Critical Habitat- What is it and what does the Supreme Court Decision Mean?

Jan 11, 2019

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     When the Supreme Court issued a unanimous decision on a wildlife issue regarding the dusky gopher frog it was a sharp rebuke to the U. S. Fish and Wildlife Service (USFWS) (https://www.supremecourt.gov/opinions/18pdf/17-71_omjp.pdf).  In most environmental cases decided by the Supreme Court, the result is usually a split decision decided by a contrasting judicial philosophy. It is an important to understand the implication of that decision and what the term critical habitat means.  

    When the USFWS lists a species as an endangered species, it is also tasked with preparing a recovery plan.  The recovery plan identifies the habitat used by the species and the factors that have led to the species being listed as endangered.
 
      The dusky gopher frog is a habitat specialist which means that it lives only in a very specific habitat.  Its historic range is restricted to long-leaf pine forests in the coastal plain of Alabama, Mississippi, and Louisiana.  Long-leaf pine forests contain an open canopy with wide spacing between trees and open grassy meadows. These grassy meadows provide foraging habitat for the dusky gopher frog.

    Long-leaf pine forests also provide optimum conditions for commercial forestry. Slow growing long-leaf pine forests have been replaced by fast growing loblolly pine plantations.  Loblolly pines are planted in dense rows eliminating the open savannah areas of the long leaf pine forest.

    Another habitat component for the dusky gopher frog is ephemeral pools for breeding.  Ephemeral (vernal) pools are isolated pools of water that are seasonally wet.  These pools are the aquatic habitat where frogs mate and lay their eggs.  These pools need to be wet long enough for the frogs to proceed through the tadpole stage.  If the water dries up too soon, the tadpoles die and if there is a drought period then there is no reproduction either.

    A third factor in the life cycle of the dusky gopher frog is underground burrows that provide protection from predators and to escape the heat and drought of the coastal plain.

    So what does all this habitat information mean?  We have a species of frog that lives in a specialized habitat.  It is only known from a very few locations in the State of Mississippi and it occurs in extremely small numbers and an intervention is needed for its survival.

     The USFWS recovery plan included the goal of five metapopulations (stable populations) for this species. Metapopulations rely on ecological models that suggest five separate locations with a large population and enough habitat will allow persistence of this species for a period of 100-years. With only one or two metapopulations, the chance for long-term survival of this species is extremely low.

    So how does all this information and theory affect the recovery of the dusky gopher frog?  The USFWS determined that a large forest plantation in Louisiana that once contained dusky gopher frogs was critical habitat primarily because the ephemeral pools that are present in the area are of high quality.  But the other habitat components that would support dusky gopher frogs are not present.  There are no dusky gopher frogs anywhere near this habitat, so there would have to be major habitat modification to support the dusky gopher frogs and there would have to be a breeding program that could raise  a sufficient number of dusky gopher frogs to repopulate this site in Louisiana.

    In essence, the Supreme Court decided that critical habitat has to be “habitat” and that economic factors were not adequately addressed in the USFWS analysis.  So what will be the end result?  First, the taxpayer will be responsible for paying for species recovery and not a private landowner.  If this former habitat in in Louisiana is essential for the dusky gopher frog recovery then the USFWS will be obligated to purchase and modify land to ensure that the species can survive.

    But more importantly, the USFWS has been put on notice that it won't be able to designate critical habitat in areas where a species presently does not exist. We can only hope that this decision will encourage the USFWS to work more cooperatively with private landowners in order to provide for species recovery.

(Photo: U.S. Department of Agriculture [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0) or Public domain], via Wikimedia Commons)

 



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