After more than 15 years of review, the U.S. Fish and Wildlife Service (FWS) announced on March 27, 2014 that the lesser prairie-chicken, a species of prairie grouse, is a “threatened” species, a step below “endangered” under the Endangered Species Act (ESA). The lesser prairie-chicken’s population is in rapid decline, due largely to habitat loss and fragmentation and the on-going 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 habitat of native grasslands and prairies has been reduced by an estimated 84%. The estimated population of the lesser prairie-chicken was reduced by half from 2012 to 2013.
Anticipating and hoping to ward off the threatened species designation, more than forty (40) private companies in the five states representing oil and gas, pipelines, electric transmission and wind energy voluntarily enrolled more than 3.5 million acres and provided more than $21 million to conserve the prairie-chicken habitat, as part of a comprehensive, science-based conservation strategy under the Western Association of Fish and Wildlife Agencies' (WAFWA) range-wide conservation plan. In addition, a number of on-the-ground programs have been implemented over the last decade to conserve and restore the lesser prairie-chicken’s habitat. These programs include the Lesser Prairie Chicken Initiative, the Bureau of Land Management’s New Mexico Candidate Conservation Agreement, and Candidate Conservation Agreements with Assurances (CCAA) in Oklahoma, Texas and New Mexico.
However, after reviewing the best available science and the on-the-ground conservation efforts and because “threats impacting the species remain and are expected to continue into the future,” the FWS determined that the “lesser prairie-chicken is likely to become endangered in the foreseeable future and warrants listing as threatened under the ESA.”
The FWS included a final special rule under section 4(d) of the ESA that is supposed to limit regulatory impacts on landowners and businesses from the listing. The 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, that are covered under the WAFWA’s range-wide conservation plan. Oil and gas development activities include seismic and land surveying, construction, drilling, completions, workovers, operations and maintenance, and plugging and remediation.
Companies now have 30 days to enroll in a range-wide conservation plan or a CCCA. According to the president of the Permian Basin Petroleum Association, all entities having an interest in the activities covered should consider enrolling because “they’ll find it more palatable than going to the Fish and Wildlife Service for permission to drill a well.”
The president of the Texas Independent Producers & Royalty Owners Association expressed the organization’s disappointment in the threatened species designation, stating that “[t]his undoubtedly will affect independent oil and gas producers operating in the Lone Star State.”
The listing is expected to take effect May 1, 2014, 30 days after publication of the final rule and final special rule in the Federal Register.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
