The ESA Today: Eco-Pragmatism and State Conservation Efforts

• Date: 01 October 2016

10-2016 NEWS & ANALYSIS 46 ELR 10827

D I A L O G U E

The ESA Today: Eco-Pragmatism

and State Conservation Efforts

Summary

In 2010, FWS found listing the greater sage-grouse

under the ESA was “warranted but precluded” by

other ESA priorities. In an eort to avoid future list-

ing, one of the largest voluntary conservation eorts

was undertaken by state and federal agencies, private

landowners, industry, and environmental groups to

protect grouse habitat. After a status review, in the

fall of 2015 F WS determined listing the grouse was

not warranted. While supporters of the decision have

applauded the engagement of sta keholders in volun-

tary pre-listing conservation strategies, critics claim

these measures fall short of ESA requirements, argu-

ing that state-based protection plans are more likely to

grant exceptions for economic interests. e narrative

around the sage-grouse determination raises questions

of “eco-pragmatism,” where factors such as climate

change and human population growth guide envi-

ronmental decisionmaking, and protection eorts are

balanced with development needs. On May 4, 2016,

the Environmental Law Institute convened a panel of

experts to discuss the evolving approaches to species

protection under the ESA. Below, we present a tran-

script of that seminar, which has been edited for clar-

ity and readability.

Panelists:

Kerry L. McGrath, Associate, Hunton & Williams

(moderator)

Gary Frazer, Assistant Director for Endangered Species,

U.S. Fish & Wildlife Service

Brett Ha rtl, Endangered Species Policy Director, Center

for Biological Diversity

Matt Hayn ie, Senior Counsel, American Petroleum

Institute

Kerry McGrat h: ank you all for being here. Before we

get started, I’d like to spend a little bit of time introduc-

ing the topic before I turn it over to our illustrious panel-

ists. We are here today to hear about eco-pragmatism a nd

state conservation eorts. e greater sage-grouse provides

a pretty important case study to frame up our discussion

on the Endangered Species Act (ESA).1

e sage-grouse is a large bird that uti lizes sagebrush

habitat and inhabits 11 western states. In October of 2013,

the U.S. Fish & Wildlife Service (FWS) proposed to list

the multistate population of the sage-grouse as threatened,

and so began many conservation eorts. In an eort to

avoid future ESA listing of the greater sage-grouse, numer-

ous voluntary conservation eorts were undertaken by

state and federal agencies, private landowners, and indus-

try and conservation groups to protect sage-grouse habitat.

Many states took a ver y prominent role in these conserva-

tion eorts. In particula r, the state of Wyoming took a very

active approach working directly with the energy industry,

agriculture, sportsmen, and conservationists to develop

conservation plans. Many federal agencies also took action.

FWS released a mitigation framework for the sage-

grouse and a memorandum on additional recommenda-

tions to rene land-use allocations in landscapes important

tothe sage-grouse.2 e Bureau of Land Mana gement

(BLM) also amended 98 federal land use plans in 10 states

to incorporate sage-grouse protections. e BLM plans

were crafted in partnership with the western states as well

as with sportsmen groups, conservationists, ra nchers, and

other stakeholders. ey were also backed by a bipartisan

group of governors in Colorado, Montana, Nevada, and

Wyoming.

e plans prohibit surface disturbances from oil and gas

drilling across an area the size of Ohio, and place distur-

bance caps on renewable energy research across an area the

size of Wisconsin. Roughly 10 million acres of sage-grouse

local areas were administratively withdrawn from future

hard-rock mining claims. As a result of this giant coordi-

nated a nd collaborative eort by federal, state, and local

leaders, t housands of acres of sage-grouse habitat will be

preserved. C onservation measures are to be implemented

on 40,000 acres of private lands, including privately owned

wet meadows that are key to sage-grouse chick survival.

Approximately $45 million is going to be spent to conserve

sage-grouse habitat.

1. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

2. Memorandum From Daniel M. Ashe, Director, U.S. FWS, to Director,

BLM, on Greater Sage Grouse: Additional Recommendations to Rene

Land Use Allocations in Highly Important Landscapes (Oct. 27, 2014),

available at https://www.fws.gov/greaterSageGrouse/documents/ESA%20

Process/GRSG%20Strongholds%20memo%20to%20BLM%20and%20

USFS%20102714.pdf.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.