Last week Kansas Governor Sam Brownback added his state to a federal lawsuit against the U.S. Fish and Wildlife Service (USFWS) over listing the lesser prairie chicken as a threatened species.
In response to what the agency considers “a rapid and severe decline of the lesser prairie-chicken,” USFWS announced the final listing of the species as threatened under the Endangered Species Act (ESA). The agency did however add a final special rule that will limit regulatory impacts on landowners and businesses from the listing. Under the law, a “threatened” listing means the species is likely to become in danger of extinction within the foreseeable future; it is a step below “endangered” under the ESA and allows for more flexibility in how the act’s protections are implemented.
The lesser prairie chicken is found in Kansas, Oklahoma, Colorado, New Mexico and Texas. The Fish and Wildlife Service said it would grant these states special exemptions from the listing to proceed with an already-planned five-state conservation plan.
Oklahoma filed the original federal lawsuit challenging the agency’s process in considering the listing. The two states are suing despite USFWS exemption.
“The federal government made this decision despite concerns raised by the states directly affected by this decision,” Brownback said.
“This is an overreach by the federal government and is another example of the Obama Administration aggressively and unnecessarily intruding into our daily lives.”
Kansas officials said they do not yet know what additional federal regulations might be imposed by the designation of the birds as threatened.
Kansas is also looking at another possible management decision on species within the state.
Kansas’ Senate passed SB 276, which declares “state sovereignty over non-migratory wildlife,” which would prohibit the federal government from regulating species like the lesser prairie chicken.
The bill has opened debate on whether or not the federal government would even accept it. The House has not acted on the bill.
According to USFWS numbers, there are about 17,616 lesser prairie chickens spread populating the five states. The birds’ numbers have dropped dramatically—84 percent in the past 15 years and 50 percent in the last year alone—creating what USFWS believes is a necessity for the listing.
Brownback told reporters that the federal government should have let Kansas and other states proceed with their conservation plans and should not have designated the species as threatened. While threatened is not as serious as endangered, Brownback said the restrictions that come with the listing would have a substantial negative impact on the state’s industries, specifically agriculture, oil and wind energy.
In its announcement of the threatened species designation, the Fish and Wildlife Service said it would “allow the five range states to continue to manage conservation efforts for the species and avoid further regulation of activities such as oil and gas development and utility line maintenance that are covered under the … range-wide conservation plan.”
While the regulations have yet to be revealed, the states’ concerns remain.
“We haven’t seen the final rule yet. … But it’s our anticipation that this will result in enhanced intrusion into the operations of agricultural landowners and energy,” Brant Laue, chief counsel for the governor’s office said.
U.S. Fish and Wildlife Service Director Dan Ashe said in a statement that the agency had no intention of adding new regulations.
“The states remain in the driver’s seat for managing the species—more than has ever been done before—and participating landowners and developers are not impacted with additional regulatory requirements,” Ashe said.
USFWS did praise the ongoing conservation efforts in their release.
“In recognition of the significant and ongoing efforts of states and landowners to conserve the lesser prairiechicken, this unprecedented use of a special 4(d) rule will allow the five range states to continue to manage conservation efforts for the species and avoid further regulation of activities such as oil and gas development and utility line maintenance that are covered under the Western Association of Fish and Wildlife Agencies’ (WAFWA) range-wide conservation plan.”
This conservation plan was developed by state wildlife agency experts in 2013 with input from a wide variety of stakeholders. The special rule also establishes that conservation practices carried out through the USDA’s Natural Resources Conservation Service’s Lesser Prairie-Chicken Initiative and through ongoing normal agricultural practices on existing cultivated land are all in compliance with the ESA and not subject to further regulation.
“The lesser prairie-chicken is in dire straits,” said Ashe. “Our determination that it warrants listing as a threatened species with a special rule acknowledges the unprecedented partnership efforts and leadership of the five range states for management of the species.”
USFWS has considered the lesser prairie-chicken, a species of prairie grouse commonly recognized for its colorful spring mating display and stout build, to be a species in trouble for the past 15 years. Its population is in rapid decline, due largely to habitat loss and fragmentation and the ongoing drought in the southern Great Plains.
“To date, we understand that oil and gas companies, ranchers and other landowners have signed up over 3 million acres of land for participation in the states’ range-wide conservation plan and the NRCS’ Lesser Prairie Chicken Initiative,” said Ashe. “We expect these plans to work for business, landowners and the conservation of prairie-chickens.”
In addition to the rangewide conservation plan and the Lesser Prairie Chicken Initiative, a number of other on-the-ground programs have been implemented over the last decade across the bird’s five-state range to conserve and restore its habitat and improve its status. Key programs such as the USDA’s Farm Service Agency’s Conservation Reserve Program, the Bureau of Land Management’s New Mexico Candidate Conservation Agreement, the Service’s Partners for Fish and Wildlife Program and Candidate Conservation Agreements with Assurances in Oklahoma, Texas and New Mexico, are engaging state and federal agencies, landowners and industry in these efforts.
Collectively, these programs—and in particular, the range-wide conservation plan—serve as a comprehensive framework within which conservation of the lesser prairie-chicken can be achieved. The various efforts are similar to a recovery plan, something that the USFWS normally prepares after a species’ listing. This early identification of a strategy to conserve the lesser prairie-chicken is likely to speed its eventual delisting.
However, threats impacting the species remain and are expected to continue into the future, USFWS said. After reviewing the best available science and on-theground conservation efforts focused on the species, US- FWS determined that the lesser prairie-chicken is likely to become endangered in the foreseeable future and warrants listing as threatened under the ESA. The agency was under a courtordered deadline to make a listing determination on the species by March 31.
The final rule to list the lesser prairie-chicken as threatened and the final special rule will publish in the Federal Register and will be effective 30 days after publication. Copies of the final rules may be found at the USFWS website at http:// www.fws.gov/southwest.com
A conservation plan developed by the Western Association of Fish and Wildlife Agencies (WAFWA), and adopted by the five states, has a goal of increasing the population to 67,000 birds.
Oil and gas companies, ranchers and other landowners have pledged to devote more than 3 million acres in the five states toward conserving the bird’s habitat. Most of the acreage was set aside in the aim to prevent the bird from being given federal protection as a threatened species.
Thirty-two private companies in five states representing oil and gas, pipelines, electric transmission and wind energy have committed to enroll more than 3.6 million acres in the Lesser Prairie-Chicken Range-wide Conservation Plan, providing about $21 million for habitat conservation over three years.
Enrolling companies get regulatory assurances through a special USFWS rule or a Candidate Conservation Agreements with Assurances (CCAA) permit, so that if the species is listed the companies have a pathway to continue operations and development in the region. The companies agree to pay modest enrollment fees, follow a list of guidelines to minimize impacts on the bird, and agree to pay for impacts they cannot avoid. The money goes to farmers, ranchers and landowners to protect and restore habitat for the bird.
“The range-wide plan represents more than a pathway to mitigate industry impacts,” said Bill Van Pelt, Grassland Coordinator with WAFWA.
“It also serves as a way to unify all existing lesser prairie-chicken programs under a common set of goals to conserve the species. Each of those programs has been successful in its own right.”
Van Pelt said those related efforts include the Conservation Reserve Program managed by the US- DA Farm Service Agency (about 3.4 million acres across the bird’s range), Working Lands for Wildlife Program and Lesser Prairie- Chicken Initiative managed by the USDA Natural Resources Conservation Service (about 800,000 acres), the New Mexico Candidate Conservation Agreements and CCAA managed by the Center of Excellence for Hazardous Materials Man agement (about 1.5 million acres of industry enrollment and 1.75 million acres of ranching enrollment), and farming/ranching CCAAs in Oklahoma and Texas (about 820,000 acres). — Traci Eatherton, WLJ Editor