On July 20, 2016, the U.S. Fish & Wildlife Service (FWS) removed the lesser prairie chicken (LPC) from the list of threatened or endangered species, ten months after a U.S. District Court for the Western District of Texas determined that FWS erred in finding the LPC “threatened” under the Endangered Species Act (ESA). This decision validates the critical role played by public/private conservation efforts in determining the status of species, while also suggesting that these efforts will have to continue in order to avoid a future listing. FWS has said that it will undertake a status review, which could lead to a new listing proposal, even though the LPC now lacks legal status under the ESA as a candidate species.
In April 2014, FWS listed the LPC as a threatened species under the ESA due to perceived habitat loss and fragmentation. 79 Fed. Reg. 19974 (Apr. 10, 2014). That same day FWS also published an ESA Section 4(d) rule permitting the take of LPC incidental to activities conducted by a participant enrolled in and complying with the LPC Interstate Working Group’s LPC Range-Wide Conservation Plan (the Rangewide Plan). 79 Fed. Reg. at 20074. Under the Rangewide Plan, more than 180 oil and gas, pipeline, electric transmission, and wind energy companies have signed on to conservation measures that avoid, minimize, or mitigate impacts to the LPC from their operations.
Three months after the listing, the Permian Basin Petroleum Association and four New Mexico counties filed suit, challenging the listing decision and requesting that it be set aside as unlawful. In September 2015 the Court vacated the listing, finding that the agency had, among other things, failed to appropriately consider conservation efforts—namely, the Rangewide Plan—undertaken across five states to improve habitat for and diminish threats to the LPC. For example, the listing decision failed to assess the likely future benefits to be expected from millions of dollars that RWP participants had committed to cover off-site mitigation actions addressing unavoidable impacts and to improve habitat conservation. The Court found that FWS had thus misapplied its own Policy for the Evaluation of Conservation Efforts. In fact, in early 2016, the Western Association of Fish and Wildlife Agencies (WAFWA), which administers the Rangewide Plan, reported a 75 percent statistically significant increase in LPC numbers in the Sand Sage Prairie Region of southeast Colorado, southwest Kansas, and northern Panhandle of Oklahoma, in part as a result of industry’s efforts under the Plan. As noted, FWS responded to the Court’s decision by formally de-listed the LPC and eliminating the associated LPC 4(d) rule. 81 Fed. Reg. 47047
Practical Considerations for Industry
LPC Status Under the ESA
As of July 20, 2016, the LPC has no legal status under the ESA as either a listed or candidate species. A candidate species is one for which FWS has determined that a proposal to list the species is warranted. The LPC was a candidate species from June 1, 1998 through December 11, 2012, when FWS finally proposed to list the LPC as “threatened.” Because the proposed listing succeeded the candidate status of the LPC, and that listing now has been vacated, FWS will undertake a new status review to determine whether the LPC is again warranted for listing. See FWS’ LPC FAQ at 3. Simply put, FWS is starting over with respect to the LPC. Although FWS has not yet established a timeline for its new review, the review likely will begin with a species status assessment using best available scientific/commercial data and an updated assessment of conservation efforts in line with the opinion of the Court.
Impact on the Rangewide Plan and Candidate Conservation Agreements (CCAs)
CCAs and CCAs with Assurances (CCAAs) are formal, voluntary agreements between FWS and other parties to address the conservation needs of specific species, typically candidate species. Recent FWS guidance concerning the LPC’s de-listing suggests that non-candidate species can only be included in and covered by habitat conservation plans, including CCAs/CCAAs, if those species are “at risk.” See LPC FAQ at 6. The “at risk” terminology does not appear in FWS’ CCAA policy or proposed revisions to that policy and is only referenced in passing in the CCAA Handbook, which has yet to be made final. See 64 Fed. Reg. 32726 (June 17, 1999); 81 Fed. Reg. 26817 (May 4, 2016). However, as noted above, other guidance/language from FWS indicates that species “likely to become candidate species” may be subject to CCAs or CCAAs. FWS has provided no explanation reconciling the use of the term “at risk” with “species likely to become candidates in the near future.” With respect to this particular situation, FWS CCAA guidance is silent on the impacts to CCAs/CCAAs when a species, like the LPC, loses its candidate status. However, in its publications related to the LPC de-listing, FWS explicitly states that a non-candidate species (and particularly the LPC) is eligible for inclusion in a CCAA (as well as other CCAs) and “can still be covered within a habitat conversation plan for other listed species, even without having current candidate status.” LPC FAQ at 3. Given the inconsistency between CCAA guidance and the LPC FAQ, potential ambiguity exists with respect to continued development of new CCA/CCAAs for the LPC and the continued effect of existing CCA/CCAAs. Nonetheless, FWS has stated that “landowners can still enroll in lesser prairie-chicken CCAAs and CCAs that remain open for further enrollments, even though the species does not currently have candidate status” and that it intends to “continue to work with our state partners and others on efforts to protect vital habitat and ensure [the LPC] survives well into the future.” See LPC FAQ at 9 and LPC Press Release (July 19, 2016), available here. Read together, these statements support the conclusion that the formation of new CCAAs and participation in existing CCAAs remains possible. That said, until FWS clarifies eligibility requirements for CCAs/CCAAs, it may be prudent to consider including actual candidate species in any newly formed CCA/CCAA.
Continued Participation in the Rangewide Plan and CCAs/CCAAs
In 2014, FWS, WAFWA, WAFWA’s Foundation for Western Fish and Wildlife, interested oil and gas companies, and trade associations adopted the LPC CCAA for oil and gas operations using the same impact metrics and conservation delivery systems outlined in the Rangewide Plan. Notwithstanding the ambiguity noted above, survival of (and continued enrollment under) the LPC CCAA following vacatur of the LPC listing comports with FWS’ policy goals in developing CCAAs: CCAAs incentivize non-Federal property owners to implement conservation measures for declining species, with the CCAA policy being “designed to provide these property owners with the necessary assurances and encourage them to implement conservation measures for these species.” See 64 Fed. Reg. at 32727. Moreover, FWS has already stated that, should the LPC become listed in the future, CCAAs provide landowners with assurances that, as long as they continue to implement their agreements, they can continue to manage their lands as outlined in those agreements. See LPC FAQ at 9. In short, FWS’ inclination is to honor existing LPC CCAs/CCAAs, despite the ambiguity noted above. Thus, participation in the Rangewide Plan or other CCAAs may provide an extra level of protection for project operations in the event a renewed listing effort is successful.
In addition, FWS’ stated intention is to “undertak[e] a new status review to determine whether listing [the LPC] is again warranted, and to work on efforts to protect vital habitat and ensure [the LPC] survives well into the future.” Specifically, FWS plans to re-evaluate the threats facing the LPC and its habitat and to continue its engagement with various conservation initiatives, including the Rangewide Plan and CCAs/CCAAs. As a result, continued participation in the Rangewide Plan, CCAs/CCAAs, and other conservation projects will protect and enhance LPC habitat and population numbers moving forward, which, in turn, is likely to affect FWS’ decision to list the LPC by improving the species’ long-term viability. For example, Rangewide Plan partners have committed nearly US$51 million in fees to fund mitigation actions, and landowners have agreed to conserve more than 67,000 acres of habitat in Colorado, Kansas, New Mexico, Oklahoma, and Texas. If, based on FWS’ de-listing of the LPC, Rangewide Plan participation falls such that committed funds are no longer sufficient to complete mitigation projects or the acres of land available for habitat conservation substantially decrease, FWS could well argue that existing conservation measures are inadequate, and so justify another LPC listing.
Incidental Take of the LPC
The LPC CCAA permitted incidental take of the LPC during otherwise lawful activities of plan participants, and Rangewide Plan participants relied upon the Section 4(d) rule for the same dispensation. Given the de-listing of the LPC, any permits authorizing incidental take (and any take dependent upon the 4(d) rule) are meaningless, and associated assurances are without current effect. Moreover, even though the take of the LPC and/or its habitat is now permissible, the optics and management of any such take are likely to become important, particularly given the skepticism of prominent environmental groups about the de-listing decision, and its effects. Industry participants in the CCAA and the Rangewide Plan have expressed continuing support for these voluntary conservation initiatives. If these measures and complementary government programs are successful, as now seems likely, the likelihood of another listing will be very much diminished.