October 16, 2021

Volume XI, Number 289

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Lesser Prairie-Chicken Listed as Threatened Under Endangered Species Act (ESA)

On March 27, 2014, the U.S. Fish and Wildlife Service (USFWS) announced the final listing of the lesser prairie-chicken, a grassland bird that roams across key areas for oil and gas development in Texas, New Mexico, Oklahoma, Kansas and Colorado, as “threatened” under the Endangered Species Act (ESA).  At the same time, the USFWS issued a final special rule under section 4(d) of the ESA that is intended to limit the regulatory impacts of the listing on energy developers (e.g., oil and gas, wind, transmission) and landowners participating in approved range-wide conservation plans.

Under the ESA, it is illegal for any person to “take” threatened wildlife (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt any of these).  Harm is defined to include significant habitat modification or degradation if it results in death or injury to a threatened species by significantly impairing essential behavior patterns, including breeding, feeding or sheltering.

As a result of the final listing, energy producers engaged in activities that cause harm or death to the lesser prairie-chicken, including destruction of critical habitat, could potentially face substantial fines and penalties under the ESA.

The final listing comes after significant efforts by the five range states, landowners, and the energy industry to voluntarily conserve the lesser prairie-chicken and avoid classification of the bird as “threatened” under the ESA.  Many energy developers have already enrolled in candidate conservation agreements and will not be subject to additional restrictions or required to undertake additional actions as a result of the listing, as long as they continue to conduct their activities pursuant to the range-wide plan.

The final rule to list the lesser prairie-chicken as threatened and the final special rule are expected to be published in the Federal Register in the next few days and will be effective 30 days after publication.  

Photo credit: USFWS

© 2021 Bracewell LLPNational Law Review, Volume IV, Number 87
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About this Author

Heather M. Palmer, Bracewell Law Firm, Environmental Attorney
Partner

Heather Corken offers clients in-depth environmental regulatory knowledge and experience in energy-related environmental issues. As a partner in the environmental strategies group, Heather helps energy, petrochemical and pipeline companies and private equity firms that are seeking guidance on environmental compliance and the allocation of environmental liabilities in mergers and acquisitions.

713-221-1526
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