U.S. Fish and Wildlife Service Proposes to List Distinct Population Segments of the Lesser Prairie-Chicken as Threatened and Endangered, Citing Threats from Conventional and Renewable Energy Development

June 1, 2021

On June 1, 2021, the U.S. Fish and Wildlife Service (USFWS) published a rule proposing to list distinct population segments of the lesser prairie-chicken as threatened and endangered under the Endangered Species Act (ESA) (“Proposed Rule”). USFWS is accepting comments on the Proposed Rule until August 2, 2021.

In the Proposed Rule, the USFWS proposes different listing statuses for lesser prairie-chicken populations in different geographic regions. 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. The species’ range notably includes the Permian and Delaware Basins of Texas and New Mexico.

In the Proposed 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 proposed to list the Southern DPS as endangered and the Northern DPS as threatened under the ESA.

The USFWS considered the five factors identified in the ESA to reach its listing proposal:

  • (A) The present or threatened destruction, modification, or curtailment of its habitat or range;
  • (B) Overutilization for commercial, recreational, scientific, or educational purposes;
  • (C) Disease or predation;
  • (D) The inadequacy of existing regulatory mechanisms; or
  • (E) Other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1).

The USFWS found habitat loss and fragmentation under factor (A) to be the primary threat to the species in both the Northern and Southern DPS. The USFWS attributed the cause of habitat loss and fragmentation to cropland conversion, oil and gas development, wind energy development, transmission, associated infrastructure (such as roads and powerlines), and woody vegetation encroachment. Although the USFWS recognized the existence of conservation measures and regulatory mechanisms that benefit the species, the USFWS found that they “will not be enough to offset the impacts of habitat loss and fragmentation” and do not address the species’ “long-term population needs.” The USFWS detailed its basis for its listing proposal in a Species Status Assessment Report.

For many land users, no difference would exist between the endangered listing of the Southern DPS and threatened listing of the Northern DPS, if finalized as proposed. Rather, the USFWS’s proposal to list the Southern DPS as endangered and the Northern DPS as threatened would carry the same the restrictions – most notably, the prohibition on take and incidental take of the lesser prairie-chicken. However, in the Southern DPS, the USFWS has proposed to exempt a handful of activities from the prohibition on incidental take pursuant to section 4(d) of the ESA, including certain agricultural practices on existing cultivated lands and prescribed fire for the purposes of grassland management.

The USFWS’s recent listing proposal marks a departure from its prior management of the species. In 2014, the USFWS listed the lesser prairie-chicken as threatened throughout its entire range and did not find DPSs among ecoregions. The U.S. District Court for the Western District of Texas later vacated the USFWS’s 2014 listing decision. See Permian Basin Petroleum Ass’n v. Dep’t of the Interior, 127 F. Supp. 3d 700 (W.D. Tex. 2015).

With the 2014 listing, the USFWS also promulgated a rule under section 4(d) of the ESA that exempted from the prohibition on incidental take activities conducted in accordance with the Range-Wide Conservation Plan for the Lesser Prairie-Chicken administered by the Western Association of Fish and Wildlife Agencies (WAFWA). The Proposed Rule does not include similar exemptions from incidental take as the 2014 4(d) rule. However, the USFWS is seeking comment on whether its 4(d) rule should include a similar exemption for participants who are enrolled in and operating in compliance with the WAFWA Range-wide Conservation Plan but who do not have incidental take coverage via the companion Candidate Conservation Agreement with Assurances.

The USFWS has not proposed to designate critical habitat, finding that critical habitat is not determinable because the USFWS lacks information sufficient to perform the required analysis of the impacts of a critical habitat designation.

The ESA directs the USFWS to issue a final listing rule, or to withdraw the listing rule, by June 1, 2022, unless the USFWS extends this period by six months because of “substantial disagreement regarding the sufficiency or accuracy” of data related to the listing proposal. The USFWS is accepting comment on the Proposed Rule through August 2, 2021.

If you have any questions, please contact Katie Schroder.

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