This article was published on: 05/9/16 12:00 AM
More than 65,000 acres have been designated “critical habitat” for the Oregon spotted frog, a threatened species at the center of a lawsuit over irrigation.
The U.S. Fish and Wildlife Service says the critical habitat designation in Oregon and Washington, which includes 20 miles of river, provides a “road map” to guide conservation efforts for the frog.
While the federal government claims the designation won’t have regulatory impacts on private property, attorneys for natural resource industries say critical habitat does pose a concern for landowners.
Actions that adversely affect or slow the recovery of critical habitat are considered unlawful “take” that’s prohibited by the Endangered Species Act, said Karen Budd-Falen, a natural resource attorney in Wyoming.
“If I’m a private landowner, I’m going to be a little nervous,” she said.
Several environmental groups are already suing the federal government over the impact that irrigation reservoirs in Oregon’s Deschutes Basin allegedly have on the frog.
A federal judge recently rejected the plaintiffs’ request for an injunction that would greatly impact how the reservoirs are managed and reduce water availability for irrigators.
The three reservoirs — Wickiup, Crane Prairie and Crescent Lake — are included in the critical habitat designation, as is much of the Deschutes River between the dams and Bend, Ore., said Bridget Moran, field supervisor of the Fish and Wildlife Service office in Bend.
Portions of the river directly below the reservoirs were excluded from the critical habitat because large volumes of flowing water have degraded wetlands where the frogs live, she said.
“We have certainly identified water management as one of the threats” to the frog, but irrigators are cooperating with the agency to mitigate those effects, Moran said.
Nearly 3,500 acres originally proposed for the frog’s critical habitat were excluded from the final designation because landowners agreed to voluntary conservation measures, such as holding water in ditches for longer periods of time, she said.
“It needs water for all stages of its life,” Moran said.
Budd-Falen, the natural resource attorney, said the government’s assurances that critical habitat doesn’t affect landowners are “completely hollow.”
“Take applies across the board, whether you’re talking about federal lands or private lands,” she said.
If a private property is included in “critical habitat,” that makes it easier for environmental groups to argue that actions by a landowner are unlawfully harming the protected species, said Scott Horngren, an attorney with the Western Resources Legal Center, which represents natural resource industries.
Critical habitat creates a “bull’s-eye” for reintroduction efforts, so if private property is eventually occupied by the species, that raises the possibility of the landowner facing “take” accusations, Horngren said.
“If I’m a private landowner, I don’t want to get swept up in these efforts to reintroduce the species on my land,” he said.
The presence of critical habitat also creates new obligations for landowners involved with the federal government, such as those receiving a conservation grant from the USDA, Budd-Falen said.
In such instances, activities on private property would require a time-consuming “consultation” to determine the effect a project has on the habitat, she said.
For example, one landowner had to undergo a consultation to haul logs across property owned by the U.S. Bureau of Land Management, Horngren said.