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Judge denies injunction to protect spotted frog

A federal judge has told plaintiffs that she's inclined to rule against their request for an injunction to modify water flow at Central Oregon reservoirs to benefit the Oregon spotted frog.
Mateusz Perkowski

Capital Press

Published on March 22, 2016 2:30PM

Last changed on March 22, 2016 4:41PM

A federal judge denied a petition for a proposed preliminary injunction to change management of reservoirs on Oregon’s Deschutes River during a hearing March 22 at the Wayne L. Morse U.S. Courthouse in Eugene, Ore. Environmental groups sought the injunction to protect the Oregon spotted frog.

Mateusz Perkowski/Capital Press

A federal judge denied a petition for a proposed preliminary injunction to change management of reservoirs on Oregon’s Deschutes River during a hearing March 22 at the Wayne L. Morse U.S. Courthouse in Eugene, Ore. Environmental groups sought the injunction to protect the Oregon spotted frog.

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EUGENE, Ore. — A federal judge has rejected a request by environmentalists to drastically modify how water in several Central Oregon reservoirs is managed.

U.S. District Judge Ann Aiken said the environmental groups failed to show that such a preliminary injunction was justified to protect the threatened Oregon spotted frog.

“It was a very difficult burden for you and I don’t believe you’ve met it,” she said at the end of an oral argument hearing here March 22.

At the outset of the hearing, Aiken warned an overflow crowd “right off the bat” that she planned to deny the request.

While holding oral arguments is appropriate in a case of this magnitude, Aiken told environmentalists not to expect a “big surprise” at the conclusion of the hearing.

“You have a long way to go to persuade me,” she said.

The Center for Biological Diversity and Waterwatch of Oregon claim that water management at the Crane Prairie, Wickiup and Crescent Lake dams must be drastically altered to protect the threatened Oregon spotted frogs from further population declines.

“You have a long way to go to persuade me,” she said.

During oral arguments the two groups asked Aiken for a preliminary injunction that would restore flows in the streams and rivers on which the dams are located to more natural levels.

However, the U.S. Bureau of Reclamation and several irrigation districts countered that the frogs have adapted to water conditions in the 70 years since the dams were built, so a sudden disruption in how they’re operated will likely injure the species.

“We can’t flip it to Lewis and Clark days overnight,” said Beth Ginsberg, attorney for the irrigation districts.

Environmentalists risk harming the spotted frogs they want to protect by demanding major operational changes at three Central Oregon water reservoirs, according to the federal government.

Frogs actually benefit from a wetter habitat in some areas in late spring and summer, said Mike Eitel, attorney for the government.

“What the plaintiffs proposal does is takes those good conditions and ratchets them back,” said Eitel. “The current conditions are enhancing the quality of the downstream sites.”

The plaintiffs filed a lawsuit against the federal agency and three irrigation districts — Central Oregon, North Unit and Tumalo — earlier this year for allegedly violating the Endangered Species Act.

Their complaint alleges that reservoir operations have reversed the natural hydrology in associated rivers and creeks, which experience low flows during winter while water is stored and higher flows during the summer irrigation season.

Extreme seasonal fluctuations cause the frog’s eggs to dry up during low flows and exposes them to predators during high flows, the plaintiffs claim.

Water levels differ from year to year, creating unpredictability for female frogs that would otherwise return to the same breeding sites, according to the environmentalists.

Insufficient water flows in winter also reduce habitat for the frogs, forcing them to congregate in marginal areas where they’re vulnerable to predation, the plaintiffs argue.

“If they continue dropping to these low water flows, these frogs are going to keep dying,” said Lauren Rule, attorney for the Center for Biological Diversity.

Under the preliminary injunction proposed by plaintiffs, the Bureau of Reclamation and irrigation districts would operate the reservoirs under a “regulated option” — with higher winter flows and lower summer flows set a fixed levels — or a “run-of-the-river option,” under which dam controls would be left open to mimic natural fluctuations.

The Bureau of Reclamation asked the judge to reject the preliminary injunction request because there’s no evidence the frog’s population will suddenly deteriorate without these measures.

“It’s not going to have the effect the plaintiffs think it’s going to have,” said Eitel. “You could have very drastic consequences for this frog population.”

Such “aggressive and immediate” actions aren’t justified by science and wouldn’t work in the best interest of the species, which is more likely to respond positively to gradual changes, the federal agency said.

The “regulated option” and the “run-of-the-river” option are inconsistent with each other, since unmanaged flows of the river could result in lower water levels than environmentalists claim are necessary under the “regulated option,” according to the Bureau of Reclamation.

Reducing flows in summer would eliminate some frog habitat while greater winter volumes could overwhelm the species with cold water to which it’s now unaccustomed, the agency said.

The plaintiffs have also failed to give the irrigation districts credit for conservation measures aimed at improving the frog’s chances of survival, the Bureau of Reclamation said.

These steps are being implemented while federal agencies consult on the impact of dam operations on Oregon spotted frogs and develop a broader “habitat conservation plan” that preserves several protected species in the region, as required by the ESA, the agency said.

Rule, the environmentalists’ attorney, said the habitat conservation plan has already taken eight years so far and frogs cannot wait “eons” for it to be completed.

Beth Ginsberg, attorney for the irrigation districts, said the habitat conservation plan will be based on the best science and input from multiple groups and agencies, including Waterwatch of Oregon.

“They’ve become impatient with it, but the solution is not to throw the baby out with the bath water,” she said.



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