Lawmakers on the U.S. Senate Committee on Environment & Public Works debated with regulators and each other over the best way to protect the sage grouse, and to possibly avoid listing the bird on the federal Endangered Species Act (ESA).

Among nine bills under consideration to amend the ESA, one of them -- S 1036, also known as the Sage-Grouse Protection and Conservation Act -- goes the farthest in trying to tackle the sage grouse issue, which could affect oil and natural gas activities in 11 western states. Sponsored by Sen. Cory Gardner (R-CO), S 1036 would require the Department of Interior (DOI) to recognize the primacy of conservation and management plans created by the states over all lands for a minimum of six years.

"A state may choose to defer to federal agencies for sage grouse protection," Gardner said during a legislative hearing Wednesday. "A state opts into this legislation."

A spokeswoman for the Senate Majority Office told NGI that a final markup of the Obama administration's FY2016 budget request for the FWS, as well as a committee vote on whether to advance the eight bills to amend the ESA, would be held in the near future.

In 2010, then-DOI Secretary Ken Salazar said scientists at its Fish and Wildlife Service (FWS) had concluded that the bird deserved to be included on the ESA, but declined to do so because other species faced more imminent threats (see Daily GPIMarch 8, 2010). Since that time, Gardner said states, federal agencies, landowners and other stakeholders have agreed to voluntarily protect more that 4.4 million acres of private land for the sage grouse.

"We've made tremendous progress, and my legislation seeks to keep that momentum moving forward," Gardner said. "[But] this incredible cooperation...will no doubt end the moment there is a listing of the sage grouse [on the ESA] this September, or when federal land use plans are released in May or June, because those land use plan amendments will largely ignore the efforts of the states."

The greater sage grouse was a candidate for protection under the ESA in 2010, but following a court settlement in 2011, the agency agreed to not make a decision on whether to list the bird as threatened or endangered before Sept. 30 (see Daily GPIDec. 30, 2011).

Sen. Barbara Boxer (D-CA), the ranking member on the committee, conceded that Republicans would probably be successful in steering the nine bills out of committee, but added "we will have hand-to-hand combat on the [Senate] floor."

After testimony by FWS Director Dan Ashe, Boxer said S 1036 "would mean that the states would develop the plans -- you're out of it completely for whatever God knows reason -- and then the states decide what we can do on federal land." She then asked Ashe "what would it mean to this particular species if all of a sudden your hands were tied for six years?"

Ashe replied that the bill "essentially defers completely to state plans that do not exist, other than in the state of Wyoming...and provides no standards for those plans at all. There's no functional standard that goes into place for those plans. My sense about the Gardner bill is that it would simply delay. In the meantime, what we'll see for sage grouse is more fragmentation, more loss of habitat, and we will move toward a crisis by delay."

Later in the hearing, during an exchange with Sen. Mike Crapo (R-ID), Ashe said that if federal regulators were going to avoid listing the sage grouse on the ESA, "we have to show that there are meaningful protections in place across the priority habitat...

"We need to see large pieces of the landscape where we are highly confident that sage grouse are going to persist into the future. Those strongholds, or sage grouse focal areas, are the key. It doesn't mean nothing can happen in there, [but] it means that with oil and gas [activities] we'll have no surface occupancy -- without exceptions."

Eight additional bills would amend the ESA. Among them, S 468 -- the Sage Grouse and Mule Deer Habitat Conservation and Restoration Act, introduced by Sen. Orrin Hatch (R-UT) -- would provide a categorical exclusion under the National Environmental Policy Act (NEPA) for a vegetation management project by the Bureau of Land Management (BLM) or the U.S. Forest Service (USFS) to remove or treat pinyon or juniper tree for sage grouse habitat.

The other bills under consideration are:

  • S 112 -- would require the DOI secretary to publish, and make available for public comment, a draft economic analysis whenever a proposed rule to designate critical habitat is published;
  • S 292 -- would require Internet publication of the basis for determinations that species are endangered or threatened;
  • S 293 -- would establish a procedure for approval of certain settlements;
  • S 655 -- would prohibit the DOI secretary from using funds to make a final determination over listing the northern long-eared bat on the ESA;
  • S 736 -- would require additional disclosures to state, tribal and county governments;
  • S 855 -- would allow state governors to regulate intrastate endangered and threatened species;
  • S 1081 -- calls for ending the use of body-gripping traps in the National Wildlife Refuge System.

Protection of the sage grouse is also under fire in the House of Representatives. Last week, the House Armed Services Committee voted 60-2 to pass HR 1735, the FY2016 National Defense Authorization Act (NDAA). Section 2862 of the NDAA bars the FWS from making any decision on whether to list the sage grouse on the ESA until Sept. 30, 2025.