By Angus M. Thuermer Jr., WyoFile.com
CHEYENNE — Gov. Mark Gordon on Friday embraced what conservationists say is Wyoming’s authority to require developers to make up for impacts to greater sage grouse habitat — a requirement the Trump administration has moved to abandon.
Wyoming may impose such trade-offs even though the federal Bureau of Land Management is scrapping the requirements under its own rules, Wyoming’s sage grouse team leader Bob Budd said. Although the BLM sells oil and gas leases on federal property — which covers 48 percent of the state — energy companies also must obtain state approval before drilling.
In sage grouse habitat that approval hinges, in part, on an executive conservation order put in place by previous governors and that remains in force under Gordon, who took office Jan. 7. Gordon that day arguably became one of the persons with the greatest influence over the future of the imperiled sage grouse.
Critics of the Trump administration’s rewrite of the hard-won compromise on sage grouse conservation say it threatens long-term efforts to save the bird by getting leases into the hands of industry quickly.
Any future administration would have to contend with valid, existing rights, making conservation much more difficult, said Brian Rutledge of the National Audubon Society.
“The object is to get all these holdings into private hands before anybody can fix it,” he said.
More than 38 percent of greater sage grouse range lies in Wyoming, along with a similar proportion of the chicken-size bird’s worldwide population. Wyoming’s governor has authority to amend or abandon the executive order that has been key to protecting grouse habitat in Wyoming since 2008.
“It is important that we have some mitigation,” Gordon said in an interview with WyoFile. “I do believe that you have industry that is trying to figure out a way to move forward and part of that is by having some mitigation available.”
In December 2018 the federal Department of Interior issued a memorandum that abolished the BLM’s mitigation requirements. Federal land users or developers could still offset impacts voluntarily, but would no longer be federally required to do so, the memo reads.
Gordon noted that the state also has the right to impose conservation measures on oil and gas development. “I’m very happy we have this dual process because we’ll be able to keep our eyes on the ball so to speak,” he said.
Half of that “dual permitting authority” rests with the Wyoming Oil and Gas Conservation Commission, said Bob Budd, the leader of Wyoming’s Sage Grouse Implementation Team. For commission approval of drilling plans, “you have to show you comply with the regulations of the State of Wyoming,” he told WyoFile in a telephone interview.
The governor’s order is part of those rules and regulations, Budd said.
First signed by Gov. Dave Freudenthal, the executive order Greater Sage-Grouse Core Area Protections established the state’s grouse conservation framework — often described as the core area plan — and map. Gov. Matt Mead amended the order and the conservation document is now under Gordon’s jurisdiction.
The orders have been “incredibly effective,” Gordon said, “in leaving us with a with a species that isn’t listed [under the federal Endangered Species Act] at this point.”
The governor last week said he is still familiarizing himself with and is reviewing the finer details of greater sage grouse conservation, but supports the longstanding core-area initiative.
“I think it’s important we have the executive order,” he said. While campaigning, “some of the constituents said they had particular problems,” with the rule, Gordon said. “If we can address those without harming the executive order — those are all things I’m willing to look at.”
Gordon mulls his strategy as the BLM also plans to sell, starting Feb. 25, leases covering what critics say is more than 700,000 acres of grouse “priority habitat management area.” Public comments on that sale, including protests, are due at 4 p.m. today.
Gordon didn’t say whether he would file objections or ask that stipulations — legal notice that conservation measures may be required of developers — be attached to the leases.
“That hasn’t been on the top of my list but it is something we’ve been talking about,” he said. “I would check with the Game and Fish [Department]. I would need to consult with the folks that have been working on this issue to get better advice on this.”
The BLM also is amending resource management plans across Wyoming, including rules that protect sage grouse. The changes, in part, call for removing requirements for “compensatory mitigation” when oil and gas development disrupts sage grouse habitat. Wyoming faces a Jan. 28 deadline to submit comments on or protests to the proposed changes.
Conserving the landscape has long been a personal priority, Gordon said. His ranch near Buffalo was one of the original Wyoming entities that signed up to protect grouse. In signing CCAAs — candidate conservation agreements with assurances — ranchers pledge to follow best practices in return for promises that new rules won’t hamstring their operations.
Best practices include removing human-made avian predator perches and similar undertakings.
Wyoming’s actions are at the forefront of sage grouse conservation, he said. The state has made a path that other states should follow.
“I feel like Wyoming led the charge,” Gordon said. “We had a solution when nobody else did. To the extent that the federal efforts approach what Wyoming has done and demonstrated, that’s good.”
Wyoming needs to keep on its course, he said, and that includes supporting Budd’s sage grouse team. “It is incredibly important,” Gordon said, “that Wyoming have a steady-as-she-goes approach to this — consistent all the way through.”
Other states’ approaches, however, could have implications for Wyoming, given its outsized share of greater sage grouse habitat and population. The Trump administration’s energy-first policy and other actions “exposed 11 states [to] the potential of an endangered species listing,” said Rutledge, director of Audubon’s Sagebrush Ecosystem Initiative and an original member of the Sage Grouse Implementation Team.
The federal plan to let states forge their own ways eliminates a principal element of grouse conservation nationwide, critics say. Failures in one state could lead to restrictions in others should the Endangered Species Act come into play. Greater sage grouse population and conservation status is to be reviewed under the ESA next year.
“We eliminated the range-wide perspective,” Rutledge said of the new energy priorities and their effect on grouse conservation. “We don’t even have a means to evaluate how we’re doing.”
In 2015 Secretary of the Interior Sally Jewell determined, among other reasons, that there was enough regulatory certainty to rule the greater sage grouse was not a candidate for regulation under the ESA. That decision was based largely on the BLM plans that are now being changed.
“A big part of that certainty was in the promise that we would prioritize development outside of sage grouse habitat,” Rutledge said. “The BLM has overridden that. The BLM is basically in denial of its responsibility.”
The goal of the administration and its industry allies is to get gas and oil rights “anchored down as cheaply as possible,” Rutledge said. A future administration more sympathetic to conservation would have to contend with valid, existing rights, he said.
The danger of an ESA listing could be the imposition of sweeping federal restrictions on numerous activities across the West’s sagebrush sea. “Gas and oil will suffer the consequences of that,” Rutledge said. “All other uses would suffer.”
Under ESA protection, instead of 11 states dealing with sage grouse conservation, the entire landscape would be managed by a handful — perhaps as few as six — of federal employees, he said.
As the BLM changes its conservation plans, states’ institutional conservation knowledge may be acutely diminished, Rutledge said. The complex regulations are being reviewed “by nine new governors who haven’t lived a minute of this,” he said.
Gordon said he hasn’t yet been able to fully engage his colleagues.
“I’ve only had one opportunity to meet with the other Western Governors and I can’t say that we spoke extensively about sage grouse,” he said. “But I can say there was a general understanding of the sensitivity of the species.”
For Rutledge, “it’s our job as conservators and politicians and human beings to maintain the ecosystems in which we live.”
Gordon paraphrased Teddy Roosevelt, saying “I recognized the right of this generation to develop its resources but I don’t recognize the right of them to waste them.”
Wyoming, Gordon said again, has charted a path others should follow.
“I hope that the better angels of our natures give everybody the understanding that we have a solution here. It’s working.”
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