The Lesser Prairie Chicken Has Been Listed As Threatened: Now What!? The Lesser Prairie Chicken Has Been Listed As Threatened: Now What!? Jim Jones Power Generation Business Lead April 11, 2013 Brooke Marcus Wahlberg Associate April 11, 2013

Why was the LEPC listed? “It is in dire straights” Cumulative habitat loss and fragmentation from: Conversion of native grasslands to agricultural use Petroleum production Invasion of woody plants into grasslands Roads Vertical structures Wind 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 future Practically 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 species Section 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 Authorization How can I get my project authorized for endangered species impacts?

Take Authorization If 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 Authorization Section 7 Consultation Section 7 - Projects with a federal nexus Triggered by federal land, permit, or funding Requires an Interagency consultation between USFWS and federal action agency Project proponent assists action agency with analysis and documentation Requires 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/HCP Project proponent prepares application for a Section 10 permit which includes: Habitat Conservation Plan Draft NEPA document Stakeholder and/or public input may be required USFWS reviews and approves applications: Public notice and opportunity for comment Section 7 Biological Opinion NEPA analysis Review 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 standards Take must be incidental to otherwise lawful activities Avoid jeopardizing the survival and recovery of the species Avoid adversely modifying Critical Habitat Minimize and mitigate to the maximum extent practicable Incidental Take Permit Establishes the amount and extent of authorized impacts Permit terms and conditions require implementation of the HCP Provides “No Surprises” assurances

Typical ESA Permitting Process Process Steps Baseline studies Impacts analysis Conservation and mitigation planning Document preparation Agency coordination Stakeholder and/or public involvement Permit issuance Schedule: 1-5 years Costs: $50k - $500k or more

Other Compliance Options Unique to LEPC 4(d) Rule or “Special Take Rule” Mechanism only allowed for Threatened species Allows 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 Plan USFWS 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 LEPC Existing CCAAs? Other plans? Timing issues with existing CCAAs Great 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 ApplicabilityPotential Benefits Potential Drawbacks Individual HCP/Permit MEP for Impactsnon-federal activity included as Covered Activities Project specific; no recovery standard Time and cost for permitting process Regional or Programmatic HCP/Permit MEP for ImpactsNon-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 actionsDefined 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