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Proposed Listing of Gunnison Sage-Grouse Would Impact Energy and Other Projects in Colorado and Utah

January 16, 2013

On January 11, 2013, the U.S. Fish and Wildlife Service proposed listing the Gunnison sage-grouse as endangered under the ESA, and designating over 1.7 million acres in Colorado and Utah as the bird’s critical habitat. Public comments on both proposals are due by March 12, 2013. The Service will make its final decisions by September 30, 2013. The likely impacts of the proposals, if finalized, include restriction of grazing, energy and other development activities in the bird’s two state range.

The Gunnison sage-grouse—officially declared a new species in 2000 by the American Ornithologists’ Union—is a cousin to the Greater sage-grouse. A final decision on the Greater sage-grouse, whose habitat covers eleven states, is due by 2015. See J. Ferrell, Potential Sage-grouse Listing Continues to Shape Western Energy Development and Grazing Rights, Marten Law News (Jan. 17, 2012). The Gunnison sage-grouse decision is not of the same magnitude, but will have impacts of its own in Utah and Colorado. Further, how the Service handles this listing decision will give stakeholders across the West a good idea of how it is: 1) evaluating threats to closely related species; and 2) considering candidate conservation agreements (CCAs) and other voluntary actions taken by landowners, state agencies, and resource-dependent entities in the context of ESA listing and critical habitat determinations.

Legal Background

The Service published the proposed rules for Gunnison sage-grouse in accord with a settlement reached two years ago with the Center for Biological Diversity and WildEarth Guardians. These are the first of many decisions to come over the next three years that will affect a wide range of resources and, potentially, increase use of CCAs intended to conserve species habitat enough to make federal listing unnecessary. See J. Ferrell, Natural Resource Decisions Will Bring Continued Controversy in Second Obama Term, Marten Law News (Dec. 21, 2012) (summarizing Fish & Wildlife’s commitment to take final action by 2016 on 251 species listed as “candidates” for ESA listing, and to make initial findings on listing eligibility for more).

In 2000, the Service determined that listing the Gunnison sage-grouse under the ESA was warranted but precluded by higher candidate species. Despite its lack of ESA protection, federal, state and local agencies implemented various initiatives intended to protect the bird and its habitat. For example, in 2005, Colorado Parks and Wildlife (CPW) developed a Gunnison Sage-grouse Rangewide Conservation Plan and applied to the Service for an Enhancement of Survival Permit under ESA § 10(a)(1)(A). Ultimately, the Service issued the permit and entered into a Candidate Conservation Agreement with Assurances (CCAA) with CPW and landowners. The CCAA has a term of 20 years, and provides CPW and signatory landowners with 1) authorization for the incidental take of Gunnison sage-grouse and 2) regulatory assurances should the species be listed in the future.[1] Local working groups have developed specific conservation plans for six of the seven populations of Gunnison sage-grouse. A number of landowners have also granted conservation easements and entered into agreements with conservation groups and state wildlife and parks services.

Enrollment in the State’s CCAA ends on September 30, 2013.[2] Permit holders and landowners can voluntarily opt out of the CCAA at any time.

Biological Background

Historically, Gunnison sage-grouse were found in Colorado, Utah, Arizona, and New Mexico. According to the Service, “approximately 5000 breeding Gunnison sage-grouse occur among 7 separate populations in SW Colorado and SE Utah. The largest population, about 4,000 birds, inhabits the Gunnison Basin.”[3] The remaining habitat of the species constitutes about 7 percent of its historical range.

The Service based its listing proposal on threats that it determined contribute to the species’ decline. The principal threat, as with the majority of listed species, is habitat loss. More specifically, habitat loss, “degradation, and fragmentation due primarily to residential, exurban, and commercial development and associated infrastructure such as roads and power lines.” These development activities are expected to increase as human populations grow. Lesser threats include grazing, predation, drought, and genetic risks. Activities that the Service determined have the potential to collectively threaten the species include: fences, invasive plants, fire, climate change, renewable and fossil fuel energy development, piñon-juniper encroachment, reservoir creation, disease, drought, and recreation.

Effects if Fish and Wildlife Finalizes the Gunnison Sage-Grouse Proposed Rules

If listed, then the ESA’s broad and stringent proscriptions will apply to the Gunnison sage-grouse. For example, no “take” of the bird may occur. ESA section 9 defines “take” broadly to mean, among other things, harassing, harming, injuring, or killing members of the species. Significant habitat alteration which actually kills or injures a species by significantly impairing essential behavior patterns, such as feeding, breeding, and sheltering, is a prohibited “take.”[4]

The primary regulatory effect of critical habitat designation is that, under ESA section 7(a)(2), federal agencies must ensure that “any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered … or threatened species or result in the destruction or adverse modification of [designated critical] habitat[.]”[5] This process of ensuring that no jeopardy occurs is called “consultation.”

During consultation, the appropriate Service (Fish & Wildlife, for sage-grouse) evaluates impacts of the agency action (i.e., BLM, the Forest Service, or other agency) on listed species and critical habitat present in the action area. If, during informal consultation, the Service determines that the action at issue is likely to adversely affect the species or its critical habitat, then formal consultation is required. The result of formal consultation is a “biological opinion.”[6] In that document, the Service reaches one of three conclusions: 1) no jeopardy; 2) jeopardy, with reasonable and prudent alternatives (mitigation measures); or 3) jeopardy, without alternatives.[7] If the Service reaches the first or second conclusions, then the action can proceed (with mitigation, as required).[8] If the Service reaches the third conclusion and no effective mitigation measures exist, the action agency will revise and re-submit its proposal, abandon it, or, in extremely rare cases, seek an exemption from the Endangered Species Committee.[9]

Potential impacts on industries in Colorado and Utah

For purposes of ESA section 7, the term “action” means:

all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.[10]

Thus, new or renewed grazing permits and allotments may well be subject to federal ESA consultation, in addition to the environmental scrutiny to which they are currently subject under NEPA and agency guidance.[11] So too would new or renewed authorizations for mining, renewable and nonrenewable energy projects. All industries and individuals would have to ensure that their actions comply with ESA § 9, but would not be subject to § 7 absent a federal nexus with a project. Section 9 could have particular effects on the building industry, as the Service identified residential development in sagebrush habitat as a primary threat to the species.

During consultation, federal agencies cannot make an “irreversible or irretrievable commitment of resources” if doing so would foreclose the formulation or implementation of reasonable and prudent alternatives.[12] If, for example, livestock grazing under pre-listing permit conditions would potentially preclude BLM from preserving part of a sagebrush biome (by, for example, allowing the permit holder to graze fewer animals on a smaller portion of land than it did during the past decade), then grazing could not continue in its historical fashion during consultation between BLM and Fish & Wildlife.

Current Gunnison sage-grouse populations occur in discrete areas of Colorado and, to a lesser extent, Utah:

Locations of Current Gunnison Sage-grouse Populations

Source: 78 Fed. Reg. 2486, 2489 (Jan. 11, 2013).

Significant renewable energy development is not currently slated for these areas. Hence, the Service does not consider such development to be a threat to the species at this time. It anticipates potential geothermal development in the Gunnison Basin and wind energy development in the Monticello subpopulation area, however. If development planning occurs and the species is listed, then those projects will have to clear the additional regulatory requirement of ESA compliance.

Nonrenewable energy development is more abundant in the species’ range. BLM has classified the area encompassing all of the species’ habitat for its oil and gas potential. Three populations reside in areas designated as high or medium potential. The remaining areas are classified as low to none. San Miguel County contains the most significant potential in Gunnison sage-grouse habitat for oil and gas development, with 25 active gas wells within it and an additional 18 immediately adjacent to occupied habitat. Future drilling is also expected there. Due to the small area of habitat and federal leases, the Service expects that those drill sites will be within two miles of one of the three leks in the Dry Creek group of Gunnison sage-grouse. Due to the localized nature of existing impacts from oil and gas, however, and the expected similar nature of future drilling, the Service does not currently consider nonrenewable energy development to be a threat to the long-term persistence of the species. Still, a listing would require the oil and gas industry to ensure compliance of existing and future activities with the ESA.

The Service estimates that around 90% of occupied Gunnison sage-grouse habitat on federal land is currently grazed by domestic livestock, and expects the percentage on private land in the bird’s habitat is similar. The Service determined that grazing and associated land treatments have “likely altered plant composition, increased topsoil loss, and increased spread of exotic plants.”[13] However, the Service and its expert working groups found that the impacts on Gunnison sage-grouse populations “are not clear[:] Despite the obvious impacts of grazing on plant communities within the range of the species,” a “direct correlation between historic[al] grazing and reduced Gunnison sage-grouse numbers” was not discerned. “While implications on population-level impacts from grazing can be made based on impacts of grazing on individuals and habitat conditions, no studies have documented the impacts (positively or negatively) of grazing at the population level.”[14]

Despite the Service’s inability to draw a direct connection between grazing and adverse impacts to the species at the population level, agricultural interests would still be affected by a listing. For the ranching community, the most immediate effects of the Gunnison sage-grouse’s listing would likely be felt when obtaining or renewing grazing permits. Through that process, BLM or the U.S. Forest Service must address a range of alternatives that include actions that would improve sage-grouse habitat, and do not contribute to the bird’s extirpation. BLM policy requires the analysis of a “reasonable range of alternatives,” per standard NEPA policy. This range would likely include no-grazing/significantly reduced grazing, current grazing levels, increased grazing, and deferred or rest-rotation systems.

For assistance in preparing your comments or additional information, please contact Jessica Ferrell or another member of Marten Law’s Natural Resources practice group.

[1] See CCCA for Gunnison Sage-grouse between CPW and USFWS (July 15, 2006). All information summarized in this article comes from the Service’s regulatory documents on the Gunnison sage-grouse, which are available on the Service’s website devoted to the species.

[2] See http://wildlife.state.co.us/WildlifeSpecies/SpeciesOfConcern/Birds/Pages/ccaa.aspx.

[3] USFWS Gunnison sage-grouse website.

[4] 16 U.S.C. §§ 1532(19), 1538(a)(1). Service regulations define “harm” to include significant habitat alteration which actually kills or injures a species by significantly impairing essential behavior patterns, such as feeding, breeding, and sheltering. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 691 (1995) (upholding the Services’ definition of harm). To constitute a take, an activity must be the “proximate cause” of actual death or injury to a listed species. Id.

[5] 16 U.S.C. § 1536(a)(2). Critical habitat” includes the “specific areas within the geographical area occupied by the species, at the time it is listed” containing physical or biological features that are essential to the species’ conservation and which may require special management considerations, as well as “specific areas outside the geographical area occupied by the species at the time it is listed” – if the Secretary determines that such areas are also essential for the species’ conservation. 16 U.S.C. §§ 1532(5), 1536(a)(4). Service regulations define “destruction or adverse modification” as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” 50 C.F.R. § 402.02.

[6] 50 C.F.R § 402.14.

[7] Id.

[8] 16 U.S.C. § 1536(b)(4). When the proposed activity will result in an incidental taking of a protected species, but will not jeopardize the continued existence of the species, a BiOp will include an incidental take statement that shields its holder from liability under Section 9 for a take of a listed species committed during activities that are otherwise lawful and in compliance with the reasonable and prudent alternatives. 50 C.F.R. § 402.14(i).

[9] 16 U.S.C. § 1536(e), (g)-(p).

[10] 50 C.F.R. § 402.02. The Services define the “action area” for purposes of Section 7 as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” 50 C.F.R. § 402.02. “Effects of the action” include both direct and indirect effects (effects that “are caused by the proposed action and are later in time, but still … reasonably certain to occur”) on the relevant species or critical habitat, “together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline.” Id. The “environmental baseline” includes all “past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early [S]ection 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.” Id.

[11] See BLM, Conducting Endangered Species Act Section 7 Consultation on Grazing Decisions at the Implementation Level (May 2010).

[12] 16 U.S.C. § 1536(b)(1).

[13] 78 Fed. Reg. 2486, 2500 (Jan. 11, 2013).

[14] Id.

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