In the latest listing driven by a huge July 2011 settlement with environmental NGOs, the U.S. Fish and Wildlife Service earlier today announced it would list the Gunnison sage-grouse as threatened under the Endangered Species Act (ESA).  The listing comes in the face of objections from both sides.  Colorado’s Governor and both its senators – all Democrats – had worked hard to prevent the listing, while environmentalists warned in advance that they would sue over a threatened listing, demanding that the bird be listed as endangered, not just threatened.

Concurrent with the listing, FWS announced it would denote over 1.4 million acres as critical habitat for the bird, limiting the scope and scale of development available on that property. That area covers most of the species’ current range, which consists of  seven population areas in southwestern Colorado and southeastern Utah.

Caught in the middle, as usual, are land developers (to a fair degree in this case, the oil and gas industry and grazing interests).  Both industries may have to curtail their activity in the region despite the fact that they are not the main cause of the species’ peril – the primary threat to the grouse is “habitat loss, degradation, and fragmentation due primarily to residential, exurban, and commercial development and associated infrastructure such as roads and power lines.”

It is anticipated that FWS will publish a rule early next year that will allow these industries (and others) to continue their activities if they participate in certain conservation plans or habitat exchanges.  The rule is expected to be similar to the one FWS published earlier this year for the Lesser Prairie Chicken.  However, perhaps as a result of the court-ordered deadline by which FWS had to make this listing decision, it has not yet published that rule.  As a result, industry and other developers will have to wait to see its precise terms and understand to what degree they can continue to operate in sage-grouse habitat.

The challenge for regulators will be to implement measures to recover the bird while seeking to avoid curtailing economic development in the region.  In Colorado, oil and gas companies, ranchers and the state Parks and Wildlife agency are working cooperatively to develop a habitat exchange to facilitate the mitigation of damage to the habitat of a similar species, the Greater sage grouse, from a variety of activities.  One option for regulators may be to employ this same tool to give industry the flexibility to operate in the Gunnison sage-grouse area while generating a net gain in habitat for the Gunnison sage-grouse, reward landowners for taking steps to enhance or create habitat for this species, and thus contribute to its recovery.

Perhaps most interesting to those outside of Colorado – particularly other parties interested in avoiding listings contemplated under the 2011 settlement – was the rationale for FWS’ listing.  Among other things, FWS noted that the main population of Gunnison sage-grouse has been stable in recent years but that the six smaller populations have been in decline.  The FWS reasoned that if anything were to happen to the main population, at least some of other populations would have to be robust in order to prevent the birds’ extinction.  Given that these secondary populations were in decline, a “threatened” listing was required.  Those undertaking efforts directed at protecting other species in other areas in an effort to stave off a listing would therefore be well-informed to focus not only on protecting the major population center of the species at issue, but protecting enough secondary population centers to ensure that the species has sufficient cushion in case of a threat to the major population.

Given the large number of listings still to be examined by FWS under the 2011 settlement, that is a lesson that many will have an opportunity to put in place.