The Six Month Extension for a Listing Determination of the Lesser Prairie Chicken and Relevant Considerations Moving Forward

Posted on August 13, 2013 by Donald Shandy

The status of the Lesser Prairie Chicken has received a lot of attention over the last two years, but those affected by a listing decision will have to wait another six months to know whether the notorious bird will receive protection under the Endangered Species Act.  As part of a comprehensive settlement agreement in the case of In re Endangered Species Act Section 4 Deadline Litigation 2011, the U.S. Fish and Wildlife Service (“FWS”) agreed to make listing determinations under the Endangered Species Act (“ESA”) for more than 250 species by the end of 2016.  Pursuant to this agreement, on December 11, 2012, the FWS published its proposal to list the LPC as a threatened species under the Act, with a final determination to be made by September 30, 2013.  However, on July 9, 2013, the FWS announced a six month extension on the final listing determination, under an ESA provision that allows the agency to postpone decisions where there is significant scientific disagreement regarding the sufficiency or accuracy of the available data relating to the decision. In its notice, the FWS noted that it will solicit information to clarify and fully analyze issues raised during the initial comment period. These issues include whether the FWS has considered the effectiveness of conservation practices of the oil and gas industry and the agricultural industry, and the accuracy of short-term and long-term population trends of the LPC, particularly as it relates to climate change. 

Moreover, the FWS reopened the comment period for an additional thirty days.  Among other things, the FWS specifically requests comments on the application of the Lesser Prairie-Chicken Interstate Working Group’s draft rangewide conservation plan, developed in conjunction with the states of Kansas, Oklahoma, Colorado, Texas, and New Mexico to preserve LPC habitat and increase the LPC population.  Over the six month period, the FWS will obtain additional information and achieve better clarity on these and other issues prior to the final listing decision on March 30, 2014.  Until then, voluntary efforts to support the species’ population are sure to continue in full force, with the goal of helping the LPC population recover to the point where the protections of the ESA are not necessary.



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