Good Habitats Pay Off

By Madeline Bodin

On May 12, 2016, the federal government stopped its effort to list the lesser prairie chicken under the federal Endangered Species Act. In September 2015, the U.S. Fish and Wildlife Service said that the New England cottontail did not require ESA protection, reversing the decision it made in 2006. Also that September, Fish and Wildlife said that efforts to conserve the greater sage grouse made the species' listing under the ESA unnecessary.

Three imperiled species. Three decisions not to protect that species with the ESA. Is it a three-time failure of our nation's keystone wildlife protection law or the dawn of a new era of voluntary wildlife conservation in which land-use issues play a starring role?

The answer depends on your perspective, but a new suite of wildlife conservation strategies that depend on the ESA — but don't always require its use — is being championed by some state and local governments, conservation organizations, industry groups, wildlife managers, and conservation biologists.

Once, the successful conservation of endangered species like the peregrine falcon or American alligator meant listing the species under the ESA, solving the problem that harmed it, and then removing the species from the list. When alligator hunting was banned under the ESA, the population sprang back and in 1987 the species was delisted. The pesticide DDT thinned the shells of peregrine eggs, and when DDT was banned in the U.S. in 1972, it improved their chances. Peregrines were delisted in 1999.

Today, however, habitat loss is the main threat to 80 percent of the approximately 1,600 U.S. species listed under the ESA, says Pat Parenteau, an ESA expert and law professor at Vermont Law School.

Habitat loss is tougher to stop than pollution or over-hunting. And in the beginning, it wasn't clear how much the ESA could protect habitat, says Robert L. Fischman, professor of public and environmental affairs at the Indiana University Maurer School of Law. In 1995, he says, "the Supreme Court upheld the provision that 'harm' includes altering habitat that prevents basic behaviors like feeding or resting." That made more habitats on private property subject to the ESA.

Over the past several years a suite of strategies has been used to address the chronic threat of habitat loss. Among them:

• coalitions among multijurisdictional partners, often with the goal of heading off an ESA listing through state and local conservation efforts
• an appeal to private landowners to undertake voluntary conservation measures
• the creation and use of mitigation funds
• agreements from the U.S. Fish and Wildlife Service that help to protect parties that have already taken conservation steps before a species' listing from further restrictions after listing

Eric Biber, professor of law at the University of California, Berkeley, argues that these concepts have been around since the 1990s. "What's happened recently is the scale is different," he says, "And that has to do with the scale of the biodiversity challenges.

"Michael Bean, principal deputy assistant secretary of the Department of the Interior for Fish and Wildlife and Parks says that Habitat Conservation Plans, which are part of an incidental take permit under the ESA, remain the most important land-use tool for conserving endangered species. "Incidental take" is accidental but foreseeable harm that may come to an ESA-listed species from any action. For example, building a parking lot may destroy a burrow or a food source like a berry bush.

"That tool has been used for many years now to reconcile development with conservation through local zoning authorities," Bean says.

The recent focus on landscape-scale conservation is reflected in HCPs too, Bean says. Instead of focusing on a single project or one town's zoning laws as they have in the past, HCPs are being developed that create land-use formulas across multiple jurisdictions. In the southern Plains, Bean says, HCPs will help balance the placement of wind turbines and the needs of whooping cranes, while in the Midwest it will help conserve Indiana and northern long-eared bats.

When habitat loss is the major conservation issue, land-use regulation should be a major tool to protect species. Land-use regulation is not yet playing that role in wildlife conservation, but across the country steps are being taken at every level of government to change that.

The Gunnison sage grouse, found only in and around Gunnison County, Colorado, is being protected through a variety of planning tools, rather than an ESA listing. It was recognized in 2000 as a separate species from the greater sage grouse, whose habitat is also carefully managed. That bird was notably not chosen for listing in 2015. Photo by Dave Showalter.

Permitting homes on the range

Gunnison County, Colorado (pop. 16,000) is one place where local governments are using planning tools to protect a species.

From March to May, certain well-mapped spots in the sagebrush- carpeted Gunnison Valley are a dance floor for the mating strut of the male Gunnison sage grouse. With spiky, striped tail feathers, the bird looks like the more widespread greater sage grouse, except it is one-third smaller and has a fancier mating dance. The Gunnison sage grouse was recognized as a separate species from the greater sage grouse in 2000.

Gunnison County's main land-use regulation to protect sage grouse is a preapplication conference, says Russ Forrest, AICP, director of the county's Community Development Department. The county's biologist — hired primarily to deal with sage grouse issues — evaluates requests for conferences using the county's proprietary Habitat Prioritization Tool, which combines GIS data and software to prioritize sage grouse habitat and mating areas.

If a land disturbance is planned in a sage grouse priority area, the biologist schedules a meeting with the landowners, county planners, and representatives from the Colorado Parks and Wildlife agency to walk the land and discuss options. Typically, Forrest says, conflicts are avoided through simple changes. A house site near a mating area may be moved to a site with equally beautiful views a distance away. Those accommodations to sage grouse habitat become conditions on the development permit, he says.

Most of the world's 5,000 remaining Gunnison sage grouse reside in Gunnison County, but Montrose County (pop. 41,000) directly to Gunnison's west, also uses county permits to protect the bird. "Sage grouse don't care if they are crossing county lines," says Jon Waschbusch, AICP, government affairs director for Montrose County.

"Habitat work and conservation of species crosses jurisdictional lines as much as anything I have ever dealt with," Waschbusch says. Instead of its own biologist and maps, Montrose uses Colorado Parks and Wildlife biologists and maps. Montrose County has less habitat and just a handful of the birds.

Waschbusch says the conservation of the Gunnison sage grouse is best tackled at the local level. "The threats are residential development, roads, fences, and power lines — things that counties have some control over."

Surveys show that the Gunnison Basin sage grouse population had increased by 33 percent between 2007, when the local land-use regulations were implemented, and 2013, Forrest says.

The U.S. Fish and Wildlife Service does not believe the regulations are enough. In 2014, it listed the Gunnison sage grouse as a threatened species under the ESA. Listing the species as threatened rather than endangered lets the FWS honor the agreements previously made with local landowners, including the county permits.

But that flexibility didn't satisfy Gunnison County. It joined with the state of Colorado to sue the FWS to repeal the Gunnison sage grouse listing. County officials feel the local conservation efforts already in place are sufficient to protect the bird.

Good habits for rabbits

The conservation of the New England cottontail may be the most successful use of this suite of techniques. Not only was the New England cottontail not listed under the ESA, but no lawsuits were filed either when it was put on the permanent waiting list of species to be listed in 2006 or when the FWS declared that no listing was warranted in September 2015.

The species appears to be recovering. The FWS estimated there were 10,500 New England cottontails when it removed it from the list of ESA candidate species last year. That's two-thirds of the 2030 target population of 13,500, according to the agency.

The New England cottontail is the only cottontail rabbit native to New England and parts of New York. It's shyer and has different habitat needs than its look-alike, non-native relative, the Eastern cottontail.

The conservation effort has brought together all levels of government as well as private landowners, hunting clubs, conservation organizations, and land trusts.

As with Gunnison sage grouse conservation, cottontail conservation starts with a map that prioritizes habitat. But in Connecticut, it is up to Lisa Wahle, a contractor to the Connecticut Department of Energy and Environmental Protection, to reach out to landowners and persuade them to take voluntary action to benefit the cottontail.

New England landowners love their trees, and persuading them to cut down acres of them to create habitat for the cottontails is one of the toughest challenges of conserving this species. Private landowners who agree to cut down trees and plant shrubs to create New England cottontail habitat can be eligible for funding through the U.S. Department of Agriculture's Natural Resource Conservation Service, which gets funding through the federal Farm Bill. Wahle finds this funding helpful in persuading landowners to do the work the species needs.

NRCS has a funding strategy called Working Lands for Wildlife. This program acknowledges that many of the nation's most imperiled species — including the lesser prairie chicken, New England cottontail, southwestern willow flycatcher, greater sage grouse, gopher tortoise, bog turtle, and golden-winged warbler — depend on farms, ranches, and working forests for habitat.

Galon Hall, the Working Lands for Wildlife coordinator, says, "When you lose the landscape you lose the species. If the landscape of forestry in the Northeast goes away, we lose the New England cottontail. This strategy helps landowners maintain a sustainable operation to make sure they are there for the long term."

In many ways, Working Lands for Wildlife embodies the strategy of voluntary efforts by private landowners to conserve species. "We don't want the stick. We just want the carrot," Hall says.

The land-use ordinances that seek to protect New England cottontails are as much of a multilevel patchwork as the alliance to conserve it is. Rob Sibley, land-use planner for Newtown, Connecticut (pop. 27,560) says cottontail conservation is guided statewide by Connecticut's conservation and development plan, which includes the principle of conserving and restoring the natural environment and rural lands, particularly critical wildlife habitats.

New England cottontails already live in Newtown. The town conservation commission oversees several open spaces near the existing population that could provide more habitat. Sibley says his most direct role in cottontail conservation is as the town staffer on the conservation commission as it decides what to do in those spaces, rather than in his day-to-day work as a planner.

Beyond Connecticut (the species ranges from southern New York, through New England to southern Maine), the Maine towns of South Berwick (pop. 7,276) and Eliot (pop. 6,234) include the New England cottontail in their open space plans as a valued resource, with a page of the plan devoted to information and resources for cottontail conservation.

The bird that rules the West

Another imperiled species success story is the greater sage grouse, which is found in 11 states. Since 2011, a coalition of states, federal agencies, industry groups, hunting organizations, and wildlife conservation groups has worked to conserve the bird. In September 2015, the FWS declared these efforts sufficient to save the species. (Read more in the Legal Lessons column from February 2016: "Big Lessons from a Little Bird.")

Some conservation groups sued to get the species listed, while nine Nevada counties and some industry groups have also filed suit, saying the development restrictions imposed by the Bureau of Land Management and U.S. Forest Service are too strict.

One wildlife conservation organization, Defenders of Wildlife, did not sue, but isn't completely happy with the conservation plan either, says Mark Salvo, the organization's senior director for landscape conservation.

One of the group's criticisms of the plan is something planners often find frustrating as well, Salvo says. In a process that wrapped up late last year, the BLM created 15 greater sage grouse management areas, but it turns out they were too small and disconnected to be effective. The management areas rely on political boundaries more than ecological boundaries, and because of this, different parts of the same ecological area may be managed differently. The BLM learned from this, he reports, and is launching a new science-based, landscape-level land-use and development effort it calls Planning 2.0.

Salvo says another planning lesson comes from Oregon. Scientists say that the greater sage grouse won't do their mating dance if more than three percent of the surrounding area has been developed — including roads and powerlines.

Most of the federal plans to conserve the greater sage grouse simply cap development at three percent, Salvo says. But Oregon has a state-wide land-use statute that protects greater sage grouse by capping development in prime greater sage grouse habitat — areas that are undeveloped — at one percent. Rural areas that are approaching three percent development are given a little leeway to develop more since these areas are already poorer habitat.

Salvo feels that Oregon's strategy of allowing more development in areas that are already developed while keeping undeveloped areas as pristine as possible is a more effective way to conserve greater sage habitat than the strategy being used elsewhere. From a planning point of view, that's a familiar strategy: Communities focus density where development and infrastructure already exist in order to avoid sprawling into other areas.

An addition, not an alternative

How effective will this new suite of strategies be? It's a question that drives the many lawsuits around the ESA listings or lack of listings for these species. The classic method is to count individual animals or plants again later and see if there are more, or to model the numbers statistically.

Washington State is taking a more advanced approach. It created a model land-use ordinance for salmon conservation in 2009. Several of its salmon populations are listed under the ESA, but the ordinance goes beyond what's required for ESA compliance. Now it's checking to see how those ordinances are working. Are they creating the landscapes these fish need? "That's the question," says Keith Folkerts, the land-use policy lead for the Washington Department of Fish and Wildlife.

Folkerts's group is analyzing USDA National Agriculture Imagery Program data that lets the department look at high-resolution photos of the same area two years apart. They check for the loss of trees and the addition of new pavement (which creates surges of heated water into nearby water bodies) to see if the fishes' habitat needs are being met.

The Washington program is seven years in, and Folkerts is optimistic that monitoring will improve its effectiveness. But what about the more recently launched strategies across the country whose effectiveness is untested? What if these voluntary efforts don't work?

That's what worries Pat Parenteau, who says that without the legal power of the ESA behind them, these voluntary agreements leave at-risk species vulnerable. He and Robert Fischman say that these strategies can't be considered an alternative to the ESA because they rely so heavily on the threat of an ESA listing for compliance.

In these conservation tactics, the ESA is the negative space, an invisible dance partner, or, as Fischman says, a shadow. "They are responding to the shadow of the act," he says. "Without the shadow of these other restrictions they can't work."

Madeline Bodin is a freelance journalist specializing in science and the environment.

Resources

See the body-popping mating dance of the greater sage grouse, a relative of the Gunnison, at bbc.in/1GBs2no.