On March 5, 2010, the U.S. Department of Interior’s Fish & Wildlife Service (FWS) found that the greater sage grouse met the criteria for listing as an endangered species subject to protection under the Endangered Species Act (ESA). However, FWS listed the sage grouse as a “candidate” species, rather than an endangered species, due to the need to focus on higher-priority species.
Significantly, Interior Secretary Ken Salazar noted that 30 percent of sage grouse habitat has “high potential for wind power,” and that listing the species as endangered could have a very significant impact on renewable energy development in sage grouse areas.
The Endangered Species Act
The Endangered Species Act, 16 USC § 1531 et seq., makes it unlawful for “any person,” including private parties, to “take” a species that has been listed as endangered by the federal government. ESA Sec. 9. “Take” is defined as including hunting, harassing, trapping, or otherwise harming a member of an endangered species. ESA Sec. 3. Activities that are considered to harm listed species include significant habitat modification or degradation that impairs the animal’s ability to engage in essential activities, such as feeding, nesting, and breeding. 50 C.F.R. 17.3. Violation of the “take” provisions of the statute may result in civil or criminal sanctions.
Pursuant to Section 7 of the ESA, federal agencies are required to consult with FWS (and, in the case of marine species, the National Marine Fisheries Service) to ensure that federally funded activities will not cause “jeopardy” to listed species. If a project is found to put a species in jeopardy, modifications to the project will be required. ESA Sec. 7.
Perhaps most critically for energy developers, the ESA authorizes FWS to designate “critical habitat” for listed species. Critical habitat includes all areas essential to protecting a listed species, not just areas that it inhabits. Federal agencies cannot authorize activities that will destroy or adversely modify critical habitat of listed species. ESA Sec. 4(3)(a).
The sage grouse, however, has been designated a candidate species, not an endangered species. This means that it is eligible for listing, but has not yet been placed on the list. While candidate species do not enjoy these statutory protections, as a practical matter, federal agencies place a high priority on avoiding harm to these species or damage to their known habitat. (Information about protection of candidate species is available on FWS’s Web site.) Thus, while conservation groups have decried the decision not to list the sage grouse as endangered, industry representatives have expressed concern that energy development will be restricted as a result of discretionary federal protective actions.
The greater sage grouse and energy development
The current range of the greater sage grouse (some 160 million acres) spans areas in Washington, Oregon, California, Nevada, Utah, Idaho, Montana, Wyoming, Colorado, and North and South Dakota. (Please see the U.S. Geological Survey map of current and historic sage grouse habitat.) Most of current sage grouse habitat is located on federally owned land. FWS, Questions and Answers for the Greater Sage-Grouse Status Review at 6 (Mar. 5, 2010).
According to FWS, up to 30 percent of habitat in the sage grouse’s range has “high potential for wind power.” Id. Fossil energy development has been identified as a major threat to the sage grouse, and FWS has concluded that “[t]he effects of renewable energy development are likely to be similar to those of nonrenewable energy.” Id. FWS has indicated that “strategic siting of energy developments away” from grouse habitat may be required. Id. at 7.
So long as the sage grouse is listed as a candidate species, the legal protections of the ESA do not apply to it. However, discretionary measures by FWS, federal land managers, such as the Bureau of Land Management (BLM), and state conservation agencies are likely to have an impact on energy development in sage grouse habitat. For example, California, Wyoming, Montana and Idaho have all adopted conservation strategies or commitments aimed at protecting sage grouse habitat. Id. at 3.
Perhaps most significantly, BLM has issued guidance to its field officials to carefully review applications for energy development on agency lands, including wind and solar development. IM 2010-071, "Gunnison and Greater Sage-grouse Management Considerations for Energy Development." Due to what it describes as a lack of sufficient information regarding the impact of wind and solar development on sage grouse habitat, BLM has instructed its field officials to screen right-of-way applications to determine if wind or solar development includes “priority habitat” of the sage grouse. Applicants are to be advised that the application may be denied or restrictions may be imposed on their activities. Transmission projects are also to be rerouted to avoid sage grouse habitat. Id.
Furthermore, status as a candidate means that the sage grouse is likely to be listed as endangered in the future. Thus, developers must be aware that, while they face no criminal or civil liability currently for projects that harm sage grouse or damage their habitat, those projects are likely to become vulnerable once the grouse is listed. The ESA does not provide for grandfathering of activities that predate the listing of a species.
Thus, although the sage grouse has not yet been listed as a threatened or endangered species, developers of projects on federal lands that include sage grouse habitat are likely to face increasing restrictions on their activities. It is essential that developers seek to determine as early as possible whether project lands contain sage grouse habitat, and to work proactively with federal and state permitting agencies and land managers during the planning phase to avoid or mitigate potential impacts.