Nothing to say about a 4(d) Rule Proposal? How about the Lesser Prarie Chicken?

Comments closed last week on a US Fish and Wildlife proposal regarding measures to conserve, and potentially list, the Lesser Prairie Chicken (LPC). The bureaucratic wheels of policy process aren’t to everyone’s interest, but those who were savvy might have taken the time to comment while they could. 23, 773 people and organizations did, including ranchers, conservation NGO’s, Local, State and Federal government departments as well as major energy developers from the oil, gas and wind sectors.

Those comments discussed the FWS’s proposed use of a 4 (d) rule to make it is illegal to ‘take’ Lesser Prairie Chicken, and certain ‘exceptions’ that might allow ‘take’ to be avoided in the right circumstances. Proposed measures – indeed the objective of a 4 (d) rule – offer protection to Threatened species similar to that given to Endangered Species, without a comprehensive ‘Endangered Species Listing.

But what does some obscure-sounding 4D Rule Proposal in the halls of Washington DC, mean for those on the ground conserving and developing in the range of the Lesser Prairie Chicken out west?

A 4 (D) what-cha-say? Little-known part of the ESA

For those not familiar with a 4(d) rule previously, a review: Section 4 (d) of the Endangered Species Act, empowers the Fish and Wildlife agency to issues rules (a 4(d) rule) concerning Threatened species, not yet listed as Endangered. Such rules essentially establish what measures it would be needed to conserve the species, and draws a clear line how ‘take’ (or damage) can occur.

If simply written, a 4(d) rule can simply prohibit ‘take’ of the species. If complexly written a rule may describe how specific activities can be given special exemption from ‘take’ if proponents follow the specific exemption instructions within the rule.

Previous 4(d) rules have also given ‘special exception’ if it’s in the species interest. A similar 4(d) rule issued for the Grey Wolf allowed ranchers to ‘take’ wolves when an identified wolf had attacked ranchers’ stock. Rationale being that allowing ranchers to cull one problem wolf as problems arose would prevent more wide-spread pre-emptive vigilante culling, and this would benefit the species as a whole overall.

This proposed 4(d) rule for the Lesser Prairie Chicken offers exemption from ‘take’ if applicants are operating under and Approved Conservation Plan.  This suggestion is interesting to those already working hard on issues of Lesser Prairie Chicken conservation and development in the birds’ range. Galvanised because the Lesser Prairie Chicken has already been prioritised for listing as Endangered under the ESA since the 2011 FWS settlement with the Center for Biological Diversity groups are keenly preparing for 2015 when the FWS must determine if this listing should change from Candidate Species to Endangered Species.

This listing decision is expected to have important outcomes for these groups working hard to prevent the decline of this iconic and unique prairie species because listing would provide extra tools to enforce conservation, such as prohibiting ‘take’. Listing would also introduce noticeable work for groups looking to develop large-scale projects such as wind farms in the Mid-West States the species ranges across by adding extra steps to the project approval process – and likely extra costs. .

Conservation Banking for the Lesser Prairie Chicken perhaps?

At the intersection of economics and conservation concerns are Conservation Bankers – those who have success elsewhere through conserving Endangered Species and their Habitat while preserving the economic viability of a land-owners holdings by generating Conservation Credits for sale. Also, with guaranteed conservation available via accessible conservation credits, development projects have been able to secure the mitigation their project needs to be able to go ahead.

A Conservation Banking approach could be used for Lesser Prairie Chickens: the Conservation Program that the 4 (d) makes room for might encompass a Conservation Banking system. The positive actions required to exempt a project from ‘take’ might be achieved via purchasing Conservation Credits for the Lesser Prairie Chicken from a Lesser Prairie Chicken bank or credit exchange program, perhaps. Supporters suggests such a program would keep the economy ticking over while ensuring the species overall, continues to be conserved.

But the proposal doesn’t explicitly talk about such a trading program.

The FSW is, however, requesting comments on information about the current threats to the LPC and what we all think of the Lesser Prairie-Chicken Interstate Working Group’s draft rangewide conservati as well as areas appropriate for critical habitat designation and finally, the very nature of the environment the LPC is living in and what it will take to keep it that way. These are all important items of information to build a Conservation Banking program with, too.

The parts we’ve been waiting for – and Net Gain?

Regardless of where Lesser Prarie Chicken conservation could go in the future, the proposal before us importantly prohibits ‘take’ lesser Prairie Chickens, and that to obtain an exemption one must comply with a Conservation Plan:

“The Service proposes that take incidental to activities conducted pursuant to a comprehensive conservation program that was developed by or in coordination with the State agency or agencies responsible for the management and conservation of fish and wildlife within the affected State(s), or their agent(s), that has a clear mechanism for enrolment of participating landowners, and that has been determined by the Service to provide a net conservation benefit to the lesser prairie-chicken, will not be prohibited.”

Now, there is a Conservation Plan to provide food for thought. The proposal includes a request for comments on the Lesser Prairie Chicken Rangewide Conservation Plan.  The Texas Parks and Wildlife Department support this plan,

But the Defenders of wildlife don’t

A given Conservation Plan has the potential to be thorough, informed and effective.  But if the Conservation Plan is not up to speed, the positive outcomes aren’t guaranteed. It seems the 4 (d) rule proposal offers a mechanism for enforcing a conservation plan, but not the quality of the conservation plan itself might not be as water-tight and that could be a weak spot.

The proposed rule does describe the kinds of elements such a program might have, including monitoring, funding, adaptive management and objective and measuring biological goals and outcomes. Importantly, the FWS clearly suggest all such programs must be for ‘net conservation gain’. This is slightly different from current Mitigation and Conservation Banking where No Net Loss, and no reduction in likelihood of species survival are the aims, respectively.

To most effectively used in achieving comprehensive and long-lasting impact mitigation there must be certainty that the impact is linked to the mitigation and the credit exchange occurring. And the certainty needs to be clear and transparent. Seemingly the current proposal stops short of such certainty. It might not go far enough to achieve the outcomes many interested groups are searching for.

The NMBA and private consultancy Common Ground Capital have both come out suggesting overall support, but that the proposal doesn’t quite go far enough. They’d like to see the benefits of conservation banking more explicitly included.

The Lesser Prairie Chicken and the wider Candidate Species Conservation challenge

The Independent Petroleum Association of America (“IPAA”)

“represents thousands of independent oil and natural gas explorers and producers, as well as the service and supply industries that support their efforts,… develop 95 percent of American oil and natural gas wells, produce 54 percent of American oil and produce 85 percent of American natural gas.”

The IPPA made one of many submissions that did not support a move from Candidate to Threatened as the rule proposed. They did however, sanction the move if exemptions were provided to oil and gas activities and allowed their current conservation enrolment to be included. But this is likely to be an unpopular suggestion, and a lingering problem with Candidate Species Conservation – how do you deal with the Candidate Species conservers when the species becomes Threatened? Seemingly, the 4 (d) rule didn’t yet resolve this.

The Federal Bureau for Land Management focused on these existing arrangements, and cautioned that greater clarify is indeed needed. Their submission draws especially notable attention to the use of Candidate Conservation Agreements, some with Assurances (CCA’s and CCAA’s) highlighting that how these interact with the proposed 4 (d) rule needs careful consideration for long-term conservation integrity. Simply rolling them together raises concerns for many.

Amongst so many submissions it may be too early to pin down what kind of on-the-ground impact this rule will happen, and whether it will make it into the pages of National Regulation as policy. This proposal may simply be another way to explore possible solutions to these tricky Candidate Species issues.

Regardless, a 4 (d) rule seems a fair approach, promising enough and offering various elements to each of the diverse parties interested. It may indeed incorporate some level regulatory support and legal reliability needed because it’s a piece of regulation that’s been used before.

But it hasn’t been used for the Lesser Prairie Chicken before, and that might be the rub. Unless this proposal includes the components that provide fair, transparent and effective conservation with a comprehensive, long-term outlook it risks not being worth the proverbial paper it is written on.  Let’s hope amongst the avalanche of comments the FWS received they can dig out the guidance they needed to deliver a solution to the Middwest and the Lesser Prairie Chicken can be proud of. Goodness knows the Lesser Prairie Chicken not the only Candidate Species gasping for a solution – might this be the one?


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