- Proposed Critical Habitat Rules Meet with Mixed Reviews
- January 16, 2015
- Law Firm: Holland Hart LLP - Denver Office
Proposed Critical Habitat Rules Meet with Mixed Reviews
In May, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the “Services”) proposed new rules governing the designation of critical habitat, a new policy on critical habitat exclusions, and a new regulatory definition of “destruction or adverse modification” for purposes of Section 7 consultation. The proposed critical habitat designation rules would loosen the standards for designating critical habitat that does not currently, but could in the future, exhibit the physical and biological features essential to the species’ conservation. The revised definition of adverse modification could then be applied to preclude or limit the ability to undertake actions in the degraded habitat if those actions would “significantly delay” the development of the physical or biological features necessary for the species’ recovery. For additional discussion of the proposed changes, please refer to the October 2014 edition of the Wyoming Environmental Compliance and Public Land News.
Hundreds of comments were received by the October 9 deadline, and many were critical of the proposed changes. Republican Senators warned that the proposals “follow a troubling trend, at both Services, of expanding the ESA beyond its lawful scope.” Lawmakers pointed to the ESA itself, which defines critical habitat to mean those areas in which the physical or biological features essential to species’ conservation “are found.” Similar criticisms were lodged by several states and trade associations. Other industry and agricultural groups described the proposed changes as inexcusably vague and economically damaging.
On the opposite side, the Center for Biological Diversity and others, questioned the proposed definition of adverse modification, which requires a finding that the action will “appreciably” diminish the conservation value of habitat. Environmental groups are concerned that the new definition would leave a loophole in Section 7 by allowing piecemeal rather than cumulative consideration of impacts.
Sage Grouse News
Sage-Grouse Numbers on the Rise in Wyoming
A new state survey shows Greater sage-grouse populations in Wyoming have risen by 10% in 2014 over 2013 levels. The population increase is attributed both to conservation efforts and a wet spring that provided more cover and food. The survey results are based on lek counts for male sage-grouse, but grouse chicks numbers also appear to be up. The Wyoming Game and Fish Department cautioned that it is too early to tell whether the increasing numbers signal the beginning of a long-term upward trend or are part of natural cyclical population patterns. Despite rising statewide numbers, a recent BLM monitoring report indicates declines continue in sage-grouse populations in the Pinedale Anticline.
BLM and U.S. Forest Service Pledge to Work with States as Land Use Plan Amendments are Finalized
The BLM’s and U.S. Forest Service’s sage-grouse land use planning efforts, which began in December 2011, are anticipated to reach a milestone in early 2015 as Final Environmental Impact Statements and plan amendments are rolled out. The purpose of the amendments is to put in place conservation measures to support the U.S. Fish and Wildlife Service’s finding that adequate regulatory mechanisms are in place for the sage-grouse and are sufficient to avoid the need to list the species. Of the 98 land use plans scheduled for amendment as part of the agencies’ sage-grouse conservation strategies, only one has become final—the BLM’s Lander Resource Management Plan in Wyoming, which in general terms implements Wyoming’s core area strategy on federal lands in the planning area. Some environmental groups have strongly criticized the Lander Plan alleging it fails to implement adequate conservation measures, and litigation appears likely.
In the face of mounting pressure from all sides, the federal agencies met in Portland in August in closed door “roll-up” meetings to carefully vet the proposed amendments. In October, the agencies invited state wildlife agencies to a meeting in Denver to present their plans to conserve sage grouse on state and private lands, and to get feedback on the plans from BLM and FWS officials to ensure that they adequately address habitat fragmentation, energy development, wildfire risks, and other threats to the grouse. The meeting came shortly on the heels of a letter from the Western Governor’s Association questioning the BLM’s and U.S. Forest Service’s alleged lack of communication with the states. The letter states, “As Governors, we feel that federal coordination with the states in this planning process is being ineffectually approached and treated more as an afterthought by BLM and [the Forest Service] at the D.C. level.” BLM deputy director of operations Ben Ellis and U.S. Forest Service Deputy Chief Leslie Weldon responded with a one-page letter acknowledging the importance of dialogue with the States and saying, “We look forward to continuing to work with you on the planning and implementation of the Greater Sage-Grouse strategy. Together, our planning effort will help us maintain Western economies, protect wildlife that rely on sagebrush habitat, and promote balance between open space and development.” The agencies agreed to change the land use plan amendment schedule to meet individually with States if requested.
Secretary Jewell’s Visit to Pinedale Highlights Sage-Grouse Conservation Efforts on Wyoming Ranches
On October 15, Secretary of the Interior Sally Jewell was in Pinedale to take part in a signing ceremony for nine Candidate Conservation Agreement with Assurances intended to both conserve sage-grouse and provide regulatory assurances and reduce uncertainty to participating Wyoming ranchers. Secretary Jewell joined BLM State Director Don Simpson, U.S. Fish and Wildlife Service Director Dan Ashe, and Governor Mead at the event. Secretary Jewell lauded Wyoming’s cooperative efforts at conserving sage-grouse, stating, “Successful conservation of sagebrush habitat depends on a spirit of collaborative partnership among states, tribes, federal partners, private landowners and other stakeholders—and this is especially true for the greater sage-grouse, which inhabits both public and private lands across the West. Today we’re celebrating a group of committed private landowners who are stepping up to the plate to take voluntary actions that will take care of the land and wildlife, and preserve their ranching heritage and the Western way of life.” The nine CCAAs cover over 39,000 acres in Wyoming. Whether the CCAAs and other conservation efforts by private land owners, federal land managers, and state and local governments across the sage-grouse range will be sufficient to avoid a proposed listing in September 2015 remains uncertain.
Wyoming Releases Study on Sage-Grouse Habitat Prioritization
The U.S. Geological Survey, Wyoming research biologists, and other scientists recently collaborated to complete the largest known habitat prioritization modeling effort for the Greater sage-grouse. Using telemetry data and land condition geographic information system data, scientists identified resource selection functions to develop regional and statewide habitat suitability models for sage-grouse during nesting, late brood-rearing, and winter. The goal of the models is to provide a scientific basis for land managers and conservation planners to identify and understand the location of important habitats and land use patterns to balance wildlife requirements with multiple human land uses. The USGS press release described the models as improving “our understanding of landscape resource use by sage-grouse” and stated the models “represent the most comprehensive understanding of sage-grouse habitat selection currently available.”