On December 11, 2012, the U.S. Fish and Wildlife Service (Service) announced a proposed rule to list the Lesser Prairie Chicken (LEPC) as threatened under the U.S. Endangered Species Act (ESA). The LEPC is a ground-dwelling bird known to occur in portions of Texas, Oklahoma, New Mexico, Colorado and Kansas. The proposed listing came about pursuant to a massive settlement agreement between the Service and certain environmental groups whereby the Service agreed to reach listing decisions on nearly 1,000 species over a five-year period. Under the settlement, the Service had until September 30, 2013 to make a final determination as to the status of the LEPC. In July 2013, the Service announced that, due to substantial disagreement regarding the sufficiency or accuracy of the available data relevant to its determination regarding the proposed listing of the LEPC, the final listing decision deadline would be extended until March 30, 2014.
The distinction between listing a species as threatened rather than endangered is a question of the imminence of extinction. Endangered species are those for which the danger of extinction is in the foreseeable future. Threatened species are those species that are likely to become endangered in the foreseeable future. By Service regulation, both threatened and endangered species are subject to the ESA section 9 prohibition on “taking” endangered species. “Take,” as defined in the ESA, means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Take of a listed species, whether intentional or incidental, could result in enforcement under the ESA. By proposing the LEPC as threatened rather than endangered, the Service created an opportunity for application of the “4(d) Rule” or “Special Take Rule.”
ESA section 4(d) allows the Service to promulgate a Special Take Rule for threatened species. Through a 4(d) Rule, the Service may develop specific exceptions to the more general section 9 take prohibition that are tailored to the specific conservation needs of the species. For example, the Service could promulgate a Special Take Rule for a threatened fish species that allows recreational fishing in a lake or stream where the threatened fish species is known to occur. In that case, should someone catch the threatened fish species while fishing, that “take” would be exempt from the ESA take prohibition.
In May 2013, the Service announced the reopening of the public comment period for the LEPC listing and the availability of a 4(d) Rule for public review and comment. The proposed 4(d) Rule suggests that the Section 9 take prohibition will not be construed by the Service to apply to take of LEPC incidental to activities conducted pursuant to a comprehensive conservation program that was developed by or in coordination with state wildlife management agencies. In conjunction with the proposed 4(d) Rule, the Service announced the availability of the Lesser Prairie-Chicken Interstate Working Group’s Range-Wide Conservation Plan (Plan). Under the Plan’s current draft form, participants whose activities may impact the LEPC (namely, oil and gas, agriculture, wind energy, cell and radio towers, power lines, and road activities) may enter into a “Conservation Agreement” with the Western Association of Fish and Wildlife Agencies (WAFWA) agreeing to implement specified conservation measures and pay certain fees. The fee schedule is one of the most controversial aspects of the Plan due to both the dollar amounts and the science behind the justifications for the fees. The fees would be used to secure offset units generated by participating landowners (who also enter into an agreement with WAFWA). If enacted, the Plan would be a comprehensive conservation program as described in its proposed Special Take Rule such that incidental take that occurs while a participant is enrolled and acting in accordance with the Plan would not be subject to the ESA section 9 take prohibition.
In October 2013, the Service announced its endorsement of the September 2013 version of the Plan. Within days of this announcement, the WAFWA, editors of the Plan, provided an updated version of the Plan. The October 2013 version of the Plan differed in several respects from the September 2013 version of the Plan. Chief among these differences is a waiver period for oil and gas activities. That is, while the Plan requires that mitigation be implemented prior to the activities impacting the LEPC, this requirement is waived for oil and gas activities impacting LEPC. Such activities can occur ahead of mitigation implementation for up to one year after the listing decision. In December 2013, the Service announced another reopening of the comment period for the LEPC listing – this time soliciting comments specific to the September 2013 version of the Plan and its sufficiency for conservation of the LEPC. This comment period closed in January 2014. It is unclear what the Service intends to do with regard to the October 2013 version (or any other subsequent versions) of the Plan.
Notwithstanding its “lesser” moniker, the potential listing of the LEPC has major implications for those industries operating within its range. Oil and gas, electric transmission, wind energy, and agricultural activities would all be affected by a listing. One of the most significant criticisms of the ESA is that it functions like an on and off switch. That is, there is no gradual onset of the listing (or the take prohibition) – one day you are legally constructing and operating; the next day, the listing is effective and your activities could be in violation of ESA section 9. In the case of multibillion-dollar oil and gas, transmission, or wind energy projects, the potential for an abrupt shutdown is troubling. The Service can issue incidental take permits to authorize take for those projects that have prepared a habitat conservation plan (HCP) and demonstrated that it has met the issuance criteria required by ESA section 10. HCPs include, among other items, minimization measures, mitigation measures, monitoring, and reporting to address the anticipated impacts a project will have on the species. However, the development of an HCP and the issuance of an incidental take permit take several years and therefore do little to mitigate the immediate effects of a listing.
Foreseeing this possibility, several efforts have arisen in addition to the Plan described above. Sedgwick attorneys Alan Glen, Steve Quarles and Brooke Wahlberg have assisted clients in the wind energy, electric transmission, and conservation arenas to develop strategies to effectively address LEPC impacts. These approaches vary from multistate HCPs to the acquisition of conservation easements to the establishment of conservation mechanisms. These strategies seek to ease the operational impacts of a listing should the Service list the LEPC in March 2014. That being said, if listed, those industries operating in the LEPC range should be aware that they may encounter increased costs associated with avoiding, minimizing or mitigating impacts to the LEPC.