Skip to content

About PERC

All Areas of Focus

All Research

Critical Habitat’s Unique ‘Private Land Problem’

  • Jonathan Wood,
  • Tate Watkins
  • Executive Summary

    Because habitat loss is a leading cause of species decline, the Endangered Species Act provides for critical habitat designation to protect imperiled species and encourage recovery. The tool can also spur conflict by creating potential restrictions on what landowners can do with their land. In this policy paper, Jonathan Wood and Tate Watkins explore the effects of critical habitat designation on endangered species through the case of the dusky gopher frog.

    After human development reduced its habitat, the dusky gopher frog’s population shrank to 135 frogs across six Mississippi ponds. In 2001, the Fish and Wildlife Service (FWS) listed the species as endangered and designated 6,477 acres as critical habitat, 1,544 acres of which was private land in St. Tammany Parish, Louisiana. Local landowners, concerned about potential restrictions on their ability to use their land for timber harvesting, sued the Fish and Wildlife Service and took their case to the U.S. Supreme Court.

    The Endangered Species Act regulates private land in two ways. First, via the “take” prohibition that prohibits any action that would harm a listed species, even unintentionally. Second, critical habitat designations prohibit adversely modifying designated habitat. The authors find that these regulatory restrictions may create incentives for landowners to make their property less hospitable to species. This is done to avoid the possibility of increased regulatory burdens that may lower property values and increase scrutiny of land-use activities requiring a federal permit.

    Wood and Watkins identify key lessons from the case of the dusky gopher frog about how to more effectively use critical habitat to help species recover while avoiding the unintended consequences that can result from overly broad designations. Their insights include:

    • Prioritizing federal land as critical habitat can help avoid the private land problem altogether.
    • A critical habitat designation may not be beneficial for currently unoccupied habitat which is already protected by the “take” prohibition.
    • Designating critical habitat in areas that are not currently suitable for a species’ survival is not likely to lead to positive conservation outcomes. Critical habitat designations are not the best way to gather information about a species, especially given the unintended consequences that may occur.

    Because endangered species rely on private land for survival, landowner goodwill is critical for efforts that require their participation to restore habitat and recover species. Wood and Watkins suggest a better way to spur proactive habitat conservation would be allowing markets to value habitat features to aid restoration efforts. Funding for conservation is limited, and the authors propose that such funding may be better spent purchasing private land for conservation efforts rather than enforcing regulations that create unintended outcomes that can actually harm species or their habitat. Compensating landowners for habitat restoration efforts or for meeting species recovery benchmarks is another promising approach. Finally, incorporating habitat restoration into existing mitigation programs could encourage conservation without the perverse incentives caused by critical habitat designation.

    Ultimately, the authors find that policy changes that allow markets to align private landowners’ interests with those of endangered species are most likely to achieve more cooperative and positive conservation outcomes in the future.

    Read the full paper.

    Written By
    • Jonathan Wood
      • Vice President of Law & Policy

      Jonathan Wood is vice president of law and policy at PERC, leading PERC’s Conservation Law and Policy Center.

    • Tate Watkins
      Tate Watkins
      • Managing Editor,
      • Research Fellow

      Tate Watkins is a research fellow and managing editor at PERC. His writing has appeared in The Wall Street Journal, The Washington Post, Reason, The Atlantic, The Hill, and many other outlets.

    Related Content