The Lesser Prairie Chicken Has Been Listed As

Threatened:

Now What!?

Jim JonesPower Generation Business LeadApril 11, 2013

Brooke Marcus WahlbergAssociateApril 11, 2013

Why was the LEPC listed?“It is in dire straights”

Cumulative habitat loss and fragmentation from:Conversion of native grasslands to agricultural usePetroleum production Invasion of woody plants into grasslandsRoadsVertical structuresWind energy development

Increased vulnerability to climate change, predation, and disease

Reduced range and smaller, isolated populations

LEPC Listing Rule

Threatened status (as opposed to endangered)USFWS believes LECP is likely to be in danger of

EXTINCTION in the foreseeable futurePractically speaking, threatened instead of

endangered doesn’t mean much except for 4(d) rule.

Final Rule – April 10, 2014

Listing effective after 30 days (May 12, 2014)

THEN WHAT??

Endangered Species Act of 1973

Protects listed speciesSection 9 makes it Illegal to "take" a listed

species without authorization “Take” means to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect any threatened or endangered species

“Harm” can include significant habitat modification where it actually kills or injures a listed species through impairment of essential behaviors

Civil and criminal penalties for ESA violations

USFWS Guidance on LEPC Take

From the final rule:The following activities could potentially result in a

violation of Section 9 of the ESA ; this list is not comprehensive: Unauthorized destruction or alteration of habitat by

removing native vegetation Long-term (3 yrs) alteration of preferred vegetation

(grazing, chemical applications, reseeding with non-native plants)

Actions that cause LEPC to avoid habitats (construction of vertical structures, recreational use of habitats, other human disturbances)

What if Impacts to LEPC are Possible?Avoid Take

Not all impacts rise to the level of take!For actions without federal nexus, if there’s no risk of

take then no authorization from or coordination with USFWS is required

“Iterative Take Assessment” – work with ENV professional to plan activities to avoid take Where are you at risk? How can you reduce that risk to

an acceptable level?

Careful documentation is essential to demonstrate an avoidance strategy (“self-certification”)

Third party challenges

ESA AuthorizationHow can I get my project authorized for endangered species impacts?

Take AuthorizationIf can’t avoid take – then need

authorization from USFWS to comply with ESA, or risk an enforcement action

Two authorization pathways, Section 7 (federal actions), Section 10 (non-federal actions)

Take AuthorizationSection 7 Consultation

Section 7 - Projects with a federal nexus Triggered by federal land, permit, or fundingRequires an Interagency consultation

between USFWS and federal action agencyProject proponent assists action agency with

analysis and documentationRequires that USFWS insure that any action

authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat.

Take authorization Section 10 ITP/HCPProject proponent prepares application for a

Section 10 permit which includes:Habitat Conservation PlanDraft NEPA document Stakeholder and/or public input may be required

USFWS reviews and approves applications:Public notice and opportunity for commentSection 7 Biological OpinionNEPA analysisReview at multiple office levels

Section 10 HCP Process Required HCP elements (16 U.S.C. § 1539(a)(2)(A)):

Impacts that will likely result from the taking Steps applicant will take to minimize and mitigate

such impacts, and the funding that will be available to implement such steps

Alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized

Other measures required by the Secretary Also, by Policy:

Biological goals and objectives Monitoring Adaptive management

Section 10 Permit Standards

Permit issuance standardsTake must be incidental to otherwise lawful activitiesAvoid jeopardizing the survival and recovery of the

speciesAvoid adversely modifying Critical HabitatMinimize and mitigate to the maximum extent

practicable

Incidental Take PermitEstablishes the amount and extent of authorized

impactsPermit terms and conditions require implementation

of the HCPProvides “No Surprises” assurances

Typical ESA Permitting ProcessProcess Steps

Baseline studies Impacts analysisConservation and mitigation planningDocument preparationAgency coordinationStakeholder and/or public involvementPermit issuance

Schedule: 1-5 years

Costs: $50k - $500k or more

Other Compliance Options Unique to LEPC4(d) Rule or “Special Take Rule”

Mechanism only allowed for Threatened speciesAllows USFWS to authorize by rule take that would

otherwise be prohibited – exempts certain activities from take prohibitions

LEPC 4(d) Rule exempts: Any activities conducted under a comprehensive

conservation program developed by or in coordination with State agencies and approved by USFWS that provides a net conservation benefit to the LEPC

Agricultural activities conducted under NRCS LEPC Initiative

Special Take Rule – WAFWA Rangewide PlanUSFWS endorsed the WAFWA Rangewide Plan as a

comprehensive conservation program sufficient under the Special Take Rule

Participation in the Plan is an alternative exemption to the ESA Section 9 take prohibition.

Requires an enrollment fee and mitigation fee. Mitigation fee calculated based on extent of impacts and quality of habitat. Different uses have different fees.

Requires entering into a conservation agreement with WAFWA and participation sufficiently in advance of impacts to allow for mitigation to be on the ground prior to impacts.

Other Compliance Options Unique to LEPCExisting CCAAs? Other plans?

Timing issues with existing CCAAsGreat Plains HCP includes LEPC but

public draft not available and mechanics of participating are not final

Other comprehensive conservation plans? Unlikely

Compliance Method

Conservation Standard

Applicability Potential Benefits

Potential Drawbacks

Individual HCP/Permit

MEP for Impacts

non-federal activity included as Covered Activities

Project specific; no recovery standard

Time and cost for permitting process

Regional or Programmatic HCP/Permit

MEP for Impacts

Non-federal activities included as Covered Activities

Streamlined permitting process; predictable; no recovery standard

One-size fits all approach to assessing take and mitigation; time and cost on the front end

Section 7 Consultation

Avoid jeopardy and adverse mod of CH

Federal actions Defined timelines; different standard for approval

Limited applicability

5-state Range-wide Plan/4(d) rule

Net conservation benefit (recovery)

Most non-federal activities, subject to certain standards

Avoids federal involvement; seamless transition

Complicated, one-size fits all approach; higher conservation standard; high fees

NRCS LEPC Initiative/4(d) rule

Avoid jeopardy and adverse mod of CH

Agricultural activities subject to certain standards

Consistent with current programs

Limited applicability

Existing State CCAA

Net conservation benefit (recovery)

Most non-federal activities, subject to certain standards

Existing programs with predictable process

Higher conservation standard; participation only open until listing

Take Home Messages

Listing won’t prohibit otherwise lawful land uses; although there will likely be costs for compliance

Conduct a careful and comprehensive analysis of the likelihood of PRESENCE and TAKE – not all adverse impacts rise to the level of take

ESA provides several tools to achieve compliance - each with its own pros and cons

Understand your liabilities and obligations under the ESA and find the right tool for your project