[House Report 118-94]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 118-94
======================================================================
PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5,
UNITED STATES CODE, OF THE RULE SUBMITTED BY THE UNITED STATES FISH AND
WILDLIFE SERVICE RELATING TO ``ENDANGERED AND THREATENED WILDLIFE AND
PLANTS; LESSER PRAIRIE-CHICKEN; THREATENED STATUS WITH SECTION 4(D)
RULE FOR THE NORTHERN DISTINCT POPULATION SEGMENT AND ENDANGERED STATUS
FOR THE SOUTHERN DISTINCT POPULATION SEGMENT''
_______
June 5, 2023.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Westerman, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.J. Res. 29]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the joint resolution (H.J. Res. 29) providing for congressional
disapproval under chapter 8 of title 5, United States Code, of
the rule submitted by the United States Fish and Wildlife
Service relating to ``Endangered and Threatened Wildlife and
Plants; Lesser Prairie-Chicken; Threatened Status With Section
4(d) Rule for the Northern Distinct Population Segment and
Endangered Status for the Southern Distinct Population
Segment'', having considered the same, reports favorably
thereon without amendment and recommends that the joint
resolution do pass.
PURPOSE OF THE LEGISLATION
The purpose of H.J. Res. 29 is to provide for congressional
disapproval under chapter 8 of title 5, United States Code, of
the rule submitted by the United States Fish and Wildlife
Service relating to ``Endangered and Threatened Wildlife and
Plants; Lesser Prairie-Chicken; Threatened Status With Section
4(d) Rule for the Northern Distinct Population Segment and
Endangered Status for the Southern Distinct Population
Segment''.
BACKGROUND AND NEED FOR LEGISLATION
On November 25, 2022, the U.S. Fish and Wildlife Service
(USFWS) published a final rule that added the Lesser Prairie
Chicken (LPC) to the federal endangered species list under the
Endangered Species Act (ESA) and created two distinct
population segments (DPS).\1\ Specifically, the LPC would be
listed as threatened in the Northern DPS, which covers Kansas,
Oklahoma, and the northern Texas Panhandle and in the Southern
DPS the LPC would be listed as endangered, which covers New
Mexico and west Texas.\2\ H.J. Res. 29 would repeal this rule
and return the LPC to its previous non-ESA management
framework.
---------------------------------------------------------------------------
\1\Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status With Section 4(d) Rule for the Northern
Distinct Population Segment and Endangered Status for the Southern
Distinct Population Segment. 87 FR 72674 (2022).
\2\Id.
---------------------------------------------------------------------------
LPC ESA History
The LPC is known as a ``boom and bust'' species that is
susceptible to weather conditions such as drought or high
precipitation periods.\3\ As such, the LPC has been subject to
several listing petitions from environmental groups since 1995,
with the USFWS making a 12-month finding in 1998 that ``listing
this species is warranted but precluded by other higher
priority actions.''\4\
---------------------------------------------------------------------------
\3\Id.
\4\Endangered and Threatened Wildlife and Plants; 12-Month Finding
for a Petition To List the Lesser Prairie-Chicken as Threatened and
Designate Critical Habitat, 63 Fed. Reg. 31400-31406 (1998).
---------------------------------------------------------------------------
On September 1, 2010, WildEarth Guardians filed suit
against the USFWS over several species the litigant desired to
be listed, including the LPC.\5\ In May 2011, the USFWS entered
into a settlement agreement with WildEarth Guardians that
required the USFWS to publish a listing rule for the LPC.\6\
The USFWS published the proposed rule listing the LPC as
threatened throughout its range on December 11, 2012.\7\ The
final rule\8\ and concurrent 4(d) rule were published on April
10, 2014.\9\ The rule was challenged by the Permian Basin
Petroleum Association and several New Mexico counties on
September 1, 2015, the U.S. Federal District Court for the
Western District of Texas vacated the final listing rule for
the LPC, forcing USFWS to remove the LPC from the endangered
species list.\10\ Federal Judge Robert Junell specifically
stated in his opinion that his main justification for striking
down the rule was that the USFWS did not properly consider the
voluntary conservation measures that were in place for the LPC
when the Service made its listing decision.\11\
---------------------------------------------------------------------------
\5\Press Release: ``Lawsuit Filed over Federal Failure to Protect
Rare Lesser Prairie-Chicken'' September 1, 2010. WildEarth Guardians.
https://wildearthguardians.org/press-releases/group-marks-first-
passenger-pigeon-day/.
\6\ Press Release: ``WildEarth Guardians and Interior Reach
Settlement on Endangered Species Listings'' May 10, 2011. https://
wildearthguardians.org/press-releases/hope-for-endangered-species-act-
candidates/.
\7\Endangered and Threatened Wildlife and Plants; Listing the
Lesser Prairie-Chicken as a Threatened Species. 77 Fed. Reg. 73827-
73888 (2012).
\8\Endangered and Threatened Wildlife and Plants; Determination of
Threatened Status for the Lesser Prairie-Chicken. 79 Fed. Reg. 19973-
20071 (2014).
\9\Endangered and Threatened Wildlife and Plants; Special Rule for
the Lesser Prairie-Chicken. 79 Fed. Reg. 20073-20085 (2012).
\10\``Court Vacates Lesser Prairie Chicken Listing Under Endangered
Species Act.'' Tiffany Dowell. Texas A&M Agrilife Extension. 11/6/15.
Court Vacates Lesser Prairie Chicken Listing Under Endangered Species
Act--Texas Agriculture Law (agrilife.org).
\11\Id.
---------------------------------------------------------------------------
On September 8, 2016, WildEarth Guardians, Defenders of
Wildlife, and the Center for Biological Diversity again
petitioned to list the LPC, claiming the LPC was on the verge
of extinction.\12\ On November 30, 2016, the USFWS published a
90-day finding that listing may be warranted and initiated a
12-month finding to determine whether to list the LPC.\13\ The
same environmental groups sued USFWS for not completing the 12-
month study in June 2019\14\ and in September of that year
USFWS entered into a settlement agreement.\15\ The agreement
required the agency to publish a 12-month finding, which was
released on June 1, 2021, and led to the November 25, 2022,
rulemaking.\16\
---------------------------------------------------------------------------
\12\``Petition to list the Lesser Prairie Chicken (Tympanuchus
pallidicinctus) and Three Distinct Population Segments under the U.S.
Endangered Species Act and Emergency Listing Petition for the Shinnery
Oak Prairie and Sand Sage Prairie Distinct Population Segments.''
WildEarth Guardians. 9/8/2016. LPC petition 2016 final
(wildearthguardians.org).
\13\Endangered and Threatened Wildlife and Plants; 90-Day Findings
on Three Petitions. 81 Fed. Reg. 86315-86318 (2016).
\14\Press Release: Lawsuit Seeks Endangered Species Protections for
Lesser Prairie Chickens. Center for Biological Diversity. June 12,
2019. https://biologicaldiversity.org/w/news/press-releases/lawsuit-
seeks-endangered-species-protections-lesser-prairie-chickens-2019-06-
12/.
\15\Stipulated Settlement Agreement: 1:19-cv-01709-RC (D.D.C. Sep.
12, 2019).
\16\Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status with Section 4(d) Rule for the Northern
District Population Segment and Endangered Status for the Southern
Distinct Population Segment. 87 Fed. Reg. 72674-72755 (2022).
---------------------------------------------------------------------------
Voluntary Conservation
The aforementioned rounds of litigation did not take into
account the successful voluntary measures intended to benefit
the LPC. Starting in 2012, stakeholders who would possibly be
affected by a listing of the LPC came together to form the
Lesser Prairie Chicken Interstate Working Group (Working
Group). The Working Group is composed of the Western
Association of Fish & Wildlife Agencies, the state wildlife
directors of the five impacted states, industry (oil and gas,
wind, and utilities), and private landowners.\17\
---------------------------------------------------------------------------
\17\``Lesser Prairie-Chicken.'' Western Association of Fish &
Wildlife Agencies. Lesser Prairie-Chicken--WAFWA.
---------------------------------------------------------------------------
In October 2013, the Working Group published the Lesser
Prairie Chicken Range-Wide Conservation Plan.\18\ This plan
created a framework for all affected stakeholders to conserve
LPC habitat on private and public land through Candidate
Conservation Agreements (CCA) and Candidate Conservation
Agreements with Assurances (CCAA). The CCA/CCAA program,
authorized by the USFWS, allows private landowners to implement
voluntary actions designed to reduce threats to a covered
species. These agreements provide a level of certainty to
property owners that, if they provide a net-benefit to the
species by conserving habitat, they will not be required to
implement additional conservation measures beyond those in the
CCA/CCAA.\19\
---------------------------------------------------------------------------
\18\Id.
\19\``Candidate Conservation Agreements.'' U.S. Fish and Wildlife
Service. Candidate Conservation Agreements | U.S. Fish & Wildlife
Service (fws.gov).
---------------------------------------------------------------------------
Since the CCA/CCAAs were formed, private industry has
invested more than $64 million in enrollment and mitigation
fees for conservation and over six million acres are enrolled
in the partnership.\20\ These voluntary public-private
conservation partnerships for the LPC and its habitat have
proven to be successful as recent aerial surveys indicate that
the LPC's population has increased substantially since 2013,
increasing from approximately 20,000 birds to nearly 35,000
birds in 2020.\21\
---------------------------------------------------------------------------
\20\Id.
\21\``Lesser Prairie Chicken Rule Pressures Fragile Rural
Economies.'' Shelby Hagenauer and Daniel Munch. U.S. Farm Bureau. 1/19/
2023. Lesser Prairie Chicken Rule Pressures Fragile Rural Economies |
Market Intel | American Farm Bureau Federation (fb.org).
---------------------------------------------------------------------------
Other private efforts have also been successful. In New
Mexico, a local CCA/CCAA has enrolled over 114 entities and
conserved approximately four million acres of LPC historic
range.\22\ However, the LPC listing prevents new acreage from
being added to a CCA/CCAA, essentially stopping new private
investment and conservation efforts for the species.
---------------------------------------------------------------------------
\22\``CEHMM'' programs can help in the face of a listing decision
by the U.S. Fish and Wildlife Service.'' Emily Wirth. CEHMM
Conservation & Environmental Services.
b96cf9_5e8178c1d4994bea97c6bfaee6adba22.pdf (cehmm.org).
---------------------------------------------------------------------------
Flawed 4(d) Rule
As a part of the listing rule, the LPC in the Northern DPS
will be listed as threatened. As a threatened species, the
Northern DPS LPC will be managed under section 4(d) of the ESA,
otherwise known as a 4(d) rule.\23\ A 4(d) rule is intended to
allow activities that cause little harm to the species, while
preventing actions that have a greater risk of harm.\24\
---------------------------------------------------------------------------
\23\87 FR 72674.
\24\``Section 4(d) Rules Under the Endangered Species Act.''
Frequently Asked Questions. October 2021. Section 4(d) Rules Under the
Endangered Species Act (fws.gov).
---------------------------------------------------------------------------
The Committee has heard from stakeholders expressing
concerns with the requirements in the 4(d) rule, particularly
the need for livestock ranchers within the LPC range to follow
a grazing plan developed by a ``Service-approved party.''\25\
To date, the USFWS has only approved three entities to review
grazing plans.\26\ Don Hineman, past President of the Kansas
Livestock Association, testified that it is unclear if these
entities have the expertise and capacity to efficiently review
the large volume of grazing plans that will need to be
approved, leading to immense uncertainty among
stakeholders.\27\ This is of particular concern given the
economic impact of the cattle industry within the LPC's range.
The area inhabited by the LPC contains 37 percent of the
nation's cattle and calves, the equivalent of $25 billion in
economic output.\28\
---------------------------------------------------------------------------
\25\Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status With Section 4(d) Rule for the Northern
Distinct Population Segment and Endangered Status for the Southern
Distinct Population Segment. 87 Fed. Reg. 72674 (2022).
\26\``Northern DPS 4(d) Rule Grazing Exception.'' U.S. Fish and
Wildlife Service. https://www.fws.gov/page/northern-dps-4d-rule-
grazing-exception.
\27\``Legislative Hearing on H.J. Res. 29, H.J. Res. 46, H.J. 29,
and H.J. 1213.'' Water, Wildlife and Fisheries Subcommittee. 4/18/22.
Don Hineman response to member questioning. Legislative Hearing on H.J.
Res. 29, H.J. Res. 46, H.J. Res. 49 and H.R. 1213 | Water, Wildlife and
Fisheries Subcommittee | House Committee on Natural Resources.
\28\``Lesser Prairie Chicken Rule Pressures Fragile Rural
Economies.'' Shelby Hagenauer and Daniel Munch. U.S. Farm Bureau. 1/19/
2023. Lesser Prairie Chicken Rule Pressures Fragile Rural Economies |
Market Intel | American Farm Bureau Federation (fb.org).
---------------------------------------------------------------------------
LPC populations have increased by more than 50 percent in
less than a decade while agricultural production hovered around
the same output. The rule admits ``grazing by domestic
livestock is not inherently detrimental to lesser prairie-
chicken management and, in many cases, is needed to maintain
appropriate vegetative structure.''\29\ Yet, by implementing a
flawed 4(d) rule, the USFWS has in effect put livestock grazers
in the potential crosshairs of ESA compliance and litigation.
---------------------------------------------------------------------------
\29\Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status With Section 4(d) Rule for the Northern
Distinct Population Segment and Endangered Status for the Southern
Distinct Population Segment. 87 Fed. Reg. 72674 (2022).
---------------------------------------------------------------------------
Congressional Review Act
The Congressional Review Act (CRA) was enacted in 1996 and
provides Congress with a tool to overturn administrative
regulations. If a CRA joint resolution is approved by both the
House and Senate and signed by the President, the rule at issue
cannot go into effect or continue in effect.
H.J. Res. 29 disapproves of the listing of the lesser
prairie chicken and would prevent the administration from
implementing the rule or proposing future rules.
COMMITTEE ACTION
H.J. Res. 29 was introduced on February 7, 2023, by Rep.
Tracy Mann (R-KS). The resolution was referred to the Committee
on Natural Resources, and within the Committee to the
Subcommittee on Water, Wildlife and Fisheries. On April 18,
2023, the Subcommittee on Water, Wildlife and Fisheries held a
hearing on the resolution. On April 27-28, 2023, the Full
Natural Resources Committee met to consider the resolution. The
Subcommittee on Water, Wildlife and Fisheries was discharged by
unanimous consent. Rep. Jared Huffman (D-CA) offered an
amendment designated Huffman #1. The amendment offered by Rep.
Huffman was withdrawn by unanimous consent. The resolution was
then ordered favorably reported to the House of Representatives
by a roll call vote of 16 yeas to 12 nays, as follows:
HEARINGS
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee on Water, Wildlife and Fisheries
held on April 18, 2023.
SECTION-BY-SECTION ANALYSIS
Congress disapproves the rule submitted by the Director of
the United States Fish and Wildlife Service relating to
``Endangered and Threatened Wildlife and Plants; Lesser
Prairie-Chicken; Threatened Status With Section 4(d) Rule for
the Northern Distinct Population Segment and Endangered Status
for the Southern Distinct Population Segment'' (87 Fed. Reg.
72674 (November 25, 2022)), and such rule shall have no force
or effect.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND
CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
resolution from the Director of the Congressional Budget
Office:
H.J. Res. 29 would void the final rule titled ``Endangered
and Threatened Wildlife and Plants; Lesser Prairie-Chicken;
Threatened Status With Section 4(d) Rule for the Northern
District Population Segment and Endangered Status for the
Southern District Population Segment,'' submitted by U.S. Fish
and Wildlife Service (USFWS) and published in the Federal
Register on November 25, 2022. The rule added the lesser
prairie-chicken to the list of threatened species in its
northern habitat and to the list of endangered species in its
southern habitat under the Endangered Species Act (ESA),
effective January 24, 2023.
Under current law, USFWS collects permitting fees for
lawful activities that involve protected species including
scientific research, conservation, and unintentional taking of
the animals while performing permitted activities. Under H.J.
Res. 29, permits would no longer be required for such
activities involving lesser prairie chickens. Permitting fees
are recorded in the budget as offsetting receipts, (or
reductions in direct spending) and are available to be spent
without further appropriation. Using information from USFWS,
CBO estimates that enacting H.J. Res. 29 would reduce those
receipts and the consequent spending by an insignificant amount
over the 2023-2033 period.
Violators of the ESA are subject to civil and criminal
penalties, which are recorded as revenues; USFWS is authorized
to spend those revenues without further appropriation. Using
information from the agency, CBO estimates that any reductions
in collections and the associated spending would be
insignificant because of the small number of related cases that
would have occurred over the 2023-2033 period.
Finally, using information from USFWS, CBO estimates that
the administrative costs to void the regulation under H.J. Res.
29 would be insignificant; any spending would be subject to the
availability of appropriated funds.
The CBO staff contact for this estimate is Lilia Ledezma.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this resolution is to provide for congressional
disapproval under chapter 8 of title 5, United States Code, of
the rule submitted by the United States Fish and Wildlife
Service relating to ``Endangered and Threatened Wildlife and
Plants; Lesser Prairie-Chicken; Threatened Status With Section
4(d) Rule for the Northern Distinct Population Segment and
Endangered Status for the Southern Distinct Population
Segment''.
EARMARK STATEMENT
This resolution does not contain any Congressional
earmarks, limited tax benefits, or limited tariff benefits as
defined under clause 9(e), 9(f), and 9(g) of rule XXI of the
Rules of the House of Representatives.
UNFUNDED MANDATES REFORM ACT STATEMENT
According to the Congressional Budget Office, this
resolution contains no unfunded mandates as defined by the
Unfunded Mandates Reform Act.
EXISTING PROGRAMS
Directed Rule Making. This resolution does not contain any
directed rule makings.
Duplication of Existing Programs. This resolution does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
Any preemptive effect of this resolution over state, local,
or tribal law is intended to be consistent with the
resolution's purposes and text and the Supremacy Clause of
Article VI of the U.S. Constitution.
CHANGES IN EXISTING LAW
As reported by the Committee, H.J. Res. 29 makes no changes
in existing law.
DISSENTING VIEWS
H.J. Res. 29 would legislatively de-list the lesser
prairie-chicken (Tympanuchus pallidicintus) under the
Endangered Species Act of 1973 (ESA) and effectively prevent
similar rulemakings in the future, putting the lesser prairie-
chicken at risk of extinction.
Despite its small size, the lesser prairie-chicken is an
indicator species for the native grassland and prairie
ecosystems it inhabits. Historically, the range of lesser
prairie-chicken spanned the Great Plains. Before 1900, the
lesser prairie-chicken's estimated population was in the
millions but has since declined to 32,210 birds. At the same
time, their habitat has shrunk by 90%. The lesser prairie-
chicken requires a ``large, intact, and ecologically diverse''
grassland habitat.\1\ Maintaining appropriate vegetation cover
is essential for lesser prairie-chickens' success as different
life stages rely on varying vegetative cover and food sources.
The lesser prairie-chicken lives in four distinct ecosystem
types, or ecoregions, with a current range that includes
portions of Colorado, Kansas, New Mexico, Oklahoma, and Texas.
---------------------------------------------------------------------------
\1\Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status With Section 4(d) Rule for the Northern
Distinct Population Segment and Endangered Status for the Southern
Distinct Population Segment, 87 Fed. Reg. 72,674, 72,677 (Nov. 25,
2022) (to be codified at 50 C.F.R. pt. 70), https://www.govinfo.gov/
content/pkg/FR-2022-11-25/pdf/2022-25214.pdf.
---------------------------------------------------------------------------
Incentivized by the possible listing of the lesser prairie-
chicken under the ESA, public-private conservation efforts have
worked to conserve native grassland habitats and increase the
lesser prairie-chicken's numbers. Federal, state, and private
partners have worked together to raise awareness and conserve
habitat and have voluntarily set aside millions of acres for
conservation.\2\ These partnerships include oil and gas
companies, wind and solar developers, private landowners, and
ranchers. Many of these partnerships, called ``candidate
conservation agreements with assurances'' and ``habitat
conservation plans,'' set aside conservation land or work to
fully offset impacts from enrolled projects. In exchange,
participants received assurances that they would not need to
implement additional measures should the lesser prairie-chicken
be listed under the ESA.
---------------------------------------------------------------------------
\2\https://www.fws.gov/lpc/partners-lpc-conservation.
---------------------------------------------------------------------------
The voluntary conservation efforts have not yielded a
significant rebound in the lesser prairie-chicken population,
partly because 97% of the lesser prairie-chicken's current
range is within private lands, for which species conservation
is relatively unregulated.\3\ Development within the lesser
prairie-chicken's current range has significantly reduced
habitable area; 23% of the area is developed as cropland, 7%
is used for petroleum and natural gas production, 9% is used
for wind energy development and transmission lines, 18% has
been degraded by the intrusion of woody vegetation, and 18% is
covered by roads and electrical distribution lines.\4\ Further,
given the ``boom-bust'' nature of this species, short-term
increases in the population do not necessarily guarantee a
rebound in long-term numbers. Without significant protection,
the lesser prairie-chicken faces near-certain extinction due to
habitat destruction, drought, and lowered resilience to short-
term pressures.
---------------------------------------------------------------------------
\3\Species Status Assessment Report, Version 2.3, Service 2022.
\4\Species Status Assessment Report, Version 2.3, Service 2022.
---------------------------------------------------------------------------
Because of the small population numbers and continued
habitat degradation, on November 25, 2022, the FWS listed two
Distinct Population Segments (DPS) of the lesser prairie-
chicken under the ESA. The Northern DPS is in Colorado, Kansas,
Oklahoma, and Texas; the Southern DPS is in New Mexico and
Texas. FWS listed the Northern DPS as threatened, with a
special 4(d) rule, which warrants similar protections to
threatened species as those granted to endangered species,
prohibiting the take or possession of the Northern DPS except
in some instances, which are discussed below. The Southern DPS
is listed as endangered.
The FWS Species Status Report determined that habitat loss
and fragmentation due to agricultural use, petroleum
production, invasive species, and drought represent significant
threats to the lesser prairie-chicken.\5\ Habitat loss has
significantly lowered the ability of the Southern DPS to
withstand periods of adverse environmental conditions or
catastrophes and to adapt to future environmental change,
making it currently at risk of extinction and warranting
listing it as an endangered species. The Northern DPS may
withstand environmental change and temporary adverse
conditions. However, this ability may decline with future
ecosystem fragmentation and drought, which could lead to a risk
of extinction in the near future and warrant listing as a
threatened species.
---------------------------------------------------------------------------
\5\Species Status Assessment Report, Version 2.3, Service 2022.
Species listed as endangered under the ESA are protected
from take, and restrictions or consultations are necessary for
federal actions that threaten the species' existence or
undermine critical habitat.
The special 4(d) rule issued for the Northern DPS allows
continued agriculture on existing croplands and provides an
exception for cattle producers who follow certain land
management and grazing best practices that benefit farmers and
the lesser prairie-chicken. It also provides exceptions for
burning grasslands, which increases habitat quality. This rule
otherwise prohibits any actions that would lead to a long-term
loss of native vegetation and invertebrate species in lesser
prairie-chicken habitat, resulting in the intentional or
accidental destruction of nests and eggs; or causing harm to
lesser prairie-chickens at any life stage.\6\
---------------------------------------------------------------------------
\6\Provisions of the 4(d) Rule https://www.regulations.gov/
document/FWS-R2-ES-2021-0015-0418.
---------------------------------------------------------------------------
Entities participating in Habitat Conservation Plans or
with Candidate Conservation Agreements with Assurances are
allowed some take and have more flexibility for actions in
critical habitat areas of the Northern and Southern DPS.
H.J. Res. 29 provides for congressional disapproval under
the Congressional Review Act (CRA) of the FWS rule to list the
northern distinct population segment (DPS) lesser prairie-
chicken as threatened and the southern DPS lesser prairie-
chicken as endangered under the ESA. This resolution would de-
list the lesser prairie-chicken under the Endangered Species
Act and prevent substantially similar listings.
Using the CRA to prevent listing a key species, such as the
lesser prairie-chicken puts that species at risk of extinction.
It undermines federal agency authority to make listing, de-
listing, and management decisions based on the best available
science as the ESA requires. De-listing or down-listing the
lesser prairie-chicken from the ESA using the CRA could make it
impossible for FWS to list the species under the ESA again,
regardless of how close to extinction the population is.
Without the ESA backstop, states and stakeholders will have
little incentive to conserve or recover the lesser prairie-
chicken, and the population is likely to dwindle further toward
extinction.
Further, eliminating protections for the lesser prairie-
chicken would serve as a considerable regulatory handout to oil
and gas at the expense of our nation's native species and
grasslands.
Instead of undermining the conservation and recovery of
endangered species, legislative efforts would be better spent
protecting our nation's irreplaceable resources by securing
funding for ESA programs and passing the Recovering America's
Wildlife Act to support endangered species recovery and
wildlife conservation.
Raul M. Grijalva,
Ranking Member, House Committee on Natural Resources.