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Earlier
this year, with no scientific or public input, the Wisconsin Department of
Natural Resources (WDNR) substantially weakened the criteria that
developers must follow to protect the state-threatened Butler's Gartersnake
(BGS). The previous regulatory framework protected critical upland habitat
for this wetland-dependent species. The new framework does not.
The shift
in policy was driven by WDNR's need to reduce
workload and desire to increase regulatory flexibility. WWA believes these
objectives can and should be accomplished without harming the BGS.
Unfortunately, the new framework ignores science and fails to ensure the
long-term survival of the species in the process. Even worse, WDNR
justifies the action based on a voluntary reinterpretation (i.e., not based
on any new case law) of Wisconsin's
Endangered species law that could have major implications for other
wetland-dependent, at-risk species. Read on for further explanation of
these allegations.
WDNR is
accepting comments on the "proposed," but already implemented,
(see below) BGS framework through July 31. Please join WWA in speaking up for
science-based protection of the BGS and other critical state-endangered and
threatened wildlife habitat, and against WDNR's
precedent-setting reinterpretation of Wisconsin's Endangered Species law.
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About the Butler's Gartersnake
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 The Butler's Gartersnake (Thamnophis
butleri) is a species that connects
wetlands and uplands during its life cycle. It reproduces and feeds in
open, moist grassy areas, such as meadows, wet prairies, marshes,
savannas, and grasslands. It can also live in open lots in suburban and
residential urban areas. It feeds primarily on earthworms, but also eats
leeches, salamanders and frogs. Its diet indicates why it frequents
wetlands, but it can also flourish in uplands that supply earthworms and
amphibians. Like other garter snakes, this snake hibernates both
independently and communally. Preferred hibernation sites are crayfish
burrows, root channels, abandoned small mammal burrows, voids in fill
areas and similar loose soils. The scientific literature indicates that
these hibernation sites can be found next to a wetland or in upland
areas.
The Butler's
Gartersnake is listed as a threatened species
in Wisconsin.
Its Wisconsin distribution is limited to Milwaukee,
Ozaukee, Washington,
Waukesha, and Racine Counties.
The greatest threat to Butler's
Gartersnake is development in its habitat. Loss
of critical wetland and upland overwintering
habitat and crucial foraging, basking and refuge areas in associated
upland habitat will all contribute to the ultimate demise of remaining
populations.
Note: The Wisconsin Threatened Species list
includes any species which appears likely, within the foreseeable future,
on the basis of scientific evidence to become "endangered."
Wisconsin's Endangered Species list includes species whose continued
existence as a viable component of this state's wild animals or wild
plants is determined by the WDNR a to be in jeopardy on the basis of
scientific evidence.
Click here for
more information about the state-threatened Butler's Gartersnake
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BGS Protection
- Then & Now
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 In 2004, a Butler's
Gartersnake (BGS) Conservation Strategy was
developed by the Wisconsin Department of Natural Resources (WDNR) in
partnership with a team of specialists with expertise in Butler's Gartersnake biology, landscape ecology and ecological
planning. The strategy was developed over a 16-month period and included
evaluation of the snake's biology and life history, analysis of known and
potential BGS sites, evaluation of population viability needs, field
surveys, and continuous stakeholder input.
A major
component of the original strategy was the development of a three-tiered
classification system that assessed existing and potential Butler's Gartersnake habitat throughout the snake's range and
established long-term conservation priorities for the snake. The
classification system was science-based and included voluntary and
required conservation measures designed to ensure the long-term survival
of the species. The tiers were based on patch size and habitat quality
with "Tier 3" sites designated as sites of significant
conservation value in need of more stringent conservation measures.
Originally
the stakeholder group determined that a minimum of 65 Tier 3 sites were
needed to ensure the long-term viability of the species, but that number
was revised, by consensus, to 40 sites in 2007. Throughout the strategy
and in all subsequent BGS Conservation Strategy communications, WDNR
emphasized that suitable BGS habitat includes wetlands and associated
upland habitat. Conditions associated with development in Tier 3 habitat
included mandatory protection of between 120' - 300' of suitable upland
habitat around wetland habitat, or, within-patch mitigation to restore
unsuitable upland habitat in exchange for the development of suitable
upland habitat (i.e., no net loss of suitable upland habitat). Tier 3
conditions also required periodic management and permanent preservation
of the protected habitat through a conservation easement. (Click here
to view the stakeholder approved BGS Site Classification Conservation
Measures).
In
spring 2008, without stakeholder input or public notice, WDNR revised and
implemented a new BGS framework. The revised framework eliminates the
three-tiered classification system and removes all requirements for the
protection of upland habitat associated with sites of significant
conservation value. Instead, the new framework focuses on
"avoidance," by requiring developers who choose to build within
300' of suitable BGS wetland habitat to either a) install exclusion
fencing around the wetland boundary before spring thaw, or b) install
exclusion fencing around the wetland boundary after spring thaw but
conduct snake removals in the upland areas prior to construction. After
these measures have been followed, construction in the upland habitat,
including outright destruction, can proceed.
This
framework ignores scientific and anecdotal evidence proving that BGS overwinter in wetlands and uplands. It also assumes
that fencing effectively prevents the movement of snakes between wetlands
and uplands (scientists agree that even carefully installed and
maintained fences don't eliminate wetland-upland migration), and that you
can allow the destruction of critical upland habitat without jeopardizing
the long-term survival of local populations. As a result, the new
framework will result in additional loss of Butler's Gartersnakes
and critical BGS habitat.
WDNR
has suggested that they will address habitat protection concerns via
conditions to be included in a Broad Incidental Take permit they plan to
draft and post for public comment later this summer; however developers
were invited to follow the new framework without any habitat protection
conditions several months ago. Meanwhile, in response to concerns by WWA,
the Wisconsin Wildlife Federation and several scientific advisors, WDNR has
decided to invite comment on this "proposed" new framework
through July 31, 2008 (see sidebar).
Click here to
review the new BGS regulatory framework (42kb pdf)
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WDNR
Voluntarily Revokes Authority to Protect Endangered Species Habitat
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 In recent
meetings and other communications, WDNR officials have asserted that the
changes to the BGS regulatory framework are necessary because Wisconsin's
Endangered Species law does not prohibit the destruction,
elimination, or modification of habitat. They claim to only have
enforcement or regulatory authority over an action that will result in a
direct "Take" of an endangered or threatened (E&T) species.
For wildlife, "Take" includes: shooting, shooting at,
pursuing, hunting, catching or killing any wild animal.
This
new interpretation is a reversal of long-standing state endangered
resources policy. While the destruction of habitat is not named in the
state's definition of "Take", the elimination of habitat that
results in mortality has historically, and should continue to be,
considered a "Take". The long-standing WDNR interpretation of
habitat destruction constituting a "Take" has not been
overturned by any court decision and has been strengthened by amendments
to the law.
More
importantly, the Incidental Take Permits of Wisconsin Endangered Species
Law (Section 29.604 (6m)) establishes WDNR's
obligation to protect critical habitat. It allows the issuance of
incidental "Take" permits only in cases where "the
taking will not appreciably reduce the likelihood of the survival or
recovery of the endangered species or threatened species within the
state, the whole plant−animal community
of which it is a part or the habitat that is critical to its existence."
The
science clearly shows that the "proposed" BGS framework will
lead to additional mortality through both direct "Take" (e.g.,
crushing snakes hibernating in upland habitat such as crayfish burrows),
and by eliminating the upland habitat the snakes rely on for food and
shelter in spring, summer and fall. Because warmth is crucial to
embryonic development, eliminating upland basking sites needed by
pregnant females will also reduce reproductive success. Furthermore, the
framework forces overcrowding in wetlands, which will lead to additional
mortality through increased competition for limited resources and
increased predation.
In sum,
though we oppose the changes in WDNR's
interpretation of Wisconsin's Endangered Species Law, we believe that the
"proposed" BGS framework violates even their narrow
interpretation of the law because it authorizes "Take" of the
BGS without requiring developers to obtain an incidental take permit and
submit a conservation plan for how they plan to minimize the impacts to
the species.
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Long-term
implications for wetlands and wetland-dependent species
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 The implications
of this issue extend far beyond the fate of the BGS. 33% of Wisconsin's state threatened and endangered animals
rely on wetlands for some portion of their lifecycle, so the
interpretation of Wisconsin's
endangered species law has major implications for wetland management and
protection.
Here's why: State and federal laws that
regulate direct destruction of wetlands (i.e., fill) do not restrict
construction activities outside the delineated wetland boundary. State
laws governing construction site erosion control sometimes require
minimum (10-75 foot) setbacks from the wetland boundary, but these
setback requirements are waived if the developer diverts water away from
that boundary. Even when setbacks are required, they typically do not
prescribe long-term management conditions for those buffers (e.g., no
mow, native plantings, easements, etc.). Therefore, the only potential
regulatory authority the state has to require protection of native upland
habitat critical to the health of a wetland complex is in cases where the
science concludes that protecting that habitat is also crucial to the
survival of a state protected wild animal on the site.
Until now, WDNR has exercised that
authority with the BGS, thereby reserving their right to take similar
steps to protect other at-risk species, as needed. If WDNR voluntarily
revokes this authority, they give away one of the last and most important
stopgaps available for protecting the diversity that integrated
wetland-upland complexes support, and preventing the loss of endangered
and threatened wildlife in Wisconsin.
Photo courtesy of Ohio Department of Natural Resources
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How You Can
Help
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WDNR's response to WWA's
concerns on these issues has been less than encouraging, so we would like
to generate additional comments prior to their July 31 deadline. You can
help protect the Butler's Gartersnake (BGS) and
other wetland-dependent endangered and threatened species by contacting
WDNR to let them know that you:
1. Oppose the proposed BGS regulatory
framework because it:
- Fails to consider generally accepted science
about the life-cycle and habitat requirements of the BGS. Point
out the ample evidence that BGS overwinter
in crayfish burrows, rotted tree root channels, loose fill, old
foundations and other upland habitats.
- Fails to ensure the long-term viability of the
remaining BGS populations.
- Allows "Take" of Butler's Gartersnakes
without the required permits and without the mitigation and
conservation measures that should be required as conditions of those
permits. Mitigation measures should include wetland buffers and
preservation and restoration of critical upland habitat to offset
impacted upland habitat.
2. Oppose WDNR's
new interpretation of the WI Endangered Species Act because it
unnecessarily removes habitat protections for all of Wisconsin's listed Endangered and
Threatened species.
3. Support the consideration of
alternative BGS regulatory frameworks that reduce WDNR workload and
improve regulatory flexibility while maintaining adequate protections to
ensure the long-term viability of the species.
4. Urge WDNR to proceed immediately
with the drafting and public notice of the Broad BGS Incidental Take
Permit so that the conditions needed to avoid and minimize
"Take" of additional snakes and additional critical BGS upland
habitat can be approved and implemented as soon as possible.
Any thoughts you would like to share
regarding WDNR's failure to engage the group of
already committed stakeholders in their policy development discussions
prior to the finalization and implement of the "proposed" BGS
regulatory framework would also help to improve the transparency of
future discussions on the protection of BGS and other at-risk species.
Send comments to:
Rori Paloski
WDNR Bureau of Endangered Resources
P.O. Box 7921
Madison, WI 53707-7921
Rori.Paloski@wisconsin.gov
Please copy WWA on your response.
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