10/11/2017 - Regulatory Rollback

Greater Sage-Grouse Protection

by Caitlin McCoy, Grace Weatherall, Robin Just

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Greater sage-grouse are native to sagebrush and juniper grasslands throughout the Western US, and north into Canada. They are the largest North American grouse and are known for their charismatic mating dance. They are an “umbrella species” – indicating how healthy the habitat is that they share with hundreds of other wildlife species. Habitat fragmentation and degradation have led to plummeting populations across their range. Resource Management Plans were adopted in 2015 to guide conservation of Greater Sage-Grouse habitat on BLM-managed public lands in California, Colorado, Idaho, Nevada, Oregon, Utah, and Wyoming. These plans were crafted with cooperation from Western states governors, public land users, and environmental groups as a compromise to prevent listing the birds under the Endangered Species Act. 

Current Status

April 30, 2018 A coalition of environmental groups sues Interior and BLM for “policies that gut protections for imperiled greater sage-grouse and allow oil and gas leases on nearly 2 million acres of the birds’ prime habitat.”

Sep. 21, 2018 The U.S. District Court for the District of Idaho blocks BLM from implementing certain provisions of its January memo streamlining public involvement in oil and gas lease sales until the court can rule on its legality. The court’s preliminary injunction applies only to lease sales that intersect with sage-grouse planning areas or habitat management areas.

March 15, 2019 BLM finalizes revisions to greater sage-grouse Resource Management Plans that allow oil and gas drilling, mining, and other development near sensitive habitat across seven Western states. The plan amendments remove almost all 10 million acres of sagebrush focal areas, identified in the Obama-era plans as habitat critical to the bird’s survival, leaving only 1.8 million acres of these areas in Oregon and Montana. The amendments also remove the requirement for compensatory mitigation for impacts to grouse habitat. Instead, BLM “will consider compensatory mitigation only when offered voluntarily by a project proponent,” or required by a law other than the Federal Land Policy and Management Act. The plan amendments are available for each state and are linked here: Oregon, Colorado, Idaho, Utah, Wyoming and Nevada/Northeastern California.

For more information on the revisions to the plans, see our post on Greater Sage-Grouse Amended Resource Management Plans here.

Aug. 2, 2019 The Forest Service publishes its proposed amendments to 19 Land Management Plans in Colorado, Idaho, Nevada, Utah, and Wyoming for managing greater sage-grouse habitat and the final Environmental Impact Statement for those amendments. There are a number of changes from the 2015 plans that covered 5.2 million acres of federal lands in the five the states, including: 

  • Removal of more than 865,000 acres of “sagebrush focal areas” identified in the 2015 plans as habitat critical to the bird’s survival. 
  • Reduction of 300,000 acres acres of Forest Service lands designated as priority habitat management areas (a reduction from 2.6 to 2.3 million acres). Most of the reductions are in priority management areas in Nevada and Wyoming.
  • Alteration of requirements that prevented projects in greater sage-grouse habitat over a 3% disturbance cap. The old proposal would reject a project unless it demonstrated “a new conservation gain” for the bird. Instead, proposals will be accepted if the change leads to “no net habitat loss.”
  • Elimination of a mandate that there be “unanimous concurrence from a team of agency greater sage-grouse experts” from the U.S. Fish and Wildlife Service, the U.S. Forest Service, and the appropriate state wildlife agency, before waivers or modifications of “no surface occupancy” requirements are granted for oil and gas projects in grouse habitat.

While the federal government argues that these changes are meant to emphasize coordination with state conservation agencies, environmental groups have criticized the effort as an attempt to promote energy development to the detriment of the iconic greater sage-grouse. This proposal is open for comment until October 1, 2019 and comments may be submitted here.

History

May 7, 2001 In response to a petition, the U.S. Fish & Wildlife Service determines that the Columbia Basin population of greater sage-grouse warrants stand-alone listing under the Endangered Species Act, but that the listing is “precluded by higher priority listing actions.”

March 23, 2010 In response to several petitions, the U.S. Fish & Wildlife Service determines the greater sage-grouse should be listed as endangered but that there are higher priority listings to complete; and that the Bi-State population (a group that lives on the California/Nevada border) is a distinct population whose listing is also warranted but precluded by higher priority listings.

2010 The Natural Resources Conservation Service helps to launch the Sage-grouse Initiative, a voluntary partnership with western landowners to protect greater sage-grouse habitat on private lands.

May 10, 2011 The U.S. Fish & Wildlife Service settles a lawsuit with the Wild Earth Guardians, pledging to propose listing rules or determine whether or not to list 251 species as endangered or threatened (including greater sage-grouse) no later than Sep. 30, 2016.

Dec. 16, 2014 In the FY2015 budget, Congress prohibits the expenditure of funds to publish a proposed rule for the greater sage-grouse or the Columbian Basin population (Pub. L. Number 113–235).

Sep. 22, 2015 BLM and the USFS announce they have finalized 98 land use plans to conserve greater sage-grouse habitat in 10 western states.

Sep. 24, 2015 BLM proposes withdrawal of approximately 10 million acres from development to protect the greater sage-grouse, affecting six states.

Oct. 2, 2015 The U.S. Fish & Wildlife Service determines that listing the greater sage-grouse (or the Columbia Basin population) as threatened or endangered is not warranted under the Endangered Species Act. The Fish and Wildlife Service note the finding complies with the lawsuit “and is consistent with Congressional direction.”

Feb. 25, 2016 Environmental groups sue BLM for inadequate greater sage-grouse land management plans.

Sep. 1, 2016 BLM issues guidance for complying with the greater sage-grouse land use plans.

Dec. 26, 2016 BLM publishes an amended withdrawal proposal, adding acreage in Nevada. Public comment is open through March 28, 2017.

Jan. 5, 2017 The District Court of DC rules that Idaho’s governor cannot challenge the greater sage-grouse land use plans for Idaho and Montana.

Trump Era

Feb. 6, 2017 BLM announces that a 40% decline in a discrete population of greater sage-grouse in the Sheeprocks area of Utah triggered protective measures under the Obama era conservation plan. Measures include limits on vehicles and development and call for prioritizing habitat restoration.

March 31, 2017 The federal district court for the District of Nevada directs BLM and USFS to supplement their findings for the land withdrawals in Nevada.

June 7, 2017 Department of the Interior (DOI) Secretary Zinke issues Order No. 3353, “Greater Sage-grouse Conservation and Cooperation with Western States,” initiating a 60-day review of the 2015 land use plans.

Aug. 4, 2017 Secretary Zinke directs DOI to implement the recommendations from the 60-day review. Those include “investigating opportunities to provide additional waivers, modifications, and exceptions through policy or potential plan amendments” to promote “responsible economic growth,” and enabling grazing to take place in protected areas so long as it is not “improper grazing.”

Oct. 5, 2017 BLM announces it will rescind the Sep. 24, 2015 proposal to withdraw roughly 10 million acres of greater sage-grouse habitat from development.

Oct. 11, 2017 BLM publishes a Notice of Intent to Amend Land Use Plans Regarding Greater Sage-Grouse Conservation and Prepare Associated Environmental Impact Statements or Environmental Assessments. The proposed amendments shift management plans to the states, forgoing the habitat plan that was developed between the Western states and BLM. They open a public comment period through Nov. 27, 2017,or 15 days after the final public meeting, whichever came last. This ultimately extends the comment period through Dec. 1, 2017.

Oct. 23, 2017 The Western Values Project sues BLM for failure to respond to a Freedom of Information Act (FOIA) request about the proposed changes to the greater sage-grouse plan.

Oct. 31, 2017 Environmental groups file an administrative appeal with DOI over “BLM’s decision to lease priority sage-grouse habitat in central Utah for oil and gas development, a move which jeopardizes the survival and recovery of the imperiled Sheeprocks population of greater sage-grouse.” The groups notes the Feb. 6, 2017 finding of population decline in the Sheeprocks population mandated greater protections.

Nov. 21, 2017 The USFS publishes notice that it is considering amending some or all of its greater sage-grouse management plan in cooperation with BLM, in response to the March 31, 2017 ruling by the District of Nevada. The agency takes comments on a proposal to amend “some, all, or none” of their management plan in cooperation with BLM through Jan. 5, 2018.

Dec. 27, 2017 BLM issues an Instruction Memorandum on “Implementation of Greater Sage-Grouse Resource Management Plan Revisions or Amendments – Oil & Gas Leasing and Development Prioritization Objective.” According to the memo, BLM no longer needs to prioritize leasing in non-sage-grouse habitat before considering leasing in habitat areas.

Jan. 5, 2018 The Forest Service takes comments on a proposal to amend “some, all, or none” of their management plan in cooperation with BLM.

Jan. 2018 BLM issues a “Scoping Report” on potential land use plan changes, but does not account for tens of thousands of comments it received in response to the proposals. BLM has said it will file an addendum to the report that accounts for the missing comments.

Jan. 12, 2018 Citing research from The Nature Conservancy, High Country News reports that leasing in sage-grouse habitat areas “increased dramatically” in Wyoming last year and “plans to offer seven times more acres of sage-grouse habitat in its first quarter lease sale in Wyoming this year than it did in its first quarter lease sale last year.”

Feb. 7, 2018 Six Democratic senators send a letter to Secretary Zinke asking him to address their concerns about sage-grouse recovery in light of his Dec. 27, 2017 Instruction Memorandum.

April 30, 2018 A coalition of environmental groups sue Interior and BLM for “policies that gut protections for imperiled greater sage-grouse and allow oil and gas leases on nearly 2 million acres of the birds’ prime habitat.”

May 4, 2018 BLM publishes draft Environmental Impact Statements for Oregon, Nevada/Northern California, Idaho, Utah, Colorado, and Wyoming.The comment period for these is open through Aug. 2, 2018, with comments submitted at the BLM website. At the end of the comment period, BLM reports that it received at least 223,000 comments during the 90-day public comment period that ended Aug. 2, 2018.

July 17, 2018 Colorado Governor John Hickenlooper sends a letter to BLM, asking it to remove more than 108,000 acres of greater sage-grouse habitat from a planned December oil and gas lease sale until the Northwest Colorado Greater Sage-Grouse Draft Resource Management Plan Amendment is finalized. The full letter is available here.

Aug. 29, 2018 BLM grants final approval to a massive natural gas project in prime greater sage-grouse habitat in southwest Wyoming. The project proposes using directional drilling techniques to drill up to 3,500 natural gas wells over a 10-year period on nearly 141,000 acres of mostly federal lands about 35 miles south of Pinedale, Wyo. The project would become one the nation’s largest natural gas fields, if completed. The plan includes mitigation measures and some restrictions designed to minimize impacts to sage-grouse and their habitat.

Sep. 21, 2018 The U.S. District Court for the District of Idaho blocks BLM from implementing certain provisions of its January memo streamlining public involvement in oil and gas lease sales until the court can rule on its legality. The court’s preliminary injunction applies only to lease sales that intersect with sage-grouse planning areas or habitat management areas.

Oct. 5, 2018 The Forest Service releases proposed Land Management Plan amendments along with a draft Environmental Impact Statement for habitat in Idaho, Colorado, Nevada, Wyoming, and Utah. The proposed amendments to the Land Management Plan include changes to current protections for sage-grouse, including: changing requirements for authorization potentially disruptive projects (from the need to show a “conservation gain” to just showing “no net habitat loss”); waiving a requirement for unanimous FWS expert agreement before allowing oil and gas projects to expand; and relaxing restrictions on “tall structures” and “permanent livestock facilities” near habitat management areas. The 90-day comment period for the proposed Land Management Plan amendments and draft EIS is open until Jan. 3, 2018.

Oct. 19, 2018 BLM announces that it is removing 148,797 acres of greater sage-grouse habitat in Colorado from an oil and gas lease sale planned for December 2018. Although BLM did not address this point in its announcement, the removal of those acres is in accordance with the Sep. 21, 2018 injunction from U.S. District Court for the District of Idaho that halted lease sales that could interfere with sage-grouse habitat.

Oct. 23, 2018 BLM announces that it is removing 54,200 acres of sage-grouse habitat from a planned December 2018 oil and gas lease sale in Montana. In its announcement, BLM cites the U.S. District Court for the District of Idaho’s Sep. 21 2018 injunction blocking BLM from making lease sales of land that included sage-grouse habitat.

Nov. 2, 2018 BLM announces that it is removing 58 parcels of land, totaling 74,516 acres, from a planned Colorado oil and gas lease sale scheduled for December 13, 2018. Included in this removal were five parcels (13,000 acres) in Colorado’s North Fork Valley. BLM was responding to pressure from conservation groups in Colorado, as well as Colorado Governor John Hickenlooper and Senator Michael Bennet, who cited the need to complete a NEPA review of the Uncompahgre Resource Management Plan before proceeding with lease sales in the North Fork Valley.

Nov. 15, 2018 BLM announces that it plans to offer more than 170,000 acres of greater sage-grouse habitat in Utah in an oil and gas lease sale on March 26, 2019, acreage that it had previously pulled from its December 2018 lease sale. BLM will include a 30-day public comment and protest period, instead of a shortened public involvement timeline of only 10 days that a federal judge blocked in September. The March 26 sale will include 156 parcels covering 217,519 acres in northern and eastern Utah.

Dec. 6, 2018 BLM releases final drafts of proposed revisions to greater sage-grouse conservation plans that recommend removing hundreds of thousands of acres of federally protected habitat in Utah, and easing restrictions on energy development and other activities in Colorado, Idaho, and Wyoming.

Jan. 10, 2019 BLM extends the deadlines to Jan. 15 for comments and protests to revisions to Obama-era greater sage-grouse conservation plans covering parts of Colorado, Idaho, Nevada/Northern California, Oregon and Utah. Conservation groups had raised awareness about how the government shutdown had interfered with their ability to respond to the revisions. BLM also extends the deadline on the Wyoming plan to Jan. 28 due to the release of “incorrect versions of appendices” to the plan in December.

Feb. 26, 2019 The new chairman of the House Armed Services Committee, Representative Adam Smith, says that he intends to keep “anti-environmental riders” out of this year’s National Defense Authorization Act (NDAA). Noting that protections for sage-grouse and other species have been points of controversy in past NDAA agreements, Smith says: “We should not use the defense bill as an excuse to degrade the environment.”

March 15, 2019 BLM finalizes revisions to greater sage-grouse Resource Management Plans that allow oil and gas drilling, mining, and other development near sensitive habitat across seven Western states. The plan amendments remove almost all 10 million acres of sagebrush focal areas, identified in the Obama-era plans as habitat critical to the bird’s survival, leaving only 1.8 million acres of these areas in Oregon and Montana. The amendments also remove the requirement for compensatory mitigation for impacts to grouse habitat. Instead, BLM “will consider compensatory mitigation only when offered voluntarily by a project proponent,” or required by a law other than the Federal Land Policy and Management Act. The plan amendments are available for each state and are linked here: Oregon, Colorado, Idaho, Utah, Wyoming and Nevada/Northeastern California.

April 4, 2019 BLM is considering whether to include 75 parcels of greater sage grouse habitat in northwest Colorado in a oil and gas lease sale in September 2019. The parcels have been subject to some push-and-pull over the last year when BLM pulled them from a lease sale in response to a Sept. 2018 injunction and then included them in the Dec. 2018 lease sale only to pull them again in Oct. 2018 when then-Governor Hickenlooper complained about potential harm to the bird.

May 24, 2019 Public Employees for Environmental Responsibility sends a letter to Interior Secretary David Bernhardt alleging that the revised sage grouse plans are invalid because BLM did not have a Senate-confirmed Director to decide administrative protests to the revisions before they were adopted.

Aug. 2, 2019 The Forest Service publishes its proposed amendments to 19 Land Management Plans in Colorado, Idaho, Nevada, Utah, and Wyoming for managing greater sage-grouse habitat and the final Environmental Impact Statement for those amendments. There are a number of changes from the 2015 plans that covered 5.2 million acres of federal lands in the five states, including: 

  • Removal of more than 865,000 acres of “sagebrush focal areas” identified in the 2015 plans as habitat critical to the bird’s survival. 
  • Reduction of 300,000 acres of Forest Service lands designated as priority habitat management areas (a reduction from 2.6 to 2.3 million acres). Most of the reductions are in priority management areas in Nevada and Wyoming.
  • Alteration of requirements that prevented projects in greater sage-grouse habitat over a 3% disturbance cap. The old proposal would reject a project unless it demonstrated “a new conservation gain” for the bird. Instead, proposals will be accepted if the change leads to “no net habitat loss.”
  • Elimination of a mandate that there be “unanimous concurrence from a team of agency greater sage-grouse experts” from the U.S. Fish and Wildlife Service, the U.S. Forest Service, and the appropriate state wildlife agency, before waivers or modifications of “no surface occupancy” requirements are granted for oil and gas projects in grouse habitat.

While the federal government argues that these changes are meant to emphasize coordination with state conservation agencies, environmental groups have criticized the effort as an attempt to promote energy development to the detriment of the iconic greater sage-grouse. This proposal is open for comment until October 1, 2019 and comments may be submitted here.

Thank you to Harvard Law student Grace Weatherall, JD 2021, for assistance with this rule.