May 10, 2016

Will new frog regulations help or hurt?

By Ethan W. Blevins Attorney

I used to play a game called Frogger on my Dad’s ancient Apple II when I was a kid. His office smelled of pipe tobacco and wool blankets. It’s a good memory. In Frogger, you use the arrow keys to guide a frog across a busy highway to his habitat on the opposite side. It felt good to save that little frog over and over again: to rescue vulnerable creatures from the relentless march of human progress.

But I didn’t know about the other game being played—the flip side of Frogger. In this game, farmers, water managers, landowners, and others must bravely cross the bewildering regulatory landscape of the Endangered Species Act. That’s a story we often forget when we think about protecting species. And yesterday, with a new critical habitat designation for the Oregon Spotted Frog, that regulatory landscape has become more treacherous.

In 2014, the Fish & Wildlife Service listed the Oregon Spotted Frog as “threatened” under the Endangered Species Act. That means reservoir operations, irrigation districts, and others in the Pacific Northwest must negotiate burdensome Habitat Conservation Plans with the Service. Now the Service’s critical habitat designation for the frog will add to the burden.

Critical habitat designations affect any activities funded or authorized by a federal agency. The agency must consult with the Service to determine whether such activities might adversely modify the critical habitat. If the Service says adverse modification is likely, then the agency will have to come up with a reasonable and prudent alternative.

This sounds like the frog’s critical habitat designation only hurts the government. Not so. The management of federal irrigation districts, for instance, affects everyone. And the adverse modification requirement extends to private activities if a federal agency authorized or funded that activity. That can includes a lot of private conduct. For example, the frog’s habitat consists of wetlands and other areas on or near water. Thus, many private activities within that habit are likely to require a federal permit under the Clean Water Act. That brings those activities under the adverse modification rule.

Thus, the critical habitat designation will make heavy regulatory burdens only heavier. And if the Endangered Species Act’s past track record is any clue, the regulations won’t help the frog. The Endangered Species Act does allow the Service to consider the economic and social costs of designating critical habitat. But the Service has the authority to largely disregard those costs.

And this critical habitat designation extends beyond the spotted frog’s actual known habitat. The Service thus has designated areas as critical habitat that are not in fact habitat at all. The Service thinks it can do so because these areas might at some future date become habitat. As PLF has argued elsewhere, this limitless bureaucratic reach offends the Constitution’s vision of limited federal power.

We should help frogs; and I don’t just mean the pixelated kind. But we also need to consider the burdens we foist on those who live and work within the areas we seek to lock up under federal protection. Conservationists can win one game without losing the other.

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