.The U.S. Fish and Wildlife Service spent a decade working with irrigation districts in Central Oregon to create a solution to protect the frog from further habitat loss, laying out a 30-year plan to gradually increase the flow of water during the winter months to benefit aquatic life.

In exchange for agreeing to conservation efforts — which mainly involve replacing leaky canals with pipeline — the eight irrigation districts in Central Oregon were given a permit that allows them to operate and avoid litigation even though their use of river water threatens wildlife habitat.

This is not the first time the plan has been attacked. In 2021, a North Unit Irrigation District farmer organized a meeting at the Deschutes County fairgrounds to discuss legal options to change the plan so that more water could be available for farmers, saying that the plan was preventing them from having enough water for their crops. Lawyers were called in by the farmer but no litigation ensued.

Currently around 100 cubic feet of water per second flows out of Wickiup Dam, up from around 25 cfs a decade ago, as a way to temporarily help the frog before future piping projects can save more water.The 100 cfs minimum applies to years one through seven of the conservation plan, after which 300 cfs is required in years eight through 12.

Finally, the flow in the Deschutes needs to be 400 to 500 cfs in winter from years 13 to 30.

Meg Townsend, an attorney at the center, cites findings from Fish and Wildlife that suggest the frog needs at least 500 to 600 cubic feet per second of flowing water.The conservation plan “never gets there in a 30-year timeframe,” she said.

“It only gets to 400 cfs and that is not sufficient to protect the frog and its habitat.”

Townsend said the Fish and Wildlife Service is simply perpetuating the current poor conditions in the river, and unless more urgent action is taken and more guarantees are made, the frog population will further decline or possibly become extinct in the area.

“What we are hoping is that the (agencies) will provide more specificity for the plan and more assurances that the measures that could actually help protect the frog and its habitat will occur,” said Townsend.

“We want to make sure that the frog gets enough water in the winter and that its habitat is protected in the summer from the high pulses of water that happen as water is released from Wickiup Dam.”

Addressing water waste is one way to improve water conservation in the Upper Deschutes, said Townsend. Another option is to advance a water-pumping project that would take water from Lake Billy Chinook and provide it to farmers in the North Unit Irrigation District. That project — which has an estimated cost of $350 million to $400 million — would make farmers less reliant on the water delivered in leaky canals.

“It’s just a concept but is a very good option for conserving the frog and a good option for helping to make sure that the people have the water they need. And yes it’s expensive but so is piping,” said Townsend.

The Fish and Wildlife Service said it does not comment on pending litigation.

Craig Horrell, the general manager of Central Oregon Irrigation District, said the lawsuit will only serve to distract from work being done to fulfill the obligations of the conservation plan.

“These kinds of outside groups threaten to undermine our region’s ability to manage our most precious resource in a way that benefits the frog, other fish and wildlife, our water resources, and our local economy,” said Horrell.

“The Center for Biological Diversity does not surprise me when it does this, but it has not been part of our collaborative effort.”-Michael Kohn

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