What Would an Endangered Species Act Listing Mean for the Hellbender Working Lands for Wildlife Program?
An Eastern hellbender
On September 6, in response to a lawsuit filed by several conservation organizations, New York U.S. District Judge Lewis J. Liman found that the US Fish and Wildlife Service’s (FWS) 2019 decision not to extend Endangered Species Act (ESA) protections to the Eastern hellbender was “arbitrary and unlawful,” and directed the Service to reconsider whether or not the species should be listed.
In April 2019, FWS had determined that the hellbender did not warrant Endangered Species Act protection, despite a finding that approximately 80% of hellbender populations are declining or already locally extirpated. In its finding, the Service acknowledged that the myriad threats to the species would intensify in the future, but determined that ongoing voluntary population augmentation measures would be sufficient to ensure its long term survival. The judge’s ruling found that FWS relied on methods that were unproven and made presumptions about the success of efforts that had not yet been implemented, and failed to adequately address the impacts of sedimentation and other growing threats to the species.
The court’s decision does not necessarily guarantee that hellbenders are headed for ESA listing in the future. It is possible that after revisiting their analysis, the Service may still conclude that listing is not warranted. However, if FWS does decide to list the hellbender, producers considering whether to participate in Hellbender Working Lands for Wildlife (WLFW) might wonder what the implications are for their operations. Because it is illegal to cause “take” of a federally listed species or its habitat, landowners might be understandably concerned about any liability they may incur as a result of unintended impacts to the species, even when they are a result of proactive efforts to restore its habitat.
Fortunately, addressing these landowner concerns is a central component of Working Lands for Wildlife (WLFW). When WLFW was first established, it was grounded in a Memorandum of Understanding (MOU) between FWS and NRCS, which confers “regulatory predictability” under the ESA to all participating landowners. This means that as long as a landowner has an NRCS conservation plan in place, they will not be asked to fulfill any additional requirements or alter their management practices, should a WLFW species become ESA listed in the future. This important tenant gives landowners peace of mind, knowing that they can continue to work their lands and implement conservation practices without fear or uncertainty about impacts to their operations from ESA listed species.
Regulatory predictability has been an essential element of the success of WLFW efforts for other species. This safeguard has made it possible for literally thousands of agricultural producers to voluntarily undertake conservation actions on behalf of already federally listed species such as the sage grouse and prairie chicken. It even made it possible for populations of the New England cottontail to rebound so strongly that it was ultimately removed from the ESA list of covered species.
The WLFW hellbender program is the only effort currently underway to restore hellbender habitat on private lands. As this important work continues, and hopefully expands into additional states, it will be one of many factors that FWS will take into consideration as it reassesses the species’ status. Whether or not that ultimately results in the hellbender being ESA listed in the future, it ensures that landowners can continue to pursue win-win outcomes for their agricultural operations while supporting hellbender population recovery.
