The U.S. Fish and Wildlife Service (USFWS) has released a final rule listing distinct population segments of the lesser prairie-chicken as threatened and endangered under the Endangered Species Act (ESA) (“Listing Rule”) based, in part, on threats from conventional and renewable energy development. The Listing Rule will become effective on or about January 25, 2023, which is 60 days after the Listing Rule is published in the Federal Register.
The USFWS listed the lesser prairie-chicken as endangered in New Mexico and west Texas. The USFWS listed the lesser prairie-chicken as threatened in the remainder of its range.
More precisely, the lesser prairie-chicken exists in the Texas Panhandle, eastern New Mexico, western Oklahoma, western Kansas, and southeastern Colorado. In these areas, lesser prairie-chicken populations exist in four distinct ecoregions: (1) a Shinnery Oak Ecoregion in New Mexico and Texas; (2) a Mixed-Grass Ecoregion of Oklahoma, Kansas, and Texas; (3) a Short Grass/Conservation Reserve Program (CRP) Ecoregion in Kansas and Colorado; and (4) a Sand Sagebrush Ecoregion in Colorado, Oklahoma, and Kansas.
In the Listing Rule, the USFWS applied its Distinct Population Segment policy, 61 Fed. Reg. 4722 (Feb. 7, 1996), and found that the lesser prairie-chicken population in the Shinnery Oak Ecoregion qualifies as a DPS (“Southern DPS”) and that the population in the three northern ecoregions qualifies as a separate DPS (“Northern DPS”). The USWFS then listed the Southern DPS as endangered and the Northern DPS as threatened.
Notably, the USFWS did not designate, and has not proposed to designate, critical habitat. The USFWS found that critical habitat presently is not determinable because the USFWS lacks information sufficient to perform the required analysis of the impacts of a critical habitat designation.
For energy developers and most other land users, no difference exists between the endangered listing of the Southern DPS and threatened listing of the Northern DPS. The USFWS’s listing of the Southern DPS as endangered and the Northern DPS as threatened carry the same the restrictions – most notably, the prohibition on take and incidental take of the lesser prairie-chicken. Although the USFWS has proposed to exempt a handful of activities in the Northern DPS from the prohibition on incidental take pursuant to section 4(d) of the ESA, these activities mainly relate to agricultural practices and prescribed fire.
Because incidental take of LPC resulting from conventional and renewable energy development will be prohibited once the Listing Rule takes effect, an energy developer must obtain a permit under section 10 of the ESA to engage in activities that incidentally take an LPC. Several permits are available to conventional and renewable energy developers:
- The USFWS has developed conservation plans, known as Candidate Conservation Agreements with Assurances (CCAAs), that authorize incidental take from oil and gas activities by operators who enrolled in the plans prior to the listing of the lesser prairie-chicken.
- The USFWS has finalized a habitat conservation plan (HCP) and issued a section 10 permit for oil and gas upstream and midstream activities. The section 10 permit associated with this HCP authorizes incidental take of lesser prairie-chicken by parties who execute a certificate of inclusion with the permit holder and commit to conservation measures as provided in the HCP. The HCP and related materials are available here. Unlike the oil and gas CCAAs, parties may enroll in the HCP after the USFWS’s listing decision takes effect.
- The USFWS has finalized an HCP and issued a section 10 permit for wind and solar energy, power lines, and communication towers. Like the oil and gas section 10 permit and HCP, the section 10 permit associated with this HCP authorizes incidental take of lesser prairie-chicken by parties who execute a certificate of inclusion with the permit holder and commit to conservation measures as provided in the HCP. The HCP and related materials are available here. Parties may enroll in the HCP after the USFWS’s listing decision takes effect.
Energy developers operating in a lesser prairie-chicken ecoregion should evaluate the risk that their activities will result in incidental take of lesser prairie-chicken and evaluate whether to enroll in an HCP.
Additionally, energy developers that will require a new federal permit or right-of-way should anticipate a longer permitting process, particularly in New Mexico where the United States holds a considerable amount of surface and mineral estate. Before a federal agency such as the Bureau of Land Management (BLM) may approve a permit or grant a right-of-way that may affect the lesser prairie-chicken, it must consult with the USFWS under section 7 of the ESA. The duration and complexity of this consultation depends on the potential impacts to the lesser prairie-chicken resulting from the federal approval or grant. Notably, delays may be reduced for land users enrolled in the Candidate Conservation Agreement (CCA) between the USFWS and BLM in New Mexico because the agencies have already engaged in some consultation under section 7 of the ESA over activities covered by the CCA.
If you have questions about the impact of the listing of the lesser prairie-chicken on your permits or operations, please contact Katie Schroder.