When faced with the prospect of yet another endangered species listing in the Uintah Basin, many would expect that as elected officials tasked with protecting our local community we would take off the proverbial gloves and begin to fight. In the case of the Graham’s beardtongue and White River beardtongue (penstemon species) in Eastern Utah, we along with other stakeholders met this challenge with a proposed conservation agreement that goes above and beyond the protections afforded these flowering plants under the federal Endangered Species Act (ESA). Some critics claim that this conservation plan — negotiated between local, state and federal agencies — is voluntary and so does not provide "real" protection for these plants. Uintah County wants to be clear that this is incorrect. The agreement is enforceable by law.
If the purpose of the ESA is to protect and recover species, the proposed agreement is the only real alternative. It’s a simple fact that if this plant is listed as an endangered species, the federal government cannot protect those plants on private and state land. The conservation agreement, on the other hand, provides legally binding protection on state, federal and private lands. The only voluntary aspect to the agreement is that various parties came to the table voluntarily to agree to these binding protections. But rest assured, the protections themselves are enforceable and, realistically, offer the best hope for the long-term survival of these penstemon species.
Uintah County, the state of Utah, the Utah School and Institutional Trust Lands Administration, industry stakeholders, the Bureau of Land Management and the U.S. Fish and Wildlife Service, cooperatively crafted this agreement to provide more protection for these species than an ESA listing ever could.
What is not mentioned by some commentators is that the ESA does not protect plant species on private or state lands without a "federal nexus" — such as a federal air or water permit for a proposed project, for example. As it happens, a third or more of these shale-loving plants exist on private and state lands in the Basin. USFWS cites that 31 percent of all Graham’s and 38 percent of all known White River beardtongue plants are located on private or state lands. While there is dispute as to what exactly those numbers are, it is hard to imagine these species can truly be protected without the cooperation of private and state landowners.
The proposed conservation agreement will provide legally binding protection of these plants on thousands of acres of private and state lands while allowing development of our critical natural resources and protection of our local and state economies. The county has already voted in support of a new zoning ordinance that will be enacted if the agreement is approved by the Fish and Wildlife Service. Other parties to the agreement also have binding regulatory mechanisms ready if the agreement is approved.
Although private landowners under the law could plow up every plant species on their lands, they have acted as responsible corporate and private citizens and voluntarily participated in an open process that will protect and recover the Graham’s beardtongue and White River beardtongue. They have accepted these commitments even as the science and development assumptions supporting USFWS’s listing proposal is suspect. For example, the Graham’s beardtongue population today, according to USFWS, is 551 percent (yes, 551 percent) greater than first estimated in 2006 when the USFWS decided the plant did not warrant listing. As to the White River beardtongue, the more we look, the more plants we find. Two recent surveys revealed several hundred more plants each and habitat models indicate there are likely to be hundreds more plants identified. These findings pose serious questions about the validity of the data on which a proposed listing is based.
Nevertheless, rather than spending our time in court fighting about an ESA listing, we’ve chosen to proactively negotiate a conservation agreement that is practical, realistic, and provides enforceable solutions that will actually protect these desert flowers. After all, that’s what the Endangered Species Act was originally intended to do.
Mike McKee, Mark Raymond and Darlene Burns are Uintah County commissioners.
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