State Roles in Protecting Wildlife: Implication of Greater Sage-Grouse and the Endangered Species Act in Colorado

The greater sage-grouse may be listed as a threatened or endangered species by February 26, 2010. Traditional and renewable energy developers are not thrilled at the prospect of an endangerment listing because it will limit their ability to develop large areas of greater sage-grouse habitat. At the same time, the controversy raises concerns about Colorado’s ability to protect wildlife. Some counties in Colorado do not protect un-endangered wildlife because the state lacks mechanisms for ensuring wildlife regulation. Inconsistent and insufficient wildlife protection can result in endangered species listings, which can be detrimental to industries and local economies.

When deciding whether or not to list or delist species, the U.S. Fish and Wildlife Service considers efforts made by states “to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices.” Endangered Species Act § 4 (b). Thus, states’ actions to protect wildlife can stave off an endangered species listing and the accompanying strict federal regulation. In the case of the greater sage-grouse, Wyoming has taken steps to protect the species to avoid listing. Governor Freudenthal issued an executive order directing state agencies to prioritize greater sage-grouse protection in core population areas. Wyoming’s Industrial Siting Council, a fairly comprehensive authority over permitting on state and private lands, administers the strategy.

The greater sage-grouse issue is more pertinent in Wyoming than Colorado because 50% of the remaining population lives in Wyoming. However, the issue raises questions as to Colorado’s ability to protect wildlife in general (including the newly returned wolves). Colorado’s Land Use Act of 1970 and Land Use Enabling Act of 1974 delegated broad discretion to counties, resulting in varying permitting processes and wildlife standards for each county. While some counties self-impose wildlife regulations, others do not require significant wildlife consideration. Even though the Colorado Division of Wildlife prepared some excellent reports on greater sage-grouse conservation strategies, the counties are not obligated to comply with Division of Wildlife recommendations.

Varying approaches by counties (including a total lack of wildlife consideration in some areas) leave gaps in wildlife protection. Because of these gaps in local protection, the federal government is more likely to step in and list species as endangered or threatened. A listing could constrain development in the areas where the species is found thus affecting industry, local economies, and tax revenue. At the same time, revisiting the state’s land use laws could benefit numerous species beyond the greater sage-grouse. Colorado could look at Wyoming’s Development, Information, and Siting Act of 1975, as an example of a program with state level comprehensive authority. Although criticized by some environmentalists, Wyoming’s more comprehensive approach provides a clearer permitting scheme for industrial development, allows interest groups to congregate and engage at the state level, and ensures consideration of wildlife matters. Alternatively, the state could mandate county consideration of sensitive wildlife or maintain backstop authority when counties fail to regulate.

While the state is understandably concerned that the greater sage-grouse will be listed under the ESA, the decision could give Colorado occasion to reconsider its approach to protecting wildlife.
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Cabell Hodge and Christian Alexander