Oversight of the Impact of U.S. Environmental Protection Agency and Fish and Wildlife Service Regulations on Citizens’ Private Property Rights

Statement of Noreen Walsh, Regional Director, Mountain-Prairie Region

U.S. Fish and Wildlife Service, Department of the Interior

Before the Senate Committee on Environment and Public Works, Subcommittee on  Superfund, Waste Management, and Regulatory Oversight

August 30, 2016

Good morning Chairman Rounds, and Members of the Subcommittee. My name is Noreen Walsh.  I am the Regional Director for the U.S. Fish and Wildlife Service’s Mountain-Prairie Region.  Thank you for the opportunity to provide testimony to the Subcommittee today on the U.S. Fish and Wildlife Service’s (Service) work with private landowners and other partners.  

I want to begin by hearkening to the Service’s mission, which is, “working with others to conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people.”  The Service’s origins as a federal agency began in both the Department of Commerce, in response to declines in fish stocks important for human consumption, and in the Department of Agriculture, to better understand the positive effects of birds in controlling agricultural pests.  A little over a century ago, the U.S. signed a treaty with Canada to protect migratory birds as declines in their populations reached unsustainable levels. The responsibility for implementing the treaty for the United States, which was later codified by the Migratory Bird Treaty Act of 1918, fell to the Service and was a turning point in our agency’s long tradition of protecting migratory birds. 

These origins are important in South Dakota, a key component of America’s “duck factory.”  In addition to migratory bird conservation, the Service restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, supports state fish and wildlife agencies, and manages over 150 million acres of National Wildlife Refuge System lands.  However, without the support of our partners and the contributions of private landowners we would not be able to achieve our mission.

Collaboration through Partners for Fish and Wildlife Program

Many fish and wildlife species depend on private lands for their habitat, so collaboration with partners, especially private landowners, is integral to the Service’s mission. The Service has been successful at conservation by engaging with private landowners to collaboratively discern common sense solutions to complex ecological problems. One of the Service’s primary tools for this collaboration with private landowners is through the Partners for Fish and Wildlife (Partners) program.  The Partners program, founded in 1987, offers voluntary habitat restoration and enhancement options which are tailored to mutually benefit both wildlife and landowner needs.  These voluntary efforts have resulted in over 4 million acres of uplands, 1.2 million acres of wetlands, and more than 12,500 miles of stream habitat restored and enhanced across the Nation.

In 2014, Restoration Returns, a report on the economic benefits of the Partners program, found that the program, nationwide, returned more than $15 to the economy for every Federal dollar invested in the program, supporting over 3,500 jobs.  The Partners program makes contributions to the economies of many rural communities and strives to harmoniously balance landowner objectives with wildlife habitat to ensure the needs of people and wildlife are met for future generations of Americans.

To date, the Partners program nationally has worked with over 50,000 landowners and collaborated with over 5,000 agency and non-governmental partners to achieve these shared successes. In spite of these achievements, every year we lose significant amounts of privately-owned farmland, forest and open space due to the pressures of development.  Conservation on private lands complements and leverages the benefits of national wildlife refuges, national parks, national forests and other protected areas by providing important fish and wildlife habitat. Ultimately, successful long-term conservation will depend on habitat restoration efforts on both public and private lands.

The Mountain-Prairie Region of the Service has one of the largest and most successful Partners programs in the Nation.  In fact, the Partners program began in the Prairie Pothole Region (PPR) with wetland and grassland restoration and enhancement projects.  These priority projects increased the populations of a full suite of priority waterfowl species that were important to local communities, hunters, wildlife conservationists, and tourists. These projects also helped ranchers and farmers increase the quality of their water and grass, ensuring viable agricultural operations in local communities. 

The Partners program will be celebrating its 30th anniversary next year.  Over the course of these 30 years, the Mountain-Prairie Region has restored and enhanced 3.2 million upland acres, 257,000 wetland acres, 2,900 miles of stream, and accomplished 250 projects that ensure fish can pass upstream.  These accomplishments involved a wide variety of state, federal, tribal, and non-governmental partnerships.  These projects were made possible because of the 16,400 landowners that voluntarily partnered with the Service through the Partners program.  

South Dakota has one of the largest Partners programs of any state in the Nation.  Since 1987, the South Dakota Partners program has implemented 6,676 voluntary cost-share agreements with landowners throughout the state, representing over 838,000 acres of collaborative conservation on working farms and ranches.  A core value of the South Dakota Partners program is to work closely with landowners to develop common sense conservation solutions that are based on strong communication and trust.  The South Dakota Partners program places a high premium on streamlined project delivery as well as the ability to quickly react to the needs of landowners.  For example, during the drought conditions of 2012-2013, the South Dakota Partners program quickly adapted and expedited funding for over 200 new livestock water developments to help landowners manage grasslands and maintain their cows during that difficult time. 

Likewise, in recent years the South Dakota Partners program has responded to landowners’ accelerated interest in grazing management and grassland restoration.  Between 2014 and 2016, the program worked with 264 landowners to implement grazing management systems on over 90,000 acres to simultaneously benefit rangeland health, wildlife conservation, livestock performance, and water quality.  

As one landowner with a grazing management project noted, “the Partners program partnered with me to improve our pasture management options.  It was a real win-win project for us by improving our sustainability, profitability, lifestyle and natural resources for the future.”  As the South Dakota Partners program moves forward it will continue to focus on the program’s core values of open communication, trust, and flexibility that garnered these 2003 remarks from the Sioux Falls Argus Leader Editorial Board, “a federal program that brings different interests together and works without a lot of red tape? Wonderful.”  Because the Partners program is based on finding mutual goals and interests, and building trust between individuals, it often results in parties exploring additional conservation opportunities, including conservation easements.

Conservation Easements

South Dakota is a key state in the PPR, or “duck factory” as it is often called.  The PPR stretches from Iowa to Alberta, Canada and the Dakotas are in the heart of the most productive habitat for waterfowl in the U.S.  The Service recognizes the importance of this part of the country and has been working with local partners to protect this key habitat since the early 1960s.  

Our strongest partners in protecting this unique American landscape are private landowners.  Since the early 60s, the Service has protected over 500,000 acres of wetlands and 900,000 acres of grasslands in South Dakota alone through voluntary conservation easements with private landowners.  Under the terms of these voluntary easements, farmers and ranchers are paid to keep wetlands and grasslands on their property but are able to farm the wetlands when they are dry, graze grasslands without restriction, and hay grasslands after nesting season (July 15).  Without the participation and help of these landowners, we would never achieve our conservation goals and in some instances, without our easements, some ranchers would be unable to continue this great American tradition. We believe wholeheartedly in the motto, “Love the prairies? Thank a rancher.”

Each of these over 13,000 voluntary easements represents a unique relationship with a farmer or rancher in South Dakota.  We value each and every one of these relationships and work hard to maintain them.  One measure of that success is the exceedingly low rate of non-compliance we see each year with easement terms, typically only around 1 percent of all of our easements.  When we encounter activities that are restricted under the terms of an easement, we work hard to resolve them directly with the landowner; and in the last five years, we have only issued two violation notices.  We measure the success of our easement efforts not in terms of tickets written, but by the number of restorations we achieve and problems we solve with landowners. 

Another reason we feel confident that this program works for both landowners and the Service is landowner interest.  We have a backlog of over 1,400 landowners (about 720 in South Dakota) who are interested in participating in voluntary conservation easements when funding becomes available. 

I have had the pleasure to travel to the PPR and South Dakota on many occasions.  On each trip, I make a point to visit with some of our private landowner partners.  With each conversation, I walk away with a deep and profound respect for their connection with and their stewardship of this wonderful landscape.  I have made several friends and many more acquaintances in the Dakotas, and our work in the prairies is one of the things I am most proud of as the Regional Director.  I am also proud that I recently hosted the Service Directorate, which includes all the senior executives in the Service from around the country, in South Dakota so they could personally experience the landscape.  This area is a high priority for the Service.  As part of that visit, we spent several hours visiting with a group of our private landowner partners.  The Service Directorate was deeply motivated by the passion of these landowners for the prairie they call home.

Endangered Species Act

The Service is also charged with administering the Endangered Species Act (ESA) to ensure America’s fish and wildlife heritage remains for future generations.  Fortunately, in South Dakota, the number of species requiring the protection of the ESA remains relatively low. Across the nation, private landowners play a vital role conserving habitat for fish, wildlife, and plants. In fact, more than two-thirds of the nation’s threatened and endangered species use habitat found on private land. If not for the efforts of private landowners, we stand to lose the rich diversity of our nation’s natural heritage.

Across the country, many of our activities involve working cooperatively with landowners on voluntary actions that help ensure that species do not need the protection of the ESA.  For example, in Harney County, a large, rural county in eastern Oregon, ranchers, the County Soil and Water Conservation District, and other partners developed a Candidate Conservation Agreement with Assurances (CCAA) to conserve greater sage-grouse while ensuring viable ranching operations, even in the event of a potential regulatory status change for the sage-grouse. Through communication and collaboration, the Service enrolled nearly 300,000 acres of private lands in the CCAA, through which participating landowners will reduce threats to the sage-grouse by removing invasive cheatgrass and encroaching juniper trees, protecting sage-grouse nesting grounds, placing tags on fences as alerts to prevent in-flight collisions, and installing escape ramps for the birds in stock tanks.

The Service strongly believes that the Harney County CCAA is a model for voluntary conservation efforts on large, complex landscapes, especially on working landscapes where we are pursuing the twin goals of sustainable wildlife populations and vibrant rural communities. Similar efforts are underway in Wyoming and Montana.  Mr. Tom Sharp, a Harney County rancher participating in this CCAA said, "what's good for the bird is good for the herd,” pointing to the mutually beneficial relationship between well-managed grazing operations, a healthy sagebrush landscape, and his bottom line.

In September 2015, Interior Secretary Jewell, joined by a bipartisan delegation of Governors from sagebrush country, announced that the Service had determined the greater sage-grouse did not require the protections of the ESA.  This determination was the result of an unprecedented effort by a constellation of public and private partners, all working to deliver effective conservation measures across an 11-state landscape spanning the Great Basin to the western Dakotas. Ultimately, this effort helped to significantly reduce threats to sage-grouse across the species’ range and highlighted the value of the ESA in bringing together stakeholders to build solutions to today’s most pressing wildlife conservation challenges. In the Dakotas, the states were active participants in this effort and thanks to their work, their respective fish and game agencies will continue to manage greater sage-grouse.

While a large part of the Service’s decision not to list the greater sage grouse under the ESA rested on the comprehensive revisions to Bureau of Land Management and U.S. Forest Service’s land management plans affecting more than half of the species’ 173 million acre range, the Service also actively pursued a diverse suite of voluntary conservation efforts, including restoration of important habitat through our Partners program; development of CCAAs across the range; and, active fiscal and material support for our partners’ private lands conservation programs, including the Natural Resources Conservation Service’s Sage-Grouse Initiative.

Yet, despite the success of this effort in conserving greater sage-grouse, our collective work in the sagebrush must continue.  Close collaboration with diverse stakeholders, including states, Tribes, sportsmen and women, and private landowners is required.  To actively support this diverse and growing coalition of stakeholders in the sagebrush, the Service is investing heavily in voluntary, collaborative conservation efforts, including increasing our conservation delivery capacity on private lands in key sagebrush habitats; promoting communications among sagebrush stakeholders; supporting state-led initiatives to develop a science framework and a range-wide conservation plan; and, funding partnerships aimed at controlling invasive weeds, which fuel too frequent rangeland fire that threatens people and wildlife in the sagebrush ecosystem.

Within recent years, the Service listed under the ESA two butterflies historically found in the Dakotas, the Dakota Skipper (as threatened) and the Poweshiek Skipperling (as endangered).  The potential for these listings and the designation of critical habitat was of concern to private landowners in the Dakotas.  The Service worked closely with the states and with individual private landowners to lessen that concern.  Both species are only found in native grasslands, not cropland, thus flexibility for farming activities was not needed. We proposed and finalized the listing of Dakota skippers as threatened, a less protective designation than endangered, and we developed a special regulation under Section 4(d) of the ESA that allows us to lessen any prohibitions against “take” to only those necessary.  Through this regulation we were able to exempt routine operations such as livestock grazing, fence and corral construction, development of watering facilities, noxious weed control, and haying after July 15.  Poweshiek skipperlings were also listed as endangered at the same time, however, there are no known populations remaining in the Dakotas and thus the listing has had no impacts to private landowners in the two states.  

We recognized that those landowners and Tribes who have kept intact rangelands have already done the most important thing for both of these butterflies: they have maintained grassland.  As we evaluated areas for critical habitat designation, as required under the ESA, we took several steps to increase communication, lessen any unnecessary regulation, and find common ground.  First, the Service held both public and individual meetings with interested landowners.  We listened carefully to understand concerns and shared information about the potential listing and critical habitat designation process.  In the end, in accordance with our policy, private lands that already had a voluntary conservation easement conservation easement
A conservation easement is a voluntary legal agreement between a landowner and a government agency or qualified conservation organization that restricts the type and amount of development that may take place on a property in the future. Conservation easements aim to protect habitat for birds, fish…

Learn more about conservation easement
or other ongoing conservation effort, the owners of which did not want their land designated as critical habitat, were excluded from the final designation.  These landowners are important partners in the maintenance of intact grasslands that support many native species.  Through collaboration, it is our hope that they will remain on the land and will once again host populations of these native butterflies. 

Northern Long-eared Bats (NLEB), a forest-dwelling species, were listed as threatened in 2015 due to devastating population losses from a disease called White-nose syndrome (WNS). Again, after carefully listening to all interested parties, a special rule under section 4(d) of the ESA was prepared.  It confined incidental take prohibitions to only those areas inside the WNS zone where bats are impacted by disease. That is, in other areas where the disease is not present, the Service seeks to minimize regulations.  Data suggests that WNS will spread throughout the range of this bat species, and regulations were promulgated to anticipate the WNS zone moving westward.  Currently, a few southeastern South Dakota counties are within this zone. Even within the WNS zone, only activities that may cause take and are within a quarter mile of known hibernacula or within 150 feet of a known maternity roost tree are prohibited.  Further, the 4(d) rule also exempts from any prohibition the act of removing bats from a house to be released outside and bats that need to be euthanized for rabies testing.  No critical habitat was proposed or designated for this species, because the major and overwhelming threat to it is disease.  In these ways, the Service sought to use the provisions of the ESA in the most common sense way that would protect the species from the major factor causing the decline and lessen any unnecessary regulations to landowners or industry. 

The gray wolf is an iconic yet controversial example of the ESA’s success in preventing extinction and promoting recovery. Wolves were extirpated from most of the lower 48 states early in the 20th century, with the exception of northern Minnesota and Isle Royale in Michigan. The gray wolf was added to the list of endangered species in 1974, with the listing of both the Northern Rocky Mountain gray wolf and the eastern timber wolf. By 1978, wolves were listed as an endangered species throughout the contiguous United States and Mexico, except for those wolves in Minnesota classified as threatened. With the protections afforded by the ESA, wolves were able to repopulate the Western Great Lakes (WGL) and Northern Rocky Mountain (NRM) regions, both through natural dispersal and the reintroduction of wolves into Yellowstone National Park and central Idaho in 1995 and 1996.

Since the species was first listed, the gray wolf has rebounded from the brink of extinction to exceed population targets set for the WGL and NRM and continuing to expand their range into Washington and Oregon. We have undertaken multiple delisting rulemakings in recent years, acknowledging the fact that these populations are biologically recovered.  In 2011, the Service determined that gray wolves were successfully recovered in the WGL and NRM states of Montana, Idaho, eastern Washington, eastern Oregon, and north central Utah and delisted those distinct population segments.  In 2012, the Service delisted gray wolves in the state of Wyoming. In 2014, the final rules delisting gray wolves in Wyoming and in the WGL were vacated by district courts, and ESA protections were reinstated for these populations. The wolves maintain federal protections while those decisions are on appeal.

While wolves in Idaho, Montana, eastern Oregon, eastern Washington, and north-central Utah remain de-listed, the Service continues to manage gray wolves elsewhere under the ESA. The Service works in close partnership with state agencies, Tribes, private landowners, and others throughout the wolf’s range, and this cooperative effort is largely to thank for the rebound in wolf populations since the species was first listed. Wolf restoration has been an amazing success due to both the resiliency of wolves and the cooperative efforts of Federal, State, and Tribal agencies, conservation groups, and private citizens, including ranchers, sportsmen, and outfitters.

Conclusion

In South Dakota and across the nation, the Service is working diligently to build and maintain open channels of communication, to develop trust, and to forge durable, collaborative partnerships.  Indeed, we are working hard with people to accomplish our conservation mission, because our mission is for people, including the next generations of farmers, ranchers, and landowners.  

I was fortunate to participate in a May 2015 tour sponsored by the South Dakota Grassland Coalition, where I met with many ranchers.  I found we had much in common:  deeply held values for family, as well as a desire to pass on healthy rangeland habitats for future generations.  I listened with interest to one rancher in particular who spoke with deep passion about his sons’ desire to break into the ranching profession, but for whom high commodity prices had driven land values to the point that land was out of their reach.  Then, parcels that had a Service conservation easement on them came up for sale – and because of the easement, the lower per-acre value put them in reach for his sons.  His sons are now in the business – continuing the next generation of ranchers and prairie stewards.

As I mentioned earlier, three weeks ago, I hosted a meeting in Aberdeen, South Dakota, for all Service leadership from across the nation.  Again, we were fortunate to visit with and hear the perspectives of several South Dakota ranchers.  We heard genuine appreciation for both our Partners for Fish and Wildlife program and our voluntary easement program.  We heard a landowner express excitement that the Dakota skipper butterfly was found on her property, because that meant she had healthy grasslands.  We heard some very good advice, including that any conservation partnership must start with building relationships between the Service and individual people.  And lastly, we heard an urging for the Service to continue to help them ensure that prairie grasslands remain on the landscape, supporting future generations of people and wildlife. We listened, and will continue to build on and create new relationships with partners to further the Service’s mission, to “work with others to conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people.”

Thank you for the opportunity to provide these comments today.

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