The Endangered Species Act (ESA), 16 U.S.C § 1531 et seq., was enacted in 1973 “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b) (2012). The ESA further mandates that all federal departments and agencies “shall seek to conserve endangered species and threatened species.” 16 U.S.C. § 1531(c) (2012). Section 9 of the ESA, 16 U.S.C. § 1538, prohibits the import or export of any listed species; or “take” (harass, harm, pursue, hunt, kill, shoot, wound, trap, capture, collect, or the attempt to engage in such conduct) of any such species; or the possession, sale (or offer to sell), delivery, transport, or shipping of a listed species, including interstate and foreign commerce. A species is “endangered” under the ESA if it is at risk of extinction throughout all or a significant portion of its range and is “threatened” if it is likely to become endangered in foreseeable future. ESA Section 4, 16 U.S.C. § 1533, directs the secretaries of the U.S. Department of the Interior and U.S. Department of Commerce (federal Secretaries) to publish in the Federal Register a list of all species determined to be endangered and a list of all species determined to be threatened. These determinations, which require application of best scientific and commercial data available, are based on the following factors: (1) present or threatened habitat or range loss, curtailment or modification; (2) overutilization of the species; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting continued existence of the species.

The Department of the Interior’s U.S. Fish & Wildlife Service (FWS) also maintains a list of “candidate” species for which FWS has enough information to warrant proposing them for listing as threatened or endangered but is precluded from doing so by higher listing priorities. While listing actions for higher-priority species proceed, FWS can work with states, tribes, private landowners, partners, and other federal agencies to prevent further decline of candidate species and possibly obviate the need for listing. ESA section 7, 16 U.S.C. § 1536, requires that federal agencies utilize their authorities to further the purposes of the ESA in “consultation” (section 7 consultation) with and with the assistance of the federal secretaries, by carrying out programs for the conservation of listed endangered and threatened species. Conservation, according to the ESA, entails recovery sufficient to remove a listed species from the threatened or endangered lists.

NRCS was established by USDA as the Soil Conservation Service eighty years ago pursuant to an act of Congress, to address soil conservation during the Dust Bowl. Today, NRCS works with private landowners to conserve soil, water, air, plants, and animals that contribute towards productive lands and healthy ecosystems. These efforts, involving an extensive network of public and private partnerships, help reduce soil erosion, enhance water supplies, improve water quality, increase wildlife habitat, and reduce damages caused by floods and other natural disasters. NRCS is neither a regulatory nor a land-management agency, and its role in farm and range management is largely advisory. NRCS conservation programs are voluntary and provide technical and financial assistance for implementing conservation systems. Local NRCS planners develop conservation plans at the invitation of clients, prescribing conservation practices to manage environmental resource concerns on private, non-federal, or tribal lands.

On September 17, 2012, the NRCS and FWS announced a partnership to provide long-term ESA predictability for farmers, ranchers, and forest landowners who voluntarily participate in NRCS’s Working Lands for Wildlife (WLFW) partnership. Through the WLFW, participating landowners and other cooperators who agree to adhere to the requirements of the program are provided with regulatory predictability; they are exempted from the ESA’s “take” prohibition of listed species for up to thirty years, as long as the covered conservation practices are maintained and take is incidental to the implementation of these conservation practices. Determination of Threatened Status for the Lesser Prairie-Chicken; Final Rule, 79 Fed. Reg. 19,974, 19,989 (Fish & Wildlife Service,Apr. 10, 2014). These landowners will be able to operate their farms and ranches as agreed upon, providing sustainable agricultural operations, economic benefits, and species conservation simultaneously. 

Seven species are targeted through WLFW, including the greater sage-grouse, lesser prairie-chicken, and southwestern willow flycatcher. NRCS, FWS, and numerous state and local entities are partnering to implement WLFW, and their wildlife experts have jointly identified at-risk or listed species that would benefit from targeted habitat restoration investments on private lands.

Further, FWS and NRCS have undertaken section 7 interagency consultation regarding NRCS’s individual conservation practices standards or “conservation practices” that will be applied for each targeted species. In 2010, FWS delivered a Conference Report for NRCS’s Sage-Grouse Initiative; and in 2011, a Conference Report for NRCS’s Lesser Prairie-Chicken Initiative; followed in 2013 by a Conference Opinion for this Lesser Prairie-Chicken Initiative (2013) (Lesser Prairie-Chicken Conference Opinion)); and a 2012 Biological Opinion for Southwest willow flycatcher habitat protection and restoration through WLFW. Through these consultations, NRCS has agreed to “condition” conservation practices by applying reasonable and prudent “measures” for implementation that help ensure habitat effects will be benign if not beneficial, thus reducing the likelihood of any potential incidental take of targeted species.

Greater Sage-Grouse

The greater sage-grouse occupies an immense sagebrush and open grasslands landscape (186 million acres) within eleven western states and two Canadian provinces. Private land constitutes 40 percent of its habitat. NRCS launched the Sage-grouse Initiative (SGI) in March 2010 upon FWS designation of sage-grouse as a candidate for potential listing as biologically warranted but precluded. A distinct bi-state population segment of the sage-grouse in California and Nevada was proposed to be listed as threatened on October 28, 2013. Threatened Status for the Bi-state Distinct Population Segment of Greater Sage-Grouse, Proposed Rule, 78 Fed. Reg. 64,358 (Fish & Wildlife Service Oct. 28, 2013).

Coincidentally, the sage-grouse faces the same threats as western ranchers. Both need vast tracts of contiguous native range to prosper and are negatively affected by the spread of noxious weeds, the encroachment of conifers, and unsustainable grazing systems. SGI is a collaborative, targeted effort to implement conservation practices that alleviate threats to sage-grouse while improving the productivity and sustainability of working ranches in states with sage-grouse populations: California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. SGI partners include four federal agencies, twelve state wildlife and natural resource agencies, eight conservation districts, and over two dozen universities, corporations, and nongovernmental organizations. SGI applies the best available science at a regional scale to assess effectiveness, quantify benefits, and inform FWS listing decisions.

SGI is groundbreaking on several fronts. The FWS’s Sage-grouse Conference Report provides certainty to cooperators who voluntarily implement the NRCS-sponsored conservation practices analyzed and the conservation measures developed in this report that they will be in compliance with the ESA in the event that the sage-grouse species is listed as a threatened or endangered species under the ESA. See Conference Report for the NRCS Sage-grouse Initiative (Fish & Wildlife Service July 30, 2010).

Section 7 consultation between NRCS and FWS assessed private-lands habitat conservation at a range-wide, landscape scale. SGI focuses program delivery in habitat “core areas” to help maintain large and intact landscapes, consistent with sage-grouse distribution patterns. The section 7 consultation achieved new efficiencies by assessing forty different NRCS conservation practices holistically across the range and developed specific “conditioned” measures that when implemented will ameliorate, minimize, or eliminate potential adverse effects.

For example, conifer trees have expanded into range habitats due to a century of fire suppression. Sage-grouse avoid areas with more than 5 percent tree canopy cover because trees harbor predators. Therefore, SGI targets tree removal in locations adjacent to sage-grouse core areas through NRCS’ brush management conservation practice. NRCS and FWS agreed to “condition” this conservation practice through a timing restriction to avoid unnecessary take of the species during nesting season.

Prescribed grazing is another core SGI conservation practice, applied to improve or maintain desired species composition for both habitat and forage. Unrestricted livestock grazing can degrade vegetation and plant communities by promoting invasive species, soil erosion, and other threats to ecological health and sage-grouse habitat. Through sustainable grazing management, with limits on the timing, duration, and intensity of grazing, the prescribed grazing practice is expected to produce a mosaic of vegetation structure and composition to benefit the sage-grouse.

Fencing may be needed to modify grazing rotations for prescribed grazing. Also important, fence removal or relocation is a covered conservation practice that decreases opportunities for predation and reduces accidental mortality from grouse-fence collisions. In its 2010 Conference Report on the SGI, FWS recognized accidental mortality as a potentially adverse effect of fences. To reduce this risk, SGI conservation practice conditions were developed, including avoiding placement of new fences near sage-grouse breeding leks (strutting grounds where male sage grouse congregate in the spring to display for female grouse); removing or relocating existing fences near leks where feasible; and, at a minimum, marking existing fences within a quarter mile from all leks and in areas where collisions are known to occur. Leks can attract more than 100 males at one location. To enhance visibility of fences and reduce grouse collision risk, SGI partners install 3-inch by 2-inch vinyl markers on the top strand of common barbed-wire fencing, spaced 3 feet apart. Fence marking as recommended can also reduce collisions by antelope, deer, and elk, and reduce ensuing fence maintenance costs.

NRCS has executed more than 950 SGI contracts with agricultural producers who manage over 3.8 million acres to benefit sage-grouse. Through 2013, SGI partners have improved grazing systems on 2.6 million acres, removed invasive conifer from over 275,000 acres and marked or moved over 537 miles of high-risk fence. Further, NRCS has protected over 380,000 acres from range fragmentation using conservation easements, thus preventing subdivision of large and intact ranches or conversion to other uses.

FWS stated in its 2010 Conference Report that SGI conservation practices and associated measures are anticipated to result in positive population response by the sage grouse. The SGI is important as a strategy to obviate the need for listing by assuring habitat protection and restoration. Even if the species is eventually listed across all or a part of its range, agricultural producers who have enrolled in the SGI and maintain conservation practices consistent with their NRCS-sponsored conservation plans will benefit from regulatory predictability as described in the Conference Report.

Lesser Prairie-Chicken

Like the sage-grouse, the lesser prairie-chicken is a ground-dwelling species reliant on large expanses of contiguous habitat. Both species are known for their lek mating behavior; both species benefit from implementation of NRCS conservation practices on rangeland; and both species were listed with 249 other species on an FWS Notice of Candidate Species Review, 75 Fed. Reg. 217 (Nov. 10, 2010), 69,221–294, resulting in their inclusion in a settlement of multidistrict litigation for disposition of their ESA status. While under the terms of the settlement FWS committed to a determination on the status of the lesser prairie-chicken by September 30, 2012, In re Endangered Species Act Section 4 Deadline Litigation, No. 10-377, MDL Docket No. 2165 (D.D.C. May 10, 2011), ECF Dkt. 31, FWS ultimately proposed listing the species as threatened during December 2012, which, as described below, was finalized in 2014. Proposed Listing the Lesser Prairie-Chicken as a Threatened Species, 77 Fed. Reg. 73,828 (Fish & Wildlife Service Dec. 11, 2012).

The lesser prairie-chicken is a grouse of the Southern Great Plains, preferring native short- and mixed-grass prairies having a shrub component with sand sagebrush or sand shinnery oak. This prairie-chicken uses various habitats to meet its life-cycle needs, including fields of small grains if adequate waste grain is available and if located near grasslands that provide cover and nesting sites. Found on the prairies of western Kansas, southeast Colorado, northwest Oklahoma, the Texas panhandle, and eastern New Mexico, lesser prairie-chicken habitat does not overlap with that of sage-grouse. Biologists estimate that 22,000 breeding birds remain. Press Release, Western Association of Fish and Wildlife Agencies, Aerial Survey Shows Lesser Prairie-Chicken Population Increased 20 Percent in 2014 (July 1, 2014), www.wafwa.org/documents/LPC-aerial-survey-results-2014.pdf. Population declines are attributed to habitat loss, modification, degradation, and fragmentation. In Kansas and Oklahoma, Eastern red cedar has encroached into existing lesser prairie-chicken habitat, and in Texas and New Mexico mesquite is a concern. Further, fence collision is a documented source of mortality for lesser prairie-chickens. The lesser prairie-chicken was listed as threatened in 2014. Determination of Threatened Status for the Lesser Prairie-Chicken; Final Rule, 79 Fed. Reg. 19,974 (Apr. 10, 2014) (Lesser Prairie-Chicken Listing). Further, because only about 4 percent of the species’ overall range occurs on federal lands, the FWS recognized that the lesser prairie-chicken cannot be fully recovered on federal lands alone. Id. at 20,064.

Accordingly, in its Lesser Prairie-Chicken Listing the FWS issued a Special Rule under ESA section 4(d), 16 U.S.C. § 1533, providing an exception, as authorized under FWS regulations at 50 C.F.R. 17.31, for any take “incidental to the conditioned conservation practices that are carried out in accordance with a conservation plan developed by NRCS in connection with NRCS’s Lesser Prairie-Chicken Initiative (LPCI) and related NRCS activities focused on lesser prairie chicken conservation consistent with the provisions of the [Lesser Prairie-Chicken Conference Opinion].” Special Rule for the Lesser Prairie-Chicken; Final Rule, 79 Fed. Reg. 20,074, 20,077 (Fish & Wildlife, Apr. 10, 2014). The Special Rule provides another take exception when the take is incidental to activities that are conducted during the continuation of routine agricultural practices . . . on cultivated lands that are in row crop, seed-drilled untilled crop, hay, or forage production. These lands must meet the definition of cropland as defined in 7 CFR 718.2, and, in addition, must have been cultivated, meaning tilled, planted, or harvested, within the 5 years preceding the proposed routine agricultural practice that may otherwise result in take. Thus, this provision does not include take coverage for any new conversion of grasslands into agriculture. Id. at 20,078.

The loss of habitat through conversion of native grasslands has been mitigated somewhat, at least temporarily, by USDA’s Conservation Reserve Program (CRP) (see www.fsa.usda.gov/FSA/webapp?area=home&subject=copr&topic=crp) as nearly one-half of all lesser prairie-chicken leks are located within one mile of CRP fields. CRP is a voluntary, long-term conservation program administered by the USDA Farm Service Administration. The Agricultural Act of 2014 directs the Secretary of Agriculture to administer CRP “. . . to conserve and improve the soil, water, and wildlife resources of such land and to address issues raised by State, regional, and national conservation initiatives.” Agriculture Act of 2014, Pub. L. No. 113-79, 128 Stat. 649, 713 (2014). Originally authorized in 1985 with an enrollment cap of 45 million acres nationally, the 2014 Agricultural Act gradually lowers CRP enrollment to 24 million acres by 2017.

Agricultural producers enrolled in CRP plant long-term, resource-conserving covers including native grasses. Once conservation cover is established, CRP participants must maintain it at their own expense. History shows that a majority of former CRP land is still in conservation cover long after the CRP contract has terminated.

USDA targets priority lesser prairie-chicken range to enroll land of willing farmers and ranchers in CRP, with a goal of large blocks of core quality habitat and linked habitat patches, allowing birds to move across agricultural land to preferred higher-quality habitat. While at the individual field scale CRP enrollment is indeed “temporary,” the larger landscape remains intact as CRP has maintained more than five million acres within lesser prairie-chicken range since 1998.

In 2010, NRCS launched the Lesser Prairie-Chicken Initiative (LPCI) (www.nrcs.usda.gov/wps/portal/nrcs/detailfull/national/programs/?cid=nrcsdev11_023912) to focus technical and Farm Bill financial assistance to improve prairie-chicken habitat. LPCI partners include six state wildlife and conservation agencies and eight nongovernmental conservation organizations. Many of the same conservation practices that promote healthy grazing lands also benefit the lesser prairie-chicken, including prescribed grazing, upland wildlife habitat management, brush management, prescribed burning, range plantings, and restoration and management of rare or declining habitats.

Grazing is a driving ecological force of Great Plains ecosystems, and expanses of untilled grasslands within lesser prairie-chicken range continue to be grazed by livestock and other animals. This mixed-grass prairie arose from the historical interaction of drought, fire, and large ungulate and other grazers creating and maintaining a mosaic of vegetation structure and composition that sustained lesser prairie-chickens. “As such, grazing by domestic livestock is not inherently detrimental to lesser prairie-chicken management. For example, appropriate grazing levels or stocking rates can help ensure grass cover in brood rearing habitat is not so dense that movements of the chicks are hindered.” Lesser Prairie-Chicken Listing at 20,030.

Since 2010, NRCS has invested over $27 million to improve lesser prairie-chicken habitat by providing conservation plans and financial assistance for prescribed sustainable grazing across 371,390 acres of private rangelands. Brush management to help improve habitat has occurred on 136,120 of these acres. The LPCI has also specifically sought to maintain expiring CRP acres as grassland by enrolling those lands into NRCS contracts that include the prescribed grazing conservation practice. In summary, “[t]hrough the conference opinion, the (Fish and Wildlife) Service found that effective implementation of conservation practice standards and associated conservation measures for the LPCI are anticipated to result in a positive population response by the species.” Lesser Prairie-Chicken Listing at 19,989.

Southwestern Willow Fly Catcher

The southwestern willow flycatcher is a small neotropical migratory bird that breeds in the arid southwestern United States. It was federally listed as endangered on February 27, 1995. While the flycatcher’s current range is similar to its historic range, the amount of suitable habitat within the range is greatly reduced from historic levels. The potential range for this flycatcher occurs in Arizona, southern parts of California, Nevada, Utah, and Colorado and the western two-thirds of New Mexico. The species is limited to riparian zones with associated dense tree and shrub communities and surface water or at least moist soils from May through July. Individuals have become increasingly isolated and widely dispersed as the result of surface water diversion, groundwater pumping, changes in flood and fire regimes, and the establishment of nonnative invasive plants.

The flycatcher nests in native vegetation where available, but also nests in thickets dominated by exotic invasive species such as tamarisk and Russian olive. Efforts to control these nonnative species in mixed and exotic habitats can be detrimental to willow flycatchers, especially if control projects are implemented in the absence of suitable native riparian plant habitat of equal or higher functional value.

WLFW may provide assistance to landowners who restore degraded riparian ecosystems and conserve existing healthy riparian systems by planting natives, removing exotic weeds, preventing fires, and reconnecting rivers to natural floodplains. WLFW focuses on increasing and improving occupied, suitable, and potential breeding habitat, thereby supporting willow flycatcher recovery along with multiple associated species that share the flycatcher’s obligation to these limited southwestern riparian habitats.

Since 2011, NRCS has invested over $1.5 million to improve flycatcher habitat on 1775 acres of private agricultural lands. FWS concluded in a 2012 Biological Opinion that the WLFW “actions as proposed, are not likely to jeopardize the continued existence of these species, and are not likely to destroy or adversely modify proposed or designated critical habitat.” Final Biological Opinion—Working Lands for Wildlife, Southwestern Willow Flycatcher, p. 81, available at http://efotg.sc.egov.usda.gov/references/public/CO/SWFL_Biological_ Opinion_07-23-12.pdf.

NRCS is further assessing its flycatcher habitat restoration efforts as part of its consideration of measures and activities that will improve habitat and protection for over eighty-five associated listed, candidate, or at-risk species, including forty fish and twenty-five plant species, and twenty additional amphibians, reptiles, mammals, birds, and invertebrates. This multispecies, riparian ecosystem approach has appeal for landowners since it manages habitat restoration holistically rather than through a single-species approach. Advances in private working lands conservation in turn help further the ESA purpose to protect and maintain habitat and ecosystems that support imperiled species and may obviate the need for future listing of species that rely on these landscapes.

Farmers, ranchers, and forest owners provide not only food and fiber for the world, but also environmental benefits, including wildlife habitat. WLFW helps landowners keep working lands in production while complying with the ESA and facilitates restoration of habitat for at-risk species.

Through WLFW, landowners can voluntarily participate in incentive-based efforts to restore habitat for declining wildlife species. (Enrollment and general information can be found online at www.nrcs.usda.gov/wps/portal/nrcs/detailfull/national/programs/farmbill/?cid=stelprdb1193811.) Partnership with NRCS and FWS provides farmers, ranchers, and forest managers with predictability that conservation investments they make today will help sustain their operations over the long term. This partnership also strengthens and sustains rural economies by restoring and protecting the productive capacity of working lands. WLFW proactively protects and manages imperiled species habitat at a range-wide, ecosystem level, and FWS consultation for application of dozens of practices at this landscape scale introduces profound efficiencies in contrast to a single-species, property-by-property, project-by-project review. WLFW supports the important conservation stewardship provided by farmers and ranchers and demonstrates the compatibility of working landscapes and species conservation.