Phil Taylor, E&E reporter
Published: Wednesday, December 23, 2015
A states-led plan to save the lesser prairie chicken’s vanishing strutting grounds “simply has been unsuccessful” at safeguarding the bird’s most important habitat, Justice Department attorneys told a federal district court in Midland, Texas, last week.
It was the federal government’s latest — and most aggressive — plea yet for Judge Robert Junell to reconsider his September decision to vacate Endangered Species Act protections for the bird across its 40-million-acre homeland in Texas, Oklahoma, Kansas, New Mexico and Colorado.
At issue is Junell’s decision to toss the Fish and Wildlife Service’s decision in 2014 to list the prairie chicken as threatened as drilling, wind farms, road building, grazing and plowing had destroyed 84 percent of its habitat (Greenwire, Sept. 3).
Junell ruled that FWS had failed to consider the extent to which a rangewide conservation plan crafted and administered by state wildlife agencies and supported by energy companies and landowners would ameliorate those threats.
Federal attorneys are now asking Junell to amend his ruling. Instead of vacating it, they want it remanded so Fish and Wildlife can make a new listing determination. In the absence of a listing, they have warned, energy companies and farmers are destroying the chicken’s habitat with impunity.
In a Dec. 15 filing, the attorneys turned their criticism to the rangewide plan crafted by the Western Association of Fish and Wildlife Agencies (WAFWA).
The plan requires participating companies to mitigate for unavoidable impacts to habitat by paying landowners to perform bird-friendly grazing, brush management, prescribed burning and native plant restoration, and securing permanent protections for certain lands. Fish and Wildlife endorsed the plan in 2013, calling it a “landmark, collaborative planning effort” that would provide a net conservation benefit to the species.
But while roughly 180 energy companies have enrolled in the plan, agreeing to avoid and offset harm to 11 million acres of chicken habitat, much of the enrolled acreage is outside of the chicken’s most crucial habitat, attorneys wrote.
The WAFWA plan seeks to maintain a population of about 67,000 chickens, with habitat work focused on 6.2 million acres of “focal areas” — relatively large, intact areas of higher-quality habitat — and “connectivity corridors” between them.
Despite the high enrollment, “large portions” of the focal and connectivity habitat “have little to no enrollment by industry or private landowners,” the government told the court.
“Given that WAFWA has now had more than two years to secure enrollment and substantial new enrollment has stalled, there is no factual basis to assume that the plan will achieve its habitat enrollment goals in the future,” they wrote.
That, combined with the threat that key chicken lands will be scraped for wind farms, dairies and other projects, suggests that there’s a “serious possibility” that FWS would come to the same listing determination if given another chance to do so, they wrote.
The government was responding to a Nov. 10 statement to the court by Ben Shepperd, president of the Permian Basin Petroleum Association, which had joined New Mexico counties in suing to overturn the FWS decision.
Shepperd said participation in the WAFWA plan has remained strong in spite of Junell’s Sept. 1 ruling.
No enrolled companies have sought to terminate their participation based on the ruling, while three oil and gas companies have enrolled new acreage and a wind energy company enrolled a new development set to begin construction in January, Shepperd said.
Only one company has asked to leave the WAFWA plan since the ruling, but it was for reasons unrelated to the court’s decision, Shepperd said.
In addition, no landowners have requested that their contracts be terminated, he said. There’s also a surplus of conservation “credit” to offset industry impacts in all four of the “ecoregions” where the chicken lives, he wrote.
Bill Van Pelt, who oversees the plan for WAFWA, said companies only enroll lands they plan to possibly develop, which may or may not be located within the focal areas.
The plan has secured 10 decadelong contracts that will pay landowners $14.7 million to preserve and restore chicken habitat across 96,000 acres. Van Pelt said the “vast majority” of that acreage is in the chicken’s most important habitats.
“They’re doing a tremendous job in creating the habitat,” he said. “We are on track or ahead of a lot of our benchmarks.”
Van Pelt acknowledged that industry enrollment has “slowed down” but said that’s a function of the low price of oil and less drilling. “That’s not necessarily a bad thing for chickens, either,” he said.
But federal attorneys said their concerns over Junell’s ruling extend beyond the adequacy of the WAFWA plan.
They warned last week that without the threat of ESA penalties, a significant number of energy projects are moving forward without enrolling and with no obligation to offset impacts to chicken lands. Some have accelerated their development schedule in the absence of federal protections.
“Regardless of when a given project was planned or conceived, any project that goes forward while the species is not listed will be under no legal obligation to comply with the ESA’s requirements for avoiding or minimizing harm to the species and its habitat,” they wrote.
The developer of the Broadview Wind Project in Curry County, N.M., for example, decided not to enroll in the WAFWA plan following vacatur of the listing, citing the costs of enrollment, they wrote.
A single wind turbine creates a “habitat avoidance zone” extending 1 mile for greater prairie chickens, and it is likely that lesser prairie chickens exhibit a similar response, FWS said in its listing decision.
“The Service identified four additional wind projects in Oklahoma that developers had previously decided not to pursue, but that have now been fast-tracked following vacatur,” they wrote. “One of those projects, being developed by Apex Energy in southeast Beaver County, Oklahoma, is located in the species’ focal habitat identified by the Range-Wide Plan.”