By Jerry Webberman, Alicia French, Jesse Lotay, & Ben Rhem
On June 1, 2021, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule in the Federal Register to list the lesser prairie-chicken under the Endangered Species Act (ESA).
The proposal distinguishes between two populations of the species, referred to as Distinct Population Segments (DPS). The Southern DPS, which is located in West Texas and New Mexico and overlaps with the oil- and gas-rich Permian Basin, is proposed to be listed as endangered, while the Northern DPS, located in the Texas Panhandle, Oklahoma, Kansas, and Colorado, would be listed as threatened.
Impact on Oil and Gas and Renewable Energy
Many in the energy industry have criticized the proposed rule as unnecessary federal overreach in light of years of voluntary conservation programs to reduce impacts on the lesser prairie-chicken. Dozens of energy companies are already enrolled in a Candidate Conservation Agreement with Assurances, with close to five million acres enrolled, between USFWS, the Western Association of Fish and Wildlife Agencies, and landowners.
The listing of the species and potential designation of critical habitat will have a significant regulatory impact, limit access to certain areas, and increase costs to develop oil and gas and renewable energy projects. If finalized, the listing of the lesser prairie-chicken will require extensive biological due diligence and careful planning, will increase costs to mitigate any potential impacts, and will likely increase the amount of time needed to complete projects in the vicinity of the lesser prairie-chicken range. These impacts could be tremendous throughout the impacted area, including in the Permian Basin – one of the most important regions in the country for oil and gas development. This area is also home to a significant portion of the Texas wind industry.
While individual wells and wind turbines can be sited to avoid impacting particular habitats and species, large-scale projects, including large-scale wind and pipeline projects, are unlikely to have the flexibility to avoid these habitats without adding significant project costs.
The Endangered Species Act
The ESA prohibits the “take” of species listed as endangered. The term “take” is defined in the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct.” The term “harm” is not defined in statute, but is defined under USFWS regulations as “an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering.” The term “harass” is defined as “intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” Thus, activities that prevent, interfere with, or merely alter a species’ normal activities can be deemed a prohibited “take”.
The ESA’s prohibition on “take” applies to endangered species, but does not necessarily apply to those species listed as threatened. However, under the authority granted in Section 4(d) of the ESA, USFWS may apply the “take” prohibition to threatened species. As part of the proposed rule, USFWS determined that “it is appropriate to extend the standard section 9 prohibitions for endangered species to the Northern DPS of the lesser prairie-chicken in order to conserve the species.”
In its proposed rule, USFWS indicated that it has “determined that the designation of critical habitat is prudent for both DPS of the lesser prairie-chicken.” Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with USFWS, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat.
However, in deciding whether to designate such habitat, the USFWS must also evaluate whether the habitat is determinable. Not only must USFWS evaluate the biological needs of the species, but it must also conduct, “A careful assessment of the economic impacts that may occur due to a critical habitat designation.” At the time of proposal, this analysis was not yet complete; therefore, USFWS concluded that the designation of critical habitat for both the southern and northern DPS was not determinable. As part of the proposed rule, USFWS is seeking public comment as to whether the final rule should designate critical habitat for the lesser prairie-chicken.
USFWS will hold two public hearings to gather public comments on the listing proposal on July 8, 2021, and July 14, 2021. Public comments on the proposed rule must be submitted by August 2, 2021. For additional information regarding the proposal, visit the USFWS Lesser Prairie-chicken page.
If you have any questions regarding endangered species and energy development, please contact:
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Senior Counsel, Austin
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|Jesse S. Lotay
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The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For additional assistance, please contact an attorney in Jackson Walker’s Environment & Natural Resources practice.