FWS Proposes Listing the Lesser Prairie-Chicken—Potential Impacts for Energy Companies
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FWS Proposes Listing the Lesser Prairie-Chicken—Potential Impacts for Energy Companies

Brownstein Client Alert, May 27, 2021

On May 26, the U.S. Fish and Wildlife Service (“Service”) released their proposal to list two distinct population segments (DPS) of the lesser prairie-chicken under the Endangered Species Act (ESA). Currently, the Service is seeking comments from stakeholders, industry, government agencies and other interested parties. Following public hearings to be held in July and the 60-day comment period that begins once the proposed rule is published in the Federal Register, comments will be reviewed and the proposed rule may become final.

The lesser prairie-chicken can be found in five states: Texas, New Mexico, Oklahoma, Kansas and Colorado. Across the five-state range, the Service’s scientific review found the species faces a number of threats including, modification, degradation and fragmentation of its habitat. Although there has been extensive work by the Service, partners and landowners to foster voluntary conservation agreements in the region to protect the lesser prairie-chicken, the Service found the current risk to be too high.

Due to these threats, the Service has proposed the population in the Southern DPS, which includes eastern New Mexico and the southwest Texas Panhandle, be listed as endangered under the ESA. Populations in southeastern Colorado, southcentral to southwestern Kansas, western Oklahoma and the northeast Texas Panhandle are in the Northern DPS, the Service proposed to list that population as threatened.

The Service first considered the lesser prairie-chicken as a candidate for listing under the ESA in 1998. In 2014 the species was listed as threatened; however, that listing was vacated in 2015 following a lawsuit.

Environmental groups have celebrated the proposed rule citing the ongoing drought in the region that has left the lesser-prairie chicken’s population vulnerable and the need to protect the rangeland prairie landscape that the birds inhabit. However, the listing raises concerns from the energy sector since the DPS includes parts of the Permian Basin, an oil and gas-rich region, and land suitable for wind energy production. An existing conservation program enables energy companies to fund easements on private farms and ranches to offset the habitat impacts of energy development. Industry groups and others have argued that these programs are working and that the listing may be premature given the willingness of the private sector to work with the Service and state agencies under these programs to conserve the species.

This document is intended to provide you with general information regarding the Endangered Species Act. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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