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”) based, in part, on potential threats from wind energy development and transmission infrastructure. 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.
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 found habitat loss and fragmentation 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.
With respect to wind development, the USFWS observed high interest in wind development existed within the lesser prairie-chicken range. Further, the USFWS forecasted intermediate and high levels of wind energy development in the Northern DPS and, particularly, the Mixed-Grass and Short-Grass/CRP Ecoregions over the next 25 years. The USFWS also note that new transmission lines often accompany wind energy projects.
The USFWS observed that few peer-reviewed studies exist “that measure cause and effect relationships with regard to wind energy development impacts on grouse species” and that available studies yielded mixed results. The USFWS, however, cited some studies indicating that wind turbines indirectly impact lesser prairie-chicken for a mile or more beyond a turbine itself. The USFWS also cited potential noise impacts from wind turbines on the lesser prairie-chicken. In its Species Status Assessment, however, the USFWS noted that a recent report to the American Wind and Wildlife Institute found no displacement of lesser prairie-chicken and no negative effects on nest survival in response to wind energy development. The USFWS appeared to limit these findings by observing that the study occurred in areas with significant levels of existing habitat fragmentation.
For wind energy developers, no difference would exist between the endangered listing of the Southern DPS and threatened listing of the Northern DPS, if finalized. 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 is developing a habitat conservation plan (HCP) for wind and solar energy, power lines, and communication towers. If the HCP is finalized, the associated section 10 permit would authorize incidental take of lesser prairie-chicken for qualified activities that implement the HCP’s measures to minimize and mitigate the impacts of taking. The USFWS accepted comment on the draft HCP this spring.
In addition to the HCP, the USFWS is considering an approach that would exempt certain wind energy activities and transmission infrastructure from the prohibition on incidental take. The USFWS is seeking comment on whether its proposed 4(d) rule should include an exemption for participants in a Range-wide Conservation Plan prepared by the Western Association of Fish and Wildlife Service Agencies.
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.