Chicken Little…and Falling Skies?

Posted on June 10, 2014 by David Tripp

On March 27, 2014, the U.S. Fish and Wildlife Service announced its intention to list the Lesser Prairie Chicken (Tympanuchus Pallidicinctus) as a threatened species under the Endangered Species Act. The diminutive LPC is a member of the grouse family, shorter than its close cousin the Greater Prairie Chicken by about one inch. Known for its colorful garb and ritualistic mating dances (jokingly referred to by one biologist as "Spring Break for Chickens"), the LPC population and habitat have declined significantly over the last decade in five states, according to surveys by FSW and state agencies.

Prior to the FWS listing, a voluntary LPC Range-Wide Conservation Plan was proposed by the fish and wildlife agencies of Texas, Oklahoma, Kansas, Colorado and New Mexico. These agencies of the five states with LPC habitat created the Western Area Fish and Wildlife Authority, or WAFWA. Two days before the FWS listing, WAFWA announced that 32 oil and gas, power transmission, and wind energy companies had committed to enroll more than 3.6 million acres in its LPC range-wide conservation plan, providing about $21 million for habitat conservation over 3 years. Despite this effort by WAFWA, the FWS listing went forward.

Is the sky falling for landowners and other parties operating in the LPC habitat areas designated by FWS? Clearly there will be limitations on land use; particularly in the high-priority areas where surveys have shown the presence of "leks" where the LPC gather to mate, or other areas of primary habitat activity. Companies in oil and gas, pipeline, electric transmission, wind energy and other sectors can enroll in the WAFWA program, pay a one-time fee and follow guidelines to minimize unavoidable impacts on the LPC and its habitat.

By participation in the WAWFA range-wide plan, these enrolled companies become a party to a Candidate Conservation Agreement with Assurances. This CCAA provides for protection for "incidental take" of the LPC or its habitat which may occur during operations, including emergency repairs to pipelines, electric transmission lines or similar activities.

However, for "Little Guy" or "Mom and Pop" operations, the picture is not so clear. A ranch or farm operation or a small, independent oil and gas producer or developer may face the need for individual permits from FWS or enrollment in the Natural Resources Conservation Service LPC Initiative. Protective assurances may be given in return for per-acre fees of up to $2.25/acre for oil and gas operations, and in the example of ranch operations, NRCS terms may limit grazing by cattle to no more than once in each five years.

Concerns over these land use limitations and the uncertainty regarding FWS penalties and enforcement policies for incidental take of the LPC or its habitat leave many small farm and ranch operators or oil and gas companies feeling they are under surveillance by mysterious forces, subject to sanctions they do not fully understand, with little power to resist. As a result, some oil and gas companies are abandoning plans to develop existing leases within the habitat areas and are not seeking new leases. Even oil and gas companies who are enrolled in the Rangewide Plan are struggling to understand how to operate moving forward. Land values will be impacted in the habitat areas when ranchers and farmers can find safer ground outside the LPC boundaries. While the LPC and its habitat now are better protected, it is not without cost and anxiety for humans living in the same area.



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