FWS lists lesser prairie chicken as threatened species

The US Fish and Wildlife Service listed the lesser prairie chicken as a threatened species. While the Mar. 27 final rule fell short of the endangered status many environmental organizations sought, it also disappointed Midcontinent oil and gas producers and others involved in a five-state environmental impact mitigation effort to make any federal listing unnecessary.

The listing recognizes such efforts with an unprecedented use of a final special rule under Section 4(d) of the Endangered Species Act, FWS said.

It will let Kansas, Oklahoma, Texas, New Mexico, and Colorado to continue managing conservation efforts and avoid further federal regulation of oil and gas, utility line maintenance, and other activities under the Western Association of Fish and Wildlife Agencies’ (WAFWA) range-wide conservation plan, FWS said.

The special rule also establishes that conservation practices carried out through the US Department of Agriculture’s Natural Resources Conservation Service’s Lesser Prairie-Chicken Initiative and through ongoing normal agricultural practices on existing cultivated land that are all in compliance with the ESA and not subject to further regulation, it added.

“The lesser prairie chicken is in dire straits,” FWS Director Daniel M. Ashe said. “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.

Ashe said, “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.”

Oil, gas groups respond

Oil and gas associations in three of the states were disappointed initially with the listing. “We’re disappointed that we wound up with a threatened listing after so many enrolled in the range-wide plan,” Chad Warmington, president of the Midcontinent Oil & Gas Association of Oklahoma, told OGJ. “But it’s better than an endangered listing, although there are significant penalties.”

Meanwhile, New Mexico Oil & Gas Association Pres. Steve Henke said, “It’s yet to play out. It’s disappointing, particularly for New Mexicans who have been so proactive in attempting to manage habitat and helping to provide funding for monitoring and habitat acquisition in West Texas and New Mexico. [FWS] missed an opportunity to help the private sector take ownership of this issue and invest voluntarily in conservation measures.”

The real danger, even though it’s a threatened listing with a special rule that validates what states, oil and gas producers, and other stakeholders have been doing, is that it provides opportunities for the Center for Biological Diversity, Wildlife Advocates, and similar groups to mount fresh challenges, Henke told OGJ. “We haven’t been rewarded for our proactive efforts,” he said, adding, “It’s a step backward.”

The Kansas Independent Oil & Gas Association told FWS in 2013 that it did not believe listing the bird under the ESA was warranted, KIOGA Pres. Edward P. Cross said. “We questioned the science used to determine endangered species determinations, the lack of prudent economic impact analyses, and the need to reform the species listing process,” he told OGJ via e-mail.

Cross said KIOGA and its members also relayed their concerns to US House Natural Resources Committee Chairman Doc Hastings (R-Wash.) and other congressional energy policymakers as well as members of the Kansas delegation. It also supports WAFWA’s range-wide plan. “We now will continue to work and hope to see that the range wide plan can serve as a comprehensive framework and strategy to speed the eventual delisting of the LPC,” he said.

Drought impacts ignored

Oklahoma Independent Petroleum Association Regulatory Committee Chairman Kim Hatfield noted that while OIPA and the oil and gas industry as a whole have supported lesser prairie chicken conservation efforts, “the truth is declines in the population have very little relationship to oil and gas activity in western Oklahoma.” FWS found the bird’s population was cut in half from 2012 to 2013 because of severe drought, he said, adding that drought had similar impacts several times over the last century.

“It is unfortunate that Oklahomans will now shoulder a burdensome and expensive regulatory scheme due to a bird that has been impacted more by weather than industry activity,” Hatfield said.

Two days before FWS’s announcement, WAFWA said 32 oil and gas, power transmission, and wind energy companies committed to enroll more than 3.6 million acres in its LPC range-wide conservation plan, providing about $21 million for habitat conservation over 3 years.

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 Cheyenne, Wyo.-based association explained. It said 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, WAFWA’s 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.”

Oil and gas producers in the program include Apache Corp., COG Operating LLC, ConocoPhillips, Continental Resources Inc., Devon Energy Corp., EnerVest Operating LLC, Marathon Oil Corp., Mewbourne Oil Co., Occidental Oil & Gas Corp., Peregrine Petroleum Partners Ltd., Pioneer Natural Resources Co., QEP Resources Inc., and Samson Resources.

Congressional reactions

Republicans in the 113th Congress roundly criticized FWS’s action, while the few Democrats who commented were more conciliatory. “While better than an endangered listing, the Obama administration’s decision to list the lesser prairie chicken as threatened is purely political,” said US Sen. James N. Inhofe (R-Okla.), the Environment and Public Works Committee’s ranking minority member.

“Today’s decision, which has real-world consequences for Texas families, landowners, and businesses, is a missed opportunity to acknowledge Texans’ unprecedented conservation efforts,” Sen. John Cornyn (R-Tex.) said.

Sen. Jerry Moran (R-Kan.) said the listing would have real consequences on many sectors in communities across the state. “As conservation efforts are considered, producers deserve the flexibility to implement plans that fit their operations,” he maintained.

US House Republicans from Texas, Oklahoma, and Kansas also were critical. “The LPC was one of hundreds of species included in a settlement agreement between [DOI] and litigious 'environmental' organizations,” said Tim Huelskamp (Kan.). “The listing proves once again that ‘sue-and-settle’ is taking the place of sound science.”

Sen. Martin Heinrich (D-NM) said communities, oil and gas producers, and farmers and ranchers deserve credit for implementing voluntary habitat conservation measures, but the efforts came too late to reverse a rapid and severe LPC population decline. “I am pleased that [FWS] has recognized the work done through these voluntary agreements, which means that the landowners and developers who are participating will not be impacted by the listing with any additional regulatory requirements,” he said.

Sen. Tom Udall (D-NM) said he was relieved to see the federal agency’s decision supports such voluntary efforts. “[FWS] officials have assured me that even with this listing, anyone participating in a voluntary conservation agreement will be able to continue business as usual, and there is still time to sign up,” he said.

Governors’ reactions

Two of the five states’ governors also responded to FWS’s move. “This is an overreach on the part of the federal government, and I am concerned about the effect this designation will have on Kansans and the Kansas economy,” Sam Brownback (R) said. “We are looking at possible responses on this issue.”

But Oklahoma’s Mary Fallin (R) expressed optimism at the unprecedented option included in the decision that allows landowners and industry to receive protections from harming the species by enrolling in WAFWA’s Range-Wide Plan and taking steps to allow for conservation. “While I had asked [FWS] to not list the lesser prairie chicken under the ESA, due in large part to Oklahoma’s efforts to develop and implement the Range-Wide Plan, I believe we have a unique opportunity to show how a plan based in state management of this species can allow for a quick recovery,” she said.

“I appreciate the outstanding work of the Oklahoma Department of Wildlife Conservation to develop a new conservation model that keeps states in charge of managing species, like the [LPC], rather than the federal government taking over all management control,” Fallin continued.

She noted that with a large amount of voluntary conservation already taking place, “my administration will take all steps to continue to implement this plan and work with [FWS] to delist 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.”

Contact Nick Snow at nicks@pennwell.com.

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