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NATURAL RESOURCE SCIENCE AND MANAGEMENT IN THE WEST

Collaborate or Litigate

Mar 5, 2018

Local collaboration faces off against outsider litigation in the long, slow process to help a threatened species

From his Chevy Silverado, Phil Fine watched heavy rain fill up an irrigation ditch on his family farm in central Oregon. An affable third generation farmer in Jefferson County, Fine relies on water from the Deschutes River to grow grass, carrot, and garlic seed; alfalfa and grain hay; and wheat. “We can’t do a thing without water,” Fine said. “That Deschutes River is why we’re all here.” Fine and other agriculturalists in the arid region have come to depend on the dams and reservoirs that alternately hold the Deschutes’ water back and then release it when farmers most need it to water their crops. The system, though imperfect, works well enough for irrigators. But the pressing question in central Oregon is what it means for a pocket-sized frog.

Photo of a frog sitting on reeds in a wetland

An Oregon spotted frog (Rana pretiosa) peers out from its wetland habitat. US Fish and Wildlife Service

In August 2014, the US Fish and Wildlife Service listed the Oregon spotted frog as threatened under the Endangered Species Act. Under the terms of the act, the frog’s habitat warranted immediate protection. Environmental advocates and conservation groups in central Oregon, long concerned about the Deschutes River’s degraded fish and wildlife habitat, erosion issues, and poor water quality, saw an opportunity to reverse the river’s decline in overall health. But agriculturalists such as Fine, who depend on seasonal variations in streamflow for irrigation, worried that the frog’s water needs might take precedence over their own. Some feared that the listing would trigger another crisis like the timber wars that waged in Oregon during the ’80s and ’90s, when efforts to protect the northern spotted owl from extinction led to an ideological clash between environmental and timber interests: logging restrictions in old-growth forests aimed at preserving the owl’s habitat left timber and mill workers feeling as though their livelihoods had been sacrificed to the ESA, while northern spotted owl numbers nevertheless dwindled. Everyone I spoke to in central Oregon wants the story of the spotted frog to take a more positive turn.

“Listing has forced a number of competing interests to come to the table to seek common ground for conserving the species,” explained Jay Bowerman, a local biologist who has studied the amphibian for nearly 20 years. With so much on the line for those who live and work in Deschutes River Basin communities like Bend, Madras, Prineville, and Warm Springs, myriad stakeholders have joined the spotted frog recovery effort. Together they seek to navigate the complexities of the Endangered Species Act and produce a plan to conserve the ecosystems upon which the frog depends—one that will pass muster with the federal government and address the nuanced economics of water, wildlife, and work in the region. But they will have to act quickly to outpace legal challenges from outside environmental groups dissatisfied with the speed and scale of local conservation.

Photo of the Deschutes River flowing through a verdant gorge in Oregon

The Deschutes River flows through central Oregon, providing water for both irrigation and wildlife.

Once common across Oregon and Washington, now the Oregon spotted frog, Rana pretiosa, occupies just 10 percent of its historic range. Small, isolated populations crop up throughout central Oregon in or near perennial water bodies—including the Deschutes River’s riparian zones, ponds, and even roadside ditches. The frog’s ecology is not well understood, but the amphibian, named for the inky blotches covering its head and back, is likely sensitive to changes in the river’s hydrologic system. The species is subject to other pressures too, such as loss of wetland habitat in a rapidly developing region and predation from introduced species like brook trout and bullfrogs.

Formal collaboration efforts related to spotted frog recovery actually got underway in central Oregon a decade ago. In 2008, eight irrigation districts joined the city of Prineville to prepare a habitat conservation plan for the Upper Deschutes Basin. The process galvanized a coalition of 20 stakeholders ranging from Portland General Electric to Trout Unlimited to steward several fish and wildlife species in the basin. At the time, the frog was still a candidate species. The resulting plan would map out a vision for protecting it and several other proposed, candidate, or listed species, including bull trout and steelhead. If approved by the USFWS, it would also act as a kind of insurance policy for irrigation districts, buffering them against costly civil and criminal penalties should they accidentally harm or kill a threatened or endangered species, or damage its habitat, all violations of the Endangered Species Act.

The irrigation district-led collaborative effort to safeguard species as well as irrigators’ livelihoods appeared to be off to a good start. A wide swath of people with differing perspectives and values were coming together to devise solutions. But six years later, when the USFWS released its decision to list the frog as threatened, the group still did not have a plan in place. “We should have been working harder, stronger, faster,” lamented Fine, who is also a member of the North Unit Irrigation District and Deschutes River Conservancy Boards. The latter is a Bend-based nonprofit working to improve leaky, aging irrigation canals and keep more Deschutes water instream.

Listing reignited grassroots engagement. One month after the spotted frog appeared in the Federal Register, a confederation of irrigation districts established the Basin Study Working Group with funding from the Bureau of Reclamation. The working group brought together constituents representing agriculture, conservation, local tribes, recreation, government, and industry to seek strategies for increasing flows in the Upper Deschutes while conserving water for cities and agriculture well into the future.

By initiating both the habitat conservation plan and the basin study as collaborative efforts, the irrigation districts hoped to get out in front of environmental concerns, and to better anticipate and mitigate water management issues that might imperil the frog or local farmers’ livelihoods. “I want to fix the river,” avowed Phil Fine. “I believe every species has a right to survive and potentially thrive, and I really mean that.” Some environmental groups declined to participate in the basin study, fearing that irrigators with the force of western water law on their side would retain too much power in the facilitated process. Others saw a rare opportunity to make headway on an intractable resource management issue.

Gail Snyder, co-founder of the nonprofit Coalition for the Deschutes, which promotes restoration and protection of the Deschutes River and its watershed, was among those who joined the basin study’s steering committee. For Snyder, these stakeholder-driven efforts ramped up during a critical time for the modern Deschutes, the lifeblood of the region. “Our entire economy in central Oregon really hinges on water,” Snyder said, her vowels revealing her Western Australian origins. The river fuels agriculture as well as the massive outdoor recreation and tourism economies woven into the fabric of central Oregon life. Snyder imagines such interests can coexist in a basin that can also one day win a clean bill of ecological health. “We can have a healthy river, we can have agriculture,” she averred.

Sprinklers on farmAs conservation planning advanced, new local alliances in central Oregon began to form. Fine described how Snyder introduced herself to him “at some water thing,” saying that she would like to sit down and talk. “So I ended up going to her house and sitting around her table for two hours, with her cat, drinking coffee and talking about water. She actually gets it. She understands all sides of it.”

“In order to have a successful outcome for the river, agriculture, and our community, we must have a truly collaborative process. We must talk to each other, treat each other with respect, and cooperate and compromise,” Snyder added. Still, by the close of 2015, after years of local conservation planning, stakeholders still had little to show in the way of tangible outcomes. Environmental advocacy organizations based outside of the region took note.

In January of 2016, the Center for Biological Diversity in Arizona and WaterWatch of Oregon, headquartered in Portland, filed twin lawsuits against three irrigation districts and the US Bureau of Reclamation (the agency that oversees western water storage, diversion, and delivery projects). The litigants asserted that the Crane Prairie, Wickiup, and Crescent Reservoirs and their dams damaged or destroyed frog habitat, and therefore violated the Endangered Species Act, and they called for a radical change to water management on the Deschutes and its tributaries. The Center for Biological Diversity and WaterWatch wanted minimum instream flows during the winter storage season to increase from 20 cubic feet per second to a minimum of 770 cfs to match historic flows in the Deschutes. In recent decades, flows in the Deschutes have ranged from 20 cfs during the winter, when irrigators divert water into upstream reservoirs for storage, to 2,000 cfs during summertime release. Increasing winter flows to 770 cfs would mean less stored water in the cold months, and leave many irrigators without sufficient water at their headgates during the growing season.

“We basically had to circle the wagons,” said Fine. “We were scared. We went into protection and survival mode.” Irrigators lined up to guard their livelihoods. For the next ten months, while the courts considered the lawsuit, agriculturalists felt as though they had been left in limbo. “I had 20 percent of my ground idle because of the frog,” Fine said, describing that period of uncertainty. “There are a lot of guys who lost a whole year’s production on quite a bit of ground because of the timing of the whole thing. It was a big deal in Jefferson County.”

In late 2016, the irrigators agreed to a settlement that called for temporarily increasing wintertime flows to 100 cfs. Fine says North Unit first agreed to the higher wintertime flows, and other districts followed suit, some begrudgingly. “We did it voluntarily,” said Fine, who predicts that the effects of the stopgap regime will vary from year to year. “In really good water years, it is not going to make much difference because we have really good inflows in the summer that will hopefully carry us through. But we’re just coming out of a drought cycle. If we get several drought years in a row, you’re going to see a lot of farm ground sitting idle because we don’t have the water to irrigate it.”

The settlement also compelled the Bureau of Reclamation to consult with the USFWS to determine how dam and reservoir operations might impact spotted frogs. In September 2017, biologists in the USFWS Bend Field Office submitted their 300-page “biological opinion,” concluding that the temporary changes to water management are unlikely to further jeopardize the frog or destroy its critical habitat. But in the document the USFWS also recommends the Bureau of Reclamation ramp up winter flows over the next 20 years to eventually reach 600 cfs, a number much closer to the river’s historic flows. And the opinion nudges along the collaborative work begun in 2008: the irrigation districts and other constituents will need to finalize a formal habitat conservation plan soon. The USFWS, which has already provided $3.6 million in grants to support planning, expects to publish the final plan by this summer.

The quick one-two of listing and lawsuit clearly shook up local stakeholders playing the long, slow game of species recovery. Irrigators regarded the suit as a setback to cooperation. On the heels of the settlement, Mike Britton, president of the Deschutes Basin Board of Control representing central Oregon’s eight irrigation districts, released a thinly veiled critique of the legal challenge: “The collaborative approach has proven successful in our region, and results in better outcomes than confrontation.” Scientists in the USFWS Bend Field Office, suddenly pressed to fast track their analysis of the impact of dams and reservoirs to the frog, felt the impact too. “Rather than spending time on important research and monitoring that allows us to develop effective conservation measures for the species, we must spend time addressing the legal aspects of the ESA,” wrote Bend-based USFWS biologist Jennifer O’Reilly in an email.

Now seemingly everyone fears the chilling effect of more litigation. When the parties settled the 2016 suit, the Center for Biological Diversity and WaterWatch reserved the right to contest the biological opinion. Almost every stakeholder in the basin believes they will, and that will likely cast a pall over the community’s ongoing collaborative efforts.

“If everything gets litigated, in the final analysis it just puts up bigger walls between the sides that need to be talking and working together,” observed Simon Wray, a veteran conservation biologist with the Oregon Department of Fish and Wildlife. “It’s a tool to get a process that is stalled moving, but it can have some pretty negative effects.”

Almost everyone I spoke with in the basin allowed that the local collaborative processes have moved slowly, often too slowly. But most also view litigation, and in particular the lawsuit from the out-of-state Center for Biological Diversity, as corrosive to local problem solving.

For irrigators committed to modernization measures, for instance, another legal tangle will almost certainly sidetrack projects to pipe or line canals and to improve on-farm efficiencies, projects intended to keep more water in the frog’s habitat. “We’re spending millions of dollars a year on attorneys,” Phil Fine told me. “That money could be going to water conservation projects.”

It may be too soon to tease out precisely how the lawsuit will affect local collaboration, and ultimately, the recovery of the Oregon spotted frog. On one hand, litigation shook trust in the region and tied up resources that might have otherwise gone to protecting the frog from extinction. But on the other, the specter of litigation, especially from outside the region, motivates locals to turn to one another for creative solutions and expedites an otherwise slow-moving process. O’Reilly wrote, “Conservation is a long process, and we have yet to see how this will play out for the spotted frog. My hope is that we can move beyond a litigious environment and come together to work towards conservation.”

Courtney Carlson is assistant professor in the Haub School of Environment and Natural Resources at the University of Wyoming, where she teaches environmental literature and writing courses.

 

5 Comments

  1. Tommy
    April 14, 2018

    There is a billion dollar a year tourist industry that wants that water back in the river too and it attracts over 2million tourists a year to stomp on the frog habitat and the environmental keys don’t use over that when it’s reported every year they clean over 2000 pounds of trash out of the upper deschutes so that’s funny …this is the beneficiaries of the billion in tourist dollars using the frog to get more water back in the river from the water rights owners called farmers !!!!

    Reply
    • Tommy
      April 14, 2018

      I meant to say why don’t the environmentalists sue over the trash the 2million tourist leave in the frog habitat if they were serious about a healthy habitat ????? Maybe a real healthy habitat means nobody gets in the river too ????

      Reply
  2. Tommy
    April 14, 2018

    http://www.bendbulletin.com/localstate/5493958-151/river-clean-up-uncovers-2000-pounds-of-debris
    See if they were really serious about a healthy habitat this would not be allowed

    Reply
  3. Tommy
    April 14, 2018

    And what about this … Don’t frog need mosquitos to eat ???? http://centraloregon.news/2016/07/11/mosquito-spraying-today-along-the-big-deschutes-river/

    Reply

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