Endangered Species Act: U.S. Fish and Wildlife Service's American Burying Beetle Conservation Efforts
Released: 2017-01-23T00:00:00

Letter

Background

This section discusses the organization of FWS, the provisions of the ESA, and the life cycle of the ABB.

U.S. Fish and Wildlife Service Organization

Among its duties, FWS is responsible for administering the ESA for certain species, including terrestrial species, such as the ABB. FWS headquarters, regions, and field offices are responsible for implementing the ESA within their area of responsibility. Since 2008, FWS’s Oklahoma Ecological Services Field Office within FWS’s Southwest Region has served as the lead field office for the ABB. Figure 1 shows a map of FWS regions and the Ecological Services field offices in areas where ABBs are known or believed to be present.

Endangered Species Act Provisions

The purposes of the ESA include providing a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved and providing a program for the conservation of such endangered species and threatened species. Section 4 of the ESA contains the requirements and processes for listing or delisting a species as endangered or threatened, designating critical habitat, and developing a recovery plan for a listed species.

Sections 9 and 10 of the ESA generally prohibit the “take” of endangered species unless the take is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Section 7 of the ESA and its implementing regulations direct a federal agency to consult with FWS when the agency determines that an action it authorizes, funds, or carries out may affect a listed species or critical habitat. Federal actions requiring consultation under section 7 include issuing nonfederal entities a permit or license for their activities. For example, oil and gas companies are required to get a permit from the Bureau of Land Management before drilling into a federally owned mineral estate. If the agency, with FWS’s concurrence through informal consultation, determines that the proposed action is not likely to adversely affect the listed species or its critical habitat, then formal consultation is not required. Formal consultation usually ends with FWS issuing a biological opinion for the proposed action, which may include an incidental take statement containing provisions that the project proponent must comply with to minimize the project’s impact on the species. Under section 10 of the ESA, for actions by project proponents that might take a listed species and that do not have a federal nexus—such as federal funding, approval, or permit— the Secretary of the Interior may issue permits to allow “incidental take” of listed species. Table 1 summarizes key provisions of the ESA.

American Burying Beetle Life Cycle

At about 1-1/2 inches long, the ABB is the largest of the North American carrion beetles, known for its orange-red markings and named for its unique behavior of burying animal carcasses—such as birds and small mammals—to provide a source of nourishment for its developing young. ABBs depend on dead animals for food and reproduction. The ABB is an annual species that lives underground and emerges nocturnally when surface temperatures consistently exceed 60 degrees Fahrenheit. Once emerged, the ABB seeks a suitable carcass and competes for a mate. The mated pair then buries the carcass, which the ABB uses to sustain its young. The ABB is a winged insect, and, according to FWS’s evaluation of available research, it can travel up to 18 miles in one night. The ABB pair raises its young underground using chemical secretions to preserve the carcass for its offspring. Figure 2 shows two ABB specimens.

Through its actions to find and bury carcasses in the soil, ABBs are beneficial in controlling pests, converting carcasses into soil nutrients, and aerating the soil. To preserve the carcasses of their prey, ABBs secrete chemicals that researchers are studying for applicability in treating bacterial infections, preventing fungal growth, and preserving meat at room temperature for human consumption. According to scientists, ABBs also benefit human health and agriculture by reducing disease vectors. Specifically, ABBs limit outbreaks of flies and other animals that could affect livestock production. ABBs are one of the few insects that provide parental care for their offspring. In addition, ABBs are considered an indicator species that is useful in evaluating the overall health of the environment. Figure 3 shows the life cycle of the typical ABB.

According to FWS documentation, the ABB, which was once found in more than 30 states, had disappeared from over 90 percent of its historical range by March 2008. The exact reasons for the decline of the ABB are unknown. However, according to FWS documentation, biologists have identified some potential reasons for the decline, such as the elimination or decline of appropriate-sized carcasses, habitat loss and fragmentation due to widespread agriculture and development, and increased competition from other animals and invasive species. According to officials at FWS, the agency improves its knowledge about the ABB through research and scientific surveys to detect and record the presence of the ABB in specific locations, which must be conducted during the ABB’s limited active season. Appendix II provides more detail about the species’ current and historical range.

FWS Has Sought to Avoid and Minimize Potential Adverse Impacts on the ABB through Discussions with Project Proponents and by Requiring Mitigation Activities

FWS has sought to avoid and minimize potential adverse impacts on the ABB from construction and other projects by discussing mitigation options with project proponents and by requiring mitigation activities. These discussions can result in project proponents choosing to incorporate mitigation options into project proposals. FWS may also require project proponents to take mitigation actions specified in incidental take statements included in biological opinions it issues or habitat conservation plans it approves. To help monitor project proponents’ mitigation actions, FWS records information about certain types of these discussions in its TAILS database.

In their discussions with project proponents about protecting endangered and threatened species, FWS officials said they use the principles contained in the agency’s 1981 mitigation policy, which outlines a hierarchy of actions to address potential harm to fish and wildlife resources that can occur as a result of construction and other projects. The first step in this hierarchy of actions is to avoid any impact on the listed species, such as by relocating the construction site outside the species’ habitat. The second step is to minimize the impact on the species, such as by placing restrictions on when construction or other activities can occur. According to FWS documentation, FWS can recommend a combination of avoidance and minimization measures to protect listed species.

FWS has worked with project proponents to develop avoidance measures for the ABB in an effort to help ensure that projects do not have a direct or indirect adverse impact on the ABB. For example, some Ecological Services field offices recommend that project proponents conduct presence surveys for the ABB if the project is located where ABBs may be present, and, according to FWS officials, project proponents often choose to conduct such surveys. According to FWS documentation, if surveys indicate that no ABB are present within the project area, the project proponent may conduct its project at the proposed location with concurrence from FWS that the project is not likely to adversely affect the ABB. Other examples of avoidance efforts for the ABB include the following:

Officials in the South Dakota Ecological Services Field Office said that sometimes project proponents have relocated their projects to avoid potential harm to the ABB. For example, in 2009 a project proponent selected a site for a wind development project outside the ABB’s range in South Dakota, and officials said that ABB presence was likely one factor that influenced the selection of that site. According to these officials, project proponents in South Dakota are able to select alternative project sites to avoid potential impacts on the ABB, in general, because ABB are known to be present in only a few counties in the state, where little development occurs.

In 2011, the New England Ecological Services Field Office and a project proponent agreed that the project proponent could avoid harming the ABB for an airport lighting project on Block Island in Rhode Island by eliminating certain activities that could cause ground disturbance. For example, the project proponent agreed, among other things, to leave buried cable in place and decided not to excavate existing lighting poles in areas where ABB could be living.

Officials in the Oklahoma Ecological Services Field Office stated that they provide project proponents in Oklahoma with the option to avoid take of the ABB by locating projects in habitat unfavorable to the ABB or where surveys indicate no ABB presence in the area. For example, FWS considers land to be unfavorable to the ABB if it is tilled on a regular basis or located in urban areas with paved surfaces or roadways.

FWS has also worked with project proponents in other cases to minimize potential impacts on the species when avoidance was not feasible. For example, some incidental take statements included in FWS biological opinions discuss reducing disturbances to soil in areas considered suitable habitat for the ABB and require restoration of any soil that is disturbed in these areas to its natural state after construction as ways for project proponents to minimize their projects’ potential impacts on the ABB. Other examples of minimization efforts for the ABB include the following: In 2009, the Kansas Ecological Services Field Office required a project proponent to mow vegetation in areas that would be directly disturbed during the installation of a water pipeline. According to FWS’s biological opinion for this project, mowing vegetation on at least a monthly basis during the ABB’s active period would make the area less attractive to the ABB and therefore help minimize potential adverse impacts on the species by reducing the likelihood that ABB would be present in the areas where the project proponent would be disturbing the ground.

In 2010, the South Dakota Ecological Services Field Office issued a biological opinion to the Federal Highway Administration for stream crossing projects. The incidental take statement included in the biological opinion required that the agency use construction practices that would minimally impact suitable habitat for the ABB adjacent to the project area.

In 2014, the Oklahoma Ecological Services Field Office developed the Oil and Gas Industry Conservation Plan. According to that plan, its purpose is to provide a voluntary process for oil and gas project proponents to obtain permits for incidental take of the ABB from their projects that are not funded, authorized, or carried out by federal agencies. In order to be eligible for a permit under the plan, project proponents must agree to implement certain measures to minimize potential impacts on the ABB from their projects. For example, project proponents must agree to reduce the use of motor vehicles, machinery, or heavy equipment, which can result in take of the ABB.

In 2015, the Nebraska Ecological Services Field Office conducted a section 7 consultation with the Western Area Power Administration for a wind energy development project in Nebraska. In the course of this consultation, the Nebraska Ecological Services Field Office and the project proponent agreed to several measures, including minimizing, to the extent possible, the use of artificial lighting that can attract insects like the ABB and result in take of the species. The project proponent also agreed to minimize the use of pesticides and avoid using them during the ABB’s active season, and incorporated both of these measures into its project proposal.

If a federal agency is involved in authorizing, funding, or carrying out a proposed project, FWS’s discussions with project proponents about options to avoid and minimize potential adverse impacts on the ABB can occur within the context of consultations under section 7 of the ESA. To help monitor actions, FWS tracks information on its formal section 7 consultation activities using its TAILS database. Table 2 shows the number of ABB-related formal section 7 consultation activities by FWS regions and field offices from fiscal years 2008 through 2015. The Oklahoma Ecological Services Field Office conducted 46 out of 118 of the formal consultations on the ABB during this period—more than one-third of those conducted nationwide.

FWS also uses TAILS to track informal activities conducted under section 7 of the ESA, such as informal consultations and technical assistance, but FWS officials said that Ecological Services field offices differ in how they interpret and record these informal activities. According to FWS officials, FWS field offices also work with project proponents to avoid and minimize potential adverse impacts on the ABB and other listed species for projects that are not funded, authorized, or carried out by a federal agency, but the details of the technical assistance through such discussions are not always included in TAILS. According to FWS officials, FWS is planning to develop standard operating procedures for using TAILS to improve the reliability of the data. According to these officials, FWS anticipates completing these standard operating procedures for TAILS in 3 years.

While avoiding and minimizing are FWS’s preferred alternatives, they may not always be practical for project proponents. For example, it may not be practical to relocate a road project or an oil and gas well to avoid ABB habitat or to wait for the ABB’s active period to conduct a presence survey. In these cases, FWS has other options—compensatory mitigation strategies—that project proponents may choose to use to compensate for the impact of their projects. We discuss compensatory mitigation in detail in the following section.

FWS Has Used In- Lieu Fee Programs and Conservation Banks to Conserve the ABB but Does Not Track the Use of In- Lieu Fee Programs Across Regions

FWS uses several compensatory mitigation strategies, such as in-lieu fee programs and conservation banks operated by third parties, to provide project proponents the option to compensate for remaining unavoidable impacts to endangered or threatened species after project proponents have implemented all appropriate and practicable avoidance and minimization measures, and FWS has used these strategies to conserve the ABB. In September 2016, FWS issued a draft policy that would set standards for all of its ESA compensatory mitigation strategies to achieve greater consistency, predictability, and transparency in the implementation of the law. FWS tracks information about its conservation banks but has not fully implemented its plan to track its use of in-lieu fee programs across regions and field offices. Since listing the ABB as endangered in 1989, FWS has used three in-lieu fee programs in several states and two conservation banks in Oklahoma to conserve the ABB.

FWS Uses Several Types of Compensatory Mitigation Strategies and in September 2016 Issued a Draft ESA Compensatory Mitigation Policy

In addition to discussing and, in some cases, requiring measures to avoid and minimize potential adverse impacts to listed species, FWS may also discuss compensatory mitigation strategies with the project proponents so that they can compensate for any remaining unavoidable impacts on listed species from their projects after implementing all appropriate and practicable avoidance and minimization measures. As a result of these discussions, a project proponent may incorporate compensatory mitigation strategies into its project, and FWS may also require them in the nondiscretionary terms and conditions of incidental take statements included in biological opinions or in habitat conservation plans and incidental take permits, according to FWS officials. FWS uses several compensatory mitigation strategies, including conservation banks and in- lieu fee programs. These strategies may involve project proponents providing financial support for mitigation in other locations (i.e., outside the boundaries of the proposed project) to offset some or all of the project’s impacts. For conservation banks and in-lieu fee programs, project proponents provide money to a third party to conduct the conservation activities. Responsibility for conducting the conservation activities is transferred to the third party.

In addition, FWS uses other strategies, including habitat credit exchanges, permittee-responsible mitigation, and other third-party mitigation (see table 3). FWS gives project proponents options to conduct mitigation on their own or through other arrangements, such as purchasing conservation bank credits or contributing to an in-lieu fee program, if those options exist and the project proponent is eligible under the terms and conditions of those arrangements. FWS officials said that when conservation banks or in-lieu fee programs have been available as mitigation options, nearly all project proponents choose to use these options over other compensatory mitigation strategies, such as permittee- responsible mitigation, because of issues of mitigation costs and liability.

FWS has issued guidance to its regional offices for the establishment and use of conservation banks but has not finalized guidance that addresses operational considerations for in-lieu fee programs and other types of compensatory mitigation strategies. According to the guidance FWS issued in 2003 for establishing and using conservation banks as a compensatory mitigation strategy, conservation banks must conduct conservation for species in advance of any project development. Conservation banks should also obtain a permanent conservation easement on the mitigation lands, establish a management endowment that will support the perpetual management of the mitigation land, and establish a time limit for fully funding the endowment. Furthermore, according to this guidance, conservation bank proposals that are submitted for FWS approval must contain a conservation bank agreement that establishes a monitoring program, such as an annual reporting requirement, a long-term management plan, and a dispute resolution process to be used if the banks’ owners fail to meet their obligations.

According to an FWS official, the lack of guidance addressing the establishment or use of in-lieu fee programs and other types of compensatory mitigation strategies has led to differences in the structure, monitoring, and oversight of these strategies across FWS. In September 2016, however, FWS issued a draft policy for public comment in the Federal Register on ESA compensatory mitigation strategies that covers all these compensatory mitigation strategies. This draft policy is intended to align with departmental directives and a 2015 presidential memorandum on mitigating impacts on natural resources from development. It establishes standards for compensatory mitigation and minimum criteria for achieving these standards. The draft policy stresses the need to hold all compensatory mitigation strategies to equivalent and effective standards, but it would not apply to mitigation arrangements that have already been approved unless the in-lieu fee program, conservation bank, or other arrangement is modified or amended. In addition, according to FWS’s website, the draft policy seeks to improve collaboration and coordination among all interested parties when FWS is engaged in the planning and implementation of compensatory mitigation strategies. Once finalized, the draft ESA compensatory mitigation policy would revise and replace FWS’s 2003 conservation banking guidance. According to FWS officials, the agency intends to finalize the policy after the public comment period ends in October 2016.

FWS Tracks Key Information about Conservation Banks, but Its Plan to Track In-Lieu Fee Programs Has Not Been Fully Implemented

FWS tracks key information about the conservation banks it approves, such as the location and credits available, but it does not track in-lieu fee programs. FWS has identified system modifications that are needed to the U.S. Army Corps of Engineers RIBITS database to track in-lieu fee programs, but it has not fully implemented its plan to make these modifications and improve monitoring and oversight of its in-lieu fee programs.

FWS has posted information about the conservation banks it approves to the U.S. Army Corps of Engineers’ RIBITS website since 2011, according to an agency official. FWS monitors the number and location of conservation banks through the RIBITS database. According to FWS officials, the agency uses this information for a variety of management activities, such as providing project proponents with information on available mitigation options and facilitating incidental take authorizations and permit compliance when conservation banks are used. Table 4 shows the distribution of FWS-related conservation banks across regions. Information about the number of credits available and sold is accessible to the public through the RIBITS website.

As of September 2016, there were also 21 conservation banks that had sold all of their credits and, therefore, were no longer a mitigation option for project proponents. In addition, FWS can suspend a conservation bank if the sponsors of that bank fail to comply with agreed upon parameters, such as how land will be managed for a species. As of September 2016, there were two suspended conservation banks that cannot sell credits at this time.

According to FWS’s National Conservation Banking Coordinator, the agency’s regional and field offices do not consistently enter certain information about conservation banks into RIBITS. Specifically, that official stated that some offices do not consistently upload parts of the conservation bank instruments, such as financial assurances or annual monitoring reports. In addition some offices do not enter information on “pending” conservation banks—those close to receiving FWS approval— while others do. Furthermore, this official stated that the agency has not issued standard operating procedures on the information FWS field offices are to enter into RIBITS. This official acknowledged the need to improve how the agency’s regional and field offices enter data in RIBITS to make it more consistent in order to assist with monitoring and oversight of conservation banks. According to FWS officials, the agency intends to develop standard operating procedures after it finalizes its ESA compensatory mitigation policy.

In contrast to conservation banks, according to FWS headquarters officials, the agency has not tracked the use of in-lieu fee programs across regions and field offices because its focus has been on the conservation banks. Without data on these programs, FWS may be unable to respond to inquiries from the public and private sectors, or to track administrative and ecological compliance by in-lieu fee program sponsors, among other things. In addition, FWS is limited in its ability to evaluate whether in-lieu fee programs are an effective strategy for conservation. However, FWS headquarters officials we interviewed said that FWS recognizes the need to track and monitor its in-lieu fee programs to provide better oversight. In February 2016, FWS signed an interagency agreement, which will be in effect for 5 years, with the U.S. Army Corps of Engineers to, among other things, modify its RIBITS database so FWS can track all in-lieu fee programs across regions and field offices. According to an FWS official, although making modifications in RIBITS to track in-lieu fee programs is an identified need, the agency has not obligated funds for these modifications and does not have a timeline for doing so. As a result, it is not clear when FWS will be able to use the RIBITS database to track its in-lieu fee programs.

Federal government standards for internal control provide that management should design control activities to achieve objectives and respond to risks. To accomplish this, according to federal internal control standards, management should define the time frames for achieving the objectives. However, because it is unclear when modifications will be made to RIBITS, it is also unclear when regions and field offices will be able to enter information on in-lieu fee programs so that FWS can use the RIBITS database to track these programs. Until FWS establishes a timetable with milestones for modifying the RIBITS database to incorporate in-lieu fee program information, the agency will not have reasonable assurance that it will obtain relevant and reliable data on its in-lieu fee programs, which will impact its ability to effectively evaluate its in-lieu fee programs and determine the most effective strategy for conservation.

FWS Has Used Three In- Lieu Fee Programs to Allow Project Proponents to Compensate for Potential Impacts on the ABB in Several States

Since listing the ABB as endangered in 1989, FWS has used three in-lieu programs to provide compensatory mitigation to help conserve the ABB in Nebraska, Oklahoma, and elsewhere in its Midwest Region. The Nebraska Ecological Services Field Office and FWS’s Midwest Regional Office began using in-lieu programs for the ABB in 2012 and 2013, respectively. Both of these programs were operating at the time of our review. The Oklahoma Ecological Services Field Office established an in- lieu fee program in 2009 but terminated the program in 2012.

Nebraska

In January 2012, FWS’s Nebraska Ecological Services Field Office and the Nebraska Game and Parks Commission, a state agency, worked with two organizations—the Rainwater Basin Joint Venture and the Nebraska Community Foundation—to establish the Nebraska Habitat Projects Fund. The fund is an in-lieu fee program that uses funding it receives for conserving ABB and other species, such as migratory birds, and their habitats. In their discussions on mitigation options, FWS and project proponents may discuss making voluntary contributions to this fund as one option to mitigate potential adverse impacts on the ABB from projects in Nebraska. If FWS and the project proponent agree that making a contribution to the fund is an appropriate mitigation strategy, FWS and the project proponent prepare a written agreement that outlines what contributions will be made and for what purpose. These written agreements are then used to develop contracts between the project proponent and the Nebraska Community Foundation, which manages the funds.

The Rainwater Basin Joint Venture works in partnership with the Nebraska Community Foundation to complete the planning, design, and implementation of conservation activities and to conduct research and monitoring activities. FWS does not have oversight responsibility for the Nebraska Habitat Projects Fund, and FWS does not determine how mitigation funds will be used for the ABB under this in-lieu fee program. However, FWS is a member of a work group composed of representatives from state agencies, such as the Nebraska Game and Parks Commission, and nongovernmental organizations, such as The Nature Conservancy and Audubon Nebraska, who work with an ABB species work group to establish criteria that are used to evaluate proposals for funding. According to FWS officials and Rainwater Basin Joint Venture documentation, in an effort to develop landscape-scale mitigation, a minimum threshold of $150,000 must be met before the Nebraska Community Foundation can expend funds for ABB conservation activities. As of October 2016, the $150,000 threshold had not been met, and therefore no expenditures have been made from the fund, according to FWS officials.

Midwest Region

In July 2013, FWS’s Midwest Regional Office entered into a memorandum of understanding with Enbridge Pipelines to implement conservation measures, including compensatory mitigation, to minimize or offset the impacts to the ABB and other species resulting from construction of the Flanagan South Pipeline, which runs through parts of Illinois, Missouri, Kansas, and Oklahoma. In July 2013, FWS also entered into a memorandum of agreement with The Conservation Fund, a nonprofit conservation organization, to manage the Enbridge Pipelines’ funds for species conservation and habitat restoration. The Conservation Fund is to use the funds to undertake mitigation projects approved by FWS or award the funds to others to undertake FWS-approved mitigation projects. Once FWS approves a project, The Conservation Fund is to enter into a funding agreement with those entities or undertake the project to conserve the ABB and other endangered species, such as the Indiana bat, as well as to protect migratory birds. Under this program, The Conservation Fund has provided funds to The Nature Conservancy, a nonprofit organization involved in ABB conservation efforts, to purchase land at its Tallgrass Prairie Preserve in Oklahoma to conserve ABB habitat.

Oklahoma

In February 2009, the Oklahoma Ecological Services Field Office entered into a memorandum of agreement with The Nature Conservancy creating an in-lieu fee program called the American Burying Beetle Conservation Fund. Under this program, funds from multiple sources, such as federal agencies and private companies, were to be used to acquire lands or easements within priority conservation areas, restore or manage potential ABB habitat, and support research to monitor conservation areas for the ABB.

With FWS approval, The Nature Conservancy used contributions to the American Burying Beetle Conservation Fund to conduct conservation activities at its Tallgrass Prairie Preserve in Oklahoma, purchase land to expand the Preserve, and support ABB monitoring at the Preserve. According to representatives of The Nature Conservancy, it preserves the Tallgrass Prairie Preserve as a native tallgrass prairie habitat through the management of a bison herd that serves as a keystone species to restore the ecosystem. The Nature Conservancy manages the preserve to conserve all native species, but the representatives stated that the ABB benefits from this protected, heterogeneous grassland habitat. According to representatives from The Nature Conservancy, it used the American Burying Beetle Conservation Fund for various habitat management activities, including conducting prescribed burns to manage the grasslands and controlling invasive species, such as feral pigs. Representatives from The Nature Conservancy said that ABB populations have increased in both size and distribution across the preserve since ABBs were first found at the Tallgrass Prairie Preserve in 1999. Figure 4 shows a map of The Nature Conservancy’s Tallgrass Prairie Preserve, including land purchased with funding from FWS-approved in-lieu fee programs for the ABB.

According to FWS officials, conservation banks offer a more consistent conservation effort for the ABB than the American Burying Beetle Conservation Fund because conservation bank sponsors must agree to both conduct conservation in advance of a project’s potential adverse effect on a species and conserve the land in perpetuity. However, conservation banks can take several years for bank sponsors to develop and for FWS to approve. FWS officials told us they used the American Burying Beetle Conservation Fund as an interim compensatory mitigation measure and that it contributed more to ABB conservation than previous minimization measures.

The American Burying Beetle Conservation Fund operated from 2009 until July 2012, when FWS terminated it for various reasons, including concerns that the 2009 memorandum of agreement was not the appropriate mechanism to ensure effective oversight and adequate documentation of the conservation activities and fund expenditures. The total contributions and expenditures from the fund were about $1 million each. For additional information about the cash receipts and expenses of the American Burying Beetle Conservation Fund, see appendix III.

Since 2014, FWS Has Used Two Conservation Banks to Allow Project Proponents to Compensate for Potential Impacts on the ABB in Oklahoma

The Oklahoma Ecological Services Field Office approved two conservation banks for the ABB in an effort to allow project proponents to compensate for the potential adverse impacts of their projects on the ABB and to provide long-term conservation for the species, according to agency officials. FWS approved the Muddy Boggy Conservation Bank in 2014. Bank representatives told us they began working with FWS to establish the bank in 2012, purchased the land in 2013, and received approval to sell credits in 2014. The Muddy Boggy Conservation Bank is approximately 3,300 acres. FWS also approved the American Burying Beetle Conservation Bank in 2014. This bank manages approximately 3,300 acres, including approximately 900 acres that it manages as part of a permittee-responsible mitigation arrangement. Customers for the banks include oil and gas companies and the Oklahoma Department of Transportation.

Since they began operating in 2014, these conservation banks have submitted annual performance reports to FWS, and the agency has conducted annual on-site inspections, according to agency documentation. Representatives for both of the banks told us that they undertake activities to manage ABB habitat, rather than specifically managing for the species. For example, they said they use prescribed burns and control invasive species, such as eastern red cedar and red imported fire ants, which, if not managed, can reduce quality habitat for the ABB.

According to FWS officials, the process of approving and establishing a conservation bank can take several years and requires up-front investments from bank sponsors. These officials told us FWS only reviews and approves applications and does not propose or initiate conservation banks. Conservation banks are private enterprises that are proposed by potential conservation bankers. Officials also told us that conservation banks are used in places where there is a strong demand for compensatory mitigation. FWS requires that offsets occur within a designated service area. Therefore, project proponents use conservation banks within the approved service area for the project or impact site. However, according to FWS officials, in Oklahoma, if there are no conservation banks in a project’s service area, project proponents can purchase credits at other conservation banks. As of November 2016, Oklahoma was the only state where conservation banks existed for the ABB. According to FWS officials, this is due to the market created by the relatively high density of the ABB population; large areas of suitable habitat; and numerous development projects, such as oil and gas well drilling and pipelines.

According to representatives of the oil and gas industry in Oklahoma, companies prefer to purchase conservation bank credits rather than conduct their own permittee-responsible mitigation to avoid project delays and minimize long-term liabilities. However, representatives of the oil and gas industry we interviewed said they are concerned about the high costs of the conservation bank credits, which the conservation banks set on the basis of changing market conditions. Oil and gas industry representatives noted that from 2009 to 2012, FWS recommended contributions to the American Burying Beetle Conservation Fund that were significantly less than the current cost of credits from either of the two approved conservation banks. According to FWS officials, FWS has no control over the cost of conservation bank credits. Those costs are negotiated between the conservation bank and the purchasers. In contrast, the contributions to the American Burying Beetle Conservation Fund were based on expected survey costs, which were not always commensurate with the cost of mitigating impacts of a proposed project. According to oil and gas industry officials, the high cost of bank credits is one major reason they supported a petition to delist the ABB. According to conservation bank officials, the petition to delist the ABB has created uncertainty regarding the market for bank credits, since project proponents would no longer have a need to mitigate potential harm to the ABB to move forward with their projects if FWS delisted the ABB.

Conclusions

FWS does not track information about its in-lieu fee programs across regions and field offices. As a result, FWS has limited ability to evaluate the effectiveness of these programs. FWS acknowledges this issue, and making modifications in RIBITS to track in-lieu fee programs is an identified need for the agency. However, it has not yet obligated funds to make the necessary modifications or established a timetable with milestones for modifying the RIBITS database to incorporate in-lieu fee program information. Until FWS collects relevant and reliable data on its in-lieu fee programs, the agency will not be able to evaluate the effectiveness of its programs and determine the most effective strategy for conservation.

Recommendation for Executive Action

To help improve FWS’s ability to evaluate the effectiveness of its compensatory mitigation strategies and ensure that the agency appropriately plans the obligations necessary for this purpose, we recommend that the Director of the U.S. Fish and Wildlife Service establish a timetable with milestones for modifying the RIBITS database to incorporate FWS’s in-lieu fee program information.

Agency Comments

We provided a draft of this report for review and comment to the Department of the Interior. The GAO audit liaison for the Department of the Interior responded via e-mail that the U.S. Fish and Wildlife Service concurred with our recommendation. In addition, the agency provided technical comments on our draft report, which we incorporated as appropriate.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the appropriate congressional committees, the Secretary of the Interior, the Director of the U.S. Fish and Wildlife Service, and other interested parties. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or fennella@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix IV.

Appendix I: Objectives, Scope, and Methodology

Our objectives were to examine (1) how the Department of the Interior’s U.S. Fish and Wildlife Service (FWS) has sought to avoid and minimize potential adverse impacts on the American burying beetle (ABB) from construction and other projects and (2) what is known about FWS’s compensatory mitigation strategies and how FWS has used two of these strategies, in-lieu fee programs and conservation banks, for the ABB. In addition, you asked us to review the contributions and disbursements for a specific in-lieu fee program for the ABB. We briefed your office on the results of that review on August 30, 2016 (see the briefing slides in app. III).

To conduct our work, we reviewed and analyzed relevant laws, agency policies, guidance, and other documentation related to the Endangered Species Act (ESA), compensatory mitigation strategies, and conservation efforts for the ABB. We also reviewed our prior reports on endangered species issues and the use of compensatory mitigation strategies. We interviewed FWS officials from headquarters, the Office of Law Enforcement, and the regional offices and Ecological Services field offices in states with an ABB presence, including Region 2 and the Oklahoma Ecological Services Field Office; Region 3 and the Columbia and Ohio Ecological Services Field Offices; Region 4 and the Arkansas Ecological Services Field Office; Region 5 and the New England Ecological Services Field Office; and Region 6 and the Kansas, Nebraska, and South Dakota Ecological Services Field Offices. We also interviewed officials from other relevant federal agencies, including the Department of the Interior’s Bureau of Land Management, the U.S. Army Corps of Engineers, the Federal Energy Regulatory Commission, and the Environmental Protection Agency; representatives from The Nature Conservancy, a nonprofit conservation organization involved in ABB conservation efforts; as well as representatives from the oil and gas industry, including representatives from private oil and gas companies, the Oklahoma Oil and Gas Association, and the Oklahoma Independent Petroleum Association.

To determine how FWS has sought to avoid and minimize potential adverse impacts on the ABB, we reviewed FWS biological opinions and other official correspondence with federal and nonfederal project proponents. In addition, we reviewed the draft ESA compensatory mitigation policy that FWS issued in September 2016. We also analyzed data from FWS’s Tracking and Integrated Logging System (TAILS) on the number of consultations with FWS that have occurred about the ABB across FWS regions for fiscal years 2008 through 2015. To assess the reliability of the data in TAILS, we reviewed agency documentation about TAILS and interviewed agency officials, discussing limitations related to how specific consultation types are reported. We determined that the TAILS data on formal consultations were sufficiently reliable for our purposes.

To determine what is known about FWS’s compensatory mitigation strategies and how FWS has used two of these strategies, in-lieu fee programs and conservation banks, for the ABB, we reviewed agency documentation related to compensatory mitigation, including agency guidance and policies. We conducted a site visit in April 2016 at FWS’s Oklahoma Ecological Services Field Office, which is FWS’s lead field office for the ABB, and the Tallgrass Prairie Preserve in Oklahoma, where The Nature Conservancy conserved ABB habitat. We requested data from FWS regarding all current FWS in-lieu fee programs for endangered and threatened species, but we determined that the data FWS provided were not sufficiently reliable for our purposes because of missing information and other errors. For example, we determined that the data FWS provided included information on some in-lieu fee programs that had been terminated, included information on some compensatory mitigation strategies that are not in-lieu fee programs, and excluded at least one in- lieu fee program that is currently in operation. We also reviewed related documentation from FWS and other federal agencies, including the Bureau of Land Management, the U.S. Army Corps of Engineers, the Federal Energy Regulatory Commission, and the Environmental Protection Agency; the Oklahoma Department of Transportation; and conservation organizations involved in the in-lieu fee programs, such as The Nature Conservancy and The Conservation Fund. FWS officials said that when conservation banks or in-lieu fee programs have been available, nearly all project proponents choose these arrangements over other compensatory mitigation strategies. Therefore, we focused on in- lieu fee programs and conservation banks for this report.

We interviewed representatives from the American Burying Beetle Conservation Bank and the Muddy Boggy Conservation Bank, both of which operate for the conservation of the ABB. We also analyzed FWS data on the use of conservation banks for all species listed under the ESA, which is reported in the U.S. Army Corps of Engineers’ Regulatory In-lieu fee and Bank Information Tracking System (RIBITS). To assess the reliability of data in RIBITS, we interviewed agency officials and reviewed agency documentation about RIBITS, such as user manuals, and determined that the data in RIBITS were sufficiently reliable for our purposes.

We conducted this performance audit from November 2015 to December 2016 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Timeline of FWS’s Conservation and Recovery Activities for the ABB and Information on the ABB Population

The Department of the Interior’s U.S. Fish and Wildlife Service (FWS) has taken several steps to conserve and recover the American burying beetle (ABB) since it proposed listing the ABB as endangered in 1988. These steps range from developing a recovery plan for the ABB in 1991 to planning to determine, in 2017, whether FWS will (1) keep the ABB on the endangered species list; (2) reclassify the species’ status from endangered to threatened, also known as downlisting; or (3) delist the ABB. Figure 5 provides a timeline of key activities related to ABB conservation.

As of October 2016, the ABB was known or believed to occur naturally in seven states: Arkansas, Kansas, Nebraska, Oklahoma, Rhode Island, South Dakota, and Texas. In addition, FWS has attempted to reintroduce the ABB into three states where it was found historically: Massachusetts, Missouri, and Ohio. Table 5 provides information about the current status of the ABB in states with known ABB presence, by FWS region and field office.

To reintroduce the ABB to locations where it once occurred, FWS either breeds the species in captivity or transports ABB from locations with naturally occurring populations and releases them in other states. In conjunction with state and nonprofit partners, FWS began efforts to reintroduce the ABB to Nantucket Island in Massachusetts in 1994. FWS used captive-bred ABB for this effort and FWS officials said that they currently consider the Nantucket ABB population to be stable. In Ohio, FWS has attempted to reintroduce the ABB since 1998, when it began transporting naturally occurring ABB from Arkansas for release in Ohio. FWS officials said that their reintroduction efforts in Ohio have been unsuccessful, in part, because the ABBs from Arkansas that were used in the reintroduction program may not be adapted to conditions that occur further north in Ohio. FWS is now using ABB from Nebraska instead of Arkansas to test if these ABB are more accustomed to colder winters, according to FWS officials. In Missouri, FWS has transported and released a non-essential, experimental ABB population in the southwestern part of the state since 2012. FWS has documented an increasing number of ABB in Missouri each year since the reintroduction program began.

FWS has not designated critical habitat for the ABB, in part, because the species is a habitat generalist, and it is still unknown what habitat type is essential for ABB conservation, according to FWS officials. FWS officials said that the agency improves its knowledge about the ABB’s current range when FWS biologists, researchers from universities and nonprofit organizations, project proponents, or others conduct surveys to detect or monitor the presence of ABBs in locations where they are known or believed to occur. Consequently, the ABB’s range in the United States changes over time. Figure 6 depicts the ABB’s range as of October 2016 in relation to its known range at the time of its listing in 1989 and its reported historical range.

Appendix III: American Burying Beetle Conservation Fund Briefing Slides

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Jeffery D. Malcolm (Assistant Director), Maria C. Belaval, Martin (Greg) Campbell, Joseph M. Capuano, Caitlin E. Cusati, Armetha (Mae) Liles, Edward (Ned) Malone, Elizabeth Martinez, Genna Mastellone, Steven R. Putansu, Anne K. Rhodes-Kline, Dan C. Royer, Jeanette M. Soares, and David A. Watsula made important contributions to this report.