Endangered Species Law & Policy

 Yesterday, the U.S. Fish and Wildlife Service (Service) announced (pdf) the final listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The Service identified drought and habitat fragmentation as threats to the species, and concluded the lesser prairie-chicken is likely to become endangered in the foreseeable future.

In connection with the final listing decision, the Service also announced a final special rule under section 4(d) of the ESA that will retain some degree of state responsibility for managing the lesser prairie-chicken. Over the past decade, a number of conservation programs have been implemented across the species’ five-state (Texas, New Mexico, Oklahoma, Kansas and Colorado) range, including the 2013 Western Association of Fish and Wildlife Agencies’ (WAFWA) Lesser Prairie-Chicken Range-Wide Conservation Plan. Collectively, these efforts are similar to a recovery plan. 

There had been some fear among landowners that the Service’s listing would have a severe adverse impact on the energy industry and private developers. The Service’s approach is anticipated to provide regulatory certainty for landowners and businesses enrolled in WAFWA’s range-wide conservation plan and the U.S. Department of Agriculture’s Lesser Prairie-Chicken Initiative. The special rule will allow for incidental take of the lesser prairie-chicken associated with: (1) activities conducted pursuant to WAFWA’s Lesser Prairie-Chicken Range Wide Conservation Plan; (2) conservation practices carried out in accordance with a conservation plan developed by the Natural Resources Conservation Service in connection with the Lesser Prairie-Chicken Initiative; and (3) the continuation of routine agricultural practices on existing cultivated lands.

The Service determined that listing critical habitat for the lesser prairie-chicken is prudent, but cannot be determined at this time. The Service has one year from the final listing determination to propose any critical habitat for the species.