[Federal Register Volume 79, Number 69 (Thursday, April 10, 2014)]
[Rules and Regulations]
[Pages 19974-20071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07302]



[[Page 19973]]

Vol. 79

Thursday,

No. 69

April 10, 2014

Part II





Department of the Interior





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 Fish and Wildlife Service





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50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for the Lesser Prairie-Chicken; Final Rule

  Federal Register / Vol. 79 , No. 69 / Thursday, April 10, 2014 / 
Rules and Regulations  

[[Page 19974]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0071; 4500030113]
RIN 1018-AY21


Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for the Lesser Prairie-Chicken

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine threatened 
species status for the lesser prairie-chicken (Tympanuchus 
pallidicinctus), a grassland bird known from southeastern Colorado, 
western Kansas, eastern New Mexico, western Oklahoma, and the Texas 
Panhandle, under the Endangered Species Act of 1973, as amended (Act). 
This final rule implements the Federal protections provided by the Act 
for the lesser prairie-chicken. Critical habitat is prudent but not 
determinable at this time. Elsewhere in this issue of the Federal 
Register, we published a final special rule under section 4(d) of the 
Act for the lesser prairie-chicken.

DATES: This rule is effective on May 12, 2014.

ADDRESSES: Document availability: You may obtain copies of this final 
rule on the Internet at http://www.regulations.gov at Docket No. FWS-
R2-ES-2012-0071 or by mail from the Oklahoma Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT below). Comments and 
materials received, as well as supporting documentation used in 
preparing this final rule, are available for public inspection, by 
appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, Oklahoma Ecological Services Field Office, 9014 East 21st 
Street, Tulsa, OK 74129; telephone 918-581-7458; facsimile 918-581-
7467.

FOR FURTHER INFORMATION CONTACT: Alisa Shull, Acting Field Supervisor, 
Oklahoma Ecological Services Field Office, 9014 East 21st Street, 
Tulsa, OK 74129; by telephone 918-581-7458 or by facsimile 918-581-
7467. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This document consists of: (1) A final rule to list the lesser 
prairie-chicken as a threatened species; and (2) a finding that 
critical habitat is prudent but not determinable at this time.
    Why we need to publish a rule. Under the Endangered Species Act 
(Act), a species may warrant protection through listing if it is an 
endangered or threatened species throughout all or a significant 
portion of its range. The Act sets forth procedures for adding species 
to, removing species from or reclassifying species on the Federal Lists 
of Endangered and Threatened Wildlife and Plants. In this final rule, 
we explain why the lesser prairie-chicken warrants protection under the 
Act. This rule lists the lesser prairie-chicken as a threatened species 
throughout its range.
    The Act provides the basis for our action. Under the Act, we can 
determine that a species is an endangered or threatened species based 
on any of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. The primary factors supporting the 
determination of threatened status for the lesser prairie-chicken are 
the ongoing and probable future impacts of cumulative habitat loss and 
fragmentation. These impacts are the result of: Conversion of 
grasslands to agricultural uses; encroachment by invasive, woody 
plants; wind energy development; petroleum production; and presence of 
roads and manmade vertical structures including towers, utility lines, 
fences, turbines, wells, and buildings.
    We requested peer review of the methods used in making our final 
determination. We obtained opinions from knowledgeable individuals 
having scientific expertise in this species or related fields (such as 
range and fire ecology, shrub management and grouse management) and 
solicited review of the scientific information and methods that we used 
in developing the proposal. We obtained opinions from two knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, adherence to regulations, and whether we had 
used the best available information. These peer reviewers generally 
concurred with our methods and conclusions and provided additional 
information, clarifications, and suggestions to improve this final 
listing rule.
    We sought public comment on the proposed listing rule and the 
proposed special rule under section 4(d) of the Act. During the first 
comment period, we received 879 comment letters directly addressing the 
proposed listing and critical habitat designation. During the second 
comment period, we received 56,344 comment letters addressing the 
proposed listing rule, proposed special rule, and related rangewide 
conservation plan. During the third comment period, we received 12 
comments regarding the proposed listing. During the fourth comment 
period, we received 74 comments, primarily related to the proposed 
revised special rule.

Previous Federal Actions

    In 1973, the Service's Office of Endangered Species published a 
list of threatened wildlife of the United States in Resource 
Publication 114, often referred to as the ``Red Book.'' While this 
publication did not, by itself, provide any special protections, the 
publication served, in part, to solicit additional information 
regarding the status of the identified taxa. The lesser prairie-chicken 
was one of 70 birds included in this publication (Service 1973, pp. 
134-135), but little Federal regulatory action occurred on the lesser 
prairie-chicken until 1995.
    On October 6, 1995, we received a petition, dated October 5, 1995, 
from the Biodiversity Legal Foundation, Boulder, Colorado, and Marie E. 
Morrissey (petitioners). The petitioners requested that we list the 
lesser prairie-chicken as threatened throughout its known historical 
range in the United States. The petitioners defined the historical 
range to encompass west-central Texas north through eastern New Mexico 
and western Oklahoma to southeastern Colorado and western Kansas, and 
they stated that there may have been small populations in northeastern 
Colorado and northwestern Nebraska. The petitioners also requested that 
critical habitat be designated as soon as the needs of the species are 
sufficiently well known. However, from October 1995 through April 1996, 
we were under a moratorium on listing actions as a result of Public Law 
104-6, which, along with a series of continuing budget resolutions, 
eliminated or severely reduced our listing budget through April 1996. 
We were unable to act on the petition during that period. On July 8, 
1997 (62 FR 36482), we announced our 90-day finding that the petition 
presented substantial information

[[Page 19975]]

indicating that the petitioned action may be warranted. In that notice, 
we requested additional information on the status, trend, distribution, 
and habitat requirements of the species for use in conducting a status 
review. We requested that information be submitted to us by September 
8, 1997. In response to a request by the Lesser Prairie-Chicken 
Interstate Working Group dated September 3, 1997, we reopened the 
comment period for an additional 30 days, beginning on November 3, 1997 
(62 FR 59334). We subsequently published our 12-month finding for the 
lesser prairie-chicken on June 9, 1998 (63 FR 31400), concluding that 
the petitioned action was warranted but precluded by other higher 
priority listing actions.
    The 12-month finding initially identified the lesser prairie-
chicken as a candidate for listing with a listing priority number (LPN) 
of 8. Our policy (48 FR 43098; September 21, 1983) requires the 
assignment of an LPN to all candidate species. This listing priority 
system was developed to ensure that we have a rational system for 
allocating limited resources in a way that ensures those species in 
greatest need of protection are the first to receive such protection. 
The listing priority system considers magnitude of threat, immediacy of 
threat, and taxonomic distinctiveness in assigning species numerical 
listing priorities on a scale from 1 to 12. In general, a smaller LPN 
reflects a greater need for protection than a larger LPN. The lesser 
prairie-chicken was assigned an LPN of 8, indicating that the magnitude 
of threats was moderate and the immediacy of the threats to the species 
was high.
    On January 8, 2001 (66 FR 1295), we published our resubmitted 
petition findings for 25 animal species, including the lesser prairie-
chicken, having outstanding ``warranted-but-precluded'' petition 
findings as well as notice of one candidate removal. The lesser 
prairie-chicken remained a candidate with an LPN of 8 in our October 
30, 2001 (66 FR 54808); June 13, 2002 (67 FR 40657); May 4, 2004 (69 FR 
24876); May 11, 2005 (70 FR 24870); September 12, 2006 (71 FR 53756); 
and December 6, 2007 (72 FR 69034) candidate notices of review. In our 
December 10, 2008 (73 FR 75176), candidate notice of review, we changed 
the LPN for the lesser prairie-chicken from an 8 to a 2. This change in 
LPN reflected a change in the magnitude of the threats from moderate to 
high primarily due to an anticipated increase in the development of 
wind energy and associated placement of transmission lines throughout 
the estimated occupied range of the lesser prairie-chicken. Our June 9, 
1998, 12-month finding (63 FR 31400) did not recognize wind energy and 
transmission line development as a threat because such development 
within the known range was almost nonexistent at that time. Changes in 
the magnitude of other threats, such as conversion of certain 
Conservation Reserve Program (CRP) lands from native grass cover to 
cropland or other less ecologically valuable habitat and observed 
increases in oil and gas development, also were important 
considerations in our decision to change the LPN. The immediacy of the 
threats to the species did not change and continued to be high. Our 
November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), and 
October 26, 2011 (76 FR 66370) candidate notices of review retained an 
LPN of 2 for the lesser prairie-chicken.
    Since making our 12-month finding, we have received several 60-day 
notices of intent to sue from WildEarth Guardians (formerly Forest 
Guardians) and several other parties for failure to make expeditious 
progress toward listing of the lesser prairie-chicken. These notices 
were dated August 13, 2001; July 23, 2003; November 23, 2004; and May 
11, 2010. WildEarth Guardians subsequently filed suit on September 1, 
2010, in the U.S. District Court for the District of Colorado. A 
revised notice of intent to sue dated January 24, 2011, in response to 
motions from New Mexico Oil and Gas Association, New Mexico Cattle 
Growers Association, and Independent Petroleum Association of New 
Mexico to intervene on behalf of the Secretary of the Interior, also 
was received from WildEarth Guardians.
    This complaint was subsequently consolidated in the U.S. District 
Court for the District of Columbia along with several other cases filed 
by the Center for Biological Diversity or WildEarth Guardians relating 
to petition finding deadlines and expeditious progress toward listing. 
A settlement agreement in In re Endangered Species Act Section 4 
Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 
10, 2011) was reached with WildEarth Guardians in which we agreed to 
submit a proposed listing rule for the lesser prairie-chicken to the 
Federal Register for publication by September 30, 2012.
    On September 27, 2012, the settlement agreement was modified to 
require that the proposed listing rule be submitted to the Federal 
Register on or before November 29, 2012. On December 11, 2012, we 
published a proposed rule (77 FR 73828) to list the lesser prairie-
chicken as a threatened species under the Act (16 U.S.C. 1531 et seq.). 
Publication of the proposed rule opened a 90-day comment period that 
closed on March 11, 2013. We held a public meeting and hearing in 
Woodward, Oklahoma, on February 5, 2013; in Garden City, Kansas, on 
February 7, 2013; in Lubbock, Texas, on February 11, 2013; and in 
Roswell, New Mexico, on February 12, 2013.
    On May 6, 2013, we announced the publication of a proposed special 
rule under the authority of section 4(d) of the Act. At this time, we 
reopened the comment period on the proposed listing rule (77 FR 73828) 
to provide an opportunity for the public to simultaneously provide 
comments on the proposed listing rule, the proposed special rule, and a 
draft rangewide conservation plan for the lesser prairie-chicken. This 
comment period was open from May 6 to June 20, 2013.
    On July 9, 2013, we announced a 6-month extension (78 FR 41022) of 
the final listing determination based on our finding that there was 
substantial disagreement regarding the sufficiency or accuracy of the 
available data relevant to our determination regarding the proposed 
listing rule. We again reopened the comment period to solicit 
additional information. This comment period closed on August 8, 2013. 
We reopened the comment period again on December 11, 2013 (78 FR 
75306), to solicit comments on a revised proposed special rule and our 
December 11, 2012, proposed listing rule. This comment period closed on 
January 10, 2014. However, the endorsed version of the Western 
Association of Fish and Wildlife Agencies' Lesser Prairie-Chicken 
Range-wide Conservation Plan was not available on the Web sites, as 
stated in the December 11, 2013, revised proposed special 4(d) rule (78 
FR 75306), at that time. We subsequently reopened the comment period on 
January 29, 2014 (79 FR 4652), to allow the public the opportunity to 
have access to this rangewide plan and submit comments on the revised 
proposed special rule and our December 11, 2012, proposed listing rule. 
This comment period closed on February 12, 2014.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
listing of the lesser prairie-chicken during five comment periods: 
December 11, 2012, to March 11, 2013; May 6 to June 20, 2013; July 9 to 
August 8, 2013; December 11, 2013, to January 10, 2014; and January 29 
to February 12, 2014. Additionally four public hearings were held in 
February 2013; February 5th in

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Woodward, Oklahoma; February 7th in Garden City, Kansas; February 11th 
in Lubbock, Texas; and February 12th in Roswell, New Mexico. We also 
contacted appropriate Federal, Tribal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule, proposed special rule, draft rangewide 
conservation plan, and final rangewide conservation plan during the 
respective comment periods.
    Over the course of the five comment periods, we received 
approximately 57,350 comment submissions. Of these, approximately 
56,800 were form letters. Additionally, during the February 2013 public 
hearings, 85 individuals or organizations provided comments on the 
proposed rule. All substantive information provided during these 
comment periods, including the public hearings, has either been 
incorporated directly into this final determination or is addressed 
below. Comments from peer reviewers and State agencies are grouped 
separately. In addition to the comments, some commenters submitted 
additional reports and references for our consideration, which we 
reviewed and incorporated into this final rule as appropriate.

Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from nine knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occur, and 
conservation biology principles. We received responses from two of the 
nine peer reviewers we contacted.
    We reviewed all comments received from the two peer reviewers 
regarding the analysis of threats to the lesser prairie-chicken and our 
proposed threatened listing determination. The peer reviewers generally 
concurred with our methods and conclusions, and provided additional 
information, clarifications, and suggestions to improve this final 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule, as appropriate.
    (1) Comment: Conservation efforts to date have not been adequate to 
address known threats.
    Our Response: While considerable effort has been expended over the 
past several years to address some of the known threats throughout 
portions or all of the species' estimated occupied range, threats to 
the continued viability of the lesser prairie-chicken into the future 
remain. Recent development of conservation plans has highlighted the 
importance of not only habitat restoration and enhancement but also the 
role of the States and other partners in reducing many of the known 
threats to the lesser prairie-chicken. Consequently, we proposed a 
special rule under section 4(d) of the Act that facilitates 
conservation implementation and threat reduction through development or 
implementation of certain types of conservation plans and efforts. Such 
plans will help provide the ongoing, targeted implementation of 
appropriate conservation actions that are an important aspect of 
collaborative efforts to improve the status of the species. We discuss 
the various conservation efforts occurring within the estimated 
occupied range of the lesser prairie-chicken in more detail in the 
Summary of Ongoing and Future Conservation Efforts, below.
    (2) Comment: Grain crops may be used by lesser prairie-chickens 
more extensively than indicated in the rule, particularly considering 
that conversion of the prairies to crop production led to expansion, at 
least temporarily, of lesser prairie-chicken populations.
    Our Response: Grain crops are used by lesser prairie-chickens and 
may have temporarily led to range expansion, but the best available 
information does not detail how extensively grains are used by lesser 
prairie-chickens. Considering food is likely rarely limiting for lesser 
prairie-chickens, grains are likely used advantageously and are not 
necessary for survival. However, lesser prairie-chickens may be more 
dependent upon waste grain during drought or prolonged periods of 
extreme winter weather. Lesser prairie-chickens tend to predominantly 
rely on cultivated grains when production of natural foods, such as 
acorns and grass and forb seeds, are deficient (Copelin 1963, p. 47). 
Therefore, agricultural grain crops, particularly when irrigated and 
with additional nutrient inputs, can be a more reliable, but temporary, 
food source than native foods that fluctuate with environmental 
conditions. However, there is a cost to the species associated with 
using grain fields in terms of exposure to predation, energy 
expenditure, and weather. Copelin (1963, entire) indicates that lesser 
prairie-chickens will occasionally use grain crops, but it appears that 
native foods are generally preferred. Additionally, as the extent of 
agricultural lands increases within the landscape, native grass and 
shrubland habitats that are used by lesser prairie-chickens for all 
life-history stages, not limited to foraging, decline. Kukal (2010, pp. 
22, 24) found that lesser prairie-chickens did not move long distances 
to access grain fields and may spend the fall and winter exclusively in 
grasslands even when grain fields, primarily wheat, are available. 
While this likely indicates that wheat is not a preferred grain source, 
or that grains are not readily available on winter wheat fields, the 
best scientific information indicates that crop fields are less 
important to lesser prairie-chicken survival than are native grasslands 
in good condition because native grasslands are more likely to provide 
necessary habitat for lekking, nesting, brood rearing, feeding for 
young, and feeding for adults, among other things. Accordingly, this 
rule characterizes waste grains and grain agriculture as important 
during prolonged periods of adverse winter weather but unnecessary for 
lesser prairie-chicken survival during most years and in most regions. 
A more detailed discussion of lesser prairie-chicken use of grain crops 
is provided in the ``Life-History Characteristics'' section, below.
    (3) Comment: The Service should not list population segments of the 
lesser prairie-chicken in Kansas, where those populations meet or 
exceed population thresholds established by an objective and 
independent team of species experts. Specifically, the Service could 
designate a distinct population segment in Kansas and exclude it from 
any listing action.
    Our Response: The Act allows us to list only species, subspecies, 
or distinct population segments of a species or subspecies, as section 
3(16) of the Act defines species to include ``any subspecies of fish or 
wildlife or plants, and any distinct population segment of any species 
of vertebrate fish or wildlife which interbreeds when mature.'' The 
Service and the National Marine Fisheries Service jointly published a 
``Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments Under the Endangered Species Act'' (DPS Policy) in the Federal 
Register on February 7, 1996 (61 FR 4722). Under the DPS Policy, three 
factors are considered in a decision concerning whether to establish 
and classify a possible DPS. The first two factors, (1) discreteness of 
the population segment in relation to the remainder of the taxon and 
(2) the significance of the population segment to the taxon to which it 
belongs, bear on whether the population segment can be a possible DPS. 
The third factor bears on answering the question of whether the 
population segment, when treated as if it were a species, is endangered 
or threatened. In order to establish a DPS, all three factors must be 
met. Under the

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DPS Policy, a population may be considered discrete if (1) it is 
markedly separated from other populations of the same taxon as a 
consequence of physical, physiological, ecological, or behavioral 
factors; or (2) it is delimited by international governmental 
boundaries with differences in control of exploitation, management of 
habitat, conservation status, or relevant regulatory mechanisms. The 
best scientific and commercial information available does not indicate 
that lesser prairie-chicken populations in Kansas are discrete from the 
populations in the neighboring States of Colorado or Oklahoma because 
there is no marked separation from other populations. Thus, we do not 
have the discretion to exclude populations in Kansas from the listing 
because they do not meet the definition of a listable (or delistable) 
entity. Please refer to the Determination section of this final listing 
rule for further discussion.
    (4) Comment: A recovery team should be established and critical 
habitat proposed as quickly as possible following the final listing 
decision.
    Our Response: Under section 4(f)(1) of the Act, we are required to 
develop and implement plans for the conservation and survival of 
endangered and threatened species, unless the Secretary of the Interior 
finds that such a plan will not promote the conservation of the 
species. We will move to accomplish these tasks as soon as feasible. We 
have determined in this final rule that critical habitat is not 
determinable at this time; however, we are required under section 
4(b)(6)(C)(ii) of the Act to make our critical habitat determination 
within one year from the publication date of this final rule.
    (5) Comment: Speciation in members of the genus Tympanuchus may be 
incomplete, and statements regarding taxonomy should be revised to more 
fully disclose the current state of genetic and taxonomic information. 
Electronic copies of several publications were provided to aid the 
Service's review of this information.
    Our Response: As stated in the final rule, we agree that there is 
some uncertainty regarding the taxonomic status of the lesser prairie-
chicken and other related members of the genus. For example, Johnsgard 
(1983, p. 316) initially considered the greater and lesser prairie-
chickens to be allopatric subspecies, meaning that they originated as 
the same species but populations became isolated from each other to an 
extent that prevented genetic interchange, causing speciation. However, 
the American Ornithologists Union recognizes the lesser prairie-chicken 
as a species, and we have concluded that the lesser prairie-chicken is 
sufficiently distinct from other members of the genus to meet the Act's 
definition of a species. The American Ornithologists Union considers 
the lesser prairie-chicken to be distinct from the greater prairie-
chicken based on known differences in behavior, habitat affiliation, 
and social aggregation (Ellsworth et al. 1994, p. 662). We have revised 
the rule to include a more thorough discussion of prairie grouse 
phylogeny (the evolutionary history of taxonomic groups).
    (6) Comment: Under conditions of high production and large 
population size, lesser prairie-chickens would be able to disperse up 
to 48 kilometers (km) (30 miles (mi)) annually and be able to 
recolonize areas fairly quickly. Similarly, if birds were at least 
partially migratory in the past, recolonization could occur more 
rapidly than indicated in the proposed rule.
    Our Response: There is limited information available on the 
dispersal capabilities of lesser prairie-chickens, but the best 
scientific information available to us supports that lesser prairie-
chickens exhibit limited dispersal tendencies and do not disperse over 
long distances. In Texas, Haukos (1988, p. 46) recorded daily movements 
of 0.1 km (0.06 mi) to greater than 6 km (3.7 mi) by female lesser 
prairie-chickens prior to onset of incubation. Taylor and Guthery 
(1980b, p. 522) documented a single male moving 12.8 km (8 mi) in 4 
days, which they considered to be a dispersal movement. This 
information does not support the conclusion that individuals have or 
could disperse up to 48 km (30 mi). Due to their heavy wing loading, 
they are relatively poor fliers. For these reasons, we do not consider 
lesser prairie-chickens to be good dispersers.
    The existence of large-scale migration movements of lesser prairie-
chickens is not known, but it is possible that the species was at least 
partially migratory in the past. Both Bent (1932, pp. 284-285) and 
Sharpe (1968, pp. 41-42) thought that the species, at least 
historically, might have been migratory with separate breeding and 
wintering ranges. Taylor and Guthery (1980a, p. 10) also thought the 
species was migratory prior to widespread settlement of the High 
Plains, but migratory movements have not recently been documented. The 
lesser prairie-chicken is now thought to be nonmigratory.
    The species' limited dispersal and migration capabilities are 
unlikely to significantly contribute to recolonization under current 
conditions, particularly considering the fragmented nature of the 
occupied range.
    Recolonization of former lesser prairie-chicken habitat is most 
likely to occur in habitats that are located in close proximity to 
existing populations, particularly considering the extent of habitat 
fragmentation that exists within the occupied range and reduced 
population size. Due to the lesser prairie chicken's relatively limited 
movements, their site fidelity, and difficulty in translocating 
individuals, management efforts are best concentrated on improving 
habitat conditions in areas adjacent to existing populations and 
allowing individuals to recolonize those habitats naturally. Under 
appropriate conditions, populations can recolonize these adjacent areas 
relatively quickly, provided surplus numbers exist to support 
dispersal. As evidenced by the reoccupation of former range in Kansas, 
where large blocks of high-quality habitat were created through the 
CRP, recolonization is possible but is most likely to occur over the 
long term (8 to 12 years) in habitats within close proximity to 
existing populations. As conservation efforts for this species continue 
and recovery planning would be initiated post-listing, conservation 
actions such as habitat improvement may include areas that are most 
likely to support population expansion.
    (7) Comment: The extent of the historical range provides little 
information with regard to density of lesser prairie-chickens, and some 
portions of the historical range may not have been suitable for lesser 
prairie-chickens even 100 years ago. The extent of the historical range 
is a somewhat arbitrary benchmark and should not be used when making 
comparisons with respect to currently occupied range.
    Our Response: We recognize that not all of the Service's defined 
historical range was optimal habitat, and very little information 
regarding historical densities of lesser prairie-chickens exists. 
However, one of the factors we must consider in our listing 
determination relates to the present or threatened destruction, 
modification, or curtailment of a species' habitat or range. 
Accordingly, comparing the likely extent of historical range with 
currently occupied range provides insight into whether the range of a 
species has been lost or reduced over time. We agree that the extent of 
the historical range is an estimate and use this term, and the term 
``approximate,'' in referring to the historical range. We also 
recognize that the extent of historical range may have fluctuated over 
time, based on habitat conditions

[[Page 19978]]

evident at any one period, and the estimated historical range may 
represent the maximum range that was occupied during historical times. 
The information we present in this rule serves to reflect the estimated 
extent of the historical range based on the best available information 
and provides some context with which we can discuss the estimated 
occupied range. While our calculations of the loss of historical range 
are an estimate and not an exact value, they demonstrate that the range 
of the lesser prairie-chicken likely has contracted substantially since 
pre-European settlement.
    (8) Comment: The rule fails to consider that the occupied range of 
the lesser prairie-chicken has expanded to include portions of 
northwest Kansas and may be larger than in the recent past.
    Our Response: Our proposed rule clearly states that the lesser 
prairie-chicken occupies areas in Ellis, Graham, Sheridan, and Trego 
Counties in Kansas that extend beyond the previously delineated 
historical range. Our calculations of the estimated occupied range and 
the estimated occupied range plus a 16-km (10-mi) buffer also recognize 
the existence of populations in those counties. However, the best 
scientific and commercial information available indicates the range in 
northwestern Kansas does not represent a range expansion for lesser 
prairie-chicken; instead, we consider this to be a reoccupation of 
former range.
    (9) Comment: The extent of agricultural land within the range of 
the lesser prairie-chicken may decline, particularly considering the 
High Plains (Ogallala) Aquifer may be economically depleted in 20 
years.
    Our Response: The best scientific and commercial information 
available does not indicate that the extent of agricultural land will 
decline significantly in the near future, even if the level of the High 
Plains Aquifer declines. Terrell et al. (2002, p. 35), Sophocleous 
(2005, p. 361), and Drummond (2007, p. 142) all concluded that, while 
declining water levels in the High Plains Aquifer may cause some areas 
of cropland to revert to grassland, most of the irrigated land likely 
will transition to dryland agriculture, despite the increased use of 
more efficient methods of irrigation in response to declining water 
supplies for irrigation. This information has been incorporated into 
this final rule.
    (10) Comment: Work by Hovick et al. (unpublished manuscript in 
review) on anthropogenic structures and grouse that has been submitted 
for publication should be considered. This work shows a consistent and 
negative relationship between grouse and certain manmade structures, 
including oil and gas infrastructure, power lines, and wind turbines.
    Our Response: We agree with this comment and have incorporated the 
findings of this study into this rule. This study examined the effect 
of 23 different types of anthropogenic structures on grouse 
displacement behavior and found that all structure types examined 
resulted in displacement, but oil structures and roads had the greatest 
impact on grouse avoidance behavior (Hovick et al. unpublished 
manuscript under review, p. 11). They also examined the effect of 17 of 
these structures on survival and found all of the structures examined 
also decreased survival in grouse, with lek attendance declining at a 
greater magnitude than other survival parameters measured (Hovick et 
al. unpublished manuscript under review, p. 12). This information 
supports our conclusion that the presence of vertical structures 
contributes to functional fragmentation of lesser prairie-chicken 
habitat.
    (11) Comment: Statements regarding the impact of recreational 
viewing, particularly with respect to the size of the lek, are 
speculative and more information should be provided.
    Our Response: There is little direct evidence regarding impacts of 
recreational viewing at lesser prairie-chicken leks. Consequently, we 
cannot provide more definitive information within this section than the 
discussion in the proposed and final rules. Based on the best 
scientific and commercial information available at this time, we do not 
consider recreational viewing to be a significant impact to the species 
as a whole. Please refer to the Hunting and Other Forms of 
Recreational, Educational, or Scientific Use section, below, for our 
discussion of potential impacts from recreational viewing.
    (12) Comment: In the section on hybridization, the Service 
incorrectly describes the lesser prairie-chicken populations in Kansas 
that occur north of the Arkansas River as low density.
    Our Response: We have revised that discussion to more clearly 
reflect observed densities in the area of hybridization.
    (13) Comment: The section on hybridization should be expanded and 
clarified with respect to the fertility of hybrids. Populations within 
the zone of overlap are not low density or ephemeral, and the zone of 
overlap is more extensive than indicated by Bain and Farley (2000). The 
hybridization issue, combined with information on speciation and 
possibility of introgression, should be a high priority for research.
    Our Response: We have expanded the section on hybridization to 
include discussion related to fertility of first and second generation 
hybrids. We have concerns with respect to the implications of 
hybridization, but the best available information at this time does not 
indicate that hybridization is a threat at current levels.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for [her] failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the States of Colorado, Kansas, New Mexico, 
Oklahoma, and Texas regarding the proposal to list the lesser prairie-
chicken as a threatened species are addressed below.
    (14) Comment: Evidence shows that the lesser prairie-chicken 
population is not only surviving, but has stabilized or increased, 
despite other conditions, including drought in much of the region. This 
conclusion is supported by Hagen 2012. Lesser prairie-chicken 
populations can experience large fluctuations in numbers, but they have 
remained within normal limits given annual precipitation over the past 
12 years with no significant decrease; further, they have demonstrated 
the ability to recover from similar drought episodes in the past.
    Our Response: In June 2012, we were provided with the referenced 
interim assessment of lesser prairie-chicken population trends since 
1997 (Hagen 2012, entire). While the results of this analysis suggest 
that lesser prairie-chicken population trends have increased since 
1997, we are reluctant to place considerable weight on the interim 
assessment for a number of reasons as discussed in the rule. The 
``Rangewide Population Estimates'' section of this final listing rule 
includes a full discussion of these reasons, in addition to a full 
discussion of population estimates for the species. In summary, Hagen's 
preliminary analysis evaluates lesser prairie-chicken population trends 
from 1997 to 2012, whereas the Service's analysis of population 
estimates as presented in the final rule dates back as far as records 
are available.
    Although lesser prairie-chicken populations can fluctuate 
considerably from year to year in response to variable weather and 
habitat conditions, generally the overall population size has continued 
to decline from the estimates of population size available in the early

[[Page 19979]]

1900s (Robb and Schroeder 2005, p. 13). The ability of any species to 
recover from an event, such as drought, is fully dependent upon the 
density of individuals, the environmental conditions, the time that 
those environmental conditions persist, and, most importantly, the 
habitat quality and quantity available (including connectivity of that 
habitat). An examination of anecdotal information on historical numbers 
of lesser prairie-chickens indicates that numbers likely have declined 
from possibly millions of birds to current estimates of thousands of 
birds. Further, examination of the trends in the five lesser prairie-
chicken States for most indicator variables, such as males per lek and 
lek density, over the last 3 years are indicative of declining 
populations. The total estimated abundance of lesser prairie-chickens 
in 2012 was 34,440 individuals (90 percent upper and lower confidence 
intervals of 52,076 and 21,718 individuals, respectively; McDonald et 
al. 2013, p. 24). The total estimated abundance of lesser prairie-
chickens in 2013 dropped to 17,616 individuals (90 percent upper and 
lower confidence intervals of 20,978 and 8,442 individuals, 
respectively) (McDonald et al. 2013, p. 24). The best scientific and 
commercial information available supports that lesser prairie-chicken 
populations have declined since pre-European settlement.
    (15) Comment: Listing the lesser prairie-chicken is contrary to the 
best available science and current information. Current research and 
conservation efforts support that the species does not warrant listing.
    Our Response: As required by section 4(b) of the Act, we used the 
best scientific and commercial data available in making this final 
determination. We solicited peer review from knowledgeable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles to ensure that our listing is based on 
scientifically sound data, assumptions, and analysis. Additionally, we 
requested comments or information from other concerned governmental 
agencies, Native American Tribes, the scientific community, industry, 
and any other interested parties concerning the proposed rule. Comments 
and information we received helped inform this final rule. We used 
multiple sources of information including: Results of numerous surveys, 
peer-reviewed literature, unpublished reports by scientists and 
biological consultants, geospatial analysis, and expert opinion from 
biologists with extensive experience studying the lesser prairie-
chicken and its habitat. The commenter provides no rationale (e.g., 
literature or scientific evidence) to indicate the species does not 
meet the definition of a threatened species under the Act. Please refer 
to the Determination section of this final listing rule for further 
discussion on whether or not the species meets the definition of an 
endangered or threatened species.
    (16) Comment: A final determination to list the species as 
endangered or threatened would have negative impacts on economics, 
communities, and private landowners. Economic impacts may affect 
agriculture (farming and ranching), oil and gas, potash, dairy, wind 
energy, electricity generation, mineral royalties, and transportation. 
Many industries may incur additional project costs and delays due to 
the regulatory and economic burden created by the listing. As industry 
experiences economic impacts, commenters stated that additional impacts 
could include decreased tax revenues; a reduction in jobs; effects to 
school, hospital, and county government operations; increased 
development pressure; and greater land fragmentation.
    Our Response: For listing actions, the Act requires that we make 
determinations ``solely on the basis of the best available scientific 
and commercial data available'' (16 U.S.C. 1533(b)(1)(A)). Therefore, 
we do not consider information concerning economic impacts when making 
listing determinations. However, section 4(b)(2) of the Act states that 
the Secretary shall designate and make revisions to critical habitat on 
the basis of the best available scientific data after taking into 
consideration the economic impact, national security impact, and any 
other relevant impact of specifying any particular area as critical 
habitat. Therefore, we will consider the provisions of 4(b)(2) when we 
designate critical habitat for the species in the future.
    (17) Comment: The proposed listing is premature. Adequate time must 
be provided to determine if conservation efforts, such as the candidate 
conservation agreements with assurances (CCAAs) and the Lesser Prairie-
Chicken Range-wide Conservation Plan, are sufficient to maintain a 
viable lesser prairie-chicken population.
    Our Response: We recognize the significant efforts of all of our 
partners in the conservation of the lesser prairie-chicken, and these 
conservation efforts and the manner in which they are helping to 
ameliorate threats to the species are considered in our final listing 
determination. Section 4(b)(1)(A) of the Act requires us to take into 
account those efforts being made by a State or foreign nation, or any 
political subdivision of a State or foreign nation, to protect such 
species, and we fully recognize the contributions of the State and 
local programs. However, the Act requires us to make determinations 
based on the best scientific and commercial data available ``at the 
time of listing'' after conducting a review of the status of the 
species and after taking into account those efforts, if any, being made 
to protect such species.
    The lesser prairie-chicken has been identified as a candidate 
species since 1998. Since that time, annual candidate notices of review 
have been conducted, and the scientific literature and data continued 
to indicate that the lesser prairie-chicken is detrimentally impacted 
by ongoing threats, and we continued to find that listing the species 
was warranted. Our determination is guided by the Act and its 
implementing regulations, considering the five listing factors and 
using the best available scientific and commercial information.
    (18) Comment: The Lesser Prairie-Chicken Range-wide Conservation 
Plan effectively addresses the threats being faced by the species 
throughout the range. By using voluntary, incentive-based programs, the 
Range-wide Conservation Plan encourages effective management on private 
lands for the lesser prairie-chicken and implements mechanisms for 
industry to avoid, minimize, and mitigate impacts to the species' 
habitat. These efforts effectively ameliorate the threats identified in 
the proposed rule for listing and, therefore, support a not-warranted 
finding.
    Our Response: The Service supports the efforts of the Western 
Association of Fish and Wildlife Agencies (WAFWA) in the development of 
the rangewide plan and has recognized it as a landmark effort in 
collaborative, rangewide planning for conservation of an at-risk 
species. On October 23, 2013, the Service announced its endorsement of 
the plan as a comprehensive conservation program that reflects a sound 
conservation design and strategy that, when implemented, will provide a 
net conservation benefit to lesser prairie-chicken. The plan includes a 
strategy to address threats to the prairie-chicken throughout its 
range, establishes measurable biological goals and objectives for 
population and habitat, provides the framework to achieve these goals 
and objectives, demonstrates the administrative and financial 
mechanisms necessary for

[[Page 19980]]

successful implementation, and includes adequate monitoring and 
adaptive management provisions. For these reasons, elsewhere in today's 
Federal Register, we are finalizing a special rule under section 4(d) 
of the Act that, among other things, specifically exempts from 
regulation the take of lesser prairie-chicken if that take is 
incidental to carrying out the rangewide plan.
    The Service's Policy for Evaluation of Conservation Efforts When 
Making Listing Decisions (PECE) provides guidance on how to evaluate 
conservation efforts that have not yet been fully implemented or have 
not yet demonstrated effectiveness. The policy presents criteria for 
evaluating the certainty of implementation and the certainty of 
effectiveness for such conservation efforts. The Service has evaluated 
the rangewide plan under the PECE criteria. A summary of that 
evaluation follows.
    At the time of the listing decision, based upon the criteria in 
PECE, the Service is uncertain concerning availability of funding and 
the level of voluntary participation in the rangewide plan in the 
future. At this time, the measures in the rangewide plan do not allow 
the Service to conclude that the lesser prairie-chicken no longer meets 
the Act's definition of a threatened or endangered species. 
Additionally, due to the flexibility that is necessarily built into the 
implementation of the rangewide plan, there is uncertainty about when 
and where impacts and offsets will occur. Most importantly, even if the 
plan is implemented in the future as written and is effective at 
achieving its goals, we must be able to show that the plan has 
contributed to the elimination of one or more threats to the species 
identified through the 4(a)(1) analysis at the time of the listing 
determination such that the species no longer meets the definition of 
threatened or endangered. Largely as a result of the degree of 
coordination and adaptive management built into the rangewide plan, 
there is a high degree of certainty that the plan will achieve its 
stated purposes of creating a net conservation benefit to the species 
and moving the species towards its population goals if there is 
sufficient participation and enrollment from landowners and industry. 
However, generally owing to the uncertainty of the timing of 
conservation delivery and the funds generated by current industry 
enrollment, the rangewide plan has not eliminated or adequately reduced 
the threats identified such that the species no longer meets the Act's 
definition of threatened or endangered at this time, as discussed 
below.
    The conservation strategy employed in the rangewide plan (1) 
complements and builds on existing conservation efforts (e.g., CRP), 
(2) uses an ``avoid, minimize, and mitigate'' strategy to address 
industry impacts, and (3) provides financial incentives to landowners 
to manage lands to benefit lesser prairie-chickens. Through the 
mitigation framework and application of adaptive management principles, 
the rangewide plan, if enrollment is sufficient and if the plan is 
appropriately managed, will provide a net conservation benefit to the 
species and result in incremental improvements to the level and quality 
of suitable habitat over time.
    Lands to be enrolled as offsets to impacts are not necessarily 
currently occupied high quality habitats, and the location of offset 
units is entirely driven by the willingness of landowners to 
participate. They are lands where management practices are to be 
implemented that would improve the suitability of those lands for 
lesser prairie-chickens. These landowners are not required to implement 
identical management practices, but are rather provided a suite of 
management options for their lands. Until those practices are 
identified for each parcel combined with the length of the contract and 
the quality and location of the lands, we have little certainty about 
how much conservation uplift can be expected or in what timeframe the 
benefit will accrue. Even if there would be significant enrollment of 
lands into the rangewide plan in the short term, it will still take 
several years for habitat improvement practices to take effect for some 
of the conservation practices and for lesser prairie-chicken 
populations to improve.
    The effectiveness of the rangewide plan is further complicated by 
the impact of continued drought on the landscape. If the current 
drought subsides, the rangewide plan's improved management on lands 
could result in an upturn in the status of the species. However, if the 
drought persists, the rangewide plan will not create additional usable 
habitat necessary for the species quickly or at all. This particular 
threat is largely outside of the ability of management actions to 
address; therefore, it is a threat that is not addressed by the 
rangewide plan, at least over the short term. Given the particularly 
dire status of the lesser prairie-chicken in 2013 due to ongoing 
drought (approximately 17,000 birds estimated), this threat is of high 
magnitude and immediacy. Over the longer term, the rangewide plan may 
ameliorate the threat of drought by creating additional habitat so that 
the birds can rebound to higher numbers that can better withstand this 
threat.
    Finally, the Service is uncertain concerning the potential for a 
lag time between authorizing impacts, securing contracts with 
landowners to apply conservation to mitigate for those impacts, and 
implementing the conservation actions through those contracts. While 
mitigation fees must be paid and conservation contracts must be in 
place prior to impacts occurring, the rangewide plan does not require 
habitat improvement or creation of suitable habitat prior to impacts 
occurring. The rangewide plan grants a waiver period for the oil and 
gas industry wherein while all impacts must ultimately be mitigated 
for, the waiver grants oil and gas impacters the ability to develop 
enrolled lands in advance of conservation delivery. The mitigation 
metrics are set up such that over the life of the plan, we anticipate 
improvement in the status of the species, but that some of the 
conservation delivery will take at least a few years to start being 
realized. At the time of the listing decision, we do not have certainty 
of the timeframe and the extent of the habitat improvement.
    In conclusion, we have a high level of certainty that the rangewide 
plan will improve the status of the species into the future if 
sufficient enrollment occurs and the plan is implemented accordingly. 
However, the rangewide plan has not contributed to the elimination or 
adequate reduction of the threats to the species at the current time to 
the point that the species does not meet the definition of threatened 
or endangered.

Public Comments

Species' Populations
    (19) Comment: The proposed rule states that very little information 
is available regarding lesser prairie-chicken population size prior to 
1900 and further states that rangewide population estimates were almost 
nonexistent until the 1960s. The lack of practical baseline population 
estimates and historical population studies result in considerable data 
gaps regarding the significance of population fluctuations as well as 
the establishment of a trend-line on the actual population estimates of 
the species. Commenters question how the Service can make a reasonable 
determination that listing is warranted without historical information 
prior to 1900.

[[Page 19981]]

    Our Response: We recognize that data gaps exist in the estimated 
historical population size of the species and in the development of 
population trends for the species, but we are required by the Act to 
determine whether or not the species meets the definition of an 
endangered or threatened species on the basis of the best scientific 
and commercial data available. We recognize that population 
fluctuations are common for the lesser prairie-chicken in response to 
variable weather and habitat conditions, but the best available science 
supports that the overall population size has likely declined from 
possibly millions of birds to current estimates of thousands of birds. 
We present the best available information on population sizes in the 
``Rangewide Population Estimates'' and ``State-by-State Information on 
Population Status'' sections of this final determination. Under section 
4(a)(1) of the Act, we determine whether a species is an endangered or 
threatened species because of any of the following five factors: (A) 
The present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; and (E) other natural or 
manmade factors affecting its continued existence. We examined the best 
scientific and commercial information available regarding present and 
future threats faced by the lesser prairie-chicken in the Summary of 
Factors Affecting the Species. Please refer to the Determination 
section of this final listing rule for further discussion.
    (20) Comment: The Service incorrectly points to the effects of 
inconsistent data, methods, and effort levels in existing survey and 
trend data and then dismisses a study that scientifically addresses 
these flaws. The Interim Assessment of Lesser Prairie-Chicken Trends 
since 1997 (Hagen 2012) standardizes inconsistencies among previous 
survey studies and calculates the population trend of the species from 
the standardized survey data. At a minimum, the Service should explain 
why it dismissed this study.
    Our Response: We discuss the Hagen (2012) interim assessment in the 
``Rangewide Population Estimates'' of this final listing determination. 
We are reluctant to place considerable weight on this interim 
assessment for several reasons, as discussed below in that section. We 
evaluated all sources of the best scientific and commercial data 
available and found other lines of evidence more compelling. More 
specifically, the rangewide aerial survey results show that the total 
estimated abundance of lesser prairie-chickens dropped from 34,440 
individuals (90 percent upper and lower confidence intervals of 52,076 
and 21,718 individuals, respectively) in 2012, to 17,616 individuals 
(90 percent upper and lower confidence intervals of 20,978 and 8,442 
individuals, respectively) in 2013 (McDonald et al. 2013, p. 24).
    (21) Comment: The Service needs a scientifically sound estimate of 
current lesser prairie-chicken populations and habitats to use as a 
baseline to determine future population increases and to delineate 
critical habitat. Similarly, the Service should define a population 
threshold necessary to be considered recovered post-listing.
    Our Response: In the springs of 2012 and 2013, the States, in 
conjunction with the Western Association of Fish and Wildlife Agencies, 
implemented a rangewide sampling framework and survey methodology. This 
aerial survey protocol was developed to provide a more consistent 
approach for detecting rangewide trends in lesser prairie-chicken. The 
aerial surveys conducted in 2012 and 2013 provide the best estimate of 
current rangewide population size of the lesser prairie-chicken. The 
results of the aerial surveys are discussed in more detail in the 
``Rangewide Population Estimates'' section of this final listing 
determination. Recovery planning, as outlined in more detail in section 
4(f)(1) of the Act, is the mechanism by which the Service determines 
what is necessary for the conservation and survival of the species. 
Recovery plans must include objective, measurable criteria that, when 
met, would result in a determination that the species be removed from 
the List of Endangered and Threatened Wildlife. As mentioned above, 
recovery planning for the lesser prairie-chicken will be initiated 
after the listing determination is finalized.
Species' Habitat
    (22) Comment: The Service inaccurately identified the lesser 
prairie-chicken's historical range in the proposed rule. Some areas 
identified as historical range have never been lesser prairie-chicken 
habitat.
    Our Response: As required by section 4(b) of the Act, we used the 
best scientific and commercial data available in this final listing 
determination. The commenters provided no indication of specific areas 
they believe were inaccurately identified as part of the historical 
range and, similarly, provided no rationale (e.g., literature or 
scientific evidence) to indicate any specific areas that should be 
removed from the historical range. Please refer to the ``Historical 
Range and Distribution'' section for a discussion of the best 
scientific and commercial data available regarding the historical range 
of the lesser prairie-chicken. In addition, please refer to our 
response to comment 7 in Peer Reviewer Comments, above.
    (23) Comment: Based on anecdotal evidence and specimen collections, 
the actual historical range of the lesser prairie-chicken for a period 
from at least 1877 through 1925 may have included from southwestern 
Nebraska (northern limits) and southeastward to southwestern Missouri 
(eastern limits). Given this information, the apparent ``increased 
range expansion'' in Kansas is really movement back into its previous 
range, and not an expansion. Additionally, this reestablishment back to 
its former range appears to be within artificial habitat (i.e., CRP 
grasslands).
    Our Response: The extent of the historical range is an estimate, 
and we, therefore, use this term and the term ``approximate'' in 
referring to the historical range in this final listing rule. We also 
recognize that the extent of the historical range may have fluctuated 
over time, based on habitat conditions evident at any one period. The 
information we present in our rule serves to reflect the estimated 
extent of the historical range and provides some context with which we 
can discuss the estimated occupied range. We recognize that lesser 
prairie-chickens have been documented from Nebraska based on specimens 
collected during the 1920s. Sharpe (1968, pp. 51, 174) considered the 
occurrence of lesser prairie-chickens in Nebraska to be the result of a 
short-lived range expansion facilitated by settlement and cultivation 
of grain crops. Sharpe did not report any confirmed observations since 
the 1920s (Sharpe 1968, entire), and no sightings have been documented 
despite searches over the last 5 years in southwestern Nebraska (Walker 
2011, entire). Therefore, Nebraska is not included in the delineated 
historical range of the species; further, the best scientific and 
commercial information available does not indicate that lesser prairie-
chickens currently occur in Nebraska.
    Lawrence (1877), as cited in the comment, documented finding 30 
lesser prairie-chicken specimens for sale in New York that he 
ascertained had originated from southern Missouri; however, the origin 
of these birds is questionable (Sharpe 1968, p. 42). This anecdotal 
evidence is the only evidence that the species may have one time 
occurred in Missouri; therefore, there is

[[Page 19982]]

not enough evidence to support that Missouri was within the historical 
range of the species. Thus, Nebraska and Missouri are not included in 
the estimated historical range of the species. However, as discussed in 
our response to comment 8 above, given the historical records, we agree 
that the currently occupied range in northwestern Kansas does not 
represent a range expansion for lesser prairie-chicken. Instead, we 
consider this to be a reoccupation of former range.
    (24) Comment: The data cited and relied upon by the Service show 
that previous declines in lesser prairie-chicken range have stabilized. 
The Service argues that range occupation trends are key indicators in 
determining whether the lesser prairie-chicken is a threatened species; 
however, the data provided and utilized by Service show that, between 
1980 and 2007, the occupied range increased 159 percent. The increase 
over that period totaled more than 43,253 square kilometers (sq km) 
(16,700 square miles (sq mi)). In its evaluation of whether the lesser 
prairie-chicken range is increasing, the Service examined the period 
preceding European settlement of the United States to 1980. The Service 
failed to consider all range-occupancy trend data after 1980. The 
Service should explain its decision to base range decline estimates on 
the time period from pre-European settlement to 1980 when more recent 
and reliable data were available.
    Our Response: The total maximum historically occupied range prior 
to European settlement is estimated to be about 466,998 sq km (180,309 
sq mi), whereas the total estimated occupied range is now estimated to 
encompass 70,602 sq km (27,259 sq mi) as of 2007. The currently 
occupied range now represents roughly 16 percent of the estimated 
historical range. This value is a close approximation because a small 
portion of the range in Kansas lies outside the estimated maximum 
historical range and was not included in this analysis. This is further 
explained in the ``Historical Range and Distribution'' and ``Current 
Range and Distribution'' sections of the rule. Thus, we based our range 
decline estimates on the time period from pre-European settlement to 
2007. At stated in the response to comment 7 under Peer Reviewer 
Comments, above, our calculations of the loss of historical range are 
an estimate and not an exact value, but they demonstrate that the range 
of the lesser prairie-chicken likely has contracted substantially since 
historical times. In the Summary of Factors Affecting the Species, we 
provide evidence to support that the species is imperiled throughout 
all of its range due to ongoing and future impacts of cumulative 
habitat loss and fragmentation as a result of conversion of grasslands 
to agricultural uses; encroachment by invasive, woody plants; wind 
energy development; petroleum production; roads; and the presence of 
manmade vertical structures. These threats are currently impacting 
lesser prairie-chickens throughout their range and are projected to 
continue and to increase in severity into the future.
    (25) Comment: The lesser prairie-chicken does not naturally exist 
in Deaf Smith County, Texas, and was incorrectly identified in the area 
occupied by the species.
    Our Response: In March 2007, the Texas Parks and Wildlife 
Department (TPWD) reported that lesser prairie-chickens were suspected 
in portions of Deaf Smith County. Aerial and road surveys conducted in 
2010 and 2011 did not detect lesser prairie-chickens in Deaf Smith 
County; however, in 2012, Timmer (2012, pp. 36, 125-131) observed 
lesser prairie-chickens in Deaf Smith County. The western portion of 
Deaf Smith County is included in the Lesser Prairie-Chicken Range-wide 
Conservation Plan as part of the shinnery oak prairie (Van Pelt et al. 
2013, p. 87). Based upon a review of the best scientific and commercial 
information available, Deaf Smith County is included as part of the 
estimated occupied range of the species.
    (26) Comment: Southwest Quay County, New Mexico, is incorrectly 
identified in the lesser prairie-chicken ecoregion map as being 
comprised of shinnery oak prairie. There are no shinnery oak vegetative 
sites within the Southwest Quay Soil and Water Conservation District.
    Our Response: On http://www.regulations.gov, we provided an 
estimated occupied range map as supporting information for the proposed 
listing rule; although Quay County is identified in the map as part of 
the estimated historical range, the current estimated occupied range 
includes only very small portions of southeastern Quay County. The 
ecoregion map referenced by the commenter is provided in the Lesser 
Prairie-Chicken Range-wide Conservation Plan. Southeastern Quay County 
is identified as part of the shinnery oak prairie in the figures 
provided in the Lesser Prairie-Chicken Range-wide Conservation Plan, 
but the southwestern portion of the county is not included (Van Pelt et 
al. 2013, p. 80). As stated in the proposed rule, the New Mexico 
Department of Game and Fish (NMDGF) reports that no leks have been 
detected in northeastern New Mexico, where Quay County occurs. However, 
habitat in this area appears capable of supporting lesser prairie-
chicken, but the lack of any known leks in this region since 2003 
suggests that lesser prairie-chicken populations in northeastern New 
Mexico, if still present, are very small.
    (27) Comment: The outer extent of the currently defined range is 
drawn, especially in the southeast quadrant, based on references to 
places where prairie-chickens were reported to have been seen with no 
documentation to indicate the resident or transient status of the 
birds. Thus, the potential range of the species needs to be better 
defined.
    Our Response: In the ``Current Range and Distribution'' section, we 
discuss the currently occupied range as provided by a cooperative 
mapping effort between the Playa Lakes Joint Venture and the five State 
wildlife agencies within the range of the lesser prairie-chicken. The 
resulting map was provided on http://www.regulations.gov as 
supplemental information to the proposed rule. We consider this mapping 
effort the best scientific and commercial data available regarding the 
estimated current occupied range. The commenter provided no rationale 
(e.g., literature or scientific evidence) to indicate which specific 
areas they believe should or should not be included in the range map.
    (28) Comment: Grain production in certain areas has provided 
desirable, though unnatural, feeding habitat for lesser prairie-
chickens in the past. However, changes in farming practices and decline 
in grain production, rather than habitat degradation, has caused the 
appearance of lesser prairie-chicken population declines.
    Our Response: The Service recognizes that, when available, lesser 
prairie-chickens will use cultivated grains, such as grain sorghum 
(Sorghum vulgare) and corn (Zea mays), during the fall and winter 
months (Snyder 1967, p. 123; Campbell 1972, p. 698; Crawford and Bolen 
1976c, pp. 143-144; Ahlborn 1980, p. 53; Salter et al. 2005, pp. 4-6). 
However, lesser prairie-chickens tend to predominantly rely on 
cultivated grains when production of natural foods, such as acorns and 
grass and forb seeds, are deficient, particularly during drought and 
severe winters (Copelin 1963, p. 47; Ahlborn 1980, p. 57). Overall, the 
amount of land used for crop production nationally has remained 
relatively stable over the last 100 years, although the distribution 
and composition have varied (Lubowski et al. 2006, p. 6; Sylvester et 
al. 2013, p. 13). Despite the stability in crop

[[Page 19983]]

production, the availability of grains has not slowed the decline of 
the species since pre-European settlement. As some cropland is 
transitioned to non-agricultural uses, new land is being brought into 
cultivation helping to sustain the relatively constant amount of 
cropland in existence over that period. Nationally, the amount of 
cropland that was converted to urban uses between 1982 and 1997 was 
about 1.5 percent (Lubowski et al. 2006, p. 3). During that same period 
nationally, about 24 percent of cultivated cropland was converted to 
less intensive uses such as pasture, forest, and CRP (Lubowski et al. 
2006, p. 3). Thus, a decline in grain production is not directly 
associated with lesser prairie-chicken population declines.
Threats
    (29) Comment: Members of the public stated that hunting is driving 
the species to extinction and should be banned before listing is 
enacted. Others simply stated that hunting (or overutilization) is not 
a significant issue for the species or a cause for overutilization.
    Our Response: Hunting programs are administered by State wildlife 
agencies. Currently, lesser prairie-chicken harvest is allowed only in 
Kansas. As discussed in the Hunting and Other Forms of Recreation, 
Educational, or Scientific Use section of the rule, we do not consider 
hunting to be a threat to the species at this time. However, as 
populations become smaller and more isolated by habitat fragmentation, 
their resiliency to the influence of any additional sources of 
mortality will decline. Intentional hunting of the lesser prairie-
chicken will be prohibited when this listing goes into effect. Please 
refer to the final 4(d) special rule published elsewhere in today's 
Federal Register for an explanation of the prohibited actions, and 
exceptions to those prohibitions, that are necessary and advisable for 
the conservation of the lesser prairie-chicken.
    (30) Comment: The proposed rule indicates that collisions with 
fences are an important source of mortality, but no actual data or 
numbers killed were given. Further, any risk posed by fences should be 
discounted because ranchers will remove or replace fences in the 
future, which could benefit lesser prairie-chickens. The most recent 
data do not support that fence collision takes a significant number of 
birds (Hagen 2012, entire; Grisham et al. 2012, entire). Additionally, 
the Service fails to acknowledge the amount of fence removal conducted 
through conservation efforts like the Wildlife Habitat Incentive 
Program (WHIP).
    Our Response: We provide a complete discussion of the impacts 
associated with fence collisions in the Collision Mortality section of 
the Summary of Factors Affecting the Species. This section also 
includes metrics on collision mortality associated with fences and 
other manmade structures; however, precisely quantifying the scope of 
the impact of fence collisions rangewide is largely unquantified due to 
a lack of relevant information. However, the prevalence of fences and 
power lines within the species' range suggests these structures may 
have at least localized, if not widespread, detrimental effects. While 
some conservation programs, including WHIP, have emphasized removal of 
unneeded fences, it is likely that a majority of existing fences will 
remain on the landscape indefinitely without substantially increased 
removal efforts. Existing fences likely operate cumulatively with other 
mechanisms described in this rule to diminish the ability of the lesser 
prairie-chicken to persist, particularly in areas with a high density 
of fences.
    (31) Comment: Disease and predation are not significant issues for 
the lesser prairie-chicken.
    Our Response: We do not consider disease or parasite infections to 
be a significant factor in the decline of the lesser prairie-chicken. 
However, should populations continue to decline or become more isolated 
by fragmentation, even small changes in habitat abundance or quality 
could have a more significant influence on the impact of parasites and 
diseases. Alternatively, predation has a strong relationship with 
certain anthropogenic factors, such as fragmentation, vertical 
structures, and roads, and continued development is likely to increase 
the effects of predation on lesser prairie-chickens beyond natural 
levels. As a result, predation is likely to contribute to the declining 
status of the species. This is discussed further in the Predation 
section of the final rule. The commenter provides no rationale (e.g., 
literature or scientific evidence) to support his assertion that 
predation is not a threat to the lesser prairie-chicken.
    (32) Comment: The broad statement regarding the avian toxicity of 
dimethoate (an insecticide) to lesser prairie-chickens made by the 
Service is not scientifically defensible. The statement was based on a 
single study that was outdated and of questionable quality and the 
Service's conclusion attributing sage grouse mortality to the chemical 
is not supported by the study. First, the study was on sage grouse, 
which have very different behavior patterns than lesser prairie-
chickens; this makes data from a sage grouse field study a poor 
surrogate for assessing risks to lesser prairie-chickens. Second, it is 
unclear from the study if the source of toxicity was the application of 
the insecticide to the alfalfa field or a different insecticide applied 
to a nearby field prior to initiation of the study.
    Our Response: We stated in the proposed rule that in the absence of 
more conclusive evidence, we do not currently consider application of 
insecticides for most agricultural purposes to be a threat to the 
species. However, we also state the primary conclusion of the only 
study we are aware of that has evaluated the use of dimethoate on 
grouse species. The study finds that, of approximately 200 greater sage 
grouse known to be feeding in a block of alfalfa sprayed with 
dimethoate, 63 were soon found dead, and many others exhibited 
intoxication and other negative symptoms (Blus et al. 1989, p. 1139). 
Because lesser prairie-chickens are known to selectively feed in 
alfalfa fields (Hagen et al. 2004, p. 72), there is cause for concern 
that similar impacts could occur. Although we acknowledge that greater 
sage grouse have different behavior patterns than the lesser prairie-
chicken, there are no peer-reviewed studies available to us that 
specifically analyze the effects of insecticides on lesser prairie-
chickens. Therefore, it is reasonable to use this study to draw a broad 
conclusion that similar impacts to the lesser prairie-chicken are 
possible. The researchers note that a flock of about 200 sage grouse 
occupied a field that was sprayed with the insecticide on August 1; 
about 30 intoxicated and dead grouse were observed the following day 
with the last verified insecticide-related mortality occurring on 
August 12 (Blus et al. 1989, p. 1142). The study further verifies, 
through brain chemistry analysis of the greater sage grouse, that at 
least 10 deaths directly resulted from dimethoate (Blus et al. 1989, p. 
1142). Therefore, this study represents the best available science and 
provides evidence to support that insecticides may present a concern 
for the lesser prairie-chicken; however, we also recognize that there 
is not enough evidence provided to determine that insecticides present 
a threat to the species as a whole.
    (33) Comment: The proposed rule states the distance that the lesser 
prairie-chicken avoids around manmade infrastructure, including a wind 
turbine, is more than 1.6 km (1 mi). The Service should provide 
conclusive evidence or studies that birds entirely disappear from a 
habitat area due to manmade structures. The science is unclear on

[[Page 19984]]

whether or not individual birds will return to areas where wind and 
transmission lines have been developed after initial construction 
ceases.
    Our Response: In the ``Causes of Habitat Fragmentation Within 
Lesser Prairie-Chicken Range'' section, we present the results of the 
following studies to provide evidence that natural vertical features 
like trees and artificial above ground vertical structures such as 
power poles, fence posts, oil and gas wells, towers, and similar 
developments can cause general habitat avoidance and displacement in 
lesser prairie-chickens and other prairie grouse: Anderson 1969, 
entire; Robel 2002, entire; Robel et al. 2004, entire; Hagen et al. 
2004, entire; Pitman et al. 2005, entire; Pruett et al. 2009a, entire; 
and Hagen et al. 2011 entire. This avoidance behavior is presumably a 
behavioral response that serves to limit exposure to predation.
    The observed avoidance distances vary depending upon the type of 
structure and are likely also influenced by disturbances such as noise 
and visual obstruction associated with these features. According to 
Robel (2002, p. 23), a single commercial-scale wind turbine creates a 
habitat avoidance zone for the greater prairie-chicken that extends as 
far as 1.6 km (1 mi) from the structure. Pitman et al. 2005 (pp. 1267-
1268) provides evidence to support that lesser prairie-chickens likely 
exhibit a similar response to tall structures like wind turbines. These 
studies do not indicate that lesser prairie-chickens will never occur 
within 1.6 km (1 mi) of a manmade structure, but they provide evidence 
to support that observed avoidance distances can be much larger than 
the actual footprint of the structure. Thus, these structures can have 
significant negative impacts by contributing to further fragmentation 
of otherwise suitable habitats. As human-made structures continue to be 
developed across the landscape, other factors contributing to habitat 
loss and fragmentation include conversion of grasslands to agricultural 
uses; encroachment by invasive, woody plants; wind energy development; 
petroleum production; and roads. The cumulative effect of these factors 
is readily apparent at the regional scale, causing isolation of 
populations at regional, landscape, and local levels.
    (34) Comment: Vodenhal et al. (2011, entire) found greater prairie-
chickens to lek, nest, brood, and remain in the proximity of a Nebraska 
wind farm despite the presence of localized, towering structures. This 
study is at odds with the notion of site fidelity.
    Our Response: Male lesser prairie-chickens have high site fidelity 
and consistently return to a particular lek site (Copelin 1963, pp. 29-
30; Hoffman 1963, p. 731; Campbell 1972, pp. 698-699). Once a lek site 
is selected, males persistently return to that lek year after year 
(Wiley 1974, pp. 203-204). They often will continue to use these 
traditional areas even when the surrounding habitat has declined in 
value (for example, concerning greater sage-grouse; see Harju et al. 
2010, entire). The Service recognizes that Vodenhal et al. (2011, 
unpaginated) observed greater prairie-chickens lekking near the 
Ainsworth Wind Energy Facility in Nebraska since 2006. The average 
distance of the observed display grounds to the nearest wind turbine 
tower was 1,430 m (4,689 ft) for greater prairie-chickens. The Vodenhal 
et al. (2011, unpaginated) study appears to indicate that greater 
prairie-chickens may be more tolerant of wind turbine towers than other 
species of prairie grouse because they continued to use areas near the 
wind facility despite presence of the towers. Occurrence near these 
structures may actually be due to strong site fidelity or continued use 
of suitable habitat remnants, though these populations may not be able 
to sustain themselves without immigration from surrounding populations 
(i.e., population sink) (Hagen 2004, p. 101). Thus, we conclude that 
this study supports the concept of site fidelity, as birds appear to 
return to the area despite the diminished habitat quality. Other recent 
research supports that vertical features, including wind turbines, 
cause general habitat avoidance and displacement in lesser prairie-
chickens and other prairie grouse (Anderson 1969, entire; Robel 2002, 
entire; Robel et al. 2004, entire; Hagen et al. 2004, entire; Pitman et 
al. 2005, entire; Pruett et al. 2009a, entire; Hagen et al. 2011, 
entire; Hovick et al. unpublished manuscript, entire).
    (35) Comment: The Service relies heavily on the potential for 
predation facilitated by tall structures like wind turbines without 
substantial research. Predation is hypothesized to be a reason for 
lesser prairie-chicken avoidance of tall structures, but this 
hypothesis has not been adequately studied.
    Our Response: Recent research, as cited in the final rule, 
demonstrates that natural vertical features like trees and artificial, 
aboveground vertical structures (such as power poles, fence posts, oil 
and gas wells, towers, and similar developments) can cause general 
habitat avoidance and displacement in lesser prairie-chickens and other 
prairie grouse (Anderson 1969, entire; Fuhlendorf et al. 2002a, pp. 
622-625; Robel 2002, entire; Robel et al. 2004, entire; Hagen et al. 
2004, entire; Pitman et al. 2005, entire; Pruett et al. 2009a, entire; 
Hagen et al. 2011 entire). This avoidance behavior is presumed to be a 
behavioral response that serves to limit exposure to predation. We are 
concerned not only with an actual increase in the impact of avian 
predation, but also, and even more so, with the avoidance behavior of 
the lesser prairie-chicken causing individuals to leave fragmented 
areas of otherwise suitable habitats. Further discussion is provided in 
the Predation and ``Causes of Habitat Fragmentation within Lesser 
Prairie-Chicken Range'' sections.
    (36) Comment: Studies including Toepfer and Vodehnal (2009) and 
Sandercock et al. (2012) require further analysis in the listing rule. 
These studies bring into question the Service's central premise that 
fragmented habitat causes the species to be in danger of extinction in 
the foreseeable future.
    Our Response: We have added a discussion of these studies in the 
Wind Power and Energy Transmission Operation and Development section, 
below. The most significant impact of wind energy development on lesser 
prairie-chickens is caused by the avoidance of useable space due the 
presence of vertical structures (turbine towers and transmission lines) 
within suitable habitat. The noise produced by wind turbines also is 
anticipated to contribute to behavioral avoidance of these structures. 
Avoidance of these vertical structures by lesser prairie-chickens can 
be as much as 1.6 km (1 mi), resulting in large areas (814 hectares 
(ha) (2,011 acres (ac)) for a single turbine) of unsuitable habitat 
relative to the overall footprint of a single turbine. Where such 
development has occurred or is likely to occur, these areas are no 
longer suitable for lesser prairie-chicken even though many of the 
typical habitat components used by lesser prairie-chicken remain. 
Therefore, the significant avoidance response of the species to these 
developments and the scale of current and future wind development 
likely to occur within the range of the lesser prairie-chicken leads us 
to conclude that wind energy development is a threat to the species, 
especially when considered in combination with other habitat-
fragmenting activities.
    (37) Comment: In its assessment of risks from herbicides, the 
Service never acknowledges current limited use of herbicides to remove 
shinnery oak and also fails to acknowledge that the New Mexico and 
Texas CCAAs require reductions in herbicide use. The Service never 
addresses the Grisham (2012) 10-

[[Page 19985]]

year study, which ``. . . ultimately suggests that reduced rates of 
herbicide and short-duration grazing treatments are not detrimental to 
lesser prairie-chicken nesting ecology.''
    Our Response: Grisham (2012, p. 115) states that the low dose of 
herbicide used in the study was designed to reduce, not eliminate, 
shrubs; most nests maintained some form of shrub component. Grisham 
caveats his management implications by stating that higher doses may be 
detrimental to nesting lesser prairie-chickens because high doses 
completely eliminate shinnery oak from the community (Peterson and Boyd 
1998, as cited in Grisham 2012, p. 115). In their analysis of the 
status of the species, the Service considered the conservation measures 
currently implemented to reduce herbicide use.
    (38) Comment: Although the Service seems to acknowledge that 
climate change is not presently harming the lesser prairie-chicken and 
will occur over the next 60 years, the available data do not support a 
conclusion that any of those potential effects are foreseeable. 
Alternatively, other commenters assert that the effects of climate 
change needs to be more thoroughly included in the future threats that 
are challenging this species, otherwise the disturbances to the 
species' habitat is under-represented.
    Our Response: We used the best scientific and commercial 
information available to develop the analysis of climate change 
presented in the proposed rule. Since the publication of the proposed 
rule, Grisham et al. (2013, entire) published a new study evaluating 
the influence of drought and projected climate change on the 
reproductive ecology of the lesser prairie-chicken in the Southern High 
Plains. They hypothesized that average daily survival would decrease 
dramatically under all climatic scenarios they examined. Nest survival 
from onset of incubation through hatching were predicted to be less 
than or equal to 10 percent in this region within 40 years. Modeling 
results indicated that nest survival would fall well below the 
threshold for population persistence during that time (Grisham et al. 
2013, p. 8). We have incorporated a discussion of Grisham et al. (2013, 
entire) in this final rule.
    Although estimates of persistence of lesser prairie-chickens 
provided by Garton (2012, pp. 15-16) indicated that lesser prairie-
chickens in the Shinnery Oak Prairie Region had a relatively high 
likelihood of persisting over the next 30 years, the implications of 
climate change were not fully considered in his analysis, as little 
information evaluating the effects of climate change on the species and 
its habitat was available at that time. Predictions provided by Grisham 
et al. (2013, p. 8) indicate that the prognosis for persistence of 
lesser prairie-chickens within this isolated region on the southwestern 
periphery of the range is considerably worse than previously predicted. 
This provides further evidence that climate change is likely to 
contribute to the current and future threats affecting the lesser 
prairie-chicken. This new information has been added to the rule and 
further supports that these impacts are likely to occur in the 
foreseeable future. We anticipate that climate-induced changes in 
ecosystems, including grassland ecosystems used by lesser prairie-
chickens, coupled with ongoing habitat loss and fragmentation, will 
interact in ways that will amplify the individual negative effects of 
these and other threats identified in this final rule (Cushman et al. 
2010, p. 8). Furthermore, ongoing and future habitat fragmentation is 
likely to negatively affect the species' ability to respond to climate 
change.
Conservation Efforts
    (39) Comment: The effect of the Wind Energy Habitat Conservation 
Plan (HCP) on the need to list the species is not adequately discussed. 
The Service failed to analyze the expected positive impact of the HCP 
on lesser prairie-chicken populations.
    Our Response: The Service anticipates that the conservation program 
of the Great Plains Wind Energy HCP could involve measures such as 
acquisition and setting aside of conservation or mitigation lands. A 
draft HCP was submitted for review by the Service and State agency 
partners in November of 2013, but is not expected to be completed until 
the fall of 2015. Thus, this conservation effort is still in the 
development phase, and the HCP has not yet been formalized. The future 
of the HCP and its potential contribution to lesser prairie-chicken 
conservation is unclear at this time, and we cannot conclude that these 
efforts will be finalized as they are in draft form at this time. The 
HCP is further discussed in the Multi-State Conservation Efforts 
section of this final rule.
    (40) Comment: The proposal for listing should better recognize 
current and ongoing voluntary conservation efforts in addition to 
conservation measures that are in place to minimize potential adverse 
effects resulting from activities including livestock grazing, 
pesticide use, and oil and gas development.
    Our Response: We analyzed the best scientific and commercial 
information available on both conservation efforts and conservation 
measures intended to minimize potential adverse effects to the species 
and its habitat. Where commenters provided additional specific 
information for us to consider, we have included that information in 
our consideration of the status of the species in the development of 
this final rule. In most instances, however, the commenters did not 
provide specific information on additional conservation efforts and 
measures that warrant further consideration. Without this information, 
we cannot specifically address these concerns.
Service Policy
    (41) Comment: An environmental impact statement should be prepared 
to assess the social and economic impact of endangered or threatened 
listing.
    Our Response: As stated in the proposed rule, we have determined 
that environmental assessments and environmental impact statements need 
not be prepared in connection with regulations adopted under section 
4(a)(1) of the Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).
    (42) Comment: The Service has not adequately defined ``foreseeable 
future'' as it relates to the status of the lesser prairie-chicken. The 
Service needs to establish the ``foreseeable future'' as a period of 
years. In addition, the Service's discussion of foreseeable future and 
the status of the lesser prairie-chicken uses vague terms (e.g., ``near 
term,'' ``near future'') that suggest an undefined future point in time 
marks the point where the species passes from not being on the brink of 
extinction to being on the brink of extinction.
    Our Response: The Act does not define the term ``foreseeable 
future,'' and the Act and its implementing regulations do not require 
the Service to quantify the time period of foreseeable future. Further, 
in a 2009 memorandum (M-37021, January 16, 2009) addressed to the 
Acting Director of the Service, the Office of the Solicitor, Department 
of the Interior, concluded that ``as used in the [Act], Congress 
intended the term `foreseeable future' to describe the extent to which 
the Secretary can reasonably rely on predictions about the future in 
making determinations about the future conservation status of the 
species.'' The memorandum (M-37021, January 16, 2009) goes on to state, 
``the foreseeable future is not necessarily reducible to a particular 
number of years. Rather, it relates to the

[[Page 19986]]

predictability of the impact or outcome for the specific species in 
question. . . . Such definitive quantification, however, is rarely 
possible and not required for a `foreseeable future' analysis.'' In 
assessing the status of the lesser prairie-chicken, we applied the 
general understanding of ``in danger of extinction'' discussed in the 
December 22, 2010, memo to the polar bear listing determination file, 
``Supplemental Explanation for the Legal Basis of the Department's May 
15, 2008, Determination of Threatened Status for the Polar Bear,'' 
signed by then Acting Director Dan Ashe (hereafter referred to as Polar 
Bear Memo). A complete discussion of how the Service has applied these 
terms to the lesser prairie-chicken is provided in the Determination 
section.
    (43) Comment: The Service failed to evaluate whether the species is 
endangered within any significant portion of its range. The lesser 
prairie-chicken's 81-percent decline in Texas, from 236,000 sq km to 
12,000 sq km (91,120 sq mi to 4,633 sq mi) and 94 percent in New Mexico 
(mostly in the mixed grass prairie Bird Conservation Region) clearly 
qualifies the species for protection as endangered based on threats 
within a significant portion of its range.
    Our Response: Under the Act and our implementing regulations, a 
species may warrant listing if it is endangered or threatened 
throughout all or a significant portion of its range. To determine 
whether or not a species is endangered or threatened, we evaluate the 
five listing factors, which include ``the present or threatened 
destruction, modification, or curtailment of its habitat or range.'' 
The historical decline of the species' range, while highly relevant in 
considering the existence or effect of threats to the species in its 
current range, cannot itself be the basis for listing. In the 
Determination section, below, we outline that the ongoing and future 
impacts of cumulative habitat loss and fragmentation are the primary 
threats to the species. These impacts are the result of conversion of 
grasslands to agricultural uses; encroachment by invasive, woody 
plants; wind energy development; petroleum production; roads; and 
presence of manmade vertical structures, including towers, utility 
lines, fences, turbines, wells, and buildings. The threats to the 
survival of the lesser prairie-chicken occur with equal force 
throughout all of the species' remaining range and are not restricted 
to any particular portion of its currently occupied range. In other 
words, there is no indication that the threat of fragmentation occurs 
with greater or lesser force in any portion of the species' range. 
Accordingly, our assessments and determinations apply to this species 
throughout its entire range.
    (44) Comment: The Service should revise its listing proposal to 
establish several distinct population segments (DPSs) of the lesser 
prairie-chicken in the final rule and list each DPS as endangered, 
threatened, or not warranted depending on the best available science.
    Our Response: Commenters generally did not provide specific 
information as to what populations they felt meet the definition of a 
DPS; thus, we cannot analyze what the commenter presumes to be a DPS. 
We specifically discuss this issue as it relates to the Kansas 
population of lesser prairie-chicken in our response to comment 3 in 
Peer Reviewer Comments, above. Please refer to the Determination 
section of this final listing rule for further discussion.
    (45) Comment: Prohibiting actions on private lands as a result of 
listing the species as threatened or endangered will constitute an 
uncompensated taking under the Eminent Domain Law and would impair 
private property rights. The Service should include better data on the 
social and economic values of private enterprise and private property 
rights.
    Our Response: Listing a species as threatened or endangered does 
not affect constitutionally protected property rights (see the Fifth 
Amendment to the U.S. Constitution). Executive Order 12630 (Government 
Actions and Interference with Constitutionally Protected Private 
Property Rights) requires that we analyze the potential takings 
implications of designating critical habitat for a species in a takings 
implications assessment. However, the listing of a species does not 
affect property rights, and, therefore, an assessment of potential 
takings of land is not necessary.
    (46) Comment: The proposed rule is devoid of a discussion of 
whether the lesser prairie-chicken is still warranted-but-precluded 
from listing due to higher priority listing actions and what changed 
since earlier warranted but precluded findings for this species that 
now led to the issuance of a proposed rule. The Service should consider 
and document examples of changes in the basis that would justify not 
continuing to make a warranted-but-precluded finding. Such examples 
would include scientific information that indicates increased threats 
to the viability of the species, a change in the Service's resources to 
address listing decisions since the date of the 2011 candidate notice 
of review (76 FR 66370, October 26, 2011), and the absence of other 
candidate species that have the same or a lower listing priority 
number.
    Our Response: The lesser prairie-chicken was originally identified 
as a candidate for listing with a listing priority number (LPN) of 8 
(63 FR 31400, June 9, 1998). In 2008, we changed the LPN for the lesser 
prairie-chicken from an 8 to a 2 due to a change in the magnitude of 
threats from moderate to high (73 FR 75176, December 10, 2008). The 
changes in threats was primarily due to an anticipated increase in the 
development of wind energy and associated placement of transmission 
lines throughout the estimated occupied range of the lesser prairie-
chicken. Conversion of certain CRP lands from native grass cover to 
cropland or other less ecologically valuable habitat and observed 
increases in oil and gas development also were important considerations 
in our decision to change the LPN. Our December 10, 2008 (73 FR 75176), 
candidate notice of review, provides the factual or scientific basis 
for changing the listing priority number.
    (47) Comment: The proposed rule summarily dismisses conservation 
measures without fairly addressing their breadth, effectiveness, and 
chance of success. The Service must evaluate the conservation measures 
through, among other things, PECE, and must fully consider how 
conservation measures will reduce or remove threats. A fair evaluation 
of the conservation efforts will demonstrate that they are sufficient 
to protect the lesser prairie-chicken.
    Our Response: We recognize the numerous conservation actions within 
the historical range of the lesser prairie-chicken, with many focused 
primarily on the currently occupied portion of the range, during the 
last 10 to 15 years. See the Summary of Ongoing and Future Conservation 
Actions section of this rule. PECE applies to formalized conservation 
efforts that have not yet been implemented or those that have been 
implemented, but have not yet demonstrated whether they are effective 
at the time of listing. Conservation efforts that are being implemented 
and have demonstrated effectiveness are not within the scope of PECE. 
The effect of such conservation efforts on the status of a species is 
considered as part of the analysis of the five listing factors in 
section 4(a)(1) of the Act.
    The PECE states that conservation efforts that have not yet been 
implemented or those that have been implemented, but have not yet 
demonstrated whether they are effective, must have reduced the threat

[[Page 19987]]

at the time of listing, rather than reducing the threat in the future. 
To consider if a formalized conservation effort contributes to forming 
a basis for not listing a species or for listing a species as 
threatened rather than endangered, we must find that the conservation 
effort is sufficiently certain to be implemented and effective so as to 
have contributed to the elimination or adequate reduction of one or 
more threats to the species identified through the analysis of the five 
listing factors in section 4(a)(1) of the Act. PECE states that the 
Service must have a high level of certainty that the conservation 
effort will be implemented and effective, and has resulted in reduction 
or elimination of one or more threats at the time of listing.
    In this final rule, we considered whether formalized conservation 
efforts are included as part of the baseline through the analysis of 
the five listing factors, or are appropriate for consideration under 
the PECE policy.
    (48) Comment: The Service's application of the categories of 
species ``in danger of extinction'' identified in the Polar Bear Memo 
when determining whether to list the lesser prairie-chicken is 
inappropriate in several respects. First, the Service's definition of 
categories of species ``in danger of extinction'' constitutes an 
improper rulemaking without adequate opportunity for notice and 
comment. Second, the Service's reliance on this general categorization 
is inconsistent with the Act, which requires individual analyses of the 
factors affecting each species when evaluating whether listing is 
warranted, and is therefore arbitrary and capricious.
    Our Response: As required by section 4(a)(1) of the Act, the 
Service determined whether the lesser prairie-chicken is an endangered 
or threatened species based on the five listing factors. See the 
Summary of Factors Affecting the Species section of this rule for our 
analysis.
    As outlined in our response to comment 42, above, the Polar Bear 
Memo provides further guidance on the statutory difference between a 
threatened species and an endangered species. This memo was not a 
rulemaking document that required the opportunity for notice and 
comment--its categorizations are not binding; they are merely a helpful 
analytical tool. As explained more fully in the rule, the Polar Bear 
Memo clarifies that if a species is in danger of extinction now, it is 
an endangered species. In contrast, if it is in danger of extinction in 
the foreseeable future, it is a threatened species.
    Moreover, we provided the public the opportunity to comment on the 
use of the Polar Bear Memo as it applies to the lesser prairie-chicken 
through the publication of the proposed listing rule. We did not 
receive any substantive comments providing evidence contrary to our 
application of the memo to the lesser prairie-chicken. Thus, this is an 
appropriate use of our guidance.
    (49) Comment: Individuals requested the Service provide land 
management recommendations for post-listing conservation of the species 
and its habitat. Specifically, the public requested details on 
compatible grazing management, predator control plans, relocation of 
birds, etc.
    Our Response: Management recommendations as may be necessary to 
achieve conservation and survival of the species will be addressed 
through recovery planning efforts. Under section 4(f)(1) of the Act, we 
are required to develop and implement plans for the conservation and 
survival of endangered and threatened species, unless the Secretary of 
the Interior finds that such a plan will not promote the conservation 
of the species. We will move to accomplish these tasks as soon as 
feasible.
    (50) Comment: The Service should use the same standard of review 
and documentation of science as outlined in the 1994 Interagency 
Cooperative Policy on Information Standards under the Act (59 FR 34271, 
July 1, 1994); in many instances in the proposed rule, the Service 
cites a supporting source, which cites another source as the original 
scientific information.
    Our Response: Without specific identification of the instances in 
the proposed rule where the Service cites other sources than the 
original scientific information, we are unable to provide a specific 
response. However, we acknowledge that in five instances we reference 
information that was cited in another document. We clearly identified 
each of these five instances within the proposed rule, as well as the 
final rule. In four of the five instances, we provided at least one 
additional citation to support the information provided.
    (51) Comment: The Service cites multiple masters' theses in the 
proposed rule, and these documents are not peer-reviewed, published 
literature. Therefore, they do not represent the best available 
science.
    Our Response: Our policy on information standards under the Act 
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the 
Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines, provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. Information 
sources may include the recovery plan for the species, articles in 
peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, other unpublished materials, or experts' opinions or 
personal knowledge. Despite the fact that these theses were not 
published, they still contain credible scientific information and 
represent the best scientific and commercial data available.
    (52) Comment: The science for the proposed rule should be peer-
reviewed based on National Academy of Science standards for conflicts 
of interest, and the Service should provide specific questions to be 
addressed in the peer review.
    Our Response: In accordance with our joint policy published in the 
Federal Register on July 1, 1994 (59 FR 34270), we sought the expert 
opinions of at least three appropriate and independent specialists 
regarding the proposed rule. The purpose of such review is to ensure 
that our determination of status for this species is based on 
scientifically sound data, assumptions, and analyses. We invited these 
peer reviewers to comment, during the public comment period, on our use 
and interpretation of the science used in developing our proposal to 
list the lesser prairie-chicken. Comments from these peer reviewers 
have been reviewed, considered, and incorporated into this final rule, 
as appropriate.

Summary of Changes From the Proposed Rule

    Based upon our review of the public comments, comments from other 
Federal and State agencies, peer review comments, issues addressed at 
the public hearings, and any new relevant information that may have 
become available since the publication of the proposal, we reevaluated 
our proposed rule and made changes as appropriate. Other than minor 
clarifications and incorporation of additional information on the 
species' biology, this determination differs from the proposal by:
    (1) Based on comments and our analyses of the available literature, 
we have added a section on Taxonomy of the genus Tympanuchus, with 
particular emphasis on the lesser prairie-chicken.

[[Page 19988]]

    (2) We have updated the Summary of Ongoing and Future Conservation 
Efforts section below and included an evaluation of conservation 
efforts pursuant to our Policy for Evaluation of Conservation Efforts 
When Making Listing Decisions (68 FR 15100, March 28, 2003).
    (3) We have added a section on the influence of noise associated 
with development activities.
    (4) We have added information on wing loading in grouse and a 
section on conservation genetics.
    (5) We have also updated the ``Rangewide Population Estimates'' 
section to reflect the most current State survey information.

Summary of Ongoing and Future Conservation Efforts

    In this section we review current efforts that are providing some 
conservation benefits to the lesser prairie-chicken and describe any 
significant conservation efforts that appear likely to occur in the 
future. We also completed an analysis of the Western Association of 
Fish and Wildlife Agencies' Lesser Prairie-Chicken Range-wide 
Conservation Plan (rangewide plan), developed in association with the 
Interstate Working Group, pursuant to PECE.
    Numerous conservation actions have been implemented within the 
historical range of the lesser prairie-chicken, many focused primarily 
on the currently occupied portion of the range, during the last 10 to 
15 years. In the past, prairie grouse translocation efforts have been 
implemented for both conservation and recreation purposes. Releases of 
prairie chickens in Hawaii may have been one of the first attempts at 
relocation outside of the historical range in North America (Phillips 
1928, p. 16; see ``Historical Range and Distribution'' section below). 
Most releases of lesser prairie-chickens have been in an attempt to 
repatriate portions of the historical range. Kansas began efforts to 
raise lesser prairie-chickens in captivity during the 1950s in an 
effort to secure sufficient numbers for limited releases (Coats 1955, 
p. 3). Toepfer et al. (1990, entire) summarized historical attempts to 
supplement or reestablish populations of prairie grouse; most met with 
poor success. Prior to 1970, there had been few attempts to supplement 
or reestablish populations of lesser prairie-chickens (Toepfer et al. 
1990, p. 570). Kruse (1973, as cited in Toepfer et al. 1990, p. 570) 
reported on a release of lesser prairie-chickens in Colorado during 
1962 that was unsuccessful. Snyder et al. (1999, entire) summarized 
more recent attempts to translocate prairie grouse in the United 
States. They reported on two separate releases of lesser prairie-
chickens, one in Texas and one in Colorado, during the 1980s, both of 
which were unsuccessful (Snyder et al. 1999, p. 429). Despite the lack 
of success, translocations are becoming increasingly popular as a means 
of conserving populations of rare and declining species (Bouzat et al. 
2009, p. 192). Although the best available information does not 
indicate any current efforts to propagate or translocate lesser 
prairie-chickens, future conservation efforts may involve such 
measures.
    The State conservation agencies have taken a primary role in 
implementation of the conservation actions described below, but several 
Federal agencies and private conservation organizations have played an 
important supporting role in many of these efforts. Recently, several 
multi-State efforts have been initiated, and the following section 
discusses the known conservation efforts for the lesser prairie-
chicken.

Multi-State Conservation Efforts

    The Conservation Reserve Program (CRP), administered by the U.S. 
Department of Agriculture's (USDA) Farm Service Agency (FSA) and 
focused on certain agricultural landowners, has provided short-term 
protection and enhancement of millions of acres within the range of the 
lesser prairie-chicken. The CRP is a voluntary program that allows 
eligible landowners to receive annual rental payments and cost-share 
assistance to remove land from agricultural production and establish 
vegetative cover for the term of the contract. Contract terms are for 
10 to 15 years, and the amount and dispersion of land enrolled in CRP 
fluctuates as contracts expire and new lands are enrolled. All five 
States within the range of the lesser prairie-chicken have lands 
enrolled in CRP. Initially, many enrolled CRP lands, except those in 
Kansas, were planted in nonnative grasses as the predominant cover 
type. In the State of Kansas, enrolled lands were planted in native 
species of grasses as the cover type, resulting in a considerable 
benefit to lesser prairie-chicken conservation. As the program has 
evolved since its inception in 1985, the FSA and their conservation 
partners have encouraged the use of native grasses as the predominant 
cover type in CRP lands, resulting in improved conservation benefits 
for lesser prairie-chickens. Use of native grasses in the CRP helps 
create suitable nesting, wintering, and brood rearing habitat for the 
lesser prairie-chicken.
    In accordance with general CRP guidelines, crop producers can 
voluntarily enroll eligible lands in 10- to 15-year contracts in 
exchange for payments, incentives, and cost-share assistance to 
establish appropriate vegetation on enrolled lands. Program 
administrators may focus efforts on certain environmentally sensitive 
lands under a continuous signup process. The State Acres for Wildlife 
Enhancement program (SAFE) is a specific conservation practice utilized 
under CRP to benefit high-priority wildlife species including the 
lesser prairie-chicken. Landowners may elect to enroll in this program 
at any time under continuous sign-up provisions. Beginning in 2008, the 
SAFE program was implemented in Colorado, Kansas, New Mexico, Oklahoma, 
and Texas to target grassland habitat improvement measures within the 
range of the lesser prairie-chicken. These measures help improve 
suitability of existing grasslands for nesting and brood rearing by 
lesser prairie-chickens. Currently, there are almost 86,603 hectares 
(ha) (214,000 acres (ac)) allocated for the lesser prairie-chicken SAFE 
program (CP-38E) in Colorado, Kansas, New Mexico, Oklahoma, and Texas. 
Allocated acres for the SAFE program vary by State and are as follows: 
Colorado 8,700 ha (21,500 ac); Kansas 21,084 ha (52,100 ac); New Mexico 
1,052 ha (2,600 ac); Oklahoma 6,111 ha (15,100 ac); and Texas 49,655 ha 
(122,700 ac). The current status of the SAFE program, organized by 
State, is provided in the State-Specific Conservation Efforts section, 
below.
    In 2012, the FSA announced another CRP initiative addressing highly 
erodible lands. This nationwide initiative, the CRP Highly Erodible 
Land Initiative, is intended to protect certain environmentally 
sensitive lands by allowing landowners nationally to enroll up to 
303,500 ha (750,000 ac) of lands having an erodibility index of 20 or 
greater. The initiative may further contribute to the short-term 
protection and enhancement of additional acres within the range of the 
lesser prairie-chicken. On average, lands with an erodibility index of 
20 or greater have an erosion rate that exceeds 20 tons of soil eroded 
per acre per year. The term of these contracts is a 10 year period. The 
FSA, based on an analysis by Playa Lakes Joint Venture, estimates that 
there are 278,829 ha (689,000 ac) of active cropland with an 
erodibility index of 20 or higher remaining within the estimated 
occupied range of the lesser prairie-chicken (FSA 2013, p. 41). The 
vast majority of these lands occur in

[[Page 19989]]

eastern New Mexico, the west Texas panhandle, western Oklahoma, and 
southwestern Kansas. More detailed information on the CRP is provided 
in the ``Conservation Reserve Program (CRP)'' section below.
    In 2010, the USDA Natural Resources Conservation Service (NRCS) 
began implementation of the Lesser Prairie-Chicken Initiative (LPCI). 
The LPCI strategically provides conservation assistance, both technical 
and financial, to landowners throughout the LPCI's action area, which 
encompasses the lesser prairie-chicken's estimated occupied range plus 
a 16-km (10-mi) buffer. The LPCI focuses on maintenance and enhancement 
of suitable habitat while benefiting agricultural producers by 
maintaining the farming and ranching operations throughout the region. 
Twenty-seven different practices, under the core conservation practice 
Upland Wildlife Habitat Management (645), are used in implementation of 
the LPCI. Examples of the various practices, which are explained in 
more detail in the November 22, 2013, conference opinion described 
below, include prescribed grazing, prescribed burning, and the 
management or removal of woody plants including invasive species. These 
practices are applied or maintained annually for the life of the 
practice, typically 1 to 15 years, to treat or manage habitat for 
lesser prairie-chickens.
    The LPCI and related NRCS activities were the focus on the November 
22, 2013, conference opinion that the NRCS developed in coordination 
with the Service. In the conference opinion, the Service states that 
implementation of the NRCS conservation practices and their associated 
conservation measures described in the conference opinion are 
anticipated to result in a positive population response by the species 
by reducing or eliminating adverse effects. Furthermore, the Service 
states that overwhelming conservation benefits of implementation of the 
proposed action within selected priority areas, maintenance of existing 
habitat, and enhancement of marginal habitat will outweigh short-term 
negative impacts to individual lesser prairie-chickens. Implementation 
of the LPCI is expected to result in: Management of threats that 
adversely affect populations, an increase in habitat under the 
appropriate management prescriptions, and the development and 
dissemination of information on the compatibility of sustainable 
ranching operations with the persistence of this species across the 
landscape. Through the conference opinion, the Service found that 
effective implementation of conservation practice standards and 
associated conservation measures for the LPCI are anticipated to result 
in a positive population response by the species.
    The NRCS has partnered with other stakeholders to fund, through the 
Strategic Watershed Action Teams program, additional staff positions 
dedicated to providing accelerated and targeted technical assistance to 
landowners within the current range of the lesser prairie-chicken. 
Technical assistance is voluntary help provided by NRCS that is 
intended to assist non-federal land users in addressing opportunities, 
concerns, and problems related to the use of natural resources and to 
help land users make sound natural resource management decisions on 
private, tribal, and other non-federal land. This assistance may be in 
the form of resource assessment, practice design, resource monitoring, 
or follow-up of installed practices. Numerous partners are involved in 
the multi-state LPCI, including the State conservation agencies, the 
Playa Lakes Joint Venture, and the Wood Foundation. The Environmental 
Quality Incentives Program (EQIP) and the Wildlife Habitat Incentives 
Program (WHIP), through the Working Lands for Wildlife partnership, are 
the primary programs used to provide for conservation through the LPCI. 
The lesser prairie-chicken is one of seven focal species being 
addressed by the Working Lands for Wildlife partnership. Through the 
Working Lands for Wildlife Partnership, participating landowners and 
other cooperators who agree to adhere to the requirements of the 
program are provided with regulatory predictability; they are exempted 
from the Act's ``take'' prohibition of listed species for up to 30 
years, as long as the covered conservation practices are maintained and 
take is incidental to the implementation of these conservation 
practices.
    The EQIP is a voluntary program that provides financial and 
technical assistance to agricultural producers through contracts up to 
a maximum term of 10 years in length. These contracts provide financial 
assistance to help plan and implement conservation practices that 
address natural resource concerns and opportunities to improve soil, 
water, plant, animal, air, and related resources on agricultural land. 
Similarly, WHIP is a voluntary program designed for landowners who want 
to develop and improve wildlife habitat on agricultural land, including 
tribal lands. Through WHIP, NRCS may provide both technical assistance 
and up to 75 percent cost-share assistance to establish and improve 
fish and wildlife habitat. Cost-share agreements between NRCS and the 
landowner may extend up to 15 years from the date the agreement is 
signed. By entering into a contract with NRCS, the landowner agrees to 
implement specified conservation actions through provisions of the 
applicable Farm Bill conservation program, such as WHIP or EQIP. 
Between the LPCI's inception in 2010 and the close of 2012, NRCS has 
established 701 contracts on over 381,000 ha (942,572 ac), with the 
majority of contracts (65 percent) and area (46 percent) under contract 
occurring in Texas (Shaughnessy 2013, pp. 29-30). Over $24.5 million in 
funding has been committed to implementation of the LPCI between 2010 
and the close of 2012. In 2013, an additional 67 contracts were 
established on about 89,272 ha (220,598 ac) (Ungerer 2013a). The 
majority of the 2013 contracts were established in the estimated 
occupied range in Kansas (37 contracts totaling 14,672 ha (36,256.1 
ac)), although New Mexico had the largest acreage (11 contracts on 
53,522 ha (132,255.8 ac)) placed under contract in 2013.
    The NRCS also jointly administers the Grassland Reserve Program 
with the FSA. The Grassland Reserve Program is a voluntary conservation 
easement program that emphasizes, among other things, enhancement of 
plant and animal biodiversity and protection of grasslands under threat 
of conversion to other uses. Participants may choose a 10-, 15-, or 20-
year contract, or they may opt to establish a permanent/perpetual 
conservation easement. Participants voluntarily limit future 
development and cropping uses of the easement land while retaining the 
right to conduct common grazing practices, through development of a 
grazing management plan, and operations related to the production of 
forage and seeding, subject to restrictions during nesting seasons. 
Within the five lesser prairie-chicken States, there were a total of 
two parcels totaling 494.5 ha (1,221.9 ac) under permanent easement, 
both in Texas (Ungerer 2013b). Only one of these parcels was within a 
county that included portions of the estimated occupied range. The 
other, located in Armstrong County, lies within the historical range in 
Texas. There also are several Wetland Reserve Program easements within 
the five lesser prairie-chicken States that may include some areas of 
grassland adjacent to the identified wetland resource. Several of these 
parcels are within or adjacent to the estimated occupied range, but 
most

[[Page 19990]]

of these parcels are small, generally less than 81 ha (200 ac) in size 
(Ungerer 2013b).
    The North American Grouse Partnership, in cooperation with the 
National Fish and Wildlife Foundation and multiple State conservation 
agencies and private foundations, have embarked on the preparation of 
the prairie grouse portions of an overarching North American Grouse 
Management Strategy. The Prairie Grouse Conservation Plan, which was 
completed in 2007 (Vodehnal and Haufler 2007, entire), provides 
recovery actions and defines the levels of funding necessary to achieve 
management goals for all species of prairie grouse in North America, 
including the lesser prairie-chicken. The plan uses an ecosystem 
approach to address habitat needs of prairie grouse within the Great 
Plains, concentrating on grassland conservation and restoration that 
will provide habitat conditions for lesser prairie-chickens, among 
other prairie grouse (Vodehnal and Haufler 2007, p. 1). The plan also 
specifically states that, for the lesser prairie-chicken, grasslands 
should be managed to protect and maintain existing tracts of native 
mixed-grass, shinnery oak, and sagebrush prairies, and that 
conservation efforts to retain and restore grasslands acres should 
include reestablishing grassland and shrublands within the species' 
range (Vodehnal and Haufler 2008, p. 16). The plan outlines 
recommendations to improve CRP lands for lesser prairie-chickens, such 
as converting CRP lands planted in nonnative grasses to native grass 
mixes (Vodehnal and Haufler 2008, pp. 18-19). The prairie grouse 
portions of this plan encompass about 26 million ha (65 million ac) of 
grassland habitat in the United States and Canada. The extent to which 
this strategy is being implemented for the lesser prairie-chicken is 
not known.
    The Lesser Prairie-Chicken Interstate Working Group (Working Group) 
was formed in 1996. This group, composed largely of State agency 
biologists, which is currently under the oversight of the Western 
Association of Fish and Wildlife Agencies' Grassland Coordinator, meets 
annually to share information on the status of the lesser prairie-
chicken, results of new research, and ongoing threats to the species. 
The Working Group has played an important role in defining and 
implementing conservation efforts for the lesser prairie-chicken. In 
1999, they published a conservation strategy for the lesser prairie-
chicken (Mote et al. 1999, entire). Then, in 2008, the Working Group 
published a lesser prairie-chicken conservation initiative (Davis et 
al. 2008, entire). Most recently, the Working Group and the Western 
Association of Fish and Wildlife Agencies (WAFWA) expended considerable 
effort to develop the Lesser Prairie-Chicken Range-Wide Conservation 
Plan (hereafter referred to as rangewide plan) that encompassed all 
five States within the occupied range of the species (Van Pelt et al. 
2013, entire). In October of 2013, we determined that the rangewide 
plan, when implemented, would provide a net conservation benefit for 
the lesser prairie-chicken, and, we, in turn, provided our endorsement 
of the rangewide plan (Ashe 2013).
    The rangewide plan is a voluntary conservation strategy that 
establishes a mitigation framework administered by WAFWA for the 
purpose of allowing plan participants the opportunity to mitigate any 
unavoidable impacts of a particular development activity on the lesser 
prairie-chicken and providing financial incentives to landowners who 
voluntarily participate and manage their property for the benefit of 
the lesser prairie-chicken. The rangewide plan specifically allocates 
conservation objectives such that 25 percent of the conservation would 
be in long-term agreements (over 10 years) while the remaining 75 
percent of the conservation would be in short-term (5- or 10-year) 
contracts. Compensation for unavoidable impacts would be provided, when 
possible, through off-site mitigation actions. Within the plan, the 
service areas coincide with the four ecoregions described by McDonald 
et al. (2012, p. 7): The Shinnery Oak Prairie Region (eastern New 
Mexico and southwest Texas panhandle), the Sand Sagebrush Prairie 
Region (southeastern Colorado, southwestern Kansas, and western 
Oklahoma panhandle), the Mixed Grass Prairie Region (northeastern Texas 
panhandle, western Oklahoma, and south central Kansas), and the Short 
Grass/CRP Mosaic region (northwestern Kansas).
    Development activities that would be covered under the rangewide 
plan include oil and gas development (seismic and land surveying, 
construction, drilling, completion, workovers, operations and 
maintenance, and remediation and restorations activities), agricultural 
activities (brush management, building and maintaining fences and 
livestock structures, grazing, water/windmills, disturbance practices, 
and crop production), wind power, cell and radio towers, power line 
activities (construction, operations and maintenance, and 
decommissioning and remediation), road activities (construction, 
operation and maintenance, and decommissioning and remediation), and 
finally general activities (hunting, off-highway vehicle (OHV) 
activity, general construction, and other land management), all of 
which are further defined within the plan.
    The rangewide plan identifies rangewide and ecoregional population 
goals for the lesser prairie-chicken and the amount and condition of 
habitat desired to achieve the population goals, including focal areas 
and connectivity zones where much of the conservation would be 
targeted. The rangewide population goal, based on an annual spring 
average over a 10-year time frame, is set at 67,000 birds. Ecoregional 
specific goals have been set at 8,000 birds in the Shinnery Oak Prairie 
Region, 10,000 birds in the Sand Sagebrush Prairie Region, 24,000 birds 
in the Mixed Grass Prairie Region and 25,000 birds in the Short Grass/
CRP Mosaic region. These regional goals and the overall rangewide 
population goal may be adjusted after the first 10 years of 
implementation using principles of adaptive management. In addition to 
an adaptive management framework, the rangewide plan also identifies 
specific monitoring and research needs. The plan also includes a number 
of conservation measures designed to avoid, offset, or minimize 
anticipated impacts of proposed developments that likely will be 
implemented by those participating in the plan. The specific language 
for each of the identified measures is provided in more detail within 
the plan.
    The rangewide plan incorporates a focal area strategy as a 
mechanism to identify and target the population and habitat goals 
established by the plan. This focal area strategy is intended to direct 
conservation efforts into high priority areas and facilitate creation 
of large blocks of quality habitat in contrast to untargeted 
conservation efforts spread across larger areas that typically result 
in smaller, less contiguous blocks of appropriately managed habitat. 
These focal areas typically would have the following characteristics: 
Average focal area size of at least 20,234 ha (50,000 ac); at least 70 
percent of habitat within each focal area would be high quality, as 
defined in the plan; and enhanced connectivity, with each focal area 
generally located no more than 32 km (20 mi) apart and connected by 
delineated zones between neighboring focal areas that would provide 
suitable habitat and allow for movement between the focal areas. The 
corridors connecting the focal areas also would generally have certain 
characteristics: Habitat within the

[[Page 19991]]

identified corridors would consist of at least 40 percent good- to 
high-quality habitat; distances between existing habitat patches would 
be no more than 3.2 km (2 mi) apart; and corridor widths would be at 
least 8 km (5 mi), and would contain few, if any, barriers to lesser 
prairie-chicken movement. The lack of an identified connection between 
focal areas in the Shinnery Oak Prairie Region with focal areas in the 
remaining regions is the obvious exception to the identified 
guidelines. The Shinnery Oak Prairie Region is separated from the other 
regions by a distance of over 300 km (200 mi) of unfavorable land uses 
and very little suitable lesser prairie-chicken habitat.
    Quality habitat used in determining appropriate focal areas and 
connectivity zones has been defined in the rangewide plan and will not 
be repeated here (Van Pelt et al. 2013, pp. 75-76). These habitat 
characteristics generally consist of specific canopy covers, grass 
composition and heights, and understory density that comprise quality 
nesting and brood rearing habitat that may be observed within the four 
regions delineated in the rangewide plan. Quality habitat as depicted 
in the rangewide plan corresponds with habitat characteristics 
described in the Background section of this final rule. The identified 
focal areas would encompass over 2.9 million ha (7.1 million ac) and 
represents approximately 36 percent of the estimated occupied range.
    Since 2004, the Sutton Center has been working to reduce or 
eliminate the mortality of lesser prairie-chickens due to fence 
collisions on their study areas in Oklahoma and Texas. Forceful 
collisions with fences during flight can cause direct mortality of 
lesser prairie-chickens (Wolfe et al. 2007, pp. 96-97, 101). However, 
mortality risk appears to be dependent on factors such as fencing 
design (height, type, number of strands), length, and density, as well 
as landscape topography and proximity of fences to habitats used by 
lesser prairie-chickens. The Sutton Center has used competitive grants 
and other funding sources to either physically remove unnecessary 
fencing or to apply markers of their own design (Wolfe et al. 2009, 
entire) to the top two strands to increase visibility of existing 
fences. To date, the Sutton Center has removed or improved 
approximately 335 kilometers (km) (208 miles (mi)) of barbed-wire fence 
in Oklahoma and Texas. Treatments are typically concentrated within 1.6 
km (1 mi) of active lesser prairie-chicken leks. Approximately 208 km 
(129 mi) of unneeded fences have been removed. Collectively, these 
conservation activities have the potential to significantly reduce the 
threat of collision mortality on 44,110 ha (109,000 ac) of occupied 
habitat.
    Our Partners for Fish and Wildlife Program (PFW) initiated a 
similar fence marking effort in New Mexico during 2008. Although the 
amount of marked fences has not been quantified, the effort is an 
important contribution to ongoing conservation efforts. The Texas PFW 
program has marked 108 km (67 mi) and removed 53 km (33 mi) of fences 
throughout the State of Texas through the end of 2013. The Colorado PFW 
program, in association with its many partners, has marked 
approximately 16 km (10 mi) of fence. However, continued fence 
construction throughout the range of the lesser prairie-chicken and the 
localized influence of these conservation efforts likely limits the 
effectiveness of such measures at the population level.
    In 2008, the Service and nine States, including the five States 
encompassing the range of the lesser prairie-chicken, began working 
with 17 wind energy development companies to develop a programmatic 
habitat conservation plan (HCP). An HCP is a planning document required 
as part of an application for a permit for incidental take of a 
Federally listed species. An HCP describes the anticipated effects of 
the proposed taking, how those impacts will be minimized or mitigated, 
and how the HCP is to be funded. Initially, the endangered whooping 
crane (Grus americana) was the primary focus of this HCP (the Great 
Plains Wind Energy HCP). Since that time, the endangered interior least 
tern (Sterna antillarum athalassos) and the threatened piping plover 
(Charadrius melodus) have been included in ongoing planning efforts. As 
planning efforts for the Great Plains Wind Energy HCP continued to move 
forward, the lesser prairie-chicken was included in the list of species 
to be covered by the HCP. In November 2013, a draft HCP was submitted 
for review by the Service and State agency partners. The review is 
ongoing, and the Service anticipates returning our initial comments 
back by April 2014. The Great Plains Wind Energy HCP is intended to 
provide take coverage for activities such as siting, construction, 
operation, and decommissioning of wind facilities within the planning 
area, which includes the whooping crane migration corridor and 
wintering grounds, and the range of the lesser prairie-chicken. The 
length of the permit is proposed to be 45 years. The HCP is scheduled 
to be completed in the fall of 2015. We anticipate the conservation 
program of the HCP could involve measures such as acquisition and 
setting aside of conservation or mitigation lands.
    A diverse group of stakeholders representing energy, agricultural, 
and conservation industries and organizations (Stakeholders) across 
five States within the occupied range of the lesser prairie-chicken, as 
well as Nebraska, have recently developed a rangewide conservation plan 
(Stakeholder Conservation Strategy) for the lesser prairie-chicken. The 
intent of this Stakeholder Conservation Strategy is to provide a 
framework for offsetting industry impacts to habitat while providing 
incentives that would encourage landowners to conserve and manage 
habitat to the overall benefit of the lesser prairie-chicken rangewide. 
The proposed permit area includes the estimated occupied range of the 
lesser prairie-chicken plus a 16-km (10-mi) buffer (EOR + 10; described 
in more detail in the ``Current Range and Distribution'' section, 
below), including portions of New Mexico, Colorado, Kansas, Oklahoma, 
and Texas. Additionally, the planning area includes areas outside of 
the estimated occupied range. Such areas would allow for population 
expansion, provided implementation of appropriate conservation 
initiatives that facilitate population expansion, and would extend the 
reach of the overall planning area to portions of Nebraska. Member 
Stakeholders include: Colorado Cattlemen's Association, Kansas Farm 
Bureau, Oklahoma Farm Bureau, Texas Farm Bureau, Texas and Southwestern 
Cattle Raisers Association, Plains Cotton Growers, Texas Wheat Growers 
Association, Texas Watershed Management Foundation, Environmental 
Defense Fund, The Nature Conservancy, Oklahoma State University, USDA 
Agricultural Research Service, British Petroleum, Chesapeake Energy 
Corporation, Chevron U.S.A., SandRidge Exploration and Production, and 
XTO Energy/ExxonMobil. Additional companies or organizations may become 
involved as the planning process proceeds.
    The Stakeholder Conservation Strategy contains three primary 
components: A Habitat Exchange for the lesser prairie-chicken, a 
Habitat Quantification Tool (HQT) and a regional HCP for the lesser 
prairie-chicken. The Habitat Exchange would consist of an independent 
third party that facilitates transactions between a mitigation credit 
buyer (an entity engaging in an otherwise lawful activity that impacts 
lesser prairie-chicken habitat) and a mitigation credit producer (a 
landowner). The credit producers

[[Page 19992]]

(e.g., cattlemen, farmers, and others) would be paid on a performance 
contract basis for achieving specific and measurable conservation 
outcomes. The credit buyers (e.g., energy and other developers) would 
be provided a predictable, effective, and timely means to achieve the 
mitigation required to offset habitat impacts. The regional HCP 
references the HQT as the scientifically measurable means for 
determining debits and identifies the Habitat Exchange as the primary 
means of securing mitigation obligations.
    The American Habitat Center has submitted an application to the 
Service on behalf of the above Stakeholders for a permit to support a 
regional HCP pursuant to section 10 of the Act. This section 10 permit 
would provide incidental take authorization for the covered activities 
stipulated in the Stakeholder Conservation Strategy. The Service 
currently intends to develop an environmental impact statement pursuant 
to the National Environmental Policy Act (42 U.S.C. 4321 et seq.) to 
solicit public comment on the Stakeholder Conservation Strategy and the 
Service's pending permitting decision. A decision on issuance of the 
permit is anticipated in the summer of 2014.
    The Stakeholder Conservation Strategy and associated permit, if 
approved, is intended to provide incidental take authorization for 
covered activities, including agricultural production and energy 
development. Entities wishing to gain regulatory assurances and 
coverage under an incidental take permit could enroll in this regional 
HCP. The Stakeholder Conservation Strategy proposes a multifaceted 
approach involving avoidance, minimization using proven and defined 
best management practices, mitigation of impacts through permanent and 
temporary habitat preservation, restoration, and enhancement and other 
measures. Adequate funding for implementation, including biological and 
compliance monitoring, also would be an important component of the 
Stakeholder Conservation Strategy.
    Several potential conservation banking proposals, in various states 
of development, are being considered over the range of the lesser 
prairie-chicken. A conservation bank consists of permanently protected 
lands that are conserved and permanently managed for endangered, 
threatened, and other imperiled species. In exchange for permanently 
protecting the land and managing it for these species, the Service 
approves a specified number of habitat or species credits that the bank 
owners may sell. These credits may then be used to offset adverse 
impacts to these species and their habitats that occurred in other 
locations.
    A proposed programmatic conservation banking agreement has been 
submitted by Common Ground Capital that would consist of an independent 
conservation banking system intended to facilitate permanent 
conservation for the lesser prairie-chicken through multiple 
conservation banks located across the range of the lesser prairie-
chicken. The Service is currently reviewing this proposed banking 
agreement, and, if approved, the agreement would allow the 
establishment of conservation banks for the lesser prairie-chicken. The 
estimated timeline for the Common Ground Capital banking agreement 
approval process is spring 2014, with implementation to follow sometime 
after the approval process is complete.
    Other independent bankers have had informal discussions with the 
Service and intend to submit additional conservation banking proposals 
for permanent conservation banks in various areas within the lesser 
prairie-chicken's range. The Service anticipates we will receive these 
requests in the spring of 2014, with bank establishment to follow 
sometime in 2014, pending full review and completion of the approval 
process.
    The five State conservation agencies developed an Internet-based 
mapping tool, initially a pilot project under the Western Governors' 
Association Wildlife Council. This tool, now known as the Southern 
Great Plains Crucial Habitat Assessment Tool (CHAT), was made 
accessible to the public in September 2011, and a second version of the 
CHAT was developed in 2013. The CHAT is available for use by 
conservation managers, industry, and the public to aid in conservation 
planning for the lesser prairie-chicken. The tool identifies priority 
habitat for the lesser prairie-chicken, including possible habitat 
corridors linking important conservation areas. The CHAT will be an 
important tool for implementation of the rangewide plan's mitigation 
framework by using the CHAT categories as ratio multipliers. The CHAT 
classifies areas on a scale of 1 to 4 by their relative value as lesser 
prairie-chicken habitat. According to Van Pelt et al. (2013, pp. 54-
55), the CHAT 1 category is comprised of focal areas for lesser 
prairie-chicken conservation; the CHAT 2 category is comprised of 
corridors for lesser prairie-chicken conservation; the CHAT 3 category 
is comprised of available and potential habitat, as developed through 
modeling efforts; and the CHAT 4 category is comprised of the EOR + 10. 
The CHAT includes other data layers that may facilitate conservation 
planning, including current and historical lesser prairie-chicken 
range, land cover types, oil and gas well density, presence of vertical 
structures, and hexagonal summary polygon to provide users contextual 
information about the surrounding landscape. The CHAT tool will be 
updated annually. Use of the tool is currently voluntary but ultimately 
may play an important role in guiding future development and conserving 
important habitats.
    Candidate Conservation Agreements (CCAs) and Candidate Conservation 
Agreements with Assurances (CCAAs) are formal, voluntary agreements 
between the Service and one or more parties to address the conservation 
needs of one or more candidate species or species likely to become 
candidates in the near future. These agreements are intended to reduce 
or remove identified threats to a species. Implementing conservation 
efforts before species are listed increases the likelihood that 
simpler, more cost-effective conservation options are available and 
that conservation efforts will succeed. Development of CCAs and CCAAs 
is guided by regulations at 50 CFR 17.22(d) and 50 CFR 17.32(d).
    Under a CCA, Federal managers and other cooperators 
(nongovernmental organizations and lease holders) implement 
conservation measures that reduce threats on Federal lands and leases. 
Under a CCAA, non-federal landowners and lease holders voluntarily 
provide habitat protection or enhancement measures on their lands, 
thereby reducing threats to the species. A section 10(a)(1)(A) 
enhancement of survival permit is issued in association with a CCAA. If 
the species is later listed under the Act, the permit authorizes take 
that is incidental to otherwise lawful activities specified in the 
agreement, when performed in accordance with the terms of the 
agreement. Further, the CCAA provides assurances that if the subject 
species is later listed under the Act, participants who are 
appropriately implementing certain conservation actions under the CCAA 
will not be required to implement additional conservation measures.
    An ``umbrella'' CCA and CCAA with the Bureau of Land Management 
(BLM) in New Mexico and two ``umbrella'' CCAAs, one each in Oklahoma 
and Texas, are being implemented for the lesser prairie-chicken. An 
additional CCAA was previously established with a single landowner in 
southwestern

[[Page 19993]]

Kansas; however, this CCAA expired in May of 2012. Under these 
agreements, the participants agree to implement certain conservation 
measures that are anticipated to reduce threats to lesser prairie-
chicken; improve their habitat; reduce habitat fragmentation; and 
increase population stability, through increases in adult and juvenile 
survivorship, nest success, and recruitment rates and reduced 
mortality. Dependent upon the level of participation, expansion of the 
occupied range may occur. Conservation measures typically focus on 
maintenance, enhancement, or restoration of nesting and brood rearing 
habitat. Some possible conservation measures include removal of 
invasive, woody plants, such as Prosopis spp. (mesquite) and Juniperus 
virginiana (eastern red cedar); implementation of prescribed fire; 
marking of fences; removal of unneeded fences; improved grazing 
management; and similar measures that help reduce the impact of the 
existing threats.
    On December 18, 2013, we announced receipt of an application from 
WAFWA for an enhancement of survival permit associated with anticipated 
implementation of another CCAA (78 FR 76639). This Rangewide Oil and 
Gas Industry CCAA for the Lesser Prairie-Chicken (78 FR 76639) 
incorporates measures to address impacts to the lesser prairie-chicken 
from oil and gas activities on non-federal lands throughout the 
species' range and provides coverage for a period of 30 years, offering 
the oil and gas industry the opportunity to voluntarily conserve the 
lesser prairie-chicken and its habitat while receiving assurances 
provided by the Service. Within New Mexico, oil and gas operators have 
the option to choose to enroll under the 2008 CCAA or the new rangewide 
oil and gas CCAA. On February 28, 2014, we announced in a press release 
that we had signed the CCAA, issued the enhancement of survival permit, 
and released the accompanying final environmental assessment and 
finding of no significant impact. When undertaking certain actions that 
impact the species or its habitat, participants will be required to pay 
mitigation fees; funds generated through these fees will enable 
implementation of conservation actions on enrolled lands elsewhere. 
This rangewide CCAA is one mechanism for implementing the rangewide 
plan previously discussed.
    All of the State conservation agencies and many Federal agencies 
within the range of the lesser prairie-chicken conduct outreach efforts 
intended to inform and educate the public about the conservation status 
of the species. Many of these efforts specifically target landowners 
and other interested stakeholders involved in lesser prairie-chicken 
conservation. Annual festivals focused on the lesser prairie-chicken 
have been held in several States (Milnesand, New Mexico; Woodward, 
Oklahoma; and Canadian, Texas) and help inform and raise awareness of 
lesser prairie-chickens for the public; however, the lesser prairie-
chicken festival in Milnesand, New Mexico, was cancelled in 2013 and 
2014 due to low populations of lesser prairie-chickens. Often festival 
participants are able to visit an active lesser prairie-chicken 
breeding area to observe courtship displays. Festivals and similar 
community efforts such as these can help promote the concept that 
stewardship of the lesser prairie-chicken and other wildlife can 
facilitate economic growth and viable farming and ranching operations.

State-Specific Conservation Efforts

Colorado
    The Colorado Parks and Wildlife (CPW) hosted a workshop on the 
conservation of the lesser prairie-chicken in late 2009. This workshop 
provided information to local landowners and other interested parties 
on conservation of the lesser prairie-chicken. Specific management 
actions, such as grassland restoration and enhancement, intended to 
benefit conservation of the lesser prairie-chicken were highlighted. 
Subsequently, Colorado implemented a habitat improvement program (HIP) 
for the lesser prairie-chicken that provides cost-sharing to private 
landowners, subject to prior consultation and approval from a CPW 
biologist, for enrolling fields or conducting habitat enhancements 
beneficial to the species. By mid-2012, approximately 4,537 ha (11,212 
ac) in the estimated occupied range had been enrolled in this program 
(Van Pelt et al. 2013, p. 62). Additionally, in 2006, Colorado 
initiated a wildlife habitat protection program designed to facilitate 
acquisition of conservation easements and purchase of lands for the 
lesser prairie-chicken and other wildlife species. The lesser prairie-
chicken was one of five priorities for 2012, and up to $14 million was 
available in the program.
    Currently about 4,433 ha (10,954 ac) have been enrolled under the 
lesser prairie-chicken CRP SAFE continuous sign-up in Colorado. These 
enrolled areas are typically recently expired CRP lands and contain 
older grass stands in less than optimal habitat condition. In late 
winter 2010 or early spring 2011, one-third of these enrolled lands 
received a forb (broad-leaved herb other than a grass) and legume 
inter-seeding consisting of dryland alfalfa and other species to 
improve habitat quality. This effort is anticipated to result in the 
establishment of alfalfa and additional forbs, resulting in improved 
nesting and brood-rearing habitat. About 4,249 ha (10,500 ac) of the 
initial 8,701 ha (21,500 ac) allocated for SAFE remain to be enrolled.
    Our Partners for Fish and Wildlife Program (PFW) program has 
contributed financial and technical assistance for restoration and 
enhancement activities benefitting the lesser prairie-chicken in 
Colorado. The PFW program has executed 14 private lands agreements 
facilitating habitat restoration and enhancement for the lesser 
prairie-chicken on about 9,307 ha (23,000 ac) of private lands in 
southeastern Colorado.
    A cooperative project between the CPW and the U.S. Forest Service 
(USFS) has established several temporary grazing exclosures adjacent to 
active leks on the Comanche National Grassland in an attempt to improve 
nesting habitat. The efficacy of these treatments is unknown, and 
further monitoring is planned to determine the outcome of these efforts 
(Verquer and Smith 2011, p. 7).
    In addition, more than 4,450 ha (11,000 ac) have been protected by 
perpetual conservation easements held by CPW, The Nature Conservancy, 
and the Greenlands Reserve Land Trust.
Kansas
    The Kansas Department of Wildlife, Parks, and Tourism (KDWPT) has 
targeted lesser prairie-chicken habitat improvements through various 
means including the landowner incentive program (LIP), voluntary 
mitigation projects for energy development, and a State-level WHIP. 
Through the LIP, KDWPT provides direct technical and financial 
assistance to private landowners interested in contributing to the 
conservation of species in greatest conservation need, including lesser 
prairie-chickens. The LIP improved about 9,118 ha (22,531 ac) for 
lesser prairie-chickens during the period from 2007 to 2011. Some 
examples of LIP projects include planting native grasses, brush 
management efforts, and implementation of prescribed fire. Since 2008, 
the KDWPT has provided $64,836 in landowner cost-share through the WHIP 
for practices benefitting the lesser prairie-chicken on about 2,364 ha 
(5,844 ac). Currently more than 11,662 ha (28,819 ac) of the original 
allocation

[[Page 19994]]

have been enrolled under the lesser prairie-chicken CRP SAFE continuous 
sign-up in Kansas. Primary practices include tree removal, prescribed 
fire, grazing management (including perimeter fencing to facilitate 
livestock management), and native grass establishment that will improve 
lesser prairie-chicken nesting and brood rearing habitat.
    Funds available through the State wildlife grants program also have 
been used to benefit the lesser prairie-chicken in Kansas. The KDWPT 
was awarded a 5-year State wildlife grant in 2009, focusing on lesser 
prairie-chicken habitat improvements. Like several of the other States 
within the range of the lesser prairie-chicken, the KDWPT partnered 
with Pheasants Forever and NRCS to fund three employee positions that 
provide technical assistance to private landowners participating in 
conservation programs with an emphasis on practices favorable to the 
lesser prairie-chicken. These employees primarily assist in the 
implementation and delivery of the NRCS's LPCI in Kansas.
    Additionally, KDWPT has a walk-in hunting program that was 
initiated in 1995, in an effort to enhance the hunting tradition in 
Kansas. The program provides hunters access to private property, 
including many lands enrolled in CRP, and has become one of the most 
successful access programs in the country. By 2004, more than 404,000 
ha (1 million ac) had been enrolled in the program. Landowners receive 
a small payment in exchange for allowing public hunting access to 
enrolled lands. Payments vary by the amount of acres enrolled and 
length of contract period. Conservation officers monitor the areas, and 
violators are ticketed or arrested for offenses such as vandalism, 
littering, or failing to comply with hunting or fishing regulations. 
Such incentives, although relatively small, help encourage landowners 
to provide habitat for resident wildlife species including the lesser 
prairie-chicken.
    The Service's PFW program has contributed financial and technical 
assistance for restoration and enhancement activities that benefit the 
lesser prairie-chicken in Kansas. Primary activities include control of 
invasive, woody plant species, such as eastern red cedar and enhanced 
use of prescribed fire to improve habitat conditions in native 
grasslands. The PFW program has executed 63 private lands agreements on 
about 56,507 ha (139,633 ac) of private lands benefitting conservation 
of the lesser prairie-chicken in Kansas. An approved CCAA was developed 
on 1,133 ha (2,800 ac) in south-central Kansas; however, this CCAA 
expired in 2012.
    The Comanche Pool Prairie Resource Foundation (Comanche Pool) is a 
landowner-driven, nonprofit resource foundation that promotes proper 
grassland management throughout the mixed-grass vegetative ecoregion of 
southern Kansas and northern Oklahoma. Ranching is one of the major 
land uses in this ecoregion, and ranchers have been generally receptive 
to lesser prairie-chicken conservation strategies that are compatible 
with their ongoing land use plans. The mission of the Comanche Pool is 
to provide demonstrations, education, and consultation to other 
landowners for the purpose of regenerating natural resources and 
promoting the economic growth of the rural community.
    The Comanche Pool has secured over $850,000 in grant funding 
utilized to restore and enhance rangelands, which has been matched by 
other partners. Landowner in-kind contributions of almost one million 
dollars have been provided. Past rangeland improvement agreements 
include 43 projects affecting over 100,000 acres of improved habitat 
for the lesser prairie-chicken. Numerous project boundaries often are 
shared, resulting in larger, contiguous blocks of habitat.
    The Kansas Grazing Lands Coalition (KGLC) is another landowner-
driven initiative that has a mission to regenerate Kansas grazing land 
resources through cooperative management, economics, ecology, 
production, education, and technical assistance programs. The Service's 
PFW program in Kansas has partnered with the KGLC to provide technical 
guidance and financial assistance to restore and enhance native 
grasslands through voluntary agreements with Kansas landowners. The 
KGLC administers numerous outreach and education events for regional 
grazing groups and plays an integral role in conservation delivery. 
They coordinate with other conservation organizations in Kansas.
    Lesser prairie-chicken habitat benefits from periodic burns that 
improve habitat quality and various organizations in Kansas support the 
use of prescribed fire. The Kansas Prescribed Burn Association (KPBA) 
is a not-for-profit burn association that serves to encourage the use 
of prescribed fire and is comprised of private landowners. The mission 
of KPBA is to promote better rangeland management practices through the 
use of prescribed fire, with emphasis on safety and training for those 
members and associates with less experience in prescribed fire and 
adherence to the use of standard prescribed burning practices. The 
Kansas Prescribed Fire Council (KPFC) also works to support prescribed 
burning in Kansas by promoting safe, legal, and responsible use of 
prescribed fire as a natural resource tool through information exchange 
and prescribed fire advocacy. The Comanche Pool, KGLC and KPFC recently 
were awarded a National Fish and Wildlife Foundation grant to support 
two prescribed fire specialist positions within the mixed grass and 
sand sagebrush ecoregions of Kansas to support lesser prairie-chicken 
habitat maintenance and restoration on private lands.
    In 2013, a coalition of 29 county governments in Kansas joined in 
an effort to coordinate conservation for the lesser prairie-chicken. 
The involved counties encompass 64,954 sq km (25,079 sq mi) in western 
and southern Kansas, including most of the estimated occupied range of 
the lesser prairie-chicken in Kansas. In August of 2013, this coalition 
prepared a conservation, management, and study plan for the lesser 
prairie-chicken (Kansas Natural Resource Coalition 2013, entire). The 
plan summarizes some of the available information regarding lesser 
prairie-chickens and has the stated goal of preserving, maintaining, 
and increasing lesser prairie-chicken populations in balance with and 
respect for human, private, and industrial systems within the 29 county 
region under governance by the coalition members. The plan identified 
several conservation actions, such as prescribed fire, being undertaken 
by the coalition or its member organizations that fall within six major 
categories of conservation focus: population monitoring, habitat, nest 
success, predation and interspecific competition, hunting, and program 
funding.
New Mexico
    In January 2003, a working group composed of local, State, and 
Federal officials, along with private and commercial stakeholders, was 
formed to address conservation and management activities for the lesser 
prairie-chicken and dunes sagebrush lizard (Sceloporus arenicolus) in 
New Mexico. This working group, formally named the New Mexico Lesser 
Prairie-Chicken/Sand Dune Lizard Working Group, published the 
Collaborative Conservation Strategies for the Lesser Prairie-Chicken 
and Sand Dune Lizard in New Mexico (Strategy) in August 2005. This 
Strategy provided guidance in the development of BLM's Special Status 
Species Resource Management Plan Amendment (RMPA), approved in April 
2008, which

[[Page 19995]]

also addressed the concerns and future management of lesser prairie-
chicken and dunes sagebrush lizard habitats on BLM lands, and 
established the Lesser Prairie-Chicken Habitat Preservation Area of 
Critical Environmental Concern. Both the Strategy and the RMPA 
prescribe active cooperation among all stakeholders to reduce or 
eliminate threats to these species in New Mexico. As an outcome, the 
land-use prescriptions contained in the RMPA now serve as baseline 
mitigation (for both species) to those operating on Federal lands or 
non-federal lands with Federal minerals.
    Following approval of the RMPA, a CCA was drafted by a team 
including the Service, BLM, Center of Excellence for Hazardous 
Materials Management, and participating cooperators. The CCA addresses 
the conservation needs of the lesser prairie-chicken and dunes 
sagebrush lizard on BLM lands in New Mexico by undertaking habitat 
restoration and enhancement activities and by minimizing habitat 
degradation. These efforts would protect and enhance existing 
populations and habitats, restore degraded habitat, create new habitat, 
augment existing populations of lesser prairie-chickens, restore 
populations, fund research studies, or undertake other activities on 
their Federal leases or allotments that improve the status of the 
lesser prairie-chicken. Through this CCA, Center of Excellence for 
Hazardous Materials Management will work with participating cooperators 
who voluntarily commit to implementing or funding specific conservation 
actions, such as burying powerlines, controlling mesquite, minimizing 
surface disturbances, marking fences, and improving grazing management, 
in an effort to reduce or eliminate threats to both species. The CCA 
builds upon the BLM's RMPA for southeast New Mexico. The RMPA 
established the foundational requirements that will be applied to all 
future Federal activities, regardless of whether a permittee or lessee 
participates in this CCA. The strength of the CCA comes from the 
implementation of additional conservation measures that are additive, 
or above and beyond those foundational requirements established in the 
RMPA. In addition to the CCA, a CCAA has been developed in association 
with the CCA to facilitate conservation actions for the lesser prairie-
chicken and dunes sagebrush lizard on private and State lands in 
southeastern New Mexico.
    Since the CCA and CCAA were finalized in December 2008, 31 oil and 
gas companies have enrolled a total of 354,100 ha (875,000 ac) of 
mineral holdings under the CCA and CCAA. In addition, 50 private 
landowners in New Mexico have enrolled about 704,154 ha (1,740,000 ac) 
under the CCAA. On March 1, 2012, the New Mexico State Land Office 
enrolled all State Trust lands in lesser prairie-chicken and dunes 
sagebrush lizard habitat (about 248,000 ac) into a certificate of 
inclusion under the CCAA. On these enrolled State Trust lands, the 
herbicide tebuthiuron will no longer be used to treat shinnery oak. 
Please refer to the ``Shrub Control and Eradication'' section, below, 
for more information on tebuthiuron. There currently are four pending 
ranching enrollment applications being reviewed and processed for 
inclusion. Recently, BLM also has closed 149,910 ha (370,435 ac) to 
future oil and gas leasing and closed about 342,770 ha (847,000 ac) to 
wind and solar development. Part of the purpose for these closures was 
to improve lesser prairie-chicken habitat. The BLM has reclaimed about 
328 ha (810 ac) of abandoned well pads and associated roads (Watts 
2014, pers. comm.). The BLM also requires burial of powerlines within 
3.2 km (2 mi) of leks. Approximately 52 km (32.5 mi) of aboveground 
powerlines have been removed to date. Additionally, BLM has implemented 
control efforts for mesquite (Prosopis glandulosa) on 157,397 ha 
(388,937 ac) and has plans to do so on an additional 140,462 ha 
(347,091 ac). More discussion of mesquite control is addressed in the 
``Shrub Control and Eradication'' section, below.
    Acquisition of land for the protection of lesser prairie-chicken 
habitat also has occurred in New Mexico. The New Mexico Department of 
Game and Fish (NMDGF) currently has designated 29 areas specifically 
for management of the lesser prairie-chickens totaling more than 11,850 
ha (29,282 ac). These areas are closed to the public during the 
breeding and nesting season (March 1 to July 30) each year, and 
restrictions are in place to minimize noise and other activities 
associated with oil and gas drilling. In 2007, the State Game 
Commission used New Mexico State Land Conservation Appropriation 
funding to acquire 2,137 ha (5,285 ac) of private ranchland in 
Roosevelt County. This property, the Sandhills Prairie Conservation 
Area (formerly the Lewis Ranch), is located east of Milnesand, New 
Mexico, and adjoins two existing Commission-owned prairie-chicken 
areas. The BLM, on March 3, 2010, also acquired 3,010 ha (7,440 ac) of 
land east of Roswell, New Mexico, to protect key habitat for the lesser 
prairie-chicken. The Nature Conservancy owns and manages the 11,331 ha 
(28,000 ac) Milnesand Prairie Preserve near Milnesand, New Mexico. 
Habitat management efforts on this preserve target the lesser prairie-
chicken.
    The Service's PFW program also has been active in lesser prairie-
chicken conservation efforts in the State of New Mexico. Private lands 
agreements have been executed on 65 properties encompassing 28,492 ha 
(70,404 ac) of lesser prairie-chicken habitat in New Mexico. 
Additionally, the entire 1,052 ha (2,600 ac) allotted to the lesser 
prairie-chicken CRP SAFE continuous signup in New Mexico (Lea County 
only) have been enrolled under the Service's PFW program.
Oklahoma
    The ODWC partnered with the Service, the Oklahoma Secretary of 
Environment, The Nature Conservancy, the Sutton Center, and the Playa 
Lakes Joint Venture to develop the Oklahoma Lesser Prairie-Chicken 
Spatial Planning Tool in 2009. The goal of the Oklahoma Lesser Prairie-
Chicken Spatial Planning Tool is to reduce the impacts of ongoing and 
planned development actions within the range of the lesser prairie-
chicken by guiding development away from sensitive habitats used by the 
species. The Oklahoma Lesser Prairie-Chicken Spatial Planning Tool 
assigns a relative value rank to geographic areas to indicate the value 
of the area to the conservation of the lesser prairie-chicken. The 
higher the rank (on a scale of 1 to 8), the more important the area is 
to the lesser prairie-chicken. The Oklahoma Lesser Prairie-Chicken 
Spatial Planning Tool, therefore, can be used to identify areas that 
provide high-quality habitat and determine where development, such as 
wind power, would have the least impact to the species. The Oklahoma 
Lesser Prairie-Chicken Spatial Planning Tool also can be used to 
determine a voluntary offset payment based on the cost of mitigating 
the impact of the anticipated development through habitat replacement. 
The voluntary offset payment is intended to be used to offset the 
impacts associated with habitat loss. Use of the Oklahoma Lesser 
Prairie-Chicken Spatial Planning Tool and the voluntary offset payment 
is voluntary.
    To date, in excess of $11.1 million has been committed to the ODWC 
through the voluntary offset payment program. Most recently, the ODWC 
entered into a memorandum of agreement with Chermac Energy Corporation 
to partially offset potential habitat loss from a planned 88.5-km (55-
mi) high-voltage transmission line. The line would run

[[Page 19996]]

from near the Kansas State line to the Oklahoma Gas and Electric 
Woodward Extra High Voltage substation and will be used to carry up to 
900 megawatts of wind energy from an existing wind farm in Harper 
County. The memorandum of agreement facilitates voluntary offset 
payments for impacts to the lesser prairie-chicken and its habitat. The 
agreement calls for the payment of a total of $2.5 million, with the 
money being used to help leverage additional matching funds from 
private and Federal entities for preservation, enhancement, and 
acquisition of lesser prairie-chicken habitat. A large percentage of 
the voluntary offset payment funds have been used to acquire lands for 
the conservation of the lesser prairie-chicken and other fish and 
wildlife resources.
    In 2008, the ODWC acquired two properties known to be used by the 
lesser prairie-chicken. The Cimarron Bluff Wildlife Management Area 
encompasses 1,388 ha (3,430 ac) in northeastern Harper County, 
Oklahoma. The Cimarron Hills Wildlife Management Area in northwestern 
Woods County, Oklahoma, encompasses 1,526 ha (3,770 ac). The ODWC also 
recently purchased 5,580 ha (13,789 ac) within the range of the lesser 
prairie-chicken to expand both the Beaver River and Packsaddle Wildlife 
Management Areas in Beaver and Ellis Counties, respectively.
    Oklahoma State University hosts prescribed fire field days to help 
inform landowners about the benefits of prescribed fire for controlling 
invasion of woody vegetation in prairies and improving habitat 
conditions for wildlife in grassland ecosystems. Prescribed burning is 
an important tool landowners can use to improve the value of CRP fields 
and native prairie for wildlife, including the lesser prairie-chicken, 
by maintaining and improving vegetative structure, productivity, and 
diversity and by controlling exotic plant species. In 2009, the 
Environmental Defense Fund partnered with Oklahoma State University to 
prepare a report on the management of CRP fields for lesser prairie-
chicken management. The document (Hickman and Elmore 2009, entire) was 
designed to provide a decision tree that would assist agencies and 
landowners with mid-contract management of CRP fields.
    Like the other States, ODWC has partnered in the implementation of 
a State WHIP designed to enhance, create, and manage habitat for all 
wildlife species, including the lesser prairie-chicken. The State WHIP 
recently has targeted money for lesser prairie-chicken habitat 
improvements.
    Several different ``Ranch Conversations'' have been held in 
northwestern Oklahoma over the past 10 years, most recently hosted by 
the Oklahoma High Plains Resource Development and Conservation Office. 
These meetings invited private landowners and the general public to 
discuss lesser prairie-chicken conservation and management, receive 
information, and provide input on programs and incentives that are 
available for managing the lesser prairie-chicken on privately owned 
lands.
    In an effort to address ongoing development of oil and gas 
resources, the Oklahoma Wildlife Conservation Commission voted to 
approve a memorandum of understanding with the Oklahoma Independent 
Petroleum Association in February 2012 to establish a collaborative 
working relationship for lesser prairie-chicken conservation. Through 
this memorandum of understanding, the ODWC and Oklahoma Independent 
Petroleum Association will identify and develop voluntary steps (best 
management practices) that can be taken by the Oklahoma Independent 
Petroleum Association's members to avoid and minimize the impacts of 
their operations on the lesser prairie-chicken. These best management 
practices are currently under development.
    The Oklahoma Association of Conservation Districts received a USDA 
Conservation Innovation Grant to develop the concept of a wildlife 
credits trading program as it applies to the lesser prairie-chicken. 
This pilot project entailed creating protocols for defining, 
quantifying and qualifying a credit; developing a credit verification 
system; and measuring the projects effect on Oklahoma's lesser prairie-
chicken population. As a part of this grant, the Oklahoma Association 
of Conservation Districts currently provides financial incentives ($8 
per acre) over a 5-year period to agricultural producers who enroll in 
the habitat credit training program and participate in the Oklahoma 
CCAA. The grant provided funding for enrollment of up to 4,046 ha 
(10,000 ac) over the 5-year period, but no acres have been enrolled in 
the habitat credit training program as of the end of 2013. When 
completed, the credit trading program staff also will develop a 
handbook that can be used by others when providing incentives to 
landowners who manage their lands for conservation of the lesser 
prairie-chicken and other species. The Oklahoma USDA FSA and ODWC have 
worked to enroll about 2,819 ha (6,965 ac) of the 6,111 ha (15,100 ac) 
allocated under the lesser prairie-chicken CRP SAFE continuous sign-up 
in Beaver, Beckham, Ellis, and Harper Counties.
    The ODWC, in early 2012, entered into a contract with Ecosystem 
Management Research Institute to develop a conservation plan for the 
lesser prairie-chicken in Oklahoma. Public comments on the draft plan 
were solicited through August 30, 2012, and a final plan was completed 
in September of 2012. The primary goal of the Oklahoma Lesser Prairie 
Chicken Conservation Plan was to develop an overall strategy for 
conservation of the lesser prairie-chicken in Oklahoma. The Oklahoma 
Lesser Prairie Chicken Conservation Plan included a synthesis of all 
currently available, pertinent information and input from a variety of 
stakeholders. The Oklahoma Lesser Prairie Chicken Conservation Plan 
also identifies priority conservation areas, population goals, and 
conservation strategies and actions to improve lesser prairie-chicken 
viability through habitat improvements.
    As discussed above, the ODWC applied for an enhancement of survival 
permit pursuant to section 10(a)(1)(A) of the Act that included a draft 
umbrella CCAA between the Service and ODWC for the lesser prairie-
chicken in 14 Oklahoma counties (77 FR 37917, June 25, 2012). The draft 
CCAA and associated draft environmental assessment was made available 
for public review and comment from June 25, 2012 through August 24, 
2012 (77 FR 37917). The CCAA was approved on January 25, 2013, and ODWC 
began enrollment of private lands at that time. Since being approved, 
16 landowners have enrolled 7,115 ha (17,582 ac). Several applications 
are currently being reviewed and processed for enrollment. On December 
20, 2013, we announced availability of a draft amendment to the 
Oklahoma agricultural CCAA (78 FR 77153). This amendment would increase 
acreage eligible for enrollment from 80,937 ha (200,000 ac) to 161,874 
ha (400,000 ac). The comment period on this proposed amendment closed 
January 21, 2014. A permitting decision is anticipated in March 2014.
    The Service's PFW program also has contributed financial and 
technical assistance for restoration and enhancement activities that 
benefit the lesser prairie-chicken in Oklahoma. Important measures 
include control of eastern red cedar and fence marking and removal to 
minimize collision mortality. The Oklahoma PFW program has implemented 
154 private lands agreements on about 38,954 ha (96,258 ac) of private 
lands for the benefit of the lesser prairie-chicken in the State.

[[Page 19997]]

Texas
    The Texas Parks and Wildlife Department (TPWD) hosted a series of 
landowner meetings and listening sessions in 6 (Hemphill, Wheeler, 
Gray, Bailey, Cochran, and Gaines) of the 13 counties confirmed to be 
occupied by the lesser prairie-chicken in Texas. Private landowners and 
the general public were invited to discuss conservation and management, 
receive information, and provide input on programs and incentives that 
are available for managing the lesser prairie-chicken on privately 
owned lands. In response to these meetings, TPWD worked with the 
Service and landowners to finalize the first Statewide umbrella CCAA 
for the lesser prairie-chicken in Texas. The conservation goal of the 
Texas CCAA is to encourage protection and improvement of suitable 
lesser prairie-chicken habitat on non-federal lands by offering private 
landowners incentives to implement voluntary conservation measures 
through available funding mechanisms and by providing technical 
assistance and regulatory assurances concerning land use restrictions 
that might otherwise apply should the lesser prairie-chicken become 
listed under the Act. The conservation measures would generally consist 
of prescribed grazing; prescribed burning; brush management; cropland 
and residue management; range seeding and enrollment in various Farm 
Bill programs such as the CRP, the Grassland Reserve Program, and SAFE 
program; and wildlife habitat treatments through the EQIP. The Texas 
CCAA covers 50 counties, largely encompassing the Texas panhandle 
region, and was finalized on May 14, 2009. This CCAA covers the lands 
currently occupied in Texas, plus those lands that are unoccupied and 
have potential habitat and those lands that could contain potential 
habitat should the lesser prairie-chicken population in Texas increase. 
Total landowner participation, by the close of December 2013, is 68 
properties (totaling approximately 572,999 enrolled ac) in 15 counties 
(Texas Parks and Wildlife Department 2014, entire). Approximately 12 
applications are currently being reviewed and processed for enrollment.
    In May of 2009, the TPWD, along with other partners, held an 
additional five meetings in the Texas panhandle region as part of an 
effort to promote lesser prairie-chicken conservation. These meetings 
were intended to inform landowners about financial incentives and other 
resources available to improve habitat for the lesser prairie-chicken, 
including the SAFE program. The objective of the Texas SAFE program, 
administered by the FSA, is to restore native mixed-grassland habitat 
for the lesser prairie-chicken in Texas. The current allocation is 
49,655 ha (122,700 ac), and 31,245 ha (77,209 ac) have been enrolled 
through 2012. TPWD continues efforts to promote lesser prairie-chicken 
conservation on private lands. In March 2010, TPWD staff conducted a 2-
day upland bird workshop where lesser prairie-chicken research and 
management was discussed.
    Since 2008, the NRCS and TPWD have partnered in the implementation 
of an EQIP focused on lesser prairie-chicken conservation. This program 
provides technical and financial assistance to landowners interested in 
implementing land management practices for the lesser prairie-chicken 
within its historical range. Twenty-two counties were targeted in this 
initial effort, and preliminary analysis indicated that an agricultural 
producer's profitability and equity could be improved by enrolling in 
this program (Jones et al. 2008, p. 3).
    The Service's PFW program and the TPWD have been actively 
collaborating on range management programs designed to provide cost-
sharing for implementation of habitat improvements for lesser prairie-
chickens. The Service provided funding to TPWD to support a Landscape 
Conservation Coordinator position for the Panhandle and Southern High 
Plains region, as well as funding to support LIP projects targeting 
lesser prairie-chicken habitat improvements (brush control and grazing 
management) in this region. More than $200,000 of Service funds were 
committed in 2010, and an additional $100,000 was committed in 2011. 
Since 2008, Texas has addressed lesser prairie-chicken conservation on 
5,693 ha (14,068 ac) under the LIP. Typical conservation measures 
include native plant restoration, control of exotic vegetation, 
prescribed burning, selective brush management, and prescribed grazing. 
Currently, the PFW program has executed 66 private lands agreements on 
about 53,091 ha (131,190 ac) of privately owned lands for the benefit 
of the lesser prairie-chicken in Texas.
    The TPWD continues to establish working relationships with wind 
developers and provides review and comment on proposed developments 
whenever requested. Through this voluntary comment process, TPWD 
provides guidance on how to prevent, minimize, and mitigate impacts 
from wind and transmission development on lesser prairie-chicken 
habitat and populations.
    A Lesser Prairie-Chicken Advisory Committee also has been 
established in Texas and functions to provide input and information to 
the State's Interagency Task Force on Economic Growth and Endangered 
Species. The purpose of the task force is to provide policy and 
technical assistance regarding compliance with endangered species laws 
and regulations to local and regional governmental entities and their 
communities engaged in economic development activities so that 
compliance with endangered species laws and regulations is as effective 
and cost-efficient as possible. According to the Task Force, input 
provided by the Lesser Prairie-Chicken Advisory Committee serves to 
help the Task Force prevent listing and minimize harm to economic 
sectors if listing does occur. The advisory committee also assists in 
outreach and education efforts on potential listing decisions and 
methods to minimize the impact of listing.
    The TPWD has worked in conjunction with several Texas universities 
to fund several lesser prairie-chicken research projects. In one of 
those projects, TPWD evaluated the use of aerial line transects and 
forward-looking infrared technology to survey for lesser prairie-
chickens. Other ongoing research includes evaluation of lesser prairie-
chicken population response to management of shinnery oak and 
evaluation of relationships among the lesser prairie-chicken, avian 
predators, and oil and gas infrastructure.
    In 2009, the U.S. Department of Energy awarded Texas Tech 
University and the TPWD a collaborative grant to conduct aerial surveys 
on approximately 75 percent of the estimated currently occupied range. 
This project aided in the initial development of a standardized 
protocol for conducting aerial surveys for the lesser prairie-chicken 
across the entire range. All five States are currently participating in 
these surveys; and a complete analysis of the results is available 
(MacDonald et al. 2013, entire). A summary of the results has been 
incorporated into this final rule (see ``Rangewide Population 
Estimates'' section, below).
    In 2007, The Nature Conservancy of Texas acquired approximately 
2,428 ha (6,000 ac) of private ranchland in Yoakum and Terry Counties 
for the purpose of protecting and restoring lesser prairie-chicken 
habitat. This acquisition helped secure a geographically important 
lesser prairie-chicken population. Since the original acquisition, 
additional lands have been

[[Page 19998]]

acquired, and the Yoakum Dunes Preserve now encompasses 4,342.7 ha 
(10,731 ac).
    In addition to participation in annual lesser prairie-chicken 
festivals, the TPWD published an article on the lesser prairie-chicken 
and wind development in Texas in their agency magazine in October of 
2009. The TPWD and the Dorothy Marcille Wood Foundation also produced a 
12-page color brochure in 2009 about the lesser prairie-chicken 
entitled ``A Shared Future.''
Conservation Programs Summary
    In summary, a variety of important conservation efforts have been 
undertaken across the range of the lesser prairie-chicken. These 
actions, as outlined above, have, at least in some instances, slowed, 
but not halted, alteration of lesser prairie-chicken habitat. In many 
instances, these efforts have helped reduce the severity of the threats 
to the species, particularly in localized areas. Continued 
implementation of these and similar future actions is crucial to lesser 
prairie-chicken conservation. However, our review of these conservation 
efforts indicates that most of the measures identified are not adequate 
to fully address the known threats, including the primary threat of 
habitat fragmentation, in a manner that effectively reduces or 
eliminates the threats. All of the efforts are limited in size or 
duration, and the measures typically are not implemented at a scale 
that would be necessary to effectively reduce the threats to this 
species across its known range. Often the measures are voluntary, with 
little certainty that the measures, once implemented, will be 
maintained over the long term. In a few instances, mitigation for 
existing development within the range of the lesser prairie-chicken has 
been secured, but the effectiveness of the mitigation is unknown. 
Conservation of this species will require persistent, targeted 
implementation of appropriate actions over the entire range of the 
species to sufficiently reduce or eliminate the primary threats to the 
lesser prairie-chicken.

Background

Species Information

    The lesser prairie-chicken (Tympanuchus pallidicinctus) is a 
species of prairie grouse endemic to the southern high plains of the 
United States, commonly recognized for its feathered tarsi (legs), 
stout build, ground-dwelling habit, and lek mating behavior. The lesser 
prairie-chicken is closely related and generally similar in life 
history strategy, although not identical in every aspect of behavior 
and life history, to other species of North American prairie grouse 
(e.g., greater prairie-chicken (T. cupido pinnatus), Attwater's 
prairie-chicken (T. cupido attwateri), sharp-tailed grouse (T. 
phasianellus), greater sage-grouse (Centrocercus urophasianus), and 
Gunnison's sage-grouse (C. minimus)). Plumage of the lesser prairie-
chicken is characterized by a cryptic pattern of alternating brown and 
buff-colored barring, and is similar in mating behavior and appearance, 
although somewhat lighter in color, to the greater prairie-chicken. 
Males have long tufts of feathers on the sides of the neck, termed 
pinnae, which are erected during courtship displays. Pinnae are smaller 
and less prominent in females. Males also display brilliant yellow 
supraorbital eyecombs and dull reddish esophageal air sacs during 
courtship displays (Copelin 1963, p. 12; Sutton 1977, entire; Johnsgard 
1983, p. 318). A more detailed summary of the appearance of the lesser 
prairie-chicken is provided in Hagen and Giesen (2005, unpaginated).
    Lesser prairie-chickens are dimorphic in size, with the females 
being smaller than the males (See Table 1 in Hagen and Giesen 2005, 
unpaginated). Adult lesser prairie-chicken body length varies from 38 
to 41 centimeters (cm) (15 to 16 inches (in)) (Johnsgard 1973, p. 275; 
Johnsgard 1983, p. 318), and body mass varies from 618 to 897 grams (g) 
(1.4 to 2.0 pounds (lbs)) for males and 517 to 772 g (1.1 to 1.7 lbs) 
for females (Haukos et al. 1989, pp. 271; Giesen 1998, p. 14). Adults 
weigh more than yearling birds.
Taxonomy
    The lesser prairie-chicken is in the Order Galliformes, Family 
Phasianidae, subfamily Tetraoninae, and is generally recognized as a 
species separate from the greater prairie-chicken (Jones 1964, pp. 65-
73; American Ornithologist's Union 1998, p. 122). The lesser prairie-
chicken was first described as a subspecies of the greater prairie-
chicken (Ridgway 1873, p. 199) but was later named a full species in 
1885 (Ridgway 1885, p. 355). As recently as the early 1980s, some 
species experts (Johnsgard 1983, p. 316) still regarded the extinct 
heath hen, the greater prairie-chicken, the lesser prairie-chicken, and 
the Attwater's prairie-chicken to be four separate subspecies within 
Tympanuchus cupido. Others, as outlined in Hagen and Giesen (2005, 
unpaginated), considered the lesser prairie-chicken to be a distinct 
species.
    Recent molecular analyses have suggested that phylogenetic 
relationships in the genus Tympanuchus remain unresolved. Ellsworth et 
al. (1994, p. 664; 1995, p. 497) confirmed that the genus Tympanuchus 
is distinct, but their analysis did not show strong differentiation 
between the taxa within that genus. Ellsworth et al. (1994 pp. 666, 
668) believed that subdivision between the prairie grouse occurred 
during the recent Wisconsin glacial period and that adequate time had 
not elapsed to allow sufficient genetic differentiation between the 
taxa. Subsequently, Ellsworth et al. (1996, entire) expanded their 
study in an attempt to resolve the evolutionary relationships among the 
grouse. Yet, they were unable to partition members of the genus 
Tympanuchus along typical taxonomic boundaries, likely due to 
insufficient time for genetic change to accumulate (Ellsworth et al. 
1996, p. 814). Similarly, Lucchini et al. (2001 p. 159) and Drovetski 
(2002, p. 941) also confirmed that speciation in Tympanuchus has been 
recent and may be incomplete.
    While advances in molecular genetics, in many instances, have 
helped clarify taxonomic relationships, some disagreement between 
molecular and traditional phylogenetic approaches is not entirely 
unexpected (Lucchini et al. 2001, p. 150). Several scientists have 
argued that strong sexual selection characteristics of grouse that 
exhibit lek mating behavior resolves the apparent lack of agreement 
between the molecular data and the observed phenotypical and behavioral 
differences (Ellsworth 1994, p. 669; Spaulding 2007, pp. 1083-1084; 
Oyler-McCance et al. 2010, p. 121). As explained by Oyler-McCance et 
al. (2010, p. 121) strong sexual selection often occurs in lekking 
grouse that have highly skewed mating systems in which relatively few 
males are responsible for most of the mating. In such cases, sexual 
selection may drive changes in morphological and behavioral traits much 
more rapidly than occurs in some genetic markers. The readily observed 
differences in appearance, morphology, behavior, social interaction, 
and ecological affinities facilitate reproductive isolation and 
speciation within the prairie grouse. Although prairie grouse do not 
yet exhibit complete reproductive isolation, as evidenced by the 
presence of hybrid individuals in areas where their ranges overlap, the 
incidence of hybridization appears to be low and is not significantly 
impacting their gene pools (Johnsgard 2002, p. 32) (see Hybridization 
section, below.
    For purposes of this rule, we will follow the American 
Ornithologist's

[[Page 19999]]

Union taxonomic classification, which is based on observed differences 
in appearance, morphology, behavior, social interaction, and habitat 
affinities. While this more traditional taxonomic approach may not 
always agree with recent molecular analyses, it is widely accepted by 
taxonomists, and most taxonomists agree that the lesser prairie-chicken 
is distinct from other prairie grouse (Johnsgard 2002, p. 32; Johnson 
2008, p. 168). Speciation is a continuous process and in lekking 
grouse, where strong sexual selection is operating, males may undergo 
rapid changes in morphology and behavior that can be the driving force 
in speciation. Additionally, much of the observed genetic diversity in 
prairie grouse is residual from when the species group originally 
diverged and likely accounts for the lack of resolution reported in 
previous taxonomic studies (Johnson 2008, p. 168).
Life-History Characteristics
    Lesser prairie-chickens are polygynous (a mating pattern in which a 
male mates with more than one female in a single breeding season) and 
exhibit a lek mating system. The lek is a place where males 
traditionally gather to conduct a communal, competitive courtship 
display. The males use their specialized plumage and vocalizations to 
attract females for mating. The sequence of vocalizations and posturing 
of males, often described as ``booming, gobbling, yodeling, bubbling, 
or duetting,'' has been described by Johnsgard (1983, p. 336) and 
Haukos (1988, pp. 44-45) and is well summarized by Hagen and Giesen 
(2005, unpaginated). Male lesser prairie-chickens gather to display on 
leks at dawn and dusk beginning as early as late January and continuing 
through mid-May (Copelin 1963, p. 26; Hoffman 1963, p. 730; Crawford 
and Bolen 1976a, p. 97; Sell 1979, p. 10; Merchant 1982, p. 40), 
although fewer numbers of birds generally attend leks during the 
evening (Taylor and Guthery 1980a, p. 8). Male birds may remain on the 
lek for up to 4 hours (Copelin 1963, pp. 27-28; Sharpe 1968, p. 76; 
Crawford and Bolen 1975, pp. 808-810; Giesen 1998, p. 7), with females 
typically departing the lek following successful copulation (Sharpe 
1968, pp. 154, 156). Dominant, usually older, males occupy and defend 
territories near the center of the lek where most of the copulations 
occur, while younger males occupy the periphery and compete for central 
access (Sharpe 1968, pp. 73-89; Wiley 1974, p. 203; Ehrlich et al. 
1988, p. 259). A relatively small number of dominant males account for 
the majority of copulations at each lek (Sharpe 1968, p. 87; Wiley 
1974, p. 203; Locke 1992, p. 1). Young males are rarely successful in 
breeding due to the dominance by older males. The spring display period 
may extend into June (Hoffman 1963, p. 730; Jones 1964, p. 66); 
however, Jones (1964, p. 66) observed some courtship activity as late 
as July in Oklahoma.
    Leks are normally located on the tops of wind-swept ridges, exposed 
knolls, sparsely vegetated dunes, and similar features in areas having 
low vegetation height (10 cm (4 in) or less) or bare soil and enhanced 
visibility of the surrounding area (Copelin 1963, p. 26; Jones 1963a, 
p. 771; Taylor and Guthery 1980a, p. 8). The features associated with 
lek sites also may contribute to the transmission of sounds produced 
during lekking (Sparling 1983, pp. 40-41; Butler et al. 2010, entire) 
and these sounds may aid females in locating lek sites (Hagen and 
Giesen 2005, unpaginated). Background noises are known to increase in 
landscapes altered by human development and may interfere with normal 
behavioral activities (Francis et al. 2009, p. 1415). Birds may be 
particularly vulnerable to elevated levels of background noise, due to 
their reliance on acoustic communication, and elevated noise levels may 
negatively impact breeding in some birds particularly where acoustic 
cues are used during the reproductive process (Francis et al. 2009, pp. 
1415, 1418). In sage grouse, sound levels exceeding 40 decibels (dB) 
were found to reduce breeding activity and increase stress, as 
determined by hormone levels (Blickley et al. 2012b, p. 4-5) (See 
section on Influence of Noise below).
    Areas that have been previously disturbed by humans, such as 
infrequently used roads, abandoned drilling pads, abandoned farmland, 
recently cultivated fields, and livestock watering sites also can be 
used as lek sites (Crawford and Bolen 1976b, pp. 238-239; Davis et al. 
1979, pp. 81, 83; Sell 1979, p. 14; Taylor 1979, p. 707). However, 
ongoing human activity, such as presence of humans or noise, may 
discourage lekking by causing birds to flush, and, in some instances, 
may cause lek sites to be abandoned (Hunt and Best 2004, pp. 2, 124). 
Leks often are surrounded by taller, denser cover that may be used for 
nesting, escape, thermal cover, and feeding cover. New leks can be 
formed opportunistically at any appropriate site within or adjacent to 
nesting habitat. Evidence of expanding lesser prairie-chicken 
populations tends to be demonstrated by increases in the number of 
active leks rather than by increases in the number of males displaying 
per lek (Hoffman 1963, p. 731; Snyder 1967, p. 124; Cannon and Knopf 
1981, p. 777; Merchant 1982, p. 54; Locke 1992, p. 43). Temporary or 
satellite leks occasionally may be established during the breeding 
season and appear indicative of population fluctuations (e.g., an 
expanding population has more satellite leks than a declining 
population) (Hamerstrom and Hamerstrom 1973, pp. 7, 13; Schroeder and 
Braun 1992, p. 280; Haukos and Smith 1999, pp. 415, 417) or habitat 
quality (Cannon and Knopf 1979, p. 44; Merrill et al. 1999, pp. 193-
194). Lesser prairie-chicken satellite leks have been observed to form 
later in the breeding season and coincide with decreased attendance at 
the permanent leks (Haukos and Smith 1999, p. 418). These satellite 
leks consisted primarily of birds that were unable to establish 
territories on the permanent leks (Haukos and Smith 1999, p. 418). 
Locations of traditional, permanent lek sites also may change in 
response to disturbances (Crawford and Bolen 1976b, pp. 238-240; Cannon 
and Knopf 1979, p. 44).
    Females arrive at the lek in early spring after the males begin 
displaying, with peak hen attendance at leks typically occurring in 
early to mid-April (Copelin 1963, p. 26; Hoffman 1963, p. 730; Crawford 
and Bolen 1975, p. 810; Davis et al. 1979, p. 84; Merchant 1982, p. 41; 
Haukos 1988, p. 49). Sounds produced by courting males serve to 
advertise the presence of the lek to females in proximity to the 
display ground (Robb and Schroeder 2005, p. 29). Within 1 to 2 weeks of 
successful mating, the hen will select a nest site, normally within 1 
to 4 km (0.6 to 2.4 mi) of an active lek (Copelin 1963, p. 44; Giesen 
1994a, p. 97; Kukal 2010, pp. 19-20), construct a nest, and lay a 
clutch of 8 to 14 eggs (Bent 1932, p. 282; Copelin 1963, p. 34; 
Merchant 1982, p. 44; Fields 2004, pp. 88, 115-116; Hagen and Giesen 
2005, unpaginated; Pitman et al. 2006a, p. 26). Nesting is generally 
initiated in mid-April and concludes in late May (Copelin 1963, p. 35; 
Snyder 1967, p. 124; Merchant 1982, p. 42; Haukos 1988, pp. 7-8). Hens 
most commonly lay one egg per day and initiate incubation once the 
clutch is complete (Hagen and Giesen 2005, unpaginated). Incubation 
lasts 24 to 27 days (Coats 1955, p. 18; Sutton 1968, p. 679; Pitman et 
al. 2006a, p. 26) with hatching generally peaking in late May through 
mid-June (Copelin 1963, p. 34; Merchant 1982, p. 42; Pitman et al. 
2006a, p. 26). Hens typically leave the nest within 24 hours after the 
first egg hatches (Hagen and Giesen 2005,

[[Page 20000]]

unpaginated). Renesting may occur when the first attempt is 
unsuccessful (a successful nest is one in which at least one egg 
hatches) (Johnsgard 1973, pp. 63-64; Merchant 1982, p. 43; Pitman et 
al. 2006a, p. 25). Renesting is more likely when nest failure occurs 
early in the nesting season and becomes less common as the nesting 
season progresses (Pitman et al. 2006a, p. 27). Clutches associated 
with renesting attempts tend to be smaller than clutches at first 
nesting (Fields 2004, p. 88; Pitman et al. 2006a, p. 27).
    Nests generally consist of bowl-shaped depressions in the soil 
(Giesen 1998, p. 9). Nests are lined with dried grasses, leaves, and 
feathers, and there is no evidence that nests are reused in subsequent 
years (Giesen 1998, p. 9). Adequate herbaceous cover, including 
residual cover from the previous growing season, is an important factor 
influencing nest success, primarily by providing concealment of the 
nest (Suminski 1977, p. 32; Riley 1978, p. 36; Riley et al. 1992, p. 
386; Giesen 1998, p. 9). Young are precocial (mobile upon hatching) and 
nidifugous (typically leaving the nest within hours of hatching) (Coats 
1955, p. 5). Chicks are usually capable of short flights by 14 days of 
age (Hagen and Giesen 2005, unpaginated). Broods may remain with 
females for up to 18 weeks (Giesen 1998, p. 9; Pitman et al. 2006c, p. 
93), but brood breakup generally occurs by September when the chicks 
are approximately 70 days of age (Taylor and Guthery 1980a, p. 10). 
Males do not incubate the eggs, assist in chick rearing, or provide 
other forms of parental care (Wiley 1974, p. 203). Nest success 
(proportion of nests that hatch at least one egg) varies, but averages 
about 30 percent (range 0-67 percent) (Hagen and Giesen 2005, 
unpaginated).
    Male lesser prairie-chickens exhibit strong site fidelity (loyalty 
to a particular area; philopatry) to their display grounds (Copelin 
1963, pp. 29-30; Hoffman 1963, p. 731; Campbell 1972, pp. 698-699). 
Such behavior is typical for most species of prairie grouse (e.g., 
greater prairie-chicken, lesser prairie-chicken, sharp-tailed grouse, 
greater sage-grouse, and Gunnison's sage-grouse) in North America 
(Schroeder and Robb 2003, pp. 231-232). Once a lek site is selected, 
males persistently return to that lek year after year (Wiley 1974, pp. 
203-204) and may remain faithful to that site for life. They often will 
continue to use these traditional areas even when the surrounding 
habitat has declined in value (for example, concerning greater sage-
grouse; see Harju et al. 2010, entire). Female lesser prairie-chickens, 
due to their tendency to frequently nest within 2.5 km (1.5 mi) of a 
lek (Giesen 1994a, p. 97), also may display fidelity to nesting areas 
but the degree of fidelity is not clearly established (Schroeder and 
Robb 2003, p. 292). However, Haukos and Smith (1999, p. 418) observed 
that female lesser prairie-chickens are more likely to visit older, 
traditionally used lek sites than temporary, nontraditional lek sites 
(those used for no more than 2 years).
    Because of this fidelity to breeding areas, prairie grouse may not 
immediately demonstrate a population response when faced with 
environmental change. Considering that landscapes and habitat 
suitability can change rapidly, strong site fidelity in prairie grouse 
can result in a lag period between when a particular landscape 
degradation occurs and when an associated population response is 
observed (Gregory et al. 2011, pp. 29-30). In some birds exhibiting 
strong philopatry, Wiens et al. (1986, p. 374) thought that the overall 
response to a particular habitat alteration might not become evident 
until after the most site-tenacious individuals had died. Delayed 
population responses have been observed in birds impacted by wind 
energy development (Stewart et al. 2007, pp. 5-6) and in greater sage-
grouse impacted by oil and gas development (Doherty et al. 2010, p. 5). 
Consequently, routine lek count surveys typically used to monitor 
prairie grouse may be slow in revealing impacts of environmental change 
(Gregory et al. 2011, pp. 29-30).
    Typically, lesser prairie-chicken home ranges (geographic area to 
which an organism typically confines its activity) vary both by sex and 
by season and may be influenced by a variety of factors. However, Toole 
(2005, pp. 12-18) observed that home range sizes did not differ by 
season, sex or age. A general lack of suitable habitats outside of 
Toole's study areas may have contributed to similarity in home range 
size and movements of birds within his study sites (Toole 2005, pp. 24-
28). Lesser prairie-chickens are not territorial, except for the small 
area defended by males on the lek, so home ranges of individual birds 
likely overlap to some extent. Habitat quality presumably influences 
the extent to which individual home ranges overlap.
    Males tend to have smaller home ranges than do females, with the 
males generally remaining closer to the leks than do the females 
(Giesen 1998, p. 11). In Colorado, Giesen (1998, p. 11) observed that 
spring and summer home ranges for males were 211 ha (512 ac) and for 
females were 596 ha (1,473 ac). In the spring, home ranges are fairly 
small when daily activity focuses on lekking and mating. Home ranges of 
nesting females in New Mexico varied, on average, from 8.5 to 92 ha (21 
to 227 ac) (Merchant 1982, p. 37; Riley et al. 1994, p. 185). Jamison 
(2000, p. 109) observed that range size peaked in October as birds 
began feeding in recently harvested grain fields. Median range size in 
October was 229 to 409 ha (566 to 1,400 ac). In Texas, Taylor and 
Guthery (1980b, p. 522) found that winter monthly home ranges for males 
could be as large as 1,945 ha (4,806 ac) and that subadults tended to 
have larger home ranges than did adults. More typically, winter ranges 
are more than 300 ha (740 ac) in size, and the size declines 
considerably by spring. Based on observations from New Mexico and 
Oklahoma, lesser prairie-chicken home ranges increase during periods of 
drought (Giesen 1998, p. 11; Merchant 1982, p. 55), possibly because of 
reduced food availability and cover. Davis (2005, p. 3) states that the 
combined home range of all lesser prairie-chickens at a single lek is 
about 49 square kilometers (sq km) (19 square miles (sq mi) or 12,100 
ac).
    Dispersal plays an important role in maintaining healthy, robust 
populations by contributing to population expansion, recolonization, 
and gene flow (Sutherland et al. 2000, unpaginated). Many grouse 
species are known to exhibit relatively limited dispersal tendencies 
and juvenile dispersal is normally less than 40 km (25 mi) (Braun et 
al. 1994, pp. 432-433; Ellsworth et al. 1994, p. 666). Adults tend to 
spend much of their daily and seasonal activity within 4.8 km (3.0 mi) 
of a lek (Giesen 1994, p. 97; Riley et al. 1994, p. 185; Woodward et 
al. 2001, p. 263). Greater sage-grouse populations, for example, were 
shown to follow an isolation-by-distance model of localized gene flow 
that results primarily from a tendency for individuals to move between 
neighboring populations rather than through longer distance dispersal 
across the range (Oyler-McCance et al. 2005, p. 1306). Similarly a 
genetic analysis of greater prairie-chickens by Johnson et al. (2003, 
pp. 3341-3342) revealed that greater prairie-chickens also generally 
displayed isolation by distance. More recent work in Kansas concluded 
that isolation by distance did not explain the distribution of genetic 
diversity in greater prairie-chickens (Gregory 2011, p. 64). Instead 
isolation by resistance, where landscape characteristics, primarily 
habitat composition and configuration, influence the permeability of 
the

[[Page 20001]]

landscape to dispersal, best described gene flow (dispersal) in greater 
prairie-chickens (Gregory 2011, p. 66). Thus landscape structure and 
arrangement, with its corresponding resistance to dispersal, exerts a 
strong influence on dispersal and the resulting connectivity between, 
and distribution of, genetic structure in greater prairie-chicken 
populations (Gregory 2011, p. 68). Environmental factors also may 
influence dispersal patterns in lesser prairie-chickens, particularly 
in fragmented landscapes where predation rates may be higher and 
habitat suitability may be reduced in smaller sized parcels. Lesser 
prairie-chickens appear to be sensitive to the size of habitat 
fragments and may avoid using parcels below a preferred size regardless 
of habitat type or quality (see separate discussion under ``Effects of 
Habitat Fragmentation'' below). As the landscape becomes more 
fragmented, longer dispersal distances over areas of unsuitable 
habitats may be required. However, should distances between suitable 
habitat patches in fragmented landscapes exceed 50 km (31 mi), the 
maximum dispersal distance observed by Hagen et al. (2004, p. 71), 
dispersal may be significantly reduced. Under such conditions, 
populations will become more isolated.
    In lesser prairie-chickens, most seasonal movements are less than 
10 km (6.2 mi), but Jamison (2000, p. 107) thought that movements as 
large as 44 km (27.3 mi) might occur in fragmented landscapes. Recent 
studies of lesser prairie-chicken in Kansas demonstrated some birds may 
move as much as 50 km (31 mi) from their point of capture (Hagen et al. 
2004, p. 71). Although recorded dispersal movements indicate that 
lesser prairie-chickens are obviously physically capable of longer 
distance dispersal movements, these longer movements appear to be 
infrequent. Jamison (2000, p. 107) recorded only 2 of 76 tagged male 
lesser prairie-chickens left the 5,760 ha (14,233 ac) primary study 
area over a 3-year period. He thought site fidelity rather than habitat 
was more important in influencing movements of male lesser prairie-
chickens (Jamison 2000, p. 111). A tendency to move among neighboring 
populations rather than long distance dispersal over the range, as 
demonstrated by greater sage-grouse (Oyler-McCance et al. 2005, p. 
1306), may partially explain why lesser prairie-chickens in Kansas 
recolonized areas of native grassland in CRP but past efforts to 
translocate individuals over long distances have largely been 
unsuccessful.
    Physiology influences dispersal capabilities and also plays a role 
in dispersal and movement patterns exhibited by lesser prairie-
chickens. Lesser prairie-chickens and other species of grouse are 
generally considered poor fliers due to their high (heavy) wing loading 
and low wing aspect (Drovetski 1996, pp. 805-806; Bevanger 1998, p. 
69). Birds with high wing loading have relatively small wings compared 
to their body mass. Birds with low wing aspect are those birds having 
relatively short, broad wings. Fast flight and a large turning radius 
are characteristic of birds with heavy wing loading (Drovetski 1996, p. 
806). The combination of high wing loading and low wing aspect impacts 
aerodynamic performance and limits flight maneuverability. These birds 
typically are adapted to make relatively long, fast, straight and 
efficient flights, spending less time in the air than is typical for 
other species of birds (Drovetski, 1996, pp. 809-810). Consequently, 
the combination of a heavy body with smaller wings, coupled with their 
rapid flight, restricts the ability of most prairie grouse to react 
swiftly to unexpected obstacles. Such birds, like the lesser prairie-
chicken, have a high risk of colliding with objects, such as powerlines 
or fences, within their flight path (Bevanger 1998, p. 67).
    Daily movements of males tend to increase in fall and winter and 
decrease with onset of spring, with median daily movements typically 
being less than 786 meters (2,578 ft) per day (Jamison 2000, pp. 106, 
112). In Texas, Haukos (1988, p. 46) recorded daily movements of 0.1 km 
(0.06 mi) to greater than 6 km (3.7 mi) by female lesser prairie-
chickens prior to onset of incubation. Taylor and Guthery (1980b, p. 
522) documented a single male moving 12.8 km (8 mi) in 4 days, which 
they considered to be a dispersal movement. Because lesser prairie-
chickens exhibit limited dispersal tendencies and do not typically 
disperse over long distances, they may not readily recolonize areas 
following localized extinctions, particularly where the distance 
between habitat patches exceeds their typical dispersal capabilities.
    In general, there is little documentation of historical dispersal 
patterns, and the existence of large-scale migration movements is not 
known. However, both Bent (1932, pp. 284-285) and Sharpe (1968, pp. 41-
42) thought that the species, at least historically, might have been 
migratory with separate breeding and wintering ranges. Taylor and 
Guthery (1980a, p. 10) also thought the species was migratory prior to 
widespread settlement of the High Plains, but migratory movements have 
not recently been documented. The lesser prairie-chicken is now thought 
to be nonmigratory.
    Lesser prairie-chickens forage during the day, usually during the 
early morning and late afternoon, and roost at night (Jones 1964, p. 
69). Diet of the lesser prairie-chicken is very diverse, primarily 
consisting of insects, seeds, leaves, and buds and varies by age, 
location, and season (Giesen 1998, p. 4). They forage on the ground and 
within the vegetation layer (Jones 1963b, p. 22) and are known to 
consume a variety of invertebrate and plant materials. For example, in 
New Mexico, Smith (1979, p. 26) documented 30 different kinds of food 
items consumed by lesser prairie-chickens. In Texas, Crawford and Bolen 
(1976c, p. 143) identified 23 different plants in the lesser prairie-
chicken diet. Jones (1963a, pp. 765-766), in the Artemesia filifolia 
(sand sagebrush) dominated grasslands of Oklahoma, recorded 16 
different plant species eaten by lesser prairie-chickens.
    Lesser prairie-chicken energy demands are almost entirely derived 
from daily foraging activities rather than stored fat reserves (Giesen 
1998, p. 4). Olawsky (1987, p. 59) found that, on average, lesser 
prairie-chicken body fat reserves were less than 4.5 percent of body 
weight. Consequently, quality and quantity of food consumed can have a 
profound effect on the condition of individual birds. Inadequate food 
supplies and reduced nutritional condition can affect survival, 
particularly during harsh winters, and reproductive potential. Poor 
condition can lead to poor performance on display grounds, impact 
nesting success, and reduce overwinter survival. Sufficient nutrients 
and energy levels are important for reproduction and overwintering. 
Males expend energy defending territories and mating while females have 
demands of nesting, incubation, and any renesting. Reduced condition 
can lead to smaller clutch sizes. Because lesser prairie-chicken diets 
vary considerably by age, season, and habitat type and quality, habitat 
alteration can influence availability of certain foods. While not as 
critical for adults, presence of forbs and associated insect 
populations can be very important for proper growth and development of 
chicks and poults (juvenile birds).
    Generally, chicks and young juveniles tend to forage almost 
exclusively on insects, such as grasshoppers and beetles, and other 
animal matter while adults tend to consume a higher percentage of 
vegetative material

[[Page 20002]]

(Giesen 1998, p. 4). The majority of the published diet studies have 
been conducted in the southwestern portions of the historical range 
where the Quercus havardii (shinnery oak) dominated grasslands are 
prevalent. Throughout their range, when available, lesser prairie-
chickens will use cultivated grains, such as Sorghum vulgare (grain 
sorghum) and Zea mays (corn), during the fall and winter months (Snyder 
1967, p. 123; Campbell 1972, p. 698; Crawford and Bolen 1976c, pp. 143-
144; Ahlborn 1980, p. 53; Salter et al. 2005, pp. 4-6). However, lesser 
prairie-chickens tend to predominantly rely on cultivated grains when 
production of natural foods, such as acorns and grass and forb seeds 
are deficient, particularly during drought and severe winters (Copelin 
1963, p. 47; Ahlborn 1980, p. 57). Cultivated grains may be temporarily 
important during prolonged periods of adverse winter weather but are 
not necessary for survival during most years and in most regions. Use 
of cultivated grain fields is dependent upon the availability of waste 
grains on the soil surface during the fall and winter period. More 
efficient harvesting methods in use today likely reduce the 
availability of waste grain.
    Food availability for young is most critical during the first 20 
days (3 weeks) post-hatching when rapid growth is occurring (Dobson et 
al. 1988, p. 59). Food shortages during critical periods will 
negatively impact development and survival. Diet of lesser prairie-
chicken chicks less than 5 weeks of age is entirely composed of insects 
and similar animal matter. Specifically, diet of chicks in New Mexico 
that were less than 2 weeks of age was 80 percent treehoppers 
(Mebracidae) (Davis et al. 1979, p. 71; Davis et al. 1980 p. 78). 
Overall, chicks less than 5 weeks of age consumed predominantly (87.7 
percent) short-horned grasshoppers (Acrididae), treehoppers, and long-
horned grasshoppers (Tettigonidae) (Davis et al. 1980, p. 78). Ants 
(Formicidae), mantids (Mantidae), snout beetles (Curculionidae), 
darkling beetles (Tenebrionidae), robber flies (Asilidae), and 
cockroaches (Blattidea) collectively provided the remaining 12.3 
percent of the chicks' diet (Davis et al. 1980, p. 78). Similarly 
Suminski (1977, pp. 59-60) examined diet of chicks 2 to 4 weeks of age 
in New Mexico and found that diet was entirely composed of insects. 
Treehoppers, short-horned grasshoppers, and ants were the most 
significant (95 percent) items consumed, by volume. Insects and similar 
animal matter are a particularly prevalent component in the diet of 
young prairie-chickens (Drake 1994, pp. 31, 34, 36). Insects are high 
in protein (Riley et al. 1998, p. 42), and a high-protein diet was 
essential in pheasants for normal growth and feather development 
(Woodward et al. 1977. p. 1500). Insects and other arthropods also have 
been shown to be extremely important in the diet of young sage grouse 
and Attwater's prairie-chicken (Service 2010, pp. 30-31).
    Older chicks between 5 and 10 weeks of age ate almost entirely 
short-horned grasshoppers (80.4 percent) (Davis et al. 1980, p. 78). 
They also began to consume plant material during this period. Shinnery 
oak acorns, seeds of Lithospermum incisum (narrowleaf stoneseed), and 
foliage and flowers of Commelina erecta (erect dayflower) comprised 
less than 1 percent of the diet (Davis et al. 1980, p. 78). 
Correspondingly, Suminski (1977, pp. 59, 61) observed that chicks 
between 6 and 10 weeks of age had begun to consume very small 
quantities (1.3 percent by volume) of plant material. The remainder of 
the diet was still almost entirely composed of insects. By far the most 
prevalent insect was short-horned grasshoppers (Acrididae), accounting 
for 73.9 percent of the diet (Davis et al. 1980, p. 78). As the birds 
grew, the sizes of insects eaten increased. Analysis of food habits of 
juvenile birds from 20 weeks of age and older, based on samples 
collected between August and December, revealed that 82.6 percent of 
diet was plant material by volume and 17.4 percent was invertebrates 
(Suminski 1977, p. 62). Shinnery oak acorns contributed 67 percent of 
the overall diet, by volume. Key insects included crickets (Gryllidae), 
short-horned grasshoppers, mantids, and butterfly (Lepidoptera) larvae.
    Plant materials are a principal component of the diet for adult 
lesser prairie-chickens; however, the composition of the diet tends to 
vary by season and habitat type. The majority of the diet studies 
examined foods contained in the crop (an expanded, muscular pouch 
within the digestive tract of most birds that aids in breakdown and 
digestion of foods) and were conducted in habitats supporting shinnery 
oak. However, Jones (1963b, p. 20) reported on lesser prairie-chicken 
diets from sand sagebrush habitats.
    In the spring (March, April, and May), lesser prairie-chickens fed 
heavily on green vegetation (60 to 79 percent) and mast and seeds (15 
to 28 percent) (Davis et al. (1980, p. 76; Suminski 1977, p. 57). 
Insects comprised less than 13 percent of the diet primarily due to 
their relative scarcity in the spring months. Treehoppers and beetles 
were the most common types of insects found in the spring diet. The 
proportion of vegetative material provided by shinnery oak leaves, 
catkins, and acorns was high. Similarly, Doerr (1980, p. 8) also 
examined the spring diet of lesser prairie-chickens. However, he 
compared diets between areas treated with the herbicide tebuthiuron and 
untreated areas, and it is unclear whether the birds he examined came 
from treated or untreated areas. Birds collected from treated areas 
likely would have limited access to shinnery oak, possibly altering the 
observed occurrence of shinnery oak in the diet. He reported that 
animal matter was the dominant component of the spring diet and largely 
consisted of short-horned grasshoppers and darkling beetles (Doerr 
1980, pp. 30-31). Ants, ground beetles (Carabidae), and stinkbugs 
(Pentatomidae) were slightly less prevalent in the diet. Shinnery oak 
acorns and plant seeds were the least common component, by volume, in 
the diet in the Doerr (1980) studies.
    In the summer, insects become a more common component of the adult 
diet. In New Mexico, insects comprised over half (55.3 percent) of the 
overall summer (June, July, and August) diet with almost half (49 
percent) of the insects being short- and long-horned grasshoppers and 
treehoppers (Davis et al. 1980, p. 77). Plant material consumed was 
almost equally divided between foliage (leaves and flowers; 23.3 
percent) and mast and seeds (21.4 percent). Shinnery oak parts 
comprised 22.5 percent of the overall diet. Olawsky (1987, pp. 24, 30) 
also examined lesser prairie-chicken diets during the summer season 
(May, June, and July); however, he also compared diets between areas 
treated with tebuthiuron and untreated pastures in Texas and New 
Mexico. While the diets in treated and untreated areas were different, 
the diet from the untreated area should be representative of a typical 
summer diet. Total plant matter from birds collected from the untreated 
areas comprised 68 to 81 percent, by volume (Olawsky 1987, pp. 30-32). 
Foliage comprised 21 to 25 percent, and seeds and mast, 36 to 60 
percent, of the diet from birds collected in the untreated area. 
Shinnery oak acorns were the primary form of seeds and mast consumed. 
Animal matter comprised 19 to 32 percent of the overall diet, and 
almost all of the animal matter consisted of treehoppers and short-
horned grasshoppers (Olawsky 1987, pp. 30-32).
    Several studies have reported on the fall and winter diets of 
lesser prairie-chickens. Davis et al. (1979, pp. 70-80), Smith (1979, 
pp. 24-32), and Riley et al.

[[Page 20003]]

(1993, pp. 186-189) all reported on lesser prairie-chicken food habits 
from southeastern New Mexico (Chaves County), where the birds had no 
access to grain fields (Smith 1979, p. 31). They generally found that 
fall (October to early December) and winter (January and February) 
diets generally consist of a mixture of seeds, vegetative material, and 
insects.
    The fall diet differed between years primarily due to reduced 
availability of shinnery oak acorns (Smith 1979, p. 25). Reduced 
precipitation in the fall of 1976 was thought to have influenced acorn 
production in 1977 (Riley et al. 1993, pp. 188). When acorns were 
available, shinnery oak acorns comprised almost 62 percent, by volume, 
of the diet but less than 17 percent during a year when the acorn crop 
failed (Smith 1979, p. 26). On average, total mast and seeds consumed 
was 43 percent, vegetative material was 39 percent, and animal matter 
was 18 percent by volume of the fall diet (Davis et al. 1979, p. 76). 
Over 81 percent of the animal matter consumed was short-horned 
grasshoppers (Davis et al. 1979, p. 76).
    Crawford (1974, pp. 19-20, 35-36) and Crawford and Bolen (1976c, 
pp. 142-144) reported on the fall (mid-October) diet of lesser prairie-
chickens in west Texas over a 3-year period. Twenty-three species of 
plants were identified from the crops over the course of the study. 
Plant matter accounted for 90 percent of the food present by weight and 
81 percent by volume. Grain sorghum also was prevalent, comprising 63 
percent by weight and 43 percent by volume of total diet. Alhborn 
(1980, pp. 53-58) also documented use of grain sorghum during the fall 
and winter in eastern New Mexico. The remainder of the diet (10 percent 
by weight and 19 percent by volume) was animal matter (insects only). 
Over 62 percent, by volume, of the animal matter was composed of short-
horned grasshoppers. Other insects that were important in the diet 
included darkling beetles, walking sticks (Phasmidae), and wingless 
long-horned grasshoppers (Gryllacrididae). During the fall and winter 
in eastern New Mexico, Alhborn (1980, pp. 53-58) reported that 
vegetative material from shinnery oak constituted 21 percent of the 
total diet.
    Similarly, Doerr (1980, p. 32) reported on the lesser prairie-
chickens from west Texas in the fall (October). The diet largely 
comprised animal matter (86 percent by volume) with short-horned 
grasshoppers contributing 81 percent by volume of the total diet. 
Stinkbugs also were prevalent in the diet. Foliage was the least 
important component, consisting of only 2.5 percent by volume. Seeds 
and acorns comprised 11 percent of the diet and consisted entirely of 
shinnery oak acorns and seeds of Linum rigidum (stiffstem flax).
    Shinnery oak acorns (69 percent) and annual buckwheat (14 percent) 
were the primary components of the winter (January and February) diet 
of lesser prairie-chickens in southeastern New Mexico (Riley et al. 
1993, p. 188). Heavy selection for acorns in winter was attributed to 
need for a high energy source to help sustain body temperature in cold 
weather (Smith 1979, p. 28). Vegetative matter was about 26 percent of 
overall diet, by volume, with 5 percent of the diet consisting of 
animal matter, almost entirely comprising ground beetles (Carabidae) 
(Davis et al. 1979, p. 78).
    In contrast to the above studies, Jones (1963b, p. 20) and Doerr 
(1980, p. 8) examined food items present in the droppings rather than 
from the crops. Although this approach is valid, differential digestion 
of the food items likely overemphasizes the importance of indigestible 
items and underrepresents occurrence of foods that are highly 
digestible (Jones 1963b, p. 21; Doerr 1980, pp. 27, 33). Jones' study 
site was located in the sand sagebrush dominated grasslands in the more 
northern portion of the historical range where shinnery oak was 
unavailable. However, Doerr's study site was located in the shinnery 
oak dominated grasslands of the southwest Texas panhandle.
    In the winter (December through February), where Rhus trilobata 
(skunkbush sumac) was present, Jones (1963b, pp. 30, 34) found lesser 
prairie-chickens primarily used sumac buds and foliage of sumac, sand 
sagebrush, and Gutierrezia sarothrae (broom snakeweed), particularly 
when snow was on the ground. Small annual plants present in the diet 
were Vulpia (Festuca) octoflora (sixweeks fescue), annual buckwheat, 
and Evax prolifera (big-headed evax; bigheaded pygmycudweed) (Jones 
1963b, p. 30). Grain sorghum wasn't used to any appreciable extent, 
particularly when skunkbush sumac was present, but was eaten when 
available. Relatively few insects were available during the winter 
period. However, beetles were consumed throughout the winter season and 
grasshoppers were important in December. Doerr (1980, p. 28) found 
grasshoppers, crickets, ants, and wasps were the most commonly observed 
insects in the winter diet. Foliage from sand sagebrush and Cryptantha 
cinerea (James' cryptantha) was prevalent, but shinnery oak acorns were 
by far the most significant plant component detected in the winter 
diet.
    In the spring (March through May), lesser prairie-chickens used 
seeds and foliage of early spring annuals such as Viola bicolor (johnny 
jumpup) and Silene antirrhina (sleepy catchfly) (Jones 1963b, p. 49). 
Skunkbush sumac continued to be an important component of the diet. 
Insect use increased as the spring season progressed. Doerr (1980, p. 
29) also observed that grasshoppers and crickets were prevalent in the 
spring diet. However, foliage and acorns of shinnery oak were more 
abundant in the diet than any other food item.
    In the summer (June through August), lesser prairie-chickens 
continued to use sumac and other plant material, but insects dominated 
the diet (Jones 1963b. pp. 64-65). Grasshoppers were the principal item 
found in the diet, but beetles were particularly favored in shrubby 
habitats. Similarly, Doerr (1980, p. 25) found grasshoppers and 
crickets were the most important component of the summer diet followed 
in importance by beetles. Jones (1963b, pp. 64-65) reported fruits from 
skunkbush sumac to be the most favored plant material in the diet. 
Doerr (1980, p. 25) found James cryptantha and erect dayflower were the 
two most important plants in the diet in his study. Insects remained a 
principal food item in the fall (September through November), at least 
until November when plant foods, such as Cyperus schweinitzii 
(flatsedge) and Ambrosia psilostachya (western ragweed) became more 
prevalent in the diet (Jones 1963b, pp. 80-81).
    Little is known regarding the specific water requirements of the 
lesser prairie-chicken, but their distribution does not appear to be 
strongly influenced by the presence of surface water. Total annual 
precipitation across the range of the lesser prairie-chicken varies, on 
average, from roughly 63 cm (25 in) in the eastern portions of the 
historical range to as little as 25 cm (10 in) in the western portions 
of the range. Consequently, fewer sources of free-standing surface 
water existed in lesser prairie-chicken historical range prior to 
settlement than currently exist. Lesser prairie-chickens likely rely on 
food sources and consumption of dew to satisfy their metabolic moisture 
requirement (Snyder 1967, p. 123; Hagen and Giesen 2005, unpaginated; 
Bidwell et al. 2002, p. 6) but will use surface water when it is 
available. Boal and Pirius (2012, p. 6) observed that 99.9 percent of 
lesser prairie-chicken locations they recorded in west Texas were 
within 3.2 km (2.0 mi) of an available water source and may be

[[Page 20004]]

indicative of the importance of surface water sources. Grisham et al. 
(2013, p. 7) believed that use of available standing water may be 
particularly important for egg development during drought conditions 
and its importance may be overlooked. Because much of the historically 
occupied range is now used for domestic livestock production, numerous 
artificial sources of surface water, such as stock ponds and stock 
tanks, have been developed throughout the region. Several studies have 
documented use of these water sources by lesser prairie-chickens during 
the spring, late summer, and fall seasons (Copelin 1963, p. 20; Jones 
1964, p. 70; Crawford and Bolen 1973, pp. 471-472; Crawford 1974, p. 
41; Sell 1979, p. 31), and they may be particularly important during 
periods of drought (Crawford and Bolen 1973, p. 472; Crawford 1974, p. 
41). Hoffman (1963, p. 732) supported development of supplemental water 
sources (i.e., guzzlers) as a potential habitat improvement tool. 
Others, such as Davis et al. (1979, pp. 127-128) and Applegate and 
Riley (1998, p. 15) cautioned that creating additional surface water 
sources will influence grazing pressure and possibly contribute to 
degradation of habitat conditions for lesser prairie-chickens. 
Rosenstock et al. (1999, p. 306) reported that some predators, 
particularly raptors, benefit from the presence of surface water 
sources developed for wildlife in arid environments. Additionally, some 
livestock watering facilities may create other hazardous conditions 
(e.g., drowning; Sell 1979, p. 30), but the frequency of these 
incidents is unknown.
    Lesser prairie-chickens have a relatively short lifespan and high 
annual mortality. Campbell (1972, p. 694) estimated a 5-year maximum 
lifespan, although an individual nearly 7 years old has been documented 
in the wild by the Sutton Avian Research Center (Sutton Center) (Wolfe 
2010, pers. comm.). Average natural lifespan or generation time was 
calculated, based on work by Farner (1955, entire), to be 1.95 years 
(Van Pelt et al. 2013, p. 130). Pruett et al. (2011, p. 1209) also 
estimated generation time in lesser prairie-chickens and found 
generation times were slightly lower in Oklahoma (1.92 years) than in 
New Mexico (2.66 years). Lesser prairie-chickens and other galliform 
birds appear to have particularly short lifespans for their size 
(Lindstedt and Calder 1976, p. 91).
    Differences in survival may be associated with sex, weather, 
harvest (where allowed), age, and habitat quality. Campbell (1972, p. 
689), using 9 years of band recovery data from New Mexico, estimated 
annual mortality for males to be 65 percent. Hagen et al. (2005, p. 82) 
specifically examined survival in male lesser prairie-chickens in 
Kansas and found apparent survival varied by year and declined with 
age. Annual mortality was estimated to be 55 percent (Hagen et al. 
2005, p. 83). Survival rates for lesser prairie-chickens in 
northeastern Texas were lower for both sexes during the breeding season 
than during the non-breeding season (Jones 2009, p. 16). Estimated 
survival was 52 percent. Lesser prairie-chickens in New Mexico and 
Oklahoma also had higher mortality during the breeding season than at 
other times of the year (Patten et al. 2005b, p. 240; Wolfe et al. 
2007). Male survival may be lower during the breeding season due to 
increased predation or costs associated with territorial defense while 
lekking (Hagen et al. 2005, p. 83). In female lesser prairie-chickens, 
Hagen et al. (2007, p. 522) estimated that annual mortality in two 
remnant patches of native sand sagebrush prairie near Garden City, 
Finney County, Kansas was about 50 percent at a study site southwest of 
Garden City and about 65 percent at a study site southeast of Garden 
City. Female survival may be lower during the breeding season due to 
the costs associated with reproduction (see both Hagen et al. 2005 and 
2007.). Grisham (2012, pp. 19-20) found that female survival (at least 
71 percent) was higher than male survival (57 percent). Observed female 
survival rates were much higher than those reported elsewhere in the 
literature (see Campbell 1972, Merchant 1982, and Hagen et al. 2007) 
but may have been a function of the statistical test used in the 
analysis (Grisham 2012, pp. 21-22). Principally, the study by Grisham 
(2012, entire) demonstrated lesser prairie-chickens may have high 
survival during the breeding season in shinnery oak habitats.
    Adult annual survival in Texas apparently varied by habitat type. 
In sand sagebrush habitat, survival was estimated to be 0.52, whereas 
survival was only 0.31 in shinnery oak habitat (Lyons et al. 2009, p. 
93). For both areas, survival was about 4 percent lower during the 
breeding season than during the nonbreeding period (Lyons et al. 2009, 
p. 93). Hagen et al. (2007, p. 522) also reported lower survival during 
the reproductive season (31 percent mortality) compared to the 
nonbreeding season (23 percent mortality) in Kansas. In contrast with 
Lyons et al. (2009), survival times did not differ between sand 
sagebrush habitats in Oklahoma and shinnery oak habitats in New Mexico 
(Patten et al. 2005a, p. 1274). Birds occupying sand shinnery sites 
with greater than 20 percent shrub cover survived longer than those in 
areas with less dense shrub cover (Patten et al. 2005a, p. 1275). Areas 
with greater than 20 percent shrub cover likely provided a more 
suitable microclimate through enhanced thermal protection than areas 
with less shrub cover.
    Availability of food and cover are key factors that affect chick 
and juvenile survival. Habitats used by lesser prairie-chicken broods 
had greater biomass of invertebrates and forbs than areas not 
frequented by broods in Kansas (Hagen et al. 2005, p. 1087); Jamison et 
al. 2002, p. 524). Chick survival averaged only about 25 percent during 
the first 35 days following hatching (Hagen 2003, p. 135). Survival for 
chicks between 35 days of age and the following spring was estimated to 
be 53.9 percent in southwestern Kansas (Hagen et al. 2009, p. 1326). 
Jamison (2000, p. 57) estimated survival of chicks from hatching to 
early autumn (60 days post-hatching), using late summer brood sizes 
provided in several early studies, to be 27 percent in Kansas and 43-65 
percent in Oklahoma. These values were considerably higher than the 19 
percent Jamison observed in his study and may reflect an inability in 
the earlier studies to account for the complete loss of broods and 
inclusion of mixed broods (combined broods from several females) when 
estimating brood size (Jamison 2000, p. 57). Pitman et al. (2006b, p. 
677) estimated survival of chicks from hatching to 60-days post-
hatching to be 17.7 percent. Recruitment was characterized as low with 
survival of juvenile birds from hatching to the start of the first 
breeding season the following year estimated to be only 12 percent 
(Pitman et al. 2006b, pp. 678-680), which may be a significant limiting 
factor in southwestern Kansas. However, the authors cautioned that 
these estimates might not be indicative of survival estimates in other 
areas due to low habitat quality, specifically poor distribution of 
nesting and brood-rearing habitats within the study area (Pitman et al. 
2006b, p. 680).
Conservation Genetics
    Persistence of wild populations is usually influenced more by 
ecological rather than by genetic effects; however, as population size 
declines, genetic factors often become increasingly important (Lande 
1995, p. 318). Considering that lesser prairie-chickens have one of the 
smallest population sizes and most restricted geographic distributions 
of any native North American grouse (Hagen and Giesen 2005, 
unpaginated), an understanding of

[[Page 20005]]

relevant genetic factors can be valuable when implementing conservation 
efforts, particularly where translocation and other forms of 
reintroduction may be considered. Van Den Bussche et al. (2003, entire) 
examined genetic variation within the lesser prairie-chicken using 
mitochondrial deoxyribonucleic acid (DNA) (mtDNA, maternally-inherited 
DNA located in cellular organelles called mitochondria) and nuclear 
microsatellite (short, tandem repeating sequences of DNA nucleotide 
base pairs) data from 20 lek sites in Oklahoma and New Mexico. They 
found that these lesser prairie-chicken populations maintain high 
levels of genetic variation and genetic diversity did not differ 
between leks in Oklahoma and New Mexico (Van Den Bussche et al. 2003, 
p. 680). Historical gene flow between birds in Oklahoma and New Mexico 
was considered to be low, leading to some genetic differentiation 
between the two populations (Van Den Bussche et al. 2003, p. 681). 
These findings are not unexpected, considering these populations are 
fragmented and separated by at least 300 km (200 mi). Bouzat and 
Johnson (2004, entire) examined genetic structure between four closely 
spaced leks within a lesser prairie-chicken population in New Mexico. 
They detected increased inbreeding within these closely spaced leks, 
leading to an increase in homozygosity (having the same inherited 
alleles (gene form), rather than different alleles at a particular gene 
location on both homologous chromosomes (threadlike linear strands of 
DNA and associated proteins in the cell nucleus that carries the genes 
and functions in the transmission of hereditary information)) within 
these leks (Bouzat and Johnson 2004, p. 503). Although no deleterious 
effects to demographic rates have yet been documented in New Mexico 
populations, a loss of genetic diversity and inbreeding can lead to a 
reduction in reproductive fitness in prairie grouse (Bouzat et al. 
1998a, p. 841; Bouzat et al. 1998b, p. 4).
    Hagen et al. (2010, entire) examined variability in mtDNA of lesser 
prairie-chickens across their range, with the exception of Texas. They 
observed low levels of population differentiation (p. 33) with 
relatively high levels of genetic diversity in most populations (pp. 
33-34). Their data suggest that gene flow continues to occur over most 
of the occupied range, with significant differences between New Mexico 
populations and the rest of the studied range. As previously indicated 
the New Mexico population is separated by considerable distance from 
the remainder of the studied range. The population in New Mexico was 
significantly different from the others examined and lacked gene flow 
with the remainder of the populations in Colorado, Kansas and Oklahoma 
(Hagen et al. 2010, p. 34). This suggests that lesser prairie-chickens 
in New Mexico are isolated from populations in Colorado, Kansas and 
Oklahoma.
    Complementary work by Corman (2011, entire) examined genetic 
diversity in lesser prairie-chicken populations in Texas. In examining 
population differentiation, the population in Deaf Smith County was not 
significantly different from the remainder of the populations in the 
southwestern panhandle and eastern New Mexico nor was this population 
significantly different from the population in Lipscomb, Hemphill, and 
Wheeler counties (Corman 2011, p. 47). The Gray and Donley County 
population and the Lipscomb, Hemphill, Wheeler population of northeast 
Texas panhandle had the lowest differentiation of the four geographical 
regions studied. The Deaf Smith County and the Gray and Donley County 
populations had the greatest differentiation even though they were 
intermediate by distance between the regions. The southwest Texas 
panhandle population revealed little differentiation with the New 
Mexico population (Corman 2011, p. 48). Genetic clustering efforts 
without regard to region indicated the northeast Texas populations and 
the southwest Texas panhandle-New Mexico populations were the two 
primary geographic clusters of lesser prairie-chickens in Texas. 
Genetic clustering within these two primary geographic clusters 
indicated that additional clusters were present. Within the southwest 
Texas panhandle-New Mexico cluster, the population in Deaf Smith County 
clustered separately from the remainder of the population in the 
southwest Texas and New Mexico cluster. In the northeastern Texas 
cluster, the Gray and Donley County population clustered separately 
from the remainder of the populations in Lipscomb, Hemphill, and 
Wheeler counties (Corman 2011, p. 49). The two primary population 
clusters are separated by a geographical distance of about 160 to 250 
km (99 to 155 mi). Overall genetic diversity in Texas has remained 
relatively high despite observed population declines since 1900 (Corman 
2011, p. 112). Genetic diversity tends to be higher in northeastern 
Texas Panhandle relative to the rest of Texas and New Mexico (Corman 
2011, p. 112). This population likely maintains gene flow with 
populations in adjacent portions of Oklahoma. The population cluster 
that persists in the Deaf Smith County region had much lower diversity 
than other locations in Texas. Diversity estimates obtained by Corman 
(2011, p. 113) were comparable with those provided by Hagen et al. 
(2010, entire). Genetic diversity is particularly important to 
maintaining reproductive fitness. Gregory (2011, p. 18) observed that 
for greater prairie-chickens, the most genetically diverse males were 
more likely to live longer than less diverse males and were more likely 
to be the most successful male on the lek.
    Corman (2011, p. 142) estimates that the lesser prairie-chicken 
effective population size is about 560 to 610 individuals are required 
for the southwestern Texas Panhandle and New Mexico populations and 
about 120 to 260 individuals for the northeast Texas Panhandle region. 
Consistent with previous studies, the southwest Texas/eastern New 
Mexico lesser prairie-chicken population is isolated from the remainder 
of the range (a condition which has been in place for perhaps at least 
6-7 decades) and exhibits effects from genetic drift as indicated by 
lower genetic variability (Corman 2011, p. 116). Based on estimates of 
the effective population size, the southwest Texas/eastern New Mexico 
population may be large enough to maintain evolutionary potential 
(ability to adapt to changing conditions over time) if there were no 
further population declines or changes in habitat conditions (Corman 
2011, p. 120). However, the lesser prairie-chicken populations in the 
northeast Texas panhandle do not appear to be large enough to maintain 
evolutionary potential without stabilizing populations and continued 
connectivity to populations in Oklahoma (Corman 2011, p. 120).
    Pruett et al. (2011, entire) examined effective population size in 
lesser prairie-chickens from New Mexico and Oklahoma. Effective 
population size is useful for determining extinction risk in small 
populations and is a measure of the actual number of breeding 
individuals in a population. The effective size of a population is 
often much less than the actual number of individuals within the same 
population. It is defined as the size of an idealized population of 
breeding adults that would experience the same rate of (1) loss of 
heterozygosity (the amount and number of different genes within 
individuals in a population), (2) change in the average inbreeding 
coefficient (a

[[Page 20006]]

calculation of the amount of breeding by closely related individuals), 
or (3) change in variance in allele (one member of a pair or series of 
genes occupying a specific position in a specific chromosome) frequency 
through genetic drift (the fluctuation in gene frequency occurring in 
an isolated population) as the actual population. As the effective 
population size decreases, the rate of loss of allelic diversity via 
genetic drift increases, reducing adaptive potential and increasing the 
risk of inbreeding depression.
    Estimates of effective population size, based on the parameters for 
the demographic variables they modeled, was estimated to be between 341 
and 1,023 individuals in Oklahoma and between 944 and 2,375 individuals 
in New Mexico (Pruett et al. (2011, p. 1209). Using genetic 
information, which generally yields smaller effective population sizes, 
Pruett et al. (2011, p. 1211) estimated current effective population 
size in Oklahoma to be about 115 individuals and about 55 individuals 
in New Mexico. This value for New Mexico is considerably smaller than 
the value determined for New Mexico by Corman (560 to 610 individuals) 
(2011, p. 142). However, Corman included birds from southwest Texas in 
his estimates of the Texas Panhandle and New Mexico populations, which 
likely contributed to the higher estimate of effective population size. 
Despite these low numbers resulting from genetic analysis, based on 
estimates of the effective population size, we conclude that the 
southwest Texas/eastern New Mexico population may be able to maintain 
evolutionary potential (ability to adapt to changing conditions over 
time) if there are no further population declines or changes in habitat 
conditions.
    Garton (2012, entire) conducted a reconstruction analysis of lesser 
prairie-chicken population abundance through time to model the likely 
future of lesser prairie-chicken populations. His analysis evaluated 
both rangewide populations and each of the four ecoregions where the 
lesser prairie-chicken occurs. To do so, Garton (2012, p. 5) used the 
effective population size values of 50 individuals for short-term (30 
year) persistence and 500 for long-term (100 year) persistence and 
adjusted these for count composition of sexes resulting in an estimated 
effective population size of 85 birds for short-term persistence and 
852 birds for long-term persistence. Using these estimated effective 
population sizes, Garton (2012, p. 16-17) projected that in 30 years 
the estimated rangewide carrying capacity of lesser prairie-chickens 
would be about 10,000 birds and less than 1,000 birds in 100 years, 
provided existing conditions did not change. Based on these numbers, 
Garton (2012, p. 18, 32) concludes from the most recent data, two of 
the eco-regions (sand sagebrush prairie and mixed grass/CRP) and the 
rangewide species population have high to very high probabilities of 
falling below quasi-extinction thresholds within 30 years. Garton 
(2012, p. 18) also concludes that analysis across the long-term data 
paint a more optimistic picture of the rangewide species carrying 
capacity, but the fundamental pattern is still one of declining trends 
that must be reversed in the long term to conserve the species.
Habitat
    The preferred habitat of the lesser prairie-chicken is native 
prairies composed of short- and mixed-grasses with a shrub component 
dominated by Artemesia filifolia (sand sagebrush) or Quercus havardii 
(shinnery oak) (hereafter described as native rangeland) (Donaldson 
1969, pp. 56, 62; Taylor and Guthery 1980a, p. 6; Giesen 1998, pp. 3-
4). In more moist, less sandy soils, other small shrubs, such as plums 
and sumac, become more prevalent; however, the habitat remains suitable 
for lesser prairie-chickens. Small shrubs, along with tall grasses, 
provide cover/concealment for nesting hens and broods and are important 
for summer shade (Copelin 1963, p. 37; Donaldson 1969, pp. 44-45, 62), 
winter protection, and as supplemental foods (Johnsgard 1979, p. 112). 
Typically the height and structure of short-grass prairie alone does 
not provide suitable cover when shrubs or taller grasses are absent. 
Historically, trees and other tall, woody vegetation were largely 
absent from these grassland ecosystems, except in canyons and along 
water courses. Prairie landscapes supporting less than 63 percent 
native rangeland appear incapable of supporting self-sustaining lesser 
prairie-chicken populations (Crawford and Bolen 1976a, p. 102).
    Outside of the CRP dominated grasslands in Kansas, lesser prairie-
chickens are primarily found in the sand sagebrush dominated native 
rangelands of Colorado, Kansas, Oklahoma, and Texas, and in the 
shinnery oak-bluestem grasslands of New Mexico, Oklahoma, and Texas. 
Sand sagebrush is a 0.6- to 1.8-m (2- to 6-ft) tall shrub that occurs 
in 11 States of the central and western United States (Shultz 2006, p. 
508). Within the central and southern Great Plains, sand sagebrush is 
often a dominant species on sandy soils and may exhibit a foliar cover 
of 20 to 50 percent (Collins et al. 1987, p. 94; Vermeire 2002, p. 1). 
Sand-sage shrublands have been estimated to occupy 4.8 million ha (11.8 
million ac) in the central and southern Great Plains (Berg 1994, p. 
99).
    The shinnery oak vegetation type is endemic to the southern great 
plains and is estimated to have historically covered an area of 2.3 
million ha (over 5.6 million ac), although its current range has been 
considerably reduced through eradication (Mayes et al. 1998, p. 1609). 
The distribution of shinnery oak overlaps much of the historical lesser 
prairie-chicken range in New Mexico, Oklahoma, and Texas (Peterson and 
Boyd 1998, p. 2). Shinnery oak is a rhizomatous (a horizontal, usually 
underground stem that often sends out roots and shoots from its nodes) 
shrub that reproduces slowly and does not invade previously unoccupied 
areas (Dhillion et al. 1994, p. 52). Mayes et al. (1998, p. 1611) 
documented that a single rhizomatous shinnery oak can occupy an area 
exceeding 7,000 square meters (sq m) (75,300 square feet (sq ft)). 
Shinnery oak in some areas multiplies by slow rhizomatous spread and 
eventual fracturing of underground stems from the original plant. In 
this way, single clones have been documented to occupy up to 81 ha (200 
ac) over an estimated timeframe of 13,000 years (Cook 1985, p. 264; 
Anonymous 1997, p. 483), making shinnery oak possibly the largest and 
longest-lived plant species in the world.
    Within the historical range of the species, the USDA's CRP, 
administered by the FSA, has promoted the establishment and 
conservation of certain grassland habitats. Originally funded as a 
mechanism to reduce erosion from highly erodible soils, the program has 
since become a means to at least temporarily retire any environmentally 
sensitive cropland from production and establish vegetative cover on 
that land. Initially, many types of grasses were approved for use as 
permanent vegetative cover, including several that are nonnative. The 
use of native grasses has become more prevalent over time. In Kansas in 
particular, much of the vegetative cover established through the CRP 
within the historical range of the lesser prairie-chicken was a mix of 
native warm-season grasses such as Schizachyrium scoparium (little 
bluestem), Bouteloua curtipendula (sideoats grama), and Panicum 
virgatum (switchgrass) (Rodgers and Hoffman 2005, p. 120). These 
grasses are important components of lesser prairie-chicken habitat and 
have led to reoccupation of large areas of the historical range in 
western Kansas

[[Page 20007]]

by lesser prairie-chickens, particularly north of the Arkansas River.
    In other areas, nonnative grasses were used that displaced the 
native, warm season grasses, providing little, if any, habitat value 
for the lesser prairie-chicken. Exotic old world bluestems and 
Eragrostis curvula (weeping lovegrass) were extensively seeded in CRP 
tracts in Texas, New Mexico, and Oklahoma (Haufler et al. 2012, p. 17; 
Hickman and Elmore 2009, p. 54). For example, about 70 to 80 percent of 
the original CRP seedings in eastern New Mexico consisted of dense, 
single-species stands of weeping lovegrass, Bothriochloa bladhii 
(Caucasian bluestem), or B. ischaemum (yellow bluestem) (Rodgers and 
Hoffman 2005, p. 122). Monocultures of old world bluestem and other 
exotic grasses contribute very little to lesser prairie-chicken 
conservation as they provide poor-quality nesting and brood rearing 
habitat. Toole (2005, p. 21) reported that the abundance of 
invertebrates, which are used as food for both adults and young, was 
over 32 times lower in weeping lovegrass CRP fields than in pastures 
containing native warm season grasses. However, as these nonnative CRP 
grasslands have matured over the last two decades, some species of 
native grasses and shrubs are beginning to reestablish within these 
fields. The lesser prairie-chicken will occasionally use these older 
stands of exotic grasses for roosting and nesting (Rodgers and Hoffman 
2005, p. 122), but such fields often continue to provide limited 
habitat value for lesser prairie-chickens. In contrast, where CRP lands 
support native, warm season grasses having the suitable vegetative 
structure and species composition required by lesser prairie-chickens, 
these fields can provide high quality habitat. See section on 
``Conservation Reserve Program (CRP)'' for more information on CRP.
    Leks are characterized by areas of sparse or low vegetation (10 cm 
(4 in) or less) cite for height see Plan) and are generally located on 
elevated features, such as ridges or grassy knolls (Giesen 1998, p. 4). 
Vegetative cover characteristics, primarily height and density, may 
have a greater influence on lek establishment than elevation (Giesen 
1998, p. 4). Copelin (1963, p. 26) observed display grounds within 
short grass meadows of valleys where sand sagebrush was tall and dense 
on the adjacent ridges. Early spring fires also encouraged lek 
establishment when vegetation likely was too high (0.6 to 1.0 m (2.0 to 
3.3 ft)) to facilitate displays (Cannon and Knopf 1979, pp. 44-45). 
Several authors, as discussed in Giesen (1998, p. 4), observed that 
roads, oil and gas pads, and similar forms of human disturbance can 
create habitat conditions that may encourage the establishment of 
artificial lek sites (as opposed to those in native grasslands). Site 
fidelity also may play a role in continued use of certain areas as lek 
sites, despite some forms of human disturbance. However, Taylor (1979, 
p. 707) emphasized that human disturbance, which is often associated 
with these artificial lek sites, is detrimental during the breeding 
season and did not encourage construction of potential lek sites in or 
near areas subject to human disturbance. Leks are typically located 
near areas that provide good nesting habitat. Giesen (1998, p. 9) 
reported that hens usually nest and rear broods within 3.4 km (2.1 mi) 
of leks and may return to nest in areas of previously successful nests 
(Riley 1978, p. 36). Giesen (1994a, pp. 97-98) and Hagen and Giesen 
(2005, unpaginated) also reported that hens often nest closer to a lek 
other than the one on which they mated. Adequate nesting and brood 
rearing habitats are crucial to population growth as they influence 
nest success and brood survival.
    Typical nesting habitat can be generally described as native 
rangeland, although vegetation structure, such as the height and 
density of forbs and residual grasses, is frequently greater at nesting 
locations than on adjacent rangeland (Giesen 1998, p. 9). Adequate 
herbaceous cover, including residual cover from the previous growing 
season, is an important factor influencing nest success, primarily by 
providing concealment of the nest (Suminski 1977, p. 32; Riley 1978, p. 
36; Riley et al. 1992, p. 386; Giesen 1998, p. 9). Concealment of the 
nest is important as successful nests are often associated with greater 
heights and cover of shrubs and perennial grasses than are unsuccessful 
nests. Nests are often located on north and northeast facing slopes as 
protection from direct sunlight and the prevailing southwest winds 
(Giesen 1998, p. 9).
    Giesen (1998, p. 9) reports that habitat used by young is similar 
to that of adults, but good brood rearing habitat will have less grass 
cover and higher amounts of forb cover than nesting habitat (Hagen et 
al. 2013, p. 4). Dense grass cover impedes movements of the chicks 
(Pitman et al. 2009, p. 680). Forbs are important for the insects they 
produce which in turn influences body mass of the chicks (Pitman et al. 
2006b, p. 680). Considering the limited mobility of broods--daily 
movement of the broods is usually 300 m (984 ft) or less (Candelaria 
1979, p. 25)--optimum brood rearing habitat is typically found close to 
nesting areas. In Kansas, habitats used by broods had greater total 
biomass of invertebrates and forb cover than areas not frequented by 
broods, emphasizing the importance of forbs in providing the 
invertebrate populations used by young lesser prairie-chickens (Jamison 
et al. 2002, pp. 520, 524). Grisham (2012, p. 153) observed that brood 
survival through 14 days post-hatching was the primary factor limiting 
population growth of lesser prairie-chickens and that a lack of forbs 
necessary to support abundant insects was implicated as a primary 
factor influencing brood survival. After the broods break up, the 
juveniles form mixed flocks with adult birds (Giesen 1998, p. 9), and 
juvenile habitat use is similar to that of adult birds.
    The rangewide plan provides a detailed characterization of lesser 
prairie-chicken preferred nesting and brood rearing habitat in native 
rangelands with a shinnery oak or sand sagebrush shrub component and in 
areas dominated by CRP fields where native shrubs are often absent (Van 
Pelt et al. 2013, pp 75-76). Additionally, Hagen et al. (2013, entire) 
conducted a meta-analysis (analysis of information from multiple 
studies) of lesser prairie chicken nesting and brood rearing habitat 
within both sand sagebrush and shinnery oak dominated vegetative 
communities and the mixed grass community. They reported average values 
for 10 different parameters and used these summarized values derived 
from 14 different studies (Hagen et al. 2013, p. 755). In general, they 
reported that lesser prairie-chicken nesting habitat in sand sagebrush 
regions have at least 60 percent canopy cover of forbs, and shrubs and 
grasses that are at least 25 cm (9.8 in) tall in western portions of 
the range to over 40 cm (15.7 in) tall in the eastern portion of the 
range.
    Habitat use at finer scales indicates that lesser prairie-chickens 
throughout the year consistently occupied sites with greater cover than 
what was available across the landscape (Larrson et al. 2013, pp. 138, 
140). Microhabitats selected were based on presence of specific species 
of grasses and forbs and specific vegetative structure (Larrson et al. 
2013, p. 138-139). The researchers inferred that predation and 
temperature influenced habitat selection by lesser prairie-chickens, 
with birds using more open areas during periods with cooler 
temperatures and more dense vegetation during periods with hotter 
temperatures (Larrson et al. 2013, p. 141). However, there may be a 
tradeoff between sites that are thermally favorable and sites that 
minimize the risk of predation.

[[Page 20008]]

Maintaining a diverse native plant community with a suite of structural 
composition (e.g., height and density) that meets all of the lesser 
prairie-chicken cover requirements for breeding, nesting and brood 
rearing may help compensate for tradeoffs between microclimate 
preferences and predator avoidance.
    Giesen (1998, p. 4) reports that fall and winter habitat 
requirements are similar to those used during the nesting and brood 
rearing seasons, with the exception that cultivated grain fields are 
used more heavily during these periods than during the breeding season. 
Considering lesser prairie-chickens tend to spend most of their daily 
and seasonal activity near (within 4.8 km (3.0 mi)) the display grounds 
even during the non-breeding season (Giesen 1994, p. 97; Riley et al. 
1994, p. 185; Woodward et al. 2001, p. 263), similarity in habitat use 
across seasons is not surprising. Boal and Pirius (2012, p. 6) observed 
that slightly more than 97 percent of the radio-marked birds they 
followed were relocated within 3.2 km (2 mi) of the breeding ground on 
which they were captured and just under 97 percent of the marked birds 
were located within 3.2 km (2 mi) of a known lek. Similarly Kukal 
(2010, p. 19) reported almost 98 percent of male lesser prairie-
chickens were located within 5 km (3 mi) of the lek on which they were 
captured and 98 percent were within 2.3 km (1.4 mi) of a known lek. 
Observations for females were very similar. Almost 98 percent of 
females were located within 3.8 km (2.4 mi) of the lek on which they 
were captured and roughly 98 percent were within 2.4 km (1.5 mi) from a 
known lek (Kukal 2010, pp. 19-20).
    There is considerable overlap in lesser prairie-chicken habitat 
requirements, with the lek being the common focal point for most 
activities. A mixture of lekking, nesting, brood rearing, and wintering 
habitat, all in close proximity to the other, provides optimum habitat 
conditions needed to support lesser prairie-chickens. Considering that 
nest success and brood survival are the most critical factors 
influencing population viability (Pitman et al. 2006b, p. 679; Hagen et 
al. 2009, pp. 1329-1330; Grisham 2012, p. 153), Hagen et al. (2013, p. 
750), a habitat mosaic consisting of approximately one-third brood 
rearing habitat and two-thirds nesting habitat are key to conservation 
and management of the lesser prairie-chicken (Hagen et al. 2013, p. 
756).
    Reported home ranges, seasonal movement patterns, and dispersal 
distances of lesser prairie-chickens, as previously discussed, are 
indicative of their requirement for large blocks of interconnected, 
ecologically diverse native grassland. Taylor and Guthery (1980a, p. 
11) used lesser prairie-chicken movements in west Texas to estimate the 
area needed to meet the minimum requirements of a lek population. A 
contiguous area of suitable habitat encompassing at least 32 sq km (12 
sq mi or 7,900 ac) would support about 90 percent of the annual 
activity associated with a given lek and an area of 72 sq km (28 sq mi 
or 17,791 ac) would include all of the annual activity associated with 
a lek except for some movements of juveniles (Taylor and Guthery 
(1980a, p. 11). Bidwell et al. (2002, p. 3) speculated that at least 
101.2 sq km (39 sq mi or 25,000 ac) of contiguous high-quality habitat 
may be needed to maintain a sustainable population of lesser prairie-
chickens. Because lesser prairie-chickens typically nest and rear their 
broods in proximity to a lek other than the one used for mating (Giesen 
1998, p. 9), a complex of two or more leks is likely the very minimum 
required to sustain a viable lesser prairie-chicken population. Hagen 
et al. (2004, p. 76) recommended that lesser prairie-chicken management 
areas be at least 4,096 sq km (1,581 sq mi or 1,012,140 ac) in size. 
Management areas of this size would incorporate the longest-known 
movements of individual birds and be large enough to maintain healthy 
lesser prairie-chicken populations despite the presence of potentially 
large areas of unsuitable habitat.
Historical Range and Distribution
    Prior to description by Ridgeway in 1885, most observers did not 
differentiate between the lesser and greater prairie-chicken. 
Consequently, estimating historical abundance and occupied range is 
difficult. Historically, the lesser prairie-chicken is known to have 
occupied native rangeland in portions of southeastern Colorado (Giesen 
1994b, pp. 175-182), southwestern Kansas (Baker 1953, p. 9; Schwilling 
1955, p. 10), western Oklahoma (Duck and Fletcher 1944, p. 68), the 
Texas panhandle (Henika 1940, p. 15; Oberholser 1974, p. 268), and 
eastern New Mexico (Ligon 1927, pp. 123-127).
    Lesser prairie-chickens also have been documented from Nebraska, 
based on at least four specimens known to have been collected near 
Danbury in Red Willow County during the 1920s (Sharpe 1968, p. 50). 
Sharpe (1968, pp. 51, 174) considered the occurrence of lesser prairie-
chickens in Nebraska to be the result of a short-lived range expansion 
facilitated by settlement and cultivation of grain crops. Lesser 
prairie-chickens are not currently believed to occur in Nebraska. 
Sharpe did not report any confirmed observations since the 1920s 
(Sharpe 1968, entire), and no sightings have been documented despite 
searches over the last 5 years in southwestern Nebraska (Walker 2011). 
Therefore, Nebraska is generally considered outside the historical 
range of the species.
    Based on a single source, Crawford (1974, p. 4) reported that the 
lesser prairie-chicken was successfully introduced to the island of 
Niihau in the State of Hawaii. Prairie-chickens were known to have been 
released on Niihau, a privately owned island, in 1934 (Fisher 1951, p. 
37), but the taxonomic identity of those birds has not ever been 
confirmed. Schwartz and Schwartz (1949, p. 120) believed that these 
birds were indeed lesser prairie-chickens. Fisher and members of his 
expedition did observe at least eight individual prairie-chickens 
during a visit to Niihau in 1947, but no specimens were collected due 
to their scarcity and the landowner's requests (Fisher 1951, pp. 33-34, 
37). Consequently, the specific identity of these birds could not be 
confirmed, and their current status on the island remains unknown 
(Pratt et al. 1987, p. 324; Pyle and Pyle 2009, p. 5). Similarly, 
Jeschke and Strayer (2008, p. 127) indicate that both lesser and 
greater prairie-chickens were introduced to parts of Europe, but both 
species failed to become established there. We do not believe that 
either greater or lesser prairie-chickens still persist in Hawaii or 
Europe, and we did not receive any comments during the comment periods 
that confirmed their continued existence in either location.
    Johnsgard (2002, p. 32) estimated the maximum historical range of 
the lesser prairie-chicken to have encompassed between 260,000 and 
388,500 sq km (100,000 to 150,000 sq mi), with about two-thirds of the 
historical range occurring in Texas. Taylor and Guthery (1980a, p. 1, 
based on Aldrich 1963, p. 537) estimated that, by the 1880s, the area 
occupied by lesser prairie-chicken was about 358,000 sq km (138,225 sq 
mi), and, by 1969, they estimated the occupied range had declined to 
roughly 125,000 sq km (48,263 sq mi) due to widespread conversion of 
native prairie to cultivated cropland. Taylor and Guthery (1980a, p. 4) 
estimated that, by 1980, the occupied range encompassed only 27,300 sq 
km (10,541 sq mi), representing a 90 to 93 percent reduction in 
occupied range since pre-European settlement and a 92 percent reduction 
in the occupied range since the 1880s.

[[Page 20009]]

    In 2007, cooperative mapping efforts by species experts from the 
Colorado Parks and Wildlife (CPW) (formerly Colorado Division of 
Wildlife), Kansas Department of Wildlife, Parks and Tourism (KDWPT) 
(formerly Kansas Department of Wildlife and Parks), New Mexico 
Department of Game and Fish (NMDGF), Oklahoma Department of Wildlife 
Conservation (ODWC), and Texas Parks and Wildlife Department (TPWD), in 
cooperation with the Playa Lakes Joint Venture, reestimated the maximum 
historical and occupied ranges. They determined the maximum occupied 
range, prior to European settlement, to have been approximately 456,087 
sq km (176,096 sq mi) (Playa Lakes Joint Venture 2007, p. 1). The 
approximate historical range, by State, based on this cooperative 
mapping effort is the following: 21,911 sq km (8,460 sq mi) in 
Colorado; 76,757 sq km (29,636 sq mi) in Kansas; 52,571 sq km (20,298 
sq mi) in New Mexico; 68,452 sq km (26,430 sq mi) in Oklahoma; and 
236,396 sq km (91,273 sq mi) in Texas. Since 2007, the CPW slightly 
expanded the historical range in Colorado, based on new information. 
The total maximum historically occupied range, based on this 
adjustment, is now estimated to be about 466,998 sq km (180,309 sq mi) 
(Table 1.).

            Table 1--Estimated Historical and Current Occupied Lesser Prairie-Chicken Range by State
----------------------------------------------------------------------------------------------------------------
                                                                                             Extent
        State                Historical range              Current range       ---------------------------------
                                                                                   Historical        Current
----------------------------------------------------------------------------------------------------------------
Colorado.............  6 counties.................  4 counties................  32,821.1 sq km   4,456.4 sq km
                                                                                 (12,672.3 sq     (1,720.6 sq
                                                                                 mi).             mi).
Kansas...............  38 counties................  35 counties...............  76,757.4 sq km   34,479.6 sq km
                                                                                 (29,636.2 sq     (13,312.6 sq
                                                                                 mi).             mi).
New Mexico...........  12 counties................  7 counties................  52,571.2 sq km   8,570.1 sq km
                                                                                 (20,297.9 sq     (3,308.9 sq
                                                                                 mi).             mi).
Oklahoma.............  22 counties................  9 counties................  68,452.1 sq km   10,969.1 sq km
                                                                                 (26,429.5 sq     (4,235.2 sq
                                                                                 mi).             mi).
Texas................  34 counties (1940s-50s)....  21 counties*..............  236,396.2 sq km  12,126.5 sq km
                                                                                 (91,273.1 sq     (4,682.1 sq
                                                                                 mi).             mi).
                      ------------------------------------------------------------------------------------------
    TOTAL............  107 counties...............  76 counties...............  466,998.0 sq km  70,601.7 sq km
                                                                                 (180,308.9 sq    (27,259.5 sq
                                                                                 mi).             mi).
----------------------------------------------------------------------------------------------------------------
* Timmer (2012, p. 36) observed lesser prairie-chickens in only 12 counties.

Current Range and Distribution
    The lesser prairie-chicken still occurs within the States of 
Colorado, Kansas, New Mexico, Oklahoma, and Texas (Giesen 1998, p. 3). 
During the 2007 mapping effort (Playa Lakes Joint Venture 2007, p. 1; 
Davis et al. 2008, p 19), the State conservation agencies estimated the 
current occupied range encompassed 65,012 sq km (25,101 sq mi). The 
approximate occupied range, by State, based on this cooperative mapping 
effort was 4,216 sq km (1,628 sq mi) in Colorado; 29,130 sq km (11,247 
sq mi) in Kansas; 8,570 sq km (3,309 sq mi) in New Mexico; 10,969 sq km 
(4,235 sq mi) in Oklahoma; and 12,126 sq km (4,682 sq mi) in Texas. 
About 95 percent of the currently estimated occupied range occurs on 
privately owned land, as determined using the Protected Areas Database 
of the United States hosted by the U.S. Geological Survey Gap Analysis 
Program. This database represents public land ownership and 
conservation lands, including voluntarily provided privately protected 
areas, and the extent of private ownership can be determined by 
subtracting the amount of public lands from the total land base 
encompassed by the occupied range.
    Since 2007, the occupied and historical range in Colorado and the 
occupied range in Kansas have been adjusted to reflect new information. 
The currently occupied range in Colorado is now estimated to be 4,456 
sq km (1,721 sq mi), and, in Kansas, the lesser prairie-chicken is now 
thought to occupy about 34,480 sq km (13,313 sq mi). In Colorado, this 
adjustment is the result of survey efforts that recommended the 
addition of 240 sq km (93 sq mi) of suitable habitat in the occupied 
range. In Kansas, the adjustment was due to expansion of lesser 
prairie-chicken populations in Ellis, Graham, Sheridan, and Trego 
Counties. The total estimated occupied range is now believed to 
encompass 70,602 sq km (27,259 sq mi) (Table 1). The currently occupied 
range now represents roughly 16 percent of the revised historical 
range. This value is a close approximation because a small portion of 
the expanded range in Kansas lies outside the estimated maximum 
historical range and was not included in this analysis. Considering 
there are historical records from Nebraska, the maximum historical 
range currently in use is likely smaller than the maximum that would 
exist if the temporarily occupied range in Nebraska was included in the 
analysis.
    Many of the ongoing conservation efforts, including the rangewide 
plan and the LPCI, established a 16-km (10-mi) buffer around the 
estimated occupied range for planning and implementation purposes. This 
approach, EOR + 10, was used for a variety of reasons. Most 
importantly, this approach recognizes that the boundaries delineating 
the occupied range are not static and may vary from year to year 
depending on size of lesser prairie-chicken populations within the 
respective polygon. Considering population size may vary annually, the 
precise extent of the occupied range also may vary annually. This 
approach helps ensure that all of the occupied range is captured during 
planning efforts and is consistent with the action area used by the 
LPCI. This approach also is consistent with the action area used by the 
FSA for their section 7 consultation purposes. The area encompassed by 
the EOR + 10 varies slightly by planning effort depending on how the 
area was mapped and derived from geographical mapping software used in 
geographical information systems. The rangewide plan estimates that the 
EOR + 10 encompasses 162,478 sq km (62,733 sq mi) or 16,247,912 ha 
(40,149,404 ac) (Van Pelt et al. 2013, p. 129). When the CHAT tool is 
used to derive the EOR + 10, however, the extent is 16,653,390 ha 
(41,151,360 ac) (Van Pelt et al. 2013, p. 137). During the development 
of the final rangewide plan in the fall of 2013, the CHAT tool was 
revised to account for additional information obtained by the States, 
resulting in the difference of the EOR + 10 compared to the rangewide 
plan. However, the CHAT decision support tool is a work in process and 
is expected to continue to change as geospatial modeling techniques are 
refined and additional datasets are obtained. Therefore, we used the 
area presented in the rangewide plan as the EOR + 10 throughout this 
final rule.

[[Page 20010]]

    Although the mapped polygons used to determine the estimated 
occupied range appear contiguous and may leave the impression that the 
entire polygon is uniformly occupied by lesser prairie-chickens, such 
is not the case. Over much of the area within each occupied polygon, 
the habitat has been fragmented and provides suitable habitat in 
patches of various sizes. Consequently, within each polygon designated 
as occupied range, there will be areas that do not provide suitable 
habitat and are unlikely to be occupied by lesser prairie-chickens. The 
estimates of occupied range, in acres or hectares, are therefore not 
accurate in the sense that they include areas that are not occupied but 
were included in the larger mapping unit for calculation purposes. The 
actual amount of occupied habitat is likely less than the areas, in 
acres or hectares, presented in this discussion.
    As derived from the estimated historical and occupied ranges 
described above, the overall distribution of lesser prairie-chicken 
within all States except Kansas has declined sharply since pre-European 
settlement, and the species is generally restricted to variously sized, 
often highly fragmented parcels of untilled native rangeland (Taylor 
and Guthery 1980a, pp. 2-5) or areas with significant CRP enrollments 
that were initially seeded with native grasses (Rodgers and Hoffman 
2005, pp. 122-123). The estimated current occupied range, based on 
cooperative mapping efforts described above, and as derived from 
calculations of the area of each mapped polygon using geographical 
information software, represents about an 84 percent reduction in 
overall occupied range since pre-European settlement.
Rangewide Population Estimates
    Very little information is available regarding the size of lesser 
prairie-chicken populations prior to 1900. Once the five States 
supporting lesser prairie-chickens were officially opened for 
settlement beginning in the late 1800s, settlement occurred quickly and 
the landscape began to change rapidly. Numbers of lesser prairie-
chickens likely changed rapidly as well. Despite the lack of conclusive 
information on population size, the lesser prairie-chicken was 
reportedly quite common throughout its range in Colorado, Kansas, New 
Mexico, Oklahoma, and Texas in the early 20th century (Bent 1932, pp. 
280-281, 283; Baker 1953, p. 8; Bailey and Niedrach 1965, p. 51; Sands 
1968, p. 454; Fleharty 1995, pp. 38-44; Robb and Schroeder 2005, p. 
13). Litton (1978, p. 1) suggested that as many as two million birds 
may have occurred in Texas alone prior to 1900. By the 1930s, the 
species had begun to disappear from areas where it had been considered 
abundant, and the decline was attributed to extensive cultivation, 
overgrazing by livestock, and drought (Bent 1932, p. 280). Populations 
were nearly extirpated from Colorado, Kansas, and New Mexico, and were 
markedly reduced in Oklahoma and Texas (Baker 1953, p. 8; Crawford 
1980, p. 2).
    Rangewide estimates of population size were almost nonexistent 
until the 1960s and likely corresponded with more frequent and 
consistent efforts by the States to monitor lesser prairie-chicken 
populations. Although lesser prairie-chicken populations can fluctuate 
considerably from year to year in response to variable weather and 
habitat conditions, generally the overall population size has continued 
to decline from the estimates of population size available in the early 
1900s (Robb and Schroeder 2005, p. 13). By the mid-1960s, Johnsgard 
(1973, p. 281) estimated the total rangewide population to be between 
36,000 and 43,000 individuals. In 1980, the estimated rangewide fall 
population size was thought to be between 44,400 and 52,900 birds 
(Crawford 1980, p. 3). Population size in the fall is likely to be 
larger than population estimates derived from spring counts due to 
recruitment that occurs following the nesting season. By 2003, the 
estimated total rangewide population was 32,000 birds, based on 
information provided by the Lesser Prairie-Chicken Working Group (Rich 
et al. 2004, unpaginated). Prior to the implementation of the rangewide 
survey effort in 2012, the best available population estimates indicate 
that the lesser prairie-chicken population likely would be 
approximately 45,000 birds or fewer (see Table 2). This estimate is a 
rough approximation of the maximum population size and should not be 
considered as the actual current population size. Although the estimate 
uses the most current information available, population estimates for 
some States have not been determined in several years and reported 
values may not represent actual population sizes. For example, the 
values reported for Colorado and Oklahoma were published in 2000, and 
recent estimates of total population size for these States have not 
been determined. The aerial surveys conducted in 2012, as explained 
below, provide the best estimate of current population size.

       Table 2--Recent Population Estimates Prior to 2012 by State
                [Modified from Hagen et al. 2010, p. 30]
------------------------------------------------------------------------
                                           Recent population estimates
                 State                            prior to 2012
------------------------------------------------------------------------
Colorado..............................  < 1,500 (in 2000).
Kansas................................  19,700-31,100 (in 2006).
New Mexico............................  6,130 (in 2011).
Oklahoma..............................  < 3,000 (in 2000).
Texas.................................  1,254-2,649 (in 2010-11).
                                       ---------------------------------
    TOTAL.............................  < 45,000.
------------------------------------------------------------------------

    In the spring (March 30 to May 3) of 2012, the States, in 
conjunction with the Western Association of Fish and Wildlife Agencies, 
implemented a rangewide sampling framework and survey methodology using 
small aircraft. This aerial survey protocol was developed to provide a 
more consistent approach for detecting rangewide trends in lesser 
prairie-chicken population abundance across the occupied range. The 
goal of this survey was to estimate the abundance of active leks and 
provide information that could be used to detect trends in lek 
abundance over time. The sampling framework used 15-by-15-km (9-by-9-
mi) grid cells overlapping the estimated occupied range, as existed in 
2011, plus a 7.5-km (4.6-mi) buffer. Additional information on the 
survey approach is provided in McDonald et al. 2011, entire.
    The aerial survey study area was divided into four regions that 
encompassed the estimated occupied range of the lesser prairie-chicken. 
These regions were delineated largely based on habitat type and results 
were not grouped by individual State. The four regional groupings were 
the Shinnery Oak Prairie Region of eastern New Mexico and southwest 
Texas; the Sand Sagebrush Prairie Region located in southeastern 
Colorado, southwestern Kansas, and western Oklahoma Panhandle; the 
Mixed Grass Prairie Region located in the northeastern Texas panhandle, 
northwestern Oklahoma, and south-central Kansas; and the Short Grass/
CRP Mosaic in northwestern Kansas and eastern Colorado. During surveys 
of the 264 blocks selected, 40 lesser prairie-chicken leks, 6 mixed 
leks comprised of both lesser and greater prairie-chickens, and 100 
non-lek aggregations of lesser prairie-chickens were observed (McDonald 
et al. 2012, p. 15). For this particular study, an active lek was 
defined as having five or more birds per lek. If fewer than five 
individual birds were observed, ground surveys were conducted of those 
bird groups to determine if lekking birds were present.

[[Page 20011]]

If not, those areas were classified as ``non-leks.'' After the survey 
observations were adjusted to account for probability of detection 
(standard method used to adjust counts to account for individuals 
present but not detected), 3,174 lesser prairie-chicken leks were 
estimated to occur over the entire occupied range (McDonald et al. 
2012, p. 18). Another 441 mixed leks, consisting of both lesser and 
greater prairie-chickens, were estimated to occur within the occupied 
range. These mixed leks were limited to the Short Grass/CRP Mosaic 
region where the range of the two species overlaps. Using the 
respective average group size, by each identified region, an estimate 
of the total number of lesser prairie-chickens and lesser/greater 
prairie-chicken hybrids could be derived (McDonald et al. 2012, p. 20). 
The total estimated abundance of lesser prairie-chickens was 37,170 
individuals, with the number of hybrids estimated to be 309 birds 
(McDonald et al. 2012, p. 21). The estimated total number of lesser 
prairie-chicken leks and population size, by habitat region, are as 
follows: Shinnery Oak Prairie Region--428 leks and 3,699 birds; Sand 
Sagebrush Prairie Region--105 leks and 1,299 birds; Mixed Grass Prairie 
Region--877 leks and 8,444 birds; and the Short Grass/CRP Mosaic 
Region--1,764 leks and 23,728 birds (McDonald et al. 2012, pp. 20, 23).
    In 2013, the States and the Western Association of Fish and 
Wildlife Agencies repeated the aerial survey and reanalyzed the 2012 
survey results based on ecoregion specific estimated population 
parameters and a pooled analysis of the data for both years (McDonald 
et al. 2013, entire). The revised total estimated abundance of lesser 
prairie-chickens in 2012 was 34,440 individuals (90 percent upper and 
lower confidence intervals of 52,076 and 21,718 individuals, 
respectively; McDonald et al. 2013, p. 24). The total estimated 
abundance of lesser prairie-chickens in 2013 dropped to 17,616 
individuals (90 percent upper and lower confidence intervals of 20,978 
and 8,442 individuals, respectively). The number of hybrids in 2012 was 
estimated to be 350 birds (McDonald et al. 2013, p. 25). In 2013, the 
number of hybrid birds was estimated to be 342. The estimated total 
number of lesser prairie-chicken leks and population size, by 
ecoregion, for 2012 are as follows: Shinnery Oak Prairie Region--366 
leks and 2,946 birds; Sand Sagebrush Prairie Region--327 leks and 3,005 
birds; Mixed Grass Prairie Region--794 leks and 8,076 birds; and the 
Short Grass/CRP Mosaic Region--1,443 leks and 20,413 birds (McDonald et 
al. 2012, pp. 24, 25). In 2013, the estimated total number of lesser 
prairie-chicken leks and population size, by ecoregion, are as follows: 
Shinnery Oak Prairie Region--118 leks and 1,967 birds; Sand Sagebrush 
Prairie Region--323 leks and 1,802 birds; Mixed Grass Prairie Region--
356 leks and 3,567 birds; and the Short Grass/CRP Mosaic Region--1,240 
leks and 10,279 birds (McDonald et al. 2012, pp. 24, 25).
    Garton (2012, entire) used estimates of the minimum population size 
derived from the 2012 aerial survey (McDonald et al. 2012, entire), 
based on estimated rates of change and thetas (index of the relative 
size of the previous year's population) as described in Garton et al. 
(2011, p. 301) and past lek counts by the States to reconstruct 
historical population levels over time. However, ground surveys within 
the sand sage regions yielded higher estimated minimum population size 
than did the aerial survey data, and Garton used the higher ground 
survey results rather than that obtained from the aerial surveys in the 
analysis for this particular ecoregion. Based on Garton's analysis, 
lesser prairie-chicken populations generally increased during the mid-
1960s to early 1970s (Garton 2012, pp. 6, 11). Since the early 1970s to 
the mid-1990s, the population experienced a long-term decline. The 
reconstructed population estimate for 1970 was almost 300,000 birds but 
had declined to less than 50,000 birds by the mid-1990s. Following the 
mid-1990s, populations appear to have stabilized somewhat but at levels 
considerably below those from the 1970s through the early 1990s (Garton 
2012, pp. 6-11).
    In June 2012, we were provided with an interim assessment of lesser 
prairie-chicken population trends since 1997 (Hagen 2012, entire). The 
objective of this analysis was to provide an evaluation of recent 
lesser prairie-chicken population trends both rangewide and within the 
four primary habitat types (CRP-shortgrass prairie dominated landscape, 
mixed grass prairie landscape, sand sagebrush prairie landscape, and 
shinnery oak landscape) that encompass the occupied range of the 
species. The analysis employed modeling techniques intended to provide 
a more unified assessment of population trends, considering that each 
State uses slightly different methods to monitor lesser prairie-
chickens and that sampling effort has varied over time, with sampling 
efforts typically increasing in recent years. The results of this 
analysis suggest that lesser prairie-chicken population trends have 
increased since 1997.
    However, we are reluctant to place considerable weight on this 
interim assessment for several reasons. First, and perhaps most 
important, is that the analysis we were provided is a preliminary 
product. We anticipated that a more complete, and perhaps peer-
reviewed, product would be submitted during the comment period on the 
proposed rule; however, we did not receive an updated assessment. 
Second, we have concerns with the differences in how lek counts are 
conducted and how those differences were addressed. For example, when 
the States conduct flush counts at the leks, all of the States, except 
Oklahoma, count the number of males flushed from the lek. However, 
since 1999, Oklahoma has counted all birds flushed from the lek and did 
not differentiate between males and females. Additionally, some of the 
States use numbers derived from lek counts conducted over large areas 
rather than road side surveys. We are unsure how these differences in 
sampling methodology would influence the pooled trend information 
presented, particularly for large geographical areas where two 
different sampling methods are used in the analysis. Third, the trend 
information presents only information gathered since 1997 or more 
recently, without considering historical survey information. The trends 
evident from sampling efforts since 1997 likely reflect increased 
sampling effort following publication of the Service's 12-month finding 
(63 FR 31400, June 9, 1998), and increased sampling effort could lead 
to biased results. Furthermore, trend analyses in general are dependent 
upon the timeframe chosen. The population reconstruction information 
used in Garton (2012, entire) shows that the lowest modeled abundance 
occurred in 1997, the starting point of Hagen's analysis. Thus, it is 
likely that a trend analysis for a different timeframe, dating either 
further back or more recently than 1997, would result in a different 
outcome. Further, Hagen's analysis does not consider the most recent 
rangewide aerial survey results, which were used to derive a population 
estimate of 17,616 individuals (90 percent upper and lower confidence 
intervals of 20,978 and 8,442 individuals, respectively) in 2013 
(McDonald et al. 2013, p. 24). This represents a substantial decrease 
in population estimates compared to recent years and inclusion of the 
2013 rangewide population estimates would likely change Hagen's 
analysis.

[[Page 20012]]

    In some instances, sampling methodology by agency likely varied 
between years during the analyzed time period as access to some study 
areas was restricted and new areas were established in their place. For 
example, in southwest Texas, two study areas were used until 1999, when 
an additional sampling area in Yoakum County was added. Then in 2007, 
the original Gaines County study area was dropped and a new, smaller 
Gaines County study area was established to replace the original study 
area. Similar changes occurred in the northeastern panhandle of Texas 
where a new study area in Gray County was added in 1998. These changes 
in sampling location can confound efforts to make comparisons between 
years. The interim assessment does not include an explanation regarding 
how these changes were addressed.
    We also recognize the limitations of using lek counts to derive 
population trends over large areas. The deficiencies and limitations of 
lek counts include that not all leks are known, making it difficult to 
draw a random or representative sample from which to make inferences; 
not all known leks are counted and those that are may not represent the 
full set of known leks; leks may not be well-defined with sharply or 
spatially defined boundaries; not all birds are present at a lek at any 
given time, as influenced by the date, time of day, weather conditions, 
the presence of predators, and other influences; the age composition of 
birds at a lek varies seasonally; not all birds at a lek are counted; 
and the number of times a lek is counted each year varies (Johnson and 
Rowland 2007, pp. 17-20). Consequently, we caution against using 
available data from lek counts to derive rangewide population trends as 
these analyses can be misleading. However, information on historical 
and recent lesser prairie-chicken population trends over large 
geographical areas would improve our analysis of the status of the 
species, and we support efforts to provide a reliable, accurate 
analysis of rangewide population trends, particularly if those 
analytical methods are repeatable over time and peer-reviewed.
State-by-State Information on Population Status
    Each of the State conservation agencies within the occupied range 
of the lesser prairie-chicken provided us with information regarding 
the current population estimates of the lesser prairie-chicken within 
their respective States, and most of the following information was 
taken directly from agency reports, memos, and other status documents. 
Population survey data are collected from spring lek surveys in the 
form of one or both of the following indices: Average lek size (i.e., 
number of males or total birds per lek); or density of birds or leks 
within a given area. Most typically, the data are collected along fixed 
survey routes where the number of displaying males counted is assumed 
to be proportional to the population size, or the number of leks 
documented is assumed to be an index of population size or occupied 
range. These techniques are useful in evaluating long-term trends and 
determining occupancy and distribution but are very limited in their 
usefulness for reliably estimating population size (Johnson and Rowland 
2007, pp. 17-20). However, given existing constraints, such as 
available staff and funding, they provide the best opportunity to 
assess lesser prairie-chicken populations.
    Although each State annually conducts lesser prairie-chicken 
surveys according to standardized protocols, those protocols vary by 
State. Thus, each State can provide information relative to lesser 
prairie-chicken numbers and trends by State, but obtaining consistent 
information across the entire range is difficult given the current 
approach to population monitoring. However, in the absence of more 
reliable estimators of bird density, total counts of active leks over 
large areas were recommended as the most reliable trend index for 
prairie grouse populations such as lesser prairie-chickens (Cannon and 
Knopf 1981, p. 777; Hagen et al. 2004, p. 79).
    Colorado--Lesser prairie-chickens were likely resident in six 
counties (Baca, Bent, Cheyenne, Kiowa, Kit Carson, and Prowers 
Counties) in Colorado prior to European settlement (Giesen 2000, p. 
140). At present, lesser prairie-chickens are known to occupy portions 
of Baca, Cheyenne, Prowers, and Kiowa Counties, but are not known to 
persist in Bent or Kit Carson Counties. Present delineated range 
includes portions of eastern Lincoln County where suitable habitat 
persists, although breeding birds have not been documented from this 
county. Populations in Kiowa and Cheyenne Counties number fewer than 
100 individuals and appear to be isolated from other populations in 
Colorado and adjacent States (Giesen 2000, p. 144). The lesser prairie-
chicken has been State-listed as threatened in Colorado since 1973. 
Colorado Department of Wildlife (now CPW) estimated 800 to 1,000 lesser 
prairie-chicken in the State in 1997. Giesen (2000, p. 137) estimated 
the population size, as of 2000, to be fewer than 1,500 breeding 
individuals (see Table 2, above).
    CPW has been monitoring leks annually since 1959, primarily by 
using standard survey routes (Hoffman 1963, p. 729). A new survey 
method was initiated in 2004, designed to cover a much broader range of 
habitat types and a larger geographic area, particularly to include 
lands enrolled in the CRP. The new methodology resulted in the 
discovery of more leks and the documented use of CRP fields by lesser 
prairie-chickens in Colorado. In 2011, CPW used aerial surveys in 
addition to the more traditional ground surveys in an attempt to 
identify new leks in Cheyenne County (Remington 2011).
    Lesser prairie-chicken populations in Colorado have declined 
steadily since 2011, likely the result of deteriorating habitat 
conditions due to prolonged drought (Smith 2013, pp. 1-3). In 2013, the 
total number of birds counted was 84, down from 105 birds in 2012, and 
161 birds in 2011 (Smith 2013, pp. 2-3). The number of active leks 
detected in 2013 was 10, down from 14 in 2012, and 17 in 2011. For this 
study, a lek is considered active when at least three males are 
observed displaying on the lek. There were three active leks in Baca 
County, four active leks in Prowers County, and three active leks in 
Cheyenne County. One of the leks detected in Cheyenne County was 
considered a new lek. The number of leks declined in all counties 
except Cheyenne since 2011. In 2011, there were six active leks in Baca 
County, nine active leks in Prowers County, and two active leks in 
Cheyenne County (Verquer and Smith 2011, pp. 1-2). No active leks have 
been detected in Kiowa County since 2008 (Verquer 2008, p. 1). Habitat 
provided by CRP is likely to be important to persistence of lesser 
prairie-chickens in Colorado.
    The annual survey report provides information on the total count of 
lesser prairie-chickens from 1977 to the present. Since 1977, the total 
number of birds observed during routine survey efforts has varied from 
a high of 448 birds in 1990, to a low of 74 birds in 2007. The general 
population trajectory, based on number of birds observed on active leks 
during the breeding season is declining, excluding information from 
1992, when limited survey data were collected. The number of active 
leks remained fairly stable between 1999 and 2006. During this period, 
the highest number of active leks recorded, 34, occurred in 2004 and 
again in 2006. The fewest number of active leks observed occurred in 
2002, when 24 leks were observed. The average number of active

[[Page 20013]]

leks observed between 1999 and 2006 was 30.1.
    Beginning in 2007 and continuing to present, the number of active 
leks observed has remained fairly stable. Since 2007, the highest 
recorded number of active leks was 18, which occurred in 2007. The 
fewest number of active leks observed was 10 recorded in 2013. The 
average number of active leks over this period was 16.4, roughly half 
of the average number of active leks (30) observed during the period 
between 1999 and 2006. Drought conditions observed in 2006, followed by 
severe winter weather, probably account for the decline in the number 
of lesser prairie-chickens observed in 2007 (Verquer 2007, pp. 2-3). In 
the winter of 2006-2007, heavy snowfall severely reduced food and cover 
in Prowers, southern Kiowa, and most of Baca Counties for over 60 days. 
Then, in the spring of 2008, nesting and brood rearing conditions were 
unfavorable due to drought conditions in southeastern Colorado (Verquer 
2009, p. 5).
    As a complement to, and included within, CPW surveys, counts are 
completed on the USFS Comanche National Grassland in Baca County. On 
the Comanche National Grassland, the estimated area occupied by the 
lesser prairie-chicken over the past 20 years was approximately 27,373 
ha (65,168 ac) (Augustine 2005, p. 2). Surveys conducted during 1984 to 
2005 identified 53 different leks on or immediately adjacent to USFS 
lands. Under this survey methodology, leks were identified based on the 
presence of at least three birds on the lek. Lek censuses conducted 
from 1980 to 2005 showed the number of males counted per lek since 1989 
has steadily declined (Augustine 2006, p. 4). The corresponding 
population estimate, based on number of males observed at leks, on the 
Comanche National Grassland was highest in 1988, with 348 birds, and 
was lowest in 2005, with approximately 64 birds and only 8 active leks 
(Augustine 2006, p. 4). The estimate of males per lek in 2005 declined 
more than 80 percent from that of 1988, from 174 males per lek to 32 
males per lek, respectively. In 2009, each historical lek was surveyed 
2 to 3 times, and 4 active leks were observed (Shively 2009b, p. 1). A 
high count of 25 males was observed using these four leks. In the 
spring of 2008, five active leks and 34 birds were observed (Shively 
2009a, p. 3).
    Kansas--In the early part of the last century, the lesser prairie-
chicken's historical range included all or part of 38 counties, but by 
1977, the species was known to exist in only 17 counties, all located 
south of the Arkansas River (Waddell and Hanzlick 1978, pp. 22-23). 
Since 1999, biologists have documented lesser prairie-chicken expansion 
and reoccupation of 17 counties north of the Arkansas River, primarily 
attributable to favorable habitat conditions (e.g., native grasslands) 
created by implementation of the CRP in those counties. Currently, 
lesser prairie-chickens occupy approximately 34,479 sq km (13,312 sq 
mi) within all or portions of 35 counties in western Kansas. Greater 
prairie-chickens in Kansas also have expanded their range, and, as a 
result, mixed leks of both lesser prairie-chickens and greater prairie-
chickens occur within an overlap zone covering portions of 7 counties 
(2,500 sq km (965 sq mi)) in western Kansas (Bain and Farley 2002, p. 
684). Within this zone, apparent hybridization between lesser prairie-
chickens and greater prairie-chickens is now evident (Bain and Farley 
2002, p. 684). Three survey routes (162.65 sq km, 62.8 sq mi) used by 
KDWPT are located within this overlap zone. Although hybrid individuals 
are included in the counts, the number of hybrids observed is typically 
less than 5 percent of the total number of individual birds observed on 
the surveyed areas annually. In 2013, seven hybrid individuals, 
representing 3 percent of the birds observed, were detected (Pitman 
2013, p.10). These hybrids were detected on survey routes in Gove, 
Ness, and Logan counties.
    Since inception of standard lesser prairie-chicken survey routes in 
1967, the number of standard survey routes has gradually increased. The 
number of standard routes currently surveyed in Kansas for lesser 
prairie-chickens is 14, and encompasses an area of 679.3 sq km (262.3 
sq mi). Flush counts are taken twice at each lek located during the 
standard survey routes. An estimated population density is calculated 
for each route by taking the higher of the two flush counts, doubling 
that count primarily to account for females, and then dividing the 
estimated number of birds by the total area surveyed per route. The 
current Statewide trend in lesser prairie-chicken abundance between 
2004 and 2013 indicates a declining population (Pitman 2013, p. 15). 
The KDWPT reported that recent declines are largely due to severe 
drought, which negatively impacted habitat quality, and not to 
significant habitat loss (Pitman 2013, p. 15).
    In 2006, KDWPT estimated the breeding population of lesser prairie-
chickens in the State to be between 19,700 and 31,100 individuals 
(Rodgers 2007a, p. 1). The total breeding population estimates were 
derived using the National Gap Analysis Program, where the population 
indices from each habitat type along 15 survey routes were extrapolated 
for similar habitat types throughout total occupied lesser prairie-
chicken range Statewide.
    New Mexico--In the 1920s and 1930s, the former range of the lesser 
prairie-chicken in New Mexico was described as all of the sand hill 
rangeland of eastern New Mexico, from Texas to Colorado, and as far 
west as Buchanan in DeBaca County. Ligon (1927, pp. 123-127) mapped the 
breeding range at that time as encompassing portions of seven counties, 
a small subset of what he described as former range. Ligon (1927, pp. 
123-127) depicted the historical range in New Mexico as encompassing 
all or portions of 12 counties. In the 1950s and 1960s, occupied range 
was more extensive than the known occupied range in 1927 (Davis 2005, 
p. 6), indicating reoccupation of some areas since the late 1920s. 
Presently, the NMDGF reports that lesser prairie-chickens are known 
from six counties (Chaves, Curry, DeBaca, Lea, Roosevelt, and Quay 
Counties) and suspected from one additional county (Eddy County). The 
occupied range of the lesser prairie-chicken in New Mexico is 
conservatively estimated to encompass approximately 5,698 sq km (2,200 
sq mi) (Davis 2006, p. 7) compared with its historical range of 22,390 
sq km (8,645 sq mi). Based on the cooperative mapping efforts conducted 
by the Playa Lakes Joint Venture and the Lesser Prairie-Chicken 
Interstate Working Group, occupied range in New Mexico was estimated to 
be 8,570 sq km (3,309 sq mi), considerably larger than the conservative 
estimate used by Davis (2006, p. 7). One possible reason for the 
difference in occupied range is that Davis (2006, p. 7) did not 
consider the known distribution to encompass any portion of Eddy County 
or southern Lea County. Approximately 59 percent of the historical 
lesser prairie-chicken range in New Mexico is privately held, with the 
remaining historical and occupied range occurring on lands managed by 
the BLM, USFS, and New Mexico State Land Office (Davis 2005, p. 12).
    In the 1950s, the lesser prairie-chicken population in New Mexico 
was estimated at 40,000 to 50,000 individuals, but, by 1968, the 
population had declined to an estimated 8,000 to 10,000 individuals 
(Sands 1968, p. 456). Johnsgard (2002, p. 51) estimated the number of 
lesser prairie-chickens in New Mexico at fewer than 1,000 individuals 
by 2001. Similarly,

[[Page 20014]]

the Sutton Center estimated the New Mexico lesser prairie-chicken 
population to number between 1,500 and 3,000 individuals, based on 
observations made over a 7-year period from the late 1990s to mid-2000s 
(Wolfe 2007, pers. comm.). Using lek survey data, NMDGF currently 
estimates the Statewide lesser prairie-chicken population in 2013 to be 
about 1,705 birds (Beauprez 2013, p. 6). This is the lowest estimated 
spring breeding population observed since 2001 and represents a 72 
percent decline in estimated population size since 2011 (Beauprez 2013, 
pp. 16-17). The total number of leks detected in 2013 also was the 
lowest on record (Beauprez 2013, p. 16). Longer term trends are not 
available as roadside listening routes did not become established until 
1998. Prior to that date, counts were conducted on some of the NMDGF 
Prairie Chicken Areas or on lands under the jurisdiction of the BLM. 
The current roadside survey uses 29 standard routes established since 
1999, 10 additional routes established in 2003 within the northeastern 
part of lesser prairie-chicken historical range, and 41 routes randomly 
selected from within the 382 townships located within the survey 
boundary. The NMGF reported that population declines observed since 
2011 are believed to be at least partially attributed to poor nesting 
and brood rearing habitat due to the persistent drought (Beauprez 2013, 
p. 17).
    Since initiating the 10 additional northeastern routes in 2003, 
NMDGF reports that no leks have been detected in northeastern New 
Mexico. Results provide strong evidence that lesser prairie-chickens no 
longer occupy their historical range within Union, Harding, and 
portions of northern Quay Counties (Beauprez 2009, p. 8). However, a 
solitary male lesser prairie-chicken was observed and photographed in 
northeastern New Mexico by a local wildlife law enforcement agent in 
December 2007. Habitat in northeastern New Mexico appears capable of 
supporting lesser prairie-chickens, but the lack of any known leks in 
this region since 2003 suggests that lesser prairie-chicken populations 
in northeastern New Mexico, if still present, are very small.
    The core of occupied lesser prairie-chicken range in this State 
lies in east-central New Mexico (Chaves, Curry, DeBaca, Lea, and 
Roosevelt Counties). Populations in southeastern New Mexico, defined as 
the area south of U.S. Highway 380, remain low and continue to decline. 
The majority of historically occupied lesser prairie-chicken habitat in 
southeastern New Mexico occurs primarily on BLM land. Snyder (1967, p. 
121) suggested that this region is only marginally populated except 
during favorable climatic periods. Best et al. (2003, pp. 225, 232) 
concluded anthropogenic factors including, but not limited to, 
incompatible livestock grazing, habitat conversion, and shrub control 
have, in part, rendered lesser prairie-chicken habitat south of U.S. 
Highway 380 inhospitable for long-term survival of lesser prairie-
chickens in southeastern New Mexico. Similarly, NMDGF suggests that 
habitat quality likely limits recovery of populations in southeastern 
New Mexico (Beauprez 2009, p. 13).
    The New Mexico State Game Commission owns and manages 30 Prairie 
Chicken Areas ranging in size from 10.5 to 3,171 ha (29 to 7,800 ac) 
within the core of occupied range in east central New Mexico. These 
Prairie Chicken Areas total approximately 109 sq km (42 sq mi), or 
roughly 1.6 percent of the total occupied lesser prairie-chicken range 
in New Mexico. Instead of the typical roadside counts, the NMDGF 
conducts ``saturation'' surveys on each individual Prairie Chicken Area 
to determine the presence of lesser prairie-chicken leks and individual 
birds over the entire Prairie Chicken Area (Beauprez 2013, p. 8). Lands 
adjacent to the Prairie Chicken Areas are included within these 
surveys, including other State Trust Lands, some adjacent BLM lands, 
and adjacent private lands. The results of these saturation counts are 
included in their estimate of the spring breeding population size. The 
Prairie Chicken Areas are important to persistence of the lesser 
prairie-chicken in New Mexico. However, considering the overall extent 
of the Prairie Chicken Areas and that many Prairie Chicken Areas are 
small and isolated, continued management of the surrounding private, 
Federal and trust lands is integral to viability of the lesser prairie-
chicken in New Mexico.
    Oklahoma--Lesser prairie-chickens historically occurred in 22 
Oklahoma counties. By 1961, Copelin (1963, p. 53) reported lesser 
prairie-chickens from only 12 counties. By 1979, lesser prairie-
chickens were verified in eight counties, and the remaining population 
fragments encompassed an estimated area totaling 2,792 sq km (1,078 sq 
mi), a decrease of approximately 72 percent since 1944. At present, the 
ODWC reports lesser prairie-chickens continue to persist in eight 
counties with an estimated occupied range of approximately 950 sq km 
(367 sq mi). Horton (2000, p. 189) estimated the entire Oklahoma lesser 
prairie-chicken population numbered fewer than 3,000 birds in 2000. A 
more recent estimate has not been conducted.
    The ODWC is aware of 96 known historical and currently active leks 
in Oklahoma. During the mid-1990s, all of these leks were active. 
Systematic survey efforts to document the current number of active leks 
over the occupied range were completed in 2011. About 220 survey routes 
were conducted over 11 counties in northwestern Oklahoma (Larsson et 
al. 2012, p. 1). In total, 72 active leks were detected. No leks were 
detected in either Cimarron or Beckham Counties.
    The number of roadside listening routes currently surveyed annually 
in Oklahoma has varied from five to seven over the last 20 years, and 
counts of the number of males per lek have been conducted since 1968. 
Beginning with the 2002 survey, male counts at leks were replaced with 
flush counts, which did not differentiate between the sexes of birds 
flushed from the surveyed lek (ODWC 2007, pp. 2, 6). Comparing the 
total number of males observed during survey efforts between the years 
1977 through 2001 reveals a declining trend. However, the overall 
density of leks (number per sq mi), another means of evaluating 
population status of lesser prairie-chickens, for five of the standard 
routes since 1985 is stable to slightly declining. Information on lek 
density prior to 1985 was unavailable. The standard route in Roger 
Mills County was not included in this analysis because the lek was 
rarely active and has not been surveyed since 1994. A survey route in 
Woods County was included in the analysis even though surveys on this 
route did not begin until 2001. However, excluding the Woods County 
route did not alter the apparent trend. The average lek density since 
2001 is 0.068 leks per sq mi (Schoeling 2010, p. 3). Between 1985 and 
2000, the average lek density was 0.185 leks per sq mi, when the route 
in Roger Mills County is excluded from the analysis. Over the last 10 
years, the density of active leks has varied from a low of 0.02 leks 
per sq km (0.05 leks per sq mi) in 2004, 2006, and 2009, to a high of 
0.03 leks per sq km (0.09 leks per sq mi) in 2005 and 2007 (Schoeling 
2010, p. 3).
    Texas--Systematic surveys to identify Texas counties inhabited by 
lesser prairie-chickens began in 1940 (Henika 1940, p. 4). From the 
early 1940s (Henika 1940, p. 15; Sullivan et al. 2000) to mid-1940s 
(Litton 1978, pp. 11-12), to the early 1950s (Seyffert 2001, pp. 108-
112), the range of the lesser prairie-chicken in Texas was estimated to 
encompass all or portions of 34 counties. Species experts considered 
the occupied range at that

[[Page 20015]]

time to be a reduction from the presettlement range. By 1989, TPWD 
estimated occupied range encompassed all or portions of only 12 
counties (Sullivan et al. 2000, p. 179). In 2005, TPWD reported that 
the number of occupied counties likely has not changed since the 1989 
estimate. In March 2007, TPWD reported that lesser prairie-chickens 
were confirmed from portions of 13 counties (Ochiltree, Lipscomb, 
Roberts, Hemphill, Gray, Wheeler, Donley, Bailey, Lamb, Cochran, 
Hockley, Yoakum, and Terry Counties) and suspected in portions of 
another 8 counties (Moore, Carson, Oldham, Deaf Smith, Randall, 
Swisher, Gaines, and Andrews Counties).
    Based on aerial and road surveys conducted in 2010 and 2011, new 
leks were detected in Bailey, Cochran, Ochiltree, Roberts, and Yoakum 
Counties, expanding the estimated occupied ranges in those counties 
(TPWD 2011). However, no lesser prairie-chickens were detected in 
Andrews, Carson, Deaf Smith, Oldham, or Randall Counties. Active leks 
were reported from the same 13 counties identified in 2007. However, in 
2012, Timmer (2012, pp. 36, 125-131) observed lesser prairie-chickens 
in only 12 counties: Bailey, Cochran, Deaf Smith, Donley, Gray, 
Hemphill, Lipscomb, Ochiltree, Roberts, Terry, Wheeler, and Yoakum. 
Lesser prairie-chicken populations in Texas primarily persist in two 
disjunctive regions--the Permian Basin/Western Panhandle region and the 
Northeastern Panhandle region.
    Maximum occupied range in Texas, as of September 2007, was 
estimated to be 12,787 sq km (4,937.1 sq mi), based on habitat 
conditions in 20 panhandle counties (Davis et al. 2008, p. 23). 
Conservatively, based on those portions of the 13 counties where lesser 
prairie-chickens are known to persist, the area occupied by lesser 
prairie-chickens in Texas is 7,234.2 sq km (2,793.1 sq mi). Using an 
estimated mean density of 0.0088 lesser prairie-chickens per ac (range 
0.0034-0.0135 lesser prairie-chickens per ac), the Texas population was 
estimated at a mean of 15,730 individuals in the 13 counties where 
lesser prairie-chickens are known to occur (Davis et al. 2008, p. 24).
    Since 2007, Texas has been evaluating the usefulness of aerial 
surveys as a means of detecting leks and counting the number of birds 
attending the identified lek (McRoberts 2009, pp. 9-10). Initial 
efforts focused on measuring lek detectability and assessing the 
response of lekking birds to disturbance from survey aircraft. More 
recently, scientists at Texas Tech University used aerial surveys to 
estimate the density of lesser prairie-chicken leks and Statewide 
abundance of lesser prairie-chickens in Texas. This study conducted an 
inventory of 208 survey blocks measuring 7.2 by 7.2 km (4.5 by 4.5 mi), 
encompassing some 87 percent of the occupied range in Texas during the 
spring of 2010 and 2011 (Timmer 2012, pp. 26-27, 33). Timmer (2012, p. 
34) estimated 2.0 leks per 100 sq km (0.02 leks per sq km). Previously 
reported estimates of rangewide average lek density varied from 0.10 to 
0.43 leks per sq km (Davison 1940; Sell 1979; Giesen 1991; Locke 1992 
as cited in Hagen and Giesen 2005, unpaginated). The total estimate of 
the number of leks was 293.6 and, based on the estimated number of 
birds observed using leks, the statewide population was determined to 
be 1,822.4 lesser prairie-chickens (Timmer 2012, p. 34).
    Lesser prairie-chicken population trends in Texas, based on annual 
monitoring efforts, have been declining over the last 15 years (1997-
2012), with the exception of the Bailey County Study Area (Martin 2013, 
p. 9). However the Bailey County Study Area has not been surveyed since 
2007, so recent trend information from this area is unavailable. Since 
2010, the overall average number of males per lek have declined, but 
the density of leks (number per square mile) has remained fairly 
constant (Martin 2013, p. 11).
Summary of Population Status Information
    Lesser prairie-chicken populations are distributed over a 
relatively large area, and these populations can fluctuate considerably 
from year to year, a natural response to variable weather and habitat 
conditions. Changes in lesser prairie-chicken breeding populations may 
be indicated by a change in the number of birds attending a lek (lek 
size), the number of active leks, or both. Although each State conducts 
standard surveys for lesser prairie-chickens, the application of survey 
methods and effort varies by State. Such factors complicate 
interpretation of population indices for the lesser prairie-chicken and 
may not reliably represent actual populations. Caution should be used 
in evaluating population trajectories, particularly short-term trends. 
In some instances, short-term analyses could reveal statistically 
significant changes from one year to the next but actually represent a 
stable population when evaluated over longer periods of time. For 
example, increased attendance of males at leks may be evident while the 
number of active leks actually declined.
    An examination of anecdotal information on historical numbers of 
lesser prairie-chickens indicates that numbers likely have declined 
from possibly millions of birds to current estimates of thousands of 
birds. Examination of the trends in the five lesser prairie-chicken 
States for most indicator variables, such as males per lek and lek 
density, over the last 3 years shows the trends are indicative of 
declining populations. Much of these recent declines are due, at least 
in part, to habitat degradation resulting from incidence of severe 
drought over much of the occupied range. Habitat conditions may improve 
with the return of more normal precipitation patterns in the near 
future. However, the numbers of lesser prairie-chickens reported per 
lek are considerably fewer than the numbers reported during the 1970s. 
While habitat conditions may improve in the future, the low lek 
attendance observed at many leks is likely due to longer term 
reductions in population size. It is unlikely that populations will 
recover to historical levels observed just 40 years ago, particularly 
when considered in light of the loss and alteration, including 
fragmentation, of lesser prairie-chicken habitat throughout its 
historical range over the past several decades. Information regarding 
habitat loss and fragmentation, as well as other factors, impacting the 
lesser prairie-chicken is provided in the sections that follow.

Summary of Factors Affecting the Species

    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' Thus, a species may be listed as a 
threatened species if it is likely to qualify for endangered status in 
the foreseeable future, or in other words, likely to become ``in danger 
of extinction'' within the foreseeable future. The Act does not define 
the term ``foreseeable future.'' However, in a January 16, 2009, 
memorandum addressed to the Acting Director of the Service, the Office 
of the Solicitor, Department of the Interior, concluded, ``. . . as 
used in the [Act], Congress intended the term `foreseeable future' to 
describe the extent to which the Secretary can reasonably rely on 
predictions about the future in making determinations about the future 
conservation status of the species'' (M-37021, January 16, 2009).

[[Page 20016]]

    In considering the foreseeable future as it relates to the status 
of the lesser prairie-chicken, we considered the factors acting on the 
species and looked to see if reliable predictions about the status of 
the species in response to those factors could be drawn. We considered 
the historical data to identify any relevant existing trends that might 
allow for reliable prediction of the future (in the form of 
extrapolating the trends). We also considered whether we could reliably 
predict any future events that might affect the status of the species, 
recognizing that our ability to make reliable predictions into the 
future is limited by the variable quantity and quality of available 
data.
    Under section 4(a)(1) of the Act, we determine whether a species is 
an endangered or threatened species because of any of the following 
five factors: (A) The present or threatened destruction, modification, 
or curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; and (E) other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination.
    After a review of the best available scientific information as it 
relates to the status of the species and the five listing factors 
described above, we have determined that the lesser prairie-chicken 
meets the definition of a threatened species (i.e., is likely to become 
in danger of extinction in the foreseeable future throughout all or a 
significant portion of its range). Following, we present a very brief 
explanation of the rationale leading to this conclusion followed by an 
in-depth discussion of the best available scientific information.
    The range of the lesser prairie-chicken has been reduced by an 
estimated 84 percent (see discussion above in ``Current Range and 
Distribution''). The primary factor responsible for the range reduction 
is habitat fragmentation due to a variety of mechanisms that contribute 
to habitat loss and alteration. This habitat loss significantly 
increases the extinction risk for the lesser prairie-chicken because 
the species requires large parcels of intact native grassland and 
shrubland, often in excess of 8,100 ha (20,000 ac) to maintain self-
sustaining populations (Woodward et al. 2001, p. 261; Flock 2002, p. 
130; Fuhlendorf et al. 2002a, p. 618; Davis 2005, p. 3). Further, the 
life history of the species, primarily its lek breeding system and 
behavioral avoidance of vertical structures that increase predation 
risk, make it especially vulnerable to ongoing impacts on the 
landscape, especially at its currently reduced numbers. The total 
estimated population abundance in 2013 dropped to 17,616 individuals 
(90 percent upper and lower confidence intervals of 20,978 and 8,442 
individuals, respectively) from 34,440 individuals (90 percent upper 
and lower confidence intervals of 52,076 and 21,718 individuals, 
respectively) in 2012 (McDonald et al. 2013, p. 24). Finally, the 
species has a reduced population size and faces ongoing habitat loss 
and degradation. The species will lack sufficient redundancy and 
resiliency to ensure its viability from present and future threats. 
While the current status of the lesser prairie-chicken has been 
substantially compromised by historical and current threats, there 
appear to be sufficient stable populations to ensure the persistence of 
the species over the near term. That is, the Service does not believe 
the species is currently at risk of extinction. However, as a result of 
continued population declines predicted into the future, the species is 
likely to become in danger of extinction in the foreseeable future.
    Following, we present our analysis of the best available scientific 
and commercial data that has led to this conclusion.

Habitat Fragmentation

    Spatial habitat fragmentation occurs when some form of disturbance, 
usually habitat alteration or loss, results in the separation or 
splitting apart of larger, previously contiguous, functional components 
of habitat into smaller, often less valuable, noncontiguous parcels 
(Wilcove et al. 1986, p. 237; Johnson and Igl 2001, p. 25; Franklin et 
al. 2002, entire). Fragmentation influences habitat availability and 
quality in three primary ways: Total area of available habitat; size of 
habitat patches, including edge effects; and patch isolation (Johnson 
and Igl 2001, p. 25; Stephens et al. 2003, p. 101). Initially, 
reduction in the total area of available habitat (i.e., habitat loss) 
may be more significant than fragmentation and can exert a much greater 
effect of extinction (Fahrig (1997, pp. 607, 609). However, as habitat 
loss continues, the effects of fragmentation often compound effects of 
habitat loss and produce even greater population declines than habitat 
loss alone (Bender et al. 1998, pp. 517-518, 525). At the point where 
some or all of the remaining habitat fragments or patches are below 
some minimum required size, the impact of additional habitat loss, when 
it consists of inadequately sized parcels, is minimal (Herkert 1994, p. 
467). In essence, once a block of suitable habitat becomes so 
fragmented that the size of the remaining patches become biologically 
unsuitable, the continued loss of these smaller, suitable patches, is 
of little further consequence to the species (Bender et al. 1998, p. 
525).
    Both habitat loss and fragmentation correlate with an ecological 
concept known as carrying capacity. Within any given block or patch of 
habitat, carrying capacity is the maximum number of organisms that can 
be supported indefinitely within that area, provided sufficient food, 
space, water, and other necessities are available, without causing 
degradation of the habitat within that patch. Theoretically, as habitat 
loss increases and the size of an area shrinks, the maximum number of 
individuals that could inhabit that particular habitat patch also would 
decline. Consequently, a reduction in the total area of available 
habitat can negatively influence biologically important characteristics 
such as the amount of space available for establishing territories and 
nest sites (Fahrig 1997, p. 603). Over time, the continued conversion 
and loss of habitat to other land uses will reduce the ability of the 
land to support historical population levels, causing a decline in 
population sizes. Where the ability to effect restoration of these 
habitats is lost, the observed reduction in fish or wildlife 
populations is likely to be permanent.
    Fragmentation not only contributes to overall habitat loss but also 
causes a reduction in the size of individual habitat patches and 
influences the proximity of these patches to other patches of similar 
habitat (Stephens et al. 2003, p. 101; Fletcher 2005, p. 342). Habitat 
quality for many species is a function of fragment size and declines as 
the size of the fragment decreases (Franklin et al. 2002, p. 23). 
Fahrig and Merriam (1994, p. 53) reported that both the size and shape 
of the fragment have been shown to influence population persistence in 
many species. The size of the fragment can influence reproductive 
success, survival, and movements. As the distance between habitat 
fragments increases, dispersal between the habitat patches may become 
increasingly limited and ultimately cease, impacting population 
persistence and potentially leading to both localized and regional 
extinctions (Harrison and Bruna 1999, p. 226; With et al. 2008, p. 
3153).
    The proportion of habitat edge to interior habitat increases as the 
size of a fragment declines. The edge is the transition zone between 
the original

[[Page 20017]]

habitat type and the adjacent altered habitat. In contrast, the core is 
the area within a fragment that remains intact and is largely or 
completely uninfluenced by the margin or edge of the fragment. Edge 
habitat proliferates with increasing fragmentation (Sisk and Battin 
2002, p. 31). The response of individual species to the presence of 
edges varies markedly depending on their tolerance to the edge and the 
nature of its effects (Sisk and Battin 2002, p. 38). The effects often 
depend on the degree of contrast between the habitat edge and the 
adjacent land use matrix. The transition can be abrupt or something 
more gradual and less harsh. Most typically, edges to influence 
movements and survival, particularly for species that use interior or 
core habitats, serve as points of entry for parasites and predators 
(such as presence of fences adjacent to grasslands which provide 
hunting perches for avian predators), alter microclimates, subsidize 
feeding opportunities (such as providing access to waste grains in 
cropland areas), and influence species interactions, particularly with 
cosmopolitan species that tend to be habitat generalists (Sisk and 
Battin 2002, p. 38).
    Fragmentation also can influence the heterogeneity or variation 
within the resulting fragment. Heterogeneity, in turn, influences the 
quality of the habitat within the fragment, with more homogeneous 
fragments generally being less valuable. Grasslands tend to be 
structurally simple and have little vertical layering. Instead, habitat 
heterogeneity tends to be largely expressed horizontally rather than 
vertically (Wiens 1974b, pp. 195-196). Prior to European settlement, 
the interaction of grazing by wild ungulates, drought and fire created 
a shifting mosaic of vegetative patches having various composition and 
structure (Derner et al. 2009, p. 112; Pillsbury et al. 2011, p. 2). 
Under these conditions, many grassland birds distribute their 
behavioral activities unevenly throughout their territories by nesting 
in one area, displaying in another, and foraging in still others (Wiens 
1974b, p. 208). Lesser prairie-chickens exhibit this pattern and cue on 
specific vegetation structure and microenvironment features depending 
on the specific phase of their life cycle. Consequently, blocks of 
habitat that collectively or individually encompass multiple 
successional states that comprise tall grasses and shrubs needed for 
nesting, and are in proximity to more open grasslands supporting forbs 
for brood rearing, and are combined with smaller areas of short grass 
and bare ground used for breeding, support all of the habitat types 
used by lesser prairie-chickens throughout the year. Considering 
habitat diversity tends to be greater in larger patches, finding the 
appropriate mosaic of these features is more likely in larger fragments 
rather than smaller fragments (Helzer and Jelinski 1999, p. 1456).
    Such habitat heterogeneity is very different from habitat 
fragmentation. Habitat fragmentation occurs when the matrix separating 
the resulting fragments is converted to a use that is not considered 
habitat whereas habitat heterogeneity implies that patches each having 
different vegetative structure exist within the same contiguous block 
of habitat. Habitat heterogeneity may influence habitat quality, but it 
does not represent fragmentation (Franklin et al. 2002, p. 23).
    Isolation is another factor that influences suitability of habitat 
fragments. As habitat loss continues to progress over time, the 
remnants not only become smaller and more fragmented, they become more 
isolated from each other. When habitat patches become more isolated and 
the amount of unusable, unsuitable land use surrounding the islands of 
habitat increases, even patches of suitable quality and size may no 
longer be occupied. As fragmentation progresses, the ability of 
available dispersers to locate suitable fragments will decline. At some 
point, the amount of intervening unusable and unsuitable land 
comprising the matrix between the patches grows so wide that it exceeds 
the organism's dispersal capabilities, rendering the matrix impermeable 
to dispersal. In such instances, colonizers are unavailable to occupy 
the otherwise suitable habitat and reestablish connectivity. While 
extinctions at the local level, and subsequent recolonization of the 
vacant patch, are common phenomena, recolonization depends on the 
availability of dispersing individuals and their ability to disperse 
within the broader landscape (Fahrig and Merriam 1994, p. 52). Without 
available dispersing individuals with the ability to disperse, these 
isolated patches may remain vacant indefinitely. When the number of 
individuals at the landscape or regional level that are available to 
disperse declines, the overall population begins to decline and will, 
in turn, affect the number of individuals available to disperse. 
Connectivity between habitat patches is one means of facilitating 
dispersal, but the appropriate size or configuration of the dispersal 
corridors needed to facilitate connectivity for many species is 
unknown. The rangewide plan (Van Pelt et al. 2013, p. 77), delineates 
connectivity zones based on criteria that provide a foundation upon 
which to base suitable dispersal corridors for the lesser prairie-
chicken. Suitable dispersal corridors should contain at least 40 
percent good to high quality habitat, be at least 8 km (5 mi) wide and 
contain few, if any, features, such as roads or transmission lines, 
that function as barriers to movement. Additionally, suitable habitat 
patches within a corridor should be separated by no more than 3.2 km (2 
mi). In the absence of specific studies that define suitable dispersal 
corridors, the criteria provided in the rangewide plan (Van Pelt et al. 
2013, p. 77) provide suitable guidelines that can be used to facilitate 
development of appropriate dispersal corridors.
Causes of Habitat Fragmentation Within Lesser Prairie-Chicken Range
    A number of factors can cause or contribute to habitat 
fragmentation. Generally, fragmentation can result from the direct loss 
or alteration of habitat due to conversion to other land uses or from 
habitat alteration which indirectly leaves the habitat in such a 
condition that the remaining habitat no longer functionally provides 
the preferred life-history requisites needed to support breeding or 
feeding or to provide shelter. Functional habitat impacts can include 
disturbances that alter the existing successional state of a given 
area, create a physical barrier that precludes use of otherwise 
suitable areas, or triggers a behavioral response by the organism such 
that otherwise suitable habitats are abandoned or no longer used. 
Fragmentation tends to be most significant when human developments are 
dispersed across the landscape rather than being concentrated in fewer 
areas. Anthropogenic causes of fragmentation tend to be more 
significant than natural causes because the organism has likely evolved 
in concert with the natural causes.
    Initially, settlement and associated land use changes had the 
greatest influence on fragmentation in the Great Plains. Knopf (1994, 
p. 249) identified four universal changes that occurred in Great Plains 
grasslands postsettlement, based on an evaluation of observations made 
by early explorers. These changes were identified as a change in the 
native grazing community, cultivation, wetland conversion, and 
encroachment of woody vegetation.
    EuroAmerican settlement of much of the Great Plains began in 
earnest with passage of the Homestead Act of 1862.

[[Page 20018]]

Samson et al. (2004, p. 7) estimated that about 1.5 million people 
acquired over 800,000 sq km (309,000 sq mi) of land through the 
Homestead Act, mostly within the Great Plains region. Continued 
settlement and agricultural development of the Great Plains during the 
late 1800s and early 1900s, facilitated by railroad routes and cattle 
and wagon trails, contributed to conversion and fragmentation of once 
open native prairies into an assortment of varied land uses and habitat 
types such as cultivated cropland, expanding cedar woodlands, and 
remnants of grassland (NRCS 1999, p. 1; Coppedge et al. 2001, p. 47; 
Brennan and Kuvlesky 2005, pp. 2-3). This initial settlement altered 
the physical characteristics of the Great Plains and the biodiversity 
found in the prairies (Samson et al. 2004, p. 7). Changes in 
agricultural practices and advancement of modern machinery combined 
with an increasing demand for agricultural products continued to spur 
conversion of native prairies well into the mid-1900s (NRCS 1999a, p. 
2). Increasing human population densities in rural areas of the Great 
Plains led to construction of housing developments as growing cities 
began to expand into the surrounding suburban landscapes. Development 
and intensification of unsuitable land uses in these urbanizing 
landscapes also contributed to conversion and fragmentation of 
grasslands, further reducing richness and abundance of avian 
populations (Perlut et al. 2008, p. 3149; Hansen et al. 2011, p. 826). 
See additional discussions related to population growth and settlement 
below.
    Oil and gas development began during the mid to late 1800s. 
Eventually, invention of the automobile in the early twentieth century 
and its rise to prominence as the primary mode of personal 
transportation stimulated increased exploration and development of oil 
and gas (Hymel and Wolfsong 2006, p. 4). Habitat loss and fragmentation 
associated with access roads, drill pads, pipelines, waste pits, and 
other components typically connected with exploration and extraction of 
oil and gas are considered to be among the most significant ecological 
impacts from oil and gas development and the impacts often extend 
beyond the actual physical structures (Weller et al. 2002, p. 2). See 
the section on energy development below for related discussion.
    Information on human population size and growth in the five lesser 
prairie-chicken States is collected by the U.S. Census Bureau, and 
recent trends have been reported by the USDA Economic Research Service 
(2013). Population size in each of the five States has grown since 
1980. The percent population growth since 2010 varies from a low of 1.1 
percent in Kansas to a high of 3.6 percent in Texas. Examination of 
growth in human populations within rural areas reveals that rural 
populations also have grown in every State except Kansas since 1980. In 
Kansas, rural population size during this period peaked in 1980.
    Human population trends within the counties that encompass the 
estimated occupied range of the lesser prairie-chicken were 
inconsistent and varied considerably across the range. For example, in 
Colorado since 2010, human populations declined by about 1 percent in 
both Baca and Prowers counties but populations in both Cheyenne and 
Kiowa counties grew by at least 2.1 percent. However, since 1990, 
populations in all four counties have declined. Similar trends were 
observed in Oklahoma with five counties having a declining population 
and four showing increasing human populations since 2010. But unlike 
Colorado, three counties within the estimated occupied range in 
Oklahoma have increased in population size since 1990. In New Mexico, 
most, but not all, of the counties within the estimated occupied range 
of the lesser prairie-chicken have increased since 1990.
    We used projections of human population growth, based on U.S. 
Census Bureau data, developed by the U.S. Forest Service for their 
Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA) 
Assessment to forecast how human populations within the estimated 
historical and occupied ranges of the lesser prairie-chicken would 
change into the future. The USFS used a medium population growth 
scenario, taking the implications of climate change into consideration, 
to predict how human populations nationwide would change between 2010 
and 2060 (U.S. Forest Service 2012, entire). Using the counties 
encompassed within the historical and estimated occupied range, we were 
able to determine, by range within the respective States, how human 
populations would be projected to change by 2060.
    In Colorado within the historical range, two of the six counties 
were projected to experience a decline in human population while the 
remaining four counties were expected to see an increase in human 
population growth rate. The overall net gain in population size over 
the 50 year period was 3,490 individuals. Within the four counties 
located within the estimated occupied range, projected population size 
was predicted to decline in two counties and increase in two counties. 
The overall net gain in human population size within the estimated 
occupied range in Colorado by 2060 was 280 individuals.
    In the Kansas historical range, 29 counties were projected to 
experience a decline in human population while the remaining 13 
counties were expected to see an increase in population. The overall 
net gain in population size over the 50 year period in the 29 counties 
within the Kansas historical range was 22,376 individuals. Within just 
the counties located within the estimated occupied range, projected 
population size was predicted to decline in 24 counties and increase in 
11 counties. The overall net gain in human population size within the 
Kansas portion of the estimated occupied range by 2060 was 39,190 
individuals.
    In Oklahoma, similar trends for both the historical and estimated 
occupied ranges were predicted. Nineteen counties within the historical 
range were projected to experience a decline in human population. The 
overall net gain in population size over the 50 year period within the 
estimated historical range was 85,310 individuals. Within the nine 
counties that comprise the estimated occupied range, projected 
population size was predicted to decline in seven counties and increase 
in two counties. The overall net gain in human population size within 
the Oklahoma estimated occupied range by 2060 was 5,830 individuals.
    In Texas, where the largest extent of historical range occurs, 
human population growth was projected to be larger than those projected 
in the previous three States. Within the historical range, 43 counties 
were projected to experience a decline in human population while the 
remaining 51 counties were projected to see an increase in population. 
The overall net gain in population size over the 50 year period in the 
counties within the estimated historical range was 368,770 individuals. 
Within the estimated occupied range of Texas, human populations were 
projected to decline in 12 counties and increase in eight counties. The 
overall net gain in human population size within the estimated occupied 
range by 2060 was 61,780 individuals.
    Population growth in New Mexico is expected to be more substantial 
than in the other States. Within the historical range, only two 
counties were projected to experience a decline in human population 
while the remaining nine counties were projected see an increase in 
population. The overall net gain in

[[Page 20019]]

human population size over the 50 year period in the counties within 
the estimated historical range was estimated to be 89,380 individuals. 
Within the counties located within the estimated occupied range, 
projected population size was predicted to decline in one county and 
increase in six counties. The projected overall net gain in human 
population size within the New Mexico portion of the estimated occupied 
range by 2060 was 81,690 individuals.
    Overall, within the historical range human population growth is 
projected to experience a net increase in human population by 2060 of 
about 569,326 individuals or 1.2 individuals per sq km (3.2 per sq mi). 
The estimated occupied range is projected to experience a net increase 
in human population by 2060 of about 188,770 individuals or 2.3 
individuals per sq km (6.04 per sq mi). Human population density, based 
on the projected population growth, within the estimated occupied range 
is projected to increase by almost double that of the entire historical 
range.
    As human populations continue to expand, as projected, the growth 
is expected to alter the landscape by modifying land use patterns much 
like the changes that occurred during settlement of the Great Plains. 
Forecasts of human population growth through the year 2060 revealed 
that nationwide the land area encompassed by urbanization will increase 
by 24 million ha (59 million ac) to 35 million ha (86 million ac), 
depending on whether a slower or more rapid growth scenario is used in 
the analysis (Wear 2011, p. 14). Increases in land area under urban 
development are expected to result in reductions in the area that is in 
cropland, pastureland and rangeland. Forecasts of cropland loss vary 
between 7.6 million ha (19 million ac) and 11 million ha (28 million 
ac), depending on which growth scenario is selected. Under the scenario 
of intermediate levels of human population growth and strong growth in 
personal income, about 85 percent (9.7 million ha; 24 million ac) of 
the cropland losses would occur in regions along and east of the 
Mississippi River and in coastal areas (Wear 2011, pp. 15, 22, 24). 
Forecasts of rangeland loss vary between 3.2 million ha (8 million ac) 
and 4.4 million ha (12 million ac), depending on which growth scenario 
is selected. Colorado and Texas are projected to experience some of the 
greatest losses of rangeland (Wear 2011, p. 23). In general, human 
populations in the Great Plains are expected to remain unchanged or 
decline slightly by 2060, particularly in the Oklahoma and Texas 
panhandles and portions of western and central Kansas (Wear 2011, p. 
13).
    As human populations, as projected, continue to expand, 
particularly into rural regions outside of existing urban and suburban 
areas, an increasing array of human features such as powerlines, 
highways, secondary roads, communication towers, and other types of 
infrastructure necessary to support these human populations are 
expected to appear on the landscape (Leu et al. 2008, p. 1119). We 
believe this infrastructure tends to remain in place even if human 
populations decline after initial expansion. Often these developments 
can degrade ecosystem functions and lead to fragmentation even when the 
overall development footprint is relatively small.
    Natural vertical features, such as trees and man-made, above ground 
vertical structures such as power poles, fence posts, oil and gas 
wells, towers, and similar developments can cause general habitat 
avoidance and displacement in lesser prairie-chickens and other prairie 
grouse (Anderson 1969, entire; Robel 2002, entire; Robel et al. 2004, 
entire; Hagen et al. 2004, entire; Pitman et al. 2005, entire; Pruett 
et al. 2009a, entire; Hagen et al. 2011, entire; Hovick et al. 
unpublished manuscript, entire). This avoidance behavior is presumably 
a behavioral response that serves to limit exposure to predation. The 
observed avoidance distances can be much larger than the actual 
footprint of the structure and appear to vary depending upon the type 
of structure. These structures can have significant negative impacts by 
contributing to further fragmentation of otherwise suitable habitats. 
Hovick et al. (unpublished manuscript under review, entire) examined 
the influence of several anthropogenic structures, including oil and 
gas infrastructure, powerlines and wind turbines on displacement 
behavior and survival in grouse. They conducted a meta-analysis that 
examined 23 different structures and found that all structure types 
examined resulted in displacement but oil structures and roads had the 
greatest impact on grouse avoidance behavior (Hovick et al. unpublished 
manuscript under review, p. 11). They also examined the effect of 17 of 
these structures on survival and found all of the structures examined 
also decreased survival in grouse, with lek attendance declining at a 
greater magnitude than other survival parameters measured (Hovick et 
al. unpublished manuscript under review, p. 12).
    Prairie grouse, such as the lesser prairie-chicken, did not evolve 
with tall, vertical structures present on the landscape and, in 
general, have low tolerance for tall structures. As discussed in 
``Altered Fire Regimes and Encroachment by Invasive, Woody Plants'' 
below, encroachment of trees into native grasslands preferred by lesser 
prairie-chickens ultimately renders otherwise suitable habitat 
unsuitable unless steps are taken to remove these trees. Even placement 
of cut trees in a pattern that resembled a wind break were observed to 
cause an avoidance response. Anderson (1969, pp. 640-641) observed that 
greater prairie-chickens abandoned lek territories when a 4-m (13-ft) 
tall coniferous wind break was artificially erected 52 m (170 ft) from 
an active lek.
    Increasingly, man-made vertical structures are appearing in 
landscapes used by lesser prairie-chickens. The placement of these 
vertical structures in open grasslands represents a significant change 
in the species' environment and is a relatively new phenomenon over the 
evolutionary history of this species. The effects of these structures 
on the life history of prairie grouse are only beginning to be 
evaluated, with similar avoidance behaviors also having been observed 
in sage grouse (75 FR 13910, March 23, 2010).
    Robel (2002, p. 23) reported that a single commercial-scale wind 
turbine creates a habitat avoidance zone for the greater prairie-
chicken that extends as far as 1.6 km (1 mi) from the structure. Lesser 
prairie-chickens likely exhibit a similar response to tall structures, 
such as wind turbines (Pitman et al. 2005, pp. 1267-1268). The Lesser 
Prairie-Chicken Interstate Working Group (Mote et al. 1999, p. 27) 
identified the need for a contiguous block of 52 sq km (20 sq mi) of 
high-quality rangeland habitat to successfully maintain a local 
population of lesser prairie-chicken. Based on this need and the fact 
that the majority of remaining populations are fragmented and isolated 
into islands of unfragmented, open prairie habitat, the Service 
recommended that an 8-km (5-mi) voluntary no-construction buffer be 
established around prairie grouse leks to account for behavioral 
avoidance and to protect lesser prairie-chicken populations and habitat 
corridors needed for future recovery (Manville 2004, pp. 3-4). In 
Kansas, no lesser prairie-chickens were observed nesting or lekking 
within 0.8 km (0.5 mi) of a gas line compressor station, and otherwise 
suitable habitat was avoided within a 1.6-km (1-mi) radius of a coal-
fired power plant (Pitman et al. 2005, pp. 1267-1268). Pitman et al. 
(2005, pp. 1267-1268) also observed that female lesser prairie-chickens 
selected nest sites that were significantly further from powerlines, 
roads, buildings, and oil and gas wellheads than would be expected at 
random. Specifically, they

[[Page 20020]]

observed that lesser prairie-chickens seldom nested or reared broods 
within approximately 177 m (580 ft) of oil or gas wellheads, 400 m 
(1,312 ft) of electrical transmission lines, 792 m (2,600 ft) of 
improved roads, and 1,219 m (4,000 ft) of buildings; and, the observed 
avoidance was likely influenced, at least in part, by disturbances such 
as noise and visual obstruction associated with these features. 
Similarly, Hagen et al (2004, p. 75) indicated that areas used by 
lesser prairie-chickens were significantly further from these same 
types of features than areas that were not used by lesser prairie-
chickens. They concluded that the observed avoidance was likely due to 
potential for increased predation by raptors or due to presence of 
visual obstructions on the landscape (Hagen et al. 2004, pp. 74-75).
    Robel et al. (2004, pp. 256-262) determined that habitat 
displacement associated with avoidance of certain structures by lesser 
prairie-chickens can be substantial, collectively exceeding 21,000 ha 
(53,000 ac) in a three-county area of southwestern Kansas. Using 
information on existing oil and gas wells, major powerlines (115 kV and 
larger), and existing wind turbines and proposed wind energy 
development in northwestern Oklahoma, Dusang (2011, p. 61) modeled the 
effect of these anthropogenic structures on lesser prairie-chicken 
habitat in Oklahoma. He estimated that existing and proposed 
development of these structures potentially would eliminate 
approximately 960,917 ha (2,374,468 ac) of nesting habitat for lesser 
prairie-chickens, based on what is currently known about their 
avoidance of these structures.
    Avoidance of vertical features such as trees and transmission lines 
likely is due to frequent use of these structures as hunting perches by 
birds of prey (Hagen et al. 2011, p. 72). Raptors actively seek out and 
use power poles and similar aboveground structures in expansive 
grassland areas where natural perches are limited. In typical lesser 
prairie-chicken habitat where vegetation is low and the terrain is 
relatively flat, power lines and power poles provide attractive 
hunting, loafing, and roosting perches for many species of raptors 
(Steenhof et al. 1993, p. 27). The elevated advantage of transmission 
lines and power poles serve to increase a raptor's range of vision, 
allow for greater speed during attacks on prey, and serve as 
territorial markers. While the effect of avian predation on lesser 
prairie-chickens depends on raptor densities, as the number of hunting 
perches or structures to support nesting by raptors increase, the 
impact of avian predation will increase accordingly (see separate 
discussion under ``Predation'' below). The perception that these 
vertical structures are associated with predation may cause lesser 
prairie-chickens to avoid areas near these structures even when raptor 
densities are low. Sensitivity to electromagnetic fields generated by 
the transmission lines may be another reason lesser prairie-chickens 
might be avoiding these areas (Fernie and Reynolds 2005, p. 135) (see 
separate discussion under ``Wind Power and Energy Transmission 
Operation and Development'' below).
    Where grassland patches remained, overgrazing, drought, lack of 
fire, woody plant and exotic grass invasions, and construction of 
various forms of infrastructure impacted the integrity of the remaining 
fragments (Brennan and Kuvlesky 2005, pp. 4-5). Domestic livestock 
management following settlement tended to promote more uniform grazing 
patterns, facilitated by construction of fences, which led to reduced 
heterogeneity in remaining grassland fragments (Fuhlendorf and Engle 
2001, p. 626; Pillsbury et al. 2011, p. 2). See related discussions in 
the relevant sections below.
    This ever-escalating fragmentation and homogenization of grasslands 
contributed to reductions in the overall diversity and abundance of 
grassland-endemic birds and caused populations of many species of 
grassland-obligate birds, such as the lesser prairie-chicken to decline 
(Coppedge et al. 2001, p. 48; Fuhlendorf and Engle, 2001, p. 626). 
Fragmentation and homogenization of grasslands is particularly 
detrimental for lesser prairie-chickens that typically prefer areas 
where individual habitat needs are in close proximity to each other. 
For example, in suitable habitats, desired vegetation for nesting and 
brood rearing typically occurs within relatively short distances of the 
breeding area.
Effects of Habitat Fragmentation
    While much of the conversion of native grasslands to agriculture in 
the Great Plains was largely completed by the 1940s and has slowed in 
more recent decades, grassland bird populations continue to decline 
(With et al. 2008, p. 3153). Bird populations may initially appear 
resistant to landscape change only to decline inexorably over time 
because remaining grassland fragments may not be sufficient to prevent 
longer term decline in their populations (With et al. 2008, p. 3165). 
The decrease in patch size and increase in edges associated with 
fragmentation are known to have caused reduced abundance, reduced nest 
success, and reduced nest density in many species of grassland birds 
(Pillsbury et al. 2011, p. 2).
    Habitat fragmentation has been shown to negatively impact 
population persistence and influence the species extinction process 
through several mechanisms (Wilcove et al. 1986, p. 246). Once 
fragmented, the remaining habitat fragments may be inadequate to 
support crucial life-history requirements (Samson 1980b, p. 297). The 
land-use matrix surrounding remaining suitable habitat fragments may 
support high densities of predators or brood parasites (organisms that 
rely on the nesting organism to raise their young), and the probability 
of recolonization of unoccupied fragments decreases as distance from 
the nearest suitable habitat patch increases (Wilcove et al. 1986, p. 
248; Sisk and Battin 2002, p. 35). Invasion by undesirable plants and 
animals is often facilitated around the perimeter or edge of the patch, 
particularly where roads are present (Weller et al. 2002, p. 2). 
Additionally, as animal populations become smaller and more isolated, 
they are more susceptible to random (stochastic) events and reduced 
genetic diversity via drift and inbreeding (Keller and Waller 2002, p. 
230). Population viability depends on the size and spacing of remaining 
fragments (Harrison and Bruna 1999, p. 226; With et al. 2008, p. 3153). 
O'Connor et al. (1999, p. 56) concluded that grassland birds, as a 
group, are particularly sensitive to habitat fragmentation, primarily 
due to sensitivity to fragment size. Consequently, the effects of 
fragmentation are the most severe on area-sensitive species (Herkert 
1994, p. 468).
    Area-sensitive species are those species that respond negatively to 
decreasing habitat patch size (Robbins 1979, p. 198; Finch 1991, p. 1. 
An increasing number of studies are showing that many grassland birds 
also are area-sensitive and have different levels of tolerance to 
fragmentation of their habitat (e.g., see Herkert 1994, entire; Winter 
and Faaborg 1999, entire). For species that are area-sensitive, once a 
particular fragment or patch of suitable habitat falls below the 
optimum size, populations decline or disappear entirely even though 
suitable habitat may continue to exist within the larger landscape. 
When the overall amount of suitable habitat within the landscape 
increases, the patch size an individual area-sensitive bird may utilize 
generally tends to be smaller (Horn and Koford 2006, p. 115), but they 
appear to maintain some minimum threshold

[[Page 20021]]

(Fahrig 1997, p. 608; NRCS 1999a, p. 4). Winter and Faaborg (1999, pp. 
1429, 1436) reported that the greater prairie-chicken was the most 
area-sensitive species observed during their study, and this species 
was not documented from any fragment of native prairie less than 130 ha 
(320 ac) in size. Sensitivity of lesser prairie-chickens likely is very 
similar to that of greater prairie-chickens; a more detailed discussion 
is provided below.
    Franklin et al. (2002, p. 23) described fragmentation in a 
biological context. According to Franklin et al. (2002, p. 23) habitat 
fragmentation occurs when occupancy, reproduction, or survival of the 
organism has been affected. The effects of fragmentation can be 
influenced by the extent, pattern, scale, and mechanism of 
fragmentation (Franklin et al. 2002, p. 27). Habitat fragmentation also 
can have positive, negative, or neutral effects, depending on the 
species (Franklin et al. 2002, p. 27). As a group, grouse are 
considered to be particularly intolerant of extensive habitat 
fragmentation due to their short dispersal distances, specialized food 
habits, generalized antipredator strategies, and other life-history 
characteristics (Braun et al. 1994, p. 432). Lesser prairie-chickens in 
particular have a low adaptability to habitat alteration, particularly 
activities that fragment suitable habitat into smaller, less valuable 
pieces. Lesser prairie-chickens use habitat patches with different 
vegetative structure dependent upon a particular phase in their life 
cycle, and the loss of even one of these structural components can 
significantly reduce the overall value of that habitat to lesser 
prairie-chickens. Fragmentation not only reduces the size of a given 
patch but also can reduce the interspersion or variation within a 
larger habitat patch, possibly eliminating important structural 
features crucial to lesser prairie-chickens.
    Lesser prairie-chickens and other species of prairie grouse require 
large expanses (i.e., 1,024 to 10,000 ha (2,530 to 24,710 ac)) of 
interconnected, ecologically diverse native rangelands to complete 
their life cycles (Woodward et al. 2001, p. 261; Flock 2002, p. 130; 
Fuhlendorf et al. 2002a, p. 618; Davis 2005, p. 3), more so than almost 
any other grassland bird (Johnsgard 2002, p. 124). Davis (2005, p. 3) 
states that the combined home range of all lesser prairie-chickens at a 
single lek is about 49 sq km (19 sq mi or 12,100 ac). According to 
Applegate and Riley (1998, p. 14), a viable lek will have at least six 
males accompanied by an almost equal number of females. Because leks 
need to be clustered so that interchange among different leks can occur 
in order to reduce interbreeding problems on any individual lek, they 
considered a healthy population to consist of a complex of six to ten 
viable leks (Applegate and Riley 1998, p. 14). Consequently, most 
grouse experts consider the lesser prairie-chicken to be an area-
sensitive species, and large areas of intact, unfragmented landscapes 
of suitable mixed-grass, short-grass, and shrubland habitats are 
considered essential to sustain functional, self-sustaining populations 
(Giesen 1998, pp. 3-4; Bidwell et al. 2002, pp. 1-3; Hagen et al. 2004, 
pp. 71, 76-77). Therefore, areas of otherwise suitable habitat can 
readily become functionally unusable due to the effects of 
fragmentation.
    The lesser prairie-chicken has several life-history traits common 
to most species of grouse that influence its vulnerability to the 
impacts of fragmentation, including short lifespan, low nest success, 
strong site fidelity, low mobility, and a relatively small home range. 
This vulnerability is heightened by the considerable extent of habitat 
loss that has already occurred over the range of the species. The 
resiliency and redundancy of these populations have been reduced as the 
number of populations that formerly occupied the known historical range 
were lost or became more isolated by fragmentation of that range. 
Isolation of remaining populations will continue to the extent these 
populations remain or grow more separated by areas of unsuitable 
habitat, particularly considering their limited dispersal capabilities 
(Robb and Schroeder 2005, p. 36).
    Fragmentation is becoming a particularly significant ecological 
driver in lesser prairie-chicken habitats, and several factors are 
known to be contributing to the observed destruction, modification, or 
curtailment of the lesser prairie-chicken's habitat or range. Extensive 
grassland and untilled rangeland habitats historically used by lesser 
prairie-chickens have become increasingly scarce, and remaining areas 
of these habitat types continue to be degraded or fragmented by 
changing land uses. The loss and fragmentation of the mixed-grass, 
short-grass, and shrubland habitats preferred by lesser prairie-
chickens has contributed to a significant reduction in the extent of 
the estimated occupied range that is inhabited by lesser prairie-
chickens. Based on the cooperative mapping efforts led by the Playa 
Lakes Joint Venture and Lesser Prairie-Chicken Interstate Working 
Group, lesser prairie-chickens are estimated to now occupy only about 
16 percent of their estimated historical range. What habitat remains is 
now highly fragmented (Hagen et al. 2011, p. 64). See previous 
discussion above in ``Current Range and Distribution'' for additional 
detail.
    Several pervasive factors, such as conversion of native grasslands 
to cultivated agriculture; change in the historical grazing and fire 
regime; tree invasion and brush encroachment; oil, gas, and wind energy 
development; and road and highway expansion have been implicated in not 
only permanently altering the Great Plains landscape but in 
specifically causing much of the observed loss, alteration, and 
fragmentation of lesser prairie-chicken habitat (Hagen and Giesen 2005, 
np.; Elmore et al. 2009, pp. 2, 10-11; Hagen et al. 2011, p. 64). 
Additionally, lesser prairie-chickens actively avoid areas of human 
activity and noise or areas that contain certain vertical features, 
such as buildings, oil or gas wellheads and transmission lines (Robel 
et al. 2004, pp. 260-262; Pitman et al. 2005, pp. 1267-1268; Hagen et 
al. 2011, p. 70-71). Avoidance of vertical features such as trees and 
transmission lines likely is due to frequent use of these structures as 
hunting perches by birds of prey (Hagen et al. 2011, p. 72). .
    Oil and gas development activities, particularly drilling and road 
and highway construction, also contribute to surface fragmentation of 
lesser prairie-chicken habitat for many of the same reasons observed 
with other artificial structures (Hunt and Best 2004, p. 92). The 
incidence of oil and gas exploration has been rapidly expanding within 
the range of the lesser prairie-chicken. A more thorough discussion of 
oil and gas activities within the range of the lesser prairie-chicken 
is discussed below.
    Many of the remaining habitat fragments and adjoining land use 
types subsequently fail to meet important habitat requirements for 
lesser prairie-chickens. Other human-induced developments, such as 
buildings, fences, and many types of vertical structures, which may 
have an overall smaller physical development footprint per unit area, 
serve to functionally fragment otherwise seemingly suitable habitat; 
this causes lesser prairie-chickens to cease or considerably reduce 
their use of habitat patches impacted by these developments (Hagen et 
al. 2011 pp. 70-71). As the intervening matrix between the remaining 
fragments of suitable habitat becomes less suitable for the lesser 
prairie-chicken, dispersal patterns can be disrupted, effectively 
isolating remaining islands of habitat. These

[[Page 20022]]

isolated fragments then become less resilient to the effects of change 
in the overall landscape and likely will be more prone to localized 
extinctions. The collective influence of habitat loss, fragmentation, 
and disturbance effectively reduces the size and suitability of the 
remaining habitat patches. Pitman et al. (2005, p. 1267) calculated 
that nesting avoidance at the distances they observed would effectively 
eliminate some 53 percent (7,114 ha; 17,579 ac) of otherwise suitable 
nesting habitat within their study area in southwestern Kansas. Once 
the remaining habitat patches fall below the minimum size required by 
individual lesser prairie-chickens, these patches become uninhabitable 
even though they may otherwise provide optimum habitat characteristics. 
Although a minimum patch size per individual has not been established, 
and will vary with the quality of the habitat, studies and expert 
opinion, including those regarding greater prairie-chickens, suggest 
that the minimum patch size is likely to exceed 100 ha (250 acres) per 
individual (Samson 1980b, p. 295; Winter and Faaborg 1999, pp. 1429, 
1436; Davis 2005, p. 3). Specifically for lesser prairie-chickens, 
Giesen (1998, p. 11) and Taylor and Guthery (1980b, p. 522) reported 
home ranges of individual birds varied from 211 ha (512 ac) to 1,945 ha 
(4,806 ac) in size.
    Fragmentation poses a threat to the persistence of local lesser 
prairie-chicken populations through many of the same mechanisms 
identified for other species of grassland birds. Factors such as 
habitat dispersion and the extent of habitat change, including patch 
size, edge density, and total rate of landscape change influence 
juxtaposition and size of remaining patches of rangeland such that they 
may no longer be large enough to support populations (Samson 1980b, p. 
297; Woodward et al. 2001, pp. 269-272; Fuhlendorf et al. 2002a, pp. 
623-626). Additionally, necessary habitat heterogeneity may be lost, 
and habitat patches may accommodate high densities of predators. 
Ultimately, lesser prairie-chicken interchange among suitable patches 
of habitat may decrease, possibly affecting population and genetic 
viability (Wilcove et al. 1986, pp. 251-252; Knopf 1996, p. 144). 
Predation can have a major impact on lesser prairie-chicken demography, 
particularly during the nesting and brood-rearing seasons (Hagen et al. 
2007, p. 524). Patten et al. (2005b, p. 247) concluded that habitat 
fragmentation, at least in Oklahoma, markedly decreases the probability 
of long-term population persistence in lesser prairie-chickens.
    Many of the biological factors affecting the persistence of lesser 
prairie-chickens are exacerbated by the effects of habitat 
fragmentation. For example, human population growth and the resultant 
accumulation of infrastructure such as roads, buildings, communication 
towers, and powerlines contribute to fragmentation. We expect that 
construction of vertical infrastructure such as transmission lines will 
continue to increase into the future, particularly given the increasing 
development of energy resources and urban areas (see ``Wind Power and 
Energy Transmission Operation and Development'' below). Where this 
infrastructure is placed in occupied lesser prairie-chicken habitats, 
the lesser prairie-chicken likely will be negatively affected. As the 
density and distribution of human development continues in the future, 
direct and functional fragmentation of the landscape will continue. The 
resultant fragmentation is detrimental to lesser prairie-chickens 
because they rely on large, expansive areas of contiguous native 
grassland to complete their life cycle. Given the large areas of 
contiguous grassland needed by lesser prairie-chickens, we expect that 
many of these types of developments anticipated in the future will 
further fragment remaining blocks of suitable habitat and reduce the 
likelihood of persistence of lesser prairie-chickens over the long 
term. Long-term persistence is reduced when the suitability of the 
remaining habitat patches decline, further contributing to the scarcity 
of suitable contiguous blocks of habitat and resulting in increased 
human disturbance as parcel size declines. Human populations are 
increasing throughout the range of the lesser prairie-chicken, and we 
expect this trend to continue. Given the demographic and economic 
trends observed over the past several decades, residential development 
will continue.
    The cumulative influence of habitat loss and fragmentation on 
lesser prairie-chicken distribution is readily apparent at the regional 
scale. Lesser prairie-chicken populations in eastern New Mexico and the 
western Texas Panhandle are isolated from the remaining populations in 
Colorado, Kansas, and Oklahoma. On a smaller, landscape scale, core 
populations of lesser prairie-chickens within the individual States are 
isolated from other nearby populations by areas of unsuitable land uses 
(Robb and Schroeder 2005, p. 16). Then, at the local level within a 
particular core area of occupied habitat, patches of suitable habitat 
have been isolated from other suitable habitats by varying degrees of 
unsuitable land uses. Very few large, intact patches of suitable 
habitat remain within the historically occupied landscape.
    We conducted two analyses of fragmentation. The first analysis was 
conducted in 2012 prior to publication of the proposed rule; this was a 
spatial analysis of the extent of fragmentation within the estimated 
occupied range of the lesser prairie-chicken. Infrastructure features 
such as roads, transmission lines, airports, cities and similar 
populated areas, oil and gas wells, and other vertical features such as 
communication towers and wind turbines were delineated. These features 
were buffered by known avoidance distances and compared with likely 
lesser prairie-chicken habitat such as that derived from the Southern 
Great Plains Crucial Habitat Tool and 2008 LandFire vegetation cover 
types. Based on this analysis, 99.8 percent of the suitable habitat 
patches were less than 2,023 ha (5,000 ac) in size. Our analysis 
revealed only 71 patches that were equal to, or larger than, 10,117 ha 
(25,000 ac) exist within the entire five-state estimated occupied 
range. Of the patches over 10,117 ha (25,000 ac), all were impacted by 
fragmenting features, just not to the extent that the patch was 
fragmented into a smaller sized patch. For example, oil and gas wells 
or vertical features like wind turbines may occur within these large 
patches but don't create a hard edge or barrier completely separating 
one patch from another; rather, these types of fragmenting features may 
create a mosaic of unsuitable lesser prairie-chicken habitat within the 
large patch, thereby affecting the habitat quality of the area.
    The Service's 2012 spatial analysis was a conservative estimate of 
the extent of fragmentation within the estimated occupied range. We 
only used readily available datasets. Some datasets were unavailable, 
such as the extent of fences, and other infrastructural features were 
not fully captured because our datasets were incomplete for those 
features. Unfortunately, a more precise quantification of the impact of 
habitat loss and alteration on persistence of the lesser prairie-
chicken is complicated by a variety of factors including time lags in 
response to habitat changes and a lack of detailed historical 
information on habitat conditions.
    To better quantify the extent of fragmentation within the estimated 
occupied range using the most recent data sets we could obtain and the 
buffer distances reported in the rangewide

[[Page 20023]]

plan (Van Pelt et al. 2013, p. 95), we conducted a second spatial 
analysis of fragmentation during preparation of the final rule. We used 
existing data sources to identify natural grass and shrubland landcover 
types within the estimated occupied range. This data was used in the 
analysis to depict potential suitable vegetation where lesser prairie-
chickens may occur but does not necessarily identify existing lesser 
prairie-chicken habitat or correlate with known lek locations. We took 
this approach because the more refined data sets do not yet exist to 
our knowledge. We then added the buffered existing data sets on 
threats, which included roads, developed areas, oil and gas wells, 
vertical structures, and transmission lines. This analysis served to 
quantify spatial information on the scope and scale of fragmentation 
and intactness of the potential suitable vegetation landcover types 
within the estimated occupied range. Based on this analysis, we found 
that 128,525 patches encompassing 3,562,168 ha (8,802,290.4 ac) of 
potential suitable vegetation exists within the estimated occupied 
range. Table 3, below, displays the breakdown in size and area of those 
patches. The patch size ranges we analyzed are based on the information 
provided in the discussion of minimum sizes of habitat blocks provided 
in the rangewide plan (Van Pelt et al. 2013, p. 19).

                       Table 3--Potential Suitable Vegetation Patch Size Analysis Results
----------------------------------------------------------------------------------------------------------------
            Patch size               Number of patches                    Total area of patches
----------------------------------------------------------------------------------------------------------------
Less than 486 ha (1,200 ac).......             127,190  1,588,262.4 ha (3,924,681.8 ac).
486-6,474 ha (1,200-15,999 ac)....               1,302  1,636,012 ha (4,042,673.7 ac).
6,475-8,497 ha (16,000-20,999 ac).                  13  96,761.4 ha (239,102.6 ac).
Greater than 8,498 ha (21,000 ac).                  20  241,124.8 ha (595,832.3 ac).
                                   -----------------------------------------------------------------------------
    TOTAL.........................             128,525  3,562,168 ha (8,802,290.4 ac).
----------------------------------------------------------------------------------------------------------------

    When we conducted the second spatial analysis of fragmentation 
during preparation of the final rule, we also prepared a proximity 
analysis to help us achieve a better sense of how the various patches 
in the natural grass and shrubland landcover types relate to each other 
on the landscape. The proximity analysis groups individual patches, as 
described above, that are only separated by rural roads. These rural 
roads fragment the grass and shrub landscape, but they may not always 
prevent the species from moving between patches. Groups of patches (or 
remaining individual patches) under 64.7 ha (160 ac) were not included 
in this analysis. Because these areas were not included, the proximity 
model accounts for only 37 percent of all patches mapped in the patch 
analysis (47,157 patches in the proximity analysis compared to 128,525 
patches in the patch analysis), but it also accounts for 93 percent of 
the total patch size acreage. Table 4, below, displays the breakdown in 
size and area of the various proximity groups (groups of patches).

                                         Table 4--Potential Suitable Vegetation Proximity Size Analysis Results
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Individual
                Proximity group                       Count        patches within                                  Acreage
                                                                        group
--------------------------------------------------------------------------------------------------------------------------------------------------------
64.7-485 ha (160-1,199 ac)....................             1,219             3,122  173,705.3 ha (429,235.2 ac).
485-6,474 ha (1,200-15,999 ac)................               302             9,054  529,566.3 ha (1,308,586.9 ac).
6,475-8,497 ha (16,000-20,999 ac).............                11             1,172  78,718.9 ha (194,518.7 ac).
8,498-20,234 ha (21,000-49,999 ac)............                37             9,685  511,464.9 ha (1,263,857.4 ac).
20,234-40,468 ha (50,000-99,999 ac)...........                19             7,162  545,478.0 ha (1,347,905.6 ac).
Greater than 40,468 ha (100,000 ac)...........                22            16,962  1,481,324.0 ha (3,660,431.2 ac).
                                               ---------------------------------------------------------------------------------------------------------
    TOTAL.....................................             1,610            47,157  3,562,168 ha (8,204,535.0 ac).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In summary, habitat fragmentation is an ongoing threat that is 
occurring throughout the estimated occupied range of the lesser 
prairie-chicken. While 127,190 patches of potentially suitable 
vegetation are less than 486 ha (1,200 ac), only 20 patches of 
potentially suitable vegetation greater than 8,498 ha (21,000 ac) 
remain. Similarly, much of the historical range is disjunct and 
separated by large expanses of unsuitable habitat. In comparison to the 
patch size analysis, the proximity analysis shows that there are 1,219 
proximity groups that are less than 4856 ha (1,200 ac) and 78 proximity 
groups that are greater than 8,498 ha (21,000 ac). Fragmentation 
impacts the lesser prairie-chicken by altering the juxtaposition of 
suitable habitat patches, by reducing the size of the available habitat 
patches causing those patches to be smaller than necessary to support 
stable to expanding populations, reducing the quality of the remaining 
habitat patches, eliminating the habitat heterogeneity needed to 
sustain all life history requirements of the species, facilitating 
increased density of predators that leads to increased rates of 
predation, and impacting the ability of lesser prairie-chickens to 
disperse between suitable patches of habitat. Once fragmented, most of 
the factors contributing to habitat fragmentation cannot be reversed 
and the effects are cumulative. Many types of human developments likely 
will exist for extended time periods and will have a significant, 
lasting adverse influence on persistence of lesser prairie-chickens. 
Therefore, current and future habitat fragmentation is a threat to the 
lesser prairie-chicken. In many of the sections that follow, we will 
examine in more detail the various causes of habitat fragmentation we 
identified within the estimated occupied range of the five States that 
support lesser prairie-chickens.

Habitat Conversion for Agriculture

    At the time the lesser prairie-chicken was determined to be 
taxonomically

[[Page 20024]]

distinct from the greater prairie-chicken in 1885, much of the 
historical range was already being altered as settlement of the Great 
Plains progressed. EuroAmerican settlement in New Mexico and Texas 
began prior to the 1700s, and at least one trading post already had 
been established in Colorado by 1825 (Coulson and Joyce 2003, pp. 34, 
41, 44). Kansas had become a territory by 1854 and had already 
experienced an influx of settlers due to establishment of the Santa Fe 
Trail in 1821 (Coulson and Joyce 2003, p. 37). Western Oklahoma was the 
last area to experience extensive settlement with the start of the land 
run in 1889.
    Settlement, as previously discussed, brought about many changes 
within the historical range of the lesser prairie-chicken. Between 1915 
and 1925, considerable areas of prairie had been plowed in the Great 
Plains and planted to wheat (Laycock 1987, p. 4). By the 1930s, the 
lesser prairie-chicken had begun to disappear from areas where it had 
been considered abundant with populations nearing extirpation in 
Colorado, Kansas, and New Mexico, and markedly reduced in Oklahoma and 
Texas (Davison 1940, p.62; Lee 1950, p.475; Baker 1953, p.8; Oberholser 
1974, p. 268; Crawford 1980, p. 2). Several experts on the lesser 
prairie-chicken identified conversion of native sand sagebrush and 
shinnery oak rangeland to cultivated agriculture as an important factor 
in the decline of lesser prairie-chicken populations (Copelin 1963, p. 
8; Jackson and DeArment 1963, p. 733; Crawford and Bolen 1976a, p. 102; 
Crawford 1980, p. 2; Taylor and Guthery 1980b, p. 2; Braun et al. 1994, 
pp. 429, 432-433; Mote et al. 1999, p. 3). By the 1930s, Bent (1932, 
pp. 283-284) concluded that extensive cultivation and overgrazing had 
already caused the species to disappear from portions of the historical 
range where lesser prairie-chickens had once been abundant. Additional 
areas of previously unbroken grassland were brought into cultivation in 
the 1940s, 1970s, and 1980s (Laycock 1987, pp. 4-5; Laycock 1991, p. 
2). Bragg and Steuter (1996, p. 61) estimated that by 1993, only 8 
percent of the bluestem-grama association and 58 percent of the 
mesquite-buffalo grass association, as described by Kuchler (1964, 
entire), remained.
    As the amount of native grasslands and untilled native rangeland 
declined in response to increasing settlement, the amount of suitable 
habitat capable of supporting lesser prairie-chicken populations 
declined accordingly. Correspondingly, as the amount of available 
suitable habitat diminished, carrying capacity was reduced and the 
number of lesser prairie-chickens declined. Although the literature 
supports that lesser prairie-chicken populations have experienced 
population declines and were nearly extirpated in Colorado, Kansas, and 
New Mexico, precisely quantifying the degree to which these settlement-
induced impacts occurred is complicated by a lack of solid and 
consistent historical information on lesser prairie-chicken population 
size and extent of suitable habitat throughout the species' range. 
Additionally, because cultivated grain crops may have provided 
increased or more dependable winter food supplies (Braun et al. 1994, 
p. 429), the initial conversion of smaller patches of native prairie to 
cultivation may have been temporarily beneficial to the short-term 
needs of the species. Sharpe (1968, pp. 46-50) believed that the 
presence of cultivated grains may have facilitated the temporary 
occurrence of lesser prairie-chickens in Nebraska. However, landscapes 
having greater than 20 to 37 percent cultivated grains may not support 
stable lesser prairie-chicken populations (Crawford and Bolen 1976a, p. 
102). While lesser prairie-chickens may forage in agricultural 
croplands, they avoid landscapes dominated by cultivated agriculture, 
particularly where small grains are not the dominant crop (Crawford and 
Bolen 1976a, p. 102). Areas of cropland do not provide adequate year-
round food or cover for lesser prairie-chickens.
    Overall, the amount of land used for crop production nationally has 
remained relatively stable over the last 100 years although the 
distribution and composition have varied (Lubowski et al. 2006, p. 6; 
Sylvester et al. 2013, p. 13). As cultivated land is converted to 
urbanization and other non-agricultural uses, new land is being brought 
into cultivation helping to sustain the relatively constant amount of 
cropland in existence over that period. Nationally, the amount of 
cropland that was converted to urban uses between 1982 and 1997 was 
about 1.5 percent (Lubowski et al. 2006, p. 3). During that same period 
nationally, about 24 percent of cultivated cropland was converted to 
less intensive uses such as pasture, forest and CRP (Lubowski et al. 
2006, p. 3). The impact of CRP was most influential in the Great Plains 
States, particularly Colorado, Kansas, Oklahoma and Texas, which have 
most of the existing CRP lands (Lubowski et al. 2006, p. 50).
    In our June 7, 1998, 12-month finding for the lesser prairie-
chicken (63 FR 31400), we attempted to assess the regional loss of 
native rangeland using data available through the National Resources 
Inventory of the USDA NRCS. However, very limited information on lesser 
prairie-chicken status was available to us prior to 1982. When we 
examined the 1992 National Resources Inventory Summary Report, we were 
able to estimate the change in rangeland acreage between 1982 and 1992 
by each State within the range of the lesser prairie-chicken. When the 
trends were examined statewide, each of the five States within the 
range of the lesser prairie-chicken showed a decline in the amount of 
rangeland acreage over that time period, indicating that conversion of 
lesser prairie-chicken habitat likely continued to occur since the 
1980s. In assessing the change specifically within areas inhabited by 
lesser prairie-chickens, we then narrowed our analysis to just those 
counties where lesser prairie-chickens were known to occur. That 
analysis, which was based on the information available at that time, 
used a much smaller extent of estimated occupied range than likely 
occurred at that time. The analysis of the estimate change in rangeland 
acreage between 1982 and 1992, for counties specifically within lesser 
prairie-chicken range, did not demonstrate a statistically significant 
change, possibly due to small sample size and large variation about the 
mean. In this analysis, the data for the entire county was used without 
restricting the analysis to just those areas determined to be within 
the estimated historical and occupied ranges. A more recent, area-
sensitive analysis was needed.
    Although a more recent analysis of the Natural Resources Inventory 
information was desired, we were unable to obtain specific county-by-
county information because the NRCS no longer releases county-level 
information. Release of Natural Resources Inventory results is guided 
by NRCS policy and is in accordance with Office of Management and 
Budget and USDA Quality of Information Guidelines developed in 2001. 
NRCS releases Natural Resources Inventory estimates only when they meet 
statistical standards and are scientifically credible in accordance 
with these policies. In general, the Natural Resources Inventory survey 
system was not developed to provide acceptable estimates for areas as 
small as counties but rather for analyses conducted at the national, 
regional, and state levels, and for certain sub-state regions (Harper 
2012).
    We then attempted to use the 1992 National Land Cover Data (NLCD) 
information to estimate the extent and change in certain land cover 
types. The

[[Page 20025]]

NLCD was the first land-cover mapping project that was national in 
scope and is based on images from the Landsat thematic mapper. No other 
national land-cover mapping program had previously been undertaken, 
despite the availability of Landsat thematic mapper information since 
1984. The 1992 NLCD provides information on 21 different land cover 
classes at a 30-meter resolution. Based on the 1992 NLCD, and confining 
our analysis to just the estimated known historical and occupied 
ranges, we estimated that there were 137,073.6 sq km (52,924.4 sq mi) 
of cultivated cropland in the entire historical range and 16,436.9 sq 
km (6,346.3 sq mi) in the estimated occupied range. Based on these 
estimates, 29.35 percent of the estimated historical range is in 
cultivated cropland, and 23.28 percent of the estimated occupied range 
is in cultivated cropland. This includes areas planted to row crops, 
such as corn and cotton, small grains such as wheat and Hordeum vulgare 
(barley), and fallow cultivated areas that had visible vegetation at 
the time of the imagery.
    Estimating the extent of untilled rangeland is slightly more 
complicated. The extent of grassland areas dominated by native grasses 
and forbs could be determined in a manner similar to that for 
cultivated cropland. We estimated from the 1992 NLCD that there were 
207,846 sq km (80,250 sq mi) of grassland within the entire historical 
range, with only 49,000 sq km (18,919 sq mi) of grassland in the 
estimated occupied range. Based on these estimates, 44.51 percent of 
the estimated historical range and 69.4 percent of the estimated 
occupied range is in grassland cover. However, the extent of shrubland 
also must be included in the analysis because areas classified as 
shrubland (i.e., areas having a canopy cover of greater than 25 
percent) are used by lesser prairie-chicken, such as shinnery oak 
grasslands, and also may be grazed by livestock. We estimated that 
there were 92,799 sq km (35,830 sq mi) of shrubland within the entire 
historical range with 4,439 sq km (1,714 sq mi) of shrubland in the 
estimated occupied range, based on the 1992 NLCD. Based on these 
estimates, 19.87 percent of the estimated historical range and 6.29 
percent of the estimated occupied range is in shrubland.
    These values can then be compared with those available through the 
2006 NLCD information to provide a rough approximation of the change in 
land use since 1992. In contrast to the 1992 NLCD, the 2006 NLCD 
provides information on only 16 different land cover classes at a 30-
meter resolution. Based on this dataset, and confining our analysis to 
just the known estimated historical and occupied ranges, we estimated 
that there were 126,579 sq km (48,872 sq mi) of cultivated cropland in 
the entire estimated historical range and 19,588 sq km (7,563 sq mi) in 
the estimated occupied range. Based on these results, 27.1 percent of 
the estimated historical range and 27.74 percent of the estimated 
occupied range is cultivated cropland. This cover type consists of any 
areas used annually to produce a crop and includes any land that is 
being actively tilled. Estimating the extent of untilled rangeland is 
conducted similarly to that for 1992. Using the 2006 NLCD, we estimated 
that there were 163,011 sq km (62,939 sq mi) of grassland within the 
entire estimated historical range with 42,728 sq km (16,497 sq mi) of 
grassland in the estimated occupied range. These results show that 
grasslands comprise 34.91 percent of the estimated historical range and 
60.52 percent of the estimated occupied range. In 2006, the shrubland 
cover type was replaced by a shrub-scrub cover type. This new cover 
type was defined as the areas dominated by shrubs less than 5 m (16 ft) 
tall with a canopy cover of greater than 20 percent. We estimated that 
there were 146,818 sq km (56,686 sq mi) of shrub/scrub within the 
entire historical range, with 10,291 sq km (3,973 sq mi) of shrub/scrub 
in the estimated occupied range. Based on these results, shrub/scrub 
cover constitutes 31.44 percent of the estimated historical range and 
14.58 percent of the estimated occupied range.
    Despite the difference in the classification of land cover between 
1992 and 2006, we were able to make rough comparisons between the two 
datasets. The extent of cropland within the entire historical range 
declined from 29.35 to 27.1 percent between 1992 and 2006. In contrast, 
the extent of cropland areas within the estimated occupied range 
increased from 23.28 to 27.74 percent during that same period. A 
comparison of the grassland and untilled rangeland indicates that the 
amount of grassland declined in both the estimated historical and 
occupied ranges between 1992 and 2006. Specifically, the extent of 
grassland within the estimated historical range declined from 44.51 to 
34.91 percent, and the extent of grassland within the estimated 
occupied range declined from 69.4 to 60.52 percent. However, the amount 
of shrub-dominated lands increased in both the estimated historical and 
occupied ranges. Between 1992 and 2006, the extent of shrubland 
increased from 19.87 to 31.44 percent in the estimated historical range 
and from 6.29 to 14.58 percent in the estimated occupied range. 
Overall, the estimated amount of grassland and shrub-dominated land, as 
an indicator of untilled rangelands, increased from 64.38 to 66.34 
percent over the estimated historical range during that period but 
declined from 75.69 to 75.1 percent within the estimated occupied range 
during the same period. Based on the definition of shrub/scrub cover 
type in 2006, the observed increases in shrub-dominated cover only 
could have been due to increased abundance of eastern red cedar, an 
invasive, woody species that tends to decrease suitability of 
grasslands and untilled rangelands for lesser prairie-chickens 
(Woodward et al. 2001, pp. 270-271; Fuhlendorf et al. 2002a, p. 625).
    However, direct comparison between the 1992 and 2006 NLCD is 
problematic due to several factors. First, the 1992 NLCD used a 
different method to classify habitat than the NLCD 2001 and later 
versions. Second, NLCD 2001 and later versions used higher resolution 
digital elevation models than the 1992 NLCD. Third, the impervious 
surface mapping that is part of NLCD 2001 and later versions resulted 
in the identification of many more roads than could be identified in 
the 1992 NLCD. However, most of these roads were present in 1992. 
Fourth, the imagery for the 2001 NLCD and later versions was corrected 
for atmospheric effects prior to classification, whereas NLCD 1992 
imagery was not. Lastly, there are subtle differences between the NLCD 
1992 and NLCD 2001 land-cover legends. Additionally, we did not have an 
estimated occupied range for 1992. Instead we used the occupied range 
as is currently estimated. The comparison in the amount of cropland, 
grassland, and shrubland could be influenced by a change in the amount 
of occupied range in 1992. Due to the influence of CRP grasslands 
(discussed below) on the distribution of lesser prairie-chickens in 
Kansas, the estimated occupied range was much smaller in 1992. The 
Service expects that the influence of CRP establishment north of the 
Arkansas River in Kansas might have led to considerably more areas of 
grassland in 2006 as compared to 1992. However, the amount of grassland 
was observed to have declined within the estimated occupied range of 
the lesser prairie-chicken between 1992 and 2006, possibly indicating 
that the extent of grasslands continued to decline despite the increase 
in CRP grasslands.
    If we restrict our analysis to Kansas alone, the extent of 
grasslands in 1992 was about 39,381 sq km (15,205 sq mi)

[[Page 20026]]

within the estimated historical range and 22,923 sq km (8850 sq mi) in 
the estimated occupied range. In 2006, the extent of grasslands in 
Kansas was 27,351 sq km (10,560 sq mi) within the historical range and 
18,222 sq km (7,035 sq mi) in the estimated occupied range. While not 
definitive, the analysis indicates that the total extent of grasslands 
continued to decline even in Kansas where there has been an increase in 
CRP grasslands.
    Other studies have attempted to determine the change in land use 
patterns over time, particularly with respect to conversion of 
grasslands/rangelands but such studies are difficult to interpret as 
they often do not differentiate between native and non-native 
grassland. Additionally, short-term fluctuations in grassland and 
cropland acreages often occur at regional levels that may not be 
apparent at larger scales and often are not indicative of long-term 
changes in land cover. Reeves and Mitchell (2012, p. 14), using USDA 
Natural Resources Inventory data, estimated that between 1982 and 2007 
non-federal rangelands in the United States, excluding CRP, declined by 
about 3.6 million ha (8.8 million ac) or about 142,000 ha (350,000 ac) 
annually. More recent data were not available at the time of their 
analysis. The estimated losses were largely due to conversion to 
cultivated agriculture and residential uses (Reeves and Mitchell 2012, 
p. 27). Four of the five States supporting lesser prairie-chicken 
populations lost rangeland during this period (Reeves and Mitchell 
2012, pp. 15-16). Only Texas had a net gain in the area of rangeland. 
New Mexico and Oklahoma lost the most rangeland and Colorado lost the 
least. In all four of these States, cropland increased with New Mexico 
and Colorado having the largest net change in cropland of the four 
States (Reeves and Mitchell 2012, pp. 15-16).
    When the historical extent of rangelands were examined in the five 
lesser prairie-chicken States, the estimated percentages of historical 
rangelands that have been permanently converted to another land use 
type break down as follows: 9 percent in New Mexico, 29 percent in 
Colorado, 36 percent in Texas, 59 percent in Oklahoma, and 75 percent 
in Kansas (Reeves and Mitchell 2012, pp. 26). Although these data are 
not specific to the estimated occupied range of the lesser prairie-
chicken, they highlight the extent and types of changes that have 
occurred in this region. From a more regional perspective, within the 
Great Plains, Sylvester et al. (2013, p.7) concluded that the extent of 
grasslands fluctuates considerably as areas alternated between 
grassland and cultivation in response to conservation programs, masking 
the overall effect on land use change. However, they reported that the 
amount of untilled, native grassland, as determined from aerial 
photography, continued to decline. Within the Western High Plains 
(portions of west Texas, Oklahoma Panhandle, western Kansas, eastern 
Colorado and western Nebraska), grassland loss to agriculture, 
primarily cropland, was the most common form of land cover conversion 
between 1973 and 1986 (Drummond 2007, p 137). Between 1986 and 2000, 
grassland cover increased, primarily in response to CRP, but grassland 
conversion to agriculture continued to occur. Drummond (2007, p. 138) 
estimated 686,000 ha (1.7 million ac) of grassland was converted to 
agriculture, primarily cropland, in this region. Increased global 
demand for wheat and for irrigated grains to supply local feedlots was 
the primary driving factor (Drummond 2007, p 140). Drummond (2007, p. 
141) also thought the observed changes in land cover were influenced by 
switching of cropland in and out of CRP enrollment. The location of 
grasslands changed spatially within the region but there was little 
actual overall gain in grassland cover. When conservation programs, 
such as cropland retirements, result in no real gain or even a loss in 
conservation success, this effect is termed ``slippage'' and will be 
discussed further under the section on CRP below.
    In summary, conversion of the native grassland habitats used by 
lesser prairie-chickens for agricultural uses has resulted in the 
permanent, and in some limited instances, temporary loss or alteration 
of habitats used for feeding, sheltering, and reproduction. 
Consequently, populations of lesser prairie-chickens likely have been 
extirpated or significantly reduced, underscoring the degree of impact 
that historical conversion of native grasslands has posed to the 
species. We expect a very large proportion of the land area that is 
currently in cultivated agriculture likely will remain so over the 
future because we have no information to suggest that agricultural 
practices are likely to change in the future. While persistent drought 
and declining supplies of water for irrigation may lead to conversion 
of some croplands to a noncropland state, we anticipate that the 
majority of cropland will continue to be used to produce a crop. 
Groundwater levels in the High Plains Aquifer, which underlies much of 
the range of the lesser prairie-chicken and supplies about 30 percent 
of the groundwater used for irrigation in the United States 
(Sophocleous 2005, p. 352), have declined considerably since the 1950s, 
with an area-weighted, average water level decline of 4.3 m (14.2 ft) 
(McGuire 2013, pp. 8, 13). Declining water levels may cause some areas 
of cropland to revert to grassland but most of the irrigated land 
likely will transition to dryland agriculture, in spite of more 
efficient methods of irrigation, as water supplies dwindle (Terrell et 
al. 2002, p. 35; Sophocleous 2005, p. 361; Drummond 2007, p. 142). 
Because much of the suitable arable lands have already been converted 
to cultivated agriculture, we do not expect significant additional, 
future habitat conversions to cultivated agriculture within the range 
of the lesser prairie-chicken. However, as implementation of certain 
agricultural conservation programs, such as the CRP, change 
programmatically, some continued conversion of grassland, principally 
CRP, back into cultivation is still expected to occur (see section 
``Conservation Reserve Program'' below). Conservation Reserve Program 
contracts, as authorized and outlined by regulation, are of limited, 
temporary duration, and the program is subject to funding by Congress. 
We also recognize that the historical large-scale conversion of 
grasslands to agricultural production has resulted in fragmented 
grassland and shrubland habitats used by lesser prairie-chickens such 
that currently occupied lands are not adequate to provide for the 
conservation of the species into the future, particularly when 
cumulatively considering the threats to the lesser prairie-chicken.
Conservation Reserve Program (CRP)
    The loss of lesser prairie-chicken habitat due to conversion of 
native grasslands to cultivated agriculture has been mitigated 
somewhat, at least temporarily, by the CRP. The CRP is a voluntary 
program administered by the USDA's FSA and was established primarily to 
reduce the production of surplus agricultural commodities and control 
soil erosion on certain croplands by converting cropped areas to a 
vegetative cover such as perennial grassland. Authorization and 
subsequent implementation of the CRP began under the 1985 Food Security 
Act and, since that time, has facilitated restoration of millions of 
acres of marginal and highly erosive cropland to grassland, shrubland, 
and forest habitats (Riffell and Burger 2006, p. 6). Eligibility 
criteria for participation in CRP have been established by the FSA and 
not all lands are eligible for

[[Page 20027]]

enrollment. Under the general signup process, lands are enrolled in CRP 
during designated periods using a competitive selection process. 
However, certain environmentally sensitive lands may be enrolled at any 
time under a continuous signup provision. The State Acres for Wildlife 
Enhancement program, previously discussed in the section highlighting 
Multi-State Conservation Efforts, is an example of a continuous signup 
program. Additional programs, such as the Conservation Reserve 
Enhancement Program and designation as a Conservation Priority Area can 
be used to target enrollment of CRP. Participating producers receive an 
annual rental payment for the duration of a multiyear CRP contract, 
usually 10 to 15 years. Cost sharing is provided to assist in the 
establishment of the vegetative cover and related conservation 
practices. Once the CRP contract expires, landowners have the option to 
either seek reenrollment or exit the program. Once a landowner exits 
the program, lands may then be converted back into cropland or other 
land use, or remain under a conservation cover. Laycock (1991, p. 4) 
believes that retention of the cropland base (base acres that are 
enrolled in the FSA program and are used to estimate the amount of 
production or dollars that are generated from the land) may be the 
single most important factor influencing a landowner's decision to 
convert CRP lands to cropland once the contract expires.
    In 2009, the enrollment authority or national acreage cap for CRP 
was reduced from 15.9 million ha (39.2 million ac) nationwide to 12.9 
million ha (32.0 million ac) through fiscal year 2012, with 1.8 million 
ha (4.5 million ac) allocated to targeted (continuous) signup programs. 
In 2014, the national acreage cap for CRP was reduced from 12.9 million 
ha (32.0 million ac) to 9.7 million ha (24 million ac) through fiscal 
year 2018. While this does not necessarily require a reduction in CRP 
enrollment within the range of the lesser prairie-chicken, it does 
indicate that funds available to enroll or reenroll CRP acres likely 
will decline over the next 5 years. We assume CRP administration within 
the lesser prairie-chicken range will be impacted by the reduction in 
funds or acreage caps over the next 5 years. Nationally, the land area 
enrolled in CRP has declined since 2006. As of July 2013, approximately 
11 million ha (27 million ac) were enrolled in CRP nationwide. Within a 
given county, no more than 25 percent of that county's cropland acreage 
may be enrolled in CRP and the Wetland Reserve Program. A waiver of 
this acreage cap may be granted by the Secretary of Agriculture under 
certain circumstances. These caps influence the maximum amounts of 
cropland that may exist in CRP at any one time. We are unsure whether 
or not waivers of the county acreage cap have been granted within the 
estimated occupied range of the lesser prairie-chicken.
    Since May of 2003, midcontract management, typically implemented in 
years five through seven, has been required on contracts executed since 
the summer of 2003 (signup period 26) and is voluntary for contracts 
accepted before that time. Mid-contract management practices include 
disking, burning, spraying, or interseeding to help establish plants 
and to assure an early successful plant growth stage. Typically these 
midcontract management activities, including actions such as prescribed 
burning, managed grazing, tree thinning, disking, or herbicide 
application to control invasive species, are intended to enhance 
wildlife benefits and are generally prohibited during the primary avian 
nesting and brood rearing season. Within the five States encompassing 
the estimated occupied range of the lesser prairie-chicken, the primary 
avian nesting and brood rearing season ends no later than July 15th and 
varies by State. Under CRP, haying, grazing and several other forms of 
limited harvest, including emergency haying and grazing, are authorized 
under certain conditions. Managed haying and grazing may be authorized 
to improve the quality and performance of the CRP cover. Emergency 
haying and grazing may be granted on CRP lands to provide relief to 
livestock producers in areas affected by drought or other natural 
disaster to minimize loss or culling of livestock herds. In all 
instances, participants are assessed a payment reduction based on the 
number of acres harvested. Additionally, the installation of wind 
turbines, windmills, wind monitoring devices, or other wind-powered 
generation equipment may be installed on CRP acreage on a case-by-case 
basis. Up to 2 ha (5 ac) of wind turbines per contract may be approved.
    Lands enrolled in CRP encompass a significant portion of estimated 
occupied range in several lesser prairie-chicken States, but 
particularly in Kansas where an increase in the lesser prairie-chicken 
population is directly related to the amount of land that was enrolled 
in the CRP and planted to mixtures of native grasses. Enrollment 
information at the county level is publicly available from the Farm 
Service Agency. However, specific locations of individually enrolled 
CRP acreages are not publicly available. The Playa Lakes Joint Venture 
has an agreement with the Farm Service Agency that allows them to use 
available data on individual CRP allotments for conservation purposes, 
provided the privacy of the landowner is protected. The Playa Lakes 
Joint Venture, using this information, determined the extent of CRP 
lands within the estimated occupied range plus a 16-km (10-mi) buffer 
(EOR + 10, as defined in the ``Current Range and Distribution'' 
section, above) (McLachlan et al. 2011, p. 24). In conducting this 
analysis, they restricted their analysis to only those lands that were 
planted to a grass type of conservation cover and they evaluated all 
lands within the estimated occupied range. However, in this study the 
estimated occupied range of 65,012 sq km (25,101 sq mi) was based on 
the 2007 cooperative mapping efforts conducted by species experts from 
CPW, KDWPT, NMDGF, ODWC, and TPWD, in cooperation with the Playa Lakes 
Joint Venture; this is a smaller estimated occupied range than is 
currently accepted (70,602 sq km (27,259 sq mi)). Based on this 
analysis, Kansas was determined to have the most land enrolled in CRP 
with a grass cover type. Kansas had approximately 600,000 ha (1,483,027 
ac) followed by Texas with an estimated 496,000 ha (1,227,695 ac) of 
grassland CRP. Enrolled acreages in Colorado, New Mexico, and Oklahoma 
were 193,064 ha (477,071 ac), 153,000 ha (379,356 ac), and 166,000 ha 
(410,279 ac), respectively. The amount of grass type CRP within the 
study area (EOR + 10) totaled just over 1.61 million ha (3.97 million 
ac). Based on the estimated amount of occupied habitat remaining in 
these States, CRP fields having a grass type of conservation cover 
comprise some 20.6 percent of the estimated occupied lesser prairie-
chicken range in Kansas, 45.8 percent of the estimated occupied range 
in Colorado, and 40.9 percent of the estimated occupied range in Texas. 
New Mexico and Oklahoma have smaller percentages of CRP within the 
occupied range, 17.9 and 15.1 percent, respectively. More recently, the 
FSA estimated the current CRP enrollment, as of March of 2013, within 
the CHAT EOR + 10 to be 2.05 million ha (5.06 million ac) or about 25 
percent of acreage within the CHAT EOR + 10 (FSA 2013, pp. 89, 94).
    The importance of CRP acres to the lesser prairie-chicken, 
particularly in Kansas, is apparent. Not only do CRP lands constitute 
about 25 percent of the

[[Page 20028]]

acreage within the EOR +10 range, about 24 percent of the active lesser 
prairie-chicken leks may be found in or in close proximity to lands 
enrolled in CRP with another 22 percent of leks located within 1.6 km 
(1.0 mi) of CRP lands (FSA 2013, p. 84). The extent of CRP and the 
location of active leks serve to highlight the importance of CRP for 
lesser prairie-chickens. When the sizes of the CRP fields were 
examined, Kansas had 53 percent, on average, of the enrolled lands that 
constituted large habitat blocks. A large block was defined as areas 
that were at least 2,023 ha (5,000 ac) in size with minimal amounts of 
woodland, roads, and developed areas (McLachlan et al. 2011, p. 14). 
All of the other States had 15 percent or less of the enrolled CRP in a 
large block configuration. The importance of CRP habitat to the status 
and survival of lesser prairie-chicken also has been emphasized by 
Rodgers and Hoffman (2005, pp. 122-123). They determined that the 
presence of CRP lands planted with mixtures of native grasses, 
primarily little bluestem, switchgrass, and sideoats grama, facilitated 
the expansion of lesser prairie-chicken range in Colorado, Kansas, and 
New Mexico. The range expansion was most pronounced in Kansas and 
resulted in strong population increases there (Rodgers and Hoffman 
2005, pp. 122-123). However, in Oklahoma, Texas, and some portions of 
New Mexico, many CRP fields were planted with a monoculture of 
introduced grasses. Between 1986 and 1991, 60 percent of the CRP 
planted in Oklahoma and 43 percent of the CRP planted in Texas were 
planted to introduced grasses (Farm Service Agency 2013, p. 87). Where 
introduced grasses were planted, lesser prairie-chickens did not 
demonstrate a range expansion or an increase in population size 
(Rodgers and Hoffman 2005, p. 123).
    An analysis of lesser prairie-chicken habitat quality within a 
subsample of 1,019 CRP contracts across all five lesser prairie-chicken 
States was recently conducted by the Rocky Mountain Bird Observatory 
(Ripper and VerCauteren 2007, entire). They found that, particularly in 
Oklahoma and Texas, contracts executed during earlier signup periods 
allowed planting of monocultures of exotic grasses, such as 
Bothriochloa sp. (old-world bluestem) and Eragrostis curvula (weeping 
lovegrass), which provide poor-quality habitat for lesser prairie-
chicken (Ripper and VerCauteren 2007, p. 11). Correspondingly, a high-
priority conservation recommendation from this study intended to 
benefit lesser prairie-chickens was to convert existing CRP fields 
planted in exotic grasses into fields supporting taller, native grass 
species and to enhance the diversity of native forbs and shrubs used 
under these contracts. Although lesser prairie-chickens occasionally 
will use CRP fields planted to exotic grasses, particularly where 
suitable stands of native grasses are unavailable, monoculture stands 
of grass generally lack the habitat heterogeneity and structure 
preferred by lesser prairie-chickens. Subsequent program adjustments 
since 1991 have encouraged the planting of native grass species 
mixtures on new CRP enrollments. Expiring CRP fields formerly planted 
to monocultures of nonnative, exotic grasses can be reenrolled as 
native grass cover, provided at least 51 percent of the field has been 
established to a native grass mix. Native grass plantings now account 
for well over 80 percent of the cover types established on new CRP 
enrollments (Farm Service Agency 2013, p. 87). However, conversion of 
fields initially planted to old world bluestems and weeping lovegrass 
is difficult considering these species can readily regenerate from seed 
following land disturbance (Farm Service Agency 2013, p. 112).
    Haying and grazing of CRP lands under both managed and emergency 
conditions have the potential to significantly negatively impact 
vegetation if the amount of forage removed is excessive and prolonged, 
or if livestock numbers are sufficient to contribute to soil 
compaction. Currently, managed haying may occur once every three years 
in Kansas, Oklahoma, and Texas; once every five years in New Mexico; 
and once every ten years in Colorado. Managed grazing frequency is 
currently established at once in every three years for Kansas, New 
Mexico, Oklahoma and Texas; and once every five years in Colorado. 
Older, unexpired contracts may have slightly different restrictions 
than those currently described. The FSA estimates that managed haying 
and grazing typically occurs on five percent or less of the enrolled 
acres within the lesser prairie-chicken range States. Acres subject to 
emergency haying and grazing activities are more substantial. The 
greatest proportion of emergency hayed or grazed lands in recent years 
occurred in 2012 (23 percent), 2011 (21 percent) and 2006 (12.4 
percent). Emergency grazing is the predominant use, occurring on over 
60 percent of the acres subject to emergency haying and grazing. 
Emergency grazing is of far greater concern relative to the lesser 
prairie-chicken, specifically considering lesser prairie-chicken 
habitat is sensitive to livestock grazing particularly during periods 
of drought (Holechek et al. 1982, pp. 206, 208). Additional discussion 
related to emergency haying and grazing is provided in the section on 
Drought.
    Predicting the fate of CRP enrollments and their influence on the 
lesser prairie-chicken into the future is difficult. The expiration of 
a contract does not automatically trigger a change in land use and 
lands likely will continue to be enrolled in the program as long as the 
program exists and funds are available to implement the program. The 
future of CRP lands is dependent upon three sets of interacting 
factors: the long-term economies of livestock and crop production, the 
characteristics and attitudes of CRP owners and operators, and the 
direct and indirect incentives of existing and future agricultural 
policy (Heimlich and Kula 1990, p. 7). As human populations continue to 
grow, the worldwide demands for livestock and crop production are 
likely to continue to grow. If demand for U.S. wheat and feed grains is 
high, pressure to convert CRP lands back to cropland will be strong. 
However, in 1990, all five States encompassing the estimated occupied 
range of the lesser prairie-chicken were among the top 10 States 
expected to retain lands in grass following contract expiration 
(Heimlich and Kula 1990, p. 10). A survey of the attitudes of existing 
CRP contract holders in Kansas, where much of the existing CRP land 
occurs, revealed that slightly over 36 percent of landowners with an 
existing contract had made no plans or were uncertain about what they 
would do once the CRP contract expired (Diebel et al. 1993, p. 35). An 
equal percentage stated that they intended to keep lands in grass for 
livestock grazing (Diebel et al. 1993, p. 35). About 24 percent of 
enrolled landowners expected they would return to annual crop 
production in accordance with existing conservation compliance 
provisions (Diebel et al. 1993, p. 35). The participating landowners 
stated that market prices for crops and livestock was the most 
important factor influencing their decision, with availability of cost 
sharing for fencing and water development for livestock also being an 
important consideration. However, only a small percentage, about 15 
percent, were willing to leave their CRP acreages in permanent cover 
after contract expiration where incentives were lacking (Diebel et al. 
1993, p. 8).

[[Page 20029]]

    Although demand for agricultural commodities and the opinions of 
the landowners are important, existing and future agricultural policy 
is expected to have the largest influence on the fate of CRP (Heimlich 
and Kula 1990, p.10). The CRP was most recently renewed under the 
Agricultural Act of 2014, which was signed by the President on February 
7, 2014. The Agricultural Act of 2014 provides $5 billion annually in 
conservation funding through fiscal year 2018 and extends the CRP 
authority through 2018. Because the Agricultural Act of 2014 was just 
recently signed into law, the USDA will be responsible for its 
implementation, and their next steps include initiation of the rule-
making process for many of the conservation program changes including 
those in CRP. Some of the changes in the CRP as a result of enactment 
of the new authority include:
     The reduction in the acreage cap (as mentioned earlier in 
this final rule);
     allowance of emergency haying and grazing use without a 
penalty in the rental rate paid to the landowner;
     allowance of managed haying at least every 5 years but not 
more than every 3 years for a 25 percent rental rate reduction;
     allowance of routine grazing no more often than once every 
2 years;
     allowance of wind turbine installation with due 
consideration of threatened or endangered wildlife; and
     allowance for landowners to make conservation and land 
improvements for economic use 1 year before contract expiration.
    The FSA anticipates preparation of a supplemental programmatic 
environmental impact statement assessing potential changes to the CRP, 
including the reduction of the CRP enrollment cap, in 2014 (78 FR 
71561).
    The possibility exists that escalating grain prices due to the 
potential to generate domestic energy from biofuels, such as ethanol 
from corn, grain sorghum, and switchgrass, combined with Federal budget 
reductions that reduce or eliminate CRP enrollments and renewals, will 
result in an unprecedented conversion of existing CRP acreage within 
the Great Plains back to cropland (Babcock and Hart 2008, p. 6). 
Between 2007 and 2013, Statewide enrollment in CRP within the five 
States where lesser prairie-chicken occurs decreased from 4,641,580 ha 
(11,469,593 ac) to 3,516,361 ha (8,689,117 ac). This reduction of 
1,125,219 ha (2,780,476 ac) not only accounts for lands not re-enrolled 
in CRP and loss of lands due to attrition, but also accounts for new 
enrolled lands. The most recent CRP general signup for individual 
landowners began May 20, 2013, and expired June 14, 2013. Between 
September 30, 2013, and October 31, 2013, the FSA reported the net loss 
of 142,425 ha (351,939 ac) from CRP in the five States that comprise 
the lesser prairie-chicken estimated occupied range; these lands will 
be eligible for conversion back to cropland production or other uses in 
2014. Of the 358,741 ha (886,468 ac) in the five States that expired 
from CRP enrollment on September 30, 2013, 218,162 ha (539,091 ac) were 
reenrolled and 140,578 ha (347,375 ac) were not reenrolled. The 
opportunity to reenroll or extend existing CRP contracts is generally 
based on the relative environmental benefits of each contract. The 
Agricultural Act of 2014, however, adds authority for enrollment of 
809,371 ha (2 million ac) of working grasslands in CRP, thereby 
replacing Grassland Reserve Program contracts. Working grasslands are 
defined as grasslands, including improved range or pasturelands, that 
contain forbs or shrublands for which grazing is the predominate use. 
As part of this change, enrollment priority of working grasslands can 
be given to expiring CRP contracts.
    Between 2014 and 2018 (the year the CRP authority expires under the 
Agricultural Act of 2014), the FSA reports that 743,805 ha (1,837,983 
ac) of enrolled CRP lands of all signup types within the five States 
where the lesser prairie-chicken occurs will expire. It is not yet 
known whether or not these lands will be reenrolled in the program. 
More specifically, the FSA estimates that 83, 961 ha (207,471 acres) of 
CRP within the EOR + 10 will annually be converted back to cropland 
after contract termination (FSA 2013, p. 181). The FSA states that it 
intends to enroll an equivalent amount so there is no net loss of 
reserved lands. However, the FSA is uncertain as to the likelihood of 
maintaining a no net loss of CRP lands.
    The history of the Soil Bank Program provides additional insight 
into the possible future outcomes of CRP. The Soil Bank Program was 
initiated in 1956 as a voluntary program intended to divert land from 
crop production by establishing a permanent vegetative cover on the 
contracted lands. The contracts ran for periods of three to ten years 
and enrollment peaked between 1960 and 1961. At the peak of the program 
there were 306,000 farms with about 11.6 million ha (28.7 million ac) 
under contract (Laycock 1991, p. 3; Heimlich and Kula, 1991, p. 17). 
The Great Plains supported about half of the total acreage where much 
of the area was seeded to perennial grasses. By the close of 1969 all 
of the contracts had expired and approximately 80 percent of the Soil 
Bank lands were back in cultivation by the mid-1970s (Laycock 1991, p. 
3; Heimlich and Kula, 1991, p. 17).
    Should similar large-scale loss or reductions in CRP acreages 
occur, either by reduced enrollments or by conversion back to 
cultivation upon expiration of existing contracts, the loss of CRP 
acreage would further diminish the amount of suitable lesser prairie-
chicken habitat. This concern is particularly relevant in Kansas where 
CRP acreages planted to native grass mixtures facilitated an expansion 
of the area estimated to be occupied lesser prairie-chicken range in 
that State. In States that planted a predominance of CRP to exotic 
grasses, loss of CRP in those States would not be as significant. A 
reduction in CRP acreage could lead to contraction of the estimated 
occupied range and reduced numbers of lesser prairie-chicken rangewide 
and poses a threat to existing lesser prairie-chicken populations. 
While the CRP program has had a beneficial effect on the lesser 
prairie-chicken by addressing the primary threat of habitat loss and 
fragmentation, particularly in Kansas, the contracts are of short 
duration (10-15 years) and, given current government efforts to reduce 
the Federal budget deficit, additional significant new enrollments in 
CRP are not anticipated. However, we anticipate that some CRP grassland 
acreages would be reenrolled in the program once contracts expire, 
subject to the established acreage cap.
    A recent analysis of CRP by the Natural Resources Conservation 
Service (Ungerer and Hagen, 2012, pers. comm.) revealed that between 
2008 and 2011, approximately 273,160 ha (675,000 ac) of CRP contracts 
expired within the estimated occupied range, the majority located in 
Kansas. Many of those expired lands remained in grass. Values varied 
from a low of 72.4 percent remaining in grass in Colorado to a high of 
97.5 percent in New Mexico. Kansas was estimated to have 90.2 percent 
of the expired acres during this period still in grass. Values for 
Oklahoma and Texas had not yet been determined. We expect that many of 
the acreages that remain in grass in New Mexico are likely composed of 
exotic species of grasses. Despite a small overall loss in CRP acreage, 
we are encouraged by the relatively high percentage of CRP that remains 
in grass. However, we remain concerned that the potential for 
significant loss of CRP acreages remains, particularly considering the 
lack of financial incentive for Kansas landowner and the survey of

[[Page 20030]]

prospective land use changes, as previously discussed above. The 
importance of CRP to lesser prairie-chickens, particularly in Kansas, 
is high and continued loss of CRP within the estimated occupied range 
would be detrimental to lesser prairie-chicken conservation.
    We also remain concerned about the future value of these grasslands 
to the lesser prairie-chicken. We assume that many of these CRP 
grasslands that remain in grass after their contract expires could be 
influenced by factors addressed elsewhere in this final rule. 
Encroachment by woody vegetation, fencing, wind power development, and 
construction of associated transmission lines have the potential to 
reduce the value of these areas even if they continue to remain in 
grass. Unless specific efforts are made to target enrollment of CRP in 
areas important to lesser prairie-chickens, future enrollments likely 
will do little to reduce fragmentation or enhance connectivity between 
existing populations. Considering much of the existing CRP in Kansas 
was identified as supporting large blocks of suitable habitat, as 
discussed above, fracturing of these blocks into smaller, less suitable 
parcels by the threats identified in this final rule would reduce the 
value of these grasslands for lesser prairie-chickens. Additionally, 
Fuhlendorf et al. 2002b, p. 405) estimated that cropland areas that 
have been restored to native mixed grass prairie may take at least 30 
to 50 years to fully recover from the effects of cultivation. The 10-15 
year duration of CRP contracts, therefore, may not be long enough to 
allow the grasslands to recover from previous cultivation, thereby 
calling into question the long-term value of these grasslands for 
lesser prairie-chickens.
    In summary, we recognize that lands already converted to cultivated 
agriculture are located throughout the estimated historical and 
occupied range of the lesser prairie-chicken and are, therefore, 
perpetuating continuing habitat fragmentation within the range of the 
lesser prairie-chicken. We expect that CRP will continue to provide a 
means of temporarily addressing this threat by restoring cropland to 
grassland cover and provide habitat for lesser prairie-chickens where 
planting mixtures and maintenance activities are appropriate. However, 
we expect that, in spite of the temporary benefits provided by CRP, 
most of the areas already in agricultural production will remain so 
into the future. While CRP has contributed to the restoration of 
grassland habitats and has influenced abundance and distribution of 
lesser prairie-chickens in some areas, we expect these lands to be 
subject to conversion back to cropland as economic conditions change in 
the future possibly reducing the overall benefit of the CRP to the 
lesser prairie-chicken. A similar conservation program, the Soil Bank, 
was ineffective in securing permanent gains in grassland acres over the 
long term. While we acknowledge the short-term conservation value of 
CRP, we do not anticipate that CRP, at current and anticipated funding 
levels, will cause significant, permanent increases in the extent of 
native grassland within the range of the lesser prairie-chicken 
(Coppedge et al. 2001, p. 57; Drummond 2007, p. 142). Consequently, CRP 
grasslands alone are not adequate to provide for the long-term 
persistence of the species, particularly when the known threats to the 
lesser prairie-chicken are considered cumulatively.
Livestock Grazing
    Habitats used by the lesser prairie-chicken are naturally dominated 
by a diversity of drought-tolerant perennial grasses and shrubs. 
Grazing has long been an ecological driving force within the ecosystems 
of the Great Plains (Stebbins 1981, p. 84), and much of the untilled 
grasslands within the range of the lesser prairie-chicken continue to 
be grazed by livestock and other animals. The evolutionary history of 
the mixed-grass prairie has produced endemic bird species adapted to an 
ever-changing mosaic of lightly to severely grazed grasslands (Bragg 
and Steuter 1996, p. 54; Knopf and Samson 1997, pp. 277-279, 283). 
Historically the interaction of fire, drought, prairie dogs and large 
ungulate grazers created and maintained distinctively different plant 
communities in the western Great Plains that resulted in a mosaic of 
vegetation structure and composition that sustained lesser prairie-
chickens and other grassland bird populations (Derner et al. 2009, p. 
112). As such, grazing by domestic livestock is not inherently 
detrimental to lesser prairie-chicken management. For example, 
appropriate grazing levels or stocking rates can help ensure grass 
cover in brood rearing habitat is not so dense that movements of the 
chicks are hindered. However, grazing practices that tend to maximize 
livestock weight gain and production produce habitat conditions that 
differ in significant ways from the historical mosaic by reducing the 
amount of habitat in an ungrazed to lightly grazed condition. The more 
heavily altered conditions are less suitable for the lesser prairie-
chicken (Hamerstrom and Hamerstrom 1961, pp. 289-290; Davis et al. 
1979, pp. 56, 116; Taylor and Guthery 1980a, p. 2; Bidwell and Peoples 
1991, pp. 1-2).
    Livestock grazing most clearly affects lesser prairie-chickens when 
it alters the composition and structure of mixed-grass habitats used by 
the species. Domestic livestock and native ungulates differentially 
alter native prairie vegetation, in part through different foraging 
preferences (Steuter and Hidinger 1999, pp. 332-333; Towne et al. 2005, 
p. 1557). Additionally, domestic livestock grazing, particularly when 
confined to small pastures, often is managed in ways that produce more 
uniform utilization of forage and greater total utilization of forage, 
in comparison to conditions produced historically by free-ranging 
plains bison (Bison bison) herds. For example, grazing by domestic 
livestock tends to be less patchy, particularly when livestock are 
confined to specific pastures, creating a more uniform grass coverage 
and height that is not optimal for lesser prairie-chickens. Such 
management practices and their consequences may actually exceed the 
effect produced by differences in livestock forage preferences (Towne 
et al. 2005, p. 1558) but, in any case, produce an additive effect on 
plant community characteristics.
    The effects of livestock grazing, particularly overgrazing or 
overutilization, are most readily observed through changes in plant 
community composition and other vegetative characteristics (Fleischner 
1994, pp. 630-631; Stoddart et al. 1975, p. 267). Typical vegetative 
indicators include changes in the composition and proportion of desired 
plant species and overall reductions in forage. Plant height and 
density may decline, particularly when plant regeneration is hindered, 
and community composition shifts to show increased proportions of less 
desirable forage species. Stocking rate and weather account for a 
majority of the variability associated with plant and grazing animal 
production on rangelands (Briske et al. 2008, p. 8). Stocking rate is a 
function of the number of animals being grazed, land area under grazing 
management, and time; and, is the most consistent variable land 
managers have available to influence plant and animal response to 
grazing (Briske et al. 2008, pp. 5-8). Chronic intensive grazing is 
detrimental to plants and can be addressed by rest and deferment 
(periodic cessation of grazing), particularly during growing season 
when plant growth is often rapid. Plants need to recover following 
defoliation, including that caused by

[[Page 20031]]

grazing, in order to promote plant growth and sustainability. Low 
stocking rates tend to promote plant production while higher stocking 
rates reduce plant production by decreasing leaf area per unit ground 
area (Briske et al. 2008, pp. 8-9). Excessive stocking rates often are 
unsustainable over time (Briske et al. 2008, p. 9).
    Grazing management favorable to persistence of the lesser prairie-
chicken must ensure that a diversity of plants and cover types, 
including shrubs, remain on the landscape (Taylor and Guthery 1980a, p. 
7; Bell 2005, p. 4), and that utilization levels leave sufficient cover 
in the spring to ensure that lesser prairie-chicken nests are 
adequately concealed from predators (Davis et al. 1979, p. 49; Wisdom 
1980, p. 33; Riley et al. 1992, p. 386; Giesen 1994a, p. 98). Under any 
grazing regime, the canopy cover of preferred grasses should be at 
least 20 to 30 percent with variable grass heights that average no less 
than 15 inches (Van Pelt et al. 2013, pp. 75-76). Canopy cover of 
shrubs should be between 10 and 50 percent, depending on whether the 
dominant shrub is sand sagebrush or shinnery oak and whether the area 
is being used for nesting or brood-rearing (Van Pelt et al. 2013, pp. 
75-76). Forb cover that exceeds 10 percent is preferred. Utilization 
rates (percentage of annual forage production that is harvested by the 
grazing livestock) will vary depending on a variety of factors but 
should strive to provide vegetative structure that meets the above 
criteria. The rangewide plan has more detailed information on 
appropriate habitat for lesser prairie-chickens and indicates that 
annual utilization rates of 33 percent or less, on average, under 
typical range conditions are most beneficial to lesser prairie-chickens 
(Van Pelt et al. 2013, pp. 75-76; 150).
    Where grazing regimes leave limited residual cover, as described 
above, in the spring, protection of lesser prairie-chicken nests may be 
inadequate and desirable food plants can be scarce (Bent 1932, p. 280; 
Cannon and Knopf 1980, pp. 73-74; Crawford 1980, p. 3). Because lesser 
prairie-chickens depend on medium and tall grass species that are 
preferentially grazed by cattle, in regions of low rainfall, the 
habitat is easily overgrazed in regard to characteristics (i.e. medium 
and tall grass species) needed by lesser prairie-chickens (Hamerstrom 
and Hamerstrom 1961, p. 290). In addition, when grasslands are in a 
deteriorated condition due to overgrazing and overutilization, the 
soils have less water-holding capacity, and the availability of 
succulent vegetation and insects utilized by lesser prairie-chicken 
chicks is reduced. Many effects of overgrazing and overutilization on 
habitat quality are similar to effects produced by drought and likely 
are exacerbated by actual drought conditions (Davis et al. 1979, p. 
122; Merchant 1982, pp. 31-33) (see separate discussion under 
``Drought'' in ``Extreme Weather Events'' below).
    Fencing is a fundamental tool of livestock management and is often 
essential to proper herd management. However, fencing, particularly at 
higher densities, can contribute to structural fragmentation of the 
landscape and hinder efforts to conserve native grasslands on a 
landscape scale (Samson et al. 2004, p. 11-12). Fencing and related 
structural fragmentation can be particularly detrimental to the lesser 
prairie-chicken in areas, such as western Oklahoma, where initial 
settlement patterns favored larger numbers of smaller parcels for 
individual settlers (Patten et al. 2005b, p. 245). Fencing large 
numbers of small parcels increases the density of fences on the 
landscape, increasing opportunities for lesser prairie-chickens to 
encounter fences during flight. Fencing not only contributes to direct 
mortality through forceful collisions during flight, but also can 
indirectly lead to mortality by creating hunting perches used by 
raptors and by facilitating corridors that may enhance movements of 
mammalian predators (Wolfe et al. 2007, pp. 96-97, 101). In addition, 
the presence of fence posts can cause general habitat avoidance and 
displacement in lesser prairie-chickens, which is presumably a 
behavioral response that serves to limit exposure to predation. 
However, not all fences present the same mortality risk to lesser 
prairie-chickens. Mortality risk would appear to be dependent on 
factors such as fencing design (height, type, number of strands), 
landscape topography, and proximity to habitats, particularly leks, 
used by lesser prairie-chickens. Other factors such as the length and 
density of fences also appear to influence the effects of these 
structures on lesser prairie-chickens. However, we are not aware of any 
studies on the impacts of different fencing designs and locations with 
respect to collision mortality in lesser prairie-chickens. Additional 
discussion related to impacts of collisions with fences and similar 
linear features are found in the Collision Mortality section below.
    Recent rangeland management includes influential elements besides 
livestock species selection, grazing levels, and fencing, such as 
applications of fire (usually to promote forage quality for livestock) 
and water management regimes (usually to provide water supplies for 
livestock). Current grazing management strategies are commonly 
implemented in ways that are vastly different and less variable than 
historical conditions (Knopf and Sampson 1997, pp. 277-79). These 
practices have contributed to overall changes in the composition and 
structure of mixed-grass habitats, often making them less suitable for 
the lesser prairie-chicken. Further, the impacts of grazing are 
amplified during drought conditions, which limit the ability of plants 
to recover after being grazed by livestock.
    Livestock are known to inadvertently flush lesser prairie-chickens 
and trample lesser prairie-chicken nests (Toole 2005, p. 27; Pitman et 
al. 2006a, pp. 27-29). This can cause direct mortality to lesser 
prairie-chicken eggs or chicks or may cause adults to permanently 
abandon their nests, again resulting in loss of young. For example, 
Pitman et al. (2006a, pp. 27-29) estimated nest loss from trampling by 
cattle to be about 1.9 percent of known nests. Additionally, even brief 
flushings of adults from nests can expose eggs and chicks to predation 
and extreme temperatures. Although documented, the significance of 
direct livestock effects on the lesser prairie-chicken is largely 
unknown.
    Detailed, rangewide information is lacking on the extent, 
intensity, and forms of recent grazing, and associated effects on the 
lesser prairie-chicken. However, livestock grazing is widespread within 
the five lesser prairie-chicken States and occurs over a large portion 
of the area currently occupied by lesser prairie-chickens; thus, any 
habitat degradation resulting from livestock grazing is likely to 
produce population-level impacts on the lesser prairie-chicken. Kansas, 
Oklahoma and Texas collectively support 24 percent of all the cattle in 
the United States; these three States are also within the top five 
States for cattle numbers as of January 2013 (National Agricultural 
Statistics Service 2013, p. 5). Where uniform grazing regimes have left 
inadequate residual cover in the spring, detrimental effects to lesser 
prairie-chicken populations have been observed (Bent 1932, p. 280; 
Davis et al. 1979, pp. 56, 116; Cannon and Knopf 1980, pp. 73-74; 
Crawford 1980, p. 3; Bidwell and Peoples 1991, pp. 1-2; Riley et al. 
1992, p. 387; Giesen 1994a, p. 97). Some studies have shown that 
overgrazing in specific portions of the lesser prairie-chicken's 
inhabited range has been detrimental to the species. Taylor and Guthery 
(1980a, p. 2)

[[Page 20032]]

believed overgrazing explained the demise of the lesser prairie-chicken 
in portions of Texas but thought lesser prairie-chickens could maintain 
low populations in some areas with high-intensity, long-term grazing. 
In New Mexico, Patten et al. (2006, pp. 11, 16) found that grazing did 
not have an overall influence on where lesser prairie-chickens occurred 
within their study areas, but there was some evidence that the species 
did not nest in portions of the study area subjected to cattle grazing. 
In some areas within lesser prairie-chicken range, long-term high-
intensity grazing results in reduced availability of lightly grazed 
habitat available to support successful nesting (Jackson and DeArment 
1963, p. 737; Davis et al. 1979, pp. 56, 116; Taylor and Guthery 1980a, 
p. 12; Davies 1992, pp. 8, 13).
    In summary, domestic livestock grazing (including management 
practices commonly used to benefit livestock production) has altered 
the composition and structure of mixed-grass habitats historically used 
by the lesser prairie-chicken. Much of the remaining remnants of mixed-
grass prairie and rangeland, while still important to the lesser 
prairie-chicken, exhibit conditions quite different from those that 
prevailed prior to EuroAmerican settlement. These changes have 
considerably reduced the suitability of remnant areas as habitat for 
lesser prairie-chickens. Where habitats are no longer suitable for 
lesser prairie-chicken, these areas can contribute to fragmentation 
within the landscape even though they may remain in native prairie. 
Where improper livestock grazing has degraded native grasslands and 
shrublands, we do not expect those areas to significantly contribute to 
persistence of the lesser prairie-chicken, particularly when considered 
cumulatively with the influence of the other known threats. However 
livestock grazing is not entirely detrimental to lesser prairie-
chickens, provided grazing management provides habitat that is suitable 
for lesser prairie-chickens. When appropriately managed, livestock 
grazing can reduce grass density to facilitate movements of broods and 
enhance the production and diversity of forbs that provide insects 
particularly important to the diet of chicks. Thus, we conclude that 
livestock grazing is not a threat if conducted appropriately such that 
sufficient residual vegetation remains to provide cover for lesser 
prairie-chickens. Negative impacts from livestock grazing are also 
usually reversible, unlike many of the other forms of habitat loss and 
degradation described herein. Therefore, keeping lands in appropriately 
managed rangeland is a key component of lesser prairie chicken 
conservation.

Collision Mortality

    Wire fencing is ubiquitous throughout the Great Plains as the 
primary means of confining livestock to ranches and pastures or 
excluding them from areas not intended for grazing, such as CRP lands, 
agricultural fields, and public roads. As a result, thousands of miles 
of fencing, primarily barbed wire, have been constructed throughout 
lesser prairie-chicken range. Like most grassland wildlife throughout 
the Great Plains, the lesser prairie-chicken evolved in open habitats 
free of vertical structures or flight hazards, such as linear wires. 
Until recently, unnatural linear features such as fences, power lines, 
and similar wire structures were seldom perceived as a significant 
threat at the population level (Wolfe et al. 2007, p. 101). Information 
on the influence of vertical structures is provided elsewhere in this 
document.
    Mortality of prairie grouse caused by collisions with power lines 
has been occurring for decades, but the overall extent is largely 
unmonitored. Proximity to power lines has been associated with 
extirpations of Gunnison and greater sage-grouse due to collisions and 
predation (Wisdom et al. 2011, pp. 467-468). Leopold (1933, p. 353) 
mentions a two-cable transmission line in Iowa where the landowner 
would find as many as a dozen dead or injured greater prairie-chickens 
beneath the line annually. Prompted by recent reports of high collision 
rates in species of European grouse (Petty 1995, p. 3; Baines and 
Summers 1997, p. 941; Bevanger and Broseth 2000, p. 124; Bevanger and 
Broseth 2004, p. 72) and seemingly unnatural rates of mortality in some 
local populations of lesser prairie-chicken, the Sutton Center began to 
investigate collision mortality in lesser prairie-chickens. From 1999 
to 2004, researchers recovered 322 carcasses of radio-marked lesser 
prairie-chickens in New Mexico, Oklahoma, and portions of the Texas 
panhandle. For lesser prairie-chickens in which the cause of death 
could be determined, 42 percent of mortality in Oklahoma was 
attributable to collisions with fences, power lines, or automobiles. In 
New Mexico, only 14 percent of mortality could be traced to collision. 
The difference in rates of observed collision between States was 
attributed to differences in the amount of fencing on the landscape 
resulting from differential land settlement patterns in the two States 
(Patten et al. 2005b, p. 245). In Oklahoma, settlement typically 
involved smaller areas of land ownership when compared with New Mexico, 
leading to a higher density of fences per unit area. Higher density of 
fences contributed to the higher collision rates observed in Oklahoma.
    With between 14 and 42 percent of adult lesser prairie-chicken 
mortality currently attributable to collision with human-induced 
structures, Wolfe et al. (2007, p. 101) assert that fence collisions 
will negatively influence long-term population viability for lesser 
prairie-chickens. Precisely quantifying the scope of the impact of 
fence collisions rangewide is difficult due to a lack of relevant 
information, such as the extent and density of fencing within the 
estimated occupied range. However, we presume that hundreds of miles of 
fences are constructed or replaced annually within the estimated 
historical and occupied ranges of the lesser prairie-chicken, based on 
the extent of livestock grazing within these regions. We presume that 
only rarely are old fences (also see discussion in Summary of Ongoing 
and Future Conservation Efforts section for more information on fence 
removal). While we are unable to quantify the amount of new fencing 
being constructed, collision with fences and other linear features, 
such as power lines, is likely an important source of mortality for 
lesser prairie-chicken, but primarily in localized areas where the 
density of these structures on the landscape is high.
    Fence collisions are known to be a significant source of mortality 
in other grouse. Moss (2001, p. 256) modeled the estimated future 
population of capercaille grouse (Tetrao urogallus) in Scotland and 
found that, by removing fence collision risks, the entire Scotland 
breeding population would consist of 1,300 females instead of 40 
females by 2014. Similarly, recent experiments involving fence marking 
to increase visibility resulted in a 71 percent overall reduction in 
grouse collisions in Scotland (Baines and Andrew 2003, p. 174).
    As previously discussed, collision and mortality risk appears to be 
dependent on factors such as fencing design (height, type, number of 
strands), length, and density, as well as landscape topography and 
proximity of fences to habitats used by lesser prairie-chickens. 
Although single-strand, electric fences may be a suitable substitute 
for multiple strand barbed-wire fences, and possibly lead to reduced 
fence collisions, we have no information demonstrating such is the 
case. However, marking the top two

[[Page 20033]]

strands of barbed-wire fences increases their visibility and may help 
minimize incidence of collision (Wolfe et al. 2009, entire).
    In summary, power lines and unmarked wire fences are known to cause 
injury and mortality of lesser prairie-chickens, although the specific 
rangewide impact on lesser prairie-chickens is largely unquantified. 
However, the prevalence of fences and power lines within the species' 
range and studies showing significant impacts to other grouse species 
suggest these structures may have at least localized, if not 
widespread, detrimental effects. While some conservation programs have 
emphasized removal of unneeded fences, we conclude that, without 
substantially increased removal efforts, a majority of existing fences 
will remain on the landscape indefinitely because they are used to 
manage livestock grazing on many private lands. Existing fences likely 
operate cumulatively with other mechanisms described in this final rule 
to diminish the ability of the lesser prairie-chicken to persist, 
particularly in areas with a high density of fences.
Shrub Control and Eradication
    Shrub control and eradication are additional forms of habitat 
alteration that can influence the availability and suitability of 
habitat for lesser prairie-chickens (Jackson and DeArment 1963, pp. 
736-737). Herbicide applications (primarily 2,4-dichlorophenoxyacetic 
acid (2,4-D) and tebuthiuron) to reduce or eliminate shrubs from native 
rangelands is a common ranching practice throughout much of lesser 
prairie-chicken range, primarily intended to increase forage production 
for livestock. Through foliar (2,4-D) or pelleted (tebuthiuron) 
applications, these herbicides are designed to suppress or kill, by 
repeated defoliation, dicotyledonous plants such as forbs, shrubs, and 
trees, while causing no significant damage to monocotyledon plants such 
as grasses.
    As defined here, shrub control includes efforts that are designed 
to have a relatively short-term, temporary effect, generally less than 
4 to 5 years, on the target shrub. Eradication consists of efforts 
intended to have a more long-term or lasting effect on the target 
shrub. Control and eradication efforts have been applied to both 
shinnery oak and sand sagebrush dominated habitats, although most shrub 
control and eradication efforts are primarily focused on shinnery oak. 
The shinnery oak vegetation type is endemic to the southern Great 
Plains and is estimated to have historically covered an area of 2.3 
million ha (over 5.6 million ac), although its current range has been 
considerably reduced through eradication (Mayes et al. 1998, p. 1609). 
The distribution of shinnery oak overlaps much of the estimated 
occupied lesser prairie-chicken range in New Mexico, southwestern 
Oklahoma, and Texas panhandle region (Peterson and Boyd 1998, p. 2). 
Sand sagebrush tends to be the dominant shrub in lesser prairie-chicken 
range in Kansas and Colorado as well as portions of northwestern 
Oklahoma, the northeast Texas panhandle, and northeastern New Mexico.
    Control or eradication of sand sagebrush occurs within the lesser 
prairie-chicken range (Rodgers and Sexson 1990, p. 494), but the extent 
is unknown. Control or eradication of sand sagebrush appears to be more 
prevalent in other parts of the western United States. Other species of 
shrubs, such as skunkbush sumac or Prunus angustifolia (Chicksaw plum), 
also have been the target of treatment efforts. The herbicide 2,4-D has 
been commonly used to control sand sagebrush (Thacker et al. 2012. p. 
517). Use of 2,4-D in sand sagebrush communities reduced habitat 
structure and sand sagebrush density and cover (Thacker et al. 2012. p. 
518). Application of this herbicide was not found to increase the 
density of perennial forbs or forb species richness (Thacker et al. 
2012. p. 518). However annual forb density did increase in pastures 
that were treated prior to 1985 where time since treatment allowed 
annual forbs to recover post treatment. Typically use of 2,4-D 
suppressed sand sagebrush densities for over 20 years, with no increase 
in the abundance of grasshoppers, an important food item for lesser 
prairie-chickens (Thacker et al. 2012. p. 520). Consequently, Thacker 
et al. (2012, p. 521) cautioned against use of 2,4-D for lesser 
prairie-chicken habitat management in the absence of research 
documenting its impacts on lesser prairie-chicken productivity, 
particularly when nesting cover is limited.
    Shinnery oak is toxic to cattle when it first produces leaves in 
the spring, and it also competes with more palatable grasses and forbs 
for water and nutrients (Peterson and Boyd 1998, p. 8), which is why it 
is a common target for control and eradication efforts. In areas where 
Gossypium spp. (cotton) is grown, shinnery oak was managed to control 
boll weevils (Anthonomus grandis), which can destroy cotton crops 
(Slosser et al. 1985, entire). Boll weevils overwinter in areas where 
large amounts of leaf litter accumulate but tend not to overwinter in 
areas where grasses predominate (Slosser et al. 1985, p. 384). Fire is 
typically used to remove the leaf litter, and then tebuthiuron, an 
herbicide, is used to remove shinnery oak (Plains Cotton Growers 1998, 
pp. 2-3). Prior to the late 1990s, approximately 40,469 ha (100,000 ac) 
of shinnery oak in New Mexico and 404,685 ha (1,000,000 ac) of shinnery 
oak in Texas were lost due to the application of tebuthiuron and other 
herbicides for agriculture and range improvement (Peterson and Boyd 
1998, p. 2).
    Once shinnery oak is eradicated, it is unlikely to recolonize 
treated areas. Shinnery oak is a rhizomatous shrub that reproduces very 
slowly and does not invade previously unoccupied areas (Dhillion et al. 
1994, p. 52). Shinnery oak rhizomes do not appear to be viable in sites 
where the plant was previously eradicated, even decades after 
treatment. While shinnery oak has been germinated successfully in a 
laboratory setting (Pettit 1986, pp. 1, 3), little documentation exists 
that shinnery oak acorns successfully germinate in the wild (Wiedeman 
1960, p. 22; Dhillion et al. 1994, p. 52). In addition, shinnery oak 
produces an acorn crop in only about 3 of every 10 years (Pettit 1986, 
p. 1).
    While lesser prairie-chickens are found in Colorado and Kansas 
where preferred habitats lack shinnery oak, the importance of shinnery 
oak as a component of lesser prairie-chicken habitat has been 
demonstrated by several studies (Fuhlendorf et al. 2002a, pp. 624-626; 
Bell 2005, pp. 15, 19-25). In a study conducted in west Texas, Haukos 
and Smith (1989, p. 625) documented strong nesting avoidance by lesser 
prairie-chickens of rangelands where shinnery oak had been controlled 
with the herbicide tebuthiuron, demonstrating a preference for habitats 
with a shinnery oak component. Similar behavior was confirmed by three 
recent studies, explained below, in New Mexico examining aspects of 
lesser prairie-chicken habitat use, survival, and reproduction relative 
to shinnery oak density and herbicide application to control shinnery 
oak.
    First, Bell (2005, pp. 20-21) documented strong thermal selection 
for and dependency of lesser prairie-chicken broods on dominance of 
shinnery oak in shrubland habitats. In this study, lesser prairie-
chicken hens and broods used sites within the shinnery oak community 
that had a statistically higher percent cover and greater density of 
shrubs. Within these sites, microclimate differed statistically between 
occupied and random sites, and lesser prairie-chicken survival was

[[Page 20034]]

statistically higher in microhabitat that was cooler, more humid, and 
less exposed to the wind. Survivorship was statistically higher for 
lesser prairie-chickens that used sites with greater than 20 percent 
cover of shrubs than for those choosing 10-20 percent cover; in turn, 
survivorship was statistically higher for lesser prairie-chickens 
choosing 10-20 percent cover than for those choosing less than 10 
percent cover. Similarly, Copelin (1963, p. 42) stated that he believed 
the reason lesser prairie-chickens occurred in habitats with shrubby 
vegetation was due to the need for summer shade.
    In a second study, Johnson et al. (2004, pp. 338-342) observed that 
shinnery oak was the most common vegetation type in lesser prairie-
chicken hen home ranges. Hens were detected more often than randomly in 
or near pastures that had not been treated to control shinnery oak. 
Although hens were detected in both treated and untreated habitats in 
this study, 13 of 14 nests were located in untreated pastures, and all 
nests were located in areas dominated by shinnery oak. Areas 
immediately surrounding nests also had higher shrub composition than 
the surrounding pastures. This study suggested that treatment of 
shinnery oak can adversely impact nesting by lesser prairie-chickens.
    Finally, a third study showed that over the course of four years 
and five nesting seasons, lesser prairie-chicken in the core of 
estimated occupied range in New Mexico distributed themselves non-
randomly among shinnery oak rangelands treated and untreated with 
tebuthiuron (Patten et al. 2005a, pp. 1273-1274). Lesser prairie-
chickens strongly avoided habitat blocks treated with tebuthiuron but 
were not statistically influenced by presence of cattle grazing. 
Further, herbicide treatment explained nearly 90 percent of the 
variation in occurrence among treated and untreated areas. Over time, 
radio-collared lesser prairie-chickens spent progressively less time in 
treated habitat blocks, with almost no use of treated pastures in the 
fourth year following herbicide application (25 percent in 2001, 16 
percent in 2002, 3 percent in 2003, and 1 percent in 2004). Although 
shinnery oak is an important food source for lesser prairie-chickens, 
shinnery oak, particularly in the Southern High Plains, may be more 
important for microclimate and thermal regulation than as a food source 
(Grisham et al. 2013, entire). Grisham et al. (2013, p. 7) observed 
that hens may select shrubby areas over grasses in dry years, possibly 
because shrubs, such as shinnery oak, are often the first to leaf out 
and are less dependent on short term precipitation, providing suitable 
cover for lesser prairie-chicken during short term drought.
    In contrast, McCleery et al. (2007, pp. 2135-2136) argued that the 
importance of shinnery oak habitats to lesser prairie-chickens has been 
overemphasized, primarily based on occurrence of the species in areas 
outside of shinnery oak dominated habitats. We agree that shinnery oak 
may not be a rigorously required component of lesser prairie-chicken 
habitat rangewide. However, we find that shrub cover is an important 
component of lesser prairie-chicken habitat, and shinnery oak is a key 
shrub in a large portion of the estimated occupied range of the 
species. Recently, Timmer (2012, pp. 38, 73-74) found that lesser 
prairie-chicken lek density peaked when approximately 50 percent of the 
landscape was composed of shrubland patches consisting of shrubs less 
than 5 m (16 ft) tall and comprising at least 20 percent of the total 
vegetation. Shrubs are an important component of suitable habitat and 
where shinnery oak occurs, lesser prairie-chickens use it both for food 
and cover. The loss of these habitats likely contributed to observed 
population declines in lesser prairie-chickens. Mixed-sand sagebrush 
and shinnery oak rangelands are well documented as preferred lesser 
prairie-chicken habitat, and long-term stability of shrubland 
landscapes has been shown to be particularly important to the species 
(Woodward et al. 2001, p. 271).
    On BLM-managed lands, where the occurrence of the dunes sagebrush 
lizard and lesser prairie-chicken overlaps, their Resource Management 
Plan Amendment (RMPA) states that tebuthiuron may only be used in 
shinnery oak habitat if there is a 500-m (1,600-ft) buffer around 
dunes, and that no chemical treatments should occur in suitable or 
occupied dunes sagebrush lizard habitat (BLM 2008, pp. 4-22). In this 
RMPA (BLM 2008, pp. 16-17), BLM will allow spraying of shinnery oak in 
lesser prairie-chicken habitat where it does not overlap with the dunes 
sagebrush lizard. Additionally, the New Mexico State Lands Office and 
private land owners continue to use tebuthiuron to remove shinnery oak 
for cattle grazing and other agricultural purposes (75 FR 77809, 
December 14, 2010). In the past, the NRCS's herbicide spraying program 
has treated shinnery oak in at least 39 counties within shinnery oak 
habitat (Peterson and Boyd 1998, p. 4). Under the Lesser Prairie-
chicken Initiative, the NRCS may conduct some thinning of shinnery oak 
but the specific extent is not enumerated. Thinning of shinnery oak is 
addressed under the brush management practice. Total acres estimated to 
be treated under the brush management practice in the shinnery oak 
ecosystem is 19,230 ha (47,520 ac), however, thinning is expected to be 
used only in limited circumstances (Shaughnessy 2013, pp. 50, 54).
    The BLM, through the Restore New Mexico program, also treats 
mesquite with herbicides to restore grasslands to a more natural 
condition by reducing the extent of brush. While some improvement in 
livestock forage occurs, the areas are rested from grazing for two 
growing seasons and no increase in stocking rate is allowed. Because 
mesquite is not readily controlled by fire, herbicides often are 
necessary to treat its invasion. The BLM has treated approximately 
157,018 ha (388,000 ac) and has plans to treat an additional 140,425 ha 
(347,000 ac) (Watts 2014, pers. comm.). In order to treat encroaching 
mesquite, BLM aerially treats with a mix of the herbicides Remedy 
(triclopyr) and Reclaim (clopyralid). Although these chemicals are used 
to treat the adjacent mesquite, some herbicide drift into shinnery oak 
habitats can occur during application. Oaks are also included on the 
list of plants controlled by Remedy, and one use for the herbicide is 
treatment specifically for sand shinnery oak suppression, as noted on 
the specimen label (Dow AgroSciences 2008, pp. 5, 7). While Remedy can 
be used to suppress shinnery oak, depending on the concentration, the 
anticipated impacts of herbicide drift into non-target areas are 
expected to be largely short-term due to differences in application 
rates necessary for the desired treatments. Forbs are also susceptible 
to Remedy, according to the specimen label, and may be impacted by 
these treatments, at least temporarily (Dow AgroSciences 2008, p. 2). 
Typically, shinnery oak and mesquite occurrences do not overlap. 
Shinnery oak typically occurs in areas with sandy soils while mesquite 
is more often found in areas where soils have a higher clay content. 
Depending on the density of mesquite, these areas may or may not be 
used by lesser prairie-chickens prior to treatment.
    Lacking germination of shinnery oak acorns, timely recolonization 
of treated areas, or any established propagation or restoration method, 
the application of tebuthiuron at rates approved for use in most States 
can eliminate high-quality lesser prairie-chicken habitat. Large tracts 
of shrubland communities are decreasing, and native shrubs drive 
reproductive output for ground-nesting

[[Page 20035]]

birds in shinnery oak rangelands (Guthery et al. 2001, p. 116).
    In summary, we conclude that the long-term to permanent removal of 
native shrubs such as shinnery oak and sand sagebrush is an ongoing 
threat to the lesser prairie-chicken throughout the estimated occupied 
range, but particularly in New Mexico, Oklahoma, and Texas. Habitat, 
which historically included shrubs, in which the shrubs are permanently 
removed may fail to continue to meet basic needs of the species, such 
as foraging, nesting, predator avoidance, and thermoregulation. Nesting 
habitat typically consists primarily of shrubs and native grasses. In 
some instances, herbicide use may aid in the restoration of lesser 
prairie-chicken habitat, particular where dense monocultures of 
shinnery oak may exist. However, long term to permanent conversion of 
shinnery oak and sand sagebrush shrubland to other land uses 
contributes to habitat fragmentation and poses a threat to population 
persistence.
Pesticides
    To our knowledge, no studies have been conducted examining 
potential effects of agricultural pesticide use on lesser prairie-
chicken populations. However, impacts from pesticides to other prairie 
grouse have been documented. Of approximately 200 greater sage grouse 
known to be feeding in a block of alfalfa sprayed with dimethoate, 63 
were soon found dead, and many others exhibited intoxication and other 
negative symptoms (Blus et al. 1989, p. 1139). Because lesser prairie-
chickens are known to selectively feed in alfalfa fields (Hagen et al. 
2004, p. 72), we find there may be cause for concern that similar 
impacts could occur when pesticides are applied. Additionally some 
insect control efforts, such as grasshopper suppression in rangelands 
by the USDA Animal and Plant Health Inspection Service, treat 
economically damaging infestations of grasshoppers with insecticides. 
Treatment could cause reductions in insect populations consumed by 
lesser prairie-chickens. However, in the absence of more conclusive 
evidence, we do not currently consider application of insecticides for 
most agricultural purposes to be a threat to the species.
    The use of anticoagulant rodenticides like Rozol[supreg] (active 
ingredient-chlorophacinone) that are used to control black-tailed 
prairie dogs (Cynomys ludovicianus) also may present a hazard to lesser 
prairie-chickens. Lesser prairie-chickens are known to occasionally use 
black-tailed prairie dog colonies (Tyler and Shackford 2002, p. 43), 
typically as lek sites (NRCS 1999b, p. 3; Bidwell et al. 2002, pp. 1-2, 
4; NRCS 2011, p. 3). Application of this rodenticide to control black-
tailed prairie dogs is registered for use in ten States, including the 
five States that comprise the estimated occupied range of the lesser 
prairie-chicken (Vyas et al. 2013, p. 97). Typical application involves 
placement of chorophacinone-treated winter wheat at least 15.24 cm (6 
in) inside the burrow from October 1 to March 15th of the following 
year (Vyas et al. 2013, pp. 98-99). Application of the bait inside the 
burrow would normally make the bait largely unavailable to ground 
foraging, granivorous birds, like the lesser prairie-chicken. However 
Vyas et al. (2013, p. 100) confirmed that birds can be exposed and 
ingest the treated bait, at least in some instances. While they raise 
the concern that impacts could occur on a larger scale even when the 
rodenticide is applied according to label instructions, the best 
available information does not confirm that lesser prairie-chickens or 
other western grouse species have been affected by prairie dog control 
measures.
    Although herbicides are applied within the estimated historical and 
occupied ranges, to our knowledge no studies have been conducted 
examining potential effects of herbicide use on the health of lesser 
prairie-chickens. Typically herbicides are applied as a means of 
altering vegetation types or structure and can indirectly alter habitat 
used by lesser prairie-chickens. Information on herbicide application 
and its effects on lesser prairie-chicken habitat is provided in the 
previous section on Shrub Control and Eradication above.
    Pesticide application, particularly for agricultural uses, occurs 
within both the estimated historical and occupied ranges of the lesser 
prairie-chicken. While there are opportunities for individual lesser 
prairie-chickens to be exposed to pesticides, we are not aware of any 
specific studies addressing the implications of such application on the 
individual health of lesser prairie-chickens. In some instances, such 
as for grasshopper control programs, pesticide applications have the 
potential to reduce food availability for lesser prairie-chickens but 
such effects are expected to be localized in nature. While the effects 
can be negative, we do not believe this stressor will impact the long 
term stability or persistence of the lesser prairie-chicken rangewide 
and does not constitute a current threat to the lesser prairie-chicken.

Altered Fire Regimes and Encroachment by Invasive, Woody Plants

    Preferred lesser prairie-chicken habitat is characterized by 
expansive regions of treeless grasslands interspersed with patches of 
small shrubs (Giesen 1998, pp. 3-4). Prior to extensive EuroAmerican 
settlement, frequent fires and grazing by large, native ungulates 
helped confine trees like Juniperus virginiana (eastern red cedar) to 
river and stream drainages and rocky outcroppings. However, settlement 
of the southern Great Plains altered the historical disturbance regimes 
and contributed to habitat fragmentation and conversion of native 
grasslands. The frequency and intensity of these disturbances directly 
influenced the ecological processes, biological diversity, and 
patchiness typical of Great Plains grassland ecosystems, which evolved 
with frequent fire and ungulate herbivory and that provided ideal 
habitat for lesser prairie-chickens (Collins 1992, pp. 2003-2005; 
Fuhlendorf and Smeins 1999, pp. 732, 737).
    Once these historical fire and grazing regimes were altered, the 
processes which helped maintain extensive areas of grasslands ceased to 
operate effectively. Following EuroAmerican settlement, fire 
suppression allowed trees, such as eastern red cedar, to begin invading 
or encroaching upon neighboring grasslands. Increasing fire suppression 
that accompanied settlement, combined with government programs 
promoting eastern red cedar for windbreaks, erosion control, and 
wildlife cover, increased availability of eastern red cedar seeds in 
grassland areas (Owensby et al. 1973, p. 256, DeSantis et al. 2011, p. 
1838). In Oklahoma alone, 1.4 million red cedar seedlings were 
estimated to have been planted in 3,058 km (1,900 mi) of shelterbelts 
between 1935 and 1942 (DeSantis et al. 2011, p. 1838). Once 
established, windbreaks and cedar plantings for erosion control 
contributed to fragmentation of the prairie landscape. Because eastern 
red cedar is not well adapted to survive most grassland fires due to 
its thin bark and shallow roots (Briggs et al. 2002b, p. 290), the lack 
of frequent fire greatly facilitated encroachment by eastern red cedar. 
Once trees began to invade these formerly treeless prairies, the 
resulting habitat became increasingly unsuitable for lesser prairie-
chickens.
    Similar to the effects of man-made vertical structures, the 
presence of trees causes lesser prairie-chickens to cease using areas 
of otherwise suitable habitat. Woodward et al. (2001, pp. 270-271)

[[Page 20036]]

documented a negative association between landscapes with increased 
woody cover and lesser prairie-chicken population indices. Similarly, 
Fuhlendorf et al. (2002a, entire) examined the effect of landscape 
structure and change on population dynamics of lesser prairie-chicken 
in western Oklahoma and northern Texas. They found that landscapes with 
declining lesser prairie-chicken populations had significantly greater 
increases in tree cover types (riparian, windbreaks, and eastern red 
cedar encroachment) than landscapes with stable or increasing 
(sustained) lesser prairie-chicken populations (Fuhlendorf et al. 
2002a, pp. 622, 625).
    Tree encroachment into grassland habitats has been occurring for 
decades, but the extent has been increasing rapidly in recent years 
(Drake and Todd 2002, p. 24; Zhang and Hiziroglu 2010, p. 1033; Ge and 
Zou 2013, p. 9094). Based on the estimated rates of encroachment, tree 
invasion in native grasslands and rangelands has the potential to 
render significant portions of remaining occupied habitat unsuitable 
within two to four decades. Once a grassland area has been colonized by 
eastern red cedar, the trees are mature within 6 to 7 years and provide 
a plentiful source of seed in which adjacent areas can readily become 
infested with eastern red cedar. Eastern red cedar cones (fleshy fruit 
containing seeds) are readily consumed and dispersed by several species 
of migratory and resident birds, many of which favor vertical structure 
(Holthuijzen and Sharik 1985, p. 1512, Holthuijzen et al. 1987, p. 
1092). Some birds may disperse the seeds considerable distances from 
the seed source (Holthuijzen et al. 1987, p. 1094) and passage of the 
cones through the digestive tract increased seed germination by 1.5 to 
3.5 times (Holthuijzen and Sharik 1985, p. 1512). Despite the 
relatively short viability of the seeds, typically only one growing 
season, the large cone crop, potentially large seed dispersal ability, 
and the physiological adaptations of eastern red cedar to open, 
relatively dry sites help make the species a successful invader of 
prairie landscapes (Holthuijzen et al. 1987, p. 1094). Most trees are 
relatively long-lived species and, once they become established in 
grassland areas, will require intensive management to return areas to a 
grassland state.
    Specific information documenting the extent of eastern red cedar 
infestation within the estimated historical and occupied ranges of the 
lesser prairie-chicken is limited. Reeves and Mitchell (2012. p. 92) 
estimated the percent of non-federal rangeland, by state, where 
invasive cedars were present. Although their analysis did not 
specifically target the range of the lesser prairie-chicken, the 
general scope of the impact of eastern red cedar is apparent. An 
estimated 20.4 percent of non-federal rangeland in Oklahoma has eastern 
red cedar present. Lesser amounts occur in Kansas (5.1 percent), Texas 
(2.6 percent) and Colorado (trace amount). New Mexico was the only 
State not currently experiencing encroachment by eastern red cedar.
    Additional information from Oklahoma and portions of Kansas also 
help demonstrate the significance of this threat to lesser prairie-
chicken habitat. In Riley County, Kansas, within the tallgrass prairie 
region known as the Flint Hills, the amount of eastern red cedar 
coverage increased over 380 percent within a 21-year period (Price and 
Grabow 2010, as cited in Beebe et al. 2010, p. 2). In another portion 
of the Flint Hills of Kansas, transition from a tallgrass prairie to a 
closed canopy (where tree canopy is dense enough for tree crowns to 
fill or nearly fill the canopy layer so that light cannot reach the 
floor beneath the trees) eastern red cedar forest occurred in as little 
as 40 years (Briggs et al. 2002a, p. 581). Similarly, the potential for 
development of a closed canopy (crown closure) in western Oklahoma is 
very high (Engle and Kulbeth 1992, p. 304), and eastern red cedar 
encroachment in Oklahoma is occurring at comparable rates. Estimates 
developed by NRCS in Oklahoma revealed that about 121,406 ha (300,000 
ac) a year are being invaded by eastern red cedar (Zhang and Hiziroglu 
2010, p. 1033). Stritzke and Bidwell (1989, as cited in Zhang and 
Hiziroglu 2010, p. 1033) estimated that the area infested by eastern 
red cedar increased from over 600,000 ha (1.5 million ac) in 1950 to 
over 1.4 million ha (3.5 million ac) by 1985. By 2002, the NRCS 
estimated that eastern red cedar had invaded approximately 3.2 million 
ha (8 million ac) of prairie and cross timbers habitat in Oklahoma 
(Drake and Todd 2002, p. 24). Zhang and Hiziroglu (2010, p. 1033) 
estimated that eastern red cedar encroachment in Oklahoma, based on an 
estimated expansion rate of 308 ha (762 ac) per day, is expected to 
exceed 5 million ha (12.6 million ac) by 2013 (). At these rates, the 
area invaded by eastern red cedar could reach almost 6 million ha (14.5 
million ac) by the year 2020 if control efforts are not implemented. 
While the area infested by eastern red cedar in Oklahoma is not 
restricted to the estimated occupied range of the lesser prairie-
chicken, the problem appears to be the worst in northwestern and 
southwestern Oklahoma, which overlaps with the range of the lesser 
prairie-chicken (Zhang and Hiziroglu 2010, p. 1032). Considering that 
southwestern Kansas and the northeastern Texas panhandle have 
comparable rates of precipitation, fire exclusion, and grazing pressure 
as western Oklahoma, this rate of infestation is likely occurring in 
many areas of the estimated occupied lesser prairie-chicken range.
    Ge and Zou (2013, p. 9094) hypothesized that encroachment of 
eastern red cedar will be an important factor affecting suitability of 
rangelands within the southern Great Plains well into the future. Based 
on the observed rate of eastern red cedar expansion in northwestern 
Oklahoma between 1965 to 1995, they projected that woody cover would 
increase 500 percent by 2015, assuming control efforts are not 
implemented. At these rates, eastern red cedar would dominate 
approximately 20 percent of a typical landscape. Similar levels of 
encroachment are being experienced in Kansas and Texas (Ge and Zou 
2013, p. 9094). Schmidt and Wardle (1998, p. 12) predicted that eastern 
red cedar expansion in the Great Plains would continue into the future 
because of limitations on the use of prescribed fire and the economic 
costs of mechanical and chemical treatment of eastern red cedar over 
large areas.
    Eastern red cedar is not the only woody species known to be 
encroaching in prairies used by lesser prairie-chicken. Within the 
southern- and western-most portions of the estimated historical and 
occupied ranges in eastern New Mexico, western Oklahoma, and the Texas 
Panhandle, mesquite is a common woody invader within these grasslands 
and can preclude nesting and brood use by lesser prairie-chickens 
(Riley 1978, p. vii). Other tall, woody plants, such as Juniperus 
pinchotii (redberry or Pinchot juniper), Robinia pseudoacacia (black 
locust), Elaeagnus angustifolia (Russian olive), and Ulmus pumila 
(Siberian elm) also can be found in prairie habitats historically and 
currently used by lesser prairie-chickens and may become invasive in 
these areas. For example, in some portions of the Texas panhandle, 
Pinchot juniper distribution increased by about 61 percent over a 50 
year period (Ansley et al. 1995, p. 50). All of these woody invaders 
can provide perch sites for raptors that may prey on lesser prairie-
chickens.
    Mesquite is a particularly effective woody invader in grassland 
habitats due to its ability to produce abundant, long-lived seeds that 
can germinate and

[[Page 20037]]

establish in a variety of soil types and moisture and light regimes 
(Archer et al. 1988, p. 123). Much of the remaining grasslands and 
rangelands in the southern portions of the Texas panhandle, including 
areas within the estimated occupied range, have been invaded by 
mesquite. Reeves and Mitchell (2012, p. 92) estimated the percent of 
non-federal rangeland in New Mexico, Oklahoma and Texas that has been 
invaded by mesquite. Estimates ranged from a low of 7.5 percent in 
western Oklahoma to a high of 47.6 percent in Texas. Areas that have 
been invaded by mesquite include portions of the estimated occupied 
range in these States. Once established, mesquite can alter nutrient 
cycles and reduce herbaceous cover (Reeves and Mitchell 2012, p. 99). 
Teague et al. (2008, p. 505) reported an average reduction in 
herbaceous biomass of 1,400 kg/ha (1247.8 lbs/ac) in areas having 100 
percent mesquite cover.
    Although the precise extent and rate of mesquite invasion is 
difficult to determine rangewide, the ecological process by which 
mesquite and related woody species invades these grasslands has been 
described by Archer et al. (1988, pp. 111-127) for the Rio Grande 
Plains of Texas. In this study, once a single mesquite tree colonized 
an area of grassland, this plant acted as the focal point for seed 
dispersal of woody species that previously were restricted to other 
habitats (Archer et al. 1988, p. 124). Once established, factors such 
as overgrazing, reduced fire frequency, and drought interacted to 
enable mesquite and other woody plants to increase in density and 
stature on grasslands (Archer et al. 1988, p. 112). On their study site 
near Alice, Texas, they found that woody plant cover significantly 
increased from 16 to 36 percent between 1941 and 1983, likely 
facilitated by heavy grazing (Archer et al. 1988, p. 120). The study 
site had a history of heavy grazing since the late 1800s. However, 
unlike eastern red cedar, mesquite is not as readily controlled by 
fire. Wright et al. (1976, pp. 469-471) observed that mesquite 
seedlings older than 1.5 years were difficult to control with fire 
unless the above ground portions of the trees had first been damaged by 
an herbicide application, and the researchers observed that survival of 
2- to 3-year-old mesquite seedlings was as high as 80 percent even 
following very hot fires.
    Prescribed burning is often the best method to control or preclude 
tree invasion of native grassland and rangeland. However, burning of 
native prairie is often perceived to be destructive to rangelands, 
undesirable for optimizing cattle production, and likely to create wind 
erosion or ``blowouts'' in sandy soils. Often, prescribed fire is 
employed only after significant tree invasion has already occurred and 
landowners consider forage production for cattle to have diminished. 
Consequently, fire suppression is common, and relatively little 
prescribed burning occurs on private land. Additionally, in areas where 
grazing pressure is heavy and fuel loads are reduced, a typical 
grassland fire may not be intense enough to eradicate eastern red cedar 
(Briggs et al. 2002a, p. 585; Briggs et al. 2002b, pp. 293; Bragg and 
Hulbert 1976, p. 19). Briggs et al. (2002a, p. 582) found that grazing 
reduced potential fuel loads by 33 percent, and the reduction in fuel 
load significantly reduced mortality of eastern red cedar post-fire. 
While establishment of eastern red cedar reduces the abundance of 
herbaceous grassland vegetation, grasslands have a significant capacity 
to recover rapidly following cedar control efforts (Pierce and Reich 
2010, p. 248). However, both Van Auken (2000, p. 207) and Briggs et al. 
(2005, p. 244) stated that expansion of woody vegetation into 
grasslands will continue to pose a threat to grasslands well into the 
future.
    In summary, invasion of native grasslands by certain opportunistic 
woody species like eastern red cedar and mesquite cause otherwise 
suitable grassland habitats to no longer be used by lesser prairie-
chickens and contribute to fragmentation of native grassland habitats. 
Lesser prairie-chickens are grassland obligates and do not thrive in 
environments invaded by trees like eastern red cedar and mesquite. We 
expect that efforts to control invasive, woody species like eastern red 
cedar and mesquite will continue but that treatment efforts likely will 
be insufficient to keep pace with rates of expansion, especially when 
considering the environmental changes resulting from climate change 
(see discussion below). Therefore, encroachment by invasive, woody 
plants contributes to further habitat fragmentation and poses a threat 
to lesser prairie-chicken population persistence.

Climate Change

    The effects of ongoing and projected changes in climate are 
appropriate for consideration in our analyses conducted under the Act. 
The Intergovernmental Panel on Climate Change (IPCC) has concluded that 
warming of the climate in recent decades is unequivocal, as evidenced 
by observations of increases in global average air and ocean 
temperatures, widespread melting of snow and ice, and rising global sea 
level (Solomon et al. 2007, p.1). The term ``climate'', as defined by 
the IPCC, refers to the mean and variability of different types of 
weather conditions over time, with 30 years being a typical period for 
such measurements, although shorter or longer periods also may be used 
(IPCC 2007a, p. 78). The IPCC defines the term ``climate change'' to 
refer to a change in the mean or variability of one or more measures of 
climate (e.g., temperature or precipitation) that persists for an 
extended period, typically decades or longer, whether the change is due 
to natural variability, human activity, or both (IPCC 2007a, p. 78).
    Scientific measurements spanning several decades demonstrate that 
changes in climate are occurring and that the rate of change has been 
faster since the 1950s. Examples include warming of the global climate 
system and substantial increases in precipitation in some regions of 
the world and decreases in other regions. (For these and other 
examples, see IPCC 2007a, p. 30; and Solomon et al. 2007, pp. 35-54, 
82-85). Results of scientific analyses presented by the IPCC show that 
most of the observed increase in global average temperature since the 
mid-20th century cannot be explained by natural variability in climate, 
and is ``very likely'' (defined by the IPCC as 90 percent or higher 
probability) due to the observed increase in greenhouse gas 
concentrations in the atmosphere as a result of human activities, 
particularly carbon dioxide emissions from use of fossil fuels (IPCC 
2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp. 
21-35). Further confirmation of the role of greenhouse gasses comes 
from analyses by Huber and Knutti (2011, p. 4), who concluded it is 
extremely likely that approximately 75 percent of global warming since 
1950 has been caused by human activities.
    Scientists use a variety of climate models, which include 
consideration of natural processes and variability, as well as various 
scenarios of potential levels and timing of greenhouse gas emissions, 
to evaluate the causes of changes already observed and to project 
future changes in temperature and other climate conditions (e.g., Meehl 
et al. 2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et 
al. 2011, pp. 527, 529). All combinations of models and emissions 
scenarios yield very similar projections of increases in the most 
common measure of climate change, average global surface temperature 
(commonly known as global warming), until about 2030. Although 
projections of the intensity and rate of warming

[[Page 20038]]

differ after about 2030, the overall trajectory of all the projections 
is one of increased global warming through the end of this century, 
even for the projections based on scenarios that assume that greenhouse 
gas emissions will stabilize or decline. Thus, there is strong 
scientific support for projections that warming will continue through 
the 21st century and that the extent and rate of change will be 
influenced substantially by the extent of greenhouse gas emissions 
(IPCC 2007a, pp. 44-45; Meehl et al. 2007, pp. 760-764 and 797-811; 
Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp. 527, 529). 
(See IPCC 2007b, p. 8, for a summary of other global projections of 
climate-related changes, such as frequency of heat waves and changes in 
precipitation. Also, see IPCC (2012, entire) for a summary of 
observations and projections of extreme climate events.)
    Various changes in climate may have direct or indirect effects on 
species. These effects may be positive, neutral, or negative, and they 
may change over time, depending on the species and other relevant 
considerations, such as interactions of climate with other variables 
(e.g., habitat fragmentation) (IPCC 2007a, pp. 8-14, 18-19). 
Identifying likely effects often involves aspects of climate change 
vulnerability analysis. Vulnerability refers to the degree to which a 
species (or system) is susceptible to, and unable to cope with, adverse 
effects of climate change, including climate variability and extremes. 
Vulnerability is a function of the type, intensity, and rate of climate 
change and variation to which a species is exposed, its sensitivity, 
and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al. 
2011, pp. 19-22). There is no single method for conducting such 
analyses that applies to all situations (Glick et al. 2011, p. 3). We 
use our expert judgment and appropriate analytical approaches to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    As is the case with all stressors that we assess, even if we 
conclude that a species is currently affected or is likely to be 
affected in a negative way by one or more climate-related impacts, it 
does not necessarily follow that the species meets the definition of an 
``endangered species'' or a ``threatened species'' under the Act. If a 
species is listed as endangered or threatened, knowledge regarding the 
vulnerability of the species to, and known or anticipated impacts from, 
climate-associated changes in environmental conditions can be used to 
help devise appropriate strategies for its recovery.
    Some species of grouse have already exhibited significant and 
measurable negative impacts attributed to climate change. For example, 
capercaillie grouse in Scotland have been shown to nest earlier than in 
historical periods in response to warmer springs yet reared fewer 
chicks (Moss et al. 2001, p. 58). The resultant lowered breeding 
success as a result of the described climactic change was determined to 
be the major cause of the decline of the Scottish capercaillie (Moss et 
al. 2001, p. 58).
    Within the Great Plains, average temperatures have increased and 
projections indicate this trend will continue over this century (Karl 
et al. 2009, p. 1). Precipitation within the southern portion of the 
Great Plains is expected to decline, with extreme events such as heat 
waves, sustained droughts, and heavy rainfall becoming more frequent 
(Karl et al. 2009, pp. 1-2). Seager et al. (2007, pp. 1181, 1183-1184) 
suggests that `dust bowl' conditions of the 1930s could be the new 
climatology of the American Southwest, with future droughts being much 
more extreme than most droughts on record.
    As a result of changing conditions, the distribution and abundance 
of grassland bird species will be affected (Niemuth et al. 2008, p. 
220). Warmer air and surface soil temperatures and decreased soil 
moisture near nest sites have been correlated with lower survival and 
recruitment in some ground-nesting birds such as the bobwhite quail 
(Guthery et al. 2001, pp. 113-115) and the lesser prairie-chicken (Bell 
2005, pp. 16, 21). On average, lesser prairie-chickens avoid sites that 
are hotter, drier, and more exposed to the wind (Patten et al. 2005a, 
p. 1275). Specific to lesser prairie-chickens, an increased frequency 
of heavy rainfall events could negatively affect their reproductive 
success (Lehmann 1941 as cited in Peterson and Silvy 1994, p. 223; 
Morrow et al. 1996, p. 599) although the deleterious effects of 
increased spring precipitation have been disputed by Peterson and Silvy 
(1994, pp. 227-228). Peterson and Silvy (1994, pp. 227-228) concluded 
that spring precipitation does not negatively impact annual breeding 
success, particularly when the indirect, positive influence of spring 
precipitation on nesting and brood rearing habitat is considered.
    Additionally, more extreme droughts, in combination with existing 
threats, will have detrimental implications for the lesser prairie-
chicken (see Drought discussion in ``Extreme Weather Events'' below). 
Boal et al. (2010, p. 4) suggests that increased temperatures, as 
projected by climate models, may lead to egg death or nest abandonment 
of lesser prairie-chickens. Furthermore, the researchers suggest that 
if lesser prairie-chickens shift timing of reproduction (to later in 
the year) to compensate for lower precipitation, then temperature 
impacts could be exacerbated.
    In 2010, we evaluated three different climate change vulnerability 
models (U.S. Environmental Protection Agency 2009, draft review; 
NatureServe 2010; USDA Rocky Mountain Research Station 2010, in 
development) to determine their usefulness as potential tools for 
examining the effects of climate change on lesser prairie chickens. 
Outcomes from our assessment of each of these models for the lesser 
prairie-chicken suggested that the lesser prairie-chicken is highly 
vulnerable to, and will be negatively affected by, projected climate 
change (Service 2010). Factors identified in the models that increase 
the vulnerability of the lesser prairie-chicken to climate change 
include, but are not limited to the following: (1) The species' limited 
distribution and relatively small declining population, (2) the 
species' physiological sensitivity to temperature and precipitation 
change, (3) specialized habitat requirements, and (4) the overall 
limited ability of the habitats occupied by the species to shift at the 
same rate as the species in response to climate change.
    Increasing temperatures, declining precipitation, and extended, 
severe drought events would be expected to adversely alter habitat 
conditions, reproductive success, and survival of the lesser prairie-
chicken. While populations of lesser prairie-chicken in the 
southwestern part of the range are likely to be most acutely affected 
because this area is expected to see significant changes in temperature 
and precipitation (Grisham et al, 2013, entire), populations throughout 
the entire estimated occupied range, including Colorado and Kansas, 
likely will be impacted as well. The fragmented nature of the estimated 
occupied range and habitat losses to date have isolated populations and 
will increase their susceptibility to climate change. Based on current 
climate change projections of increased temperatures, decreased 
rainfall, and an increase of severe events such as drought and rainfall 
within the southern Great Plains, the lesser prairie-chicken is likely 
to be adversely impacted by the effects of climate changes, especially 
when considered in combination with other known threats, such as 
habitat loss and fragmentation, and the anticipated vulnerability of 
the species.

[[Page 20039]]

    Additionally, many climate scientists predict that numerous species 
will shift their geographical distributions in response to warming of 
the climate (McLaughlin et al. 2002, p. 6070). In mountainous areas, 
species may shift their range altitudinally, in flatter areas, ranges 
may shift lattitudinally (Peterson 2003, p. 647). Such shifts may 
result in localized extinctions over portions of the range, and, in 
other portions of their distributions, the occupied range may expand, 
depending upon habitat suitability. Changes in geographical 
distributions can vary from subtle to more dramatic rearrangements of 
occupied areas (Peterson 2003, p. 650). Species occupying flatland 
areas such as the Great Plains generally were expected to undergo more 
severe range alterations than those in montane areas (Peterson 2003, p. 
651). Additionally, populations occurring in fragmented habitats can be 
more vulnerable to effects of climate change and other threats, 
particularly for species with limited dispersal abilities (McLaughlin 
et al. 2002, p. 6074). Species inhabiting relatively flat lands will 
require corridors that allow north-south movements, presuming suitable 
habitat exists in these areas. Where existing occupied range is bounded 
by areas of unsuitable habitat, the species' ability to move into 
suitable areas is reduced and the amount of occupied habitat could 
shrink accordingly. In some cases, particularly when natural movement 
has a high probability of failure, assisted migration may be necessary 
to ensure populations persist ((McLachlan et al. 2007, entire).
    We do not currently know how the distribution of lesser prairie-
chickens may change geographically under anticipated climate change 
scenarios. Certainly the presence of suitable grassland habitats 
created under CRP may play a key role in how lesser prairie-chickens 
respond to the effects of climate change. Additionally, species that 
are insectivorous throughout all or a portion of their life cycle, like 
the lesser prairie-chicken, may have increased risks where a 
phenological mismatch exists between their biological needs and shifts 
in insect abundance due to vulnerability of insects to changes in 
thermal regimes (Parmesan 2006, pp. 638, 644, 657; McLachlan et al. 
2011, p. 5). McLachlan et al. (2011, pp. 15, 26) predicted that lesser 
prairie-chicken carrying capacity would decline over the next 60 years 
due to climate change, primarily the result of decreased vegetation 
productivity (reduced biomass); however, they could not specifically 
quantify the extent of the decline. They estimated the current carrying 
capacity within the estimated occupied range to be 49,592 lesser 
prairie-chickens (McLachlan et al. 2011, p. 25). Based on their 
analysis, McLachlan et al. (2011, p. 29) predicted that the lesser 
prairie-chicken may be facing significant challenges to long-term 
survival over the next 60 years due to climate-related changes in 
native grassland habitat. We anticipate that climate-induced changes in 
ecosystems, including grassland ecosystems used by lesser prairie-
chickens, coupled with ongoing habitat loss and fragmentation will 
interact in ways that will amplify the individual negative effects of 
these and other threats identified in this final rule (Cushman et al. 
2010, p. 8).
Extreme Weather Events
    Weather-related events such as drought, and snow and hail storms 
influence habitat quality or result in direct mortality of lesser 
prairie-chicken. Although hail storms typically only have a localized 
effect, the effects of snow storms and drought can often be more wide-
spread and can affect considerable portions of the estimated occupied 
range.
    Drought--Drought is considered a universal ecological driver across 
the Great Plains (Knopf 1996, p. 147). Annual precipitation within the 
Great Plains is considered highly variable (Wiens 1974a, p. 391) with 
prolonged drought capable of causing local extinctions of annual forbs 
and grasses within stands of perennial species, and recolonization is 
often slow (Tilman and El Haddi 1992, p. 263). Net primary production 
in grasslands is strongly influenced by annual precipitation patterns 
(Sala et al. 1988, pp. 42-44; Weltzin et al. 2003, p. 944) and drought, 
in combination with other factors, is thought to limit the extent of 
shrubby vegetation within grasslands (Briggs et al. 2005, p. 245). 
Grassland bird species, in particular, are impacted by climate extremes 
such as extended drought, which acts as a bottleneck that allows only a 
few species to survive through the relatively harsh conditions (Wiens 
1974a, pp. 388, 397; Zimmerman 1992, p. 92). Drought also can influence 
many of the factors previously addressed in this final rule, such as 
exaggerating and prolonging the effect of fires and overgrazing. Seager 
et al. (2007, pp. 1181, 1183-1184) suggests that conditions experienced 
during the droughts of the 1930s could become more frequent in the 
southwestern United States, with future droughts being much more 
extreme than most droughts on record.
    Drought also may exacerbate the impacts of encroachment of woody 
species, such as eastern red cedar and Juniperus pinchotii (redberry or 
Pinchot juniper). Eastern red cedar, as previously discussed, and 
Pinchot juniper (McPherson et al. 1988, entire) have been rapidly 
expanding their range and encroaching into grassland communities due to 
lack of fire and other human activities since EuroAmerican settlement. 
Pinchot juniper occurs in southwestern Oklahoma through portions of the 
Texas panhandle and as far south as the Edwards Plateau in southcentral 
Texas (Willson et al. 2008, p. 301). In portions of the Texas 
panhandle, the extent of Pinchot juniper increased by about 61 percent 
during the period from 1948 to 1982 (Ansley et al. 1995, p. 50) and 
encroachment continues to occur although the rate of expansion is not 
known. While a lack of moisture does hinder germination of many juniper 
species (Smith et al. 1975, p. 126), once established, junipers are 
capable of tolerating conditions typical of most droughts. Although 
eastern red cedar is one of the least drought tolerant species of 
junipers, juniper species as a whole, including those native to North 
America, are considered some of the most drought resistant species in 
the world (Willson et al. 2008, pp. 299, 303). Increased frequency of 
drought, as might occur under a typical climate change scenario, may 
slow the initial establishment of eastern red cedar and other junipers 
but would not be expected to influence their survival in areas that 
have already been invaded. Their observed tolerance to drought 
conditions contributes to their ability to invade and multiply, once 
established, into more xeric (dry) environments (Willson et al. 2008, 
p. 305; DeSantis et al. 2011, p. 1838). Due to their known drought 
tolerance and potential for widespread dispersal by birds, we expect 
that encroachment by eastern red cedar and other junipers would 
continue to occur under anticipated climate change scenarios. Such 
drought tolerance may actually enhance their ability to survive under 
conditions that are less favorable for other species of plants. 
Similarly, we do not anticipate that drought conditions would diminish 
the potential for continued expansion of eastern red cedar and other 
junipers into regions historically dominated by grasslands.
    The Palmer Drought Severity Index (Palmer 1965, entire) is a 
measure of the balance between moisture demand (evapotranspiration 
driven by temperature) and moisture supply

[[Page 20040]]

(precipitation) and is widely used as an indicator of the intensity of 
drought conditions (Alley 1984, entire). This index is standardized 
according to local climate (i.e., climate divisions established by the 
National Oceanic and Atmospheric Administration) and is most effective 
in determining magnitude of long-term drought occurring over several 
months. The index uses zero as normal with drought expressed in terms 
of negative numbers. Positive numbers imply excess precipitation.
    The droughts of the 1930s and 1950s are some of the most severe on 
record (Schubert et al. 2004, p. 485). During these periods, the Palmer 
Drought Severity Index exceeded negative 4 and 5 in many parts of the 
Great Plains, which would be classified as extreme to exceptional 
drought. The drought that impacted much of the estimated occupied 
lesser prairie-chicken range in 2011 also was classified as severe to 
extreme, particularly during the months of May through September 
(National Climatic Data Center 2013). This time period is significant 
because the period of May through September generally overlaps the 
lesser prairie-chicken nesting and brood-rearing season. Review of the 
available records for the Palmer Drought Severity Index during the 
period from May through September 2011, for the climate divisions that 
overlap most of the lesser prairie-chicken estimated occupied range, 
revealed that the index exceeded negative 4 in most of the climate 
divisions. Climate division 4 in westcentral Kansas was the least 
impacted by drought in 2011, with a Palmer Drought Severity Index of 
negative 2.37. The most severe drought conditions, based on the Palmer 
Index, occurred in the Texas panhandle. Of the eight climate divisions 
that encompass the majority of the estimated occupied range, drought 
conditions were ranked the worst on record for the entire 118 year 
period in four of those climate divisions. Conditions in all but one 
climate division were ranked within the ten worst droughts over the 
period of record.
    Based on an evaluation of the Palmer Drought Severity Index for May 
through July of 2012, several of the climate divisions which overlap 
the estimated occupied range continued to experience extreme to 
exceptional drought. Colorado, New Mexico, and Texas are experiencing 
the worst conditions, based on Palmer Index values varying from a low 
of negative 6.23 in Colorado to a high index value of negative 4.33 in 
Texas and negative 4.51 in New Mexico. Drought conditions were least 
severe in Oklahoma, varying from negative 2.15 to negative 4.33. Index 
values for Kansas remained in the severe range and were all negative 
3.23 or worse.
    In 2013, conditions improved slightly in Colorado, Texas, New 
Mexico and portions of Oklahoma and Kansas; however, all but two 
climate divisions over the majority of the estimated occupied range 
were ranked within the top 15 worst droughts on record within those 
climate divisions. Although the drought severity index improved across 
much of the range, severe drought continued to persist. Persistent 
drought conditions, such as those observed between 2011 and 2013 will 
impact vegetative cover for nesting and can reduce insect populations 
needed by growing chicks. The lesser prairie-chicken estimated 
population size in 2013 declined considerably; likely in response to 
degraded habitat conditions cause by the drought conditions that 
prevailed over most of the estimated occupied range in 2011 and 2012 
(see section on ``Recent Population Estimates and Trends'' for 
information related to estimated population size). Existing and ongoing 
fragmentation of suitable habitat likely contributed to the inability 
of lesser prairie-chickens to maintain population numbers in response 
to the drought.
    Additionally, drought impacts forage needed by livestock and 
continued grazing under such conditions can rapidly degrade native 
rangeland. During times of severe to extreme drought, suitable 
livestock forage may become unavailable or considerably reduced due to 
a loss of forage production on existing range and croplands. Through 
provisions of the CRP, certain lands under existing CRP contract can be 
used for emergency haying and grazing, provided specific conditions are 
met, to help relieve the impacts of drought by temporarily providing 
livestock forage. Typically, emergency haying and grazing is allowed 
only on those lands where appropriate Conservation Practices (CP), 
already approved for managed haying and grazing, have been applied to 
the CRP field. For example, CRP fields planted to either introduced 
grasses (CP-1) or native grasses (CP-2) are eligible. However, during 
the widespread, severe drought of 2012 and 2013, eight additional CPs 
that were not previously eligible to be hayed or grazed were approved 
for emergency haying and grazing only during 2012. These additional CPs 
primarily include areas associated with grassed waterways and wetlands. 
Areas under CP-25, rare and declining habitats, were included and were 
the most valuable to lesser prairie-chickens of the eight additional 
practices. Kansas has the most land under CP-25 with about 316,000 ha 
(781,000 ac) enrolled statewide.
    Typically any approved emergency haying or grazing must occur 
outside of the primary nesting season. The duration of the emergency 
haying can be no longer than 60 calendar days, and the emergency 
grazing period cannot extend beyond 90 calendar days, and both must 
conclude by September 30th of the current growing season. Generally 
areas that were emergency hayed or grazed in 1 year are not eligible 
the following 2 years. Other restrictions also may apply.
    In most years, the amounts of land that are emergency hayed or 
grazed are low, typically less than 15 percent of eligible acreage, 
likely because the producer must take a 25 percent reduction in the 
annual rental payment, based on the amount of lands that are hayed or 
grazed. However, during the 2011 drought, requests for emergency haying 
and grazing were larger than previously experienced. For example, in 
Oklahoma, more than 103,200 ha (255,000 ac) or roughly 30 percent of 
the available CRP lands statewide were utilized. Within those counties 
that encompass the estimated occupied range, almost 55,400 ha (137,000 
ac) or roughly 21 percent of the available CRP in those counties were 
hayed or grazed. In Kansas, there were almost 95,900 ha (237,000 ac) 
under contract for emergency haying or grazing within the estimated 
occupied range. The number of contracts for emergency haying and 
grazing within the estimated occupied range in Kansas is about 18 
percent of the total number of contracts within the estimated occupied 
range. Within New Mexico in 2011, there were approximately 21,442 ha 
(52,984 ac) under contract for emergency grazing, the entire extent of 
which were in counties that are either entirely or partially within the 
estimated occupied range of the lesser prairie-chicken. Texas records 
do not differentiate between managed CRP grazing and haying and that 
conducted under emergency provisions. Within the historical range in 
2011, 65 counties had CRP areas that were either hayed or grazed. The 
average percent of areas used was 22 percent. Within the counties that 
overlap the estimated occupied range, the average percent grazed was 
the same, 22 percent.
    As of the end of July 2012, the entire estimated occupied and 
historical range of the lesser prairie-chicken was classified as 
abnormally dry or worse (FSA 2012, p. 14). The abnormally dry category 
roughly corresponds to a Palmer Drought Index of minus 1.0 to

[[Page 20041]]

minus 1.9. Based on new provisions announced by USDA on July 23, 2012, 
the entire estimated historical and occupied ranges of the lesser 
prairie-chicken were eligible for emergency haying and grazing. 
Additionally, the reduction in the annual rental payment was reduced 
from 25 percent to 10 percent. In 2012, New Mexico did not have any 
areas that were under contract for emergency haying or grazing. 
Colorado had 1,032 ha (2,550.9 ac) under contract for emergency haying 
and 30,030 ha (74,206 ac) under contract for emergency grazing within 
the estimated occupied range of the lesser prairie-chicken (Barbarika 
2014). In Kansas, about 34,158 ha (84,405 ac) were under contract for 
emergency haying and 80,526 ha (198,985 ac) were under contract for 
emergency grazing within the estimated occupied range of the lesser 
prairie-chicken (Barbarika 2014). In 2012, Oklahoma had about 2,247 ha 
(5,552.1 ac) were under contract for emergency haying and 36,736 ha 
(90,777.7 ac) were under contract for emergency grazing within the 
estimated occupied range (Barbarika 2014). In Texas, about 3,801 ha 
(9,392.3 ac) were under contract for emergency haying and 21,950 ha 
(54,239.5 ac) were under contract for emergency grazing in 2012 within 
the estimated occupied range of the lesser prairie-chicken (Barbarika 
2014). Combined, about 41,238 ha (101,900.3 ac) were under contract for 
emergency haying and about 169,122 ha (417,908.2 ac) were under 
contract for emergency grazing within the estimated occupied range of 
the lesser prairie-chicken in 2012 (Barbarika 2014). Although the 
extent of emergency haying and grazing that occurred in 2012 represents 
only about 3 percent of the total estimated occupied range, the 
implications become more significant considering this emergency use 
occurs during drought. Under drought conditions, much of the lands that 
are not enrolled in CRP are grazed heavily and lands that are enrolled 
in CRP represent some of the best remaining habitat under drought 
conditions. When these CRP lands are grazed, the effect is to reduce 
the amount of usable habitat that is available for lesser prairie-
chicken nesting, brood rearing and thermal regulation. In many 
instances, areas that were previously grazed or hayed under the 
emergency provisions of 2011 have not recovered due to the influence of 
the ongoing drought. Additionally, current provisions will allow 
additional fields to be eligible for emergency haying and grazing that 
have previously not been eligible, including those classified as rare 
and declining habitat (CP-25). Conservation Practice 25 provides for 
very specific habitat components beneficial to ground-nesting birds 
such as lesser prairie-chickens. The overall extent of relief provided 
to landowners could result in more widespread implementation of the 
emergency provisions than has been observed in previous years. The FSA 
estimated that about 23 percent of the available CRP was emergency 
hayed or grazed in 2012 (FSA 2014, p. 60). Widespread haying and 
grazing of CRP under drought conditions may compromise the ability of 
these grasslands to provide year-round escape cover and thermal cover 
during winter, at least until normal precipitation patterns return (see 
sections Summary of Ongoing and Future Conservation Actions and 
``Conservation Reserve Program'' for additional information related to 
CRP).
    Although the lesser prairie-chicken has adapted to drought as a 
component of its environment, drought and the accompanying harsh, 
fluctuating conditions have influenced lesser prairie-chicken 
populations. Following extreme droughts of the 1930s and 1950s, lesser 
prairie-chicken population levels declined and a decrease in their 
overall range was observed (Lee 1950, p. 475; Schwilling 1955, pp. 5-6; 
Hamerstrom and Hamerstrom 1961, p. 289; Copelin 1963, p. 49; Crawford 
1980, pp. 2-5; Massey 2001, pp. 5, 12; Hagen and Giessen 2005, 
unpaginated; Ligon 1953 as cited in New Mexico Lesser Prairie Chicken/
Sand Dune Lizard Working Group 2005, p. 19). A reduction in lesser 
prairie-chicken population numbers was documented after drought 
conditions in 2006 followed by severe winter conditions in 2006 and 
early 2007. For example, Rodgers (2007b, p. 3) determined that the 
estimated number of lesser prairie-chickens per unit area, based on lek 
surveys conducted in Hamilton County, Kansas, declined by nearly 70 
percent from 2006 levels and were the lowest on record at that time. In 
comparison to the 2011 and 2012 drought, the Palmer Drought Severity 
Index for the May through September period in Kansas during the 2006 
drought was minus 2.83 in climate division 4 and minus 1.52 in climate 
division 7. Based on the Palmer Drought Severity Index, drought 
conditions from 2011to 2013 were much more severe than those observed 
in 2006. The National Weather Service Climate Prediction Center (2014) 
predicts that through the end of April 2014, drought conditions will 
persist or intensify over the entire estimated occupied range. Unless 
the outlook changes, we anticipate that drought conditions will again 
adversely impact habitat during the nesting and brood rearing season. 
Such impacts will reduce nesting success and recruitment well into 
2014.
    Drought impacts the lesser prairie-chicken through several 
mechanisms. Drought affects seasonal growth of vegetation necessary to 
provide suitable nesting and roosting cover, food, and opportunity for 
escape from predators (Copelin 1963, pp. 37, 42; Merchant 1982, pp. 19, 
25, 51; Applegate and Riley 1998, p. 15; Peterson and Silvy 1994, p. 
228; Morrow et al. 1996, pp. 596-597). Lesser prairie-chicken home 
ranges will temporarily expand during drought years (Copelin 1963, p. 
37; Merchant 1982, p. 39) to compensate for scarcity in available 
resources. During these periods, the adult birds expend more energy 
searching for food and tend to move into areas with limited cover in 
order to forage, leaving them more vulnerable to predation and heat 
stress (Merchant 1982, pp. 34-35; Flanders-Wanner et al. 2004, p. 31). 
Chick survival and recruitment may also be depressed by drought 
(Merchant 1982, pp. 43-48; Morrow 1986, p. 597; Giesen 1998, p. 11; 
Massey 2001, p. 12), which likely affects population trends more than 
annual changes in adult survival (Hagen 2003, pp. 176-177). Drought-
induced mechanisms affecting recruitment include decreased 
physiological condition of breeding females (Merchant 1982, p. 45); 
heat stress and water loss of chicks (Merchant 1982, p. 46); and 
effects to hatch success and juvenile survival due to changes in 
microclimate, temperature, and humidity (Patten et al. 2005a, pp. 1274-
1275; Bell 2005, pp. 20-21; Boal et al. 2010, p. 11). Precipitation, or 
lack thereof, appears to affect lesser prairie-chicken adult population 
trends with a potential lag effect (Giesen 2000, p. 145). That is, rain 
in one year promotes more vegetative cover for eggs and chicks in the 
following year, which enhances their survival.
    Although lesser prairie-chickens have persisted through droughts in 
the past, the effects of such droughts are exacerbated by 19th-21st 
century land use practices such as heavy grazing, overutilization, and 
land cultivation (Merchant 1982, p. 51; Hamerstrom and Hamerstrom 1961, 
pp. 288-289; Davis et al. 1979, p. 122; Taylor and Guthery 1980a, p. 
2), which have altered and fragmented existing habitats. In past 
decades, fragmentation of lesser prairie-chicken habitat likely was 
less extensive than current conditions, and connectivity between 
occupied habitats

[[Page 20042]]

was more prevalent, allowing populations to recover more quickly. As 
lesser prairie-chicken populations decline and become more fragmented, 
their ability to rebound from prolonged drought is diminished. This 
reduced ability to recover from drought is particularly concerning 
given that future climate projections suggest that droughts will only 
become more severe. Projections based on an analysis using 19 different 
climate models revealed that southwestern North America, including the 
entire estimated historical and occupied range of the lesser prairie-
chicken, will consistently become drier throughout the 21st century 
(Seager et al. 2007, p. 1181). Severe droughts should continue into the 
future, particularly during persistent La Ni[ntilde]a events, but they 
are anticipated to be more severe than most droughts on record (Seager 
et al. 2007, pp. 1182-1183).
    Grisham et al. (2013, entire) recently evaluated the influence of 
drought and projected climate change on reproductive ecology of the 
lesser prairie-chicken in the Southern High Plains (eastern New Mexico 
and Texas panhandle). They predicted that average daily survival would 
decrease dramatically under all climatic scenarios they examined. Nest 
survival from onset of incubation through hatching were predicted to be 
less than or equal to 10 percent in this region within 40 years. 
Modeling results indicated that nest survival would fall well below the 
threshold for population persistence during that time (Grisham et al. 
2013, p. 8). Although estimates of persistence of lesser prairie-
chickens provided by Garton (2012, pp. 15-16) indicated that lesser 
prairie-chickens in the Shinnery Oak Prairie Region (New Mexico and 
Texas) had a relatively high likelihood of persisting over the next 30 
years, he only examined current information and did not fully consider 
the implications of projected impacts of climate change in his 
analysis. Climate change projections provided by Grisham et al. (2013, 
p.8) indicate that the prognosis for persistence of lesser prairie-
chickens within this isolated region on the southwestern periphery of 
the range is considerably worse than previously predicted under 
projected climate change scenarios.
    Storms--Very little published information is available on the 
effects of certain isolated weather events, like storms, on lesser 
prairie-chicken. However, hail storms are known to cause mortality of 
prairie grouse, particularly during the spring nesting season. Fleharty 
(1995, p. 241) provides an excerpt from the May 1879 Stockton News that 
describes a large hailstorm near Kirwin, Kansas, as responsible for 
killing prairie-chickens (likely greater prairie-chicken) and other 
birds by the hundreds. In May of 2008, a hailstorm killed six lesser 
prairie-chickens in New Mexico (Beauprez 2009, p. 17; Service 2009, p. 
41). Although such phenomena are undoubtedly rare, the effects can be 
significant, particularly if they occur during the nesting period.
    A severe winter snowstorm in 2006, centered over southeastern 
Colorado, resulted in heavy snowfall, no cover, and little food in 
southern Kiowa, Prowers, and most of Baca Counties for over 60 days. 
The storm was so severe that more than 10,000 cattle died in Colorado 
alone from this event, in spite of the efforts of National Guard and 
other flight missions that used cargo planes and helicopters to drop 
hay to stranded cattle (Che et al. 2008, pp. 2, 6). Lesser prairie-
chicken numbers in Colorado experienced a 75 percent decline from 2006 
to 2007, from 296 birds observed to only 74. Active leks also declined 
from 34 leks in 2006 to 18 leks in 2007 (Verquer 2007, p. 2). Most 
strikingly, no active leks have been detected since 2008 in Kiowa 
County, which had six active leks in the several years prior to the 
storm. The impacts of the severe winter weather, coupled with drought 
conditions observed in 2006, probably account for the decline in the 
number of lesser prairie-chickens observed in 2007 in Colorado (Verquer 
2007, pp. 2-3). Birds continued to slowly recover following this storm 
event, with numbers peaking in 2011 (Smith 2013, p.3). Since 2011, 
numbers of birds have declined and are just slightly above numbers 
reported in 2007.
    In summary, extreme weather events can have a significant impact on 
individual populations of lesser prairie-chickens. While improving 
habitat quality and quantity can help stabilize grouse populations and 
enhance resiliency, it has little influence on stochastic processes 
like drought and hailstorms that can lead to extinction in local 
populations (Silvy et al. 2004, p. 19). Extreme weather events will 
continue to occur, as they have in the past, and only where lesser 
prairie-chickens populations are sufficiently resilient can they be 
expected to persist. The impact of extreme weather events is especially 
significant in considering the status of the species as a whole if the 
impacted population is isolated from individuals in other nearby 
populations that may be capable of recolonizing or supplementing the 
impacted population. Droughts, severe storms and other extreme weather 
events, although recurring, are unpredictable and little can be done to 
alter or control the occurrence or significance of these events. Such 
events, and the anticipated impacts, are expected to continue to occur 
into the future. Drought, in particular, may occur throughout the range 
of the species, as it did in 2011, 2012, and 2013, and can severely 
impact persistence of the lesser prairie-chicken. In particular, the 
persistence of the lesser prairie-chicken in the southwestern portions 
of the estimated occupied range (New Mexico and Texas) appears to be 
highly unlikely over the next 30 to 40 years, particularly considering 
the implications of climate change and recurring droughts (Grisham et 
al. (2013, entire). Loss of these populations would exacerbate the 
ongoing reduction in occupied range that has been evident over the past 
century. Extreme weather events, principally drought, are a threat to 
the lesser prairie-chicken, particularly when considered in light of 
other threats such as habitat loss, fragmentation and climate change, 
that reduce resiliency of the species.

Influence of Noise

    The timing of displays and frequency of vocalizations in lesser 
prairie-chickens and other prairie grouse appear to have developed in 
response to conditions prevalent in prairie habitats and indicates that 
effective communication, particularly during the lekking season, 
operates within a fairly narrow set of conditions. Grasslands are 
considered poor environments for sound transmission because absorption 
by vegetation and the ground, combined with scattering caused by high 
winds and thermal turbulence causes the sound intensity to diminish 
(attenuate) rapidly (Morton 1975, pp. 17, 28; Sparling 1983, p. 40). In 
a response to this excess attenuation, grassland birds would have to 
evolve mechanisms that counteract this attenuation in order to 
communicate effectively over long distances. One primary means of 
overcoming this barrier would be to produce vocalizations with low 
carrier frequencies (Sparling 1983, p. 40), as is common in prairie 
grouse. Activity patterns also may play an important role in 
facilitating communication in grassland environments (Morton 1975, p. 
30). Prairie grouse usually initiate displays on the lekking grounds 
around sunrise, and occasionally near sunset, corresponding with times 
of decreased wind and thermal turbulence (Sparling 1983, p. 41). 
Considering the narrow set of conditions in which communication appears 
most effective for breeding lesser prairie-chickens, and the

[[Page 20043]]

importance of communication to successful reproduction, activities that 
disrupt or alter these conditions likely will have a negative impact on 
reproductive potential and population growth.
    While human activities, such as livestock management, grassland 
restoration, shrub control and pesticide application, as discussed in 
the sections above, all cause varying degrees of noise, the impacts of 
noise on lesser prairie-chickens is more readily apparent and often 
most persistent (chronic) when it occurs in association with placement 
of human infrastructure, as discussed in several of the sections below. 
Almost any anthropogenic feature or related activity that occurs on the 
landscape can create noise that exceeds the natural background or 
ambient level. Expansion of transportation networks, urban/suburban 
development, mineral and other forms of resource extraction and 
motorized recreation are responsible for most chronic noise exposure in 
terrestrial environments (Barber et al. 2009, p. 1980). In terrestrial 
systems, the impact of noise may manifest itself in modified behavioral 
response, physiological stress, and various impacts on communication 
(Barber et al. 2009, p. 181). Noise that results in either 
physiological stress or impacts communication is likely to then cause a 
behavioral response. When the behavioral response to noise is 
avoidance, as it often is for lesser prairie-chickens and other prairie 
grouse, noise can be a major source of habitat loss or degradation and 
lead to increased habitat fragmentation.
    Several studies have examined the effect of noise on greater sage-
grouse. Crompton (2005, p. 10) monitored the installation of a well pad 
in Utah that was placed within 200 m (656 ft) of a greater sage-grouse 
lek during 2001. When construction was complete and the pumping unit 
was operating, noise levels recorded 20 m (66 ft) from the pumping unit 
were 70 dB and had dropped to 45 dB when measured 200 m (656 ft) from 
the pumping unit (Crompton 2005, p. 10). Attendance of males at this 
lek declined dramatically beginning with installation of the well pad 
and the lek was completely abandoned within 2 years. The following 
year, the pumping unit was shut down for repairs during April and 
grouse briefly recolonized the lek. Overall, male lek attendance 
declined by 44 percent in areas that were developed for coalbed methane 
production compared with a 15 percent increase in male lek attendance 
in undeveloped areas (Crompton 2005, p. 10). Annual survival rates for 
females also were much lower (12.5 percent) in areas developed for 
coalbed methane than in undeveloped areas (73 percent) (Crompton 2005, 
p. 19). Consequently, Crompton (2005, p. 22) recommended that noise 
levels at active leks should be less than 40 dB and no well pad should 
be located within 1,500 m (0.93 mi) of an active lek. Sound muffling 
devices were recommended for all existing wells that were within this 
1,500 m (0.93 mi) buffer.
    Blickley et al. (2012a, entire) examined the impact of chronic 
noise on greater sage-grouse using playback experiments. This study was 
accomplished by recording noise associated with natural gas drilling 
rigs and the traffic associated with gas-field roads and then re-
playing these recordings near leks. Their results suggest that chronic 
noise had a negative impact on lek attendance by male greater sage-
grouse. Peak male attendance decreased by 73 percent at leks exposed to 
road noise and 29 percent at leks exposed to noise from gas drilling 
activity, when compared to paired control leks (Blickley et al. 2012a, 
p. 467). The observed decrease in lek attendance was immediate and 
sustained throughout the study, although modeling suggested that 
attendance at the leks rebounded once the noise ceased (Blickley et al. 
2012a, p. 467). Because the sound volume of the recorded playback was 
not loud enough to cause direct injury, they concluded that the sounds 
caused displacement of the males that would normally have attended the 
leks (Blickley et al. 2012a, p. 468). Although higher mortality caused 
by increased predation was another possible mechanism for the observed 
decreases in lek attendance, they did not consider increased predation 
to be a factor due to low observations of predation events at the leks 
and because predation would result in a gradual decrease in attendance 
rather than the rapid and sustained decline they observed (Blickley et 
al. 2012a, p. 467). Displacement was likely the result of masking of 
the male's vocalizations at the lek, reducing ability of females to 
detect acoustic cues and locate leks in noisy areas (Blickley et al. 
2012a, p. 469).
    Related work by Blickley and Patricelli (2012, entire) examined the 
potential for noise to mask the sounds used by greater sage-grouse 
during communication. They stated that most anthropogenic noise is 
dominated by low frequencies and that birds, such as greater sage-
grouse, that produce vocalizations dominated by low frequencies will 
disproportionately have their vocalizations masked by these 
developments (Blickley and Patricelli 2012, p. 31). Measurements were 
taken at various noise sources typically associated with oil and gas 
operations, including a compressor station, a deep natural gas drilling 
rig, and at a diesel powered generator (Blickley and Patricelli 2012, 
p. 27). They also measured the ambient noise associated with an 
undisturbed lek after lekking had ceased in the morning and expressed 
the noise produced by each source in relation to the ambient noise 
levels at various distances. All sounds were recorded at a height of 25 
cm (10 in) which roughly corresponds to the height of a typical grouse 
(Blickley and Patricelli 2012, p. 27). Noise produced by the compressor 
was 48.9 dB higher than ambient levels at a distance of 75 m (246 ft) 
from the source and 34.2 dB higher at 400 m (1,312 ft) from the source 
(Blickley and Patricelli 2012, p. 28). Noise produced by the drilling 
rig was slightly less than these values at the same distances and noise 
produced by the generator was 24.9 dB and 18.4 dB higher than ambient 
levels at these distances. Butler et al. (2010. pp. 1160-1161) observed 
the intensity of booming in lekking lesser prairie-chickens and 
estimated that sound intensity of booming vocalizations would be less 
than or equal to 60 dB at 21 m (69 ft), less than or equal to 30 dB at 
645 m (2,116 ft) and about 22 dB at 1.6 km (5,240 ft).
    The frequency of the sounds produced by these sources at these same 
distances was 8 kilohertz (kHz) or less. The variety of vocalizations 
produced by greater sage-grouse peaked at 11.5 kHz or less (Blickley 
and Patricelli 2012, p. 29). Based on this study, noise produced by 
typical oil and gas infrastructure can mask grouse vocalizations and 
compromise the ability of female greater sage-grouse to find active 
leks when such noise is present (Blickley and Patricelli 2012, p. 32). 
Although female grouse also use visual cues to assess potential mates 
on a lek, noisy leks can cause female attendance at these leks to 
decline. As previously discussed in this section, chronic noise 
associated with human activity also leads to reduced male attendance at 
noisy leks. While the effects of masking will decline with distance 
from the sound source, other communication used by grouse off the lek, 
such as parent-offspring communication, may continue to be susceptible 
to masking by noise from human infrastructure (Blickley and Patricelli 
2012, p. 33). These findings

[[Page 20044]]

are particularly important in assessing the impacts of development on 
grouse activity, especially considering that females use the sounds 
produced by the males during courtship to locate a lek, then once a lek 
has been located, to select a mate from the males displaying on that 
lek. Breeding, reproductive success and ultimately recruitment in areas 
with human developments could be impaired by inappropriate placement of 
such developments, impacting survival. Additionally behavioral 
responses exhibited by grouse when exposed to chronic noise could lead 
to reductions in the amount of suitable habitat and negatively 
influence survival and population size in such areas.
    During related studies, Blickley et al. (2012b, entire) evaluated 
the implications of chronic noise on the physiological health of 
lekking male greater sage-grouse through the assessment of 
glucocorticoid hormone levels. Glucocorticoid hormones are secreted 
into the blood in response to stress and their metabolites can be 
measured in fecal samples as an indication of the stress response. In 
this study, noise associated with roads and drilling activity, as 
described in Blickley et al. (2012a, pp. 464-466), was recorded and 
replayed at active greater sage-grouse leks. Males exposed to chronic 
noise had higher (16.7 percent, on average) fecal levels of 
immunoreactive corticosteroid metabolites than did males from 
undisturbed leks, confirming chronic noise increased stress levels in 
male sage grouse that remained on the noisy leks (Blickley et al. 
2012b, pp. 4-5). However, there was little difference in male response 
in relation to the type (e.g., road or drilling) of noise. Chronic 
noise created less desirable habitat for greater sage-grouse than 
habitat present at undisturbed locations, at least at breeding sites 
(Blickley et al. 2012b, p. 6). The impacts of chronic noise on stress 
levels in wintering, nesting, and for foraging males are unknown. Noise 
is likely perceived as a threat by greater sage-grouse and may impact 
social interactions, including territorial response and recognition of 
other greater sage grouse (conspecifics), feeding activities and 
responses to predation, particularly if alarm calls are masked by noise 
(Blickley et al. 2012b, p. 6). Chronic noise may not only reduce the 
amount of useable space but chronic physiological stress could 
potentially affect overall health of the organism including disease 
resistance, survival, and reproductive success.
    We anticipate similar behavioral responses by lesser prairie-
chickens because their vocalizations are low frequency and vocalization 
intensity is less than or equal to sound intensity produced by many 
man-made developments. Blickley et al. (2012a, p. 470) believed that 
noise may be a possible factor in the population declines of other 
species of lekking grouse in North America, particularly for 
populations that are exposed to human developments. Like sage grouse, 
lesser prairie-chicken vocalizations are low frequency, generally less 
than 4 kHz (Sharpe 1968, p. 111-146; Hagen and Giesen 2005, 
unpaginated), and subject to being masked by noise from human 
developments. Butler et al. (2010, p. 1161) predicted sound intensity 
of lesser prairie-chicken booming vocalizations would be 60 dB or less 
at 21 m (69 ft) and 30 dB or less at 645 m (2,116 ft) from the lek.
    Hunt (2004, p. 141) measured sound levels at 33 active and 39 
abandoned lesser prairie-chicken leks in New Mexico in an attempt to 
determine the relationship between noise levels and lek activity. Noise 
levels from several types of infrastructure associated with oil and gas 
drilling operations were measured (Hunt 2004, pp. 147-148). Average 
noise levels of drilling rigs at a distance of 320 m (1,050 ft) was 24 
dB above ambient levels measured at active leks and average noise 
levels for propane and electric powered pumping units at this same 
distance were 14 and 5.9 dB higher, respectively, than ambient levels 
at active leks. Although ambient noise levels at abandoned leks were 
significantly higher (average difference was 4 dB) than ambient noise 
levels at active leks, he concluded that the observed difference did 
not, by itself, completely explain why the leks were abandoned (Hunt 
2004, p. 142). Other factors associated with petroleum development, 
such as human activity, presence of power lines and road density, 
likely contributed to abandonment of the leks they observed (Hunt 2004, 
p. 142). Abandoned leks had more active wells, more total wells, and 
greater length of road than active leks, and were more likely than 
active leks to be near power lines (Hunt 2004, p. iv).
    Pitman et al. (2005, p. 1264) observed the behavioral responses of 
nesting lesser prairie-chicken hens to the presence of anthropogenic 
features, such as wellheads, buildings, roads, transmission lines, and 
center-pivot irrigation fields, in southwestern Kansas. They reported 
that the presence of anthropogenic features resulted in the avoidance 
of 7,114 ha (17,579 ac) of the 13,380 ha (33,063 ac) of nesting habitat 
available within their study area and concluded that noise associated 
with these features likely contributed to the behavioral response 
exhibited by the nesting hens (Pitman et al. 2005, p. 1267). They also 
noted that sound levels, as measured 100 m (328 ft) from the source, 
ranged from 60-80 dB for center-pivots, 80-100 dB for compressor 
stations, and over 100 dB for a power plant. Additionally noise 
associated with transmission lines and heavy traffic from improved 
roads was audible at a distance over 2 km (1.2 mi) from the source.
    In summary, noise can be associated with almost any form of human 
activity and wildlife often exhibit behavioral and physiological 
responses to the presence of noise. Vocalizations between individuals 
of a species are important social cues that can influence habitat use, 
mate selection, breeding activity, survival and ultimately population 
size and persistence. In prairie chickens, the ``boom'' call transmits 
information about sex, territorial status, mating condition, location, 
and individual identity of the signaler and thus are important to 
courtship activity and for long-range advertisement of the display 
ground (Sparling 1981, p. 484). Chronic noise can interfere with these 
social interactions by masking important forms of communication between 
individuals. Opportunities for effective communication on the display 
ground also occurs under fairly narrow conditions and disturbance 
during this period may have negative consequences for reproductive 
success. In lesser prairie-chickens, persistent noise likely causes lek 
attendance to decline, disrupts courtship and breeding activity, 
impairs habitat quality and reduces reproductive success. Noise causes 
abandonment of otherwise suitable habitats and contributes to habitat 
loss and degradation. Many of the development activities discussed in 
the sections below, particularly energy development, emit noises that 
likely cause specific behavioral responses by lesser prairie-chickens. 
As these types of developments continue to increase within the 
estimated occupied range, as expected, the impacts of noise from these 
activities likely will be amplified and will be detrimental to the 
persistence of the lesser prairie-chicken, particularly at the local 
level.

Wind Power and Energy Transmission Operation and Development

    Wind power is a form of renewable energy that is increasingly being 
used to meet electricity demands in the United States. The U.S. Energy 
Information Administration has estimated that the

[[Page 20045]]

demand for electricity in the United States will grow by 39 percent 
between 2005 and 2030 (U.S. Department of Energy (DOE) 2008, p. 1). 
Wind energy, under one scenario, would provide 20 percent of the United 
States' estimated electricity needs by 2030 and require at least 250 
gigawatts of additional land-based wind power capacity to achieve 
predicted levels (DOE 2008, pp. 1, 7, 10). The forecasted increase in 
production would require about 125,000 turbines based on the existing 
technology and equipment in use and assuming a turbine has a generating 
capacity of 2 megawatts (MW). Achieving these levels also would require 
expansion of the current electrical transmission system. Most of the 
wind power development needed to meet these anticipated demands is 
likely to come from the Great Plains States because they have high wind 
resource potential, which exerts a strong, positive influence on the 
amount of wind power developed within a particular State (Staid and 
Guikema 2013, p. 384).
    All 5 lesser prairie-chicken States are within the top 12 States 
nationally for potential wind capacity, with Texas ranking second for 
potential wind energy capacity and Kansas ranking third (American Wind 
Energy Association 2012b, entire). The potential for wind development 
within the estimated historical and occupied ranges of the lesser 
prairie-chicken is apparent from the wind potential estimates developed 
by the DOE's National Renewable Energy Laboratory and AWS Truewind (DOE 
National Renewable Energy Laboratory 2010b, p. 1). These estimates 
present the predicted mean annual wind speeds at a height of 80 m (262 
ft). Areas with an average wind speed of 6.5 m/s (21.3 ft/s) and 
greater at a height of 80 m (262 ft) are generally considered to have a 
suitable wind resource for large scale development. All of the 
estimated historical and occupied range of the lesser prairie-chicken 
occurs in areas determined to have 6.5 m/s (21.3 ft/s) or higher 
average windspeed (DOE National Renewable Energy Laboratory 2010b, p. 
1). The vast majority of the estimated occupied range lies within areas 
having wind speeds of 7.5 m/s (24.6 ft/s) or higher. These wind speeds 
provide good to excellent potential for wind energy production and 
represent the highest potential areas for wind energy development.
    Numerous financial incentives, including grants, production 
incentives and tax relief, already are available to help encourage and 
promote development of renewable energy sources. Four (Colorado, 
Kansas, New Mexico and Texas) of the five states that encompass the 
range of the lesser prairie-chicken have renewable portfolio standards 
(Hitaj 2013, pp. 408-409). Renewable portfolio standards require that 
utilities obtain a certain percentage of their electricity from 
renewable energy sources and there may be substantial financial 
penalties for noncompliance. The percentage of renewable energy in each 
portfolio varies from a low of 4.4 percent in Texas to a high of 27 
percent in Colorado (Hitaj 2013, pp. 408-409). With the exception of 
Texas, which was extended to 2025, all of the renewable portfolio 
standards that have been established within the lesser prairie-chicken 
States have an established target date of 2020. Only Oklahoma does not 
have a renewable portfolio standard. Evaluation of the effects of 
renewable portfolio standards have concluded that these standards have 
had a significant, positive impact on the development of wind power 
within those States with existing renewable portfolio standards (Yin 
and Powers 2010, p. 1149). Oklahoma and New Mexico offer production 
incentives, and Colorado, Kansas and Texas provide property tax 
incentives. Texas also provides a corporate tax credit on equipment and 
installation costs (Hitaj 2013, p. 409).
    At the National level, wind power development has been incentivized 
by the Federal renewable energy production tax credit, most recently 
2.3 cents per kilowatt-hour. The credit typically applies to the first 
10 years of operation but unused credits may be carried forward for up 
to 20 years. This credit first became available in 1992 and has had an 
important effect on investment and development by the wind power 
industry (Hitaj 2013, p. 404; Staid and Guikema 2013, p. 378). 
Development has slowed during periods when the availability of the 
Federal production tax credit was uncertain (Bird et al. 2005, p. 1398; 
Staid and Guikema 2013, p. 378). The production tax credit expired in 
2012 but was extended in January of 2013 through the end of the 
calendar year. The Federal production tax credit has since expired and 
its future is currently unknown. Typically, for years in which the 
production tax credit has not been in place development has slowed and 
the years prior to expiration have shown a boom in wind power 
development (Blair 2012, p. 10).
    Wind farm development begins with site monitoring and collection of 
meteorological data to characterize the available wind regime. Turbines 
are installed after the meteorological data indicate appropriate siting 
and spacing. The tubular towers of most commercial, utility-scale 
onshore wind turbines are between 65 m (213 ft) and 100 m (328 ft) 
tall. The most common system uses three rotor blades and can have a 
diameter of as much as 100 m (328 ft). The total height of the system 
is measured when a turbine blade is in the 12 o'clock position and will 
vary depending on the length of the blade. With blades in place, a 
typical system will exceed 100 m (328 ft) in height. A wind farm will 
vary in size depending on the size of the turbines and amount of land 
available. Typical wind farm arrays consist of 30 to 150 towers each 
supporting a single turbine. The individual permanent footprint of a 
single turbine unit, about 0.3 to 0.4 ha (0.75 to 1 ac), is relatively 
small in comparison with the overall footprint of the entire array (DOE 
2008, pp. 110-111). Spacing between each turbine is usually 5 to 10 
rotor diameters to avoid interference between turbines. Roads are 
necessary to access the turbine sites for installation and maintenance. 
One or more substations, where the generated electricity is collected 
and transmitted, also may be built depending on the size of the wind 
farm. Considering the initial capital investment, and that the service 
life of a single turbine is at least 20 years (DOE 2008, p. 16), we 
expect most wind power developments to be in place for at least 20 
years.
    Siting of commercially viable wind energy developments is largely 
based on wind intensity (speed) and consistency, and requires the 
ability to transmit generated power to the users. Any discussion of the 
effects of wind energy development on the lesser prairie-chicken also 
must take into consideration the influence of the transmission lines 
critical to distribution of the energy generated by wind turbines. 
Transmission lines can traverse long distances across the landscape and 
can be both above ground and underground, although the vast majority of 
transmission lines are erected above ground. Most of the impacts to 
lesser prairie-chicken associated with transmission lines are with the 
aboveground systems. Support structures vary in height depending on the 
size of the line. Most high-voltage powerline towers are 30 to 38 m (98 
to 125 ft) high but can be higher if the need arises. Local 
distribution lines are usually much shorter in height but can still 
contribute to fragmentation of the landscape. Local distribution lines, 
while more often are erected above ground, can be placed below ground. 
Financial investment in the

[[Page 20046]]

transmission of electrical power has been steadily climbing since the 
late 1990s and includes not only the cost of maintaining the existing 
system but also includes costs associated with increasing reliability 
and development of new transmission lines (DOE 2008, p. 94). Manville 
(2005, p. 1052) reported that there are at least 804,500 km (500,000 
mi) of transmission lines (lines carrying greater than 115 kilovolts 
(kV)) within the United States. Recent transmission-related activities 
within the estimated historical and occupied ranges include the 
creation of Competitive Renewable Energy Zones in Texas and the ``X 
plan'' under consideration by the Southwest Power Pool, which are 
discussed in more detail below.
    Wind energy developments already exist within the estimated 
historical range of the lesser prairie-chicken, some of which have 
impacted occupied habitat. The 5 lesser prairie-chicken States are all 
within the top 20 States nationally for installed wind capacity 
(American Wind Energy Association 2012a, p. 6). By the close of 1999, 
the installed capacity, in MW, of wind power facilities within the five 
lesser prairie-chicken States was 209 MW; the majority, 184 MW, was 
provided by the State of Texas (DOE National Renewable Energy 
Laboratory 2010a, p. 1). At the close of 2012, the installed capacity 
within the five lesser prairie-chicken States had grown to 21,140 MW 
(Wiser and Bollinger 2013, p. 9). Although not all of this installed 
capacity is located within the estimated historical or occupied ranges 
of the lesser prairie-chicken, and includes any offshore wind projects 
in Texas (one non-commercial tower at close of 2013), there is 
considerable overlap between the estimated historical and occupied 
ranges and those areas having good to excellent wind potential, as 
determined by the DOE's National Renewable Energy Laboratory (DOE 
National Renewable Energy Laboratory 2010b, p. 1). Areas having good to 
excellent wind potential represent the highest priority sites for wind 
power development, particularly where projects have access to 
transmission systems with available capability.
    Within the estimated occupied range in Colorado, existing wind 
projects are located in Baca, Bent, and Prowers Counties. Colorado's 
installed wind capacity grew by 39 percent in 2011 (American Wind 
Energy Association 2012b, entire). In Kansas, Barber, Ford, Gray, 
Kiowa, and Wichita Counties have existing wind projects. Kansas is 
expected to double their existing capacity in 2012 and leads the United 
States with the most wind power under construction (American Wind 
Energy Association 2012b, entire). By the close of 2012, Kansas had 
installed the most capacity (1,441 MW) of any State (Wiser and 
Bollinger 2013, p. 9). Curry, Roosevelt, and Quay Counties in the New 
Mexico portion of the estimated occupied range currently have operating 
wind projects. There are 14,136 MW (roughly 5,654 2.5 MW turbines) in 
the queue awaiting construction (American Wind Energy Association 
2012b, entire). In Oklahoma, Custer, Dewey, Harper, Roger Mills, and 
Woodward Counties have existing wind farms. Approximately 393 MW are 
under construction and there is another 14,667 MW in the queue awaiting 
construction. In Texas, Carson, Moore, Oldham and Randall counties have 
existing wind farms. Wiser and Bollinger (2013, p. 12) reported that 
nationwide, by the end of 2012, there were about 125 GW of wind power 
projects within the interconnection queues awaiting development. This 
figure represents more than double the existing developed wind capacity 
in the United States with Texas (Electric Reliability Council of Texas) 
and the Southwest Power Pool having almost 32 percent of the total 
capacity in the interconnection queues (Wiser and Bollinger 2013, pp. 
12-13). These two transmission system operators encompass almost all of 
the estimated occupied range of the lesser prairie-chicken in Kansas, 
New Mexico, Oklahoma and Texas.
    Most published literature on the effects of wind development on 
birds focuses on the risks of collision with towers or turbine blades. 
Until recently, there was very little published research specific to 
the effects of wind turbines and transmission lines on prairie grouse 
and much of that focuses on avoidance of the infrastructure associated 
with renewable energy development (see previous discussion on vertical 
structures in the ``Causes of Habitat Fragmentation within Lesser 
Prairie-Chicken Range'' section above and discussion that follows). We 
find that many wind power facilities are not monitored consistently 
enough to detect collision mortalities and the observed avoidance of 
and displacement influenced by the vertical infrastructure observed in 
prairie grouse likely minimizes the opportunity for such collisions to 
occur. However, Vodenhal et al. (2011, unpaginated) has observed both 
greater prairie-chickens and plains sharp-tailed grouse (Tympanuchus 
phasianellus jamesi) lekking near the Ainsworth Wind Energy Facility in 
Nebraska since 2006. The average distance of the observed display 
grounds to the nearest wind turbine tower was 1,430 m (4,689 ft) for 
greater prairie-chickens and 1,178 m (3,864 ft) for sharp-tailed 
grouse.
    Greater prairie-chickens also were observed within a wind power 
development in Kansas, indicating that strong avoidance of such 
developments by prairie grouse is not always evident and, under some 
conditions, the impacts may occasionally be beneficial. Winder et al. 
(2013, entire), as part of a larger study that examined the 
environmental impacts of the Meridian Way wind power project in 
northcentral Kansas, examined the effects of wind energy development on 
survival of female greater prairie-chickens. The study site was located 
in an area that was considerably fragmented, having a relatively high 
density of roads and moderately high incidence of row crop agriculture 
(35 percent) for a primarily grassland landscape (Winder et al. 2013, 
p. 3). They concluded that development of this wind power facility did 
not negatively impact survival of female greater prairie-chickens. In 
fact, survival increased significantly post construction (Winder et al. 
2013, p. 5), perhaps in response to changes in predator behavior 
following completion of construction in 2008. Prior to construction, 
they observed that the majority of greater prairie-chicken mortality 
was due to predation, principally during the lekking season (Winder et 
al. 2013, p. 6). Post construction, they speculated that the presence 
of the wind farm altered predator activity on the study area although 
they did not specifically record information on numbers of predators 
before and after construction (Winder et al. 2013, p. 7).
    Because Winder et al. (2013, entire) only provided information on 
adult survival associated with wind farm development; we lack 
information on recruitment and the long-term persistence of greater 
prairie-chickens at this site. While adult survival is one of several 
demographic factors that influence population growth, it is rarely as 
important as nest and brood survival in prairie grouse, particularly 
lesser prairie-chickens (Pitman et al. 2006b, p. 679; Hagen et al. 
2009, pp. 1329-1330; Grisham 2012, p. 153; Hagen et al. 2013, p. 750). 
The lack of information on nest and brood survival, thus recruitment, 
could result in misrepresentation of the impacts of the wind farm. For 
example, female survival may have been demonstrated to increase post 
construction, but we do not know from this study if the females nested 
or the fate of those nests and of any broods

[[Page 20047]]

that might have been produced. Previous studies on lesser prairie-
chickens demonstrated that females would not nest within specific 
distances of certain vertical structures (Pitman et al. 2005, pp. 1267-
1268). Additionally, Winder et al. (2013, entire) did not provide any 
information on habitat selectivity by the adults or persistence of leks 
at the study site. Consequently, we do not know whether the birds 
actively chose to remain at that location, or simply continued to use 
the only remaining usable habitat and are unable to persist long term. 
While they did report that over 75 percent of the leks were located 
within 8 km (5 mi) of a turbine, the fate of those leks post 
construction were not reported (Winder et al. 2013, p. 3).
    However, additional information regarding this study is available 
that provides more insight into some aspects of the effects of wind 
power development on greater prairie-chickens and helps address some of 
the concerns presented above (Sandercock et al. 2012, entire). With 
respect to lek persistence, the distance from a wind turbine was not 
shown to have a statistically significant effect on the probability of 
lek persistence (Sandercock et al. 2012, p. 11). However, lek sites 
located less than 5 km (3.1 mi) from a turbine had a lower probability 
of persistence than leks that were located larger distances from a 
turbine, leading the authors to conclude that wind energy development 
negatively impacted lek persistence (Sandercock et al. 2012, p. 11). 
Females were not observed to select nest sites at random; instead they 
preferred to nest in native grasslands (Sandercock et al. 2012, p. 25). 
Although females may have remained at the site post construction due to 
the continued presence of suitable grassland habitat, Sandercock et al. 
(2012, p. 3) did not observe any impacts of wind power development on 
nest site selection, nesting success, or female reproductive effort. 
However, they did report weak evidence for avoidance of wind turbines 
by female greater prairie-chickens that were not attending nests or 
broods during the breeding season (Sandercock et al. 2012, p. 25). 
Prior to construction, some 20 percent of the observed movements would 
have crossed the location of the proposed wind farm but post 
construction only 11 percent of the observed movements crossed the area 
where actual wind energy infrastructure existed. They concluded that 
females were more likely to move away from wind power infrastructure 
and may lead to fragmentation of existing populations post construction 
(Sandercock et al. 2012, p. 25).
    When male fitness was examined, they observed that the residual 
body mass of male greater prairie-chickens at lek sites near turbines 
declined post construction and may have negatively impacted individual 
survival or reproductive performance (Sandercock et al. 2012, p. 53). 
Reduced body condition also may impact flight performance and increase 
predation risk in males displaying on leks. Based on counts of males at 
leks, Sandercock et al. (2012, p. 61), did not find that greater 
prairie-chicken population size was negatively impacted by wind power 
development. However, following construction, they observed that the 
number of males declined over the next 3 years of the study and 
resulted in finite rates of population change indicative of a declining 
population (Sandercock et al. (2012, p. 61). They also observed that 
wind power development did appear to reduce dispersal rates or change 
settlement patterns in greater prairie-chickens, leading to higher 
rates of relatedness among males.
    As evident from the study of the Meridian Way Wind Power 
Development, under some conditions, and with some species of grouse, 
the displacement effects of wind power projects may not be as strong as 
observed with other types of developments. In the instance of female 
survival, the presence of wind turbines may enhance survival, 
particularly if the presence of the turbines leads to reduced rates of 
predation. However, at least in this study, the presence of the wind 
power development was not entirely benign and the fragmented nature of 
the landscape surrounding the study site may have exerted a stronger 
influence on the observed behavior of greater prairie-chickens than did 
the presence of the wind turbines over the three year period examined 
in this study. Under these conditions, the birds may have perceived the 
wind project site as more suitable than the surrounding landscape.
    These studies also appear to indicate that greater prairie-chickens 
may be more tolerant of wind turbine towers than other species of 
prairie grouse (Winder et al. (2013, p. 9). Hagen (2004, p. 101) 
cautions that occurrence near such structures may be due to strong site 
fidelity or continued use of suitable habitat remnants and that these 
populations actually may not be able to sustain themselves without 
immigration from surrounding populations (i.e., population sink). If 
greater prairie-chickens are less sensitive to wind energy development, 
this may, at least partially explain why greater prairie-chickens also 
continue to utilize grassland habitats at the Ainsworth Wind Energy 
Facility in Nebraska.
    Currently, we have no documentation of any collision-related 
mortality in wind farms for lesser prairie-chickens. In Kansas, Winder 
et al. (2013, p. 8) did observe collision mortality before and after 
construction of a wind farm but those mortalities were due to fences or 
power lines and not the turbines themselves. Similarly, no deaths of 
gallinaceous birds (upland game birds) were reported in a comprehensive 
review of avian collisions and wind farms in the United States; the 
authors hypothesized that the average tower height and flight height of 
grouse minimized the risk of collision (Erickson et al. 2001, pp. 8, 
11, 14, 15). However, Johnson and Erickson (2011, p. 17) monitored 
commercial scale wind farms in the Columbia Plateau of Washington and 
Oregon and observed that about 13 percent of the observed collision 
mortalities were nonnative upland game birds: Ring-necked pheasant, 
gray partridge (Perdix perdix), and chukar (Alectoris chukar). Although 
the risk of collision with individual wind turbines appears low, 
commercial wind energy developments can directly alter existing 
habitat, contribute to habitat and population fragmentation, and cause 
more subtle alterations that influence how species use habitats in 
proximity to these developments (National Research Council 2007, pp. 
72-84).
    Wind turbines can generate significant levels of noise. Estimates 
of the noise created by wind turbines vary depending on a variety of 
factors. Cummins (2012, p. 12-15) summarizes information on wind 
turbine noise, including use of sound contour maps to explain how 
turbine noise changes with distance, topography, and turbine layout. 
Generally, the wind energy industry expects that turbine noise will 
average 35 to 45 dB at 350 m (1,150 ft) from an operating turbine but 
in some instances the sound may continue to exceed 45 dB as far as 0.8 
km (0.5 mi) from the sound source (Cummings 2012, p. 13). Noise levels 
obviously could peak at levels higher than the average. Most noise 
produced by wind turbines also is low frequency, typically 0.25 kHz or 
less (Cummings 2012, p. 40). Noise levels of this magnitude and 
frequency may generate a behavioral response in lesser prairie-chickens 
and may result in avoidance of areas of otherwise suitable habitat.
    Electrical transmission lines can directly affect prairie grouse by 
posing

[[Page 20048]]

a collision hazard (Leopold 1933, p. 353; Connelly et al. 2000, p. 974; 
Patten et al. 2005b, pp. 240, 242) and can indirectly lead to decreased 
lek recruitment, increased predation, and facilitate invasion by 
nonnative plants. The physical footprint of the actual project is 
typically much smaller than the actual impact of the transmission line 
itself. Lesser prairie-chickens exhibit strong avoidance of tall 
vertical features such as utility transmission lines (Pitman et al. 
2005, pp. 1267-1268). In typical lesser prairie-chicken habitat where 
vegetation is low and the terrain is relatively flat, power lines and 
power poles provide attractive hunting, loafing, and roosting perches 
for many species of raptors (Steenhof et al. 1993, p. 27). The elevated 
advantage of transmission lines and power poles serve to increase a 
raptor's range of vision, allow for greater speed during attacks on 
prey, and serve as territorial markers. Raptors actively seek out power 
lines and poles in extensive grassland areas where natural perches are 
limited. While the effect of this predation on lesser prairie-chickens 
undoubtedly depends on raptor densities, as the number of perches or 
nesting features increase, the impact of avian predation will increase. 
Additional discussion concerning the influence of vertical structures 
on predation of lesser prairie-chickens can be found in the ``Causes of 
Habitat Fragmentation Within Lesser Prairie-Chicken Range'' section 
above, and additional information on predation is provided in a 
separate discussion under ``Predation'' below.
    Transmission lines, particularly due to their length, can be a 
significant barrier to dispersal of prairie grouse, disrupting 
movements to feeding, breeding, and roosting areas. Both lesser and 
greater prairie-chickens avoided otherwise suitable habitat near 
transmission lines and crossed these power lines much less often than 
nearby roads, suggesting that power lines are a particularly strong 
barrier to movement (Pruett et al. 2009a, pp. 1255-1257). Because 
lesser prairie-chickens avoid tall vertical structures like 
transmission lines and because transmission lines can increase 
predation rates, leks located in the vicinity of these structures may 
see reduced recruitment of new males to the lek (Braun et al. 2002, pp. 
339-340, 343-344). Lacking recruitment, leks may disappear as the 
number of older males decline due to death or emigration. Linear 
corridors such as road networks, pipelines, and transmission line 
rights-of-way can create soil conditions conducive to the spread of 
invasive plant species, at least in semiarid sagebrush habitats (Knick 
et al. 2003, p. 619; Gelbard and Belnap 2003, pp. 424-425), but the 
scope of this impact within the range of the lesser prairie-chicken is 
unknown. Spread of invasive plants is most critical where established 
populations of invasive plants begin invading areas of native grassland 
vegetation.
    Electromagnetic fields associated with transmission lines alter the 
behavior, physiology, endocrine systems, and immune function in birds, 
with negative consequences on reproduction and development (Fernie and 
Reynolds 2005, p. 135). Birds are diverse in their sensitivities to 
electromagnetic field exposure with domestic chickens known to be very 
sensitive. Although many raptor species are less affected by these 
fields (Fernie and Reynolds 2005, p. 135), no specific studies have 
been conducted on lesser prairie-chickens. However electromagnetic 
fields associated with powerlines and telecommunication towers may 
explain, at least in part, avoidance of such structures by sage grouse 
(Wisdom et al. 2011, pp. 467-468).
    Identification of the actual number of proposed wind energy 
projects that will be built within the range of the lesser prairie-
chicken in any future timeframe is difficult to accurately discern, 
particularly at smaller scales. Nationally, during the period from 1997 
to 2002, the average annual growth rate in wind power was 24 percent 
(Bird et al. 2005, p. 1397). An analysis of the Federal Aviation 
Administration's Daily Digital Obstruction File (obstacle database) can 
provide some insight into the number of existing and proposed wind 
generation towers. The Federal Aviation Administration is responsible 
for ensuring wind towers and other vertical structures are constructed 
in a manner that ensures the safety and efficient use of the navigable 
airspace. In accomplishing this mission, they evaluate applications 
submitted by the party responsible for the proposed construction and 
alteration of these structures. Included in the application is 
information on the precise location of the proposed structure. This 
information can be used, in conjunction with other databases, to 
determine the number of existing and proposed wind generation towers 
within the estimated historical and occupied ranges of the lesser 
prairie-chicken.
    Analysis of the information contained in the obstacle database, as 
available in April 2010, revealed that 6,279 vertical structures, such 
as wind turbines, telecommunication towers, radio towers, 
meteorological towers and similar vertical structures, were located 
within the estimated historical range of the lesser prairie-chicken at 
that time. An additional estimated 8,501 vertical structures had been 
cleared for construction, and another 1,693 vertical structures were 
pending approval within the estimated historical range of the lesser 
prairie-chicken. While not all of these structures are wind generation 
towers, the vast majority are. A similar analysis was conducted on 
lesser prairie-chicken estimated occupied range. As of April 2010, the 
estimated occupied range included 173 vertical structures. 
Approximately 1,950 vertical structures had been cleared for 
construction, and another 250 vertical structures were awaiting 
approval. In January of 2012, an analysis of the Federal Aviation 
Administration's obstacle database showed that there were 405 existing 
wind turbines in or within 1.6 km (1 mi) of the estimated occupied 
range. In March of 2012, there were 4,887 wind turbines awaiting 
construction, based on the Federal Aviation Administration's 
obstruction evaluation database.
    For this final rule, we conducted a more complete analysis of 
vertical structures in an effort to update the analysis we conducted in 
2010, as explained above. As before, we used the Federal Aviation 
Administration's Daily Digital Obstruction File, current as of November 
2013 to identify the vertical structures that were built and remain 
operational between 1974 and 2013. Generally these are vertical 
structures, such as wind towers and communication towers, that are at 
least 60.6 m (199 ft) above ground level or otherwise have been deemed 
a hazard to aviation. Within the historical range of the lesser 
prairie-chicken, there were a total of 17,800 vertical structures 
identified, of which 9,109 were classified as windmill type (wind 
turbine) structures. Of those windmill structures 1,074 had been 
approved after December 12, 2012, the date of our proposed rule. Within 
the EOR +10, as previously described, there were 3,714 vertical 
structures identified in the database of which about 1,398 vertical 
structures were classified by the Federal Aviation Administration (FAA) 
as windmill type structures. Of those structures, 405 were approved 
after December 12, 2012, the date of our proposed rule.
    Similarly, we used a portion of the FAA's Obstruction Evaluation/
Airport Airspace Analysis database, current as of December 2013, to 
estimate the number of wind turbines and meteorological towers that are 
awaiting construction or alteration, pending

[[Page 20049]]

approval from the FAA. We included meteorological towers because their 
presence is often a good first indication that an area is being studied 
for wind development or as a means of monitoring wind and related data 
within an existing wind farm. These structures/features are grouped 
into four classes: Determined hazard--structure has been given a hazard 
determination by FAA; determined with no build date--evaluation by FAA 
is complete, structure is not a hazard but no completion date has been 
provided; determined with build date--evaluation by FAA is complete, 
structure is not a hazard and a completion date has been provided; not 
yet determined--all structures proposed to be built and have submitted 
the Form 7460-1 but for which FAA has not yet made a determination as 
to whether the structure poses a hazard to air navigation. Our analysis 
of the historical range revealed that 36,197 wind and meteorological 
tower features have been proposed for development. Of that total number 
of features, 12,020 windmill features and 169 meteorological towers 
have been proposed for development within the EOR +10. Within the EOR 
+10, 1,513 windmill features and 37 meteorological towers were 
submitted for approval by FAA after the date of publication of our 
proposed listing rule on December 12, 2012.
    Additionally, the Southwest Power Pool provides public access to 
its Generation Interconnection Queue (https://studies.spp.org/GenInterHomePage.cfm), which provides all of the active requests for 
connection from new energy generation sources requiring Southwest Power 
Pool approval prior to connecting with the transmission grid. The 
Southwest Power Pool is a regional transmission organization which 
overlaps all or portions of nine States, including Kansas, New Mexico, 
Oklahoma, and Texas, and functions to ensure reliable supplies of 
power, adequate transmission infrastructure, and competitive wholesale 
prices of electricity exist. The Southwest Power Pool's jurisdiction in 
Kansas, New Mexico, Oklahoma, and Texas does not include all of the 
historical or estimated occupied range of the lesser prairie-chicken 
but serves as a very conservative indicator of the amount of interest 
in wind power development in these four States. In 2010, within the 
Southwest Power Pool portion of Kansas, New Mexico, Oklahoma, and 
Texas, there were 177 wind generation interconnection study requests 
totaling 31,883 MW awaiting approval. A maximum development scenario, 
assuming all of these projects are built and they install all 2.0 MW 
wind turbines, would result in approximately 15,941 wind turbines being 
erected in these four States. Recently we conducted an additional 
analysis of the current information, as of January 28, 2014, within the 
Southwest Power Pool's Generation Interconnection Queue. We conducted 
this analysis to obtain a more recent evaluation of existing and 
proposed wind power development within the Southwest Power Pool's 
jurisdiction in portions of Kansas, New Mexico, Oklahoma, and Texas. 
There were a total of 74 projects in the queue within the counties 
encompassed by the EOR +10. Thirty-one of those projects were in 
commercial operation, thirty-eight were identified as being in planning 
or development and five projects were suspended and not currently 
moving forward. Fifteen of those thirty-eight projects, totaling 
3,208.3 MW of power, that were identified as being in active planning 
or development were submitted for consideration after publication of 
our proposed rule on December 12, 2012. The total planned power 
production, in MW, for the projects in operation and in planning or 
development were 4,706.5 and 9,324.3, respectively. If we assume a 
typical turbine size of 2.0 MW, an estimated 7,015 turbines have been 
built or are in planning and development at this time within the 
counties encompassed by the EOR +10 within the Southwest Power Pool 
jurisdiction. These estimated values do not include development and 
planning within the Electric Reliability Council of Texas whose 
jurisdiction extends over most of the Texas Panhandle.
    The possible scope of this anticipated wind energy development on 
the status of the lesser prairie-chicken can readily be seen in 
Oklahoma where the locations of many of the current and historically 
occupied leks are known. Most remaining large tracts of untilled native 
rangeland, and hence lesser prairie-chicken habitat, occur on 
topographic ridges. Leks, the traditional mating grounds of prairie 
grouse, are consistently located on elevated grassland sites with few 
vertical obstructions (Flock 2002, p. 35). Because of the increased 
elevation, these ridges also are prime sites for wind turbine 
development. In cooperation with ODWC, Service personnel in 2005 
quantified the potential degree of wind energy development in relation 
to existing populations of lesser prairie-chicken in Oklahoma. All 
active and historically occupied lesser prairie-chicken lek locations 
in Oklahoma, as of the mid 1990s (n = 96), and the estimated occupied 
range, were compared with the Oklahoma Neural Net Wind Power 
Development Potential Model map created by the Oklahoma Wind Power 
Assessment project. The mapping analysis revealed that 35 percent of 
the estimated occupied range in Oklahoma is within areas designated by 
the Oklahoma Wind Power Assessment as ``excellent'' for wind energy 
development. When both the ``excellent'' and ``good'' wind energy 
development classes are combined, about 55 percent of the lesser 
prairie-chicken's occupied range in Oklahoma lies within those two 
classes.
    When leks were examined, the analysis revealed a nearly complete 
overlap on all known active and historically occupied lek locations, 
based on the known active leks during the mid 1990s. Roughly 91 percent 
of the known lesser prairie-chicken lek sites in Oklahoma are within 8 
km (5 mi) of land classified as ``excellent'' for wind development 
(O'Meilia 2005). Over half (53 percent) of all known lek sites in 
Oklahoma occur within 1.6 km (1 mi) of lands classified as 
``excellent'' for commercial wind energy development. This second 
metric is particularly relevant considering a majority of lesser 
prairie-chicken nesting generally occurs, on average, within 3.4 km 
(2.1 mi) of active leks (Hagen and Giesen 2005, p. 2). Robel (2002, p. 
23) estimated that habitat within 1.6 km (1.0 mi) or more of a single 
commercial-scale wind turbine is rendered unsuitable for greater 
prairie chickens due to their tendency to avoid tall structures. Using 
Robel's (2002, p. 23) estimate of this zone of avoidance (1.6 km or 1.0 
mi) for a single commercial-scale wind turbine, development of 
commercial wind farms, which would consist of multiple turbines spaced 
over a large area (typical wind farm arrays consist of 30 to 150 towers 
each supporting a single turbine), likely will have a significant 
adverse influence on reproduction of the lesser prairie-chicken, 
provided lesser prairie-chickens consistently avoid nesting within 1.6 
km (1 mi) of each turbine.
    Unfortunately, a similar analysis of active and historically 
occupied leks is not available for the other States due to a lack of 
comparable information on the location of lek sites. Considering 
western Kansas currently supports the largest number and distribution 
of lesser prairie-chickens of all five States, the influence of wind 
energy development

[[Page 20050]]

on the lesser prairie-chicken in Kansas would likely be equally, if not 
more, significant. As previously discussed in this section, wind power 
development in Kansas is expanding (Wiser and Bollinger 2013, p. 9) and 
the industry is seeking to continue development of additional wind 
farms. In 2006, the Governor of Kansas initiated the Governor's 2015 
Renewable Energy Challenge, an objective of which is to have 1,000 MW 
of renewable energy capacity in Kansas by 2015 (Cita et al. 2008, p. 
1). A cost-benefit study (Cita et al. 2008, Appendix B) found that wind 
power was the most likely and most cost effective form of renewable 
energy resource for Kansas. Modestly assuming an average of 2 MW per 
turbine--most commercial scale turbines are between 1.5 and 2.5 MW--an 
estimated 500 turbines would have to be erected in Kansas if this goal 
is to be met.
    While not all of those turbines would be placed in occupied 
habitat, and some overlap in avoidance would occur if turbines were 
oriented in a typical wind farm array, the potential impact could be 
significant. First, the best wind potential in Kansas occurs in the 
western two-thirds of the State and largely overlaps the estimated 
occupied lesser prairie-chicken range (DOE, National Renewable energy 
Laboratory 2010b, p. 1). Additionally, Kansas has a voluntary 
moratorium on the development of wind power in the Flint Hills of 
eastern Kansas, which likely will shift the focus of development into 
the central and western portions of the State. Taking these two factors 
into consideration, construction of much of the new wind power 
anticipated in the Governor's 2015 Renewable Energy Challenge likely 
would occur in the western two-thirds of Kansas. If we assume that even 
one-half of the estimated 500 turbines are placed in lesser prairie-
chicken range, 250 turbines would individually impact over 101,000 ha 
(250,000 ac), based on an avoidance distance of 1.6 km (1 mi). The 
habitat loss resulting from the above scenario would further reduce the 
extent of large, unfragmented parcels and influence connectivity 
between remaining occupied blocks of habitat, reducing the amount of 
suitable habitat available to the lesser prairie-chicken. Consequently, 
siting of wind energy arrays and associated facilities, including 
electrical transmission lines, appears to be a serious threat to lesser 
prairie-chickens in western Kansas within the near future (Rodgers 
2007a).
    In Colorado, the DOE, National Renewable Energy Laboratory (2010b, 
p. 1) rated the southeastern corner of Colorado as having good wind 
resources, the largest area of Colorado with that ranking. The area 
almost completely overlaps the estimated occupied range of the lesser 
prairie-chicken in Colorado. Colorado currently ranks 10th in both 
total installed capacity and number of commercial scale wind turbines 
in operation (AWEA 2014). The 162 MW Green Wind Power Project and 75 MW 
Twin Buttes Wind Project are located with Prowers County which includes 
portions of the estimated occupied range. The CPW reported that 
commercial wind development is occurring in Colorado, but that most of 
the effort is currently centered north of the estimated occupied range 
of lesser prairie-chicken in southeastern Colorado.
    Wind energy development in New Mexico is less likely than in other 
States within the range of the lesser prairie-chicken because the 
suitability for wind energy development in the estimated occupied range 
of the lesser prairie-chicken in New Mexico is only rated as fair (DOE, 
National Renewable Energy Laboratory 2010b, p. 1). However, some parts 
of northeastern New Mexico within lesser prairie-chicken historical 
range have been rated as excellent. Northeastern New Mexico is 
important to lesser prairie-chicken conservation because this area is 
vital to efforts to reestablish or reconnect the New Mexico lesser 
prairie-chicken population to those in Colorado and the Texas 
panhandle.
    In Texas, the Public Utility Commission recently directed the 
Electric Reliability Council of Texas (ERCOT) to develop transmission 
plans for wind capacity to accommodate between 10,000 and 25,000 MW of 
power (American Wind Energy Association 2007b, pp. 2-3). ERCOT is a 
regional transmission organization with jurisdiction over most of 
Texas. The remainder of Texas, largely the Texas panhandle, lies within 
the jurisdiction of the Southwest Power Pool. A recent assessment from 
ERCOT identified more than 130,000 MW of high-quality wind sites in 
Texas, more electricity than the entire State currently uses. The 
establishment of Competitive Renewable Energy Zones by ERCOT within the 
State of Texas will facilitate wind energy development throughout 
western Texas. Based on the development priority of each zone, the top 
four Competitive Renewable Energy Zones, which are designated for 
future wind energy development in the Texas panhandle, are located 
within occupied and historical lesser prairie-chicken habitat in the 
Texas panhandle.
    Wind energy and associated transmission line development in the 
Texas panhandle and portions of west Texas represent a threat to extant 
lesser prairie-chicken populations in the State. Once established, wind 
farms and associated transmission features would severely hamper future 
efforts to restore population connectivity and gene flow (transfer of 
genetic information from one population to another) between existing 
populations that are currently separated by incompatible land uses in 
the Texas panhandle.
    Development of high-capacity transmission lines is critical to the 
development of the anticipated wind energy resources in ensuring that 
the generated power can be delivered to the consumer. According to 
ERCOT (American Wind Energy Association 2007a, p. 9), every $1 billion 
invested in new transmission capacity enables the construction of $6 
billion of new wind farms. We estimate, based on a spatial analysis 
prepared by The Nature Conservancy in 2011 under their license 
agreement with Ventyx Energy Corporation, that there are 35,220 km 
(21,885 mi) of transmission lines, having a capacity of 69 kilovolts 
(kV) or larger, in service within the historical range of the lesser 
prairie-chicken. Within the estimated currently occupied range, this 
analysis estimated that about 3,610 km (2,243 mi) of transmission lines 
with a capacity of 69kV and larger are currently in service. Within the 
estimated occupied range, this same analysis revealed that an 
additional 856 km (532 mi) of 69kV or higher transmission line is 
anticipated to be in service within the near future.
    Because we did not have access to the same commercially available 
dataset used by The Nature Conservancy, but we wanted to provide an 
updated analysis of the scope of transmission line development within 
the range of the lesser prairie-chicken, we used transmission line data 
maintained by the Southwest Power Pool. This dataset has some 
limitations, particularly for Texas and New Mexico which are largely 
outside of the jurisdiction of the Southwest Power Pool. However the 
data can be used to get a sense of the scope of existing development 
within portions of the range. Our analysis revealed that 9,153 km 
(5,687.4 mi) of transmission lines having a capacity of 69kV or higher 
exist within those portions of the estimated occupied range that lie 
within the jurisdiction of the Southwest Power Pool. Although the 
analysis performed by The Nature Conservancy using the Ventyx Energy 
Corporation dataset has not been updated since 2011, we can use that 
analysis to derive the density of transmission lines in existence at 
that

[[Page 20051]]

time within the estimated occupied range. Assuming all of the 69 kV or 
larger transmission lines in service at the time of that analysis 
(about 3,610 km (2,243 mi) of transmission lines) are still in service, 
the density of these transmission lines would be 0.04 km/sq km (0.07 
mi/sq mi). Although similar information for lesser prairie-chickens is 
not available, transmission line densities were particularly important 
in assessing the value of habitat for greater sage grouse. Habitat 
suitability for sage grouse was the highest when densities of 
transmission lines were below 0.06 km/sq km (Knick 2013 et al., p. 6). 
Leks were absent from areas where transmission line densities exceeded 
0.20 km/sq km (Knick 2013 et al., p. 6).
    The Southwest Power Pool also has information about several 
proposed electric transmission line upgrades. This organization 
identified approximately 423 km (263 mi) of proposed new transmission 
lines, commonly referred to as the ``X Plan'', that were being 
evaluated during the transmission planning process. Transmission 
planning continues to move forward, and numerous alternatives are being 
evaluated, many of which will increase transmission capacity throughout 
all or portions of the estimated occupied lesser prairie-chicken range 
and serve to catalyze extensive wind energy development throughout much 
of the remaining estimated occupied lesser prairie-chicken range in 
Kansas, Oklahoma, and Texas. Additionally, Clean Line Energy is 
planning to build a high voltage direct current transmission line 
(Plains and Eastern Clean Line) that would originate within Texas 
County of the Oklahoma panhandle, travel the length of the panhandle 
region, and then drop south to near Woodward, Oklahoma, before 
continuing eastward across Oklahoma, Arkansas and western Tennessee. 
The Plains and Eastern Clean Line project would deliver a maximum of 
3,500 MW of electric power. Increased transmission capacity provided by 
the Clean Line project will facilitate development of additional wind 
power. Additionally, the fragmenting effect of this transmission line 
is a significant concern. Corman (2011, pp. 151-152) concluded that the 
northeast Texas population of lesser prairie-chickens was too small to 
retain high amounts of genetic diversity over the long term. He thought 
connectivity between the Oklahoma and Kansas lesser prairie-chicken 
populations was crucial to maintaining persistence in the northeast 
Texas population. Should lesser prairie-chickens avoid areas adjacent 
to this high voltage transmission line, as demonstrated with a 
comparable high voltage transmission line (Pruett 2009a, pp. 1255-
1257), movement between populations across the line will diminish 
significantly. A draft Environmental Impact Statement on this project 
is anticipated in the fall of 2014; the project cannot proceed until 
that analysis is complete and the potential route approved. The project 
is expected to commence commercial operation now earlier than 2018.
    Another similar high voltage direct current transmission line 
proposed by Clean Line Energy Partners, known as the Grain Belt 
Express, is planned for Kansas. The line would originate in west-
central Kansas and continue to its endpoint in the upper Midwestern 
United States. Very little opportunity to interconnect with these 
direct current lines exists due to the anticipated high cost associated 
with development of an appropriate interconnecting substation. 
Consequently, most of the anticipated wind power that will be 
transmitted across the Oklahoma and Kansas projects likely will occur 
near the western terminals associated with these two Clean Line 
projects. Assuming a fairly realistic build-out scenario for these 
transmission lines, in which wind power projects would most likely be 
constructed within 64 km (40 mi) of the western end points of each line 
(77 FR 75624), much of the estimated occupied range in Colorado, 
Kansas, Oklahoma, and northeast Texas falls within the anticipated 
development zone. Although both of these projects are still relatively 
early in the planning process, and the specific environmental impacts 
have yet to be determined, a reasonably likely wind power development 
scenario would place much of the estimated occupied range at risk of 
wind power development.
    In summary, wind energy and associated infrastructure development 
is occurring now and is expected to continue into the future within 
occupied portions of lesser prairie-chicken habitat. Proposed 
transmission line improvements, such as the proposed Plains and Eastern 
Clean Line project, will serve to facilitate further development of 
additional wind energy resources but will take several years to 
commence operations. Future wind energy developments, based on the 
known locations of areas with excellent to good wind energy development 
potential, likely will have substantial overlap with known lesser 
prairie-chicken populations. There is little published information on 
the specific effects of wind power development on lesser prairie-
chickens. Most published reports on the effects of wind power 
development on birds focus on the risks of collision with towers or 
turbine blades. However, we do not expect that significant numbers of 
collisions with spinning blades would be likely to occur due to 
avoidance of the wind towers and associated transmission lines by 
lesser prairie-chickens. The most significant impact of wind energy 
development on lesser prairie-chickens is caused by the avoidance of 
useable space due the presence of vertical structures (turbine towers 
and transmission lines) within suitable habitat. The noise produced by 
wind turbines also is anticipated to contribute to behavioral avoidance 
of these structures. Avoidance of these vertical structures by lesser 
prairie-chickens can be as much as 1.6 km (1 mi), resulting in large 
areas (814 ha (2,011 ac) for a single turbine) of unsuitable habitat 
relative to the overall footprint of a single turbine. Where such 
development has occurred or is likely to occur, these areas are no 
longer suitable for lesser prairie-chicken even though many of the 
typical habitat components used by lesser prairie-chicken remain. 
Therefore, considering the scale of current and future wind development 
that is likely within the range of the lesser prairie-chicken and the 
significant avoidance response of the species to these developments, we 
conclude that wind energy development is a threat to the species, 
especially when considered in combination with other habitat 
fragmenting activities.

Roads and Other Similar Linear Features

    Similar to transmission lines, roads are a linear feature on the 
landscape that can contribute to loss and fragmentation of habitat 
suitable for the species and can fragment populations as a result of 
behavioral avoidance. The observed behavioral avoidance associated with 
roads is likely due to noise, visual disturbance, and increased 
predator movements paralleling roads. For example, roads are known to 
contribute to lek abandonment when they disrupt the important habitat 
features associated with lek sites (Crawford and Bolen 1976b, p. 239). 
The presence of roads allows human encroachment into habitats used by 
lesser prairie-chickens, further causing fragmentation of suitable 
habitat patches. Some mammalian species known to prey on lesser 
prairie-chickens, such as red fox, raccoons, and striped skunks, have 
greatly increased their distribution by dispersing along roads (Forman 
and Alexander 1998, p. 212; Forman 2000, p. 33; Frey and Conover 2006, 
pp. 1114-1115).

[[Page 20052]]

    Traffic noise from roads may indirectly impact lesser prairie-
chickens. Because lesser prairie-chickens depend on acoustical signals 
to attract females to leks, noise from roads, oil and gas development, 
wind turbines, and similar human activity may interfere with mating 
displays, influencing female attendance at lek sites and causing young 
males not to be drawn to the leks. Within a relatively short period, 
leks can become inactive due to a lack of recruitment of new males to 
the display grounds.
    Roads also may influence lesser prairie-chicken dispersal, likely 
dependent upon the volume of traffic, and thus disturbance, associated 
with the road. However, roads generally do not constitute a significant 
barrier to dispersal unless they are large, multiple-land roads. Lesser 
prairie-chickens have been shown to avoid areas of suitable habitat 
near larger, multiple-lane, paved roads (Pruett et al. 2009a, pp. 1256, 
1258). Generally, roads were between 4.1 and 5.3 times less likely to 
occur in areas used by lesser prairie-chickens than areas that were not 
used and can influence habitat and nest site selection (Hagen et al. 
2011, pp. 68, 71-72). Lesser prairie-chickens are thought to avoid 
major roads due to disturbance caused by traffic volume and, perhaps 
behaviorally, to avoid exposure to predators that may use roads as 
travel corridors. Similar behavior has been documented in sage grouse 
(Oyler-McCance et al. 2001, p. 330). Wisdom et al. (2011, p. 467) 
examined factors believed to have contributed to extirpation of sage 
grouse in areas scattered throughout the entire species' historical 
range and found that extirpated range contained almost 27 times the 
human density, was 60 percent closer to highways, and had 25 percent 
higher density of roads, in contrast to occupied range.
    Roads also can cause direct mortality due to collisions with 
automobiles and possibly increased predation. Although individual 
mortality resulting from collisions with moving vehicles does occur, 
the mortalities typically are not monitored or recorded. Therefore we 
cannot determine the importance of direct mortality from roads on 
lesser prairie-chicken populations.
    Using the data layers provided in StreetMap USA, a product of ESRI 
Corporation and intended for use with ArcGIS, we estimated the scope of 
the impact of roads on lesser prairie-chickens. Within the entire 
historical range, there are 622,061 km (386,581 mi) of roads. This 
figure includes major Federal and state highways as well as county 
highways and smaller roads. Within the estimated occupied range, 
approximately 81,874 km (50,874 mi) of roads have been constructed. We 
also used topographically integrated geographic encoding and 
referencing (TIGER) files available from the U.S. Census Bureau to 
conduct a similar analysis of the impact of roads. These files, dated 
2007, are more current than the information provided in StreetMap USA. 
Within the historical range in 2007 there was a total of 642,860 km 
(399,454.8 mi) of roads within the historical range. Of these roads, 
about 84,531 km (52,525.3 mi) were located within the estimated 
occupied range. More detailed examination of the roads in the estimated 
occupied range revealed there were about 2,386 km (1,482.8 mi) of 
primary roads, 2,002 km (1,244.3 mi) of secondary roads, and 80,142 km 
(49,798.2 mi) of local or rural roads. Density (number per unit area) 
of roads within the estimated occupied range was 1.04 km of road per 
square km (1.68 mi of road per sq mi). The density of primary roads was 
0.03 km of road per square km (0.05 mi of road per sq mi) and for 
secondary roads was 0.02 km of road per square km (0.04 mi of road per 
sq mi). The density of local and rural roads was highest at 0.99 km of 
road per square km (1.59 mi of road per sq mi). Although we do not have 
similar information for lesser prairie-chickens, Knick et al. (2013, 
entire) found that road densities were particularly important in 
assessing the value of habitat for greater sage grouse. The most 
valuable sage grouse habitats had densities of secondary roads that 
were below 1.0 km per sq km, highway densities below 0.05 km per sq km, 
and interstate highway densities at or below 0.01 km per sq km (Knick 
et al. 2013, p. 1544). Ninety-three percent of the active leks were 
located in areas where interstate highway densities were less than 0.01 
km/sq km (Knick et al. 2013, p. 1544).
    While we do not anticipate significant expansion of the number or 
distance of existing roads in the near or longterm, these roads have 
already contributed to significant habitat fragmentation within both 
the estimated historical and occupied range of the lesser prairie-
chicken. Assigning buffer values, as described in the rangewide plan 
(Van Pelt et al. 2013, p. 95), to the existing roads within the 
estimated occupied range provides an estimate of the amount of habitat 
that has been lost to the lesser prairie-chicken, either by 
construction, displacement or both. These buffer distances are 500 m 
(1,640 ft) for primary roads, 67 m (220 ft) for secondary roads, and 10 
m (33 ft) for local, rural roads. The total habitat impacted by all 
types of roads within the estimated occupied range is 402,739.4 ha 
(995,189.3 ac). The fragmentation caused by roads in combination with 
other causes of fragmentation described in this final listing rule 
contributes to the further reduction of usable habitat available to 
support lesser prairie-chicken populations. The resultant fragmentation 
is detrimental to lesser prairie-chickens because they rely on large, 
expansive areas of contiguous rangeland and grassland to complete their 
life cycle.
    Although the best available information does not allow us to 
predict the number or distance of new roads that will exist into the 
future, we do not anticipate that the number or distance of primary and 
secondary roads will increase significantly in the future. However, we 
do anticipate that increasing human populations within the estimated 
occupied range, as discussed previously, will lead to increased traffic 
and road noise on the roads that do exist. Consequently, roads that are 
already being avoided by lesser prairie-chickens will continue to be 
barriers, and increasing traffic volumes will lead to additional roads 
being avoided, further fragmenting an already highly fragmented 
landscape. Additionally, Pitman et al. (2005, p. 1267) believes roads 
served as travel corridors for predators and may increase the impact of 
predation on lesser prairie-chickens (see section on Predation below).
    In summary, roads occur throughout the range of the lesser prairie-
chicken and contribute to the threat of cumulative habitat 
fragmentation to the species.

Petroleum Production

    Petroleum production, primarily oil and gas development, is 
occurring over much of the estimated historical and occupied range of 
the lesser prairie-chicken. Oil and gas development involves activities 
such as surface exploration, exploratory drilling, field development, 
facility construction, and operation and maintenance. Ancillary 
facilities can include compressor stations, pumping stations, and 
electrical generators. Activities such as well pad construction, 
seismic surveys, access road development, power line construction, and 
pipeline corridors can directly impact lesser prairie-chicken habitat. 
Indirect impacts from noise, gaseous emissions, and human presence also 
influence habitat quality in oil and gas development areas. These 
activities affect lesser prairie-chickens by

[[Page 20053]]

disrupting reproductive behavior (Hunt and Best 2004, p. 41) and 
through habitat fragmentation and conversion (Hunt and Best 2004, p. 
92). Smith et al. (1998, p. 3) observed that almost one-half, 13 of 29, 
of the abandoned leks examined in southeastern New Mexico in an area of 
intensive oil and gas development had a moderate to high level of 
noise. Hunt and Best (2004, p. 92) found that abandoned leks in 
southeastern New Mexico had more active wells, more total wells, and 
greater length of access road than active leks. They concluded that 
petroleum development at intensive levels, with large numbers of wells 
in close proximity to each other necessitating large road networks and 
an increase in the number of power lines, is likely not compatible with 
life-history requirements of lesser prairie-chickens (Hunt and Best 
2004, p. 92).
    Impacts from oil and gas development and exploration is thought to 
be the primary reason responsible for the species' near absence 
throughout previously occupied portions of the Carlsbad BLM unit in 
southeastern New Mexico (Belinda 2003, p. 3). This conclusion is 
supported by research examining lesser prairie-chicken losses over the 
past 20 years on Carlsbad BLM lands (Hunt and Best 2004, pp. 114-115). 
Those variables associated with oil and gas development explained 32 
percent of observed lek abandonment (Hunt and Best 2004) and the 
consequent population extirpation.
    Colorado currently ranks within the top ten States in both crude 
oil and natural gas production. Oil and gas development began in 
Colorado the late 1800s. Much of the development within the estimated 
historical and occupied range of the lesser prairie-chicken occurs 
within the Hugoton and Denver Basin fields. Since 1995 the number of 
drilling permits issued annually has steadily grown from 1,002 in 1995 
to 8,027 in 2008 (Dennison 2009). However, 84 percent of that activity 
is located in only six counties that lie outside of the estimated 
occupied range. Some development is anticipated in Baca County, 
Colorado, although the timeframe for initiation of those activities is 
uncertain (CPW 2007, p. 2). The State of Colorado, Oil and Gas 
Conservation Commission also has established rules that provide some 
protection to the lesser prairie-chicken from oil and gas development 
in this State. A full list of those measures are provided in the 
rangewide plan (Van Pelt et al. 2013, pp. 6-8) and include a 
requirement to solicit review by the CPW prior to development in an 
effort to avoid and minimize impacts to the lesser prairie-chicken. 
Other measures include timing and distance stipulations, including a 
provision to avoid development within 3.5 km (2.2 mi) of an active lek.
    Kansas is one of the top ten oil producing States in the Nation and 
is within the top 12 States in Natural gas production. Between 1995 and 
2010, over 37.2 million barrels of oil were produced in Kansas (Circle 
Star Energy 2014). The major oil and gas fields (Hugoton and Panoma) in 
Kansas primarily occur in the southwestern corner and central regions 
of the State, overlapping large portions of the estimated historic and 
occupied ranges of the lesser prairie-chicken. Gas development is the 
primary activity in the southwestern corner with oil being primary in 
the central region. In the central region of Kansas, development of the 
Mississippian Lime Play using hydraulic fracturing techniques has 
revived oil and gas development in the region. The Kansas Department of 
Commerce has stated that potentially hundreds of wells could be drilled 
in this region in the next 20 to 30 years (Kansas Department of 
Commerce 2014). Some gas development also occurs in the central region 
of the State.
    New Mexico currently ranks in the top ten States in the Nation for 
production of both crude oil and natural gas (U.S. Energy Information 
Administration 2014). Within the range of the lesser prairie-chicken, 
much of the oil and gas development occurs on lands administered by the 
BLM. In the BLM's Special Status Species Record of Decision and 
approved Resource Management Plan Amendment (RMPA), some protections 
for the lesser prairie-chicken on BLM lands in New Mexico are provided 
by reducing the number of drilling locations, decreasing the size of 
well pads, reducing the number and length of roads, reducing the number 
of powerlines and pipelines, and implementing best management practices 
for development and reclamation (BLM 2008, pp. 5-31). The RMPA provides 
guidance for management of approximately 344,000 ha (850,000 ac) of 
public land and 121,000 ha (300,000 ac) of Federal minerals below 
private or state lands in Chaves, Eddy, Lea, and Roosevelt Counties in 
New Mexico. Implementation of these restrictions, particularly 
curtailment of new mineral leases, is concentrated in the Core 
Management and Primary Population Areas (BLM 2008, pp. 9-11). The Core 
Management and Primary Population Areas are located in the core of the 
lesser prairie-chicken estimated occupied range in New Mexico. The 
effect of these best management practices on the population of the 
lesser prairie-chicken is unknown, particularly considering about 
33,184 ha (82,000 ac) have already been leased in those areas (BLM 
2008, p. 8). The plan stipulates that measures designed to protect the 
lesser prairie-chicken and dunes sagebrush lizard may not allow 
approval of all spacing unit locations or full development of the lease 
(BLM 2008, p. 8).
    Oklahoma currently ranks in the top five States in the Nation for 
production of both crude oil and natural gas (U.S. Energy Information 
Administration 2014). In Oklahoma, oil and gas exploration statewide 
continues at a high level. Since 2002, the average number of active 
drilling rigs in Oklahoma has steadily risen (Boyd 2009, p. 1). Since 
2004, the number of active drilling rigs has remained above 150, 
reflecting the highest level of sustained activity since the `boom' 
years from the late 1970s through the mid-1980s in Oklahoma (Boyd 2007, 
p. 1). The Oklahoma Department of Wildlife Conservation worked with the 
Oklahoma Independent Petroleum Association to address potential impacts 
of oil and gas development on the lesser prairie-chicken. Through this 
effort, a set of voluntary best management practices, such as 
minimizing surface disturbance and removal of unneeded equipment, have 
been developed (Van Pelt et al. 2013, p. 60).
    Texas currently ranks as the top State in the Nation for production 
of both crude oil and natural gas (U.S. Energy Information 
Administration 2014). In some areas within the estimated occupied 
range, the scope of development has increased significantly. For 
example, the amount of habitat fragmentation due to oil and gas 
extraction in the Texas panhandle and western Oklahoma associated with 
the Buffalo Wallow oil and gas field within the Granite Wash formation 
of the Anadarko Basin has steadily increased over time. In 1982, the 
rules for the Buffalo Wallow field in Hemphill and Wheeler counties, 
Texas allowed one well per 130 ha (320 ac). In late 2004, the Texas 
Railroad Commission changed the field rule regulations for the Buffalo 
Wallow oil and gas field to allow oil and gas well spacing to a maximum 
density of one well per 8 ha (20 ac) (Rothkopf et al. 2011, p. 1). When 
fully developed at this density, this region of the Texas panhandle, 
which overlaps portions of the estimated occupied range, will have 
experienced a 16-fold increase in habitat fragmentation in comparison 
with the rates allowed prior to 2004.

[[Page 20054]]

    Oil and gas development and exploration is ongoing in all five 
lesser prairie-chicken States. Based on the information available to 
us, none of the States, with the exception of Colorado, has implemented 
specific regulatory measures to address impacts of oil and gas 
development on the lesser prairie-chicken. In New Mexico, much of the 
oil and gas development within the estimated historic and occupied 
range is regulated by the BLM. Where Federal minerals occur outside of 
New Mexico and within the estimated occupied range, BLM has implemented 
timing, noise, and distance stipulations that primarily provide 
protections during the lekking season but do little to protect nesting 
hens and the broods. We attempted to assess the extent of oil and gas 
development using available information from the State oil and gas 
regulatory agencies within the five State range of the lesser prairie-
chicken. Although we do not have access to information on oil and gas 
activity beyond 2008, the data provide a fairly good assessment of 
development activity before 2008. We identified 670,509 existing oil 
and gas wells within the historical range and of those wells, 53,205 
oil and gas wells existed within the estimated occupied range. The 
rangewide plan (Van Pelt et al. 2013, pp. 132-134) estimated 68,716 
active wells exist within the EOR +10, based on data from 2010 to 2013.
    If we apply a 200 m buffer to those wells, as used in the rangewide 
plan (Van Pelt et al. 2013, p. 95), and remove any overlap from our 
analysis, an estimated 516,000 ha (1.27 million ac) of habitat within 
the estimated occupied range was impacted by oil and gas development by 
2008. The buffers established in the rangewide plan were based on the 
best available science and the professional judgment of the members of 
the Interstate Working Group Science team, which included 
representation from the Service, U.S. Geological Survey, Natural 
Resources Conservation Service, State Fish and Wildlife Agencies, 
public universities, private conservation organizations and private 
consultants.
    We lacked data from which we could independently project oil and 
gas development into the future. However, the rangewide plan (Van Pelt 
et al. 2013, pp. 138) provided a high and low projection of oil and gas 
development within the EOR +10 for 10, 20 and 30 years into the future. 
Within 30 years, they estimate that about 122,639 new wells under a low 
price scenario and 179,416 new wells under a high price scenario could 
be developed within the EOR +10.
    Wastewater pits associated with energy development are not 
anticipated to be a major threat to lesser prairie-chickens primarily 
due to the presence of infrastructure and the lack of suitable cover 
near these pits. In formations with high levels of hydrogen sulfide 
gas, the presence of this gas can cause mortality.
    In summary, infrastructure associated with current petroleum 
production contributes to the ongoing habitat fragmentation within the 
estimated occupied range of the lesser prairie-chicken. Reliable 
information about future trends for petroleum production indicates that 
this impact will continue into the future. Habitat impacts, based on 
our estimates, as provided above, and those of WAFWA (Van Pelt et al. 
2013, p. 95), could be in excess of a million of acres throughout the 
estimated occupied range.

Predation

    Lesser prairie-chickens have coevolved with a variety of predators, 
but none are lesser prairie-chicken specialists. Prairie falcon (Falco 
mexicanus), northern harrier (Circus cyaneus), Cooper's hawk (Accipiter 
cooperii), great-horned owl (Bubo virginianus), other unspecified birds 
of prey (raptors), and coyote (Canis latrans) have been identified as 
predators of lesser prairie-chicken adults and chicks (Davis et al. 
1979, pp. 84-85; Merchant 1982, p. 49; Haukos and Broda 1989, pp. 182-
183; Giesen 1994a, p. 96). Predators of nests and eggs also include 
Chihuahuan raven (Corvus cryptoleucus), striped skunk (Mephitis 
mephitis), ground squirrels (Spermophilus spp.), and bullsnakes 
(Pituophis melanoleucus), as well as coyotes and badgers (Taxidea 
taxus) (Davis et al. 1979, p. 51; Haukos 1988, p. 9; Giesen 1998, p. 
8).
    Lesser prairie-chicken predation varies in both form and frequency 
throughout the year. In Kansas, Hagen et al. (2007, p. 522) attributed 
about 59 percent of the observed mortality of female lesser prairie-
chickens to mammalian predators and between 11 and 15 percent, 
depending on season, to raptors. Coyotes were reported to be 
responsible for 64 percent of the nest depredations observed in Kansas 
(Pitman et al. 2006a, p. 27). Observed mortality of male and female 
lesser prairie-chickens associated with raptor predation reached 53 
percent in Oklahoma and 56 percent in New Mexico (Wolfe et al. 2007, p. 
100). Predation by mammals was reported to be 47 percent in Oklahoma 
and 44 percent in New Mexico (Wolfe et al. 2007, p. 100). In Texas, 
over the course of three nonbreeding seasons, Boal and Pirius (2012, p. 
8) assessed cause-specific mortality for 13 lesser prairie-chickens. 
Avian predation was identified as the cause of death in 10 of those 
individuals, and mammalian predation was responsible for 2 deaths. The 
cause of death could not be identified in one of those individuals. 
Behney et al. (2012, p. 294) suspected that mammalian and reptilian 
predators had a greater influence on lesser prairie-chicken mortality 
during the breeding season than raptors.
    Predation is a naturally occurring phenomenon and generally does 
not pose a risk to wildlife populations, including the lesser prairie-
chicken, unless the populations are extremely small or have an abnormal 
level of vulnerability to predation. The lesser prairie-chicken's 
cryptic plumage and behavioral adaptations allow the species to persist 
under normal predation pressures. Birds may be most susceptible to 
predation while on the lek when birds are more conspicuous. Both Patten 
et al. (2005b, p. 240) and Wolfe et al. (2007, p. 100) reported that 
raptor predation increased coincident with lek attendance. Patten et 
al. (2005b, p. 240) stated that male lesser prairie-chickens are more 
vulnerable to predation when exposed during lek displays than they are 
at other times of the year and that male lesser prairie-chicken 
mortality was chiefly associated with predation. However, during 650 
hours of lek observations in Texas, raptor predation at leks was 
considered to be uncommon and an unlikely factor responsible for 
declines in lesser prairie-chicken populations (Behney et al. 2011, pp. 
336-337). But Behney et al. (2012, p. 294) observed that the timing of 
lekking activities in their study area corresponded with the lowest 
observed densities of raptors and that lesser prairie-chickens contend 
with a more abundant and diverse assemblage of raptors in other 
seasons.
    Predation and related disturbance of mating activities by predators 
may impact reproduction in lesser prairie-chickens. For females, 
predation during the nesting season likely would have the most 
significant impact on lesser prairie-chicken populations, particularly 
if that predation resulted in total loss of a particular brood. 
Predation on lesser prairie-chicken may be especially significant 
relative to nest success. Nest success and brood survival of greater 
prairie-chickens accounted for most of the variation in population 
finite rate of increase (Wisdom and Mills 1997, p. 308). Bergerud 
(1988, pp. 646, 681, 685) concluded that population changes in many 
grouse species are driven by

[[Page 20055]]

changes in breeding success. An analysis of Attwater's prairie-chicken 
supported this conclusion (Peterson and Silvy 1994, p. 227). 
Demographic research on lesser prairie-chicken in southwestern Kansas 
confirmed that changes in nest success and chick survival, two factors 
closely associated with vegetation structure, have the largest impact 
on population growth rates and viability (Hagen et al. 2009, p. 1329).
    Rates of predation on lesser prairie-chicken likely are influenced 
by certain aspects of habitat quality such as fragmentation or other 
forms of habitat degradation (Robb and Schroeder 2005, p. 36). As 
habitat fragmentation increases, suitable habitats become more 
spatially restricted and the effects of terrestrial nest predators on 
grouse populations may increase (Braun et al. 1978, p. 316). In a study 
on Attwater's prairie-chicken, Horkel et al. (1978, p. 239) observed 
that artificial nests located within 46 m (150 ft) of a road or mown 
pipeline rights-of-way were less successful than artificial nests 
located further away from these features. They concluded that these 
fragmenting features served as activity centers and travel lanes for 
predators and contributed to increased predator activity and decreased 
nest success in proximity to these features (Horkel et al. 1978, p. 
240). Nest predators typically have a positive response (e.g., 
increased abundance, increased activity, and increased species 
richness) to fragmentation, although the effects are expressed 
primarily at the landscape scale (Stephens et al. 2003, p. 4). 
Similarly, as habitat quality decreases through reduction in vegetative 
cover due to grazing or herbicide application, predation of lesser 
prairie-chicken nests, juveniles, and adults are all expected to 
increase. For this reason, ensuring adequate shrub cover and removing 
raptor perches such as trees, power poles, and fence posts may lower 
predation more than any conventional predator removal methods (Wolfe et 
al. 2007, p. 101). As discussed at several locations within this 
document, existing and future development of transmission lines, 
fences, and vertical structures will either contribute to additional 
predation on lesser prairie-chickens or cause areas of suitable habitat 
to be abandoned due to behavior avoidance by lesser prairie-chickens. 
Increases in the encroachment of trees into the native prairies also 
will contribute to increased incidence of predation by providing 
additional perches for avian predators. Because predation has a strong 
relationship with certain anthropogenic factors, such as fragmentation, 
vertical structures, and roads, continued development is likely to 
increase the effects of predation on lesser prairie-chickens beyond 
natural levels. As a result, predation is likely to contribute to the 
declining population of the species.

Disease

    Giesen (1998, p. 10) provided no information on ectoparasites or 
infectious diseases in lesser prairie-chicken, although several 
endoparasites, including nematodes and cestodes, are known to infect 
the species. In Oklahoma, Emerson (1951, p. 195) documented the 
presence of the external parasites (biting lice--Order Mallophaga) 
Goniodes cupido and Lagopoecus sp. in an undisclosed number of lesser 
prairie-chickens. Between 1997 and 1999, Robel et al. (2003, p. 342) 
conducted a study of helminth parasites in lesser prairie-chickens from 
southwestern Kansas. Of the carcasses examined, 95 percent had eye worm 
(Oxyspirura petrowi), 92 percent had stomach worm (Tetrameres sp.), and 
59 percent had cecal worm (Subulura sp.) (Robel et al. 2003, p. 341). 
No adverse impacts to the lesser prairie-chicken population they 
studied were evident as a result of the observed parasite burden. 
Addison and Anderson (1969, p. 1223) also found eyeworm (O. petrowi) 
from a limited sample of lesser prairie-chickens in Oklahoma. The 
eyeworm also has been reported from lesser prairie-chickens in Texas 
(Pence and Sell 1979, p. 145). Pence and Sell (1979, p. 145) also 
observed the roundworm Heterakis isolonche and the tapeworm Rhabdometra 
odiosa from lesser prairie-chickens in Texas. Smith et al. (2003, p. 
347) reported on the occurrence of blood and fecal parasites in lesser 
prairie-chickens in eastern New Mexico. Eight percent of the examined 
birds were infected with Eimeria tympanuchi, an intestinal parasite, 
and 13 percent were infected with Plasmodium pedioecetii, a hematozoan. 
Stabler (1978, p. 1126) first reported Plasmodium pedioecetii in the 
lesser prairie-chicken from samples collected from New Mexico and 
Texas. In the spring of 1997, a sample of 12 lesser prairie-chickens 
from Hemphill County, Texas, were tested for the presence of disease 
and parasites. No evidence of viral or bacterial diseases, 
hemoparasites, parasitic helminths, or ectoparasites was found (Hughes 
1997, p. 2).
    In southwestern Kansas, Hagen et al. (2002 entire) tested for the 
presence of mycoplasmosis, a respiratory infection, in lesser prairie-
chickens. Although some birds tested positive for antibodies to 
Mycoplasma meleagridis, M. synoviae, and M. gallisepticum, all were at 
rates less than 10 percent and no infection was confirmed (Hagen et al. 
2002, p. 708). However, lesser prairie-chickens testing positive should 
be considered potential carriers of mycoplasmosis (Hagen et al., 2002, 
p. 710). Infections may be transmitted most commonly during winter and 
spring when lesser prairie-chickens are likely to be grouped together 
to forage or conduct breeding activity.
    Peterson et al. (2002, p. 835) reported on an examination of 24 
lesser prairie-chickens from Hemphill County, Texas, for several 
disease agents. Lesser prairie-chickens were seropositive for both the 
Massachusetts and Arkansas serotypes of avian infectious bronchitis, a 
type of coronavirus. All other tests were negative.
    Reticuloendotheliosis is a viral disease of poultry that has been 
found to cause mortality in captive Attwater's prairie-chickens and 
greater prairie-chickens (Drew et al. 1998, entire). Symptoms include 
immunosuppression, reduced body size and tumors that can result in 
significant morbidity and mortality (Bohls et al. 2006a, p. 613). 
Researchers surveyed blood samples from 184 lesser prairie-chickens 
from three States during 1999 and 2000, for the presence of 
reticuloendotheliosis. All samples were negative, suggesting that 
reticuloendotheliosis may not be a serious problem for most wild 
populations of lesser prairie-chicken (Wiedenfeld et al. 2002, p. 143). 
A vaccine has recently been developed that, while not preventing 
infection, provided partial protection from reticuloendotheliosis in 
captive Attwater's prairie-chicken (Drechsler et al. 2013, pp. 258-
259). This vaccine has not yet been tested on lesser prairie-chickens 
to our knowledge.
    The impact of West Nile virus on lesser prairie-chickens is 
unknown. Recently scientists at Texas Tech University detected West 
Nile virus in a small percentage (1.3 percent) of the lesser prairie-
chicken blood samples they analyzed. Other grouse, such as ruffed 
grouse (Bonasa umbellus), have been documented to harbor West Nile 
virus infection rates similar to some corvids (crows, jays, and 
ravens). For 130 ruffed grouse tested in 2000, all distant from known 
West Nile virus epicenters, 21 percent tested positive. This was 
remarkably similar to American crows (Corvus brachyrhynchos) and blue 
jays (Cyanocitta cristata) (23 percent for each species), species with 
known susceptibility to West Nile virus (Bernard et al. 2001, p. 681). 
The IPCC

[[Page 20056]]

(2007, p. 51) suggests that the distribution of some disease vectors, 
such as mosquitos (Culex spp.) that carry West Nile virus, may change 
as a result of climate change. Mosquitoes are also known to transmit 
the reticuloendotheliosis virus (Bohls et al. 2006b, p. 193). However, 
we have no specific information suggesting that West Nile virus or any 
known disease may become problematic for the lesser prairie-chicken as 
a result of climate change.
    Although parasites and diseases have the potential to influence 
population dynamics, the incidence of disease or parasite infestations 
in regulating populations of the lesser prairie-chicken is unknown. The 
Lesser Prairie-Chicken Interstate Working Group (Mote et al. 1999, p. 
12) concluded that, while density-dependent transmission of disease was 
unlikely to have a significant effect on lesser prairie-chicken 
populations, a disease that was transmitted independently of density 
could have drastic effects. Further research is needed to establish 
whether parasites limit prairie grouse populations. Peterson (2004, p. 
35) urged natural resource decisionmakers to be aware that macro- and 
micro-parasites cannot be safely ignored as populations of species such 
as the lesser prairie-chicken become smaller, more fragmented, and 
increasingly vulnerable to the effects of disease. A recent analysis of 
the degree of threat to prairie grouse from parasites and infectious 
disease concluded that microparasitic infections that cause high 
mortality across a broad range of galliform (wildfowl species such as 
turkeys and grouse) hosts have the potential to extirpate small, 
isolated prairie grouse populations (Peterson 2004, p. 35).
    Some degree of impact from parasites and disease is a naturally 
occurring phenomenon for most wildlife species and is one element of 
compensatory mortality (the phenomenon that various causes of mortality 
in wildlife tend to balance each other, allowing the total mortality 
rate to remain constant) that operates among many species. However, 
there is no information that indicates parasites or disease are 
causing, or contributing to, the decline of any lesser prairie-chicken 
populations, and, at this time, we have no basis for concluding that 
disease or parasite loads are a threat to any lesser prairie-chicken 
populations. Consequently, we do not consider disease or parasite 
infections to be a significant factor in the decline of the lesser 
prairie-chicken. However, should populations continue to decline or 
become more isolated by fragmentation, even small changes in habitat 
abundance or quality could have a more significant influence on the 
impact of parasites and diseases to the lesser prairie-chicken.

Hunting and Other Forms of Recreational, Educational, or Scientific Use

    In the late 19th century, lesser prairie-chickens were subject to 
market hunting (Jackson and DeArment 1963, p. 733; Fleharty 1995, pp. 
38-45; Jensen et al. 2000, p. 170). Harvest throughout the species' 
estimated historical range has been regulated since approximately the 
turn of the 20th century (Crawford 1980, pp. 3-4). Currently, the 
lesser prairie-chicken is classified as a game species in Kansas, New 
Mexico, Oklahoma, and Texas, although authorized harvest is allowed 
only in Kansas. The lesser prairie-chicken has been listed as a 
threatened species in Colorado, eliminating harvest of the species 
under the State's Nongame and Endangered or Threatened Species 
Conservation Act since 1973. In March of 2009, Texas adopted a 
temporary, indefinite suspension of their current 2-day season until 
lesser prairie-chicken populations recover to huntable levels. 
Previously in Texas, lesser prairie-chicken harvest was not allowed 
except on properties with an approved wildlife management plan 
specifically addressing the lesser prairie-chicken. When both Kansas 
and Texas allowed lesser prairie-chicken harvest, the total annual 
harvest for both States was fewer than 1,000 birds annually.
    In New Mexico, the lesser prairie-chicken was legally hunted until 
1996 (Hunt 2004, p. 39). The annual harvest in the 1960s averaged about 
1,000 birds, but harvest declined to only 130 birds in 1979. Harvest 
rebounded a few years later peaking in 1987 and 1988 when average 
harvest was about 4,000 birds (Hunt 2004, p. 39). Harvest subsequently 
declined through the early 1990s.
    In Kansas, the current bag limit is one lesser prairie-chicken 
daily south of Interstate 70 and two lesser prairie-chickens north of 
Interstate 70. The season typically begins in early November and runs 
through the end of December in southwestern Kansas. In the northwestern 
portion of the State, the season typically extends through the end of 
January. During the 2006 season, hunters in Kansas expended 2,020 
hunter-days and harvested approximately 340 lesser prairie-chickens. In 
2010, 2,863 hunter-days were expended and an estimated 633 lesser 
prairie-chickens were harvested in Kansas (Pitman 2012a). Given the low 
number of lesser prairie-chickens harvested per year in Kansas relative 
to the population size of lesser prairie-chickens, the statewide 
harvest is probably insignificant at the population level. There are no 
recent records of unauthorized harvest of lesser prairie-chickens in 
Kansas (Pitman 2012b).
    Two primary hypotheses exist regarding the influence of hunting on 
harvested populations--hunting mortality is either additive to other 
sources of mortality or nonhunting mortality compensates for hunting 
mortality, up to some threshold level. The compensatory hypothesis 
essentially implies that harvest by hunting removes only surplus 
individuals, and individuals that escape hunting mortality will have a 
higher survival rate until the next reproductive season. Both Hunt and 
Best (2004, p. 93) and Giesen (1998, p. 11) do not believe hunting has 
an additive mortality on lesser prairie-chickens, although, in the 
past, hunting during periods of low population cycles may have 
accelerated declines (Taylor and Guthery 1980b, p. 2). However, because 
most remaining lesser prairie-chicken populations are now very small 
and isolated, and because they naturally exhibit a clumped distribution 
on the landscape, they are likely vulnerable to local extirpations 
through many mechanisms, including harvest by humans. Braun et al. 
(1994, p. 435) called for definitive experiments that evaluate the 
extent to which hunting is additive at different harvest rates and in 
different patch sizes. They suggested conservative harvest regimes for 
small or fragmented grouse populations because fragmentation likely 
decreases the resilience of populations to harvest. Sufficient 
information to determine the rate of localized harvest pressure is 
unavailable and, therefore, the Service cannot determine whether such 
harvest contributes to local population declines. We do not consider 
hunting to be a threat to the species at this time. However, as 
populations of lesser prairie-chickens become smaller and more isolated 
by habitat fragmentation, their resiliency to the influence of hunting 
pressure will decline, likely increasing the degree of threat that 
hunting may pose to the species.
    An additional activity that has the potential to negatively affect 
individual breeding aggregations of lesser prairie-chickens is the 
growing occurrence of public and guided bird watching tours of leks 
during the breeding season. The site-specific impact of recreational 
observations of lesser prairie-chicken at leks is currently unknown but 
daily human disturbance could reduce mating activities, possibly 
leading to a

[[Page 20057]]

reduction in total production. However, disturbance effects are likely 
to be minimal at the population level if disturbance is avoided by 
observers remaining in vehicles or blinds until lesser prairie-chickens 
naturally disperse from the lek and observations are confined to a 
limited number of days and leks. Solitary leks comprising fewer than 
ten males are most likely to be affected by repeated recreational 
disturbance. Suminski (1977, p. 70) strongly encouraged avoidance of 
activities that could disrupt nesting activities. Research is needed to 
quantify this potential threat to local populations of lesser prairie-
chickens.
    Research activities, such as roadside surveys and flush counts, 
that generally tend to rely on passive sampling rather than active 
handling of the birds are not likely to substantially impact the lesser 
prairie-chicken. When birds are flushed, some increased energy 
expenditure or exposure to predation may occur, but the impacts are 
anticipated to be minor and of short duration. Studies that involve 
handling of adults, chicks and eggs, particularly those involving the 
use of radio transmitters, also may cause increased energy expenditure, 
predation exposure or otherwise impact individual birds. However such 
studies typically occur at a relatively small, localized scale and are 
not likely to cause a direct impact to the population as a whole. Such 
studies are usually of short duration, lasting no more than a few 
years.
    In summary, it is possible that harvest of lesser prairie-chickens 
through sport hunting might be contributing to a decline of some 
populations, but the best available information does not show whether 
this is actually occurring and we have no basis on which to estimate 
whether hunting is contributing to decline in some areas. However, as 
populations continue to decline and become more fragmented, the 
influence of sport harvest likely will increase and could become a 
threat in the future. Public viewing of leks tends to be limited, 
primarily due to a general lack of public knowledge of lek locations 
and difficulty accessing leks located on private lands. Observations by 
bird watchers are likely to be very limited in extent and bird 
watchers, as a group, generally tend to minimize disturbance to birds 
as they conduct their activities. We expect the range States will 
continue to conduct annual lek counts, which contributes to a temporary 
disturbance when the birds are flushed during attempts to count birds 
attending the leks. However these disturbances are intermittent and do 
not occur repeatedly throughout the lekking period. Research on lesser 
prairie-chickens may result in some capture and handling of the 
species. Capture-induced stress may occur and could lead to isolated 
instances of mortality or injury to individual birds. But such research 
is not widespread and likely does not cause significant population-
level impacts. Research is not anticipated to result in loss of habitat 
and is therefore not likely to lead to impacts from habitat 
fragmentation. We are not aware of any other forms of utilization that 
are negatively impacting lesser prairie-chicken populations. There is 
currently no known, imminent threat of take attributed to collection or 
illegal harvest for this species, consequently, we conclude that 
overutilization at current population and harvest levels does not pose 
a threat to the species.

Other Factors

    A number of other factors, although they do not directly contribute 
to habitat loss or fragmentation, can influence the survival of the 
lesser prairie-chicken. These factors, in combination with habitat loss 
and fragmentation, are likely to negatively influence the persistence 
of the species.
Nest Parasitism and Competition by Exotic Species
    Ring-necked pheasants (Phasianus colchicus) are nonnative species 
that overlap the estimated occupied range of the lesser prairie-chicken 
in Kansas and portions of Colorado, Oklahoma, Texas (Johnsgard 1979, p. 
121), and New Mexico (Allen 1950, p. 106). Hen pheasants have been 
documented to lay eggs in the nests of several bird species, including 
lesser prairie-chicken and greater prairie-chicken (Hagen et al. 2002, 
pp. 522-524; Vance and Westemeier 1979, p. 223; Kimmel 1987, p. 257; 
Westemeier et al. 1989, pp. 640-641; Westemeier et al. 1998, 857-858). 
Consequences of nest parasitism vary, and may include abandonment of 
the host nest, reduction in number of host eggs, lower hatching 
success, and parasitic broods (Kimmel 1987, p. 255). Because pheasant 
eggs hatch in about 23 days, the potential exists for lesser prairie-
chicken hens to cease incubation, begin brooding, and abandon the nest 
soon after the first pheasant egg hatches. Nests of greater prairie-
chickens parasitized by pheasants have been shown to have lower egg 
success and higher abandonment than unparasitized nests, suggesting 
that recruitment and abundance may be impacted (Westemeier et al. 1998, 
pp. 860-861). Predation rates also may increase with incidence of nest 
parasitism (Vance and Westemeier 1979, p. 224). Further consequences 
are hypothesized to include the imprinting of the pheasant young from 
the parasitized nest to the host species, and later attempts by male 
pheasants to court females of the host species (Kimmel 1987, pp. 256-
257). Male pheasants have been observed disrupting the breeding 
behavior of greater prairie-chickens on leks (Sharp 1957, pp. 242-243; 
Follen 1966, pp. 16-17; Vance and Westemeier 1979, p. 222). In 
addition, pheasant displays toward female prairie-chickens almost 
always cause the female to leave the lek (Vance and Westemeier 1979, p. 
222). Thus, an attempt by a male pheasant to display on a prairie-
chicken lek could disrupt the normal courtship activities of prairie-
chickens.
    Few published accounts of lesser prairie-chicken nest parasitism by 
pheasants exist (Hagen et al. 2002, pp. 522-524), although biologists 
from KPWD, ODWC, Sutton Center, TPWD, and the Oklahoma Cooperative Fish 
and Wildlife Research Unit have given more than 10 unpublished accounts 
of such occurrences. Westemeier et al. (1998, p. 858) documented 
statistically that for a small, isolated population of greater prairie-
chickens in Illinois, nest parasitism by pheasants significantly 
reduced the hatchability of nests. They concluded that, in areas with 
high pheasant populations, the survival of isolated, remnant flocks of 
prairie-chicken may be enhanced by management intervention to reduce 
nest parasitism by pheasants (Westemeier et al. 1998, p. 861). While 
Hagen et al. (2002, p. 523) documented a rate of only 4 percent 
parasitism (3 of 75 nests) of lesser prairie-chicken nests in Kansas, 
the sample size was small and may not reflect actual impacts across 
larger time and geographic scales, and precipitation gradients. 
Competition with and parasitism by pheasants may be a potential factor 
that could negatively affect vulnerable lesser prairie-chicken 
populations at the local level, particularly if remaining native 
rangelands become increasingly fragmented (Hagen et al. 2002, p. 524). 
More research is needed to understand and quantify impacts of pheasants 
on lesser prairie-chicken populations range wide.
Hybridization
    The sympatric (overlapping) occupation of habitat and leks by 
greater prairie-chickens and lesser prairie-chickens in a small 250,000 
ha (617,000 ac) portion of central and northwestern Kansas may pose a 
potential, but limited threat to the species in that region.

[[Page 20058]]

Hybridization between the two species could lead to introgression 
(infiltration of the genes of one species into the gene pool of another 
through repeated backcrossing) and reduced reproductive potential. 
Hybrid crosses between greater and lesser prairie-chickens have been 
produced in captivity and the first generation of offspring are 
fertile; however, mating of second-generation hybrids produced a clutch 
of 26 eggs, but only 11 eggs were fertile and only four of those eggs 
hatched (Crawford 1978, p. 592). All four of those chicks died within 
one week of unknown causes.
    Prior to EuroAmerican settlement of the Great Plains, the 
distributions of the greater and lesser prairie-chicken likely did not 
overlap, although it is impossible to precisely determine their 
presettlement distribution patterns (Johnsgard and Wood 1968, p. 174). 
Following human settlement and initial cultivation of the prairies, the 
distribution of the greater and lesser prairie-chicken expanded, at 
least until the amount of cultivation was so extensive that some 
populations could not persist due to inadequate amounts of native 
grassland intermingled with cultivation (Johnsgard and Wood 1968, p. 
177). As indicated by Sharpe (1968, pp. 51, 174), the historical 
occurrence of lesser prairie-chickens in Nebraska was considered be the 
result of a short-lived range expansion facilitated by human settlement 
and cultivation of grain crops. As their ranges expanded, some overlap 
of lesser and greater prairie-chickens occurred, primarily in 
northwestern Kansas and southwestern Nebraska. Where the two species 
came into contact, some natural hybridization likely occurred but the 
frequency is unknown. As the range of the lesser prairie-chicken shrank 
in response to expanding conversion of the prairie, the ranges of 
lesser and greater prairie-chickens ceased to overlap, at least until 
recently. Habitat restoration in northwestern Kansas, assisted by 
successful planting of native grassland CRP since 1985, likely 
facilitated the co-occupation of portions of their ranges. The ranges 
of greater and lesser prairie-chickens now overlap within a seven 
county region in Kansas (Bain and Farley 2002, p. 684).
    In this seven county area, Bain and Farley (2002, p. 684) observed 
12 birds from nine mixed leks containing both greater and lesser 
prairie-chickens that appeared to be hybrids. These birds displayed 
external characteristics, courtship behaviors and vocalizations that 
were intermediate between the two species but they were unable to 
confirm that these birds were actually hybrids (Bain and Farley 2002, 
pp. 684-686).
    Currently, the incidence of hybridization between greater prairie-
chickens and lesser prairie-chickens appears very low, less than 1 
percent (309 individuals) of the estimated total population (MacDonald 
et al. 2012, p. 21). The occurrence of hybridization also is restricted 
to a small portion, about 250,000 ha (617,000 ac), of the overall 
current range (Bain and Farley 2002, p. 684). Although the density of 
leks within the area north of the Arkansas River in Kansas are high, 
the density of mixed leks is much lower (MacDonald et al. 2012, p. 21). 
These populations are largely dependent on fragmented tracts of CRP 
lands, and lesser prairie-chicken populations may continue to expand 
within this region depending on implementation of CRP projects and 
stochastic environmental factors. Should greater prairie-chicken 
populations in this region expand, increasing the extent of overlap in 
their distributions, the incidence of hybridization also may increase. 
Currently we are unable to predict how the incidence of hybridization 
may change into the future. Additionally, the zone of hybridization may 
decrease in size or cease to exist entirely if the extent of cropland 
or suitable habitat changes in response to CRP. The zone of overlap 
could increase with time if the lesser prairie-chicken occupied range 
shifts northward, particularly in light of climate changes that may 
occur within the next 100 years. If the zone of overlap expands, the 
extent of hybridization may increase.
    Currently, we have no information on how these apparent hybrid 
individuals interact and compete in breeding on the lek. If the second 
generation hybrids truly are not viable, as reported by Crawford (1978, 
p. 592), the risk of introgression, should they be successful in 
competing for mates, is low. However, the fertility of first and second 
generation hybrid individuals has not been rigorously tested. 
Theoretically, natural isolating mechanisms, such as appearance, 
vocalization and courtship behavior would serve to minimize the 
incidence of hybridization. However, as discussed in the ``Taxonomy'' 
section, speciation in lesser and greater prairie-chickens may be 
incomplete and natural isolating mechanisms may not operate 
effectively. Noise from human developments that may mask vocalizations 
in lesser prairie-chickens, as previously discussed in the section on 
influence of noise, also may impact the ability of females to detect 
differences in vocalizations between lesser prairie-chickens and their 
hybrids. Additionally, low population density may increase the 
susceptibility of lesser prairie-chickens to hybridization, primarily 
within the zone of overlap, and could exacerbate the potentially 
negative effects of hybridization. Hybridization is a particularly 
important issue for species that are rare and both fragmentation and 
habitat modification are significant factors that can contribute to 
increased rates of hybridization in some species (Rhymer and Simberloff 
1996, pp. 83, 103; Allendorf et al. 2001, p. 613).
    Presently, the immediate and long-term influence of hybridization 
on the species is unknown, although Johnsgard (2002, p. 32) did not 
consider current levels of hybridization to be genetically significant. 
Similarly, Johnson (2008, pp. 170-171) estimated that the rate of gene 
flow between lesser and greater prairie chickens was very low. Because 
the current extent, both numerically and areally, of hybridization 
appears very small, we currently do not consider hybridization to be a 
threat. Interbreeding on the mixed leks could result in some wasted 
reproductive effort but significant demographic effects are not 
expected at current levels. However, continued monitoring and 
additional investigation of hybridization between greater and lesser 
prairie-chickens is encouraged. Should the zone of overlap continue to 
expand, hybridization could become a threat with a significant impact 
on the lesser prairie-chicken.
Genetic Risks, Small Population Size and Lek Mating System
    Anthropogenic habitat deterioration and fragmentation, as 
previously discussed in this rule, not only drives range contractions 
and population extinctions but also may have significant genetic and, 
thus, evolutionary consequences for the surviving populations. Genetic 
risks, such as reduced reproductive success, are an important concern 
for lesser prairie-chickens, particularly considering the extensive 
reduction in abundance and occupied range that has occurred since 
EuroAmerican settlement of the Great Plains, and such risks often 
impact species well before they are driven to extinction (Spielman et 
al. 2004, p. 15264; Frankham 2005, pp. 134-135). Although we lack 
precise estimates of lesser prairie-chicken abundance and distribution 
prior to human settlement, we can infer from the estimates provided in 
the literature (previously discussed in section on Historical Range and 
Distribution) that populations were considerably larger and more widely 
distributed than they

[[Page 20059]]

are at present. Typically, these larger populations have more genetic 
diversity and are less vulnerable to extinction than smaller 
populations (Frankham 1996, pp. 1503-1507; Spielman et al. 2004, p. 
15261; Frankham 2005, p. 132; Willi et al. 2006, entire).
    As surviving populations become more isolated due to fragmentation 
and habitat loss, the movement of genetic information (gene flow) 
between those populations declines, leading to loss of genetic 
diversity and variability. Pruett et al. (2009b, p. 258) concluded that 
lesser prairie-chicken populations were historically connected, as 
evidenced by the lack of morphological variation across the range and 
availability of genetic information which suggests that the populations 
were contiguous and gene flow occurred among the extant populations. 
Considering increased levels of fragmentation can constrain dispersal 
in lesser prairie-chickens, low levels of dispersal may contribute to 
increased relatedness in both males and females at some lek sites. 
However, an analysis of genetic data collected in the early 2000s from 
Colorado, Kansas, New Mexico and Oklahoma did not indicate that 
population declines and habitat fragmentation apparent at that time had 
created any barriers to lesser prairie-chicken dispersal (Hagen et al. 
2010, p. 35).
    A number of harmful effects, such as reduced reproductive success 
or disease resistance, can have a genetic link and, over time, the loss 
of genetic variation and diversity allows these deleterious effects to 
become more prevalent as population sizes decline or isolation 
increases. Inbreeding occurs when the number of mates from which to 
choose become limited, increasing relatedness among individuals and 
contributing to a reduction in genetic variability. Inbreeding can 
reduce reproductive fitness and survival and increase extinction risk 
(Spielman et al. 2004, pp. 15261, 15263; Frankham 2005, pp. 132-133, 
136). Other genetic factors such as mutation and genetic drift (change 
in the genetic composition of a population due to chance events) also 
can influence genetic diversity and may contribute to increased 
extinction risk over long time spans. A loss of genetic diversity also 
may reduce the ability of individuals and populations to respond, or 
adapt, to changing environmental conditions, potentially impacting 
long-term stability and viability (Willi et al. 2006, pp. 447-450; 
Hughes et al. 2008, pp. 615-617, 620; Frankham 2005, p. 135). As 
populations decline, they become more sensitive to random demographic, 
environmental, and catastrophic (non-genetic) events. Factors such as 
drought, disease or predation can exert a more substantial influence 
over small populations. Even small populations that are growing can 
succumb to random changes in birth or survival rates that may drive a 
population to extinction. The small, fragmented lesser prairie-chicken 
populations that currently exist over portions of the estimated 
occupied range have an increased likelihood that such harmful effects 
already may be, or soon will be, occurring.
    These genetic risks, and their suite of associated harmful effects, 
may be amplified by the lek mating system characteristic of prairie 
grouse (Corman 2011, pp. 34-35). When male prairie chickens select a 
site for displaying, several factors such as high visibility, good 
auditory projection, and a lack of ambient noise are known to influence 
selection of lek sites by prairie chickens, and these same factors 
likely help aid females in locating the mating grounds (Gregory et al. 
2011, p. 29). Johnsgard (2002, p. 129) stressed that the mating system 
used by prairie grouse works most effectively when populations are 
dense enough to provide the visual and acoustic stimuli necessary to 
attract prebreeding females to the lek. Once established, the lek must 
then be large enough to assure that the matings will be performed by 
the most physically and genetically fit males. Lek breeding, where 
relatively few males sire offspring, tends to promote inbreeding 
(Bouzat and Johnson 2004, p. 503).
    Therefore, as populations decline, several events begin to exert 
influence on the viability of the affected population. As populations 
decline, and the number of males attending a particular lek decline, 
the probability that a lek will persistence also declines (Sandercock 
et al. 2012, p. 11). Females may have difficulty locating leks as the 
number of leks decline. Females also may not be attracted to an 
existing lek as male lek attendance declines and the corresponding 
collective visual and auditory display diminishes. Relatedly, as the 
number of male birds attending a particular lek declines, females will 
have fewer and fewer choices from which to select a mate, reducing the 
likelihood that females will select the most fit male. Because male 
lesser prairie-chickens have high site fidelity and consistently return 
to a particular lek site (Copelin 1963, pp. 29-30; Hoffman 1963, p. 
731; Campbell 1972, pp. 698-699), the same dominant, but perhaps less 
fit, male may conduct the majority of the matings. As this continues 
over several successive years, the potential for inbreeding becomes 
more prevalent and the risk of impacts from harmful genetic effects 
rises. Although an obvious oversimplification of the process, the 
likelihood that lesser prairie-chickens will experience detrimental 
genetic effects, such as inbreeding, is high and will only increase as 
population sizes decline and become more fragmented over time. The 
potential for possible genetic effects is amplified by the lek mating 
system, where mating is performed by relatively few males (highly male 
skewed) (Oyler-McCance et al. 2010, p. 121).
    However, the tendency of female lesser prairie-chickens and other 
prairie grouse to typically nest near a lek other than the one on which 
they mated is an innate mechanism that can help enhance genetic mixing 
and reduce the potential for of inbreeding to occur. Bouzat and Johnson 
(2004, p. 504) believed that site fidelity in female lesser prairie-
chickens was lower than that for males and may help ensure low 
relatedness in reproductive females at leks.
    Johnson (2008, p. 171) reported that gene flow is currently 
restricted between lesser prairie-chicken populations in New Mexico and 
those in Oklahoma and expressed concern that genetic variability may 
decline due to reduced population sizes. Hagen et al. (2010, p. 34) 
also reported that the New Mexico population was significantly 
different from populations in other States due to a lack of gene flow. 
An isolated population of lesser prairie-chicken in New Mexico and 
southwest Texas was reported to have lost genetic diversity due to 
separation from the main population, and this separation may have 
occurred since the 1800s (Corman 2011, p. 114).
    These findings are not unexpected given information on lesser 
prairie-chicken movements. Pruett et al. (2009b, p. 258) report 
findings by the Sutton Center that lesser prairie-chickens in Oklahoma 
were observed to move as much as 20 to 30 km (12 to 19 mi), but the 
extant lesser prairie-chicken populations in New Mexico and Oklahoma 
are separated by more than 200 km (124 mi). Given the limited movements 
of individual lesser prairie-chickens and the distance between these 
two populations, Pruett et al. (2009b, p. 258) considered interaction 
between these populations to be highly unlikely. Johnson (2008, p. 171) 
speculated that the observed estimate of gene flow between the New 
Mexico and Oklahoma populations could be due to effects of recent 
genetic drift as habitat fragmentation and isolation developed between 
the New Mexico and Oklahoma populations. Corman (2011, p. 116) stated 
that prolonged separation by an

[[Page 20060]]

isolated population in southwest Texas and eastern New Mexico may have 
contributed to reduced variability in mitochondrial Deoxyribonucleic 
acid (mtDNA, genetic material). Further examination of the viability of 
existing lesser prairie-chicken populations will be needed to 
thoroughly describe the effects of small population size and isolation 
on persistence of the lesser prairie-chicken.
    Dispersal is an important demographic factor that contributes to 
genetically viable populations (Johnson 2003, p. 62). Fragmentation 
that restricts dispersal capabilities can have dramatic impacts on the 
level of genetic variability and thus evolutionary potential of 
surviving populations (Johnson 2003, p. 62). Populations, such as the 
lesser prairie-chicken, that have undergone large decreases in 
population size are likely to lose genetic variation (Nei et al. 1975, 
Maruyama and Fuerst 1985). Resistance to disease and ability of 
populations to respond to environmental disturbances may also decrease 
with the loss of genetic variation (Lacy 1997).
    We have determined that genetic risks related to small population 
size and the lek mating system, while not a significant concern at 
current population levels, could begin to substantially impact lesser 
prairie-chickens in the future, should populations continue to decline 
or become more isolated by habitat fragmentation. The population in 
Deaf Smith County, Texas is already showing signs of inbreeding due to 
isolation (see discussion in section on Conservation Genetics). 
Additionally, genetic examination of the northeast Texas population 
revealed a dependence upon gene flow from Oklahoma and Kansas to 
maintain adequate levels of genetic diversity. If this gene flow is 
disrupted by habitat fragmentation, the northeast Texas population also 
could be impacted by the effects of inbreeding. Considering Corman 
(2011, pp. 49-50) observed that both the Deaf Smith and the Gray-Donley 
County populations were intermediate between the New Mexico-southwest 
Texas population and lesser prairie-chicken populations throughout the 
remainder of the range, existing and anticipated genetic impacts to 
these populations would further isolate the New Mexico-southwest Texas 
population from the rest of the range. Further isolation could impact 
the viability of the New Mexico-southwest Texas population. Continued 
loss of genetic variation may negatively impact the long-term viability 
of some lesser prairie-chicken populations.
Surface Water Impoundments
    Dams have been constructed on streams within the range of the 
lesser prairie-chicken to produce impoundments for flood control, water 
supply, and other purposes. The impounded waters flood not only 
affected stream segments and riparian areas, but also adjacent areas of 
grassland and shrubland habitats that potentially provided usable space 
for lesser prairie-chickens. Although lesser prairie-chickens may make 
use of free-standing water, as is retained in surface impoundments, its 
availability is not critical for survival of the birds (Giesen 1998, p. 
4).
    The historical range of the lesser prairie-chicken contains 
approximately 25 large impoundments with a surface area greater than 
1,618 ha (4,000 ac), the largest 20 of these (and their normal surface 
acreage) are listed from largest to smallest in Table 5, below.

 Table 5--Impoundments With Surface Acreage Greater Than 1,618 ha (4,000
      ac) Within the Historical Range of the Lesser Prairie-Chicken
------------------------------------------------------------------------
          Impoundment              Surface acreage           State
------------------------------------------------------------------------
John Martin Reservoir.........  8,302 ha (20,515 ac).  Colorado.
O. H. Ivie Lake...............  7,749 ha (19,149 ac).  Texas.
Lake Meredith.................  6,641 ha (16,411 ac).  Texas.
Lake Kemp.....................  6,309 ha (15,590 ac).  Texas.
Lake Arrowhead................  6,057 ha (14,969 ac).  Texas.
E. V. Spence Reservoir........  6,050 ha (14,950 ac).  Texas.
Hubbard Creek Reservoir.......  6,038 ha (14,922 ac).  Texas.
Twin Buttes Reservoir.........  3,965 ha (9,800 ac)..  Texas.
Cheney Reservoir..............  3,859 ha (9,537 ac)..  Kansas.
Wilson Lake...................  3,642 ha (9,000 ac)..  Kansas.
Foss Lake.....................  3,561 ha (8,800 ac)..  Oklahoma.
Great Salt Plains Lake........  3,516 ha (8,690 ac)..  Oklahoma.
Ute Reservoir.................  3,318 ha (8,200 ac)..  New Mexico.
Canton Lake...................  3,201 ha (7,910 ac)..  Oklahoma.
J. B. Thomas Reservoir........  2,947 ha (7,282 ac)..  Texas.
Cedar Bluff Reservoir.........  2,779 ha (6,869 ac)..  Kansas.
Lake Brownwood................  2,626 ha (6,490 ac)..  Texas.
Tom Steed Lake................  2,590 ha (6,400 ac)..  Oklahoma.
Lake Altus-Lugert.............  2,533 ha (6,260 ac)..  Oklahoma.
Lake Kickapoo.................  2,439 ha (6,028 ac)..  Texas.
                               -----------------------
    Total.....................  88,129 ha (217,772
                                 ac).
------------------------------------------------------------------------
(Sources: Kansas Water Office 2012, New Mexico State Parks 2012, Texas
  Parks and Wildlife Department 2012, Texas State Historical Association
  2012, U.S. Army Corps of Engineers 2012, U.S. Bureau of Reclamation
  2012.)

    In addition, the historical range of the lesser prairie-chicken 
contains many smaller impoundments, such as municipal reservoirs and 
upstream flood control projects. For example, beginning in the mid-
1900s, the USDA constructed hundreds of small impoundments (floodwater 
retarding structures) within the historical range of the lesser 
prairie-chicken, through the Watershed Protection and Flood Prevention 
Program. The program was implemented to its greatest extent in Oklahoma 
(Oklahoma Conservation Commission 2005), and, within the portion of the 
lesser prairie-chicken's historical range in that State, the USDA 
constructed 574 floodwater retarding structures, totaling 6,070 ha 
(15,001 ac) (Elsener 2012). Similarly, within the portion of the lesser 
prairie-chicken's

[[Page 20061]]

historical range in Texas, the USDA constructed 276 floodwater 
retarding structures, totaling 8,293 surface acres (Bednarz 2012). In 
Kansas, considerably fewer floodwater retarding structures were 
constructed within the historical range, totaling 857 ha (2,118 ac) 
(Gross 2012). Even fewer such structures were constructed in Colorado 
and New Mexico.
    Cumulatively, the total area of historical lesser prairie-chicken 
range lost due to construction of large, medium, and small impoundments 
is about 98,413 ha (243,184 ac), or roughly 0.2 percent of the 
historical range, and is much less than the amount of habitat lost or 
degraded by other factors discussed in this rule (e.g., conversion of 
rangeland to cropland and overgrazing). The Service expects a large 
majority of existing reservoirs to be maintained over the long term. 
Therefore, these structures will continue to displace former areas of 
lesser prairie-chicken habitat, as well as fragment surrounding lands 
as habitat for the lesser prairie-chicken, but the overall habitat loss 
is relatively minor. Because extensive new dam construction is not 
anticipated within the lesser prairie-chicken's range, the Service 
considers it unlikely that reservoir construction will significantly 
impact lesser prairie-chickens in the future.
    In summary, several other natural or manmade factors are affecting 
the continued existence of the lesser prairie-chicken. Parasitism of 
lesser prairie-chicken nests by pheasants and hybridization with 
greater prairie chickens have been documented but the incidence is low. 
The impact is not significant at current levels. Hybridization is 
occurring in a small portion of the estimated occupied range but the 
immediate and long-term influence of hybridization on the species is 
unknown. The incidence of hybridization is low, typically about 1 
percent of the estimated total population. However, should the zone of 
overlap between lesser and greater prairie-chickens expand, 
hybridization could become a more significant stressor in the future. 
As lesser prairie-chicken populations decline, number of potential 
genetic factors associated with reduced population size may begin to 
become more prevalent, particularly as populations become more 
isolated. Although genetic risks related to small population size and 
the lek mating system are not a significant concern at current 
population levels, they could begin to substantially impact lesser 
prairie-chickens in the future, Although past construction of surface 
water impoundments within the historical range have eliminated 
potential habitat, and continue to displace former areas of lesser 
prairie-chicken habitat, including small areas within the estimated 
occupied range, construction of large impoundments has slowed 
considerably over the past several decades. Habitat losses from 
reservoir construction are small, constituting roughly 0.2 percent of 
the historical range. However, considering low population density can 
increase the susceptibility of lesser prairie-chicken to possible 
genetic effects and increase the negative effects of hybridization, 
nest parasitism, and competition, we consider the effects of these 
natural and manmade factors to be a threat to the lesser prairie-
chicken.

Adequacy of Existing Regulatory Mechanisms

    Regulatory mechanisms, such as Federal, state, and local land use 
regulations or laws, may provide protection from some threats provided 
those regulations and laws are not discretionary and are enforceable.
    In 1973, the lesser prairie-chicken was listed as a threatened 
species in Colorado under the State's Nongame and Endangered or 
Threatened Species Conservation Act. While this designation prohibits 
unauthorized take, possession, and transport, that adequately protects 
the species from direct purposeful mortality by humans, no protections 
are provided for destruction or alteration of lesser prairie-chicken 
habitat. In the remaining States, the lesser prairie-chicken is 
classified as a game species, although the legal harvest is now closed 
in New Mexico, Oklahoma, and Texas. Accordingly, the State conservation 
agencies have the authority to regulate possession of the lesser 
prairie-chicken, set hunting seasons, and issue citations for poaching. 
For example, Texas Statute (Parks and Wildlife Code Section 64.003) 
prohibits the destruction of nests or eggs of game birds such as the 
lesser prairie-chicken. These authorities provide lesser prairie-
chickens with protection from direct mortality caused by hunting and 
prohibit some forms of unauthorized take, and have been adequate to 
address any concerns of overhunting, as evidenced by the fact that 
these states have closed harvest in response to low population levels. 
Alternatively, these authorities do not provide protection for 
destruction or alteration of the species' habitat.
    In July of 1997, the NMDGF received a formal request to commence an 
investigation into the status of the lesser prairie-chicken within New 
Mexico. This request began the process for potential listing of the 
lesser prairie-chicken under New Mexico's Wildlife Conservation Act. In 
1999, the recommendation to list the lesser prairie-chicken as a 
threatened species under the Wildlife Conservation Act was withdrawn 
until more information was collected from landowners, lessees, and land 
resource managers who may be affected by the listing or who may have 
information pertinent to the investigation. In late 2006, the New 
Mexico State Game Commission determined that the lesser prairie-chicken 
would not be State-listed in New Mexico. New Mexico's Wildlife 
Conservation Act, under which the lesser prairie-chicken could have 
been listed, offers little opportunity to prevent otherwise lawful 
activities.
    Regardless of each State's listing status, most occupied lesser 
prairie-chicken habitat throughout its estimated occupied range occurs 
on private land (Taylor and Guthery 1980b, p. 6), where State 
conservation agencies have little authority to protect or direct 
management of the species' habitat. All five States in the estimated 
occupied range have incorporated the lesser prairie-chicken as a 
species of conservation concern and management priority in their 
respective State Wildlife Action Plans. While identification of the 
lesser prairie-chicken as a species of conservation concern does help 
heighten public awareness, this designation provides no protection from 
direct take or habitat destruction or alteration.
    Some States, such as Oklahoma, have laws and regulations that 
address use of State school lands, primarily based on maximizing 
financial return from operation of these lands. However, the scattered 
nature of these lands and requirement to maximize financial returns 
minimize the likelihood that these lands will be managed to reduce 
degradation and fragmentation of habitat and ensure the conservation of 
the species.
    Lesser prairie-chickens are not covered or managed under the 
provisions of the Migratory Bird Treaty Act (16 U.S.C. 703-712) because 
they are considered resident game species. The lesser prairie-chicken 
has an International Union for Conservation of Nature (IUCN) Red List 
Category of ``vulnerable'' (BirdLife International 2008), and 
NatureServe currently ranks the lesser prairie-chicken as G3--
Vulnerable (NatureServe 2011, entire). The lesser prairie-chicken also 
is on the National Audubon Society's WatchList 2007 Red Category, which 
is ``for species that are declining rapidly or have very small 
populations or limited

[[Page 20062]]

ranges, and face major conservation threats.'' However, none of these 
designations provide any regulatory protection.
    There are six National Grasslands located within the estimated 
historical range of the lesser prairie-chicken. Two of the six, the 
Comanche National Grassland in Colorado and the Cimarron National 
Grassland in Kansas, occur within the estimated occupied range. The 
remaining four occur within or adjacent to counties that are occupied 
with lesser prairie-chickens, but the National Grasslands themselves 
are not within the delineation of the estimated occupied range. The 
National Grasslands are managed by the USFS, have been under Federal 
ownership since the late 1930s, and were officially designated as 
National Grasslands in 1960. The Kiowa, Rita Blanca, Black Kettle, and 
McClellan Creek National Grasslands are administered by the Cibola 
National Forest. The Kiowa National Grassland covers 55,659 ha (137,537 
ac) and is located within Mora, Harding, Union, and Colfax Counties, 
New Mexico. The Rita Blanca National Grassland covers 37,631 ha (92,989 
ac) and is located within Dallam County, Texas, and Cimarron County, 
Oklahoma. The Black Kettle National Grassland covers 12,661 ha (31,286 
ac) and is located within Roger Mills County, Oklahoma, and Hemphill 
County, Texas. The McClellan Creek National Grassland covers 586 ha 
(1,449 ac) and is located in Gray County, Texas. No breeding 
populations of lesser prairie-chickens are known to occur on these 
holdings.
    The Comanche and Cimarron National Grasslands are under the 
administration of the Pike and San Isabel National Forest. The Comanche 
National Grassland covers 179,586 ha (443,765 ac) and is located within 
Baca, Las Animas, and Otero Counties, Colorado. The Cimarron National 
Grassland covers 43,777 ha (108,175 ac) and is located in Morton and 
Stevens Counties, Kansas. Both of these areas are known to support 
breeding lesser prairie-chickens. The National Forest Management Act of 
1976 and the associated planning rule in effect at the time of planning 
initiation are the principal law and regulation governing the planning 
and management of National Forests and National Grasslands by the USFS.
    Planning for the Kiowa, Rita Blanca, Black Kettle, and McClellan 
Creek National Grasslands was well underway when the 2008 National 
Forest System Land Management Planning Rule was enjoined on June 30, 
2009, by the United States District Court for the Northern District of 
California (Citizens for Better Forestry v. United States Department of 
Agriculture, 632 F. Supp. 2d 968 (N.D. Cal. June 30, 2009)). A new 
planning rule was finalized in 2012 (77 FR 67059) and became effective 
on May 9, 2012. The transition provisions of the 2012 planning rule (36 
CFR 219.17(b)(3)) allow those National Forest System lands that had 
initiated plan development, plan amendments, or plan revisions prior to 
May 9, 2012, to continue using the provisions of the prior planning 
regulation. The Cibola National Forest and Grasslands used the guidance 
of the 2012 Planning Rule transition language allowing the provisions 
of the 1982 Planning Rule, including the requirement to prepare an 
Environmental Impact Statement, to complete the new plan for these 
National Grasslands. The management strategies for management of these 
National Grasslands provide a strategic, outcome-oriented, programmatic 
framework for future activities and will be implemented at the District 
level through the application of certain Desired Conditions, 
Objectives, Standards, and Guidelines. The Environmental Impact 
Statement highlights that the new plan will allow for enhancement of 
lesser prairie-chicken habitat by moving vegetation types toward the 
species' desired vegetation structures and species composition, in 
addition to reducing mortality caused by fence collision. As explained 
above, the transition provisions (36 CFR 219.17(b)(3)) of the 2012 
planning rule allow the use of the provisions of the 1982 planning 
rule, including the requirement that management indicator species be 
identified as part of the plan. Management indicator species serve 
multiple functions in forest planning: Focusing management direction 
developed in the alternatives, providing a means to analyze effects on 
biological diversity, and serving as a reliable feedback mechanism 
during plan implementation. The latter often is accomplished by 
monitoring population trends in relationship to habitat changes. 
Although suitable habitat is present, no breeding populations of lesser 
prairie-chickens are known from the Kiowa, Rita Blanca, Black Kettle, 
and McClellan Creek National Grasslands. Consequently, the lesser 
prairie-chicken is not designated as a management indicator species in 
the plan. Instead the lesser prairie-chicken is included on the 
Regional Forester's sensitive species list and as an At-Risk species.
    In 2008, a new National Forest System Land Management Planning Rule 
(36 CFR Part 219) took effect and was used to guide the development of 
a Land and Resource Management Plan for the Comanche and Cimarron 
National Grasslands. That plan was one of the first plans developed and 
released under the 2008 planning rule. The predecisional review version 
of the Cimarron and Comanche National Grasslands Land Management Plan 
was made available to the public on October 17, 2008. The lesser 
prairie-chicken was included as a species-of-concern in accordance with 
guidance available in the existing planning rule (USFS 2008, p. 35). As 
defined in the 2008 planning rule, species-of-concern are species for 
which the Responsible Official determines that management actions may 
be necessary to prevent listing under the Endangered Species Act (36 
CFR 219.16). Identification of the lesser prairie-chicken as a species-
of-concern in the Cimarron and Comanche National Grasslands Land 
Management Plan led to inclusion of planning objectives targeting 
improvement of the species' habitat, as described below.
    The Comanche and Cimarron National Grasslands currently manage the 
Comanche Lesser Prairie-chicken Habitat Zoological Area, now designated 
as a Colorado Natural Area, which encompasses an area of 4,118 ha 
(10,177 ac) that is managed to benefit the lesser prairie-chicken. 
Current conditions on this area include existing oil and gas leases, 
two-track roads, utility corridors, and livestock grazing. Wildfires on 
the area have been suppressed over the last 30 years. The area provides 
a special viewing area for the lesser prairie-chicken, which has been 
closed to protect lekking activities. The 1984 plan specifies that the 
condition of the area should meet the special habitat needs of the 
lesser prairie-chicken, specifically protection of leks from all 
surface disturbance, protection of nesting habitat from surface 
disturbance during the nesting period (April 15 to June 30) and 
limiting forage use by livestock and wild herbivores to no more than 40 
percent.
    The USFS contracted with lesser prairie-chicken experts to prepare 
the lesser prairie-chicken technical conservation assessment, which is 
a succinct evaluation of species of potential viability concern, (Robb 
and Schroeder 2005, entire). The conservation assessment addresses the 
biology, ecology, conservation, and management of the species 
throughout its range, but it primarily focuses on Colorado and Kansas 
(Forest Service Region 2) (Robb and Schroeder 2005, p.

[[Page 20063]]

7). Species conservation assessments produced as part of the Species 
Conservation Project are designed to provide land managers, biologists, 
and the public with a thorough discussion of the biology, ecology, 
conservation, and management of the lesser prairie-chicken based on 
existing scientific knowledge and to provide the ecological background 
upon which management should be based, focusing on the consequences of 
changes in the environment that result from management (Robb and 
Schroeder 2005, p. 7). This conservation assessment for the lesser 
prairie-chicken was completed in 2005 and affirmed the need for the 
USFS to retain sensitive species status designation for the lesser 
prairie-chicken. The criteria evaluated for inclusion on the sensitive 
species list include distribution, dispersal capability, abundance, 
population trend, habitat trend, habitat vulnerability or modification, 
and life history and demographics. The sensitive species recommendation 
form for the lesser prairie-chicken states that the species clearly 
warrants sensitive species designation because habitat loss, 
fragmentation and degradation are still significant risk factors on 
both USFS and surrounding private lands. Management activities on the 
National Grasslands throughout the range of the lesser prairie-chicken 
may be guided by the technical conservation assessment; however, the 
document only provides summaries of existing scientific knowledge, 
discussion of broad implications of that knowledge, and outlines of 
information needs. The technical conservation assessment does not seek 
to develop specific prescriptions for management of populations and 
habitats. Instead, it is intended to provide the ecological background 
upon which management should be based and focuses on the consequences 
of changes in the environment that result from management (i.e., 
management implications). This document can be found at http://www.fs.fed.us/r2/projects/scp/assessments/lesserprairiechicken.pdf.
    The other primary Federal surface ownership of lands occupied by 
the lesser prairie-chicken is administered by the BLM in New Mexico. In 
New Mexico, roughly 41 percent of the known historical and most of the 
estimated occupied lesser prairie-chicken range occurs on BLM land. The 
BLM currently manages approximately 342,969 surface ha (847,491 ac) 
within lesser prairie-chicken range in eastern New Mexico. They also 
oversee another 120,529 ha (297,832 ac) of Federal minerals below 
private surface ownership. The core of currently occupied lesser 
prairie-chicken habitat in New Mexico is within the Roswell BLM 
Resource Area. However, the Carlsbad BLM Resource Area comprised much 
of the historical southern periphery of the species' range in New 
Mexico.
    The BLM established the 23,278-ha (57,522-ac) Lesser Prairie-
Chicken Habitat Preservation Area of Critical Environmental Concern 
(ACEC) upon completion of the RMPA in 2008; the purpose of the ACEC is 
to maintain and enhance habitat for the lesser prairie-chicken and the 
dunes sagebrush lizard (Sceloporus arenicolus) (BLM 2008, p. 1). The 
management goal for the ACEC is to protect the biological qualities of 
the area, with emphasis on the preservation of the shinnery oak-dune 
community to enhance the biodiversity of the ecosystem, particularly 
habitats for the lesser prairie-chicken and the dunes sagebrush lizard. 
The ACEC not only includes 20,943 ha (51,751 ac) public land surface 
acres, in addition to State trust land and private land, but also 
includes 18,981 ha (46,902 ac) of Federal mineral estate (BLM 2008, p. 
30). Upon designation, the ACEC was closed to future oil and gas 
leasing, and existing leases would be developed in accordance with 
prescriptions applicable to the Core Management Area as described below 
(BLM 2008, p. 30). Additional management prescriptions for the ACEC 
include designation as a right-of-way exclusion area, vegetation 
management to meet the stated management goal of the area, and limiting 
the area to existing roads and trails for off-highway vehicle use (BLM 
2008, p. 31). All acres of the ACEC have been closed to grazing through 
relinquishment of the permits except for one 1393 ha (3,442 ac) 
allotment.
    The BLM's amended RMPA (BLM 2008, pp. 5-31) provides some limited 
protections for the lesser prairie-chicken in New Mexico by reducing 
the number of drilling locations, decreasing the size of well pads, 
reducing the number and length of roads, reducing the number of 
powerlines and pipelines, and implementing best management practices 
for development and reclamation. Implementation of these protective 
measures, particularly curtailment of new mineral leases, would be 
greatest in the Core Management Area and the Primary Population Area 
habitat management units (BLM 2008, pp. 9-11). The Core Management and 
Primary Population Areas are located in the core of the lesser prairie-
chicken estimated occupied range in New Mexico. The effect of these 
best management practices on the status of the lesser prairie-chicken 
is unknown, particularly considering about 33,184 ha (82,000 ac) have 
already been leased in those areas (BLM 2008, p. 8). The effectiveness 
of the amended RMPA is hampered by a lack of explicit measures designed 
to improve the status of the lesser prairie-chicken, limited certainty 
that resources will be available to carry out the management plan, 
limited regulatory or procedural mechanisms in place to carry out the 
efforts, lack of monitoring efforts, and provision for exceptions to 
the best management practices under certain conditions, which could 
negate the benefit of the conservation measures.
    The amended RMPA stipulates that implementation of measures 
designed to protect the lesser prairie-chicken and dunes sagebrush 
lizard may not allow approval of all spacing unit locations or full 
development of a lease (BLM 2008, p. 8). In addition, the RMPA 
prohibits drilling and exploration in lesser prairie-chicken habitat 
between March 1 and June 15 of each year (BLM 2008, p. 8). No new 
mineral leases will be issued on approximately 32 percent of Federal 
mineral acreage within the RMPA planning area (BLM 2008, p. 8), 
although some exceptions are allowed on a case-by-case basis (BLM 2008, 
pp. 9-11). Within the Core Management Area and Primary Population Area, 
new leases will be restricted in occupied and suitable habitat; 
however, if there is an overall increase in reclaimed to disturbed 
acres over a 5-year period, new leases in these areas will be allowed 
(BLM 2008, p. 11). Considering Hunt and Best (2004, p. 92) concluded 
that petroleum development at intensive levels likely is not compatible 
with populations of lesser prairie-chicken, additional development in 
the Core Management Area and Primary Population Area habitat management 
units may hinder long-term conservation of the species in New Mexico. 
The RMPA allows lease applicants to voluntarily participate in a power 
line removal credit to encourage removal of idle power lines (BLM 2008, 
pp. 2-41). In the southernmost habitat management units, the Sparse and 
Scattered Population Area and the Isolated Population Area, where 
lesser prairie-chickens are now far less common than in previous 
decades (Hunt and Best 2004), new leases will not be allowed within 2.4 
km (1.5 mi) of a lek (BLM 2008, p. 11).
    The overall ineffectiveness of certain imposed energy development 
stipulations near leks for the purpose of

[[Page 20064]]

protecting grouse on Federal lands has been confirmed for sage grouse. 
Holloran (2005, p. 57) and Naugle et al. (2006a, p. 3) documented that 
sage grouse avoid energy development (coalbed methane) not only in 
breeding and nesting habitats, but also in wintering habitats. They 
assert that current best management practices in use by Federal land 
management agencies that place timing stipulations or limit surface 
occupancy near greater sage-grouse leks result in a human footprint 
that far exceeds the tolerance limits of sage grouse. Ultimately, they 
recommended that effective conservation strategies for grouse must 
limit the cumulative impact of habitat disturbance, modification, and 
destruction in all habitats and at all times of the year (Holloran 
2005, p. 58; Naugle et al. 2006b, p. 12). Additional research on the 
effect of petroleum development on lesser prairie-chicken is needed. 
However, available information on the lesser prairie-chicken (Suminski 
1977, p. 70; Hagen et al. 2004, pp. 74-75; Hunt and Best 2004, p. 92; 
Pitman et al. 2005, pp. 1267-1268) indicates that the effect of 
petroleum development is often detrimental, particularly during the 
breeding season.
    Because only about 4 percent of the species' overall range occurs 
on Federal lands, the Service recognizes that the lesser prairie-
chicken cannot be fully recovered on Federal lands alone. However, no 
laws or regulations currently protect lesser prairie-chicken habitat on 
private land, aside from State harvest restrictions. Therefore, the 
Service views decisions regarding the management and leasing of Federal 
lands and minerals within existing lesser prairie-chicken range as 
important to the future conservation and persistence of the species.
    Since 2004, the construction of commercial wind energy projects 
near and within estimated occupied lesser prairie-chicken habitat has 
raised concerns about the potential negative effects such projects may 
have on the species, if constructed at large scales in occupied range. 
As discussed previously, a rapid expansion of transmission lines and 
associated wind energy development throughout large portions of 
occupied lesser prairie-chicken range is occurring. Because most wind 
development activities are privately funded and are occurring on 
private land, wind energy siting, development, and operation falls 
outside the purview of the National Environmental Policy Act of 1969 
(NEPA) and, within the range of the lesser prairie-chicken, other 
Federal conservation statues and regulatory processes. As a result, 
Federal law and policy does not generally regulate the wind development 
activities in regard to the lesser prairie-chicken.
    The current lack of regulatory oversight and public notice 
requirements for the construction of wind generation and related 
transmission facilities is a concern. Specifically, the Service is 
unaware of any state or Federal mechanisms that require potential wind 
energy producers to disclose the location, size, and anticipated 
construction date for pending projects on non-Federal lands or require 
analysis under the provisions of the NEPA. Lacking the ability to 
obtain pertinent siting information or analyze alternative siting 
locations, neither the Service nor State conservation agencies 
currently have the ability to accurately influence the size or timing 
of wind generation construction activities within occupied lesser 
prairie-chicken habitat.
    In summary, most occupied lesser prairie-chicken habitat occurs on 
private land, where State conservation agencies currently have little 
authority to protect lesser prairie-chicken or facilitate and monitor 
management of lesser prairie-chicken habitat beyond regulating 
recreational harvest. Because most lesser prairie-chicken habitat 
destruction and modification on private land occurs through otherwise 
lawful activities such as agricultural conversion, livestock grazing, 
energy development, and fire exclusion, few (if any) regulatory 
mechanisms are in place to substantially alter human land uses at a 
sufficient scale to protect lesser prairie-chicken populations and 
their habitat. While almost no regulatory protection is in place for 
the species, regulatory incentives, in the form of county, state, and 
national legislative actions, have been created to facilitate the 
expansion of activities that result in fragmentation of occupied lesser 
prairie-chicken habitat, such as that resulting from oil, gas, and wind 
energy development. For the remaining 4 percent of occupied habitat 
currently under Federal management, habitat quality depends primarily 
on factors related to multiple use mandates, such as livestock grazing 
and oil, gas, and wind power development activities. Because prior 
leasing commitments and management decisions on the majority of 
occupied parcels of Federal land offer little flexibility for reversal, 
any new regulatory protection for uncommitted land units are important 
and will take time to achieve substantial benefits for the species in 
the long term.
    We note that the existing regulatory mechanisms at the Federal and 
State level have not been sufficient to halt the decline of the 
species. Further, the best available information does not show any 
existing regulatory mechanisms at the local level that address the 
identified threats to the species. In spite of the existing regulatory 
mechanisms, the current and projected threat from the loss and 
fragmentation of lesser prairie-chicken habitat and range is still 
ongoing. The existing regulatory mechanisms have not been effective at 
removing all of the impacts to lesser prairie-chickens and their 
habitat.

Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination.
    As required by the Act, we considered the five factors in assessing 
whether the lesser prairie-chicken meets the definition of an 
endangered or a threatened species. We examined the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by the lesser prairie-chicken. Based on our review 
of the best available scientific and commercial information, we find 
the lesser prairie-chicken is likely to become in danger of extinction 
in the foreseeable future and, therefore, meets the definition of a 
threatened species.
    The life history and ecology of the lesser prairie-chicken make it 
exceptionally vulnerable to changes on the landscape, especially at its 
currently reduced numbers. As discussed above, this vulnerability to 
habitat impacts results from the species' lek breeding system, which 
requires males and females to be able to hear and see each other over 
relatively wide distances; the need for large patches of habitat that 
include several types of microhabitats; and the behavioral avoidance of 
vertical structures. Specifically, the lesser prairie-chicken's 
behavioral avoidance of vertical structures causes its habitat to be 
more functionally fragmented than another species' habitat would be. 
For example, a snake likely would continue

[[Page 20065]]

to use habitat underneath a wind turbine, but the lesser prairie-
chicken's predator avoidance behavior causes it to avoid a large area 
(estimated to be 1 mile) around a tall vertical object. The habitat 
within that 1.6-km (1-mi) buffer continues to be otherwise suitable for 
lesser prairie-chickens, but the entire area is avoided because of the 
vertical structure. As a result, the impact of any individual 
fragmenting feature is of higher magnitude than the physical footprint 
of that structure would suggest it should be.
    The ongoing and future impacts of cumulative habitat loss and 
fragmentation to the lesser prairie-chicken are widespread and of high 
magnitude. Most importantly, the probable future negative impacts to 
the species and its habitat are the result of conversion of grasslands 
to agricultural uses; encroachment by invasive, woody plants; wind 
energy development; petroleum production; roads; and presence of 
manmade vertical structures, including towers, utility lines, fences, 
turbines, wells, and buildings. The historical and current impact of 
these fragmenting factors has reduced the status of the species to the 
point that individual populations are vulnerable to extirpation as a 
result of stochastic events such as extreme weather events. 
Additionally, these populations are more vulnerable to the effects of 
climate change, disease, and predation than they would have been at 
historical population levels. These threats are currently impacting 
lesser prairie-chickens throughout their range and, as detailed 
individually above, are projected to increase in severity into the 
foreseeable future.
    The range of the lesser prairie-chicken has been reduced by an 
estimated 84 percent since pre-European settlement. The vulnerability 
of lesser prairie-chickens to changes on the landscape is magnified 
compared to historical times due to the species' reduced population 
numbers, prevalence of isolated populations, and reduced range. There 
are few areas of large patches of unfragmented, suitable grassland 
remaining. Based on our analysis presented earlier, approximately 98.96 
percent of the remaining suitable habitat patches were less than 486 ha 
(1,200 ac) in size. In addition, 99.97 percent of the remaining 
suitable habitat patches were less than 6,475 ha (16,000 ac) in size. 
In order to thrive and colonize unoccupied areas, lesser prairie-
chickens require large patches of functionally unfragmented habitat 
that include a variety of microhabitats needed to support lekking, 
nesting, brood rearing, feeding for young, and feeding for adults, 
among other things. Habitat patches that do not contain all of these 
microhabitats may support population persistence but may not support 
thriving populations that can produce surplus males capable of 
colonizing new areas or recolonizing previously extirpated areas.
    The species has a reduced population size and faces ongoing habitat 
loss and degradation. The species will lack sufficient redundancy and 
resiliency to ensure its viability from present and future threats. As 
a result, the status of the species has been reduced to the point that 
individual populations are vulnerable to extirpation due to a variety 
of stochastic events (e.g., drought, winter storms). These extirpations 
are especially significant because, in many places, there are no 
nearby, connected populations with robust numbers that can rescue the 
extirpated populations (i.e., be a source for recolonization). 
Stochastic events will not affect all populations equally such all of 
the remaining populations are not likely to be extirpated at once; 
however, without intervention, population numbers will continue to 
decline and the range of the species will continue to contract.
    There are numerous ongoing conservation efforts throughout the 
range of the species that are working to reduce or remove many of the 
threats affecting the lesser prairie-chicken. However, those existing 
efforts are largely focused on just one or two of the threats that the 
lesser prairie-chicken is facing, and, in total, those efforts largely 
do not address two of the more significant threats to the lesser 
prairie-chicken into the future, namely oil and gas development and 
wind energy development. Additionally, despite those ongoing efforts, 
the status of the species has continued to decline, presumably as a 
result of the effects of drought. The WAFWA recently finalized their 
rangewide plan, a landmark conservation effort that is intended to 
address, in part, those threat sources that are not covered elsewhere. 
While we have determined that the rangewide plan will provide a net 
conservation benefit to the species, the positive benefits of that 
effort are expected to occur in the future rather than now at the time 
of listing.
    In summary, because of the reduction in the numbers and range of 
lesser prairie-chickens resulting from cumulative ongoing habitat 
fragmentation, combined with the lack of sufficient redundancy and 
resiliency of current populations, we conclude that the lesser prairie-
chicken is currently at risk of extinction or is likely to be in danger 
of extinction in the foreseeable future.
    We must then assess whether the species is in danger of extinction 
now (i.e., an endangered species) or is likely to become in danger of 
extinction in the foreseeable future (i.e., a threatened species). In 
assessing the status of the lesser prairie-chicken, we applied the 
general understanding of ``in danger of extinction'' as discussed in 
the December 22, 2010, memo to the polar bear listing determination 
file, ``Supplemental Explanation for the Legal Basis of the 
Department's May 15, 2008, Determination of Threatened Status for the 
Polar Bear,'' signed by then Acting Director Dan Ashe (hereafter 
referred to as Polar Bear Memo). As discussed in the Polar Bear Memo, a 
key statutory difference between an endangered species and a threatened 
species is the timing of when a species may be in danger of extinction 
(i.e., currently on the brink of extinction), either now (endangered 
species) or in the foreseeable future (threatened species).
    As discussed in the Polar Bear Memo, because of the fact-specific 
nature of listing determinations, there is no single metric for 
determining if a species is ``in danger of extinction'' now. 
Nonetheless, the practice of the Service over the past four decades has 
been consistent. Species that the Service has determined to be in 
danger of extinction now, and therefore appropriately listed as an 
endangered species, generally fall into four basic categories:
    (1) Species facing a catastrophic threat from which the risk of 
extinction is imminent and certain.
    (2) Narrowly restricted endemics that, as a result of their limited 
range or population size are vulnerable to extinction from elevated 
threats.
    (3) Species formally more widespread that have been reduced to such 
critically low numbers or restricted ranges that they are at a high 
risk of extinction due to threats that would not otherwise imperil the 
species.
    (4) Species with still relatively widespread distribution that have 
nevertheless suffered ongoing major reductions in their numbers, range, 
or both, as a result of factors that have not been abated.
    The best scientific and commercial data available indicate that the 
lesser prairie-chicken could fit into the fourth category. However, as 
noted in the Polar Bear Memo, threatened species share some 
characteristics with this category of endangered species where the 
recent decline in population, range, or both, is to a less severe 
extent. The Polar Bear Memo indicates that ``[w]hether a

[[Page 20066]]

species in this situation is ultimately an endangered species or 
threatened species depends on the specific life history and ecology of 
the species, the natures of the threats, and population numbers and 
trends.'' The Polar Bear Memo provides examples of species that 
suffered fairly substantial declines in numbers or range and were 
appropriately listed as threatened because the species as a whole was 
not in danger of extinction, although the Service could foresee the 
species reaching the brink of extinction.
    As discussed above, the foreseeable future refers to the extent to 
which the Secretary can reasonably rely on predictions about the future 
in making determinations about the future conservation status of the 
species. For the lesser prairie-chicken, information about the primary 
ongoing and future threats is reasonably well-known and reliable. Thus, 
we used the best scientific and commercial data available to analyze 
and identify the primary ongoing and future threats to the lesser 
prairie-chicken. As discussed in the Polar Bear Memo, species like the 
lesser prairie-chicken that have suffered ongoing, major reductions in 
numbers or range (or both) due to factors that have not been abated may 
be classified as threatened species if some populations appear stable, 
which would indicate that the entity as a whole was not in danger of 
extinction now (i.e., not an endangered species). In the case of the 
lesser prairie-chicken, the best available information indicates that, 
while there have been major range reductions (84 percent) as a result 
of factors that have not been abated (cumulative habitat fragmentation 
and drought), there are sufficient stable populations such that the 
species is not on the brink of extinction. Specifically, in the Short-
Grass/CRP mosaic ecoregion of northwestern Kansas, the lesser prairie-
chicken has reoccupied parts of its former range after landowners 
enrolled in CRP, creating large blocks of high-quality habitat 
beneficial to the species. This population is considered relatively 
secure in the near term, as it is primarily comprised of CRP lands that 
are in 10- to 15-year contracts. Further, lesser prairie-chicken 
populations are spread over a large geographical area, and the current 
range of the species includes populations that represent the known 
diversity of ecological settings for the lesser prairie-chicken. As a 
result, it is unlikely that a single stochastic event (e.g., drought, 
winter storm) will affect all known extant populations equally or 
simultaneously; therefore, it would require several stochastic events 
over a number of years to bring the lesser prairie-chicken to the brink 
of extinction due to those factors alone. In addition, the current and 
ongoing threats of conversion of grasslands to agricultural uses; 
encroachment by invasive, woody plants; wind energy development; and 
petroleum production are not likely to impact all remaining populations 
significantly in the near term because these activities either move 
slowly across the landscape or take several years to plan and 
implement. These threats are also less likely to significantly impact 
the Kansas lesser prairie-chicken population in the near term because 
of its relative security (e.g., land use is unlikely to change through 
the term of the CRP contracts), as described above. Therefore, there 
are sufficient populations to allow the lesser prairie-chicken to 
persist into the near future, it is not in danger of extinction 
throughout all of its range now. However, because of the nature of the 
ongoing threats to the species, the Service can foresee the species 
reaching the brink of extinction, and the species, therefore, 
appropriately meets the definition of a threatened species (i.e., 
likely to become in danger of extinction in the foreseeable future).
    In conclusion, as described above, the lesser prairie-chicken has 
experienced significant reductions in range and population numbers, is 
especially vulnerable to impacts due to its life history and ecology, 
and is subject to significant current and future threats. We conclude 
that there are sufficient populations to allow the species to persist 
into the near future. Therefore, after a review of the best available 
scientific information as it relates to the status of the species and 
the five listing factors, we find the lesser prairie-chicken is likely 
to become in danger of extinction in the foreseeable future throughout 
its range. Therefore, we are listing the lesser prairie-chicken as a 
threatened species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing often results in public 
awareness and facilitates conservation by Federal, State, Tribal, and 
local agencies; private organizations; and individuals. The Act 
encourages cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
by Federal agencies and the prohibitions against certain activities 
involving listed species are discussed, in part, below.

Recovery Planning

    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
soon after a species is listed, preparation of a draft and final 
recovery plan, and periodic revisions to the plan as significant new 
information becomes available. The recovery outline guides the 
immediate implementation of urgently needed recovery actions and 
describes the process to be used to develop a recovery plan. The 
recovery plan identifies site-specific management actions that, when 
implemented, will achieve recovery of the species, measurable criteria 
that determine when a species may be downlisted or delisted, and 
methods for monitoring recovery progress. Recovery plans also establish 
a framework for agencies to coordinate their recovery efforts and 
provide estimates of the cost of implementing recovery tasks. Recovery 
teams (comprised of species experts, Federal and State agencies, 
nongovernment organizations, and stakeholders) are often established to 
develop recovery plans. When completed, the recovery outline, draft 
recovery plan, and the final recovery plan will be available on our Web 
site (http://www.fws.gov/endangered), or from our Oklahoma Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribal and nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research and 
monitoring, captive propagation and

[[Page 20067]]

reintroduction, and outreach and education. Although land acquisition 
is an example of a type of recovery action, the recovery of many listed 
species cannot be accomplished solely on Federal lands because their 
range may occur primarily or solely on non-federal lands. Consequently, 
recovery of these species will require cooperative conservation efforts 
involving private, State, and possibly Tribal lands.
    Once this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
under section 6 of the Act, the States of Colorado, Kansas, New Mexico, 
Oklahoma, and Texas will be eligible for Federal funds to implement 
management actions that promote the protection and recovery of the 
lesser prairie-chicken. Information on our grant programs that are 
available to aid species recovery can be found at: http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for the lesser prairie-chicken. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).

Federal Agency Consultation

    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of the species or 
destroy or adversely modify its critical habitat. If a Federal action 
may adversely affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with the 
Service.
    Some examples of Federal agency actions within the species' habitat 
that may require conference or consultation, or both, as described in 
the preceding paragraph include landscape-altering activities on 
Federal lands; provision of Federal funds to State and private entities 
through Service programs, such as the PFW Program, State Wildlife Grant 
Program, and Federal Aid in Wildlife Restoration program; construction 
and operation of communication, radio, and similar towers by the 
Federal Communications Commission or Federal Aviation Administration; 
issuance of section 404 Clean Water Act permits by the U.S. Army Corps 
of Engineers; construction and management of petroleum pipeline and 
power line rights-of-way by the Federal Energy Regulatory Commission; 
construction and maintenance of roads or highways by the Federal 
Highway Administration; implementation of certain USDA agricultural 
assistance programs; Federal grant, loan, and insurance programs; 
Federal habitat restoration programs such as EQIP; and development of 
Federal minerals, such as oil and gas.

Prohibitions and Exceptions

    The purposes of the Act are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, to provide a program for the conservation of such 
endangered species and threatened species, and to take such steps as 
may be appropriate to achieve the purposes of the treaties and 
conventions set forth in the Act. The Act is implemented through 
regulations found in the Code of Federal Regulations (CFR). When a 
species is listed as endangered, certain actions are prohibited under 
section 9 of the Act, as specified in 50 CFR 17.21. These prohibitions, 
which will be discussed further below, include, among others, take 
within the United States, within the territorial seas of the United 
States, or upon the high seas; import; export; and shipment in 
interstate or foreign commerce in the course of a commercial activity.
    The Act does not specify particular prohibitions, or exceptions to 
those prohibitions, for threatened species. Instead, under section 4(d) 
of the Act, the Secretary of the Interior was given the discretion to 
issue such regulations as he deems necessary and advisable to provide 
for the conservation of such species. The Secretary also has the 
discretion to prohibit by regulation with respect to any threatened 
species, any act prohibited under section 9(a)(1) of the Act. 
Exercising this discretion, the Service has developed general 
prohibitions (50 CFR 17.31) and exceptions to those prohibitions (50 
CFR 17.32) under the Act that apply to most threatened species. Under 
50 CFR 17.32, permits may be issued to allow persons to engage in 
otherwise prohibited acts. Alternately, for threatened species, the 
Service may develop specific prohibitions and exceptions that are 
tailored to the specific conservation needs of the species. In such 
cases, some of the prohibitions and authorizations under 50 CFR 17.31 
and 17.32 may be appropriate for the species and incorporated into a 
special rule under section 4(d) of the Act, but the 4(d) special rule 
will also include provisions that are tailored to the specific 
conservation needs of the threatened species and which may be more or 
less restrictive than the general provisions at 50 CFR 17.31. Elsewhere 
in today's Federal Register, we published a final 4(d) special rule 
that provides measures that are necessary and advisable to provide for 
the conservation of the lesser prairie-chicken.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.32 for threatened species. A permit must be issued for the following 
purposes: For scientific purposes, to enhance the propagation or 
survival of the species, and for incidental take in connection with 
otherwise lawful activities. We anticipate that we would receive 
requests for all three types of permits, particularly as they relate to 
development of wind power facilities or implementation of safe harbor 
agreements. Requests for copies of the regulations regarding listed 
species and inquiries about prohibitions and permits may be addressed 
to the Field Supervisor at the address in the FOR FURTHER INFORMATION 
CONTACT section.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
newly listed species. The following activities could potentially result 
in a violation of section 9 of the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for

[[Page 20068]]

properly documented antique specimens of these taxa at least 100 years 
old, as defined by section 10(h)(1) of the Act.
    (2) Actions that would result in the unauthorized destruction or 
alteration of the species' occupied habitat, as described in this rule. 
Such activities could include, but are not limited to, the removal of 
native shrub or herbaceous vegetation by any means for any 
infrastructure construction project or direct conversion of native 
shrub or herbaceous vegetation to another land use.
    (3) Actions that would result in the long-term (e.g., greater than 
3 years) alteration of preferred vegetative characteristics of lesser 
prairie-chicken habitat, as described in this rule, particularly those 
actions that would cause a reduction or loss in the native invertebrate 
community within those habitats. Such activities could include, but are 
not limited to, inappropriate livestock grazing, the application of 
herbicides or insecticides, and seeding of nonnative plant species that 
would compete with native vegetation for water, nutrients, and space.
    (4) Actions that would result in lesser prairie-chicken avoidance 
of an area during one or more seasonal periods. Such activities could 
include, but are not limited to, the construction of vertical 
structures such as power lines, fences, communication towers, and 
buildings; motorized and nonmotorized recreational use; and activities 
such as well drilling, operation, and maintenance, which would entail 
significant human presence, noise, and infrastructure.
    (5) Actions, intentional or otherwise, that would result in the 
destruction of eggs or active nests or cause mortality or injury to 
chicks, juveniles, or adult lesser prairie-chickens.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Oklahoma 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat Designation for Lesser Prairie-Chicken

Background

    Critical habitat is defined in section 3 of the Act as:
    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (I) Essential to the conservation of the species, and
    (II) Which may require special management considerations or 
protection; and
    (ii) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means using 
all methods and procedures deemed necessary to bring an endangered or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Such methods and procedures 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be relieved 
otherwise, may include regulated taking.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the requirement that Federal agencies insure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not alter land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow the government or public to access private lands. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by non-Federal landowners. Instead, where a 
landowner seeks or requests Federal agency funding or authorization for 
an action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the 
obligation of the Federal action agency and the applicant is not to 
restore or recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are the 
elements of physical or biological features that are the specific 
components that provide for a species' life-history processes, and are 
essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area formerly occupied by the species but that 
was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in a critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its current occupied range would be inadequate to ensure the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas we should designate as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources

[[Page 20069]]

may include articles published in peer-reviewed journals, conservation 
plans developed by States and Counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species, considering additional scientific information 
may become available in the future. For these reasons, a critical 
habitat designation does not signal that habitat outside the designated 
area is unimportant or may not be needed for recovery of the species. 
Areas that are important to the conservation of the species, both 
inside and outside the critical habitat designation, will continue to 
be subject to: (1) Conservation actions implemented under section 
7(a)(1) of the Act; (2) regulatory protections afforded by the 
requirement in section 7(a)(2) of the Act for Federal agencies to 
insure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species; and (3) the 
prohibitions of section 9 of the Act if actions occurring in these 
areas may result in take of the species. Federally funded or permitted 
projects affecting listed species outside their designated critical 
habitat areas may still result in jeopardy findings in some cases. 
These protections and conservation tools will continue to contribute to 
recovery of this species. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, HCPs, or other species conservation planning efforts if 
new information available at the time of these planning efforts calls 
for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time a species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the 
designation of critical habitat is not prudent when one or both of the 
following situations exist: (1) The species is threatened by taking or 
other human activity, and the identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is currently no operative threat to lesser prairie-chickens 
attributed to unauthorized collection or vandalism, and identification 
and mapping of critical habitat is not expected to initiate any such 
threat. Thus, we conclude designating critical habitat for the lesser 
prairie-chicken is not expected to create or increase the degree of 
threat to the species due to taking.
    Conservation of lesser prairie-chickens and their essential 
habitats will focus on, among other things, habitat management, 
protection, and restoration, which will be aided by knowledge of 
habitat locations and the physical or biological features of the 
habitat. In the absence of finding that the designation of critical 
habitat would increase threats to a species, if there are any benefits 
to a critical habitat designation, then a prudent finding is warranted. 
We conclude that the designation of critical habitat for the lesser 
prairie-chicken will benefit the species by serving to focus 
conservation efforts on the restoration and maintenance of ecosystem 
functions within those areas considered essential for achieving its 
recovery and long-term viability. Other potential benefits include: (1) 
Triggering consultation under section 7(a)(2) of the Act in new areas 
for actions in which there may be a Federal nexus where consultation 
would not otherwise occur because, for example, the area is or has 
become unoccupied or the occupancy is in question; (2) focusing 
conservation activities on the most essential features and areas; (3) 
providing educational benefits to State or county governments or 
private entities; and (4) preventing inadvertent harm to the species.
    Therefore, because we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and may provide some benefit, we find that designation of 
critical habitat is prudent for the lesser prairie-chicken.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat. When 
critical habitat is not determinable, the Act allows the Service an 
additional year following publication of a final listing rule to 
publish a final critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
the regulations at 50 CFR 424.12, in determining which areas occupied 
by the species at the time of listing to designate as critical habitat, 
we consider the physical and biological features essential to the 
conservation of the species which may require special management 
considerations or protection. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.
    We are currently unable to identify critical habitat for the lesser 
prairie-chicken because important information on the geographical area 
occupied by the species, the physical and biological habitat features 
that are essential to the conservation of the species, and the 
unoccupied areas that are essential to the conservation of the species 
is not known at this time. A specific shortcoming of the currently 
available information is the lack of data about: (1) The specific 
physical and biological features essential to the conservation of the 
species; (2) how much habitat may ultimately be needed to conserve the 
species; (3) where the habitat patches occur that have the best chance 
of rehabilitation; and (4) where linkages between current and future 
populations may occur. Additionally, while we have reasonable general 
information about habitat features in areas occupied by lesser prairie-
chickens, we do not know what specific features, or combinations of 
features, are needed to ensure persistence of stable, secure 
populations.
    Several conservation actions are currently underway that will help 
inform this process and reduce some of the current uncertainty. 
Incorporation of the information from these conservation actions will 
give us a better

[[Page 20070]]

understanding of the species' biological requirements and what areas 
are needed to support the conservation of the species.
    The five State conservation agencies within the occupied range of 
the lesser prairie-chicken, through coordination with the Western 
Association of Fish and Wildlife Agencies Grassland Initiative, were 
funded to develop a rangewide survey sampling framework and to 
implement aerial surveys in 2012 and 2013. The rangewide plan commits 
to continued rangewide population monitoring of the lesser prairie-
chicken, including annual use of the aerial survey methodology used in 
2012 and 2013 (Van Pelt et al. 2013, p. 122). Ongoing implementation of 
these aerial surveys is important, as they may enable biologists to 
determine location of leks that are too distant from public roads to be 
detected during standard survey efforts. Our critical habitat 
determination will benefit from this additional information and allow 
us to consider the most recent and best science in making our critical 
habitat determination.
    Similarly, all five State conservation agencies within the occupied 
range of the lesser prairie-chicken have partnered with the Service and 
Playa Lakes Joint Venture, using funding from the DOE and the Western 
Governors' Association, to develop a decision support system that 
assists in evaluation of lesser prairie-chicken habitat, assists 
industry with nonregulatory siting decisions, and facilitates targeting 
of conservation activities for the species. The first iteration of that 
product went online in September 2011 (http://kars.ku.edu/geodata/maps/sgpchat/). This decision support system is still being refined, and a 
second iteration of the product, under oversight of the Western 
Association of Fish and Wildlife Agencies, went online during the fall 
of 2013. Further iterations will provide additional information that 
will help improve evaluation of lesser prairie-chicken habitat. The 
Steering Committee of the Great Plains Landscape Conservation 
Cooperative has made completion of Phase II one of their highest 
priorities for the next 18 months. The Lesser Prairie-chicken 
Interstate Working Group will be identifying the research and data 
needs for moving Phase II forward. Outputs derived from this decision 
support tool will help us more precisely identify the location and 
distribution of features essential to the conservation of the lesser 
prairie-chicken.
    Therefore, we have concluded that critical habitat is not 
determinable for the lesser prairie-chicken at this time because we 
lack information on the precise area occupied by the species and on the 
physical and biological habitat features that are essential to the 
conservation of the species. Also, since the unoccupied areas that are 
essential to the conservation of the species are not known at this 
time, we lack information to assess the impacts of the potential 
critical habitat designation.

Required Determinations

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    By letter dated April 19, 2011, we contacted known tribal 
governments throughout the historical range of the lesser prairie-
chicken. We sought their input on our development of a proposed rule to 
list the lesser prairie-chicken and encouraged them to contact the 
Oklahoma Ecological Services Field Office if any portion of our request 
was unclear or to request additional information. We did not receive 
any comments regarding this request. We continued to keep tribal 
governments informed by providing notifications of each new or reopened 
public comment period and specifically requesting their input. We did 
not receive any requests or comments as a result of our request.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov, or upon request from the 
Field Supervisor, Oklahoma Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the 
Oklahoma Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11(h) by adding an entry for ``Prairie-chicken, 
lesser'' in alphabetical order under BIRDS to the List of Endangered 
and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 20071]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                       When       Critical     Special
                                                           Historic  range       endangered or         Status         listed      habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Birds
 
                                                                      * * * * * * *
Prairie-chicken, lesser..........  Tympanuchus           U.S.A. (CO, KS, NM,  Entire.............  T                       831           NA    17.41 (d)
                                    pallidicinctus.       OK, TX).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: March 21, 2014.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-07302 Filed 4-9-14; 8:45 am]
BILLING CODE 4310-55-P