Gov. Matt Mead has asked federal officials to honor Wyoming’s greater sage grouse management plan by allowing the state to require oil and gas companies to make up for destroyed habitat.
Mead made his comments Aug. 2 in a 26-page letter addressing changes that the Trump administration has proposed to federal sage grouse conservation plans. The Department of the Interior is altering plans that were forged in 2015 to keep the bird off the list of threatened or endangered species. In making revisions, the Interior Department asked for comments on whether “compensatory mitigation” — trading habitat protections or enhancements in one place for destruction or degradation somewhere else — should still be required.
The question gained urgency when, nine days before the comment deadline, Brian Steed, a deputy director of the federal Bureau of Land Management, issued an instructional memorandum to immediately abolish compensatory mitigation. A caveat gives state governments the authority to require habitat replacement or enhancements. Mead said in his letter that the exception was made with Wyoming in mind.
Steed’s instructions and the state exception “was written to accommodate Wyoming’s [Greater Sage Grouse Compensatory Mitigation] Framework and review process,” the governor’s comment letter states.
When revising federal conservation plans in Wyoming for sage grouse, the BLM should “defer to the state’s assessment of how to apply avoidance, minimization and, if necessary, compensatory mitigation to address impacts to this State-managed species,” the governor’s letter states (see below).
The chairman of Mead’s Sage Grouse Implementation Team, Bob Budd, clarified Mead’s position in an interview. Wyoming’s conservation strategy is to first avoid disturbance to, and destruction of, grouse habitat. Then the state would try to minimize impacts if they can’t be avoided. Finally, Wyoming makes developers compensate if avoidance and minimization are not possible, he said.
“There are prior-existing-rights situations where you can’t completely avoid impacts,” Budd said. Such would be the case, for example, where an energy company held a lease to drill on land subsequently deemed core sage grouse habitat. “That’s where compensatory mitigation comes in,” Budd said.
Mead’s letter is the latest step in a years-long dance between the state and federal governments — one that has required strong leadership and at times forceful advocacy on the part of Wyoming’s chief executives to protect the state’s interests. Next year, it will be time for a new governor to cut in.
Grouse fate lies with Wyoming’s future governor
An Endangered Species Act listing of the greater sage grouse could restrict everything from drilling to grazing, across the bird’s range. With 38 percent of the bird’s remaining habitat, Wyoming stands to be the most deeply affected by potential restrictions. The 2015 federal sage grouse conservation plans that the Trump administration is changing were modeled largely after Wyoming’s core area strategy and created the “regulatory certainty” required to keep the imperiled bird off the federal threatened or endangered species list. Removing safeguards from the federal plans wouldn’t necessarily soften Wyoming’s management strategy. But if populations fall elsewhere as other states opt out of protections, Wyoming could be left holding the proverbial bag.
“We’ve always had a greater burden,” compared to other states, Budd said, “That’s just the reality. That’s why we’ve been so aggressive with our conservation strategy.”
That aggressive conservation strategy hinges on an executive order penned in 2008 by then-governor Dave Freudenthal, a Democrat. How Wyoming’s next governor interprets and enforces that order, and how he or she is able to work with federal authorities regarding sage grouse is likely to have enormous impact on the imperiled bird and the state’s future.
The Freudenthal order identified and mapped “core” sage grouse habitat areas and limited the amount of disturbance that would be permitted in those areas. Gov. Mead modified and continued the order — again with the stroke of a pen as allowed. Wyoming is a dual permitting state in which oil and gas operators must secure state, as well as federal, permission to drill on federal land. As such, Wyoming’s backstop executive order has the regulatory heft necessary to ensure protections.
But any new governor could rescind or modify the order with his or her signature. Republicans Bill Dahlin, Sam Galeotos, Mark Gordon and Harriet Hageman said they would continue the executive order, as did Democrats Mary Throne, Ken Casner and Michael Allen Green. Foster Friess, Rex Rammell, Taylor Haynes, and Rex Wilde have said they support grouse preservation without explicitly backing the executive order. Friess and Taylor are Republicans, Rammell is running as an independent and Wilde is a Democrat.
Dahlin, Casner, Green, Galeotos and Hageman backed the order in interviews or correspondence with WyoFile while Throne did so at a forum hosted by the Wyoming Wildlife Federation in Casper on Thursday. Friess, Rammell and Haynes supported greater sage grouse in their remarks at the wildlife federation gathering.
“I stand the way we stand today,” Casner said in an email. “I’m not going to change anything.”
“I’d try to keep it in place,” Green wrote. “I’d do my best.”
“Sam [Galeotos] would not just keep it but he would want to work with the Governor’s office during the transition to ensure he has established long-term goals for state focused recovery efforts and that he continues those recovery effort[s],” spokeswoman Amy Edmonds wrote to WyoFile.
Hageman said adaptive management is an important element of the order. “I absolutely am committed to making sure we’re able to preserve our sage grouse so that they are not listed,” she said in a telephone interview. Her oversight would ensure Wyoming “can continue with oil and gas development as well as our ag industry while also preserving that species,” she said.
Dahlin said he, too, would continue the order unless “better science indicates a better strategy.” In that instance he would modify the order to improve it, he said in an email.
Throne, at the Wyoming Wildlife Federation forum, called the core area strategy and Sage Grouse Implementation Team “a good model,” that should be continued and enhanced. “The next governor is going to have to stand up for the plans that work for Wyoming,” she said. “I applaud Gov. Mead for saying ‘Hey, wait a minute. We’ve got this under control.’”
Gordon, also at the wildlife forum, said too many in the state have misimpressions about the order. The new governor “probably” needs to examine it for clarifications and modifications and needs to have an open mind, he said.
He said his ranch operates under a conservation agreement with assurances — an agreement that typically ensures ranchers follow best practices for grouse. In exchange, ranchers are promised they won’t be penalized by regulations in the future. Gordon wants the state to be similarly insulated so if somebody in Nevada doesn’t do the right thing, “we are not sunk,” he said.
Friess touted connections, including a text exchange he said he had with Secretary of the Interior Ryan Zinke. “He affirmed he likes very much the plan we have in place,” Friess said at the wildlife forum. Wyoming must fight for control over land and wildlife, he wrote in an email. “The best way to do this, to Mead’s credit, is to create a bipartisan stakeholder group and work as a team to find the middle ground.”
Without addressing the executive order, Haynes said the bird “would be very safe under my administration.” Rammell would protect the sage grouse “under our terms, not theirs.” Wilde said he is an environmentalist and would study the order to see if it needed changing.
Will compensatory mitigation in Wyoming make a difference?
Compensatory mitigation has played a small role in Wyoming’s conservation strategy, SGIT director Budd said. While he couldn’t immediately provide numbers, he estimated several hundred acres, mostly oil and gas well pads, may have required conservation offsets.
In contrast, “the acres we’ve restored or put into conservation easements, it’s in the millions of acres,” he said. “Remember,” he said in a telephone interview, “compensatory mitigation is the third choice. The amount of compensatory mitigation required in Wyoming is a drop in the bucket compared to the amount of acres we’re conserving.”
Budd outlined Steed’s new instructions this way. Drillers may say, for example “I’m going to have an impact — I’ll pay cash.” But “that doesn’t have any direct benefit to the species,” he said.
“The instructional memorandum says you can’t do that,” Budd said. “It says you’re not going pay cash gladly tomorrow for a hamburger today. I think the federal government [says] you aren’t just going to go out and do these as a one-off.”
SGIT member Brian Rutledge, Central Flyway conservation strategy and policy advisor for Audubon Rockies, sees a looming threat from Washington. “It will definitely help that Wyoming’s executive order stay in place,” he said in a telephone interview. The BLM has rules to protect greater sage grouse, but “now we are folding that tent up and storing it in the tent of the executive order,” he said. “Without the executive order, we have very little left for grouse in Wyoming.”
While sage grouse in Wyoming might be protected by the governor and the state’s aggressive management compromise, birds in many other western states “are largely dependent on mitigation,” Rutledge said. In prioritizing oil and gas the Trump administration has said it’s not their responsibility to make the corporations using public land responsible for using that landscape, Rutledge said.
In Steed’s new orders, the deputy director wrote that multiple use allows the landscape to be degraded. Rules only prohibit “unnecessary and undue” degradation.
“Preventing unnecessary or undue degradation does not mean preventing all adverse impacts upon the land,” Steed’s instructional memo reads. “[A] certain level of impairment may be necessary and due under a multiple use mandate.”
For Rutledge, “they have said they are not in the business of maintaining the integrity of that landscape,” he said in an interview. “That’s what compensatory mitigation does — maintains that integrity.”
Trump’s moves are calculated and organized, Rutledge said. “In issuing that instructional memorandum in the middle of a process of comment on changes to the plans … they have quite intentionally done, I think, a terrific job of muddying the water.
“This is not an accident,” he said. Trump administration officials “worked as hard as they [could] to shut out public comment,” on environmental issues, he said. “You have seen their intent to undercut the Endangered Species Act with administrative rulings.
“This is not a series of silos, this is a distinct effort across those multiple fronts,” Rutledge said. “They have thrown everything at us but the kitchen sink and I think I see it coming.
“If we have six more years of this administration and the bird is allowed to become totally endangered,” he said, “All the restrictions won’t be placed on where they are extirpated. Wyoming will bear the brunt of the listing because it holds a majority of the birds.”