Penstemons are lovely plants with showy, eye-popping flowers, and Utah is blessed with more species than any other state (96!). Two of them, Graham’s penstemon and the White River penstemon, are so rare they are eligible for listing under the Endangered Species Act (ESA). And, unfortunately for them, they are inconveniently located only on oil shales in the middle of energy country in the Uinta Basin.
Graham’s penstemon was first proposed for listing in 1975, but no action was taken because threats were not deemed urgent. That changed when oil shale development began to expand in its habitat, and in 2002 conservation groups petitioned to list the plant. In 2006, the USFWS acknowledged that threats were imminent and ESA protection was necessary for both species. It proposed to list both Graham’s penstemon and the nearby White River penstemon. Just a few months later, however, the agency reversed itself and withdrew listing in a decision that was widely seen as politically motivated rather than scientifically justifiable. In response, scientists and conservation organizations filed suit and won in 2011. The judge found that USFWS failed to consider threats and rejected the best available science provided by its own peer review panel. Instead, it relied on input from the BLM, which downplayed the threats identified by the penstemon experts. After losing the suit, the USFWS again proposed the two species for listing in 2013. Thirty-nine years after the initial effort, the species are about to receive the protections they need.
Or are they? This May, the USFWS released a conservation agreement (CA) written by itself, the Bureau of Land Management, and Utah state and county governments, with input from the energy companies that hold the oil shale leases. No members of the conservation or science communities were included. USFWS hopes to substitute this less restrictive CA for ESA listing. But is this the best choice for species recovery? Consider that the total acreage proposed for protection in the CA amounts to 49,400 acres, compared to nearly 84,000 acres recommended by the agency’s own scientists in the proposed listing. Additionally, the management prescriptions on private land are primarily voluntary and hard to verify. The people ensuring that the provisions in the agreement are being followed are the same ones who are supposed to be following them. This is worrisome because the state and private signatories have included a statement in the CA itself stating that "The non-federal participants do not agree with the USFWS analysis regarding the type and magnitude of the threats to the species identified in the Proposed Rule." This invites questions about the level of commitment the signatories will show to adhering to the CA provisions on non-federal land.
If the limited protections offered by this CA fail, by the time the USFWS realizes it the species and their habitat will have declined further and recovery would be even more distant, more expensive, and more restrictive. An ESA listing provides more protection for these species when they most need it. Managing according to the precautionary principle is a better long-term management strategy. Unfortunately, this is a short-term strategy world.
Comments on the proposal are due July 7 at http://www.regulations.gov. Use Docket No. FWS-R6-ES-2013-0081 for the proposed listing rule or FWS-R6-ES-2013-0082 to comment on critical habitat. Copies of the draft conservation agreement, other USFWS documents, and background information on the two penstemons can be found under the "news" tab on the Utah Native Plant Society home-page (www.unps.org).
Laura Welp is ecosystems specialist for Northern Arizona/Southern Utah for the Western Watersheds Project.
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