Plan to Protect Lesser Prairie Chicken Pits Oil and Gas Industry Against Conservationists

lesser prairie chicken
The U.S. Fish and Wildlife Service is considering a proposal to add the lesser prairie chicken to the list of threatened and endangered species. / Greg Kramos, USFWS

The U.S. Fish and Wildlife Service announced Wednesday a proposal to add the lesser prairie chicken, a ground-based prairie dwelling bird native to southeastern Colorado, to the list of threatened and endangered species. In its second effort to protect the species the agency said it intends to treat the population in southeastern Colorado’s Baca, Kiowa and Prowers counties, southeastern and south-central Kansas, western Oklahoma and the northeastern panhandle of Texas as threatened, while another population native to eastern New Mexico and southwest Texas would be deemed endangered.

“The loss of America’s native grasslands and prairies of the southern Great Plains has resulted in steep declines for the lesser prairie-chicken and other grassland birds,” said Amy Lueders, Southwest Region director for the agency. “For more than two decades, the Service has supported and encouraged our partners’ voluntary efforts to conserve the lesser prairie-chicken. Together, we have made great strides in conserving key habitat and raising awareness about threats to the lesser prairie-chicken, but we still have much work to do to ensure we have viable lesser prairie-chicken populations.”

Previously listed in 2014 as threatened, the Fish and Wildlife Service was sent back to the drawing board in September 2015 when a federal judge in Texas ruled in a lawsuit filed by an oil industry trade group and four New Mexico counties that the listing should be vacated. The lesser prairie chicken was removed from the list of threatened and endangered species in July 2016, and the Trump administration declined to consider another effort to list the species, despite a November 2016 finding that doing so may be warranted. That, in turn, led to a June 2019 lawsuit challenging the agency’s failure to act and a September 2019 settlement that required the agency to decide whether to propose listing by yesterday’s deadline. 

“We’re thrilled to see these magnificent dancing birds finally getting the strong Endangered Species Act protection they need to survive,” said Michael Robinson, a senior conservation advocate with the Center for Biological Diversity in Silver City, New Mexico. “The lesser prairie chicken has to deal with drilling rigs, pipelines and the deadly heat waves that our burning all that oil and gas brings about. These safeguards are coming not a moment too soon.” The center’s predecessor organization, the Boulder-based Biodiversity Legal Foundation, had first sought listing of the lesser prairie chicken in 1995. The Fish and Wildlife Service determined in June 1998 that listing of the bird was precluded by the needs of higher priority candidate species.

Once numbering in the millions, at least one study has shown the bird’s range has declined by more than 90% since the late 1800s or early 1900s. Now, Fish and Wildlife Service Mountain-Prairie Region director Noreen Walsh said, the grouses number only about 27,000 across their province. The loss of the species’ habitat has occurred as human activities on the Great Plains have led to a decimation of the natural grasslands. According to one 2004 study, about 70% of that biome is gone. “Lesser prairie chickens have been losing habitat for over a century now,” Robinson said. “They were once found in a continuous range throughout the southern Great Plains. Now their populations are fragmented.” 

The cause of habitat disruption has been, according to a 2008 status report published by WildEarth Guardians, “livestock grazing, agriculture, oil and gas extraction, herbicide use, fences, utility corridors, roads, mining, wind energy production, unnatural fire and fire suppression.” All of these activities can cause the loss of tall grass that shields the avians from mammalian predators. Where tall structures on the flat plains are installed, lesser prairie chickens are exposed to birds of prey who may occupy them, a possibility that is thought to trigger an instinctive retreat from such structures by the terrestrial birds. “These are ground-dwelling, relatively large birds and [they] can be fairly conspicuous on the landscape,” Robinson said. “They require grass in order to hide from terrestrial predators, but avian predators are a different matter and a hawk or an eagle can look down on lesser prairie chickens.”

The proposal to list the northern distinct population segment of lesser prairie chickens as a threatened species includes a suggestion that the Fish and Wildlife Service adopt a regulation under the ESA that would exempt certain activities from liability for killing of individual birds. Section 4(d) rules, named for the section of the ESA that authorizes them, “can authorize activities with minor or even beneficial effects on species recovery, without the need for federal wildlife agencies to expend resources reviewing and issuing permits for those activities” and  “improve support for the law among the regulated community and their representatives in Congress” by easing ESA compliance, according to a 2017 Defenders of Wildlife report. But they can also “impede species recovery if they lack proper safeguards, especially if they cover high-impact land uses.” The Fish and Wildlife Service proposes to include in the 4(d) rule for T. pallidicinctus exemptions from the ESA prohibition against killing a listed species for “continuation of routine agricultural practices” on existing cultivated lands and “implementation of prescribed fire” management programs, according to an agency press release.

Oil industry trade organizations based in the range of the southern distinct population segment of lesser prairie chicken condemned the Fish and Wildlife Service’s announcement, arguing that  a conservation agreement that does not include land use mandates deserves more time. “The proposal to list the lesser prairie-chicken discards years of valuable progress with voluntary programs that have proven to be successful in conserving the species across southeastern New Mexico,” said the New Mexico Oil and Gas Association in a statement, which also lamented the investment by energy companies of “significant resources … to protect the species and avoid habitat disruption.” Ben Shepperd, president of the Permian Basin Petroleum Association, lamented in a Wednesday statement to the Midland Reporter-Telegram the lost expenditures by operators if the listing is finalized. “There are well over 100 companies enrolled in a Candidate Conservation Agreement with Assurances, five million acres enrolled and over $60 million spent on conservation, primarily from oil and gas,” said. Shepherd was referring to a 2014 agreement between the Fish and Wildlife Service, the Western Association of Fish and Wildlife Agencies, and property owners in T. pallidicinctus’ range. 

Jason Rylander, senior Endangered Species Act counsel at Defenders of Wildlife, said the oil industry’s criticism is not well-founded. Voluntary conservation plans are “generally not a substitute for listing,” he said. “What these types of conservation agreements should do is jump start the recovery process. They can be converted, if they’re working, into habitat conservation plans after the species is listed.” In any case, voluntary oil and gas industry efforts to preserve the lesser prairie chicken’s habitat appear to have had, at best, mixed success in achieving that goal. They are disadvantaged by the bird’s tendency to avoid structures in its range, an instinct documented in at least two studies that have shown lek abandonment by prairie grouses when exploration and extraction infrastructure are constructed in their habitat. Construction of such facilities has been common in the lesser prairie chicken’s range. According to a 2014 EcoWatch report, “the Prairie-Chicken’s historic range is home to 58,152 wells, while its current extent contains 22,049 wells.” That number is likely to have risen in recent years, considering the boom in production that has occurred in the Permian Basin and the continued spread of hydrofracking as a means of accessing natural gas. 

The second problem is that the 2014 Candidate Conservation Agreement may not have effectively provided for enough habitat preservation even if the lesser prairie chicken’s preservation instincts are taken into account. “The bird is still declining and its habitat is continuing to be lost and fragmented,” Rylander said. “There’s just no question that those measures are not doing enough.” Rylander explained that the species’ low census is a clear warning of the agreement’s ineffectiveness. “The Fish and Wildlife Service is now estimating that populations of the entire species at roughly 27,000 over a five-year average and fewer than 5,000 in what they’re calling the southern population segment,” he said. “For a species that can fluctuate widely, depending on climatic events and drought, it’s very close to blinking out in a major portion of its range.” 

The third problem is that the conservation agreement’s administration has been chaotic. A 2019 audit of its implementation by the Western Association of Fish and Wildlife Agencies conducted by a Castle Rock-based conservation investment advisory firm found that some of the roughly $60 million raised from participants in the agreement had been spent on a Boise office building and staff salaries instead of on acquisition of habitat for the lesser prairie chicken. “There has been considerable mismanagement of overhead costs and not nearly enough actual conservation,” Rylander said. “The permanent mitigation that the plan called for has largely not happened, which is why some of the mitigation banking folks are now proposing their own HCP. They have basically given up on the WAFWA process.” Rylander was referring to habitat conservation plans, a tool provided by the ESA for recovery of listed species. “We have high hopes that the number of stakeholders involved in that plan could lead to beneficial results on the ground for chickens, but it has not happened.”

Ongoing anthropogenic climate change also seems to be negatively impacting the birds. “Climate change threatens additional stressors,” Ryalnder said. As average atmospheric temperatures continue to increase and water abundance on the Great Plains continues to decrease as droughts become more common and long-lasting, endemic birds are at risk of population decline. “Many avian species endemic to the Great Plains region are decreasing in response to changes in climate, which may be affected by a decoupling of food availability (e.g., insect abundance) and brood rearing,” wrote Kansas State University biologist Beth Ross, U.S. Geological Survey biologist David Haukos, Christian Hagen of Oregon State University and James Pitman, a WAFWA biologist, in a 2016 study. “As many of these populations are already at reduced abundance, they are especially susceptible to the projected intensification of drought in the region.” 

For those lesser prairie chickens in the southern distinct population segment, which is centered on an ecosystem featuring small beech trees perplexingly called shinnery oaks, the outlook is even more dire. “Projected increases in temperature and decreases in relative humidity are expected to reduce nest success of lesser prairie-chickens such that fecundity will fall below the threshold necessary for population persistence by 2050 in the Sand Shinnery Oak Prairie Ecoregion,” Ross and her colleagues said. A 2017 U.S. Geological Survey report reached a similar conclusion, finding that lesser prairie chicken populations may decline so much by 2060 under some climate change scenarios that the species could be rendered extinct. 

Dealing with climate change involves a societal shift to renewable energy, a transformation that inevitably will include construction of wind turbines on the Great Plains. Finding a way for that imperative to occur while also preserving lesser prairie chicken range should be an essential goal for the Fish and Wildlife Service, according to Rylander. “It’s not in our interest to slow down the development of renewable energy that would help mitigate the impacts of climate change,” he said. “The reality of climate change and economic market trends are going to be driving more renewable energy in this region and, probably, less oil and gas in the coming years.” He said that Defenders of Wildlife is optimistic that the agency can find ways to assure compatibility between renewable energy facilities and grouses such as T. pallidicinctus. In April the Fish and Wildlife Service proposed a habitat conservation plan that would enable continued wind turbine installations within the lesser prairie chicken’s range.

Six Republican senators representing three of the five states with lesser prairie chicken habitat asked Secretary of the Interior Deb Haaland in a May 21 letter not to propose listing the species. Adding T. pallidicinctus to the threatened and endangered species list “sends the wrong message to the private partners who have invested important resources and adopted conservation practices to protect the LPC and prevent a listing,” wrote John Cornyn and Ted Cruz of Texas, James Inhofe and James Lankford of Oklahoma and Roger Marshall and Jerry Moran of Kansas. The six GOP legislators also warned that a “listing would undermine the confidence of the private sector in the [Fish and Wildlife] Service and their willingness to maintain ongoing conservation activity related to the [lesser prairie chicken] or any other species under [Endangered Species Act] consideration in the future.” 

Congress has, in the past, indicated hostility to protection of Great Plains birds. Since 2014 it has passed riders to appropriations bills that forbid listing of the greater sage grouse, another Great Plains bird whose population has dramatically declined in recent years. Like the lesser prairie chicken, the principal threat to Centrocercus urophasianus’ survival is fossil fuel infrastructure and activity in its range. Another ground-dwelling avian native to Colorado, the Gunnison sage grouse, is listed as a threatened species under the ESA. Centrocercus minimus faces some of the same threats as its cousin, T. pallidicinctus, and is imperiled by fencing, grazing, invasive plants, off-road vehicle use and oil and gas extraction. 

Rylander emphasized the importance of moving quickly to provide protection for the lesser prairie chicken. “We have known that it is in decline for nearly a generation and we are still trying to get it the federal protection that it needs if it’s going to recover. And we’re not done yet,” he said. “We can continue to have agriculture and economic development and protect this bird if we can get past this now-26 year fight over whether to list it.” He lamented the prospect that additional political wrangling and future litigation over a possible decision to list the lesser prairie chicken remain possibilities. “It’s just a misnomer that the Endangered Species Act stops all development,” Rylander said. “There’s no evidence for that.”

The Fish and Wildlife Service will accept comments on the proposed listing of lesser prairie chicken distinct population segments for 60 days. In addition, two virtual hearings are scheduled on July 8 and July 14, according to Walsh.

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