Prairie chicken ruling tests strength of voluntary conservation

By Phil Taylor | 10/15/2015 12:57 PM EDT

Will energy companies continue to protect habitat for a prairie grouse in the absence of government regulations?

Will energy companies continue to protect habitat for a prairie grouse in the absence of government regulations?

That question is being put to the test after a federal district judge in West Texas last month decided to strip Endangered Species Act protections from the lesser prairie chicken in five southern Great Plains states.

If oil and gas, pipeline, wind, and transmission companies continue shelling out millions of dollars to offset harm to the chicken — though they are under no legal obligation to do so — it would prove, to many stakeholders, the merits of voluntary conservation plans that have been a key plank in the Obama administration’s wildlife policy.


But reneging on commitments made while the chicken was listed or on the road to a listing would embolden environmentalists who say locally led, voluntary conservation plans only work when the regulatory hammer of ESA remains on the table.

Companies have so far stayed the course, according to state and nonprofit wildlife officials.

But at least one landowner who enrolled in a pre-listing conservation plan in New Mexico has inquired about getting his money back, the Fish and Wildlife Service said. The agency declined to confirm whether participation in voluntary conservation plans has held steady after the judge’s ruling, citing the ongoing litigation.

"Nobody has dropped out yet," said Bill Van Pelt, who oversees the largest plan, which is administered by the Western Association of Fish and Wildlife Agencies (WAFWA) and spans the chicken’s habitat in Texas, Oklahoma, Kansas, New Mexico and Colorado. "It’s business as usual."

The prairie chicken once roamed a territory larger than California, but its native grassland and prairie habitat shrank by 84 percent in the face of oil and gas drilling, roads, grazing, and the conversion of rangeland to crops.

In hopes of avoiding a federal listing, wildlife officials from the five states developed the lesser prairie chicken rangewide conservation plan (RWP). Companies that voluntarily enroll in the plan are required 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.

While FWS endorsed the plan in October 2013 — concluding it would provide a net conservation benefit to the species — the agency several months later decided to list the bird as threatened. FWS reasoned that at the time of its listing analysis, only 17 industry participants had enrolled 169,534 acres in the plan, and no landowners had enrolled.

That was just a tiny sliver of the chicken’s 40 million acres of habitat.

But participation in the WAFWA plan grew rapidly. Today, more than 180 oil, gas, wind, electric and pipeline companies have enrolled about 11 million acres across the five states, and have committed $47.5 million for habitat conservation, WAFWA reports.

Participating companies, including Continental Resources Inc., ConocoPhillips Co. and Devon Energy Corp., had a built-in incentive to pay: Participation in the WAFWA plan meant they’d be exempt from normal restrictions under ESA, namely the prohibition against incidental take.

But the threat of federal regulation was nullified last month in Judge Robert Junell’s ruling, which vacated FWS’s listing rule.

With no regulatory "stick," wildlife groups believe industry will stop ponying up before destroying the prairie chicken’s essential habitat.

"People who had previously been prepared to abide by the rules under a listing are now heading towards the bulldozers again, or wanting their conservation money back," said Don Barry, senior vice president for conservation programs at Defenders of Wildlife, which joined two other environmental groups in filing a federal lawsuit in Washington, D.C., that argued the prairie chicken should have been listed as endangered.

Backing away from a commitment

Barry’s prediction appears to have some credence.

Late last month, federal attorneys urged Junell to pare back his ruling, warning that fragmentation of the chicken’s habitat has increased in the 18 months since the service listed it as threatened and is at risk of accelerating.

Michelle Shaughnessy, the agency’s assistant regional director in Albuquerque, N.M., said in a statement to the court that a man who had enrolled in a voluntary conservation program in New Mexico prior to the listing has since asked FWS how he can get his money back now that the chicken is no longer protected.

He was enrolled in a candidate conservation agreement with assurances (CCAA), a program that allows participants to voluntarily conserve or restore chicken habitat in exchange for assurances that they won’t face additional restrictions if the chicken is listed. Similar CCAAs were signed in Texas and Oklahoma and as part of the WAFWA rangewide plan in an attempt to avert a federal listing.

While this was the only direct inquiry FWS had received from a landowner looking to abandon a previous conservation commitment, the agency said there are likely more enrollees considering terminating their participation in voluntary plans.

"FWS’s experience with voluntary conservation efforts supports the conclusion that development-based industries will be far less likely to commit substantial resources for voluntary conservation efforts, such as the RWP or CCAAs, if a species is not on the list of endangered and threatened wildlife or there is not an impending listing decision," Shaughnessy said.

Barry said it’s likely that if participants are looking to bail from New Mexico’s plan that they’re also likely considering leaving the five-state RWP.

Van Pelt, of WAFWA, said that’s not the case.

While no new companies have enrolled in the RWP since Junell’s ruling, none has inquired about leaving, either, Van Pelt said.

"The decision by the judge really does not impact the implementation of the plan," he said.

If a company did want to terminate its participation, it would have to relinquish three years of enrollment fees that amount to $6.75 per acre enrolled. Those enrollment fees can be used to mitigate harm to chicken habitat under the plan, so companies may have a financial incentive to stay in the near term.

Van Pelt said he expects industry to stick around for the long haul, regardless of whether Junell’s ruling is sustained against government appeals. That’s because the cost of pro-active conservation now could avoid much higher costs of ESA compliance in the future, he said.

"They see the advantage of not getting to the point of having to list the species," he said.

In the plan’s first year, companies located 70 percent of harmful projects in lower-quality chicken habitat, which helped preserve focal areas and connectivity zones that are critical to the bird’s long-term survival, Van Pelt said.

The plan has secured 10 decadelong contracts that will pay landowners $14.7 million to preserve and restore chicken habitat across 96,000 acres, WAFWA said.

Participation in New Mexico’s CCAA for lesser prairie chickens has also held steady, said Doug Lynn of the nonprofit Center of Excellence, which oversees the plan.

"Nothing has changed here," Lynn said, noting that the plan still enrolls roughly 50 industry partners and spans millions of acres.

Avoidance and mitigation steps — bolstered by favorable rains — have resulted in "record increases" in the number of birds across the range in New Mexico and particularly in core areas in Lea, Roosevelt, Curry and Chaves counties, he said.

Despite Junell’s ruling, the bird remains on the brink of a potential ESA listing, Lynn said. Industry has a built-in incentive to continue its previous conservation commitments, he added.

"They see the writing on the wall. They can see what is in the best interest of their industry."

‘It’s all a secret’

In the past few years, FWS has relied on locally led, voluntary conservation partnerships to withdraw a proposed ESA listing for the dunes sagebrush lizard, a 3-inch reptile whose shinnery oak habitat overlaps with Permian Basin oil lands, and a looming listing for the Arctic grayling fish in Montana. Candidate conservation plans also played a minor role in FWS’s decision last month not to list the greater sage grouse across 11 Western states.

FWS Director Dan Ashe said that while he’s hopeful Junell’s prairie chicken ruling will be reversed, WAFWA’s implementation of the rangewide plan will continue "unaltered." He defended FWS’s reliance on state-led conservation efforts, calling them an effective alternative to blanket federal regulations.

Yet skeptics of the prairie chicken plans say they’ll be watching closely for any wavering by industry now that ESA restrictions have been removed.

While Fish and Wildlife has special access to a secured database that lists all the participants in the WAFWA rangewide plan, it declined to check on participation rates for this article.

That makes it hard for the public to verify that imperiled wildlife are being adequately protected, Barry said.

"It’s all a secret," he said. "It just seems fundamentally wrong."

Defenders of Wildlife has challenged other voluntary conservation plans that it felt lacked transparency. The group in summer 2013 sued FWS for relying on a CCAA in Texas as a basis for withdrawing a proposed endangered listing for the dunes sagebrush lizard. The U.S. District Court for the District of Columbia in fall 2014 upheld FWS’s decision.

In the case of the prairie chicken, the absence of federal restrictions has cleared the way for more habitat to be destroyed, FWS said.

For example, the owner of one parcel of land in Prowers County, Colo., that has 320 acres of occupied lesser prairie chicken habitat now believes he can clear the land to build a dairy farm without an ESA permit and has been advised by his lawyer to do so, Shaughnessy said in her statement to the court.

"Vacatur of the listing decision makes it increasingly likely that essential habitat for the species will be converted to unsuitable habitat," she said, "increasing the habitat fragmentation of the species, and making it more likely that the species will become extinct."