FWS Revises Rule On Lesser Prairie Chicken Conservation To Include WAFWA Plan

A new plan seeking inclusion into the US Fish and Wildlife Service’s special rule proposal on lesser prairie chicken (as opposed to greater prairie chicken) conservation is facing opposition from some in the conservation banking sector who argue the plan’s voluntary program that relies on untested methods will not deliver needed results.

16 December 2013 | The US Fish and Wildlife Service (FWS) is altering a special rule proposal issued in May on conserving dwindling lesser prairie chicken populations. FWS now would like to incorporate a plan that enables energy developers to practice voluntary conservation.

The lesser prairie chicken is a candidate species – a species up for possible listing under the Endangered Species Act (ESA). The FWS administers the ESA and is in the midst of determining if the lesser prairie chicken should be listed as threatened or endangered and receive the protective measures that come with a federal listing. They published their listing proposal at the end of last year and had a revision period during the spring when they added in the proposed special rule.

The debate over whether to list or not to list isn’t divided clearly along industry and environment lines. Meanwhile, the chicken population is spiraling downward. Within the last year, the population of this little grouse has fallen by 50% and their habitat in the US Great Plain states continues to be converted from grasslands into farmland or fragmented by energy interests.

Energy companies argue that listing will result in regulations and costs that they claim are unnecessary, and they advocate instead for voluntary solutions. A consortium of energy companies and NGOs in collaboration with the Western Association of Fish and Wildlife Agencies (WAFWA) created the Lesser Prairie Chicken Range-wide Conservation Plan (RWP) to proactively conserve chicken habitat-mitigating species loss – so a listing won’t be necessary. The plan seeks to enroll oil and gas and wind developers to voluntarily preserve habitat. In return for their conservation, the energy companies receive assurance that even if the chicken is listed, they won’t face additional regulations. FWS then revised its proposal in response.

The WAFWA Plan

WAFWA released its plan in September and the FWS endorsed it the following month. This month, the Service announced they were seeking to incorporate it into their proposal and reopen the public comment period.

Incorporation of the plan would be a part of this special rule, which falls under section 4(d) of the ESA. It establishes special regulations for a species. In the case of the prairie chicken, the ‘taking’ of the bird by those participating in the WAFWA plan will be permitted. This special allowance for participants is because of the significant conservation planning efforts they have undergone, according to the FWS statement. The plan identifies a two-part strategy it will use to conserve prairie chicken habitat: a set of incentives-based landowner programs, along with the reduction of threats and off-site mitigation efforts.

The RWP would use two mitigation markets, which WAFWA says is necessary because of the bird’s migrating patterns and because of environmental changes. According to the plan, the prairie chicken adapts easily to changing habitat conditions. 75% of mitigation will be short term – five to ten years – while the remaining 25% will take the form of long-term conservation, which can’t ever be redeveloped for other uses. That structure is a sharp departure from typical habitat mitigation, which has typically made permanent protection a core requirement.

The plan establishes strongholds, which are areas of chicken habitat that are permanently protected. The short term branch is designed to provide ‘moving habitat,’ which will follow the chicken as it migrates and also help avoid conflicts with development. Under the RWP, the strongholds will maintain a prairie chicken population while moving conservation will create satellite populations that disappear and reappear over time, the plan document reads.

The Argument

Several parts of WAFWA’s plan have met with opposition from practitioners inside the mitigation banking community. Common Ground Capital (CGC), a conservation banking company with a primary focus of creating landscape-level banks for prairie chickens, has argued that the relatively new concept of ‘moving’ short term conservation won’t deliver on needed results. CGC said the approach would reduce compliance costs to industry at the expense of the grouse, calling temporary mitigation (or “term” mitigation) untested and lacking in a regulatory framework. And because of the bird’s dire situation, CGC feels the prairie chicken isn’t the right species to try it out on.

Bankers are also unhappy with the plan’s reliance on a very large in-lieu fee program to shoulder much of the mitigation action. In-lieu fees are paid by a developer into a dedicated fund, which then pays for conservation actions after the fact. The approach has been criticized in the past for resulting in long-delayed or inappropriate compensation for impacts. In 2008, the Army Corps of Engineers officially declared it a less-preferred approach compared to mitigation banking as far as addressing wetland impacts. “Why then would such a complex in-lieu fee structure be acceptable to the USFWS for use for the lesser prairie chicken?” asked CGC in its letter to the Service.

During an open commenting period earlier this year, CGC submitted a letter arguing that the FWS’ strategy should be based around proven mitigation results like conservation banking. Conservation banking, a market-based solution where land developers offset their negative impact on a species by purchasing credits from a species bank that is permanently located in an area of habitat, is the only solution that has and will continue to achieve a net benefit for a species, CGC’s Principal, Wayne Walker, wrote.

As for achieving a net benefit for the prairie chicken – a voluntary program on a whole won’t ensure that, says Walker. Voluntary efforts are basically unenforceable, the letter notes, drastically reducing the certainty of the plan’s success. Doubts about the plan’s prospects were reinforced when an ecologist for the environmental NGO, the Center for Biological Diversity, Jay Lininger, noted that the FWS’ revised rule exempts activities that destroy habitat. Development activities that ‘take’ the prairie chicken but are consistent with the RWP are permitted. Routine agricultural practices taking place on already cultivated lands that harm the bird would also be allowed.

The FWS is scheduled to make a listing decision on the prairie chicken in March. The new commenting period is currently open and will be open until January 10.

Additional resources