SLO Commissioner Ray Powell announce that on March 25th, his office enrolled an additional 150,000 acres in a Candidate Conservation Agreement with Assurances (CCAA). This brings the total enrolled acreage with the New Mexico State Land Office to 404,000 acres in the Lesser Prairie Chicken Area. Link to the letter.

In addition, effective May 12, 2014, the USFWS filed a final rule determining that the Lesser Prairie Chicken is a ‘threatened’ species. This is a link to the full 99 page rule for your reading pleasure. Using its authority under Rule 4(d), the agency decided that CCAA efforts under the Western Association of Fish and Wildlife Agencies (WAFWA) were appropriate for management of the species. However, note Director Dan Ashe’s statement, “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.” From a legal perspective, this means that operators who are not participating in the WAFWA CCAA scheme might not be “protected” and will have to do additional conservation efforts for the species.

However, on April 10, 2014, the Centers for Biological Diversity, WildEarth Guardians and Defenders of Wildlife filed a 60-day notice of intent to sue with the Department of Interior over violations of Sections 4 and 7 of the Endangered Species Act. They are effectively stating that enrollment and payment in any CCAAs should not be considered a valid exception to the Endangered Species Act. The outcome of this case could have significant impacts on both the Chicken and the Lizard CCAs and future listing decisions. Note that the Centers for Biological Diversity is the NGO that entered in the settlement agreement with the present Administration to force listing decisions for over 250 species by 2016. The Oklahoma Attorney General has filed suit on April 1, 2014 against the USFWS for entering into the settlement with the NGO.

So the net effect of the State Land Office listing is as follows:
1. Operators with leases prior to May 12, 2014 in the area enrolled by the Commissioner had to have enrolled their respective acreage with Center for Excellence for Hazardous Material Management by that date.
2. Acreage leased after May 12, 2014 may be enrolled and the Commissioner, while he cannot place conditions on the leases, will strongly encourage this ‘voluntary’ participation. As listed in the SLO letter, some measures of the CCAA include:
a. Exit ramps for open water sources
b. Minimizing surface disturbances
c. Avoiding Dunes Sagebrush habitat
d. Burying power lines within two miles of LPC lek sites active at least once in the past five years
e. Burying power lines within one mile of historic LPC lek sites.

Link to the full 99-page rule.

On April 7th in the Federal Register, the USFWS filed a reopening of the comment period on the designation of critical habitat for the New Mexico Jumping Mouse. The proposed area would cover 14,560 acres in 29 different areas including Bernalillo, Colfax, Mora, Otero, Rio Arriba, Sandoval, and Socorro Counties and La Plata and Animas Counties of Colorado. I expect the area to increase significantly in size as the USFWS continues to be concerned about the species. The designation of critical habitat will require additional study and requirements by the Federal Government for any project on federal lands. As with both the Lesser Prairie Chicken and the Sand Dune Lizard, the first step towards either a threatened or endangered finding is designation of critical habitat.

Comments are due May 8th. The Federal Register notice.

U.S.F.W. Lists Lesser Prairie-Chicken as Threatened Species and Finalizes Special Rule Endorsing Landmark State Conservation Plan

Special Rule Establishes Unprecedented Conservation Partnership with States to Provide Regulatory Certainty for Landowners and Businesses; Enables States to Maintain Lead Management for Conservation Efforts

In response to the rapid and severe decline of the lesser prairie-chicken, the U.S. Fish and Wildlife Service today announced the final listing of the species as threatened under the Endangered Species Act (ESA), as well as a final special rule under section 4(d) of the ESA that will limit regulatory impacts on landowners and businesses from this listing. Under the law, a “threatened” listing means the species is likely to become in danger of extinction within the foreseeable future; it is a step below “endangered” under the ESA and allows for more flexibility in how the Act’s protections are implemented.

In recognition of the significant and ongoing efforts of states and landowners to conserve the lesser prairie-chicken, this unprecedented use of a special 4(d) rule will allow the five range states 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. This range-wide conservation plan was developed by state wildlife agency experts in 2013 with input from a wide variety of stakeholders. The special rule also establishes that conservation practices carried out through the USDA’s Natural Resources Conservation Service’s Lesser Prairie-Chicken Initiative and through ongoing normal agricultural practices on existing cultivated land are all in compliance with the ESA and not subject to further regulation.

“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.”

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

“To date, we understand that oil and gas companies, ranchers and other landowners have signed up over 3 million acres of land for participation in the states’ range-wide conservation plan and the NRCS’ Lesser Prairie Chicken Initiative,” said Ashe. “We expect these plans to work for business, landowners and the conservation of prairie-chickens.”

In addition to the range-wide conservation plan and the Lesser Prairie Chicken Initiative, a number of other on-the-ground programs have been implemented over the last decade across the bird’s five-state range to conserve and restore its habitat and improve its status. Key programs such as the USDA’s Farm Service Agency’s Conservation Reserve Program, the Bureau of Land Management’s New Mexico Candidate Conservation Agreement, the Service’s Partners for Fish and Wildlife Program and Candidate Conservation Agreements with Assurances in Oklahoma, Texas and New Mexico, are engaging state and federal agencies, landowners and industry in these efforts.

Collectively, these programs – and in particular, the range-wide conservation plan – serve as a comprehensive framework within which conservation of the lesser prairie-chicken can be achieved. The various efforts are similar to a recovery plan, something that the Service normally prepares after a species’ listing. This early identification of a strategy to conserve the lesser prairie-chicken is likely to speed its eventual delisting.

However, threats impacting the species remain and are expected to continue into the future. After reviewing the best available science and on-the-ground conservation efforts focused on the species, the Service determined that the lesser prairie-chicken is likely to become endangered in the foreseeable future and warrants listing as threatened under the ESA. The agency is under a court-ordered deadline to make a listing determination on the species by March 31.

The final rule to list the lesser prairie-chicken as threatened and the final special rule will publish in the Federal Register and will be effective 30 days after publication. Copies of the final rules may be found at the Service’s website at http://www.fws.gov/southwest.

The U.S. Fish and Wildlife Service works with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people. For more information, visit www.fws.gov.

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