[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Rules and Regulations]
[Pages 72674-72755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25214]
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Vol. 87
Friday,
No. 226
November 25, 2022
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken;
Threatened Status With Section 4(d) Rule for the Northern Distinct
Population Segment and Endangered Status for the Southern Distinct
Population Segment; Final Rule
Federal Register / Vol. 87 , No. 226 / Friday, November 25, 2022 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0015; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BB27
Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status With Section 4(d) Rule for the Northern
Distinct Population Segment and Endangered Status for the Southern
Distinct Population Segment
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing
two Distinct Population Segments (DPSs) under the Endangered Species
Act of 1973 (Act), as amended, for the lesser prairie-chicken
(Tympanuchus pallidicinctus), a grassland bird known from southeastern
Colorado, western Kansas, eastern New Mexico, western Oklahoma, and the
Texas Panhandle. We determine threatened status for the Northern DPS
and endangered status for the Southern DPS. This rule adds the DPSs to
the List of Endangered and Threatened Wildlife. We also finalize a rule
under the authority of section 4(d) of the Act that provides measures
that are necessary and advisable to provide for the conservation of the
Northern DPS.
DATES: This rule is effective January 24, 2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2021-0015.
FOR FURTHER INFORMATION CONTACT: Beth Forbus, Regional ES Program
Manager, Southwest Regional Office, 500 Gold Ave SW, Albuquerque, NM
87102; telephone 505-318-8972. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). If we
determine that a species warrants listing, we must list the species
promptly and designate the species' critical habitat to the maximum
extent prudent and determinable. We have determined that the Northern
DPS of the lesser prairie-chicken meets the definition of a threatened
species and that the Southern DPS of the lesser prairie-chicken meets
the definition of an endangered species; therefore, we are listing them
as such and finalizing a rule under section 4(d) of the Act for the
Northern DPS. Listing a species as an endangered or threatened species
can be completed only by issuing a rule through the Administrative
Procedure Act's rulemaking process.
What this document does. This rule revises the regulations in title
50 of the Code of Federal Regulations to list the Northern DPS of the
lesser prairie-chicken as a threatened species with a rule under
section 4(d) of the Act and the Southern DPS of the lesser prairie-
chicken as an endangered species under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that both the northern and
southern parts of the lesser prairie-chicken's range are discrete and
significant under our DPS Policy and are, therefore, listable entities
under the Act. The Southern DPS includes the Shinnery Oak Ecoregion in
New Mexico and Texas, and the Northern DPS includes the Sand Sagebrush
Ecoregion, the Mixed-Grass Ecoregion, and the Short-Grass/Conservation
Reserve Program (CRP) Ecoregion in Texas, Oklahoma, Colorado, and
Kansas. These two DPSs together encompass the entirety of the lesser
prairie-chicken's range. The primary threat impacting both DPSs is the
ongoing loss of large, connected blocks of grassland and shrubland
habitat. The Southern DPS has low resiliency, redundancy, and
representation and is particularly vulnerable to severe droughts due to
being located in the dryer and hotter southwestern portion of the
range. Because the Southern DPS is currently at risk of extinction, we
are listing it as endangered.
In the Northern DPS, as a result of habitat loss and fragmentation,
resiliency has been much reduced across two of the ecoregions in the
Northern DPS when compared to historical conditions. However, this DPS
still has redundancy across the three ecoregions and genetic and
environmental representation. We expect habitat loss and fragmentation
across the Northern DPS to continue into the foreseeable future,
resulting in even further reduced resiliency. Because the Northern DPS
is at risk of extinction in the foreseeable future, we are listing it
as threatened. The section 4(d) rule for the Northern DPS of the lesser
prairie-chicken generally prohibits the same activities as prohibited
for an endangered species. It includes exceptions from take associated
with continuation of routine agricultural practices on existing
cultivated lands, implementation of prescribed fire for the purposes of
grassland management, and implementation of prescribed grazing
following a grazing management plan developed by a Service-approved
party.
List of Acronyms
We use many acronyms in this rule. For the convenience of the
reader, we define some of them here:
ACEC = Area of Critical Environmental Concern
BLM = Bureau of Land Management
CI = confidence interval
CCAA = candidate conservation agreement with assurances
CCA/CCAA = candidate conservation agreement and candidate
conservation agreement with assurances
CDL = Cropland Data Layer
CHAT = Crucial Habitat Assessment Tool
CPW = Colorado Parks and Wildlife
CRP = Conservation Reserve Program
DOE = Department of Energy
DPS = Distinct Population Segment
EOR = Estimated occupied range
EOR+10 = Estimated occupied range plus a 10-mile buffer
FSA = U.S. Department of Agriculture's Farm Services Agency
KDWP = Kansas Department of Wildlife and Parks (formerly KDWPT:
Kansas Department of Wildlife, Parks, and Tourism)
LPCI = Lesser Prairie-Chicken Initiative
NRCS = Natural Resources Conservation Service
ODWC = Oklahoma Department of Wildlife Conservation
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PECE = Policy for the Evaluation of Conservation Efforts when Making
Listing Decisions
PFW = the Service's Partners for Fish and Wildlife Program
RMPA = Resource Management Plan Amendment
RWP = Lesser Prairie-Chicken Range-wide Conservation Plan
SSA = Species Status Assessment
TPWD = Texas Parks and Wildlife Department
USDA = U.S. Department of Agriculture
USFS = U.S. Forest Service
WAFWA = Western Association of Fish and Wildlife Agencies
LWEG = Land-Based Wind Energy Guidelines
Previous Federal Actions
Please refer to the proposed listing rule for the Northern DPS and
the Southern DPS of the lesser prairie-chicken for a detailed
description of previous Federal actions concerning this species (86 FR
29432, June 1, 2021).
Summary of Changes From the Proposed Rule
Based upon our review of the public comments, State agency
comments, peer review comments, and relevant information that became
available since the proposed rule published, we updated information in
our species status assessment report, including:
adding references on the effects of overhead power lines,
adding a discussion regarding the effects from competition
with ring-necked pheasants,
updating monitoring information related to the
translocation efforts in the Sand Sagebrush Ecoregion,
updating information related to conservation banks,
updating information related to previous conservation
efforts,
adding discussion regarding the Southern Plains Grassland
Program,
updating information related to the recent purchase by the
New Mexico Department of Game and Fish of additional lands to be
managed for the lesser prairie-chicken, and
updating current population abundance information using
the 2021 aerial survey results.
We also made changes as appropriate in this final rule. In addition
to minor clarifying edits and incorporation of additional information
on the species' biology, populations, and threats, this determination
differs from the proposal in the following ways:
(1) We included updated population trend data, including survey
data made available since the publication of the proposed rule. Some of
these population survey results became available after we finalized the
SSA report. Thus, though the SSA report does not include those results,
we have added them to this final rule and fully considered them in our
determinations on the status of the two DPSs.
(2) We included new and updated conservation actions as submitted
by commenters during the open comment period.
(3) Based on public comments, we expanded our Significant Portion
of the Range analysis to explain why the Sand Sagebrush Ecoregion is
not significant.
(4) Based on comments received from State agencies, local
governments, industry groups, and private citizens, we have updated the
section 4(d) rule to include one new exception from the section 9 take
prohibitions:
The new exception is for take incidental to grazing management when
land managers are following a site-specific grazing plan developed by a
party that has been approved by the Service. When livestock grazing is
managed in ways that are compatible with promoting the maintenance of
the vegetative characteristics needed by the lesser prairie-chicken,
this activity can be an invaluable tool necessary for managing healthy
grasslands benefiting the lesser prairie-chicken. Therefore, we
consider this new exception from prohibitions to be necessary and
advisable to the conservation of the species.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the lesser prairie-chicken. The SSA team was composed of Service
biologists in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. In accordance with our joint policy on peer
review published in the Federal Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of six appropriate specialists regarding the SSA. We received
four responses. We also sent the SSA report to the five State fish and
wildlife agencies within the range of the lesser prairie-chicken
(Colorado, Kansas, New Mexico, Oklahoma, and Texas) and the four
primary Federal agencies with whom we work to deliver conservation
actions that could benefit the lesser prairie-chicken: the Bureau of
Land Management (BLM) the U.S. Department of Agriculture's Natural
Resources Conservation Service (NRCS), Farm Service Agency (FSA), and
U.S. Forest Service (USFS). These partners include scientists with
expertise in management of either the lesser prairie-chicken or the
habitat upon which the lesser prairie-chicken depends. We received
responses from USFS, BLM, and all five of the State wildlife agencies.
Comments and feedback from partners and peer reviewers were
incorporated into the SSA report as appropriate and have informed this
final rule.
I. Final Listing Determination
Background
Below is a summary of the taxonomy, life history, and ecology of
the lesser prairie-chicken; for a thorough review, please see the SSA
report (version 2.3; Service 2022, pp. 5-14).
The lesser prairie-chicken is in the order Galliformes, family
Phasianidae, subfamily Tetraoninae; it is generally recognized as a
species separate from the greater prairie-chicken (Tympanuchus cupido
pinnatus) (Jones 1964, pp. 65-73; American Ornithologist's Union 1998,
p. 122).
Most lesser prairie-chicken adults live for 2 to 3 years and
reproduce in the spring and summer (Service 2022, pp. 10-12). Males
congregate on leks during the spring to attract and mate with females
(Copelin 1963, p. 26; Hoffman 1963, p. 730; Crawford and Bolen 1975, p.
810; Davis et al. 1979, p. 84; Merchant 1982, p. 41; Haukos 1988, p.
49). Male prairie-chickens tend to exhibit strong breeding site
fidelity, often returning to a specific lek many times, even in cases
of declining female attendance and habitat condition (Copelin 1963, pp.
29-30; Hoffman 1963, p. 731; Campbell 1972, pp. 698-699, Hagen et al.
2005, entire, Harju et al. 2010, entire). Females tend to establish
nests relatively close to the lek, commonly within 0.6 to 2.4 mile (mi)
(1 to 4 kilometers (km)) (Copelin 1963, p. 44; Giesen 1994, p. 97),
where they incubate 8 to 14 eggs for 24 to 27 days and then raise
broods of young throughout the summer (Boal and Haukos 2016, p. 4).
Some females will attempt a second nesting if the first nest fails
(Johnsgard 1973, pp. 63-64; Merchant 1982, p. 43; Pitman et al. 2006,
p. 25). Eggs and young lesser prairie-chickens are susceptible to
natural mortality from environmental stress and predation. The
appropriate vegetative community and structure is vital to provide
cover for nests and young and to provide food resources as broods
mature into adults (Suminski 1977, p. 32; Riley 1978, p. 36; Riley et
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al. 1992, p. 386; Giesen 1998, p. 9). For more detail on habitat needs
of the lesser prairie-chicken, please see the SSA report (Service 2022,
pp. 9-14).
The lesser prairie-chicken once ranged across the Southern Great
Plains of Southeastern Colorado, Southwestern Kansas, Western Oklahoma,
the Panhandle and South Plains of Texas, and Eastern New Mexico;
currently, it occupies a substantially reduced portion of its presumed
historical range (Rodgers 2016, p. 15). Estimates of the potential
maximum historical range of the lesser prairie-chicken (e.g., Taylor
and Guthery 1980a, p. 1, based on Aldrich 1963, p. 537; Johnsgard 2002,
p. 32; Playa Lakes Joint Venture 2007, p. 1) range from about 64-115
million acres (ac) (26-47 million hectares (ha)). The more recent
estimate of the historical range of the lesser prairie-chicken
encompasses an area of approximately 115 million ac (47 million ha).
Presumably, not all of the area within this historical range was evenly
occupied by lesser prairie-chicken, and some of the area may not have
been suitable to regularly support lesser prairie-chicken populations
(Boal and Haukos 2016, p. 6). However, the current range of the lesser
prairie-chicken has been significantly reduced from the historical
range at the time of European settlement. Estimates as to the extent of
the loss vary from greater than 90 percent reduction (Hagen and Giesen
2005, unpaginated) to approximately 83 percent reduction (Van Pelt et
al. 2013, p. 3).
Lesser prairie-chicken monitoring has been occurring for multiple
decades and has included multiple different methodologies. Estimates of
population abundance prior to the 1960s are indeterminable and rely
almost entirely on anecdotal information (Boal and Haukos 2016, p. 6).
While little is known about precise historical population sizes, the
lesser prairie-chicken was reported to be quite common throughout its
range in the early 20th century (Bent 1932, pp. 280-281, 283; Baker
1953, p. 8; Bailey and Niedrach 1965, p. 51; Sands 1968, p. 454;
Fleharty 1995, pp. 38-44; Robb and Schroeder 2005, p. 13). For example,
prior to 1900, as many as two million birds may have existed in Texas
alone (Litton 1978, p. 1). Information regarding population size is
available starting in the 1960s when the State fish and wildlife
agencies began routine lesser prairie-chicken monitoring efforts.
However, survey methodology and effort have differed over the decades,
making it difficult to precisely estimate trends.
The SSA report and this final rule rely on two main population
estimates. The two methodologies largely cover different time periods,
so we report the results of both throughout this final rule in order to
give the best possible understanding of lesser prairie-chicken trends
both recently and throughout the past decades.
The first of the two studies used historical lek surveys and
population reconstruction methods to calculate historical trends and
estimate male abundance from 1965 through 2016 (Hagen et al. (2017, pp.
6-9). We have concerns with some of the methodologies and assumptions
made in this analysis including survey effort prior to the 1970s,
variation in survey efforts between States, and completeness and
accuracy of source data used. Others have also noted the challenges of
using these data for long-term trends (for example, Zavaleta and Haukos
2013, p. 545; Cummings et al. 2017, pp. 29-30). While these concerns
remain, including the very low sample sizes particularly in the 1960s,
this work represents the only attempt to compile the historical ground
lek count data collected by State agencies to estimate the number of
males at both the range-wide and ecoregional scales, and represents the
best available data for understanding historical population trends.
Following development of aerial survey methods (McRoberts et al.
2011, entire), the second summary of lesser prairie-chicken population
data uses more statistically rigorous estimates of lesser prairie-
chicken abundance (both males and females). This study was designed to
address the shortcomings and limitations associated with ground-based
survey efforts as discussed above. This second study uses data from
aerial line-transect surveys throughout the range of the lesser
prairie-chicken; these results are then extrapolated from the surveyed
area to the rest of the range (Nasman et al. 2022, entire). The results
of these survey efforts should not be taken as precise estimates of the
annual lesser prairie-chicken abundance, as indicated by the large
confidence intervals associated with these estimates. The confidence
intervals are a calculation related to the degree of certainty or
uncertainty that the sampling method results in estimates that
represent the true population abundance.
Due to the lack of confidence in the precision of these population
estimates as reflected by the large confidence intervals, conclusions
regarding current population sizes or population changes should not be
drawn based upon annual fluctuations. In addition to the large
confidence intervals, the lesser prairie-chicken is considered a
``boom-bust'' species with a high degree of annual variation in rates
of successful reproduction and recruitment. These annual and short-term
patterns are largely driven by the influence of seasonal precipitation
patterns. Periods of below-average precipitation and higher spring/
summer temperatures cause less suitable grassland vegetation cover and
less food available, resulting in decreased reproductive output (bust
periods). Periods with above-normal precipitation and cooler spring/
summer temperatures will support favorable habitat conditions and
result in higher reproductive success (boom periods). Thus, annual
population changes are not a measure of population health but instead
largely represent the influence of short-term precipitation cycles
whereas long-term population trends are tied to habitat availability.
Instead of reporting the annual estimates, the best use of this data is
for long-term trend analysis. Thus, in the SSA report and this final
rule, we report the population estimate for the current condition as
the average of the past 5 years of surveys.
The results of the study using ground-based lek data (abundance of
males) indicate that lesser prairie-chicken range-wide abundance (based
on a minimum estimated number of male lesser prairie-chickens at leks)
peaked during 1965-1970 at a mean estimate of about 175,000 males
(figure 1). The estimated mean population maintained levels of greater
than 100,000 males until 1989, after which the population steadily
declined to a low of 25,000 males in 1997 (Garton et al. 2016, p. 68).
The mean population estimates following 1997 peaked again at about
92,000 males in 2006, albeit at a significantly lower value than the
prior peak of 175,000. The mean population estimate subsequently
declined to 34,440 males in 2012 (figure 1).
The aerial survey results from 2012 through 2022 (figure 2)
estimated the lesser prairie-chicken population abundance, averaged
over the most recent 5 years of surveys (2017-2022, no surveys in
2019), at 32,210 (including males and females; 90 percent confidence
interval: 11,489, 64,303) (Nasman et al. 2022, p. 16; table 10).
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[GRAPHIC] [TIFF OMITTED] TR25NO22.029
The preferred habitat of the lesser prairie-chicken is mixed-grass
prairies and shrublands, with the exception of some areas in the
northern extent of the range where shrubs play a lesser role. Lesser
prairie-chickens appear to select areas having a shrub component
dominated by sand sagebrush or sand shinnery oak when those areas are
available (Donaldson 1969, pp. 56, 62; Taylor and Guthery 1980a, p. 6;
Giesen 1998, pp. 3-4). In the southern and central portions of the
lesser prairie-chicken range, small shrubs, such as sand shinnery oak,
are important for summer shade (Copelin 1963, p. 37; Donaldson 1969,
pp. 44-45, 62), winter protection, and as supplemental foods (Johnsgard
1979, p. 112). In some areas in the northern extent of the species'
range, stands of grass that provide adequate vegetative structure
likely serve the same roles. The absence of anthropogenic features as
well as other vertical structures is important, as lesser prairie-
chickens tend to avoid using areas with trees, vertical structures, and
other disturbances in areas with otherwise adequate habitat conditions
(Braun et al. 2002, pp. 11-13; Pruett et al. 2009, pp. 1256, 1258;
Hovick et al. 2014a, p. 1685; Boggie et al. 2017, entire; Lautenbach
2017, pp. 104-142; Plumb et al. 2019, entire).
At the population scale, the most important requirement for the
lesser prairie-chicken is having large, intact, ecologically diverse
grasslands to complete their life history and maintain healthy
populations (Fuhlendorf et al. 2017b, entire). As detailed in chapter 2
of the SSA report, the lesser prairie-chicken requires large
ecologically diverse grasslands to meet specific resource needs, in
terms of microhabitat conditions, which vary to some degree by life
stage and activity (Service 2022, pp. 10-11). Historically, these
ecologically diverse grasslands and shrublands were maintained by the
occurrence of wildfires (keeping woody vegetation restricted to
drainages and rocky outcroppings) and by grazing by bison and other
large ungulates. The lesser prairie-chicken is a species that requires
large, intact grasslands for functional self-sustaining populations
(Giesen 1998, pp. 3-4; Bidwell et al. 2002, pp. 1-3; Hagen et al. 2004,
pp. 71, 76-77; Haukos and Zavaleta 2016, p. 107).
The lesser prairie-chicken now occurs within four ecoregions
(figure 3); these ecoregions were originally delineated in 2012 as part
of the aerial survey designed to monitor long-term trends in lesser
prairie-chicken populations. Each ecoregion is associated with unique
environmental conditions based on habitat and climatic variables and
some genetic differentiation (Boal and Haukos 2016, p. 5; Oyler-McCance
et al. 2016, p. 653). These four ecoregions are the Short-Grass
Prairie/CRP Ecoregion in Kansas; the Sand Sagebrush Prairie Ecoregion
in Colorado, Kansas, and Oklahoma; the Mixed-Grass Prairie Ecoregion in
Kansas, Texas, and Oklahoma; and the Shinnery Oak Prairie Ecoregion of
New Mexico and Texas.
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[GRAPHIC] [TIFF OMITTED] TR25NO22.030
The Shinnery Oak Ecoregion occupies portions of eastern New Mexico
and the South Plains of Texas (McDonald et al. 2012, p. 2). It has a
variable vegetation community that contains a mix of shrubs such as
sand shinnery oak (Quercus havardii) and sand sagebrush (Artemisia
filifolia) as well as mixed and tall grasses and forbs (Grisham et al.
2016a, p. 317). The mean population estimate ranged between about 5,000
to 12,000 males through 1980, increased to 20,000 males in the mid-
1980s and declined to ~1,000 males in 1997 (Hagen et al. 2017, pp. 6-
9). The mean population estimate peaked again to ~15,000 males in 2006
and then declined again to fewer than 3,000 males in the mid-2010s.
While population estimates for the Shinnery Oak Ecoregion have varied
over recent years, the most recent surveys estimate a 5-year average
population size of 2,806 birds (including males and females; 90 percent
confidence intervals (CI): 179, 9,007). Approximately 9 percent of all
lesser prairie-chicken occur in this ecoregion. Lesser prairie-chickens
from the Shinnery Oak Ecoregion are genetically distinct and
geographically isolated from the other three ecoregions by 95 mi (153
km) (figure 3; Oyler-McCance et al. 2016, p. 653). Historically, the
Shinnery Oak Ecoregion was likely connected to the rest of the lesser
prairie-chicken range but as a result of habitat loss and fragmentation
from European settlement the lesser prairie-chicken in the Shinnery Oak
Ecoregion have likely been isolated for over a century (Oyler-McCance
et al. 2016, p. 655).
In New Mexico, the majority of the Shinnery Oak Ecoregion is
privately owned (Grisham et al. 2016a, p. 315), with some portions
owned by the State Game Commission and federally owned BLM lands.
Nearly all of the area in the Texas portion of the ecoregion is
privately owned and managed for agricultural use and petroleum
production (Haukos 2011, p. 110). The remaining patches of shinnery oak
prairie have become isolated, relict communities because the
surrounding grasslands have been converted to row crop agriculture or
fragmented by oil and gas exploration and urban development (Peterson
and Boyd 1998, p. 22). Additionally, honey mesquite (Prosopis
glandulosa) encroachment within this ecoregion has played a significant
role in decreasing available space for the lesser prairie-chicken.
Technological advances in irrigated row crop agriculture have led to
more recent conversion of shinnery oak prairie habitat to row crops in
Eastern New Mexico and West Texas (Grisham et al. 2016a, p. 316).
[[Page 72679]]
The Sand Sagebrush Ecoregion occurs in Southeast Colorado,
Southwest Kansas, and a small portion of Western Oklahoma (McDonald et
al. 2012, p. 2). The vegetation community in this area primarily
consists of sand sagebrush and the associated mixed and tall grass
species that are usually found in the sandier soils adjacent to rivers,
streams, and other drainages in the area. Lesser prairie-chicken from
the Sand Sagebrush Ecoregion show some genetic differentiation from
other ecoregions but have likely contributed some individuals to the
Short-Grass/CRP Ecoregion through dispersal (Oyler-McCance et al. 2016,
p. 653).
Historically, the Sand Sagebrush Ecoregion supported the highest
density of lesser prairie-chicken and was considered the core of the
lesser prairie-chicken range (Haukos et al. 2016, p. 282). A single
flock detected in Seward County, Kansas, was estimated to contain more
than 15,000 birds (Bent 1932, p. 281). The population size is estimated
to have peaked at more than 85,000 males in the 1970s (Garton et al.
2016, p. 62). More recent survey efforts estimate a 5-year average
population size of 1,297 birds (including males and females; 90 percent
CI: 56, 4,881; Nasman et al. 2022, p. 16). Less than 5 percent of all
lesser prairie-chicken occur in this ecoregion (Service 2022, pp. 64-
78). Most of the decline has been attributed to habitat deterioration
and conversion of sand sagebrush to intensive row crop agriculture due
to an increase in center pivot irrigation (Jensen et al. 2000, p. 172).
Environmental conditions in this ecoregion can be extreme, with
stochastic events such as blizzards negatively impacting lesser
prairie-chicken populations.
The Short-Grass/CRP Ecoregion falls within the mixed- and short-
grass prairies of Central and Western Kansas (McDonald et al. 2012, p.
2). As the name implies, much of this ecoregion historically consisted
of short-grass prairie interspersed with mixed-grass prairie as well as
sand sagebrush prairie along some drainages (Dahlgren et al. 2016, p.
260). By the 1980s, large expanses of prairies had been converted from
native grass for crop production in this ecoregion. After the
introduction of the CRP in 1985, landowners began to have enhanced
incentives to convert croplands to perennial grasslands to provide
cover for the prevention of soil erosion. The State of Kansas required
those enrolling in the CRP to plant native mixed- and tall-grass
species, which is notable because the grasses in this area historically
consisted largely of short-grass species, which generally do not
provide adequate habitat for the lesser prairie-chicken. For more
information on the CRP, see the SSA report (Service 2022, pp. 52-54).
Prior to the late 1990s, lesser prairie-chickens in this ecoregion
were thought to be largely absent (or occurred sporadically in low
densities) (Hagen and Giesen 2005, unpaginated; Rodgers 1999, p. 19).
We do not know what proportion of the eastern Short-Grass/CRP Ecoregion
in Kansas was historically occupied by lesser prairie-chicken (Hagen
2003, pp. 3-4), and surveys in this ecoregion only began in earnest in
1999 (Dahlgren et al. 2016, p. 262). The CRP is an idle lands program,
which requires establishment of grass cover and precludes tillage or
agricultural commodity production for the duration of the contract, and
has contractual limits to the type, frequency, and timing of management
activities, such as burning, haying, or grazing of the established
grasses. As a result of these factors, CRP often provides the
vegetative structure preferentially used by lesser prairie-chickens for
nesting. In the State of Kansas, the availability of CRP lands,
especially CRP lands with interseeded or original seed mixture of
forbs, resulted in increased habitat availability for the lesser
prairie-chicken and, thus, an expansion of the known lesser prairie-
chicken range and an increase in the abundance of the lesser prairie-
chicken (Rodgers 1999, pp. 18-19; Fields 2004, pp. 11, 105; Fields et
al. 2006, pp. 931, 937; Sullins et al. 2018, p. 1617).
The Short-Grass/CRP Ecoregion is now estimated to contain the
majority of lesser prairie-chickens compared to the other ecoregions,
with recent survey efforts estimating a 5-year average population size
of 23,083 birds (including males and females; 90 percent CI: 9,653,
39,934), representing approximately 72 percent of the rangewide
population. Recent genetic studies indicate that lesser prairie-
chickens have moved northward largely from the Mixed-Grass Ecoregion
and, to a lesser extent, the Sand Sagebrush Ecoregion into the Short-
Grass/CRP Ecoregion (Oyler-McCance et al. 2016, p. 653).
The northern section of this ecoregion is the only portion of the
lesser prairie-chicken's range where co-occurrence with greater
prairie-chicken occurs. Hybridization rates of up to 5 percent have
been reported (Pitman 2013, p. 5), and that rate seemed to be stable
across multiple years, though sampling is limited where the species co-
occur (Pitman 2013, p. 12). Limited additional work has been completed
to further assess the rate of hybridization. There are concerns about
the implications of genetic introgression (dilution) of lesser prairie-
chicken genes, particularly given that potential effects are poorly
understood (Dahlgren et al. 2016, p. 276). Unresolved issues include
whether hybridization reduces fitness and alters behavior or
morphological traits in either a positive or negative way and the
historical occurrence and rate of hybridization.
The Mixed-Grass Ecoregion for the lesser prairie-chicken lies in
the northeastern panhandle of Texas, the panhandle of northwestern
Oklahoma, and south-central Kansas (McDonald et al. 2012, p. 2). The
Mixed-Grass Ecoregion is separated from the Short-Grass/CRP Ecoregion
in Kansas by the Arkansas River. The vegetation community in this
ecoregion consists largely of a mix of perennial grasses and shrubs
such as sand sagebrush, sand plum (Prunus angustifolia), yucca (Yucca
spp.), and sand shinnery oak (Wolfe et al. 2016, p. 300). Based upon
population reconstruction data, the mean population estimate was around
30,000 males in the 1970s and 1980s followed by a decline in the 1990s
(Hagen et al. 2016, pp. 6-7). The mean population estimate peaked again
in the early 2000s at around 25,000 males, before declining to and
remaining at its lowest levels, less than 10,000 males since 2012
(Hagen et al. 2016, pp. 6-7). Although historical population estimates
in the ecoregion reported some of the highest densities of lesser
prairie-chicken in the range (Wolfe et al. 2016, p. 299), recent aerial
survey efforts estimate a 5-year average population size of 5,024 birds
(including males and females; 90 percent CI: 1,601, 10,481). The recent
survey work indicates that about 15 percent of lesser prairie-chicken
occur in this ecoregion. Lesser prairie-chicken from the Mixed-Grass
Ecoregion are similar in genetic variation with the Short-Grass/CRP
Ecoregion, with individuals likely dispersing from the Mixed-Grass
Ecoregion to the Short-Grass/CRP Ecoregion (Oyler-McCance et al. 2016,
p. 653).
Distinct Population Segment Evaluation
Under the Act, the term ``species'' includes ``any subspecies of
fish or wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature.''
16 U.S.C. 1532(16). To guide the implementation of the distinct
population segment (DPS) provisions of the Act, we and the National
Marine Fisheries Service (National Oceanic and Atmospheric
Administration--Fisheries), published
[[Page 72680]]
the Policy Regarding the Recognition of Distinct Vertebrate Population
Segments Under the Endangered Species Act (DPS Policy) in the Federal
Register on February 7, 1996 (61 FR 4722). Under our DPS Policy, we use
two elements to assess whether a population segment under consideration
for listing may be recognized as a DPS: (1) The population segment's
discreteness from the remainder of the species to which it belongs, and
(2) the significance of the population segment to the species to which
it belongs. If we determine that a population segment being considered
for listing is a DPS, then the population segment's conservation status
is evaluated based on the five listing factors established by the Act
to determine if listing it as either endangered or threatened is
warranted.
As described in Previous Federal Actions, we were petitioned to
list the lesser prairie-chicken either rangewide or in three distinct
population segments. The petition suggested three DPS configurations:
(1) Shinnery Oak Ecoregion, (2) the Sand Sagebrush Ecoregion, and (3) a
segment including the Mixed-Grass Ecoregion and the Short-Grass/CRP
Ecoregion. The petition combined the Mixed-Grass Ecoregion and the
Short-Grass/CRP Ecoregion due to evidence they are linked genetically
and geographically (Molver 2016, p. 18). Genetic studies indicate that
lesser prairie-chicken from the Mixed-Grass Ecoregion are similar in
genetic variation with the Short-Grass/CRP Ecoregion, with individuals
likely dispersing from the Mixed-Grass Ecoregion to the Short-Grass/CRP
Ecoregion (Oyler-McCance et al. 2016, p. 653). Other genetic data
indicate that lesser prairie-chicken from the Sand Sagebrush Ecoregion
and lesser prairie-chicken from the Mixed-Grass and Short-Grass/CRP
Ecoregion also share genetic traits. Genetic studies of neutral markers
indicate that, although lesser prairie-chicken from the Sand Sagebrush
Ecoregion form a distinct genetic cluster from other ecoregions, they
have also likely contributed some individuals to the Short-Grass/CRP
Ecoregion through dispersal (Oyler-McCance et al. 2016, p. 653).
Additionally, these three ecoregions are not geographically isolated
from one another (figure 3). As a result of the shared genetic
characteristics and the geographic connections, we have concluded a
``Northern'' population segment of the species that includes the Sand
Sagebrush Ecoregion, the Mixed-Grass Ecoregion, and the Short-Grass/CRP
Ecoregion is appropriately considered a potential DPS configuration.
Under the Act, we have the authority to consider for listing any
species, subspecies, or, for vertebrates, any distinct population
segment (DPS) of these taxa if there is sufficient information to
indicate that such action may be warranted. We considered whether two
segments meet the DPS criteria under the Act: a ``Southern'' population
segment, including the southernmost ecoregion (Shinnery Oak), and a
``Northern'' population segment, including the three northernmost
ecoregions (Mixed-Grass, Short-Grass/CRP, and Sand Sagebrush).
Discreteness
Under our DPS Policy, a population segment of a vertebrate taxon
may be considered discrete if it satisfies either of the following
conditions: (1) It is markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or
behavioral factors (Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation.); or (2) it is
delimited by international governmental boundaries within which
differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the Act.
We conclude the two segments satisfy the ``markedly separate''
condition. The two segments are not separated from each other by
international governmental boundaries. The southern population segment
(which includes the Shinnery Oak ecoregion) is separated from the
northern population segment (which includes the three northern
ecoregions) by approximately 95 mi (153 km). Most of this separation
between the two segments is developed or otherwise unsuitable habitat.
There has been no recorded movement of lesser prairie-chickens between
the Shinnery Oak Ecoregion and the three northern ecoregions over the
past several decades. Because there is no connection between the two
population segments, there is subsequently no gene flow between them
(Oyler-McCance et al. 2016, entire).
Therefore, we have determined that both a southern segment and a
northern segment of the lesser prairie-chicken range both individually
meet the condition for discreteness under our DPS Policy.
Significance
Under our DPS Policy, once we have determined that a population
segment is discrete, we consider its biological and ecological
significance to the larger taxon to which it belongs. This
consideration may include, but is not limited to: (1) Evidence of the
persistence of the discrete population segment in an ecological setting
that is unusual or unique for the taxon, (2) evidence that loss of the
population segment would result in a significant gap in the range of
the taxon, (3) evidence that the population segment represents the only
surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historical range, or
(4) evidence that the discrete population segment differs markedly from
other populations of the species in its genetic characteristics.
For the lesser prairie-chicken, we first considered evidence that
the Shinnery Oak Ecoregion population segment differs markedly from the
other populations of the species, i.e., the ecoregions that constitute
the Northern population segment (Mixed-Grass Ecoregion, Short-Grass/CRP
Ecoregion, and Sand Sagebrush Ecoregion) in its genetic
characteristics. The most recent rangewide genetic study examined
neutral markers in the four ecoregions where the lesser prairie-chicken
occurs. It concluded that there is significant genetic variation across
the lesser prairie-chicken range. The study also concluded that
although there is genetic exchange between the three northern
ecoregions (particularly movement of birds northward from the Mixed-
Grass Ecoregion to the Short-Grass/CRP Ecoregion, and, to a lesser
extent, from the Sand Sagebrush Ecoregion into the Short-Grass/CRP
Ecoregion), lesser prairie-chicken from the Shinnery Oak Ecoregion that
make up the southern population segment) are a group that is
genetically distinct from the remainder of the range, i.e., the
northern population segment (Oyler-McCance et al. 2016, p. 653). The
Shinnery Oak Ecoregion is more distinct from all three ecoregions in
the Northern population segment than those ecoregions are from each
other (Oyler-McCance et al. 2016, table 4). The Shinnery Oak Ecoregion
was likely historically connected to the remainder of the range, but
the two parts have been separated since approximately the time of
European settlement. Therefore, the two segments of the range are
genetically distinct from each other and therefore significant to the
taxon as a whole.
We next considered evidence that loss of the population segment
would result in a significant gap in the range of the taxon. As
discussed above, the southern population segment and the northern
[[Page 72681]]
population segment are separated by approximately 95 mi (153 km). The
loss of the Shinnery Oak Ecoregion would result in the loss of the
entire southern part of the species' range and decrease species
redundancy and ecological and genetic representation, thus decreasing
its ability to withstand demographic and environmental stochasticity.
The loss of the other three ecoregions would result in the loss of 75
percent of the species' range, as well as loss of the part of the range
(the Short-Grass/CRP Ecoregion) that has recently experienced an
expansion of occupied habitat. This would create a large gap in the
northern portion of the species' range, also reducing the species'
ability to withstand demographic and environmental stochasticity.
Therefore, the loss of either part of the range would result in a
significant gap in the range of the lesser prairie-chicken. These
genetic differences and the evidence that a significant gap in the
range of the taxon would result from the loss of either discrete
population segment both individually satisfy the significance criterion
of the DPS Policy. Therefore, under the Service's DPS Policy, we find
that both the southern and northern segments of the lesser prairie-
chicken are significant to the taxon as a whole.
Distinct Population Segment Conclusion
Our DPS Policy directs us to evaluate the significance of a
discrete population in the context of its biological and ecological
significance to the remainder of the species to which it belongs. Based
on an analysis of the best available scientific and commercial data, we
conclude that the northern and southern parts of the lesser prairie-
chicken range are discrete due to geographic (physical) isolation from
the remainder of the taxon. Furthermore, we conclude that both parts of
the lesser prairie-chicken range are significant, because loss of
either part would result in a significant gap in the range of the
taxon, and because the two parts of the range differ markedly from each
other based on neutral genetic markers. Therefore, we conclude that
both the northern and southern parts of the lesser prairie-chicken
range are both discrete and significant under our DPS Policy and are,
therefore, uniquely listable entities under the Act.
Based on our DPS Policy (61 FR 4722; February 7, 1996), if a
population segment of a vertebrate species is both discrete and
significant relative to the taxon as a whole (i.e., it is a distinct
population segment), its evaluation for endangered or threatened status
will be based on the Act's definition of those terms and a review of
the factors enumerated in section 4(a) of the Act. Having found that
both parts of the lesser prairie-chicken range meet the definition of a
distinct population segment, we evaluate the status of both the
Southern DPS and the Northern DPS of the lesser prairie-chicken to
determine whether either meets the definition of an endangered or
threatened species under the Act. The line demarcating the break
between the Northern and Southern DPS lies approximately halfway
between the two DPSs in the unoccupied area between them (figure 4).
[[Page 72682]]
[GRAPHIC] [TIFF OMITTED] TR25NO22.031
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species,
issuing protective regulations for threatened species, and designating
critical habitat for threatened and endangered species. In 2019,
jointly with the National Marine Fisheries Service, the Service issued
final rules that revised the regulations in 50 CFR parts 17 and 424
regarding how we add, remove, and reclassify threatened and endangered
species and the criteria for designating listed species' critical
habitat (84 FR 45020 and 84 FR 44752; August 27, 2019). At the same
time the Service also issued final regulations that, for species listed
as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (collectively, the 2019 regulations).
As with the proposed rule, we are applying the 2019 regulations for
this final rule because the 2019 regulations are currently in effect,
just as they were when we completed the proposed rule. Although there
was a period in the
[[Page 72683]]
interim--between July 5, 2022, and September 21, 2022--when the 2019
regulations became vacated and the pre-2019 regulations therefore
governed, the 2019 regulations are now in effect and govern listing and
critical habitat decisions (see Center for Biological Diversity v.
Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 5, 2022) (CBD
v. Haaland) (vacating the 2019 regulations and thereby reinstating the
pre-2019 regulations)) and In re: Cattlemen's Ass'n, No. 22-70194 (9th
Cir. Sept. 21, 2022) (staying the vacatur of the 2019 regulations and
thereby reinstating the 2019 regulations until a pending motion for
reconsideration before the district court is resolved)).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies. The following is a summary of the key results
and conclusions from the SSA report; the full SSA report can be found
at Docket FWS-R2-ES-2021-0015 on https://www.regulations.gov.
To assess lesser prairie-chicken viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and
[[Page 72684]]
its resources, and the threats that influence the species' current and
future condition, in order to assess the species' overall viability and
the risks to that viability.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Representation
To evaluate representation as a component of lesser prairie-chicken
viability, we considered the need for multiple healthy lesser prairie-
chicken populations within each of the four ecoregions to conserve the
genetic and ecological diversity of the lesser prairie-chicken. Each of
the four ecoregions varies in terms of vegetative communities and
environmental conditions, resulting in differences in abundance and
distribution and management strategies (Boal and Haukos 2016, p. 5).
Despite reduced range and population size, most lesser prairie-chicken
populations appear to have maintained comparatively high levels of
neutral genetic variation (DeYoung and Williford 2016, p. 86). As
discussed in Significance above, recent genetic studies also show
significant genetic variation across the lesser prairie-chicken range
based on neutral markers (Service 2022, figure 2.4), which supports
management separation of these four ecoregions and highlights important
genetic differences between them (Oyler-McCance et al. 2016, p. 653).
While it is unknown how this genetic variation relates to differences
in adaptive capacity between the ecoregions, maintaining healthy lesser
prairie-chicken populations across this range of diversity increases
the likelihood of conserving inherent ecological and genetic variation
within the species to enhance its ability for adaptation to future
changes in environmental conditions.
Resiliency
In the case of the lesser prairie-chicken, we considered the
primary indicators of resiliency to be habitat availability, population
abundance, growth rates, and quasi-extinction risk. Lesser prairie-
chicken populations within ecoregions must have sufficient habitat and
population growth potential to recover from natural disturbance events
such as extensive wildfires, extreme hot or cold events, extreme
precipitation events, or extended local periods of below-average
rainfall. These events can be particularly devastating to populations
when they occur during the late spring or summer when nesting and
brood-rearing are occurring and individuals are more susceptible to
mortality.
The lesser prairie-chicken is considered a ``boom-bust'' species
based on its high reproductive potential with a high degree of annual
variation in rates of successful reproduction and recruitment. These
variations are largely driven by the influence of seasonal
precipitation patterns (Grisham et al. 2013, pp. 6-7), which impact the
population through effects on the quality of habitat. Periods of below-
average precipitation and higher spring/summer temperatures result in
less appropriate grassland vegetation cover and less food available,
resulting in decreased reproductive output (bust periods). Periods with
above-normal precipitation and cooler spring/summer temperatures will
support favorable lesser prairie-chicken habitat conditions and result
in high reproductive success (boom periods). In years with particularly
poor weather conditions, individual female lesser prairie-chicken may
forgo nesting for the year. This population characteristic highlights
the need for habitat conditions to support large population growth
events during favorable climatic conditions so they can withstand the
declines during poor climatic conditions without a high risk of
extirpation.
Historically, the lesser prairie-chicken had large expanses of
grassland habitat to maintain populations. Early European settlement
and development of the Southern Great Plains for agriculture initially,
and for energy extraction later, substantially reduced the amount and
connectivity of the grasslands of this region. Additionally, if
historically some parts of the range were drastically impacted or
eliminated due to a stochastic event, that area could be reestablished
from other populations. Today, those characteristics of the grasslands
have been degraded, resulting in the loss and fragmentation of
grasslands in the Southern Great Plains. Under present conditions, the
potential lesser prairie-chicken habitat is limited to small,
fragmented grassland patches (relative to historical conditions)
(Service 2022, pp. 64-78). The larger and more intact the remaining
grassland patches are, with appropriate vegetation structure, the
larger, healthier, and more resilient the lesser prairie-chicken
populations will be. Exactly how large habitat patches should be to
support healthy populations depends on the quality and intactness of
the patches. Recommended total space needed for a single lesser
prairie-chicken lek ranges from a minimum of about 12,000 ac (4,900 ha)
(Davis 2005, p. 3) up to more than 50,000 ac (20,000 ha), depending on
the quality and intactness of the area (Applegate and Riley 1998, p.
14; Haufler et al. 2012, pp. 7-8; Haukos and Zavaleta 2016, p. 107).
A single lesser prairie-chicken lek is not considered a population
that can persist on its own. Instead, complexes of multiple leks that
interact with each other are required for a lesser prairie-chicken
population to persist over time. These metapopulation dynamics, in
which individuals interact on the landscape to form larger populations,
are dependent upon the specific biotic and abiotic landscape
characteristics of the site and how those characteristics influence
space use, movement, patch size, and fragmentation (DeYoung and
Williford 2016, pp. 89-91). Maintaining multiple, highly resilient
populations (complexes of leks) within the four ecoregions that have
the ability to interact with each other will increase the probability
of persistence in the face of environmental fluctuations and stochastic
events. Because of this concept of metapopulations and their influence
on long-term persistence, when evaluating lesser prairie-chicken
populations, site-specific information can be informative. However,
many of the factors affecting lesser prairie-chicken populations should
be analyzed at larger spatial scales (Fuhlendorf et al. 2002, entire).
Redundancy
Redundancy describes the ability of a species to withstand
catastrophic events. Catastrophes are stochastic events that are
expected to lead to population collapse regardless of population health
and for which adaptation is unlikely. Redundancy spreads the risk and
can be measured through the duplication and distribution
[[Page 72685]]
of resilient populations that are connected across the range of the
species. The larger the number of highly resilient populations the
lesser prairie-chicken has, distributed over a large area within each
ecoregion, the better the species can withstand catastrophic events.
Catastrophic events for lesser prairie-chicken might include extreme
drought; widespread, extended droughts; or a disease outbreak.
Measuring redundancy for lesser prairie-chicken is a difficult task
due to the physiological and biological characteristics of the species,
which make it difficult to survey and limit the usefulness of survey
results. To estimate redundancy for the lesser prairie-chicken, we
estimated the geographic distribution of predicted available habitat
within each of the four ecoregions and the juxtaposition of that
habitat to other habitat and non-habitat. As the amount of large
grassland patches decreases and grassland patches become more isolated
to reduce or preclude lesser prairie-chicken movement between them, the
overall redundancy of the species is reduced. As redundancy decreases
within any representative ecoregion or DPS, the likelihood of
extirpation within that ecoregion or DPS increases. As large grassland
patches, the connectivity of those patches, and the number of lesser
prairie-chicken increase, so does the redundancy within an ecoregion or
a DPS.
Current Condition
In the SSA report, we assessed the current condition of the lesser
prairie-chicken through an analysis of existing habitat; a review of
factors that have impacted the species in the past, including a
geospatial analysis to estimate areas of land cover impacts on the
current landscape condition; a summary of the current potential usable
area based upon our geospatial analysis; and a summary of past and
current population estimates. We also evaluated and summarized the
benefits of the extensive conservation efforts that are ongoing
throughout the lesser prairie-chicken range to conserve the species and
its habitat.
Geospatial Analysis Summary
The primary concern for the lesser prairie-chicken is habitat loss
and fragmentation. We conducted a geographic information system (GIS)
analysis to analyze the extent of usable land cover changes and
fragmentation within the range of the lesser prairie-chicken,
characterizing landscape conditions spatially to analyze the ability of
those landscapes to support the biological needs of the lesser prairie-
chicken. Impacts included in this analysis were the direct and indirect
effects of areas that were converted to cropland; encroached by woody
vegetation such as mesquite and eastern red cedar (Juniperus
virginiana); and developed for roads, petroleum production, wind
energy, and transmission lines. We acknowledge that there are other
impacts, such as power lines or incompatible grazing on the landscape
that can affect lesser prairie-chicken habitat. For those impacts,
either no geospatial data were available, or the available data would
have added so much complexity to our geospatial model that the results
would have been uninterpretable or not explanatory for our purpose.
There are several important limitations to our geospatial analysis.
First, it is a landscape-level analysis, so the results only represent
broad trends at the ecoregional and rangewide scales. Secondly, this
analysis does not incorporate different levels of habitat quality, as
the data do not exist at the spatial scale or resolution needed. Our
analysis considers areas only as either potentially usable or not
usable by lesser prairie-chicken based upon land cover classifications.
We recognize that some habitat, if managed as high-quality grassland,
may have the ability to support higher densities of lesser prairie-
chicken than other habitat that exists at lower qualities.
Additionally, we also recognize that some areas of land cover that we
identified as suitable could be of such poor quality that it is of
limited value to the lesser prairie-chicken. We recognize there are
many important limitations to this landscape analysis, including
variation and inherent error in the underlying data and unavailable
data. We interpreted the results of this analysis with those
limitations in mind.
In this final rule, we discuss effects that relate to the total
potential usable unimpacted acreage for lesser prairie-chicken, as
defined by our geospatial analysis (hereafter, analysis area). A
complete description of the purpose, methodology, constraints, and
additional details for this analysis is provided in the SSA report for
the lesser prairie-chicken (Service 2022, appendix B, parts 1, 2, and
3).
Threats Influencing Current Condition
Following are summary evaluations of the threats analyzed in the
SSA report for the lesser prairie-chicken: effects associated with
habitat degradation, loss, and fragmentation, including conversion of
grassland to cropland (Factor A), petroleum production (Factor A), wind
energy development and transmission (Factor A), woody vegetation
encroachment (Factor A), and roads and electrical distribution lines
(Factor A); other factors, such as livestock grazing (Factor A), shrub
control and eradication (Factor A), collision mortality from fences
(Factor E), predation (Factor C), influence of anthropogenic noise
(Factor E), fire (Factor A); and extreme weather events (Factor E). We
also evaluate existing regulatory mechanisms (Factor D) and ongoing
conservation measures.
In the SSA report, we also considered three additional threats:
hunting and other recreational, educational, and scientific use (Factor
B); parasites and diseases (Factor C); and insecticides (Factor E). We
concluded that, as indicated by the best available scientific and
commercial information, these threats are currently having little to no
impact on lesser prairie-chickens and their habitat, and thus their
overall effect now and into the future is expected to be minimal.
Therefore, we will not present summary analyses of those threats in
this document but will consider them in our overall conclusions of
impacts to the species. For full descriptions of all threats and how
they impact the species, please see the SSA report (Service 2022, pp.
24-49).
Habitat Degradation, Loss, and Fragmentation
The grasslands of the Great Plains are among the most threatened
ecosystems in North America (Samson et al. 2004, p. 6) and have been
impacted more than any other major ecosystem on the continent (Samson
and Knopf 1994, p. 418). Temperate grasslands are also one of the least
conserved ecosystems (Hoekstra et al. 2005, p. 25). Grassland loss in
the Great Plains is estimated at approximately 70 percent (Samson et
al. 2004, p. 7), with nearly 23 million ac (93,000 km\2\; 9.3 million
ha) of grasslands in the United States lost between 1982 and 1997 alone
(Samson et al. 2004, p. 9). The vast majority of the lesser prairie-
chicken range (more than 95 percent) occurs on private lands that have
been in some form of agricultural production since at least the early
1900s. As a result, available habitat for grassland species, such as
the lesser prairie-chicken, has been much reduced and fragmented
compared to historical conditions across its range.
Habitat impacts occur in three general categories that often work
synergistically at the landscape scale: degradation, loss, and
fragmentation. Habitat degradation results in changes to a species'
habitat that reduces its
[[Page 72686]]
suitability to the species, but without making the habitat entirely
unsuitable. Degradation may result in lower carrying capacity, lower
reproductive potential, higher predation rates, or other effects.
Habitat loss may result from the same anthropogenic sources that cause
degradation, but the habitat has been altered to the point where it has
no suitability for the species at all. Habitat fragmentation occurs
when habitat loss is patchy and leaves a matrix of grassland habitat
behind. While habitat degradation continues to be a concern, we focus
our analysis on habitat loss and fragmentation from the cumulative
effects of multiple sources of activities as the long-term drivers of
the species' viability.
Initially, reduction in the total area of available habitat may be
more significant than fragmentation and can exert a much greater effect
on populations (Fahrig 1997, pp. 607, 609). However, as habitat loss
continues, the effects of fragmentation often compound effects of
habitat loss and produce even greater population declines than habitat
loss alone (Bender et al. 1998, pp. 517-518, 525). Spatial habitat
fragmentation occurs when some form of disturbance, usually habitat
degradation or loss, results in the separation or splitting apart of
larger, previously contiguous, functional components of habitat into
smaller, often less valuable, noncontiguous patches (Wilcove et al.
1986, p. 237; Johnson and Igl 2001, p. 25; Franklin et al. 2002,
entire). Habitat loss and fragmentation influence habitat availability
and quality in three primary ways: (1) total area of available habitat
constrains the maximum population size for an area; (2) the size of
habitat patches within a larger habitat area, including edge effects
(changes in population or community structures that occur at the
boundary of two habitats), influences habitat quality and size of local
populations; and (3) patch isolation influences the amount of species
movement between patches, which constrains demographic and genetic
exchange and ability to recolonize local areas where the species might
be extirpated (Johnson and Igl 2001, p. 25; Stephens et al. 2003, p.
101).
Habitat loss, fragmentation, and degradation correlate with the
ecological concept of carrying capacity. Within any given block or
patch of lesser prairie-chicken habitat, carrying capacity is the
maximum number of birds that can be supported indefinitely by the
resources available within that area, that is, sufficient food,
shelter, and lekking, nesting, brood-rearing, and wintering areas. As
habitat loss increases and the size of an area decreases, the maximum
number of birds that can inhabit that particular habitat patch also
decreases. Consequently, a reduction in the total area of available
habitat can negatively influence biologically important characteristics
such as the amount of space available for establishing territories and
nest sites (Fahrig 1997, p. 603). Over time, the continued conversion
and loss of habitat will reduce the capacity of the landscape to
support historical population levels, causing a decline in population
sizes.
Habitat loss not only contributes to overall declines in usable
area for a species but also causes a reduction in the size of
individual habitat patches and influences the proximity and
connectivity of these patches to other patches of similar habitat
(Stephens et al. 2003, p. 101; Fletcher 2005, p. 342), reducing rates
of movement between habitat patches until, eventually, complete
isolation results. Habitat quality for many species is, in part, a
function of patch size and declines as the size of the patch decreases
(Franklin et al. 2002, p. 23). Both the size and shape of the habitat
patch have been shown to influence population persistence in many
species (Fahrig and Merriam 1994, p. 53). The size of the fragment can
influence reproductive success, survival, and movements. As the
distances between habitat fragments increase, the rate of dispersal
between the habitat patches may decrease and ultimately cease, reducing
the likelihood of population persistence and potentially leading to
both localized and regional extinctions (Harrison and Bruna 1999, p.
226; With et al. 2008, p. 3153). In highly fragmented landscapes, once
a species becomes extirpated from an area, the probability of
recolonization is greatly reduced (Fahrig and Merriam 1994, p. 52).
For the lesser prairie-chicken, habitat loss can occur due to
either direct or indirect habitat impacts. Direct habitat loss is the
result of the removal or alteration of grasslands, making that space no
longer available for use by the lesser prairie-chicken. Indirect
habitat loss and degradation is when the vegetation still exists, but
the areas adjacent to a disturbance (the disturbance can be natural or
manmade) are no longer used by lesser prairie-chicken or are used at
reduced rates, or the disturbance negatively alters demographic rates
or behavior in the affected area. In many cases, as discussed in detail
below for specific disturbances, the indirect habitat loss can greatly
exceed the direct habitat loss.
Primarily due to their site fidelity and the need for large,
ecologically diverse landscapes, lesser prairie-chickens appear to be
relatively intolerant to habitat alteration, particularly for
activities that fragment habitat into smaller patches. The birds
require habitat patches with large expanses of vegetative structure in
different successional stages to complete different phases in their
life cycle, and the loss or partial loss of even one of these
structural components can significantly reduce the overall value of
that habitat to lesser prairie-chickens (Elmore et al. 2013, p. 4). In
addition to the impacts on the individual patches, as habitat loss and
fragmentation increases on the landscape, the juxtaposition of habitat
patches to each other and to non-habitat areas will change. This
changing pattern on the landscape can be complex and difficult to
predict, but the results, in many cases, are increased isolation of
individual patches (either due to physical separation or barriers
preventing or limiting movement between patches) and direct impacts to
metapopulation structure, which could be important for population
persistence (DeYoung and Williford 2016, pp. 88-91).
The following sections provide a discussion and quantification of
the influence of habitat loss and fragmentation on the grasslands of
the Great Plains within the lesser prairie-chicken analysis area and
more specifically allow us to characterize the current condition of
lesser prairie-chicken habitat.
Conversion of Grassland to Cropland
Historical conversion of grassland to cultivated agricultural lands
in the late 19th century and throughout the 20th century has been
regularly cited as an important cause in the rangewide decline in
abundance and distribution of lesser prairie-chicken populations
(Copelin 1963, p. 8; Jackson and DeArment 1963, p. 733; Crawford and
Bolen 1976a, p. 102; Crawford 1980, p. 2; Taylor and Guthery 1980b, p.
2; Braun et al. 1994, pp. 429, 432-433; Mote et al. 1999, p. 3).
Because cultivated grain crops may have provided increased or more
dependable winter food supplies for lesser prairie-chickens (Braun et
al. 1994, p. 429), the initial conversion of smaller patches of
grassland to cultivation may have been temporarily beneficial to the
short-term needs of the species as primitive and inefficient
agricultural practices made grain available as a food source (Rodgers
2016, p. 18). However, as conversion increased, it became clear that
landscapes having greater than 20 to 37
[[Page 72687]]
percent cultivated grains may not support stable lesser prairie-chicken
populations (Crawford and Bolen 1976a, p. 102). More recently,
abundances of lesser prairie-chicken increased with increasing cropland
until a threshold of 10 percent was reached; after that, abundance of
lesser prairie-chicken declined with increasing cropland cover (Ross et
al. 2016b, entire). While lesser prairie-chicken may forage in
agricultural croplands, croplands do not provide for the habitat
requirements of the species' life cycle (cover for nesting and
thermoregulation); thus, lesser prairie-chicken avoid landscapes
dominated by cultivated agriculture, particularly where small grains
are not the dominant crop (Crawford and Bolen 1976a, p. 102).
As part of the geospatial analysis completed for the SSA, we
estimated the amount of cropland that currently exists in the four
ecoregions of the lesser prairie-chicken. These percentages do not
equate to the actual proportion of habitat loss in the analysis area
because not all of the analysis area was necessarily suitable lesser
prairie-chicken habitat; they are only the estimated portion of the
total analysis area converted from the native vegetation community,
i.e., grassland, to cropland. About 37 percent of the total area in the
Short-Grass/CRP Ecoregion; 32 percent of the total area in the Sand
Sagebrush Ecoregion; 13 percent of the total area in the Mixed-Grass
Ecoregion; and 14 percent of the total area in the Shinnery Oak
Ecoregion have been converted to cropland in the analysis area of the
lesser prairie-chicken. Rangewide, we estimate about 4,963,000 ac
(2,009,000 ha) of grassland have been converted to cropland,
representing about 23 percent of the total analysis area. We note that
these calculations do not account for all conversion that has occurred
within the historical range of the lesser prairie-chicken but are
limited to the amount of cropland within our analysis area. For further
information, including total acreages impacted, see the SSA report for
the lesser prairie-chicken (Service 2022, appendix E and figure E.1).
The effects of grassland converted to cropland within the
historical range of the lesser prairie-chicken have significantly
impacted the amount of habitat available and how fragmented the
remaining habitat is for the lesser prairie-chicken, leading to overall
decreases in resiliency and redundancy throughout the range of the
lesser prairie-chicken. The impact of cropland has shaped the
historical and current condition of the grasslands and shrublands upon
which the lesser prairie-chicken depends.
Petroleum and Natural Gas Production
Petroleum and natural gas production has occurred over much of the
estimated historical and current range of the lesser prairie-chicken.
As demand for energy has continued to increase nationwide, so has oil
and gas development in the Great Plains. In Texas, for example, one
study noted that from 2002-2012 active oil and gas wells in the lesser
prairie-chicken occupied range increased by more than 80 percent
(Timmer et al. 2014, p. 143). The impacts from oil and gas development
extend beyond the immediate well sites; they involve activities such as
surface exploration, exploratory drilling, field development, and
facility construction, as well as access roads, well pads, and
operation and maintenance. Associated facilities can include compressor
stations, pumping stations, and electrical generators.
Petroleum and natural gas production result in both direct and
indirect habitat effects to the lesser prairie-chicken (Hunt and Best
2004, p. 92). Well pad construction, seismic surveys, access road
development, power line construction, pipeline corridors, and other
activities can all result in direct habitat loss by removal of
vegetation used by lesser prairie-chickens. As documented in other
grouse species, indirect habitat loss also occurs from avoidance of
vertical structures, noise, and human presence (Weller et al. 2002,
entire), which all can influence lesser prairie-chicken behavior in the
general vicinity of oil and gas development areas. These activities
also disrupt lesser prairie-chicken reproductive behavior (Hunt and
Best 2004, p. 41).
Anthropogenic features, such as oil and gas wells, affect the
behavior of lesser prairie-chickens and alter the way in which they use
the landscape (Hagen et al. 2011, pp. 69-73; Pitman et al. 2005,
entire; Hagen 2010, entire; Hunt and Best 2004, pp. 99-104; Plumb et
al. 2019, pp. 224-227; Sullins et al. 2019, pp. 5-8; Peterson et al.
2020, entire). Please see the SSA report for a detailed summary of the
best available scientific information regarding avoidance distances and
effects of oil and gas development on lesser prairie-chicken habitat
use (Service 2022, pp. 27-28).
As part of the geospatial analysis discussed in the SSA report, we
calculated the amount of usable land cover for the lesser prairie-
chicken that has been impacted (both direct and indirect impacts) by
oil and natural gas wells in the current analysis area of the lesser
prairie-chicken, though this analysis did not include all associated
infrastructure as those data were not available. We used an impact
radius of 984 feet (ft) (300 meters (m)) for indirect effects of oil
and gas wells. For details regarding the establishment of the impact
radius, see appendix B, part 2C, of the SSA report (Service 2022).
These calculations were limited to the current analysis area and do not
include historical impacts of habitat loss that occurred outside of the
current analysis area. Thus, the calculation likely underestimates the
rangewide effects of historical oil and gas development on the lesser
prairie-chicken. About 4 percent of the total area in the Short-Grass/
CRP Ecoregion; 5 percent of the total area in the Sand Sagebrush
Ecoregion; about 10 percent of the total area in the Mixed-Grass
Ecoregion; and 4 percent of the total area in the Shinnery Oak
Ecoregion of space that was identified as potential usable or potential
restorable areas have been impacted due to oil and gas development in
the current analysis area of the lesser prairie-chicken. Rangewide, we
estimate about 1,433,000 ac (580,000 ha) of grassland have been lost
due to oil and gas development representing about 7 percent of the
total analysis area. Maps of these areas in each ecoregion are provided
in the SSA report (Service 2022, appendix E, figure E.2).
Oil and gas development directly removes habitat that supports
lesser prairie-chicken, and the effects of the development extend past
the immediate site of the wells and their associated infrastructure,
further impacting habitat and altering behavior of lesser prairie-
chicken throughout both the Northern and the Southern DPS. These
activities have resulted in decreases in population resiliency and
species redundancy.
Wind Energy Development and Power Lines
Wind power is a form of renewable energy increasingly being used to
meet current and projected future electricity demands in the United
States. Much of the new wind energy development is likely to come from
the Great Plains States because they have high wind resource potential,
which exerts a strong, positive influence on the amount of wind energy
developed within a particular State (Staid and Guikema 2013, p. 384).
In 2019, three of the five States within the lesser prairie-chicken
range (Colorado, New Mexico, and Kansas) were within the top 10 States
nationally for fastest growing States for wind generation in the past
year (AWEA 2020, p. 33). There is considerable information (Southwest
Power Pool
[[Page 72688]]
2020) indicating interest by the wind industry in developing wind
energy within the range of the lesser prairie-chicken, especially if
additional transmission line capacity is constructed. As of May 2020,
approximately 1,792 wind turbines were located within the lesser
prairie-chicken analysis area (Hoen et al. 2020). Not all areas within
the analysis area are habitat for the lesser prairie-chicken, so not
all turbines located within the analysis area affect the lesser
prairie-chicken and its habitat.
The average size of installed wind turbines and all other size
aspects of wind energy development continues to increase (DOE 2015, p.
63; AWEA 2020, p. 87-88; AWEA 2014, entire; AWEA 2015, entire; AWEA
2016, entire; AWEA 2017, entire; AWEA 2018, entire; AWEA 2019, entire;
AWEA 2020, entire). Wind energy developments range from 20 to 400
towers, each supporting a single turbine. The individual permanent
footprint of a single turbine unit, about 0.75-1 ac (0.3-0.4 ha), is
relatively small in comparison with the overall footprint of the entire
array (DOE 2008, pp. 110-111). Roads are necessary to access the
turbine sites for installation and maintenance. Depending on the size
of the wind energy development, one or more electrical substations,
where the generated electricity is collected and transmitted on to the
power grid, may also be built. Considering the initial capital
investment and that the service life of a single turbine is at least 20
years (DOE 2008, p. 16), we expect most wind energy developments to be
in place for at least 30 years. Wind repowering is the combined
activity of dismantling or refurbishing existing wind turbines and
commissioning new ones at existing wind energy development sites at the
end of their service life. Wind repowering is increasingly common, with
2,803 megawatts of operating projects partially repowering in 2019
(AWEA 2020, p. 2).
Please see the SSA report for a detailed review of the best
available scientific information regarding the potential effects of
wind energy development on habitat use by the lesser prairie-chicken
(Service 2022, pp. 29-34).
Noise effects to prairie-chickens have been recently explored as a
way to evaluate potential negative effects of wind energy development.
For a site in Nebraska, wind turbine noise frequencies were documented
at less than or equal to 0.73 kilohertz (kHz) (Raynor et al. 2017, p.
493), and reported to overlap the range of lek-advertisement
vocalization frequencies of lesser prairie-chicken, 0.50-1.0 kHz.
Female greater prairie-chickens avoided wooded areas and row crops but
showed no response in space use based on wind turbine noise (Raynor et
al. 2019, entire). Additionally, differences in background noise and
signal-to-noise ratio of boom chorus of leks in relation to distance to
turbine have been documented, but the underlying cause and response
needs to be further investigated, especially since the study of wind
energy development noise on grouse is almost unprecedented (Whalen et
al. 2019, entire).
The effects of wind energy development on the lesser prairie-
chicken must also take into consideration the influence of the
transmission lines critical to distribution of the energy generated by
wind turbines. Transmission lines can traverse long distances across
the landscape and can be both above ground and underground, although
the vast majority of transmission lines are erected above ground. Most
of the impacts to lesser prairie-chicken associated with transmission
lines are with the aboveground systems. Support structures vary in
height depending on the size of the line. Most high-voltage power line
towers are 98 to 125 ft (30 to 38 m) high but can be higher if the need
arises. Local distribution lines, if erected above ground, are usually
much shorter in height but still contribute to fragmentation of the
landscape.
The effect of the transmission line infrastructure is typically
much larger than the physical footprint of transmission line
installation. Information on grouse and power lines is relatively
limited with more studies needed. The available data includes a range
of reported impacts (see Nonne et al. 2013, entire; Dinkins et al.
2014, entire; Hansen et al. 2016, entire; Jarnevich et al. 2016,
entire; Londe et al. 2019, entire; LeBeau et al. 2019, entire; Kohl et
al. 2019, entire; and England and Robert 2021, entire). Transmission
lines can indirectly lead to alterations in lesser prairie-chicken
behavior and space use (avoidance), decreased lek attendance, and
increased predation on lesser prairie-chicken. Transmission lines,
particularly due to their length, can be a significant barrier to
dispersal of prairie grouse, disrupting movements to feeding, breeding,
and roosting areas. Both lesser and greater prairie-chickens avoided
otherwise usable habitat near transmission lines and crossed these
power lines much less often than nearby roads, suggesting that power
lines are a particularly strong barrier to movement (Pruett et al.
2009, pp. 1255-1257). Because lesser prairie-chicken avoid tall
vertical structures like transmission lines and because transmission
lines can increase predation rates, leks located in the vicinity of
these structures may see reduced attendance by new males to the lek, as
has been reported for sage-grouse (Braun et al. 2002, pp. 11-13).
Decreased probabilities of use by lesser prairie-chicken were shown
with the occurrence of more than 0.09 mi (0.15 km) of major roads, or
transmission lines within a 1.2-mi (2-km) radius (Sullins et al. 2019,
unpaged). Additionally, a recent study corroborated numerous authors'
(Pitman et al. 2005; Pruett et al. 2009; Hagen et al. 2011; Grisham et
al. 2014; Hovick et al. 2014a) findings of negative effects of power
lines on prairie grouse and reported a minimum avoidance distance of
1,925.8 ft (587 m), which is similar to other studies of lesser
prairie-chickens (Plumb et al. 2019, entire). LeBeau et al. (2020, p.
24) largely aggregated their findings of wind turbines and a
transmission line on lesser prairie-chicken into effects of ``wind
energy infrastructure,'' but specifically noted evidence that females
selected home ranges farther from transmission lines. Using a
definition for transmission powerlines that included powerlines
transmitting >69 kilovolts, indicated that taller anthropogenic
structures (i.e., transmission powerlines and towers) generally had
larger estimated avoidance response distances of all the studied
features, but also large regional variation (Peterson et al. 2020, p.
9). They found largest estimated avoidance response of 5.6 mi (9 km) in
Northwest Kansas, and the smallest in Oklahoma at approximately 1.8 mi
(3 km). Effects from anthropogenic features, including power lines,
varied by region, and the degree of effect often depended on the
presence of other anthropogenic features (Patten et al. 2021, entire).
As part of our geospatial analysis, we calculated the amount of
otherwise usable land cover for the lesser prairie-chicken that has
been impacted (both direct and indirect impacts) by wind energy
development in the current analysis area of the lesser prairie-chicken.
We used an impact radius of 5,906 ft (1,800 m) for indirect effects of
wind turbines and 2,297 ft (700 m) for indirect effects of transmission
lines. For details regarding the establishment of the impact radius,
see appendix B, part 2C, of the SSA report (Service 2022). Within our
analysis area, the following acreages have been identified as impacted
due to wind energy development: about 2 percent of the total area in
the Short-Grass/CRP, Mixed-Grass, and Shinnery Oak Ecoregions; and no
impacts of wind
[[Page 72689]]
energy development documented currently within the Sand Sagebrush
Ecoregion. Rangewide, we estimate about 428,000 ac (173,000 ha) of
grassland have been impacted by wind energy development, representing
about 2 percent of the total analysis area (Service 2022, appendix E,
figure E.3). These percentages do not account for overlap that may
exist with other features that may have already impacted the landscape.
Additionally, according to our geospatial analysis, the following
acreages within the analysis area have been directly or indirectly
impacted due to the construction of transmission lines: about 7 percent
of the total area in the Short-Grass/CRP Ecoregion; 5 percent of the
total area in the Sand Sagebrush Ecoregion; 7 percent of the total area
in the Mixed-Grass Ecoregion; and 10 percent of the total area in the
Shinnery Oak Ecoregion. Rangewide, we estimate about 1,553,000 ac
(629,000 ha) of grassland have been impacted by transmission lines
representing about 7 percent of the total analysis area (Service 2022,
appendix E, figure E.4).
Wind energy development and transmission lines remove habitat that
supports lesser prairie-chicken. The effects of the development extend
past the immediate site of the turbines and their associated
infrastructure, further impacting habitat and altering behavior of
lesser prairie-chicken throughout both the Northern and the Southern
DPSs. These activities have resulted in decreases in population
resiliency and species redundancy.
Woody Vegetation Encroachment
As discussed in Background, habitat selected by lesser prairie-
chicken is characterized by expansive regions of treeless grasslands
interspersed with patches of small shrubs (Giesen 1998, pp. 3-4);
lesser prairie-chicken avoid areas with trees and other vertical
structures. Prior to extensive Euro-American settlement, frequent fires
and grazing by large, native ungulates helped confine trees like
eastern red cedar to river and stream drainages and rocky outcroppings.
The frequency and intensity of these disturbances directly influenced
the ecological processes, biological diversity, and patchiness typical
of Great Plains grassland ecosystems (Collins 1992, pp. 2003-2005;
Fuhlendorf and Smeins 1999, pp. 732, 737).
Following Euro-American settlement, increasing fire suppression
combined with government programs promoting eastern red cedar for
windbreaks, erosion control, and wildlife cover facilitated the
expansion of eastern red cedar distribution in grassland areas (Owensby
et al. 1973, p. 256; DeSantis et al. 2011, p. 1838). Once a grassland
area has been colonized by eastern red cedar, the trees are mature
within 6 to 7 years and provide a plentiful source of seed so that
adjacent areas can readily become infested with eastern red cedar.
Despite the relatively short viability of the seeds (typically only one
growing season), the large cone crop, potentially large seed dispersal
ability, and the physiological adaptations of eastern red cedar to
open, relatively dry sites help make the species a successful invader
of grassland landscapes (Holthuijzen et al. 1987, p. 1094). Most trees
are relatively long-lived and, once they become established in
grassland areas, require intensive management to remove to return areas
to a grassland state.
Within the southern- and westernmost portions of the estimated
historical and occupied ranges of lesser prairie-chicken in Eastern New
Mexico, Western Oklahoma, and the South Plains and Panhandle of Texas,
honey mesquite is another common woody invader within these grasslands
(Riley 1978, p. vii; Boggie et al. 2017, entire). Mesquite is a
particularly effective invader in grassland habitat due to its ability
to produce abundant, long-lived seeds that can germinate and establish
in a variety of soil types and moisture and light regimes (Lautenbach
et al. 2017, p. 84). Though not as widespread as mesquite or eastern
red cedar, other tall, woody plants, such as redberry or Pinchot
juniper (Juniperus pinchotii), black locust (Robinia pseudoacacia),
Russian olive (Elaeagnus angustifolia), and Siberian elm (Ulmus pumila)
can also be found in grassland habitat historically and currently used
by lesser prairie-chicken and may become invasive in these areas.
Invasion of grasslands by opportunistic woody species causes
otherwise usable grassland habitat no longer to be used by lesser
prairie-chicken and contributes to the loss and fragmentation of
grassland habitat (Lautenbach 2017, p. 84; Boggie et al. 2017, p. 74).
In Kansas, lesser prairie-chicken are 40 times more likely to use areas
that had no trees than areas with 1.6 trees per ac (5 trees per ha),
and no nests occur in areas with a tree density greater than 0.8 trees
per ac (2 trees per ha), at a scale of 89 ac (36 ha) (Lautenbach 2017,
pp. 104-142). Similarly, within the Shinnery Oak Ecoregion, lesser
prairie-chicken habitat use in all seasons is altered in the presence
of mesquite, even at densities of less than 5 percent canopy cover
(Boggie et al. 2017, entire). Woody vegetation encroachment also
contributes to indirect habitat loss and increases habitat
fragmentation because lesser prairie-chicken are less likely to use
areas adjacent to trees (Boggie et al. 2017, pp. 72-74; Lautenbach
2017, pp. 104-142).
Fire is often the best method to control or preclude tree invasion
of grassland. However, to some landowners and land managers, burning of
grassland can be perceived as a high-risk activity because of the
potential liability of escaped fire impacting nontarget lands and
property. Additionally, it is undesirable for optimizing cattle
production and is likely to create wind erosion or ``blowouts'' in
sandy soils. Consequently, wildfire suppression is common, and
relatively little prescribed burning occurs on private land. Often,
prescribed fire is employed only after significant tree invasion has
already occurred and landowners consider forage production for cattle
to have diminished. Preclusion of woody vegetation encroachment on
grasslands of the southern Great Plains using fire requires
implementing fire at a frequency that mimics historical fire
frequencies of 2-14 years (Guyette et al. 2012, p. 330), further
limiting the number of landowners able to implement fire in a manner
that would truly preclude future encroachment. Additionally, in areas
where grazing pressure is heavy and fuel loads are reduced, a typical
grassland fire may not be intense enough to eradicate eastern red cedar
(Briggs et al. 2002a, p. 585; Briggs et al. 2002b, p. 293; Bragg and
Hulbert 1976, p. 19) and will not eradicate mesquite.
As part of our geospatial analysis, we calculated the amount of
woody vegetation encroachment in the current analysis area of the
lesser prairie-chicken. These calculations of the current analysis area
do not include historical impacts of habitat loss that occurred outside
of the current analysis area; thus, it likely underestimates the
effects of historical woody vegetation encroachment rangewide on the
lesser prairie-chicken. An additional limitation associated with this
calculation is that available remote sensing data lack the ability to
detect areas with low densities of encroachment, as well as areas with
shorter trees; thus, this calculation likely underestimates lesser
prairie-chicken habitat loss due to woody vegetation encroachment. The
identified areas of habitat impacted by woody vegetation are: about 5
percent of the total area in the Short-Grass/CRP Ecoregion; about 2
percent of the total area in the Sand Sagebrush Ecoregion;
[[Page 72690]]
about 24 percent of the total area in the Mixed-Grass Ecoregion; and
about 17 percent of the total area in the Shinnery Oak Ecoregion.
Rangewide, we estimate about 3,071,000 ac (1,243,000 ha) of grassland
have been directly or indirectly impacted by the encroachment of woody
vegetation, or about 18 percent of the total area. These percentages do
not account for overlap that may exist with other features that may
have already impacted the landscape. Further information, including
total acres impacted, is available in the SSA report (Service 2022,
appendix B; appendix E, figure E.5).
Woody vegetation encroachment is contributing to ongoing habitat
loss as well as contributing to fragmentation and degradation of
remaining habitat patches. The effects of woody vegetation encroachment
are particularly widespread in the Shinnery Oak Ecoregion that makes up
the Southern DPS as well as the Mixed-Grass Ecoregion of the Northern
DPS. While there are ongoing efforts to control woody vegetation
encroachment, the current level of woody vegetation on the landscape is
evidence that removal efforts are being outpaced by rates of
encroachment; thus, we expect that this threat will continue to
contribute to habitat loss and fragmentation, which has reduced
population resiliency across the range of the lesser prairie-chicken.
Roads and Electrical Distribution Lines
Roads and distribution power lines are linear features on the
landscape that contribute to loss and fragmentation of lesser prairie-
chicken habitat and fragment populations as a result of behavioral
avoidance. Lesser prairie-chickens are less likely to use areas close
to roads (Plumb et al. 2019, entire; Sullins et al. 2019, entire).
Additionally, roads contribute to lek abandonment when they disrupt
important habitat features (such as affecting auditory or visual
communication) associated with lek sites (Crawford and Bolen 1976b, p.
239). Some mammal species that prey on lesser prairie-chicken, such as
red fox (Vulpes vulpes), raccoons (Procyon lotor), and striped skunks
(Mephitis mephitis), have greatly increased their distribution by
dispersing along roads (Forman and Alexander 1998, p. 212; Forman 2000,
p. 33; Frey and Conover 2006, pp. 1114-1115).
Traffic noise from roads may indirectly impact lesser prairie-
chicken. Because lesser prairie-chicken depend on acoustical signals to
attract females to leks, noise from roads, oil and gas development,
wind turbines, and similar human activity may interfere with mating
displays, influencing female attendance at lek sites and causing young
males not to be drawn to the leks. Within a relatively short period,
leks can become inactive due to a lack of recruitment of new males to
the display grounds. For further discussion on noise, please see
Influence of Anthropogenic Noise.
Depending on the traffic volume and associated disturbances, roads
also may limit lesser prairie-chicken dispersal abilities. Lesser
prairie-chickens avoid areas of usable habitat near roads (Pruett et
al. 2009, pp. 1256, 1258; Plumb et al. 2019, entire) and in areas where
road densities are high (Sullins et al. 2019, p. 8). Lesser prairie-
chickens are thought to avoid major roads due to disturbance caused by
traffic volume and perhaps to avoid exposure to predators that may use
roads as travel corridors. However, the extent to which roads
constitute a significant obstacle to lesser prairie-chicken movement
and space use is largely dependent upon the local landscape composition
and characteristics of the road itself.
Local electrical distribution lines are usually much shorter in
height than transmission lines but can still contribute to habitat
fragmentation through similar mechanisms as other vertical features
when erected above ground. In addition to habitat loss and
fragmentation, electrical power lines can directly affect prairie
grouse by posing a collision hazard (Leopold 1933, p. 353; Connelly et
al. 2000, p. 974). There were no datasets available to quantify the
total impact of distribution lines on the landscape for the lesser
prairie-chicken. Although distribution lines are a significant
landscape feature throughout the Great Plains with potential to affect
lesser prairie-chicken habitat, after reviewing all available
information, we were unable to develop a method to quantitatively
incorporate the occurrence of distribution lines into our geospatial
analysis.
As part of our geospatial analysis, we estimated the area impacted
by direct and indirect habitat loss due to roads (Service 2022,
appendix B, part 2). These calculations of the current analysis area do
not include historical impacts of loss; thus, the calculations likely
underestimate the historical effect of roads on rangewide habitat loss
for the lesser prairie-chicken. The results indicate that the total
areas of grassland that have been directly and indirectly impacted by
roads within the analysis area for the lesser prairie-chicken are:
about 17 percent of the total area in the Short-Grass/CRP Ecoregion;
about 14 percent of the total area in the Sand Sagebrush Ecoregion;
about 20 percent of the total area in the Mixed-Grass Ecoregion; and
about 19 percent of the total area in the Shinnery Oak Ecoregion.
Rangewide, we estimate about 3,996,000 ac (1,617,000 ha) of grassland
have been impacted by roads, representing about 18 percent of the total
analysis area (Service 2022, appendix E, figure E.6). We did not have
adequate spatial data to evaluate habitat loss caused solely by
electrical distribution lines, but much of the existing impacts of
power lines occur within the impacts caused by roads. Electrical
distribution lines that fall outside the existing impacts of roads
would represent additional impacts for the lesser prairie-chicken that
are not quantified in our geospatial analysis.
Development of roads and electrical distribution lines directly
removes habitat that supports lesser prairie-chicken, and the effects
of the development extend past the immediate footprint of the
development, further impacting habitat and altering behavior of lesser
prairie-chicken throughout both the Northern and the Southern DPSs.
These activities have resulted in decreases in population resiliency
and species redundancy.
Other Factors
Livestock Grazing
Grazing has long been an ecological driving force throughout the
ecosystems of the Great Plains (Stebbins 1981, p. 84), and much of the
untilled grasslands within the range of the lesser prairie-chicken is
currently grazed by livestock and other animals. Historically, the
interaction of fire, drought, prairie dogs (Cynomys ludovicianus), and
large ungulate grazers created and maintained distinctive plant
communities in the Western Great Plains, resulting in a mosaic of
vegetation structure and composition that sustained lesser prairie-
chicken and other grassland bird populations (Derner et al. 2009, p.
112). As such, grazing by domestic livestock is not inherently
detrimental to lesser prairie-chicken management and, in many cases, is
needed to maintain appropriate vegetative structure.
However, grazing practices that tend to result in overutilization
of forage and decreasing vegetation heterogeneity can produce habitat
conditions that differ in significant ways from the historical
grassland mosaic; these incompatible practices alter the vegetation
structure and composition and degrade the quality of habitat for the
lesser prairie-chicken. The more heavily altered conditions are the
least valuable for the lesser prairie-chicken (Jackson and
[[Page 72691]]
DeArment 1963 p. 733; Davis et al. 1979, pp. 56, 116; Taylor and
Guthery 1980a, p. 2; Bidwell and Peoples 1991, pp. 1-2). In some cases,
these alterations can result in areas that do not contain the
biological components necessary to support the lesser prairie-chicken.
Where grazing regimes leave limited residual cover in the spring,
protection of lesser prairie-chicken nests may be inadequate, and
desirable food resources can be scarce (Bent 1932, p. 280; Cannon and
Knopf 1980, pp. 73-74; Crawford 1980, p. 3; Kraft 2016, pp. 19-21).
Because lesser prairie-chicken depend on medium- and tall-grass species
for nesting, concealment, and thermal cover that are also
preferentially grazed by cattle, these plant species needed by lesser
prairie-chicken can easily be reduced or eliminated by cattle grazing,
particularly in regions of low rainfall (Hamerstrom and Hamerstrom
1961, p. 290). In addition, when grasslands are in a deteriorated
condition due to incompatible grazing and overutilization, the soils
have less water-holding capacity (Blanco and Lal 2010, p. 9), and the
availability of succulent vegetation and insects used by lesser
prairie-chicken chicks is reduced. However, grazing can be beneficial
to the lesser prairie-chicken when management practices produce or
enhance the vegetative characteristics required by the lesser prairie-
chicken.
The interaction of fire and grazing and its effect on vegetation
components and structure is likely important to prairie-chickens
(Starns et al. 2020, entire). On properties managed with patch-burn
grazing regimes, female greater prairie-chickens selected areas with
low cattle stocking rates and patches that were frequently burned,
though they avoided areas that were recently burned (Winder et al.
2017, p. 171). Patch-burn grazing created preferred habitats for female
greater prairie-chickens if the regime included a relatively frequent
fire-return interval, a mosaic of burned and unburned patches, and a
reduced stocking rate in unburned areas avoided by grazers. When
managed compatibly, widespread implementation of patch-burn grazing
could result in significant improvements in habitat quality for
wildlife in the tall-grass prairie ecosystem (Winder et al. 2017, p.
165). In the eastern portion of the lesser prairie-chicken range,
patch-burn grazing resulted in patchy landscapes with variation in
vegetation composition and structure (Lautenbach 2017, p. 20). Female
lesser prairie-chickens' use of the diversity of patches in the
landscape varied throughout their life cycle. They selected patches
with the greatest time-since-fire and subsequently the most visual
obstruction for nesting, and they selected sites with less time-since-
fire and greater bare ground and forbs for summer brooding.
Livestock also inadvertently flush lesser prairie-chicken and
trample lesser prairie-chicken nests (Toole 2005, p. 27; Pitman et al.
2006, pp. 27-29). Brief flushing of adults from nests can expose eggs
and chicks to predation and extreme temperatures. Trampling nests can
cause direct mortality to lesser prairie-chicken eggs or chicks or may
cause adults to permanently abandon their nests, ultimately resulting
in loss of young. Although these effects have been documented, the
significance of direct livestock effects on the lesser prairie-chicken
is largely unknown and is presumed not to be significant at a
population scale.
In summary, domestic livestock grazing (including management
practices commonly used to benefit livestock production) has altered
the composition and structure of grassland habitat, both currently and
historically, used by the lesser prairie-chicken. Much of the remaining
remnants of mixed-grass grasslands, while still important to the lesser
prairie-chicken, exhibit conditions quite different from those prior to
Euro-American settlement. These changes have reduced the suitability of
remnant grassland areas as habitat for lesser prairie-chicken. Grazing
management that has altered the vegetation community to a point where
the composition and structure are no longer suitable for lesser
prairie-chicken can contribute to fragmentation within the landscape,
even though these areas may remain as prairie or grassland. Livestock
grazing, however, is not inherently detrimental to lesser prairie-
chicken provided that grazing management results in a plant community
diversity and structure that is suitable for lesser prairie-chicken.
While domestic livestock grazing is a dominant land use on untilled
range land within the lesser prairie-chicken analysis area, geospatial
data do not exist at a scale and resolution necessary to calculate the
total amount of livestock grazing that is being managed in a way that
results in habitat conditions that are not compatible with the needs of
the lesser prairie-chicken. Therefore, we did not attempt to spatially
quantify the scope of grazing effects across the lesser prairie-chicken
range.
Shrub Control and Eradication
Shrub control and eradication are additional forms of habitat
alteration that can influence the availability and suitability of
habitat for lesser prairie-chicken (Jackson and DeArment 1963, pp. 736-
737). Most shrub control and eradication efforts in lesser prairie-
chicken habitat are primarily focused on sand shinnery oak for the
purpose of increasing forage for livestock grazing. Sand shinnery oak
is toxic if eaten by cattle when it first produces leaves in the spring
and competes with more palatable grasses and forbs for water and
nutrients (Peterson and Boyd 1998, p. 8), which is why it is a common
target for control and eradication efforts by rangeland managers. Prior
to the late 1990s, approximately 100,000 ac (40,000 ha) of sand
shinnery oak in New Mexico and approximately 1,000,000 ac (405,000 ha)
of sand shinnery oak in Texas were lost due to the application of
tebuthiuron and other herbicides for agriculture and range improvement
(Peterson and Boyd 1998, p. 2).
Shrub cover is an important component of lesser prairie-chicken
habitat in certain portions of the range, and sand shinnery oak is a
key shrub in the Shinnery Oak and portions of the Mixed-Grass
Ecoregions. The importance of sand shinnery oak as a component of
lesser prairie-chicken habitat in the Shinnery Oak Ecoregion has been
demonstrated by several studies (Fuhlendorf et al. 2002, pp. 624-626;
Bell 2005, pp. 15, 19-25). In West Texas and New Mexico, lesser
prairie-chicken avoid nesting where sand shinnery oak has been
controlled with tebuthiuron, indicating their preference for habitat
with a sand shinnery oak component (Grisham et al. 2014, p. 18; Haukos
and Smith 1989, p. 625; Johnson et al. 2004, pp. 338-342; Patten and
Kelly 2010, p. 2151). Where sand shinnery oak occurs, lesser prairie-
chicken use it both for food and cover. Sand shinnery oak may be
particularly important in drier portions of the range that experience
more severe and frequent droughts and extreme heat events, as sand
shinnery oak is more resistant to drought and heat conditions than are
most grass species. And because sand shinnery oak is toxic to cattle
and thus not targeted by grazing, it can provide available cover for
lesser prairie-chicken nesting and brood rearing during these extreme
weather events. Loss of this component of the vegetative community
likely contributed to observed population declines in lesser prairie-
chicken in these areas.
While relatively wide-scale shrub eradication has occurred in the
past, geospatial data do not exist to evaluate the extent to which
shrub eradication has contributed to the habitat loss and fragmentation
for the lesser prairie-chicken and, therefore, was not included in our
quantitative analysis.
[[Page 72692]]
While current efforts of shrub eradication are not likely occurring at
rates equivalent to those witnessed in the past, any additional efforts
to eradicate shrubs that are essential to lesser prairie-chicken
habitat will result in additional habitat degradation and thus reduce
redundancy and resiliency.
Influence of Anthropogenic Noise
Anthropogenic noise can be associated with almost any form of human
activity, and lesser prairie-chicken may exhibit behavioral and
physiological responses to the presence of noise. In prairie-chickens,
the ``boom'' call vocalization transmits information about sex,
territorial status, mating condition, location, and individual identity
of the signaler and thus is important to courtship activity and long-
range advertisement of the display ground (Sparling 1981, p. 484). The
timing of displays and frequency of vocalizations are critical
reproductive behaviors in prairie grouse and appear to have developed
in response to unobstructed conditions prevalent in prairie habitat and
indicate that effective communication, particularly during the lekking
season, operates within a fairly narrow set of acoustic conditions.
Prairie grouse usually initiate displays on the lekking grounds around
sunrise, and occasionally near sunset, corresponding with times of
decreased wind turbulence and thermal variation (Sparling 1983, p. 41).
Considering the narrow set of acoustic conditions in which
communication appears most effective for breeding lesser prairie-
chicken and the importance of communication to successful reproduction,
human activities that result in noises that disrupt or alter these
conditions could result in lek abandonment (Crawford and Bolen 1976b,
p. 239). Anthropogenic features and related activities that occur on
the landscape can create noise that exceeds the natural background or
ambient level. When the behavioral response to noise is avoidance, as
it often is for lesser prairie-chicken, noise can be a source of
habitat loss or degradation leading to increased habitat fragmentation.
Anthropogenic noise may be a possible factor in the population
declines of other species of lekking grouse in North America,
particularly for populations that are exposed to human developments
(Blickley et al. 2012a, p. 470; Lipp and Gregory 2018, pp. 369-370).
Male greater prairie-chicken adjust aspects of their vocalizations in
response to wind turbine noise, and wind turbine noise may have the
potential to mask the greater prairie-chicken chorus at 296 hertz (Hz)
under certain scenarios, but the extent and degree of masking is
uncertain (Whalen 2015, entire). Noise produced by typical oil and gas
infrastructure can mask grouse vocalizations, compromise the ability of
female sage-grouse to find active leks when such noise is present, and
affect nest site selection (Blickley and Patricelli 2012, p. 32; Lipp
2016, p. 40). Chronic noise associated with human activity leads to
reduced male and female attendance at noisy leks. Breeding,
reproductive success, and ultimately recruitment in areas with human
developments could be impaired by such developments, impacting survival
(Blickley et al. 2012b, entire). Because opportunities for effective
communication on the display ground occur under fairly narrow
conditions, disturbance during this period may have negative
consequences for reproductive success. Other communications used by
grouse off the lek, such as parent-offspring communication, may
continue to be susceptible to masking by noise from human
infrastructure (Blickley and Patricelli 2012, p. 33).
No data are available to quantify the areas of lesser prairie-
chicken habitat rangewide that have been affected by noise, but noise
is a threat that is almost entirely associated with anthropogenic
features such as roads or energy development. Therefore, through our
accounting for anthropogenic features we may have inherently accounted
for all or some of the response of the lesser prairie-chicken to noise
produced by those features.
Overall, persistent anthropogenic noise could cause lek attendance
to decline, disrupt courtship and breeding activity, and reduce
reproductive success. Noise can also cause abandonment of otherwise
usable habitat and, as a result, contribute to habitat loss and
degradation.
Fire
Fire, or its absence, is understood to be a major ecological driver
of grasslands in the Southern Great Plains (Anderson 2006, entire;
Koerner and Collins 2014, entire; Wright and Bailey 1982, pp. 80-137).
Fire is an ecological process important to maintaining grasslands by
itself and in coupled interaction with grazing and climate. The
interaction of these ecological processes results in increasing
grassland heterogeneity through the creation of temporal and spatial
diversity in plant community composition and structure and associated
response of wildlife (Fuhlendorf and Engle 2001, entire; Fuhlendorf and
Engle 2004, entire; Fuhlendorf et al. 2017a, pp. 169-196).
Following settlement of the Great Plains, fire management generally
emphasized prevention and suppression, often coupled with grazing
pressures that significantly reduced and removed fine fuels (Sayre
2017, pp. 61-70). This approach, occurring in concert with settlement
and ownership patterns that occurred in most of the Southern Great
Plains, meant that the scale of management was relegated to smaller
parcels than historically were affected. This increase in smaller
parcels with both intensive grazing and fire suppression resulted in
the transformation of landscapes from dynamic heterogeneous to largely
static and homogenous plant communities. This simplification of
vegetative pattern due to decoupling fire and grazing (Starns et al.
2019, pp. 1-3) changed the number and size of wildfires and ultimately
led to declines in biodiversity in the affected systems (Fuhlendorf and
Engle 2001, entire).
Changes in patterns of wildfire in the Great Plains have been noted
in recent years (Donovan et al. 2017, entire). While these landscapes
have a long history of wildfire, large wildfires (greater than 1,000 ac
(400 ha)) typically did not occur in recent past decades, and include
an increase in the Southern Great Plains of megafires (greater than
100,000 ac (404 km\2\; 40,468 ha)) since the mid-1990s (Lindley et al.
2019, p. 164). Changes have occurred throughout all or portions of the
Great Plains in number of large wildfires and season of fire
occurrence, as well as increased area burned by wildfire or increasing
probability of large wildfires (Donovan et al. 2017, p. 5990).
Furthermore, Great Plains land cover dominated by woody or woody/
grassland combined vegetation is disproportionately more likely to
experience large wildfires, with the greatest increase in both number
of fires and of area burned (Donovan et al. 2020a, p. 11). Fire
behavior has also been affected such that these increasingly large
wildfires are burning under weather conditions (Lindley et al. 2019,
entire) that result in greater burned extent and intensity. These
shifts in fire parameters and their outcomes have potential
consequences for lesser prairie-chicken, including: (1) larger areas of
complete loss of nesting habitat as compared to formerly patchy
mosaicked burns; and (2) large-scale reduction in the spatial and
temporal variation in vegetation structure and composition affecting
nesting and brood-rearing habitat, thermoregulatory cover, and predator
escape cover.
[[Page 72693]]
Effects from fire are expected to be relatively short term (Donovan
et al. 2020b, entire, Starns et al. 2020, entire), with plant community
recovery time largely predictable and influenced by pre-fire condition,
post-fire weather, and types of management. Some effects from fire,
however, such as the response to changing plant communities in the
range of the lesser prairie-chicken, will vary based on location within
the range and available precipitation. In the eastern extent of the
distribution of sand shinnery oak that occurs in the Mixed-Grass
Ecoregion, fire has potential negative effects on some aspects of the
lesser prairie-chicken habitat for 2 years after the area burns, but
these effects could be longer in duration dependent upon precipitation
patterns (Boyd and Bidwell 2001, pp. 945-946). Effects from fire on
lesser prairie-chicken varied based on fire break preparation, season
of burn, and type of habitat; positive effects included improved brood
habitat through increased forb and grasshopper abundance, but these can
be countered by short-term (2-year) negative effects to quality and
availability of nesting habitat and a reduction in food sources (Boyd
and Bidwell 2001, pp. 945-946). Birds moved into recently burned
landscapes of western Oklahoma for lek courtship displays because of
the reduction in structure from formerly dense vegetation (Cannon and
Knopf 1979, entire).
More recently, research evaluating indirect effects concluded that
prescribed fire and managed grazing following the patch-burn or pyric
herbivory (grazing practices shaped fire) approach will benefit lesser
prairie-chicken through increases in forbs; invertebrates; and the
quality, amount, and juxtaposition of brood habitat to available
nesting habitat (Elmore et al. 2017, entire). The importance of
temporal and spatial heterogeneity derived from pyric herbivory is
apparent in the female lesser prairie-chicken use of all patch types in
the patch-burn grazing mosaic, including greater than 2 years post fire
for nesting, 2-year post fire during spring lekking, 1- and 2-year post
fire during summer brooding, and 1-year post fire during nonbreeding
season (Lautenbach 2017, pp. 20-22). While the use of prescribed fire
as a tool for managing grasslands throughout the lesser prairie-chicken
range is encouraged, current use is at a temporal frequency and spatial
extent insufficient to support large amounts of lesser prairie-chicken
habitat. These fire management efforts are limited to a small number of
fire-minded landowners, resulting in effects to a small percentage of
the lesser prairie-chicken range.
While lesser prairie-chicken evolved in a fire-adapted landscape,
little research (Thacker and Twidwell 2014, entire) has been conducted
on response of lesser prairie-chicken to altered fire regimes. Research
to date has focused on site-specific responses and consequences. Human
suppression of wildfire and the limited extent of fire use (prescribed
fire) for management over the past century has altered the frequency,
scale, and intensity of fire occurrence in lesser prairie-chicken
habitat. These changes in fire parameters have happened simultaneously
with habitat loss and fragmentation, resulting in patchy distribution
of lesser prairie-chicken throughout their range. An increase in size,
intensity, or severity of wildfires as compared to historical
occurrences results in increased vulnerability of isolated, smaller
lesser prairie-chicken populations. Both woody plant encroachment and
drought are additive factors that increase risk of negative
consequences of wildfire ignition, as well as extended post-fire lesser
prairie-chicken habitat effects. The extent of these negative impacts
can be significantly altered by precipitation patterns following the
occurrence of the fire; dry periods will inhibit or extend plant
community response.
Historically, fire served an important role in maintenance and
quality of habitat for the lesser prairie-chicken. Currently, due to a
significant shift in fire regimes in the lesser prairie-chicken range,
fire use for management of grasslands plays a locally important but
overall limited role in most lesser prairie-chicken habitat. This
current lack of prescribed fire use in the range of the lesser prairie-
chicken is contributing to woody plant encroachment and degradation of
grassland quality due to its decoupling from the grazing and fire
interaction that is the foundation for plant community diversity in
structure and composition, which in turn supports the diverse habitat
needs of lesser prairie-chicken. These cascading effects contribute to
greater wildfire risk, and concerns exist regarding the changing
patterns of wildfires (scale, intensity, and frequency) and their
consequences for remaining lesser prairie-chicken populations and
habitat that are increasingly fragmented. Concurrently, wildfire has
increased as a threat rangewide due to compounding influences of
increased size and severity of wildfires and the potential consequences
to remaining isolated and fragmented lesser prairie-chicken
populations.
Extreme Weather Events
Weather-related events such as drought, snow, and hailstorms can
influence habitat quality or result in direct mortality of lesser
prairie-chickens. Although hailstorms typically have only a localized
effect, the effects of snowstorms and drought can often be more
widespread and can affect considerable portions of the lesser prairie-
chicken range. Drought is considered a universal ecological driver
across the Great Plains (Knopf 1996, p. 147). Annual precipitation
within the Great Plains is highly variable (Wiens 1974, p. 391), with
prolonged drought capable of causing local extinctions of annual forbs
and grasses within stands of perennial species; recolonization is often
slow (Tilman and El Haddi 1992, p. 263). Grassland bird species in
particular are impacted by climate extremes such as extended drought,
which acts as a bottleneck that allows only a limited number of
individuals to survive through the relatively harsh conditions (Wiens
1974, pp. 388, 397; Zimmerman 1992, p. 92). Drought also interacts with
many of the other threats impacting the lesser prairie-chicken and its
habitat, such as amplifying the effects of incompatible grazing and
predation.
Although the lesser prairie-chicken has adapted to drought as a
component of its environment, drought and the accompanying harsh,
fluctuating conditions (high temperatures and low food and cover
availability) have influenced lesser prairie-chicken populations.
Widespread periods of drought commonly result in ``bust years'' of
recruitment. Following extreme droughts of the 1930s, 1950s, 1970s, and
1990s, lesser prairie-chicken population levels declined and a decrease
in their overall range was observed (Lee 1950, p. 475; Ligon 1953, p.
1; Schwilling 1955, pp. 5-6; Hamerstrom and Hamerstrom 1961, p. 289;
Copelin 1963, p. 49; Crawford 1980, pp. 2-5; Massey 2001, pp. 5, 12;
Hagen and Giesen 2005, unpaginated). Additionally, lesser prairie-
chicken populations reached near record lows during and after the more
recent drought of 2011 to 2013 (McDonald et al. 2017, p. 12; Fritts et
al. 2018, entire).
Drought impacts prairie grouse, such as lesser prairie-chicken,
through several mechanisms. Drought affects seasonal growth of
vegetation necessary to provide suitable nesting and roosting cover,
food, and opportunity for escape from predators (Copelin 1963, pp. 37,
42; Merchant 1982, pp. 19, 25, 51;
[[Page 72694]]
Applegate and Riley 1998, p. 15; Peterson and Silvy 1994, p. 228;
Morrow et al. 1996, pp. 596-597; Ross et al. 2016a, entire). Lesser
prairie-chicken home ranges will temporarily expand during drought
years (Copelin 1963, p. 37; Merchant 1982, p. 39) to compensate for
scarcity in available resources. During these periods, the adult birds
expend more energy searching for food and tend to move into areas with
limited cover in order to forage, leaving them more vulnerable to
predation and heat stress (Merchant 1982, pp. 34-35; Flanders-Wanner et
al. 2004, p. 31). Chick survival and recruitment may also be depressed
by drought (Merchant 1982, pp. 43-48; Morrow et al. 1996, p. 597;
Giesen 1998, p. 11; Massey 2001, p. 12), which likely affects
population trends more than annual changes in adult survival (Hagen
2003, pp. 176-177). Drought-induced mechanisms affecting recruitment
include decreased physiological condition of breeding females (Merchant
1982, p. 45); heat stress and water loss of chicks (Merchant 1982, p.
46); and effects to hatch success and juvenile survival due to changes
in microclimate, temperature, and humidity (Patten et al. 2005, pp.
1274-1275; Bell 2005, pp. 20-21; Boal et al. 2010, p. 11).
Precipitation, or lack thereof, appears to affect lesser prairie-
chicken adult population trends with a potential lag effect (Giesen
2000, p. 145; Ross et al. 2016a, pp. 6-8). That is, rain levels in one
year promote more vegetative cover for eggs and chicks in the following
year, which influences survival and reproduction.
Although lesser prairie-chicken have persisted through droughts in
the past, the effects of such droughts are exacerbated by human land
use practices such as incompatible grazing and land cultivation
(Merchant 1982, p. 51; Hamerstrom and Hamerstrom 1961, pp. 288-289;
Davis et al. 1979, p. 122; Taylor and Guthery 1980a, p. 2; Ross et al.
2016b, pp. 183-186) as well as the other threats that have affected the
current condition and have altered and fragmented the landscape and
decreased population abundances (Fuhlendorf et al. 2002, p. 617;
Rodgers 2016, pp. 15-19). In past decades, fragmentation of lesser
prairie-chicken habitat was less extensive than it is today,
connectivity between occupied areas was more prevalent, and populations
were larger, allowing populations to recover more quickly. In other
words, lesser prairie-chicken populations were more resilient to the
effects of stochastic events such as drought. As lesser prairie-chicken
population abundances decline and usable habitat declines and becomes
more fragmented, their ability to rebound from prolonged drought is
diminished.
Hailstorms can cause mortality of prairie grouse, particularly
during the spring nesting season. An excerpt from the May 1879 Stockton
News describes a large hailstorm near Kirwin, Kansas, as responsible
for killing prairie-chickens (likely greater prairie-chicken) and other
birds by the hundreds (Fleharty 1995, p. 241). Although such phenomena
are likely rare, the effects can be significant, particularly if they
occur during the nesting period and result in significant loss of eggs
or chicks. Severe winter storms can also result in localized impacts to
lesser prairie-chicken populations. For example, a severe winter storm
in 2006 was reported to reduce lesser prairie-chicken numbers in
Colorado by 75 percent from 2006 to 2007, from 296 birds observed to
only 74. Active leks also declined from 34 leks in 2006 to 18 leks in
2007 (Verquer 2007, p. 2). While populations commonly rebound to some
degree following severe weather events such as drought and winter
storms, a population with decreased resiliency becomes susceptible to
extirpation from stochastic events.
We are not able to quantify the impact that severe weather has had
on the lesser prairie-chicken populations, but, as discussed above,
these events have shaped recent history and influenced the current
condition for the lesser prairie-chicken.
Regulatory Mechanisms
In appendix D of the SSA report (Service 2022), we review in more
detail all of the existing regulatory mechanisms (such as local, State,
and Federal land use regulations or laws) that may impact lesser
prairie-chicken conservation. Here, we present a summary of some of
those regulatory mechanisms. All existing regulatory mechanisms listed
in appendix D of the SSA report were fully considered in our conclusion
about the status of the two DPSs.
All five States in the estimated occupied range (EOR) (Van Pelt et
al. 2013, p. 3) have incorporated the lesser prairie-chicken as a
species of conservation concern and management priority in their
respective State Wildlife Action Plans. While identification of the
lesser prairie-chicken as a species of conservation concern helps
heighten public awareness, this designation provides no protection from
direct take or habitat destruction or alteration. The lesser prairie-
chicken is listed as threatened in Colorado; this listing protects the
lesser prairie-chicken from direct purposeful mortality by humans but
does not provide protections for destruction or alteration of habitat.
Primary land ownership (approximately 5 percent of total range) at
the Federal level is on USFS and BLM lands. The lesser prairie-chicken
is present on the Cimarron National Grassland in Kansas and the
Comanche National Grassland in Colorado; a total of approximately 3
percent of the total acres estimated in the SSA analysis area is on
USFS land. The 2014 Lesser Prairie-Chicken Management Plan for these
grasslands provides a framework to manage lesser prairie-chicken
habitat. The plan provides separate population and habitat recovery
goals for each grassland, as well as vegetation surveys to inform
ongoing and future monitoring efforts of suitable habitat and lek
activities. Because National Grasslands are managed for multiple uses,
the plan includes guidelines for prescribed fire and grazing.
In New Mexico, roughly 41 percent of the known historical and most
of the estimated occupied lesser prairie-chicken range occurs on BLM
land, for a total of 3 percent of the total acres estimated in the
analysis area of the SSA report. The BLM established the 57,522-ac
(23,278-ha) Lesser Prairie-Chicken Habitat Preservation Area of
Critical Environmental Concern (ACEC) upon completion of the Resource
Management Plan Amendment (RMPA) in 2008. The management goal for the
ACEC is to protect the biological qualities of the area, with emphasis
on the preservation of the shinnery oak-dune community to enhance the
biodiversity of the ecosystem, particularly habitats for the lesser
prairie-chicken and the dunes sagebrush lizard. Upon designation, the
ACEC was closed to future oil and gas leasing, and existing leases
would be developed in accordance with prescriptions applicable to the
Core Management Area as described below (BLM 2008, p. 30). Additional
management prescriptions for the ACEC include designation as a right-
of-way exclusion area, vegetation management to meet the stated
management goal of the area, and limiting the area to existing roads
and trails for off-highway vehicle use (BLM 2008, p. 31). All acres of
the ACEC have been closed to grazing through relinquishment of the
permits except for one 3,442-ac (1,393-ha) allotment.
The BLM's approved RMPA (BLM 2008, pp. 5-31) provides some limited
protections for the lesser prairie-chicken in New Mexico by reducing
the number of drilling locations, decreasing the size of well pads,
reducing the number and
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length of roads, reducing the number of power lines and pipelines, and
implementing best management practices for development and reclamation.
The effect of these best management practices on the status of the
lesser prairie-chicken is unknown, particularly considering about
82,000 ac (33,184 ha) have already been leased in those areas (BLM
2008, p. 8). Although the BLM RMPA is an important tool for identifying
conservation actions that would benefit lesser prairie-chicken, this
program does not alleviate all threats acting on the species in this
area.
No new mineral leases will be issued on approximately 32 percent of
Federal mineral acreage within the RMPA planning area (BLM 2008, p. 8),
although some exceptions are allowed on a case-by-case basis (BLM 2008,
pp. 9-11). Within the Core Management Area and Primary Population Area,
as delineated in the RMPA, new leases will be restricted in occupied
and suitable habitat; however, if there is an overall increase in
reclaimed to disturbed acres over a 5-year period, new leases in these
areas will be allowed (BLM 2008, p. 11). In the southernmost habitat
management units outlined in the RMPA, where lesser prairie-chickens
are now far less common than in previous decades (Hunt and Best 2004),
new leases will not be allowed within 1.5 mi (2.4 km) of a lek (BLM
2008, p. 11).
We conclude that existing regulatory mechanisms have minimal
influence on the rangewide trends of lesser prairie-chicken habitat
loss and fragmentation because 97 percent of the lesser prairie-chicken
analysis area occurs on private lands, which are largely unregulated
for the protection of the species and its habitat. The activities
affecting lesser prairie-chicken habitat are largely land use practices
and land development without regulations ameliorating the primary
threats to the lesser prairie-chicken.
Conservation Efforts
Below we include a summary of conservation efforts; for a complete
description of these conservation efforts please see the SSA report
(Service 2022, pp. 49-62). All of the conservation measures discussed
in the SSA report were incorporated into the analysis of the species'
current and future condition. Some programs are implemented across the
species' range, and others are implemented at the State or local level.
Because the vast majority of lesser prairie-chicken and their habitat
occurs on private lands, most of these programs are targeted toward
voluntary, incentive-based actions in cooperation with private
landowners.
At the rangewide scale, plans include the Lesser Prairie-Chicken
Rangewide Conservation Plan, the Lesser Prairie-Chicken Initiative, and
the Conservation Reserve Program. Below is a summary of the primary
rangewide conservation efforts. For detailed descriptions of each
program, please see the SSA report. All existing ongoing conservation
efforts were fully considered in our determination on the status of the
two DPSs.
In 2013, the State fish and wildlife agencies within the range of
the lesser prairie-chicken and the Western Association of Fish and
Wildlife Agencies (WAFWA) finalized the Lesser Prairie-Chicken Range-
wide Conservation Plan (RWP) in response to concerns about threats to
lesser prairie-chicken habitat and resulting effects to lesser prairie-
chicken populations (Van Pelt et al. 2013, entire). The RWP established
biological goals and objectives as well as a conservation targeting
strategy that aims to unify conservation efforts towards common goals.
Additionally, the RWP established a mitigation framework administered
by WAFWA that allows industry participants the opportunity to mitigate
unavoidable impacts of a particular activity on the lesser prairie-
chicken. After approval of the RWP, WAFWA developed a companion oil and
gas candidate conservation agreement with assurances (CCAA), which
adopted the mitigation framework contained within the RWP that was
approved in 2014.
As of August 1, 2020, WAFWA had used incoming funds from industry
participants to place 22 sites totaling 128,230 unimpacted ac (51,893
ha) under conservation contracts to provide offset for industry impacts
that have occurred through the RWP and CCAA (Moore 2020, p. 9). Of
those sites, 35,635 unimpacted ac (14,421 ha) are permanently protected
and 92,595 unimpacted ac (37,472 ha) are being managed under 10-year
term agreements. Landowners who enroll agree to implement actions to
restore or enhance their lands for the lesser prairie-chicken. These
actions may include restoration actions (such as removal of woody
vegetation) or enhancement actions (such as implementation of a grazing
management plan designed for their property). These areas are enrolled
under RWP conservation contracts that will provide mitigation for 1,538
projects, which impacted 48,743 ac (19,726 ha) (WAFWA 2020, table 32,
unpaginated). When enrolling a property, industry participants agree to
minimize impacts from projects to lesser prairie-chicken habitat and
mitigate for all remaining impacts on the enrolled property.
At the end of 2021 in the CCAA, there were 111 active contracts
(Certificates of Inclusion) with 6,226,140 ac (2,519,629 ha) enrolled
(WAFWA 2022, p. 4), and in the WAFWA Conservation Agreement there were
52 active WAFWA Conservation Agreement contracts (Certificates of
Participation) with 599,626 ac (242,660 ha) enrolled (WAFWA 2020, table
5 unpaginated) by industry participants. These acres of industry
enrollment are areas where industry participants have agreed to
implement minimization measures and to pay mitigation fees to offset
the remaining impacts. A recent audit of the mitigation program
associated with the RWP and CCAA identified several key issues to be
resolved within the program to ensure financial stability and effective
conservation outcomes (Moore 2020, appendix E). WAFWA has hired a
consultant who is currently working with stakeholders, including the
Service, to consider available options to address the identified issues
to ensure long-term durability of the strategy.
In 2010, the USDA's Natural Resources Conservation Service (NRCS)
began implementation of the Lesser Prairie-Chicken Initiative (LPCI).
The LPCI provides conservation assistance, both technical and
financial, to landowners throughout the LPCI's administrative boundary
(NRCS 2017, p. 1). The LPCI focuses on maintenance and enhancement of
lesser prairie-chicken habitat while benefiting agricultural producers
by maintaining the farming and ranching operations throughout the
region. In 2019, after annual declines in landowner interest in LPCI,
the NRCS made changes in how LPCI will be implemented moving forward
and initiated conferencing under section 7 of the Act with the Service.
Prior to 2019, participating landowners had to address all threats to
the lesser prairie-chicken present on their property. In the future,
each conservation plan developed under LPCI will only need to include
one or more of the core management practices that include prescribed
grazing, prescribed burning, brush management, and upland wildlife
habitat management. Additional management practices may be incorporated
into each conservation plan, as needed, to facilitate meeting the
desired objectives. These practices are applied or maintained annually
for the life of the practice, typically 1 to 15 years, to treat or
manage habitat for lesser prairie-chicken. From 2010 through 2019, NRCS
worked with 883 private
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agricultural producers to implement conservation practices on 1.6
million ac (647,497 ha) of working lands within the historical range of
the lesser prairie-chicken (NRCS 2020, p. 2). During that time, through
LPCI, NRCS implemented prescribed grazing plans on 680,800 ac (275,500
ha) across the range (Griffiths 2020, pers. comm.). Through LPCI, NRCS
has also removed over 41,000 ac (16,600 ha) of eastern red cedar in the
Mixed-Grass Ecoregion and chemically treated approximately 106,000 ac
(43,000 ha) of mesquite in the Shinnery Oak Ecoregion. Lastly, NRCS has
conducted prescribed burns on approximately 15,000 ac (6,000 ha) during
this time.
The Conservation Reserve Program (CRP) is administered by the
USDA's Farm Service Agency and provides short-term protection and
conservation benefits on millions of acres within the range of the
lesser prairie-chicken. The CRP is a voluntary program that allows
eligible landowners to receive annual rental payments and cost-share
assistance in exchange for removing cropland and certain marginal
pastureland from agricultural production. CRP contract terms are for 10
to 15 years. The total amount of land that can be enrolled in the CRP
is capped nationally by the Food Security Act of 1985, as amended (the
2018 Farm Bill) at 27 million ac (10.93 million ha). All five States
within the range of the lesser prairie-chicken have lands enrolled in
the CRP. The 2018 Farm Bill maintains the acreage limitation that not
more than 25 percent of the cropland in any county can be enrolled in
CRP, with specific conditions under which a waiver to this restriction
can be provided for lands enrolled under the Conservation Reserve
Enhancement Program (84 FR 66813, December 6, 2019). Over time, CRP
enrollment fluctuates both nationally and locally. Within the counties
that intersect the Estimated Occupied Range plus a 10-mile buffer
(EOR+10), acres enrolled in CRP have declined annually since 2007 (with
the exception of one minor increase from 2010 to 2011) from nearly 6
million ac (2.4 million ha) enrolled to current enrollment levels of
approximately 4.25 million ac (1.7 million ha) (FSA 2020a, unpublished
data). The EOR+10 is a 10-mile buffer of the EOR often referenced in
lesser prairie-chicken planning efforts but also contains significant
areas that do not support the biotic and abiotic characteristics
required by the lesser prairie-chicken. More specific to our analysis
area, current acreage of CRP enrollment is approximately 1,822,000 ac
(737,000 ha) within our analysis area. Of those currently enrolled
acres there are approximately 120,000 ac (49,000 ha) of introduced
grasses and legumes dispersed primarily within the Mixed-Grass and
Shinnery Oak Ecoregions (FSA 2020b, unpublished data).
At the State level, programs provide direct technical and financial
cost-share assistance to private landowners interested in voluntarily
implementing conservation management practices to benefit species of
greatest conservation need--including the lesser prairie-chicken.
Additionally, a variety of State-level conservation efforts acquire and
manage lands or incentivize management by private landowners for the
benefit of the lesser prairie-chicken. Below is a summary for each
State within the range of the lesser prairie-chicken. For a complete
description of each, see the SSA report. All conservation measures
discussed in the SSA report were fully considered in this final rule.
Within the State of Kansas, conservation efforts are administered
by the Kansas Department of Wildlife and Parks (KDWP), The Nature
Conservancy, and the Service's Partners for Fish and Wildlife Program
(PFW). KDWP has targeted lesser prairie-chicken habitat improvements on
private lands by leveraging landowner cost-share contributions,
industry and nongovernmental organizations' cash contributions, and
agency funds toward several federally funded grant programs. The KDWP
has implemented conservation measures over 22,000 ac (8,900 ha) through
the Landowner Incentive Program, over 18,000 ac (7,285 ha) through the
State Wildlife Grant Private Landowner Program, 30,000 ac (12,140 ha)
through the Wildlife Habitat Incentives Program, and 12,000 ac (4,855
ha) through the Habitat First Program within the range of the lesser
prairie-chicken. Additionally, KDWP was provided an opportunity through
contributions from the Comanche Pool Prairie Resource Foundation to
leverage additional Wildlife and Sport Fish Restoration funds in 2016
to direct implementation of 19,655 ac (7,954 ha). The Nature
Conservancy in Kansas manages the 18,060-ac (7,309-ha) Smoky Valley
Ranch. The Nature Conservancy also serves as the easement holder for
nearly 34,000 ac (13,760 ha) of properties that are enrolled under the
RWP. The Nature Conservancy is also working to use funds from an NRCS
Regional Conservation Partnership Program that have resulted in nearly
50,000 ac (20,235 ha) on three ranches either with secured or in-
process conservation easements. These easements would restrict future
development and would ensure management is compatible for the
conservation of the lesser prairie-chicken. Our PFW program has
executed 95 private lands agreements with improvements on about 173,000
ac (70,011 ha) of private lands benefitting conservation of the lesser
prairie-chicken in Kansas. The primary activities being implemented on
these acres include: efforts to control and eradicate invasive, woody
plant species such as eastern red cedar; grazing management; and
enhanced use of prescribed fire to improve habitat conditions in native
grasslands.
In 2009, Colorado Parks and Wildlife (CPW) initiated its Lesser
Prairie-Chicken Habitat Improvement Program that provides cost-sharing
to private landowners who participate in practices such as deferred
grazing around active leks, enhancement of fields enrolled in CRP and
cropland-to-grassland habitat conversion. Since program inception, CPW
has completed 37,051 ac (14,994 ha) of habitat treatments. The Nature
Conservancy holds permanent conservation easements on multiple ranches
that make up the Big Sandy complex. Totaling approximately 48,940 ac
(19,805 ha), this complex is managed with lesser prairie-chicken as a
conservation objective and perpetually protects intact sand sagebrush
and short-grass prairie communities. The USFS currently manages the
Comanche Lesser Prairie-Chicken Habitat Zoological Area, as part of the
Comanche and Cimarron National Grasslands, which encompass an area of
10,177 ac (4,118 ha) in Colorado that is managed to benefit the lesser
prairie-chicken (USFS 2014, p. 9). In 2016, CPW and KDWP partnered with
Kansas State University and USFS to initiate a 3-year translocation
project to restore lesser prairie-chicken to the Comanche National
Grasslands (Colorado) and Cimarron National Grasslands (Kansas).
Beginning in the fall of 2016 and concluding with the 2019 spring
lekking season, the partnership trapped and translocated 411 lesser
prairie-chickens from the Short-Grass/CRP Ecoregion in Kansas to the
Sand Sagebrush Ecoregion. During April and May 2020 lek counts,
Colorado and Kansas biologists and technicians found 115 male birds on
20 active leks in the landscape around the Comanche and Cimarron
National Grasslands (Rossi 2020, pers. comm.). During lek counts in
2021, 65 males on 15 leks were documented in the release area (CPW
2021).
In 2013, the FWS issued the Oklahoma Department of Wildlife
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Conservation (ODWC) a 25-year enhancement of survival permit pursuant
to section 10(a)(1)(A) of the Act that included an umbrella CCAA
between the Service and ODWC for the lesser prairie-chicken in 14
Oklahoma counties (78 FR 14111, March 4, 2013). As of 2019, there were
84 participants with a total of 399,225 ac (161,561 ha) enrolled in the
ODWC CCAA, with 357,654 ac (144,737) enrolled as conservation acres
(ODWC 2020). The difference between total acres enrolled and
conservation acres enrolled is because, while a landowner may enroll
their entire property, not all of those acres provide habitat for the
lesser prairie-chicken. Landowners who agree to enroll in the CCAA
agree to implement measures, primarily prescribed grazing, to enhance
or restore habitat for the lesser prairie-chicken. The ODWC owns six
wildlife management areas totaling approximately 75,000 ac (30,351 ha)
in the range of the lesser prairie-chicken, though only a portion of
each wildlife management area can be considered as conservation acres
for lesser prairie-chicken because not all acres of the wildlife
management areas are habitat for the species. Our PFW program has
funded a shared position with ODWC for 6 years to conduct CCAA
monitoring and, in addition, has provided funding for on-the-ground
work in the lesser prairie-chicken range. Since 2017, the Oklahoma PFW
program has implemented 51 private lands agreements on about 10,603 ac
(4,291 ha) for the benefit of the lesser prairie-chicken in Oklahoma.
On these acres conservation measures may include control of eastern red
cedar, native grass planting, and fence marking and removal to minimize
collision mortality. The Nature Conservancy of Oklahoma manages the
4,050-ac (1,640-ha) Four Canyon Preserve in Ellis County for ecological
health to benefit numerous short-grass prairie species, including the
lesser prairie-chicken. In 2017, The Nature Conservancy acquired a
conservation easement on 1,784 ac (722 ha) in Woods County which
restricts future development and ensures sustainable management is
occurring. The Conservancy is seeking to permanently protect additional
acreage in the region through the acquisition of additional
conservation easements.
Texas Parks and Wildlife Department (TPWD) worked with the Service
and landowners to develop the first State-wide umbrella CCAA for the
lesser prairie-chicken in Texas, which was finalized in 2006. The Texas
CCAA covers 50 counties, largely encompassing the Texas Panhandle and
South Plains. Total landowner participation by the close of January
2020 was 91 properties totaling approximately 657,038 ac (265,894 ha)
enrolled in 15 counties (TPWD 2020, entire). On these acres
conservation measures would generally consist of prescribed grazing;
prescribed burning; brush management; cropland and residue management;
range seeding and enrollment in various other Federal or State programs
to provide financial assistance to implement these measures. Our PFW
program and the TPWD have actively collaborated on range management
programs designed to provide cost-sharing for implementation of habitat
improvements for lesser prairie-chicken. In the past the Service
provided funding to TPWD to support a Landscape Conservation
Coordinator position for the Panhandle and Southern High Plains region,
as well as funding to support Landowner Incentive Program projects
targeting lesser prairie-chicken habitat improvements (brush control
and grazing management) in this region. More than $200,000 of Service
funds were committed in 2010, and an additional $100,000 was committed
in 2011.
Since 2008, Texas has used these and other funds to address lesser
prairie-chicken conservation on 14,068 ac (5,693 ha) under the
Landowner Incentive Program. Typical conservation measures include
native plant restoration, control of exotic or invasive vegetation,
prescribed burning, selective brush management, and prescribed grazing.
The PFW program in Texas has executed 66 private lands agreements on
about 131,190 ac (53,091 ha) of privately owned lands for the benefit
of the lesser prairie-chicken in Texas. The Nature Conservancy of Texas
acquired approximately 10,635 ac (4,303 ha) in Cochran, Terry, and
Yoakum Counties. In 2014, The Nature Conservancy donated this land to
TPWD. The TPWD acquired an additional 3,402 ac (1,377 ha) contiguous to
the Yoakum Dunes Preserve creating the 14,037-ac (5,681-ha) Yoakum
Dunes Wildlife Management Area. In 2015, through the RWP process, WAFWA
acquired an additional 1,604 ac (649 ha) in Cochran County, nearly 3 mi
(5 km) west of the Yoakum Dunes Wildlife Management Area. The land was
deeded to TPWD soon after acquisition. In 2016, an additional 320 ac
(129 ha) was purchased by TPWD bordering the WAFWA-acquired tract
creating an additional 1,924-ac (779-ha) property that is being managed
(including prescribed grazing and invasive species control) as part of
the Yoakum Dunes Wildlife Management Area, now at 15,961 ac (6,459 ha).
The BLM's Special Status Species RMPA, which was approved in April
2008, addressed the concerns and future management of lesser prairie-
chicken and dunes sagebrush lizard habitats on BLM lands and
established the Lesser Prairie-Chicken Habitat Preservation Area of
Critical Environmental Concern (BLM 2008, entire). Since the RMPA was
approved in 2008, BLM has closed approximately 300,000 ac (121,000 ha)
to future oil and gas leasing and closed approximately 850,000 ac
(344,000 ha) to wind and solar development (BLM 2008, p. 3). From 2008
to 2020, they have reclaimed 3,500 ac (1,416 ha) of abandoned well pads
and associated roads and required burial of power lines within 2 mi
(3.2 km) of lesser prairie-chicken leks. Additionally, BLM has
implemented control efforts for mesquite on 832,104 ac (336,740 ha) and
has plans to do so on an additional 30,000 ac (12,141 ha) annually. In
2010, BLM acquired 7,440 ac (3,010 ha) of land east of Roswell, New
Mexico, to complete the 54,000-ac (21,853-ha) ACEC for lesser prairie-
chicken, which is managed to protect key habitat.
Following approval of the RMPA, a candidate conservation agreement
(CCA) and CCAA was drafted by a team including the Service, BLM, Center
of Excellence for Hazardous Material Management (CEHMM), and
participating cooperators to address the conservation needs of the
lesser prairie-chicken and the dunes sagebrush lizard. Since the CCA
and CCAA were finalized in 2008, 43 oil and gas companies have enrolled
a total of 1,964,163 ac (794,868 ha) in the historical range of the
lesser prairie-chicken. By enrolling these lands, industry participants
have agreed to implement conservation measures aimed to minimize
impacts of their development activities to the lesser prairie-chicken
and pay fees to offset the remaining impacts. In addition, 72 ranchers
in New Mexico and the New Mexico Department of Game and Fish have
enrolled a total of 2,055,461 ac (831,815 ha). The New Mexico State
Land Office has enrolled a total of 406,673 ac (164,575 ha) in the
historical range of the lesser prairie-chicken. By enrolling, the
Department of Game and Fish, State Land Office, and landowners agree to
follow grazing management standards established in the agreement,
limiting development actions where the landowner has discretion, limit
herbicide use, and other actions as identified in the agreement. The
CCA and CCAA have treated 79,297 ac (32,090 ha) of mesquite and
reclaimed
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154 abandoned well pads and associated roads. CEHMM has also removed
7,564 ac (3,061 ha) of dead, standing mesquite, and has another 12,000
ac (5,000 ha) scheduled in the upcoming 2 years.
The Nature Conservancy owns and manages the 28,000-ac (11,331-ha)
Milnesand Prairie Preserve near Milnesand, New Mexico. Additionally,
the New Mexico Department of Game and Fish (NMDGF) has designated 30
Prairie Chicken Areas (PCAs) specifically for management of the lesser
prairie-chicken ranging in size from 28 to 7,189 ac (11 to 2,909 ha)
and totaling more than 27,262 ac (11,033 ha). More recently, NMDGF
purchased an additional 7,417-ac (3,000-ha) property that connects two
of the previously owned PCAs that will create a 9,817-ac (4,000-ha)
contiguous property. In 2007, the State Game Commission used New Mexico
State Land Conservation Appropriation funding to acquire 5,285 ac
(2,137 ha) of private ranchland in Roosevelt County. Our PFW program in
New Mexico has contributed financial and technical assistance for
restoration and enhancement activities benefitting the lesser prairie-
chicken in New Mexico. In 2016, the PFW program executed a private land
agreement on 630 ac (255 ha) for treating invasive species with a
prescribed burn. In 2020 the PFW program executed a private land
agreement for a prescribed burn on 155 ac (63 ha).
Conditions and Trends
Rangewide Trends
The lesser prairie-chicken estimated historical range encompasses
an area of approximately 115 million ac (47 million ha). As discussed
in Background, not all of the area within this historical range was
evenly occupied by lesser prairie-chicken, and some of the area may not
have been suitable to regularly support lesser prairie-chicken
populations (Boal and Haukos 2016, p. 6). However, the current range of
the lesser prairie-chicken has been significantly reduced from the
historical range, and estimates of the reduction vary from greater than
90 percent (Hagen and Giesen 2005, unpaginated) to approximately 83
percent (Van Pelt et al. 2013, p. 3).
We estimated the current amount and configuration of potential
lesser prairie-chicken usable area within the analysis area using the
geospatial analysis described in the SSA report (Service 2022, section
3.2; appendix B, parts 1, 2, and 3) and considering existing impacts as
described above. The total area of all potential usable (land cover
that may be consistent with lesser prairie-chicken areas that have the
potential to support lesser prairie-chicken use) and potential usable,
unimpacted land cover (that is, not impacted by landscape features)
categories in each ecoregion and rangewide is shown below in table 1.
To assess lesser prairie-chicken habitat at a larger scale and
incorporate some measure of connectivity and fragmentation, we then
grouped the areas of potential usable, unimpacted land cover based on
the proximity of other areas with potential usable, unimpacted lesser
prairie-chicken land cover. To do this, we used a ``nearest neighbor''
geospatial process to determine how much potential usable land cover is
within 1 mi (1.6 km) of any area of potential usable land cover. This
nearest neighbor analysis gives an estimate of how closely potential
usable, unimpacted land cover is clustered together, versus spread
apart, from other potential usable, unimpacted land cover. Areas with
at least 60 percent potential usable, unimpacted land cover within 1 mi
(1.6 km) were grouped. The 60 percent threshold was chosen because
maintaining grassland in large blocks is vital to conservation of the
species (Ross et al. 2016a, entire; Hagen and Elmore 2016, entire;
Spencer et al. 2017, entire; Sullins et al. 2019, entire), and these
studies indicate that landscapes consisting of greater than 60 percent
grassland are required to support lesser prairie-chicken populations.
This approach eliminates small, isolated, and fragmented patches of
otherwise potential usable land cover that are not likely to support
persistent populations of the lesser prairie-chicken. A separate
analysis found that the areas with 60 percent or greater unimpacted
potential usable land cover within 1 mi (1.6 km) captured approximately
90 percent of known leks (Service 2022, appendix B, part 3).
Table 1--Results of Lesser Prairie-Chicken Geospatial Analysis by Ecoregion and Rangewide, Estimating Total Area
in Acres, Potential Usable Area, and Area Calculated by Our Nearest Neighbor Analysis
[All numbers are in acres. Numbers may not sum due to rounding.]
----------------------------------------------------------------------------------------------------------------
Nearest
Ecoregion Ecoregion Potential neighbor % of total
total area usable area analysis area
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP................................. 6,298,014 2,961,318 1,023,894 16.3
Mixed-Grass..................................... 8,527,718 6,335,451 994,483 11.7
Sand Sagebrush.................................. 3,153,420 1,815,435 1,028,523 32.6
Northern DPS total.............................. 17,979,152 11,112,204 3,046,900 16.9
Shinnery Oak (Southern DPS total)............... 3,850,209 2,626,305 1,023,572 26.6
---------------------------------------------------------------
Rangewide Totals............................ 21,829,361 13,738,509 4,070,472 18.6
----------------------------------------------------------------------------------------------------------------
The results of the nearest neighbor analysis indicate that about 19
percent of the entire analysis area and from 12 percent to 33 percent
within each of the four ecoregions is available for use by the lesser
prairie-chicken. Due to limitations in data availability and accuracy
as well as numerous limitations with the methodology and assumptions
made for this analysis, this estimate should not be viewed as a precise
measure of the lesser prairie-chicken habitat; instead, it provides a
generalized baseline to characterize the current condition and by which
we can then forecast the effect of future changes.
In the SSA report, we also considered trends in populations.
Estimates of population abundance prior to the 1960s are indeterminable
and rely almost entirely on anecdotal information (Boal and Haukos
2016, p. 6). While little is known about precise historical population
sizes, the lesser prairie-chicken was reported to be quite common
throughout its range in the early 20th century (Bent 1932, pp. 280-281,
283; Baker 1953, p. 8; Bailey and Niedrach 1965, p. 51; Sands 1968, p.
454; Fleharty 1995, pp. 38-44; Robb and Schroeder 2005, p. 13). In the
1960s, State fish and wildlife agencies began routine lesser prairie-
chicken monitoring efforts that have largely continued to today.
[[Page 72699]]
In the SSA report and this final rule, we discuss lesser prairie-
chicken population estimates from two studies. The first study
calculated historical trends in lesser prairie-chicken abundances from
1965 through 2016 based on population reconstruction methods and
historical lek surveys (Hagen et al. 2017, pp. 6-9). The results of
these estimates indicate that lesser prairie-chicken rangewide
abundance (based on a minimum estimated number of male lesser prairie-
chicken) peaked from 1965-1970 at a mean estimate of about 175,000
males. The mean population estimates maintained levels of greater than
100,000 males until 1989, after which they steadily declined to a low
of 25,000 males in 1997 (Garton et al. 2016, p. 68). The mean
population estimates following 1997 peaked again at about 92,000 males
in 2006 but subsequently declined to 34,440 males in 2012. This 2006
peak was far below the 1965-1970 estimated peak, demonstrating that the
species did not achieve its prior peak population level. We identified
concerns in the past with some of the methodologies and assumptions
made in this analysis, and the challenges of these data are noted in
other studies (for example, Zavaleta and Haukos 2013, p. 545; Cummings
et al. 2017, pp. 29-30). While these concerns remain, including the
very low sample sizes particularly in the 1960s, this work represents
the only attempt to compile the extensive historical ground lek count
data collected by State agencies to estimate rangewide population
sizes. Approximate distribution of lek locations as reported by WAFWA
for the entire range that were observed occupied by lesser prairie-
chicken at least once between 2015 and 2019 are shown in the SSA report
(Service 2022, appendix E, figure E.7).
Following development of aerial survey methods (McRoberts et al.
2011, entire), more statistically rigorous estimates of lesser prairie-
chicken abundance (both males and females) have been conducted by
flying aerial line-transect surveys throughout the range of the lesser
prairie-chicken and extrapolating densities from the surveyed area to
the rest of the range beginning in 2012 (Nasman et al. 2022, entire).
The aerial survey results from 2012 through 2022 estimated the lesser
prairie-chicken population abundance, averaged over the most recent 5
years of surveys (2017-2022, no surveys in 2019), at 32,210 (90 percent
CI: 11,489, 64,303) (Nasman et al. 2022, p. 16; table 10). The results
of these survey efforts should not be taken as precise estimates of the
annual lesser prairie-chicken population abundance, as indicated by the
large confidence intervals. Thus, the best use of this data is for
long-term trend analysis rather than for conclusions based on annual
fluctuations. As such, we report the population estimate for the
current condition as the average of the past 5 years of surveys.
Table 2--Rangewide and Ecoregional Estimated Lesser Prairie-Chicken Total Population Sizes Averaged From 2017 to
2022, Lower and Upper 90 Percent Confidence Intervals (CI) Over the 5 Years of Estimates, and Percent of
Rangewide Totals for Each Ecoregion (From Nasman et al. 2022, p. 16). No Surveys Were Conducted in 2019.
----------------------------------------------------------------------------------------------------------------
5-Year 5-Year 5-Year
Ecoregion average minimum lower maximum upper Percent of
estimate CI CI total
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP................................. 23,083 9,653 39,934 72
Mixed-Grass..................................... 5,024 1,601 10,481 15
Sand Sagebrush.................................. 1,297 56 4,881 4
Shinnery Oak.................................... 2,806 179 9,007 9
---------------------------------------------------------------
Rangewide Totals............................ 32,210 11,489 64,303 100
----------------------------------------------------------------------------------------------------------------
We now discuss habitat impacts and population trends in each
ecoregion and DPS throughout the range of the lesser prairie-chicken.
Southern DPS
Using our geospatial analysis, we were able to explicitly account
for habitat loss and fragmentation and quantify the current condition
of the Shinnery Oak Ecoregion. Of the sources of habitat loss and
fragmentation that have occurred, cropland conversion, roads, and
encroachment of woody vegetation had the largest impacts on land cover
in the Southern DPS (Table 3). Based on our nearest neighbor analysis,
we estimated there are approximately 1,023,572 ac (414,225 ha) or 27
percent of the ecoregion and the Southern DPS potentially available for
use by lesser prairie-chicken (table 1).
Table 3--Estimated Areas of Current Direct and Indirect Impacts, by
Impact Source, and the Proportion of the Total Area of the Shinnery Oak
Ecoregion Estimated To Be Impacted (See Table 1 for Totals)
[Impacts are not necessarily cumulative because of overlap of some
impacted areas by more than one impact source.]
------------------------------------------------------------------------
Percent of
Impact Sources Acres ecoregion
------------------------------------------------------------------------
Shinnery Oak Ecoregion (Southern DPS)
------------------------------------------------------------------------
Cropland Conversion..................... 540,120 14
Petroleum Production.................... 161,652 4
Wind Energy Development................. 90,869 2
Transmission Lines...................... 372,577 10
Woody Vegetation Encroachment........... 617,885 16
Roads................................... 742,060 19
-------------------------------
Total Ecoregion/Southern DPS Area... 3,850,209
------------------------------------------------------------------------
[[Page 72700]]
Based on population reconstruction methods, the mean population
estimate ranged between about 5,000 to 12,000 males through 1980,
increased to 20,000 males in the mid-1980s and declined to ~1,000 males
in 1997 (Hagen et al. 2017, pp. 6-9). The mean population estimate
peaked again to ~15,000 males in 2006 and then declined again to fewer
than 3,000 males in the mid-2010s.
Aerial surveys have been conducted to estimate lesser prairie-
chicken population abundance since 2012, and results in the Shinnery
Oak Ecoregion from 2012 through 2022 indicate that this ecoregion has
the third highest population size (Nasman et al. 2022, p. 16) of the
four ecoregions. Average estimates from 2017 to 2022 are 2,806 birds
(90 percent CI: 179, 9,007), representing about 9 percent of the
rangewide total (table 2). Recent estimates have varied between fewer
than 1,000 birds in 2015 to more than 5,000 birds in 2020 and
decreasing to fewer than 1,000 birds again in 2022 (see also Service
2022, appendix E, figure E.7).
Northern DPS
Prairies of the Short-Grass/CRP Ecoregion have been significantly
altered since European settlement of the Great Plains. Much of these
prairies has been converted to other land uses such as cultivated
agriculture, roads, power lines, petroleum production, wind energy, and
transmission lines. Some areas have also been altered due to woody
vegetation encroachment. Within this ecoregion, it has been estimated
that about 73 percent of the landscape has been converted to cropland
with 7 percent of the area in CRP (Dahlgren et al. 2016, p. 262).
According to our GIS analysis, of the sources of habitat loss and
fragmentation that have occurred, conversion to cropland has had the
single largest impact on land cover in this ecoregion (table 4). Based
on our nearest neighbor analysis, we estimated approximately 1,023,894
ac (414,355 ha), or 16 percent of the ecoregion, is potentially
available for use by lesser prairie-chicken (table 1).
Table 4--Estimated Areas of Current Direct and Indirect Impacts, by
Impact Source, and the Proportion of the Total Area of the Short-Grass/
CRP Ecoregion Estimated To Be Impacted (See Table 1 for Totals)
[Impacts are not necessarily cumulative because of overlap of some
impacted areas by more than one impact source.]
------------------------------------------------------------------------
Percent of
Impact sources Acres ecoregion
------------------------------------------------------------------------
Short-Grass/CRP Ecoregion
------------------------------------------------------------------------
Cropland Conversion..................... 2,333,660 37
Petroleum Production.................... 248,146 4
Wind Energy Development................. 145,963 2
Transmission Lines...................... 436,650 7
Woody Vegetation Encroachment........... 284,175 5
Roads................................... 1,075,931 17
-------------------------------
Total Ecoregion Area................ 6,298,014
------------------------------------------------------------------------
Based on population reconstruction methods, the mean population
estimate for this ecoregion increased from a minimum of about 14,000
males in 2001 and peaked at about 21,000 males in 2011 (Hagen et al.
2017, pp. 8-10; see also Service 2022, figure 3.3).
Aerial surveys since 2012 indicate that the Short-Grass/CRP
Ecoregion (figure 3.4) has the largest population size (Nasman et al.
2022, p. 16) of the four ecoregions. Average estimates from 2017 to
2022 are 23,083 birds (90 percent CI: 9,653, 39,934), making up about
72 percent of the rangewide lesser prairie-chicken total (table 2).
Much of the Mixed-Grass Ecoregion was originally fragmented by
home-steading, which subdivided tracts of land into small parcels of
160-320 ac (65-130 ha) in size (Rodgers 2016, p. 17). As a result of
these small parcels, road and fence densities are higher compared to
other ecoregions and, therefore, increase habitat fragmentation and
pose higher risk for collision mortalities than in other ecoregions
(Wolfe et al. 2016, p. 302). Fragmentation has also occurred due to oil
and gas development, wind energy development, transmission lines,
highways, and expansion of invasive woody plants such as eastern red
cedar. A major concern for lesser prairie-chicken populations in this
ecoregion is the loss of grassland due to the rapid westward expansion
of the eastern red-cedar (NRCS 2016, p. 16). Oklahoma Forestry Services
estimated the average rate of expansion of eastern red-cedar in 2002 to
be 762 ac (308 ha) per day (Wolfe et al. 2016, p. 302).
Table 5--Estimated Areas of Current Direct And Indirect Impacts, by
Impact Source, and the Proportion (Percent) of the Total Area of the
Mixed-Grass Ecoregion Estimated To Be Impacted (See Table 1 for Totals)
[Impacts are not necessarily cumulative because of overlap of some
impacted areas by more than one impact source.]
------------------------------------------------------------------------
Percent of
Impact Sources Acres Ecoregion
------------------------------------------------------------------------
Mixed-Grass Ecoregion
------------------------------------------------------------------------
Cropland Conversion..................... 1,094,688 13
Petroleum Production.................... 859,929 10
Wind Energy Development................. 191,571 2
Transmission Lines...................... 576,713 7
Woody Vegetation Encroachment........... 2,047,510 24
Roads................................... 1,732,050 20
-------------------------------
[[Page 72701]]
Total Ecoregion Area................ 8,527,718
------------------------------------------------------------------------
Using our geospatial analysis, we were able to explicitly account
for habitat loss and fragmentation and quantify the current condition
of this ecoregion for the lesser prairie-chicken. Of the sources of
habitat loss and fragmentation that have occurred, encroachment of
woody vegetation had the largest impact, with conversion to cropland,
roads, and petroleum production also having significant impacts on land
cover in this ecoregion (table 5). Based on our nearest neighbor
analysis, we estimated there are approximately 994,483 ac (402,453 ha)
or 12 percent of the ecoregion, that is potentially available for use
by lesser prairie-chicken (table 1).
The Mixed-Grass Ecoregion historically contained the highest lesser
prairie-chicken densities (Wolfe et al. 2016, p. 299). Based on
population reconstruction methods, the mean population estimate for
this ecoregion in the 1970s and 1980s was around 30,000 males (Hagen et
al. 2017, pp. 6-7). Population estimates declined in the 1990s and
peaked again in the early 2000s at around 25,000 males, before
declining and remaining at its lowest levels, fewer than 10,000 males
in 2012, since the late 2000s (Hagen et al. 2017, pp. 6-7).
Aerial surveys from 2012 through 2022 indicate this ecoregion has
the second highest population size of the four ecoregions (Nasman et
al. 2022, p. 16). Average estimates from 2017 to 2022 are 5,024 birds
(90 percent CI: 1,601, 10,481), representing about 15 percent of the
rangewide total (table 2). Results show minimal variation in recent
years.
Prairies of the Sand Sagebrush Ecoregion have been influenced by a
variety of activities since European settlement of the Great Plains.
Much of these grasslands have been converted to other land uses such as
cultivated agriculture, roads, power lines, petroleum production, wind
energy, and transmission lines. Some areas have also been altered due
to woody vegetation encroachment. Only 26 percent of historical sand
sagebrush prairie is available as potential nesting habitat for lesser
prairie-chicken (Haukos et al. 2016, p. 285). Using our geospatial
analysis, we were able to explicitly account for habitat loss and
fragmentation and quantify the current condition of this ecoregion for
the lesser prairie-chicken. Of the sources of habitat loss and
fragmentation that have occurred, conversion to cropland has had the
single largest impact on land cover in this ecoregion (table 6). Based
on our nearest neighbor analysis, we estimated there are approximately
1,028,523 ac (416,228 ha) or 33 percent of the ecoregion, potentially
available for use by lesser prairie-chicken (table 1). In addition,
habitat loss due to the degradation of the rangeland within this
ecoregion continues to be a limiting factor for lesser prairie-chicken,
and most of the existing birds within this ecoregion persist primarily
on and near CRP lands. Drought conditions in the period 2011-2014 have
expedited population decline (Haukos et al. 2016, p. 285).
Table 6--Estimated Areas of Current Direct and Indirect Impacts, by
Impact Source, and the Proportion (Percent) of the Total Area of the
Sand Sagebrush Ecoregion Estimated To Be Impacted (See Table 1 for
Totals).
[Impacts are not necessarily cumulative because of overlap of some
impacted areas by more than one impact source.]
------------------------------------------------------------------------
Percent of
Impact sources Acres ecoregion
------------------------------------------------------------------------
Sand Sagebrush Ecoregion
------------------------------------------------------------------------
Cropland Conversion..................... 994,733 32
Petroleum Production.................... 163,704 5
Wind Energy Development................. 0 0
Transmission Lines...................... 167,240 5
Woody Vegetation Encroachment........... 68,147 2
Roads................................... 446,316 14
-------------------------------
Total Ecoregion Area................ 3,153,420
------------------------------------------------------------------------
Based on population reconstruction methods, the mean population
estimate for this ecoregion peaked at greater than 90,000 males from
1970 to 1975 and declined to its lowest level of fewer than 1,000 males
in recent years.
Aerial surveys from 2012 through 2022 indicate that this ecoregion
has the lowest population size (Nasman et al. 2022, p. 16) of the four
ecoregions. Average estimates from 2017 to 2022 are 1,297 birds (90
percent CI: 56, 4,881) representing about 4 percent of the rangewide
lesser prairie-chicken total (table 2). Recent results have been highly
variable, with 2020 being the lowest estimate reported. Although the
aerial survey results show 171 birds in this ecoregion in 2020 (with no
confidence intervals because the number of detections were too low for
statistical analysis), ground surveys in this ecoregion in Colorado and
Kansas detected 406 birds, so we know the current population is
actually larger than indicated by the aerial survey results (Rossi and
Fricke, pers. comm.
[[Page 72702]]
2020, entire). Aerial surveys for 2021 estimated 440 birds (90 percent
CI: 55, 963) for this ecoregion (Nasman et al. 2022, p. 16).
Table 7 combines the estimated area impacted presented above for
each of the three ecoregions into one estimate for each impact source
for the Northern DPS.
Table 7--Estimated Areas of Current Direct and Indirect Impacts, by
Impact Source, and the Proportion (Percent) of the Total Area of the
Northern DPS Estimated To Be Impacted (See Table 1 For Totals)
[Impacts are not necessarily cumulative because of overlap of some
impacted areas by more than one impact source.]
------------------------------------------------------------------------
Impact Sources Acres Percent of DPS
------------------------------------------------------------------------
Northern DPS
------------------------------------------------------------------------
Cropland Conversion..................... 4,423,081 25
Petroleum Production.................... 1,271,779 7
Wind Energy Development................. 337,534 2
Transmission Lines...................... 1,180,603 7
Woody Vegetation Encroachment........... 2,399,832 13
Roads................................... 3,254,297 18
-------------------------------
Total Northern DPS Area............. 17,979,152
------------------------------------------------------------------------
Future Condition
As discussed above, we conducted a geospatial analysis to
characterize the current condition of the landscape for the lesser
prairie-chicken by categorizing land cover data (into potential usable,
potential restoration, or nonusable categories), taking into account
exclusion areas and impacts to remove nonusable areas. We further
refined the analysis to account for connectivity by use of our nearest
neighbor analysis as described in Rangewide Trends. We then used this
geospatial framework to analyze the future condition for each
ecoregion. To analyze future habitat changes, we accounted for the
effects of both future loss of usable areas and restoration efforts by
estimating the rate of change based on future projections (Service
2022, figure 4.1).
Due to uncertainties associated with both future conservation
efforts and impacts, it is not possible to precisely quantify the
effect of these future actions on the landscape. Instead, we
established five future scenarios to represent a range of plausible
outcomes based upon three plausible levels of conservation (restoration
efforts) and three plausible levels of impacts. To account for some of
the uncertainty in these projections, we combined the levels of impacts
into five different scenarios labeled 1 through 5 (table 8). Scenario 1
represents the scenario with low levels of future impacts and high
levels of future restoration, and Scenario 5 represents the scenario
with high impacts and low restoration. Scenarios 1 and 5 were used to
frame the range of projected outcomes used in our model as they
represent the low and high of likely projected outcomes. Scenarios 2,
3, and 4 are model iterations that fall within the range bounded by
scenarios 1 and 5 and have continuation of the current level of
restoration efforts and vary impacts at low, mid, and high levels,
respectively. These scenarios provide a wide range of potential future
outcomes to consider in assessing lesser prairie-chicken habitat
conditions.
Table 8--Schematic of Future Scenarios for Lesser Prairie-Chicken
Conservation Considering a Range of Future Impacts and Restoration
Efforts
------------------------------------------------------------------------
Levels of future change in usable
area
Scenario ---------------------------------------
Restoration Impacts
------------------------------------------------------------------------
1............................... High.............. Low.
2............................... Continuation...... Low.
3............................... Continuation...... Mid.
4............................... Continuation...... High.
5............................... Low............... High.
------------------------------------------------------------------------
To project the likely future effects of impacts and conservation
efforts to the landscape as described through our land cover model, we
quantified the three levels of future habitat restoration and three
levels of future impacts within the analysis area by ecoregion on an
annual basis. In addition to restoration efforts, we also quantified
those efforts that enhance existing habitat. While these enhancement
efforts do not increase the amount of available area and thus are not
included in the spatial analysis, they are summarized in the SSA report
and considered as part of the overall analysis of the biological status
of the species. We then extrapolated those results over the next 25
years. We chose 25 years as a period for which we had reasonable
confidence in reliably projecting these future changes, and the
timeframe corresponds with some of the long-term planning for the
lesser prairie-chicken. A complete description of methodology used to
quantify projections of impacts and future conservation efforts is
provided in the SSA report (Service 2022, appendix C).
Quantifying future conservation efforts in terms of habitat
restoration allows us to account for the positive impact of those
efforts within our analysis by converting areas of land cover that were
identified as potential habitat in our current condition model to
usable land cover for the lesser prairie-chicken in the future
projections. Explicitly quantifying three levels of impacts in the
future allows us to account for the effect of these impacts on the
lesser prairie-chicken by converting areas identified as usable land
cover in our current condition model to nonusable area that will not be
available for use by the lesser prairie-chicken in the future.
As we did for the current condition to assess habitat connectivity,
after we characterized the projected effects of conservation and
impacts on potential future usable areas, we grouped the areas of
potential usable, unimpacted land cover on these new future landscape
projections using our nearest neighbor analysis (Service 2022, pp. 21-
23; appendix B, parts 1, 2, and 3). Also, as done for the current
condition, we evaluated the frequency of usable area blocks by size in
order to evaluate habitat fragmentation and connectivity in the future
scenarios (Service 2022, figure 4.2).
[[Page 72703]]
Threats Influencing Future Condition
Following are summary evaluations of the expected future condition
of threats analyzed in the SSA for the lesser prairie-chicken: effects
associated with habitat degradation, loss, and fragmentation, including
conversion of grassland to cropland (Factor A), petroleum production
(Factor A), wind energy development and transmission (Factor A), woody
vegetation encroachment (Factor A), and roads and electrical
distribution lines (Factor A); and other factors, such as livestock
grazing (Factor A), shrub control and eradication (Factor A), fire
(Factor A); and climate change (Factor E).
In this final rule, we do not present summary evaluations of the
following threats as we have no information to project future trends,
though we do expect them to have some effect on the species in the
future: predation (Factor C), collision mortality from fences (Factor
E), and influence of anthropogenic noise (Factor E). We also do not
discuss the following threats, as they are having little to no impact
on the species and its habitat currently, nor do we expect them to into
the foreseeable future: hunting and other recreational, educational,
and scientific use (Factor B); parasites and diseases (Factor C); and
insecticides (Factor E).
For the purposes of this assessment, we consider the foreseeable
future to be the amount of time on which we can reasonably determine a
likely threat's anticipated trajectory and the anticipated response of
the species to that threat. For climate change, the time for which we
can reliably project threats and the anticipated response is
approximately 60 years. For many other threats impacting the lesser
prairie-chicken throughout its range, we consider the time for which we
can reliably project threats and the anticipated response to be 25
years. This time period represents our best professional judgment of
the foreseeable future conditions related to conversion of grassland to
cropland, petroleum production, wind energy, and woody vegetation
encroachment, and, as discussed above, is the time period used to
project these threats in our geospatial analysis. For this period, we
had reasonable confidence in projecting these future changes, and the
timeframe corresponds with some of the long-term planning for the
lesser prairie-chicken. For other threats and the anticipated species
response, we can reliably project impacts and the species response for
less than 25 years, such as livestock grazing, roads and electrical
distribution lines, shrub control and eradication, and fire.
Habitat Loss and Fragmentation
As discussed in ``Threats Influencing Current Condition,'' habitat
loss and fragmentation is the primary concern for lesser prairie-
chicken viability. We discuss how each of these activities may
contribute to future habitat loss and fragmentation for the lesser
prairie-chicken and present the outcomes of the projections.
Conversion of Grassland to Cropland
Because much of the lands capable of being used for row crops has
already been converted to cultivated agriculture, we do not expect
future rates of conversion to reach those witnessed historically;
however, conversion has continued to occur (Lark 2020, entire). Rates
of future conversion of grasslands to cultivated agriculture in the
analysis area will be affected by multiple variables including site-
specific biotic and abiotic conditions as well as socioeconomic
influences such as governmental agriculture programs, commodity prices,
and the economic benefits of alternative land use practices.
For the purposes of the SSA, we conducted an analysis to project
the future rates of conversion of grassland to cropland at three
different levels. We used information from aggregated remote sensing
data from the USDA Cropland Data layer (Lark 2020, entire; Service
2022, p. 83). Table 9 outlines the resulting three levels of projected
habitat loss of future conversion of grassland to cultivated
agriculture per ecoregion over the next 25 years. See the SSA report
(Service 2022, appendix C) for further details and methodologies for
these projections. While we do not expect future rates of conversion
(from grassland to cropland) to be equivalent to those we have
historically witnessed, the limited amount of large intact grasslands
due to the historical extent of conversion means all future impacts are
expected to have a disproportionate scale of impact.
Table 9--Future Projection of Three Levels of Impacted Acres of Potential Usable Area for the Lesser Prairie-
Chicken from Conversion of Grassland to Cropland Over the Next 25 Years in Each Ecoregion.
[Numbers may not sum due to rounding]
----------------------------------------------------------------------------------------------------------------
Projected impacts (acres)
Ecoregion -----------------------------------------------
Low Intermediate High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP................................................. 89,675 145,940 185,418
Mixed-Grass..................................................... 4,220 33,761 50,910
Sand Sagebrush.................................................. 42,573 95,678 142,438
Northern DPS totals............................................. 136,468 275,379 378,766
Shinnery Oak (Southern DPS)..................................... 21,985 51,410 93,946
----------------------------------------------------------------------------------------------------------------
Rangewide Total............................................. 158,454 326,789 472,712
----------------------------------------------------------------------------------------------------------------
Petroleum Production
In the SSA report, we conducted an analysis to project the future
rates of petroleum production at low, intermediate, and high levels. We
compiled State well permitting spatial data from each State within each
of the ecoregions to inform assumptions around future rates of
development (Service 2022, p. 84). We converted the projected number of
new wells at the three levels to acres of usable area impacted. Our
analysis accounts for indirect impacts as well as potential overlap
with other existing impacts to include colocation efforts by
developers. Table 10 represents the extent of potential usable area
impacted at the three levels of development per ecoregion over the next
25 years. See the SSA report (Service 2022, appendix C) for further
details and methodologies regarding these projections.
Given current trends in energy production, we anticipate that oil
and gas production across the lesser prairie-
[[Page 72704]]
chicken range will continue to occur and that rates will vary both
temporally and spatially. The rates of development will be dependent
upon new exploration, advancements in technology, and socioeconomic
dynamics that will influence energy markets in the future.
Table 10--Future Projection of Three Levels of Impacted Acres (Including Both Direct and Indirect Effects) of
Potential Usable Area for the Lesser Prairie-Chicken from Oil and Gas Development Over the Next 25 Years in Each
Ecoregion
[Numbers may not sum due to rounding.]
----------------------------------------------------------------------------------------------------------------
Projected impacts (acres)
Ecoregion -----------------------------------------------
Low Intermediate High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP................................................. 26,848 54,618 82,388
Mixed-Grass..................................................... 82,716 170,989 259,262
Sand Sagebrush.................................................. 3,166 9,054 14,942
Northern DPS totals............................................. 112,730 234,661 356,592
Shinnery Oak (Southern DPS)..................................... 136,539 190,144 243,749
----------------------------------------------------------------------------------------------------------------
Rangewide Total............................................. 249,269 424,805 600,342
----------------------------------------------------------------------------------------------------------------
Wind Energy Development and Transmission Lines
As discussed in ``Threats Influencing Current Condition,'' the
States in the lesser prairie-chicken analysis area have experienced
some of the largest growth in wind energy development in the nation.
Identification of the actual number of proposed wind energy projects
that will be built within the range of the lesser prairie-chicken in
any future timeframe is difficult to accurately discern. We conducted
an analysis of current and potential future wind energy development for
the SSA for the Lesser Prairie-Chicken, and the future development was
estimated at three different levels within the analysis area of the
lesser prairie-chicken at low, intermediate, and high levels (Service
2022, appendix C). Table 11 represents the wind development projects
projected at three levels of development per ecoregion.
Table 11--Projections of Future Wind Energy Development Projects for the Next 25 Years at Three Levels in Each
Lesser Prairie-Chicken Ecoregion and Rangewide
----------------------------------------------------------------------------------------------------------------
Projected wind developments
Ecoregion -----------------------------------------------
Low Intermediate High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP................................................. 7 11 16
Mixed-Grass..................................................... 10 18 25
Sand Sagebrush.................................................. 1 2 3
Northern DPS totals............................................. 18 31 44
Shinnery Oak (Southern DPS)..................................... 4 7 10
----------------------------------------------------------------------------------------------------------------
Rangewide Total............................................. 22 38 54
----------------------------------------------------------------------------------------------------------------
As outlined within ``Threats Influencing Current Condition,'' wind
energy development also has indirect impacts on the lesser prairie-
chicken. To determine the number of acres impacted by wind energy
development in the current condition, we analyzed wind energy
facilities recently constructed within and near our analysis area. We
applied a 5,900-ft (1,800-m) impact radius to individual turbines to
account for indirect impacts and found that the last 5 years show a
substantial increase in the relative density of wind energy projects
(see Service 2022, appendix C, for further details). This analysis does
not mean that all of the impacts occur to otherwise usable lesser
prairie-chicken land cover. In fact, it is highly unlikely due to
viable wind development potential outside lesser prairie-chicken usable
areas that all projected impacts will occur in areas that are otherwise
usable for the lesser prairie-chicken. Because we cannot predict the
precise location of future developments and to simplify and facilitate
modeling the locations for future projections for wind development, we
created a potential wind energy development grid that was laid over the
analysis area and which allowed the random placement for each
development for each iteration (Service 2022, p. 86). The resulting
projected impacts in 25 years using the median iteration for each of
the range of future scenarios are shown in table 12. Scenarios 1 and 5
were used to frame the scenarios used in our model as they represent
the low and high of likely projected outcomes. The rangewide
projections range from 164,100 ac (66,400 ha) to 328,000 ac (133,000
ha).
[[Page 72705]]
Table 12--Range of Projections of Future Wind Energy Development Impacts
(Including both Direct and Indirect Effects) in Acres for the Next 25
Years for Scenarios 1 and 5 of Each Lesser Prairie-Chicken Ecoregion and
Rangewide
------------------------------------------------------------------------
Projected wind development
impacts (acres)
Ecoregion -------------------------------
Scenario 1 Scenario 5
------------------------------------------------------------------------
Short-Grass/CRP......................... 68,300 134,200
Mixed-Grass............................. 50,200 106,000
Sand Sagebrush.......................... 3,900 21,300
Northern DPS totals..................... 122,400 261,500
Shinnery Oak (Southern DPS)............. 41,700 66,500
------------------------------------------------------------------------
Rangewide Total..................... 164,100 328,000
------------------------------------------------------------------------
Electrical transmission capacity represents a major limitation on
wind energy development in the Great Plains. Additional transmission
lines will be required to transport future electricity production to
markets; thus, we expect an expansion of the current transmission
capacity in the Great Plains. As this expansion occurs, these
transmission lines will, depending on their location, result in habitat
loss as well as further fragmentation and could also be the catalyst
for additional wind development affecting the lesser prairie-chicken.
While we were able to analyze the current impacts of transmission lines
on the lesser prairie-chicken, due to the lack of information available
to project the location (and thus effects to lesser prairie-chicken
habitat), we could not quantify the future potential effect of habitat
loss and fragmentation on the lesser prairie-chicken that could be
caused by transmission line development. However, we do acknowledge
potential habitat loss and fragmentation from transmission lines is
likely to continue depending upon their location.
Woody Vegetation Encroachment
Due to the past encroachment trends and continued suppression of
fire across the range of the lesser prairie-chicken, we expect this
encroachment of woody vegetation into grasslands to continue, which
will result in further loss of lesser prairie-chicken habitat into the
foreseeable future. The degree of future habitat impacts will depend on
land management practices and the level of conservation efforts for
woody vegetation removal.
To describe the potential future effects of encroachment of woody
vegetation, we used available information regarding rates of increases
in eastern red cedar and mesquite encroachment and applied this rate of
change (over the next 25 years) to the amount of existing woody
vegetation per ecoregion within the analysis area (appendix C). The
estimated current condition analysis described in ``Threats Influencing
Current Condition'' provides the baseline of woody vegetation
encroachment, and rates derived from the literature were applied to
this baseline to project new acres of encroachment. We then adjusted
the projected number of new acres of encroachment using relative
density calculations specific to each ecoregion to account for indirect
effects. Additionally, due to assumed differences in encroachment rates
and tree densities we provide two projections for each of the Short-
Grass/CRP and Mixed-Grass Ecoregions (East and West portions) in the
Northern DPS, largely based on current tree distribution and
precipitation gradient. We projected the extent of expected habitat
loss due to encroachment of woody vegetation at low, intermediate, and
high levels of encroachment (see the SSA report (Service 2022, appendix
C) for rationale behind assumed rates of change). Table 13 outlines the
three levels of this projected habitat loss by ecoregion caused by
future encroachment of woody vegetation over the next 25 years for the
purpose of the SSA report.
Table 13--Projection of Impacts from Woody Vegetation Encroachment (Including both Direct and Indirect Effects)
at Three Levels at Year 25 in the Lesser Prairie-Chicken Ecoregions
[Numbers may not sum due to rounding]
----------------------------------------------------------------------------------------------------------------
Projected impacts (acres)
Ecoregion -----------------------------------------------
Low Intermediate High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP--East........................................... 38,830 64,489 93,877
Short-Grass/CRP--West........................................... 1,390 3,598 5,963
Mixed-Grass--East............................................... 311,768 517,784 753,739
Mixed-Grass--West............................................... 874 2,261 3,748
Sand Sagebrush.................................................. 7,650 12,706 18,496
Northern DPS totals............................................. 360,512 600,838 875,823
Shinnery Oak (Southern DPS)..................................... 11,548 81,660 170,653
----------------------------------------------------------------------------------------------------------------
Rangewide Total............................................. 372,060 682,498 1,046,476
----------------------------------------------------------------------------------------------------------------
[[Page 72706]]
Roads and Electrical Distribution Lines
Roads and electrical distribution lines are another important
source of habitat loss and fragmentation. In our geospatial analysis
for the current condition of the lesser prairie-chicken, we were able
to quantify the area affected by roads, but no data were available to
quantify the potential independent impacts of distribution lines on
habitat loss and fragmentation. We acknowledge that some additional
habitat loss and fragmentation will occur in the future due to
construction of new roads and power lines, but we do not have data
available to inform projections on how much and where any potential new
development would occur.
Climate Change
Future climate projections for this region of the United States
indicate general trends of increasing temperatures and increasing
precipitation extremes over the 21st century (Karl et al. 2009, pp.
123-128; Kunkel et al. 2013, pp. 73-75; Shafer et al. 2014, pp. 442-
445; Easterling et al. 2017, pp. 216-222; Vose et al. 2017, pp. 194-
199). Average temperature has already increased between the first half
of the last century (1901-1960) and present day (1986-2016), with
observed regional average temperatures within the Southern Great Plains
(including Kansas, Oklahoma, and Texas) increasing by 0.8 [deg]F (0.4
[deg]C) and within the Southwest (including Colorado and New Mexico)
increasing by 1.6 [deg]F (0.9 [deg]C) (Vose et al. 2017, p. 187). By
mid-century (2036-2065), regional average temperatures compared to
near-present times (1976-2005) are projected to increase by 3.6-4.6
[deg]F (2.0-2.6 [deg]C) in the Southern Great Plains, and by 3.7-4.8
[deg]F (2.1-2.7 [deg]C) in the Southwest, depending on future
emissions. By late-century (2071-2100), regional average temperatures
are projected to rise in the Southern Great Plains by 4.8-8.4 [deg]F
(2.7-4.7 [deg]C), and by 4.9-8.7 [deg]F (2.7-4.8 [deg]C) in the
Southwest (Vose et al. 2017, p. 197). Annual extreme temperatures are
also consistently projected to rise faster than annual averages with
future changes in very rare extremes increasing; by late century,
current 1-in-20-year maximums are projected to occur every year, while
current 1-in-20-year minimums are not expected to occur at all (Vose et
al. 2017, pp. 197-198).
Projecting patterns of changes in average precipitation across
these regions of the United States results in a range of increasing and
decreasing precipitation with high uncertainty in overall averages,
although parts of the Southwest are projected to receive less
precipitation in the winter and spring (Easterling et al. 2017, pp.
216-218; Wuebbles et al. 2017, p. 12). However, extreme precipitation
events are projected to increase in frequency in both the Southern
Great Plains and the Southwest (Easterling et al. 2017, pp. 218-221).
Other extreme weather events such as heat waves and long-duration
droughts (Cook et al. 2016, entire), as well as heavy precipitation,
are expected to become more frequent (Karl et al. 2009, pp. 124-125;
Shafer et al. 2014, p. 445; Walsh et al. 2014, pp. 28-40). The
devastating ``dust bowl'' conditions of the 1930s could become more
common in the American Southwest, with future droughts being much more
extreme than most droughts on record (Seager et al. 2007, pp. 1181,
1183-1184). Other modeling also projects changes in precipitation in
North America through the end of this century, including an increase in
dry conditions throughout the Central Great Plains (Swain and Hayhoe
2015, entire). Furthermore, the combination of increasing temperature
and drought results in greater impacts on various ecological conditions
(water availability, soil moisture) than increases in temperature or
drought alone (Luo et al. 2017, entire). Additionally, future decreases
in surface (top 4 inches (10 centimeters)) soil moisture over most of
the United States are likely as the climate warms under higher
scenarios (Wehner et al. 2017, p. 231).
Grasslands are critically endangered globally and an irreplaceable
ecoregion in North America, and climate change is an emerging threat to
grassland birds (Wilsey et al. 2019). In a review of potential effects
of ongoing climate change on the Southern Great Plains and on the
lesser prairie-chicken, results suggest increases in temperatures
throughout the lesser prairie-chicken range and possible increases in
average precipitation in the northern part of the range but decreasing
precipitation in the southern portion of its range (Grisham et al.
2016b, pp. 222-227). Weather changes associated with climate change can
have direct effects on the lesser prairie-chicken, leading to reduced
survival of eggs, chicks, or adults, and indirect effects on lesser
prairie-chicken are likely to occur through a variety of means
including long-term (by mid and late twenty-first century) changes in
grassland habitat. Other indirect effects may include more secondary
causes such as increases in predation pressure or susceptibility to
parasites or diseases. We have little information to describe future
grassland conditions as a result of long-term climate changes, although
warmer and drier conditions would most likely reduce overall habitat
quality for lesser prairie-chicken in much of its range. In general,
the vulnerability of lesser prairie-chicken to the effects of climate
change depends on the degree to which it is susceptible to, and unable
to cope with, adverse environmental changes due to long-term weather
trends and more extreme weather events. Based on an analysis of future
climate projections, the lesser prairie-chicken could have a net loss
of more than 35 percent to 50 percent of its range due to unsuitable
climate variables (Salas et al. 2017, p. 370).
One area of particular vulnerability for the lesser prairie-chicken
is the need for specific thermal profiles in the microhabitats they use
for nesting and rearing of broods. Warmer air and surface soil
temperatures and the related decreased soil moisture near nest sites
have been correlated with lower survival and recruitment in the lesser
prairie-chicken (Bell 2005, pp. 16, 21). On average, lesser prairie-
chicken avoid sites for nesting that are hotter, drier, and more
exposed to the wind (Patten et al. 2005, p. 1275). Nest survival
probability decreased by 10 percent every half-hour when temperature
was greater than 93.2 [deg]F (34 [deg]C) and vapor pressure deficit was
less than -23 mmHg (millimeters of mercury) during the day (Grisham et
al. 2016c, p. 737). Thermal profiles from nests in some cases exceeded
130 [deg]F (54.4 [deg]C) with humidity below 10 percent at nests in
Texas and New Mexico in 2011, which are beyond the threshold for nest
survival (Grisham et al. 2013, p. 8). Increased temperatures in the
late spring as projected by climate models may lead to egg death or
nest abandonment of lesser prairie-chicken (Boal et al. 2010, p. 4).
Furthermore, if lesser prairie-chicken shift timing of reproduction (to
later in the year) to compensate for lower precipitation, then impacts
from higher summer temperatures could be exacerbated. In a study of
greater prairie-chickens, heterogeneous grasslands have high thermal
variability with a range of measured operative temperatures spanning 41
[deg]F (23 [deg]C) with air temperatures >86 [deg]F (30 [deg]C) (Hovick
et al. 2014b, pp. 1-5). In this setting, females selected nest sites
that were as much as 14.4 [deg]F (8 [deg]C) cooler than the surrounding
landscape.
Although the entire lesser prairie-chicken range is likely to
experience effects from ongoing climate change, the southern part of
the Southern DPS (the Shinnery Oak Ecoregion) may be particularly
vulnerable to warming and
[[Page 72707]]
drying weather trends, as this portion of the range is already warmer
and drier than northern portions and is projected to continue that
trend (Grisham et al. 2013, entire; Grisham et al. 2016c, p. 742).
Research in the Shinnery Oak Ecoregion relating projections in weather
parameters in 2050 and 2080 to nest survival found with high certainty
that the negative effects on future nest survival estimates will be
significant, and the resulting survival rates are too low for
population sustainability in the Southern Great Plains in the absence
of other offsetting influences (Grisham et al. 2013, pp. 6-7). As late
spring and summer daily high temperatures rise, the ability for lesser
prairie-chicken to find appropriate nest sites and successfully rear
broods is expected to decline. Lower rates of successful reproduction
and recruitment lead to further overall declines in population
abundance and resiliency to withstand stochastic events such as extreme
weather events.
Extreme weather effects such as drought, heat waves, and storms can
also directly affect lesser prairie-chicken survival and reproduction
and can result in population crashes due to species responses including
direct mortality from thermal stress, increased predation due to larger
foraging areas, or decreased fitness when food resources are scarce.
Like other wildlife species in arid and semiarid grasslands, lesser
prairie-chicken on the Southern High Plains have adaptations that
increase resilience to extreme environments and fluctuating weather
patterns; however, environmental conditions expected from climate
change may be outside of their adaptive potential, particularly in the
timeframe weather changes are expected to occur (Fritts et al. 2018, p.
9556). Extreme weather events and periods of drying of soil surface
moisture are projected to increase across the lesser prairie-chicken
range (Easterling et al. 2017, pp. 218-222; Wehner et al. 2017, pp.
237-239). In Kansas, extreme drought events in the summers from 1981
through 2014 had a significant impact on lesser prairie-chicken
abundance recorded at leks; thus, increases in drought frequency and
intensity could have negative consequences for the lesser prairie-
chicken (Ross et al. 2016a, pp. 6-7). Even mild increases in drought
had significant impacts on the likelihood of population extirpation for
lesser prairie-chicken (De Angelis 2017, p. 15).
Drought is a particularly important factor in considering lesser
prairie-chicken population changes. The lesser prairie-chicken is
considered a ``boom-bust'' species, meaning that there is a high degree
of annual variation in population size due to variation in rates of
successful reproduction and recruitment. These variations are largely
driven by seasonal precipitation patterns (Grisham et al. 2013, pp. 6-
7). Periods of below-normal precipitation and higher spring/summer
temperatures result in less appropriate grassland vegetation cover and
fewer food sources, resulting in decreased reproductive output (bust
periods). Periods with favorable climatic conditions (above-normal
precipitation and cooler spring/summer temperatures) will support
favorable lesser prairie-chicken habitat conditions and result in high
reproductive success (boom periods). The lesser prairie-chicken
population failed to rebound for at least 4 years following the 2011
drought (Fritts et al. 2018, pp. 9556-9557). This information indicates
either that the extreme environmental conditions during 2011 may have
been beyond what the lesser prairie-chicken is adapted to or that the
return period following the 2008-2009 dry period and ensuing low
population numbers in 2010 was too short for the population to recover
enough to be resilient to the 2011 drought.
The resilience and resistance of species and ecosystems to changing
environmental conditions depend on many circumstances (Fritts et al.
2018, entire). As climatic conditions shift to more frequent and
intense drought cycles, this shift is expected to result in more
frequent and extreme bust years for the lesser prairie-chicken and
fewer boom years. As the frequency and intensity of droughts increase
in the Southern Great Plains region, there will be diminishing
opportunity for boom years with above-average precipitation. Overall,
more frequent and intense droughts may lessen the intensity of boom
years of the lesser prairie-chicken population cycle in the future,
which would limit the ability of the species to rebound following years
of drought (Ross et al. 2018, entire). These changes will reduce the
overall resiliency of lesser prairie-chicken populations and exacerbate
the effects of habitat loss and fragmentation. Because lesser prairie-
chicken carrying capacities have already been much reduced, if isolated
populations are extirpated due to seasonal weather conditions, they
cannot be repopulated due to the lack of nearby populations.
Although climate change is expected to alter the vegetation
community across the lesser prairie-chicken range (Grisham et al.
2016b, pp. 228-231), we did not account for the future effects of
climate change in our geospatial habitat model, as we did not have
information to inform specific land cover changes predicted to result
from future climate change (Service 2022, p. 91).
The best available information supports that climate change
projections of increased temperatures, increased precipitation
extremes, increased soil drying, and an increase of severe events such
as drought and storms within the Southern Great Plains are likely to
have significant influences on the future resiliency of lesser prairie-
chicken populations by mid to late 21st century. These trends are
expected to exacerbate the challenges related to past and ongoing
habitat loss and fragmentation, making it less likely for populations
to withstand extreme weather events that are likely to increase in
frequency and severity.
Other Factors
Livestock Grazing
We expect that grazing will continue to be a primary land use on
the remaining areas of grassland within the range of the lesser
prairie-chicken in the future, and grazing influences habitat
suitability for the lesser prairie-chicken (Diffendorfer et al. 2015,
p. 1). When managed to produce habitat conditions that are beneficial
for the lesser prairie-chicken, grazing is an invaluable tool for
maintaining healthy prairie ecosystems. However, if grazing is managed
in a way that is focused on maximizing short-term cattle production,
resulting in rangeland that is overused, this could have significant
negative effects on the lesser prairie-chicken. Grazing management
varies both spatially and temporally across the landscape.
Additionally, grazing management could become more difficult in the
face of a changing climate with more frequent and intense droughts.
Our geospatial model does not account for impacts to habitat
quality as data needed to characterize habitat quality for the lesser
prairie-chicken at the scale and resolution needed for our analysis do
not exist. While data do not exist to quantify rangewide extent of
grazing practices and their effects on habitat, incompatible livestock
grazing will continue to influence lesser prairie-chicken populations
in the foreseeable future.
Shrub Control and Eradication
The removal of native shrubs such as sand shinnery oak is an
ongoing concern to lesser prairie-chicken habitat availability
throughout large portions of its range, particularly in New Mexico,
Oklahoma, and Texas. While relatively wide-scale shrub eradication has
occurred in the past, we do not have
[[Page 72708]]
geospatial data to evaluate the extent to which shrub eradication has
contributed to habitat loss and fragmentation for the lesser prairie-
chicken. While some Federal agencies such as BLM limit this practice in
lesser prairie-chicken habitat, shrub control and eradication still
occur through some Federal programs and on private lands, which make up
the majority of the lesser prairie-chicken range. Though we expect this
threat to continue to impact the species into the foreseeable future,
we do not have data available to project the potential scale of habitat
loss likely to occur in the future due to shrub eradication.
Fire
As discussed in ``Threats Influencing Current Condition,'' the
current lack of prescribed fire use in the range of the lesser prairie-
chicken is contributing to woody plant encroachment and degradation of
grassland quality.
As the effects of fire suppression continue to manifest throughout
the Great Plains, the future impacts of wildfires on the lesser
prairie-chicken are difficult to predict. If recent patterns continue
with wildfires occurring at increasingly larger scales with less
frequency and higher intensities than historical fire occurrence, there
is an increasing potential of greater negative impacts on lesser
prairie-chicken. Additionally, as climate change projections are
indicating the possibility of longer and more severe droughts across
the range of the lesser prairie-chicken, this could alter the
vegetation response to fire both temporally and spatially. An expansive
adoption of prescribed fire in management of remaining grasslands would
be expected to have a moderating effect on risk of wildfires and
concurrently would reduce woody plant encroachment and increase habitat
quality and diversity. We are not able to quantify these impacts on the
future condition of the landscape in our geospatial analysis due to
lack of data and added complexity, but we acknowledge that fire (both
prescribed fires and wildfire), or its absence, will continue to be an
ecological driver across the range of the lesser prairie-chicken in the
future with potentially positive and negative effects across both
short-term and long-term timelines in the foreseeable future.
Projected Future Habitat Conditions and Trends
To forecast the potential changes in future lesser prairie-chicken
habitat, we used the projected levels of potential future impacts from
conversion to cropland, petroleum production, wind energy development,
and woody vegetation encroachment. We also worked with the primary
conservation entities delivering ongoing, established lesser prairie-
chicken conservation programs to develop estimated reasonable
projections for rates of future conservation efforts (this included
both restoration and enhancement efforts). We asked the entities to
provide us with information to project three levels of conservation:
low, continuation, and high. We asked the conservation entities not to
provide aspirational goals for a given program but instead to solely
use past performance, funding expectations, and expert opinion to
provide plausible future rates for given conservation practices. We
then used this information to estimate future conservation efforts over
the next 25 years for the lesser prairie-chicken and incorporated the
effects of restoration efforts on habitat availability into our spatial
analysis.
The results of this future geospatial model (Service 2022, section
4.2 and appendices B and C) are provided in table 14; further details
and maps are available in appendix E of the SSA report. The median
results show a very modest increase in areas available for use by
lesser prairie-chicken in our nearest neighbor analysis under Scenario
1 (assuming high levels of restoration and low levels of impacts) (with
an increase for the Shinnery Oak Ecoregion and a decrease for the other
three ecoregions) and decreasing amounts of projected declines in areas
available for use by lesser prairie-chicken under Scenarios 2-5 (table
14). Rangewide changes in areas available for use by lesser prairie-
chicken in our nearest neighbor analysis range from a 0.5 percent
increase under Scenario 1 to a 26 percent decrease in Scenario 5. This
analysis indicated additional future habitat loss and fragmentation
across the range of the lesser prairie-chicken is likely to occur, and
conservation actions will not be enough to offset those habitat losses.
Our analysis finds that the expected conservation efforts are
inadequate to prevent continued declines in total habitat availability,
much less restore some of what has been lost, and overall viability for
this species will continue to decline.
Table 14--Projected Future Median Acreage of Lesser Prairie-Chicken Areas Available for Use as a Result of Our Neighborhood Analysis in Acres, and Showing Percent Change in Acreage From
Estimated Current Areas Available for Use as a Result of Our Neighborhood Analysis, in 25 Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1 low Scenario 2 low Scenario 3 moderate Scenario 4 high Scenario 5 high
impacts, high impacts, impacts, impacts, impacts, low
restoration continuation continuation continuation restoration
Ecoregion Total area Current --------------------- restoration restoration restoration --------------------
condition ---------------------------------------------------------------
Median Percent Percent Percent Percent Median Percent
change Median change Median change Median change change
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Short-Grass/CRP................................................ 6,298,014 1,023,894 975,047 -4.8 956,190 -6.6 877,663 -14.3 808,152 -21.1 776,111 -24.2
Mixed-Grass.................................................... 8,527,718 994,483 974,200 -2.0 864,780 -13.0 742,855 -25.3 649,227 -34.7 630,633 -36.6
Sand Sagebrush................................................. 3,153,420 1,028,523 992,632 -3.5 980,302 -4.7 932,477 -9.3 887,224 -13.7 884,851 -14.0
Shinnery Oak................................................... 3,850,209 1,023,572 1,149,759 12.3 988,072 -3.5 868,761 -15.1 771,923 -24.6 711,933 -30.4
--------------------------------------------------------------------------------------------------------------------------------
Rangewide Totals........................................... 21,829,361 4,070,473 4,091,638 0.5 3,789,343 -6.9 3,421,756 -15.9 3,116,525 -23.4 3,003,529 -26.2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
It is important to note that these acreages presented above in
Table 14 consist of patches of fragmented habitat among developed areas
and other unsuitable habitat. Based on our geospatial analysis, the
vast majority of blocks of usable habitat and the total area within
those blocks, both in the current condition and in future scenarios,
are less than 12,000 ac (4,856 ha), and very few blocks were greater
than 50,000 ac (20,234 ha) (Service 2022, figure 4.2). As discussed
above, the space required by lesser prairie-chicken to support
individuals from a single lek is approximately 12,000-50,000 ac (4,856-
20,234 ha). The dominance of smaller blocks on the
[[Page 72709]]
landscape further exhibits that those spaces are highly fragmented,
even with the remaining potential usable area for the lesser prairie-
chicken totaling approximately 4,000,000 ac (1,600,000 ha) in the
current condition, and potentially declining to as low as 3,000,000 ac
(1,200,000 ha) under scenario 5 for our future condition projections.
High levels of fragmentation, as discussed in ``Threats Influencing
Current Condition,'' do not provide the landscape composition needed
for long-term stability of populations. Additionally, in spaces that
are highly fragmented, relatively small amounts of additional impacts
may have great consequences as landscape composition thresholds for the
lesser prairie-chicken are surpassed.
Several habitat enhancement actions for the lesser prairie-chicken
are being implemented across the analysis area. These enhancement
actions are implemented on existing habitat to enhance the quality of
that given area. As discussed above, we asked our conservation partners
to provide us with a range of plausible rates for conservation efforts,
including enhancement actions, occurring within the lesser prairie-
chicken analysis area by ecoregion. We also requested information
regarding effectiveness, project lifespan, and spatial targeting of
these efforts (Service 2022, appendix C, section C.3.4). Next, we
converted those rates for each program and conservation effort to the
total effort at year 25. Table 15 summarizes the three projected levels
of future habitat enhancement over the next 25 years for each
ecoregion. These efforts represent those above and beyond what is
already accounted for within the current condition analysis. Acreage
enrolled in CCAAs are assumed to continue to be enrolled in the future,
and CCAA projections within this table represent enrollments in
addition to existing enrollments. This table also does not include
continued management actions on permanently protected properties (such
as State-owned wildlife management areas or conservation banks), as it
is assumed this management will continue. Additionally, the numbers
reported for NRCS grazing plans are acres in addition to the number of
acres reported above in ``Conservation Efforts'' that are being managed
under prescribed grazing for the lesser prairie-chicken by NRCS, as we
assume that as contract acres expire from the program additional acres
will be enrolled.
Table 15--Projected Amount of Habitat Enhancement (in Acres) Over the Next 25 Years Within the Four Lesser
Prairie-Chicken Ecoregions
----------------------------------------------------------------------------------------------------------------
Total level of future effort (acres) at year
25
Enhancement efforts -----------------------------------------------
Low Continuation High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP Ecoregion
----------------------------------------------------------------------------------------------------------------
KDWP Enhancement Contract....................................... 0 6,740 17,500
NRCS LPCI Grazing Plan.......................................... 0 0 4,000
USFWS PFW Contract.............................................. 14,000 14,000 20,000
----------------------------------------------------------------------------------------------------------------
Mixed-Grass Ecoregion
----------------------------------------------------------------------------------------------------------------
WAFWA Management Plan........................................... 0 0 118,245
KDWP Enhancement Contract....................................... 0 120 3,100
ODWC Management................................................. 1,400 3,300 6,400
ODWC Additional CCAA Enrollment................................. 0 50,000 100,000
NRCS LPCI Grazing Plan.......................................... 0 0 58,000
USFWS PFW Contract.............................................. 50,000 50,000 70,000
TPWD Additional CCAA Enrollment................................. 0 0 50,000
----------------------------------------------------------------------------------------------------------------
Sand Sagebrush Ecoregion
----------------------------------------------------------------------------------------------------------------
KDWP Enhancement Contract....................................... 0 720 4,400
CPW Enhancement Contract........................................ 0 12,200 37,900
NRCS LPCI Grazing Plan.......................................... 0 0 13,000
USFWS PFW Contract.............................................. 0 6,000 18,000
----------------------------------------------------------------------------------------------------------------
Shinnery Oak Ecoregion
----------------------------------------------------------------------------------------------------------------
WAFWA Management Plan........................................... 0 0 8,129
NRCS LPCI Grazing Plan.......................................... 0 0 39,000
BLM Prescribed Fire............................................. 0 25,000 100,000
NM CCAA Prescribed Fire......................................... 50,000 100,000 150,000
USFWS PFW Contract.............................................. 5,000 15,000 50,000
TPWD Additional CCAA Enrollment................................. 0 0 60,000
----------------------------------------------------------------------------------------------------------------
The actual conservation benefit provided to the lesser prairie-
chicken by these programs varies greatly and is difficult to summarize
because it depends on the location and the specific actions being
carried out for each individual agreement. In addition, the level of
future voluntary participation in these programs can be highly variable
depending on available funding, opportunities for other revenue
sources, and many other circumstances.
Future Population Trends
Several estimates of lesser prairie-chicken population growth rates
have been based on current conditions for the lesser prairie-chicken,
with most derived from demographic matrix models (Fields 2004, pp. 76-
83; Hagen et al. 2009, entire; Sullins 2017, entire; Cummings et al.
2017, entire). Most studies project declining lesser prairie-chicken
populations; however, the
[[Page 72710]]
magnitude of actual future declines is unlikely to be as low as some
modeling tools indicate (Service 2022, table 4.10). Most positive
population growth calculations were derived from 2014-2016 (Hagen et
al. 2017, Supplemental Information; Service 2022, table 4.10), where
estimates indicated populations have increased. However, we caution
that any analysis using growth rates based upon short-term data sets
can be problematic as they are very sensitive to the starting and
ending points in the estimates. Additionally, these growth rates are
accompanied by relatively large margins of error.
Estimates based on aerial surveys over the past 10 years have
indicated a rangewide fluctuating population beginning with an
estimated 30,682 (90 percent CI: 20,938-39,385) individuals in 2012 to
an estimated 26,591 (90 percent CI: 16,321-38,259) individuals in 2022.
Included within this timeframe was a population low of 16,724 (90
percent CI: 10,420-23,538) individuals in 2013. We caution against
drawing inferences from point estimates based upon these data due to
low detection probabilities of the species leading to large confidence
intervals. We also caution that trend analyses from short-term data
sets are highly sensitive to starting and ending population sizes. For
example, if you use 2012, the first year of available rangewide survey
data, as the starting point for a trend analysis, it may appear that
populations are relatively stable, but during the years of 2010-2013,
the range of the lesser prairie-chicken experienced a severe drought
and thus lesser prairie-chicken populations were at historic lows. If
the data existed to perform the same analysis using the starting point
as 2009, then the results would likely show a decreasing population
trend.
The future risk of extinction of the lesser prairie-chicken has
been evaluated using historical ground surveys (Garton et al. 2016, pp.
60-73). This analysis used the results of those surveys to project the
risk of lesser prairie-chicken quasi-extinction in each of the four
ecoregions and rangewide over two timeframes, 30 and 100 years into the
future. For this analysis, quasi-extinction was set at effective
population sizes (demographic Ne) of 50 (populations at
short-term extinction risk) and 500 (populations at long-term
extinction risk) adult breeding birds, corresponding to an index based
on minimum males counted at leks of <=85 and <=852, respectively
(Garton et al. 2016, pp. 59-60). The initial analysis using data
collected through 2012 was reported in Garton et al. (2016, pp. 60-73),
but it has since been updated to include data collected through 2016
(Hagen et al. 2017, entire). We have identified concerns in the past
with some of the methodologies and assumptions made in this analysis,
and the challenges of these data are noted in Zavaleta and Haukos
(2013, p. 545) and Cummings et al. (2017, pp. 29-30). While these
concerns remain, this work represents one of the few attempts to
project risk to the species across its range, and we considered it as
part of our overall analysis and recognize any limitations associated
with the analysis.
Results were reported for each analysis assuming each ecoregion is
functioning as an independent population and also assuming there is
movement of individuals between populations (Service 2022, table 4.11;
table 4.12). The results suggest a wide range of risks among the
ecoregions, but the Sand Sagebrush Ecoregion consistently had the
highest risks of quasi-extinction and the Short-Grass/CRP Ecoregion had
the lowest. This analysis was based only on simulating demographic
variability of populations and did not incorporate changing
environmental conditions related to habitat or climate.
Summary of Comments and Recommendations
In the proposed rule published on June 1, 2021 (86 FR 29432), we
requested that all interested parties submit written comments on the
proposal by August 2, 2021. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We
published newspaper notices inviting general public comment in the USA
Today. We held virtual public hearings on July 8, 2021, and July 14,
2021. On June 11, 2021, we received a request to extend the public
comment period. On July 30, 2021, we published a notice extending the
comment period for an additional 30 days to September 1, 2021 (86 FR
41000). During the public comment period, we received 32,126 comments,
including 3 bulk comments with a total of 31,710 form letters.
State agencies, industry groups, and other commenters submitted
additional information and data during the public comment period. We
received information on conservation efforts, renewable energy
projects, new survey data, threats, suggestions related to recovery
planning, monitoring efforts, general information related to mitigation
efforts, and more. All substantive information received during the
comment periods has either been incorporated into our SSA, directly
into this final determination, or is addressed below.
Peer Reviewer Comments
As discussed in Supporting Documents above, we received comments
from four peer reviewers. We reviewed all comments we received from the
peer reviewers for substantive issues and new information regarding the
information contained in the SSA report. The peer reviewers generally
concurred with our methods and conclusions and provided support for
thorough and descriptive narratives of assessed issues, additional
information, clarifications, and suggestions to improve the final SSA
report. Peer reviewer comments are addressed in the following summary
and were incorporated into the final SSA report as appropriate.
Comment 1: One peer reviewer suggested that we consider adding to
the SSA report a statement that the percent reduction of habitat and
the percent reduction in population more or less parallel (or pace)
each other. They stated that pointing this out might emphasize that
improvements in actions that restore habitat should result in more
birds.
Our response: While we agree that there is a direct relationship
between habitat availability and population trends, the location of
additional habitat losses or gains will dictate the magnitude of
population response to those changes. Thus, while we can conclude there
is a direct relationship between population trends and habitat
availability, we cannot conclude that a given percent reduction of
habitat will result in a given percent reduction in population
abundance.
Comment 2: One peer reviewer suggested that we were too optimistic
regarding the persistence of lesser prairie-chicken in the Short-Grass
Prairie/CRP Ecoregion. The reviewer points out the lesser prairie-
chicken in that ecoregion are wholly dependent on CRP and minor
landscape changes can affect lesser prairie-chicken persistence.
Our response: Our SSA is based on the best available science. In
our SSA report, we state that the Short-Grass Prairie/CRP Ecoregion
represents the most resilient ecoregion of the four evaluated based
upon the large number of birds present. The existing populations of
lesser prairie-chicken in this ecoregion are largely dependent upon
CRP, a point which we acknowledge in the SSA report, and in the SSA
report we project additional habitat loss to occur within the future.
All of these points were included in our SSA analysis.
[[Page 72711]]
Comment 3: One peer reviewer suggested that juniper twig blight,
one of several possible species of fungi, has been decimating eastern
red cedar in some areas and could potentially reverse some of the woody
encroachment.
Our response: We reviewed the available information in our files
and found no documentation of extensive areas of eastern red cedar
decimated by any fungi or other diseases. Two locations where this
fungus exists are significantly east of lesser prairie-chicken range.
Additionally, as an example, one of the fungi, Kabatina (Kabatina
juniperi), requires specific weather conditions, limiting the
expectation of extensive spread of this fungus. This context makes
widespread and sustained removal of eastern red cedar by fungi
infection from invaded grasslands or prairies unlikely within the range
of the lesser prairie-chicken.
Comment 4: One peer reviewer suggested there is no evidence to
support available lesser prairie-chicken habitat has been reduced by
80-90 percent, citing Spencer et al. 2017.
Our response: The SSA report summarizes the best available
scientific information related to this point. The lesser prairie-
chicken was once distributed widely across the Southern Great Plains,
and currently occupies a substantially reduced portion of its presumed
historical range (Rodgers 2016, p. 15). There have been several
estimates of the potential maximum historical range of the lesser
prairie-chicken (e.g., Taylor and Guthery 1980a, p. 1, based on Aldrich
1963, p. 537; Johnsgard 2002, p. 32; Playa Lakes Joint Venture 2007, p.
1) with a wide range of estimates on the order of about 64 to 115
million ac (26 to 47 million ha). The more recent estimate of the
lesser prairie-chicken encompasses an area of approximately 115 million
ac (47 million ha). Presumably, not all of the area within this
historical range was evenly occupied by lesser prairie-chicken, and
some of the area may not have been suitable to regularly support lesser
prairie-chicken populations (Boal and Haukos 2016, p. 6). However,
experts agree that the current range of the lesser prairie-chicken has
been significantly reduced from the historical range at the time of
European settlement, although there is no consensus on the exact extent
of that reduction as estimates vary from greater than 90% reduction
(Hagen and Giesen 2005, unpaginated) to approximately 83% reduction
(Van Pelt et al. 2013, p. 3). We refer to the context of the entire
estimated historical range, while Spencer et al. 2017 only addresses
areas present in the recent delineation of the EOR in Kansas from the
1950s to 2013.
Comment 5: One reviewer suggested we used inappropriate
representation of lesser prairie-chicken historical range and suggested
that there are areas included within the historical range included in
the SSA report that were never occupied by the lesser prairie-chicken.
Our response: We used the best available information to
characterize the historical range of the lesser prairie-chicken,
including peer-reviewed publications and the map produced and used by
the State fish and wildlife agencies and cited in nearly all scientific
publications discussing the historical range (Service 2022, figure
2.2). Additionally, we acknowledge caveats associated with the
historical ranges including statements such as ``Presumably, not all of
the area within this historical range was evenly occupied by [lesser
prairie-chicken], and some of the area may not have been suitable to
regularly support [lesser prairie-chicken] populations.'' The reviewer
did not suggest a source that would better represent the historical
range of the lesser prairie-chicken.
Comment 6: One reviewer suggested we inappropriately assumed that
once land is converted to cropland those acres are no longer habitat.
Our response: Lesser prairie-chickens are a grassland obligate
species. We do not assume that cropland is not habitat, but rather
apply the information available in the scientific literature that
indicates that cropland does not provide for the full life-history
needs of the species. Additionally, once cropland exceeds 10 percent of
the landscape, lesser prairie-chicken populations begin to decline, in
large part due to the loss of nesting habitat. As discussed within the
SSA report, we considered that cropland may have some limited value for
opportunistic foraging but does not support vegetative structure and
composition necessary to fulfill all the life-history needs of the
species.
Federal Agency Comments and Comments From Tribes
We did not receive any comments from Federal agencies or from
Tribes.
Comments From States
Comment 7: Several State agencies and one commenter argued that
rare and endangered species are better managed at the State level than
the Federal level, and that the Service lacks the resources and
relationships to properly manage the species.
Our response: The Act requires the Service to make a determination
using the best available scientific and commercial data after
conducting a review of the status of the species and after taking into
account those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation to
protect such species. We appreciate the interest in lesser prairie-
chicken conservation and look forward to continuing our coordination
with State agencies as we begin recovery planning and implementation
for the lesser prairie-chicken.
Comment 8: One State and one commenter stated the Service did not
account for habitat quality improvements through enhancements in the
characterization of past and ongoing conservation actions in the SSA.
Our response: Throughout the SSA process, the Service worked with
the States and other partners to compile and evaluate the best
available data to inform our decision with regard to the status of the
lesser prairie-chicken. This included working with our conservation
partners to ensure we accurately characterized existing conservation
efforts for the species and projecting the benefits of these efforts
into the future. Within chapter 3 of the SSA report, we detail past and
current conservation efforts, including enhancement efforts. While
projecting the benefits of conservation efforts into the future, we
include projections that account for those efforts to enhance existing
habitat for the lesser prairie-chicken, which are summarized in chapter
4, table 4.8 of the SSA report (Service 2022).
Comment 9: As a followup to Comment 8, a commenter asked for
clarification on the implications of not being able to assess habitat
quality (and inclusion of degraded areas) in the spatial analysis and
how those implications might have affected our decision.
Our response: Spatial data do not exist at the scale and resolution
needed to adequately evaluate the condition of the vegetative structure
and composition of the landscape. This impacted our spatial analysis
because to accurately evaluate habitat availability for the lesser
prairie-chicken, one would need to identify areas that are in grassland
or shrubland that could support the species and then evaluate the
vegetative composition and structure of those areas to determine if the
area has been degraded and to what degree. Many areas that remain
grassland do not have either the vegetative composition or structure to
provide for habitat for the lesser prairie-chicken; unfortunately, no
spatial data exist that would allow for a
[[Page 72712]]
characterization of vegetative structure and composition at the scope
or scale needed to inform the evaluation of the lesser prairie-chicken.
Thus, within our spatial analysis, we could not directly estimate
available habitat. Instead, we estimate the amount of grassland and
shrubland within the analysis area that could potentially serve as
lesser prairie-chicken habitat if the correct vegetative structure and
composition on the given site are present. The implications of this
limitation, as outlined in the SSA report, is that the actual amount of
available habitat is likely overestimated in the analysis. This
limitation was fully considered while making our determination.
Comment 10: One State commented that USDA did not provide data to
the Service regarding habitat restoration and enhancement efforts that
are conducted outside of the Lesser Prairie-Chicken Initiative, and
that means the SSA is lacking some of the best available information.
Our response: We worked directly with USDA to describe the
conservation benefits being provided by their programs for
consideration in this decision. We acknowledge that there are programs
available outside of the Lesser Prairie-Chicken Initiative, as outlined
in chapter 3 of the SSA report. These programs, the Environmental
Quality Incentives Program, the Conservation Stewardship Program, and
the Agricultural Conservation Easement Program, all provide funding for
the Lesser Prairie-Chicken Initiative, which in turn provides technical
and financial assistance to landowners. While these programs do not
include all programs implemented by USDA, it does include the primary
programs and benefits being provided to the lesser prairie-chicken. We
are not aware of and the commenter did not provide any additional data
regarding conservation benefits that we could include in our analysis.
Comment 11: One State agency asserted that there were no threats in
the Kansas portion of the Northern DPS under any of the five factors.
They also stated that lesser prairie-chicken populations and habitat
are either stable or growing.
Our response: We have carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats to the Northern DPS of the lesser prairie-chicken and
its habitat. We analyzed effects associated with habitat loss,
fragmentation, and fragmentation including conversion of grassland to
cropland (Factor A), petroleum production (Factor A), wind energy
development and transmission (Factor A), woody vegetation encroachment
(Factor A), and roads and electrical distribution lines (Factor A);
other factors, such as livestock grazing (Factor A), shrub control and
eradication (Factor A), collision mortality from fences (Factor E),
predation (Factor C), influence of anthropogenic noise (Factor E), and
fire (Factor A); and extreme weather events (Factor E). We also
analyzed existing regulatory mechanisms (Factor D) and ongoing
conservation measures.
Habitat loss, fragmentation, and degradation is the primary threat
to the lesser prairie-chicken in this DPS, with other threats such as
fire, incompatible livestock grazing, and extreme weather events
further decreasing population resiliency and species redundancy. We do
not assess the species on a State-by-State basis, but rather based on
the Act's definition of species. The State of Kansas is included in the
Northern DPS and consists of portions of three ecoregions for the
species. The largest impacts in this DPS are conversion of grassland to
cropland and woody vegetation encroachment. The Sand Sagebrush
Ecoregion, which includes the species within Kansas, is also
experiencing habitat degradation due to incompatible grazing
management.
Our future scenario analysis demonstrates that the current threats
acting on the landscape are expected to either continue at the same
levels or increase in severity in the foreseeable future. Habitat loss
is projected to outpace conservation efforts to restore habitat. Though
we do not expect rates of habitat conversion to cropland to be
equivalent to the rates that we historically witnessed, we expect any
additional conversion that does occur will have a disproportionately
large effect on resiliency and redundancy due to the limited amount of
remaining large intact grasslands. Conversion of habitat due to oil,
gas, and wind energy will continue to occur. Woody vegetation
encroachment is also expected to continue, particularly in the Mixed-
Grass Ecoregion. Increased drought and severe weather events associated
with climate change are expected to decrease population resiliency and
redundancy into the foreseeable future, and as habitat availability
continues to decline, and available habitat blocks decrease in size,
populations may decline to below quasi-extinction levels.
Conservation measures and regulatory mechanisms are acting to
reduce the magnitude of threats impacting the lesser prairie-chicken
and its habitat. However, our analysis demonstrates that future
restoration efforts will not be enough to offset the impacts of habitat
loss and fragmentation and conservation efforts focused on localized
management to affect habitat quality, while not addressing the
overarching limiting factor of habitat loss and fragmentation, is not
addressing the long-term population needs for the lesser prairie-
chicken. Thus, these measures are having only minimal impacts on
threats acting throughout the DPS.
Comment 12: One State asked the Service to detail how the listing
of the lesser prairie-chicken and potential incidental take would
affect the hunting season in Kansas for the greater prairie-chicken and
any other species.
Our response: The listing will have no direct effect on hunting
seasons established by a State fish and wildlife agency for any other
species. However, because Kansas falls within the Northern DPS, the
4(d) rule prohibits take, as defined in 50 CFR 17.21(c)(1), or
possession, as defined in 50 CFR 17.21(d)(1), of lesser prairie-
chicken. We do not expect this to be of significant effect as hunting
regulations already in place by KDWP were intended to minimize impacts
to the lesser prairie-chicken.
Comment 13: One State asked if seeding nonnative plant species
within the range of the lesser prairie-chicken would be considered take
and noted that they strongly recommend only planting of native species.
Our response: While we strongly recommend planting of native
species as well, the Act only prohibits actions that would result in a
violation of the prohibitions outlined in section 9 of the statute or
specifically prohibited by the 4(d) rule. Not all seeding of nonnative
plant species would result in take of the lesser prairie-chicken, and
each scenario would have to be evaluated. There are potential scenarios
in which seeding of nonnative plant species could result in a section 9
violation if such seeding occurred in existing habitat for the lesser
prairie-chicken and results in a long-term alteration of the vegetative
structure and composition necessary to support the lesser prairie-
chicken. While the seeding of nonnative species, such as converting a
row crop agriculture field to a nonnative stand of grass, may not
provide any conservation value to the lesser prairie-chicken, it would
also not result in a section 9 violation.
Comment 14: One State asked if suppressing (as opposed to
eradicating) shinnery oak and sand sagebrush would be prohibited.
Our response: Alterations to vegetation resulting from appropriate
herbicide application in order to better
[[Page 72713]]
meet the habitat requirements of the lesser prairie-chicken, such as
suppression of sand shinnery oak and sand sagebrush, would not be
considered a violation of section 9. Herbicide applications that would
result in a violation of section 9 would be those in which the
application on existing lesser prairie-chicken habitat results in
sustained alteration of preferred vegetative characteristics of lesser
prairie-chicken habitat.
Comment 15: One State asked about residents that may have lesser
prairie-chicken specimens in their possession that were legally
harvested less than 100 years ago. They noted that under section
10(h)(1) of the Act, possession of such specimens or import or export
of them is prohibited.
Our response: Simple possession of specimens of a listed species
does not constitute a violation of either the Act or the 4(d) rule. The
statute and 4(d) rule prohibit possession (and other acts) of specimens
taken in violation of the Act. If the specimen was taken lawfully,
there would be no violation for possession of the specimen. The Act
does prohibit certain interstate and foreign commerce activities, such
as shipping, transporting, selling, or offering to sell, listed
species, regardless of when the specimen was taken.
Comment 16: Multiple commenters, including five State wildlife
agencies, provided comments outlining existing conservation efforts and
participation in and accomplishments of those efforts. Many of those
commenters stated that the lesser prairie-chicken should not be listed
due to all of those efforts.
Our response: We fully evaluated and considered all of these
efforts while making our determination. The past, current, and likely
future benefits of these efforts were evaluated through the SSA process
and are summarized in the SSA report. The mere existence of
conservation efforts does not necessarily result in a species not
meriting the protections of the Act. Instead, we must evaluate the
effects of the efforts on the status of the species and on the threats
affecting the species. To ensure that we accurately characterized the
benefits being provided by existing efforts, we worked directly with
the entities responsible for implementing those efforts. We first asked
them to assist us in describing the program and the program
accomplishments that are included in chapter 3 of the SSA report. To
help us project the likely future benefits of their efforts, we worked
directly with those entities to estimate the rate of future practices
likely to be implemented based upon accomplishments from past years and
expectations for the program. A summary of these likely future efforts
are included in chapter 4 of the SSA report and a detailed summary of
how the conservation projections were calculated is included in
appendix C of the SSA report. By working with these entities through
the SSA process, we have ensured that we fully and accurately evaluated
the benefits of these existing efforts to the lesser prairie-chicken
and its habitat. Based on our analysis and the full consideration of
all efforts, we still conclude that listing is warranted for both the
Northern and Southern DPSs of the lesser prairie-chicken as detailed in
this rule.
Comment 17: Multiple commenters, including three State wildlife
agencies, submitted comments related to population trends. Some
commenters stated that the results of aerial surveys demonstrate that,
rangewide and/or for each DPS, populations of lesser prairie-chicken
are stable or increasing. Some attributed this increase to success of
conservation efforts. Other commenters stated that while there may be
short-term increases in populations due to precipitation patterns, the
long-term trends indicated declines in lesser prairie-chicken
populations.
Our response: We acknowledge that aerial surveys can demonstrate
stable, increasing, or declining population trends, depending on the
range of dates reviewed and the range of the confidence intervals in
the population estimates. We conclude it is critical therefore to focus
on long-term trends to measure population viability for lesser prairie-
chickens. Annual fluctuations and short-term trends can be misleading.
The lesser prairie-chicken is considered a ``boom-bust'' species with a
high degree of annual variation in rates of successful reproduction and
recruitment. These annual and short-term fluctuations are almost
entirely driven by seasonal precipitation patterns. Periods of below-
average precipitation and higher spring/summer temperatures result in
less appropriate vegetative cover and less food available, resulting in
decreased reproductive output (bust periods). Periods with above-normal
precipitation and cooler spring/summer temperatures will support
favorable habitat conditions and result in high reproductive success
(boom periods). Based upon this life history strategy, when evaluating
lesser prairie-chicken populations one should not draw conclusions
based upon annual fluctuations or short-term trends. Instead, the best
use of population data is for long-term trend analysis, which covers a
timeframe that spans multiple boom and bust periods.
We find the most likely scientific conclusion to explain the 2013-
2021 observed increase in the lesser prairie-chicken populations is
precipitation patterns. We acknowledge that voluntary conservation
efforts were also acting on the species during this time. In 2013,
there were historically low population estimates. We conclude this was
due to the severe drought that the southern Great Plains experienced in
the period 2009-2012. Following the drought, precipitation had been
largely at or above average within the lesser prairie-chicken range
through 2020. The predicted population response is increases in lesser
prairie-chicken populations. This conclusion is consistent with the
population data from 2013 through 2021. Within the SSA report, we
provide a detailed summary of the best available science with regard to
population trends including a summary of all results from the aerial
surveys and the best available science with regard to historical
population estimates. As presented in this rule and the SSA report, the
best available scientific information indicates that the lesser
prairie-chicken populations have experienced long-term population
declines. Additionally, most efforts to project future lesser prairie-
chicken population abundance and our analysis of future habitat
conditions indicate likely continued declines in lesser prairie-chicken
abundance and habitat.
Comment 18: Multiple commenters, including one State wildlife
agency, submitted comments related to the relationship between
population trends, habitat loss, and precipitation. Some comments asked
for clarification around these relationships while others stated that
habitat loss is not the driver of population trends because the SSA
estimated habitat losses but populations have increased since 2013.
Our response: As detailed in the response to Comment 17, due to the
life history strategy of the lesser prairie-chicken, annual and short-
term variations in lesser prairie-chicken populations are directly tied
to localized precipitation patterns. Long-term population trends for
the lesser prairie-chicken that span multiple precipitation cycles, are
a better measure of population health as they will better reflect the
true trajectory of the population. Analyzing long-term trends will
minimize the influence of short-term precipitation cycles and the
associated fluctuations that are associated with a species with this
life history strategy. Long-term population
[[Page 72714]]
trends for the lesser prairie-chicken are associated with habitat
availability and connectivity.
Comment 19: Multiple commenters, including one State, stated that
ground-based surveys in New Mexico for 2021 show higher populations
than the aerial survey estimates and thus conclude we should base our
2021 population estimate for the Shinnery Oak Ecoregion on the ground-
based survey work from New Mexico. Two commenters also stated that, in
general, aerial survey estimates are less accurate and that ground-
based surveys would possibly reveal higher numbers.
Our response: The aerial survey methodology was designed to provide
a statistically valid sampling framework to allow a more accurate
evaluation of long-term population trends. It is clear, based on the
best available science, that the aerial survey framework is the most
rigorous sampling design to provide population estimates and trends.
Ground-based surveys are not designed to allow for an accurate
extrapolation to a population estimate. Ground-based surveys can be
used to detect species presence and at best provide an index. More
specifically, the best use of this information is to indicate presence
of the species when there is a positive detection and at most to
monitor a specific lek or group of leks through time to give an
estimate of documented attendance for that lek. Beyond that, these
surveys have limited utility for analyzing population abundance due to:
variation in sampling methodologies within and between States;
selective sampling; variance in lek attendance and detection rates; and
lack of ability to account for what proportion of the population is
being sampled in any given year (Applegate 2000; Cummings et al. 2017;
Ross et al. 2019). The aerial surveys were designed to address these
shortcomings with the design and statistical limitations associated
with the ground-based surveys and thus allow for evaluation of long-
term population trends with a calculation of the level of certainty
associated with those estimates.
Comment 20: One State agency stated that based upon population
estimates resulting from ground-based surveys in New Mexico that
populations have remained relatively stable since 1998 despite a
significant range contraction in the northern and the southern portion
of the lesser prairie-chicken range in New Mexico. They attributed the
stability to conservation efforts in the core areas.
Our response: As discussed in our response to Comment 19, ground-
based survey efforts are not designed to produce population estimates.
Even if the ground-based survey estimates provided precise annual
population estimates and the population was relatively stable, the
extent of the total range decline leads us to conclude that the lesser
prairie-chicken in the Shinnery Oak Ecoregion faces an elevated
extirpation risk due to the negative effects of reduction in
potentially usable area, which has negatively affected redundancy.
Comment 21: Multiple commenters, including two State wildlife
agencies, stated that listing of the lesser prairie-chicken would
undermine existing conservation efforts and create a disincentive for
participation in conservation efforts. Some commenters suggested that
rather than listing the Service should continue to work with partners
and landowners to develop conservation agreements. One commenter stated
that conservation efforts are more likely to increase and improve
without a listing as these voluntary programs provide flexibility in
determining how best to conserve the species.
Our response: In compliance with the requirements of the Act and
its implementing regulations, we determined that the Northern and
Southern DPSs of the lesser prairie-chicken warrant listing based on
our assessment of the best available scientific and commercial data. We
recognize that the lesser prairie-chicken remains primarily on lands
where habitat management has supported survival, due in large part to
voluntary actions incorporating good land stewardship, and we want to
continue to encourage land management practices that support the
species. We recognize the need to work collaboratively with private
landowners to conserve and recover the lesser prairie-chicken.
Comment 22: Multiple commenters, including one State wildlife
agency, submitted comments related to the effectiveness of conservation
efforts. Some commenters stated that existing efforts were not
effective at addressing the conservation needs of the species while
others stated that existing efforts are effective at addressing the
conservation needs of the lesser prairie-chicken. Additionally, some
commenters stated that while we acknowledged existing efforts, we then
disregarded them and did not fully factor in their effectiveness.
Our response: We included all existing conservation efforts within
our analysis in the SSA report. We described each conservation effort
individually and then analyzed how effective those efforts were at
addressing the threats to the lesser prairie-chicken. This analysis
showed that the overarching limiting factor to the lesser prairie-
chicken is habitat availability and that the primary threat is habitat
loss and fragmentation. Our analysis indicates that, despite
conservation efforts, habitat loss and fragmentation continues to
negatively impact viability for the species. Additionally, our analysis
indicated that despite the projected level of conservation efforts
moving forward, habitat loss and fragmentation is expected to outpace
habitat restoration efforts, resulting in further decreases in
viability in the future. As discussed in the SSA report, there are
additional threats to the lesser prairie-chicken that will continue to
impact the species, which are not addressed or ameliorated by existing
conservation efforts to the extent that the species does not warrant
listing.
Comment 23: One State wildlife agency stated that decreasing
groundwater aquifer levels are likely to lead to restoration of
cropland acres to native grasses in the Sand Sagebrush Ecoregion in the
future, which will increase habitat availability and populations in the
future but the extent will be hard to quantify.
Our response: While we agree that decreasing aquifer levels may
impact the agricultural practices within the Sand Sagebrush Ecoregion,
there is no information to indicate that landowners will convert those
areas back to vegetative composition that will support the lesser
prairie-chicken or that they will manage it in a way that is compatible
with the habitat needs of the lesser prairie-chicken.
Comment 24: One State commented that there must be more and
improved coordination among Federal agencies because the Service failed
to acquire CRP data from USDA for use in the SSA.
Our response: We used the best available information in our
analyses. Access to geospatial conservation practices information is
available to entities such as other Federal agencies only through a
signed agreement with USDA (Rissman et al. 2017). As stated in Appendix
B, Part 5. Supplemental Analysis: Evaluation of CRP, due to privacy
concerns associated with sharing these data, we were not able to
establish an agreement with FSA to provide the CRP data for our use.
Because we were not able to acquire the spatially explicit data for CRP
enrollment, we worked with FSA to complete an analysis to understand
the implications of not having CRP data included in our spatial model.
The results of this analysis indicated up to a 1.33 percent increase in
potentially
[[Page 72715]]
usable space if we had CRP data for our model. We found this minor
difference in potentially usable space to be negligible in the scope of
the SSA analysis.
Comment 25: Multiple commenters, including four State wildlife
agencies, submitted comments requesting that the 4(d) rule for the
Northern DPS of the lesser prairie-chicken include an exception for
take resulting from grazing activities. Some commenters requested a
4(d) exception for all grazing activities, some requested a 4(d)
exception for grazing that was being managed in ways that were
compatible with the conservation of the species, and other commenters
requested clarity on what would be considered compatible grazing
management.
Our response: After evaluating all comments from States and from
public commenters, we have included in the 4(d) rule an exception for
take that would be associated with routine grazing activities when the
landowner or land manager is following a site-specific grazing plan
that was developed by an entity that has been approved by the Service.
Please see Provisions of the 4(d) Rule for more details.
Comment 26: Four State agencies and multiple public commenters
requested that activities conducted pursuant to the WAFWA Range-wide
Plan be excepted from take prohibitions under the 4(d) rule for the
Northern DPS. They stated that we had approved a 4(d) provision for the
plan previously and that including such a provision would provide an
overall benefit to the conservation of the species. Several commenters,
however, stated it was inappropriate to include an exception from take
prohibitions for activities conducted pursuant to the WAFWA Range-wide
Plan, given issues revealed in the recent audit and the lack of clarity
on how these issues will be resolved.
Our response: We did not find that a provision excepting activities
conducted under the mitigation framework within the RWP implemented by
WAFWA is necessary and advisable for the conservation of the species at
this time. We acknowledge that our previous 4(d) rule had excepted
these activities from take. However, we have reevaluated that decision
based on the updated status of the species and recent information
regarding the mitigation program. A July 2019 audit of the mitigation
program found a variety of deficiencies with the program. These
deficiencies include concerns regarding the financial management,
accounting, compliance, and conservation delivery. After the audit was
completed, WAFWA hired a consultant to assist them with evaluating
options to address any deficiencies with the oil and gas CCAA. The
consultant focused on the oil and gas CCAA, which has the same
mitigation framework as the RWP. This consultant led a focused
conversation with the WAFWA, the State fish and wildlife agencies, the
Service, and representatives of the oil and gas industry enrolled in
the program. This process culminated with a report titled ``Range-wide
Oil and Gas Candidate Conservation Agreement with Assurances
Realignment Phase 1 Findings and Recommendations'' finalized in
December 2020. This report reaffirms the deficiencies identified in the
2019 program audit and identifies steps to address those concerns.
While this realignment process was directly related to the CCAA,
because the same mitigation framework is included in both the RWP and
the CCAA, the concerns outlined in the Findings and Recommendations
Report are directly applicable to the mitigation program within the
RWP. The WAFWA has made some changes, but most of the noted
deficiencies with relation to the mitigation framework and other
aspects directly related to the RWP have not been remedied.
Specifically, due to the identified deficiencies, we are concerned that
the implementation of the mitigation framework is not offsetting
impacts to the species.
Comment 27: One State noted that the 4(d) rule excepted prescribed
fire from take prohibitions. They asked that, given the importance of
prescribed fire, that it be added to the list of actions unlikely to
result in a violation of section 9 for the Southern DPS.
Our response: While fire plays an important role, potential exists
for some short-term negative impacts to the lesser prairie-chicken
while implementing prescribed fire. The potential impacts depend upon
what time of the year the fire occurs; extent of habitat burned; and
burn severity including, but not limited to, disturbance of
individuals, destruction of nests, and impacts to available cover for
nesting and concealment from predators. Section 9(a)(1) of the Act,
codified at 50 CFR 17.21, sets out the prohibitions related to
endangered species. While section 4(d) of the Act allows alteration of
prohibitions for actions likely to result in take of threatened
species, neither the Act nor its implementing regulations have such a
mechanism for endangered species. For parties interested in
implementing any action that may result in take of a listed species,
the Service has multiple mechanisms under the Act to permit those
actions and interested parties can reach out to their local Service
office for further assistance.
Comment 28: Two State agencies and several commenters asked for
additional vegetation removal, treatment, and management actions to be
added to the 4(d) rule. For example, commenters asked that all removal
of nonnative and invasive native vegetation be included as an exception
from take in the 4(d) rule (for example, Eastern red cedar, honey
mesquite, Russian olive, black locust, Siberian elm). Additionally,
multiple commenters (including both State agencies) asked that
herbicide application for control of these species be included in the
4(d) rule.
Our response: As outlined in the Available Conservation Measures
section of the rule, actions that could result in a section 9 violation
would be those that would result in sustained alteration of preferred
vegetative characteristics of lesser prairie-chicken habitat.
Application of herbicides for removal of invasive brush species
identified would not fall into this category. Areas dominated by those
species are not considered lesser prairie-chicken habitat; thus,
applying herbicides would not alter preferred vegetative
characteristics of lesser prairie-chicken habitat. It is not necessary
to create an exemption to the take prohibition for removal of nonnative
or invasive vegetation identified in the comments because these
activities will not be occurring in occupied habitat.
Comment 29: One State agency requested clarification on
restrictions on farming in the Southern DPS. The commenter asked if
farming activities would be prohibited in the Southern DPS, and noted
that because those areas do not support lesser prairie-chickens, that
take would likely not occur.
Our response: Any action that would result in ``take,'' as defined
in the Act, of a listed species would be prohibited under section 9 of
the Act. Farming activities in areas where lesser prairie-chickens are
not present would not be prohibited because they would not result in
take. However, in other (likely limited) situations where lesser
prairie-chickens are using cultivated lands during certain times,
farming activities could result in take of the species. We suggest that
interested parties discuss reach out to their local Service office to
discuss specific situations and get further details.
[[Page 72716]]
Public Comments
Comments on Endangered Species Act and Service Policies
Comment 30: Multiple commenters stated that we had not used the
best available information in the SSA report and/or the proposed rule.
They pointed to our conclusions on drought, climate change, and
population trends, and estimates of impact distances for various energy
projects or the impacts of grazing. One commenter thought the rule used
too many estimates and assumptions overall. They stated that the data
we used are uncertain and inconclusive.
Our response: Section 4(b)(1)(A) of the Act requires that we make
our determinations solely on the basis of the best scientific and
commercial data available. Additionally, our Policy on Information
Standards under the Act (published in the Federal Register on July 1,
1994 (59 FR 34271)), the Information Quality Act (section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(Pub. L. 106-554; H.R. 5658)), and our associated Information Quality
Guidelines (https://www.fws.gov/program/information-quality), provide
criteria and guidance, and establish procedures to ensure that our
decisions are based on the best scientific data available. They require
our biologists, to the extent consistent with the Act and with the use
of the best scientific data available, to use primary and original
sources of information as the basis for recommendations to list a
species as an endangered or threatened species. In preparing our SSA
report and this final rule, we used information from many different
sources, including articles in peer-reviewed journals, scientific
status surveys and studies completed by qualified individuals, Master's
thesis research that has been reviewed but not published in a journal,
other unpublished governmental and nongovernmental reports, reports
prepared by industry, personal communication about management or other
relevant topics, conservation plans developed by States and counties,
biological assessments, other unpublished materials, experts' opinions
or personal knowledge, and other sources. We have relied on published
articles, unpublished research, habitat modeling reports, digital data
publicly available on the internet, and the expert opinion of subject
biologists to aid in our determination.
Also, in accordance with our peer review policy published on July
1, 1994 (59 FR 34270) and our 2016 memo on peer review, we solicited
peer review of the lesser prairie-chicken SSA report from knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles; their feedback was incorporated into
the SSA report (Service 2022, entire), which remains the foundation of
our research along with our 2021 proposed rule and this final rule.
Additionally, we requested comments or information from other concerned
governmental agencies, Native American Tribes, the scientific
community, industry, and any other interested parties during the
comment period for the proposed rule. Comments and information we
received helped inform this final rule. We found that the best
available science indicates that the two DPSs of the lesser prairie-
chicken warrant listing under the Act.
Comment 31: Multiple commenters argued that we should have come to
a variety of different conclusions on the DPSs: that the Northern DPS
should have been endangered rather than threatened, that the Southern
DPS should have been threatened rather than endangered, or that the
whole range should have been either endangered or not warranted for
listing.
Our response: Sections 3(6) and 3(20) of the Act, respectively,
define an endangered species as one that is in danger of extinction
throughout all or a significant portion of its range, and a threatened
species as one that is likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its
range. We have thoroughly assessed the best available scientific and
commercial data for the species, as laid out in our SSA report and this
final rule. We have determined that the primary threat impacting both
DPSs is the ongoing loss of large, connected blocks of grassland and
shrubland habitat. The Southern DPS has low resiliency, redundancy, and
representation and is particularly vulnerable to severe droughts due to
its location in the dryer and hotter southwestern portion of the range.
Because the Southern DPS is currently at risk of extinction, we are
listing it as endangered.
In the Northern DPS, as a result of habitat loss and fragmentation,
resiliency has been reduced across two of the ecoregions when compared
to historical conditions. However, this DPS still has redundancy across
the three ecoregions and genetic and environmental representation. We
expect habitat loss and fragmentation across the Northern DPS to
continue into the foreseeable future, resulting in even further reduced
resiliency. Because the Northern DPS is at risk of extinction in the
foreseeable future, we are listing it as threatened.
Comment 32: Multiple commenters requested additional time to
provide public comments on the proposed rule, requesting between 90
days and 6 months of additional time. The commenters pointed to the
large amount of data available on the species and the difficulty of the
issues. One commenter noted that the Service has the obligation to
consider the best available data at any time, and others noted that
multiple new studies would be published in the months following the
closing of the public comment period.
Our response: We acknowledge the public/stakeholder interest
surrounding this species and thus we extended the public comment period
by an additional 30 days to give a total of 90 days for public review
and comments. We consider the comment period described in the ``Summary
of Comments and Recommendations'' of this final rule to have provided
the public a sufficient opportunity for submitting both written and
oral public comments. We followed Service practice and policy in
managing the public comment process. We provided multiple opportunities
and avenues for public involvement. Notifications of the comment
period, meetings, and hearings were provided in the proposed rule,
which was published in the Federal Register, posted on our website, and
publicized in newspapers. The public comment period on the proposed
rule was open for a total of 90 days, during which time we received
more than 32,000 comments. We offered a variety of options for
submitting comments; the public could submit their comments
electronically, using a specified website, via U.S. mail, or orally at
our two online public hearings. In addition, the Act requires the
Service to publish a final rule within 1 year from the date we propose
to list a species, unless there is substantial disagreement regarding
the sufficiency or accuracy of the available data relevant to the
determination. During development of this final rule, we did not
receive any substantial new data that would necessitate us reopening
the public comment period or necessitate us taking a 6-month extension
due to substantial disagreement.
Comment 33: Several commenters asked why there was no NEPA analysis
of the proposed listing rule. Some added that even if the Service holds
the position that NEPA is not needed for a
[[Page 72717]]
listing rule that it is needed for a 4(d) rule.
Our response: The courts have ruled that NEPA does not apply to
listing decisions under section 4(a) of the Act, nor to 4(d) rules
issued concurrent with listing (see Pacific Legal Foundation v. Andrus,
657 F.2d 829 (6th Cir. 1981); and Center for Biological Diversity v.
U.S. Fish and Wildlife Service, No. 04-4324, 2005 WL 2000928, at *12
(N.D. Cal. Aug. 19, 2005).
Comment 34: Several comments asked why there was no regulatory
flexibility analysis prepared for the listing and 4(d) rule; some
stated that the Service was required to complete those analyses.
Our response: In 1982, Congress added to the Act the requirement
that classification decisions be made solely on the basis of the best
scientific and commercial data available. In addition, the Conference
Report accompanying those amendments made clear that one purpose of
adding that language was to ensure that requirements like those in E.O.
12866 do not apply to classification decisions. Specifically, it states
that ``[E]conomic considerations have no relevance to determinations
regarding the status of species and the economic analysis requirements
of Executive Order 12291 [the predecessor of E.O. 12866], and such
statutes as the Regulatory Flexibility Act and the Paperwork Reduction
Act, will not apply to any phase of the listing process'' (H.R. Conf.
Rep. No. 97-835, at 20). We consider the 4(d) rule a necessary phase of
the listing process to put in place protections for threatened species.
Comment 35: One commenter asked why the peer review comments were
not made available at the time of the proposed rule, and requested that
we make them available now.
Our response: In our August 22, 2016, memorandum updating and
clarifying the role of peer review of listing actions under the Act, we
state that we will summarize the opinions of all peer reviewers in the
final decision document, and that our general practice will be to also
post the peer review letters on https://www.regulations.gov. We have
provided those reviews in the supplemental materials for this final
rule that we have uploaded at this final rule's docket on https://www.regulations.gov.
Comment 36: Multiple commenters stated that we should assess the
economic costs of listing. Some also stated that we should not list the
lesser prairie-chicken because of the harm it would cause to local
economies, including ranchers, farmers, and other small businesses.
Our response: Section 4 of the Act (16 U.S.C. 1533), and its
implementing regulations at 50 CFR part 424, set forth the procedures
for adding species to the Federal Lists of Endangered and Threatened
Wildlife and Plants. Under section 4(a)(1) of the Act, the Secretary
may determine whether any species is an endangered or threatened
species because of any of the following five factors: (A) The present
or threatened destruction, modification, or curtailment of its habitat
or range; (B) overutilization for commercial, recreational, scientific,
or educational purposes; (C) disease or predation; (D) the inadequacy
of existing regulatory mechanisms; or (E) other natural or manmade
factors affecting its continued existence. Listing actions may be
warranted based on any of the above threat factors, singly or in
combination. The Act does not provide any language allowing the
consideration of economic impacts when making listing decisions for
species; listing decisions must be made solely on the basis of the best
scientific and commercial data available (16 U.S.C. 1533(b)(1)(A))
pertaining to the biological status of and threats to the persistence
of the species in question.
Comment 37: Three commenters stated that the 4(d) rule cannot be
``necessary and advisable'' because it does not discuss the effects on
private landowners. Two of those commenters stated that the necessary
and advisable standard of the Act requires economic analysis of the
costs of 4(d) rules on landowners, assessment of previous conservation
provided by landowners and other groups, and calculation of what
incentives for conservation 4(d) rules provide.
Our response: As discussed in our response to the previous comment,
the Act clearly prohibits us from considering economic or similar
information when making listing, delisting, or reclassification
decisions. Congress added this prohibition in the 1982 amendments to
the Act when it introduced into section 4(b)(1) an explicit requirement
that all decisions under section 4(a)(1) of the Act be based ``solely
on the basis of the best scientific and commercial data available.''
Congress further explained this prohibition in the Conference Report
accompanying the 1982 Amendments: ``The principal purpose of these
amendments is to ensure that decisions in every phase of the process
pertaining to the listing or delisting of species are based solely upon
biological criteria and to prevent non-biological considerations from
affecting such decisions. These amendments are intended to expedite the
decision-making process and to ensure prompt action in determining the
status of the many species which may require the protections of the
Act.'' (H.R. Conf. Rep. No. 97-835, at 19 (1982).)
Therefore, following statutory framework and congressional intent,
we do not conduct or develop economic impact analyses for
classification decisions. Additionally, 4(d) rules concurrently issued
with a revised classification rule are inherently a part of a
classification decision for a threatened species and are similarly
exempt from any consideration of economic impacts.
Comment 38: One commenter stated that the Service did not attempt
to reproduce all scientific information and data on the lesser prairie-
chicken, in accordance with the Data Quality Act, and did not state
which data were reproduced, and that this lack of explanation raises
uncertainty in the SSA and listing process for the species,
particularly where proxy species were used.
Our response: We strove to summarize the key findings of past
research and publications, as they relate to the future viability of
the lesser prairie-chicken and our decisions under the Endangered
Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) (Service
2022, pp. 2-3). The response to Comment 30 lays out our policies and
procedures for assessing information in our scientific documents. We
affirm that we have complied with the policies laid out in that
comment, and that we have provided a full and complete accounting of
the data we used and the areas where we relied upon proxy species.
Comment 39: One commenter stated that the Service should provide
statements from each peer reviewer regarding what data were reproduced,
and on the degree of imprecision used in the SSA.
Our response: Our peer review policy published on July 1, 1994 (59
FR 34270), states that, for listing actions, we must solicit peer
review regarding pertinent scientific or commercial data and
assumptions relating to the taxonomy, population models, and supportive
biological and ecological information for species under consideration
for listing. We have solicited complete and thorough peer review of our
SSA in accordance with these policies.
Comment 40: One commenter asserted that we did not consider the
appropriate factors in making our listing determination. They stated
that we (1) inappropriately focused on the population trends of the
species rather than determining whether the species met the definition
of endangered or
[[Page 72718]]
threatened, that we inappropriately focused on a decline in habitat,
and that we inappropriately focused on whether conservation measures
offset habitat loss. They added that courts have found that declines in
habitat alone are not sufficient to make a threatened or endangered
finding, and that a failure to offset habitat loss is not a required
finding.
Our response: As discussed in our response to Comment 36, we must
make listing determinations solely on the basis of the five factors and
on the basis of the best scientific and commercial data available
pertaining to the biological status of and threats to the persistence
of the species in question. Data such as population trends and declines
in habitat can help us understand the current status of the species and
whether or not it meets the definition of an endangered or threatened
species under the Act. However, as we describe in our response to
Comment 31 and the Final Listing Determination sections for both
species, we are not listing simply due to declines in habitat or
declines in populations, but on the combined effect of threats
associated with the five factors and our conclusion that the Northern
DPS is at risk of extinction in the foreseeable future and that the
Southern DPS is currently at risk of extinction.
Comment 41: One commenter noted that the proposed rule did not set
forth any procedures for its implementation. The commenter suggested
that a group of interested parties and stakeholders be assembled to
discuss procedures for implementation and their effects on landowners,
and that separate groups be formed for the Northern and Southern DPSs.
Our response: The proposed rule and this final rule describe ways
in which the provisions of the Act will be implemented. In Available
Conservation Measures, we set out requirements under section 7 of the
Act for Federal Agencies, describe issuance of permits, and list
activities that would or would not constitute a violation of section 9
for the Southern DPS. For the Northern DPS, under Final Rule Issued
Under Section 4(d) of the Act, we describe prohibitions and exceptions
to those prohibitions that affect that DPS. Any additional questions
regarding implementation of this final rule should be directed to the
Southwest Regional Office (see FOR FURTHER INFORMATION CONTACT).
Throughout its work on the species, the Service has placed an
emphasis on working with stakeholders to develop conservation options
that are beneficial to both the species and stakeholders. We will
continue to work with all stakeholders and realize that conservation of
the lesser prairie-chicken cannot happen without this approach. Section
4(f) of the Act calls for the Service to develop and implement recovery
plans for the conservation of endangered and threatened species. The
recovery planning process begins with development of a recovery outline
made available to the public soon after a final listing determination;
see Available Conservation Measures for more details. The Act
encourages cooperation with the States; we will continue to work with
our partners, stakeholders, and the public throughout the recovery
planning process.
Comment 42: Two commenters noted that the Service's definition of
foreseeable future extended to only those effects we can reasonably
forecast. They noted that one population trend analysis (Hagen et al.
2011) stated it could only be forecast 5 years into the future. The
commenters concluded that the Service should thus only consider the
foreseeable future to be the next 5 years. Another commenter stated
that if we were to list any species with any chance at all to someday
become extirpated, we would list nearly all species.
Our response: The Act does not define the term ``foreseeable
future,'' which appears in the statutory definition of ``threatened
species.'' Our implementing regulations at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable future on a case-by-case
basis. The term ``foreseeable future'' extends only so far into the
future as the Service can reasonably determine that both the future
threats and the species' responses to those threats are likely. In
other words, the foreseeable future is the period of time in which we
can make reliable predictions. ``Reliable'' does not mean ``certain'';
it means sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
As discussed in ``Threats Influencing Future Condition,'' we
consider the foreseeable future to be the amount of time on which we
can reasonably determine a likely threat's anticipated trajectory and
the anticipated response of the species to those threats. We used all
of the available data in creating our determination of the length of
the foreseeable future. While the study quoted by the commenters only
projects 5 years into the future, we used multiple other reliable data
sources to project conditions of the species further into the future.
Our judgment of foreseeable future was based on available data related
to habitat conditions, threats, and our geospatial analysis; we have a
reasonable degree of confidence in projecting the future condition of
the species beyond a 5-year timeframe.
Comment 43: One commenter asserted that the Service must not simply
err on the side of caution when listing a species. They stated that if
we were to list any species with any chance at all to someday become
extirpated, we would list all nearly species.
Our response: As discussed in our response to Comment 30, we have
made our determination solely on the basis of the best available
information. As discussed in our response to Comment 42, for impacts in
the foreseeable future, a prediction is reliable if it is reasonable to
depend on it when making decisions. Therefore, we list any species
where we reach the conclusion that it meets the definition of
threatened or endangered, not any species that may have a chance to be
extirpated at some unknown point in the future.
Comment 44: Multiple commenters provided input on future threats
and the Southern DPS. Two commenters stated that future forecast
climate trends in the Southern DPS did not support an endangered
finding. Three commenters stated that our future projection analysis
does not support endangered status for the Southern DPS, and that
Scenario 5 is too pessimistic in regard to the Southern DPS.
Our response: As discussed in our response to Comment 31, the Act
defines an endangered species as one that is in danger of extinction
throughout all or a significant portion of its range. Under the Act,
the statutory definition of ``endangered species'' as a species that
``is in danger of extinction'' clearly connotes an established, present
condition. In contrast, the definition of a ``threatened species'' as
one that is ``likely to become an endangered species within the
foreseeable future'' equally clearly connotes a predicted or expected
future condition. Thus, in the context of the Act, an ``endangered
species'' may be viewed as a species that is presently at risk of
extinction. A ``threatened species,'' on the other hand, is not
currently at risk of extinction, but is likely to become so. In other
words, a key statutory difference between a threatened and endangered
species is the timing of when a species may be in danger of extinction,
either now (endangered) or in the foreseeable future (threatened).
Given that we concluded that the Southern DPS is in danger of
extinction now, in the current condition, this determination is not
[[Page 72719]]
based on future scenarios or future projections of climate trends or
other threats.
Comment 45: One commenter asserted that if we considered the future
effects of climate change, which were not included in our geospatial
model, we would definitely conclude that the Northern DPS was
endangered.
Our response: As discussed in our SSA report, the implications of
climate change were not incorporated into the geospatial analysis
related to habitat availability as there is no available data to inform
specific land cover changes predicted to result from future climate
change. However, our analysis of the status of the Northern DPS was not
limited to the geospatial model. We fully considered all potential
future effects of climate change in making our determination regarding
the Northern DPS. Additionally, as noted in Comment 44, we consider
only the current condition of a species when making an endangered
finding.
Comment 46: Two commenters asserted that the Service had
inappropriately identified actions that may result in a violation of
section 9; specifically, actions that might alter lesser prairie-
chicken habitat such as shrub removal and energy infrastructure/power
lines that could cause seasonal avoidance. The commenters state that
neither of these actions meet the statutory definition of take under
the Act.
Our response: While identifying actions that may result in a
violation of the prohibitions outlined in section 9 of the Act, we
understand that the prohibitions on take apply to the individual and
not necessarily its habitat. However, there are instances where impacts
to habitat would result in negative effects to individuals that rise to
the level of take. Specifically, impacts that result in modifications
to habitat would constitute a taking of a listed species under the
definition of ``harm'' if the action results in significant
modification of habitat that significantly impairs an essential
behavioral pattern that would likely result in killing or injuring that
species. This approach is consistent with judicial interpretations of
the Act, as explained in Babbitt v. Sweet Home Chapter of Communities
for a Greater Oregon, 515 U.S. 687 (1995) and Arizona Cattle Growers'
Association v. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir.
2001).
After reviewing the best available science and reviewing the
statutory definitions within the Act, we have determined that actions
that would result in sustained alteration of preferred habitat for the
lesser prairie-chicken, such as conversion of native vegetation to
other land uses or the construction of anthropogenic features that
result in direct removal of habitat and avoidance of otherwise suitable
areas, could significantly modify habitat to the point where essential
behavioral patterns could be disrupted resulting in harm of individual
lesser prairie-chickens.
Comment 47: One commenter requested that, given the wide range of
the lesser prairie-chicken and the number of land uses affected by this
final rule, the Service provide a much more precise description of the
activities that would be prohibited by the final listing.
Our response: The Act and its implementing regulations set forth a
series of general prohibitions and exceptions that apply to endangered
wildlife: The prohibitions of section 9(a)(1) of the Act, codified at
50 CFR 17.21. We list some examples of activities in Available
Conservation Measures that are and are not likely to result in a
violation of section 9. However, it is impossible to create an
exhaustive list of activities that would result in take because it is
highly site-specific for each action as to whether take would occur.
For those activities not covered in this final rule, we will assist the
public in determining whether they would constitute a prohibited act
under section 9 of the Act. Interested parties may contact their local
U.S. Fish and Wildlife Service Ecological Services Field Office for any
assistance.
Comment 48: One commenter was surprised that we listed the Southern
DPS as endangered given that we listed the entire species as threatened
in 2014. They argued that, since that time, populations have increased
and many more conservation measures have been implemented.
Our response: This listing determination is a stand-alone
determination, based on the most recent analysis of the status of the
species. This determination benefitted from the SSA and the in-depth
analysis, peer review, and partner review that went into that analysis.
We acknowledge that significant habitat protection and restoration has
been underway for the past 8 years. These efforts were fully evaluated
within the SSA report and thus were fully considered when making our
listing determination. As detailed in the response to Comment 17,
conclusions cannot be drawn regarding lesser prairie-chicken
populations based upon short-term trends.
Comment 49: Several commenters stated that, if listing was
warranted, we should ``follow precedent'' and find that it was
warranted but precluded. One stated it was inappropriate for the
Service to have withdrawn that option in litigation. One commenter
stated that the Service should have used the warranted but precluded
option given that we have discretion to prioritize critically impaired
species, while giving lower priority to those species for which
conservation efforts are in place. They noted because there are already
extensive conservation efforts by States, landowners, and stakeholders
underway or being developed that benefit the lesser prairie-chicken, it
should be a low priority species for the Service.
Our response: The Act requires that we make a determination that
listing is warranted, warranted but work to complete the determination
is precluded by other listing proposals, or not warranted. The
stipulated settlement agreement for lesser prairie-chicken only
established a date by which we were to make 12-month petition finding,
it did not remove the option of ``warranted but precluded.'' While
making a finding, we may consider using the ``warranted but precluded''
option where appropriate. We recognize the extensive conservation
efforts in place by States, landowners, and other stakeholders.
However, in this instance, we conclude that listing is warranted for
both the Northern and Southern DPSs of the lesser prairie-chicken, and
that completing this determination is not precluded by work on other
pending proposals.
Comment 50: Two commenters asserted that the listing rule should
apply only to areas that meet the definition of habitat as stated in
the SSA report. They also stated that project managers should not have
to undergo section 7 consultation in areas that did not meet the
definition of habitat for the lesser prairie-chicken. One example
commenters provided was that companies should not have to consult on
existing infrastructure, roads, or similar structures, as they do not
provide habitat for the lesser prairie-chicken.
Our response: This rule would apply the prohibitions established
under section 9 of the Act and outlined in the section 4(d) rule for
the Northern DPS wherever take of the species may occur. Consultation
under section 7 of the Act is required if a Federal agency has a
discretionary Federal action that may affect a listed species. Actions
that do not result in effects to a listed species would not require
consultation under section 7 of the Act. This may include activities
taking place in areas that are not habitat for the species, where there
[[Page 72720]]
will be no direct or indirect effects to the species.
Comment 51: One commenter asked if additional data would be used to
supplement the habitat quality analysis between the proposed and final
rule. They also asked if field data collected as part of the mitigation
framework could be used to provide more information on habitat quality
conditions.
Our response: No additional data has become available at the scale
or resolution necessary to evaluate habitat quality for the lesser
prairie-chicken for incorporation into our spatial analysis. While
there are some data available on properties enrolled in conservation
programs (including the mitigation framework associated with the
Rangewide plan), the monitoring and data collection is not standardized
across programs, making it not possible to compare across programs.
Additionally, this data is not collected at a scale that would be
informative for an evaluation at the ecoregion or DPS scale. Because
these data are selectively collected on properties being managed for
the lesser prairie-chicken, they would not be representative of habitat
quality across the larger landscape. While spatial data were not
available to include habitat quality in our spatial analysis, this does
not mean that we ignored or did not incorporate efforts by conservation
programs to increase habitat quality. Within chapters 3 and 4 of the
SSA report, we include past and current benefits of conservation
programs. We also project the likely future benefits of these efforts
to improve habitat quality.
Comment 52: One commenter asked how we will regulate land use
within the designated occupied range of the lesser prairie-chicken,
given that it only occupies patchy areas within the larger occupied
range.
Our response: The Act does not allow the FWS to regulate land use.
Instead, the Act establishes prohibited actions in order to promote the
conservation of listed species. In furtherance of this objective, we
maintain a map depicting the current range of the species on publicly
accessible websites. We suggest that project proponents contact U.S.
Fish and Wildlife Service Ecological Services Field Offices within
their State for specific information for their locality and assistance
in evaluating potential impacts of their projects. As discussed within
the SSA report, many acres included in the EOR are not lesser prairie-
chicken habitat because either they are impacted by anthropogenic
features, or they do not possess the vegetative composition and
structure necessary to support the species.
Comment 53: Two commenters asked us to describe what recovery would
look like for the lesser prairie-chicken; one of them noted that we had
not described preferred conservation areas, goals, or objectives.
Our response: Section 4(f) of the Act calls for the Service to
develop and implement recovery plans for the conservation of endangered
and threatened species; however, this planning process begins after we
make final the listing of a species. The recovery planning process then
begins with development of a recovery outline made available to the
public soon after a final listing determination; see Available
Conservation Measures for more details. The Act encourages cooperation
with the States and other countries. We will continue to work with our
partners and the public throughout the recovery planning process.
Comment 54: Two commenters asked about how E.O. 13985 (Advancing
Racial Equity and Support for Underserved Communities) would affect
implementation of the proposed rule and small electric cooperatives or
individual landowners. One of those commenters asked us to make sure we
distinguish between large-scale energy transmission projects and
smaller transmission lines that support rural land and homeowners. The
other commenter was concerned that the listing proposal would cause too
much cost to those landowners and not provide enough benefit to
landowners.
Our response: We acknowledge that some economic impacts are a
possible consequence of listing a species under the Act; for example,
there may be costs to a landowner to avoid potential impacts to the
species or associated with the development of a habitat conservation
plan. In other cases, if the landowner does not acquire a permit for
incidental take, the landowner may choose to forego certain activities
on their property to avoid violating the Act, resulting in potential
lost income. However, as noted in our response to Comment 36 above, the
statute does not provide for the consideration of such impacts when
making a listing decision, nor would it be affected by E.O. 13985.
Section 4(b)(1)(A) of the Act specifies that listing determinations be
made solely on the basis of the best scientific and commercial data
available. Such costs are therefore precluded from consideration in
association with a listing determination.
Comment 55: One commenter stated that, because the lesser prairie-
chicken is hybridizing with the greater prairie-chicken, the
distinctness of both species is questionable, and the listing should be
reconsidered.
Our response: We have included a review of the best available
scientific information around the taxonomy of the lesser prairie-
chicken in chapter 2 of the SSA report. For the SSA report and our
listing determination, we followed the American Ornithologist's Union
taxonomic classification for the lesser prairie-chicken, which is based
on observed differences in appearance, morphology, behavior, social
interaction, and habitat affinities. The simple fact that hybridization
can or does occur is not an indication that the lesser and greater
prairie-chicken are not distinct species. The best available science
clearly indicates they are separate species.
Comments on Population Trends and Analysis
Comment 56: Multiple commenters submitted statements asserting that
the lesser prairie-chicken had survived many threats over the past two
thousand years. They made reference to the species surviving the Dust
Bowl and the severe drought of the 1950s. The commenters concluded that
because the species has survived these threats before, it will be able
to continue to survive them into the future.
Our response: As discussed in response to Comment 17, the lesser
prairie-chicken is a boom-bust species. This population characteristic
highlights the need for habitat conditions to support large population
growth events during favorable climatic conditions so they can
withstand the declines during poor climatic conditions without a high
risk of extirpation. Since the 1930s and 1950s, the lesser prairie-
chicken has seen a significant amount of habitat loss and fragmentation
resulting in population declines. This reduction in redundancy and
representation has resulted in a decrease in population resiliency. In
past decades, fragmentation of lesser prairie-chicken habitat was less
extensive than it is today, connectivity between occupied areas was
more prevalent, and populations were larger, allowing populations to
recover more quickly. In other words, lesser prairie-chicken
populations were more resilient to the effects of stochastic events
such as drought. As lesser prairie-chicken population abundances
decline and usable habitat declines and becomes more fragmented, their
ability to rebound from prolonged drought is diminished. Because lesser
prairie-chicken carrying capacities have already been much reduced, if
isolated populations are extirpated due to
[[Page 72721]]
seasonal weather conditions, they cannot be repopulated due to the lack
of nearby populations. An evaluation of the resiliency of populations
(ability to withstand stochastic events) within these four ecoregions
takes into account the already reduced species' range and associated
reduction in redundancy and representation compared to historical
conditions. Population resiliency has been reduced in the remaining
areas making the species more susceptible to extirpation.
Comment 57: One comment stated that because the proposed rule did
not include figures showing raw data from all survey efforts, including
maps, GPS locations, and flight paths, the proposed rule could not be
fully or accurately evaluated by the public.
Our response: The Service does not have access to some raw data
that is considered confidential; therefore, we made our determination
based on the best available scientific information as required by the
statute. The commenters did not explain how access to the raw data
associated with surveys would have led to different conclusions
relative to population trends within either DPS.
Comment 58: One commenter stated that the lesser prairie-chicken is
a boom-bust species, but the proposed listing focused only on the
population decreases and disregarded the population increases.
Our response: In our response to Comment 17, we outlined the boom-
bust cycle of the lesser prairie-chicken. Within the analysis presented
in the SSA report we present the best available scientific information
regarding population abundance and trends. Population declines are an
important metric because risk of extirpation and extinction increase as
population abundance decreases. While populations will increase during
years with increased precipitation, long-term population trends
indicate continual declines in abundance, to the point that the species
warrants listing.
Comment 59: One commenter noted that the proposed listing stated
that loss of the Shinnery Oak Ecoregion would result in loss of the
entire southwestern portion of the species' range; that commenter
stated that there is no threat of loss of the entire Shinnery Oak
Ecoregion.
Our response: As outlined in the SSA report, the Shinnery Oak
Ecoregion has experienced a significant amount of habitat loss and
fragmentation, which has resulted in depleted lesser prairie-chicken
populations. With the existing level of habitat loss and fragmentation
resulting in such low population numbers, under current climactic
conditions, another wide-scale severe drought could occur in this
ecoregion at any time, and the species may not be able to recover due
to the reduced and fragmented nature of the remaining habitat.
Therefore, we determined that the species in danger of extinction in
the Shinnery Oak Ecoregion.
Comment 60: One commenter stated that the listing should be delayed
until further unbiased analysis could be completed by both State
agencies and outside parties with regard to populations.
Our response: The SSA report includes the best available scientific
information regarding past, current, and likely future population
trends for the lesser prairie-chicken. While we compiled this
information as part of our SSA report, it is important to note that all
of these data were collected and analyzed by the State fish and
wildlife agencies, including contractors working on their behalf, and
outside experts. Additionally, after compiling this information into
the SSA report, with which the State fish and wildlife agencies
contributed, the State fish and wildlife agencies and independent
experts reviewed the report prior to finalization of the report and our
proposed listing. The SSA report includes an unbiased view of the best
available science with regard to past, current, and likely future
population trends.
Comment 61: Two commenters stated that the validity of the
population data presented in the SSA report and the proposed rule,
including the aerial survey results and population reconstruction data
from Hagen et al. (2017), are questionable. They also stated that we
made arbitrary decisions about which part of the data to use and that
we manipulated data to support our position.
Our response: The SSA report contains the best available scientific
information regarding past, current, and future populations for the
lesser prairie-chicken. The SSA report is explicit about the
limitations associated with the information. The data for past and
current lesser prairie-chicken populations largely fall into three
categories.
First, the most robust and statistically sound abundance estimates
for the species are the result of the aerial surveys that have been
conducted annually since 2012 (with the exception of 2019). These
surveys were designed to provide a statistically valid method to
evaluate long-term population trends for the species. Again, there are
limitations associated with this data as the survey was designed to
track long-term trends and has been conducted for only 10 years. Since
the aerial surveys were not conducted prior to 2012, we also provide
the best available scientific information for the species prior to
2012.
Prior to 2012 the only surveys conducted for lesser prairie-
chickens were ground-based surveys conducted by each State wildlife
agency. Hagen et al. (2017) compiled and analyzed the ground-based
survey data in the period 1965-2016 using population reconstruction
techniques. Again, these data have limitations, as discussed in the SSA
report, but represent the best available scientific information for
populations from 1965 through 2012. Lastly, the only information on
populations prior to 1965 consists of anecdotal observations, which we
also provided within the SSA report. All of these data have
limitations, and we make any interpretations of that information with
those limitations in mind. We used the best available scientific
information for each time period to describe population trends.
However, we did not ``manipulate'' any data, or make arbitrary
decisions about what data to use. The SSA report contains an accurate
representation of the best available science and acknowledges the
limitations associated with those data. Our characterization of the
population data (and the larger SSA report) has undergone peer review
and review by the State wildlife agencies to ensure we have accurately
characterized the best available scientific information. All
interpretations and conclusions drawn by the Service were done so with
the assumptions and limitations of all data regarding population
abundance estimates fully considered.
Comment 62: One commenter noted that the SSA report says that
currently the population in the Shinnery Oak Ecoregion makes up
approximately 11 percent of the rangewide population estimate then goes
on to state that the rangewide population estimate in 1960 was 50,000
birds. The commenter then asserted that, assuming that the Shinnery Oak
Ecoregion made up 11 percent of the population in 1960, that would mean
that the Shinnery Oak population would have been 5,500 individuals,
which is not much different than the population estimate in 2020 from
the aerial surveys.
Our response: The assumption that an ecoregion's current percentage
of the rangewide population would be representative of the percentage
from 1960 is not supported by the science. For example, historically
lesser prairie-chicken populations in the Sand
[[Page 72722]]
Sagebrush Ecoregion were among the highest in the range and currently
the Sand Sagebrush has the lowest population estimates for any
ecoregion. Additionally, historically the Short-Grass/CRP Ecoregion
contained few if any lesser prairie-chickens. Today it has the largest
population of any ecoregion. Similarly, there is no scientific evidence
to support the assumption that the Shinnery Oak ecoregions current
percent of the rangewide population would represent the same percentage
that it did in the 1960s.
Second, the comment places too great an emphasis on the population
estimate for 1960. As noted previously, the survey effort used to
estimate population abundance in 1960 was very limited. This led to
population reconstruction data that is imprecise for specific years. It
is crucial that these limitations be considered in any analysis of the
data. Third, even assuming that the population estimates from 1960 were
accurate, those are estimated numbers of males only, while the 2020
survey was a total population estimate. Thus, if one were to assume a
1:1 sex ratio, the total population estimate would be 100,000 birds in
1960 (not 50,000). As discussed in our responses to Comments 17 and 18,
the best use of the population data is not to focus on any given year
but instead to focus on long-term trends.
Comment 63: Two commenters stated that, according to the aerial
survey results from 2020, lesser prairie-chicken populations are
increasing in the Shinnery Oak Ecoregion.
Our response: As discussed in our responses to Comments 17 and 18,
evaluating population health of the lesser prairie-chicken based upon
short-term trends is not an appropriate use of the data to analyze
long-term viability. When viewed in context of precipitation patterns
as discussed in the response to Comment 17, from 2013-2020 we would
expect populations to increase. The results of the aerial surveys show
a significant decline in the Shinnery Oak Ecoregion in both 2021 and
2022 from an estimated 4,881 birds in 2020 to an estimated 1,569 birds
in 2021 and an estimated 519 birds in 2022. This decline occurred due
to a drought in the southern portion of the species' range, which
negatively impacted populations. These new data from the 2021 and 2022
aerial surveys illustrate the influence of precipitation on annual
abundance estimates and demonstrate the importance of analyzing long-
term population trends. According to the most recent aerial survey
results, lesser prairie-chicken populations in the Shinnery Oak
Ecoregion have declined from an estimated 2,967 birds in 2012 to an
estimated 519 birds in 2022 but more telling is the evaluation included
in the SSA report of long-term population declines.
Comment 64: One commenter stated that, because the Short-Grass/CRP
Ecoregion supports the largest population of lesser prairie-chickens
and the USGS modeling efforts projected the highest level of risk for
that ecoregion, the Northern DPS should be listed as endangered.
Our response: Although the demographic model from Cummings et al.
2017, which the commenter refers to as the USGS modeling efforts,
projected the Short-Grass Ecoregion had the lowest median growth rate
among the ecoregions, it also has the greatest uncertainty in projected
abundance. This uncertainty is likely due to the fewer years of
demographic observations available in this ecoregion, making it
difficult to infer a clear trend. We considered these modeling results,
including the associated uncertainties and limitations, as part of our
larger analysis and as one source of information. We evaluated all
available science regarding modeling of future populations and conclude
that while the declines may not be as drastic as predicted in the
Cummings et al. (2017) report, multiple lines of evidence support
likely declines in lesser prairie-chicken abundance in the future.
While we considered the results of Cummings et al. (2017), we also
incorporated all of the best available information to inform our
decision. After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
find that the lesser prairie-chicken maintains populations in all three
ecoregions in the Northern DPS, and has genetic and ecological
representation in those ecoregions, as well as population redundancy
across the entirety of the DPS. Thus, lesser prairie-chickens in the
Northern DPS are not currently in danger of extinction, and thus the
Northern DPS does not meet the definition of endangered. Our future
projections do indicate that habitat will become increasingly
fragmented and less able to support lesser prairie-chickens. Overall,
after assessing the best available information, we conclude that the
Northern DPS of the lesser prairie-chicken is not currently in danger
of extinction but is likely to become in danger of extinction within
the foreseeable future throughout all of its range.
Comment 65: One commenter noted that populations in the Shinnery
Oak and Sand Sagebrush Ecoregions have shown limited ability to
increase in numbers recently following drought periods.
Our response: As discussed in our response to Comment 17, the
lesser prairie-chicken is a boom-bust species. As outlined in the SSA
report, habitat loss and fragmentation has resulted in boom years that
have lower overall population abundance over time, and during the bust
years population abundance is continually getting lower. In some
ecoregions, like the Shinnery Oak Ecoregion in particular, the
population abundance in bust years is dangerously close to zero. As
relevant to the Sand Sagebrush Ecoregion, we project the increased
impacts of threats on the species will continue to drive the population
abundance in bust years closer to zero.
Comment 66: One commenter cited an interim assessment of lesser
prairie-chicken population trends from 1997 through 2011 that was
completed in 2012 for the Lesser Prairie-Chicken Interstate Working
Group and noted that this assessment concluded largely increasing
numbers with low extinction risks.
Our response: We considered the 2012 interim report in the SSA
report (see the citation to Garton et al. 2016). This report has been
updated and refined since that time. The updated information was
included in chapter 4 of the SSA report (see the citation to Hagen et
al. 2017). It is important to note that this analysis does have some
limitations in that it was based only on simulating demographic
variability of populations and did not incorporate changing
environmental conditions related to habitat or climate. This
information, including its limitations, was included in the overall
analysis and considered as part of the decision.
Comment 67: One commenter stated that, due to northward expansion,
stable rangewide populations, and extraordinary conservation efforts,
the lesser prairie should not be listed.
Our response: As detailed in responses to Comments 17, 18, and 61,
the Service fully considered the best available scientific information
regarding past, current, and future population trends for the lesser
prairie-chicken. We also fully detailed and considered the expansion of
the lesser prairie-chicken in the Short-Grass/CRP Ecoregion in the SSA
report. Lastly, we worked directly with conservation entities
delivering the conservation efforts for the species to ensure we
accurately characterized those efforts within our SSA report. In
summary, the Service fully considered population trends, the northern
expansion in the
[[Page 72723]]
Short-Grass/CRP Ecoregion, and the benefits of conservation efforts in
our analysis and decision.
Comment 68: One commenter stated that, due to changes in survey
protocols over time, direct comparison across time is not possible and
the proposed listing is based upon assumptions, opinions, and
speculation as opposed to the best available science.
Our response: As detailed in response to Comment 61, the Service
included and fully considered the best available scientific information
on past, current, and future population trends. In recognition of the
fact that there have been advancements in survey methodology and
increased survey efforts since the 1960s, we used the best available
science for each time period to characterize population trends for the
species.
Comment 69: Multiple commenters provided statements relating
rangewide and ecoregional precipitation patterns to annual and short-
term population fluctuations. Specifically, the comments stated that
the Service did not give enough consideration to the effects of drought
related to population trends.
Our response: As discussed in our responses to Comments 17 and 18,
precipitation patterns play a significant role in annual fluctuations
in the estimated abundance of lesser prairie-chickens at both the
rangewide and ecoregional scales. The analysis included in the SSA
report accounts for this relationship and bases our conclusions
regarding population status on long-term trends.
Comment 70: One commenter stated that populations of the lesser
prairie-chicken have been stable to increasing over the past 60 years.
Our response: The SSA report provides a detailed summary of the
best available scientific information with regard to historical and
current population estimates and a summary of long-term population
trends. This information was reviewed by independent peer reviewers as
well as State and Federal partners. This information clearly indicates
that the lesser prairie-chicken has experienced population declines
over the last 60 years. While Hagen et al. (2017) estimated the minimum
number of male lesser prairie-chicken annually based upon ground-based
survey estimates as far back as 1960, those estimates for the years of
1960-1961 were based upon very limited survey efforts and thus not
reliable. It was not until approximately 1970 that survey efforts had
increased. In 1970 it was estimated that there was a total of
approximately 350,000 (assuming a 1:1 sex ratio) total lesser prairie-
chickens and the most recent aerial surveys indicate total abundance in
2022, across all four ecoregions, of approximately 26,600 birds.
Comment 71: One commenter noted evidence that populations are
declining and stated that populations are well short of the 10-year
average population size established as part of the Range-wide Lesser
Prairie-Chicken Conservation Plan.
Our response: We acknowledge that the current population levels are
less than the 10-year average population goal established for each
Ecoregion in the RWP. However, we evaluated the best available science
regarding past, current, and likely future population trends for the
lesser prairie-chicken. The determination of whether the species
warrants listing under the Act was informed by an evaluation of the
species' viability as presented in the SSA report, which does not
establish defined population targets. We have not made any
determination as to whether achieving the population goals established
in the Range-wide Lesser Prairie-Chicken Conservation Plan would mean
that the species would not warrant listing under the Act.
Comment 72: One commenter stated that, due to uncertainties
associated with population estimates, the data are insufficient to
determine that the populations have declined.
Our response: As discussed in response to Comment 61, the SSA and
our determination used the best available scientific information
regarding past, current, and likely future population trends for the
lesser prairie-chicken. As with any science, there are limitations
associated with these data and the Service has been explicit about
these limitations for transparency and to ensure that these limitations
were fully considered while making our decision regarding the status of
the species under the Act. We did not only consider population trends
but also used our analysis of threats, conservation efforts, and
habitat to inform our listing determination.
Comment 73: One commenter stated that the Service ignored the 2020
aerial survey results and relied too heavily upon the Hagen et al. 2017
study of quasi-extinction risks and pointed out limitations associated
with that analysis.
Our response: We included the results of the aerial surveys,
including the 2020 aerial survey, within our SSA report, and those
survey results were fully considered in making our determination. While
the Service considered the results of the Hagen et al. 2017 study in
our analysis, we explicitly acknowledged the limitations associated
with that study. One key limitation is that the analyses were based
only on simulating demographic variability of populations and did not
incorporate changing environmental conditions related to habitat or
climate. Other limitations include the challenges of these data
resulting from ground-based survey efforts as noted in Zavaleta and
Haukos (2013, p. 545) and Cummings et al. (2017, pp. 29-30). While
summarizing the information on the likely future population trends of
the lesser prairie-chicken, we provide a summary of all available
studies that project future trends. Each of these studies has specific
limitations associated with them, and those limitations were fully
considered while making our determination with regard to the status of
the species.
Comment 74: Multiple commenters stated that using the 5-year
average to report the current population estimate is misleading and
that by doing so the Service precluded the aerial survey results from
prior to 2015.
Our response: As stated in the SSA report, the results of the
aerial survey efforts should not be taken as precise estimates of the
annual lesser prairie-chicken population abundance, as indicated by the
large confidence intervals. The best use of this data is for long-term
trend analysis, and conclusions should not be drawn based upon annual
fluctuations. This is why we report the population estimate for the
current condition as the average of the past 5 years of surveys. The
decision on how to best present the aerial survey data was made in
close coordination with the State wildlife agencies who recommended
this approach to the Service. While we use the 5-year average to
estimate current population abundance for each ecoregion, this does not
mean that we precluded the inclusion of aerial survey results prior to
2015 from our analysis. The figures in chapter 3 of the SSA report
include the annual results from aerial survey efforts since 2012 when
the surveys began, and this information was fully considered as part of
our decision.
Comment 75: One commenter stated that Garton et al. (2016)
concluded that populations are unlikely to fall below critical
thresholds in the next 30 years, and that Hagen et al. 2017 concluded
that the lesser prairie-chicken now occupies areas in northern Kansas
that previously did not support the lesser prairie-chicken. The
commenter concluded that these studies indicate that the species is
healthy and that the Service must therefore revise the SSA.
[[Page 72724]]
Our response: Garton et al. (2016) used data collected through
2012, but Hagen et al. 2017 has since been updated to include data
collected through 2016 and is included in the SSA report. The
documented occupancy of areas that previously supported very limited
numbers of lesser prairie-chicken in the Short-Grass/CRP Ecoregion was
fully discussed in the SSA report, included in our analysis, and fully
considered as part of our determination. We have concluded that the
best available science does not support the commenter's assertion that
the species is healthy, and we are finalizing the proposal to list the
species under the Act.
Comment 76: Multiple commenters noted that since 2013 the number of
estimated leks included as part of the aerial survey report has nearly
doubled. The commenters stated that the Service must revise the SSA
report to include this information.
Our response: The abundance estimates included in the aerial survey
report are a function of the estimated number of leks and the average
number of birds per lek. The number of estimated leks will fluctuate
annually depending upon precipitation. The inclusion of this metric in
the SSA would not be a metric that would further inform our decision
with regard to the status of the species under the Act because it does
not accurately reflect the population health of the species.
Comment 77: One commenter stated that the Shinnery Oak Ecoregion
historically had lower populations as compared to other ecoregions
because it contained less preferable habitat, and when analyzing
population trends the Service should use the 2012 aerial survey results
as our baseline for this ecoregion to determine if populations have
declines.
Our response: The best available science indicates that the
Shinnery Oak Ecoregion did not historically have lower population
estimates as compared to other ecoregions. Estimates for the Shinnery
Oak Ecoregion included in the SSA report show that in the mid-1980s
there were an estimated 20,000 males (40,000 total birds if one assumes
a 1:1 sex ratio) in this ecoregion. For comparison purposes, the Short-
Grass/CRP Ecoregion, which now supports the largest population of
lesser prairie-chickens, historically supported few, if any, lesser
prairie-chickens. The SSA report provides a detailed summary of the
best available scientific information with regard to habitat
preferences by the lesser prairie-chicken in each ecoregion and
provides a summary of the best available information related to
population abundance per ecoregion. As discussed in response to
Comments 17 and 18, the best available science does not support
evaluating population status based upon annual fluctuations or short-
term trends.
Comment 78: One commenter discussed the 50/500 rule introduced by
Franklin (1980) and noted that the effective population sizes of the
lesser prairie-chicken both rangewide and in each specific ecoregion
are unlikely to fall below 50 or 500 individuals and thus the data
indicate that current populations of lesser prairie-chicken are more
than sufficient to perpetuate the species.
Our response: We note that the 50/500 rule is a general rule and
should not be conflated with meeting the definition of a threatened or
endangered species under the Act. The 50/500 rule is a theory that
states that any population with an effective breeding size of less than
50 is at immediate risk of extinction purely due to demographic
fluctuations, which occur in all populations. The theory also outlines
that populations of less than 500 are at long-term risk of extinction
due to loss of genetic variation resulting in loss of ability to
respond to environmental variation. It is also important to note that
many authors have questioned whether 500 individuals is adequate to
prevent loss of genetic variation. For example, Lande (1995, entire),
suggested that populations of less than 5,000 individuals would be
subject to loss of genetic variation and increased risk of extinction.
There is no single minimum population size number for all taxa, and
extinction risk depends on a complex interaction between life-history
strategies, environmental context, and threat (Flather et al. 2011,
entire). As referenced in the SSA report, the data and methodology used
Hagen et al. (2017) to both calculate population abundance estimates in
the past as well as to project future populations and extinction risks
has limitations. A key limitation associated with this study is that
the analysis was based only on simulating demographic variability of
populations and did not incorporate changing environmental conditions
related to habitat or climate. We consider all of the context presented
with each study, and we make our listing determination based on all
factors evaluated.
Comment 79: One comment stated that the Service should not be
considering the lesser prairie-chicken for listing as the Service has
analyzed listing for nearly two decades and found the species to be not
warranted for listing in the past despite previous populations being
lower than current numbers.
Our response: Beginning in 1998, we annually determined that the
species warranted listing but was precluded by higher priority actions
until 2012, when we proposed the lesser prairie-chicken for listing. On
April 10, 2014, we published a final rule listing the lesser prairie-
chicken as a threatened species under the Act (79 FR 19974) and
concurrently published a final 4(d) rule for the lesser prairie-chicken
(79 FR 20073). However, on September 1, 2015, the final listing rule
for the lesser prairie-chicken was vacated by the United States
District Court for the Western District of Texas, which also mooted the
final 4(d) rule. We received a new petition to list in 2016 and on
November 30, 2016, we published a substantial 90-day finding (81 FR
86315) and have been evaluating the status of the species since that
time. Please see the Previous Federal Actions section of the proposed
listing rule for more details on the listing history of the lesser
prairie-chicken (86 FR 29432, June 1, 2021). Regardless, any past
decisions regarding the status of the species do not have any impact on
the current decision. This listing determination is made based on the
best available information.
Comment 80: One commenter stated that based upon current estimates
from the aerial survey efforts, population abundance is similar to
levels observed in 2003 and the 1960s.
Our response: As discussed in our response to Comment 62, the SSA
report and our determination used the best available scientific
information regarding past, current, and likely future population
trends for the lesser prairie-chicken. As with any science, there are
limitations with this information and any interpretations of those data
must be made with those limitations in mind. One specific limitation
associated with the population reconstruction data is that survey
effort used to estimate population abundance in 1960 was very limited,
and it was not until approximately 1970 that survey effort increased.
In 1964 those data estimated approximately 50,000 males (100,000 total
birds if a 1:1 sex ratio), by 1967 estimates were greater than 100,000
males (200,000 total birds if assume 1:1 sex ratio is assumed), and in
the early 2000s there were greater than 50,000 males (100,000 total
birds if a 1:1 sex ration is assumed). Current aerial survey estimates
indicate the 5-year average range-wide population of 32,210 total
birds. The best available scientific information does not support the
statement that lesser prairie-chicken
[[Page 72725]]
population abundance is similar today to what was estimated for the
1960s and 2003.
Comment 81: Multiple commenters discussed the methodology used in
the Garton et al. (2016) and Hagen et al. (2017) population
reconstruction effort. They stated that this information is incomplete
and misleading due to concerns with the methodology and lack of
availability of underlying data. Additionally, multiple commenters
noted that the population reconstruction estimates provided by Hagen et
al. 2017 for the years of 1963-1969 indicate a rapid population
increase and that precipitation patterns for those same periods show
drought conditions. The commenters concluded that this estimate would
indicate that the population data in that data set are not reliable.
Our response: As discussed in our response to Comment 30, we must
make listing determinations based upon the best available scientific
data. Additionally, as discussed in response to Comment 61, the SSA and
this final rule used the best available scientific information
regarding past, current, and likely future population trends for the
lesser prairie-chicken. As with any scientific analysis, there are
limitations with this information and any interpretations of those data
must be made with those limitations in mind. While the data and
methodology used to produce the population reconstruction estimates
provided by Garton et al. (2016) and Hagen et al. (2017) certainly have
limitations, they still represent the best available scientific
information regarding past population estimates. Within the SSA report,
we explicitly identify these limitations by noting, ``The Service has
identified concerns in the past with some of the methodologies and
assumptions made in this analysis which largely still remain,'' and the
challenges of these data are noted in Cummings et al. (2017, pp. 29-30)
and Zavaleta and Haukos (2013, p. 545). While these concerns remain,
including the very low sample sizes particularly in the 1960s, Garton
et al. (2016) and Hagen et al. (2017) represent the only attempts to
compile the extensive historical ground lek count data collected by
State agencies to estimate rangewide population sizes. We fully
considered these limitations within our evaluation and this final rule.
Comment 82: Two commenters suggested that the Service should
combine survey data from the various methodologies and data sets used
to estimate population abundances in the period 1995-2020 to analyze
trends for the Shinnery Oak Ecoregion.
Our response: As discussed in response to Comment 61, the SSA
report and our determination used the best available scientific
information regarding past, current, and likely future population
trends for the lesser prairie-chicken. As with any scientific analysis,
there are limitations associated with these data. While these studies
represent the best available data for those timeframes, each
methodology contains assumptions and limitations specific to that
specific study and thus it is not appropriate to combine estimates from
across methodologies into one graphic or table. When evaluating
populations, we use these data only to compare trends. These trends
consistently reveal declining populations.
Comment 83: Three commenters provided their own population
projections based upon their assumption that a percentage of habitat
loss would result in an equivalent decrease in populations. They both
concluded that the lesser prairie-chicken would fall below the critical
thresholds of 50 or 500.
Our response: As discussed in our response to Comment 1, there is
not scientific support to indicate that a loss of a certain percentage
of habitat would result in an equivalent loss of that same percentage
of the population. While we agree that there is a direct relationship
between habitat availability and population trends, the location of
additional habitat losses or gains will dictate the magnitude of
population response to those changes. Thus, while we can conclude there
is a direct relationship between population trends and habitat
availability, we cannot conclude that a given percent reduction of
habitat will result in a given percent reduction in population
abundance. Additionally, as discussed in our response to Comment 78, it
is important to note that the 50/500 rule is a general rule that was
intended to project future risk of populations falling below a certain
level. This concept should not be conflated with meeting the definition
of a threatened or endangered species under the Act.
Comments on Conservation Efforts
Comment 84: One commenter stated that, instead of listing, the
Service should work with USDA to get wildlife food plots included as a
part of CRP, as this effort would benefit the lesser prairie-chicken.
Our response: The CRP already provides substantial benefits to the
lesser prairie-chicken as outlined throughout the SSA report. We are
not aware of any evidence that inclusion of wildlife food plots as part
of CRP would result in additional conservation benefits for the lesser
prairie-chicken, nor did the commenter provide any data to support this
suggestion.
Comment 85: Multiple commenters stated that the Service did not
consider conservation efforts as required by PECE (our policy for
evaluation of conservation efforts when making listing decisions). They
stated that we did not conduct a rigorous analysis of conservation
efforts as required by PECE of each conservation effort and thus that
we had not given adequate consideration or weight to those existing
efforts. Commenters also noted that we did perform a PECE analysis for
the existing conservation banks.
Our response: PECE is inapplicable in this situation because the
purpose of PECE (68 FR 15100, March 28, 2003) is to ensure consistent
and adequate evaluation of recently formalized conservation efforts
when making listing decisions. The policy provides guidance on how to
evaluate conservation efforts that have not yet been implemented or
have not yet demonstrated effectiveness. The evaluation focuses on the
certainty that the conservation efforts will be implemented and the
certainty of effectiveness of the conservation efforts. The policy
presents nine criteria for evaluating the certainty of implementation
and six criteria for evaluating the certainty of effectiveness for
conservation efforts. The result of a PECE analysis is that either
there is adequate certainty that the new effort can be considered in
the listing determination or there is not adequate certainty that the
effort will be implemented and effective and thus it should not be
considered.
The conservation efforts cited are ongoing (not new) and have a
track record of implementation and effectiveness. Because these have
already been in place and have a track record regarding effectiveness,
we did not conduct a PECE analysis. Rather, the current and projected
future effects of these conservation measures are fully included in our
SSA. Because these conservation measures were fully considered within
the SSA, they are also fully incorporated into the resulting listing
determination. Therefore, separate analyses for these efforts are not
needed under PECE.
Comment 86: One commenter stated that, in addition to the existing
conservation efforts currently in place, other programs that have not
been given an opportunity to operate can further encourage and enhance
lesser prairie-chicken conservation efforts. Programs
[[Page 72726]]
such as the Stakeholder Conservation Plan that was developed by a
coalition of oil and gas, agriculture, and environmental groups have
not been given the opportunity to be introduced to landowners.
Our response: We are not aware of any other conservation efforts
that are reasonably certain to occur and have beneficial impacts to the
species. Specifically, the Stakeholder Conservation Plan is not a
formalized plan or effort. This strategy was being developed for the
purposes of seeking a section 10(a)(1)(B) permit under the Act. The
strategy has not yet been finalized and thus is not considered in our
analysis.
Comment 87: Multiple commenters noted deficiencies and corrections
that are needed to the Range-Wide Conservation Plan for the Lesser
Prairie-Chicken administered by the Western Association of Fish and
Wildlife Agencies. Some commenters simply noted their concerns while
others noted that the Service should not rely upon the plan while
making determinations around the status or 4(d) rule.
Our response: While we fully incorporated the current and likely
future conservation benefits being provided by the Range-Wide
Conservation Plan for the Lesser Prairie-Chicken, we acknowledge the
uncertainties associated with the plan and the potential effects of
those uncertainties on the current and likely future benefits within
the SSA report. These uncertainties were considered as part of the
listing determination.
Comment 88: Two commenters stated that listing the lesser prairie-
chicken would not provide any additional conservation for the species
beyond what already exists.
Our response: The Act requires the Service to make a listing
determination using the best available scientific and commercial data
after conducting a review of the status of the species and after taking
into account those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation to
protect such species. Listing of the lesser prairie-chicken will result
in significant new conservation for the species. The prohibitions
outlined in this listing rule will now provide additional protections
for the lesser prairie-chicken and its habitat beyond what is already
outlined within the existing regulatory mechanisms section of the SSA
report and this rule. Additionally, conservation measures provided to
species listed as endangered or threatened species under the Act
include recognition as a listed species, planning and implementation of
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing results in
public awareness, and conservation by Federal, State, Tribal, and local
agencies, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies, including the Service, and the prohibitions
against certain activities are discussed, in part, in the Available
Conservation Measures section of this document.
Voluntary programs, such as the Service's Partners for Fish and
Wildlife program and the Natural Resources Conservation Service's Farm
Bill programs offer opportunities for private landowners to enroll
their lands and receive cost-sharing and planning assistance to reach
their management goals while providing take coverage. The recovery of
endangered and threatened species to the point that they are no longer
in danger of extinction now or in the future is the ultimate objective
of the Act, and the Service recognizes the vital importance of
voluntary, nonregulatory conservation measures that provide incentives
for landowners in achieving that objective. We are committed to working
with landowners to conserve this species and develop workable
solutions.
Comment 89: One commenter cited a report generated by Defenders of
Wildlife, which estimated the amount of habitat lost since the 2015
court decision that removed the protections of the Act for the lesser
prairie-chicken, and stated that this is evidence that conservation
efforts have not adequately protected the species.
Our response: We are aware of the report and cited it in our SSA
report. Pursuant to the requirements of the Act, we used the best
available information to complete a thorough analysis of existing
impacts and existing conservation efforts, and we considered the likely
future implications of impacts and conservation efforts on the lesser
prairie-chicken. The Defenders report includes some limitations; for
example, much of their analysis areas falls outside of the lesser
prairie-chicken estimated range (Defenders of Wildlife 2020, entire).
Thus, it is not directly comparable to our analysis of habitat loss.
Comment 90: One commenter stated that NRCS and FSA did not provide
formal comments on the SSA report and noted that NRCS and FSA could
have provided input to inform the conservation projections included in
the SSA.
Our response: We provided the opportunity for Federal partners
delivering conservation programs benefiting the lesser prairie-chicken
and the State wildlife agencies an opportunity to review the draft SSA
report. While neither NRCS nor FSA provided comments related to the SSA
report during the public comment period, the agencies did previously
provide input that was used to inform the conservation projections in
the SSA analysis. Specifically, while characterizing the past, current,
and likely future benefits of the programs administered by NRCS and
FSA, we worked directly with staff from both agencies. Employees from
both agencies first assisted us by providing the detailed information
presented in chapter 3 of the SSA report regarding past and current
benefits of their programs. Next, they assisted the Service in
detailing the assumptions around the likely future benefits of the
programs by providing the Service with program-specific information and
discussing the likely future expected benefits of those programs.
Comment 91: One commenter asked how much long-term conservation has
been achieved, how effective that conservation has been, and how much
more is needed to achieve recovery.
Our response: We detail all conservation efforts within chapter 3
of the SSA report, including long-term conservation, for the lesser
prairie-chicken. After a final listing determination, the Service will
begin the recovery planning process where we identify conservation
goals that could lead to either downlisting or delisting.
Comment 92: One commenter stated that our assumption around no net
change in acreage under CRP fails to take into account the number of
new acres of CRP that will likely convert cropland to grassland as a
result of increased CRP payments under E.O. 14008 section 216.
Our response: From discussions with conservation partners within
the range of the lesser prairie-chicken, the increase in rental payment
included under E.O. 14008 will simply prevent declines in program
participation, not result in increased acreage within the range of the
lesser prairie-chicken. We do not expect that E.O. 14008 would result
in increased participation over the next 25 years to a level that would
impact our assumptions around no net change in future CRP acreage
within the range of the lesser prairie-chicken.
Comment 93: Multiple commenters stated that the Service did not
fully
[[Page 72727]]
consider conservation efforts designed for industry enrollment.
Specifically, comments noted that one of the key principles of
agreements such as the Range-Wide Conservation Plan for the Lesser
Prairie-Chicken and the associated oil and gas CCAA is to create
financial incentives to minimize impacts to the species by minimizing
new acreage impacted through co-location of development.
Our response: We fully considered efforts to co-locate impacts from
conservation efforts designed for industry enrollment and specifically
the industry enrollment in the efforts administered by WAFWA. We
accomplished this by including assumptions, detailed below, which were
informed by analyses conducted by WAFWA, within our analysis projecting
the future effects of oil and gas development within the SSA report.
For details on this, please see appendix C of the SSA report (Service
2022). After projecting the number of new wells that will be drilled
per ecoregion that would impact potentially usable space for the lesser
prairie-chicken, we then converted the number of wells to the number of
acres that will be impacted by those wells. To calculate the actual
estimated impacts, we begin with 69.9 ac (28.3 ha) per well, which is
the area of a circle with a 984-ft (300-m) radius, which we concluded
for this analysis is the impact of an individual well on the lesser
prairie-chicken. We then estimated how much of the area for each well
is likely to be already impacted by existing features. WAFWA estimated
that, on average, new wells mitigated through their mitigation strategy
overlapped existing features by 56.7 percent. Additionally, WAFWA had
previously estimated that, prior to the range-wide conservation plan
implementation, wells overlapped existing features by 42 percent. In
February 2019, WAFWA also estimated that approximately 25 percent of
wells drilled within the range of the lesser prairie-chicken were being
mitigated for under their mitigation strategy in 2017. Based on that
information, we concluded that 25 percent of new wells would have an
overlap of 56.7 percent with existing infrastructure, and 75 percent of
new wells would have an overlap of 42 percent. Using the weighted
average, we estimated that, when overlap is considered, each new well
would impact 38 acres. We fully incorporated the efforts to co-locate
infrastructure while projecting the likely future impacts of oil and
gas development within the SSA report and thus we fully considered
those efforts in our decision.
Comment 94: Multiple commenters stated that we did not fully
consider that the CHAT (crucial habitat assessment tool) categories
that were included under the Range-Wide Plan implemented as part of the
oil and gas CCAA administered by WAFWA have created avoidance of those
priority conservation areas and that industry is avoiding high-quality
habitat.
Our response: The best available information that we have does not
indicate that the Range-Wide Plan and the associated oil and gas CCAA
have resulted in industry avoiding higher quality lesser prairie-
chicken habitat and placing wells in spaces of less value to the lesser
prairie-chicken. To evaluate this assertion, a comprehensive analysis
is needed of wells being processed under the mitigation framework and
also those wells for which companies are choosing not to mitigate.
WAFWA provided a snapshot of this scenario when they analyzed all the
wells drilled in the range of the lesser prairie-chicken in 2017 and
provided a summary of their findings to the Advisory Committee of the
RWP in February of 2019. This analysis indicated that a total of 656
wells were drilled across the lesser prairie-chicken range in 2017. Of
those, 308 were drilled by companies enrolled in the rangewide plan or
CCAA, and the remaining 348 wells were drilled by companies not
participating in those agreements. Of those 308 wells drilled by
participating companies, only 161, or less than 25 percent of the total
number of drilled wells, were enrolled in the mitigation program. This
information, while limited in its scope, represents the best available
information regarding this issue, and we fully considered it in making
our determination.
WAFWA also produced a habitat quality index, which combined the
habitat quality and the CHAT category, and found that wells that were
drilled by participating companies that were not mitigated for had a
higher habitat quality index, which would have resulted in increased
mitigation costs as compared to wells that the same enrolled companies
did mitigate. Based upon this finding, WAFWA concludes, ``Oil and gas
companies appear to be making a conscious choice to avoid mitigating
for wells in higher quality habitat,'' and ``Wells drilled by
participants that were not mitigated under the plan had the highest
habitat quality and per well mitigation costs'' (WAFWA 2019,
unpaginated). While there are financial incentives to minimize impacts
on wells mitigated for going through the mitigation framework, there is
no evidence to support the assertions that the industry is completely
avoiding high-priority CHAT areas or areas with higher habitat quality.
Comment 95: One comment stated that having two DPSs will reverse
the gains that have been made by the WAFWA CCAA to work on increased
dispersal between and amongst ecoregions using focal areas and
connectivity zones.
Our response: The CCAA covering oil and gas development
administered by WAFWA adopted a mitigation framework outlined in the
Range-wide Conservation Plan for the Lesser Prairie-Chicken, which was
also developed by WAFWA. While this mitigation strategy incorporates
focal areas and connectivity zones, it is important to note that there
are no focal areas or connectivity zones connecting the Southern DPS
(Shinnery Oak Ecoregion) to the Northern DPS (Mixed-Grass, Sand
Sagebrush, and Short-Grass/CRP Ecoregions). Through this effort, there
has been no attempt at reestablishing dispersal between the Shinnery
Oak Ecoregion and the rest of the range and thus there have been no
gains that would be reversed.
Comment 96: One comment stated we ignored conservation efforts by
private entities. In regard to the removal of infrastructure by private
entities, the commenter notes that we stated we do not have data but
points out that we did project future well drilling based upon past
rates.
Our response: We only project restoration efforts for the removal
of energy infrastructure occurring through the identified entities
delivering conservation. We acknowledge that some removal of
infrastructure likely occurs outside of the entities identified, but no
data exist to provide an estimate specific to the likely future efforts
on lesser prairie-chicken usable area within our analysis area. As
accurately noted in the comment, we were able to project future
drilling of oil and gas wells but we did not project future removal of
infrastructure. Data are available to evaluate past trends and rates
with regard to drilling of new oil and gas wells, and thus we were able
to evaluate those data and project future development. However, no data
are available to evaluate past trends and rates with regard to
voluntary removal of infrastructure across our analysis area, and the
commenter provides no data or source of information that could further
inform our analysis, so we have no basis to project future rates of
removal. This situation was explicitly
[[Page 72728]]
acknowledged in our SSA report and was fully considered while making
our listing determination.
Comment 97: One comment stated that the Service failed to quantify
or estimate the positive effect the cessation of hunting had on the
population.
Our response: As described in the SSA report, the lesser prairie-
chicken has not been hunted since 1973 in Colorado, 1996 in New Mexico,
1998 in Oklahoma, 2009 in Texas, and 2014 in Kansas. The positive
benefits of the cessation of hunting restrictions are already reflected
in the current condition status of the species, and we do not expect
any additional benefits to arise.
Comment 98: One comment stated that the Service dismissed existing
efforts and the proposed rule provides insight that conservation
efforts are not worthwhile because they are ``targeted toward
voluntary, incentive-based actions in cooperation with private
landowners'' and that the ``level of future voluntary participation in
these programs can be highly variable depending on available funding
opportunities for other revenue sources, and many other
circumstances.''
Our response: The quoted statements were included in the SSA report
and the proposed rule to acknowledge the uncertainty associated with
projecting the likely future benefit of conservation actions. It is
because of this uncertainty that we project a range of plausible
outcomes (low, medium, and high projections for each conservation
effort). This uncertainty is important for the Service to consider
while evaluating the status of the species as well as making a listing
determination. These statements in the SSA do not imply that these
efforts are not worthwhile or beneficial.
Comment 99: One comment stated that the Service failed to consider
the Service's Land-Based Wind Energy Guidelines (LWEG) as a
conservation effort and its effects on how wind energy development
impacts the lesser prairie-chicken.
Our response: Our analysis of current condition accounts for all
existing wind energy developments in and adjacent to the lesser
prairie-chicken range. These include wind developments that were
constructed before and after the creation of the LWEG. The extent of
avoidance of impacts to lesser prairie-chickens from proactive
conservation and subsequent use of the LWEG by wind energy developers
is reflected in the degree of impacts identified in the current
condition. The SSA fully analyzed and considered these efforts within
our analysis of the current condition in chapter 3 of the SSA report as
we evaluated the actual effects of constructed projects. For future
impacts, we projected acres of future development based upon past rates
and realized impacts of past development and thus we have incorporated
any realized minimization resulting from voluntary siting
considerations (including the LWEG) on the lesser prairie-chicken.
Comment 100: One commenter stated that the renewable energy
industry has addressed lesser prairie-chicken conservation through
voluntary research and mitigation. The commenter stated that these
efforts support reducing ongoing and future threats to the species,
thereby obviating the need for listing.
Our response: A variety of conservation efforts have considered
impacts to the lesser prairie-chicken. We note that while funding for
research can advance the understanding of impacts to the species, it
does not necessarily result in conserving the species. Within the SSA
report, our analysis indicates that, despite conservation efforts, the
lesser prairie-chicken has experienced habitat loss and fragmentation
that has negatively impacted viability of the species. Additionally,
our analysis indicated that despite the level of conservation efforts
in the future, habitat loss and fragmentation is expected to outpace
habitat restoration efforts, resulting in further decreases in
viability. As discussed in the SSA report, additional threats to the
lesser prairie-chicken will further impact the species' status.
Comment 101: One commenter stated that, to allow for independent
evaluation of program effectiveness to inform the conservation status
of the species, spatial data for mitigation areas for programs like the
RWP needs to be publicly available.
Our response: The spatial data associated with mitigation areas
within programs like the RWP and the associated Oil and Gas CCAA are
not publicly available due to privacy concerns of both surface
landowners and mineral development companies. Each agreement
establishes how data will be managed. The relevant data is summarized,
without information identifying specific parcels or mineral interests,
to both provide privacy for private landowners and allow an evaluation
of the effectiveness of the program. We determined that the data that
are publicly available for these programs provide both the public and
the Service enough detail to evaluate the program while still
protecting privacy concerns of landowners and development companies.
Comment 102: One commenter quoted from the proposed rule that the
actual conservation benefit provided to the lesser prairie-chicken by
voluntary conservation programs varies greatly and is difficult to
summarize because it depends on the location and the specific actions
being carried out for each individual agreement. The commenter went on
to say that this statement means that voluntary conservation
agreements, while possibly helpful for conservation, provide no
certainty of success due to their very nature. They stated that there
is no secured funding and no guarantee that participants will enroll in
programs, and programs may need to be severely modified in order to
attract participants.
Our response: We have found voluntary conservation agreements,
based upon their track record, are providing conservation benefits for
the lesser prairie-chicken, and we have no information to indicate
those included in our analysis will not continue to provide benefits.
Within the SSA report we state, ``the actual conservation benefit
provided to the lesser prairie-chicken by programs varies greatly and
is difficult to summarize because it depends on the location and the
specific actions being carried out for each individual agreement''
(Service 2022, p. 96). This statement acknowledges that simply a total
number of acres where conservation efforts are implemented would not be
informative for a biological evaluation of the species. For that
reason, we did not provide the total acres of conservation within
chapter 4 of the SSA report or this final rule. We believe that the
voluntary conservation efforts we discuss in the SSA report and this
rule have demonstrated a history of effectiveness and a certainty to
remain in place. That is why we incorporated the beneficial results of
these efforts into the analysis for the listing determination.
Comment 103: One commenter stated that habitat avoidance by
companies enrolled in the New Mexico CCA/CCAA should be considered. The
comment also stated that because of the New Mexico CCA/CCAA there has
been no loss of habitat to cropland or wind energy development because
private landowners have agreed not to implement these land uses.
Our response: The conservation benefits of the New Mexico CCA/CCAA
were fully considered within the SSA report and the listing
determination. The New Mexico CCA/CCAA does not require avoidance of
lesser prairie-chicken habitat by industry participants
[[Page 72729]]
but does charge a fee to participants for impacts in areas that may
impact the lesser prairie-chicken. These fees are then used to
implement conservation actions to benefit the species. We worked with
the administrator of the New Mexico CCAA to ensure that we accurately
characterized the conservation benefits arising from the program. While
landowners enrolled in the CCAA are prohibited from converting lesser
prairie-chicken habitat to cropland or wind energy development, this
does not mean there has been no additional habitat loss in New Mexico
as not all acres of lesser prairie-chicken habitat in New Mexico are
enrolled. We are aware of multiple impacts, such as energy development
from both wind development and petroleum extraction, which have
resulted in additional habitat loss and fragmentation. Additionally,
impacts to the lesser prairie-chicken beyond cropland and wind energy
development, such as mesquite encroachment, have resulted and will
continue to result in habitat loss for the species as discussed in the
SSA report.
Comment 104: Two commenters stated that the Service incorrectly
discounted the restoration efforts completed by WAFWA within the Sand
Shinnery Oak Ecoregion by not counting efforts to chemically suppress
sand shinnery oak as restoration efforts.
Our response: We define restoration efforts as activities that
convert nonusable area to usable area for the lesser prairie-chicken.
We define enhancement efforts as those activities that enhance area
that is already habitat for the lesser prairie-chicken; these efforts
serve to maintain or increase habitat quality for the lesser prairie-
chicken. While evaluating the benefits being provided by WAFWA through
the RWP and the associated Oil and Gas CCAA, we did not include efforts
to chemically suppress sand shinnery oak as restoration efforts, even
though within their annual reports WAFWA terms these actions as
restoration. We did not include those acres as restoration because
these actions are occurring on acres that are already lesser prairie-
chicken habitat and because the purpose of these efforts is to enhance
or optimize the quality of existing habitat by manipulating the
vegetative composition to reduce the percentage of sand shinnery oak
and increase the percentage of grasses and forbs. As a result, we
considered these actions as enhancement efforts in the SSA analysis.
Comment 105: One commenter stated that the Oil and Gas CCAA
administered by WAFWA has been successful. The comment stated that the
July 2019 audit found no conservation deficiencies and that the Service
provided no indication that steps should be taken to reduce or
eliminate the possibility of listing the lesser prairie-chicken.
Our response: The audit completed in July 2019 found a variety of
deficiencies with the program. These deficiencies included concerns
regarding financial management, accounting, compliance, and
conservation delivery. Since the audit was completed, WAFWA hired a
consultant to assist them with evaluating options to address any
deficiencies with the CCAA. This process culminated with a report
titled ``Range-wide Oil and Gas Candidate Conservation Agreement with
Assurances Realignment Phase 1 Findings and Recommendations'' finalized
in December 2020. This report reaffirms the deficiencies identified in
the 2019 program audit and identifies steps that address those
concerns. This report contains a summary of the financial concerns and
CCAA compliance concerns associated with the CCAA. Additionally, the
Findings and Recommendations report also provides a summary of concerns
that the Service identified regarding the effectiveness of the
mitigation program and the Service' recommended solutions in section
2.5.2. These concerns are related to the lack of emphasis on
restoration efforts, needed increase in the proportion of permanent
mitigation required by the program, adjustments needed to the metrics
used to quantify impacts and offsets, and adjustments needed to the
impact radii assigned to various anthropogenic features. Additionally,
within section 3.3 the Findings and Recommendation report states,
``After extensive review, ICF concurs with the four defensibility
concerns identified by USFWS staff'' and recommends that WAFWA amend
the mitigation framework and adopt the changes recommended by the
Service.
Comment 106: One commenter stated that the grazing analysis is
incomplete. The comment stated that, within the proposed rule, the
Service recognizes that grazing is a dominant land use within the
lesser prairie-chicken range; however, the proposed rule states there
are no data. The comment points out that the Service has annual reports
resulting from two agriculture CCAAs and states that it is wrong for
the Service to make the statement that data do not exist to quantify
rangewide extent of grazing practices and their effects on habitat.
Our response: Within the SSA report we state, ``while domestic
livestock grazing is a dominant land use on untilled range land within
the lesser prairie-chicken analysis area, geospatial data do not exist
at a scale and resolution necessary to calculate the total amount of
livestock grazing that is being managed in a way that results in
habitat conditions that are not compatible with the needs of the lesser
prairie-chicken'' (Service 2022, p. 39). We have annual reports
summarizing the enrollment and actions implemented on enrolled acres
for the agricultural CCAAs to assist us in summarizing the conservation
benefits provide by these programs, which were included within the SSA
report and our determination. We do not have spatially explicit data at
the scale and resolution needed to determine which grazed areas possess
the vegetative composition and structure necessary to support the
lesser prairie-chicken.
Comment 107: One commenter detailed the excess mitigation credits
which are currently enrolled through the mitigation framework being
administered by the Western Association of Fish and Wildlife Agencies
as evidence that the oil and gas industry is committed to the
conservation of the lesser prairie-chicken and thus listing is not
warranted.
Our response: We are aware that in the past the WAFWA has had
excess mitigation credits enrolled through their mitigation framework.
Specifically, WAWFA had more conservation acres enrolled than what was
needed to offset the impacts realized through their mitigation
framework. The conservation benefit provided by these acres providing
the excess mitigation were fully evaluated and considered in chapter 3
of the SSA report. The WAFWA recently completed a process to ``right-
size'' the mitigation program to ensure that program is financially
stable. The end result of this process was a reduction in the amount of
excess mitigation enrolled and thus a decrease in the number of
enrolled conservation acres reported in the ``Conservation Efforts''
section and section 3.4.1.1 of the SSA report (Service 2022). The
unimpacted acres enrolled to provide mitigation decreased from 128,230
acres to a total of 49,717 acres across all five states. This includes
17,000 acres in the mixed grass ecoregion (with 2,708 of those acres
under permanent conservation), 17,708 acres in the sand sagebrush
ecoregion (with 15,810 of those acres under permanent conservation),
6,036 acres in the short grass ecoregion (with 2,915 of those acres
under permanent conservation), and 8,973 acres in the shinnery oak
ecoregion (with 1,208 of those acres
[[Page 72730]]
under permanent conservation). After fully evaluating and considering
the benefits of the conservation programs (this includes the benefits
of the excess mitigation as referenced in the comment) we have
concluded that the best available science does not support the
commenter's assertion that listing is not warranted, and we are
finalizing the proposal to list the species under the Act.
Comment 108: One commenter asserted that, due to success of the
RWP, the species is now more resilient to drought as evidenced by the
relative rates of population decrease during two recent drought
periods. Specifically, the comment stated during the drought period
from 2012 to 2013 (i.e., before the RWP was in effect), there was a
substantial population decline of approximately 47 percent. More
recently, in 2019 to 2020, there was another drought period over some
of the lesser prairie-chicken range; however, there was much less of a
decrease in lesser prairie-chicken populations at approximately 14
percent. The commenter believes this data validates that the
conservation strategy is working and the species is now more resilient
to stochastic events.
Our response: Within the SSA report, we fully evaluated the
benefits being provided by existing conservation efforts, including the
Range-Wide Conservation Plan and associated Oil and Gas CCAA, and thus
those benefits were fully considered within our decision. The drought
occurring from 2019 to 2020 was not as severe or as widespread as the
drought from 2012 to 2013, so we do not expect the effect on abundance
of lesser prairie-chickens to be as extensive. There is no evidence to
support the conclusion that population response to the recent drought
was less severe due to the success of the rangewide conservation plan.
Comment 109: One commenter noted a new conservation program that
could potentially benefit the lesser prairie-chicken. The Southern
Plains Grassland Program through the National Fish and Wildlife
Foundation seeks to work closely with nonprofit and government partners
and the ranching community to bring important financial and technical
resources to address the health and resilience of the grasslands of the
Southern Great Plains with plans to make more than $10 million in
grants available over the next 5 years.
Our response: We added information about this effort to chapter 3
of the SSA report, but we did not make changes to future projections
because no data is available on what actions will be implemented and
where those actions will occur. The actual benefits of this program
will depend upon what applications are submitted and chosen for
funding. This program is a grassland conservation program and not
focused solely on the lesser prairie-chicken, and thus projects will
focus on all grasslands in the Southern Great Plains (not restricted to
lesser prairie-chicken habitat). We acknowledge that the program will
likely result in some future benefits to the lesser prairie-chicken and
considered this idea while making our listing determination but were
not able to quantify the future benefits to the lesser prairie-chicken.
Comment 110: One commenter stated that the Service failed to
consider the benefits of the Dunes Sagebrush Lizard Conservation
Agreements in Texas and the Nationwide Monarch Butterfly CCAA for
Energy and Transportation Lands within our analysis.
Our response: While these conservation programs are being
implemented, we do not believe they are providing or will provide
conservation for the lesser prairie-chicken such that they will impact
the overall viability of the species. While the Dunes Sagebrush Lizard
Conservation Agreements in Texas are being implemented in areas that
overlap with portions of the historical range of the lesser prairie-
chicken, there is no overlap with areas that are currently or have
recently been known to be occupied by the lesser prairie-chicken. The
Nationwide Monarch Butterfly CCAA for Energy and Transportation Lands
largely implements conservation measures to benefit monarch butterflies
within the rights-of-way of existing anthropogenic features. As
discussed in the SSA report, the lesser prairie-chicken largely avoids
areas adjacent to anthropogenic disturbances and these areas are not
considered lesser prairie-chicken habitat. Thus, any conservation
within these areas would not provide conservation benefits for the
lesser prairie-chicken that would affect our analysis related to
species viability.
Comments on Lesser Prairie-Chicken Biology and Threats
Comment 111: Multiple commenters noted the increased populations
and expanded range of the species in the Short-Grass/CRP Ecoregion and
concluded that resilience and adaptability of the species was reflected
by the success of this ecoregion.
Our response: We fully evaluated and considered the increase in
lesser prairie-chicken populations in the Kansas portion of the Short-
Grass/CRP Ecoregion. As discussed in the SSA report, extensive planting
of native mixed- and tall-grass plant species starting in the mid-1980s
resulted in an increase of suitable habitat for the species and an
increase in population abundance. The continued existence of these
newly expanded populations is almost exclusively reliant upon continued
implementation of voluntary, short-term conservation efforts, primarily
CRP. Within our analysis included in the SSA report, we project that
habitat in the Short-Grass/CRP Ecoregion and in the Northern DPS will
decrease. A review of the best available scientific information
indicates that, despite the recent population increases in this one
ecoregion, habitat will continue to decrease across the Northern DPS
and viability of the lesser prairie-chicken in this area will continue
to decrease.
Comment 112: One commenter stated we should have executed more
searches for the species in southwest Nebraska.
Our response: We recognize that lesser prairie-chickens have been
documented in Nebraska based on specimens collected during the 1920s.
Sharpe (1968, pp. 51, 174) considered the occurrence of lesser prairie-
chickens in Nebraska to be the result of a short-lived range expansion
facilitated by settlement and cultivation of grain crops. We
coordinated with the State fish and wildlife agencies related to our
analysis area and determined that there is not enough evidence to
indicate that areas within Nebraska are occupied by the lesser prairie-
chicken; thus, we did not include those areas within our analysis.
Comment 113: One commenter disagreed with our decision to define
usable habitat as areas with at least 60 percent potential usable,
unimpacted land cover within 1 mile. The commenter asserted that lesser
prairie-chickens can carry out their life cycle in areas with a lower
percentage of suitable habitat. They quoted several studies (Hagen and
Elmore 2016; Ross 2016a; Spencer et al. 2017; Sullins et al. 2018) and
concluded that these studies showed that lesser prairie-chickens use
areas with less suitable habitat. The commenter also noted that many
leks currently containing lesser prairie-chickens fall outside the
analysis area defined by these parameters. The commenter concluded that
it was inappropriate for the Service to use the 60 percent number to
define habitat.
Our response: As identified by many authors (Ross et al. 2016a,
entire; Hagen and Elmore 2016, entire; Spencer et al. 2017, entire;
Sullins et al. 2019, entire), maintaining grassland in large blocks is
vital to conservation of the lesser prairie-chicken. Multiple analyses
[[Page 72731]]
support our conclusion that landscapes consisting of greater than 60
percent grassland are required to support lesser prairie-chicken
populations.
Appendix B, part 3 of the SSA report provides a comparison of
publicly available lek data and the areas that met the 60 percent
threshold. This analysis indicates that 90 percent of current leks
detected over the previous 5 years occurred on areas that met the 60
percent potential usable habitat within 1 mile. This analysis is not
used for specific determinations of habitat suitability. We used this
information only as a rough guide to determine if our model captured
the majority of known leks. We interpret this information with caution
as the lek data have limitations, specifically the fact that the
presence of a known lek does not indicate anything about the current
condition of the landscape as all leks from the past 5 years are
considered active. Additionally, the presence of a lek within the past
5 years does not indicate anything about local population health. For
example, lesser prairie-chicken may still be attending a lek site in a
highly fragmented landscape, but those populations may be in the midst
of long-term declines and no longer be capable of maintaining
themselves. This is because lesser prairie-chicken populations will not
disappear immediately but instead would see declines over an extended
period of time before eventually becoming extirpated.
Comment 114: One commenter asked how the lesser prairie-chicken
could be endangered when the Service had stated that only 25,000 ac
(10,120 ha) were needed for conservation of the species, and yet we
have stated that over a million acres are present across the range of
the species.
Our response: Neither the SSA report nor the listing determination
state that only 25,000 ac are needed for the conservation of the
species. The commenter may be referring to a 2012 white paper that
references the need for a minimum of one stronghold per ecoregion that
is a minimum of 25,000 ac, has an easement that addresses both surface
and subsurface management, and is connected to other strongholds
(Service 2012). However, this white paper does not state that only
25,000 ac are needed for the species as a whole, nor does the paper
state that conserving this amount would prevent the need to list the
species as endangered or threatened. We simply recommended that
conservation partners incorporate these concepts into their
conservation planning and delivery efforts for the species. We have not
established a minimum number of acres needed to conserve the species.
Comment 115: One commenter stated that listing was not warranted
because habitat loss has decreased in recent years.
Our response: The comment does not provide any support for this
statement, and we are not aware of any analysis that indicates habitat
loss has decreased in recent years. Our analysis presented in the SSA
report indicates the lesser prairie-chicken has experienced significant
habitat loss and fragmentation and the remaining habitat is highly
fragmented, which has resulted in decreased species viability.
Additionally, we evaluated likely future impacts of habitat loss and
conservation efforts on lesser prairie-chicken habitat and concluded
that habitat loss is likely to outpace efforts to restore habitat and
that we expect the landscape to become more fragmented in the future.
Comment 116: Two commenters asked that we describe what has changed
between the 2013 listing decision and the current listing decision,
including trends in habitat loss.
Our response: We have conducted a comprehensive analysis of the
status of the species that includes new data and new projects on the
impact of conservation efforts. This new analysis, captured in the SSA
report, includes a comprehensive discussion of trends in habitat loss.
Comment 117: One commenter noted that we had stated that (1) areas
containing 20-37 percent cropland negatively affects lesser prairie-
chickens, and (2) per our numbers in the proposed listing rule, we
reported that 2 percent of the total area in the Sand Sagebrush
Ecoregion, 13 percent of the total area in the Mixed-Grass Ecoregion,
and 14 percent of the total area in the Shinnery Oak Ecoregion of
grassland had been converted to cropland in the analysis area of the
lesser prairie-chicken. The commenter concluded that, because all
regions had below 20 percent cropland, agriculture should not be a risk
in these areas.
Our response: The SSA report summarizes recent studies that have
found a response to the gradient of cropland-to-grassland land cover.
Specifically, the studies found that abundances of lesser prairie-
chicken increased with increasing cropland until a threshold of 10
percent cropland was reached and then abundance declined with
increasing cropland cover (Service 2022, pp. 26-27). Also, it is
important to note that we did not conclude that conversion of grassland
to agriculture on its own is the primary concern for the lesser
prairie-chicken but instead we indicate that conversion of grassland to
cropland is one of several activities that contribute to habitat loss
and fragmentation, which has and will continue to result in decreased
viability for populations of lesser prairie-chicken.
Comment 118: Several commenters noted that 2021 was a good rain
year, and they expected that the lesser prairie-chicken populations
would recover as a result of that rain, and thus the two DPSs should
not be listed. Some suggested we needed an additional year of data
post-rain, and another requested we conduct a count to monitor
population trends post-rain.
Our response: As discussed in previous comments, the Act requires
that we use the best available scientific and commercial data when we
make decisions to list a species. Although additional years of data
will be useful in monitoring the status of the species, the Act does
not require us to meet a certain threshold of data before we can list,
and it does not require that we produce new science to fill knowledge
gaps. We affirm that we have used the best available data to make our
listing determination. In addition, as discussed in our response to
Comment 17, we should not evaluate the status of the lesser prairie-
chicken based upon short-term population trends but instead we focus on
long-term population trends tied to habitat availability. One
additional year of survey data would not immediately change our overall
analysis related to the long-term viability of the species.
Comment 119: One commenter stated that the proposed rule had not
provided any information that conversion of lands to agriculture
continues to occur, nor did it assess the impact of increased food
sources from agricultural crops.
Our response: Within section 4.3.1.1 of the SSA report, we include
an extended discussion regarding the future impacts of conversion of
grassland to cropland and we explicitly project the likely future
impacts of this action to the lesser prairie-chicken.
Comment 120: One commenter asserted that our decision to list both
DPSs was based solely on future projections related to habitat loss and
that the Service assumed that population trends would decline to
historical lows.
Our response: As we detail in the SSA report, long-term population
trends for the lesser prairie-chicken that span multiple precipitation
cycles are the best measure of population health as they will better
reflect the true trajectory of the population. While we do analyze and
consider all future impacts and
[[Page 72732]]
conservation efforts within the SSA report, we detail that long-term
population trends for this species are largely tied to habitat
availability and thus analyzing habitat availability is the best index
for species viability based upon the best available scientific
information. Additionally, as noted in Comment 44 in regard to the
Southern DPS, we found that this DPS meets the definition of an
endangered species based on our review of its current condition.
Comment 121: Multiple commenters felt the assessment of predation
in the proposed rule and the effect on lesser prairie-chicken was
understated and inadequate, and research needs to be done into the
effect of predation on lesser prairie-chicken or how to ameliorate the
threat of predation.
Our response: We reviewed the best available scientific information
with regard to predation in the SSA report (Service 2022, p. 43). We
conclude that the potential influence of predation on lesser prairie-
chicken, beyond natural levels, is primarily tied to habitat quantity
and quality; thus, the habitat quantity and quality factors discussed
in the SSA report are likely to influence future predation risk for the
lesser prairie-chicken. Further discussion is in the Predation section
of the SSA report. While additional research could be conducted on all
of the threats to the lesser prairie-chicken, as discussed in our
response to Comments 30 and 118, we must make listing decisions based
solely upon the information available to us at the time of the
decision. We cannot wait for additional science to become available.
Comment 122: One commenter disputed the fact that predation from
raptors is a threat and mentioned a study stating that only one percent
of lesser prairie-chicken mortality was due to raptors; however, they
did not specify which study they were referring to. The commenter
stated that our conclusion on avian predators as a threat was contrary
to that study and to another by Behney et al (2012).
Our response: In the SSA report, we review the best available
science, including the Behney et al. (2012) study related to predation
and the lesser prairie-chicken, and note that raptor predation is
likely not a large influence on the species. It is important to note
that we use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. As discussed in Regulatory and
Analytical Framework, the term ``threat'' includes actions or
conditions that have a direct impact on individuals (direct impacts),
as well as those that affect individuals through alteration of their
habitat or required resources (stressors). A negative impact on an
animal does not need to meet a certain threshold of harm to a species
or its habitat in order to be considered a threat, and the mere
identification of any threat(s) necessarily mean that the species meets
the statutory definition of an endangered species or a threatened
species.
The potential influence of predation on lesser prairie-chicken,
beyond natural levels, is primarily tied to habitat quality; thus, the
factors that we discussed in the SSA report that are likely to
influence habitat quality or influence predators in a way that
increases predation risk for the lesser prairie-chicken could have an
influence on the lesser prairie-chicken in the future. As more
thoroughly discussed in section 3.3.2.6 of the SSA report, some level
of predation, including by raptors, is natural and would not affect the
lesser prairie-chicken at a population level (Service 2022, pp. 43-44).
For the lesser prairie-chicken the primary concerns related to
predation are associated with increases in raptors associated with
anthropogenic disturbances and habitat degradation resulting increased
exposure of individual to predators. Within the SSA report, we do not
quantify any of the potential future effects associated with predation
and simply acknowledge that they could influence the lesser prairie-
chicken in the future.
Comment 123: One commenter stated that, because lesser prairie-
chicken populations are small and isolated, disease could not be a
threat as it could not spread easily.
Our response: Within the SSA report we reviewed the best available
science related to disease and concluded that, currently, no
information exists to suggest that parasites or diseases play a
significant role in the population trends for the lesser prairie-
chicken (Service 2022, p. 44).
Comment 124: One commenter asked about a statement in the SSA
report that impacts from collision could not be quantified, then
mentioned a study that provides some quantification of fence mortality;
however, they did not specify which study they meant. The commenter
then noted that the impact from collisions was very small.
Our response: The commenter did not provide a specific page number,
but they may have been quoting the general statement in the SSA report
that there were several factors that could not be quantified as a part
of our geospatial model (Service 2022, p. 21). This does not mean that
quantitative data do not exist on collision, but that they do not exist
on the scale that would allow us to include them in our geospatial
model. We concur with the commenter that the impact from fences is
likely small and will continue to be small into the future, except for
localized effects in areas with high densities of fences (Service 2022,
p. 43, 92).
Comment 125: Several commenters stated that cultivated grain seems
important for lesser prairie-chicken, and asked if the decline of the
species may be related to less available sorghum, milo, and other
cultivated grains.
Our response: The role of cultivated grains is considered within
chapter 3 of the SSA report. Specifically, grain crops are used by
lesser prairie-chickens, but the best available information does not
indicate that they are necessary for the species. We found that food is
likely rarely limiting for lesser prairie-chickens, and grains are
likely used opportunistically and are not necessary for survival.
Because cultivated grain crops may have provided increased or more
dependable winter food supplies for lesser prairie-chicken (Braun et
al. 1994, p. 429), the initial conversion of smaller patches of
grassland to cultivation may have been temporarily beneficial to the
short-term needs of the species as agricultural practices made grain
available as a food source (Rodgers 2016, p. 18). However, as
agricultural conversion of native prairie to cropland increased, more
recent information suggests that landscapes having greater than 20 to
37 percent cultivated grains may not support stable lesser prairie-
chicken populations (Crawford and Bolen 1976a, p. 102). More recently,
Ross et al. (2016b, entire) found a response to the gradient of
cropland-to-grassland land cover. Specifically, they found abundances
of lesser prairie-chicken increased with increasing cropland until a
threshold of 10 percent cropland was reached and then abundance
declined with increasing cropland cover. While lesser prairie-chicken
may forage in agricultural croplands, croplands do not provide for the
habitat requirements of the species' life cycle (cover for nesting and
thermoregulation), and thus lesser prairie-chickens avoid landscapes
dominated by cultivated agriculture, particularly where small grains
are not the dominant crop (Crawford and Bolen 1976a, p. 102).
Comment 126: One commenter stated the impact of farming has been
overstated in the proposed rule, that little conversion has occurred in
recent decades, and in fact, woody vegetation
[[Page 72733]]
has much greater projected future impacts.
Our response: Within chapter 3 of the SSA report, we quantify how
many acres have been converted from grassland to cropland. We
acknowledge in the SSA report that conversion associated with farming
was mostly historical in nature and that is no longer occurring at the
same rates. While projecting future impacts related to the conversion
of grassland to cropland, we conclude that, based upon the best
available science, we do not expect conversion to occur at the same
rates that were historically witnessed. We project future rates based
upon the best available data regarding recent rates of conversion. We
also analyzed the impacts of woody vegetation encroachment in our SSA
report. Our analysis indicates that while historically impacts from
conversion to cropland has outpaced woody vegetation encroachment,
overall, the future impacts from woody vegetation encroachment are
likely to be greater than future conversion of grassland to cropland.
Comment 127: Multiple commenters asserted that drought and/or
climate change are the primary threats impacting the lesser prairie-
chicken, and, because there is no way for humans to affect the
magnitude and severity of drought, listing the species would not change
drought, and therefore the species should not be listed. Additional
commenters argued that the Service should focus on various natural
threats overall rather than human-caused threats. For example, some
stated that the Service should address predation or drought first
rather than limiting human activities like oil and gas.
Our response: Within the SSA report and the listing rule, we
provide information regarding the implications of both drought and
climate change to the lesser prairie-chicken, and we identified habitat
loss and fragmentation as the primary threat to the lesser prairie-
chicken. As discussed in our responses to Comments 30 and 36, we must
make listing determinations solely on the five factors identified in
the Act, and on the best scientific and commercial data available. We
cannot consider other factors such as whether a species can easily be
recovered or the source of threats.
Once the DPSs are listed as endangered or threatened, we then begin
the recovery planning process where we fully evaluate what conservation
actions are needed to address the threats to each DPS. Section 4(f) of
the Act calls for the Service to develop and implement recovery plans
for the conservation of endangered and threatened species. The recovery
planning process begins with development of a recovery outline made
available to the public soon after a final listing determination; see
Available Conservation Measures for more details. We will continue to
work with our partners and the public throughout the recovery planning
process.
Comment 128: Two commenters stated that the Service did not
consider the positive effects of climate change on lesser prairie-
chickens. They asserted that one of the main food items for lesser
prairie-chickens, grasshoppers, do much better in hot, dry weather, and
continued that this increase in grasshoppers during drought periods
would increase chick survival. They concluded that the Service needs to
consider positive effects of climate change with the same rigor as
negative ones.
Our response: Chapter 4.3.2 of the SSA report contains a summary of
the best available science related to the implications of climate
change on the lesser prairie-chicken. The best available scientific
information related to drought and lesser prairie-chicken is included
throughout the SSA report, and we discuss prolonged and extreme drought
in section 3.3.3 of the SSA report. One of the primary points outlined
in the SSA report is that in past decades, fragmentation of lesser
prairie-chicken habitat was less extensive than it is today,
connectivity between occupied areas was more prevalent, and populations
were larger, allowing populations to recover more quickly. In other
words, lesser prairie-chicken populations were more resilient to the
effects of stochastic events such as drought. As lesser prairie-chicken
population abundances decline and usable habitat declines and becomes
more fragmented, their ability to rebound from prolonged drought is
diminished.
Our SSA report further acknowledges that periods with favorable
climatic conditions will support times of high reproductive success
(Service 2022, p. 91); we fully considered increased incidence of these
favorable boom years and other potential favorable effects of climate
change (such as increases in grasshopper populations) in examining the
status of the species. However, a shift in climatic conditions to more
frequent and intense drought cycles is expected to result in more
frequent and extreme bust years for the lesser prairie-chicken and
fewer boom years. As the frequency and intensity of droughts increase
in the Southern Great Plains region, there will be diminishing
opportunity for boom years with above-average precipitation. Overall,
this may lessen the intensity of boom-and-bust lesser prairie-chicken
population cycles in the future (Ross et al. 2018, entire). These
changes will reduce the overall resiliency of lesser prairie-chicken
populations and exacerbate the effects of habitat loss and
fragmentation.
Comment 129: One commenter asked if protections of the Act would
extend to parasites and viruses of the lesser prairie-chicken, as they
affect the breeding behavior of the species.
Our response: No. This final rule relates solely to the Northern
and Southern DPSs of the lesser prairie-chicken, and not to any other
species.
Comment 130: One commenter asked if the listing would require
sources of collisions, such as fences and power lines, to be removed.
Our response: The prohibitions set forth in section 9 of the Act,
and included under our section 4(d) rule for the Northern DPS, would
prohibit any individual implementing an action after the effective date
of this listing that results in ``take'' of lesser prairie-chickens, as
defined in the Act. The installation of features such as fences or
powerlines has the potential to impact the species and, in some cases,
result in take. Continued operations and maintenance of existing
features that the lesser prairie-chicken are known to avoid is unlikely
to result in take as the impacts to species primarily occur upon
construction. For those features that the lesser prairie-chicken do not
avoid, collisions with those features which cause death or injury would
meet the definition of ``take.'' In the case where infrastructure is
causing take, we will work with operators to reduce such take through
section 7 or 10 of the Act.
Comment 131: One commenter noted that the research on noise impacts
from wind energy on lesser prairie-chickens is not settled, and that
the effects are poorly understood. They urged us not to base the
listing of the lesser prairie-chicken on noise impacts.
Our response: We agree that further research on the specific
impacts of noise, from wind energy development and other sources, to
lesser prairie-chickens would be beneficial. Our discussion of noise as
a threat to the lesser prairie-chicken uses information to the extent
it is available to acknowledge our consideration of possible impacts.
While we analyzed the potential effects of noise on the lesser prairie-
chicken, we are not listing based effects of noise on the lesser
prairie-chicken.
Comment 132: One commenter referenced a study which stated that, in
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past times of changing climate, species had shifted their ranges as a
result of changing temperatures. They stated it was likely that the
lesser prairie-chicken would continue to move north as climate
conditions became unsuitable in their current range and as habitat is
destroyed by other factors.
Our response: The commenter did not provide a reference to the
specific study quoted; however, it appears to be, ``Glaciation as a
migratory switch'' published in Science Advances in 2017 (Zink and
Gardner 2017). That study examines the shifting ranges of migratory
tropical birds. However, the lesser prairie-chicken is not a migratory
or tropical species. Regardless, such shifts in range usually occur
over a scale of tens of thousands of years as a species adapts to new
habitat types and conditions. Our estimates on the extinction risk of
the species indicates that extinction of the species will occur well
before the time necessary for a nonmigratory species to adapt to
changing conditions. Additionally, were the lesser prairie-chicken to
shift north, it would encounter additional land converted for
agriculture, which is not suitable habitat for the species.
Comment 133: One commenter argued that the Service overstated the
effects of climate change. They provided a graph of forecast rain in
the United States that demonstrates that average rain across the
country had increased in the period 1901-2020. They then asserted that
it was inappropriate to examine climate effects at the ecoregion level.
Our response: In conducting our analysis of the effects of climate
change on the lesser prairie-chicken and its habitat, we used data that
have been ``downscaled'' to an appropriate regional or local level, as
these techniques yield higher resolution projections at a scale
typically more appropriate for species analysis than nationwide
forecasts. We consider downscaled data, where available, to constitute
the best available information concerning a changing climate. Our
downscaled analysis using Multimodel systems projects complicated
forecasts of future precipitation patterns that we find are more
accurate and useful to our assessment than nationwide yearly annual
precipitation. We conclude that our approach satisfies the requirement
to use the best available scientific data. For our complete analysis of
downscaled climate models for the range of the lesser prairie-chicken,
please see chapter 4.3.2 of our SSA report (Service 2022).
Comment 134: Two commenters stated that our forecasted climate/
drought impacts were speculative and that our findings were
speculative, arbitrary, and capricious. They stated that scientific
studies could not accurately predict how forecast impacts from climate
change (drought, fire, storms) could adversely affect the lesser
prairie-chicken such that it would meet the definition of threatened or
endangered. They also argued that the Service had based forecasted
drought on assumptions rather than evidence, and that we had not
defined what the length of an extended drought or its geographical
extent would be.
Our response: As discussed in our responses to previous comments,
the Act requires that we use the best scientific data available when we
make decisions to list a species, and we followed all Service policies
and standards on data and information quality in our SSA report and
this final rule. In regard to defining the length or extent of a
drought, those numbers are indeed uncertain; however, we have presented
a thorough assessment of likely future impacts of climate change and
likely characteristics of future droughts in chapter 4.3.2 of our SSA
report and in our response to Comment 128 above. We acknowledge that
there is uncertainty inherent in any future predictions. In light of
that uncertainty, we made certain assumptions and provided
justification for these assumptions. We conclude that our approach
satisfies the requirement to use the best available scientific data.
Additionally, climate change is one of many threats currently impacting
the lesser prairie-chicken and its habitat causing the DPSs to meet the
definition of threatened (Northern DPS) and endangered (Southern DPS).
Comment 135: One commenter argued that the lesser prairie-chicken
life cycle is closely tied to drought; they provided information that
they state demonstrates that drought is linked to population
fluctuations in other grassland bird species. They provided graphs
demonstrating the changes in rainfall over time in the contiguous
United States alongside graphs showing trends from 1995 through 2015 in
grassland bird species, including the lesser prairie-chicken. They
concluded that these graphs showed that the lesser prairie-chicken
could survive future droughts.
Our response: The best available scientific information related to
drought and lesser prairie-chicken is included throughout the SSA
report, and we discuss prolonged and extreme drought in section 3.3.3
of the SSA report. One of the primary points outlined in the SSA report
is that, in past decades, fragmentation of lesser prairie-chicken
habitat was less extensive than it is today, connectivity between
occupied areas was more prevalent, and populations were larger,
allowing populations to recover more quickly. In other words, lesser
prairie-chicken populations were more resilient to the effects of
stochastic events such as drought. As lesser prairie-chicken population
abundances decline and usable habitat declines and becomes more
fragmented, the species' ability to rebound from prolonged drought is
diminished.
Comment 136: As further support for their rationale as described in
Comments 132, 133, 134, and 135 above that climate change is the
primary threat impacting the lesser prairie-chicken, a commenter
submitted a graph depicting a regression analysis of the lesser
prairie-chicken and January-June rainfall in the Mixed-Grass Ecoregion.
They interpret the results of their analysis to be that rainfall
explains 25 percent of lesser prairie-chicken population trends. The
commenter concluded that this graph shows that there is a definitive
link between rain and lesser prairie-chicken population growth.
Our response: As discussed in our responses to Comments 16 and 17
as well as in our SSA report, there is a strong relationship between
precipitation patterns and lesser prairie-chicken population trends
(Service 2022, p. 48). The model provided by the commenter looks at
only one possible driver for lesser prairie-chicken population trends
and does not consider the multiple other potential explanatory
variables that have been documented in the best available science as
impacting the species, and does not provide a full documentation or
list of assumptions used in the creation of their analysis. They also
do not provide any supporting information for us or others to assess
whether the scale of population and weather stations are geographically
aligned. Finally, a regression analysis does not show cause and effect
relationships. Instead, the regression analysis indicates a correlation
between the two variables without any information on causation.
Finally, the commenter's conclusion that rainfall explains 25 percent
of the response variable (lesser prairie-chicken population
fluctuations) is not statistically significant.
Comments Related to the Geospatial Analysis in the SSA Report
Comment 137: Multiple commenters disagreed with impact radii that
we applied to anthropogenic features, such as wind turbines and oil
wells, within
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our spatial analysis to account for the indirect effects of those
features. Some comments stated that the lesser prairie-chicken still
uses those spaces and so it is not accurate to characterize the areas
as habitat loss. Others simply stated we should have used the impact
radii used within WAFWA's Range-Wide Plan.
Our response: We analyzed the best available scientific
information, which is summarized in chapter 3.3 of the SSA report, to
determine the direct and indirect impacts associated with anthropogenic
features. For the lesser prairie-chicken, the primary concern is
related to avoidance of features. Thus, our determination of impact
radii is based upon an evaluation of impacts that result in avoidance
of otherwise suitable habitat by the species during all or portions of
the life cycle of the species. Many of these features do not result in
complete avoidance. Instead, the best available scientific information
suggests that the lesser prairie-chicken avoids these features during
certain critical periods of their life cycle. While some limited use of
portions of areas occurring within these impact radii may occur, these
areas no longer have the ability to provide for all the life history
needs of the species. As a result, we do not consider these areas to
support the full needs of the species in their current state for the
purposes of our SSA analysis and listing determination. While multiple
commenters stated that they do not agree with the impact radii
assigned, they did not provide additional data or studies that were not
included in our analysis or did not provide any evidence that we
misrepresented those studies. No single study can be used to determine
what the appropriate impact radii is; therefore, we analyzed all of the
available literature, which is summarized in the SSA report, and
determined the impact radii within the context of all of these studies
and considering all information and limitations.
Comment 138: Multiple commenters stated the Service did not account
for overlap of impact features when calculating the area of habitat
affected by impact radii.
Our response: In chapter 3 of the SSA report, when summarizing the
acres of impact by individual source we state, ``Impacts are not
necessarily cumulative because of overlap of some impacted areas by
more than one impact source.'' This method of reporting impacts by
individual source is accurate and does not result in double counting.
The areas of overlap mean that there are places where multiple features
occur on the landscape. Because of the areas of overlap, readers should
not add up the acres impacted across all of the sources to get a total
area impacted, which is why we do not report total acres impacted from
all sources within the current condition impact tables of the SSA
report (e.g., table 3.4). In our estimates of total potential usable
area, we do not double-count acres of impact. For future condition
projections, we documented our methods for estimating rates and amounts
of impacts from past data and their application across the low,
continuation, and high scenarios in section 4.3 and Appendix C. Within
our projections we account for overlap with existing infrastructure and
project future impacts only to unimpacted usable space, so these were
new non-overlapping impacts. Our estimates for rates and amounts
accounted for the overlap from existing data.
Comment 139: Several commenters stated that the Service's
geospatial model is flawed and not capable of modeling current lesser
prairie-chicken population and habitat status or potential future
scenarios on a scale relevant to the Service's listing analysis.
Comments specifically noted resolution issues with land cover data sets
and questioned our analysis area which defined the spatial extent of
our geospatial analysis.
Our response: We used the best available information in our
analyses. The geospatial model portion of the SSA report is a
transparent application of concepts of conservation biology with the
best available commercial and scientific information and a robust
discussion of limitations and constraints of the data and model.
Commenters did not provide alternative analytical approaches. The
LandFire land cover data that was the foundation for the analysis is a
30-meter spatial resolution dataset (i.e., the data comprised cells
that measured 30 meters by 30 meters). We used the spatial extent of
the EOR as defined by the States and WAFWA's Interstate Working Group
as the maximum spatial extent of the analysis. Both of these elements
of scale were considered and implemented in a manner that informs the
statutory decision by the Service. All information was processed and
aggregated as described in appendix B and appendix C of the SSA report,
which allowed us to summarize the results by ecoregion and rangewide.
Comment 140: One commenter stated the change from 40 percent to 60
percent potential usable unimpacted land cover within 1 mile as cited
between the 2021 SSA report and the 2017 USGS report is not explained
and has an outsized effect on the results.
Our response: We discuss the basis for our use of a 60 percent
threshold used for our geospatial analysis in the SSA report (3.2
Geospatial Analysis Summary, p. 22, and Appendix B, Part 4.
Supplemental Analysis: Frequency Analysis of Usable Area Blocks) to
understand the importance of the size of habitat areas and their
connectivity to conservation of lesser prairie-chicken. One critical
factor requiring us to change from 40 percent potential usable
unimpacted land cover within 1 mile to 60 percent is the inclusion of
new scientific information (e.g., Ross et al. 2019, entire; Hagen and
Elmore 2016, entire; Spencer et al. 2017, entire; Sullins et al. 2019,
entire), further emphasizing that larger blocks of habitat are
important for conservation of the species. The 40 percent threshold was
part of an early analysis for the SSA initiated in 2015. This approach
allowed for large landscapes with 40 percent nonusable area due to
habitat loss and fragmentation to be considered potentially usable
area. The change in threshold was suggested during the review of the
SSA report by one of our independent peer reviewers of the earlier
version of the SSA report. As a result of our review of the new
information, we determined that 60 percent potential usable unimpacted
land cover within 1 mile was supported by the best available science
and incorporated it into our SSA report.
Comment 141: One commenter stated the unexplained use of the EOR
instead of the EOR+10 affects the amount of habitat that could be
listed as potentially available for the species by the SSA analysis.
Our response: The EOR+10 for the lesser prairie-chicken originated
in WAFWA's Lesser Prairie-Chicken Range-wide Conservation Plan in 2013
(see Covered Area, Van Pelt et al. 2013, p. 26). This was implemented
by WAFWA because the exact occupancy of the lesser prairie-chicken is
not known. The EOR encompasses approximately 21.8 million acres. The
addition of the 10-mile buffer increases the area by approximately 20.5
million acres. Since 2012, WAFWA has been implementing rangewide aerial
surveys, in addition to other surveys by participants in the RWP,
agency biologists, and conservation partners. The most recent analysis
indicates that there are only 13 known leks in the 10-mile buffer area.
In contrast, the EOR (without the 10-mile buffer) contains 734 leks in
the same time period. The EOR is the primary occupied range of the
species, as is shown by WAFWA's survey data. We can no longer support,
based on the available survey and
[[Page 72736]]
occupancy data, adding an additional 20.5 million acres to the analysis
area since there is very little supporting information that the larger
extent of the EOR+10 is potential usable area based on a decade of
additional survey and conservation work for the species. Our model
extent included greater than 98 percent of current known leks for the
species. After considering the information above and consulting the
State fish and wildlife agencies, we determined that we should use the
EOR as our analysis area as it much more accurately represents the area
in which lesser prairie chickens are currently found.
Comment 142: One commenter stated the Service's use of one-word
descriptors (low, continuation, high) as categorization of future
conservation efforts does not meet the best scientific and commercial
data available standard.
Our response: In the SSA report, we used categorical descriptors
(low, continuation, high) for the modeled range of projected future
scenarios. These one-word descriptions were simply used as shorthand to
create categories for summarizing the information. The input data that
were used to establish the conservation efforts were extensive and
developed in close coordination with the entities implementing those
conservation efforts. Additionally, the SSA report, which contains the
characterization of the future conservation efforts was reviewed by
independent peer reviewers as well as our State and Federal
conservation partners to ensure accuracy. We provide the full
explanation of what each term means (low, continuation, high) within
the SSA report (Service 20222, Appendix C). We used the best available
data regarding conservation efforts to inform our projections that were
included in each category. For a detailed description regarding the
data and processed used to project these efforts please see Appendix C
of the SSA report.
Comment 143: Several commenters indicated the Service should have
used USDA land use data called Cropland Data Layer (CDL) instead of
other sources, and the Service's use of data from FSA (2012) was
inappropriate to use instead of CDL.
Our response: We used the best available information in our
analyses, including within the spatial analysis of the SSA. Multiple
land use and land cover datasets were considered for our work,
including National Land Cover Database, CDL, and LandFire. While we did
not use Cropland Data Layer CDL for our base land cover data, we did
use CDL as processed by Lark (2020) to support projections of a range
of scenarios of rates and amount of grassland conversion to cropland
(see 4.3.1.1 and appendix C). We did not use CDL for the base landcover
because of the known error rates associated with the unprocessed non-
cropland portions of the classification (see Reitsma et al. 2016) and
the CDL accuracy assessment information available from USDA (USDA 2020,
entire). The date of the product is not the sole determinant of best
available information.
Comments Related to Oil and Gas Development
Comment 144: Multiple commenters stated that the Service
overestimated the impacts of oil and gas development because we failed
to consider advancements in technology, such as directional drilling,
which has resulted in reduced impacts to the lesser prairie-chicken.
Specifically, some commenters stated that the Service should have used
only data from the years of 2016-2019 to inform assumptions around
rates of development because of technological advancements that are
currently in place and that reduced surface disturbance but were not
being used prior to 2016.
Our response: We agree that there have been technological
advancements in oil and gas exploration, development, and extraction.
However, we determined that projecting the future oil and gas
development based only upon impacts occurring from 2016 through 2019
(as opposed to including the years from 2004 through 2019 as the
Service did) would not provide a representative view of likely future
development, as the number of new wells drilled annually is not tied
only to technology but also to many other variables such as oil prices.
During the period of 2016-2019, fewer wells were drilled within the
analysis area. However, that fact cannot be attributed only to
technological advancements because the price of oil was low during that
period. To this point, within our analysis area in the Sand Shinnery
Oak Ecoregion in 2016, 2017, and 2018 (after technological
advancements) more wells were drilled annually than in 2004 and 2005
(prior to technological advancements) indicating that a variety of
factors drive the number of wells drilled each year beyond the
technology being employed. While we do not agree that we should have
based the projections of the number of new wells drilled each year from
past development rates limited to the 2016-2019 timeframe, we did
incorporate aspects of development patterns that have resulted in
reduced surface disturbance when assuming how many acres per well would
be impacted as discussed in appendix C of the SSA report (Service
2022).
Comment 145: One commenter stated that the Service overestimated
the impacts from oil and gas development because of the participation
from the oil and gas industry in existing conservation plans that
require implementation of conservation measures to minimize impacts to
the lesser prairie-chicken.
Our response: We did consider the fact that a portion of the wells
drilled within the range of the species, are participating in existing
conservation agreements and we fully considered the benefits of that
participation. Existing conservation efforts primarily implement two
types of measures to minimize impacts to the lesser prairie-chicken.
First, they implement measures such as noise and timing stipulations
meant to reduce disruption to breeding activities. These types of
measures were considered in our determination. However, these types of
measures, while beneficial to the species, were not shown to decrease
habitat loss and fragmentation, the primary threats driving the risk of
extinction. Second, some conservation efforts avoid or minimize surface
disturbance by co-locating anthropogenic features, which results in
fewer acres of habitat loss. We directly incorporated those efforts to
reduce surface disturbance into our projections of the future impacts
of oil and gas development. Specifically, we reduced the number of new
wells being drilled to account for the fact that the majority of these
wells are drilled in areas that are not impacting the lesser prairie-
chicken. We also factored in that when a well is drilled in an area
that may impact the species there are efforts to minimize impacts by
co-locating these disturbances with existing impacts, which resulted in
an assumption that fewer acres of habitat will be impacted per well.
These assumptions are further detailed in appendix C of the SSA report.
Thus, we have fully incorporated efforts of industry to minimize
impacts of development through participation in existing conservation
efforts.
Comment 146: One commenter stated that the Service ignored the
benefits of oil and gas development to the lesser prairie-chicken.
Specifically, the commenter stated that oil and gas development can
create an alternative financial opportunity for landowners, which could
reduce the possibility that the landowner would seek other financial
interests such as residential or commercial development.
[[Page 72737]]
Our response: In this final rule, we fully considered all impacts
of threats to the lesser prairie-chicken. Though their impacts on
habitat would be different, both oil and gas development and
residential development occurring within habitat would cause negative
impacts to the species and population declines, and they would both
result in incidental take of the species. In regard to the commenter's
point about financial opportunities, as discussed in our response to
Comment 36, we cannot consider economic impacts when determining
whether to list a species. We recognize that the lesser prairie-chicken
is found primarily on private lands, and that listing may result in
impacts to landowners. We want to continue to encourage land management
practices that support the species. Many existing conservation programs
provide landowners the opportunity to receive financial assistance to
implement conservation measures and provide additional revenue streams.
As discussed throughout this comment section and particularly in
response to Comment 21, we recognize the need to work collaboratively
with private landowners to conserve and recover the lesser prairie-
chicken. The recovery of endangered and threatened species to the point
that they are no longer in danger of extinction now or in the future is
the ultimate objective of the Act, and the Service recognizes the vital
importance of voluntary, nonregulatory conservation measures that
provide incentives for landowners in achieving that objective. We are
committed to working with landowners to conserve this species and
develop workable solutions.
Comment 147: One commenter stated that the Service was silent on
the conservation efforts employed by BLM in concert with the oil and
gas industry.
Our response: We fully considered the impacts of all efforts
implemented by BLM, both individually and in concert with the oil and
gas industry, within the SSA report and they were fully carried forward
to the final listing decision. Within chapter 3 of the SSA report, we
discuss the conservation efforts on lands managed by BLM, and we
provide even further detail in appendix D to section D.2.2.
Comment 148: Multiple commenters stated that the Service
overestimated the impacts of oil and gas development because we failed
to account for the temporary nature of the impacts. Specifically, the
commenters stated that the impacts were only temporary because the
human disturbance associated with oil and gas development largely
occurs only during the drilling phase and after that there is very
little human presence for the remainder of the life of the well.
Our response: Within chapter 3 of the SSA report we summarize the
best available science regarding the impacts of oil and gas development
on the lesser prairie-chicken. That science indicates that the primary
concern related to oil and gas development is not human presence but
instead the direct and indirect impacts that result in habitat loss and
fragmentation. The studies that were conducted on lesser prairie-
chicken and oil and gas development and documented avoidance were not
conducted during the drilling phase but occurred after completion when
there was limited human presence (Hunt and Best 2004, pp. 99-104;
Pitman et al. 2005, entire; Hagen 2010, entire; Hagen et al. 2011, pp.
69-73; Plumb et al. 2019, pp. 224-227; Sullins et al. 2019, pp. 5-8;
Peterson et al. 2020, entire).
Comments Regarding Wind Energy
Comment 149: Several commenters stated that the impact radius
applied by the Service to commercial wind energy turbines is
unreasonable, overstates impacts to the species, and is unsupported by
best available and cited data. In using 1.12 mi (1.8 km), the Service
did not use the impact radius recommendation of State wildlife agency
biologists of 0.41 mi (667 m). Commenters asserted that the treatment
of impacts from wind energy turbines was an unsubstantiated hypothesis
based on impacts from other structures (e.g., oil and gas), and the
species does not show the degree of avoidance applied in the proposed
rule and SSA report. In contrast, several other commenters indicated
support for applying a 1.12-mi (1.8-km) impact radii to commercial wind
energy turbines, and suggested occupancy by the species be assumed for
all areas within 2.98 mi (4.8 km) of current active leks (i.e., within
the last 5 years).
Our response: We have reviewed all available information related to
prairie grouse and wind energy development. Because there are a limited
number of original research projects and associated information on the
topic specific to lesser prairie-chickens (Coppes et al. 2020, entire),
we have relied on information for other similar prairie grouse species.
The results of these studies indicate a range of effects to different
aspects of the species (Marques et al. 2021, p. 469). These results
range from demonstrating no statistically significant response related
to survival to significant indirect effects extending 5 miles (8.05
km), as discussed in the SSA report and this final rule. The findings
of relevant studies are not always directly comparable due to different
research designs and reported metrics. As discussed in our response to
Comment 30, we have made this determination on the basis of the best
scientific and commercial data, and in accordance with our information
quality standards. As discussed in our response to Comment 137,
construction of anthropogenic features results in avoidance of
otherwise suitable habitat during all or a portion of the species' life
cycle. While some limited use may occur, these areas can no longer
support the needs for the species and thus are not considered habitat.
Comment 150: One commenter indicated the Service did not hold all
information evaluating grouse and wind energy to the same standards and
incorrectly dismissed one paper, while not doing the same thing with
other topics and associated citations (e.g., population
reconstruction).
Our response: This rule and our SSA report extensively discuss the
available information on the topic of the likely impacts of wind
energy. All information was evaluated and considered within the context
of the cited publication and the Service's ability to evaluate the
quality and rigor of the provided data and the corresponding assertions
against all available information on the topic. In regard to the paper
to which the comment refers (LeBeau et al. 2020), we did not dismiss
the paper but presented the results that there is no evidence of: (1)
lesser prairie-chicken displacement during multiple seasons and at
multiple scales; (2) negative effects on nest survival; and (3) barrier
effects to local-scale movements. Survival of lesser prairie-chicken
was reported at higher rates closer to the wind turbines. We then
discussed the limitations associated with the study, including that
significant fragmentation already existed on the landscape prior to
wind turbine construction, the study was of short duration (3 years),
and there were no pre-construction lesser prairie-chicken data for
comparison (Service 2022, p. 32). This example is one of many
treatments of similar papers in chapter 3.3.1.3, where we outline
results from available scientific information and limitations
associated with each study. Overall, this rule and our SSA report
acknowledge the limited amount of information directly addressing
prairie grouse and wind energy development, and we reviewed all
available material in the manner laid out in comment 30.
Comment 151: One commenter stated support for the application of an
impact radius for wind turbines and asserted
[[Page 72738]]
that this impact should be considered in context of lesser prairie-
chicken leks, while asking for prohibition of future developments
within 2.98 mi (4.8 km) of current leks.
Our response: To meet the complete habitat needs of the full life
cycle of the species, habitat that provides for breeding, feeding,
sheltering, and connectivity for movement between these areas is
necessary. Areas within 2.98 mi (4.8 km) of leks have been shown to
provide the majority of use by the species, but individuals also move
between leks across areas of habitat and non-habitat outside of 2.98 mi
(4.8 km) from leks (e.g., Peterson et al. 2020, entire). The potential
impacts of development in these movement areas requires understanding
the site's context and juxtaposition relative to known leks, and other
potentially suitable habitat with no documented leks. The prohibitions
under the Act will prohibit any take of the lesser prairie-chicken by
wind energy development. Regardless, we cannot assume that any wind
energy development with 2.98 mi (4.8 km) of current leks would
necessarily result in take. We will need to evaluate the site-specific
information of the landscape and evaluate the effects of all activities
associated with the development for each project to determine if take
would occur for a potential wind development activity.
Comments Regarding Overhead Power Lines
Comment 152: Two commenters identified the Service's statements in
the preamble to the proposed rule, ``no data were available to quantify
the potential independent impacts of distribution lines on habitat loss
and fragmentation'' and ``distribution lines are another important
source of habitat loss and fragmentation,'' as contradictory and a
reason to remove distribution lines as a cause of habitat loss and
fragmentation from the assessment of the status of the species.
Our response: Distribution lines have been identified as impacting
lesser prairie-chickens and their habitat (resulting in habitat loss
and fragmentation) in the scientific literature (see Service 2022, pp.
36-38 for a review of the subject). However, we were unable to
incorporate an analysis of this threat within the SSA geospatial model
because representative datasets for distribution level power lines do
not exist rangewide or are not available to us.
Comment 153: Several commenters stated that the variation in size,
classes, and types of power line structures should be assessed
differently than the two classes, distribution and transmission, used
by the Service and assigned different impact radii.
Our response: The available literature on power lines and prairie
grouse and the wide variety in size and structure types used in
different classes of power lines on the landscape does not provide
sufficient data to create different classes of impact radii. The
commenters did not provide new scientific information on power line
structures or impact radii for us to consider. In the future, if
additional new information becomes available with sufficient
distinction in the classes of power lines, we could reevaluate our
current impact radii recommendations if appropriate.
Comments on the Significant Portion of the Range Analysis
Comment 154: One commenter stated that the Service should have
concluded that the Sand Sagebrush Ecoregion is a significant portion of
the range because, without that portion, the rest of the DPS would lose
redundancy and representation and would be endangered.
Our response: In Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017), the courts invalidated the definition of significant that the
commenter uses here; that is, making a conclusion about the overall
status of the remainder of the range without the portion in question.
Therefore, the commenter's suggested method of analyzing the
significance of the Sand Sagebrush Ecoregion is not allowed by the
courts.
Comment 155: One commenter stated that, in our analysis of
significant portion of the range of the Northern DPS, we wrote that the
Sand Sagebrush Ecoregion ``may meet the definition of endangered'' and
did not come to a conclusion as to whether or not it actually does. The
commenter also argued that the Service should have concluded that the
Sand Sagebrush Ecoregion met the definition of endangered as a
significant portion of the Northern DPS's range. They stated that the
ecoregion has a higher concentration of threat from drought, severe
storms, incompatible grazing, and effects associated with small
population size. They concluded that the Service should conclude that
region is endangered, and thus list the entire Northern DPS as
endangered.
Our response: Based on this and other public comments, we have
expanded our discussion in Status of the Northern DPS of the Lesser
Prairie-Chicken Throughout a Significant Portion of Its Range to
analyze the significance of the Sand Sagebrush Ecoregion. Based on our
expanded analysis, we affirm that we did not identify any threats that
were concentrated in the Sand Sagebrush Ecoregion that were not at
similar levels in the remainder of the range at a biologically
meaningful scale, and also that the Sand Sagebrush Ecoregion is not
significant to the remainder of the range. We conclude that no portion
of the species' range provides a basis for determining that the
Northern DPS is in danger of extinction in a significant portion of its
range, and we determine that the DPS is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
Comments on the Distinct Population Segment Analysis
Comment 156: Multiple commenters stated that, if the same fact
pattern was followed for discreteness and significance as for listing
of the lesser prairie-chicken, more species would be listed as DPSs.
They presented an example of a common species with unique alleles in
one population to support their argument.
Our response: As discussed in our response to Comment 30, each
listing decision we make must be in accordance with the factors in
section 4(a)(1) of the Act, but is also informed by the species' life
history and response of the species to the identified threats.
Additionally, each DPS analysis must be made based on the elements set
out in our 1996 DPS policy. In this instance, as discussed under
Distinct Population Segment Evaluation above, we found that both parts
of the range are discrete due to being markedly separated from each
other based on geographical distance. We also found that they are
significant due to differing markedly from each other in their genetic
characteristics, and because the loss of either would result in a
significant gap in the range. We then determined that the Northern DPS
meets the definition of a threatened species, and that the Southern DPS
meets the definition of an endangered species. Accordingly, we are
finalizing the listing of both DPSs.
Comment 157: Multiple commenters asked why the Service was just now
separating the range into DPSs, when previously it had never done so,
particularly not in the 2014 rule. One stated that the Service had
never before indicated that the species could be divided into DPSs.
Another commenter said that there had always been historical population
separation and differences in environment. Another
[[Page 72739]]
noted that when we received comments in 2012 indicating we should
divide the range into DPSs, we rejected that option. They also noted
that the 90-day finding did not discuss the DPSs, and only indicated
the rangewide entity as the subject of the petition finding.
Our response: In making a 90-day finding, we consider only the
information in the petition and information that is readily available,
and we evaluate whether that information constitutes substantial
information such that a reasonable person conducting an impartial
scientific review would conclude that the petitioned action may be
warranted. In a 12-month finding, we must complete a thorough status
review of the species and evaluate the best scientific and commercial
data available to determine whether a petitioned action is warranted.
We were petitioned to evaluate whether any DPSs might also warrant
listing; we conducted that evaluation and found that the Northern DPS
of the lesser prairie-chicken meets the definition of a threatened
species and the Southern DPS of the lesser prairie-chicken meets the
definition of an endangered species. We have the discretion to propose
listing of species and DPS configurations that we find to be the most
appropriate application of the Act. These determinations were based on
our review of the best available information, updated survey results,
and additional genetics information since the 2014 final listing rule.
Comment 158: One commenter asked why the SSA report did not discuss
the DPS finding.
Our response: The objective of the SSA is to evaluate the viability
of the lesser prairie-chicken based on the best scientific and
commercial information available. In conducting this analysis, we took
into consideration the likely changes that are happening in the
environment--past, current, and future--to help us understand what
factors drive the viability of the species. Through the SSA report, we
described what the species needs to support viable populations, its
current condition in terms of those needs, and its forecasted future
condition under plausible future scenarios. The SSA does not make any
analysis or conclusions with regard to policy decisions, such as DPS
findings. Instead, the SSA report provides the biological information
that our decisionmakers can then use to inform those policy decisions.
Thus, all of the policy decisions and the rationale for those decisions
are contained within the Federal Register documents and are not
included within the SSA report.
Comment 159: One commenter stated that the Service had not provided
enough documentation (additional technical support or record materials)
regarding the decision to designate DPSs. The commenter also said they
had provided materials (genetic data and legal analyses) regarding the
potential for DPS designations in response to the Services 2016 90-day
petition finding and they say the Service did not respond to this in
our proposed listing rule. The commenter concluded it was inappropriate
for the Service to designate DPSs without more documentation. Finally,
they stated that the Service did not ask for information related to
potential DPSs after our 2016 90-day finding, and that we should have.
Our response: We fully considered all material submitted by
commenters from 2014 to the present. In our 90-day finding, we
requested information on a number of topics related to the ecology of
the species and the threats impacting it. In our DPS finding, we
presented only information relevant to the finding itself; that is, we
did not analyze legal arguments, as those are outside the scope of the
three criteria for determining if a part of a species meets the
definition of a Distinct Population Segment.
Comment 160: Several commenters stated that the Service had not
properly determined that the two DPSs were discrete. Other commenters
asked how a bird species could ever be considered discrete, given their
ability to fly, and the recorded movement of lesser prairie-chickens
flying long distances. They cited a single report of a bird nesting 35
miles away from a lek, and a study by Berigan (2019) showing long-
distance movement of translocated birds. Another noted that Earl et al.
(2016) had recorded movements up to 44 mi (71 km). Those commenters
concluded that it strains credulity that birds could not and have not
crossed the distance between the DPSs. Another commenter asked us to
state the information we considered to conclude that there had been no
movement; another stated that we had not proven there was no barrier to
movement between ecoregions. Another said that we had ignored evidence
of gene flow as demonstrated in Oyler-McCance et al. (2016) and others.
Our response: Our DPS policy states that a population may be
considered discrete if it is markedly separated from other populations
of the same taxon as a consequence of physical, physiological,
ecological, or behavioral factors. The policy additionally notes that
we do not consider it appropriate to require absolute reproductive
isolation as a prerequisite to recognizing a distinct population
segment. As the policy states, this would be an impracticably stringent
standard, and one that would not be satisfied even by some recognized
species that are known to sustain a low frequency of interbreeding with
related species.
We acknowledge that movement between ecoregions is possible, and
that gene flow does occur between some ecoregions. However, that
movement is not frequent or common. For example, though one study did
record movements up to 41 mi (71 km), the average net displacement was
9.9 mi (16 km), and more study is needed to understand what landscape
features might act as barriers to movement (Earl et al. 2016, p. 10).
Additionally, the most recent genetic study found no movement between
the ecoregions in the Northern DPS and the Shinnery Oak Ecoregion that
makes up the Southern DPS (Oyler-McCance et al. 2016, p. 653).
Therefore, based on the best available information, we affirm that the
Northern DPS and the Southern DPS are markedly separated from each
other, and are therefore discrete under the DPS policy.
Comment 161: One commenter noted that the National Marine Fisheries
Service defines significant gap in the range as the loss of a
populations between two other populations. The commenter pointed to a
90-day finding for the Iliamna Lake harbor seal (Phoca vitulina
richardii) that concluded that the petition did not present substantial
information that a DPS finding may be warranted because it was not an
interstitial population of harbor seals whose loss would isolate
another population from the main group. The commenter concluded that,
using that logic, the loss of the Shinnery Oak Ecoregion that makes up
the Southern DPS would be a range contraction, not a gap in the range.
Another commenter disputed the importance of the statement that the
loss of one half of the population would result in a loss in a gap in
the range because they believe that could apply to any species. The
commenter quoted a response to a public comment in the 1996 DPS policy
that used an example of an interstitial population and the importance
of gene flow, and concluded from that response that the gap in the
range was meant to apply to interstitial populations only.
Additionally, one commenter interpreted the DPS policy to state that a
population could not be both entirely separate from the remainder of
the range and significant to the rangewide entity because there would
be no significant gap in its range.
[[Page 72740]]
Our response: In regard to the Iliamna Lake harbor seal, the
petition finding states that the harbor seal taxon is broadly
distributed, ranging from Alaska to the Baja Peninsula, and that the
estimated number of seals in Iliamna Lake accounts for roughly 0.1
percent of the total population (Boveng et al. 2016, p. 40; 81 FR
81074, November 17, 2016). The petition finding further quotes Boveng
et al. (2016, p. 40): ``Because Iliamna Lake is not a part of the
continuous coastal range of the marine population of harbor seals, the
loss of the Iliamna Lake segment could not produce a gap in that range,
and therefore would not reduce or preclude dispersal between segments
of the marine population.'' Thus, the finding regarding the Iliamna
Lake harbor seal is not relevant to this DPS finding, as the loss of a
small percentage of the harbor seal population also does not amount to
a range contraction.
Furthermore, the DPS policy can apply to populations at the edge of
a species' range. For example, the northern bog turtle and the western
yellow-billed cuckoo were listed as DPSs that were not interstitial
populations. Courts have affirmed that it is appropriate for DPS
findings to apply to populations on the edge of a species' range, as
long as it is a geographic area that amounts to a substantial reduction
of a taxon's range (National Association of Homebuilders v. Norton, 340
F.3d 835, 852 (9th Cir. 2003). Given that the Shinnery Oak Ecoregion
makes up 25 percent of the species' range, we consider that its loss
would result in a significant gap in the range of the lesser prairie-
chicken.
Comment 162: Several commenters stated that the Service had not
appropriately used the DPS authority as designated by Congress and the
1996 policy, and stated that the Service had manipulated the policy in
order to find that listing the lesser prairie-chicken was warranted.
Another commenter stated that using a single study to support a DPS
determination was contrary to the instruction to use the DPS policy
sparingly.
Our response: Our 1996 DPS policy stated that the application of
the policy framework would lead to consistent and sparing exercise of
the authority to address DPSs, in accord with congressional
instruction. Further, because we are to use the best available
information to make all findings, including the finding on the marked
genetic differences between the Shinnery Oak Ecoregion and other three
ecoregions, at times we may have only one study to inform our decision.
In this instance, we used the best available scientific information
regarding genetic differences. Specifically, for our DPS determinations
within this rule we cite the genetic information provided by Oyler-
McCance et al. (2016), which represents the most up to date and
complete information on the genetics of the lesser prairie-chicken.
While we believe this study represents the best available science, we
also considered all other available genetic information for the lesser
prairie-chicken (Service 2022, pp. 14-15).
Comment 163: Several commenters argued that the Service has not
shown that genetic differences between lesser prairie-chicken DPSs
equal differences in physical or behavioral characteristics, or that
they result in any adaptive capacity for the birds; one commenter
stated that a lesser prairie-chicken in one ecoregion was
indistinguishable from a lesser prairie-chicken in another part of the
range, and that a lesser prairie-chicken could survive equally well in
any ecoregion. These commenters concluded that the Service had not
proven the genetic differences were significant.
Our response: The DPS policy states that, for any population
segment found to be discrete, we consider available scientific evidence
of the discrete population segment's importance to the taxon to which
it belongs. This consideration may include, but is not limited to,
evidence that the discrete population segment differs markedly from
other populations of the species in its genetic characteristics. The
policy does not require that those genetic characteristics must result
in physical or biological differences or any other adaptive capacity.
The stated purpose of the DPS policy is to support the Act's goals of
conserving genetic resources and maintaining natural systems and
biodiversity over a representative portion of their historical
occurrence. Our DPS findings for the lesser prairie-chicken are in line
with that stated purpose.
Comment 164: Multiple commenters submitted questions about the 2016
Oyler-McCance et al. study on lesser prairie-chicken genetics, which we
reference in our DPS determination. Supposed flaws stated by the
commenters included that the study: was not intended for use in a DPS
analysis; was not meant to be a landscape genetic analysis, had not
taken samples from lesser prairie-chickens in Eddy, Chaves, or Lea
Counties in New Mexico, had not accounted for long-range dispersals,
and was meant only to inform efforts to increase connectivity. One
commenter said that one genetic study (Pruett et al. 2011) had shown
that genetic variation in the lesser prairie-chicken was mostly
explained by geography. Some commenters stated that the study does not
prove more genetic variation besides that typically found in
metapopulations, and that we had ignored evidence of gene flow and that
we did not have information on the timing of when the populations
diverged. One commenter noted that the study stated that more data were
needed to understand the genetic structure of the lesser prairie-
chicken. Commenters noted that any wide-ranging species with isolated
populations would have ``marked genetic differences.''
Our response: As discussed in our response to Comment 30, we must
use the best available scientific and commercial data to make our
findings. Additionally, the DPS policy does not require that a finding
be based on a landscape genetic analysis or on time since separation,
only that significance can include evidence that the discrete
population segment differs markedly from other populations of the
species in its genetic characteristics. The Pruett et al. (2011) study
did note that lesser prairie-chicken in Oklahoma and New Mexico were
genetically differentiated but did not make any conclusions about
geography being the cause of the distinctiveness. The 2016 Oyler-
McCance et al. study represents the most up-to-date and complete
information on the genetics of the lesser prairie-chicken, and found
that there was genetic structuring within ecoregions, and that there
was limited gene flow between them (Oyler-McCance et al. 2016, p. 657).
The study also found that the Shinnery Oak Ecoregion was a genetically
distinct population with ``large and significant FST
values'' (Oyler-McCance et al. 2016, p. 653) (FST values are
the proportion of total genetic variance in a population relative to
the total genetic variance). Overall, in considering whether a
population meets the discreteness criteria in the DPS policy, we
consider solely whether it is markedly separate from other populations
of the same species, not whether it is genetically distinct in
comparison to other species' populations.
Comment 165: Two commenters considered the location of the bounding
line between DPSs to be arbitrary. One stated that the location of the
line cutting through Texas would make statewide management and private
landowner conservation efforts difficult. Another stated that there is
not even scientific consensus as to the number of ecoregions supporting
the lesser prairie-chicken, or on their boundaries; that
[[Page 72741]]
commenter concluded that we should not use ecoregions for DPSs because
of that uncertainty. Another commenter said that the ecoregions were
designed for conservation and management purposes and should not be
used for DPS determinations.
Our response: The ecoregions are used regularly by State management
agencies and scientists for management, and we are not aware of any of
any alternative ecoregion boundaries being used by experts or
management agencies. The designations of these ecoregions were made for
the purposes of lesser prairie-chicken management based upon the
scientific information. Our placement of the line between the Northern
DPS and Southern DPS of the lesser prairie-chicken was not an arbitrary
decision. Using the analysis area identified in the SSA report, which
represents the best estimate of the species range, we placed the line
between the Northern DPS and the Southern DPS at approximately the
geographic mid-way point between the southernmost part of the Northern
DPS and northeastern most part of the Southern DPS. Within the State of
Texas, the areas occupied by the lesser prairie-chicken are already
being managed as two different ecoregions as outlined by the Western
Association of Fish and Wildlife Agencies. While evaluating the lesser
prairie-chicken under our DPS policy, we did not rely solely on the
ecoregion boundaries to determine that there were two DPSs. Overall, we
used the best available science regarding the lesser prairie-chicken
ecoregions and lesser prairie-chicken populations in identifying the
boundary between the two DPSs.
Comment 166: Two commenters believed the Service conflated the
discussions of significance and discreteness by using the same genetics
study for both determinations. One stated we had not fully explained
how the genetic evidence translated to them both being significant due
to evidence that the population segments differed markedly due to
genetic characteristics. They concluded that there was no evidence to
prove any genetic differences translated to adaptive capacity.
Our response: We use the best available scientific data for all
analysis under the Act, even if that requires use of the same study for
multiple determinations related to a species. There is no requirement
that separate genetic data be used for discreteness and significance
criteria in the DPS policy. As discussed in our response to Comment
164, Oyler-McCance et al. (2016, p. 653) found significant
FST values between the Shinnery Oak Ecoregion and the
Northern DPS. This and other genetic evidence demonstrate that the
population segments do indeed differ markedly due to genetic
characteristics and that they are markedly separate based on genetics;
that is, that genetic evidence provides support that the DPSs are both
discrete and significant.
Comment 167: Several commenters stated that the methodology used in
Oyler-McCance et al. (2016) was not appropriate for determining marked
separation. One commenter noted that microsatellite loci have a low
likelihood of uncovering recent genetic structure, and that
microsatellites often show high variation, particularly in populations
that are close to each other. They also said that the loci in the study
had not been selected randomly. They concluded that although the study
says that the populations are genetically distinct, this does not
necessarily translate to them differing markedly due to genetic
characteristics in accordance with the DPS policy.
Our response: Microsatellites are commonly used by researchers to
examine genetic characteristics of species and populations; in fact,
the detection of variation is often suitable for detecting population
structure. It is also common in genetic studies for loci not to be
selected at random. Additional genetic information would be useful;
however, as discussed in our response to Comment 118, we must use the
best available science, and we cannot wait for additional studies to be
completed. We have evaluated this study and all of the other best
available information on genetic data to support our conclusion that
the Southern DPS has marked genetic separation from the Northern DPS.
Comment 168: Three commenters stated that the genetic diversity
found in Oyler-McCance et al. (2016) is too small, and that the methods
are otherwise inappropriate. They say the study found that only 3.4 of
total genetic variance is explained by geographic area. The commenters
considered that too small of a difference. One of the commenters added
that the information could also not be used to support discreteness, as
they said that the DPS policy interprets discreteness to mean genetic
variation that is identifiable to a certain geographic area. One
commenter provided a study that they said showed that the methods used
in Oyler-McCance et al. (2016) are too sensitive or too good at finding
diversity. The commenter said these differences were contrary to
Congress's instruction to use the policy sparingly. The commenters
concluded that there was not sufficient evidence that the genetic
characteristics were important to the taxon or that the Southern DPS
met the criteria for significance.
Our response: It appears that the commenters have misunderstood the
FST value mentioned in Oyler-McCance et al. (2016).
FST values are not percentages and do not simply explain
genetic variance by geographic area. Instead they are the proportion of
total genetic variance in a population relative to the total genetic
variance. High FST values demonstrate a significant degree
of differentiation among populations. It is also important to note that
the FST value is only one of several analyses presented in
Oyler-McCance et al. (2016), and that all of the analyses support the
Shinnery Oak Ecoregion as being genetically distinct from the remainder
of the lesser prairie-chicken range and that genetic evidence provides
support that the DPSs are both discrete and significant. Additionally,
as discussed in our response to Comment 164, we look solely at whether
the population is markedly separate from other populations of the same
species, not whether it is genetically distinct in comparison to other
species.
Comment 169: One commenter argued that the Sand Sagebrush Ecoregion
was discrete from the remainder of the Northern DPS. They stated that
the ecoregion is discrete because the Oyler-McCance study shows that
the Sand Sagebrush population is distinct from other populations, and
because the movement of the birds between the Sand Sagebrush and the
Short-Grass/CRP Ecoregions appears to go in only one direction; that
is, birds move only out of the Sand Sagebrush Ecoregion. The commenter
added that lesser prairie-chickens rarely move far in their lifetime
and often stay near their leks and that habitat fragmentation is
increasing the isolation of the lesser prairie-chicken in the Sand
Sagebrush Ecoregion. Based on those lines of evidence, they concluded
that we should consider the Sand Sagebrush Ecoregion to be discrete
from other populations of the lesser prairie-chicken.
The commenter further argued that the Sand Sagebrush Ecoregion met
the definition of significant under the DPS policy, and that it met the
definition of endangered. They concluded that we should list the Sand
Sagebrush Ecoregion as a DPS separate from the remainder of the
Northern DPS.
Our response: Our 1996 DPS policy states that a population segment
of a vertebrate species may be considered discrete if it satisfies
either one of the
[[Page 72742]]
following conditions: (1) It is markedly separated from other
populations of the same taxon as a consequence of physical,
physiological, ecological, or behavioral factors. Quantitative measures
of genetic or morphological discontinuity may provide evidence of this
separation, or (2) It is delimited by international governmental
boundaries within which differences in control of exploitation,
management of habitat, conservation status, or regulatory mechanisms
exist that are significant in light of section 4(a)(1)(D) of the Act.
There are no international boundaries separating any of the ecoregions,
so we then consider if the Sand Sagebrush Ecoregion meets the first
criterion.
According to the most recent genetic data, studies of neutral
markers indicate that, although lesser prairie-chicken from the Sand
Sagebrush Ecoregion form a distinct genetic cluster from other
ecoregions, they have also likely contributed some individuals to the
Short-Grass/CRP Ecoregion through dispersal, and some low levels of
ongoing gene flow occurs from the Sand Sagebrush Ecoregion into the
Short-Grass/CRP Ecoregion (Oyler-McCance et al. 2016, p. 653). This
finding demonstrates that the Sand Sagebrush Ecoregion is not discrete
from the Short-Grass/CRP Ecoregion. Therefore, we conclude that the
Sand Sagebrush Ecoregion is not discrete as it is not markedly
separated due to physical or genetic factors from other lesser prairie-
chicken populations as a consequence of physical, physiological,
ecological, or behavioral factors.
In regard to the commenter's point about the significance of the
Sand Sagebrush Ecoregion, our DPS policy states that we consider
significance of a population segment only if it is considered discrete.
Because we do not have evidence that the Sand Sagebrush Ecoregion is
discrete from the remainder of the Northern DPS, we do not consider if
it meets the definition of significance under the policy.
Comment 170: One commenter expressed confusion on how the
separation of the species into two DPSs would help improve connectivity
between the two areas and added that separating them taxonomically
would not improve connectivity either. That commenter and another noted
that many conservation efforts had gone toward increasing connectivity
between those areas, and that designating separated DPSs would be a
barrier toward encouraging connectivity in the future. The commenter
concluded that the Service should not divide the lesser prairie-chicken
into two taxa.
Our response: Regarding existing effects to connectivity, please
see the response to Comment 95. The creation of DPSs is solely a policy
consideration, not a biological division. Designating DPSs does not
alter or modify existing species taxonomy. Rather, it identifies one or
more segments of a population that are discrete from and significant to
the taxon as a whole, and that may or may not require protection under
the Act. Thus, designation of the species as two DPSs would also not
hinder future conservation efforts that could be aimed at encouraging
connectivity.
Comment 171: One commenter claimed that the Service was designating
DPSs solely because it had detected genetic diversity in the species,
which they said was contrary to the stated purpose of the DPS policy to
``concentrate conservation efforts undertaken under the Act on avoiding
important losses of genetic diversity.''
Our response: We affirm that our designation of the two DPSs is in
alignment with the goals of the DPS policy and the Act to conserving
genetic resources and maintaining natural systems and biodiversity over
a representative portion of their historic occurrence, and with the
Congressional intent to use the policy sparingly. Additionally, we are
listing the Northern DPS because it meets the definition of a
threatened species and the Southern DPS because it meets the definition
of an endangered species.
Comments on the 4(d) Rule
Comment 172: Multiple commenters stated that the 4(d) rule should
include provisions allowing incidental take of lesser prairie-chickens
as a result of development and operation of oil and gas production,
renewable energy facilities, and transmission lines. They argued that,
without those provisions, those industries would have no incentive to
participate in conservation of the species.
Our response: We do not find that provisions under a 4(d) rule for
these sectors would be necessary and advisable for the conservation of
the lesser prairie-chicken. These activities have been identified as
sources contributing to the primary threat of habitat loss and
fragmentation to the lesser prairie-chicken currently and into the
future (see the SSA report for further details), and continued
unmitigated impacts are likely to result in an additional decline in
the status of the species. As a result, these sectors are better
addressed through other compliance mechanisms under the Act, such as
sections 7 and 10 as appropriate.
Comment 173: Multiple commenters asserted that a provision should
be developed in the 4(d) rule that would serve to exempt or
``grandfather'' projects that are pending or otherwise in progress.
Our response: While we recognize that the period following the
listing of a species can be challenging with regard to incidental take
coverage, we do not find that such a provision would meet the
definition of a 4(d) rule that is necessary and advisable for the
conservation of the lesser prairie-chicken. The Service is committed to
reviewing section 10 permit applications as quickly as possible in
conjunction with project proponents.
Comment 174: Two commenters asserted that 5 years was too short for
the agricultural provision, and that agricultural practices change more
frequently than that. They concluded that the timeframe was too
burdensome for farmers, particularly as some lands may not be
maintained for more than 5 years for a variety of reasons, including
drought or market factors. One commenter asked that we increase the
timeframe to 10 years.
Our response: While developing the exception for routine
agricultural practices on existing cultivated lands, we recognized the
need to define ``existed cultivated lands.'' The intent is to be clear
that areas currently in cropland do not possess the vegetative
structure and composition necessary to support most life history
functions for the lesser prairie-chicken, and, while there may be some
very limited use for activities such as opportunistic feeding and
lekking, prohibiting take on these areas is not necessary for the
conservation of the species. We first looked to the definition of
cropland as defined in the CFR but then realized that just because an
area was cultivated in the past does not mean that it currently is not
lesser prairie-chicken habitat. Thus, we then added a second
requirement, that not only does the area meet the definition of
cropland but also that it has been tilled within the previous 5 years.
For cropland that has gone fallow, we would not expect those areas to
reach a successional state that would support the lesser prairie-
chicken prior to 5 years. We do not find that a longer period of time,
such as 10 years, would be necessary and advisable for the conservation
of the lesser prairie-chicken because, after 5 years, fallow lands may
have reached a successional state that could support lesser prairie-
chickens.
Comment 175: Multiple commenters requested that activities such as
new construction in areas that are already
[[Page 72743]]
impacted, be excluded from take prohibitions. Other commenters
requested that general operations and maintenance as well as emergency
operations occurring on existing infrastructure be excluded from take
prohibitions.
Our response: We do not find that provisions under a 4(d) rule for
activities in areas that are already impacted (this includes the direct
and indirect impacts) are necessary and advisable for the species.
These activities are taking place in areas that are not suitable
habitat for lesser prairie-chicken because the species avoids existing
development. As a result, it is unlikely that take of the species would
be occurring from these activities. Therefore, no exception from the
prohibitions is needed.
Comment 176: Multiple commenters requested that the existing CCAAs
be included in the 4(d) rule.
Our response: A provision under a 4(d) rule for an existing CCAA is
not necessary as any take associated with activities covered within
those agreements would be covered by the associated section 10(a)(1)(A)
permit.
Comment 177: Several commenters stated that any projects or project
proponents following voluntary conservation measures be covered by the
4(d) rule. Several commenters asked that projects contributing to
certain conservation banks and other conservation actions be included
in the 4(d) rule. One commenter stated that mitigation measures and
proactive conservation be used in place of a 4(d) rule.
Our response: The fact that a project proponent has voluntarily
implemented conservation measures or has contributed to a conservation
bank is not an indication the voluntary measures implemented will
provide benefits that are commensurate with realized impacts to the
species. We cannot conclude that project proponents implementing an
unknown amount of future impacts and applying undefined conservation
measures would be adequate to conserve the lesser prairie-chicken
without a structured mechanism in place to allow for an accurate
assessment of those impacts and a structured way to determine how to
adequately offset those impacts. Thus, we do not find that blanket
provisions for these actions under a 4(d) rule are necessary and
advisable for the conservation of the species.
Comment 178: Multiple commenters stated that, if surveys do not
detect lesser prairie-chicken in an area, then that project should be
excepted from take under section 4(d) of the Act.
Our response: Due to the cryptic nature of the lesser prairie-
chicken, existing survey efforts have relatively poor detection
probabilities and thus negative survey results for the species may not
necessarily indicate the absence of the species. We do not advise that
project proponents make evaluations of the effects of a project on the
lesser prairie-chicken based on survey results. For project proponents
needing assistance in evaluating the impacts of their projects, please
contact your local Service Field Office. Because of these issues, we do
not find that blanket provisions for a project area with a negative
survey result under a 4(d) rule are necessary and advisable for the
conservation of the species.
Comment 179: Several commenters stated that renewable energy
projects should be excepted from take in the 4(d) rule because
renewable energy reduces climate change, a major threat to the lesser
prairie-chicken, or because renewable energy has lower impacts on the
lesser prairie-chicken than other threats. One commenter stated that
renewable energy also provides grassland preservation. They concluded
that renewable energy was thus necessary and advisable to the
conservation of the species.
Our response: We do not find that provisions under a 4(d) rule for
these sectors would be necessary and advisable for the conservation of
the lesser prairie-chicken. These activities have been identified as
sources contributing to the primary threat of habitat loss and
fragmentation to the lesser prairie-chicken currently and into the
future (see the SSA report for further details), and continued
unmitigated impacts are likely to result in an additional decline in
the status of the species. As a result, these sectors are better
addressed through other ESA compliance mechanisms such as sections 7
and 10, as appropriate.
Comment 180: One commenter asked the Service to clarify the
regulatory 4(d) text to include the statement from the preamble that
the provision does not include take coverage for any new conversion of
grasslands into agriculture. The commenter stated that including that
text would improve clarity and avoid confusion.
Our response: We reviewed the 4(d) and regulatory text to ensure
clarity around this point and we do not find that adding language to
the regulatory text would provide any additional clarity. Along with
this final listing determination, we developed answers to frequently
asked questions that address conversion of grasslands into agriculture;
this document is available on our website at https://www.fws.gov/lpc
and posted to https://www.regulations.gov. This document reemphasizes
the fact that the provision of the section 4(d) rule for the Northern
DPS does not except from take any new conversion of grassland to
cropland.
Comment 181: One commenter stated that the 4(d) rule impermissibly
amends the definition of cropland in 7 CFR 718.2 by adding the 5-year
requirement. The commenter stated that a rulemaking must take place to
amend the definition of cropland.
Our response: We are not amending the definition of cropland in 7
CFR 718.2. The 4(d) rule simply outlines that, to qualify for the
exception for routine agricultural practices on existing cultivated
lands, the land must not only meet the definition of cropland as
defined in 7 CFR 718.2, but the land must also have been tilled within
the previous 5 years.
Comment 182: One commenter asked that the 4(d) rule clarify if
addition of windmills to the landscape would be excepted from take
prohibitions, given that removal of windmills is covered.
Our response: We do not find that a blanket provision allowing an
exception of take resulting from the construction of windmills under
the 4(d) rule is necessary and advisable for the conservation of the
lesser prairie-chicken. Construction of vertical features has been
identified as a threat for the lesser prairie-chicken as outlined in
the SSA report as they can serve as potential predator perches.
Additionally, we note that the removal of windmills is not an excepted
activity but rather we determined that no exception in the Northern DPS
4(d) rule is needed because the removal of a windmill would not result
in take of the species.
Comment 183: One commenter requested that the Service provide a
4(d) exception for renewable energy facilities that implement the Land-
Based Wind Energy Guidelines developed by the Service in 2012.
Our response: The Land-Based Wind Energy Guidelines were not
developed to fully mitigate the impacts of wind energy development on
the lesser prairie-chicken. Implementation of these guidelines may
assist developers to minimize impacts to wildlife while siting
projects, but implementation of the guidelines does not indicate that
the developer has fully evaluated the extent of their impacts on the
lesser prairie-chicken or mitigated for those impacts (habitat loss and
fragmentation). The LWEG does not provide species-specific assessment
of effects from wind energy developments and therefore does not
[[Page 72744]]
provide sufficient information to inform adequacy of mitigation for the
lesser prairie-chicken. Thus, we do not find that a blanket provision
allowing renewable energy facilities that implement the Land-Based Wind
Energy Guidelines under the 4(d) rule is necessary and advisable for
the conservation of the lesser prairie-chicken.
Comment 184: One commenter asserted that the proposed 4(d)
regulations meant that the Northern DPS and Southern DPS would have the
same protections and prohibitions, and that this was inappropriate.
Our response: The two DPSs do not have the same prohibitions. The
Available Conservation Measures section below lays out examples of
activities that may potentially result in violations of section 9 that
are covered under our section 4(d) rule, such as removal of native
shrub or herbaceous vegetation. As outlined under our section 4(d)
rule, we have crafted three exceptions from the general take
prohibitions that were adopted for the Northern DPS. More details on
exceptions from prohibitions only applicable to the Northern DPS are
laid out in our Provisions of the 4(d) Rule section, below.
Determination of Lesser Prairie-Chicken Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) Overutilization for commercial, recreational,
scientific, or educational purposes; (C) Disease or predation; (D) The
inadequacy of existing regulatory mechanisms; or (E) Other natural or
manmade factors affecting its continued existence.
Status of the Southern DPS of the Lesser Prairie-Chicken Throughout All
of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Southern DPS of the lesser prairie-chicken and its habitat. We
analyzed effects associated with habitat degradation, loss, and
fragmentation, including conversion of grassland to cropland (Factor
A), petroleum production (Factor A), wind energy development and
transmission (Factor A), woody vegetation encroachment (Factor A), and
roads and electrical distribution lines (Factor A); other factors, such
as livestock grazing (Factor A), shrub control and eradication (Factor
A), collision mortality from fences (Factor E), predation (Factor C),
influence of anthropogenic noise (Factor E), and fire (Factor A); and
extreme weather events (Factor E). We also analyzed the effects of
existing regulatory mechanisms (Factor D) and ongoing conservation
measures. In the SSA report, we also considered three additional
threats: hunting and other recreational, educational, and scientific
use (Factor B); parasites and diseases (Factor C); and insecticides
(Factor E). We consider all of these impacts now in analyzing the
status of the Southern DPS.
Over the past several decades, habitat loss, fragmentation, and
degradation have resulted in the loss of large areas of the habitat
that supports the lesser prairie-chicken in the Southern DPS. Suitable
habitat has been lost as grasslands are converted to cropland, and as
petroleum and natural gas production and wind energy development have
resulted in further loss of habitat. The lesser prairie-chicken is
particularly vulnerable to changes on the landscape, as it requires
large blocks of suitable habitat to complete its life-history needs.
This includes its lek breeding system, which requires males and females
to be able to hear and see each other over relatively wide distances,
the need for large patches of habitat that include several types of
microhabitats, and the behavioral avoidance of vertical structures. In
the case of petroleum and wind energy production, the extent of the
impact from the threat is not just the original site, but also all
roads, power lines, and other infrastructure associated with the sites,
and noise associated with those areas that may interfere with
communication between male and female birds.
In the Southern DPS, woody vegetation encroachment by honey
mesquite has played a significant role in limiting available space for
the lesser prairie-chicken and is one of the primary threats to the
species in this DPS. Fire, incompatible grazing management, and drought
associated with climate change also continue to degrade habitat. The
size of fires, especially in areas dominated by woody vegetation, is
increasing. When managed compatibly, fire and grazing can improve
habitat quality. However, fire management efforts are currently
occurring on only a limited portion of the lesser prairie-chicken
range.
The Southern DPS is particularly vulnerable to effects associated
with climate change and drought, as it is already warmer and drier than
it was historically. That warmer and drier trend is expected to
continue (Grisham et al. 2013, entire; Grisham et al. 2016c, p. 742).
Given the needs of lesser prairie-chicken for cool microclimates to
find appropriate nest sites and rear broods, droughts like those that
have recently occurred on the landscape could further impact already
declining population growth rates in this DPS.
Conservation measures and regulatory mechanisms are acting to
reduce the magnitude of threats impacting the lesser prairie-chicken
and its habitat. However, our analysis demonstrates that the
restoration efforts have not been enough to offset the impacts of
habitat loss and fragmentation and conservation efforts focused on
localized management to affect habitat quality, are not addressing the
overarching limiting factor of habitat loss and fragmentation, and are
not addressing the long-term population needs for the lesser prairie-
chicken. Thus, these measures are only minimally ameliorating the
threats acting throughout the DPS.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
conclude that the Southern DPS is continuing to experience ongoing
habitat loss and fragmentation, and additional threats from influence
of anthropogenic noise and extreme weather events, particularly
droughts. We have estimated that currently, only 27 percent of this
ecoregion is potentially usable habitat for the lesser prairie-chicken.
Based on mean population estimates, the Southern DPS has very low
resiliency to stochastic events. It may have as few as 5,000 birds
remaining. The population counts have dropped to fewer than 1,000 birds
in 2015 and 2022 following drought conditions. Under current climactic
conditions, another wide-scale severe drought could occur in this
ecoregion at any time, and the species may not be able to recover.
Overall, the lesser prairie-chickens in the Southern DPS are likely to
continue to experience declines in resiliency, redundancy, and genetic
representation. Thus, after assessing the best available information,
[[Page 72745]]
we determine that the Southern DPS of the lesser prairie-chicken is in
danger of extinction throughout all of its range. We find that a
threatened species status is not appropriate for the Southern DPS
because the magnitude and imminence of the threats acting on the DPS
now result in the species meeting the definition of an endangered
species.
Status of the Southern DPS of the Lesser Prairie-Chicken Throughout a
Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Southern DPS of the lesser
prairie-chicken is in danger of extinction throughout all of its range
and accordingly did not undertake an analysis of any significant
portions of its range. Because the Southern DPS of the lesser prairie-
chicken warrants listing as endangered throughout all of its range, our
determination does not conflict with the decision in Center for
Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020),
because that decision related to significant portion of the range
analyses for species that warrant listing as threatened, not
endangered, throughout all of their range.
Determination of Status of the Southern DPS of the Lesser Prairie-
Chicken
Our review of the best available scientific and commercial
information indicates that the Southern DPS of the lesser prairie-
chicken meets the definition of an endangered species. Therefore, we
are listing the Southern DPS of the lesser prairie-chicken as an
endangered species in accordance with sections 3(6) and 4(a)(1) of the
Act.
Status of the Northern DPS of the Lesser Prairie-Chicken Throughout All
of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Northern DPS of the lesser prairie-chicken and its habitat. We
analyzed effects associated with habitat degradation, loss, and
fragmentation, including conversion of grassland to cropland (Factor
A), petroleum production (Factor A), wind energy development and
transmission (Factor A), woody vegetation encroachment (Factor A), and
roads and electrical distribution lines (Factor A); other factors, such
as livestock grazing (Factor A), shrub control and eradication (Factor
A), collision mortality from fences (Factor E), predation (Factor C),
influence of anthropogenic noise (Factor E), and fire (Factor A); and
extreme weather events (Factor E). We also analyzed existing regulatory
mechanisms (Factor D) and ongoing conservation measures. In the SSA
report, we also considered three additional threats: hunting and other
recreational, educational, and scientific use (Factor B); parasites and
diseases (Factor C); and insecticides (Factor E). As with the Southern
DPS, we consider all of these impacts now in analyzing the status of
the Northern DPS.
As is the case in the Southern DPS, habitat degradation, loss, and
fragmentation is the primary threat to the lesser prairie-chicken in
this DPS, with other threats such as fire, incompatible livestock
grazing, and extreme weather events further decreasing population
resiliency and species redundancy. The largest impacts in this DPS are
cropland conversion and woody vegetation encroachment. The Sand
Sagebrush Ecoregion is also experiencing habitat degradation due to
incompatible grazing management. The Short-Grass/CRP region has the
highest number of birds, with a 5-year estimate of approximately 23,000
birds. Other portions of the range have lower population resiliency. In
particular, the Sand Sagebrush Ecoregion has approximately 1,000 birds
remaining (table 2).
Resiliency of populations throughout the Northern DPS has decreased
from historical levels, although the DPS still has redundancy across
the three ecoregions and genetic and environmental representation.
However, our future scenario analysis demonstrates that the current
threats acting on the landscape are expected either to continue at the
same levels or increase in severity in the foreseeable future. Habitat
loss is projected to outpace conservation efforts to restore habitat.
Although we do not expect rates of habitat conversion to cropland to be
equivalent to historical rates, we expect any additional conversion
that does occur will have a disproportionately large effect on
resiliency and redundancy due to the limited amount of remaining large
intact grasslands. Conversion of habitat due to oil, gas, and wind
energy will continue to occur, although the rates of development are
uncertain. Woody vegetation encroachment is also expected to continue,
particularly in the Mixed-Grass Ecoregion. Increased drought and severe
weather events associated with climate change are expected to decrease
population resiliency and redundancy into the foreseeable future, and
as habitat availability continues to decline, and available habitat
blocks decrease in size, populations may decline to below quasi-
extinction levels. Our future scenarios project that over the next 25
years usable habitat will decrease from between 3 to 25 percent within
the Northern DPS (5-24 percent in the Short-Grass/CRP Ecoregion, 2-37
percent in the Mixed-Grass Ecoregion, and 3-14 percent in the Sand
Sagebrush Ecoregion) due to projected impacts from conversion to
cropland, energy development, and woody vegetation encroachment.
Conservation measures and regulatory mechanisms are acting to
reduce the magnitude of threats impacting the lesser prairie-chicken
and its habitat. However, our analysis demonstrates that future
restoration efforts will not be enough to offset the impacts of habitat
loss and fragmentation, and conservation efforts focused on localized
management to affect habitat quality are not addressing the overarching
limiting factor of habitat loss and fragmentation, and are not
addressing the long-term population needs for the lesser prairie-
chicken. Thus, these measures are having only minimal impacts on
threats acting throughout the DPS.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
find that the lesser prairie-chicken maintains populations in all three
ecoregions in the Northern DPS, and has genetic and ecological
representation in those ecoregions, as well as population redundancy
across the entirety of the DPS. Thus, lesser prairie-chickens in the
Northern DPS are not currently in danger of extinction, and thus the
Northern DPS does not meet the definition of endangered. However, our
future projections indicate that habitat will become increasingly
fragmented and less able to support lesser prairie-chickens. Thus,
after assessing the best available information, we conclude that the
Northern DPS of the lesser prairie-chicken is not currently in danger
of extinction but is likely to become in danger of extinction within
the foreseeable future throughout all of its range.
Status of the Northern DPS of the Lesser Prairie-Chicken Throughout a
Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020
[[Page 72746]]
WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological Diversity),
vacated the aspect of the Final Policy on Interpretation of the Phrase
``Significant Portion of Its Range'' in the Endangered Species Act's
Definitions of ``Endangered Species'' and ``Threatened Species'' (Final
Policy) (79 FR 37578; July 1, 2014) that provided that the Service does
not undertake an analysis of significant portions of a species' range
if the species warrants listing as threatened throughout all of its
range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for the Northern DPS of the
lesser prairie-chicken, we choose to address the status question
first--we consider information pertaining to the geographic
distribution of (a) individuals of the species, (b) the threats that
the species faces, and (c) the resiliency condition of populations. We
evaluated all parts of the Northern DPS, including the Sand Sagebrush
Ecoregion, the Mixed-Grass Ecoregion, and the Short-Grass/CRP
Ecoregion. We identified one portion, the Sand Sagebrush Ecoregion,
that may meet the definition of endangered, as population estimates
have shown the greatest declines in that portion of the range.
For the Northern DPS, we considered whether the threats or their
effects on the species are greater in any biologically meaningful
portion of the species' range than in other portions such that the
species is in danger of extinction now or likely to become so in the
foreseeable future in that portion. In this final rule, we examined
threats associated with habitat degradation, loss, and fragmentation,
including conversion of grassland to cropland; petroleum production;
wind energy development and transmission; woody vegetation
encroachment; and roads and electrical distribution lines. We also
examined threats associated with other factors, such as livestock
grazing; shrub control and eradication; collision mortality from
fences; predation; influence of anthropogenic noise; fire; and extreme
weather events. We also considered cumulative effects associated with
all those threats. However, we did not identify any threats that were
concentrated in the Sand Sagebrush Ecoregion that were not at similar
levels in the remainder of the range of the Northern DPS at a
biologically meaningful scale.
As explained in the response to public comments, we considered for
this final rule if the Sand Sagebrush Ecoregion is significant in
relation to the remainder of the range as an alternative approach to
the significant portion of the range analysis. Because Desert Survivors
v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D.
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d 946, 959 (D. Ariz. 2017) have invalidated the definition of
``significant'' set forth in the Final Policy, we determine
significance on a case-by-case basis using a reasonable interpretation
of significance and providing a rational basis for our determination.
For the purposes of this rule, we considered whether the Sand Sagebrush
Ecoregion constitutes habitat of high quality relative to the remaining
portions of the Northern DPS' range and whether the Sand Sagebrush
Ecoregion constitutes high or unique value habitat for the Northern
DPS. One way in which we may consider significance is if the identified
portion constitutes high or unique value habitat for the species; for
example, a portion that provides habitat used by the species to support
a life history stage. The Sand Sagebrush Ecoregion does not constitute
a portion of the range where limiting life history stages, such as
breeding or nesting, are concentrated, as the lesser prairie-chicken is
currently carrying out all important life history stages in each
portion of the Northern DPS. The lesser prairie-chicken reproduces and
nests throughout the Northern DPS, regardless of ecoregion. We also
considered if the Sand Sagebrush Ecoregion is a high-quality area that
is also the only area that has remained intact where other areas in the
range have been impacted by particular threats. Although the Sand
Sagebrush Ecoregion is important habitat for the lesser prairie-
chicken, it has been degraded due to incompatible grazing, historical
conversion of grassland to cropland, woody vegetation encroachment, and
roads and electrical distribution lines. When we consider the current
condition of the habitat in the Sand Sagebrush Ecoregion relative to
the Short-Grass/CRP Ecoregion and Mixed Grass Ecoregion, we find that
the habitat in all three ecoregions has been degraded. Thus, after
reviewing the Sand Sagebrush Ecoregion portion relative to the range of
the Northern DPS, we conclude that the Sand Sagebrush Ecoregion is not
significant.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This does not conflict with the courts'
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F.
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because,
in reaching this conclusion, we did not apply the aspects of the Final
Policy's definition of ``significant'' that those court decisions held
were invalid.
Determination of Status of the Northern DPS of the Lesser Prairie-
Chicken
Our review of the best scientific and commercial data available
indicates that the Northern DPS of the lesser prairie-chicken meets the
definition of a threatened species. Therefore, we are listing the
Northern DPS of the lesser prairie-chicken as a threatened species in
accordance with sections 3(20) and 4(a)(1) of the Act.
Critical Habitat
Section 3(5)(A) of the Act defines critical habitat as: (i) The
specific areas within the geographical area occupied by the species, at
the time it is listed on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed upon a determination by the Secretary
that such areas are essential for the conservation of the species.
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that we designate critical habitat at the time a
species is determined to be an endangered or threatened species, to the
maximum extent prudent and determinable. In the proposed listing rule
(86 FR 29432, June 1, 2021), we determined that designation of critical
habitat was prudent but not determinable because specific information
needed to analyze the impacts of designation was lacking.
[[Page 72747]]
We are still in the process of obtaining this information. As a result,
we reaffirm our finding that critical habitat is not determinable for
the lesser prairie-chicken at this time.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (http://www.fws.gov/lpc), or from
our Southwest Regional Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the States of Colorado,
Kansas, New Mexico, Oklahoma, and Texas will be eligible for Federal
funds to implement management actions that promote the protection or
recovery of the lesser prairie-chicken. Information on our grant
programs that are available to aid species recovery can be found at:
https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for the lesser prairie-chicken. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act
requires Federal agencies to ensure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of any endangered or threatened species or destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Some examples of Federal agency actions within the species' habitat
that may require consultation, as described in the preceding paragraph
include: landscape-altering activities on Federal lands; provision of
Federal funds to State and private entities through Service programs,
such as the PFW Program, the State Wildlife Grant Program, and the
Wildlife Restoration Program; construction and operation of
communication, radio, and similar towers by the Federal Communications
Commission or Federal Aviation Administration; issuance of section 404
Clean Water Act permits by the U.S. Army Corps of Engineers;
construction and management of petroleum pipeline by the Federal Energy
Regulatory Commission; construction and maintenance of roads or
highways by the Federal Highway Administration; implementation of
certain USDA agricultural assistance programs; Federal grant, loan, and
insurance programs; or Federal habitat restoration programs such as the
Environmental Quality Incentive Program and CRP; and development of
Federal minerals, such as oil and gas.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under
[[Page 72748]]
certain circumstances. Regulations governing permits are codified at 50
CFR 17.22. With regard to endangered wildlife, a permit may be issued
for the following purposes: for scientific purposes, to enhance the
propagation or survival of the species, and for incidental take in
connection with otherwise lawful activities. The statute also contains
certain exemptions from the prohibitions, which are found in sections 9
and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. For the Northern DPS of the lesser prairie-chicken, which we
are listing as threatened, the discussion below in section II regarding
protective regulations under section 4(d) of the Act complies with our
policy.
We now discuss specific activities related to the Southern DPS,
which we are listing as endangered. Based on the best available
information, the following actions are unlikely to result in a
violation of section 9, if these activities are carried out in
accordance with existing regulations and permit requirements; this list
is not comprehensive. As identified in the SSA report, restoration
actions are essential for conservation of the lesser prairie-chicken.
Restoration actions will not constitute a violation of section 9 as
those actions are implemented on lands that are not currently lesser
prairie-chicken habitat. These restoration actions include:
(1) Planting previously tilled or no till croplands to grasses;
(2) Removal of nonnative or invasive trees and shrubs, not
including shinnery oak or sand sagebrush; and
(3) Removal of existing infrastructure including oil and gas
infrastructure, electrical transmission and distribution lines,
windmills, existing fences, and other anthropogenic features impacting
the landscape.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act in the
Southern DPS of the lesser prairie-chicken if they are not authorized
in accordance with applicable law; this list is not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the species, including import
or export across State lines and international boundaries, except for
properly documented antique specimens of these taxa at least 100 years
old, as defined by section 10(h)(1) of the Act.
(2) Actions that would result in the unauthorized destruction or
alteration of the species' habitat. Such activities could include, but
are not limited to, the removal of native shrub or herbaceous
vegetation by any means for any infrastructure construction project or
the direct conversion of native shrub or herbaceous vegetation to
another land use.
(3) Actions that would result in sustained alteration of preferred
vegetative characteristics of lesser prairie-chicken habitat,
particularly those actions that would cause a reduction or loss in the
native invertebrate community within those habitats or alterations to
vegetative composition and structure. Such activities could include,
but are not limited to, incompatible livestock grazing, the application
of herbicides or insecticides, and seeding of nonnative plant species
that would compete with native vegetation for water, nutrients, and
space.
(4) Actions that would result in lesser prairie-chicken avoidance
of an area during one or more seasonal periods. Such activities could
include, but are not limited to, the construction of vertical
structures such as power lines, communication towers, buildings,
infrastructure to support energy development, roads, and other
anthropogenic features; motorized and nonmotorized recreational use;
and activities such as well drilling, operation, and maintenance, which
would entail significant human presence, noise, and infrastructure.
(5) Actions, intentional or otherwise, that would result in the
destruction of eggs or active nests or cause mortality or injury to
chicks, juveniles, or adult lesser prairie-chickens.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act in regard to the Southern DPS of the
lesser prairie-chicken should be directed to the Southwest Regional
Office (see FOR FURTHER INFORMATION CONTACT).
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this 4(d) rule will promote conservation of the
Northern DPS of the lesser prairie-chicken by encouraging essential
conservation efforts and management that enhance habitat quantity and
quality for the lesser prairie-chicken. The provisions of
[[Page 72749]]
this rule are one of many tools that we will use to promote the
conservation of the Northern DPS of the lesser prairie-chicken.
As mentioned previously in Available Conservation Measures, section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they fund, authorize, or carry out is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated critical habitat of such species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of Federal actions that are subject to
the section 7 consultation process are actions on State, Tribal, local,
or private lands that require a Federal permit (such as a permit from
the U.S. Army Corps of Engineers under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, a Federal agency's
determination that an action is ``not likely to adversely affect'' a
threatened species will require the Service's written concurrence.
Similarly, a Federal agency's determination that an action is ``likely
to adversely affect'' a threatened species will require formal
consultation and the formulation of a biological opinion.
Provisions of the 4(d) Rule
Exercising this authority under section 4(d), we have developed a
final rule that is designed to address the specific threats and
conservation needs of the Northern DPS of the lesser prairie-chicken.
As discussed above under Summary of Biological Status and Threats,
threats including habitat loss, fragmentation, and degradation are
affecting the status of the Northern DPS of the lesser prairie-chicken.
A range of activities have the potential to affect the Northern DPS of
the lesser prairie-chicken, including actions that would result in the
unauthorized destruction or alteration of the species' habitat. Such
activities could include, but are not limited to: the removal of native
shrub or herbaceous vegetation by any means for any infrastructure
construction project or direct conversion of native shrub or herbaceous
vegetation to another land use; actions that would result in the long-
term alteration of preferred vegetative characteristics of lesser
prairie-chicken habitat, particularly those actions that would cause a
reduction or loss in the native invertebrate community within those
habitats.
Activities that may result in long-term alteration of lesser
prairie-chicken habitat could include, but are not limited to,
incompatible livestock grazing; the application of herbicides or
insecticides; seeding of nonnative plant species that would compete
with native vegetation for water, nutrients, and space; and actions
that would result in lesser prairie-chicken avoidance of an area during
one or more seasonal periods. Activities that may result in lesser
prairie-chicken avoidance of an area include, but are not limited to,
the construction of vertical structures such as power lines;
communication towers; buildings; infrastructure to support energy
development, roads, and other anthropogenic features; motorized and
nonmotorized recreational use; and activities such as well drilling,
operation, and maintenance, which would entail significant human
presence, noise, and infrastructure; and actions, intentional or
otherwise, that would result in the destruction of eggs or active nests
or cause mortality or injury to chicks, juveniles, or adult lesser
prairie-chickens. Regulating these activities would slow the rate of
habitat loss, fragmentation, and degradation and decrease synergistic,
negative effects from other threats.
Section 4(d) requires the Secretary to issue such regulations as
she deems necessary and advisable to provide for the conservation of
each threatened species and authorizes the Secretary to include among
those protective regulations any of the prohibitions that section
9(a)(2) of the Act prescribes for endangered species. We find that the
protections, prohibitions, and exceptions in this final rule as a whole
satisfy the requirement in section 4(d) of the Act to issue regulations
deemed necessary and advisable to provide for the conservation of the
Northern DPS of the lesser prairie-chicken.
The protective regulations we are finalizing for the Northern DPS
of the lesser prairie-chicken incorporate prohibitions from section
9(a)(1) to address the threats to the species. Section 9(a)(1)
prohibits the following activities for endangered wildlife: importing
or exporting; take; possession and other acts with unlawfully taken
specimens; delivering, receiving, transporting, or shipping in
interstate or foreign commerce in the course of commercial activity; or
selling or offering for sale in interstate or foreign commerce. This
protective regulation includes all of these prohibitions for the
Northern DPS of the lesser prairie-chicken because the DPS is at risk
of extinction in the foreseeable future and putting these prohibitions
in place will help to prevent further declines, preserve the species'
remaining populations, slow its rate of decline, and decrease
synergistic, negative effects from other ongoing or future threats.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the species' remaining populations, slow their
rate of decline, and decrease synergistic, negative effects from other
ongoing or future threats. Therefore, we prohibit take of the Northern
DPS of the lesser prairie-chicken, except for take resulting from those
actions and activities specifically excepted by the 4(d) rule.
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, with several exceptions, which we found
are necessary and advisable to provide for the conservation of the DPS.
While developing this 4(d) rule, the Service considered exceptions to
the standard section 9 prohibitions for endangered species that would
facilitate essential conservation actions needed for the Northern DPS.
We consider essential conservation actions to include restoration
actions, use of prescribed fire, and compatible grazing management as
the primary essential conservation actions needed to conserve the
lesser prairie-chicken.
For the purposes of this rule and our SSA analysis, we consider
restoration actions to be actions that convert areas that are currently
not habitat for lesser prairie-chickens to areas that are habitat for
lesser prairie-chicken. These actions are essential for the
conservation of the
[[Page 72750]]
species as this is the only way to reverse past and current trends of
habitat loss and fragmentation. For the lesser prairie-chicken, the
primary restoration actions consist of woody vegetation removal in and
adjacent to grasslands (this does not include the removal of sand
shinnery oak (specifically, Quercus havardii species) or sand sagebrush
(specifically, Artemisia filifolia species)). Other restoration actions
include removal of existing anthropogenic features (such as existing
energy infrastructure, roads, fences, windmills, and other
anthropogenic features), and converting cropland to grassland. We have
determined that an exception under this 4(d) rule is not needed for
these restoration actions as they occur on lands already impacted or
altered in ways such that they no longer represent lesser prairie-
chicken habitat and thus there is no potential for a section 9
violation.
We also considered the value provided by the implementation of
prescribed fire on the landscape. Prior to extensive Euro-American
settlement, frequent fires helped confine trees (and other woody
vegetation) like eastern red cedar to river and stream drainages and
rocky outcroppings. However, settlement of the Southern Great Plains
altered the historical ecological context and disturbance regimes. The
frequency and intensity of these disturbances directly influenced the
ecological processes, biological diversity, and patchiness typical of
Great Plains grassland ecosystems, which evolved with frequent fire
that helped to maintain prairie habitat for lesser prairie-chicken
(Collins 1992, pp. 2003-2005; Fuhlendorf and Smeins 1999, pp. 732,
737).
Following Euro-American settlement, fire suppression allowed trees,
such as eastern red cedar, to begin invading or encroaching upon
neighboring grasslands. Implementation of prescribed fire is often the
best method to control or preclude tree invasion of grasslands.
However, to some landowners and land managers, burning of grassland can
be perceived as unnecessary for meeting their management goals, costly
and burdensome to enact, undesirable for optimizing production for
cattle, and likely to create wind erosion or ``blowouts'' in sandy
soils. Consequently, wildfire suppression is common, and relatively
little prescribed burning occurs on private land. Often, prescribed
fire is employed only after significant tree invasion has already
occurred and landowners consider forage production for cattle to have
diminished. Preclusion of woody vegetation encroachment on grasslands
of the southern Great Plains using fire requires implementing fire at a
frequency that mimics historical fire frequencies of 2-14 years
(Guyette et al. 2012, p. 330) and thus further limits the number of
landowners implementing fire in a manner that would truly preclude
future encroachment. We have determined that while there is a potential
for short-term adverse impacts to lesser prairie-chicken, we want to
encourage the use of prescribed fire on the landscape; thus, we provide
an exception for take resulting from this action in the 4(d) rule.
Finally, we considered the need for grazing activities that result
in the vegetation structure and composition needed to support the
lesser prairie-chicken. The habitat needs for the lesser prairie-
chicken vary across the range, and grazing can affect these habitats in
different ways. It is important that grazing be managed at a given site
to account for a variety of factors specific to the local ecological
site including past management, soils, precipitation, and other
factors. This management will ensure that the resulting vegetative
composition and structure will support the lesser prairie-chicken.
Grazing management that alters the vegetation community to a point
where the composition and structure are no longer suitable for lesser
prairie-chicken can contribute to habitat loss and fragmentation within
the landscape, even though these areas may remain as prairie or
grassland. Livestock grazing, however, is not inherently detrimental to
the lesser prairie-chicken, provided that grazing management results in
a plant community with species and structural diversity suitable for
the lesser prairie-chicken. When livestock grazing is managed
compatibly, it can be an invaluable tool necessary for managing healthy
grasslands benefiting the lesser prairie-chicken.
While developing this 4(d) rule, we found that determining how to
manage grazing in a manner compatible with the Northern DPS of the
lesser prairie-chicken is highly site-specific based on conditions at
the local level; thus, broad and prescriptive determinations within
this 4(d) rule would not be beneficial to the species or local land
managers. To ensure grazing management is compatible with lesser
prairie-chicken conservation, land managers should follow a site-
specific grazing management plan that was developed to account for a
variety of factors specific to the local ecological site, including
past management, soils, precipitation, and other factors. Although we
have determined that there is a potential for adverse impacts
associated with grazing, we recognize the value that livestock grazing
provides when managed compatibly and we want to encourage compatible
grazing management. Thus, our 4(d) rule provides an exception for take
associated with grazing management when land managers are following a
site-specific grazing plan developed by a ``Service-approved party.''
For the purposes of this rule, to be considered as a ``Service-approved
party,'' the individual or entity must possess adequate training or
experience, typically 5 years or more, in the fields of wildlife
management, biology, or range ecology. A ``Service-approved party''
must also have demonstrated the ability to develop a grazing management
plan that incorporates all the site-specific conditions discussed
above. Finally, a ``Service-approved party'' must have demonstrated the
ability to work with landowners to develop site-specific plans which
ensure grazing activities result in the vegetative characteristics
compatible with the habitat needs for the lesser prairie-chicken or
similar species. Prior to the effective date of this rule, the Service
will post a list of approved parties to our regional lesser prairie-
chicken web page (https://www.fws.gov/lpc). This list will be updated
as appropriate as additional parties request approval. We may also
update these initial requirements for a ``Service-approved party'' and
will provide any updated qualifications on our regional lesser prairie-
chicken web page (https://www.fws.gov/lpc).
Overall, the 4(d) rule will also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
Northern DPS of the lesser prairie-chicken, are not expected to rise to
the level that would have a negative impact (i.e., would have only de
minimis impacts) on the species' conservation. The exceptions to these
prohibitions include the following three items, which along with the
prohibitions, are set forth in the rule portion of this document:
(1) Continuation of routine agricultural practices on existing
cultivated lands.
This 4(d) rule provides that take of the lesser prairie-chicken
will not be prohibited provided the take is incidental to activities
that are conducted during the continuation of routine agricultural
practices, as specified below, on cultivated lands that are in row
crop, seed-drilled untilled crop, hay, or forage production. These
lands must meet the definition of
[[Page 72751]]
cropland as defined in 7 CFR 718.2, and, in addition, must have been
cultivated, meaning tilled, planted, or harvested, within the 5 years
preceding the proposed routine agricultural practice that may otherwise
result in take. Thus, this provision does not include take coverage for
any new conversion of grasslands into agriculture.
Lesser prairie-chickens may travel from native rangeland and CRP
lands, which provide cover types that support lesser prairie-chicken
nesting and brood-rearing, to forage within cultivated fields
supporting small grains, alfalfa, and hay production. Lesser prairie-
chickens also may maintain lek sites within these cultivated areas, and
they may be present during farming operations. Thus, existing
cultivated lands, although not a native habitat type, may provide food
resources for lesser prairie-chickens.
Routine agricultural activities covered by this provision include:
(a) Plowing, drilling, disking, mowing, or other mechanical
manipulation and management of lands.
(b) Routine activities in direct support of cultivated agriculture,
including replacement, upgrades, maintenance, and operation of existing
infrastructure such as buildings, irrigation conveyance structures,
fences, and roads.
(c) Use of chemicals in direct support of cultivated agriculture
when done in accordance with label recommendations.
We do not view regulating incidental take resulting from these
activities as necessary and advisable for the conservation of the
lesser prairie-chicken as, while there may be limited opportunistic use
by the species for opportunistic foraging and lekking sites, these
lands do not support the vegetative composition and structure necessary
to support the full suite of life history functions of the species.
None of the provisions in 50 CFR 17.21 would apply to take incidental
to activities associated with the continuation of routine agricultural
practices, as specified above, on existing cultivated lands that are in
row crop, seed-drilled untilled crop, hay, or forage production. These
lands must meet the definition of cropland as defined in 7 CFR 718.2,
and, in addition, must have been cultivated, meaning tilled, planted,
or harvested, within the previous 5 years.
(2) Implementation of prescribed fire for the purposes of grassland
management.
This 4(d) rule provides that take of the Northern DPS of the lesser
prairie-chicken will not be prohibited provided the take is incidental
to activities that are conducted during the implementation of
prescribed fire, as specified below, for the purpose of grassland and
shrubland management.
As discussed above, fire plays an essential role in maintaining
healthy grasslands and shrublands, preventing woody vegetation
encroachment, and encouraging the structural and species diversity of
the plant community required by the lesser prairie-chicken. The
intensity, scale, and frequency of fire regimes in the southern Great
Plains has been drastically altered due to human suppression of
wildfire resulting in widespread degradation and loss of grasslands.
While fire plays an important role, potential exists for some short-
term negative impacts to the lesser prairie-chicken while implementing
prescribed fire. The potential impacts depend upon what time of the
year the fire occurs, extent of habitat burned, and burn severity and
include, but are not limited to, disturbance of individuals,
destruction of nests, and impacts to available cover for nesting and
concealment from predators.
Prescribed fire activities covered by this provision include:
(a) Construction and maintenance of fuel breaks.
(b) Planning needed for application of prescribed fire.
(c) Implementation of the fire and all associated actions.
(d) Any necessary monitoring and followup actions.
Implementation of prescribed fire is essential to managing for
healthy grasslands and shrublands, but currently use of prescribed fire
is minimal or restricted to frequent use in small local areas within
the range of the lesser prairie-chicken. While prescribed fire has the
potential for some limited negative short-term effects on the lesser
prairie-chicken, we have concluded that the long-term benefits of
implementing prescribed fire drastically outweigh the short-term
negative effects. None of the provisions in 50 CFR 17.21 apply to the
implementation of prescribed fire as discussed above.
(3) Implementation of prescribed grazing following a site-specific
grazing management plan developed by a Service-approved party.
This 4(d) rule provides that take of the Northern DPS of the lesser
prairie-chicken will not be prohibited provided the take is incidental
to grazing management that is conducted by a land manager who is
implementing a grazing management plan developed by a qualified party
that has been approved by the Service for the specific purposes of this
4(d) rule. These grazing management plans must be reviewed and adjusted
to account for the current ecological conditions by the author at a
minimum every 5 years, must prescribe actions based upon site-specific
conditions including but not limited to soils, precipitation, and past
management, and must contain drought management measures. This
provision applies only to site-specific grazing management plans
developed by a qualified party that has been approved by the Service
for the specific purposes of this 4(d) rule.
This provision applies to potential impacts resulting from the
following:
(a) Physical impact of cattle to vegetative composition and
structure;
(b) Trampling of lesser prairie-chicken nests;
(c) Construction and maintenance of required infrastructure for
grazing management, including but not limited to fences and water
sources; and
(d) Other routine activities required to implement managed grazing,
including but not limited to feeding, monitoring, and moving of
livestock.
We find this exception is necessary and advisable for the
conservation of the species because compatible grazing is essential to
managing for healthy grasslands and shrublands, which provide habitat
for the lesser prairie-chicken. While compatible grazing management has
the potential for some limited negative short-term effects on the
lesser prairie-chicken, we have concluded that the long-term benefits
of implementing compatible grazing management that follows a site-
specific prescribed grazing plan developed by a qualified party that
has been approved by the Service for the specific purposes of this 4(d)
rule drastically outweigh the short-term negative effects. Furthermore,
as discussed in the background section of this 4(d) rule, compatibly
managed grazing is a necessary component for the management and
maintenance of healthy grassland for the lesser prairie-chicken. None
of the provisions in 50 CFR 17.21 apply to grazing management that is
conducted by a land manager who is implementing a site-specific grazing
management plan developed by a qualified party who has been approved by
the U.S. Fish and Wildlife Service for the specific purposes of this
4(d) rule as discussed above.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a
[[Page 72752]]
permit authorizing any activity otherwise prohibited with regard to
threatened species. These include permits issued for the following
purposes: for scientific purposes, to enhance propagation or survival,
for economic hardship, for zoological exhibition, for educational
purposes, for incidental taking, or for special purposes consistent
with the purposes of the Act (50 CFR 17.32). The statute also contains
certain exemptions from the prohibitions, which are found in sections 9
and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve the Northern DPS of the lesser prairie-
chicken that may result in otherwise prohibited take without additional
authorization.
Nothing in this 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or our ability to enter into partnerships
for the management and protection of the Northern DPS of the lesser
prairie-chicken. However, interagency cooperation may be further
streamlined through planned programmatic consultations between us and
other Federal agencies, where appropriate.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We also provided these Tribes the
opportunity to review a draft of the SSA report, to provide input prior
to making our proposed determination on the status of the lesser
prairie-chicken, and during the open comment period, but did not
receive any responses.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Southwest Regional Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
U.S. Fish and Wildlife Service's Species Assessment Team and the
Southwest Regional Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
[[Page 72753]]
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.11 amend the table in paragraph (h) by adding an entry
for ``Prairie-chicken, lesser [Northern DPS]'' and an entry for
``Prairie-chicken, lesser [Southern DPS]'' to the List of Endangered
and Threatened Wildlife in alphabetical order under Birds to read as
set forth below:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Birds
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Prairie-chicken, lesser Tympanuchus U.S.A. (All lesser T 87 FR [Insert Federal
[Northern DPS]. pallidicinctus. prairie-chickens Register page where
north of a line the document begins],
starting at 37.9868 11/25/2022;
N, 105.0133 W, and 50 CFR 17.41(k).\4d\
ending at 31.7351 N,
98.3773 W, NAD83; see
map at Sec.
17.41(k)).
Prairie-chicken, lesser Tympanuchus U.S.A. (All lesser E 87 FR [Insert Federal
[Southern DPS]. pallidicinctus. prairie-chickens Register page where
south of a line the document begins],
starting at 37.9868 11/25/2022.
N, 105.0133 W, and
ending at 31.7351 N,
98.3773 W, NAD83; see
map at Sec.
17.41(k)).
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.41 by adding paragraphs (g) through (k) to read as
follows:
Sec. 17.41 Special rules--birds.
* * * * *
(g) through (j) [Reserved]
(k) Lesser prairie-chicken (Tympanuchus pallidicinctus), Northern
Distinct Population Segment (DPS). The Northern DPS of the lesser
prairie-chicken pertains to lesser prairie-chickens found northeast of
a line starting in Colorado at 37.9868 N, 105.0133 W, going through
northeastern New Mexico, and ending in Texas at 31.7351 N, 98.3773 W,
NAD83, as shown in the map:
Figure 1 to paragraph (k)
[[Page 72754]]
[GRAPHIC] [TIFF OMITTED] TR25NO22.032
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Take as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Continuation of routine agricultural practices on existing
cultivated lands, including:
(1) Plowing, drilling, disking, mowing, or other mechanical
manipulation and management of lands;
(2) Routine activities in direct support of cultivated agriculture,
including replacement, upgrades, maintenance, and operation of existing
infrastructure such as buildings, irrigation conveyance structures,
fences, and roads; and
(3) Use of chemicals in direct support of cultivated agriculture
when done in accordance with label recommendations.
(B) Implementation of prescribed fire for the purposes of grassland
management, including:
(1) Construction and maintenance of fuel breaks;
(2) Planning needed for application of prescribed fire;
(3) Implementation of the fire and all associated actions; and
[[Page 72755]]
(4) Any necessary monitoring and followup actions.
(C) Implementation of prescribed grazing following a site-specific
grazing management plan developed by a Service-approved party,
including:
(1) Physical impact of cattle to vegetative composition and
structure;
(2) Trampling of lesser prairie-chicken nests;
(3) Construction and maintenance of required infrastructure for
grazing management, including but not limited to fences and water
sources; and
(4) Other routine activities required to implement managed grazing,
including but not limited to feeding, monitoring, and moving of
livestock.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-25214 Filed 11-18-22; 8:45 am]
BILLING CODE 4333-15-P