U.S. Fish and Wildlife Service Proposes Greater Protections for Greater Sage-Grouse Along the California-Nevada Border

On October 28, 2013, the U.S. Fish and Wildlife Service ("Service") proposed to list the Bi-State distinct population segment ("Bi-State DPS") of greater sage-grouse (Centrocercus urophasianus), which occur in the Mono Basin area of California and Nevada, as a threatened species under the Endangered Species Act ("ESA"). 78 Fed. Reg. 64,358 (Oct. 28, 2013). The Bi-State DPS's current range is limited to six population management units along the California-Nevada border. The Service also proposed to designate critical habitat for the Bi-State DPS. 78 Fed. Reg. 64,328 (Oct. 28, 2013). In total, approximately 1,868,017 acres fall within the proposed critical habitat designation in Carson City, Lyon, Douglas, Mineral, and Esmeralda Counties, Nevada, and Alpine, Mono, and Inyo Counties, California. The Service will seek additional public review and comment when the draft economic analysis is completed.

The Service's proposal includes a special 4(d) rule that exempts from the ESA's Section 9 take prohibition activities conducted pursuant to a comprehensive conservation program developed by or in coordination with a state agency. The intent of the special rule is to increase support and provide incentives for the conservation of the Bi-State DPS. Under the special rule, any take of the Bi-State DPS incidental to agricultural activities is not a prohibited action under the ESA if the activities are either (1) included in one of two conservation programs: the Natural Resources Conservation Service ("NRCS") for private lands in connection with NRCS's sage-grouse initiative ("SGI") or the Bi-State Local Area Working Group Action Plan; or (2) consistent with the SGI.

Notwithstanding the flexibility proposed in the special rule, the proposed designations may have ramifications for project siting and permitting, including linear facilities, mining operations, and renewable energy projects. Nothing in the proposed special 4(d) rule would affect the consultation requirements under Section 7 of the ESA. Under Section 7, permitting agencies may be required to consult with the Service before issuing federal permits and must ensure that projects occurring in critical habitat do not destroy or adversely modify the habitat. Comments are due by December 27, 2013.

Note that the Bi-State DPS proposal is being considered separately from the petition for protection of the greater sage-grouse. The Bi-State DPS is genetically unique and markedly separated from the rest of the species' range. However, the Service's proposal and approach may inform the Service's approach to the rest of the greater sage-grouse as affected states work on conservation plans of their own.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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