Take Two! Frogs, Water, and the Endangered Species Act in Oregon

In late December we reported on a lawsuit filed by the Center for Biological Diversity (“Center”) that alleges the U.S. Bureau of Reclamation (“BOR”) is violating the Endangered Species Act (“ESA”) through its operation and maintenance of the Crane Prairie and Wickiup dams and reservoirs in the Upper Deschutes River Basin. On January 11, 2016, WaterWatch of Oregon (“WaterWatch”) filed a similar lawsuit in the same federal district court in Eugene.

WaterWatch alleges that the BOR’s operation and management of the Crane Prairie, Wickiup, and (additionally) Crescent Lake dams are causing harm to the spotted frogs in those areas. As in the Center's lawsuit, WaterWatch asserts that the harm is caused by the BOR altering the natural flows of the rivers and creeks that results in artificial flow levels throughout the year. WaterWatch writes that

[t]he altered flows harm spotted frogs by inundating habitat and spawning areas and by dewatering habitat and spawning areas at times and at flow levels that are harmful to various frog life stages, leaving eggs and juveniles stranded in too much or too little water and/or desiccated, and leaving adult and juveniles exposed to winter freezing.

In addition to suing the BOR, WaterWatch brought in as defendants the Central Oregon Irrigation District, the North Unit Irrigation District, and the Tumalo Irrigation District. As in the Center’s lawsuit, WaterWatch argues that the BOR and the other defendants (as owners and/or operators of the dams in question) are violating the ESA by unlawfully “taking” the spotted frog because of the harm caused by their operation and management of the dams. WaterWatch also alleges that the BOR failed to complete the required consultation with the U.S. Fish and Wildlife Service when the spotted frog was listed as an endangered species in 2014.

Given the similarity of these lawsuits, it is likely the federal district court in Eugene will consolidate them and address all the issues in one fell swoop. The WaterWatch lawsuit also caused us to chuckle by reminding us that environmental groups are just as susceptible to silos and not talking to each other as federal agencies are. Frogs, water, and ESA – take two!