The U.S. Fish and Wildlife Service's Proposal to List the Gunnison Sage-Grouse as an Endangered Species
March 14, 2013
Thanks to Samantha Picans for research assistance with this article.
The Fish and Wildlife Service (FWS) recently proposed to list the Gunnison sage-grouse as an endangered species under the Endangered Species Act of 1973. Its proposal, which includes designating 1.7 million acres within western Colorado and eastern Utah as habitat critical to the survival of the species, was published in the Federal Register on January 11, 2013. Click here for the proposed rules on the Endangered Status and the Designation of Critical Habitat for the Gunnison sage-grouse published in the Federal Register. Designating areas as critical habitat requires government agencies to evaluate the potential impact of every agency action that may affect the endangered species in those areas, to ensure that the actions are not likely to jeopardize the species’ continued existence or result in an adverse modification of such areas. This would impact projects requiring government funding, permits, or approvals, particularly land development, which the FWS identified as a primary contributing factor in the decline of Gunnison sage-grouse populations. Examples include:
- Residential development and construction of roads;
- Construction of vertical structures, such as power lines, fences, communication towers, and buildings;
- Recreational activities (a significant use of lands managed by the Bureau of Land Management (BLM)), such as biking, hiking, camping, bird watching, and the use of certain vehicles, including off-highway vehicles, snowmobiles, and motorcycles;
- activities related to renewable and nonrenewable energy development, including construction of well pads and access roads, drilling and extraction, transportation of oil and gas, exploratory surveys, and well drilling, operation, and maintenance; and
- Rangeland management practices that result in environmental contaminants, such as mining, energy development and pipeline operations, and transportation of materials on highways and railroads.
Other activities the FWS listed as potential contributing factors and which may become subject to regulations in the future include:
- Grazing by domestic livestock;
- Conversion of lands for agriculture;
- Water development projects, such as irrigation and reservoir development;
- Scientific research;
- Accompaniment of domestic dogs; and
- Use of pesticides and herbicides.
Local, state, and federal regulations regarding the Gunnison sage-grouse have already affected private interests in land managed by the BLM and privately owned land, respectively constituting 42% and 41% of the land occupied by the Gunnison sage-grouse. Examples of activities subject to regulations include:
- Land use change permits for properties with housing densities greater than one house per 35 acres in Gunnison County, including building permits, individual sewage disposal system permits, Gunnison County access permits, and Gunnison County Reclamation permits;
- New development applications in Gunnison County, including the construction of roads, the construction of driveways, and individual building permits, even for additions to existing buildings in established areas of development;
- Permits for oil and gas well development with the Colorado Oil and Gas Conservation Commission; and
- Livestock grazing permits and leases, oil and gas leases, and use of roads and trails within BLM-administered land.
It is estimated that there are fewer than 5,000 birds of this species remaining, most of them near Gunnison, Montrose, Norwood, Gateway, and Dove Creek. Over the last several years, there have been coordinated efforts among landowners, industry, and the state and federal governments in Colorado to protect the Gunnison sage-grouse, with the goal of avoiding the need for a federal listing. Apparently, these efforts have failed. The population has continued to decline and the FWS seems likely to list the Gunnison sage-grouse as an endangered species, thirteen years after it was first identified as a candidate for listing. The FWS is bound by court order to publish a final rule on whether to list the Gunnison sage-grouse and to designate critical habitat by September 30, 2013. It extended the comment period, and will be accepting comments on the proposed rule until April 2, 2013.
After the FWS publishes its final rule, individuals wishing to engage in otherwise prohibited activities, which may result in an “incidental take” of (threat or harm to) the Gunnison sage-grouse, may apply for an “Incidental Take Permit.” Such permits are issued with certain conditions and are subject to a Habitat Conservation Plan, a legally binding agreement that permit applicants must design to minimize and mitigate harm to the species during the project.
For more information, see the FWS’s web page on the Gunnison sage-grouse, summarizing its actions leading up to this proposed listing; its fact sheet of the proposed listing; or its press release of the proposed listing.
This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.
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Jospeh B. Dischinger