Lesser Prairie-Chicken to Be Listed—Again—as Threatened and Endangered Across 5 States

This Friday, November 25, the U.S. Fish and Wildlife Service (Service) will be publishing a final rule to list the lesser prairie-chicken as both threatened and endangered. The final rule will take effect 60 days later. This is a re-listing of the species after the species was first listed as threatened in 2014. The original listing was vacated in 2015 after a court ruling in Texas.

The new listing recognizes two Distinct Population Segments (DPSs). The Southern DPS occurs in the southern part of the lesser prairie-chicken’s range in eastern New Mexico and the southwest Texas Panhandle. The Northern DPS occurs in the northern part of the species’ range in southeastern Colorado, southcentral to western Kansas, western Oklahoma, and the northeast Texas Panhandle. The Southern DPS species will be listed as endangered and the Northern DPS will be listed as threatened.

The Service will also publish a new rule for the threatened DPS that will allow some activities to proceed without the need for take authorization. These exceptions from take prohibitions are called a “4(d) rule” because they are issued under that section of the Endangered Species Act (ESA).

The 4(d) rule for the Northern DPS allows three activities: 1) routine agricultural activities on existing cultivated lands, 2) prescribed burning for grassland management, and 3) livestock grazing that follows a site-specific grazing plan developed by a “Service-approved party.” See the final rule for definitions and explanations of each of these categories. This relatively narrow 4(d) rule is in contrast to the original 4(d) rule, which provided broad exceptions to a wide range of industries if they participated in a pre-approved conservation plan. ?

This new listing was anticipated for over a year, after the Service published a proposed rule in June 2021. In anticipation of this listing, the Service has allowed non-federal entities to prepare habitat conservation plans (HCPs) and apply for incidental take permits for lesser prairie chicken even though it was not yet listed. In the past, the Service did not allow HCPs only for non-listed species. We expect this policy to be codified in proposed revisions to ESA Section 10 regulations expected in early 2023.

ICF has substantial experience with the lesser prairie-chicken and in the tools available for ESA compliance.?We have over a dozen staff with an active permit to survey for the species and have conducted such surveys throughout their range. We are nationally recognized for our work in ESA permitting, including federal consultations and in preparing HCPs and related tools such as Safe Harbor Agreements (SHAs) and Candidate Conservation Agreements with Assurances (CCAAs). Contact me for more information. We look forward to helping our clients achieve their project goals in light of this new listing.