[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.