The Red-cockaded Woodpecker:
Federal Protection and Habitat Conservation Plans

Robert J. Noecker
Analyst in Natural Resources Policy
Environment and Natural Resources Policy Division

M. Lynne Corn
Specialist in Natural Resources Policy
Environment and Natural Resources Policy Division

Updated July 22, 1997

97-707 ENR

Summary

Red-cockaded woodpeckers (RCWs) are federally listed as an endangered species. Cases of direct conflict between RCW preservation and human activity have drawn media attention, and have pro~ some groups to suggest that RCWs are the "Spotted Owls of the South". Current controversy centers on the use of Habitat Conservation Plans (HCPs) as a means of inviting private landowners to participate in recovery efforts without fear of facing an increased regulatory burden. In spite of the increasing popularity of HCPs, many scientists challenge the effectiveness of conservation strategies used in the plans, and question their ability to adequately provide for endangered species recovery. The intensity of debates over RCWs and other species has elevated this issue to the forefront of on-going efforts to reauthorize the Endangered Species Act (ESA), where it may serve as a bad example or an appropriate guide to amendments of the Act.

Scientific Name: Picoides borealis

Historic Range: RCWs occurred from eastern Texas and Oklahoma, to Florida, and north to New Jersey.

Current Range: RCWs are scattered throughout 12 southeastern states (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, and Virginia), nearly their entire historic range.

Habitat: Open southern pine forest. "Old-growth" trees, typically between 60 and 250 years old, are used for nesting, with mature longleaf pine preferred. Foraging can occur in second-growth pine forests.

Population Trends: The U.S Fish and Wildlife Service (FWS) reported a total of 4,694 active RCW clusters (i.e. family units) in 1994: 3,341 on federal land, 384 on state land, and 969 on private land. RCW populations on private lands are generally small and geographically isolated from the larger, more stable populations on government lands. Notable among the problems faced by these isolated groups is inbreeding depression, which may reduce their genetic resiliency to predation, disease, Storms, and other chance events. In 1985, FWS estimated that less than 20% of large RCW populations were of sufficient size to persist over the long term. Currently, RCW populations are increasing in a number of southern forests.

Legal Status (Federal): Endangered. Declared October 13, 1970 (35 Federal Register 16047).

Affected Federal Agencies: EWS and National Park Service (Department of the interior); Forest Service (USFS, Department of Agriculture); Army, Navy, Air Force, and Marine Corps (Department of Defense).

Major Threats: Loss and fragmentation of nesting habitat.

Controversy: Habitat loss has reduced the range of RCWs primarily to federal lands. Although the government lands comprise only approximately 6% of southern forested lands, 80% of the recovery efforts for this species are concentrated on Forest Service land, with much of the rest occurring on military bases. A primary focus of these efforts is identifying and managing RCW habitat areas large enough to avoid the adverse effects of habitat fragmentation, including the increased risks faced as a result of small population size. Management practices include prescribed burning to limit hardwood undergrowth, constructing artificial nesting cavities, adjusting timber harvest practices to preserve older trees, and translocating juveniles to create potential breeding pairs. These management practices have played a critical role in recovering RCW populations devastated by hurricanes. Francis Marion National Forest in South Carolina, for example, lost 87% of RCW cavity trees and 63% of the woodpeckers during Hurricane Hugo in September 1989. Artificial nesting cavities have allowed RCW populations to approach pre-storm levels. Controversy over RCW management on federal lands continues, although the issues are less heated than recent conflicts over restrictions of private land use and general recovery of RCWs.

Past population estimates on both public and private lands have been controversial. Total population estimates, using clusters or individual birds, may imply population health and stability. However, small, widely separated groups of birds tend to be less resilient. if these small groups are lost, the chances of long-term species survival decrease (all else being equal). Regardless of the number of RCWs in a group, each group consists of only one breeding pair, with other group members assisting in rearing the young. Counts based on number of cavities may also be inaccurate because roosting/nesting cavities remain after a site is no longer occupied.

Experts debate whether RCWs can survive in a multiple-use forest that includes development and logging activities. The woodpeckers prefer to nest in open pine stands, which historically resulted from frequent periodic fires that cleared the midstory of sapling hardwood species. Some studies have indicated that forest management techniques providing periodic controlled burns could improve RCW survival, without a cessation of timber harvesting. Recent evidence suggests that RCWs can forage in second-growth forest as long as adequate old-growth trees are available for nesting. Management techniques which lengthen the harvesting cycle, or leave some mature pines uncut to provide seeds and shelter for the next generation appear compatible with RCW habitat requirements.

Habitat Conservation Plans: Much of the recent controversy surrounding RCWs has focused on the development and implementation of Habitat Conservation Plans (HCPs). These plans are a step that private landowners are required to take in order to secure an incidental take(1) permit for non-federal activities under § 10 of the ESA. Several of these woodpecker HCPs include new policy initiatives that have been both praised and criticized.

An innovative plan for RCW recovery was recently implemented in North Carolina. Known as "Safe Harbor," the North Carolina Sandhills Habitat Conservation Plan differs from previous HCPs in encouraging private landowners to improve habitat to attract endangered species. In return, plan participants are given "ironclad" assurances, for an agreed time period, that they will not be subject to any added legal liability under ESA for newly attracted RCWs. Landowners will, however, be required to maintain baseline RCW population levels that were previously present. At any time during the period of the conservation agreement, landowners may use this habitat for other purposes, including development, provided that they contact FWS prior to development to allow relocation of RCWs (62 Federal Register 32178). According to FWS, similar agreements are currently being developed for the Pineywoods Region of eastern Texas, private timberland in Arkasas, and in several other states, with time periods ranging from 10 to 100 years.

FWS has also recently proposed a 'No Surprises" rule as permanent ESA policy (62 Federal Register 29091). This policy would assure landowners who have an HCP that no additional land use restrictions or financial commitment would be required even if unforeseen circumstances arose that demanded greater protection than the level agreed to in the plan. If mitigation beyond that specified in the HCP were necessary, the federal government would compensate the landowner for any additional expenses. The major concerns over this policy are twofold. First, unless the agreements allow an ample margin of safety, unforeseen circumstances (e.g., a hurricane in the case of RCWs) could be fairly likely. Second, if major funding for necessary modifications is not provided, the result may be inadequate species protection.

Landowners have generally supported Safe Harbor and No Surprises agreements, though some conservationists argue that the improved habitat may merely draw in woodpeckers from more marginal habitats. If these habitats are adversely modified during the birds' absence, then the end of the agreement could leave excess birds with no suitable habitat for expansion.

Lawsuits: In an out-of-court settlement on March22, 1993, two civilian employees of the U.S. Army were put under probation for 1 year and fined $1,500 each for conspiring to conceal the presence of occupied RCW habitat on the Fort Benning, Georgia military reservation in order to allow and promote commercial timber harvests in a manner that violated the ESA.

On June 21, 1993, the U.S. Court of Appeals, Eleventh Circuit ruled that a timber company and industry trade association lacked standing to bring claims under the National Environmental Policy Act, the National Forest Management Act, and ESA challenging USFS actions to protect RCWs in its Southern Region.

On October 20, 1995, the U.S. Court of Appeals, Fifth Circuit, vacated a District court ruling that denied a USFS motion seeking approval of Interim Guidelines for the management of RCWs on national forest land. (The motion would allow a resumption of timber harvesting.) The case was remanded to the District court to review the Interim Guidelines. An injunction barring even-aged timber management (such as clearcutting) on national forest land is based on a June 17, 1988 ruling that USFS management techniques violated §§ 7 and 9 of the ESA. The injunction remains in effect, pending the District court review.

Upcoming Events or Deadlines:

· The proposed "No Surprises" rule and supplementary background information was published in the Federal Register on May 29, 1997: 29091. Comments are due by July28, 1997.

· The proposed "Safe Harbor" rule and supplementary background information was published in the Federal Register on June 12, 1997: 32189. Comments are due by August 11, 1997.

· The RCW Recovery Plan is being updated by FWS, with completion expected by July 1998.

Endnotes

1. Section 3(18) of the ESA defines the term "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Section 10(a)(l)(B) defines incidental taking as "any taking otherwise prohibited by § 9(a)(l)(B) if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."