Five Problems with the Proposed Rule to List the Lesser Prairie-Chicken

Last month, the U.S. Fish & Wildlife Service announced its long-awaited decision on whether to propose listing the lesser prairie-chicken as threatened under the Endangered Species Act (ESA).  It has been over fourteen years since the Service concluded that the species warranted listing.  With all this time, you would assume that the Service would have issued something close to an impeachable listing proposal.  But what Tim Male and I have uncovered in our review of the proposal are a number of puzzling and disappointing gaps.  Here, we summarize the top five problems.

First, the conservation goals for the lesser prairie-chicken are perplexingly low.  The Service believes that it can adequately conserve the species if it maintains a minimum of four “strongholds” — each consisting of 25,000 – 50,000 acres of habitat, 6-10 leks, and 6 birds of each sex — augmented by an “undetermined number of additional strongholds.”  Four strongholds would cover up to 200,000 acres, 40 leks, and 500 birds.  By meeting this goal and reducing threats to the species, the Service presumably believes that it can withdraw the proposed listing.  But 200,000 acres (313 sq. miles) is a mere 1.15 percent of the bird’s current occupied range (27,259 sq. miles) and 0.17 percent of its historic range (180,309 sq. miles).

Now also consider the Service’s conservation goals for the greater sage grouse, which is another candidate species facing similar threats and exhibiting similar life-history traits.  The Service believes it needs at least 20,000 sage grouse (40 populations of 500 birds each) distributed across 165 million acres of habitat.   So we have 20,000 sage grouse versus 500 prairie-chicken (40 times as much) and 165 million acres versus 200,000 acres (825 times as much).  Keep in mind that, by the Service’s own admission, these are “closely related and generally similar” species.  The Service has not explained how such gargantuan disparities are scientifically justified.

A second problem is that the proposed rule neglects to analyze the potential loss of lesser prairie-chicken habitat resulting from proposed changes to the federal Farm Bill, specifically the elimination of basic conservation requirements for farmers.  Recent data show that between 2008 and 2011, over 23 million acres of wildlife habitat was converted into row crop agriculture, including over 1.5 million acres in the counties where prairie chickens still occur (you can learn more about the losses in the blog post here).  These losses are the result of subsidies for crop insurance that incentivize the destruction of wildlife habitat as well as high crop prices, driven in part by ethanol subsidies and mandates.  Congress has also proposed changes to the Farm Bill that would exacerbate these losses, driving the prairie-chicken closer to extinction.  The listing proposal neither accounts for this recent data nor the proposed changes to the Farm Bill.  It instead relies on outdated and incomplete data from the U.S. Department of Agriculture on land use changes in the range of the prairie-chicken from many years ago.

A third issue is that the Service neglects recent data showing reduced enrollment in the USDA Conservation Reserve Program (CRP) in the counties the lesser prairie chicken occurs.  The Service first expounds on the importance of the CRP at preventing or stopping declines of the lesser prairie-chicken.  It then describes how farmers currently enrolled in the CRP have expiring contracts and are expected to reenroll.  It bases this prediction on the fact that in 2007, many farmers with expiring CRP contracts requested to reenroll.  What it never mentions is whether those farmers actually followed through.  The reality is that reenrollment after 2007 has been extremely low in counties occupied by the prairie-chicken.  Over 4.5 million acres expired between 2007 and 2013, but 2 million of those acres were never reenrolled.  Although over 1 million new acres have been enrolled and planted with grass, that habitat is likely to be of lower quality until it matures in several years.  More importantly, the new enrollment still leaves the CRP with a net loss of 1 million acres in the counties where the prairie-chicken is found.

A fourth problem is that the Service never analyzes the impacts of candidate conservation agreements for the lesser prairie-chicken.  The Service summarizes the status of the four candidate conservation agreements that have been finalized for the species and the one draft agreement that is pending approval.  For example, it describes the amount of habitat enrolled in each agreement and some of the conservation measures participants must implement.  But the Service never takes its analysis to the crucial next step: explaining how the agreements help reduce threats to the species and why the level of threat-reduction is not enough to avoid listing the species as threatened.

This is a troubling omission because in proposed listing rules for other species, the Service always explains why voluntary conservation agreements for the species are inadequate to obviate a listing.  These explanations have allowed the public to understand why agreements may fall short and what additional conservation is needed after listing.  For example, in the recent proposed rule to list the spring pygmy sunfish, the Service explained that the one candidate conservation agreement for the species was not enough to prevent listing.  The reason was that the agreement had yet to demonstrate its effectiveness and did not protect 76 percent of the species’ habitat.

The Service typically provides this explanation in its analysis of the threats that cause a species to warrant listing.  This analysis, also known as the five-factor threat analysis, covers issues including habitat loss and inadequacy of existing laws to protect the species.  The five-factor analysis for the prairie-chicken is entirely silent on the five candidate conservation agreements.  It is unfortunate that the Service spends many years of hard work to draft and implement the agreements, but then never explains their impacts on the species.

The final oversight is one of failing to follow the Service’s own procedures.  The Service concluded that the lesser prairie-chicken is “threatened” but never explains why it is not “endangered” throughout a “significant portion of its range.”  The Service is required to list a species if it is either “threatened” or “endangered” in either “all” or a “significant portion” of its range.  So there are four combinations that could trigger listing.  The proposed rule concludes that the lesser prairie-chicken is “threatened” in all of its range, but never explains why the species is not also “endangered” in only a “significant portion” of its range.  If the latter were true, the USFWS would have to list the species as endangered, which can offer greater protection than a threatened listing.

The failure to complete this analysis is a serious oversight that runs afoul of the requirements of the ESA and the Service’s own policies.  In fact, earlier this year, the USFWS issued a proposed policy that specifically confirms the need to analyze whether a species is endangered in a significant portion of its range—even if the species meets the definition of threatened.  This analysis is important for species like the lesser prairie-chicken that have been eliminated from most of their historic range.  For the prairie-chicken, some populations may be highly imperiled but also essential to the species’ ability to survive and recover.  It is precisely those populations that are likely to be endangered and make up a “significant portion” of the species’ range.  But the Service would never know unless it looked.

Defenders will continue to uncover additional gaps with the proposed rule, with the hope that the Service addresses these issues its upcoming decision to either finalize the proposed rule, modify it, or withdraw it.

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- who has written 19 posts on dotWild.

Ya-Wei Li is the Senior Director of Endangered Species Conservation at Defenders of Wildlife.

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