Obama settlement with green groups spurred major change in listing decisions

Now entering its third year, a landmark legal truce between the Obama administration and environmental groups has resulted in new and proposed protections for scores of new wildlife species, signaling a major shift in the government's use of the Endangered Species Act.

The legal settlements the Fish and Wildlife Service announced in spring and summer of 2011 with WildEarth Guardians and the Center for Biological Diversity, respectively, have resulted in protections for 54 species, a threefold increase over the rate of listings under the George W. Bush administration, according to data from the groups.

Federal scientists have also proposed listing 64 additional species, most of which, by law, are expected to receive federal protections within a year.

Newly protected species include the Ozark hellbender, Pagosa skyrocket, snuffbox mussel and fuzzy pigtoe, to name a few. Protections have also been proposed for the streaked horned lark, White Bluffs bladderpod and Florida bonneted bat.

The settlements, supporters argue, have allowed the agency to focus its resources on the species most in need of federal protections, rather than responding to an onslaught of listing petitions and court decrees.

Although the settlements have critics -- namely congressional Republicans and some property rights advocates -- they have also spurred states, landowners and energy developers to proactively conserve wildlife in hopes of preventing listings from going forward.

"One thing it is spurring is attempts to do more candidate conservation ... policies that could benefit some of these species and perhaps obviate the need for listing," said Jason Rylander, an endangered species attorney for Defenders of Wildlife, which was not party to the settlements.

Under the settlements, finalized in September 2011, FWS agreed to issue final listing determinations for all of the roughly 250 "candidate" species over six years and to issue initial findings on roughly 500 additional species (E&ENews PM, Sept. 9, 2011).


Candidate species are those that have been deemed worthy of safeguards but were precluded from protections due to limited agency resources. Some have been on the candidate list -- known as "purgatory" by some environmentalists -- for more than a decade.

A detente of sorts, the settlements were designed to relieve the agency of the hundreds of listing petitions and "deadline lawsuits" it had faced in recent years, many of them from WildEarth and CBD.

While FWS had been petitioned to list an average of 20 species per year from 1994 to 2006, from 2007 until the settlement it had been petitioned to list more than 1,250 species -- nearly as many as were listed in the previous 30 years, according to FWS.

Under the settlement, WildEarth agreed to limit the number of species it would petition for listing to 10 per year. CBD said it would not limit petitions but agreed to limit deadline lawsuits -- which target the agency's ability to comply with the ESA's decision time frame -- to 10 species per year.

Gary Frazer, FWS's assistant director for endangered species, said in an interview this week that petitions and litigation from the two groups have fallen dramatically.

"We have far fewer petitions coming in the door, far less litigation enforcing deadlines to respond to those petitions," he said. "As a result, we're able to put more of our resources toward making determinations on all those species that had been on our candidate list, many of them for many years."

As a result, the candidate list is shrinking.

Last November, the agency announced there were 192 species on the candidate list, the lowest number in more than a dozen years, a reflection of the settlements' success, FWS said.

'This is not a healthy trend'

Although limitations on petitions and deadline lawsuits should please those who have criticized ESA as overly litigious and a drain on both agency and taxpayer funds, some critics said they were concerned with the pace of new listings triggered by the settlement.

The Bush administration listed an average of eight new species a year, but the Obama administration over the past two years has listed an average of 27 species, according to WildEarth. The administration listed more than 50 species in 2010, though the vast majority of those were Hawaiian species that had been proposed for listing under the Bush administration.

"With each new listing, or new designation of critical habitat, the federal government adds another layer of regulation that will substantially inhibit many people's ability to use their property in productive ways," said Daniel Himebaugh, an attorney for the Pacific Legal Foundation, which represents property owners. "This is not a healthy trend for individual liberty or economic recovery."

Federal agencies must consult with FWS before authorizing or funding activities that could affect listed species, and critical habitat may not be unduly destroyed. Protections for species like the northern spotted owl, for example, have greatly curtailed logging in the Pacific Northwest.

A spokesman for House Natural Resources Chairman Doc Hastings (R-Wash.) said the chairman is concerned the "closed-door settlement" could result in hundreds of new species listings and that it did nothing to prevent outside groups from petitioning the government or filing lawsuits.

"This Congress, the chairman will include the settlement and ESA litigation as part of the committee's oversight responsibilities, especially as more species are designated as a result of the settlement," spokesman Spencer Pederson said.

Sen. David Vitter (R-La.), the ranking member of the Senate Environment and Public Works Committee, said ESA litigation will be a focus of his in the 113th Congress, though he did not specifically comment on the settlement.

FWS's Frazer acknowledged the controversy surrounding ESA listings but said the settlements have helped balance the agency's portfolio, which includes initial findings, listings and critical habitat designations.

For example, in the early 2000s, a disproportionate amount of the agency's work involved the designation of critical habitats, in large part due to lawsuits. Today, the settlement has allowed the agency to propose critical habitat concurrent with proposed listings, as envisioned in the law, Frazer said.

And by focusing on candidate species, the agency is able to address the species it already knows are in trouble, he said.

"Listing determinations under ESA are just difficult," Frazer said. "They are seen by some as unwelcome regulation in areas where it had not been before. They are difficult and sometimes they involve controversy."

Voluntary efforts grow

Although most of the candidate species included in the settlement are expected to ultimately receive protections -- given that agency scientists have already determined they warrant listing -- some have avoided listings due to aggressive conservation steps by states, landowners and energy developers.

One example is the dunes sagebrush lizard, a candidate species that FWS proposed as endangered in December 2010 but later said didn't need protections after voluntary conservation efforts in New Mexico and Texas to protect the lizard's shinnery oak dune habitat and reduce impacts from oil drilling (Greenwire, June 13, 2012).

Similar conservation efforts have been launched for the lesser prairie chicken, a grayish brown grouse that roams five states in the southern Great Plains that FWS late last November proposed listing as "threatened" (E&ENews PM, Jan. 4).

"There certainly seems to be much more attention and purposeful effort to engaging in candidate conservation than there was before the settlement agreements were completed, before the FWS was able to get back to our job under the act," Frazer said.

Federal and state agencies and private groups have already begun conserving habitat for the greater sage grouse, a wide-ranging candidate species that roams nearly a dozen states in the West and is due for a listing decision under the settlement in 2015.

Many warn a sage grouse listing would significantly slow oil and gas, transmission and wind power development, particularly in energy-rich Wyoming where most of the bird's remaining habitat is found.

A final listing decision on the Pacific walrus, another politically charged species, is due in 2017.

The agency said it does not keep track of how many species are listed per year.

Mixed reviews from enviro groups

The deadlines may relieve the agency of some of the political pressure associated with species listings, which are often opposed by influential ranching, oil and gas, and landowner groups.

It has already smoothed the relationship between FWS and environmental groups, said Mark Salvo, wildlife program director for WildEarth.

"Our relationship, WildEarth Guardians with Fish and Wildlife Service, has never been better," he said, though he acknowledged that even court-ordered listing decisions will stir dissent locally and in Congress.

Noah Greenwald, endangered species director at CBD, said the Obama administration appears more supportive of the ESA than the Bush administration, but he stopped short of praising its first term in office.

He noted that Julie MacDonald, the Bush administration's former Interior deputy assistant secretary for fish, wildlife and parks, was "overtly hostile" to endangered species and was found to have tampered with decisions involving spotted owls and bull trout.

"I don't think we have that now," Greenwald said. "On the other hand, I don't think the Obama administration has really prioritized endangered species protections."

Tensions rose between CBD and FWS last summer when the group submitted a petition to list 53 species, a move that, although allowed under the settlement, was viewed by the agency and ESA critics as violating the spirit of the agreement (Greenwire, Aug. 7, 2012).

Greenwald at the time said the petition would not disrupt the agency's workload and that FWS would be given extra time to review those "highly imperiled" amphibians and reptiles.

He said this week he fears the agency is still influenced by outside politics.

"There's a head-down mentality over there," Greenwald said. "Some of their positions end up being about avoiding controversy rather than conserving endangered species. To the extent that that occurs, that's where we sort of come to the conflict."

The agency will make fewer initial listing decisions over the coming four years, but the decisions it does make -- largely final and proposed listings -- will carry more weight.

It is unclear whether listing more species will strain FWS's recovery budget, an issue that drew initial concern from Rep. Mike Simpson (R-Idaho), who oversees FWS's budget as chairman of the Interior and Environment Appropriations Subcommittee.

Greenwald said the agency needs more support.

"The more species that are listed, the more resources Fish and Wildlife Service needs for protection and recovery," he said. "It's our hope they would get more money, that they'd ask for more money."

A funding boost would be unlikely as Congress moves to slash discretionary spending. The agency's ESA budget represents a minuscule portion of federal spending, but House Republicans in recent years have proposed cutting all funding for new species listings.

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