The Endangered Species Act and Its Impact on Forestry in South Carolina

Jimmy Bullock South Carolina SAF Meeting June 23, 2016 ESA History

• Endangered Species Act of 1973 • Protection for endangered and threatened plants and animals • Requires all Federal agencies to conserve listed species • Taking prohibitions • Amended 1978, 1982, 1988 ESA - Purpose

“…provide a means whereby the ecosystem upon which endangered species and threatened species may be conserved, to provide a program for the conservation of such endangered species and threatened species…” ESA - Definitions

• Conservation - methods for improving the status of listed species to the point they can be delisted

• Endangered Species - in danger of extinction throughout all or a significant portion of its range

• Threatened Species - likely to become an endangered species within the foreseeable future ESA - Critical Habitat

• The specific areas within the geographical area occupied by the species on which are found those physical or biological features: • Essential to the conservation of the species • May require special management considerations or protection and specific areas outside their geographical area occupied by the species at the time it is listed if such areas are determined to be essential to the conservation of the species ESA - Critical Habitat

• Can be designated at time of listing or within one year of the date of listing

• USFWS has no enforcement power to prevent modification of privately owned critical habitat (except where a prohibited taking also occurs)

• Federal agencies can not adversely modify designated critical habitat

• Critical habitat designation may take economic impacts into account, but not to point of causing extinction ESA - Key Elements

• Sections Seven and Nine - “Take” • Prohibits “taking” of a listed species • Requires consultation if federal nexxus • Take prohibitions apply to private and federal lands • On non-federal lands, Section 9 applies to animals only - not to plants - unless take would violate CITES or state law • USFWS under ESA Section 4(d) has some latitude to apply different management standards to threatened species ESA – 4(d) Rule

• Section Four - directs the Service to issue regulations deemed “necessary and advisable to provide for the conservation of threatened species”

• For threatened species only, can relax the normal ESA restrictions to reduce conflicts between people and the protections provided to the threatened species by the ESA

• Can provide protection from “take” associated with lawful activities that can contribute to conservation of a species ESA – Key Elements

• Section Eleven - Enforcement • Civil Penalties • USFWS enforces • $500 - $25,000 per violation • Criminal Penalties • Department of Justice enforces • $50,000 / 1 year in jail for endangered species violations • $25,000 / 6 months in jail for threatened species violations ESA – State of Play

• Over 1400 species listed nationwide

• ESA has broad ability for citizen petitions to list

• ENGO strategy of “propose, sue and settle” • ~20 petitions/year from 1994 to 2006 • Over 1250 petitions to list since 2007

• Legal settlement set timeframes for action • 250+ petitions addressed by 2017 • Additional 450+ petitions to be decided by 2023 ESA – State of Play Region 4

“In the next 10 years, the Southeast Region will have to evaluate a record number of fish, wildlife and plant species for possible listing as threatened or endangered under the Endangered Species Act. Our goal is to conserve them in voluntary and innovative ways for future generations of Americans.”

Cindy Dohner, USFWS SE Regional Director ESA – State of Play Region SC

• 1 candidate # of Species species • 60 petitioned species • 1 species proposed for listing

amphibians birds crayfish insects mammals mussels plants reptiles At-Risk Species with Forestry Impact

Gopher Tortoise • Candidate species for listing in eastern part of range • Species need open canopy, herbaceous vegetation conditions • Forest management and harvesting considered threats by some • States, notably GA and FL, taking lead role to preclude need to list • Private forest landowners have engaged in proactive management • Decision may come as early as 2017 At-Risk Species with Forestry Impact

Gopher Frog • Associated with gopher tortoise burrows, upland habitats • Needs seasonal wetlands to breed • Proposal includes most southern states • Threats include harvesting and silviculture activity, intensive pine management, pine straw removals, ORV traffic in breeding season At-Risk Species with Forestry Impact

Eastern Diamondback Rattlesnake • USFWS petitioned to list in 2011 • EDR needs open canopy, herbaceous understory habitat favorable to small mammal prey species • Stated threats include loss of longleaf pine habitat, intensive “closed canopy” forestry • Primary threat may be direct capture or killing of snakes • NCASI, private forest owners collecting data on sightings/habitat associations Recent Listings - Black Pine Snake

• Localized in SE MS and west central Alabama • Secretive nature; few individuals known • Threats include destruction of root wads where snake lives • Needs open canopy, herbaceous understory conditions Black Pine Snake Proposed Listing

• Initial proposal focused on 4(d) rule that promoted longleaf restoration, low basal area conditions • Clearcutting was not given 4(d) protection • Critical habitat designation included significant private land, some in state WMAs

• Forestry stakeholders were aligned and vocal in comments due to precedents being set in listing and 4(d) rule proposal Black Pine Snake Final Rule

• The USFWS engaged and listened • Final 4(d) rule encouraged active forest management to provide habitat conditions needed by BPS • Heavy mechanical disturbance (site prep that disturbed stump root wads) was prohibited • 4(d) coverage not given if longleaf converted to another species • USFWS still working on critical habitat implications Northern Long Eared Bat Proposed Listing • Wide ranging species, covers 37 states • Threat to species is white nose syndrome • Any activity that could “take” bat included in listing proposal • Proposed 4(d) rule covered some forestry activities, with notable exceptions: • Conversion to any pine species • Wide buffers around known hibernacula and occupied roost or maternity trees • Strong and concerted forest stakeholder comments voiced throughout comment process Northern Long Eared Bat Final Rule

• The USFWS engaged and listened • Final 4(d) rule clearly stated threat to NLEB was white nose syndrome, not forestry • All conversion language dropped • Realistic buffer widths around occupied hibernacula • Protect occupied maternity trees • No unreasonable survey requirements Louisiana Black Bear Proposed Listing “Spotted Owl of the South” A Successful Partnership Model

Best example of 4(d) rule from forest landowner perspective

“Normal forest management activities within the historic range of the Louisiana black bear are not prohibited, except for activities causing damage to or loss of den trees. den tree sites or candidate den trees. For purposes of this exemption, normal forest management activities are defined as those activities that support a sustained yield of timber products and wildlife habitats…” Summary of Final Rule Federal Register 1/7/92

“Maintaining occupied bear habitat in some form of timberland may be the single most important factor in conserving the species …. The principal threat to the bear is not normal forest management, but conversion of forested habitat to other uses.” USFWS Delists Louisiana Black Bear March 10, 2016

The Teddy Bear is Back: U.S. Fish and Wildlife Service Delists Louisiana Black Bear Due To Recovery

Milestone highlights successful partnerships between states, private landowners, conservation groups, universities and federal agencies in saving the animal that inspired creation of the “teddy bear”

TALLULAH, La. – U.S. Secretary of the Interior Sally Jewell today announced that due to 24 years of dedicated recovery efforts by a broad array of partners, the Louisiana black bear—the inspiration for the teddy bear—will be removed from the Federal Lists of Endangered and Threatened Wildlife. The species restoration is a significant conservation success….. Forest Landowners and USFWS: Partners in Species Conservation NAFO Leading A New Paradigm

Working forests help conserve at risk and listed species, particularly those species found in early succession, open canopy or riparian and aquatic habitats

This proactive initiative will minimize risk to forest landowners through USFWS policy and actions that recognize active forest management as a conservation tool rather than species threat

NAFO members will work proactively to conserve at risk and listed species found in working forest landscapes

This initiative becomes a collaborative model for forest landowners and the USFWS to build trust and be true partners NAFO Brings To the Table…..

• ~50 million acres of land and management expertise

• NCASI • Strong forest research credentials and expertise • Ability to aggregate landowner specific data

• Forest Industry • Fiber sourcing standard extends BMP and at-risk species requirements to tens of thousands of family forest landowners

• Strong linkages to FLA, AFF and state forestry associations

• Ability to advocate for collaborative approach with private sector and policy makers Initiative Has Roots in Region 4

• Five large landowners approached SFWS with concept that managed forests benefit species which need early succession, open canopy or riparian habitats

• Early successional habitat from reforestation ~25% planted pine acres in regenerating open canopy condition

• Thinning and mid-rotation management - open canopy with herbaceous understory habitat ~ 41% of planted pine acres in thinned condition ~ 28% thinned acres treated to remove mid story competition

• BMPs applied to 1.4 MM acres and 30,000 linear miles in Streamside Management Zones that protect water quality and provide habitat Initiative Pilot Project Focal Area Aquatics Pilot Project

• Field trip focused on effectiveness of Best Management practices to protect water quality and provide riparian habitats • General agreement forest certification can provide certainty BMPs are properly implemented • Not enough information on species presence and reach of certified land for USFWS to be comfortable • Agreement to continue working together Gopher Tortoise Pilot Project

• Field trip to sites with surveyed gopher tortoise populations – locations covered the breadth of forest management intensities applied across the landscape

• Key research on relationship between forestry practices and GT habitat is underway

• Gopher tortoise surveys on working forests are being completed on participating landowners

• Landowner participants developing a draft set of forest management adaptations to increase the contributions of working forest lands as gopher tortoise habitat Barriers to Success

• Consistent communication through all levels of USFWS

• Risk aversion / insufficient knowledge

• Take potential associated with active management to achieve desired habitat conditions and landowner objectives

• Lack of early communication and engagement with landowners

• Trust must be earned We Believe We Can Work Together

• Building trust and establishing lines of communication remain central to success

• Recent USFWS decisions support private forest landowner engagement • Black pine snake • Northern long eared bat • Louisiana black bear • Pacific fisher

• Open dialogue before listing decisions are written is very constructive

• Both parties must commit to investment in this partnership Defining Success

• USFWS policy and action recognizes active forest management benefits for at risk and listed species

• Forest sector and USFWS become mutual advocates

• Listing decisions recognize forest management benefits • USFWS decides not to list species • Forestry not considered a threat if species listed • USFWS adopts special rules promoting forest management

• Initiative gains momentum across other USFWS Regions

• A new path forward of trust and engagement Other Issues Loom Large

• Effect of herbicides on listed species • EPA sued by CBD/others • EPA agreed to national assessment of impacts of atrazine, simazine, propazine and glyphosate on listed species by 2020

• Migratory Bird Treaty Act • Enacted in 1918 largely to protect migratory birds from commercial exploitation or overharvest • Act makes it “unlawful without a waiver to pursue, hunt, take, capture, kill or sell birds covered herein” • USFWS anticipates litigation on MBTA at some point in the future; starting internal discussions on “General Permit” to allow lawful activities including forest management Collaborative Approach: Conservation Benefits

“I am satisfied that thousands of enthusiastic conservationists would be proud of such a public trust, and many would execute it with fidelity and intelligence. I can see in this set-up more conservation than could be bought with millions of new dollars, more coordination of bureaus than Congress can get by new organization charts, more genuine contacts between factions than will ever occur in the war of the inkpots, more research than would accrue from many gifts, and more public education than would accrue from an army of orators and organizers.”

- Aldo Leopold “Threatened Species” 1936