Rincon Regulatory Review
Whitebark Pine Receives Endangered Species Act Protection as a Threatened SpeciesWhitebark Pine Receives Endangered Species Act Protection as a Threatened Species
What is the update?
On December 14th, the U.S. Fish and Wildlife Service (USFWS) announced a final action (2022-27087) to list whitebark pine (Pinus albicaulis) as a threatened species under the Endangered Species Act (ESA). No critical habitat has been designated for this species.
Why is it important?
For Federal Lands:
The protections for whitebark pine make it illegal to remove, possess, or damage the tree on federal lands, or to import or export the tree. Further, projects that are authorized, funded, or carried out by a federal agency (aka. have a federal nexus) and may affect whitebark pine, will now require a USFWS Section 7 Consultation.
Some exceptions are allowed under the current 4(d) rule (a tool within the ESA that allows USFWS to establish regulations “necessary and advisable to provide for the conservation” of threatened species rather than prohibiting take of the species outright as occurs with endangered species) because they are not considered to be a stressor or threat to whitebark pine. But be advised, 4d rules offer limited protection, compared to the protection offered to endangered species by the Act. Having said that, exceptions include:
- Any activity with a permit under ESA regulations for permitting take of threatened plants (50 CFR 17.72);
- Forest management, restoration, or research conducted or authorized by a federal agency including, but not limited to: silviculture practices and activities that address fuels management, insect and disease impacts, vegetation management in existing utility rights-of-way, and wildlife habitat management (e.g., full or partial suppression of wildfires in whitebark pine communities, allowing wildfires to burn, survey and monitoring of tree health status);
- Removal, cutting, digging, damage, or destruction on non-federal lands by a qualified agency or State employee; or with a cooperative section 6(c) agreement; and,
- Tribal collection of whitebark pine seeds from federal lands for traditional consumption or ceremonial use. Forest management, restoration, or research-related activities may include, but are not limited to, silviculture practices and activities that address fuels management, insect and disease impacts, vegetation management in existing utility rights-of-way, and wildlife habitat management (e.g., full or partial suppression of wildfires in whitebark pine communities, allowing wildfires to burn, survey and monitoring of tree health status).
For Non-Federal Lands:
Unlike the prohibitions for federal lands, on non-federal lands there are no prohibitions under the ESA for the removal, possession, or destruction of listed plants, unless the action in question violates state law, or there is a federal nexus, triggering USFWS Section 7 Consultation. No state-level protections currently exist for whitebark pine in the state of California.
Who is affected?
Any clients that may affect whitebark pine will be required to evaluate impacts to the species through Section 7 Consultation with USFWS, if part of a project on federal lands or with a federal nexus, notwithstanding actions coinciding with the 4(d) exceptions listed above. Impacts may be a result of prohibited activities listed above/in the 4(d) rule or other activities resulting in effects to whitebark pine.
Whitebark pine typically occurs within subalpine and timberline zones, in elevations from 2,950-12,000 feet. Their general range within the United States is central Idaho, southwestern Wyoming, and the Sierra Nevada in California. Scattered populations are present in northern California, as well as between northern Nevada and the Great Basin regions of eastern Oregon and Washington.
When did the regulation or law take effect?
January 17, 2023
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