Frogs, Water, and the Endangered Species Act in Oregon

Oregon spotted frogs and their habitats are being harmed because of the way the U.S. Bureau of Reclamation (“BOR”) operates and maintains some reservoirs in the Upper Deschutes River Basin, so asserts the Center for Biological Diversity (“the Center”) in a lawsuit filed against the BOR on December 18, 2015 in federal district court in Eugene.

In the complaint, the Center argues that the

[BOR’s] continuing operation and maintenance of Crane Prairie Dam and Reservoir and Wickiup Dam and Reservoir [] violat[es] the Endangered Species Act (“ESA”) due  to impacts on Oregon spotted frog populations in the Upper Deschutes Basin of central Oregon. Oregon spotted frog is a threatened species under the ESA, and changes to normal water flows caused by operation of Crane Prairie and Wickiup dams impairs Oregon spotted frogs and their habitat around the reservoirs and downstream along the Upper Deschutes River.

Under the ESA, the BOR is required to either conduct a new ESA consultation or reinitiate the prior consultation if and when a new endangered species is listed for a certain area.  BOR consulted with the U. S. Fish and Wildlife Service for operational impacts to listed species in the Deschutes River Basin in 2003. The Oregon spotted frog was listed as an endangered species on August 29, 2014. The lawsuit alleges a failure by BOR to complete the required ESA consultation in response to the 2014 listing.

The complaint alleges that the amount and timing of BOR water disbursements harms the frogs’ ability to survive and flourish. The Center alleges that the BOR’s method of water disbursement results in a “taking” of the Oregon spotted frogs without legal authorization, which is a violation of the ESA. An unlawful “taking” includes harming the species, and the term “harm” is defined to include “significant habitat modification or degradation.” The Center also alleges that the BOR did not properly respond to a Freedom of Information Act ("FOIA") request that the Center submitted seeking various documents pertaining to the Oregon spotted frog and the BOR’s operation and maintenance of the reservoirs.

The Center asks the Court to declare the BOR in violation of two sections of the ESA (regarding the ESA consultation and the “taking”) and of FOIA; to require the BOR to provide unredacted copies of the records the Center requested; and to grant any other relief the Court deems appropriate.

The ultimate goal of the lawsuit is to restore a more natural annual cycle of flows out of the reservoirs. It is unclear what the impact will be on business and development; this is a fact-specific case focused on the east side of the Cascades near Bend. Whether it develops into a broad scale limitation on land use—as in the case of the spotted owl, salmon, and sage grouse—remains to be seen.