Teach A Man To Fish… Georgetown International Environmental Law Review

SchuylerLystadTitleCard.jpgTeach A Man To Fish…

By Schuyler Lystad, Staff Contributor

A way of shouldering the burden to ensure the survival and recovery of endangered species is through Candidate Conservation Agreements with Assurances (CCAAs). In short, the Fish and Wildlife Service (Service) makes a deal with local landowners that, if they agree to voluntarily undertake efforts to preserve species that are candidates for listing as endangered, the Service will exempt these landowners from further restrictions on uses of their land, which would normally occur, should the candidate species be listed.

A recent example is the Arctic Grayling. After wrangling with conservationists in court for thirty years, the Service decided on August 20th, 2014 to not list the grayling residing in the Upper Missouri River, in Montana. The grayling in this river have previously been designated a “distinct population segment” (DPS) and thus worthy of their own conservation independent of other populations of grayling in Canada or Alaska, whether those groups are thriving or not.

“In 2004, the grayling was deemed category 3, the highest possible for a DPS, indicating imminent and high magnitude threats.”

In 2006, in heavy cooperation with Montana Fish, Wildlife & Parks, and drawing on funding from both preexisting local and federal conservation programs, the Service initiated a CCAA for the grayling.

In the designated conservation area, there are 318 landowners (including those without riparian land), owning 313,000 acres. The Service signed agreements with only 31 landowners, but these private citizens’ lands cover 158,000 acres, or just over half of the conservation area. Dams limited the access the grayling have to various parts of the river. Withdrawal from the river threatened the riparian vegetation, reducing shade, and increasing erosion, both of which helped to warm the waters beyond temperatures the grayling could survive in. Additionally, damage of riparian vegetation reduced habitat for the grayling to hide from predators. Irrigation ditches trapped several grayling outside their habitat (entrainment), and the watering of livestock in the rivers damaged habitat.

The Service outlined several conservation measures including fencing off riparian habitat from livestock, reducing withdrawal from the river, replanting willow trees (the traditional form of shade for the grayling), installing nets on irrigation channels, and constructing fish ladders around dams. And it has worked. Overall, 110 miles, or 65% of riparian habitat on enrolled lands are improving (170 miles are enrolled, out of a total 340 miles); 47% of riparian habitat (80 miles) is functioning at a sustainable level, a 15% increase in five years.

“Increased river flow also lowers temperatures, and the frequency of river flow targets is met 78% of the time today, compared to 50% of the time before implementation of the CCAA (credited primarily to reduced irrigation withdrawals by landowners).”

Overall, riparian habitat is improving for 19 out of 20 populations of grayling in the DPS, and riparian habitat degradation is no longer considered a threat by the Service.

No entrainment has been recorded since 2010. Riparian fencing has been installed on 108 miles, preventing livestock from further damaging riparian habitat. Overall, 72,200 willow trees reportedly have been planted since the CCAA began. Taking ten years to mature, the benefit to the grayling is expected to increase. In 2007, there were thirty-six days per year where the maximum temperature of the water was over seventy degrees Fahrenheit, a physiologically stressful temperature for cold-water fish such as the grayling. By 2013, this had dropped to zero days per year.

The Service graded the river into four tiers based on the grayling’s viability within it and its historical range; Tier I represents core spawning, rearing and adult habitat currently occupied, and Tier IV represents potentially suitable habitat with unknown historical occupancy. Lands currently enrolled in the CCAA include 86 percent of Tier I habitats, 73 percent of Tier II, 42 percent of Tier III, and 24 percent of Tier IV habitats. The amount of area the grayling has access to has increased since implementation of the CCAA: Tier I increased from 87% accessible to 98% (82 of 84 miles), Tier II changed from 27% to 67% (61 of 91 miles), and Tier III went from 6% to 20% (32 of 161 miles).

“The conservation efforts have been so effective that twelve landowners who did not sign agreements with the Service are also undertaking similar recovery efforts.”

The Service promulgated factors to consider when deciding whether to list a species or not (PECE) under the Endangered Species Act. These factors look primarily at the certainty of implementation of the measures and the certainty of effectiveness. Applying these, the Service felt that the grayling, subject to continuing conservation efforts, was no longer a candidate worthy of listing. While the fluvial grayling has expanded in its range, it has reached only about 10% of its historical range. To be sure, there is more to be done. But this CCAA represents a beneficial cooperation between federal, state, and private actors and expands the reach of the Service in their efforts to preserve candidate species. As one local landowner stated on the eve of announcement, “I think we should celebrate tonight, and give a toast to the grayling.”