Fight Over Declining Bird Highlights Debate Over Role Of Permanence In Mitigation

24 March 2014 | The lesser prairie chicken is in trouble. Its population has dropped by 50% since 2012, and less than 20,000 birds are left. All parties involved agree that some form of mitigation and conservation needs to happen, but mitigation bankers have slammed a proposal to make that mitigation voluntary even if the little grouse is listed as endangered. US Fish and Wildlife Service (FWS) will make a decision on whether to officially list the prairie chicken as threatened under the Endangered Species Act (ESA) at the end of this month. An ESA listing means federal protection for the species and its habitat, which complicates matters for landowners and energy interests. Loss of habitat from development is a prime reason the bird’s population is in decline.

Normally, such a listing would come with mandatory mitigation requirements, but FWS has proposed a special 4(d) rule – which would exempt participants enrolled in approved voluntary conservation plans from regulatory obligations.

Proponents of the voluntary approach say it offers the ability to shift habitat with a changing climate, but opponents say it lacks rigor and won’t offer the bird the protection it needs.

Adaptability or Fluff?

The proposed voluntary mechanisms rely on temporary mitigation to offset permanent impacts to the bird. One such initiative – and the one to garner the most opposition – is the Lesser Prairie Chicken Range-wide Conservation Plan (RWP), which the Western Association of Fish and Wildlife Agencies (WAFWA) proposed. Another is the Range-wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie Chicken for oil and gas activities (LPC CCAA). WAFWA administers both.

Further voluntary programs include the Lesser Prairie Chicken Habitat Exchange and habitat conservation program among others. These voluntary programs have support from a variety of stakeholders including NGOs, oil and gas companies as well as individual landowners in the regions the bird resides. The FWS has expressed serious interest in voluntary initiatives. Late last year, the Service announced it was seeking to incorporate the RWP into its proposal on conserving the bird and last month it was considering the habitat exchange as well. This month, the Service announced it had finalized its CCAA agreement for oil and gas.

Conservation bankers say the voluntary initiatives aren’t nearly rigorous enough to save the bird’s habitat. Bankers preserve endangered or threatened species by securing long term areas of undisturbed habitat and then generate revenue by buying and purchasing credits from developers needing to offset their impacts on a species. They argue the voluntary measures will not deliver the necessary results and are operating under untested methods. They also argue a revision to the 4(d) rule is needed because the conservation practiced under the RWP and the other voluntary plans isn’t strong enough to restore and repopulate prairie chicken populations.

The best solution, some bankers say, is to list the bird under the ESA and conserve the species with permanent mitigation using a proven market based approach like conservation banking.

Supporters of the voluntary plans say they are robust. The RWP uses a 2:1 mitigation ratio where development impacts on the prairie chicken are offset with twice the number of habitat units. One habitat unit is equivalent to one acre of high quality habitat. Qualifying as an offset includes a management plan for the property as well as annual monitoring that assess the quality of the land being used as habitat units.

Furthermore, usage of a spatial model that designates areas for prairie chicken conservation and industry development called the Southern Great Plains Crucial Habitat Assessment Tool (CHAT) has increased threefold since the FWS endorsed the RWP, says Bill Van Pelt, the Grassland Coordinator at WAFWA. By identifying prime chicken territory, the tool can encourage development activities to take place outside of those areas so it’s used by conservationists as well as developers.

The tool allows for pre-planning and involves stakeholders on both sides. Van Pelt talks about another group of stakeholders-the landowners-which, he says, are a key part of ensuring the viability of the species.

The RWP has generated a lot of interest among farmers and ranchers living in prairie chicken range. And New Mexico, Texas and Oklahoma all have enrolled land in CCAAs for prairie chickens.

Van Pelt says participation is higher in these voluntary initiatives because participants want to make changes and implement conservation versus being forced to by regulatory obligations.

Having a structured plan like the RWP sets clear objectives in terms of restoring population and habitat while identifying participants and resources, Van Pelt explains.

“The RWP gives landowners the opportunity or options to determine if it will work for them and it gives industry a level of certainty on what it will cost,” Van Pelt says.

Adapting to Changing Landscapes

The plan considers impacts to the bird to be permanent. Therefore, Van Pelt says, they must be offset in-perpetuity. This is achieved through the plan’s endowment fund that will generate funds to provide conservation forever. Those providing the permanent offsets must demonstrate their ability to meet this requirement.

The mitigation method called moving habitat, also known as shifting and dynamic mitigation, is included as 75% of the RWP’s approach to permanently offset impacts to the prairie chicken. Shifting mitigation conserves an area of land for a five to ten year period. Moving habitat follows the bird as it migrates-the plan says the bird adapts easily to changing conditions. This also helps to avoid conflicts with development. The remaining 25% of the plan’s strategy will establish permanent areas of habitat for the prairie chicken called strongholds.

The plan says that this rather untraditional use of shifting mitigation is necessary for this species because climate change is a main threat to the bird’s survival, and it will cause changes in the bird’s migrating patterns and its range.

Supporters of the RWP argue that because conservation banks establish permanent swaths of land as species habitat, they won’t be as effective in conserving prairie chickens because of this possible change in the bird’s migrating pattern. A prairie chicken bank could be set up, opponents argue, but the bird’s range has shifted away from the area of the bank, so it does little to protect the species.

On top of that, the prairie chicken needs thousands of acres to thrive and opponents argue conservation banks aren’t designed for these types of wide-ranging species.

A Banking Approach

Conservation bankers, meanwhile, don’t only argue that conservation banking works well for wide-ranging animals, they also argue a compensatory mitigation model-conservation banking- should be the basis of the Services’ plan in conserving the bird. In fact they would argue for a species on the edge of extinction like the prairie chicken, the tried and trusted method of banking is the only way to proceed.

“There are too many unknowns,” says J. Adam Riggsbee about the RWP, the president of RiverBank Ecosystems, a mitigation and conservation banking company. Term mitigation leaves uncertainty around if there will be land available in the future and at what cost.

“Conservation banks provide certainty plain and simple,” he says. “We know its quality and we know it will be funded in perpetuity.”

Another conservation banker, Wayne Walker, says prairie chicken conservation won’t be successful if it continues to be voluntary. “Government, term payment programs will not drive the needed behavior change to achieve certainty of a net conservation benefit that a for profit compensatory conservation banking model will achieve, maintain and be accountable for in perpetuity,” he says. Walker is the founder of Common Ground Capital (CGC), a conservation banking company focused on landscape-scale banks for the prairie chicken.

This conservation banking model Walker is pushing for will require government to act as a regulator to a compliant market that trades chicken credits. Government can ensure industry is operating on a level playing field for the cost of conservation.

Walker says a conservation approach based on banking can achieve three things. The first is the probability of success will increase with the risk level decreasing. Second, the temporal risk to the bird will decrease as well because credits will be available to sell immediately upon a listing decision. This would minimize further impact to the species. And third, Walker argues that conservation banking does guarantee the landowner engagement needed. Banking would generate more landowners working with conservation bankers to save the species and create a viable market.

Cost of Conservation

Because conservation banking is considered expensive, proponents of the RWP, argue the less expensive methods used in the plan frees up more money for on the ground purposes protecting the prairie chickens.

Riggsbee doesn’t dispute banking is expensive. But it’s offering permanent high quality conservation.

“It costs more to cover permanent, well-sited conservation that is protected, funded and managed forever,” he says.

The cost of conservation banking is the real cost of conserving the prairie chicken back to viable healthy populations, the bankers say, where the voluntary initiatives won’t deliver this net benefit for the species and thus isn’t reflecting the true cost of saving the bird from extinction.

What’s best for the bird?

The point of all these proposals and plans is to prevent the prairie chicken from going extinct.

Jake Li, an environmental lawyer for the environmental nonprofit, Defenders of Wildlife, says an ESA listing is in the bird’s best interest.

“The evidence is right there. What the federal government and industry has been doing with the voluntary initiatives are just not working,” Li says. The bird has been a candidate species since 1998 and since then, the population has continued to decline.

A conservation plan must control threats to the species and increase its population which Li doesn’t see happening using only the voluntary plans.

“The problem isn’t that they are voluntary,” Li says, “but that the methods the plans are using aren’t proven.”

He’s talking primarily about shifting mitigation, which he says isn’t a proven mitigation method.

“Relying on term or dynamic mitigation to offset permanent impacts is a novel idea,” he says. “There is no scientific support for this method in protecting the prairie chicken. It doesn’t necessarily mean term mitigation won’t work. We just haven’t seen adequate evidence that it will.”

Until there is more confidence in this approach, conservation strategies using it should be cautious moving forward especially when considering development in priority habitat areas. As of right now, acres of land within the prairie chicken range are authorized for development based on the assumption the shifting mitigation theory works.

Li sees voluntary activities as a big part of prairie chicken conservation but they must be robust and not reliant on term mitigation. This would include permanent easements and a recovery plan for the species.

As of right now, Li says the first step to conserving the prairie chicken is an ESA listing. That decision will be made at the end of this month. If the Service decides against listing, litigation is more than likely, Li says.