Voluntary ESA agreements gain traction at FWS
Written byALLISON WINTER, Greenwire
When the dunes sagebrush lizard crept off the endangered species list this summer, it gave new hope to landowners who would like to avoid endangered species regulations for other rare critters on their property.
The Fish and Wildlife Service made the unusual decision last June to withdraw its original proposal to protect the lizard under the Endangered Species Act. Agency scientists determined, instead, that state-led voluntary conservation agreements across much of the lizard's habitat in New Mexico and Texas would do enough to ensure the rare reptile's long-term protection and recovery.
It was a victory for oil and gas companies and ranchers who worked to develop conservation plans. Now the Fish and Wildlife Service is seeing increased interest in similar arrangements for other species, especially as it faces more high-profile decisions on species that share habitat with cattle, wind turbines and oil and gas rigs. And the agency is currently examining how to streamline the review process for such agreements.
"As people realize these are good tools that can keep species from being listed, they are getting really interested," said Julie Moore, head of candidate conservation for FWS. "We are seeing more [voluntary agreements], and my prediction is we will continue to see more as these tools prove themselves to be effective."
Over the next five years, FWS plans to issue final listing decisions for 251 species on the "candidate" list and initial findings on hundreds of other species, according to a work plan developed in a legal settlement with environmental groups.
Those plans have many state agencies and landowners on notice for how they can address the species on their own terms, before Endangered Species Act regulations kick in. Two such high-profile candidates are the greater sage grouse and the lesser prairie chicken, both of which could affect development across the West.
"'Voluntary' instead of 'regulatory' is something that resonates with many landowners and other agencies. We're very happy that it's growing," said Gary Frazer, assistant director for endangered speciesat FWS. "I don't know whether the schedule for making determinations has served to further incentivize action, but we're pleased if it has. If species can be protected by good things happening before ESA is put into play, that is good for everyone."
The agency is looking to expand opportunities for such voluntary agreements and speed up the review process for drafting the agreements -- a process that can currently take years for some species.
Last spring, FWS asked landowners, states agencies and environmental groups to weigh in on ideas for how to improve landowner conservation tools. Agency officials say they are looking through comments and suggestions and trying to decide next steps. The changes could include new regulations, modifications to existing programs, policy guidance or procedural changes, Frazer said.
But while the agreements have drawn support from federal officials, lawmakers and a spectrum of interested groups, some environmental and industry officials have their doubts.
A lizard mascot?
The dunes sagebrush lizard was on the service's list of "candidate" species -- a sort of waiting room for plants and animals that warrant federal protection but are excluded because of other, higher-priority species.
The potential listing for the 3-inch-long lizard, which seeks refuge in shady shinnery oak dunes, threatened to upend a drilling boom in the Permian Basin in Texas and New Mexico.
With the service due to make a decision on it this year, landowners and oil and gas companies signed onto "candidate conservation agreements" in Texas and New Mexico. State wildlife agencies developed outlines for the agreements with federal biologists. They consented to avoid dunes that are key lizard habitat, pull up mesquite plants that harm the dunes, remove farm roads and roadside drainage ditches, reclaim old drilling pads, curb herbicide use and restrain some drilling and surveying. The agreements cover about 650,000 acres, 88 percent of the lizard's habitat.
"It was an effort so pervasive across the range of the species, with so many landowners, that it precluded the need to list," Frazer said in a recent interview.
The momentum behind the conservation plans for the lizard represents the beginning of a growing trend of corporations taking more interest in such agreements, according to the service.
"Wind and energy and big business want to cooperate and do things early, so species won't be listed. Two years ago, we didn't see that much interest, but now, with the agreements with oil and gas in New Mexico and Texas for the lizard, we are going to see more of that type of interest," Moore said. "The business community is much more interested in preventing listings than they were in the past, and that is really exciting. It's proactive."
Interior Department officials and Capitol Hill lawmakers are hopeful this is just the beginning.
When the agency made the lizard announcement, Interior Secretary Ken Salazar said he was optimistic similar agreements could be replicated elsewhere in the West to preclude other listings, particularly the greater sage grouse -- another controversial species that is a candidate for protection under ESA (E&ENews PM, June 13.). The grouse's range stretches across 11 Western states and intersects with prime areas for energy development and agriculture. FWS is on deadline to issue a final listing determination for the bird by 2015.
Sen. James Inhofe (R-Okla.), a frequent critic of the Endangered Species Act, and other Republicans have also been pressing the service to make a similar decision for the lesser prairie chicken, which has habitat across five Western states. Voluntary conservation efforts already in place for the bird, many of them with farmers, cover 2.7 million acres. The service was supposed to determine the bird's fate this week but asked the court for a 60-day extension (Greenwire, Sept. 27).
New Mexico and Texas already have programmatic candidate conservation agreements for the prairie chicken, and Kansas and Oklahoma are working on their own. Interest in those programs has grown with the threat of listing.
"The one in Texas had been in place for a while, and nobody was doing much until the species moved toward listing, then they got busy and enrolled," Moore said. "There are multiple benefits to these agreements, but for some people, the goal is to prevent listing."
'It turns the whole process around'
The voluntary agreements have been a long time in the making.
Controversy has hung over the ESA since it became law in 1973 and forbade the harm of threatened and endangered species. The act was designed as a safety net against extinctions, and environmental advocates say it has been one of the most effective laws on the books. But critics say it has become too heavy-handed with land management and led to too many restrictions on development.
FWS began promoting voluntary conservation agreements during the Clinton administration. Landowners can sign up for candidate conservation agreements -- like those for the lizard and prairie chicken -- for species pending listing. Once species are listed, landowners can enter safe harbor agreements and habitat conservation plans. Some of the candidate agreements come with "assurances" that mean the service will allow the landowners to continue their activities under the plan, even if a species is listed.
More than 70 landowners have enrolled 1.1 million acres in candidate conservation agreements with assurances, providing habitat for 41 species, according to the service. There are 26 plans -- some of the large programmatic plans involve dozens of landowners -- in 18 states. There are about 100 other candidate conservation agreements without assurances.
Advocates for the cooperative agreements say the plans offer a needed alternative, when listings would otherwise pose conflicts between the federal government and private landowners.
"With more and more species coming on line, needing to have decisions made, and some of those over big areas where a lot of important agricultural or energy activity could be, this is a really exciting new tool," said David Festa, vice president at the Environmental Defense Fund and head of the group's land, water and wildlife program.
Festa shuns the word "voluntary" to describe the plans. He says it undersells how much work is put into the agreements and the underlying threat of ESA regulation.
EDF has worked for the past two decades to support cooperative agreements for wildlife on private lands -- spearheading efforts to get proactive agreements from landowners, helping create habitat banks and developing ideas that have become agency policy. The Clinton and George W. Bush administrations each leaned on EDF for different cooperative conservation agreements. Michael Bean, a former attorney with EDF, is now a top political adviser at Interior.
EDF is one of the few environmental groups that wholeheartedly support the cooperative agreements. Other environmental groups say the agreements do not provide enough certainty for species protection.
"The bottom line is most of the conservation agreements simply don't provide the protection that listing does," said Bill Snape, an attorney with the Center for Biological Diversity, a group that frequently petitions the service to protect more species. "They tend to be more nebulous and vague and hard to enforce. Some are good, but far more are bad."
Festa admits that landowner conservation agreements do not work with every species, particularly species so rare they cannot afford to lose any habitat or those with habitat that is primarily on federal land. But for species on private land in large landscape areas, he said the agreements can conserve species, provide flexibility for changing habitat, empower landowners, allow for economic development and help foster a cooperative approach to conservation that has become rare in implementation of the Endangered Species Act.
"Traditionally, what happens is everybody sits around and waits to see what a relatively small number of government officials decide what needs to be done, and then everybody argues about it and eventually something gets put on the books," Festa said. "The process that we like actually turns that around, and it generates proactive commitments to action by the affected parties. They come up with the suggestions for what to do, and the agency reviews those and says it makes sense or doesn't. It turns the whole process around and puts government in the much clearer and more effective role of making the science call."
'Just a promise'?
But for programs that are supposed to rally everyone to work together, candidate conservation agreements have detractors on both sides.
Energy companies have begun to embrace candidate conservation agreements, but with some hesitation. Kathleen Sgamma, vice president of government and public affairs for the Western Energy Alliance, said the government needs to make them "more workable" by offering more assurances that development can go forward if companies agree to the plans.
"Oil and natural gas companies regularly undertake voluntary measures to protect the sage grouse and other species and give generously to conservation efforts. However, voluntary agreements should be just that -- voluntary," Sgamma said. "Industry's open to ideas, but it points to a major problem of the Endangered Species Act -- so much time is spent on bureaucratic procedures rather than on-the-ground measures to actually protect the species."
Groups like the Center for Biological Diversity and Wild Earth Guardians have just the opposite complaint: They think that to ensure protection for the species, the plans need to be more enforceable.
"Unless the agreement has a mechanism maybe under other laws or legal agreements, it is really just a promise," said Snape of CBD. "And a promise that doesn't have any teeth, that's a problem."
There is limited case law on the issue, but the federal government lost in court on two cases in the 1990s when it attempted to rely on voluntary conservation plans to delist species. CBD lawyers have said their group has not yet decided whether to challenge the recent lizard decision in court.
The major incentive for landowners to keep up their end of the agreement is not usually legal but a drive to protect a species for its own value or avoid a future listing. The service will evaluate the lizard and other species to make sure a listing is not needed in the future.
The threat of listing is a major driver for the plans, but a desire to avoid a listing can be a good thing, agency officials say, as long as the species is doing well enough to stay off the list.
"We only make a listing determination when we see it as being warranted," Frazer said. "If it is no longer warranted, that's a success story for everyone."