On Wednesday, the U.S. Fish and Wildlife Service proposed to downlist the American burying beetle from “endangered” to “threatened” and to issue a rule that exempts certain activities from the Endangered Species Act’s prohibitions. Already, the proposals have drawn a lot of controversy. In this blog post, I’m going to dive deeper into the proposals and try to understand what activities the Service wants to exempt and why.
The beetle now occurs in only nine of the 35 states it used to inhabit. The Service has divided these nine states into three broad areas: the Northern Plains, the Southern Plains, and New England (see map).
The rule that would exempt certain activities—also known as a 4(d) rule—offers far less protection in the Southern Plains than in the Northern Plains and New England. In the latter two areas, all soil disturbance that causes harm to the beetle would be regulated. But in the Southern Plains, which has nearly 20 million acres of suitable habitat for the beetle, all activities are allowed except on 213,000 acres of lands already managed for conservation. And it so happens that most of the oil and gas development impacting the beetle occurs in the Southern Plains. This coincidence raises red flags, so let’s dig deeper.
On its face, using a 4(d) rule to protect some populations more than others makes sense and is consistent with the ESA. In fact, in a study I completed in 2017 of all 4(d) rules, I recommended the Service use that approach far more often. The approach allows the agency to reward landowners who meet conservation goals for a population by relaxing the ESA’s prohibitions for that population. But how the Service carries out this approach must make sense. I find it difficult to understand exactly why the agency adopted nearly opposite approaches in the Southern Plains and the rest of the species’ range.
As best as I can tell, the agency reasons that no more than 2 percent of the Southern Plains is at risk of habitat loss. The agency then concludes that “large areas of suitable habitat, combined with low levels of projected land use change, and relatively large areas of protected habitat indicate that impacts to habitat are not likely to affect the viability of the species in these areas.” What the Service implies—but never actually states—is that the ESA’s section 9 prohibitions aren’t needed in the Southern Plains because the risk of habitat loss is trivial. This implication is a big deal. The Service is effectively adopting a policy position, at least for the beetle, that a trivial risk of habitat loss in an area with a lot of protected habitat does not trigger the need for ESA prohibitions. This is a reasonable position, if it’s the agency’s real rationale. But if so, then many other activities currently regulated under the ESA should probably no longer be regulated. I can imagine many other species with populations at low risk of small-scale habitat loss but for which section 9 prohibitions continue to apply. As a result, landowners in those areas still need to develop a habitat conservation plan and acquire an ESA incidental take permit. If the beetle 4(d) rule is the frontrunner of a new trend to exempt activities in those areas, then the rule represents a major change in the evolution of ESA implementation. If the beetle rule is a one-off, however, then it will raise deep suspicion that the exemption in the Southern Plains was designed to ease regulatory burdens for the oil and gas industry. I can’t remember reading any other 4(d) rule that resembles the one proposed, where certain areas would receive no section 9 protections because the risk of land conversion is low. In fact, I’ve seen only two other 4(d) rules that vary protections by geography—the bull trout rule and the desert tortoise rule—and neither of them adopts the approach we see with the beetle.
Because the Service isn’t entirely clear on why the Southern Plains is treated differently, another theory is that the agency proposes not to regulate the Southern Plains because it expects all beetle populations there to be extirpated by mid-century (2040-69) as a result of climate change. Specifically, in several decades the mean maximum temperature in that area is expected to exceed 95 degree, which the agency believes is the maximum threshold for the species. If extirpation is inevitable, what’s the point of protecting those populations at all? The proposed rule offers one intriguing hint: “Active management and monitoring in these conservation lands is considered important to help support recovery by serving as source populations for relocation and reintroduction efforts of American burying beetle populations, for as long as they sustain beetle populations.” I read this to mean that the real conservation value of the Southern Plains is to provide beetles for relocation to other parts of the range that won’t be too hot because of climate change. The reference to “as long as [the conservation lands] sustain beetle populations” supports this reading, implying that those lands are unlikely to support beetle populations indefinitely because of impending climate change. All of these questions—whether the Southern Plains holds no long-term recovery value, how to regulate activities there in the meantime, and so forth—are ones for a recovery plan to address. But because the species’ recovery plan is outdated (1991) and because the Service did not revise it before initiating its downlisting proposal, the public cannot know exactly how the proposed 4(d) rule fits into the agency’s strategy to recover the species.
Another head-scratcher is this: why does the Service propose to exempt section 9 prohibitions in all of the Southern Plains except designated “conservation lands,” which consists of three military installations (Fort Chaffee, McAlester Army Ammunition Plant, Camp Gruber/Cherokee WMA) and the Nature Conservancy Tallgrass Prairie Preserve? Although these areas are among the most important for the beetle in the Southern Plains, they also seem to be least in need of protections from land conversion. First, all three of the military lands are still subject to the ESA’s section 7 requirements for federal agencies, so there is already that independent requirement for protection. Second, most or all military installations already have their own natural resource conservation strategy, such as an Integrated Natural Resource Management Plan or installation-specific regulations. Third, the Tallgrass Prairie Preserve is a nature preserve and probably faces no risk of habitat loss from development. I saw no explanation in the proposed 4(d) rule for why the Service would apply section 9 prohibitions on these lands, which are probably some of the most secure in the Southern Plains, but not on the remaining 99 percent of land in the area, most of which is unprotected. According to the Service’s analysis, of the 19,907,619 acres of suitable habitat in the Southern Plains, 90 percent of it is currently unprotected (see table below).
One reason the proposed downlisting will draw much attention is the implication for oil and gas development. After all, the Independent Petroleum Association of America was one of the petitioners who asked the Service in 2015 to delist the species. Although the proposed 4(d) rule doesn’t actually say that oil and gas development is exempt from section 9 prohibitions, it does just that in the Southern Plains. As explained earlier, section 9 protections will not apply to any of the 19,907,619 acres of suitable habitat in the Southern Plains, except in the 213,000 acres of “conservation lands,” where oil and gas development isn’t possible anyway. Outside of conservation lands, all activities are exempt. As a result, will developers seek a habitat conservation plan in those areas? And what is the incentive for oil and gas companies to continue participating in the Industry Conservation Plan in Oklahoma, if the take prohibition no longer applies there? Maybe the Service sees no reason for developers to continue participating in conservation plans in the Southern Plains, but I saw no mention of this in any of the documents that came out on Wednesday. It’s unclear how much oil and gas activity would still be regulated under section 7, but clearly some projects would no longer be regulated despite the beetle’s presence.
All of these questions and uncertainties are reasons that the Service should develop national policy or guidance on the use of 4(d) rules, so that there is greater consistency and clearer reasons for when and how the agency uses those rules. This need is all the greater now that the Service has proposed to reverse its longstanding position that threatened species, by default, receive the same section 9 protections as endangered species. If the proposal is finalized, the agency will need to decide far more often which threatened species receive section 9 protections and how much of those protections they receive.
Asides from the 4(d) rule, the proposed downlisting raises several other interesting issues. The big one is the prediction that the entire Southern Plains, which makes up 59 percent of the species’ range, will become extirpated because of climate change. As a result, the Service “believes that the risk of extinction will increase significantly between 2040 and 2069, based primarily on the effects of protected temperature increases.” Even if the current downlisting proposal is justified, the Service may end up needing to list the species as endangered again in the future, depending on which global greenhouse concentration scenario materializes. All the data suggest that the beetle will slip farther away from recovery because of a threat that the ESA has no ability to address. Perhaps the most realistic conservation goal for the species is stabilization rather than full recovery, with conservation measures targeting the northern portions of the species’ range. There are likely plenty of other species that fall into this category. I don’t view this outcome as a failure of the ESA or even conservation, but rather the inability of our current tools and framework to deal with problems much larger than what the ESA was designed to tackle.
I hope this blog post has provided you with a balanced and deeper perspective on the issue. If you have comments or questions, feel free to post them below or contact me directly.