A statewide sage grouse stakeholder group is looking to a provision of the Endangered Species Act that may help maintain agricultural activity and oil and gas development if the sage grouse gains federal protection.

The focus is on voluntary conservation efforts that qualify under the "candidate conservation agreements with assurances" provision. Essentially, private landowners who take on practices that conserve and increase sage grouse and sage grouse habitat are allowed to continue their normal operations if the bird is listed, according to the U.S. Fish and Wildlife Service.

If those normal operations carried out under a conservation agreement result in a "taking," or kill one or more sage grouse, it would not result in a violation of the Endangered Species Act.

Gov. Dave Freudenthal wants to establish a conservation agreement with assurances for the entire state, said Ryan Lance, the governor's chief of staff.

Lance said the idea is to convince private landowners to voluntarily enroll in the statewide agreement. If the sage grouse becomes listed, then energy developers - whether on private or federal lands - could agree to those same conservation practices.

It would streamline permitting gas wells and other energy activity in what is otherwise a very restrictive Endangered Species Act bureaucracy. Under a listing scenario, such activity would require a Section 10 permit - an interagency document that allows for a "taking" given that certain stipulations are followed.

Rather than individual ranchers applying for their own conservation agreements and going through the rigorous process by themselves, they would enroll in the statewide program. In the same manner, obtaining Section 10 permits would be streamlined for energy activity.

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, said the idea has merit. But there are many questions to answer.

"If I'm a private landowner and I get a (conservation agreement) and an energy company reimburses me financially, have I given that energy company ability to develop on me? And have I weakened my position with them on surface damages?" he asked.

Some Wyoming ranchers did try to get conservation agreement protection in regard to the black-tailed prairie dog, Magagna said. But the bureaucratic process proved to be too much. In that regard, a statewide agreement would be of value.

Another concern, Magagna said, is whether the voluntary program would evolve into a mandate on federal grazing leases.

Lance said the idea is to offer a voluntary system to avoid mandates.

"If we get enough people and local working groups headed in the right direction, one, you shouldn't need to list it anyway," Lance said. "But if it's still listed, based upon the guidance of the Department of Interior, Wyoming could be written out, functionally, of that listing."

So far, a statewide conservation agreement with assurances is only a concept. Not a single such agreement exists in Wyoming. The provision of the Endangered Species Act hasn't ever been used in this manner, according to wildlife officials. State officials are working closely with the Fish and Wildlife Service to get the plan approved.

"This is a first. We're not 100 percent sure we can make it work, but we're going to try," said Pat Deibert, Fish and Wildlife biologist.

It's been determined energy development does harm sage grouse in Wyoming, but the species is still doing relatively well here. Regardless, several groups are still pushing for federal protection of the bird based on its rangewide decline throughout the West. Such a case is currently pending in federal court in Idaho.

Deibert said private lands present the best opportunities for conserving and improving the health of the bird because of energy development, recreation and other activities on public lands.

On private lands, ranchers can more easily utilize sheep to promote diverse generations of sagebrush. They can shift to moderate herd sizes and intense, rotational grazing, off-stream watering and other practices that promote healthy rangeland habitat, not only for sage grouse, but for the entire rangeland ecosystem.

By law, the conservation agreements with assurances program cannot be directly applied to federal lands, where most of Wyoming's energy development takes place. But energy companies can voluntarily take on conservation efforts of their own to coordinate with those on adjacent private lands, Deibert said.

Implementing the conservation activities required under a program isn't cheap, and it would be necessary to enroll small and large agricultural operations alike. So the idea is for energy companies to help fund those efforts on private lands, thus offsetting their impacts on public lands.

"These are the ideas we're tossing around," Deibert said.

State leaders sense that the motivation to participate may already be there for both agriculture and energy. Large ranching operations that rely on federal grazing leases are especially prone to Endangered Species Act restrictions if the sage grouse is listed. And the Bureau of Land Management recently modified its coal-bed methane permitting priorities in the Powder River Basin based on ongoing monitoring of the industry's impact to the bird there.

"We may have to give up some ground to protect (sage grouse) from a listing. But we feel that cost is much less than under an ESA listing," Lance said.

Energy reporter Dustin Bleizeffer can be reached at (307) 577-6069 or dustin.bleizeffer@casperstartribune.net.