"In Oregon, rivers and streams belong to the public, but no law stops private water users from completely draining a stream. It is often perfectly legal to take the last drops from a river, and our state agencies do little to correct, or even document the problem," according to WaterWatch's Rivers Without Water, Oregon's Unnatural Disaster publication.
In 2014, the US Fish and Wildlife Service (USFW) listed the Oregon spotted frog as a threatened species under the Endangered Species Act. Deschutes, Lane, Klamath, Jackson, Wasco and Josephine counties are places where the spotted frog habitat potentially occurs. The spotted frog is native to the Pacific Northwest and is the most aquatic frog in the region—it spends most of its life in water, according to Oregon Fish and Wildlife.
On Jan. 11, WaterWatch of Oregon, a nonprofit conservation organization, filed a complaint against the U.S. Bureau of Reclamation, Central Oregon Irrigation District, North Unit Irrigation District and the Tumalo Irrigation District, under the Endangered Species Act which states that 90—but possibly 99 percent—of the spotted frogs' habitat was unusable and dry because of dam operations, which left water levels low in just the main channels. Sediment deposits also hindered the frogs' habitat by preventing the natural water flow from reaching its surroundings and by trapping the frog when water conditions are altered.
WaterWatch Communications Director Jim McCarthy says the organization spent eight years as part of a group trying to address river issues around the river basin including the stretch between the Wickiup and Bend. "When you treat the river like an irrigation ditch, it causes real harm to fish, aquatic insects, and water quality, not just the frogs," he says. "We've seen fish kills up the river as a result of these operations, so not only is this affecting the frogs, but it's killing trout and other native spices that are dependent on the river system."
Jannette Brimmer is an attorney for Earthjustice and is also an attorney for WaterWatch in this case. She says the Bureau of Land Reclamation knew about the issues with spotted frog habitat before the suit was filed. "The problem with frogs being in trouble has been on the table for a very long time," she says. "I know that in 2003 the Bureau of Reclamation was doing a consultation of biological opinion at that time for what the affects of the operations of the dams and reservoirs system was on a number of different species that were already listed in the system."
The Deschutes Basin Board of Control, which includes the Tumalo, North Unit and Central irrigation districts, released a statement responding to the lawsuit over the spotted frog: "This is the second lawsuit filed over the Oregon spotted frog, further straining collaborative efforts by irrigation districts, local farmers and ranchers, state and federal agencies and conservation groups to improve habitat for this species in Oregon's Deschutes Basin."
Shon Rae, with the Central Oregon Irrigation District says, "The lawsuit is taking funding resources and staff away from working on the Habitat Conservation Plan and other necessary conservation projects to do this litigation." The group has been working to establish the Deschutes Basin Habitat Conservation Plan since 2008 and has received $2.6 million in grants from the U.S. Fish and Wildlife Service. When the plan is complete, projected for 2018, it will make recommendations as to what will help the frogs' habitat. Rae says the districts will give their proposals to USFW, but that will take a couple of years. "It's not just in our hands," she says. "WaterWatch is one of the agencies that has been at the collaborative table in this process. That doesn't seem collaborative," says Rae.
A draft of the plan will go to USFW and National Marine Fisheries in order that the agencies can review
the plan in accordance with the National Environmental Policy Act Review and then a public comment period will occur. Once the final copy of the plan is drafted and approved, USFW issues an incidental take permit. According to the USFW Endangered Species Permits page, "Thus, permit holders can proceed with an activity that is legal in all other respects, but that results in the 'incidental' taking of a listed species."
McCarthy says WaterWatch is asking for river flows to be returned to levels that don't harm frogs. "We're not asking for the dams to be removed or the flows to be returned to the predevelopment state," he says. "We're asking for a science-based process to make that determination as required by law under the Endangered Species Act." McCarthy adds there is no law preventing rivers from being run dry in Oregon unless
the absence of water is affecting a protected area or an endangered species.
This is not going to be a popular move in Central Oregon. "If environmental groups genuinely want to preserve habitat for the spotted frog," Martin Richards of Madras writes, "they would contribute their support, expertise and financial resources to the progress we have already made to conserve water and protect species."
Irrigated agriculture in Central Oregon requires access to water. Richards' letter gives voice to the fear of losing water that is a real concern for local farmers and ranchers. "We are already feeling the impact of the lawsuits," Richards says. "Now is the time when farmers and ranchers need to decide what crops to plant, purchase inputs for the coming season and invest in improvements to our businesses...the negative effect is beginning to ripple through the economy and the workforce."
As to the reason for the lack of water protection laws, WaterWatch attorney Brimmer says, "Your guess is as good as mine." She adds, "Part of the problem is the law hasn't caught up with our scientific understanding of how things are connected. It's not just that stream that you're running dry, there's that whole cascade of effects that comes from that," she says.