A Great Plains Complication
By Ron Jarman and Robin Laine
Companies involved with oil and gas exploration, development and transportation must contend with a number of regulations to move forward with projects, such as pipeline construction. In some areas, endangered species require special consideration from companies that don’t wish to impede the progress of these projects.
In 1972, former President Richard Nixon declared that previous conservation efforts in the United States aimed toward preventing the extinction of species were inadequate and called on Congress to develop comprehensive endangered species legislation. Congress responded, and on Dec. 28, the Endangered Species Act (ESA) of 1973 was signed into law.
Subsequently, the U.S. Supreme Court found that “the plain intent of Congress in enacting [the ESA] … was to halt and reverse the trend toward species extinction, whatever the cost.” The ESA is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA). NOAA handles marine species, and the FWS has responsibility over freshwater fish and all other species. Species that occur in both habitats (e.g., sea turtles and Atlantic sturgeon) are jointly managed.
A species can be listed in two ways: the FWS or NOAA Fisheries can 1) directly list a species through its candidate assessment program, or 2) an individual or organizational petition may request that the FWS or National Marine Fisheries Service (NMFS) list a species. The procedures are the same for both types — except with the person/organization petition there is a 90-day screening period. When a species is listed, a large set of regulations apply to any anthropogenic activities that threaten to harm the potential of the species to continue to exist. The primary focus of the federal regulations is to regulate the potential loss of suitable habitat for the listed species.
Chicken of the Plains
The Great Plains of the United States and the Prairies of Canada combine for a natural geographic region that is spectacular in its size, topography and wealth of natural resources. The Great Plains region features relatively flat plains that increase in elevation from sea level to more than 5,000 ft at the base of mountain ranges along the Continental Divide. Forested mountains cover western Montana and Wyoming, extensive rangelands spread throughout the Plains, marshes extend along the Gulf Coast in Texas and desert landscapes distinguish far western Texas.
Known as the “breadbasket” of the North American continent, agriculture dominates its usage on the surface through crops and grazing, while water and hydrocarbons are hidden beneath the surface. It is also a source of alternative energy from the strong winds and abundant solar time periods. Over the last 100 years or more, oil and gas production in the region has been a major generator for economic fiber, growth and lifestyle. Attendant to the development of these oil and gas resources is a vast network of pipelines to transport crude resources to centralized treatment/refining locations and also for carrying products to their eventual destinations.
Since the 19th century, the lesser prairie-chicken (LPC) and the habitat upon which this species depends has diminished across its historical range, with recent estimates of current occupied range totaling about 17 percent of its estimated historical range (approximately 30,900 square miles). Experts believe the causes for this are primarily attributed to habitat loss and fragmentation. These factors, as well as the ongoing drought in the southern Great Plains, have contributed to a rapid population decline. Once abundant across much of the five range states of Texas, New Mexico, Oklahoma, Kansas and Colorado, the LPC’s historical range of native grasslands and prairies has been reduced by an estimated 83 percent. A FWS estimate made in 2013 determined the range-wide population had declined to a record low of 17,616 birds — a reduction of almost 50 percent from the 2012 population estimate.
Beginning in October 1995, the FWS (in response to a petition by the Biodiversity Legal Foundation and Marie E. Morrissey) initiated studying the need for officially listing the lesser prairie-chicken under the ESA. In 1997, the FWS designated the LPC as a candidate for listing but further found that this listing, although warranted under the ESA, was precluded because other species were of a higher priority. An organization called the WildEarth Guardians subsequently filed a lawsuit against the FWS on Sept. 1, 2010, in the U.S. District Court for the District of Colorado, citing lack of progress toward the listing of the LPC.
This litigation was subsequently consolidated in the U.S. District Court for the District of Columbia along with several other cases filed by the Center for Biological Diversity relating to petition finding deadlines and expeditious progress toward listing.
As the FWS worked through the legal issues with these higher priority species the LPC eventually reached the focused attention of the agency.
On Dec. 11, 2012, the FWS issued a proposed rule to list the LPC as “threatened.” This rule became final and enforceable after substantial public review on May 12, 2014, with FWS stating:
“Threats impacting the species remain and are expected to continue into the future. After reviewing the best available science and on-the-ground conservation efforts focused on the species, the Service determined that the lesser prairie-chicken is likely to become endangered in the foreseeable future and warrants listing as threatened under the ESA. The agency is under a court-ordered deadline to make a listing determination on the species by March 31, 2014.”
The resulting impact of this FWS listing on the many farming, business and industrial endeavors throughout the five-state former range of the LPC leaves those in charge of construction, operation and maintenance in a quandary. The primary activities that will fall under the FWS rule would be farming, oil and gas exploration, development and transportation, wind energy and related transmission line corridors. Many answers are provided through a couple of options for moving forward with projects, including pipeline construction. Currently, the most feasible option is to enroll project acreages into a program administered by the Western Association of Fish and Wildlife Agencies’ (WAFWA) called the LPC range-wide conservation plan (WCP). This specific plan was authorized by the FWS in the final listing rule under section 4(d) as follows:
“In recognition of the significant and ongoing efforts of states and landowners to conserve the lesser prairie-chicken, this unprecedented use of a special 4(d) 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 and utility line maintenance that are covered under the Western Association of Fish and Wildlife Agencies’ (WAFWA) range-wide conservation plan.”
The WCP was developed by state wildlife agency experts from Colorado, Kansas, New Mexico, Oklahoma and Texas in 2013 with input from a wide variety of stakeholders. The special 4(d) rule provides enrolling companies with regulatory assurances through a special ESA provision, so that companies have a pathway to continue operations and development in the LPC region. The companies agree to pay modest enrollment fees, follow a list of guidelines to minimize impacts on the bird and agree to pay for impacts they cannot avoid. The money goes to farmers, ranchers and landowners to protect and restore habitat for the bird. The special rule also establishes that conservation practices carried out through the USDA Natural Resources Conservation Service’s Lesser Prairie-Chicken Initiative (LPCI) and through ongoing normal agricultural practices on existing cultivated land are all in compliance with the ESA and not subject to further regulation.
In addition, a number of other on-the-ground programs have been implemented over the last decade and across the bird’s five-state range to conserve and restore its habitat in the effort to improve its status. These programs serve as a comprehensive framework within which conservation of the LPC can be achieved. The various efforts are similar to a recovery plan, something that the FWS normally prepares after a species is listed. This early identification of a strategy to conserve the LPC is likely to speed its eventual delisting.
Impacting the Energy Industry
The FWS is also considering applying the special ESA 4(d) rule to exempt companies and landowners enrolled in a separate conservation plan known as a habitat credit exchange. That program, which involves the Environmental Defense Fund, the Nature Conservancy and energy giants BP PLC, Chesapeake Energy Corp., Chevron Corp., SandRidge Energy Inc. and Exxon Mobil Corp., promotes mitigation similar to the WCP, though it is billed as more nimble because it allows prices to be set by developers and landowners. The current schedule for adoption of the habitat credit exchange may occur as early this fall.
The one commonality for all of these programs is the liberal usage of several GIS programs and databases to facilitate avoidance and minimization through project planning and the application of conservation practices, both during and after construction, that eliminate (to the extent possible) or reduce impacts to LPC habitat. The use of these tools is envisioned to create an environment where projects can move forward expeditiously with known up front mitigation fees. In so doing, through the ESA 4(d) special rule, the project proponent is specifically exempted from regulation for the take of LPC if that take is incidental to carrying out the provisions of the WCP or other approved approaches.
All these options will require following informed practices that may include project planning, field surveys, implementation of best management practices and avoidance measures of specific activities during mating, nesting and fledging seasons, defined as March 15-July 15 of any year. Of all possible options, the WCP is the most evolved and seems to focus on reducing project costs by allowing participants to implement avoidance and minimization to the extent possible, yet proceed directly to mitigation in a rapid fashion.
There is no question that the FWS listing of the LPC as threatened will have an impact on a majority of business and industrial endeavors within its designated range in the five-state region. However, with thorough and careful pre-planning of projects, using the available conservation options, the impacts on project schedule and budget can be managed along with other environmental issues.
Ron Jarman, Ph.D., is senior environmental manager and Robin Laine is national program manager at Apex Companies LLC.