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Sage Grouse Not Protected by ESA, But Will Still Play Role in Western Energy Development

By Jessica Ferrell
March 29, 2010

Earlier this month, the U.S. Fish and Wildlife Service (the “USFWS” or the “Service”) published its 12-month findings on three petitions to list the greater sage grouse as threatened or endangered under the ESA. The Service determined that listing the species is warranted under the ESA, but precluded at this time due to budget constraints and higher priority candidate species.

Despite the reprieve from an immediate ESA listing, developers – including energy developers – still confront a variety of federal, state, and local regulatory measures in the West related to sage grouse protection. The majority of regulatory restrictions on development activities will be dictated by: 1) the Bureau of Land Management (“BLM”), the agency responsible for managing over 50% of sage grouse habitat; and 2) to some extent, the affected states – in particular, Wyoming, where over 50% of sage grouse in North America occur, and which has significant wind power capacity and potential for that and other types of renewable energy development.

Background

The listing decision over the sage grouse has been one of the most contentious in recent years because of its potential to impact millions of acres of Western land. Listing opponents, including the Congressional Western Caucus, have argued that listing the sage grouse could devastate Wyoming’s economy, along with the ranching, oil and gas development, and farming heritage of the eleven Western states containing sage grouse. Opponents of the listing are also concerned that listing would all but preclude renewable energy development in the eleven affected states, each of which contains a significant amount of the nation’s wind, solar, geothermal, coal, and/or hydroelectric energy resources.

Listing supporters allege that the sage grouse, whose population has fallen 90% from historical levels, is either in danger of extinction throughout all or a significant portion of its range, or likely to become endangered within the foreseeable future.

The USFWS essentially split the different between the two sides. As a “candidate” species, the sage grouse is not provided any protection under the ESA, but the Service will review the species’ status annually, with the expectation of listing it in the future if its status does not improve. However, based on the Service's ranking of the species (discussed below), the likelihood of listing anytime soon is small, and the sage grouse will remain near the end of a line of approximately 250 candidate species awaiting listing.

Procedural Background and Listing Decision

This case dates back to 2007, when the U.S. District Court for the District of Idaho ruled that the USFWS unlawfully determined that listing the sage grouse under the ESA was “not warranted” due to improper political interference, and remanded the decision to the USFWS.[1] Earlier this month, the USFWS issued its “warranted but precluded” finding for the bird. In it, the USFWS made the following findings to justify its “warranted” determination, framed by the five statutory factors for listing under ESA § 4(a)(1):

  • The present or threatened destruction, modification, or curtailment of habitat or range is a significant threat warranting listing of the sage grouse as threatened or endangered. The Service pointed to habitat destruction and fragmentation occurring as a result of the following: direct conversion of sagebrush habitat to agricultural and other uses; urbanization; infrastructure, including that necessary for various renewable and nonrenewable energy projects (roads, power lines, communication towers, fences, railroad, etc.); wildfires; incursion of invasive plants; grazing; and direct displacement by energy development. It also pointed to an acceleration of these impacts by climate change.
  • Overutilization of sage grouse for commercial, recreational, scientific, or education purposes is not a significant threat to the species.
  • Disease and predation are threats to the sage grouse, although the impact is relatively low and localized compared to other threats. The Service’s main concern with regard to disease is West Nile Virus, which is exacerbated by the continued development of anthropogenic water sources and other human activities that create optimal mosquito breeding conditions.
  • Existing regulatory mechanisms are inadequate to prevent the extinction of the sage grouse. Federal, state and local agencies have developed programs to protect the sage grouse and its habitat, but the USFWS determined that none will do so adequately. Wyoming and Colorado have implemented regulations that could provide significant protections. But in Wyoming, for example, the Service noted that, while development is generally restricted in core grouse habitat, the restrictions do not apply to existing leases or habitats outside areas designated as “core.”
  • Other natural and manmade factors affecting the species’ continued existence, including pesticides, contaminants, recreation activities, and drought, do not singularly pose a significant threat to the sage grouse. However, the USFWS determined that these threats are still significant.

In support of the “precluded” part of its finding, the USFWS pointed to budget constraints and higher priority candidate species.

The USFWS assigns candidate species “Listing Priority Numbers” (“LPNs”) based on its 1983 guidance on the topic. LPNs are assigned on a scale of 1 to 12, with 1 being the highest priority, based on the magnitude and immediacy of threats and the taxonomic status of species. The Service assigned the sage grouse an “8,” reasoning that threats are imminent but comparatively moderate. This ranking puts the bird near the bottom of priority candidates. Listing decisions on species with lower LPNs, required by court order, and for species proposed with funds from FY 2009 will all take precedence over any USFWS action on the sage grouse.[2]

Regulatory Restrictions Affecting Development in Sage Grouse Habitat

Sage grouse depend on large areas of continuous sagebrush habitat. Sagebrush is the most widespread vegetation in the intermountain West, but the USFWS also considers it to be one of the most imperiled ecosystems in North America.[3] Federal agencies manage almost two-thirds of sagebrush habitat in the United States, with BLM managing over half, the U.S. Forest Service about eight percent, and additional federal agencies the remaining four percent. Approximately 31% of sagebrush habitat is privately-owned, and five percent is state-owned. As a result, the fate of the sage grouse could turn largely on decisions made by BLM, as well as states with significant sage grouse and habitat; namely, Wyoming.

BLM Guidance on Sage Grouse Considerations in Energy Development

On March 5, 2010, BLM published an Instruction Memorandum governing sage grouse management considerations for energy development. The memorandum supplements BLM’s National Sage Grouse Habitat Conservation Strategy, and affects the following BLM program areas: Oil and Gas, Oil Shale, Geothermal, Wind, Solar, and Associated Rights-of-Way, Wildlife, Land Use Planning, and National Environmental Policy Act (“NEPA”).[4]

At this point, because the Gunnison and greater sage grouse are “BLM sensitive species … to be managed to promote their conservation and to minimize the need for listing under the ESA, in accordance with BLM’s special status species policy … , when necessary to maintain sustainable sage grouse populations across the broader landscape within the state, field managers will implement an appropriate combination of the following actions in ‘priority habitat’”:

  • Oil, gas, and geothermal energy: BLM will withhold from sale or defer the sale of parcels proposed for oil and gas or geothermal leasing in priority habitat as supported by NEPA analysis of the impacts of leasing on sage grouse. If parcels are offered for sale in sage grouse priority habitat, BLM will impose additional conditions to approvals to develop the lease, including Applications for Permit to Drill (“APDs”), sundry notices and associated rights-of-way, if future sage-grouse conservation efforts are appropriate. In priority habitat and where supported by NEPA analysis, BLM will attach conditions to the approval of APDs that are more protective than the stipulations or restrictions identified in the applicable Resource Management Plan (“RMP”), as appropriate.
  • Oil shale: BLM will screen new lease applications to determine whether the proposed leasing area includes priority habitat. If it does, BLM will alert the applicant that, pending NEPA analysis, the application may be delayed or denied, or that lease stipulations and project approval conditions may be imposed (i.e., designating avoidance areas or No Surface Occupancy restrictions).
  • Wind and solar energy: BLM will screen new right-of-way applications to identify whether the wind or solar energy development or site testing and project area includes priority habitat. If it does, BLM will again alert the applicant that the application may be denied, or that terms and conditions may be imposed on the right-of-way grant to protect priority habitat as supported by NEPA analysis.
  • Transmission: BLM will re-route proposed transmission projects to avoid priority habitat.
  • RMP revisions and amendments: BLM will analyze alternatives that would exclude priority habitat from energy development and transmission projects and consider how projects can avoid, minimize, and mitigate impacts onsite. BLM may condition approval of a project proposal upon onsite modification or additional mitigation.

Wyoming’s State Restrictions

In 2003, largely in an effort to avoid ESA listing of the sage grouse, the State of Wyoming voluntarily published a Greater Sage-Grouse Conservation Plan. The State identified “Core Population Areas” covering approximately 14 million acres – about 20% of the State – where approximately 82% of sage grouse occur in Wyoming. Under an Executive Order by the Governor and associated regulatory documents, “[n]ew development of land uses within Core Population Areas should be authorized or conducted only when it can be demonstrated by the state agency that the activities will not cause declines in [sage grouse] populations.”[5]

Wyoming’s approach has generated controversy and caused some companies to back away from planned wind farms in the state. But despite these restrictions, wind and other renewable energy development is still possible in Wyoming, and Interior Secretary Salazar has surmised that the sage grouse should not impede the pace of renewable or nonrenewable energy development in Wyoming or elsewhere. Duke Energy, for example, intends to continue development, just outside of core habitat. Wasatch Wind Inc. recently submitted a permit application to BLM to build a modest 109-megawatt wind farm on federal land in central Wyoming, outside of sage grouse habitat. The Power Company of Wyoming LLC submitted a conservation plan to BLM last month in support of a 1,000-turbine, 3,000-megawatt, multibillion dollar wind project. It would be one of the world’s largest, and the company proposes to construct it in sage grouse habitat.

$16 million in USDA funds dedicated to sage grouse protection

On March 12, 2010, the Department of Agriculture (the “USDA”) announced its dedication of up to $16 million from its Environmental Quality and Wildlife Habitat Incentive Programs to encourage and assist farmers and ranchers in implementing conservation efforts of the sage grouse. Farmers and ranchers can sign up through April 23, 2010 to participate in the first round of the initiative. The Montana 2009 Greater Sage-Grouse Habitat Conservation Strategy will provide a model for efforts under the USDA funding initiative, promoting sagebrush preservation; revegetation, road minimization; removal of unused fences, culverts, and outbuildings; and additional practical measures aimed at conserving and protecting habitat and minimizing predation of sage grouse.

Cooperative conservation efforts with the USFWS

While candidate species receive no protection under the ESA, the USFWS encourages “cooperative conservation efforts for these species because they are, by definition, species that may warrant future protection under the ESA.”[6] The USDA funding could enhance such efforts, which generally involve public-private partnerships and voluntary efforts to conserve candidate species. They can result in Candidate Conservation Agreements, some “with assurances.” Under these agreements, landowners who voluntarily restore habitat can be protected from future restrictions if a candidate species is listed.[7]

Grazing limitations and recent Ninth Circuit decision

In addition to energy leasing and other activities that will be subjected to closer scrutiny by BLM, the USFS will have to carefully consider the effects of activities it manages on the sage grouse under NEPA and, potentially, the National Forest Management Act (“NFMA”). In a recent decision regarding the effects of cattle grazing on sage grouse, the Ninth Circuit Court of Appeals reversed and remanded a USFS study as flawed under NEPA.[8] The court rejected the USFS’ use of a “proxy-on-proxy” approach to assess the viability of sage grouse, an indicator species for the project area under NFMA. Because only two possible sage grouse sightings had occurred in the past fifteen years, the USFS used sagebrush habitat as a proxy for the species’ population trends. The court determined that the proxy approach “does not reasonably ensure viable populations … when almost no sage grouse have been seen in the project area.” The USFS’ new or supplemental Environmental Assessment will likely incorporate information from the USFWS’ 12-month finding on the bird.

The sage grouse will not likely be listed anytime soon

Listing supporters have characterized the sage grouse’s relegation to a candidate species as “a black hole from which few species ever emerge.”[9] As a result, the environmental group Western Watersheds is seeking leave from the U.S. District Court for the District of Idaho to file an amended complaint in litigation that it initiated in 2006 (which led to the USFWS’ reconsideration of its initial “not warranted” determination). The group asserts that the “warranted” part of the USFWS’ determination is proper, while the “but precluded” part is not. It alleges, inter alia, that the USFWS is not making “expeditious progress” toward listing species under the ESA, and that it may not rely on “budgetary and other excuses to avoid [complying with] the ESA .…”[10]

As of November 9, 2009 (according to the Service’s latest Candidate Notice of Review publication), 249 candidate species under the USFWS’ jurisdiction were awaiting listing. In a 1990 report, the Department of Interior’s Inspector General (the “IG”) estimated that, even if the USFWS listed 50 species annually, it would take between 38 and 48 years to list all candidate species. The IG also determined that 34 candidate species that were categorized as such in 1980 had gone extinct by 1990. Between 1974 and 2000, the USFWS listed approximately 45 species annually. Between 2001 and 2005, that rate slowed to around 7 species per year, and has declined. So far in FY 2010, the USFWS has completed five listing rules.

Unless Western Watersheds prevails in its ongoing lawsuit and the Service reverses it position on remand, the sage grouse is unlikely to be listed anytime soon. Regardless of the Service's decision not to list the species, developers must still contend with state and federal regulatory programs meant to protect the sage grouse. The programs and restrictions discussed above present significant obstacles, as well as opportunities, for conservation efforts, energy development, ranching, farming, and additional activities in the affected states.

For additional information, contact Jessica Ferrell or any member of Marten Law’s Natural Resources or Permitting and Environmental Review practice groups.

[1] See Western Watersheds Project v. U.S. Fish & Wildlife Serv., No. 06-CV-277 (D. Idaho).

[2] All information regarding the listing decision is set forth in the USFWS’ 12-month findings on three petitions to list the greater sage grouse as threatened or endangered under the ESA.

[3] The Service lacks information regarding, among other things, the minimum sagebrush patch sizes necessary to support sage grouse populations and the species’ responses to wind turbines. While most avian and bat deaths from wind turbines result from collisions, the sage grouse, a flightless bird, is affected largely by the development of energy projects. It may also avoid wind turbines, power lines, and additional tall objects built in its habitat as a conditional response to awareness that hawks and other predators use them as staging grounds – resulting in grouse displacement. This hypothesis has not, however, been tested. Given the sage grouse’s slow growth rate and loyalty to certain breeding grounds, the USFWS expects recovery to be slow, and estimates that at the current rate, in the next 30 years, only one or two populations of the greater sage grouse will remain. See USFWS’ 12-month findings.

[4] “When a range-wide “priority” or “core” sage grouse habitat map is developed and as additional research on threats to sage grouse other than energy development becomes available, … BLM will issue a more comprehensive Bureau-wide policy directive.” BLM will also continue to work with its partners – the Western Association of Fish and Wildlife Agencies, the USFWS, U.S. Geological Survey, Natural Resources Conservation Service, U.S. Forest Service, and the Farm Service Agency.

[5] Wyoming Office of the Governor, Executive Order - Greater Sage Grouse Core Area Protection.

[6] USFWS, Candidate Species.

[7] See generally USFWS, Candidate Conservation.

[8] Native Ecosystems Council v. Tidwell, No. 04-00127, 2010 U.S. App. LEXIS 4901 (9th Cir. 2010).

[9] Western Watersheds Project v. U.S. Fish & Wildlife Serv., First Supp. Compl., No. 06- 277 (D. Idaho).

[10] Id.

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