ESA changes could help protect sage grouse on private land
In an increasingly subdivided and trailblazed West, southeastern Oregon’s Harney County is a place that can still make you feel small. From the empty blacktop two-lane highways 78 and 20, broad grasslands rise to sagebrush-studded mesas and hills that crest and break to the blue horizons like the landlocked waves of a parched sea. Drive-fast-with-your-windows-down country; 0.7-people-and-ten-times-as-many-cows-per-square-mile country; and, as it happens, excellent greater sage grouse country.
The chicken-sized ground-nesting bird, best known for elaborate mating dances and stubborn loyalty to ancestral mating grounds called leks, occupies massive swaths of 11 Western states and two Canadian provinces. And it has lately been figuratively looming over the region like a gigantic, balloon-chested, strutting Godzilla: The U.S. Fish and Wildlife Service must make a court-ordered decision whether to formally protect it under the Endangered Species Act by 2015, potentially ushering in what many believe would be economically devastating land-use restrictions. Grouse numbers have declined by 90 percent, and habitat by about half, over the last century. In 2010, Fish and Wildlife found that an ESA listing was warranted, but that other species more urgently needed protection. That bought time for federal and state agencies, ranchers, conservationists, energy companies and others to mount massive recovery efforts in hopes of staving off the need for listing altogether.
On Wednesday, the U.S. Fish and Wildlife Service and Harney County’s Soil and Water Conservation District will finalize one such project -- a collaboratively-developed private land conservation plan called a Candidate Conservation Agreement with Assurances, or CCAA, that will cover Harney’s million-plus acres of private land. Landowners who sign on agree not to fragment habitat with subdivision or development and will apply conservation measures tailored to their properties, such as removing encroaching junipers that crowd the birds out, tagging fences to reduce lethal collisions, and altering grazing to improve forage and nest cover. In exchange, they’ll avoid further regulation should the bird be listed.
More than 30 landowners have already committed, covering 250,000 acres. Oregon's seven other sage grouse counties will likely follow Harney’s model, meaning all the state's habitat on private land would be covered by a CCAA before the listing decision, according to Fish and Wildlife’s Oregon State Supervisor Paul Henson, though what impact that has depends on how many people sign up.
“Private landowners often view endangered species on their property as a risk. We want them to be seen as an asset,” Henson says. That’s a major advantage of voluntary agreements, since they foster the trust and buy-in necessary to get proactive habitat improvements on private lands, where federal authorities otherwise don’t have much control beyond telling landowners what not to do.
With approximately 40 percent of occupied sage grouse habitat on private lands, the Obama administration has put a lot of muscle behind this approach in the lead up to the listing decision, from CCAAs developed in partnership with Fish and Wildlife to the massive Sage Grouse Initiative mounted by the Natural Resources Conservation Service, which has put more than $350 million in Farm Bill and partner-supplied funds into conservation measures on some 953 ranches, covering 3.8 million acres across 11 states, since 2010.
And earlier this month, the administration rolled out a court-ordered revision of its critical habitat rules and policies for endangered species that appears to bolster its collaborative approach. The critical habitat designation is supposed to protect landscapes and features essential to a species’ conservation, and thus comes with restrictions on how the land covered can be used. Among other things, the new draft, open for public comment through July 11, clarifies the terms under which non-federal lands covered by conservation agreements such as Harney County’s CCAA can be excluded from critical habitat designations, essentially adding transparency and consistency to things Fish and Wildlife and the National Marine Fisheries Service are already doing.
That’s important, says Defenders of Wildlife Director of Endangered Species Conservation Ya-Wei Li, because while “critical habitat rarely has a regulatory impact on private land (it only affects projects that require a federal permit or federal funding), the perception is that it’s this big monster and ‘I can’t put a swimming pool in my back yard’ (if my land is designated). This policy is more about giving people peace of mind.” That will help a lot in the West, says Henson, “especially for species where we need private and state landowners to commit. I think it will result in more conservation on nonfederal lands.”
Indeed, just as dodging an ESA listing is a powerful motivator for conservation, so too does the specter of unavoidable ESA restrictions seem to have a chilling effect on private land conservation efforts. According to an NRCS report to the Western Governor’s Association, landowner participation in the Sage Grouse Initiative declined precipitously on the Nevada-California border after Fish and Wildlife proposed listing a distinct population of grouse there as threatened. "While several factors likely influence landowner participation,” NRCS Chief Jason Weller wrote, “13 producers who had submitted early applications (for SGI conservation funding) in fiscal year 2014 … withdrew their applications shortly after the listing announcement.”
Li worries that the critical habitat proposal makes it too easy for the feds to exclude land covered by agreements developed in partnership with Fish and Wildlife or the Fisheries Service (CCAAs, as well as other arrangements called Safe Harbor Agreements and Habitat Conservation Plans). Some of those plans “are horrible,” Li says, pointing to a recent CCAA for prairie chickens, which covers oil and gas development on the bird’s range in Texas, Oklahoma, Kansas, Colorado and New Mexico. Because that particular CCAA allows temporary mitigations for “permanent impacts,” he argues, it isn’t nearly as protective as a critical habitat designation would be. He also nods to the controversy over a CCAA covering dunes sagebrush lizard habitat in Texas. Fish and Wildlife used the agreement as justification not to list the lizard as endangered, inspiring lawsuit from Defenders and the Center for Biological Diversity, who charge that the CCAA doesn't provide the agency with enough information on conservation measures for it to judge whether they’d be effective or not.
The resolution of the case will be interesting, Li says, because it “raises novel legal questions. How much can the Service rely on an agreement that has no track record? If you can do enough conservation to prevent (a species) from being listed, that’s success. But there needs to be some real level of confidence that those activities are actually going to produce benefits.”