An Endangered Species Act listing for the lesser prairie chicken is either a death knell for the U.S. oil boom or business as usual for energy developers and landowners in the southern Great Plains.
It depends on whom you ask.
The Fish and Wildlife Service by March 30 must decide whether to list the ground-dwelling grouse as threatened, a decision that follows a years-long scramble by states, energy companies and farmers to preserve its native grassland and prairie habitat.
Many fear a listing would hobble federal permitting of drilling projects, drive away developers and diminish property values. But for scores of energy companies and landowners who have agreed to pre-emptively conserve chicken habitat, things may not change much at all.
"I don't see life being much different for them," said Douglas Lynn, executive director for the nonprofit Center of Excellence for Hazardous Materials Management in New Mexico, which manages a conservation plan on behalf of oil and gas companies, ranch owners, and federal agencies that have enrolled just over 3 million acres.
The New Mexico candidate conservation agreement with assurances (CCAA) is one of a handful of initiatives states and Fish and Wildlife are pursuing that would exempt participants from ESA restrictions if the prairie chicken is listed.
Namely, those who take part in a CCAA or who enroll in a rangewide conservation plan could be exempt from ESA's prohibition on killing or disturbing threatened species.
While the conservation agreements aren't cheap -- they urge developers to avoid disturbing prairie chicken "focal areas" and connectivity corridors and require them to pay mitigation fees when impacts cannot be avoided -- they give participants regulatory certainty that their operations won't be further hampered if the bird is listed.
"One way or another, they already know what they have to do," said Bill Van Pelt, grasslands coordinator for the Western Association of Fish and Wildlife Agencies (WAFWA), which crafted the rangewide conservation plan in Oklahoma, Texas, New Mexico, Kansas and Colorado and an associated oil and gas CCAA. "[A listing] doesn't change anything for them. ... Life continues on, per the agreement."
That's not to say a listing is warranted, Van Pelt said.
Acreage enrolled in the rangewide plan, combined with farm bill programs and other conservation efforts, totals the size of Vermont and New Hampshire combined, or about half the bird's estimated 40-million-acre range, he said.
"We've got habitat out there that will allow these birds to respond," Van Pelt said.
While the bird's population was cut in half in 2013 due to severe drought, the southern Plains received good moisture last summer and many of the birds appear to have survived the winter, Van Pelt said.
He and other state wildlife and oil and gas officials were in Washington, D.C., last week to make a final sales pitch to the Interior Department on why a federal listing is not warranted.
Oil and gas, wind, pipeline and transmission companies have enrolled just over 3.6 million acres and agreed to pay $21 million over the next three years to support bird-friendly grazing, brush management, prescribed burning and native plant restoration, in addition to reclaiming unneeded roads and well pads, WAFWA said.
But some insist a federal listing would be costly regardless of the regulatory assurances.
For example, a listing would still require federal agencies to consult with Fish and Wildlife biologists to ensure activities they fund or permit do not jeopardize the bird's survival or adversely modify critical habitat, which can slow down permits.
With the vast majority of chicken range on private lands, experts say there are relatively few federal actions that would require consultation.
Ben Shepperd, president of the Permian Basin Petroleum Association, said a listing could crimp oil production in Texas and New Mexico and would be a slap in the face to the companies that have agreed to voluntarily conserve the bird.
"A listing would be a tragedy," said Shepperd, whose member companies operate in the oil-rich basin that is frequented by prairie chickens.
"People have really spent a lot of blood, sweat and tears trying to put meaningful conservation on the ground," he said. "A federal listing throws all that work into the garbage."
'Rebellion in the West'?
A federal listing could fray Fish and Wildlife's partnerships with states and dampen industry's interest in collaborative conservation, observers said.
"You're going to see a rebellion in the West that makes the Sagebrush Rebellion look like a Girl Scout campfire," said Amos Eno, president of the Resources First Foundation, who oversaw endangered species issues at Interior in the 1970s. The "Sagebrush Rebellion" refers to a 1970s grass-roots movement protesting federal land management policies (Land Letter, April 1, 2010).
Eno said this is the first time Fish and Wildlife has considered listing a species as wide-ranging as the prairie chicken that lives almost entirely on private lands.
"Whatever they do at the end of the month with their decision, it's going to be a precedent for what comes next," he said, referring to Fish and Wildlife's court-ordered September 2015 deadline to decide whether to list the greater sage grouse, which roams 11 Western states. "If they list, I think you're going to see the oil and gas companies that have come to the table and made investments, you're going to see a major deflation in their involvement."
The scope of industry and landowner involvement for prairie chicken conservation is "totally unprecedented," Eno said, and is FWS's best option for conserving habitat on private lands, where enforcement of ESA "take" prohibitions is difficult at best.
"This is a scenario where you really need four carrots and one stick, not one carrot and four sticks," Eno said.
Doug Wheeler, a partner with the law firm Hogan Lovells who advises clients on how to comply with ESA regulations, said Fish and Wildlife's listing decision is an "eco-political" one.
"I think the case is quite strong that collaborative conservation will be stronger outcome than anything FWS could do after listing," Wheeler said.
Wheeler was among the state and industry groups meeting with Interior and Agriculture officials last week to discuss the prairie chicken decision. Groups met with Interior acting assistant secretaries Rachel Jacobson and Tommy Beaudreau, Department of Agriculture Undersecretary Robert Bonnie, and Natural Resources Conservation Service Chief Jason Weller, among others, Wheeler said.
Fish and Wildlife is being close-lipped about its listing decision. A final listing rule is said to have been prepared, though Director Dan Ashe is yet to sign it.
In the event of a listing, the agency is also pursuing other avenues to maximize regulatory flexibility for land users, namely by proposing a special 4(d) rule that would exempt those who participate in the WAFWA rangewide plan from the law's prohibition on take (Greenwire, Dec. 10, 2013).
The rule, which FWS proposed in December 2013, would also allow take if it's incidental to conservation practices carried out as part of NRCS's Lesser Prairie Chicken Initiative, or during continued "routine agricultural practices" on cultivated lands, such as plowing, mowing and operation of irrigation structures.
"Regardless of whether the lesser prairie chicken ultimately warrants the protection of the ESA, we can all agree that continued state leadership in management and recovery of this species, as well as a conservation strategy that is compatible with the economic well-being of ranchers and other private landowners, is what is needed here," Ashe said months ago. "The states' plan, along with this proposed special rule, could provide an unprecedented model for state leadership in conservation of a threatened species."
FWS is also considering issuing an incidental take permit to 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 WAFWA plan, though it is billed as more nimble because it allows prices to be set by developers and landowners (Greenwire, Feb. 7).
Unlike the WAFWA plan, the habitat credit exchange assumes the prairie chicken will eventually be listed.
Greens decry 'hysteria'
Environmentalists said they support the voluntary conservation efforts, but they warn they're too little and too late to prevent the prairie chicken's extinction.
"I don't see how Fish and Wildlife Service has any choice other than to list it," said Don Barry, executive vice president of Defenders of Wildlife, which has been highly critical of the agency's approval of WAFWA's CCAA.
The prairie chicken's habitat has already declined by about 84 percent, and it continues to face threats from oil and gas development, grazing, tree encroachment and conversion of rangeland to crops, Fish and Wildlife said. Its population plummeted to 17,000 birds last year following a severe drought -- down from twice that amount a year before.
"There is nothing to suggest the prairie chicken does not continue to need protection," said Noah Greenwald, endangered species director for the Center for Biological Diversity, whose settlement with Fish and Wildlife in 2011 compelled this month's listing decision. "Indeed, it has continued to decline and faces many threats even considering the various voluntary efforts, which are no substitute for real regulatory protection."
But given the number of conservation agreements that have been signed -- and the regulatory assurances they provide -- a threatened listing would be a "nothing-burger" in terms of economic impact, Barry said.
"This hysteria -- 'The prairie chicken is coming!' It's an overblown fear that never materializes," Barry said. "Having said that, yes, life would be different."
Development will go on, according to Fish and Wildlife.
For example, if oil prices are high, the WAFWA CCAA predicts up to 179,416 new oil wells could be drilled in the chicken's occupied range over the next 30 years, resulting in 3,218,716 acres of impact.
"The agreement seems to accommodate any and all disturbances by allowing participants to bypass avoidance and minimization in most instances and proceed directly to mitigation, much of which has not been documented to increase the species' abundance in the long term," Defenders said in comments to Fish and Wildlife criticizing the WAFWA CCAA. "Economic[s], not biology, determines mitigation outcomes."
The prairie chicken has been on the endangered species candidate list -- derided as "purgatory" by some environmental groups -- for more than a decade.