SECOND DECLARATION OF THERESA L. SIMPSON

(Consolidated Case No. 6:15-cv-02358-JR) - 1

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KARL G. ANUTA (OSB #861423) THE HONORABLE JOLIE RUSSO

Law Office of Karl G. Anuta, P.C. THE HONORABLE ANN AIKEN

735 S.W. First Avenue, 2nd Floor

Portland, OR 97204

kga@integra.net

Phone: (503) 827-0320 | Fax: (503) 228-6551

Local Counsel for Plaintiff WaterWatch of Oregon

JANETTE K. BRIMMER (WSB #41271)

[Appearing Pro Hac Vice]

ANNA M. SEWELL (WSB # 48736)

[Appearing Pro Hac Vice]

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asewell@earthjustice.org

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Lead Counsel for Plaintiff WaterWatch of Oregon

LAUREN M. RULE (OSB #015174)

ELIZABETH H. ZULTOSKI (OSB #105482)

Advocates for the West

3115 NE Sandy Blvd., Suite 223

Portland, OR 97232

lrule@advocateswest.org

ezultoski@advocates.org

Phone: (503) 914-6388

Counsel for Plaintiff Center for Biological Diversity

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiff,

v.

U.S. BUREAU OF RECLAMATION,

Case No. 6:15-cv-02358-JR

Consolidated with

Case No. 6:16-cv-00035-JR

SECOND DECLARATION OF 

THERESA L. SIMPSON

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SECOND DECLARATION OF THERESA L. SIMPSON

(Consolidated Case No. 6:15-cv-02358-JR) - 2

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Defendant,

and

ARNOLD IRRIGATION DISTRICT, 

CENTRAL OREGON IRRIGATION 

DISTRICT, LONE PINE IRRIGATION 

DISTRICT, NORTH UNIT IRRIGATION 

DISTRICT, TUMALO IRRIGATION 

DISTRICT,

Intervenor Defendants.

WATERWATCH OF OREGON,

Plaintiff,

v.

U.S. BUREAU OF RECLAMATION, 

CENTRAL OREGON IRRIGATION 

DISTRICT, NORTH UNIT IRRIGATION 

DISTRICT, and TUMALO IRRIGATION 

DISTRICT,

Defendants,

and

Case No. 6:16-cv-00035-JR

ARNOLD IRRIGATION DISTRICT, LONE 

PINE IRRIGATION DISTRICT,

Intervenor Defendants.

I, Theresa L. Simpson, declare: 

1. My name is Theresa L. Simpson, and I reside in Crescent, Oregon. The following 

facts are personally known to me, and if called as a witness I would and could truthfully testify 

thereto.

2. This declaration is prepared in support of Plaintiffs’ reply in support of the motion 

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SECOND DECLARATION OF THERESA L. SIMPSON

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for preliminary injunction, originally filed February 9, 2016, and in supplement of my initial 

declaration in this case signed on February 5, 2016. I have reviewed the proposal by the

defendants and intervenor defendants (collectively “defendants”), including their declarations in 

support of their proposal and response in opposition to the motion for preliminary injunction.1 In 

general, the “proposal” by the defendants results in no change (or extraordinarily little change) to 

the operation of the Deschutes River system (the operations at Crane Prairie, Wickiup, and 

Crescent Lake dams and reservoirs) and little change to harmful effects on frogs. As set forth 

below in detail, defendants’ “proposal” leaves frogs vulnerable and continuing to be harmed by 

virtue of continuing the pattern of extreme and frequent fluctuations in flow, and an almost 

complete lack of water for winter protections. Defendants’ responses fail to address the 

problems identified in my earlier declaration and in annual field observations by various wildlife 

agencies.

SUMMARY OF NEEDS TO AVOID HARM TO LISTED OREGON SPOTTED FROGS

3. This declaration will review and summarize my earlier declaration regarding the 

requirements to avoid harm to Oregon spotted frogs in the Upper Deschutes River Basin and 

how those needs are addressed with the proposals by plaintiffs. Then this declaration will 

address how the proposals by defendants do not meet the requirements to avoid harm and will 

allow for and perpetuate harm to threatened spotted frogs.

 1 I note that the Lowell Diller declaration, submitted in support of the irrigation districts, contains 

no first-hand observations of Oregon spotted frogs in the basin or elsewhere and misreads some 

of the research (see below). I also note that much of the declaration is directly counter to federal 

agencies’ statements in numerous documents in evidence and contains significant qualifiers and 

unsupported assertions such as “likely” (¶ 11), “possible” (id.), “presumed” (¶20), “may be” 

(id.). These unsupported assertions are based on theoretical speculation, in contrast to the direct 

observations of spotted frogs, their behaviors, and use of habitat that I and federal agency 

scientists have documented during twenty years of Oregon spotted frog observation in the 

Deschutes and Klamath basins, which support my conclusions. 

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SECOND DECLARATION OF THERESA L. SIMPSON

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4. I cannot stress enough that an overarching requirement to avoid harm to spotted 

frogs in the Deschutes River is to bring consistency and stability to flows more closely 

approximating natural flows in the mainstem and Crescent Creek/Little Deschutes. This river 

system is naturally very stable due to it being fed primarily by groundwater through the lava soils 

as opposed to exclusively snow-melt. Many historical records show a river system that did not 

vary enormously between summer and winter (in contrast to snow-melt dominated systems). It 

is critical that the frequent and extreme fluctuations that occur now with the operations of the 

dams be stopped and avoided in order to address the harm to spotted frogs that is currently 

occurring every season of every year.

5. I also cannot stress enough that the extreme low flows in the winter months 

stretching into breeding season are a large and primary source of ongoing harm to frogs. As 

detailed in my earlier declaration, the extreme low flows in winter kill frogs by eliminating 

suitable overwinter habitat, subjecting frogs to increased predation and freezing. This is 

exacerbated and compounded by the extreme fluctuation in flows induced by the fall closing of 

the dams. The river is forced by the dams’ operations from a condition of high summer flows 

(higher than natural) to extreme low winter flows (hundreds of cfs below natural conditions) over 

the course of approximately 10 days. As documented by myself in the fall of 2015, and 

consistent with conditions documented by state and federal agencies in previous falls, this 

extreme drop to ultra-low levels leaves frogs, especially juveniles, stranded every year, either 

high and dry or in steadily shrinking puddles or oxbows. Spotted frogs cannot live out of water 

for long and do not move over land great (“great” being what we might consider fairly short) 

distances to find other habitat. In turn, they are desiccated, taken by predators or frozen because 

the water is so shallow and pools so small. Those that make it to the mainstem of the rivers are 

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SECOND DECLARATION OF THERESA L. SIMPSON

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left with trying to live in the main channel flows where again there is little suitable habitat. This 

is supported by documents I have reviewed, received through the Freedom of Information Act, 

from various federal agencies, including most recently, the U.S. Forest Service. The Forest 

Service confirms that extreme low winter flows dewater frog habitat and leave frogs little 

suitable overwinter shelter.

6. In the spring, frogs need flows adequate to flood breeding habitat at the onset of 

breeding—most years by mid-March. Even more importantly, those flows need to be relatively 

stable. Currently, the extremely low winter water levels continue to decrease most years until 

well after breeding starts, leaving egg masses desiccated and dead. Or, for later breeders who 

might lay eggs at lower levels, the high irrigation flows that start in April most years flood the 

eggs and float them into deeper or faster water where their survival is jeopardized. Stable spring 

flows need to be attained by mid-March and sustained through May of most years. Again, recent 

photographs from the Forest Service show frog habitat that is dry in April because water is still 

being held in reservoirs. 

7. In summer, the frogs still require relatively stable flows, but there is somewhat 

more latitude. For summer, I am not so concerned with low flows—most years’ dam operations 

in fact keep flows artificially very high. Notably, a cap on summer flows is necessary in order to 

preserve water for winter (see below discussion of defendants’ proposal and detail in my earlier 

declaration).

8. Finally, the move to lower (but not extreme low) winter flows must occur over 

enough days that frogs and fish have time to move with the water to refugia, and must occur 

early enough that frogs and fish are in their winter habitat no later than mid-October before 

significant freezing occurs. This is why I have recommended a 30-day fall flow draw-down 

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SECOND DECLARATION OF THERESA L. SIMPSON

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period that ends no later than mid-October. Currently, frogs are left stranded out of water every 

fall due to the rapid decline in river flows, which increases mortality, and large fish kills also 

repeatedly occur in the Deschutes in the fall (even during the 12-day “extended” draw-down in 

the fall of 2014).

ONGOING HARM TO OREGON SPOTTED FROGS FROM OPERATION

OF DESCHUTES SYSTEM

9. The Oregon spotted frog was listed as a threatened species under the Endangered 

Species Act (“ESA”) in August of 2014, more than 18 months ago. The consultation process 

will not be complete for at least another year and a half, and FWS has said it has no control over 

the Habitat Conservation Plan (“HCP”) timelines. Those completion estimates stretch to 2020. 

The consultation process is intended to keep actions from further endangering species. Harm to 

individual frogs and entire generations of frogs is imminent from the continued operation of the 

dams under the defendants’ interim plan. 

10. Levels of acceptable spotted frog harm (or incidental take) or adverse habitat 

modification have not been established for the Deschutes Project. In the case of spotted frog

populations and sites that are currently occupied in the Upper Deschutes Basin, it is imperative to 

save what you have until the Incidental Take Permit (ITP) process is complete. It is 

unreasonable to assume the defendants’ interim plan will adequately protect occupied sites given 

that it ignores harm to breeding and overwintering spotted frogs and their habitat. The 

insufficient action proposed by the defendants’ interim plan is particularly worrisome given that 

small breeding populations found in 2013 at Bull Bend and the south Ryan Slough Camp area

sites are no longer detectable, and there are several more very small, isolated breeding 

populations along the Deschutes River and in the upper reaches of Crescent Creek that could also 

disappear during the time it takes to complete the consultation and ITP process. The small sites 

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SECOND DECLARATION OF THERESA L. SIMPSON

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around and downstream of the reservoirs that are affected by fluctuating water levels are in 

contrast to much larger populations found in areas that have stable water levels, such as Big 

Marsh and Sunriver. Records show that historically there were many more healthy populations 

of spotted frogs in the Upper Deschutes Basin compared to currently. 2 I observed that there is 

potential habitat along the Upper Deschutes River to support many more spotted frogs if that 

habitat receives adequate inundation. 

11. The defendants argue that more time is needed to study the system before making 

any significant changes to dam operations. As a professional biologist with decades of species 

management experience and collaboration with other professionals, I know that there are always 

uncertainties around management changes, but it is unacceptable to delay on the basis that there 

is not enough scientific information to make reasoned and informed changes in dam operations 

in the Deschutes System. It should be noted that the Upper Deschutes Basin and the Deschutes 

System have been studied for decades by a multitude of organizations. There is also a wellinformed listing rule. The Deschutes HCP effort over the past several years has targeted data 

gaps and collected data specific to the needs of Oregon spotted frogs in the Upper Deschutes 

Basin. These many and varied scientific endeavors along with the listing information provide a 

 2 I would like to note that the declaration of Lowell Diller, filed on behalf of the irrigation 

districts, makes an important error in a statement about historic populations of Oregon spotted 

frogs in the Deschutes Basin. Diller claims at ¶ 25 that there is no evidence of what historical 

populations were or whether there were ever many frogs in the basin. In fact, the Hayes 1997 

paper that he cites does not say that. The paper says the following: “Historical records for the 

Oregon spotted frog in the closed basins east of the Klamath and Deschutes Basins are lacking 

and current surveys did not detect them, so the presence of which spotted frog taxon occurred or 

may occur in these basin systems, if any, is ambiguous.” (Emphasis added.) That is, the Hayes 

reference is to basins to the east of the Deschutes, not the Deschutes itself. As discussed 

elsewhere in the Hayes paper, historical records definitely show healthy populations of spotted 

frogs in the Deschutes Basin. See also Sewell Decl., Ex. 3 at 1 (FWS grant application noting 

historical populations in Deschutes Basin).

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SECOND DECLARATION OF THERESA L. SIMPSON

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sound scientific basis for making reasoned spotted frog management changes within the Upper 

Deschutes Basin right now.

12. Defendants propose very little (if any) change to the Upper Deschutes River Basin 

dam and reservoir system. In my professional opinion, harm from past operations within the 

Upper Deschutes Basin dam and reservoir system (hereafter referred to as the “Deschutes 

System” or “System”) has contributed significantly to creating the small, isolated populations 

above and below Wickiup Dam. Today, these small isolated populations are at significant risk of 

rapid population decline or extirpation (local extinction of a population). Low genetic diversity

– a reason for listing spotted frogs as threatened – makes a species less resilient to 

environmental, ecological, and biological changes and, therefore, more susceptible to rapid 

population declines and potential extinction. Retaining the genetic diversity within each of the 

small Upper Deschutes spotted frog populations is critically important to the long term survival 

of the species. The spotted frog final rule lists the Upper Deschutes sub-basin as having low 

genetic diversity within the sub-basin and high genetic differentiation from other sub-basins. 79 

Fed. Reg. at 51686. Decline or loss of a local population permanently removes those genes 

specific to that local population from the greater gene pool. The loss of spotted frog populations 

along the Deschutes River further reduces genetic diversity within the Upper Deschutes Basin 

and to the species as a whole. Therefore, it is imperative that every possible action be taken to 

mitigate harm associated with the System operations in order to have any chance of expanding

and stabilizing these small populations along the Deschutes River, which is essential for their 

survival. Defendants’ interim spotted frog proposal does not go far enough to mitigate or 

minimize harm to small isolated populations along the Deschutes River and will further 

contribute to the irretrievable loss of genetic diversity.

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13. Many of the frog populations in the Upper Deschutes Basin are small (fewer than 

50 breeders at a site) and disjunct (more than 3.1 miles apart), making them highly susceptible to 

extirpation even without any added mortality from water manipulations. See final listing rule 

discussion on Factor E site size, isolation and population turnover rate at 79 Fed. Reg. at 51,686-

7. The final listing rule for Oregon spotted frogs also talks about the importance of aquatic 

connections between breeding sites, the 3.1 mile and 6 mile dispersal standards to determine 

connectivity, and how current operations with regulated flows likely disrupt connectivity 

between sites on the Deschutes River mainstem and the Little Deschutes. Defendants’ proposal

only provides for connectivity for half the year at best and there are many tough obstacles (like 

waterfalls and rapids) that separate populations. Therefore, allowing extirpation of a sizable 

number of frogs at any given site (or an entire generation of eggs) and relying on recolonization 

is highly risky and contrary to the best available science and the listing decision regarding the 

vulnerability of those small populations. Once frogs at a given site are gone, those genes are lost 

forever. See paper by Blouin 2010 (attached as Exhibit 1 and frequently cited in the final listing

rule). Blouin identifies the central Cascades Oregon spotted frog group (which includes the 

Upper Deschutes Basin frogs at issue here) as evolutionarily significant, and with low genetic 

diversity. 

14. Between 2013 and 2015 frogs were no longer detectable at the Bull Bend site and 

the south Ryan Ranch site in the Slough Camp area along the Upper Deschutes River. I am very 

concerned that spotted frogs in these sites may already be extirpated with a loss of genetic 

diversity and thereby an adverse impact on the Upper Deschutes frog population as a whole. The 

remaining small, unstable populations at Wickiup, Dead Slough and Slough Camp area are also 

susceptible to extirpation without adding stresses from yet another year of unchanged System 

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irrigation operations. The flow moderations suggested by myself and plaintiffs keep conditions 

more closely-aligned with the historic flow regimes to which Oregon spotted frogs have evolved

and in my opinion need to be implemented immediately to keep from extirpating the few, small, 

isolated population sites in Wickiup and along the Deschutes River. 

COMPARISON OF PROPOSALS AND FAILURE OF DEFENDANTS’ PLAN TO ADDRESS 

HARM FROM DESCHUTES SYSTEM OPERATIONS

15. In contrast to plaintiffs’ run-of-the-river proposal that provides for stable flows to 

avoid harm to spotted frogs and frog habitat year round, the defendants’ plan operates far outside 

the historic flow regimes under which Oregon spotted frogs evolved, and each year it accelerates 

the rate at which these small remaining populations are moving toward extirpation. This will be 

true in the next 12-18 months. The defendants’ plan completely ignores aquatic connectivity and 

overwinter habitat needs for at least half of the year. Defendants’ plan also proposes and allows 

significant habitat variability due to continuing flow variation at each spotted frog site during the 

breeding season (commencing flows later than breeding actually starts and failing to cap flows 

later in the irrigation season). Defendants propose very little (if any) change to the current Upper 

Deschutes River Basin System operation and as a result, harm to spotted frogs will continue 

every season of every year. That harm is imminent as soon as breeding begins this year and will 

be certain in the fall and winter should either current operations continue or defendants’ proposal 

be implemented (as they are largely the same).

16. Defendants propose some minimal changes in the spring timing of releases, but 

nothing else to avoid the ongoing harm to frogs. Defendants propose to release at least 600 cfs 

from Wickiup dam from March 31 through September 15 of each year and to start increasing 

flows early enough in March to reach the 600 cfs by the 31st. Spring flows will start a little 

earlier than they do now (although not as early as breeding starts) and that is beneficial for 

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breeding, but there is no requirement to maintain stable flows. Importantly, it should also be 

noted that current operations, once the dams are opened in the spring and through September, 

already exceed the 600 cfs “offered” as a flow target by defendants. In fact, flows usually far 

exceed this level in the summer months at the behest of the irrigation districts, approaching

levels sometimes as high as 2,000 cfs and usually at least as high as 1,200 cfs. Moreover, as I 

discuss below, whatever gain frogs might make with this 2-3 week earlier start to flows is 

obliterated by the negative changes and/or lack of change in the fall and winter.

17. Therefore, the proposal for minimum 600 cfs doesn’t change anything from 

current conditions, but for a slightly earlier start time to spring flows. And, as noted in my first 

declaration, failing to cap those flows contributes to the instability in the system during breeding 

and rearing, but even more importantly, will result in the reservoirs being drained with nothing 

left for frogs for fall and winter flows. This is precisely the situation now. Defendants’ proposal 

is effectively a proposal for business as usual. 

18. Defendants’ proposal also shortens the time for fall ramp-down of flows. 

Currently, in most years, the fall ramp-down is spread over 10 days. In 2014, a “voluntary” 

measure of 12 days was implemented. Even under a 10- or 12-day ramp-down, the lowering of 

river flows is sharp and extreme going from the very high summer flows to the 20 cfs winter 

flows in a very short time. I discuss at length in my first declaration the harm to frogs (and fish) 

that occurs every year because of this, which I personally observed in 2015. A 7-day ramp-down 

will be even more extreme and harmful than what I observed this past fall. Moreover, 

defendants propose to do this in October, when frogs are at even higher risk of harm from 

predation or freezing. It appears that this drastic measure is how defendants will try and “make 

up” some of what they give in the 2-3 week earlier start for spring flows.

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19. Finally, defendants’ proposal allows for no change in the extreme and extremely 

harmful low winter flows, allowing harm to frogs from such drastic low flows to continue 

unabated into the future. It is plain to me based upon my experience in the basin that the refusal 

to cap high summer flows means that there is little water in reserve for winter and defendants 

will expect to fully refill the reservoirs during the winter months. It is plain that this is why 

defendants refuse to protect frogs in the fall and winter. The failure to require minimum winter 

flows means that there is very limited suitable winter habitat. Any benefits to frogs during the 

breeding season from Defendants’ earlier irrigation releases will be negated by the lack of 

overwinter habitat. Without slowing fall ramp-down and providing more suitable overwinter 

habitat, most frogs will still die during these seasons.

20. Defendants’ proposal also incorporates the proposal made to the Bureau of 

Reclamation in the fall of 2015 to release a minimum of 30 cfs from Crescent Creek dam. As 

described in my earlier declaration, I have directly observed that this additional water does not 

avoid harm to frogs in Crescent Creek and the Little Deschutes either during breeding or 

overwintering.

RELATIVE “HARMS” BETWEEN PROPOSALS AND CLAIMS THAT PLAINTIFFS’ 

PROPOSAL WILL HARM FROGS

21. The Moran declaration at ¶ 10 states that Fish and Wildlife Service (“FWS”)

recognizes spotted frogs are stressed by the current System and that FWS supports a gradual and 

adaptive restoration approach, with considerable monitoring to assess and adjust flows to 

optimize conditions for the frog. The Moran declaration simply dismisses the significant deficits

in the defendants’ plan discussed above by deferring to some unknown conservation measures 

that will eventually come out of Section 7 and 10 processes 1-5 years down the road (Moran ¶ 8).

22. Ms. Moran claims concern for what she characterizes as “extreme and immediate 

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changes” to the system that plaintiffs’ run-of-the-river (or regulated) interim plan proposes 

(Moran ¶ 10). Upon examination, Ms. Moran’s characterization is neither supported nor 

supportable. The plaintiffs’ run-of-the-river proposal increases flows in spring in accordance 

with natural conditions, varying only with natural variation through the entire breeding season. 

Plaintiffs’ proposal then holds winter flows at natural levels, with those levels not falling below 

500 cfs in most years. (Kamman Declaration.) In sharp contrast, the defendants’ plan creates

varying habitat conditions during the breeding season by increasing flows from 20-30 cfs to at 

least 600 cfs at WICO by March 31 (later than breeding begins in most years) and then 

beginning irrigation flows by mid-April that will be at 1000 to1200 cfs in order to meet irrigation 

demands. Defendants’ proposal allows flows to then vary several hundred cfs up and down 

through the summer (see Moran ¶ 35, Figure 5) to meet irrigation demand until a one-week sharp 

ramp-down to winter extreme lows of 20 cfs at the end of the irrigation season in October as 

opposed to the much narrower flow variations expected with natural run-of-the-river. 

23. Moran at ¶ 17 also claims that the flows in plaintiffs’ proposals may no longer 

inundate the same wetland acreage that is currently inundated with the artificially high summer 

irrigation flows. As described in my first declaration, there are varying habitat needs for 

different spotted frog life stages and seasons throughout the course of a year. The defendants, in 

particular FWS, have an obligation to address all habitat needs and avoid take at all life stages, 

not just in summer. Summer flows under Plaintiffs’ proposals would still inundate non-breeding 

habitat, just not the same areas that might currently be inundated under the normal irrigation 

flows. In contrast, Defendants’ proposal would not address the extreme limitation in overwinter 

habitat at all. 

24. Moran’s concerns are not supported by the evidence and in fact, often contradict 

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themselves or other FWS statements. While plaintiffs’ interim proposals provide for a somewhat 

reduced amount of inundated wetland habitat during the irrigation season (with flows less than 

the currently artificially high irrigation flows), it is necessary to do so in order to provide a 

substantial gain of inundated wetlands and low flow edge habitats in the fall and winter that 

support both aquatic connections for movement between seasonal habitat areas and suitable 

habitat for overwintering frogs during the non-irrigation season. Plaintiffs’ run-of-the-river 

proposal in particular closely mimics the historic flow regime that Oregon spotted frogs evolved 

under. Plaintiffs’ proposals plainly do not dewater all summer habitat and the FWS 

acknowledges as much. For instance, Moran at ¶ 28 says that breeding conditions would 

improve at Dead Slough with plaintiffs’ proposed 770 cfs regulated option (and because natural 

flows are closer to the 770 cfs in summer, the same would be true with the run-of-the-river 

option). Moran at ¶ 23 expresses a different concern that 770 cfs will increase water depths in 

breeding habitat too much at the Old Mill site without acknowledging the glaringly obvious fact 

that flows proposed by the defendants’ plan would be significantly higher than plaintiffs’ during 

all but the first few weeks of the irrigation season. These statements simply do not support the

claimed FWS “concerns” with plaintiffs’ proposals. 

25. Similarly, defendants’ claimed “concerns” regarding Slough Camp are not 

supported by the evidence and are contradictory. Moran at ¶ 34 says the Slough Camp wetlands 

will not be inundated by river flows or the area (e.g., acreage) of inundation will be greatly 

reduced thereby limiting breeding and rearing habitat. In fact, other FWS evidence contradicts 

Ms. Moran’s statements about Slough Camp. FWS’s primary spotted frog biologist 

recommended increasing flows below Wickiup to at least 500 cfs this past April to improve 

breeding conditions at East Slough Camp, contradicting Ms. Moran’s statement that Plaintiffs’ 

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proposal of 770 cfs would not benefit East Slough Camp. Sewell Decl., Ex. 9; Moran ¶¶ 23, 34. 

Furthermore, FWS and I know that the Slough Camp area is supported by a series of springs on 

both sides of the river that likely provide spotted frog overwinter and breeding habitat. The 

Slough Camp area has perennial spring ponds used by spotted frogs and is not completely 

dependent on river flows to provide inundated wetland habitat. The final listing rule is full of 

discussion about spotted frogs’ use of this type of habitat. It is my opinion based upon the 

information in and behind the listing rule, information about Slough Camp in government 

documents and my own observation that the Slough Camp area spring ponds will adequately 

support the breeding, rearing and nonbreeding habitat needs for Oregon spotted frogs that 

currently use this area for the next 12-18 months under either of plaintiffs’ proposals.

Furthermore, the 600 cfs winter flows in plaintiffs’ proposals for the nearby Deschutes River will 

greatly contribute to improved overwinter conditions at the Slough Camp site by increasing 

groundwater support and surface pool size and depth at the spring ponds resulting in a net benefit 

for spotted frogs and avoidance of harms caused by extreme winter low flows.

26. Ms. Moran also claims that 600 cfs may not be enough to provide more 

overwinter habitat, Moran ¶ 44, but yet endorses Defendants’ proposal that uses the same flow in 

spring to inundate breeding habitat, Moran ¶ 8. A minimum flow of 600 cfs would improve 

overwinter habitat just as it would improve breeding habitat. In fact, FWS has stated numerous 

times the need to increase winter flows in the Upper Deschutes basin and has recommended a

minimum of 500 cfs. See, e.g., Sewell Decl., Ex. 7 at 4. My own personal observations 

confirmed the harm that occurs in fall and winter in these areas and the very limited amount of 

suitable overwinter habitat under current conditions. This information clearly supports 

Plaintiffs’ proposals to change operations in winter to avoid harm to spotted frogs. 

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27. Attached to the Second Sewell Declaration is a PowerPoint presentation that I 

have reviewed. Included in that presentation are a series of photos showing frog habitat at 

various locations in the Upper Deschutes Basin at different times of the year under different 

System flow regimes. It is my understanding that this PowerPoint and additional photographs 

were recently received by counsel for the plaintiffs from the U.S. Forest Service. These pictures 

are representative of conditions that I have personally observed at this and other spotted frog 

habitat sites in the Upper Deschutes Basin over recent years. These photos show the extreme 

variation in water levels at frog habitat locations demonstrating the damaging nature of current 

System operations. The early spring photos show that there is little to no water available for 

spring breeding because under normal System operations water is still being held back to fill 

reservoirs. The fall photos also show extreme low water levels at a time when juveniles are 

vulnerable and should be settling into over-winter habitat. I have viewed other similar sets of 

photos from the Forest Service for other identified spotted frog habitat sites and they show 

similar things.

28. Also in the PowerPoint presentation and other documents received very recently 

from the Forest Service, Forest Service identifies recommendations for flows markedly similar to 

those in Plaintiff’s proposals. In particular, the Forest Service also identifies a minimum of 500 

cfs as critical for over-winter flows to protect spotted frogs.

29. Finally, Defendants’ proposal will continue to harm frogs around Crane Prairie 

and Wickiup Reservoir by allowing water levels to drop significantly in summer and fall, leaving 

little or no inundated edge habitat. BOR’s biologist noted that lowering reservoir levels below 

suitable vegetation eliminates habitat for spotted frogs around the reservoirs. Willey Decl., ¶¶ 

51, 62. I observed these exact conditions this past summer and fall, and in past years, when both 

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Crane Prairie and Wickiup water levels were below all edge vegetation, virtually eliminating all 

suitable habitat around the reservoirs. As explained in my first declaration, hydromet data shows 

that this condition occurs every year due to the large drop in reservoirs levels over the summer 

and fall. Defendants’ proposal only maintains water levels from mid-March until mid-July in 

Crane Prairie but continues to drop water levels and eliminate suitable habitat in Wickiup early 

in the rearing season. Plaintiffs’ proposals improve habitat suitability by maintaining inundated 

edge vegetation in Crane Prairie year round. Plaintiff’s proposals also maintains suitable edge 

habitat longer in the rearing and overwinter season in Wickiup than defendants’ proposal. While 

defendant’s proposal does little to reduce harm, the Plaintiffs’ proposal would provide significant 

habitat improvements year round in Crane Prairie, and also provide a modest improvement for 

Wickiup Reservoir.

30. Plaintiffs’ run-of-the-river proposal avoids the harm and addresses all habitat and 

life stage needs in all seasons in a careful and reasoned approach that uses historic flow regimes 

as the foundation for recommendations. The defendants’ plan continues the current harmful 

approach in most seasons of the year. Therefore, I find Moran’s assertions that plaintiffs’ 

proposal is somehow harmful unsupported and unsupportable. 

ADAPTATION AND “FROG STRONGHOLD” CLAIMS BY DEFENDANTS

31. Defendants also claim that their proposal for business as usual is superior to 

plaintiffs’ because Oregon spotted frogs have “adapted” to the severely altered System and/or 

that there are some frog “strongholds” in the basin so losing frogs over the next several years 

will not harm the population of spotted frogs as a whole. These arguments too are without 

support in the evidence and are not even logical given the listing decision for spotted frogs. I 

will address each in turn below.

32. First, arguments that Oregon spotted frogs have adapted to altered conditions 

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created by irrigation operations (see, e.g., Moran at ¶ 17) is in direct conflict with the evidence

and shocking in its erroneousness. Defendants claim that frogs have somehow “adapted” to the 

current severely-altered system and that implementation of either of the proposals in my earlier 

declaration will, in some unspecified way, “harm” frogs. This argument is scientifically flawed

and the fact that the regulatory agency makes such a foundational error in Oregon spotted frog 

management in its rush to support the districts, poses a substantial risk to spotted frogs. Frogs 

have not “adapted” to the current extremely harmful system on the Upper Deschutes River basin. 

Evidence of this is the very listing itself. Oregon spotted frogs are in serious trouble warranting 

their listing as threatened under the ESA. Proposed critical habitat includes all of the Upper 

Deschutes Basin from Bend upstream through the reservoirs. That is, the FWS has made an 

initial determination that protection of these areas is critical to the survival and recovery of 

Oregon spotted frogs. Moreover, the listing decision makes clear that altered flows for 

irrigation—precisely the issue here—are a primary cause of the frogs’ decline and need for 

listing. The final listing decision specifically identifies Crane Prairie, Wickiup, and Crescent 

Lake dams as causing harm to spotted frogs, resulting in small isolated populations along the 

rivers. Listing information indicates frogs have not adapted successfully in the Upper Deschutes 

Basin, not the premise made by defendants.

33. If frogs had successfully adapted to the altered system, we would see larger and 

more stable populations well connected throughout, but we do not. Rather, as discussed above, 

many populations are small, isolated and disjunct, and in serious danger of being extirpated in a 

single season. Only Sunriver and the Old Mill populations along the Deschutes River are stable, 

and that is simply because they have their own separate water management strategies that 

incorporate spotted frog needs—these populations are mostly unaffected by the System operation 

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that is wreaking havoc with frogs throughout the rest of the Upper Deschutes River. If frogs had 

truly adapted to the current system, there would not be repeated desiccation of egg masses in 

spring as observed by FWS or stranding of frogs in fall during draw-down as I observed. The 

fact that mortality is still high in spring and fall indicates that frogs have not adapted to the 

current system. 

34. Specifically, the Wickiup and Deschutes River populations directly affected by 

irrigation operations have not adapted to fluctuations that are far outside the historic flow regime. 

Instead, these populations are very small, very isolated, and at high risk of being extirpated. 

Wickiup has only a handful of breeding frogs.3 Between 2013 and 2015, spotted frogs 

disappeared from the Bull Bend site and the south Ryan Ranch site along the Deschutes River. 

This is not what happens in populations that are “adapted” and “stable.” Dead Slough dropped 

from 19 breeding females to 17 breeding females from 2013 to 2015, and even the important

Slough Camp sites have less than 50 breeding females combined, all very small populations with 

more than 6 river miles separating them and isolating them from each other. Two of the frog 

habitat sites are empty and remaining populations in Wickiup and Deschutes River affected by 

irrigation operations are in serious danger of also being extirpated. It’s conceivable that these 

remaining populations could be wiped out or further reduced in population size in the next 12-18 

months. Clearly, action is needed to alter the current System operation immediately to keep 

from wiping out what little is left at these remaining sites along the Deschutes mainstem. The

contention that Oregon spotted frogs have adapted to irrigation operations in the Upper 

 3 I’m particularly worried about the Wickiup populations and they may be in jeopardy regardless 

of efforts in the near term, but certainly the fact that the run-of-the-river modeling by Mr. 

Kamman provides for a more stable level in Wickiup will be much less harmful than either 

current operations which quickly drain Wickiup during irrigation season or defendants’ proposal 

which will end in the same result. 

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Deschutes River is unfounded.

35. Declarations for both defendants also make claims about frog “strongholds” and 

that the populations at Sunriver and Old Mill will allow Oregon spotted frogs in the Upper 

Deschutes Basin to live on so there is no need for injunctive relief. As discussed above, this 

completely ignores the precarious state of the Deschutes River spotted frog populations in the 

Upper Deschutes sub-basin and the importance of genetic diversity as identified by Blouin and 

the FWS in its listing decision. Also as discussed above, the populations at Sunriver and Old 

Mill have their own water management regimes, insulating them from the harms from System 

operation (which also bolsters the fact that the System operation is plainly harmful to listed 

spotted frogs in the Basin). Contrary to the Diller Declaration at ¶¶ 26 and 27, the Sunriver site 

is not connected to the majority of Upper Deschutes sub-basin sites; in particular, it is only 

connected to some sites in the Little Deschutes sub-basin. The “aquatic corridor” that Diller 

references is simply the river, and his statement exhibits a complete lack of understanding of the 

characteristics of the river at various locations and the actual connectedness of frog habitat. 

Further, while Sunriver does have a large population that appears healthy, Old Mill is hardly a 

stronghold. Most importantly, the ESA does not manage for strongholds at the expense of 

wiping out smaller, more vulnerable populations. Rather, stronghold sites sometimes get greater 

leniency in permitted actions while unstable populations get greater protection under permitted 

actions. The ESA recognizes the importance of maintaining genetic diversity and that’s why 

effort is made to hold onto and expand and stabilize small populations rather than just to fall 

back on or manage for “strongholds.”

36. The status of the Crescent Creek and Little Deschutes spotted frog populations 

within the Little Deschutes sub-basin falls between the “stronghold” status of Sunriver and the 

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extremely precarious status of the smaller mainstem populations. Some sites in the Crescent 

Creek/Little Deschutes tributary do appear more stable while other sites decidedly not. For 

example, the two Hwy 58 sites and the Black Rock site in the upper half of Crescent Creek have 

tiny populations at great risk of disappearing in a single season or year. Sites on the lower end of 

Crescent Creek are a very long distance away from the upper creek sites and appear to have more 

stable, though small, populations. Importantly, the lower Crescent Creek populations are in 

close proximity to each other and to Little Deschutes sites, so risk of gene loss and population 

decline is lessened for these sites as compared to the high risk at upper creek sites. 

37. Also, the Sunriver population of spotted frogs is considered connected to the 

Little Deschutes River populations for purposes of dispersion and genetic exchange. (Sunriver is 

at the confluence with the Upper Deschutes and Little Deschutes Rivers.) However, the 

connected populations are only those in the Little Deschutes and lower reach of Crescent Creek, 

not the twenty Upper Deschutes sub-basin populations or the three Little Deschutes sub-basin 

populations in the upper reach of Crescent Creek. 

38. The Big Marsh population, also mentioned by Defendants as a stronghold, is 

isolated from all other populations. 

39. To summarize, for purposes of maintaining genetic diversity within these subbasins, these “stronghold” populations at Sunriver and Old Mill provide limited 

exchange/preservation of genetic diversity in the Little Deschutes sub-basin and none with 

populations in the Upper Deschutes sub-basin. The Big Marsh population does not connect to or 

support genetic exchange with any other spotted frog population. 

40. Finally, it should be noted that the Sunriver spotted frog population provides an 

example of how flows designed to support Oregon spotted frog habitat can accommodate a large, 

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stable and growing spotted frog population despite all the other threats present, including a 

large bullfrog population. It is possible to create conditions that are similar to those under which 

spotted frogs evolved. Plaintiffs’ run-of-the-river proposal returns flows in the Upper Deschutes 

River Basin closer to natural conditions under which frogs evolved allowing them to more easily 

adapt and build stable populations. 

41. Particular to the bullfrog issue, I also note this is an additional area where the 

Diller declaration is in conflict with the evidence and even with its own assertions. While 

bullfrogs do in fact prey on spotted frogs, that factor is a reason to remove additional threats to 

spotted frogs such as the operation of the System that has been identified as a primary threat in 

the listing decision. Bullfrogs are not found in all spotted frog habitat in the Deschutes basin (a 

fact recognized by Diller) and where they are most numerous, in Sunriver, spotted frogs are also 

thriving (also recognized by Diller), which is a testament, contrary to his unsupported assertions, 

to the importance of maintaining consistent water levels in habitat.

42. I am also aware of concerns regarding the fish in the Deschutes River being 

affected by plaintiffs’ proposals for altering System operation. Under current operations and 

under defendants’ proposal, the large fish kills in the Upper Deschutes Basin that have been 

occurring every year for successive years (and the “bucket brigades” organized to try and save 

fish) will continue. The proposals I recommend in my earlier declaration will alleviate those fish 

kills. Further, the proposals I recommend in my earlier declaration, especially the “run-of-theriver” proposal will move the river system much closer to natural conditions. Natural conditions 

will be much better for all fish in the river and will not result in harm to fish.

43. In conclusion, I want to emphasize the need for a plan that addresses the full year 

to avoid harm to Oregon spotted frogs. While defendants have proposed a small change in an 

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attempt to add some benefit for frogs during part of the spring breeding, it is critical to note that 

if the defendants’ proposal is allowed to be implemented, with no cap on summer flows, there 

will be a problem with providing winter flows adequate to avoid harm to frogs. Providing 

minimum winter flows of more than 500 cfs at WICO is imperative to avoid the harm that has 

been occurring every fall and winter from the rapid receding of water during draw-down and the 

severe lack of suitable overwinter habitat along the Upper Deschutes River. Therefore, it is my 

expert opinion that the matter must be addressed as an annual plan in order to avoid the harms 

from current operations or the harms I expect from defendants’ proposal.

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge.

Executed this 10th day of March, 2016 at Crescent, Oregon.

 

Theresa L. Simpson

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CERTIFICATE OF SERVICE

I certify that on March 10, 2016 , I electronically filed the foregoing with the Clerk of the 

Court using the appellate CM/ECF system, which system will serve all parties who are registered 

participants.

/s/ Janette K. Brimmer

Janette K. Brimmer

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