dusky gopher frog
The dusky gopher frog. (Photo: Agri-Pulse Communications, Inc.)

By Scott Hamilton, President, Hamilton Resource Economics

You may think that your orchard or vineyard is not a habitat for endangered species. But the US Fish and Wildlife Service (the Service) has the discretion and authority to deem it so under a recent regulatory rule change by the Biden administration. That should be a source of concern and a call to action.

The issue is born in the Endangered Species Act (the Act). Loss of habitat is the primary reason many species become imperiled. The purpose of the Act, as specified by Congress, is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” In that sense, the Act might be better titled the Ecosystem Preservation Act, restoring emphasis to ecosystem preservation rather than species’ preservation—a conundrum the Service faces when trying to protect the San Joaquin kit fox that prey on Tipton Kangaroo Rats—both of which are listed under the Act.

Enter the case of the dusky gopher frog which once lived throughout coastal Alabama, Louisiana, and Mississippi, in the pine forests that covered much of the southeast. More than 98% of those forests have been removed to make way for urban development, agriculture, and timber plantations. Timber plantations, in this scenario, are not unlike orchards—they changed the landscape in a way that made it uninhabitable for the frogs. The humble frog, or at least its legal case, made it to the Supreme Court because the Service included 1500 acres of plantation in its critical habitat designation, not because the plantation was habitat, nor had been for decades, but because the Secretary of the Interior is permitted to include in the definition of critical habitat areas that are not occupied but are essential to the conservation of the species. The Service saw the existing available habitat for the frog as insufficient to preserve the species and so included land that could be restored to habitat. The Supreme Court disagreed with the designation, essentially saying that if land is not currently habitat, it cannot be critical habitat. What the Service could have done is purchased the ephemeral ponds in the plantation that are so essential to the frog, and the surrounding land, restored the habitat, and then modified their critical habitat designation. But by designating the whole 1500 acres of the plantation as critical habitat, which in its entirety cannot be degraded under the Act, the Service substantially reduced the value of the property to its owners.

Under the Biden Administration, the Service’s reaction to the Supreme Court ruling is to take a broad and discretionary approach to determining what is or could be habitat, so that critical habitat is now within the designated area of habitat, even if it is unoccupied or never has been.

Landowners must now rely on the reasonableness of Service line staff to ensure property values are not eroded unnecessarily. That may give certain landowners little comfort given that the Service is overwhelmed by new listings and is trying to anticipate protections in the future given climate change and wildfires without much science on which to support their decisions. One solution would be to amend the Endangered Species Act, but even attempts to modify the Act in relatively minor ways have failed over the past 30 years.

There is another solution, but it is not an easy one. It recognizes the intent of the Act to preserve ecosystems. The different types and extent of ecosystems that once existed in the San Joaquin Valley are well documented. They include grasslands, seasonal wetlands, riparian associations, and woodlands. The federal Endangered Species Act has a provision for Habitat Conservation Plans (HCPs) and the State has a counterpart in Natural Community Conservation Plans (NCCPs). By preserving enough habitats to protect listed and other desired species, the need to take private property or to continually obtain permits to conduct otherwise lawful activities, such as cleaning stream beds to prevent flooding, is significantly diminished. The development of NCCPs in California waned as the burden of getting them permitted has increased. Some have suggested their lack of use has been due to the creation of arbitrary and unreasonable bureaucratic demands and hurdles. But the potential benefit of such plans could be enormous. The opportunity to develop such plans has been enhanced recently because the Sustainable Groundwater Management Act is likely to force hundreds of thousands of acres of farmland out of production and the State government is making tens of millions of dollars available to facilitate just such land retirement. Strategic retirement of land to facilitate ecosystem restoration in conjunction with the development of HCPs and NCCPs would protect those ecosystems for future generations, prevent future listings, and protect landowners from unreasonable regulations. But currently, such a comprehensive plan is lacking.