Does listing Endangered species ensure its protection? – The example of the Growling Grass Frog

Responsibility for ensuring adequate habitat for the vulnerable Growling Grass Frog (GGF) as new development proceeds into Melbourne’s western growth areas apparently lies with no-one.  As the Leadbeater Possum gains greater protection, the GGF experience shows the merely listing a species is insufficient without action.  GGF is a listed vulnerable species under the Environment Protection & Biodiversity Protection Act 1999.  Obviously, a frog is a wetland dependent species.

Victoria created two Strategies[1] purporting to protect it, but both are disastrous, unless something is done urgently to vary them. Despite 6 years of highest-level Commonwealth-State process, high stacks of paper containing agreements and approvals, and vast person-hours of bureaucratic time, flawed GGF protections grind blindly along. GGF protections in the western growth area of Melbourne rely on the Kororoit Creek within a wider western waterway system. Within the Kororoit Creek, GGF protections (obviously a wetland dependent species) is planned to be via creation of one new large metapopulation area and the assumed viability of a number of existing areas.  The studies upon which the Strategies were based, rely on consultant report that clearly stated critical limitations including a lack of ‘ground truthing’, absence of subsurface conditions and water data and limited knowledge of GGF ecological requirements. Site-specific information and data since the Strategies shows that the new Kororoit Creek metapopulation area has no adequate existing surface water supply and no data exists as to groundwater supply.  Although some GGF surveys occurred as part of growth area planning, large areas of Kororoit Creek went unsurveyed. Melbourne Water has not been asked to assess the proposal’s feasibility as part of its waterway management duties and resists doing so, focusing rather on assessing development infrastructure requirements. The metapopulation site is patently unsuitable.  It rises as a rocky cliff face from the Creek. To a layperson, a frog would find it inaccessible and inhospitable.  The only expert site-specific assessment reveals underlying basalt rock and height from creek, notes that wetland flushing would place the Creek at risk and that the wetland itself would likely fail[2]. Its construction costs would likely exceed $20M, drawing to this one site approximately 30% of the entire habitat construction budget across Melbourne’s Growth Areas for all species[3]. Despite all the best ‘motherhood statements’, none of the Commonwealth and State Environment Ministers, their departments, the State’s Growth Area Authority or State’s water authorities have been able to move to protect the frog in the face of the new expert site-specific data and information.  The process appears to freeze all levels of government and provide a perfect scenario for ‘buck passing’. State development pressures drive the Growth Area process with grinding inevitability.  Fundamental flaws are ignored or dismissed as the grievances of a greedy landowner or troublesome greenies.  The critical limitations and assumptions of the studies relied upon by the Strategies needs to be addressed immediately.  The State is reluctant to delay or complicate the development rollout for environmental reasons that it considers were finalised by the Strategies.  Its Adaptive Modification powers to vary protection arrangements are ignored or misunderstood as development adjustments, not fundament environmental reconsiderations. In the face of complex Commonwealth-State legal documentation, officials appear reluctant to ‘make a wrong move’ or lack the power to do so within their departmental hierarchy. In the sad case of the Growling Grass Frog, processes to date suggest that its days in the Kororoit Creek are numbered. This has implications not only for the GGF, but for species protection arrangements in all of Melbourne’s Growth Areas and, as the protections arise under Federal environmental legislation, nationally across Australia. Dr Leonie Kelleher OAM Principal, LIV Accredited Specialist, Environmental and Planning Law [1]Sub-regional Species Strategy for the Growling Grass Frog, May 2013, State Government of Victoria, DEPI, Melbourne and Biodiversity Conservation Strategy for Melbourne’s Growth Corridors, June 2013, State Government of Victoria, DEPI. [2] This conclusion accords with the GGF Significant Impact Guidelines, studies conducted by the former State Department of Environment and Primary Industries (DEPI) and documented US experience with artificially created wetlands: Bronner, C., et al., 2013, ‘An Assessment of U.S. Stream Compensatory Mitigation Policy: Necessary Changes to Protect Ecosystem Functions and Services’, Journal of the American Water Resources Association, 451, 453; Gardner, R., et al., 2009, Compensating for Wetland Losses under the Clean Water Act (Redux): Evaluating the Federal Compensatory Mitigation Regulation, 38 Stetson Law Review 213-249. [3] Being $71,379,450: Victorian Government, Habitat Compensation under the Biodiversity Conservation Strategy: Melbourne Strategic Assessment, August 2013 (Melbourne: DEPI), p 6. Liability limited by a scheme approved under Professional Standards Legislation This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.