Locke Lord QuickStudy: Black-Capped Vireo to be Removed From Endangered List, Un-Capping Development in Texas and Oklahoma

December 19, 2016

On December 15, 2016, the U.S. Fish & Wildlife Service (“USFWS” or “Service”) published a proposed rule (the “Proposed Rule”) to remove the black-capped vireo (“BCV”) from the list of endangered and threatened species under the federal Endangered Species Act (“ESA”), a process called “delisting.” The delisting of BCV would remove the prohibition against take of the species without a permit under the ESA. This would have far-reaching and very favorable consequences for developers of both energy and real estate projects throughout the species’ range, which includes much of Texas west of Austin and San Antonio, and extends north into Oklahoma.

A Bit About BCV
The black-capped vireo is a small, migratory songbird that breeds and nests in central Oklahoma, Texas, and the northern states of Mexico (Coahuila, Nuevo Leon, and Tamaulipas), and winters along Mexico’s western coast. In Texas, BCV have historically been found in central and west Texas, including Austin and San Antonio and surrounding counties. The primary threat to BCV over the years has been the clearing of large patches of habitat as the region has experienced rapid development, although nest parasitism by the brown-headed cowbird has been another significant factor. BCV require at least 3.7 acres of shrublands with 35% – 55% shrub cover, consisting mainly of deciduous shrubs less than 10 feet in height and a low proportion of juniper, in order to support an individual breeding male. Habitat patches large enough to support at least 30 adult males are required to sustain a “manageable” population, while patches large enough to support 100 or more adult males are required for a population to be considered “likely resilient.” As habitat has been cleared to accommodate development and grazing, the number of likely resilient and manageable populations declined significantly. The species was first designated as a candidate for listing under the ESA in 1982, and formally listed as endangered in 1987.

Because the range of the BCV intersects with areas of such active development, its listing spurred a number of significant conservation efforts, including a number of regional habitat conservation plans (“HCPs”) by central Texas counties and municipalities designed to support the issuance of incidental take authorization under section 10 of the ESA. The USFWS completed a 5-year review of the BCV in July 26, 2007, and recommended based on the positive effect these conservation efforts had on BCV populations that the species be downlisted from “endangered” to “threatened.” That downlisting never occurred, however, and on July 11, 2012, a group including several agricultural interests as well as the New Mexico Federal Lands Council and the Texas Farm Bureau filed a petition asking the USFWS to downlist the species. The Service issued a 90-day finding in response to that petition on September 9, 2013 agreeing that the downlisting may be warranted, but again declined to act. The same group of petitioners then filed a complaint in federal court in New Mexico seeking to compel the USFWS to make a 12-month finding on the species. The Proposed Rule represents the Service’s 12-month finding in response to that petition, but rather than downlisting the species to threatened, the Service has concluded that the BCV has recovered to such an extent that it no longer meets the definition of “endangered” or “threatened” under the ESA.

Implications of the Delisting
Should the Proposed Rule be finalized and the BCV delisted, the species will no longer be protected under the ESA. This means that persons seeking to develop real estate or energy projects in areas of BCV habitat will not be under any legal obligation to avoid take of the species, making development significantly easier and less expensive in many respects. The “take” prohibition of the ESA extended not just to the killing of BCV, but also to “harm” and “harassment.” The terms “harm” and “harass” are defined by USFWS regulations to include acts that annoy or injure wildlife, or significantly modify or degrade its habitat, to the extent that it significantly impairs essential behavioral patterns, including breeding, feeding or sheltering activities.

Although courts have interpreted these terms to require actual interference with breeding, feeding or sheltering activities of identifiable members of the species, the USFWS takes a much broader view. The Service has adopted the position that any clearing of occupied BCV habitat constitutes a “take” of the species that requires authorization, even if the clearing occurs outside of the breeding season (March 1 – September 30) when no birds are present. By espousing this informal policy position in both consultations and written correspondence with developers, the Service effectively killed, delayed or forced extensive modifications to countless development projects. The specter of potential enforcement by the USFWS, or ESA citizen suits by local opponents or environmental organizations, represented a significant risk for any project in BCV habitat that did not qualify for authorization under one of the existing regional HCPs. That risk was typically enough to deter commercial financing or the sale or construction of development projects. The USFWS had a big stick and wielded it quite effectively, but that stick may soon be gone.

Not an All-Clear for Habitat Clearing
Although the Service is likely to finalize the Proposed Rule and delist the species, it should not quite signal open season on development in BCV habitat. For one thing, many existing developments have already enrolled in regional HCPs or committed to other conservation efforts in connection with their original authorization. Those parties will need to review the terms of those documents to determine what if any of the obligations therein that have not already been fulfilled may persist even in the case of the species’ delisting.

Further, many projects that include BCV habitat may also contain habitat for other listed species, such as the many listed invertebrates found only in the karst topography of the Edwards Aquifer region, or another endangered songbird, the golden-cheeked warbler. While the effects of development on, and the sensitivities of, those species are in many cases quite different than BCV, they can still present an impediment to development that must be accounted for.

Finally, developers should take careful note of the fact that a delisting is not necessarily the final word. When a species is delisted, the ESA requires the Service to implement a program to monitor the species for at least five years to detect the failure of a delisted species to sustain itself without the protections afforded by the Act. If that monitoring program indicates that the delisting of BCV and the removal of the restrictions on habitat clearing are leading to the loss of manageable or likely resilient populations, the Service may propose to relist the species, or even impose an emergency listing. For that reason, even after the species is delisted, it would still be wise for developers to minimize the impacts of their projects on BCV and undertake voluntary BCV conservation measures as budgets permit, to ensure the continuing health and recovery of the species and avoid a potential relisting.

Delisting Process and Timeline
The USFWS published the Proposed Rule on December 15, 2016 for a 60-day public comment period. After the public comment period closes, the Service must review and prepare responses to all public comments received before deciding whether to finalize the delisting. While the Service based its 12-month finding in the Proposed Rule on the best available science and it is reasonable to expect that it will be finalized as proposed, there is no specific deadline by which the Proposed Rule must be finalized. In the past, we have seen the Service take several months or even years after the close of public comments before issuing a final rule.

The Service has signaled that it likely will not issue a final rule in this case until the second half of 2017, by virtue of the fact that it plans to publish a notice of availability of a draft Post-Delisting Monitoring (“PDM”) plan by June 30, 2017, and include the final PDM plan with the final rule. That would suggest that the delisting likely will not take effect in time to facilitate development during the 2017 breeding season which begins on March 1 and continues until October 1. Accordingly, developers should plan to treat the species as listed for at least that period and perhaps longer.

Locke Lord LLP’s environmental attorneys have substantial experience advising developers of energy and real estate projects on designing and permitting projects to manage the risk presented by BCV and other listed species. We encourage you to contact the author with any questions regarding BCV and the potential effects of the delisting on your project portfolio.