The red-cockaded woodpecker is an endangered species native to the southeastern United States. In 2020, the U.S. Fish and Wildlife Service (FWS) proposed a new rule under the Endangered Species Act to update the protections for the red-cockaded woodpecker. This proposed rule has generated significant interest from various stakeholders, including the timber industry, conservation groups, and landowners.
Background on the Red-Cockaded Woodpecker
The red-cockaded woodpecker (Picoides borealis) is a small woodpecker native to pine forests in the southeastern United States. It gets its name from the red streak on each side of its black cap on the male birds. This species is unique among North American woodpeckers due to its strong preference for living in mature pine forests. The red-cockaded woodpecker excavates cavities for roosting and nesting in living pine trees, usually older trees. The cavities are excavated in pines with red heart disease, a fungus that softens the inner wood of the tree. Cavities can take 1 to 3 years to excavate and a group may use the same cavity trees for over a decade. Their specialized habitat needs make them an indicator species for the health of southern pine forests.
Starting in the late 19th and early 20th century, habitat loss from logging of older pine forests caused major declines in the red-cockaded woodpecker population. By 1970, the species was endangered across nearly all of its range. In 1976, it was listed as endangered under the federal Endangered Species Act. At the time of listing, there were only an estimated 1,470 groups left. Through protection efforts, the population has rebounded significantly. A 2019 status review estimated there were nearly 7,800 groups across 11 states. While still endangered, active habitat management has enabled the species to recolonize parts of its historic range. However, threats persist from continued habitat loss and degradation.
Key Protections Under the Endangered Species Act
The Endangered Species Act (ESA) is one of the most powerful environmental laws in the United States. Under the ESA, endangered species are provided with a number of legal protections:
- It prohibits “take” of endangered species, which includes harming, harassing, or killing
- Requires federal agencies to consult with the FWS to ensure any actions they authorize, fund, or undertake will not jeopardize the survival of a listed species
- Prohibits interstate or international trade
- Authorizes habitat conservation plans to allow take as long as adequate conservation is provided
- Provides funding authority for land acquisition to protect habitat
These protections have been instrumental in conserving red-cockaded woodpecker populations. In particular, the ESA makes it illegal to impact cavity trees, which are essential habitat for the species. Consultation between federal agencies like the U.S. Forest Service (USFS) and FWS has also improved habitat management across federal and private lands. The ESA’s provisions around habitat conservation plans have given private landowners incentives to sustainably manage their pine forests. Still, balancing woodpecker protections with forestry and land use needs has been an ongoing challenge.
Details of the Proposed Rule
In August 2020, the FWS and USFS jointly published a proposed rule to update the red-cockaded woodpecker conservation regulations under Section 4(d) of the ESA. Section 4(d) provides the FWS discretion on prohibiting take for threatened species. This proposed rule is focused on clarifying the 4(d) regulations for the red-cockaded woodpecker to improve alignment between conservation needs and forestry practices on federal, state, tribal, and private lands across the Southeast.
Key Elements of the Proposed 4(d) Rule
Some of the main components of the proposed rule include:
- New permit rules to authorize incidental take from lawful forestry practices
- A habitat credit exchange system to incentivize voluntary conservation on private lands
- Expanded surveying requirements prior to land management activities
- Updated cavity tree protections and active cluster definitions
- Habitat management guidelines tailored to different region and ownership types
Incidental Take Permits
The proposed rule would establish a incidental take permit program for lawful forestry activities like timber harvests, thinning, and prescribed burning. Currently, incidental take can only be authorized under habitat conservation plans, which are expensive and resource intensive. The proposed permits would provide a more streamlined process for non-federal landowners to get liability coverage under the ESA while ensuring conservation measures are in place. To qualify, permit applicants would need to follow the habitat management guidelines, protect active cavity trees, and replace any degraded habitat.
Habitat Credit Exchange
A new habitat credit exchange system is proposed to incentivize voluntary red-cockaded woodpecker conservation on private lands. Under this system, landowners who provide above baseline habitat protections could generate saleable credits. These credits could then be purchased to offset negative impacts elsewhere. For example, a power company required to offset impacts from a transmission line could pay a timber company that voluntarily enhanced woodpecker habitat through long rotation pine management. This market-based approach aims to encourage conservation on working forests.
Expanded Pre-Project Surveys
Under the current regulations, landowners are required to survey for active woodpecker cavity trees prior to activities like land clearing. The proposed rule would expand pre-project surveys to search for inactive cavity trees and evidence of woodpecker foraging as well. The goal is to locate all possible woodpecker habitat to minimize risks to the species. However, the conservation groups argue this places undue burdens on small landowners. Meanwhile, the timber industry believes these expanded surveys will further constrain land management activities.
Cavity Tree Protections
While maintaining the current prohibition on impacting active cavity trees, the proposed rule would eliminate protection for inactive cavity trees after surveys are completed. Conservation groups are concerned this will lead to degradation of potentially suitable habitat. However, the timber industry contends this brings protections more in line with actual woodpecker needs.
Regional Habitat Management Guidelines
The proposed rule outlines updated habitat management guidelines tailored to different region and land ownership types. On federal lands, active woodpecker clusters would get designated 200-400 acre buffers. Private land guidelines promote voluntary long rotation pine management. Critics argue these guidelines are not adequate to sustain recovery, while supporters say it brings needed flexibility.
Reactions from Stakeholder Groups
The proposed 4(d) rule has received extensive feedback during the public comment period from various stakeholders. Some of the reactions are summarized below:
Timber Industry
Forest products companies and timber trade associations are largely supportive of the proposal. They applaud the streamlined permitting process and flexible habitat management provisions. However, they would like to see required pre-project surveys limited to habitat with higher likelihood of woodpecker presence.
State Wildlife Agencies
State agencies responsible for wildlife protections and habitat management have mixed views. Most support the permitting program and habitat exchanges as beneficial tools but have concerns about and inconsistencies in the habitat management guidelines. They emphasize that their existing state-level woodpecker protections should not be preempted.
Conservation Groups
Many environmental and conservation organizations oppose the proposed rule changes. They argue it will weaken protections compared to the status quo and fail to sustain long-term recovery. Their biggest concerns are reduced inactive cavity tree protections, inadequate habitat management guidelines, and insufficient requirements for proactive species reintroductions.
Private Landowners
Reactions are varied among private landowners with woodpecker presence. Some welcome the regulatory clarifications and flexibility for forest management. However, small landowners are very concerned about burdens from expanded pre-project surveys. Many landowners also want assurances that the habitat exchanges will provide fair compensation.
Potential Impacts of the Proposed Rule
If finalized as proposed, the 4(d) rule could have wide-ranging impacts on red-cockaded woodpecker conservation and forest management across the Southeast. Some potential impacts include:
Expansion of Active Management
The updated habitat guidelines aim to increase active management like prescribed burning and thinning in pine forests, which could benefit woodpeckers. But conservation groups counter that market incentives often favor shorter logging rotations over optimal habitat.
Increase in Incidental Take
The permit program may streamline authorizing incidental take from forestry, but could also result in higher cumulative take levels. Strong monitoring and enforcement of permit requirements will be needed.
More burden for small landowners
Expanded pre-project surveys may place disproportionate burdens on small landowners without technical expertise. This could discourage conservation participation.
Concern about habitat degradation
Lessened protections for inactive cavity trees raise concerns about habitat degradation over the long-term, especially on non-federal lands.
Incentives for voluntary conservation
The habitat credit exchange could spur substantial new conservation on private lands if properly structured and funded. But the design details are uncertain.
Key Next Steps
The public comment period on the proposed 4(d) rule ended in November 2020. Over 94,000 comments were received. The next steps include:
- FWS and USFS review and respond to comments
- Consultation with state wildlife agencies
- Finalize and publish the revised final rule
- If approved, implement permit program and habitat exchange system
- Monitoring and enforcement to understand impacts
The final outcome remains uncertain. Lawsuits from environmental groups are likely if they feel the final rule falls short. On the other side, landowners may also litigate if they find rule provisions overly burdensome. As the agencies work to balance species recovery and land use needs, robust monitoring will be critical to support adaptive management of red-cockaded woodpecker conservation over time.
Conclusion
The proposed 4(d) rule aims to improve alignment of red-cockaded woodpecker protections with forestry needs across the Southeastern U.S. It takes a carrot and stick approach, with streamlined permitting incentives coupled with expanded survey requirements. Reactions vary based on different stakeholder perspectives. If finalized similar to the proposal, the rule could increase active habitat management and spur new voluntary conservation, but also raises long-term risks of increased take and habitat degradation. Strong monitoring and enforcement will be key for guiding ongoing adaptive management. Balancing species conservation with sustainable land use remains an inherent challenge under the ESA, and this proposal exemplifies the complexities for an endangered species strongly tied to working lands. The final outcome of this rulemaking process will have lasting impacts on red-cockaded woodpecker recovery prospects across its range.