A Misunderstood but Model Effort

Every few years since the Endangered Species Act was enacted in 1973, its critics have charged that, in practice, the act has gone awry. These complaints, however, reveal more about the critic than the act. Most often, they mask a political agenda to weaken an act that is imperfect and underfunded but remarkably effective, robust and true to its original intent.

A recent round of attacks has focused on the designation of large areas of California as critical habitat for endangered species. In September, the U.S. Fish and Wildlife Service proposed to designate more than 5 million acres as critical habitat for the California red-legged frog. This species, not the nonnative bullfrog, was likely the model for Mark Twain’s celebrated “Jumping Frog.” The red-legged frog has declined greatly since Twain’s time due to destruction of river and stream habitat, the introduction of bullfrogs and other nonnative predators, water diversions and a variety of other causes. Because of these factors, and as a result of a lawsuit filed by the Environmental Defense Center, the Fish and Wildlife Service listed the frog as a threatened species in 1996.

In Southern California, where the loss of wetland and stream habitat has been particularly devastating, the proposed red-legged frog critical habitat designation covers more than 1.3 million acres in Ventura, Santa Barbara, Los Angeles, Riverside and San Diego counties. The designation includes parts of Matilija, Sespe and Piru creeks in Ventura County (almost entirely within Los Padres National Forest), much of the Malibu Creek watershed (including Las Virgenes Creek and its tributaries within the proposed Ahmanson Ranch development) and San Francisquito and Amargosa creeks in northern Los Angeles County. Most of the land for the proposed Southern California portion of the habitat is owned by the federal or state government, but a considerable portion is privately owned.

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To understand what the designation means for landowners, it is necessary to consider the requirements of the Endangered Species Act, rather than the inflated rhetoric of developers and their trade associations.

Critical habitat designation does not establish a preserve for the species. It does not affect farming or limit recreational activities. In fact, it does not affect activities on private land at all, except in the very limited circumstance in which the property owner must obtain a federal permit or approval.

In this situation, typically involving a developer’s need for a permit from the Army Corps of Engineers to fill a wetland or modify a waterway, the federal agency may have to consult with the Fish and Wildlife Service about the effect of the action on an endangered species’ critical habitat. An action that threatens to destroy the habitat will not necessarily be stopped or even modified. The critical habitat designation, however, makes it more likely that an endangered species and its habitat will be considered by the federal agency in its permitting decision.

Given the limited impact of critical habitat designation on private land, why is designation important and why is it the subject of so many misapprehensions by critics of the Endangered Species Act?

Clearly, critical habitat designation can limit habitat destruction on federal lands, including national forests and parklands that contain the most pristine remaining habitats for the red-legged frog and other wildlife. Critical habitat is also supposed to include areas essential for the recovery and eventual “delisting” of a species. Designation does not impose special management requirements for such lands, but it identifies areas where special management considerations could assist in recovery.

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Opponents of habitat designation, however, ignore these desirable objectives and use their erroneous assumptions about the effects of designation to argue for the radical revision of the Endangered Species Act.

This misunderstanding is not entirely the fault of the critics. The Fish and Wildlife Service resists designating critical habitat and therefore has not effectively explained the goals and implications of designation, a failure that magnifies the potential for misunderstanding and exploitation by foes of the Endangered Species Act.

The solution, however, is not the conversion of the Endangered Species Act to a paper tiger that would relieve giant developments, such as the proposed Newhall Ranch and Ahmanson Ranch projects, of the inconvenience of taking into account the existence of endangered species.

The California red-legged frog designation can be a model for accomplishing the conservation goals set by Congress without overhauling the Endangered Species Act. Vast as the areas mapped in the proposed critical habitat designation appear, the designation will have a negligible economic effect and promises to have a positive impact on the frog’s survival and recovery.