D-Day For Sage Grouse Listing: Test of Wyoming Policy

By Emilene Ostlind, WyoFile, Guest Writer, 3-03-10

LARAMIE – Wyoming’s much-used and little-appreciated sagebrush ecosystem– and one of Gov. Dave Freudenthal’s most elaborate initiatives—are rapidly approaching a critical milestone.

At the end of the week, the U.S. Fish and Wildlife Service will decide whether to move towards listing the Greater Sage-grouse as an endangered species.

Wyoming’s minerals extraction and ranching industries and the governor’s office are awaiting the decision, due out early next week.  They’ve worked together to craft a strategy to avoid listing the Sage-grouse as endangered.

Sage-grouse and its sagebrush habitat are widespread in Wyoming.  This habitat has become fragmented as development has proceeded across the state, causing grouse numbers to dwindle. A federal endangered species listing, with its accompanying ban on disturbing the bird and its ecosystem, could force the cut back or closure of operations on ranches, mines, and oil and gas fields all over the state.

The governor’s strategy has produced efforts to help the bird, and allow industry amidst the sagebrush to continue. Those efforts have been hailed as unique in the nation. But whether those efforts have been enough – particularly when one initiative was dramatically cut back in scope last fall – will be up to the federal wildlife experts.

Aaron Clark, energy infrastructure advisor to Gov. Freudenthal, expressed anxiety over the Fish and Wildlife Service’s decision when he spoke at the governor’s Wind Symposium last autumn.

“The thing that scares us to death,” he said, “is that from a gas production standpoint, 83 percent of the total gas production in the state of Wyoming would be subject to additional regulatory review with a full statewide listing of Sage-grouse.”

The decision, due Friday, March 5, to be published in the Federal Register early next week, will determine whether the bird and its habitat should receive the protection against destruction and disruption that is provided to “listed” species under the federal Endangered Species Act.  An initial pro-listing decision would begin a year-plus process before the bird would be officially listed and protected.

With its decision, the federal agency could also affect both the ranching and minerals extraction industries.

“I need to get clear on the record, it isn’t some obsession that I have with the Sage-grouse that has led me to where I’m at,” Freudenthal assured his listeners at the Wyoming Wind Symposium on the University of Wyoming campus last August as his staff presented conservation plans.  “What I have is an obsession with is making sure that the economy in this state continues to function, which it won’t if we in fact get that bird listed.”

Freudenthal has taken the lead in coming up with plans to stave off a federal listing. IN 2007, he organized state employees and the private sector into A team to come up with a plan that would designate as sage-grouse “core areas” packets of land that ranchers, miners, and oil and gas drillers must avoid.

The “core area” designations have critics who see them influenced as much by economics as by science – and not backed with enough legal muscle.

The idea behind the governor’s strategy is essentially to create enough state protection for the Sage-grouse that the federal wildlife officials can comfortably decide that the bird’s future is looking all right, and Sage-grouse should not be listed as endangered.

Meanwhile, a second strategy that might have helped keep the grouse off the endangered species list was scaled back and postponed.  This would have involved the creation of a binding agreement that would exempt landowners from further restrictions on their economic activity if they agreed to Sage-grouse conservation measures before listing occurred.  The scope of the conservation agreement – once planned to cover the entire state – has been drastically cut back since the governor’s office first announced it with some fanfare last August, and now is set to be rolled out next fall, too late to affect the wildlife service’s decision.

Whether the state’s Sage-grouse strategy will give the bird enough protection to avoid a federal listing is unclear.  But even the federal wildlife agency does not list the grouse this year, an unrelated factor may be at work – the agency’s workload. So many other, more vulnerable bird species await listing, the agency may not have the manpower to address the requisite protections for all. So some people in Wyoming are betting that the Sage-grouse listing won’t occur – this time.

The strategy and its promise

Wyoming is home to about half of North America’s Greater Sage-grouse.  One of the five factors the wildlife service considers in its decision to list a species as “endangered” is “inadequacy of existing regulatory mechanisms.” At present, Wyoming is hustling to develop “adequate” conservation measures in hopes they will preclude the need for federal listing.

Brian Rutledge, Executive Director of Audubon Wyoming and an instrumental player in Sage-grouse policy in Wyoming, believes that Wyoming has “made a lot of the right moves, but we’ve known this bird was in trouble since 1954.  Wyoming should take a lot of credit for making the first big moves to protect the bird, but whether or not it’s enough, soon enough is an open question.”

Freudenthal’s “core concept” has received some support at the federal level.

“The governor’s Sage-grouse core area concept is a model for the nation,” said Steve Black, counselor to Secretary of the Interior Ken Salazar and co-chair of the Department of the Interior’s Renewable Energy Task Force, speaking at last fall’s wind symposium.  “He’s absolutely correct that that issue puts Wyoming– as he has said before– on sort of the razor’s edge, and that it will affect every aspect of Wyoming’s economy. And that’s true for a lot of western states.”

Bob Budd, Executive Director of the Wyoming Wildlife and Natural Resources Trust and a member of the state’s Sage-grouse implementation team, believes that whatever the decision on March 5, the “core area” plan has helped prepare the state to deal with conservation of the grouse, which will be an ongoing issue.

The core area plan “focuses our effort where we can have the most beneficial influence,” Budd told WyoFile in a telephone interview.  “We aren’t running around out there saying, ‘Oh, look, gee, there’s a grouse.  Maybe we better do this, maybe we better do that.’ We are actually focused on where they are and where we can have the best influence.  Whether they list it or not, the strategy I think is sound.”

Erik Molvar, of Biodiversity Conservation Alliance, agrees that Wyoming’s future conservation relationship with Sage-grouse will continue to develop.

“If we don’t solve the problem of increasing the degradation and destruction of sagebrush habitat, we are going to see the Sage-grouse continue to decline over time,” Molvar told WyoFile. “So there is an incentive to try to do everything that we can to maintain healthy Sage-grouse populations even if a listing decision turns out not to be warranted.”

In 2007, Gov. Freudenthal created a Sage-grouse conservation implementation team of 14 citizens from energy, wildlife, conservation, agriculture, and other areas, to develop a plan to avoid federal listing of the grouse.  The team identified what it called “Sage-grouse core areas,” where conservation efforts might best benefit the species.  A map of the core areas shows blue blobs covering about one quarter of Wyoming, mostly in basins scattered diagonally from southwest to northeast.

“To put it simply, it’s where the Sage-grouse are,” implementation team member Budd said.  “We know that from lek data that’s been collected for years by Game and Fish, by energy companies, by independent biologists, and others.  Using that we were able to find the areas that have the highest density of birds.”

Business interests also played a part.  Leks—critical breeding grounds where male sage-grouse put on an elaborate courting display to attract females—in oil and gas development areas were largely excluded from what the state calls “core areas.”

“The Sage-grouse implementation team did a very good job in carving the core areas out, away from the oil and gas wells that are around the state,” Aaron Clark said.

While 83 percent of natural gas development is in Sage-grouse habitat, only 2 percent is included in the implementation team’s core areas. Eight-seven percent of coal is in the Sage-grouse’s range, only 4 percent is labeled “core.”

John Emmerich, Deputy Director of Wyoming Game and Fish, explained the reasoning behind the “carving out.”

“We had high densities of Sage-grouse there in the late ’90s and the early 2000s, but that’s about the same time real intensive development kicked off in these areas,” he said, pointing to a map OF “core areas” skirting Wyoming’s busiest natural gas fields. “And we have been documenting some pretty significant declines.”

Because Sage-grouse are not expected to continue to occupy those areas for the next several decades while natural gas extraction continues. To make up for this loss, other pieces of Sage-grouse habitat– with lower bird densities—were designated as “core” instead.

Implementing the core area concept is a question of the limits of state regulatory power.  According to Pat Deibert from the Wyoming Ecological Services Office, the conservation rules for the core areas are “not truly regulatory at this point, but they’re going that direction.”

Game and Fish published recommendations for Sage-grouse management in Wyoming, but state agencies can apply their recommendations only on state-owned land.  State-owned sage-grouse “core areas” make up about 330,000 acres — or 1 percent– out of the 32 million acres of sagebrush in the state.  The state’s recommendations include limiting oil and gas development to one well-pad per square mile; putting transmission lines at least half a mile from active Sage-grouse leks; and generally maintaining a six-tenths of a mile buffer between development and occupied Sage-grouse habitat.

“That’s not a big enough buffer, according to the science,” said Molvar of the Biodiversity Conservation Alliance.  “The science says if there is a producing gas well pad within 1.9 miles of the lek, there is going to be a decline and that decline is going to be significant. … That’s from producing wells. The distance for drilling is three miles.”

The governor issued an Executive Order in August of 2008 requiring all state agencies to protect Sage-grouse within the core areas, but also incentivizing development outside of core areas.  The Executive Order is to be enacted the same as a law passed by the legislature, but the language of the document allows for flexibility.

The federal Bureau of Land Management in Wyoming has adopted as its policy the state Game and Fish recommendations, the implementation team recommendations, and the governor’s Executive Order.  An Instructional Memorandum the Bureau issued last December recommends deferral of mineral leasing in certain Sage-grouse core areas.  Leasing on land will be deferred if it is in a core area and within suitable sage-grouse habitat on a “parcel [that is] a part of at least eleven square miles of contiguous, manageable, unleased Federal minerals.”

In May 2008 the federal wildlife service wrote to the governor’s office that the “core population area strategy, as outlined in the Implementation Team’s correspondence to the governor, is a sound framework for a policy by which to conserve greater sage-grouse in Wyoming,” giving the state hope that the plan will keep the Sage-grouse from being listed.

However, Brian Rutledge of Audubon Wyoming points out that the core areas are “only protected right now by an Instructional Memorandum and an Executive Order, not by legal stipulation.

“So we’re going to have to seek more stringent protections for [the Service] to consider it too very heavily.  [The core areas] are certainly positives in the consideration.  Whether or not they’re enough is an open question,” he said.

Molvar of Biodiversity Conservation Alliance thinks an endangered species listing might help the core area plan work, as it might not otherwise.

“There’s so much discretion, and so much latitude for judgment calls, for the way [conservation measures are] implemented,” he said. “It’s going to be that judgment of the implementing managers that determines how effective this core area strategy really is.  And that is a huge amount of trust to be handing off to a group of folks, who– let’s face it– historically have presided over the decline of the Sage-grouse. … The genius of an endangered species listing is that it is probably the one thing out there that could compel the core area model to work in a way that is biologically effective for Sage-grouse.”

Conservation Agreements

The state has also been creating Candidate Conservation Agreements with Assurances as another way to protect Sage-grouse.

These are agreements between the Fish and Wildlife Service and private landowners, wherein the landowners agree to act in the near term to protect candidate species and its habitat on private land, regardless of whether the species is listed as endangered. In exchange, the landowner receives an assurance from the federal wildlife service that if the species is listed, the landowner is exempt from any further regulation.

“Developing the [conservation agreement] is like making an endangered species listing in reverse,” said Scott Covington of federal service’s Energy Program in the Wyoming Ecological Services office.  “We’re trying to preclude the need to list.  We have to develop conservation measures to reduce the threats to the Sage-grouse.”

Landowners can develop their own individual agreements with the wildlife service, which is how most of the nation’s conservation agreements have been done in the past.

Wyoming, however, over a year ago floated the idea of developing a sweeping, statewide, programmatic conservation agreement for Sage-grouse, which would have given landowners in all kinds of industries the chance to sign on.  This has never been done before. Putting it together seemed to require the expertise of someone who had worked widely with the Endangered Species Act before, so the governor’s office contracted with an outside consultant, Tom Blickensderfer, to develop the proposal.

That plan was announced last August at the governor’s Wyoming Wind Symposium, where Blickensderfer described the statewide conservation agreement project in some detail, indicating that the text of the agreement was nearly ready to send to the wildlife service.

Since then, however, Blickensderfer has left the employ of the governor’s office, which has scaled the concept back to create conservation agreements Specific only to ranch management, and the work has been done in-house, by the governor’s staff.

A team of representatives from the federal wildlife service and land management bureau, the state game and fish department, and the ranching community, specifically from conservation districts, have been working together to draft this new, broad conservation agreement for the state, which would outline conservation measures ranchland managers can take to protect grouse and grouse habitat on their property.

If a statewide agreement for ranchlands can be put together, each player could benefit.  The wildlife service would get voluntary species protection on private land; the state could streamline the processing of what could otherwise be hundreds of individual agreements; landowners could opt out of increased regulation should the Sage-grouse be listed; and Sage-grouse might possibly benefit, too.

Sage-grouse inhabit nearly 11 million acres of private land in Wyoming. Potentially, any of that land where ranch practices occur could be included in the conservation agreement now being developed.

As the listing clock ticks, the conservation agreement for Sage-grouse on Wyoming ranchland is still being drafted.  The hope is that after testing, this ranch-specific agreement could be a model for additional agreements with other industries. But if the wildlife service decides that listing is warranted now, the state will have just one year– until March 2011– to complete any Sage-grouse conservation agreements.  Once the grouse is officially listed, it is too late to sign on to a voluntary agreement.

The governor’s office expects that more landowners from all industries will have an incentive to sign up if the wildlife service decides that listing is warranted.

So the conservation agreement effort now appears to be more a plan to shield landowners from the regulation that would come with listing, rather than a strategy to avoid listing altogether.

Covington noted that landowners with Sage-grouse on their property have already been trying to develop their own conservation agreements, and have also approached his office with an interest in the state’s umbrella agreement.  The governor’s office expects the statewide agreement to be ready early next fall.

According to Ryan Lance, Deputy Chief of Staff in to the Governor, the entire history of Wyoming has seen only one individual conservation agreement implemented, and that one took ten years to develop.The listing debate

Greater Sage-grouse rely on large areas of intact sagebrush ecosystem for food, cover, breeding, and nesting.  And those habitats are increasingly fragmented by development across the West.  Wyoming is home to 52 percent of the world’s existing Greater Sage-grouse, as well as populations of many other species that rely on intact sagebrush steppe habitat, including pygmy rabbits, black-footed ferrets, mule deer, pronghorn, and others.

“The Greater Sage-Grouse is often called an icon of the West because the species has become the symbol for conserving sagebrush ecosystems, one of the most difficult environmental challenges in North America,” write Steven Knick and John Connelly in the introduction to a recent, comprehensive, scientific study of Greater Sage-grouse for the wildlife service.

“Much of the information presented here and in the recent literature paint a bleak picture for the future of Greater Sage-Grouse,” the introduction concludes. “We hope that through better understanding, increased appreciation, and effective conservation, we might ensure the trajectory of long-term declines of Greater Sage-Grouse populations is not their destiny.”

The first listing petition for Greater Sage-grouse was submitted in 2002.  In 2005, the wildlife service found that the bird did not warrant endangered species status.  The agency reasoned that while Sage-grouse numbers have long been in decline, the rate of decline has slowed in recent decades.  Furthermore, the service wrote, “[A]pproximately 160 million acres of sagebrush, a necessary habitat for sage-grouse, currently exists across the western landscape.”

In 2007, a group called Western Watersheds Project sued the federal service for its decision not to list the Greater Sage-grouse.  The Watersheds Project website states that populations of Greater Sage-grouse have declined from historic millions by as much as 93 percent.

The federal District Court in Idaho found the service’s decision not to list the Sage-grouse was flawed, as the service did not adequately consider the best scientific information because it did not involve experts in the final decision-making process.

“Julie MacDonald, a Deputy Assistant Secretary who was neither a scientist nor a sage-grouse expert, had a well-documented history of intervening in the listing process to ensure that the ‘best science’ supported a decision not to list the species,” the court rule. “Her tactics included everything from editing scientific conclusions to intimidating FWS staffers.”

The court ordered the wildlife service to reconsider listing the Greater Sage-grouse as an endangered species and to announce its decision on February 26, 2010. However, wildlife service director Sam Hamilton, who was to make that decision, died while skiing in Colorado on February 20 and the court extended the deadline to March 5.

Fateful Friday

On Friday, the wildlife service could make one of three decisions: that an endangered species listing for the Greater Sage-grouse is warranted, not warranted, or warranted but precluded.  If the agency decides listing is warranted, they will publish a proposed rule that will undergo a year of review before becoming final.

“If the agency decides that listing is not warranted, it’s a pretty good bet that they’ll get sued again,” said Mike Brennan, an attorney for Holland and Hart, LLC, who has worked on endangered species litigation.  “If the agency decides that listing is warranted but precluded, it’s also a pretty good bet that they’ll get sued again, and they’ve lost every time that they’ve attempted to make either of those findings.  I don’t see anything out there that suggests a different outcome would be likely this time around.  And that makes the possibility of a listing a pretty significant one.”

Brian Rutledge, Executive Director of Audubon Wyoming and an instrumental player in Sage-grouse policy in Wyoming, disagrees.

“I don’t think they would be listed right away because there are so many other species awaiting listing,” he said. “My suspicion is they will be found warranted but precluded.  … That is just a guess.  There are 279—I think—other species on the waiting list ahead of them, and some of those are birds that are in even more critical condition.”

Potential economic impacts: traditional industries

While some conservationists would see listing as a victory in the effort to protect America’s declining sagebrush, other groups now profiting from the sagebrush ecosystem—energy companies and ranchers, for instance—would face new challenges.

The Endangered Species Act prohibits any activity that could push the listed species closer to extinction.  Section 9 of the Act makes it illegal for anyone on any piece of land, public or private, to kill or hurt a Sage-grouse.  This includes interrupting normal behavior, such as eating, mating, or finding shelter, through harassment or habitat destruction.

Furthermore, Section 7 of the Endangered Species Act, the Jeopardy Prohibition, makes it illegal for an agency to, “take action which may jeopardize the continued existence of threatened or endangered species, or adversely modify or destroy designated critical habitat.”

According to lawyer Brennan, “If you are applying for a right-of-way or a POD [plan of development] or what have you, and the agency—BLM—and FWS consult and conclude that the impact would be sufficiently significant to jeopardize the species, you don’t get that BLM permit.”

According to the maps produced by the governor’s Sage-grouse implementation team, the bird’s habitat overlaps 87 percent of the coal, 64 percent of the oil, 83 percent of the natural gas, and 38 percent of developable wind resources in the state of Wyoming.  State government officials fear an endangered species listing of the Greater Sage-grouse would significantly change the energy industry in the state. Furthermore, 40 percent of private land and over 90 percent of grazing leases would be affected.

“I think you can see why we are so concerned about the economic impact of a full listing,” said Clark, energy infrastructure advisor to Gov. Freudenthal. “What we live on in this state is mineral revenues, and we would be subjecting a lot of that to the vagaries of the Endangered Species Act.”

Potential economic impacts: wind energy

As the governor’s office works to prevent listing, it has also chosen a favorite between the traditional carbon-based energy industry and the new wind energy industry.  The Sage-grouse core area strategy clearly favors oil and gas; it pushes wind development into areas that are not the industry’s first choice.

According to a 2010 study by the National Renewable Energy Laboratory, Wyoming ranks eighth in wind energy resources, with an estimated potential of 552,000 megawatts of production, although at the end of 2009 the state was just 12th in actual output.

For most residents, the reasons to invite the wind industry to the state are economic.  For example, a sales tax exemption on wind energy is set to run out at the end of 2011, meaning counties with wind farms could soon expect to collect up to $3 million on construction of a 100-megawatt project.  Property taxes would add up to another $1.5 million for the same project.  And during construction, a wind farm may create up to 300 jobs, though only 10 to 15 would be permanent once the facility is built.

The state Legislature just passed a bill creating an excise tax of $1 per megawatt-hour on wind energy. If signed by the governor, this tax would create revenues to be split 40:60 between the state and county governments, potentially bringing in millions to counties where the wind energy is produced

Despite the economic promise of wind development, some residents hesitate.  Ed Werner, Converse County Commissioner, notes that sales tax is one-time and property taxes decline over time, while residents must live with wind developments indefinitely.

Few want to live under the immense transmission lines that will be necessary to fully develop wind energy resources.  And when faced with the enormous and very visible wind “farms,” some feel that Wyoming open spaces and wildlife habitat are being ruined so people living in states to the south and west can enjoy our “clean” energy.

Very little is known about how Sage-grouse react to turbines and other wind infrastructure, so agencies are uncertain about how to proceed with wind development in Sage-grouse habitat.  Sage-grouse don’t fly high enough to hit turbine blades, but they are sensitive to human activity and to tall structures.  In an ongoing study of 75 female Sage-grouse tagged with radio transmitters, nine nested within a mile of a wind turbine.  Still, no one knows certainly whether Sage-grouse continue normal reproductive behavior adjacent to wind facilities, or how much of a buffer they require between leks and wind development.

In July of 2009, the federal wildlife service wrote the Wyoming Game and Fish Department that “constructing wind farms in core areas, even for research purposes, prior to demonstrating that it can be done with no impact to Sage-grouse, negates the usefulness of the core area concept as a conservation strategy and brings into question whether adequate regulatory mechanisms are in place to protect the species.”

Sage-grouse “core areas” exclude from development some 22 percent of viable wind resources.  Wind representatives were brought to the Sage-grouse implementation team very late, and unlike with natural gas and coal, the designations of core areas has done little to accommodate the wishes of the wind industry.

Molvar agrees with the decision to keep wind development out of core areas.

“That’s a benefit for Sage-grouse,” he said. “If only the state government had the backbone to apply the same kinds of strong protections from the oil and gas industry, they could have made a much better case.  Then this listing could really be avoided.”

This story originally appeared on WyoFile.com. WyoFile is non-partisan public service journalism, focused on politics and public policy.

Like this story? Get more! Sign up for our free newsletters.