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Lesser Prairie-Chicken 'Threatened;' Energy Interests Feel Likewise

The lesser prairie-chicken has been listed as "threatened" by the U.S. Fish and Wildlife Service (FWS), the agency said Thursday. The declaration comes with a rule intended to limit the impact of the listing on landowners and businesses, such as those in the oil and gas industry.

Under the Endangered Species Act (ESA), the "threatened" designation means a species is in danger of extinction "within the foreseeable future," FWS said. The category is one step below the "endangered" designation and allows for more flexibility in implementation of protections.

A special rule under section 4(d) of the ESA will allow the five range states -- Texas, New Mexico, Oklahoma, Kansas and Colorado -- 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, FWS said.

As of last Tuesday, the WAFWA range-wide plan for the lesser prairie-chicken had surpassed 3.6 million acres with nearly $21 million provided by industry participants for habitat conservation, WAFWA said. Participants include oil and gas companies, pipeline and electric transmission operators, and wind energy interests. Only participants benefit from the protections provided by the plan; however, it is still possible to enroll in the plan.

The range-wide conservation plan was developed by state wildlife agency experts last year with input from various stakeholders. The special rule establishes that conservation practices carried out through the U.S. Department of Agriculture's Natural Resources Conservation Service's Lesser Prairie-Chicken Initiative and through normal agricultural practices on existing cultivated land are all in compliance with the ESA and not subject to further regulation.

Companies enrolling in the WAFWA plan get regulatory assurances of a pathway to continue their operations and development in the affected region in the event of a species listing. The plan affects acreage in Colorado, Kansas, New Mexico, Oklahoma and Texas. The plan "represents more than a pathway to mitigate industry impacts," said WAFWA's Bill Van Pelt, grassland coordinator. "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."

The FWS 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, the agency said.

Once abundant across much of the five range states, the lesser prairie-chicken's historical range of native grasslands and prairies has been reduced by an estimated 84%. Last year, the range-wide population declined to a record low of 17,616 birds, an almost 50% reduction from the 2012 estimate. The states' conservation plan has a population goal of 67,000 birds range-wide.

"The lesser prairie-chicken is in dire straits," said U.S. Fish and Wildlife Service Director Dan 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. Working through the WAFWA range-wide conservation plan, 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."

However, pro-energy industry interests expressed dismay at the new designation for the lesser prairie-chicken. "We are especially disappointed..." said Ed Longanecker, president of the Texas Independent Producers & Royalty Owners Association. "This undoubtedly will affect independent oil and gas producers operating in the Lone Star State."

Texas Railroad Commissioner David Porter strongly criticized the listing of the bird. "It appears the federal agency has been influenced heavily by the environmentalist agenda, which has very little to do with preservation of this species and more with the eradication of the oil and gas industry," he said. "While the USFWS did include a special rule that will hopefully limit the regulatory impacts on oil and gas activity, I believe it still has the potential to be incredibly detrimental to energy production."

U.S. Sen. John Cornyn (R-TX) also criticized the listing. "Today's decision, which has real-world consequences for Texas families, landowners and businesses, is a missed opportunity to acknowledge Texans' unprecedented conservation efforts. I will continue to fight to reform this process so job creators and local officials have a say." Cornyn has introduced the Endangered Species Act (ESA) Settlement Reform Act, which is intended to give impacted local parties a say in the settlement of ESA litigation between interest groups and the FWS.

Oklahoma Gov. Mary Fallin said she had asked FWS not to list the bird as threatened. However, she expressed enthusiasm for the range-wide plan and its provisions.

"The potential impact of this listing without the range-wide plan could have resulted in damaging hits to our state's economy, particularly our energy and agriculture industries," Fallin said. "With a large amount of conservation already taking place, my administration will take all steps to continue to implement this plan and work with the service to de-list this species as soon as possible. I am very excited to see industry and the states continue to work together on conserving this bird with our jointly developed conservation strategies."

At least one environmental group was not as optimistic.

"...The final designation of 'threatened' rather than 'endangered' creates an exemption allowing continued oil and gas drilling and other destructive activities in exchange for promised action under voluntary conservation plans that are virtually unenforceable," the Center for Biological Diversity said.

"The lesser prairie chicken is endangered, period," said Erik Molvar, wildlife biologist with WildEarth Guardians. "Yet instead of protecting the bird from serious threats, the Service exempts anyone who signs on to entirely voluntary state or local conservation plans, undermining the very purpose of protecting imperiled species under the Endangered Species Act."

Steve Henke, president of the New Mexico Oil & Gas Association, told NGI he is disappointed the bird was listed in light of all that his association, industry and other groups have done to protect its habitat. The listing will invite more fighting with the environmental community, he said.

"Even though they passed the 4(d) rule, in my experience and opinion, the fact that it's listed provides additional opportunity for the radical environmental groups to challenge the validity of the range-wide plan, the pace of implementation, the effort that's going into it. In all likelihood it will cause additional litigation and confrontation over use of landscape."

FWS was under a court-ordered deadline to make a listing determination on the species by March 31. The final rule to list the species as threatened and the final special rule will be effective 30 days after their publication in the Federal Register.

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