[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Rules and Regulations]
[Pages 72674-72755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25214]



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Vol. 87

Friday,

No. 226

November 25, 2022

Part III





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; Lesser Prairie-Chicken; 
Threatened Status With Section 4(d) Rule for the Northern Distinct 
Population Segment and Endangered Status for the Southern Distinct 
Population Segment; Final Rule

  Federal Register / Vol. 87 , No. 226 / Friday, November 25, 2022 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0015; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BB27


Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status With Section 4(d) Rule for the Northern 
Distinct Population Segment and Endangered Status for the Southern 
Distinct Population Segment

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing 
two Distinct Population Segments (DPSs) under the Endangered Species 
Act of 1973 (Act), as amended, 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. We determine threatened status for the Northern DPS 
and endangered status for the Southern DPS. This rule adds the DPSs to 
the List of Endangered and Threatened Wildlife. We also finalize a rule 
under the authority of section 4(d) of the Act that provides measures 
that are necessary and advisable to provide for the conservation of the 
Northern DPS.

DATES: This rule is effective January 24, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2021-0015.

FOR FURTHER INFORMATION CONTACT: Beth Forbus, Regional ES Program 
Manager, Southwest Regional Office, 500 Gold Ave SW, Albuquerque, NM 
87102; telephone 505-318-8972. Individuals in the United States who are 
deaf, deafblind, hard of hearing, or have a speech disability may dial 
711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range). If we 
determine that a species warrants listing, we must list the species 
promptly and designate the species' critical habitat to the maximum 
extent prudent and determinable. We have determined that the Northern 
DPS of the lesser prairie-chicken meets the definition of a threatened 
species and that the Southern DPS of the lesser prairie-chicken meets 
the definition of an endangered species; therefore, we are listing them 
as such and finalizing a rule under section 4(d) of the Act for the 
Northern DPS. Listing a species as an endangered or threatened species 
can be completed only by issuing a rule through the Administrative 
Procedure Act's rulemaking process.
    What this document does. This rule revises the regulations in title 
50 of the Code of Federal Regulations to list the Northern DPS of the 
lesser prairie-chicken as a threatened species with a rule under 
section 4(d) of the Act and the Southern DPS of the lesser prairie-
chicken as an endangered species under the Act.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of 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. We have determined that both the northern and 
southern parts of the lesser prairie-chicken's range are discrete and 
significant under our DPS Policy and are, therefore, listable entities 
under the Act. The Southern DPS includes the Shinnery Oak Ecoregion in 
New Mexico and Texas, and the Northern DPS includes the Sand Sagebrush 
Ecoregion, the Mixed-Grass Ecoregion, and the Short-Grass/Conservation 
Reserve Program (CRP) Ecoregion in Texas, Oklahoma, Colorado, and 
Kansas. These two DPSs together encompass the entirety of the lesser 
prairie-chicken's range. The primary threat impacting both DPSs is the 
ongoing loss of large, connected blocks of grassland and shrubland 
habitat. The Southern DPS has low resiliency, redundancy, and 
representation and is particularly vulnerable to severe droughts due to 
being located in the dryer and hotter southwestern portion of the 
range. Because the Southern DPS is currently at risk of extinction, we 
are listing it as endangered.
    In the Northern DPS, as a result of habitat loss and fragmentation, 
resiliency has been much reduced across two of the ecoregions in the 
Northern DPS when compared to historical conditions. However, this DPS 
still has redundancy across the three ecoregions and genetic and 
environmental representation. We expect habitat loss and fragmentation 
across the Northern DPS to continue into the foreseeable future, 
resulting in even further reduced resiliency. Because the Northern DPS 
is at risk of extinction in the foreseeable future, we are listing it 
as threatened. The section 4(d) rule for the Northern DPS of the lesser 
prairie-chicken generally prohibits the same activities as prohibited 
for an endangered species. It includes exceptions from take associated 
with continuation of routine agricultural practices on existing 
cultivated lands, implementation of prescribed fire for the purposes of 
grassland management, and implementation of prescribed grazing 
following a grazing management plan developed by a Service-approved 
party.

List of Acronyms

    We use many acronyms in this rule. For the convenience of the 
reader, we define some of them here:
ACEC = Area of Critical Environmental Concern
BLM = Bureau of Land Management
CI = confidence interval
CCAA = candidate conservation agreement with assurances
CCA/CCAA = candidate conservation agreement and candidate 
conservation agreement with assurances
CDL = Cropland Data Layer
CHAT = Crucial Habitat Assessment Tool
CPW = Colorado Parks and Wildlife
CRP = Conservation Reserve Program
DOE = Department of Energy
DPS = Distinct Population Segment
EOR = Estimated occupied range
EOR+10 = Estimated occupied range plus a 10-mile buffer
FSA = U.S. Department of Agriculture's Farm Services Agency
KDWP = Kansas Department of Wildlife and Parks (formerly KDWPT: 
Kansas Department of Wildlife, Parks, and Tourism)
LPCI = Lesser Prairie-Chicken Initiative
NRCS = Natural Resources Conservation Service
ODWC = Oklahoma Department of Wildlife Conservation

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PECE = Policy for the Evaluation of Conservation Efforts when Making 
Listing Decisions
PFW = the Service's Partners for Fish and Wildlife Program
RMPA = Resource Management Plan Amendment
RWP = Lesser Prairie-Chicken Range-wide Conservation Plan
SSA = Species Status Assessment
TPWD = Texas Parks and Wildlife Department
USDA = U.S. Department of Agriculture
USFS = U.S. Forest Service
WAFWA = Western Association of Fish and Wildlife Agencies
LWEG = Land-Based Wind Energy Guidelines

Previous Federal Actions

    Please refer to the proposed listing rule for the Northern DPS and 
the Southern DPS of the lesser prairie-chicken for a detailed 
description of previous Federal actions concerning this species (86 FR 
29432, June 1, 2021).

Summary of Changes From the Proposed Rule

    Based upon our review of the public comments, State agency 
comments, peer review comments, and relevant information that became 
available since the proposed rule published, we updated information in 
our species status assessment report, including:
     adding references on the effects of overhead power lines,
     adding a discussion regarding the effects from competition 
with ring-necked pheasants,
     updating monitoring information related to the 
translocation efforts in the Sand Sagebrush Ecoregion,
     updating information related to conservation banks,
     updating information related to previous conservation 
efforts,
     adding discussion regarding the Southern Plains Grassland 
Program,
     updating information related to the recent purchase by the 
New Mexico Department of Game and Fish of additional lands to be 
managed for the lesser prairie-chicken, and
     updating current population abundance information using 
the 2021 aerial survey results.
    We also made changes as appropriate in this final rule. In addition 
to minor clarifying edits and incorporation of additional information 
on the species' biology, populations, and threats, this determination 
differs from the proposal in the following ways:
    (1) We included updated population trend data, including survey 
data made available since the publication of the proposed rule. Some of 
these population survey results became available after we finalized the 
SSA report. Thus, though the SSA report does not include those results, 
we have added them to this final rule and fully considered them in our 
determinations on the status of the two DPSs.
    (2) We included new and updated conservation actions as submitted 
by commenters during the open comment period.
    (3) Based on public comments, we expanded our Significant Portion 
of the Range analysis to explain why the Sand Sagebrush Ecoregion is 
not significant.
    (4) Based on comments received from State agencies, local 
governments, industry groups, and private citizens, we have updated the 
section 4(d) rule to include one new exception from the section 9 take 
prohibitions:
    The new exception is for take incidental to grazing management when 
land managers are following a site-specific grazing plan developed by a 
party that has been approved by the Service. When livestock grazing is 
managed in ways that are compatible with promoting the maintenance of 
the vegetative characteristics needed by the lesser prairie-chicken, 
this activity can be an invaluable tool necessary for managing healthy 
grasslands benefiting the lesser prairie-chicken. Therefore, we 
consider this new exception from prohibitions to be necessary and 
advisable to the conservation of the species.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the lesser prairie-chicken. The SSA team was composed of Service 
biologists in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species. In accordance with our joint policy on peer 
review published in the Federal Register on July 1, 1994 (59 FR 34270), 
and our August 22, 2016, memorandum updating and clarifying the role of 
peer review of listing actions under the Act, we sought the expert 
opinions of six appropriate specialists regarding the SSA. We received 
four responses. We also sent the SSA report to the five State fish and 
wildlife agencies within the range of the lesser prairie-chicken 
(Colorado, Kansas, New Mexico, Oklahoma, and Texas) and the four 
primary Federal agencies with whom we work to deliver conservation 
actions that could benefit the lesser prairie-chicken: the Bureau of 
Land Management (BLM) the U.S. Department of Agriculture's Natural 
Resources Conservation Service (NRCS), Farm Service Agency (FSA), and 
U.S. Forest Service (USFS). These partners include scientists with 
expertise in management of either the lesser prairie-chicken or the 
habitat upon which the lesser prairie-chicken depends. We received 
responses from USFS, BLM, and all five of the State wildlife agencies. 
Comments and feedback from partners and peer reviewers were 
incorporated into the SSA report as appropriate and have informed this 
final rule.

I. Final Listing Determination

Background

    Below is a summary of the taxonomy, life history, and ecology of 
the lesser prairie-chicken; for a thorough review, please see the SSA 
report (version 2.3; Service 2022, pp. 5-14).
    The lesser prairie-chicken is in the order Galliformes, family 
Phasianidae, subfamily Tetraoninae; it is generally recognized as a 
species separate from the greater prairie-chicken (Tympanuchus cupido 
pinnatus) (Jones 1964, pp. 65-73; American Ornithologist's Union 1998, 
p. 122).
    Most lesser prairie-chicken adults live for 2 to 3 years and 
reproduce in the spring and summer (Service 2022, pp. 10-12). Males 
congregate on leks during the spring to attract and mate with females 
(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). Male prairie-chickens tend to exhibit strong breeding site 
fidelity, often returning to a specific lek many times, even in cases 
of declining female attendance and habitat condition (Copelin 1963, pp. 
29-30; Hoffman 1963, p. 731; Campbell 1972, pp. 698-699, Hagen et al. 
2005, entire, Harju et al. 2010, entire). Females tend to establish 
nests relatively close to the lek, commonly within 0.6 to 2.4 mile (mi) 
(1 to 4 kilometers (km)) (Copelin 1963, p. 44; Giesen 1994, p. 97), 
where they incubate 8 to 14 eggs for 24 to 27 days and then raise 
broods of young throughout the summer (Boal and Haukos 2016, p. 4). 
Some females will attempt a second nesting if the first nest fails 
(Johnsgard 1973, pp. 63-64; Merchant 1982, p. 43; Pitman et al. 2006, 
p. 25). Eggs and young lesser prairie-chickens are susceptible to 
natural mortality from environmental stress and predation. The 
appropriate vegetative community and structure is vital to provide 
cover for nests and young and to provide food resources as broods 
mature into adults (Suminski 1977, p. 32; Riley 1978, p. 36; Riley et

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al. 1992, p. 386; Giesen 1998, p. 9). For more detail on habitat needs 
of the lesser prairie-chicken, please see the SSA report (Service 2022, 
pp. 9-14).
    The lesser prairie-chicken once ranged across the Southern Great 
Plains of Southeastern Colorado, Southwestern Kansas, Western Oklahoma, 
the Panhandle and South Plains of Texas, and Eastern New Mexico; 
currently, it occupies a substantially reduced portion of its presumed 
historical range (Rodgers 2016, p. 15). Estimates of the potential 
maximum historical range of the lesser prairie-chicken (e.g., Taylor 
and Guthery 1980a, p. 1, based on Aldrich 1963, p. 537; Johnsgard 2002, 
p. 32; Playa Lakes Joint Venture 2007, p. 1) range from about 64-115 
million acres (ac) (26-47 million hectares (ha)). The more recent 
estimate of the historical range of the lesser prairie-chicken 
encompasses an area of approximately 115 million ac (47 million ha). 
Presumably, not all of the area within this historical range was evenly 
occupied by lesser prairie-chicken, and some of the area may not have 
been suitable to regularly support lesser prairie-chicken populations 
(Boal and Haukos 2016, p. 6). However, the current range of the lesser 
prairie-chicken has been significantly reduced from the historical 
range at the time of European settlement. Estimates as to the extent of 
the loss vary from greater than 90 percent reduction (Hagen and Giesen 
2005, unpaginated) to approximately 83 percent reduction (Van Pelt et 
al. 2013, p. 3).
    Lesser prairie-chicken monitoring has been occurring for multiple 
decades and has included multiple different methodologies. Estimates of 
population abundance prior to the 1960s are indeterminable and rely 
almost entirely on anecdotal information (Boal and Haukos 2016, p. 6). 
While little is known about precise historical population sizes, the 
lesser prairie-chicken was reported to be quite common throughout its 
range 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). For example, 
prior to 1900, as many as two million birds may have existed in Texas 
alone (Litton 1978, p. 1). Information regarding population size is 
available starting in the 1960s when the State fish and wildlife 
agencies began routine lesser prairie-chicken monitoring efforts. 
However, survey methodology and effort have differed over the decades, 
making it difficult to precisely estimate trends.
    The SSA report and this final rule rely on two main population 
estimates. The two methodologies largely cover different time periods, 
so we report the results of both throughout this final rule in order to 
give the best possible understanding of lesser prairie-chicken trends 
both recently and throughout the past decades.
    The first of the two studies used historical lek surveys and 
population reconstruction methods to calculate historical trends and 
estimate male abundance from 1965 through 2016 (Hagen et al. (2017, pp. 
6-9). We have concerns with some of the methodologies and assumptions 
made in this analysis including survey effort prior to the 1970s, 
variation in survey efforts between States, and completeness and 
accuracy of source data used. Others have also noted the challenges of 
using these data for long-term trends (for example, Zavaleta and Haukos 
2013, p. 545; Cummings et al. 2017, pp. 29-30). While these concerns 
remain, including the very low sample sizes particularly in the 1960s, 
this work represents the only attempt to compile the historical ground 
lek count data collected by State agencies to estimate the number of 
males at both the range-wide and ecoregional scales, and represents the 
best available data for understanding historical population trends.
    Following development of aerial survey methods (McRoberts et al. 
2011, entire), the second summary of lesser prairie-chicken population 
data uses more statistically rigorous estimates of lesser prairie-
chicken abundance (both males and females). This study was designed to 
address the shortcomings and limitations associated with ground-based 
survey efforts as discussed above. This second study uses data from 
aerial line-transect surveys throughout the range of the lesser 
prairie-chicken; these results are then extrapolated from the surveyed 
area to the rest of the range (Nasman et al. 2022, entire). The results 
of these survey efforts should not be taken as precise estimates of the 
annual lesser prairie-chicken abundance, as indicated by the large 
confidence intervals associated with these estimates. The confidence 
intervals are a calculation related to the degree of certainty or 
uncertainty that the sampling method results in estimates that 
represent the true population abundance.
    Due to the lack of confidence in the precision of these population 
estimates as reflected by the large confidence intervals, conclusions 
regarding current population sizes or population changes should not be 
drawn based upon annual fluctuations. In addition to the large 
confidence intervals, the lesser prairie-chicken is considered a 
``boom-bust'' species with a high degree of annual variation in rates 
of successful reproduction and recruitment. These annual and short-term 
patterns are largely driven by the influence of seasonal precipitation 
patterns. Periods of below-average precipitation and higher spring/
summer temperatures cause less suitable grassland vegetation cover and 
less food available, resulting in decreased reproductive output (bust 
periods). Periods with above-normal precipitation and cooler spring/
summer temperatures will support favorable habitat conditions and 
result in higher reproductive success (boom periods). Thus, annual 
population changes are not a measure of population health but instead 
largely represent the influence of short-term precipitation cycles 
whereas long-term population trends are tied to habitat availability. 
Instead of reporting the annual estimates, the best use of this data is 
for long-term trend analysis. Thus, in the SSA report and this final 
rule, we report the population estimate for the current condition as 
the average of the past 5 years of surveys.
    The results of the study using ground-based lek data (abundance of 
males) indicate that lesser prairie-chicken range-wide abundance (based 
on a minimum estimated number of male lesser prairie-chickens at leks) 
peaked during 1965-1970 at a mean estimate of about 175,000 males 
(figure 1). The estimated mean population maintained levels of greater 
than 100,000 males until 1989, after which the population steadily 
declined to a low of 25,000 males in 1997 (Garton et al. 2016, p. 68). 
The mean population estimates following 1997 peaked again at about 
92,000 males in 2006, albeit at a significantly lower value than the 
prior peak of 175,000. The mean population estimate subsequently 
declined to 34,440 males in 2012 (figure 1).
    The aerial survey results from 2012 through 2022 (figure 2) 
estimated the lesser prairie-chicken population abundance, averaged 
over the most recent 5 years of surveys (2017-2022, no surveys in 
2019), at 32,210 (including males and females; 90 percent confidence 
interval: 11,489, 64,303) (Nasman et al. 2022, p. 16; table 10).

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[GRAPHIC] [TIFF OMITTED] TR25NO22.029

    The preferred habitat of the lesser prairie-chicken is mixed-grass 
prairies and shrublands, with the exception of some areas in the 
northern extent of the range where shrubs play a lesser role. Lesser 
prairie-chickens appear to select areas having a shrub component 
dominated by sand sagebrush or sand shinnery oak when those areas are 
available (Donaldson 1969, pp. 56, 62; Taylor and Guthery 1980a, p. 6; 
Giesen 1998, pp. 3-4). In the southern and central portions of the 
lesser prairie-chicken range, small shrubs, such as sand shinnery oak, 
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). In some areas in the northern extent of the species' 
range, stands of grass that provide adequate vegetative structure 
likely serve the same roles. The absence of anthropogenic features as 
well as other vertical structures is important, as lesser prairie-
chickens tend to avoid using areas with trees, vertical structures, and 
other disturbances in areas with otherwise adequate habitat conditions 
(Braun et al. 2002, pp. 11-13; Pruett et al. 2009, pp. 1256, 1258; 
Hovick et al. 2014a, p. 1685; Boggie et al. 2017, entire; Lautenbach 
2017, pp. 104-142; Plumb et al. 2019, entire).
    At the population scale, the most important requirement for the 
lesser prairie-chicken is having large, intact, ecologically diverse 
grasslands to complete their life history and maintain healthy 
populations (Fuhlendorf et al. 2017b, entire). As detailed in chapter 2 
of the SSA report, the lesser prairie-chicken requires large 
ecologically diverse grasslands to meet specific resource needs, in 
terms of microhabitat conditions, which vary to some degree by life 
stage and activity (Service 2022, pp. 10-11). Historically, these 
ecologically diverse grasslands and shrublands were maintained by the 
occurrence of wildfires (keeping woody vegetation restricted to 
drainages and rocky outcroppings) and by grazing by bison and other 
large ungulates. The lesser prairie-chicken is a species that requires 
large, intact grasslands for functional self-sustaining populations 
(Giesen 1998, pp. 3-4; Bidwell et al. 2002, pp. 1-3; Hagen et al. 2004, 
pp. 71, 76-77; Haukos and Zavaleta 2016, p. 107).
    The lesser prairie-chicken now occurs within four ecoregions 
(figure 3); these ecoregions were originally delineated in 2012 as part 
of the aerial survey designed to monitor long-term trends in lesser 
prairie-chicken populations. Each ecoregion is associated with unique 
environmental conditions based on habitat and climatic variables and 
some genetic differentiation (Boal and Haukos 2016, p. 5; Oyler-McCance 
et al. 2016, p. 653). These four ecoregions are the Short-Grass 
Prairie/CRP Ecoregion in Kansas; the Sand Sagebrush Prairie Ecoregion 
in Colorado, Kansas, and Oklahoma; the Mixed-Grass Prairie Ecoregion in 
Kansas, Texas, and Oklahoma; and the Shinnery Oak Prairie Ecoregion of 
New Mexico and Texas.

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[GRAPHIC] [TIFF OMITTED] TR25NO22.030

    The Shinnery Oak Ecoregion occupies portions of eastern New Mexico 
and the South Plains of Texas (McDonald et al. 2012, p. 2). It has a 
variable vegetation community that contains a mix of shrubs such as 
sand shinnery oak (Quercus havardii) and sand sagebrush (Artemisia 
filifolia) as well as mixed and tall grasses and forbs (Grisham et al. 
2016a, p. 317). The mean population estimate ranged between about 5,000 
to 12,000 males through 1980, increased to 20,000 males in the mid-
1980s and declined to ~1,000 males in 1997 (Hagen et al. 2017, pp. 6-
9). The mean population estimate peaked again to ~15,000 males in 2006 
and then declined again to fewer than 3,000 males in the mid-2010s. 
While population estimates for the Shinnery Oak Ecoregion have varied 
over recent years, the most recent surveys estimate a 5-year average 
population size of 2,806 birds (including males and females; 90 percent 
confidence intervals (CI): 179, 9,007). Approximately 9 percent of all 
lesser prairie-chicken occur in this ecoregion. Lesser prairie-chickens 
from the Shinnery Oak Ecoregion are genetically distinct and 
geographically isolated from the other three ecoregions by 95 mi (153 
km) (figure 3; Oyler-McCance et al. 2016, p. 653). Historically, the 
Shinnery Oak Ecoregion was likely connected to the rest of the lesser 
prairie-chicken range but as a result of habitat loss and fragmentation 
from European settlement the lesser prairie-chicken in the Shinnery Oak 
Ecoregion have likely been isolated for over a century (Oyler-McCance 
et al. 2016, p. 655).
    In New Mexico, the majority of the Shinnery Oak Ecoregion is 
privately owned (Grisham et al. 2016a, p. 315), with some portions 
owned by the State Game Commission and federally owned BLM lands. 
Nearly all of the area in the Texas portion of the ecoregion is 
privately owned and managed for agricultural use and petroleum 
production (Haukos 2011, p. 110). The remaining patches of shinnery oak 
prairie have become isolated, relict communities because the 
surrounding grasslands have been converted to row crop agriculture or 
fragmented by oil and gas exploration and urban development (Peterson 
and Boyd 1998, p. 22). Additionally, honey mesquite (Prosopis 
glandulosa) encroachment within this ecoregion has played a significant 
role in decreasing available space for the lesser prairie-chicken. 
Technological advances in irrigated row crop agriculture have led to 
more recent conversion of shinnery oak prairie habitat to row crops in 
Eastern New Mexico and West Texas (Grisham et al. 2016a, p. 316).

[[Page 72679]]

    The Sand Sagebrush Ecoregion occurs in Southeast Colorado, 
Southwest Kansas, and a small portion of Western Oklahoma (McDonald et 
al. 2012, p. 2). The vegetation community in this area primarily 
consists of sand sagebrush and the associated mixed and tall grass 
species that are usually found in the sandier soils adjacent to rivers, 
streams, and other drainages in the area. Lesser prairie-chicken from 
the Sand Sagebrush Ecoregion show some genetic differentiation from 
other ecoregions but have likely contributed some individuals to the 
Short-Grass/CRP Ecoregion through dispersal (Oyler-McCance et al. 2016, 
p. 653).
    Historically, the Sand Sagebrush Ecoregion supported the highest 
density of lesser prairie-chicken and was considered the core of the 
lesser prairie-chicken range (Haukos et al. 2016, p. 282). A single 
flock detected in Seward County, Kansas, was estimated to contain more 
than 15,000 birds (Bent 1932, p. 281). The population size is estimated 
to have peaked at more than 85,000 males in the 1970s (Garton et al. 
2016, p. 62). More recent survey efforts estimate a 5-year average 
population size of 1,297 birds (including males and females; 90 percent 
CI: 56, 4,881; Nasman et al. 2022, p. 16). Less than 5 percent of all 
lesser prairie-chicken occur in this ecoregion (Service 2022, pp. 64-
78). Most of the decline has been attributed to habitat deterioration 
and conversion of sand sagebrush to intensive row crop agriculture due 
to an increase in center pivot irrigation (Jensen et al. 2000, p. 172). 
Environmental conditions in this ecoregion can be extreme, with 
stochastic events such as blizzards negatively impacting lesser 
prairie-chicken populations.
    The Short-Grass/CRP Ecoregion falls within the mixed- and short-
grass prairies of Central and Western Kansas (McDonald et al. 2012, p. 
2). As the name implies, much of this ecoregion historically consisted 
of short-grass prairie interspersed with mixed-grass prairie as well as 
sand sagebrush prairie along some drainages (Dahlgren et al. 2016, p. 
260). By the 1980s, large expanses of prairies had been converted from 
native grass for crop production in this ecoregion. After the 
introduction of the CRP in 1985, landowners began to have enhanced 
incentives to convert croplands to perennial grasslands to provide 
cover for the prevention of soil erosion. The State of Kansas required 
those enrolling in the CRP to plant native mixed- and tall-grass 
species, which is notable because the grasses in this area historically 
consisted largely of short-grass species, which generally do not 
provide adequate habitat for the lesser prairie-chicken. For more 
information on the CRP, see the SSA report (Service 2022, pp. 52-54).
    Prior to the late 1990s, lesser prairie-chickens in this ecoregion 
were thought to be largely absent (or occurred sporadically in low 
densities) (Hagen and Giesen 2005, unpaginated; Rodgers 1999, p. 19). 
We do not know what proportion of the eastern Short-Grass/CRP Ecoregion 
in Kansas was historically occupied by lesser prairie-chicken (Hagen 
2003, pp. 3-4), and surveys in this ecoregion only began in earnest in 
1999 (Dahlgren et al. 2016, p. 262). The CRP is an idle lands program, 
which requires establishment of grass cover and precludes tillage or 
agricultural commodity production for the duration of the contract, and 
has contractual limits to the type, frequency, and timing of management 
activities, such as burning, haying, or grazing of the established 
grasses. As a result of these factors, CRP often provides the 
vegetative structure preferentially used by lesser prairie-chickens for 
nesting. In the State of Kansas, the availability of CRP lands, 
especially CRP lands with interseeded or original seed mixture of 
forbs, resulted in increased habitat availability for the lesser 
prairie-chicken and, thus, an expansion of the known lesser prairie-
chicken range and an increase in the abundance of the lesser prairie-
chicken (Rodgers 1999, pp. 18-19; Fields 2004, pp. 11, 105; Fields et 
al. 2006, pp. 931, 937; Sullins et al. 2018, p. 1617).
    The Short-Grass/CRP Ecoregion is now estimated to contain the 
majority of lesser prairie-chickens compared to the other ecoregions, 
with recent survey efforts estimating a 5-year average population size 
of 23,083 birds (including males and females; 90 percent CI: 9,653, 
39,934), representing approximately 72 percent of the rangewide 
population. Recent genetic studies indicate that lesser prairie-
chickens have moved northward largely from the Mixed-Grass Ecoregion 
and, to a lesser extent, the Sand Sagebrush Ecoregion into the Short-
Grass/CRP Ecoregion (Oyler-McCance et al. 2016, p. 653).
    The northern section of this ecoregion is the only portion of the 
lesser prairie-chicken's range where co-occurrence with greater 
prairie-chicken occurs. Hybridization rates of up to 5 percent have 
been reported (Pitman 2013, p. 5), and that rate seemed to be stable 
across multiple years, though sampling is limited where the species co-
occur (Pitman 2013, p. 12). Limited additional work has been completed 
to further assess the rate of hybridization. There are concerns about 
the implications of genetic introgression (dilution) of lesser prairie-
chicken genes, particularly given that potential effects are poorly 
understood (Dahlgren et al. 2016, p. 276). Unresolved issues include 
whether hybridization reduces fitness and alters behavior or 
morphological traits in either a positive or negative way and the 
historical occurrence and rate of hybridization.
    The Mixed-Grass Ecoregion for the lesser prairie-chicken lies in 
the northeastern panhandle of Texas, the panhandle of northwestern 
Oklahoma, and south-central Kansas (McDonald et al. 2012, p. 2). The 
Mixed-Grass Ecoregion is separated from the Short-Grass/CRP Ecoregion 
in Kansas by the Arkansas River. The vegetation community in this 
ecoregion consists largely of a mix of perennial grasses and shrubs 
such as sand sagebrush, sand plum (Prunus angustifolia), yucca (Yucca 
spp.), and sand shinnery oak (Wolfe et al. 2016, p. 300). Based upon 
population reconstruction data, the mean population estimate was around 
30,000 males in the 1970s and 1980s followed by a decline in the 1990s 
(Hagen et al. 2016, pp. 6-7). The mean population estimate peaked again 
in the early 2000s at around 25,000 males, before declining to and 
remaining at its lowest levels, less than 10,000 males since 2012 
(Hagen et al. 2016, pp. 6-7). Although historical population estimates 
in the ecoregion reported some of the highest densities of lesser 
prairie-chicken in the range (Wolfe et al. 2016, p. 299), recent aerial 
survey efforts estimate a 5-year average population size of 5,024 birds 
(including males and females; 90 percent CI: 1,601, 10,481). The recent 
survey work indicates that about 15 percent of lesser prairie-chicken 
occur in this ecoregion. Lesser prairie-chicken from the Mixed-Grass 
Ecoregion are similar in genetic variation with the Short-Grass/CRP 
Ecoregion, with individuals likely dispersing from the Mixed-Grass 
Ecoregion to the Short-Grass/CRP Ecoregion (Oyler-McCance et al. 2016, 
p. 653).

Distinct Population Segment Evaluation

    Under the Act, the term ``species'' includes ``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.'' 
16 U.S.C. 1532(16). To guide the implementation of the distinct 
population segment (DPS) provisions of the Act, we and the National 
Marine Fisheries Service (National Oceanic and Atmospheric 
Administration--Fisheries), published

[[Page 72680]]

the 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 our DPS Policy, we use 
two elements to assess whether a population segment under consideration 
for listing may be recognized as a DPS: (1) The population segment's 
discreteness from the remainder of the species to which it belongs, and 
(2) the significance of the population segment to the species to which 
it belongs. If we determine that a population segment being considered 
for listing is a DPS, then the population segment's conservation status 
is evaluated based on the five listing factors established by the Act 
to determine if listing it as either endangered or threatened is 
warranted.
    As described in Previous Federal Actions, we were petitioned to 
list the lesser prairie-chicken either rangewide or in three distinct 
population segments. The petition suggested three DPS configurations: 
(1) Shinnery Oak Ecoregion, (2) the Sand Sagebrush Ecoregion, and (3) a 
segment including the Mixed-Grass Ecoregion and the Short-Grass/CRP 
Ecoregion. The petition combined the Mixed-Grass Ecoregion and the 
Short-Grass/CRP Ecoregion due to evidence they are linked genetically 
and geographically (Molver 2016, p. 18). Genetic studies indicate that 
lesser prairie-chicken from the Mixed-Grass Ecoregion are similar in 
genetic variation with the Short-Grass/CRP Ecoregion, with individuals 
likely dispersing from the Mixed-Grass Ecoregion to the Short-Grass/CRP 
Ecoregion (Oyler-McCance et al. 2016, p. 653). Other genetic data 
indicate that lesser prairie-chicken from the Sand Sagebrush Ecoregion 
and lesser prairie-chicken from the Mixed-Grass and Short-Grass/CRP 
Ecoregion also share genetic traits. Genetic studies of neutral markers 
indicate that, although lesser prairie-chicken from the Sand Sagebrush 
Ecoregion form a distinct genetic cluster from other ecoregions, they 
have also likely contributed some individuals to the Short-Grass/CRP 
Ecoregion through dispersal (Oyler-McCance et al. 2016, p. 653). 
Additionally, these three ecoregions are not geographically isolated 
from one another (figure 3). As a result of the shared genetic 
characteristics and the geographic connections, we have concluded a 
``Northern'' population segment of the species that includes the Sand 
Sagebrush Ecoregion, the Mixed-Grass Ecoregion, and the Short-Grass/CRP 
Ecoregion is appropriately considered a potential DPS configuration.
    Under the Act, we have the authority to consider for listing any 
species, subspecies, or, for vertebrates, any distinct population 
segment (DPS) of these taxa if there is sufficient information to 
indicate that such action may be warranted. We considered whether two 
segments meet the DPS criteria under the Act: a ``Southern'' population 
segment, including the southernmost ecoregion (Shinnery Oak), and a 
``Northern'' population segment, including the three northernmost 
ecoregions (Mixed-Grass, Short-Grass/CRP, and Sand Sagebrush).

Discreteness

    Under our DPS Policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either of the following 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors (Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.); or (2) it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    We conclude the two segments satisfy the ``markedly separate'' 
condition. The two segments are not separated from each other by 
international governmental boundaries. The southern population segment 
(which includes the Shinnery Oak ecoregion) is separated from the 
northern population segment (which includes the three northern 
ecoregions) by approximately 95 mi (153 km). Most of this separation 
between the two segments is developed or otherwise unsuitable habitat. 
There has been no recorded movement of lesser prairie-chickens between 
the Shinnery Oak Ecoregion and the three northern ecoregions over the 
past several decades. Because there is no connection between the two 
population segments, there is subsequently no gene flow between them 
(Oyler-McCance et al. 2016, entire).
    Therefore, we have determined that both a southern segment and a 
northern segment of the lesser prairie-chicken range both individually 
meet the condition for discreteness under our DPS Policy.

Significance

    Under our DPS Policy, once we have determined that a population 
segment is discrete, we consider its biological and ecological 
significance to the larger taxon to which it belongs. This 
consideration may include, but is not limited to: (1) Evidence of the 
persistence of the discrete population segment in an ecological setting 
that is unusual or unique for the taxon, (2) evidence that loss of the 
population segment would result in a significant gap in the range of 
the taxon, (3) evidence that the population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historical range, or 
(4) evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics.
    For the lesser prairie-chicken, we first considered evidence that 
the Shinnery Oak Ecoregion population segment differs markedly from the 
other populations of the species, i.e., the ecoregions that constitute 
the Northern population segment (Mixed-Grass Ecoregion, Short-Grass/CRP 
Ecoregion, and Sand Sagebrush Ecoregion) in its genetic 
characteristics. The most recent rangewide genetic study examined 
neutral markers in the four ecoregions where the lesser prairie-chicken 
occurs. It concluded that there is significant genetic variation across 
the lesser prairie-chicken range. The study also concluded that 
although there is genetic exchange between the three northern 
ecoregions (particularly movement of birds northward from the Mixed-
Grass Ecoregion to the Short-Grass/CRP Ecoregion, and, to a lesser 
extent, from the Sand Sagebrush Ecoregion into the Short-Grass/CRP 
Ecoregion), lesser prairie-chicken from the Shinnery Oak Ecoregion that 
make up the southern population segment) are a group that is 
genetically distinct from the remainder of the range, i.e., the 
northern population segment (Oyler-McCance et al. 2016, p. 653). The 
Shinnery Oak Ecoregion is more distinct from all three ecoregions in 
the Northern population segment than those ecoregions are from each 
other (Oyler-McCance et al. 2016, table 4). The Shinnery Oak Ecoregion 
was likely historically connected to the remainder of the range, but 
the two parts have been separated since approximately the time of 
European settlement. Therefore, the two segments of the range are 
genetically distinct from each other and therefore significant to the 
taxon as a whole.
    We next considered evidence that loss of the population segment 
would result in a significant gap in the range of the taxon. As 
discussed above, the southern population segment and the northern

[[Page 72681]]

population segment are separated by approximately 95 mi (153 km). The 
loss of the Shinnery Oak Ecoregion would result in the loss of the 
entire southern part of the species' range and decrease species 
redundancy and ecological and genetic representation, thus decreasing 
its ability to withstand demographic and environmental stochasticity. 
The loss of the other three ecoregions would result in the loss of 75 
percent of the species' range, as well as loss of the part of the range 
(the Short-Grass/CRP Ecoregion) that has recently experienced an 
expansion of occupied habitat. This would create a large gap in the 
northern portion of the species' range, also reducing the species' 
ability to withstand demographic and environmental stochasticity. 
Therefore, the loss of either part of the range would result in a 
significant gap in the range of the lesser prairie-chicken. These 
genetic differences and the evidence that a significant gap in the 
range of the taxon would result from the loss of either discrete 
population segment both individually satisfy the significance criterion 
of the DPS Policy. Therefore, under the Service's DPS Policy, we find 
that both the southern and northern segments of the lesser prairie-
chicken are significant to the taxon as a whole.

Distinct Population Segment Conclusion

    Our DPS Policy directs us to evaluate the significance of a 
discrete population in the context of its biological and ecological 
significance to the remainder of the species to which it belongs. Based 
on an analysis of the best available scientific and commercial data, we 
conclude that the northern and southern parts of the lesser prairie-
chicken range are discrete due to geographic (physical) isolation from 
the remainder of the taxon. Furthermore, we conclude that both parts of 
the lesser prairie-chicken range are significant, because loss of 
either part would result in a significant gap in the range of the 
taxon, and because the two parts of the range differ markedly from each 
other based on neutral genetic markers. Therefore, we conclude that 
both the northern and southern parts of the lesser prairie-chicken 
range are both discrete and significant under our DPS Policy and are, 
therefore, uniquely listable entities under the Act.
    Based on our DPS Policy (61 FR 4722; February 7, 1996), if a 
population segment of a vertebrate species is both discrete and 
significant relative to the taxon as a whole (i.e., it is a distinct 
population segment), its evaluation for endangered or threatened status 
will be based on the Act's definition of those terms and a review of 
the factors enumerated in section 4(a) of the Act. Having found that 
both parts of the lesser prairie-chicken range meet the definition of a 
distinct population segment, we evaluate the status of both the 
Southern DPS and the Northern DPS of the lesser prairie-chicken to 
determine whether either meets the definition of an endangered or 
threatened species under the Act. The line demarcating the break 
between the Northern and Southern DPS lies approximately halfway 
between the two DPSs in the unoccupied area between them (figure 4).

[[Page 72682]]

[GRAPHIC] [TIFF OMITTED] TR25NO22.031

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species, 
issuing protective regulations for threatened species, and designating 
critical habitat for threatened and endangered species. In 2019, 
jointly with the National Marine Fisheries Service, the Service issued 
final rules that revised the regulations in 50 CFR parts 17 and 424 
regarding how we add, remove, and reclassify threatened and endangered 
species and the criteria for designating listed species' critical 
habitat (84 FR 45020 and 84 FR 44752; August 27, 2019). At the same 
time the Service also issued final regulations that, for species listed 
as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (collectively, the 2019 regulations).
    As with the proposed rule, we are applying the 2019 regulations for 
this final rule because the 2019 regulations are currently in effect, 
just as they were when we completed the proposed rule. Although there 
was a period in the

[[Page 72683]]

interim--between July 5, 2022, and September 21, 2022--when the 2019 
regulations became vacated and the pre-2019 regulations therefore 
governed, the 2019 regulations are now in effect and govern listing and 
critical habitat decisions (see Center for Biological Diversity v. 
Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 5, 2022) (CBD 
v. Haaland) (vacating the 2019 regulations and thereby reinstating the 
pre-2019 regulations)) and In re: Cattlemen's Ass'n, No. 22-70194 (9th 
Cir. Sept. 21, 2022) (staying the vacatur of the 2019 regulations and 
thereby reinstating the 2019 regulations until a pending motion for 
reconsideration before the district court is resolved)).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following 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.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be listed as an endangered or threatened 
species under the Act. However, it does provide the scientific basis 
that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies. The following is a summary of the key results 
and conclusions from the SSA report; the full SSA report can be found 
at Docket FWS-R2-ES-2021-0015 on https://www.regulations.gov.
    To assess lesser prairie-chicken viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and

[[Page 72684]]

its resources, and the threats that influence the species' current and 
future condition, in order to assess the species' overall viability and 
the risks to that viability.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Representation

    To evaluate representation as a component of lesser prairie-chicken 
viability, we considered the need for multiple healthy lesser prairie-
chicken populations within each of the four ecoregions to conserve the 
genetic and ecological diversity of the lesser prairie-chicken. Each of 
the four ecoregions varies in terms of vegetative communities and 
environmental conditions, resulting in differences in abundance and 
distribution and management strategies (Boal and Haukos 2016, p. 5). 
Despite reduced range and population size, most lesser prairie-chicken 
populations appear to have maintained comparatively high levels of 
neutral genetic variation (DeYoung and Williford 2016, p. 86). As 
discussed in Significance above, recent genetic studies also show 
significant genetic variation across the lesser prairie-chicken range 
based on neutral markers (Service 2022, figure 2.4), which supports 
management separation of these four ecoregions and highlights important 
genetic differences between them (Oyler-McCance et al. 2016, p. 653). 
While it is unknown how this genetic variation relates to differences 
in adaptive capacity between the ecoregions, maintaining healthy lesser 
prairie-chicken populations across this range of diversity increases 
the likelihood of conserving inherent ecological and genetic variation 
within the species to enhance its ability for adaptation to future 
changes in environmental conditions.

Resiliency

    In the case of the lesser prairie-chicken, we considered the 
primary indicators of resiliency to be habitat availability, population 
abundance, growth rates, and quasi-extinction risk. Lesser prairie-
chicken populations within ecoregions must have sufficient habitat and 
population growth potential to recover from natural disturbance events 
such as extensive wildfires, extreme hot or cold events, extreme 
precipitation events, or extended local periods of below-average 
rainfall. These events can be particularly devastating to populations 
when they occur during the late spring or summer when nesting and 
brood-rearing are occurring and individuals are more susceptible to 
mortality.
    The lesser prairie-chicken is considered a ``boom-bust'' species 
based on its high reproductive potential with a high degree of annual 
variation in rates of successful reproduction and recruitment. These 
variations are largely driven by the influence of seasonal 
precipitation patterns (Grisham et al. 2013, pp. 6-7), which impact the 
population through effects on the quality of habitat. Periods of below-
average precipitation and higher spring/summer temperatures result in 
less appropriate grassland vegetation cover and less food available, 
resulting in decreased reproductive output (bust periods). Periods with 
above-normal precipitation and cooler spring/summer temperatures will 
support favorable lesser prairie-chicken habitat conditions and result 
in high reproductive success (boom periods). In years with particularly 
poor weather conditions, individual female lesser prairie-chicken may 
forgo nesting for the year. This population characteristic highlights 
the need for habitat conditions to support large population growth 
events during favorable climatic conditions so they can withstand the 
declines during poor climatic conditions without a high risk of 
extirpation.
    Historically, the lesser prairie-chicken had large expanses of 
grassland habitat to maintain populations. Early European settlement 
and development of the Southern Great Plains for agriculture initially, 
and for energy extraction later, substantially reduced the amount and 
connectivity of the grasslands of this region. Additionally, if 
historically some parts of the range were drastically impacted or 
eliminated due to a stochastic event, that area could be reestablished 
from other populations. Today, those characteristics of the grasslands 
have been degraded, resulting in the loss and fragmentation of 
grasslands in the Southern Great Plains. Under present conditions, the 
potential lesser prairie-chicken habitat is limited to small, 
fragmented grassland patches (relative to historical conditions) 
(Service 2022, pp. 64-78). The larger and more intact the remaining 
grassland patches are, with appropriate vegetation structure, the 
larger, healthier, and more resilient the lesser prairie-chicken 
populations will be. Exactly how large habitat patches should be to 
support healthy populations depends on the quality and intactness of 
the patches. Recommended total space needed for a single lesser 
prairie-chicken lek ranges from a minimum of about 12,000 ac (4,900 ha) 
(Davis 2005, p. 3) up to more than 50,000 ac (20,000 ha), depending on 
the quality and intactness of the area (Applegate and Riley 1998, p. 
14; Haufler et al. 2012, pp. 7-8; Haukos and Zavaleta 2016, p. 107).
    A single lesser prairie-chicken lek is not considered a population 
that can persist on its own. Instead, complexes of multiple leks that 
interact with each other are required for a lesser prairie-chicken 
population to persist over time. These metapopulation dynamics, in 
which individuals interact on the landscape to form larger populations, 
are dependent upon the specific biotic and abiotic landscape 
characteristics of the site and how those characteristics influence 
space use, movement, patch size, and fragmentation (DeYoung and 
Williford 2016, pp. 89-91). Maintaining multiple, highly resilient 
populations (complexes of leks) within the four ecoregions that have 
the ability to interact with each other will increase the probability 
of persistence in the face of environmental fluctuations and stochastic 
events. Because of this concept of metapopulations and their influence 
on long-term persistence, when evaluating lesser prairie-chicken 
populations, site-specific information can be informative. However, 
many of the factors affecting lesser prairie-chicken populations should 
be analyzed at larger spatial scales (Fuhlendorf et al. 2002, entire).

Redundancy

    Redundancy describes the ability of a species to withstand 
catastrophic events. Catastrophes are stochastic events that are 
expected to lead to population collapse regardless of population health 
and for which adaptation is unlikely. Redundancy spreads the risk and 
can be measured through the duplication and distribution

[[Page 72685]]

of resilient populations that are connected across the range of the 
species. The larger the number of highly resilient populations the 
lesser prairie-chicken has, distributed over a large area within each 
ecoregion, the better the species can withstand catastrophic events. 
Catastrophic events for lesser prairie-chicken might include extreme 
drought; widespread, extended droughts; or a disease outbreak.
    Measuring redundancy for lesser prairie-chicken is a difficult task 
due to the physiological and biological characteristics of the species, 
which make it difficult to survey and limit the usefulness of survey 
results. To estimate redundancy for the lesser prairie-chicken, we 
estimated the geographic distribution of predicted available habitat 
within each of the four ecoregions and the juxtaposition of that 
habitat to other habitat and non-habitat. As the amount of large 
grassland patches decreases and grassland patches become more isolated 
to reduce or preclude lesser prairie-chicken movement between them, the 
overall redundancy of the species is reduced. As redundancy decreases 
within any representative ecoregion or DPS, the likelihood of 
extirpation within that ecoregion or DPS increases. As large grassland 
patches, the connectivity of those patches, and the number of lesser 
prairie-chicken increase, so does the redundancy within an ecoregion or 
a DPS.

Current Condition

    In the SSA report, we assessed the current condition of the lesser 
prairie-chicken through an analysis of existing habitat; a review of 
factors that have impacted the species in the past, including a 
geospatial analysis to estimate areas of land cover impacts on the 
current landscape condition; a summary of the current potential usable 
area based upon our geospatial analysis; and a summary of past and 
current population estimates. We also evaluated and summarized the 
benefits of the extensive conservation efforts that are ongoing 
throughout the lesser prairie-chicken range to conserve the species and 
its habitat.
Geospatial Analysis Summary
    The primary concern for the lesser prairie-chicken is habitat loss 
and fragmentation. We conducted a geographic information system (GIS) 
analysis to analyze the extent of usable land cover changes and 
fragmentation within the range of the lesser prairie-chicken, 
characterizing landscape conditions spatially to analyze the ability of 
those landscapes to support the biological needs of the lesser prairie-
chicken. Impacts included in this analysis were the direct and indirect 
effects of areas that were converted to cropland; encroached by woody 
vegetation such as mesquite and eastern red cedar (Juniperus 
virginiana); and developed for roads, petroleum production, wind 
energy, and transmission lines. We acknowledge that there are other 
impacts, such as power lines or incompatible grazing on the landscape 
that can affect lesser prairie-chicken habitat. For those impacts, 
either no geospatial data were available, or the available data would 
have added so much complexity to our geospatial model that the results 
would have been uninterpretable or not explanatory for our purpose.
    There are several important limitations to our geospatial analysis. 
First, it is a landscape-level analysis, so the results only represent 
broad trends at the ecoregional and rangewide scales. Secondly, this 
analysis does not incorporate different levels of habitat quality, as 
the data do not exist at the spatial scale or resolution needed. Our 
analysis considers areas only as either potentially usable or not 
usable by lesser prairie-chicken based upon land cover classifications. 
We recognize that some habitat, if managed as high-quality grassland, 
may have the ability to support higher densities of lesser prairie-
chicken than other habitat that exists at lower qualities. 
Additionally, we also recognize that some areas of land cover that we 
identified as suitable could be of such poor quality that it is of 
limited value to the lesser prairie-chicken. We recognize there are 
many important limitations to this landscape analysis, including 
variation and inherent error in the underlying data and unavailable 
data. We interpreted the results of this analysis with those 
limitations in mind.
    In this final rule, we discuss effects that relate to the total 
potential usable unimpacted acreage for lesser prairie-chicken, as 
defined by our geospatial analysis (hereafter, analysis area). A 
complete description of the purpose, methodology, constraints, and 
additional details for this analysis is provided in the SSA report for 
the lesser prairie-chicken (Service 2022, appendix B, parts 1, 2, and 
3).
Threats Influencing Current Condition
    Following are summary evaluations of the threats analyzed in the 
SSA report for the lesser prairie-chicken: effects associated with 
habitat degradation, loss, and fragmentation, including conversion of 
grassland to cropland (Factor A), petroleum production (Factor A), wind 
energy development and transmission (Factor A), woody vegetation 
encroachment (Factor A), and roads and electrical distribution lines 
(Factor A); other factors, such as livestock grazing (Factor A), shrub 
control and eradication (Factor A), collision mortality from fences 
(Factor E), predation (Factor C), influence of anthropogenic noise 
(Factor E), fire (Factor A); and extreme weather events (Factor E). We 
also evaluate existing regulatory mechanisms (Factor D) and ongoing 
conservation measures.
    In the SSA report, we also considered three additional threats: 
hunting and other recreational, educational, and scientific use (Factor 
B); parasites and diseases (Factor C); and insecticides (Factor E). We 
concluded that, as indicated by the best available scientific and 
commercial information, these threats are currently having little to no 
impact on lesser prairie-chickens and their habitat, and thus their 
overall effect now and into the future is expected to be minimal. 
Therefore, we will not present summary analyses of those threats in 
this document but will consider them in our overall conclusions of 
impacts to the species. For full descriptions of all threats and how 
they impact the species, please see the SSA report (Service 2022, pp. 
24-49).
Habitat Degradation, Loss, and Fragmentation
    The grasslands of the Great Plains are among the most threatened 
ecosystems in North America (Samson et al. 2004, p. 6) and have been 
impacted more than any other major ecosystem on the continent (Samson 
and Knopf 1994, p. 418). Temperate grasslands are also one of the least 
conserved ecosystems (Hoekstra et al. 2005, p. 25). Grassland loss in 
the Great Plains is estimated at approximately 70 percent (Samson et 
al. 2004, p. 7), with nearly 23 million ac (93,000 km\2\; 9.3 million 
ha) of grasslands in the United States lost between 1982 and 1997 alone 
(Samson et al. 2004, p. 9). The vast majority of the lesser prairie-
chicken range (more than 95 percent) occurs on private lands that have 
been in some form of agricultural production since at least the early 
1900s. As a result, available habitat for grassland species, such as 
the lesser prairie-chicken, has been much reduced and fragmented 
compared to historical conditions across its range.
    Habitat impacts occur in three general categories that often work 
synergistically at the landscape scale: degradation, loss, and 
fragmentation. Habitat degradation results in changes to a species' 
habitat that reduces its

[[Page 72686]]

suitability to the species, but without making the habitat entirely 
unsuitable. Degradation may result in lower carrying capacity, lower 
reproductive potential, higher predation rates, or other effects. 
Habitat loss may result from the same anthropogenic sources that cause 
degradation, but the habitat has been altered to the point where it has 
no suitability for the species at all. Habitat fragmentation occurs 
when habitat loss is patchy and leaves a matrix of grassland habitat 
behind. While habitat degradation continues to be a concern, we focus 
our analysis on habitat loss and fragmentation from the cumulative 
effects of multiple sources of activities as the long-term drivers of 
the species' viability.
    Initially, reduction in the total area of available habitat may be 
more significant than fragmentation and can exert a much greater effect 
on populations (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). Spatial habitat 
fragmentation occurs when some form of disturbance, usually habitat 
degradation or loss, results in the separation or splitting apart of 
larger, previously contiguous, functional components of habitat into 
smaller, often less valuable, noncontiguous patches (Wilcove et al. 
1986, p. 237; Johnson and Igl 2001, p. 25; Franklin et al. 2002, 
entire). Habitat loss and fragmentation influence habitat availability 
and quality in three primary ways: (1) total area of available habitat 
constrains the maximum population size for an area; (2) the size of 
habitat patches within a larger habitat area, including edge effects 
(changes in population or community structures that occur at the 
boundary of two habitats), influences habitat quality and size of local 
populations; and (3) patch isolation influences the amount of species 
movement between patches, which constrains demographic and genetic 
exchange and ability to recolonize local areas where the species might 
be extirpated (Johnson and Igl 2001, p. 25; Stephens et al. 2003, p. 
101).
    Habitat loss, fragmentation, and degradation correlate with the 
ecological concept of carrying capacity. Within any given block or 
patch of lesser prairie-chicken habitat, carrying capacity is the 
maximum number of birds that can be supported indefinitely by the 
resources available within that area, that is, sufficient food, 
shelter, and lekking, nesting, brood-rearing, and wintering areas. As 
habitat loss increases and the size of an area decreases, the maximum 
number of birds that can inhabit that particular habitat patch also 
decreases. 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 will reduce the capacity of the landscape to 
support historical population levels, causing a decline in population 
sizes.
    Habitat loss not only contributes to overall declines in usable 
area for a species but also causes a reduction in the size of 
individual habitat patches and influences the proximity and 
connectivity of these patches to other patches of similar habitat 
(Stephens et al. 2003, p. 101; Fletcher 2005, p. 342), reducing rates 
of movement between habitat patches until, eventually, complete 
isolation results. Habitat quality for many species is, in part, a 
function of patch size and declines as the size of the patch decreases 
(Franklin et al. 2002, p. 23). Both the size and shape of the habitat 
patch have been shown to influence population persistence in many 
species (Fahrig and Merriam 1994, p. 53). The size of the fragment can 
influence reproductive success, survival, and movements. As the 
distances between habitat fragments increase, the rate of dispersal 
between the habitat patches may decrease and ultimately cease, reducing 
the likelihood of population persistence and potentially leading to 
both localized and regional extinctions (Harrison and Bruna 1999, p. 
226; With et al. 2008, p. 3153). In highly fragmented landscapes, once 
a species becomes extirpated from an area, the probability of 
recolonization is greatly reduced (Fahrig and Merriam 1994, p. 52).
    For the lesser prairie-chicken, habitat loss can occur due to 
either direct or indirect habitat impacts. Direct habitat loss is the 
result of the removal or alteration of grasslands, making that space no 
longer available for use by the lesser prairie-chicken. Indirect 
habitat loss and degradation is when the vegetation still exists, but 
the areas adjacent to a disturbance (the disturbance can be natural or 
manmade) are no longer used by lesser prairie-chicken or are used at 
reduced rates, or the disturbance negatively alters demographic rates 
or behavior in the affected area. In many cases, as discussed in detail 
below for specific disturbances, the indirect habitat loss can greatly 
exceed the direct habitat loss.
    Primarily due to their site fidelity and the need for large, 
ecologically diverse landscapes, lesser prairie-chickens appear to be 
relatively intolerant to habitat alteration, particularly for 
activities that fragment habitat into smaller patches. The birds 
require habitat patches with large expanses of vegetative structure in 
different successional stages to complete different phases in their 
life cycle, and the loss or partial loss of even one of these 
structural components can significantly reduce the overall value of 
that habitat to lesser prairie-chickens (Elmore et al. 2013, p. 4). In 
addition to the impacts on the individual patches, as habitat loss and 
fragmentation increases on the landscape, the juxtaposition of habitat 
patches to each other and to non-habitat areas will change. This 
changing pattern on the landscape can be complex and difficult to 
predict, but the results, in many cases, are increased isolation of 
individual patches (either due to physical separation or barriers 
preventing or limiting movement between patches) and direct impacts to 
metapopulation structure, which could be important for population 
persistence (DeYoung and Williford 2016, pp. 88-91).
    The following sections provide a discussion and quantification of 
the influence of habitat loss and fragmentation on the grasslands of 
the Great Plains within the lesser prairie-chicken analysis area and 
more specifically allow us to characterize the current condition of 
lesser prairie-chicken habitat.

Conversion of Grassland to Cropland

    Historical conversion of grassland to cultivated agricultural lands 
in the late 19th century and throughout the 20th century has been 
regularly cited as an important cause in the rangewide decline in 
abundance and distribution 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). 
Because cultivated grain crops may have provided increased or more 
dependable winter food supplies for lesser prairie-chickens (Braun et 
al. 1994, p. 429), the initial conversion of smaller patches of 
grassland to cultivation may have been temporarily beneficial to the 
short-term needs of the species as primitive and inefficient 
agricultural practices made grain available as a food source (Rodgers 
2016, p. 18). However, as conversion increased, it became clear that 
landscapes having greater than 20 to 37

[[Page 72687]]

percent cultivated grains may not support stable lesser prairie-chicken 
populations (Crawford and Bolen 1976a, p. 102). More recently, 
abundances of lesser prairie-chicken increased with increasing cropland 
until a threshold of 10 percent was reached; after that, abundance of 
lesser prairie-chicken declined with increasing cropland cover (Ross et 
al. 2016b, entire). While lesser prairie-chicken may forage in 
agricultural croplands, croplands do not provide for the habitat 
requirements of the species' life cycle (cover for nesting and 
thermoregulation); thus, lesser prairie-chicken avoid landscapes 
dominated by cultivated agriculture, particularly where small grains 
are not the dominant crop (Crawford and Bolen 1976a, p. 102).
    As part of the geospatial analysis completed for the SSA, we 
estimated the amount of cropland that currently exists in the four 
ecoregions of the lesser prairie-chicken. These percentages do not 
equate to the actual proportion of habitat loss in the analysis area 
because not all of the analysis area was necessarily suitable lesser 
prairie-chicken habitat; they are only the estimated portion of the 
total analysis area converted from the native vegetation community, 
i.e., grassland, to cropland. About 37 percent of the total area in the 
Short-Grass/CRP Ecoregion; 32 percent of the total area in the Sand 
Sagebrush Ecoregion; 13 percent of the total area in the Mixed-Grass 
Ecoregion; and 14 percent of the total area in the Shinnery Oak 
Ecoregion have been converted to cropland in the analysis area of the 
lesser prairie-chicken. Rangewide, we estimate about 4,963,000 ac 
(2,009,000 ha) of grassland have been converted to cropland, 
representing about 23 percent of the total analysis area. We note that 
these calculations do not account for all conversion that has occurred 
within the historical range of the lesser prairie-chicken but are 
limited to the amount of cropland within our analysis area. For further 
information, including total acreages impacted, see the SSA report for 
the lesser prairie-chicken (Service 2022, appendix E and figure E.1).
    The effects of grassland converted to cropland within the 
historical range of the lesser prairie-chicken have significantly 
impacted the amount of habitat available and how fragmented the 
remaining habitat is for the lesser prairie-chicken, leading to overall 
decreases in resiliency and redundancy throughout the range of the 
lesser prairie-chicken. The impact of cropland has shaped the 
historical and current condition of the grasslands and shrublands upon 
which the lesser prairie-chicken depends.

Petroleum and Natural Gas Production

    Petroleum and natural gas production has occurred over much of the 
estimated historical and current range of the lesser prairie-chicken. 
As demand for energy has continued to increase nationwide, so has oil 
and gas development in the Great Plains. In Texas, for example, one 
study noted that from 2002-2012 active oil and gas wells in the lesser 
prairie-chicken occupied range increased by more than 80 percent 
(Timmer et al. 2014, p. 143). The impacts from oil and gas development 
extend beyond the immediate well sites; they involve activities such as 
surface exploration, exploratory drilling, field development, and 
facility construction, as well as access roads, well pads, and 
operation and maintenance. Associated facilities can include compressor 
stations, pumping stations, and electrical generators.
    Petroleum and natural gas production result in both direct and 
indirect habitat effects to the lesser prairie-chicken (Hunt and Best 
2004, p. 92). Well pad construction, seismic surveys, access road 
development, power line construction, pipeline corridors, and other 
activities can all result in direct habitat loss by removal of 
vegetation used by lesser prairie-chickens. As documented in other 
grouse species, indirect habitat loss also occurs from avoidance of 
vertical structures, noise, and human presence (Weller et al. 2002, 
entire), which all can influence lesser prairie-chicken behavior in the 
general vicinity of oil and gas development areas. These activities 
also disrupt lesser prairie-chicken reproductive behavior (Hunt and 
Best 2004, p. 41).
    Anthropogenic features, such as oil and gas wells, affect the 
behavior of lesser prairie-chickens and alter the way in which they use 
the landscape (Hagen et al. 2011, pp. 69-73; Pitman et al. 2005, 
entire; Hagen 2010, entire; Hunt and Best 2004, pp. 99-104; Plumb et 
al. 2019, pp. 224-227; Sullins et al. 2019, pp. 5-8; Peterson et al. 
2020, entire). Please see the SSA report for a detailed summary of the 
best available scientific information regarding avoidance distances and 
effects of oil and gas development on lesser prairie-chicken habitat 
use (Service 2022, pp. 27-28).
    As part of the geospatial analysis discussed in the SSA report, we 
calculated the amount of usable land cover for the lesser prairie-
chicken that has been impacted (both direct and indirect impacts) by 
oil and natural gas wells in the current analysis area of the lesser 
prairie-chicken, though this analysis did not include all associated 
infrastructure as those data were not available. We used an impact 
radius of 984 feet (ft) (300 meters (m)) for indirect effects of oil 
and gas wells. For details regarding the establishment of the impact 
radius, see appendix B, part 2C, of the SSA report (Service 2022). 
These calculations were limited to the current analysis area and do not 
include historical impacts of habitat loss that occurred outside of the 
current analysis area. Thus, the calculation likely underestimates the 
rangewide effects of historical oil and gas development on the lesser 
prairie-chicken. About 4 percent of the total area in the Short-Grass/
CRP Ecoregion; 5 percent of the total area in the Sand Sagebrush 
Ecoregion; about 10 percent of the total area in the Mixed-Grass 
Ecoregion; and 4 percent of the total area in the Shinnery Oak 
Ecoregion of space that was identified as potential usable or potential 
restorable areas have been impacted due to oil and gas development in 
the current analysis area of the lesser prairie-chicken. Rangewide, we 
estimate about 1,433,000 ac (580,000 ha) of grassland have been lost 
due to oil and gas development representing about 7 percent of the 
total analysis area. Maps of these areas in each ecoregion are provided 
in the SSA report (Service 2022, appendix E, figure E.2).
    Oil and gas development directly removes habitat that supports 
lesser prairie-chicken, and the effects of the development extend past 
the immediate site of the wells and their associated infrastructure, 
further impacting habitat and altering behavior of lesser prairie-
chicken throughout both the Northern and the Southern DPS. These 
activities have resulted in decreases in population resiliency and 
species redundancy.

Wind Energy Development and Power Lines

    Wind power is a form of renewable energy increasingly being used to 
meet current and projected future electricity demands in the United 
States. Much of the new wind energy development 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 energy 
developed within a particular State (Staid and Guikema 2013, p. 384). 
In 2019, three of the five States within the lesser prairie-chicken 
range (Colorado, New Mexico, and Kansas) were within the top 10 States 
nationally for fastest growing States for wind generation in the past 
year (AWEA 2020, p. 33). There is considerable information (Southwest 
Power Pool

[[Page 72688]]

2020) indicating interest by the wind industry in developing wind 
energy within the range of the lesser prairie-chicken, especially if 
additional transmission line capacity is constructed. As of May 2020, 
approximately 1,792 wind turbines were located within the lesser 
prairie-chicken analysis area (Hoen et al. 2020). Not all areas within 
the analysis area are habitat for the lesser prairie-chicken, so not 
all turbines located within the analysis area affect the lesser 
prairie-chicken and its habitat.
    The average size of installed wind turbines and all other size 
aspects of wind energy development continues to increase (DOE 2015, p. 
63; AWEA 2020, p. 87-88; AWEA 2014, entire; AWEA 2015, entire; AWEA 
2016, entire; AWEA 2017, entire; AWEA 2018, entire; AWEA 2019, entire; 
AWEA 2020, entire). Wind energy developments range from 20 to 400 
towers, each supporting a single turbine. The individual permanent 
footprint of a single turbine unit, about 0.75-1 ac (0.3-0.4 ha), is 
relatively small in comparison with the overall footprint of the entire 
array (DOE 2008, pp. 110-111). Roads are necessary to access the 
turbine sites for installation and maintenance. Depending on the size 
of the wind energy development, one or more electrical substations, 
where the generated electricity is collected and transmitted on to the 
power grid, may also be built. 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 energy developments to be 
in place for at least 30 years. Wind repowering is the combined 
activity of dismantling or refurbishing existing wind turbines and 
commissioning new ones at existing wind energy development sites at the 
end of their service life. Wind repowering is increasingly common, with 
2,803 megawatts of operating projects partially repowering in 2019 
(AWEA 2020, p. 2).
    Please see the SSA report for a detailed review of the best 
available scientific information regarding the potential effects of 
wind energy development on habitat use by the lesser prairie-chicken 
(Service 2022, pp. 29-34).
    Noise effects to prairie-chickens have been recently explored as a 
way to evaluate potential negative effects of wind energy development. 
For a site in Nebraska, wind turbine noise frequencies were documented 
at less than or equal to 0.73 kilohertz (kHz) (Raynor et al. 2017, p. 
493), and reported to overlap the range of lek-advertisement 
vocalization frequencies of lesser prairie-chicken, 0.50-1.0 kHz. 
Female greater prairie-chickens avoided wooded areas and row crops but 
showed no response in space use based on wind turbine noise (Raynor et 
al. 2019, entire). Additionally, differences in background noise and 
signal-to-noise ratio of boom chorus of leks in relation to distance to 
turbine have been documented, but the underlying cause and response 
needs to be further investigated, especially since the study of wind 
energy development noise on grouse is almost unprecedented (Whalen et 
al. 2019, entire).
    The effects of wind energy development on the lesser prairie-
chicken must also 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 power line 
towers are 98 to 125 ft (30 to 38 m) high but can be higher if the need 
arises. Local distribution lines, if erected above ground, are usually 
much shorter in height but still contribute to fragmentation of the 
landscape.
    The effect of the transmission line infrastructure is typically 
much larger than the physical footprint of transmission line 
installation. Information on grouse and power lines is relatively 
limited with more studies needed. The available data includes a range 
of reported impacts (see Nonne et al. 2013, entire; Dinkins et al. 
2014, entire; Hansen et al. 2016, entire; Jarnevich et al. 2016, 
entire; Londe et al. 2019, entire; LeBeau et al. 2019, entire; Kohl et 
al. 2019, entire; and England and Robert 2021, entire). Transmission 
lines can indirectly lead to alterations in lesser prairie-chicken 
behavior and space use (avoidance), decreased lek attendance, and 
increased predation on lesser prairie-chicken. 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 usable 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. 
2009, pp. 1255-1257). Because lesser prairie-chicken 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 attendance by new males to the lek, as 
has been reported for sage-grouse (Braun et al. 2002, pp. 11-13).
    Decreased probabilities of use by lesser prairie-chicken were shown 
with the occurrence of more than 0.09 mi (0.15 km) of major roads, or 
transmission lines within a 1.2-mi (2-km) radius (Sullins et al. 2019, 
unpaged). Additionally, a recent study corroborated numerous authors' 
(Pitman et al. 2005; Pruett et al. 2009; Hagen et al. 2011; Grisham et 
al. 2014; Hovick et al. 2014a) findings of negative effects of power 
lines on prairie grouse and reported a minimum avoidance distance of 
1,925.8 ft (587 m), which is similar to other studies of lesser 
prairie-chickens (Plumb et al. 2019, entire). LeBeau et al. (2020, p. 
24) largely aggregated their findings of wind turbines and a 
transmission line on lesser prairie-chicken into effects of ``wind 
energy infrastructure,'' but specifically noted evidence that females 
selected home ranges farther from transmission lines. Using a 
definition for transmission powerlines that included powerlines 
transmitting >69 kilovolts, indicated that taller anthropogenic 
structures (i.e., transmission powerlines and towers) generally had 
larger estimated avoidance response distances of all the studied 
features, but also large regional variation (Peterson et al. 2020, p. 
9). They found largest estimated avoidance response of 5.6 mi (9 km) in 
Northwest Kansas, and the smallest in Oklahoma at approximately 1.8 mi 
(3 km). Effects from anthropogenic features, including power lines, 
varied by region, and the degree of effect often depended on the 
presence of other anthropogenic features (Patten et al. 2021, entire).
    As part of our geospatial analysis, we calculated the amount of 
otherwise usable land cover for the lesser prairie-chicken that has 
been impacted (both direct and indirect impacts) by wind energy 
development in the current analysis area of the lesser prairie-chicken. 
We used an impact radius of 5,906 ft (1,800 m) for indirect effects of 
wind turbines and 2,297 ft (700 m) for indirect effects of transmission 
lines. For details regarding the establishment of the impact radius, 
see appendix B, part 2C, of the SSA report (Service 2022). Within our 
analysis area, the following acreages have been identified as impacted 
due to wind energy development: about 2 percent of the total area in 
the Short-Grass/CRP, Mixed-Grass, and Shinnery Oak Ecoregions; and no 
impacts of wind

[[Page 72689]]

energy development documented currently within the Sand Sagebrush 
Ecoregion. Rangewide, we estimate about 428,000 ac (173,000 ha) of 
grassland have been impacted by wind energy development, representing 
about 2 percent of the total analysis area (Service 2022, appendix E, 
figure E.3). These percentages do not account for overlap that may 
exist with other features that may have already impacted the landscape.
    Additionally, according to our geospatial analysis, the following 
acreages within the analysis area have been directly or indirectly 
impacted due to the construction of transmission lines: about 7 percent 
of the total area in the Short-Grass/CRP Ecoregion; 5 percent of the 
total area in the Sand Sagebrush Ecoregion; 7 percent of the total area 
in the Mixed-Grass Ecoregion; and 10 percent of the total area in the 
Shinnery Oak Ecoregion. Rangewide, we estimate about 1,553,000 ac 
(629,000 ha) of grassland have been impacted by transmission lines 
representing about 7 percent of the total analysis area (Service 2022, 
appendix E, figure E.4).
    Wind energy development and transmission lines remove habitat that 
supports lesser prairie-chicken. The effects of the development extend 
past the immediate site of the turbines and their associated 
infrastructure, further impacting habitat and altering behavior of 
lesser prairie-chicken throughout both the Northern and the Southern 
DPSs. These activities have resulted in decreases in population 
resiliency and species redundancy.

Woody Vegetation Encroachment

    As discussed in Background, habitat selected by lesser prairie-
chicken is characterized by expansive regions of treeless grasslands 
interspersed with patches of small shrubs (Giesen 1998, pp. 3-4); 
lesser prairie-chicken avoid areas with trees and other vertical 
structures. Prior to extensive Euro-American settlement, frequent fires 
and grazing by large, native ungulates helped confine trees like 
eastern red cedar to river and stream drainages and rocky outcroppings. 
The frequency and intensity of these disturbances directly influenced 
the ecological processes, biological diversity, and patchiness typical 
of Great Plains grassland ecosystems (Collins 1992, pp. 2003-2005; 
Fuhlendorf and Smeins 1999, pp. 732, 737).
    Following Euro-American settlement, increasing fire suppression 
combined with government programs promoting eastern red cedar for 
windbreaks, erosion control, and wildlife cover facilitated the 
expansion of eastern red cedar distribution in grassland areas (Owensby 
et al. 1973, p. 256; DeSantis et al. 2011, p. 1838). 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 so that 
adjacent areas can readily become infested with eastern red cedar. 
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 grassland landscapes (Holthuijzen et al. 1987, p. 1094). Most trees 
are relatively long-lived and, once they become established in 
grassland areas, require intensive management to remove to return areas 
to a grassland state.
    Within the southern- and westernmost portions of the estimated 
historical and occupied ranges of lesser prairie-chicken in Eastern New 
Mexico, Western Oklahoma, and the South Plains and Panhandle of Texas, 
honey mesquite is another common woody invader within these grasslands 
(Riley 1978, p. vii; Boggie et al. 2017, entire). Mesquite is a 
particularly effective invader in grassland habitat due to its ability 
to produce abundant, long-lived seeds that can germinate and establish 
in a variety of soil types and moisture and light regimes (Lautenbach 
et al. 2017, p. 84). Though not as widespread as mesquite or eastern 
red cedar, other tall, woody plants, such as redberry or Pinchot 
juniper (Juniperus pinchotii), black locust (Robinia pseudoacacia), 
Russian olive (Elaeagnus angustifolia), and Siberian elm (Ulmus pumila) 
can also be found in grassland habitat historically and currently used 
by lesser prairie-chicken and may become invasive in these areas.
    Invasion of grasslands by opportunistic woody species causes 
otherwise usable grassland habitat no longer to be used by lesser 
prairie-chicken and contributes to the loss and fragmentation of 
grassland habitat (Lautenbach 2017, p. 84; Boggie et al. 2017, p. 74). 
In Kansas, lesser prairie-chicken are 40 times more likely to use areas 
that had no trees than areas with 1.6 trees per ac (5 trees per ha), 
and no nests occur in areas with a tree density greater than 0.8 trees 
per ac (2 trees per ha), at a scale of 89 ac (36 ha) (Lautenbach 2017, 
pp. 104-142). Similarly, within the Shinnery Oak Ecoregion, lesser 
prairie-chicken habitat use in all seasons is altered in the presence 
of mesquite, even at densities of less than 5 percent canopy cover 
(Boggie et al. 2017, entire). Woody vegetation encroachment also 
contributes to indirect habitat loss and increases habitat 
fragmentation because lesser prairie-chicken are less likely to use 
areas adjacent to trees (Boggie et al. 2017, pp. 72-74; Lautenbach 
2017, pp. 104-142).
    Fire is often the best method to control or preclude tree invasion 
of grassland. However, to some landowners and land managers, burning of 
grassland can be perceived as a high-risk activity because of the 
potential liability of escaped fire impacting nontarget lands and 
property. Additionally, it is undesirable for optimizing cattle 
production and is likely to create wind erosion or ``blowouts'' in 
sandy soils. Consequently, wildfire suppression is common, and 
relatively little prescribed burning occurs on private land. Often, 
prescribed fire is employed only after significant tree invasion has 
already occurred and landowners consider forage production for cattle 
to have diminished. Preclusion of woody vegetation encroachment on 
grasslands of the southern Great Plains using fire requires 
implementing fire at a frequency that mimics historical fire 
frequencies of 2-14 years (Guyette et al. 2012, p. 330), further 
limiting the number of landowners able to implement fire in a manner 
that would truly preclude future encroachment. 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, p. 293; Bragg and 
Hulbert 1976, p. 19) and will not eradicate mesquite.
    As part of our geospatial analysis, we calculated the amount of 
woody vegetation encroachment in the current analysis area of the 
lesser prairie-chicken. These calculations of the current analysis area 
do not include historical impacts of habitat loss that occurred outside 
of the current analysis area; thus, it likely underestimates the 
effects of historical woody vegetation encroachment rangewide on the 
lesser prairie-chicken. An additional limitation associated with this 
calculation is that available remote sensing data lack the ability to 
detect areas with low densities of encroachment, as well as areas with 
shorter trees; thus, this calculation likely underestimates lesser 
prairie-chicken habitat loss due to woody vegetation encroachment. The 
identified areas of habitat impacted by woody vegetation are: about 5 
percent of the total area in the Short-Grass/CRP Ecoregion; about 2 
percent of the total area in the Sand Sagebrush Ecoregion;

[[Page 72690]]

about 24 percent of the total area in the Mixed-Grass Ecoregion; and 
about 17 percent of the total area in the Shinnery Oak Ecoregion. 
Rangewide, we estimate about 3,071,000 ac (1,243,000 ha) of grassland 
have been directly or indirectly impacted by the encroachment of woody 
vegetation, or about 18 percent of the total area. These percentages do 
not account for overlap that may exist with other features that may 
have already impacted the landscape. Further information, including 
total acres impacted, is available in the SSA report (Service 2022, 
appendix B; appendix E, figure E.5).
    Woody vegetation encroachment is contributing to ongoing habitat 
loss as well as contributing to fragmentation and degradation of 
remaining habitat patches. The effects of woody vegetation encroachment 
are particularly widespread in the Shinnery Oak Ecoregion that makes up 
the Southern DPS as well as the Mixed-Grass Ecoregion of the Northern 
DPS. While there are ongoing efforts to control woody vegetation 
encroachment, the current level of woody vegetation on the landscape is 
evidence that removal efforts are being outpaced by rates of 
encroachment; thus, we expect that this threat will continue to 
contribute to habitat loss and fragmentation, which has reduced 
population resiliency across the range of the lesser prairie-chicken.

Roads and Electrical Distribution Lines

    Roads and distribution power lines are linear features on the 
landscape that contribute to loss and fragmentation of lesser prairie-
chicken habitat and fragment populations as a result of behavioral 
avoidance. Lesser prairie-chickens are less likely to use areas close 
to roads (Plumb et al. 2019, entire; Sullins et al. 2019, entire). 
Additionally, roads contribute to lek abandonment when they disrupt 
important habitat features (such as affecting auditory or visual 
communication) associated with lek sites (Crawford and Bolen 1976b, p. 
239). Some mammal species that prey on lesser prairie-chicken, such as 
red fox (Vulpes vulpes), raccoons (Procyon lotor), and striped skunks 
(Mephitis mephitis), 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).
    Traffic noise from roads may indirectly impact lesser prairie-
chicken. Because lesser prairie-chicken 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. For further discussion on noise, please see 
Influence of Anthropogenic Noise.
    Depending on the traffic volume and associated disturbances, roads 
also may limit lesser prairie-chicken dispersal abilities. Lesser 
prairie-chickens avoid areas of usable habitat near roads (Pruett et 
al. 2009, pp. 1256, 1258; Plumb et al. 2019, entire) and in areas where 
road densities are high (Sullins et al. 2019, p. 8). Lesser prairie-
chickens are thought to avoid major roads due to disturbance caused by 
traffic volume and perhaps to avoid exposure to predators that may use 
roads as travel corridors. However, the extent to which roads 
constitute a significant obstacle to lesser prairie-chicken movement 
and space use is largely dependent upon the local landscape composition 
and characteristics of the road itself.
    Local electrical distribution lines are usually much shorter in 
height than transmission lines but can still contribute to habitat 
fragmentation through similar mechanisms as other vertical features 
when erected above ground. In addition to habitat loss and 
fragmentation, electrical power lines can directly affect prairie 
grouse by posing a collision hazard (Leopold 1933, p. 353; Connelly et 
al. 2000, p. 974). There were no datasets available to quantify the 
total impact of distribution lines on the landscape for the lesser 
prairie-chicken. Although distribution lines are a significant 
landscape feature throughout the Great Plains with potential to affect 
lesser prairie-chicken habitat, after reviewing all available 
information, we were unable to develop a method to quantitatively 
incorporate the occurrence of distribution lines into our geospatial 
analysis.
    As part of our geospatial analysis, we estimated the area impacted 
by direct and indirect habitat loss due to roads (Service 2022, 
appendix B, part 2). These calculations of the current analysis area do 
not include historical impacts of loss; thus, the calculations likely 
underestimate the historical effect of roads on rangewide habitat loss 
for the lesser prairie-chicken. The results indicate that the total 
areas of grassland that have been directly and indirectly impacted by 
roads within the analysis area for the lesser prairie-chicken are: 
about 17 percent of the total area in the Short-Grass/CRP Ecoregion; 
about 14 percent of the total area in the Sand Sagebrush Ecoregion; 
about 20 percent of the total area in the Mixed-Grass Ecoregion; and 
about 19 percent of the total area in the Shinnery Oak Ecoregion. 
Rangewide, we estimate about 3,996,000 ac (1,617,000 ha) of grassland 
have been impacted by roads, representing about 18 percent of the total 
analysis area (Service 2022, appendix E, figure E.6). We did not have 
adequate spatial data to evaluate habitat loss caused solely by 
electrical distribution lines, but much of the existing impacts of 
power lines occur within the impacts caused by roads. Electrical 
distribution lines that fall outside the existing impacts of roads 
would represent additional impacts for the lesser prairie-chicken that 
are not quantified in our geospatial analysis.
    Development of roads and electrical distribution lines directly 
removes habitat that supports lesser prairie-chicken, and the effects 
of the development extend past the immediate footprint of the 
development, further impacting habitat and altering behavior of lesser 
prairie-chicken throughout both the Northern and the Southern DPSs. 
These activities have resulted in decreases in population resiliency 
and species redundancy.
Other Factors

Livestock Grazing

    Grazing has long been an ecological driving force throughout the 
ecosystems of the Great Plains (Stebbins 1981, p. 84), and much of the 
untilled grasslands within the range of the lesser prairie-chicken is 
currently grazed by livestock and other animals. Historically, the 
interaction of fire, drought, prairie dogs (Cynomys ludovicianus), and 
large ungulate grazers created and maintained distinctive plant 
communities in the Western Great Plains, resulting in a mosaic of 
vegetation structure and composition that sustained lesser prairie-
chicken 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 and, in many cases, is 
needed to maintain appropriate vegetative structure.
    However, grazing practices that tend to result in overutilization 
of forage and decreasing vegetation heterogeneity can produce habitat 
conditions that differ in significant ways from the historical 
grassland mosaic; these incompatible practices alter the vegetation 
structure and composition and degrade the quality of habitat for the 
lesser prairie-chicken. The more heavily altered conditions are the 
least valuable for the lesser prairie-chicken (Jackson and

[[Page 72691]]

DeArment 1963 p. 733; Davis et al. 1979, pp. 56, 116; Taylor and 
Guthery 1980a, p. 2; Bidwell and Peoples 1991, pp. 1-2). In some cases, 
these alterations can result in areas that do not contain the 
biological components necessary to support the lesser prairie-chicken.
    Where grazing regimes leave limited residual cover in the spring, 
protection of lesser prairie-chicken nests may be inadequate, and 
desirable food resources can be scarce (Bent 1932, p. 280; Cannon and 
Knopf 1980, pp. 73-74; Crawford 1980, p. 3; Kraft 2016, pp. 19-21). 
Because lesser prairie-chicken depend on medium- and tall-grass species 
for nesting, concealment, and thermal cover that are also 
preferentially grazed by cattle, these plant species needed by lesser 
prairie-chicken can easily be reduced or eliminated by cattle grazing, 
particularly in regions of low rainfall (Hamerstrom and Hamerstrom 
1961, p. 290). In addition, when grasslands are in a deteriorated 
condition due to incompatible grazing and overutilization, the soils 
have less water-holding capacity (Blanco and Lal 2010, p. 9), and the 
availability of succulent vegetation and insects used by lesser 
prairie-chicken chicks is reduced. However, grazing can be beneficial 
to the lesser prairie-chicken when management practices produce or 
enhance the vegetative characteristics required by the lesser prairie-
chicken.
    The interaction of fire and grazing and its effect on vegetation 
components and structure is likely important to prairie-chickens 
(Starns et al. 2020, entire). On properties managed with patch-burn 
grazing regimes, female greater prairie-chickens selected areas with 
low cattle stocking rates and patches that were frequently burned, 
though they avoided areas that were recently burned (Winder et al. 
2017, p. 171). Patch-burn grazing created preferred habitats for female 
greater prairie-chickens if the regime included a relatively frequent 
fire-return interval, a mosaic of burned and unburned patches, and a 
reduced stocking rate in unburned areas avoided by grazers. When 
managed compatibly, widespread implementation of patch-burn grazing 
could result in significant improvements in habitat quality for 
wildlife in the tall-grass prairie ecosystem (Winder et al. 2017, p. 
165). In the eastern portion of the lesser prairie-chicken range, 
patch-burn grazing resulted in patchy landscapes with variation in 
vegetation composition and structure (Lautenbach 2017, p. 20). Female 
lesser prairie-chickens' use of the diversity of patches in the 
landscape varied throughout their life cycle. They selected patches 
with the greatest time-since-fire and subsequently the most visual 
obstruction for nesting, and they selected sites with less time-since-
fire and greater bare ground and forbs for summer brooding.
    Livestock also inadvertently flush lesser prairie-chicken and 
trample lesser prairie-chicken nests (Toole 2005, p. 27; Pitman et al. 
2006, pp. 27-29). Brief flushing of adults from nests can expose eggs 
and chicks to predation and extreme temperatures. Trampling nests can 
cause direct mortality to lesser prairie-chicken eggs or chicks or may 
cause adults to permanently abandon their nests, ultimately resulting 
in loss of young. Although these effects have been documented, the 
significance of direct livestock effects on the lesser prairie-chicken 
is largely unknown and is presumed not to be significant at a 
population scale.
    In summary, domestic livestock grazing (including management 
practices commonly used to benefit livestock production) has altered 
the composition and structure of grassland habitat, both currently and 
historically, used by the lesser prairie-chicken. Much of the remaining 
remnants of mixed-grass grasslands, while still important to the lesser 
prairie-chicken, exhibit conditions quite different from those prior to 
Euro-American settlement. These changes have reduced the suitability of 
remnant grassland areas as habitat for lesser prairie-chicken. Grazing 
management that has altered the vegetation community to a point where 
the composition and structure are no longer suitable for lesser 
prairie-chicken can contribute to fragmentation within the landscape, 
even though these areas may remain as prairie or grassland. Livestock 
grazing, however, is not inherently detrimental to lesser prairie-
chicken provided that grazing management results in a plant community 
diversity and structure that is suitable for lesser prairie-chicken.
    While domestic livestock grazing is a dominant land use on untilled 
range land within the lesser prairie-chicken analysis area, geospatial 
data do not exist at a scale and resolution necessary to calculate the 
total amount of livestock grazing that is being managed in a way that 
results in habitat conditions that are not compatible with the needs of 
the lesser prairie-chicken. Therefore, we did not attempt to spatially 
quantify the scope of grazing effects across the lesser prairie-chicken 
range.

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-chicken (Jackson and DeArment 1963, pp. 736-
737). Most shrub control and eradication efforts in lesser prairie-
chicken habitat are primarily focused on sand shinnery oak for the 
purpose of increasing forage for livestock grazing. Sand shinnery oak 
is toxic if eaten by cattle when it first produces leaves in the spring 
and 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 by rangeland managers. Prior 
to the late 1990s, approximately 100,000 ac (40,000 ha) of sand 
shinnery oak in New Mexico and approximately 1,000,000 ac (405,000 ha) 
of sand 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).
    Shrub cover is an important component of lesser prairie-chicken 
habitat in certain portions of the range, and sand shinnery oak is a 
key shrub in the Shinnery Oak and portions of the Mixed-Grass 
Ecoregions. The importance of sand shinnery oak as a component of 
lesser prairie-chicken habitat in the Shinnery Oak Ecoregion has been 
demonstrated by several studies (Fuhlendorf et al. 2002, pp. 624-626; 
Bell 2005, pp. 15, 19-25). In West Texas and New Mexico, lesser 
prairie-chicken avoid nesting where sand shinnery oak has been 
controlled with tebuthiuron, indicating their preference for habitat 
with a sand shinnery oak component (Grisham et al. 2014, p. 18; Haukos 
and Smith 1989, p. 625; Johnson et al. 2004, pp. 338-342; Patten and 
Kelly 2010, p. 2151). Where sand shinnery oak occurs, lesser prairie-
chicken use it both for food and cover. Sand shinnery oak may be 
particularly important in drier portions of the range that experience 
more severe and frequent droughts and extreme heat events, as sand 
shinnery oak is more resistant to drought and heat conditions than are 
most grass species. And because sand shinnery oak is toxic to cattle 
and thus not targeted by grazing, it can provide available cover for 
lesser prairie-chicken nesting and brood rearing during these extreme 
weather events. Loss of this component of the vegetative community 
likely contributed to observed population declines in lesser prairie-
chicken in these areas.
    While relatively wide-scale shrub eradication has occurred in the 
past, geospatial data do not exist to evaluate the extent to which 
shrub eradication has contributed to the habitat loss and fragmentation 
for the lesser prairie-chicken and, therefore, was not included in our 
quantitative analysis.

[[Page 72692]]

While current efforts of shrub eradication are not likely occurring at 
rates equivalent to those witnessed in the past, any additional efforts 
to eradicate shrubs that are essential to lesser prairie-chicken 
habitat will result in additional habitat degradation and thus reduce 
redundancy and resiliency.

Influence of Anthropogenic Noise

    Anthropogenic noise can be associated with almost any form of human 
activity, and lesser prairie-chicken may exhibit behavioral and 
physiological responses to the presence of noise. In prairie-chickens, 
the ``boom'' call vocalization transmits information about sex, 
territorial status, mating condition, location, and individual identity 
of the signaler and thus is important to courtship activity and long-
range advertisement of the display ground (Sparling 1981, p. 484). The 
timing of displays and frequency of vocalizations are critical 
reproductive behaviors in prairie grouse and appear to have developed 
in response to unobstructed conditions prevalent in prairie habitat and 
indicate that effective communication, particularly during the lekking 
season, operates within a fairly narrow set of acoustic conditions. 
Prairie grouse usually initiate displays on the lekking grounds around 
sunrise, and occasionally near sunset, corresponding with times of 
decreased wind turbulence and thermal variation (Sparling 1983, p. 41). 
Considering the narrow set of acoustic conditions in which 
communication appears most effective for breeding lesser prairie-
chicken and the importance of communication to successful reproduction, 
human activities that result in noises that disrupt or alter these 
conditions could result in lek abandonment (Crawford and Bolen 1976b, 
p. 239). Anthropogenic features and related activities that occur on 
the landscape can create noise that exceeds the natural background or 
ambient level. When the behavioral response to noise is avoidance, as 
it often is for lesser prairie-chicken, noise can be a source of 
habitat loss or degradation leading to increased habitat fragmentation.
    Anthropogenic 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 
(Blickley et al. 2012a, p. 470; Lipp and Gregory 2018, pp. 369-370). 
Male greater prairie-chicken adjust aspects of their vocalizations in 
response to wind turbine noise, and wind turbine noise may have the 
potential to mask the greater prairie-chicken chorus at 296 hertz (Hz) 
under certain scenarios, but the extent and degree of masking is 
uncertain (Whalen 2015, entire). Noise produced by typical oil and gas 
infrastructure can mask grouse vocalizations, compromise the ability of 
female sage-grouse to find active leks when such noise is present, and 
affect nest site selection (Blickley and Patricelli 2012, p. 32; Lipp 
2016, p. 40). Chronic noise associated with human activity leads to 
reduced male and female attendance at noisy leks. Breeding, 
reproductive success, and ultimately recruitment in areas with human 
developments could be impaired by such developments, impacting survival 
(Blickley et al. 2012b, entire). Because opportunities for effective 
communication on the display ground occur under fairly narrow 
conditions, disturbance during this period may have negative 
consequences for reproductive success. Other communications 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).
    No data are available to quantify the areas of lesser prairie-
chicken habitat rangewide that have been affected by noise, but noise 
is a threat that is almost entirely associated with anthropogenic 
features such as roads or energy development. Therefore, through our 
accounting for anthropogenic features we may have inherently accounted 
for all or some of the response of the lesser prairie-chicken to noise 
produced by those features.
    Overall, persistent anthropogenic noise could cause lek attendance 
to decline, disrupt courtship and breeding activity, and reduce 
reproductive success. Noise can also cause abandonment of otherwise 
usable habitat and, as a result, contribute to habitat loss and 
degradation.

Fire

    Fire, or its absence, is understood to be a major ecological driver 
of grasslands in the Southern Great Plains (Anderson 2006, entire; 
Koerner and Collins 2014, entire; Wright and Bailey 1982, pp. 80-137). 
Fire is an ecological process important to maintaining grasslands by 
itself and in coupled interaction with grazing and climate. The 
interaction of these ecological processes results in increasing 
grassland heterogeneity through the creation of temporal and spatial 
diversity in plant community composition and structure and associated 
response of wildlife (Fuhlendorf and Engle 2001, entire; Fuhlendorf and 
Engle 2004, entire; Fuhlendorf et al. 2017a, pp. 169-196).
    Following settlement of the Great Plains, fire management generally 
emphasized prevention and suppression, often coupled with grazing 
pressures that significantly reduced and removed fine fuels (Sayre 
2017, pp. 61-70). This approach, occurring in concert with settlement 
and ownership patterns that occurred in most of the Southern Great 
Plains, meant that the scale of management was relegated to smaller 
parcels than historically were affected. This increase in smaller 
parcels with both intensive grazing and fire suppression resulted in 
the transformation of landscapes from dynamic heterogeneous to largely 
static and homogenous plant communities. This simplification of 
vegetative pattern due to decoupling fire and grazing (Starns et al. 
2019, pp. 1-3) changed the number and size of wildfires and ultimately 
led to declines in biodiversity in the affected systems (Fuhlendorf and 
Engle 2001, entire).
    Changes in patterns of wildfire in the Great Plains have been noted 
in recent years (Donovan et al. 2017, entire). While these landscapes 
have a long history of wildfire, large wildfires (greater than 1,000 ac 
(400 ha)) typically did not occur in recent past decades, and include 
an increase in the Southern Great Plains of megafires (greater than 
100,000 ac (404 km\2\; 40,468 ha)) since the mid-1990s (Lindley et al. 
2019, p. 164). Changes have occurred throughout all or portions of the 
Great Plains in number of large wildfires and season of fire 
occurrence, as well as increased area burned by wildfire or increasing 
probability of large wildfires (Donovan et al. 2017, p. 5990). 
Furthermore, Great Plains land cover dominated by woody or woody/
grassland combined vegetation is disproportionately more likely to 
experience large wildfires, with the greatest increase in both number 
of fires and of area burned (Donovan et al. 2020a, p. 11). Fire 
behavior has also been affected such that these increasingly large 
wildfires are burning under weather conditions (Lindley et al. 2019, 
entire) that result in greater burned extent and intensity. These 
shifts in fire parameters and their outcomes have potential 
consequences for lesser prairie-chicken, including: (1) larger areas of 
complete loss of nesting habitat as compared to formerly patchy 
mosaicked burns; and (2) large-scale reduction in the spatial and 
temporal variation in vegetation structure and composition affecting 
nesting and brood-rearing habitat, thermoregulatory cover, and predator 
escape cover.

[[Page 72693]]

    Effects from fire are expected to be relatively short term (Donovan 
et al. 2020b, entire, Starns et al. 2020, entire), with plant community 
recovery time largely predictable and influenced by pre-fire condition, 
post-fire weather, and types of management. Some effects from fire, 
however, such as the response to changing plant communities in the 
range of the lesser prairie-chicken, will vary based on location within 
the range and available precipitation. In the eastern extent of the 
distribution of sand shinnery oak that occurs in the Mixed-Grass 
Ecoregion, fire has potential negative effects on some aspects of the 
lesser prairie-chicken habitat for 2 years after the area burns, but 
these effects could be longer in duration dependent upon precipitation 
patterns (Boyd and Bidwell 2001, pp. 945-946). Effects from fire on 
lesser prairie-chicken varied based on fire break preparation, season 
of burn, and type of habitat; positive effects included improved brood 
habitat through increased forb and grasshopper abundance, but these can 
be countered by short-term (2-year) negative effects to quality and 
availability of nesting habitat and a reduction in food sources (Boyd 
and Bidwell 2001, pp. 945-946). Birds moved into recently burned 
landscapes of western Oklahoma for lek courtship displays because of 
the reduction in structure from formerly dense vegetation (Cannon and 
Knopf 1979, entire).
    More recently, research evaluating indirect effects concluded that 
prescribed fire and managed grazing following the patch-burn or pyric 
herbivory (grazing practices shaped fire) approach will benefit lesser 
prairie-chicken through increases in forbs; invertebrates; and the 
quality, amount, and juxtaposition of brood habitat to available 
nesting habitat (Elmore et al. 2017, entire). The importance of 
temporal and spatial heterogeneity derived from pyric herbivory is 
apparent in the female lesser prairie-chicken use of all patch types in 
the patch-burn grazing mosaic, including greater than 2 years post fire 
for nesting, 2-year post fire during spring lekking, 1- and 2-year post 
fire during summer brooding, and 1-year post fire during nonbreeding 
season (Lautenbach 2017, pp. 20-22). While the use of prescribed fire 
as a tool for managing grasslands throughout the lesser prairie-chicken 
range is encouraged, current use is at a temporal frequency and spatial 
extent insufficient to support large amounts of lesser prairie-chicken 
habitat. These fire management efforts are limited to a small number of 
fire-minded landowners, resulting in effects to a small percentage of 
the lesser prairie-chicken range.
    While lesser prairie-chicken evolved in a fire-adapted landscape, 
little research (Thacker and Twidwell 2014, entire) has been conducted 
on response of lesser prairie-chicken to altered fire regimes. Research 
to date has focused on site-specific responses and consequences. Human 
suppression of wildfire and the limited extent of fire use (prescribed 
fire) for management over the past century has altered the frequency, 
scale, and intensity of fire occurrence in lesser prairie-chicken 
habitat. These changes in fire parameters have happened simultaneously 
with habitat loss and fragmentation, resulting in patchy distribution 
of lesser prairie-chicken throughout their range. An increase in size, 
intensity, or severity of wildfires as compared to historical 
occurrences results in increased vulnerability of isolated, smaller 
lesser prairie-chicken populations. Both woody plant encroachment and 
drought are additive factors that increase risk of negative 
consequences of wildfire ignition, as well as extended post-fire lesser 
prairie-chicken habitat effects. The extent of these negative impacts 
can be significantly altered by precipitation patterns following the 
occurrence of the fire; dry periods will inhibit or extend plant 
community response.
    Historically, fire served an important role in maintenance and 
quality of habitat for the lesser prairie-chicken. Currently, due to a 
significant shift in fire regimes in the lesser prairie-chicken range, 
fire use for management of grasslands plays a locally important but 
overall limited role in most lesser prairie-chicken habitat. This 
current lack of prescribed fire use in the range of the lesser prairie-
chicken is contributing to woody plant encroachment and degradation of 
grassland quality due to its decoupling from the grazing and fire 
interaction that is the foundation for plant community diversity in 
structure and composition, which in turn supports the diverse habitat 
needs of lesser prairie-chicken. These cascading effects contribute to 
greater wildfire risk, and concerns exist regarding the changing 
patterns of wildfires (scale, intensity, and frequency) and their 
consequences for remaining lesser prairie-chicken populations and 
habitat that are increasingly fragmented. Concurrently, wildfire has 
increased as a threat rangewide due to compounding influences of 
increased size and severity of wildfires and the potential consequences 
to remaining isolated and fragmented lesser prairie-chicken 
populations.

Extreme Weather Events

    Weather-related events such as drought, snow, and hailstorms can 
influence habitat quality or result in direct mortality of lesser 
prairie-chickens. Although hailstorms typically have only a localized 
effect, the effects of snowstorms and drought can often be more 
widespread and can affect considerable portions of the lesser prairie-
chicken range. Drought is considered a universal ecological driver 
across the Great Plains (Knopf 1996, p. 147). Annual precipitation 
within the Great Plains is highly variable (Wiens 1974, p. 391), with 
prolonged drought capable of causing local extinctions of annual forbs 
and grasses within stands of perennial species; recolonization is often 
slow (Tilman and El Haddi 1992, p. 263). Grassland bird species in 
particular are impacted by climate extremes such as extended drought, 
which acts as a bottleneck that allows only a limited number of 
individuals to survive through the relatively harsh conditions (Wiens 
1974, pp. 388, 397; Zimmerman 1992, p. 92). Drought also interacts with 
many of the other threats impacting the lesser prairie-chicken and its 
habitat, such as amplifying the effects of incompatible grazing and 
predation.
    Although the lesser prairie-chicken has adapted to drought as a 
component of its environment, drought and the accompanying harsh, 
fluctuating conditions (high temperatures and low food and cover 
availability) have influenced lesser prairie-chicken populations. 
Widespread periods of drought commonly result in ``bust years'' of 
recruitment. Following extreme droughts of the 1930s, 1950s, 1970s, and 
1990s, lesser prairie-chicken population levels declined and a decrease 
in their overall range was observed (Lee 1950, p. 475; Ligon 1953, p. 
1; 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 Giesen 2005, unpaginated). Additionally, lesser prairie-
chicken populations reached near record lows during and after the more 
recent drought of 2011 to 2013 (McDonald et al. 2017, p. 12; Fritts et 
al. 2018, entire).
    Drought impacts prairie grouse, such as 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;

[[Page 72694]]

Applegate and Riley 1998, p. 15; Peterson and Silvy 1994, p. 228; 
Morrow et al. 1996, pp. 596-597; Ross et al. 2016a, entire). 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 et al. 1996, 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. 2005, 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; Ross et al. 2016a, pp. 6-8). That is, rain levels in one 
year promote more vegetative cover for eggs and chicks in the following 
year, which influences survival and reproduction.
    Although lesser prairie-chicken have persisted through droughts in 
the past, the effects of such droughts are exacerbated by human land 
use practices such as incompatible grazing 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; Ross et al. 
2016b, pp. 183-186) as well as the other threats that have affected the 
current condition and have altered and fragmented the landscape and 
decreased population abundances (Fuhlendorf et al. 2002, p. 617; 
Rodgers 2016, pp. 15-19). In past decades, fragmentation of lesser 
prairie-chicken habitat was less extensive than it is today, 
connectivity between occupied areas was more prevalent, and populations 
were larger, allowing populations to recover more quickly. In other 
words, lesser prairie-chicken populations were more resilient to the 
effects of stochastic events such as drought. As lesser prairie-chicken 
population abundances decline and usable habitat declines and becomes 
more fragmented, their ability to rebound from prolonged drought is 
diminished.
    Hailstorms can cause mortality of prairie grouse, particularly 
during the spring nesting season. An excerpt from the May 1879 Stockton 
News describes a large hailstorm near Kirwin, Kansas, as responsible 
for killing prairie-chickens (likely greater prairie-chicken) and other 
birds by the hundreds (Fleharty 1995, p. 241). Although such phenomena 
are likely rare, the effects can be significant, particularly if they 
occur during the nesting period and result in significant loss of eggs 
or chicks. Severe winter storms can also result in localized impacts to 
lesser prairie-chicken populations. For example, a severe winter storm 
in 2006 was reported to reduce lesser prairie-chicken numbers in 
Colorado by 75 percent 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). While populations commonly rebound to some 
degree following severe weather events such as drought and winter 
storms, a population with decreased resiliency becomes susceptible to 
extirpation from stochastic events.
    We are not able to quantify the impact that severe weather has had 
on the lesser prairie-chicken populations, but, as discussed above, 
these events have shaped recent history and influenced the current 
condition for the lesser prairie-chicken.
Regulatory Mechanisms
    In appendix D of the SSA report (Service 2022), we review in more 
detail all of the existing regulatory mechanisms (such as local, State, 
and Federal land use regulations or laws) that may impact lesser 
prairie-chicken conservation. Here, we present a summary of some of 
those regulatory mechanisms. All existing regulatory mechanisms listed 
in appendix D of the SSA report were fully considered in our conclusion 
about the status of the two DPSs.
    All five States in the estimated occupied range (EOR) (Van Pelt et 
al. 2013, p. 3) 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 helps 
heighten public awareness, this designation provides no protection from 
direct take or habitat destruction or alteration. The lesser prairie-
chicken is listed as threatened in Colorado; this listing protects the 
lesser prairie-chicken from direct purposeful mortality by humans but 
does not provide protections for destruction or alteration of habitat.
    Primary land ownership (approximately 5 percent of total range) at 
the Federal level is on USFS and BLM lands. The lesser prairie-chicken 
is present on the Cimarron National Grassland in Kansas and the 
Comanche National Grassland in Colorado; a total of approximately 3 
percent of the total acres estimated in the SSA analysis area is on 
USFS land. The 2014 Lesser Prairie-Chicken Management Plan for these 
grasslands provides a framework to manage lesser prairie-chicken 
habitat. The plan provides separate population and habitat recovery 
goals for each grassland, as well as vegetation surveys to inform 
ongoing and future monitoring efforts of suitable habitat and lek 
activities. Because National Grasslands are managed for multiple uses, 
the plan includes guidelines for prescribed fire and grazing.
    In New Mexico, roughly 41 percent of the known historical and most 
of the estimated occupied lesser prairie-chicken range occurs on BLM 
land, for a total of 3 percent of the total acres estimated in the 
analysis area of the SSA report. The BLM established the 57,522-ac 
(23,278-ha) Lesser Prairie-Chicken Habitat Preservation Area of 
Critical Environmental Concern (ACEC) upon completion of the Resource 
Management Plan Amendment (RMPA) in 2008. 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. 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 3,442-ac (1,393-ha) allotment.
    The BLM's approved 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

[[Page 72695]]

length of roads, reducing the number of power lines and pipelines, and 
implementing best management practices for development and reclamation. 
The effect of these best management practices on the status of the 
lesser prairie-chicken is unknown, particularly considering about 
82,000 ac (33,184 ha) have already been leased in those areas (BLM 
2008, p. 8). Although the BLM RMPA is an important tool for identifying 
conservation actions that would benefit lesser prairie-chicken, this 
program does not alleviate all threats acting on the species in this 
area.
    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, 
as delineated in the RMPA, 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). In the southernmost habitat 
management units outlined in the RMPA, where lesser prairie-chickens 
are now far less common than in previous decades (Hunt and Best 2004), 
new leases will not be allowed within 1.5 mi (2.4 km) of a lek (BLM 
2008, p. 11).
    We conclude that existing regulatory mechanisms have minimal 
influence on the rangewide trends of lesser prairie-chicken habitat 
loss and fragmentation because 97 percent of the lesser prairie-chicken 
analysis area occurs on private lands, which are largely unregulated 
for the protection of the species and its habitat. The activities 
affecting lesser prairie-chicken habitat are largely land use practices 
and land development without regulations ameliorating the primary 
threats to the lesser prairie-chicken.
Conservation Efforts
    Below we include a summary of conservation efforts; for a complete 
description of these conservation efforts please see the SSA report 
(Service 2022, pp. 49-62). All of the conservation measures discussed 
in the SSA report were incorporated into the analysis of the species' 
current and future condition. Some programs are implemented across the 
species' range, and others are implemented at the State or local level. 
Because the vast majority of lesser prairie-chicken and their habitat 
occurs on private lands, most of these programs are targeted toward 
voluntary, incentive-based actions in cooperation with private 
landowners.
    At the rangewide scale, plans include the Lesser Prairie-Chicken 
Rangewide Conservation Plan, the Lesser Prairie-Chicken Initiative, and 
the Conservation Reserve Program. Below is a summary of the primary 
rangewide conservation efforts. For detailed descriptions of each 
program, please see the SSA report. All existing ongoing conservation 
efforts were fully considered in our determination on the status of the 
two DPSs.
    In 2013, the State fish and wildlife agencies within the range of 
the lesser prairie-chicken and the Western Association of Fish and 
Wildlife Agencies (WAFWA) finalized the Lesser Prairie-Chicken Range-
wide Conservation Plan (RWP) in response to concerns about threats to 
lesser prairie-chicken habitat and resulting effects to lesser prairie-
chicken populations (Van Pelt et al. 2013, entire). The RWP established 
biological goals and objectives as well as a conservation targeting 
strategy that aims to unify conservation efforts towards common goals. 
Additionally, the RWP established a mitigation framework administered 
by WAFWA that allows industry participants the opportunity to mitigate 
unavoidable impacts of a particular activity on the lesser prairie-
chicken. After approval of the RWP, WAFWA developed a companion oil and 
gas candidate conservation agreement with assurances (CCAA), which 
adopted the mitigation framework contained within the RWP that was 
approved in 2014.
    As of August 1, 2020, WAFWA had used incoming funds from industry 
participants to place 22 sites totaling 128,230 unimpacted ac (51,893 
ha) under conservation contracts to provide offset for industry impacts 
that have occurred through the RWP and CCAA (Moore 2020, p. 9). Of 
those sites, 35,635 unimpacted ac (14,421 ha) are permanently protected 
and 92,595 unimpacted ac (37,472 ha) are being managed under 10-year 
term agreements. Landowners who enroll agree to implement actions to 
restore or enhance their lands for the lesser prairie-chicken. These 
actions may include restoration actions (such as removal of woody 
vegetation) or enhancement actions (such as implementation of a grazing 
management plan designed for their property). These areas are enrolled 
under RWP conservation contracts that will provide mitigation for 1,538 
projects, which impacted 48,743 ac (19,726 ha) (WAFWA 2020, table 32, 
unpaginated). When enrolling a property, industry participants agree to 
minimize impacts from projects to lesser prairie-chicken habitat and 
mitigate for all remaining impacts on the enrolled property.
    At the end of 2021 in the CCAA, there were 111 active contracts 
(Certificates of Inclusion) with 6,226,140 ac (2,519,629 ha) enrolled 
(WAFWA 2022, p. 4), and in the WAFWA Conservation Agreement there were 
52 active WAFWA Conservation Agreement contracts (Certificates of 
Participation) with 599,626 ac (242,660 ha) enrolled (WAFWA 2020, table 
5 unpaginated) by industry participants. These acres of industry 
enrollment are areas where industry participants have agreed to 
implement minimization measures and to pay mitigation fees to offset 
the remaining impacts. A recent audit of the mitigation program 
associated with the RWP and CCAA identified several key issues to be 
resolved within the program to ensure financial stability and effective 
conservation outcomes (Moore 2020, appendix E). WAFWA has hired a 
consultant who is currently working with stakeholders, including the 
Service, to consider available options to address the identified issues 
to ensure long-term durability of the strategy.
    In 2010, the USDA's Natural Resources Conservation Service (NRCS) 
began implementation of the Lesser Prairie-Chicken Initiative (LPCI). 
The LPCI provides conservation assistance, both technical and 
financial, to landowners throughout the LPCI's administrative boundary 
(NRCS 2017, p. 1). The LPCI focuses on maintenance and enhancement of 
lesser prairie-chicken habitat while benefiting agricultural producers 
by maintaining the farming and ranching operations throughout the 
region. In 2019, after annual declines in landowner interest in LPCI, 
the NRCS made changes in how LPCI will be implemented moving forward 
and initiated conferencing under section 7 of the Act with the Service. 
Prior to 2019, participating landowners had to address all threats to 
the lesser prairie-chicken present on their property. In the future, 
each conservation plan developed under LPCI will only need to include 
one or more of the core management practices that include prescribed 
grazing, prescribed burning, brush management, and upland wildlife 
habitat management. Additional management practices may be incorporated 
into each conservation plan, as needed, to facilitate meeting the 
desired objectives. 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-chicken. From 2010 through 2019, NRCS 
worked with 883 private

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agricultural producers to implement conservation practices on 1.6 
million ac (647,497 ha) of working lands within the historical range of 
the lesser prairie-chicken (NRCS 2020, p. 2). During that time, through 
LPCI, NRCS implemented prescribed grazing plans on 680,800 ac (275,500 
ha) across the range (Griffiths 2020, pers. comm.). Through LPCI, NRCS 
has also removed over 41,000 ac (16,600 ha) of eastern red cedar in the 
Mixed-Grass Ecoregion and chemically treated approximately 106,000 ac 
(43,000 ha) of mesquite in the Shinnery Oak Ecoregion. Lastly, NRCS has 
conducted prescribed burns on approximately 15,000 ac (6,000 ha) during 
this time.
    The Conservation Reserve Program (CRP) is administered by the 
USDA's Farm Service Agency and provides short-term protection and 
conservation benefits on 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 in exchange for removing cropland and certain marginal 
pastureland from agricultural production. CRP contract terms are for 10 
to 15 years. The total amount of land that can be enrolled in the CRP 
is capped nationally by the Food Security Act of 1985, as amended (the 
2018 Farm Bill) at 27 million ac (10.93 million ha). All five States 
within the range of the lesser prairie-chicken have lands enrolled in 
the CRP. The 2018 Farm Bill maintains the acreage limitation that not 
more than 25 percent of the cropland in any county can be enrolled in 
CRP, with specific conditions under which a waiver to this restriction 
can be provided for lands enrolled under the Conservation Reserve 
Enhancement Program (84 FR 66813, December 6, 2019). Over time, CRP 
enrollment fluctuates both nationally and locally. Within the counties 
that intersect the Estimated Occupied Range plus a 10-mile buffer 
(EOR+10), acres enrolled in CRP have declined annually since 2007 (with 
the exception of one minor increase from 2010 to 2011) from nearly 6 
million ac (2.4 million ha) enrolled to current enrollment levels of 
approximately 4.25 million ac (1.7 million ha) (FSA 2020a, unpublished 
data). The EOR+10 is a 10-mile buffer of the EOR often referenced in 
lesser prairie-chicken planning efforts but also contains significant 
areas that do not support the biotic and abiotic characteristics 
required by the lesser prairie-chicken. More specific to our analysis 
area, current acreage of CRP enrollment is approximately 1,822,000 ac 
(737,000 ha) within our analysis area. Of those currently enrolled 
acres there are approximately 120,000 ac (49,000 ha) of introduced 
grasses and legumes dispersed primarily within the Mixed-Grass and 
Shinnery Oak Ecoregions (FSA 2020b, unpublished data).
    At the State level, programs provide direct technical and financial 
cost-share assistance to private landowners interested in voluntarily 
implementing conservation management practices to benefit species of 
greatest conservation need--including the lesser prairie-chicken. 
Additionally, a variety of State-level conservation efforts acquire and 
manage lands or incentivize management by private landowners for the 
benefit of the lesser prairie-chicken. Below is a summary for each 
State within the range of the lesser prairie-chicken. For a complete 
description of each, see the SSA report. All conservation measures 
discussed in the SSA report were fully considered in this final rule.
    Within the State of Kansas, conservation efforts are administered 
by the Kansas Department of Wildlife and Parks (KDWP), The Nature 
Conservancy, and the Service's Partners for Fish and Wildlife Program 
(PFW). KDWP has targeted lesser prairie-chicken habitat improvements on 
private lands by leveraging landowner cost-share contributions, 
industry and nongovernmental organizations' cash contributions, and 
agency funds toward several federally funded grant programs. The KDWP 
has implemented conservation measures over 22,000 ac (8,900 ha) through 
the Landowner Incentive Program, over 18,000 ac (7,285 ha) through the 
State Wildlife Grant Private Landowner Program, 30,000 ac (12,140 ha) 
through the Wildlife Habitat Incentives Program, and 12,000 ac (4,855 
ha) through the Habitat First Program within the range of the lesser 
prairie-chicken. Additionally, KDWP was provided an opportunity through 
contributions from the Comanche Pool Prairie Resource Foundation to 
leverage additional Wildlife and Sport Fish Restoration funds in 2016 
to direct implementation of 19,655 ac (7,954 ha). The Nature 
Conservancy in Kansas manages the 18,060-ac (7,309-ha) Smoky Valley 
Ranch. The Nature Conservancy also serves as the easement holder for 
nearly 34,000 ac (13,760 ha) of properties that are enrolled under the 
RWP. The Nature Conservancy is also working to use funds from an NRCS 
Regional Conservation Partnership Program that have resulted in nearly 
50,000 ac (20,235 ha) on three ranches either with secured or in-
process conservation easements. These easements would restrict future 
development and would ensure management is compatible for the 
conservation of the lesser prairie-chicken. Our PFW program has 
executed 95 private lands agreements with improvements on about 173,000 
ac (70,011 ha) of private lands benefitting conservation of the lesser 
prairie-chicken in Kansas. The primary activities being implemented on 
these acres include: efforts to control and eradicate invasive, woody 
plant species such as eastern red cedar; grazing management; and 
enhanced use of prescribed fire to improve habitat conditions in native 
grasslands.
    In 2009, Colorado Parks and Wildlife (CPW) initiated its Lesser 
Prairie-Chicken Habitat Improvement Program that provides cost-sharing 
to private landowners who participate in practices such as deferred 
grazing around active leks, enhancement of fields enrolled in CRP and 
cropland-to-grassland habitat conversion. Since program inception, CPW 
has completed 37,051 ac (14,994 ha) of habitat treatments. The Nature 
Conservancy holds permanent conservation easements on multiple ranches 
that make up the Big Sandy complex. Totaling approximately 48,940 ac 
(19,805 ha), this complex is managed with lesser prairie-chicken as a 
conservation objective and perpetually protects intact sand sagebrush 
and short-grass prairie communities. The USFS currently manages the 
Comanche Lesser Prairie-Chicken Habitat Zoological Area, as part of the 
Comanche and Cimarron National Grasslands, which encompass an area of 
10,177 ac (4,118 ha) in Colorado that is managed to benefit the lesser 
prairie-chicken (USFS 2014, p. 9). In 2016, CPW and KDWP partnered with 
Kansas State University and USFS to initiate a 3-year translocation 
project to restore lesser prairie-chicken to the Comanche National 
Grasslands (Colorado) and Cimarron National Grasslands (Kansas). 
Beginning in the fall of 2016 and concluding with the 2019 spring 
lekking season, the partnership trapped and translocated 411 lesser 
prairie-chickens from the Short-Grass/CRP Ecoregion in Kansas to the 
Sand Sagebrush Ecoregion. During April and May 2020 lek counts, 
Colorado and Kansas biologists and technicians found 115 male birds on 
20 active leks in the landscape around the Comanche and Cimarron 
National Grasslands (Rossi 2020, pers. comm.). During lek counts in 
2021, 65 males on 15 leks were documented in the release area (CPW 
2021).
    In 2013, the FWS issued the Oklahoma Department of Wildlife

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Conservation (ODWC) a 25-year enhancement of survival permit pursuant 
to section 10(a)(1)(A) of the Act that included an umbrella CCAA 
between the Service and ODWC for the lesser prairie-chicken in 14 
Oklahoma counties (78 FR 14111, March 4, 2013). As of 2019, there were 
84 participants with a total of 399,225 ac (161,561 ha) enrolled in the 
ODWC CCAA, with 357,654 ac (144,737) enrolled as conservation acres 
(ODWC 2020). The difference between total acres enrolled and 
conservation acres enrolled is because, while a landowner may enroll 
their entire property, not all of those acres provide habitat for the 
lesser prairie-chicken. Landowners who agree to enroll in the CCAA 
agree to implement measures, primarily prescribed grazing, to enhance 
or restore habitat for the lesser prairie-chicken. The ODWC owns six 
wildlife management areas totaling approximately 75,000 ac (30,351 ha) 
in the range of the lesser prairie-chicken, though only a portion of 
each wildlife management area can be considered as conservation acres 
for lesser prairie-chicken because not all acres of the wildlife 
management areas are habitat for the species. Our PFW program has 
funded a shared position with ODWC for 6 years to conduct CCAA 
monitoring and, in addition, has provided funding for on-the-ground 
work in the lesser prairie-chicken range. Since 2017, the Oklahoma PFW 
program has implemented 51 private lands agreements on about 10,603 ac 
(4,291 ha) for the benefit of the lesser prairie-chicken in Oklahoma. 
On these acres conservation measures may include control of eastern red 
cedar, native grass planting, and fence marking and removal to minimize 
collision mortality. The Nature Conservancy of Oklahoma manages the 
4,050-ac (1,640-ha) Four Canyon Preserve in Ellis County for ecological 
health to benefit numerous short-grass prairie species, including the 
lesser prairie-chicken. In 2017, The Nature Conservancy acquired a 
conservation easement on 1,784 ac (722 ha) in Woods County which 
restricts future development and ensures sustainable management is 
occurring. The Conservancy is seeking to permanently protect additional 
acreage in the region through the acquisition of additional 
conservation easements.
    Texas Parks and Wildlife Department (TPWD) worked with the Service 
and landowners to develop the first State-wide umbrella CCAA for the 
lesser prairie-chicken in Texas, which was finalized in 2006. The Texas 
CCAA covers 50 counties, largely encompassing the Texas Panhandle and 
South Plains. Total landowner participation by the close of January 
2020 was 91 properties totaling approximately 657,038 ac (265,894 ha) 
enrolled in 15 counties (TPWD 2020, entire). On these acres 
conservation measures would generally consist of prescribed grazing; 
prescribed burning; brush management; cropland and residue management; 
range seeding and enrollment in various other Federal or State programs 
to provide financial assistance to implement these measures. Our PFW 
program and the TPWD have actively collaborated on range management 
programs designed to provide cost-sharing for implementation of habitat 
improvements for lesser prairie-chicken. In the past 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 Landowner Incentive Program 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 used these and other funds to address lesser 
prairie-chicken conservation on 14,068 ac (5,693 ha) under the 
Landowner Incentive Program. Typical conservation measures include 
native plant restoration, control of exotic or invasive vegetation, 
prescribed burning, selective brush management, and prescribed grazing. 
The PFW program in Texas has executed 66 private lands agreements on 
about 131,190 ac (53,091 ha) of privately owned lands for the benefit 
of the lesser prairie-chicken in Texas. The Nature Conservancy of Texas 
acquired approximately 10,635 ac (4,303 ha) in Cochran, Terry, and 
Yoakum Counties. In 2014, The Nature Conservancy donated this land to 
TPWD. The TPWD acquired an additional 3,402 ac (1,377 ha) contiguous to 
the Yoakum Dunes Preserve creating the 14,037-ac (5,681-ha) Yoakum 
Dunes Wildlife Management Area. In 2015, through the RWP process, WAFWA 
acquired an additional 1,604 ac (649 ha) in Cochran County, nearly 3 mi 
(5 km) west of the Yoakum Dunes Wildlife Management Area. The land was 
deeded to TPWD soon after acquisition. In 2016, an additional 320 ac 
(129 ha) was purchased by TPWD bordering the WAFWA-acquired tract 
creating an additional 1,924-ac (779-ha) property that is being managed 
(including prescribed grazing and invasive species control) as part of 
the Yoakum Dunes Wildlife Management Area, now at 15,961 ac (6,459 ha).
    The BLM's Special Status Species RMPA, which was approved in April 
2008, 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 (BLM 2008, entire). Since the RMPA was 
approved in 2008, BLM has closed approximately 300,000 ac (121,000 ha) 
to future oil and gas leasing and closed approximately 850,000 ac 
(344,000 ha) to wind and solar development (BLM 2008, p. 3). From 2008 
to 2020, they have reclaimed 3,500 ac (1,416 ha) of abandoned well pads 
and associated roads and required burial of power lines within 2 mi 
(3.2 km) of lesser prairie-chicken leks. Additionally, BLM has 
implemented control efforts for mesquite on 832,104 ac (336,740 ha) and 
has plans to do so on an additional 30,000 ac (12,141 ha) annually. In 
2010, BLM acquired 7,440 ac (3,010 ha) of land east of Roswell, New 
Mexico, to complete the 54,000-ac (21,853-ha) ACEC for lesser prairie-
chicken, which is managed to protect key habitat.
    Following approval of the RMPA, a candidate conservation agreement 
(CCA) and CCAA was drafted by a team including the Service, BLM, Center 
of Excellence for Hazardous Material Management (CEHMM), and 
participating cooperators to address the conservation needs of the 
lesser prairie-chicken and the dunes sagebrush lizard. Since the CCA 
and CCAA were finalized in 2008, 43 oil and gas companies have enrolled 
a total of 1,964,163 ac (794,868 ha) in the historical range of the 
lesser prairie-chicken. By enrolling these lands, industry participants 
have agreed to implement conservation measures aimed to minimize 
impacts of their development activities to the lesser prairie-chicken 
and pay fees to offset the remaining impacts. In addition, 72 ranchers 
in New Mexico and the New Mexico Department of Game and Fish have 
enrolled a total of 2,055,461 ac (831,815 ha). The New Mexico State 
Land Office has enrolled a total of 406,673 ac (164,575 ha) in the 
historical range of the lesser prairie-chicken. By enrolling, the 
Department of Game and Fish, State Land Office, and landowners agree to 
follow grazing management standards established in the agreement, 
limiting development actions where the landowner has discretion, limit 
herbicide use, and other actions as identified in the agreement. The 
CCA and CCAA have treated 79,297 ac (32,090 ha) of mesquite and 
reclaimed

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154 abandoned well pads and associated roads. CEHMM has also removed 
7,564 ac (3,061 ha) of dead, standing mesquite, and has another 12,000 
ac (5,000 ha) scheduled in the upcoming 2 years.
    The Nature Conservancy owns and manages the 28,000-ac (11,331-ha) 
Milnesand Prairie Preserve near Milnesand, New Mexico. Additionally, 
the New Mexico Department of Game and Fish (NMDGF) has designated 30 
Prairie Chicken Areas (PCAs) specifically for management of the lesser 
prairie-chicken ranging in size from 28 to 7,189 ac (11 to 2,909 ha) 
and totaling more than 27,262 ac (11,033 ha). More recently, NMDGF 
purchased an additional 7,417-ac (3,000-ha) property that connects two 
of the previously owned PCAs that will create a 9,817-ac (4,000-ha) 
contiguous property. In 2007, the State Game Commission used New Mexico 
State Land Conservation Appropriation funding to acquire 5,285 ac 
(2,137 ha) of private ranchland in Roosevelt County. Our PFW program in 
New Mexico has contributed financial and technical assistance for 
restoration and enhancement activities benefitting the lesser prairie-
chicken in New Mexico. In 2016, the PFW program executed a private land 
agreement on 630 ac (255 ha) for treating invasive species with a 
prescribed burn. In 2020 the PFW program executed a private land 
agreement for a prescribed burn on 155 ac (63 ha).
Conditions and Trends

Rangewide Trends

    The lesser prairie-chicken estimated historical range encompasses 
an area of approximately 115 million ac (47 million ha). As discussed 
in Background, not all of the area within this historical range was 
evenly occupied by lesser prairie-chicken, and some of the area may not 
have been suitable to regularly support lesser prairie-chicken 
populations (Boal and Haukos 2016, p. 6). However, the current range of 
the lesser prairie-chicken has been significantly reduced from the 
historical range, and estimates of the reduction vary from greater than 
90 percent (Hagen and Giesen 2005, unpaginated) to approximately 83 
percent (Van Pelt et al. 2013, p. 3).
    We estimated the current amount and configuration of potential 
lesser prairie-chicken usable area within the analysis area using the 
geospatial analysis described in the SSA report (Service 2022, section 
3.2; appendix B, parts 1, 2, and 3) and considering existing impacts as 
described above. The total area of all potential usable (land cover 
that may be consistent with lesser prairie-chicken areas that have the 
potential to support lesser prairie-chicken use) and potential usable, 
unimpacted land cover (that is, not impacted by landscape features) 
categories in each ecoregion and rangewide is shown below in table 1.
    To assess lesser prairie-chicken habitat at a larger scale and 
incorporate some measure of connectivity and fragmentation, we then 
grouped the areas of potential usable, unimpacted land cover based on 
the proximity of other areas with potential usable, unimpacted lesser 
prairie-chicken land cover. To do this, we used a ``nearest neighbor'' 
geospatial process to determine how much potential usable land cover is 
within 1 mi (1.6 km) of any area of potential usable land cover. This 
nearest neighbor analysis gives an estimate of how closely potential 
usable, unimpacted land cover is clustered together, versus spread 
apart, from other potential usable, unimpacted land cover. Areas with 
at least 60 percent potential usable, unimpacted land cover within 1 mi 
(1.6 km) were grouped. The 60 percent threshold was chosen because 
maintaining grassland in large blocks is vital to conservation of the 
species (Ross et al. 2016a, entire; Hagen and Elmore 2016, entire; 
Spencer et al. 2017, entire; Sullins et al. 2019, entire), and these 
studies indicate that landscapes consisting of greater than 60 percent 
grassland are required to support lesser prairie-chicken populations. 
This approach eliminates small, isolated, and fragmented patches of 
otherwise potential usable land cover that are not likely to support 
persistent populations of the lesser prairie-chicken. A separate 
analysis found that the areas with 60 percent or greater unimpacted 
potential usable land cover within 1 mi (1.6 km) captured approximately 
90 percent of known leks (Service 2022, appendix B, part 3).

Table 1--Results of Lesser Prairie-Chicken Geospatial Analysis by Ecoregion and Rangewide, Estimating Total Area
              in Acres, Potential Usable Area, and Area Calculated by Our Nearest Neighbor Analysis
                        [All numbers are in acres. Numbers may not sum due to rounding.]
----------------------------------------------------------------------------------------------------------------
                                                                                      Nearest
                    Ecoregion                        Ecoregion       Potential       neighbor       % of total
                                                    total area      usable area      analysis          area
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP.................................       6,298,014       2,961,318       1,023,894            16.3
Mixed-Grass.....................................       8,527,718       6,335,451         994,483            11.7
Sand Sagebrush..................................       3,153,420       1,815,435       1,028,523            32.6
Northern DPS total..............................      17,979,152      11,112,204       3,046,900            16.9
Shinnery Oak (Southern DPS total)...............       3,850,209       2,626,305       1,023,572            26.6
                                                 ---------------------------------------------------------------
    Rangewide Totals............................      21,829,361      13,738,509       4,070,472            18.6
----------------------------------------------------------------------------------------------------------------

    The results of the nearest neighbor analysis indicate that about 19 
percent of the entire analysis area and from 12 percent to 33 percent 
within each of the four ecoregions is available for use by the lesser 
prairie-chicken. Due to limitations in data availability and accuracy 
as well as numerous limitations with the methodology and assumptions 
made for this analysis, this estimate should not be viewed as a precise 
measure of the lesser prairie-chicken habitat; instead, it provides a 
generalized baseline to characterize the current condition and by which 
we can then forecast the effect of future changes.
    In the SSA report, we also considered trends in populations. 
Estimates of population abundance prior to the 1960s are indeterminable 
and rely almost entirely on anecdotal information (Boal and Haukos 
2016, p. 6). While little is known about precise historical population 
sizes, the lesser prairie-chicken was reported to be quite common 
throughout its range 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). In the 
1960s, State fish and wildlife agencies began routine lesser prairie-
chicken monitoring efforts that have largely continued to today.

[[Page 72699]]

    In the SSA report and this final rule, we discuss lesser prairie-
chicken population estimates from two studies. The first study 
calculated historical trends in lesser prairie-chicken abundances from 
1965 through 2016 based on population reconstruction methods and 
historical lek surveys (Hagen et al. 2017, pp. 6-9). The results of 
these estimates indicate that lesser prairie-chicken rangewide 
abundance (based on a minimum estimated number of male lesser prairie-
chicken) peaked from 1965-1970 at a mean estimate of about 175,000 
males. The mean population estimates maintained levels of greater than 
100,000 males until 1989, after which they steadily declined to a low 
of 25,000 males in 1997 (Garton et al. 2016, p. 68). The mean 
population estimates following 1997 peaked again at about 92,000 males 
in 2006 but subsequently declined to 34,440 males in 2012. This 2006 
peak was far below the 1965-1970 estimated peak, demonstrating that the 
species did not achieve its prior peak population level. We identified 
concerns in the past with some of the methodologies and assumptions 
made in this analysis, and the challenges of these data are noted in 
other studies (for example, Zavaleta and Haukos 2013, p. 545; Cummings 
et al. 2017, pp. 29-30). While these concerns remain, including the 
very low sample sizes particularly in the 1960s, this work represents 
the only attempt to compile the extensive historical ground lek count 
data collected by State agencies to estimate rangewide population 
sizes. Approximate distribution of lek locations as reported by WAFWA 
for the entire range that were observed occupied by lesser prairie-
chicken at least once between 2015 and 2019 are shown in the SSA report 
(Service 2022, appendix E, figure E.7).
    Following development of aerial survey methods (McRoberts et al. 
2011, entire), more statistically rigorous estimates of lesser prairie-
chicken abundance (both males and females) have been conducted by 
flying aerial line-transect surveys throughout the range of the lesser 
prairie-chicken and extrapolating densities from the surveyed area to 
the rest of the range beginning in 2012 (Nasman et al. 2022, entire). 
The aerial survey results from 2012 through 2022 estimated the lesser 
prairie-chicken population abundance, averaged over the most recent 5 
years of surveys (2017-2022, no surveys in 2019), at 32,210 (90 percent 
CI: 11,489, 64,303) (Nasman et al. 2022, p. 16; table 10). The results 
of these survey efforts should not be taken as precise estimates of the 
annual lesser prairie-chicken population abundance, as indicated by the 
large confidence intervals. Thus, the best use of this data is for 
long-term trend analysis rather than for conclusions based on annual 
fluctuations. As such, we report the population estimate for the 
current condition as the average of the past 5 years of surveys.

Table 2--Rangewide and Ecoregional Estimated Lesser Prairie-Chicken Total Population Sizes Averaged From 2017 to
    2022, Lower and Upper 90 Percent Confidence Intervals (CI) Over the 5 Years of Estimates, and Percent of
    Rangewide Totals for Each Ecoregion (From Nasman et al. 2022, p. 16). No Surveys Were Conducted in 2019.
----------------------------------------------------------------------------------------------------------------
                                                      5-Year          5-Year          5-Year
                    Ecoregion                         average     minimum  lower  maximum  upper    Percent of
                                                     estimate           CI              CI             total
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP.................................          23,083           9,653          39,934              72
Mixed-Grass.....................................           5,024           1,601          10,481              15
Sand Sagebrush..................................           1,297              56           4,881               4
Shinnery Oak....................................           2,806             179           9,007               9
                                                 ---------------------------------------------------------------
    Rangewide Totals............................          32,210          11,489          64,303             100
----------------------------------------------------------------------------------------------------------------

    We now discuss habitat impacts and population trends in each 
ecoregion and DPS throughout the range of the lesser prairie-chicken.

Southern DPS

    Using our geospatial analysis, we were able to explicitly account 
for habitat loss and fragmentation and quantify the current condition 
of the Shinnery Oak Ecoregion. Of the sources of habitat loss and 
fragmentation that have occurred, cropland conversion, roads, and 
encroachment of woody vegetation had the largest impacts on land cover 
in the Southern DPS (Table 3). Based on our nearest neighbor analysis, 
we estimated there are approximately 1,023,572 ac (414,225 ha) or 27 
percent of the ecoregion and the Southern DPS potentially available for 
use by lesser prairie-chicken (table 1).

   Table 3--Estimated Areas of Current Direct and Indirect Impacts, by
 Impact Source, and the Proportion of the Total Area of the Shinnery Oak
       Ecoregion Estimated To Be Impacted (See Table 1 for Totals)
   [Impacts are not necessarily cumulative because of overlap of some
             impacted areas by more than one impact source.]
------------------------------------------------------------------------
                                                            Percent of
             Impact Sources                    Acres         ecoregion
------------------------------------------------------------------------
                  Shinnery Oak Ecoregion (Southern DPS)
------------------------------------------------------------------------
Cropland Conversion.....................         540,120              14
Petroleum Production....................         161,652               4
Wind Energy Development.................          90,869               2
Transmission Lines......................         372,577              10
Woody Vegetation Encroachment...........         617,885              16
Roads...................................         742,060              19
                                         -------------------------------
    Total Ecoregion/Southern DPS Area...       3,850,209
------------------------------------------------------------------------


[[Page 72700]]

    Based on population reconstruction methods, the mean population 
estimate ranged between about 5,000 to 12,000 males through 1980, 
increased to 20,000 males in the mid-1980s and declined to ~1,000 males 
in 1997 (Hagen et al. 2017, pp. 6-9). The mean population estimate 
peaked again to ~15,000 males in 2006 and then declined again to fewer 
than 3,000 males in the mid-2010s.
    Aerial surveys have been conducted to estimate lesser prairie-
chicken population abundance since 2012, and results in the Shinnery 
Oak Ecoregion from 2012 through 2022 indicate that this ecoregion has 
the third highest population size (Nasman et al. 2022, p. 16) of the 
four ecoregions. Average estimates from 2017 to 2022 are 2,806 birds 
(90 percent CI: 179, 9,007), representing about 9 percent of the 
rangewide total (table 2). Recent estimates have varied between fewer 
than 1,000 birds in 2015 to more than 5,000 birds in 2020 and 
decreasing to fewer than 1,000 birds again in 2022 (see also Service 
2022, appendix E, figure E.7).

Northern DPS

    Prairies of the Short-Grass/CRP Ecoregion have been significantly 
altered since European settlement of the Great Plains. Much of these 
prairies has been converted to other land uses such as cultivated 
agriculture, roads, power lines, petroleum production, wind energy, and 
transmission lines. Some areas have also been altered due to woody 
vegetation encroachment. Within this ecoregion, it has been estimated 
that about 73 percent of the landscape has been converted to cropland 
with 7 percent of the area in CRP (Dahlgren et al. 2016, p. 262). 
According to our GIS analysis, of the sources of habitat loss and 
fragmentation that have occurred, conversion to cropland has had the 
single largest impact on land cover in this ecoregion (table 4). Based 
on our nearest neighbor analysis, we estimated approximately 1,023,894 
ac (414,355 ha), or 16 percent of the ecoregion, is potentially 
available for use by lesser prairie-chicken (table 1).

   Table 4--Estimated Areas of Current Direct and Indirect Impacts, by
 Impact Source, and the Proportion of the Total Area of the Short-Grass/
     CRP Ecoregion Estimated To Be Impacted (See Table 1 for Totals)
   [Impacts are not necessarily cumulative because of overlap of some
             impacted areas by more than one impact source.]
------------------------------------------------------------------------
                                                            Percent of
             Impact sources                    Acres         ecoregion
------------------------------------------------------------------------
                        Short-Grass/CRP Ecoregion
------------------------------------------------------------------------
Cropland Conversion.....................       2,333,660              37
Petroleum Production....................         248,146               4
Wind Energy Development.................         145,963               2
Transmission Lines......................         436,650               7
Woody Vegetation Encroachment...........         284,175               5
Roads...................................       1,075,931              17
                                         -------------------------------
    Total Ecoregion Area................       6,298,014
------------------------------------------------------------------------

    Based on population reconstruction methods, the mean population 
estimate for this ecoregion increased from a minimum of about 14,000 
males in 2001 and peaked at about 21,000 males in 2011 (Hagen et al. 
2017, pp. 8-10; see also Service 2022, figure 3.3).
    Aerial surveys since 2012 indicate that the Short-Grass/CRP 
Ecoregion (figure 3.4) has the largest population size (Nasman et al. 
2022, p. 16) of the four ecoregions. Average estimates from 2017 to 
2022 are 23,083 birds (90 percent CI: 9,653, 39,934), making up about 
72 percent of the rangewide lesser prairie-chicken total (table 2).
    Much of the Mixed-Grass Ecoregion was originally fragmented by 
home-steading, which subdivided tracts of land into small parcels of 
160-320 ac (65-130 ha) in size (Rodgers 2016, p. 17). As a result of 
these small parcels, road and fence densities are higher compared to 
other ecoregions and, therefore, increase habitat fragmentation and 
pose higher risk for collision mortalities than in other ecoregions 
(Wolfe et al. 2016, p. 302). Fragmentation has also occurred due to oil 
and gas development, wind energy development, transmission lines, 
highways, and expansion of invasive woody plants such as eastern red 
cedar. A major concern for lesser prairie-chicken populations in this 
ecoregion is the loss of grassland due to the rapid westward expansion 
of the eastern red-cedar (NRCS 2016, p. 16). Oklahoma Forestry Services 
estimated the average rate of expansion of eastern red-cedar in 2002 to 
be 762 ac (308 ha) per day (Wolfe et al. 2016, p. 302).

   Table 5--Estimated Areas of Current Direct And Indirect Impacts, by
  Impact Source, and the Proportion (Percent) of the Total Area of the
 Mixed-Grass Ecoregion Estimated To Be Impacted (See Table 1 for Totals)
   [Impacts are not necessarily cumulative because of overlap of some
             impacted areas by more than one impact source.]
------------------------------------------------------------------------
                                                            Percent of
             Impact Sources                    Acres         Ecoregion
------------------------------------------------------------------------
                          Mixed-Grass Ecoregion
------------------------------------------------------------------------
Cropland Conversion.....................       1,094,688              13
Petroleum Production....................         859,929              10
Wind Energy Development.................         191,571               2
Transmission Lines......................         576,713               7
Woody Vegetation Encroachment...........       2,047,510              24
Roads...................................       1,732,050              20
                                         -------------------------------

[[Page 72701]]

 
    Total Ecoregion Area................       8,527,718
------------------------------------------------------------------------

    Using our geospatial analysis, we were able to explicitly account 
for habitat loss and fragmentation and quantify the current condition 
of this ecoregion for the lesser prairie-chicken. Of the sources of 
habitat loss and fragmentation that have occurred, encroachment of 
woody vegetation had the largest impact, with conversion to cropland, 
roads, and petroleum production also having significant impacts on land 
cover in this ecoregion (table 5). Based on our nearest neighbor 
analysis, we estimated there are approximately 994,483 ac (402,453 ha) 
or 12 percent of the ecoregion, that is potentially available for use 
by lesser prairie-chicken (table 1).
    The Mixed-Grass Ecoregion historically contained the highest lesser 
prairie-chicken densities (Wolfe et al. 2016, p. 299). Based on 
population reconstruction methods, the mean population estimate for 
this ecoregion in the 1970s and 1980s was around 30,000 males (Hagen et 
al. 2017, pp. 6-7). Population estimates declined in the 1990s and 
peaked again in the early 2000s at around 25,000 males, before 
declining and remaining at its lowest levels, fewer than 10,000 males 
in 2012, since the late 2000s (Hagen et al. 2017, pp. 6-7).
    Aerial surveys from 2012 through 2022 indicate this ecoregion has 
the second highest population size of the four ecoregions (Nasman et 
al. 2022, p. 16). Average estimates from 2017 to 2022 are 5,024 birds 
(90 percent CI: 1,601, 10,481), representing about 15 percent of the 
rangewide total (table 2). Results show minimal variation in recent 
years.
    Prairies of the Sand Sagebrush Ecoregion have been influenced by a 
variety of activities since European settlement of the Great Plains. 
Much of these grasslands have been converted to other land uses such as 
cultivated agriculture, roads, power lines, petroleum production, wind 
energy, and transmission lines. Some areas have also been altered due 
to woody vegetation encroachment. Only 26 percent of historical sand 
sagebrush prairie is available as potential nesting habitat for lesser 
prairie-chicken (Haukos et al. 2016, p. 285). Using our geospatial 
analysis, we were able to explicitly account for habitat loss and 
fragmentation and quantify the current condition of this ecoregion for 
the lesser prairie-chicken. Of the sources of habitat loss and 
fragmentation that have occurred, conversion to cropland has had the 
single largest impact on land cover in this ecoregion (table 6). Based 
on our nearest neighbor analysis, we estimated there are approximately 
1,028,523 ac (416,228 ha) or 33 percent of the ecoregion, potentially 
available for use by lesser prairie-chicken (table 1). In addition, 
habitat loss due to the degradation of the rangeland within this 
ecoregion continues to be a limiting factor for lesser prairie-chicken, 
and most of the existing birds within this ecoregion persist primarily 
on and near CRP lands. Drought conditions in the period 2011-2014 have 
expedited population decline (Haukos et al. 2016, p. 285).

   Table 6--Estimated Areas of Current Direct and Indirect Impacts, by
  Impact Source, and the Proportion (Percent) of the Total Area of the
   Sand Sagebrush Ecoregion Estimated To Be Impacted (See Table 1 for
                                Totals).
   [Impacts are not necessarily cumulative because of overlap of some
             impacted areas by more than one impact source.]
------------------------------------------------------------------------
                                                            Percent of
             Impact sources                    Acres         ecoregion
------------------------------------------------------------------------
                        Sand Sagebrush Ecoregion
------------------------------------------------------------------------
Cropland Conversion.....................         994,733              32
Petroleum Production....................         163,704               5
Wind Energy Development.................               0               0
Transmission Lines......................         167,240               5
Woody Vegetation Encroachment...........          68,147               2
Roads...................................         446,316              14
                                         -------------------------------
    Total Ecoregion Area................       3,153,420
------------------------------------------------------------------------

    Based on population reconstruction methods, the mean population 
estimate for this ecoregion peaked at greater than 90,000 males from 
1970 to 1975 and declined to its lowest level of fewer than 1,000 males 
in recent years.
    Aerial surveys from 2012 through 2022 indicate that this ecoregion 
has the lowest population size (Nasman et al. 2022, p. 16) of the four 
ecoregions. Average estimates from 2017 to 2022 are 1,297 birds (90 
percent CI: 56, 4,881) representing about 4 percent of the rangewide 
lesser prairie-chicken total (table 2). Recent results have been highly 
variable, with 2020 being the lowest estimate reported. Although the 
aerial survey results show 171 birds in this ecoregion in 2020 (with no 
confidence intervals because the number of detections were too low for 
statistical analysis), ground surveys in this ecoregion in Colorado and 
Kansas detected 406 birds, so we know the current population is 
actually larger than indicated by the aerial survey results (Rossi and 
Fricke, pers. comm.

[[Page 72702]]

2020, entire). Aerial surveys for 2021 estimated 440 birds (90 percent 
CI: 55, 963) for this ecoregion (Nasman et al. 2022, p. 16).
    Table 7 combines the estimated area impacted presented above for 
each of the three ecoregions into one estimate for each impact source 
for the Northern DPS.

   Table 7--Estimated Areas of Current Direct and Indirect Impacts, by
  Impact Source, and the Proportion (Percent) of the Total Area of the
     Northern DPS Estimated To Be Impacted (See Table 1 For Totals)
   [Impacts are not necessarily cumulative because of overlap of some
             impacted areas by more than one impact source.]
------------------------------------------------------------------------
             Impact Sources                    Acres      Percent of DPS
------------------------------------------------------------------------
                              Northern DPS
------------------------------------------------------------------------
Cropland Conversion.....................       4,423,081              25
Petroleum Production....................       1,271,779               7
Wind Energy Development.................         337,534               2
Transmission Lines......................       1,180,603               7
Woody Vegetation Encroachment...........       2,399,832              13
Roads...................................       3,254,297              18
                                         -------------------------------
    Total Northern DPS Area.............      17,979,152
------------------------------------------------------------------------

Future Condition

    As discussed above, we conducted a geospatial analysis to 
characterize the current condition of the landscape for the lesser 
prairie-chicken by categorizing land cover data (into potential usable, 
potential restoration, or nonusable categories), taking into account 
exclusion areas and impacts to remove nonusable areas. We further 
refined the analysis to account for connectivity by use of our nearest 
neighbor analysis as described in Rangewide Trends. We then used this 
geospatial framework to analyze the future condition for each 
ecoregion. To analyze future habitat changes, we accounted for the 
effects of both future loss of usable areas and restoration efforts by 
estimating the rate of change based on future projections (Service 
2022, figure 4.1).
    Due to uncertainties associated with both future conservation 
efforts and impacts, it is not possible to precisely quantify the 
effect of these future actions on the landscape. Instead, we 
established five future scenarios to represent a range of plausible 
outcomes based upon three plausible levels of conservation (restoration 
efforts) and three plausible levels of impacts. To account for some of 
the uncertainty in these projections, we combined the levels of impacts 
into five different scenarios labeled 1 through 5 (table 8). Scenario 1 
represents the scenario with low levels of future impacts and high 
levels of future restoration, and Scenario 5 represents the scenario 
with high impacts and low restoration. Scenarios 1 and 5 were used to 
frame the range of projected outcomes used in our model as they 
represent the low and high of likely projected outcomes. Scenarios 2, 
3, and 4 are model iterations that fall within the range bounded by 
scenarios 1 and 5 and have continuation of the current level of 
restoration efforts and vary impacts at low, mid, and high levels, 
respectively. These scenarios provide a wide range of potential future 
outcomes to consider in assessing lesser prairie-chicken habitat 
conditions.

    Table 8--Schematic of Future Scenarios for Lesser Prairie-Chicken
   Conservation Considering a Range of Future Impacts and Restoration
                                 Efforts
------------------------------------------------------------------------
                                    Levels of future change in  usable
                                                   area
            Scenario             ---------------------------------------
                                      Restoration           Impacts
------------------------------------------------------------------------
1...............................  High..............  Low.
2...............................  Continuation......  Low.
3...............................  Continuation......  Mid.
4...............................  Continuation......  High.
5...............................  Low...............  High.
------------------------------------------------------------------------

    To project the likely future effects of impacts and conservation 
efforts to the landscape as described through our land cover model, we 
quantified the three levels of future habitat restoration and three 
levels of future impacts within the analysis area by ecoregion on an 
annual basis. In addition to restoration efforts, we also quantified 
those efforts that enhance existing habitat. While these enhancement 
efforts do not increase the amount of available area and thus are not 
included in the spatial analysis, they are summarized in the SSA report 
and considered as part of the overall analysis of the biological status 
of the species. We then extrapolated those results over the next 25 
years. We chose 25 years as a period for which we had reasonable 
confidence in reliably projecting these future changes, and the 
timeframe corresponds with some of the long-term planning for the 
lesser prairie-chicken. A complete description of methodology used to 
quantify projections of impacts and future conservation efforts is 
provided in the SSA report (Service 2022, appendix C).
    Quantifying future conservation efforts in terms of habitat 
restoration allows us to account for the positive impact of those 
efforts within our analysis by converting areas of land cover that were 
identified as potential habitat in our current condition model to 
usable land cover for the lesser prairie-chicken in the future 
projections. Explicitly quantifying three levels of impacts in the 
future allows us to account for the effect of these impacts on the 
lesser prairie-chicken by converting areas identified as usable land 
cover in our current condition model to nonusable area that will not be 
available for use by the lesser prairie-chicken in the future.
    As we did for the current condition to assess habitat connectivity, 
after we characterized the projected effects of conservation and 
impacts on potential future usable areas, we grouped the areas of 
potential usable, unimpacted land cover on these new future landscape 
projections using our nearest neighbor analysis (Service 2022, pp. 21-
23; appendix B, parts 1, 2, and 3). Also, as done for the current 
condition, we evaluated the frequency of usable area blocks by size in 
order to evaluate habitat fragmentation and connectivity in the future 
scenarios (Service 2022, figure 4.2).

[[Page 72703]]

Threats Influencing Future Condition
    Following are summary evaluations of the expected future condition 
of threats analyzed in the SSA for the lesser prairie-chicken: effects 
associated with habitat degradation, loss, and fragmentation, including 
conversion of grassland to cropland (Factor A), petroleum production 
(Factor A), wind energy development and transmission (Factor A), woody 
vegetation encroachment (Factor A), and roads and electrical 
distribution lines (Factor A); and other factors, such as livestock 
grazing (Factor A), shrub control and eradication (Factor A), fire 
(Factor A); and climate change (Factor E).
    In this final rule, we do not present summary evaluations of the 
following threats as we have no information to project future trends, 
though we do expect them to have some effect on the species in the 
future: predation (Factor C), collision mortality from fences (Factor 
E), and influence of anthropogenic noise (Factor E). We also do not 
discuss the following threats, as they are having little to no impact 
on the species and its habitat currently, nor do we expect them to into 
the foreseeable future: hunting and other recreational, educational, 
and scientific use (Factor B); parasites and diseases (Factor C); and 
insecticides (Factor E).
    For the purposes of this assessment, we consider the foreseeable 
future to be the amount of time on which we can reasonably determine a 
likely threat's anticipated trajectory and the anticipated response of 
the species to that threat. For climate change, the time for which we 
can reliably project threats and the anticipated response is 
approximately 60 years. For many other threats impacting the lesser 
prairie-chicken throughout its range, we consider the time for which we 
can reliably project threats and the anticipated response to be 25 
years. This time period represents our best professional judgment of 
the foreseeable future conditions related to conversion of grassland to 
cropland, petroleum production, wind energy, and woody vegetation 
encroachment, and, as discussed above, is the time period used to 
project these threats in our geospatial analysis. For this period, we 
had reasonable confidence in projecting these future changes, and the 
timeframe corresponds with some of the long-term planning for the 
lesser prairie-chicken. For other threats and the anticipated species 
response, we can reliably project impacts and the species response for 
less than 25 years, such as livestock grazing, roads and electrical 
distribution lines, shrub control and eradication, and fire.
Habitat Loss and Fragmentation
    As discussed in ``Threats Influencing Current Condition,'' habitat 
loss and fragmentation is the primary concern for lesser prairie-
chicken viability. We discuss how each of these activities may 
contribute to future habitat loss and fragmentation for the lesser 
prairie-chicken and present the outcomes of the projections.

Conversion of Grassland to Cropland

    Because much of the lands capable of being used for row crops has 
already been converted to cultivated agriculture, we do not expect 
future rates of conversion to reach those witnessed historically; 
however, conversion has continued to occur (Lark 2020, entire). Rates 
of future conversion of grasslands to cultivated agriculture in the 
analysis area will be affected by multiple variables including site-
specific biotic and abiotic conditions as well as socioeconomic 
influences such as governmental agriculture programs, commodity prices, 
and the economic benefits of alternative land use practices.
    For the purposes of the SSA, we conducted an analysis to project 
the future rates of conversion of grassland to cropland at three 
different levels. We used information from aggregated remote sensing 
data from the USDA Cropland Data layer (Lark 2020, entire; Service 
2022, p. 83). Table 9 outlines the resulting three levels of projected 
habitat loss of future conversion of grassland to cultivated 
agriculture per ecoregion over the next 25 years. See the SSA report 
(Service 2022, appendix C) for further details and methodologies for 
these projections. While we do not expect future rates of conversion 
(from grassland to cropland) to be equivalent to those we have 
historically witnessed, the limited amount of large intact grasslands 
due to the historical extent of conversion means all future impacts are 
expected to have a disproportionate scale of impact.

  Table 9--Future Projection of Three Levels of Impacted Acres of Potential Usable Area for the Lesser Prairie-
           Chicken from Conversion of Grassland to Cropland Over the Next 25 Years in Each Ecoregion.
                                      [Numbers may not sum due to rounding]
----------------------------------------------------------------------------------------------------------------
                                                                             Projected impacts (acres)
                            Ecoregion                            -----------------------------------------------
                                                                        Low        Intermediate        High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP.................................................          89,675         145,940         185,418
Mixed-Grass.....................................................           4,220          33,761          50,910
Sand Sagebrush..................................................          42,573          95,678         142,438
Northern DPS totals.............................................         136,468         275,379         378,766
Shinnery Oak (Southern DPS).....................................          21,985          51,410          93,946
----------------------------------------------------------------------------------------------------------------
    Rangewide Total.............................................         158,454         326,789         472,712
----------------------------------------------------------------------------------------------------------------

Petroleum Production

    In the SSA report, we conducted an analysis to project the future 
rates of petroleum production at low, intermediate, and high levels. We 
compiled State well permitting spatial data from each State within each 
of the ecoregions to inform assumptions around future rates of 
development (Service 2022, p. 84). We converted the projected number of 
new wells at the three levels to acres of usable area impacted. Our 
analysis accounts for indirect impacts as well as potential overlap 
with other existing impacts to include colocation efforts by 
developers. Table 10 represents the extent of potential usable area 
impacted at the three levels of development per ecoregion over the next 
25 years. See the SSA report (Service 2022, appendix C) for further 
details and methodologies regarding these projections.
    Given current trends in energy production, we anticipate that oil 
and gas production across the lesser prairie-

[[Page 72704]]

chicken range will continue to occur and that rates will vary both 
temporally and spatially. The rates of development will be dependent 
upon new exploration, advancements in technology, and socioeconomic 
dynamics that will influence energy markets in the future.

  Table 10--Future Projection of Three Levels of Impacted Acres (Including Both Direct and Indirect Effects) of
Potential Usable Area for the Lesser Prairie-Chicken from Oil and Gas Development Over the Next 25 Years in Each
                                                    Ecoregion
                                     [Numbers may not sum due to rounding.]
----------------------------------------------------------------------------------------------------------------
                                                                             Projected impacts (acres)
                            Ecoregion                            -----------------------------------------------
                                                                        Low        Intermediate        High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP.................................................          26,848          54,618          82,388
Mixed-Grass.....................................................          82,716         170,989         259,262
Sand Sagebrush..................................................           3,166           9,054          14,942
Northern DPS totals.............................................         112,730         234,661         356,592
Shinnery Oak (Southern DPS).....................................         136,539         190,144         243,749
----------------------------------------------------------------------------------------------------------------
    Rangewide Total.............................................         249,269         424,805         600,342
----------------------------------------------------------------------------------------------------------------

Wind Energy Development and Transmission Lines

    As discussed in ``Threats Influencing Current Condition,'' the 
States in the lesser prairie-chicken analysis area have experienced 
some of the largest growth in wind energy development in the nation. 
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. We conducted 
an analysis of current and potential future wind energy development for 
the SSA for the Lesser Prairie-Chicken, and the future development was 
estimated at three different levels within the analysis area of the 
lesser prairie-chicken at low, intermediate, and high levels (Service 
2022, appendix C). Table 11 represents the wind development projects 
projected at three levels of development per ecoregion.

 Table 11--Projections of Future Wind Energy Development Projects for the Next 25 Years at Three Levels in Each
                                 Lesser Prairie-Chicken Ecoregion and Rangewide
----------------------------------------------------------------------------------------------------------------
                                                                            Projected wind developments
                            Ecoregion                            -----------------------------------------------
                                                                        Low        Intermediate        High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP.................................................               7              11              16
Mixed-Grass.....................................................              10              18              25
Sand Sagebrush..................................................               1               2               3
Northern DPS totals.............................................              18              31              44
Shinnery Oak (Southern DPS).....................................               4               7              10
----------------------------------------------------------------------------------------------------------------
    Rangewide Total.............................................              22              38              54
----------------------------------------------------------------------------------------------------------------

    As outlined within ``Threats Influencing Current Condition,'' wind 
energy development also has indirect impacts on the lesser prairie-
chicken. To determine the number of acres impacted by wind energy 
development in the current condition, we analyzed wind energy 
facilities recently constructed within and near our analysis area. We 
applied a 5,900-ft (1,800-m) impact radius to individual turbines to 
account for indirect impacts and found that the last 5 years show a 
substantial increase in the relative density of wind energy projects 
(see Service 2022, appendix C, for further details). This analysis does 
not mean that all of the impacts occur to otherwise usable lesser 
prairie-chicken land cover. In fact, it is highly unlikely due to 
viable wind development potential outside lesser prairie-chicken usable 
areas that all projected impacts will occur in areas that are otherwise 
usable for the lesser prairie-chicken. Because we cannot predict the 
precise location of future developments and to simplify and facilitate 
modeling the locations for future projections for wind development, we 
created a potential wind energy development grid that was laid over the 
analysis area and which allowed the random placement for each 
development for each iteration (Service 2022, p. 86). The resulting 
projected impacts in 25 years using the median iteration for each of 
the range of future scenarios are shown in table 12. Scenarios 1 and 5 
were used to frame the scenarios used in our model as they represent 
the low and high of likely projected outcomes. The rangewide 
projections range from 164,100 ac (66,400 ha) to 328,000 ac (133,000 
ha).

[[Page 72705]]



Table 12--Range of Projections of Future Wind Energy Development Impacts
  (Including both Direct and Indirect Effects) in Acres for the Next 25
Years for Scenarios 1 and 5 of Each Lesser Prairie-Chicken Ecoregion and
                                Rangewide
------------------------------------------------------------------------
                                            Projected wind development
                                                  impacts (acres)
                Ecoregion                -------------------------------
                                            Scenario 1      Scenario 5
------------------------------------------------------------------------
Short-Grass/CRP.........................          68,300         134,200
Mixed-Grass.............................          50,200         106,000
Sand Sagebrush..........................           3,900          21,300
Northern DPS totals.....................         122,400         261,500
Shinnery Oak (Southern DPS).............          41,700          66,500
------------------------------------------------------------------------
    Rangewide Total.....................         164,100         328,000
------------------------------------------------------------------------

    Electrical transmission capacity represents a major limitation on 
wind energy development in the Great Plains. Additional transmission 
lines will be required to transport future electricity production to 
markets; thus, we expect an expansion of the current transmission 
capacity in the Great Plains. As this expansion occurs, these 
transmission lines will, depending on their location, result in habitat 
loss as well as further fragmentation and could also be the catalyst 
for additional wind development affecting the lesser prairie-chicken. 
While we were able to analyze the current impacts of transmission lines 
on the lesser prairie-chicken, due to the lack of information available 
to project the location (and thus effects to lesser prairie-chicken 
habitat), we could not quantify the future potential effect of habitat 
loss and fragmentation on the lesser prairie-chicken that could be 
caused by transmission line development. However, we do acknowledge 
potential habitat loss and fragmentation from transmission lines is 
likely to continue depending upon their location.

Woody Vegetation Encroachment

    Due to the past encroachment trends and continued suppression of 
fire across the range of the lesser prairie-chicken, we expect this 
encroachment of woody vegetation into grasslands to continue, which 
will result in further loss of lesser prairie-chicken habitat into the 
foreseeable future. The degree of future habitat impacts will depend on 
land management practices and the level of conservation efforts for 
woody vegetation removal.
    To describe the potential future effects of encroachment of woody 
vegetation, we used available information regarding rates of increases 
in eastern red cedar and mesquite encroachment and applied this rate of 
change (over the next 25 years) to the amount of existing woody 
vegetation per ecoregion within the analysis area (appendix C). The 
estimated current condition analysis described in ``Threats Influencing 
Current Condition'' provides the baseline of woody vegetation 
encroachment, and rates derived from the literature were applied to 
this baseline to project new acres of encroachment. We then adjusted 
the projected number of new acres of encroachment using relative 
density calculations specific to each ecoregion to account for indirect 
effects. Additionally, due to assumed differences in encroachment rates 
and tree densities we provide two projections for each of the Short-
Grass/CRP and Mixed-Grass Ecoregions (East and West portions) in the 
Northern DPS, largely based on current tree distribution and 
precipitation gradient. We projected the extent of expected habitat 
loss due to encroachment of woody vegetation at low, intermediate, and 
high levels of encroachment (see the SSA report (Service 2022, appendix 
C) for rationale behind assumed rates of change). Table 13 outlines the 
three levels of this projected habitat loss by ecoregion caused by 
future encroachment of woody vegetation over the next 25 years for the 
purpose of the SSA report.

 Table 13--Projection of Impacts from Woody Vegetation Encroachment (Including both Direct and Indirect Effects)
                       at Three Levels at Year 25 in the Lesser Prairie-Chicken Ecoregions
                                      [Numbers may not sum due to rounding]
----------------------------------------------------------------------------------------------------------------
                                                                             Projected impacts (acres)
                            Ecoregion                            -----------------------------------------------
                                                                        Low        Intermediate        High
----------------------------------------------------------------------------------------------------------------
Short-Grass/CRP--East...........................................          38,830          64,489          93,877
Short-Grass/CRP--West...........................................           1,390           3,598           5,963
Mixed-Grass--East...............................................         311,768         517,784         753,739
Mixed-Grass--West...............................................             874           2,261           3,748
Sand Sagebrush..................................................           7,650          12,706          18,496
Northern DPS totals.............................................         360,512         600,838         875,823
Shinnery Oak (Southern DPS).....................................          11,548          81,660         170,653
----------------------------------------------------------------------------------------------------------------
    Rangewide Total.............................................         372,060         682,498       1,046,476
----------------------------------------------------------------------------------------------------------------


[[Page 72706]]

Roads and Electrical Distribution Lines

    Roads and electrical distribution lines are another important 
source of habitat loss and fragmentation. In our geospatial analysis 
for the current condition of the lesser prairie-chicken, we were able 
to quantify the area affected by roads, but no data were available to 
quantify the potential independent impacts of distribution lines on 
habitat loss and fragmentation. We acknowledge that some additional 
habitat loss and fragmentation will occur in the future due to 
construction of new roads and power lines, but we do not have data 
available to inform projections on how much and where any potential new 
development would occur.
Climate Change
    Future climate projections for this region of the United States 
indicate general trends of increasing temperatures and increasing 
precipitation extremes over the 21st century (Karl et al. 2009, pp. 
123-128; Kunkel et al. 2013, pp. 73-75; Shafer et al. 2014, pp. 442-
445; Easterling et al. 2017, pp. 216-222; Vose et al. 2017, pp. 194-
199). Average temperature has already increased between the first half 
of the last century (1901-1960) and present day (1986-2016), with 
observed regional average temperatures within the Southern Great Plains 
(including Kansas, Oklahoma, and Texas) increasing by 0.8 [deg]F (0.4 
[deg]C) and within the Southwest (including Colorado and New Mexico) 
increasing by 1.6 [deg]F (0.9 [deg]C) (Vose et al. 2017, p. 187). By 
mid-century (2036-2065), regional average temperatures compared to 
near-present times (1976-2005) are projected to increase by 3.6-4.6 
[deg]F (2.0-2.6 [deg]C) in the Southern Great Plains, and by 3.7-4.8 
[deg]F (2.1-2.7 [deg]C) in the Southwest, depending on future 
emissions. By late-century (2071-2100), regional average temperatures 
are projected to rise in the Southern Great Plains by 4.8-8.4 [deg]F 
(2.7-4.7 [deg]C), and by 4.9-8.7 [deg]F (2.7-4.8 [deg]C) in the 
Southwest (Vose et al. 2017, p. 197). Annual extreme temperatures are 
also consistently projected to rise faster than annual averages with 
future changes in very rare extremes increasing; by late century, 
current 1-in-20-year maximums are projected to occur every year, while 
current 1-in-20-year minimums are not expected to occur at all (Vose et 
al. 2017, pp. 197-198).
    Projecting patterns of changes in average precipitation across 
these regions of the United States results in a range of increasing and 
decreasing precipitation with high uncertainty in overall averages, 
although parts of the Southwest are projected to receive less 
precipitation in the winter and spring (Easterling et al. 2017, pp. 
216-218; Wuebbles et al. 2017, p. 12). However, extreme precipitation 
events are projected to increase in frequency in both the Southern 
Great Plains and the Southwest (Easterling et al. 2017, pp. 218-221). 
Other extreme weather events such as heat waves and long-duration 
droughts (Cook et al. 2016, entire), as well as heavy precipitation, 
are expected to become more frequent (Karl et al. 2009, pp. 124-125; 
Shafer et al. 2014, p. 445; Walsh et al. 2014, pp. 28-40). The 
devastating ``dust bowl'' conditions of the 1930s could become more 
common in the American Southwest, with future droughts being much more 
extreme than most droughts on record (Seager et al. 2007, pp. 1181, 
1183-1184). Other modeling also projects changes in precipitation in 
North America through the end of this century, including an increase in 
dry conditions throughout the Central Great Plains (Swain and Hayhoe 
2015, entire). Furthermore, the combination of increasing temperature 
and drought results in greater impacts on various ecological conditions 
(water availability, soil moisture) than increases in temperature or 
drought alone (Luo et al. 2017, entire). Additionally, future decreases 
in surface (top 4 inches (10 centimeters)) soil moisture over most of 
the United States are likely as the climate warms under higher 
scenarios (Wehner et al. 2017, p. 231).
    Grasslands are critically endangered globally and an irreplaceable 
ecoregion in North America, and climate change is an emerging threat to 
grassland birds (Wilsey et al. 2019). In a review of potential effects 
of ongoing climate change on the Southern Great Plains and on the 
lesser prairie-chicken, results suggest increases in temperatures 
throughout the lesser prairie-chicken range and possible increases in 
average precipitation in the northern part of the range but decreasing 
precipitation in the southern portion of its range (Grisham et al. 
2016b, pp. 222-227). Weather changes associated with climate change can 
have direct effects on the lesser prairie-chicken, leading to reduced 
survival of eggs, chicks, or adults, and indirect effects on lesser 
prairie-chicken are likely to occur through a variety of means 
including long-term (by mid and late twenty-first century) changes in 
grassland habitat. Other indirect effects may include more secondary 
causes such as increases in predation pressure or susceptibility to 
parasites or diseases. We have little information to describe future 
grassland conditions as a result of long-term climate changes, although 
warmer and drier conditions would most likely reduce overall habitat 
quality for lesser prairie-chicken in much of its range. In general, 
the vulnerability of lesser prairie-chicken to the effects of climate 
change depends on the degree to which it is susceptible to, and unable 
to cope with, adverse environmental changes due to long-term weather 
trends and more extreme weather events. Based on an analysis of future 
climate projections, the lesser prairie-chicken could have a net loss 
of more than 35 percent to 50 percent of its range due to unsuitable 
climate variables (Salas et al. 2017, p. 370).
    One area of particular vulnerability for the lesser prairie-chicken 
is the need for specific thermal profiles in the microhabitats they use 
for nesting and rearing of broods. Warmer air and surface soil 
temperatures and the related decreased soil moisture near nest sites 
have been correlated with lower survival and recruitment in the lesser 
prairie-chicken (Bell 2005, pp. 16, 21). On average, lesser prairie-
chicken avoid sites for nesting that are hotter, drier, and more 
exposed to the wind (Patten et al. 2005, p. 1275). Nest survival 
probability decreased by 10 percent every half-hour when temperature 
was greater than 93.2 [deg]F (34 [deg]C) and vapor pressure deficit was 
less than -23 mmHg (millimeters of mercury) during the day (Grisham et 
al. 2016c, p. 737). Thermal profiles from nests in some cases exceeded 
130 [deg]F (54.4 [deg]C) with humidity below 10 percent at nests in 
Texas and New Mexico in 2011, which are beyond the threshold for nest 
survival (Grisham et al. 2013, p. 8). Increased temperatures in the 
late spring as projected by climate models may lead to egg death or 
nest abandonment of lesser prairie-chicken (Boal et al. 2010, p. 4). 
Furthermore, if lesser prairie-chicken shift timing of reproduction (to 
later in the year) to compensate for lower precipitation, then impacts 
from higher summer temperatures could be exacerbated. In a study of 
greater prairie-chickens, heterogeneous grasslands have high thermal 
variability with a range of measured operative temperatures spanning 41 
[deg]F (23 [deg]C) with air temperatures >86 [deg]F (30 [deg]C) (Hovick 
et al. 2014b, pp. 1-5). In this setting, females selected nest sites 
that were as much as 14.4 [deg]F (8 [deg]C) cooler than the surrounding 
landscape.
    Although the entire lesser prairie-chicken range is likely to 
experience effects from ongoing climate change, the southern part of 
the Southern DPS (the Shinnery Oak Ecoregion) may be particularly 
vulnerable to warming and

[[Page 72707]]

drying weather trends, as this portion of the range is already warmer 
and drier than northern portions and is projected to continue that 
trend (Grisham et al. 2013, entire; Grisham et al. 2016c, p. 742). 
Research in the Shinnery Oak Ecoregion relating projections in weather 
parameters in 2050 and 2080 to nest survival found with high certainty 
that the negative effects on future nest survival estimates will be 
significant, and the resulting survival rates are too low for 
population sustainability in the Southern Great Plains in the absence 
of other offsetting influences (Grisham et al. 2013, pp. 6-7). As late 
spring and summer daily high temperatures rise, the ability for lesser 
prairie-chicken to find appropriate nest sites and successfully rear 
broods is expected to decline. Lower rates of successful reproduction 
and recruitment lead to further overall declines in population 
abundance and resiliency to withstand stochastic events such as extreme 
weather events.
    Extreme weather effects such as drought, heat waves, and storms can 
also directly affect lesser prairie-chicken survival and reproduction 
and can result in population crashes due to species responses including 
direct mortality from thermal stress, increased predation due to larger 
foraging areas, or decreased fitness when food resources are scarce. 
Like other wildlife species in arid and semiarid grasslands, lesser 
prairie-chicken on the Southern High Plains have adaptations that 
increase resilience to extreme environments and fluctuating weather 
patterns; however, environmental conditions expected from climate 
change may be outside of their adaptive potential, particularly in the 
timeframe weather changes are expected to occur (Fritts et al. 2018, p. 
9556). Extreme weather events and periods of drying of soil surface 
moisture are projected to increase across the lesser prairie-chicken 
range (Easterling et al. 2017, pp. 218-222; Wehner et al. 2017, pp. 
237-239). In Kansas, extreme drought events in the summers from 1981 
through 2014 had a significant impact on lesser prairie-chicken 
abundance recorded at leks; thus, increases in drought frequency and 
intensity could have negative consequences for the lesser prairie-
chicken (Ross et al. 2016a, pp. 6-7). Even mild increases in drought 
had significant impacts on the likelihood of population extirpation for 
lesser prairie-chicken (De Angelis 2017, p. 15).
    Drought is a particularly important factor in considering lesser 
prairie-chicken population changes. The lesser prairie-chicken is 
considered a ``boom-bust'' species, meaning that there is a high degree 
of annual variation in population size due to variation in rates of 
successful reproduction and recruitment. These variations are largely 
driven by seasonal precipitation patterns (Grisham et al. 2013, pp. 6-
7). Periods of below-normal precipitation and higher spring/summer 
temperatures result in less appropriate grassland vegetation cover and 
fewer food sources, resulting in decreased reproductive output (bust 
periods). Periods with favorable climatic conditions (above-normal 
precipitation and cooler spring/summer temperatures) will support 
favorable lesser prairie-chicken habitat conditions and result in high 
reproductive success (boom periods). The lesser prairie-chicken 
population failed to rebound for at least 4 years following the 2011 
drought (Fritts et al. 2018, pp. 9556-9557). This information indicates 
either that the extreme environmental conditions during 2011 may have 
been beyond what the lesser prairie-chicken is adapted to or that the 
return period following the 2008-2009 dry period and ensuing low 
population numbers in 2010 was too short for the population to recover 
enough to be resilient to the 2011 drought.
    The resilience and resistance of species and ecosystems to changing 
environmental conditions depend on many circumstances (Fritts et al. 
2018, entire). As climatic conditions shift to more frequent and 
intense drought cycles, this shift is expected to result in more 
frequent and extreme bust years for the lesser prairie-chicken and 
fewer boom years. As the frequency and intensity of droughts increase 
in the Southern Great Plains region, there will be diminishing 
opportunity for boom years with above-average precipitation. Overall, 
more frequent and intense droughts may lessen the intensity of boom 
years of the lesser prairie-chicken population cycle in the future, 
which would limit the ability of the species to rebound following years 
of drought (Ross et al. 2018, entire). These changes will reduce the 
overall resiliency of lesser prairie-chicken populations and exacerbate 
the effects of habitat loss and fragmentation. Because lesser prairie-
chicken carrying capacities have already been much reduced, if isolated 
populations are extirpated due to seasonal weather conditions, they 
cannot be repopulated due to the lack of nearby populations.
    Although climate change is expected to alter the vegetation 
community across the lesser prairie-chicken range (Grisham et al. 
2016b, pp. 228-231), we did not account for the future effects of 
climate change in our geospatial habitat model, as we did not have 
information to inform specific land cover changes predicted to result 
from future climate change (Service 2022, p. 91).
    The best available information supports that climate change 
projections of increased temperatures, increased precipitation 
extremes, increased soil drying, and an increase of severe events such 
as drought and storms within the Southern Great Plains are likely to 
have significant influences on the future resiliency of lesser prairie-
chicken populations by mid to late 21st century. These trends are 
expected to exacerbate the challenges related to past and ongoing 
habitat loss and fragmentation, making it less likely for populations 
to withstand extreme weather events that are likely to increase in 
frequency and severity.
Other Factors

Livestock Grazing

    We expect that grazing will continue to be a primary land use on 
the remaining areas of grassland within the range of the lesser 
prairie-chicken in the future, and grazing influences habitat 
suitability for the lesser prairie-chicken (Diffendorfer et al. 2015, 
p. 1). When managed to produce habitat conditions that are beneficial 
for the lesser prairie-chicken, grazing is an invaluable tool for 
maintaining healthy prairie ecosystems. However, if grazing is managed 
in a way that is focused on maximizing short-term cattle production, 
resulting in rangeland that is overused, this could have significant 
negative effects on the lesser prairie-chicken. Grazing management 
varies both spatially and temporally across the landscape. 
Additionally, grazing management could become more difficult in the 
face of a changing climate with more frequent and intense droughts.
    Our geospatial model does not account for impacts to habitat 
quality as data needed to characterize habitat quality for the lesser 
prairie-chicken at the scale and resolution needed for our analysis do 
not exist. While data do not exist to quantify rangewide extent of 
grazing practices and their effects on habitat, incompatible livestock 
grazing will continue to influence lesser prairie-chicken populations 
in the foreseeable future.

Shrub Control and Eradication

    The removal of native shrubs such as sand shinnery oak is an 
ongoing concern to lesser prairie-chicken habitat availability 
throughout large portions of its range, particularly in New Mexico, 
Oklahoma, and Texas. While relatively wide-scale shrub eradication has 
occurred in the past, we do not have

[[Page 72708]]

geospatial data to evaluate the extent to which shrub eradication has 
contributed to habitat loss and fragmentation for the lesser prairie-
chicken. While some Federal agencies such as BLM limit this practice in 
lesser prairie-chicken habitat, shrub control and eradication still 
occur through some Federal programs and on private lands, which make up 
the majority of the lesser prairie-chicken range. Though we expect this 
threat to continue to impact the species into the foreseeable future, 
we do not have data available to project the potential scale of habitat 
loss likely to occur in the future due to shrub eradication.

Fire

    As discussed in ``Threats Influencing Current Condition,'' the 
current lack of prescribed fire use in the range of the lesser prairie-
chicken is contributing to woody plant encroachment and degradation of 
grassland quality.
    As the effects of fire suppression continue to manifest throughout 
the Great Plains, the future impacts of wildfires on the lesser 
prairie-chicken are difficult to predict. If recent patterns continue 
with wildfires occurring at increasingly larger scales with less 
frequency and higher intensities than historical fire occurrence, there 
is an increasing potential of greater negative impacts on lesser 
prairie-chicken. Additionally, as climate change projections are 
indicating the possibility of longer and more severe droughts across 
the range of the lesser prairie-chicken, this could alter the 
vegetation response to fire both temporally and spatially. An expansive 
adoption of prescribed fire in management of remaining grasslands would 
be expected to have a moderating effect on risk of wildfires and 
concurrently would reduce woody plant encroachment and increase habitat 
quality and diversity. We are not able to quantify these impacts on the 
future condition of the landscape in our geospatial analysis due to 
lack of data and added complexity, but we acknowledge that fire (both 
prescribed fires and wildfire), or its absence, will continue to be an 
ecological driver across the range of the lesser prairie-chicken in the 
future with potentially positive and negative effects across both 
short-term and long-term timelines in the foreseeable future.
Projected Future Habitat Conditions and Trends
    To forecast the potential changes in future lesser prairie-chicken 
habitat, we used the projected levels of potential future impacts from 
conversion to cropland, petroleum production, wind energy development, 
and woody vegetation encroachment. We also worked with the primary 
conservation entities delivering ongoing, established lesser prairie-
chicken conservation programs to develop estimated reasonable 
projections for rates of future conservation efforts (this included 
both restoration and enhancement efforts). We asked the entities to 
provide us with information to project three levels of conservation: 
low, continuation, and high. We asked the conservation entities not to 
provide aspirational goals for a given program but instead to solely 
use past performance, funding expectations, and expert opinion to 
provide plausible future rates for given conservation practices. We 
then used this information to estimate future conservation efforts over 
the next 25 years for the lesser prairie-chicken and incorporated the 
effects of restoration efforts on habitat availability into our spatial 
analysis.
    The results of this future geospatial model (Service 2022, section 
4.2 and appendices B and C) are provided in table 14; further details 
and maps are available in appendix E of the SSA report. The median 
results show a very modest increase in areas available for use by 
lesser prairie-chicken in our nearest neighbor analysis under Scenario 
1 (assuming high levels of restoration and low levels of impacts) (with 
an increase for the Shinnery Oak Ecoregion and a decrease for the other 
three ecoregions) and decreasing amounts of projected declines in areas 
available for use by lesser prairie-chicken under Scenarios 2-5 (table 
14). Rangewide changes in areas available for use by lesser prairie-
chicken in our nearest neighbor analysis range from a 0.5 percent 
increase under Scenario 1 to a 26 percent decrease in Scenario 5. This 
analysis indicated additional future habitat loss and fragmentation 
across the range of the lesser prairie-chicken is likely to occur, and 
conservation actions will not be enough to offset those habitat losses. 
Our analysis finds that the expected conservation efforts are 
inadequate to prevent continued declines in total habitat availability, 
much less restore some of what has been lost, and overall viability for 
this species will continue to decline.

    Table 14--Projected Future Median Acreage of Lesser Prairie-Chicken Areas Available for Use as a Result of Our Neighborhood Analysis in Acres, and Showing Percent Change in Acreage From
                                                 Estimated Current Areas Available for Use as a Result of Our Neighborhood Analysis, in 25 Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Scenario 1 low       Scenario 2 low    Scenario 3 moderate    Scenario 4 high      Scenario 5 high
                                                                                            impacts, high           impacts,             impacts,             impacts,           impacts, low
                                                                                             restoration          continuation         continuation         continuation         restoration
                           Ecoregion                             Total area    Current  ---------------------     restoration          restoration          restoration     --------------------
                                                                              condition                      ---------------------------------------------------------------
                                                                                           Median    Percent              Percent              Percent              Percent    Median    Percent
                                                                                                      change    Median     change    Median     change    Median     change               change
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Short-Grass/CRP................................................   6,298,014   1,023,894     975,047     -4.8     956,190     -6.6     877,663    -14.3     808,152    -21.1     776,111    -24.2
Mixed-Grass....................................................   8,527,718     994,483     974,200     -2.0     864,780    -13.0     742,855    -25.3     649,227    -34.7     630,633    -36.6
Sand Sagebrush.................................................   3,153,420   1,028,523     992,632     -3.5     980,302     -4.7     932,477     -9.3     887,224    -13.7     884,851    -14.0
Shinnery Oak...................................................   3,850,209   1,023,572   1,149,759     12.3     988,072     -3.5     868,761    -15.1     771,923    -24.6     711,933    -30.4
                                                                --------------------------------------------------------------------------------------------------------------------------------
    Rangewide Totals...........................................  21,829,361   4,070,473   4,091,638      0.5   3,789,343     -6.9   3,421,756    -15.9   3,116,525    -23.4   3,003,529    -26.2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    It is important to note that these acreages presented above in 
Table 14 consist of patches of fragmented habitat among developed areas 
and other unsuitable habitat. Based on our geospatial analysis, the 
vast majority of blocks of usable habitat and the total area within 
those blocks, both in the current condition and in future scenarios, 
are less than 12,000 ac (4,856 ha), and very few blocks were greater 
than 50,000 ac (20,234 ha) (Service 2022, figure 4.2). As discussed 
above, the space required by lesser prairie-chicken to support 
individuals from a single lek is approximately 12,000-50,000 ac (4,856-
20,234 ha). The dominance of smaller blocks on the

[[Page 72709]]

landscape further exhibits that those spaces are highly fragmented, 
even with the remaining potential usable area for the lesser prairie-
chicken totaling approximately 4,000,000 ac (1,600,000 ha) in the 
current condition, and potentially declining to as low as 3,000,000 ac 
(1,200,000 ha) under scenario 5 for our future condition projections. 
High levels of fragmentation, as discussed in ``Threats Influencing 
Current Condition,'' do not provide the landscape composition needed 
for long-term stability of populations. Additionally, in spaces that 
are highly fragmented, relatively small amounts of additional impacts 
may have great consequences as landscape composition thresholds for the 
lesser prairie-chicken are surpassed.
    Several habitat enhancement actions for the lesser prairie-chicken 
are being implemented across the analysis area. These enhancement 
actions are implemented on existing habitat to enhance the quality of 
that given area. As discussed above, we asked our conservation partners 
to provide us with a range of plausible rates for conservation efforts, 
including enhancement actions, occurring within the lesser prairie-
chicken analysis area by ecoregion. We also requested information 
regarding effectiveness, project lifespan, and spatial targeting of 
these efforts (Service 2022, appendix C, section C.3.4). Next, we 
converted those rates for each program and conservation effort to the 
total effort at year 25. Table 15 summarizes the three projected levels 
of future habitat enhancement over the next 25 years for each 
ecoregion. These efforts represent those above and beyond what is 
already accounted for within the current condition analysis. Acreage 
enrolled in CCAAs are assumed to continue to be enrolled in the future, 
and CCAA projections within this table represent enrollments in 
addition to existing enrollments. This table also does not include 
continued management actions on permanently protected properties (such 
as State-owned wildlife management areas or conservation banks), as it 
is assumed this management will continue. Additionally, the numbers 
reported for NRCS grazing plans are acres in addition to the number of 
acres reported above in ``Conservation Efforts'' that are being managed 
under prescribed grazing for the lesser prairie-chicken by NRCS, as we 
assume that as contract acres expire from the program additional acres 
will be enrolled.

   Table 15--Projected Amount of Habitat Enhancement (in Acres) Over the Next 25 Years Within the Four Lesser
                                           Prairie-Chicken Ecoregions
----------------------------------------------------------------------------------------------------------------
                                                                   Total level of future effort (acres) at year
                                                                                        25
                       Enhancement efforts                       -----------------------------------------------
                                                                        Low        Continuation        High
----------------------------------------------------------------------------------------------------------------
                                            Short-Grass/CRP Ecoregion
----------------------------------------------------------------------------------------------------------------
KDWP Enhancement Contract.......................................               0           6,740          17,500
NRCS LPCI Grazing Plan..........................................               0               0           4,000
USFWS PFW Contract..............................................          14,000          14,000          20,000
----------------------------------------------------------------------------------------------------------------
                                              Mixed-Grass Ecoregion
----------------------------------------------------------------------------------------------------------------
WAFWA Management Plan...........................................               0               0         118,245
KDWP Enhancement Contract.......................................               0             120           3,100
ODWC Management.................................................           1,400           3,300           6,400
ODWC Additional CCAA Enrollment.................................               0          50,000         100,000
NRCS LPCI Grazing Plan..........................................               0               0          58,000
USFWS PFW Contract..............................................          50,000          50,000          70,000
TPWD Additional CCAA Enrollment.................................               0               0          50,000
----------------------------------------------------------------------------------------------------------------
                                            Sand Sagebrush Ecoregion
----------------------------------------------------------------------------------------------------------------
KDWP Enhancement Contract.......................................               0             720           4,400
CPW Enhancement Contract........................................               0          12,200          37,900
NRCS LPCI Grazing Plan..........................................               0               0          13,000
USFWS PFW Contract..............................................               0           6,000          18,000
----------------------------------------------------------------------------------------------------------------
                                             Shinnery Oak Ecoregion
----------------------------------------------------------------------------------------------------------------
WAFWA Management Plan...........................................               0               0           8,129
NRCS LPCI Grazing Plan..........................................               0               0          39,000
BLM Prescribed Fire.............................................               0          25,000         100,000
NM CCAA Prescribed Fire.........................................          50,000         100,000         150,000
USFWS PFW Contract..............................................           5,000          15,000          50,000
TPWD Additional CCAA Enrollment.................................               0               0          60,000
----------------------------------------------------------------------------------------------------------------

    The actual conservation benefit provided to the lesser prairie-
chicken by these programs varies greatly and is difficult to summarize 
because it depends on the location and the specific actions being 
carried out for each individual agreement. In addition, the level of 
future voluntary participation in these programs can be highly variable 
depending on available funding, opportunities for other revenue 
sources, and many other circumstances.

Future Population Trends

    Several estimates of lesser prairie-chicken population growth rates 
have been based on current conditions for the lesser prairie-chicken, 
with most derived from demographic matrix models (Fields 2004, pp. 76-
83; Hagen et al. 2009, entire; Sullins 2017, entire; Cummings et al. 
2017, entire). Most studies project declining lesser prairie-chicken 
populations; however, the

[[Page 72710]]

magnitude of actual future declines is unlikely to be as low as some 
modeling tools indicate (Service 2022, table 4.10). Most positive 
population growth calculations were derived from 2014-2016 (Hagen et 
al. 2017, Supplemental Information; Service 2022, table 4.10), where 
estimates indicated populations have increased. However, we caution 
that any analysis using growth rates based upon short-term data sets 
can be problematic as they are very sensitive to the starting and 
ending points in the estimates. Additionally, these growth rates are 
accompanied by relatively large margins of error.
    Estimates based on aerial surveys over the past 10 years have 
indicated a rangewide fluctuating population beginning with an 
estimated 30,682 (90 percent CI: 20,938-39,385) individuals in 2012 to 
an estimated 26,591 (90 percent CI: 16,321-38,259) individuals in 2022. 
Included within this timeframe was a population low of 16,724 (90 
percent CI: 10,420-23,538) individuals in 2013. We caution against 
drawing inferences from point estimates based upon these data due to 
low detection probabilities of the species leading to large confidence 
intervals. We also caution that trend analyses from short-term data 
sets are highly sensitive to starting and ending population sizes. For 
example, if you use 2012, the first year of available rangewide survey 
data, as the starting point for a trend analysis, it may appear that 
populations are relatively stable, but during the years of 2010-2013, 
the range of the lesser prairie-chicken experienced a severe drought 
and thus lesser prairie-chicken populations were at historic lows. If 
the data existed to perform the same analysis using the starting point 
as 2009, then the results would likely show a decreasing population 
trend.
    The future risk of extinction of the lesser prairie-chicken has 
been evaluated using historical ground surveys (Garton et al. 2016, pp. 
60-73). This analysis used the results of those surveys to project the 
risk of lesser prairie-chicken quasi-extinction in each of the four 
ecoregions and rangewide over two timeframes, 30 and 100 years into the 
future. For this analysis, quasi-extinction was set at effective 
population sizes (demographic Ne) of 50 (populations at 
short-term extinction risk) and 500 (populations at long-term 
extinction risk) adult breeding birds, corresponding to an index based 
on minimum males counted at leks of <=85 and <=852, respectively 
(Garton et al. 2016, pp. 59-60). The initial analysis using data 
collected through 2012 was reported in Garton et al. (2016, pp. 60-73), 
but it has since been updated to include data collected through 2016 
(Hagen et al. 2017, entire). We have identified concerns in the past 
with some of the methodologies and assumptions made in this analysis, 
and the challenges of these data are noted in Zavaleta and Haukos 
(2013, p. 545) and Cummings et al. (2017, pp. 29-30). While these 
concerns remain, this work represents one of the few attempts to 
project risk to the species across its range, and we considered it as 
part of our overall analysis and recognize any limitations associated 
with the analysis.
    Results were reported for each analysis assuming each ecoregion is 
functioning as an independent population and also assuming there is 
movement of individuals between populations (Service 2022, table 4.11; 
table 4.12). The results suggest a wide range of risks among the 
ecoregions, but the Sand Sagebrush Ecoregion consistently had the 
highest risks of quasi-extinction and the Short-Grass/CRP Ecoregion had 
the lowest. This analysis was based only on simulating demographic 
variability of populations and did not incorporate changing 
environmental conditions related to habitat or climate.

Summary of Comments and Recommendations

    In the proposed rule published on June 1, 2021 (86 FR 29432), we 
requested that all interested parties submit written comments on the 
proposal by August 2, 2021. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. We 
published newspaper notices inviting general public comment in the USA 
Today. We held virtual public hearings on July 8, 2021, and July 14, 
2021. On June 11, 2021, we received a request to extend the public 
comment period. On July 30, 2021, we published a notice extending the 
comment period for an additional 30 days to September 1, 2021 (86 FR 
41000). During the public comment period, we received 32,126 comments, 
including 3 bulk comments with a total of 31,710 form letters.
    State agencies, industry groups, and other commenters submitted 
additional information and data during the public comment period. We 
received information on conservation efforts, renewable energy 
projects, new survey data, threats, suggestions related to recovery 
planning, monitoring efforts, general information related to mitigation 
efforts, and more. All substantive information received during the 
comment periods has either been incorporated into our SSA, directly 
into this final determination, or is addressed below.

Peer Reviewer Comments

    As discussed in Supporting Documents above, we received comments 
from four peer reviewers. We reviewed all comments we received from the 
peer reviewers for substantive issues and new information regarding the 
information contained in the SSA report. The peer reviewers generally 
concurred with our methods and conclusions and provided support for 
thorough and descriptive narratives of assessed issues, additional 
information, clarifications, and suggestions to improve the final SSA 
report. Peer reviewer comments are addressed in the following summary 
and were incorporated into the final SSA report as appropriate.
    Comment 1: One peer reviewer suggested that we consider adding to 
the SSA report a statement that the percent reduction of habitat and 
the percent reduction in population more or less parallel (or pace) 
each other. They stated that pointing this out might emphasize that 
improvements in actions that restore habitat should result in more 
birds.
    Our response: While we agree that there is a direct relationship 
between habitat availability and population trends, the location of 
additional habitat losses or gains will dictate the magnitude of 
population response to those changes. Thus, while we can conclude there 
is a direct relationship between population trends and habitat 
availability, we cannot conclude that a given percent reduction of 
habitat will result in a given percent reduction in population 
abundance.
    Comment 2: One peer reviewer suggested that we were too optimistic 
regarding the persistence of lesser prairie-chicken in the Short-Grass 
Prairie/CRP Ecoregion. The reviewer points out the lesser prairie-
chicken in that ecoregion are wholly dependent on CRP and minor 
landscape changes can affect lesser prairie-chicken persistence.
    Our response: Our SSA is based on the best available science. In 
our SSA report, we state that the Short-Grass Prairie/CRP Ecoregion 
represents the most resilient ecoregion of the four evaluated based 
upon the large number of birds present. The existing populations of 
lesser prairie-chicken in this ecoregion are largely dependent upon 
CRP, a point which we acknowledge in the SSA report, and in the SSA 
report we project additional habitat loss to occur within the future. 
All of these points were included in our SSA analysis.

[[Page 72711]]

    Comment 3: One peer reviewer suggested that juniper twig blight, 
one of several possible species of fungi, has been decimating eastern 
red cedar in some areas and could potentially reverse some of the woody 
encroachment.
    Our response: We reviewed the available information in our files 
and found no documentation of extensive areas of eastern red cedar 
decimated by any fungi or other diseases. Two locations where this 
fungus exists are significantly east of lesser prairie-chicken range. 
Additionally, as an example, one of the fungi, Kabatina (Kabatina 
juniperi), requires specific weather conditions, limiting the 
expectation of extensive spread of this fungus. This context makes 
widespread and sustained removal of eastern red cedar by fungi 
infection from invaded grasslands or prairies unlikely within the range 
of the lesser prairie-chicken.
    Comment 4: One peer reviewer suggested there is no evidence to 
support available lesser prairie-chicken habitat has been reduced by 
80-90 percent, citing Spencer et al. 2017.
    Our response: The SSA report summarizes the best available 
scientific information related to this point. The lesser prairie-
chicken was once distributed widely across the Southern Great Plains, 
and currently occupies a substantially reduced portion of its presumed 
historical range (Rodgers 2016, p. 15). There have been several 
estimates of the potential maximum historical range of the lesser 
prairie-chicken (e.g., Taylor and Guthery 1980a, p. 1, based on Aldrich 
1963, p. 537; Johnsgard 2002, p. 32; Playa Lakes Joint Venture 2007, p. 
1) with a wide range of estimates on the order of about 64 to 115 
million ac (26 to 47 million ha). The more recent estimate of the 
lesser prairie-chicken encompasses an area of approximately 115 million 
ac (47 million ha). Presumably, not all of the area within this 
historical range was evenly occupied by lesser prairie-chicken, and 
some of the area may not have been suitable to regularly support lesser 
prairie-chicken populations (Boal and Haukos 2016, p. 6). However, 
experts agree that the current range of the lesser prairie-chicken has 
been significantly reduced from the historical range at the time of 
European settlement, although there is no consensus on the exact extent 
of that reduction as estimates vary from greater than 90% reduction 
(Hagen and Giesen 2005, unpaginated) to approximately 83% reduction 
(Van Pelt et al. 2013, p. 3). We refer to the context of the entire 
estimated historical range, while Spencer et al. 2017 only addresses 
areas present in the recent delineation of the EOR in Kansas from the 
1950s to 2013.
    Comment 5: One reviewer suggested we used inappropriate 
representation of lesser prairie-chicken historical range and suggested 
that there are areas included within the historical range included in 
the SSA report that were never occupied by the lesser prairie-chicken.
    Our response: We used the best available information to 
characterize the historical range of the lesser prairie-chicken, 
including peer-reviewed publications and the map produced and used by 
the State fish and wildlife agencies and cited in nearly all scientific 
publications discussing the historical range (Service 2022, figure 
2.2). Additionally, we acknowledge caveats associated with the 
historical ranges including statements such as ``Presumably, not all of 
the area within this historical range was evenly occupied by [lesser 
prairie-chicken], and some of the area may not have been suitable to 
regularly support [lesser prairie-chicken] populations.'' The reviewer 
did not suggest a source that would better represent the historical 
range of the lesser prairie-chicken.
    Comment 6: One reviewer suggested we inappropriately assumed that 
once land is converted to cropland those acres are no longer habitat.
    Our response: Lesser prairie-chickens are a grassland obligate 
species. We do not assume that cropland is not habitat, but rather 
apply the information available in the scientific literature that 
indicates that cropland does not provide for the full life-history 
needs of the species. Additionally, once cropland exceeds 10 percent of 
the landscape, lesser prairie-chicken populations begin to decline, in 
large part due to the loss of nesting habitat. As discussed within the 
SSA report, we considered that cropland may have some limited value for 
opportunistic foraging but does not support vegetative structure and 
composition necessary to fulfill all the life-history needs of the 
species.

Federal Agency Comments and Comments From Tribes

    We did not receive any comments from Federal agencies or from 
Tribes.

Comments From States

    Comment 7: Several State agencies and one commenter argued that 
rare and endangered species are better managed at the State level than 
the Federal level, and that the Service lacks the resources and 
relationships to properly manage the species.
    Our response: The Act requires the Service to make a determination 
using the best available scientific and commercial data after 
conducting a review of the status of the species and after taking into 
account those efforts, if any, being made by any State or foreign 
nation, or any political subdivision of a State or foreign nation to 
protect such species. We appreciate the interest in lesser prairie-
chicken conservation and look forward to continuing our coordination 
with State agencies as we begin recovery planning and implementation 
for the lesser prairie-chicken.
    Comment 8: One State and one commenter stated the Service did not 
account for habitat quality improvements through enhancements in the 
characterization of past and ongoing conservation actions in the SSA.
    Our response: Throughout the SSA process, the Service worked with 
the States and other partners to compile and evaluate the best 
available data to inform our decision with regard to the status of the 
lesser prairie-chicken. This included working with our conservation 
partners to ensure we accurately characterized existing conservation 
efforts for the species and projecting the benefits of these efforts 
into the future. Within chapter 3 of the SSA report, we detail past and 
current conservation efforts, including enhancement efforts. While 
projecting the benefits of conservation efforts into the future, we 
include projections that account for those efforts to enhance existing 
habitat for the lesser prairie-chicken, which are summarized in chapter 
4, table 4.8 of the SSA report (Service 2022).
    Comment 9: As a followup to Comment 8, a commenter asked for 
clarification on the implications of not being able to assess habitat 
quality (and inclusion of degraded areas) in the spatial analysis and 
how those implications might have affected our decision.
    Our response: Spatial data do not exist at the scale and resolution 
needed to adequately evaluate the condition of the vegetative structure 
and composition of the landscape. This impacted our spatial analysis 
because to accurately evaluate habitat availability for the lesser 
prairie-chicken, one would need to identify areas that are in grassland 
or shrubland that could support the species and then evaluate the 
vegetative composition and structure of those areas to determine if the 
area has been degraded and to what degree. Many areas that remain 
grassland do not have either the vegetative composition or structure to 
provide for habitat for the lesser prairie-chicken; unfortunately, no 
spatial data exist that would allow for a

[[Page 72712]]

characterization of vegetative structure and composition at the scope 
or scale needed to inform the evaluation of the lesser prairie-chicken. 
Thus, within our spatial analysis, we could not directly estimate 
available habitat. Instead, we estimate the amount of grassland and 
shrubland within the analysis area that could potentially serve as 
lesser prairie-chicken habitat if the correct vegetative structure and 
composition on the given site are present. The implications of this 
limitation, as outlined in the SSA report, is that the actual amount of 
available habitat is likely overestimated in the analysis. This 
limitation was fully considered while making our determination.
    Comment 10: One State commented that USDA did not provide data to 
the Service regarding habitat restoration and enhancement efforts that 
are conducted outside of the Lesser Prairie-Chicken Initiative, and 
that means the SSA is lacking some of the best available information.
    Our response: We worked directly with USDA to describe the 
conservation benefits being provided by their programs for 
consideration in this decision. We acknowledge that there are programs 
available outside of the Lesser Prairie-Chicken Initiative, as outlined 
in chapter 3 of the SSA report. These programs, the Environmental 
Quality Incentives Program, the Conservation Stewardship Program, and 
the Agricultural Conservation Easement Program, all provide funding for 
the Lesser Prairie-Chicken Initiative, which in turn provides technical 
and financial assistance to landowners. While these programs do not 
include all programs implemented by USDA, it does include the primary 
programs and benefits being provided to the lesser prairie-chicken. We 
are not aware of and the commenter did not provide any additional data 
regarding conservation benefits that we could include in our analysis.
    Comment 11: One State agency asserted that there were no threats in 
the Kansas portion of the Northern DPS under any of the five factors. 
They also stated that lesser prairie-chicken populations and habitat 
are either stable or growing.
    Our response: We have carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats to the Northern DPS of the lesser prairie-chicken and 
its habitat. We analyzed effects associated with habitat loss, 
fragmentation, and fragmentation including conversion of grassland to 
cropland (Factor A), petroleum production (Factor A), wind energy 
development and transmission (Factor A), woody vegetation encroachment 
(Factor A), and roads and electrical distribution lines (Factor A); 
other factors, such as livestock grazing (Factor A), shrub control and 
eradication (Factor A), collision mortality from fences (Factor E), 
predation (Factor C), influence of anthropogenic noise (Factor E), and 
fire (Factor A); and extreme weather events (Factor E). We also 
analyzed existing regulatory mechanisms (Factor D) and ongoing 
conservation measures.
    Habitat loss, fragmentation, and degradation is the primary threat 
to the lesser prairie-chicken in this DPS, with other threats such as 
fire, incompatible livestock grazing, and extreme weather events 
further decreasing population resiliency and species redundancy. We do 
not assess the species on a State-by-State basis, but rather based on 
the Act's definition of species. The State of Kansas is included in the 
Northern DPS and consists of portions of three ecoregions for the 
species. The largest impacts in this DPS are conversion of grassland to 
cropland and woody vegetation encroachment. The Sand Sagebrush 
Ecoregion, which includes the species within Kansas, is also 
experiencing habitat degradation due to incompatible grazing 
management.
    Our future scenario analysis demonstrates that the current threats 
acting on the landscape are expected to either continue at the same 
levels or increase in severity in the foreseeable future. Habitat loss 
is projected to outpace conservation efforts to restore habitat. Though 
we do not expect rates of habitat conversion to cropland to be 
equivalent to the rates that we historically witnessed, we expect any 
additional conversion that does occur will have a disproportionately 
large effect on resiliency and redundancy due to the limited amount of 
remaining large intact grasslands. Conversion of habitat due to oil, 
gas, and wind energy will continue to occur. Woody vegetation 
encroachment is also expected to continue, particularly in the Mixed-
Grass Ecoregion. Increased drought and severe weather events associated 
with climate change are expected to decrease population resiliency and 
redundancy into the foreseeable future, and as habitat availability 
continues to decline, and available habitat blocks decrease in size, 
populations may decline to below quasi-extinction levels.
    Conservation measures and regulatory mechanisms are acting to 
reduce the magnitude of threats impacting the lesser prairie-chicken 
and its habitat. However, our analysis demonstrates that future 
restoration efforts will not be enough to offset the impacts of habitat 
loss and fragmentation and conservation efforts focused on localized 
management to affect habitat quality, while not addressing the 
overarching limiting factor of habitat loss and fragmentation, is not 
addressing the long-term population needs for the lesser prairie-
chicken. Thus, these measures are having only minimal impacts on 
threats acting throughout the DPS.
    Comment 12: One State asked the Service to detail how the listing 
of the lesser prairie-chicken and potential incidental take would 
affect the hunting season in Kansas for the greater prairie-chicken and 
any other species.
    Our response: The listing will have no direct effect on hunting 
seasons established by a State fish and wildlife agency for any other 
species. However, because Kansas falls within the Northern DPS, the 
4(d) rule prohibits take, as defined in 50 CFR 17.21(c)(1), or 
possession, as defined in 50 CFR 17.21(d)(1), of lesser prairie-
chicken. We do not expect this to be of significant effect as hunting 
regulations already in place by KDWP were intended to minimize impacts 
to the lesser prairie-chicken.
    Comment 13: One State asked if seeding nonnative plant species 
within the range of the lesser prairie-chicken would be considered take 
and noted that they strongly recommend only planting of native species.
    Our response: While we strongly recommend planting of native 
species as well, the Act only prohibits actions that would result in a 
violation of the prohibitions outlined in section 9 of the statute or 
specifically prohibited by the 4(d) rule. Not all seeding of nonnative 
plant species would result in take of the lesser prairie-chicken, and 
each scenario would have to be evaluated. There are potential scenarios 
in which seeding of nonnative plant species could result in a section 9 
violation if such seeding occurred in existing habitat for the lesser 
prairie-chicken and results in a long-term alteration of the vegetative 
structure and composition necessary to support the lesser prairie-
chicken. While the seeding of nonnative species, such as converting a 
row crop agriculture field to a nonnative stand of grass, may not 
provide any conservation value to the lesser prairie-chicken, it would 
also not result in a section 9 violation.
    Comment 14: One State asked if suppressing (as opposed to 
eradicating) shinnery oak and sand sagebrush would be prohibited.
    Our response: Alterations to vegetation resulting from appropriate 
herbicide application in order to better

[[Page 72713]]

meet the habitat requirements of the lesser prairie-chicken, such as 
suppression of sand shinnery oak and sand sagebrush, would not be 
considered a violation of section 9. Herbicide applications that would 
result in a violation of section 9 would be those in which the 
application on existing lesser prairie-chicken habitat results in 
sustained alteration of preferred vegetative characteristics of lesser 
prairie-chicken habitat.
    Comment 15: One State asked about residents that may have lesser 
prairie-chicken specimens in their possession that were legally 
harvested less than 100 years ago. They noted that under section 
10(h)(1) of the Act, possession of such specimens or import or export 
of them is prohibited.
    Our response: Simple possession of specimens of a listed species 
does not constitute a violation of either the Act or the 4(d) rule. The 
statute and 4(d) rule prohibit possession (and other acts) of specimens 
taken in violation of the Act. If the specimen was taken lawfully, 
there would be no violation for possession of the specimen. The Act 
does prohibit certain interstate and foreign commerce activities, such 
as shipping, transporting, selling, or offering to sell, listed 
species, regardless of when the specimen was taken.
    Comment 16: Multiple commenters, including five State wildlife 
agencies, provided comments outlining existing conservation efforts and 
participation in and accomplishments of those efforts. Many of those 
commenters stated that the lesser prairie-chicken should not be listed 
due to all of those efforts.
    Our response: We fully evaluated and considered all of these 
efforts while making our determination. The past, current, and likely 
future benefits of these efforts were evaluated through the SSA process 
and are summarized in the SSA report. The mere existence of 
conservation efforts does not necessarily result in a species not 
meriting the protections of the Act. Instead, we must evaluate the 
effects of the efforts on the status of the species and on the threats 
affecting the species. To ensure that we accurately characterized the 
benefits being provided by existing efforts, we worked directly with 
the entities responsible for implementing those efforts. We first asked 
them to assist us in describing the program and the program 
accomplishments that are included in chapter 3 of the SSA report. To 
help us project the likely future benefits of their efforts, we worked 
directly with those entities to estimate the rate of future practices 
likely to be implemented based upon accomplishments from past years and 
expectations for the program. A summary of these likely future efforts 
are included in chapter 4 of the SSA report and a detailed summary of 
how the conservation projections were calculated is included in 
appendix C of the SSA report. By working with these entities through 
the SSA process, we have ensured that we fully and accurately evaluated 
the benefits of these existing efforts to the lesser prairie-chicken 
and its habitat. Based on our analysis and the full consideration of 
all efforts, we still conclude that listing is warranted for both the 
Northern and Southern DPSs of the lesser prairie-chicken as detailed in 
this rule.
    Comment 17: Multiple commenters, including three State wildlife 
agencies, submitted comments related to population trends. Some 
commenters stated that the results of aerial surveys demonstrate that, 
rangewide and/or for each DPS, populations of lesser prairie-chicken 
are stable or increasing. Some attributed this increase to success of 
conservation efforts. Other commenters stated that while there may be 
short-term increases in populations due to precipitation patterns, the 
long-term trends indicated declines in lesser prairie-chicken 
populations.
    Our response: We acknowledge that aerial surveys can demonstrate 
stable, increasing, or declining population trends, depending on the 
range of dates reviewed and the range of the confidence intervals in 
the population estimates. We conclude it is critical therefore to focus 
on long-term trends to measure population viability for lesser prairie-
chickens. Annual fluctuations and short-term trends can be misleading. 
The lesser prairie-chicken is considered a ``boom-bust'' species with a 
high degree of annual variation in rates of successful reproduction and 
recruitment. These annual and short-term fluctuations are almost 
entirely driven by seasonal precipitation patterns. Periods of below-
average precipitation and higher spring/summer temperatures result in 
less appropriate vegetative cover and less food available, resulting in 
decreased reproductive output (bust periods). Periods with above-normal 
precipitation and cooler spring/summer temperatures will support 
favorable habitat conditions and result in high reproductive success 
(boom periods). Based upon this life history strategy, when evaluating 
lesser prairie-chicken populations one should not draw conclusions 
based upon annual fluctuations or short-term trends. Instead, the best 
use of population data is for long-term trend analysis, which covers a 
timeframe that spans multiple boom and bust periods.
    We find the most likely scientific conclusion to explain the 2013-
2021 observed increase in the lesser prairie-chicken populations is 
precipitation patterns. We acknowledge that voluntary conservation 
efforts were also acting on the species during this time. In 2013, 
there were historically low population estimates. We conclude this was 
due to the severe drought that the southern Great Plains experienced in 
the period 2009-2012. Following the drought, precipitation had been 
largely at or above average within the lesser prairie-chicken range 
through 2020. The predicted population response is increases in lesser 
prairie-chicken populations. This conclusion is consistent with the 
population data from 2013 through 2021. Within the SSA report, we 
provide a detailed summary of the best available science with regard to 
population trends including a summary of all results from the aerial 
surveys and the best available science with regard to historical 
population estimates. As presented in this rule and the SSA report, the 
best available scientific information indicates that the lesser 
prairie-chicken populations have experienced long-term population 
declines. Additionally, most efforts to project future lesser prairie-
chicken population abundance and our analysis of future habitat 
conditions indicate likely continued declines in lesser prairie-chicken 
abundance and habitat.
    Comment 18: Multiple commenters, including one State wildlife 
agency, submitted comments related to the relationship between 
population trends, habitat loss, and precipitation. Some comments asked 
for clarification around these relationships while others stated that 
habitat loss is not the driver of population trends because the SSA 
estimated habitat losses but populations have increased since 2013.
    Our response: As detailed in the response to Comment 17, due to the 
life history strategy of the lesser prairie-chicken, annual and short-
term variations in lesser prairie-chicken populations are directly tied 
to localized precipitation patterns. Long-term population trends for 
the lesser prairie-chicken that span multiple precipitation cycles, are 
a better measure of population health as they will better reflect the 
true trajectory of the population. Analyzing long-term trends will 
minimize the influence of short-term precipitation cycles and the 
associated fluctuations that are associated with a species with this 
life history strategy. Long-term population

[[Page 72714]]

trends for the lesser prairie-chicken are associated with habitat 
availability and connectivity.
    Comment 19: Multiple commenters, including one State, stated that 
ground-based surveys in New Mexico for 2021 show higher populations 
than the aerial survey estimates and thus conclude we should base our 
2021 population estimate for the Shinnery Oak Ecoregion on the ground-
based survey work from New Mexico. Two commenters also stated that, in 
general, aerial survey estimates are less accurate and that ground-
based surveys would possibly reveal higher numbers.
    Our response: The aerial survey methodology was designed to provide 
a statistically valid sampling framework to allow a more accurate 
evaluation of long-term population trends. It is clear, based on the 
best available science, that the aerial survey framework is the most 
rigorous sampling design to provide population estimates and trends. 
Ground-based surveys are not designed to allow for an accurate 
extrapolation to a population estimate. Ground-based surveys can be 
used to detect species presence and at best provide an index. More 
specifically, the best use of this information is to indicate presence 
of the species when there is a positive detection and at most to 
monitor a specific lek or group of leks through time to give an 
estimate of documented attendance for that lek. Beyond that, these 
surveys have limited utility for analyzing population abundance due to: 
variation in sampling methodologies within and between States; 
selective sampling; variance in lek attendance and detection rates; and 
lack of ability to account for what proportion of the population is 
being sampled in any given year (Applegate 2000; Cummings et al. 2017; 
Ross et al. 2019). The aerial surveys were designed to address these 
shortcomings with the design and statistical limitations associated 
with the ground-based surveys and thus allow for evaluation of long-
term population trends with a calculation of the level of certainty 
associated with those estimates.
    Comment 20: One State agency stated that based upon population 
estimates resulting from ground-based surveys in New Mexico that 
populations have remained relatively stable since 1998 despite a 
significant range contraction in the northern and the southern portion 
of the lesser prairie-chicken range in New Mexico. They attributed the 
stability to conservation efforts in the core areas.
    Our response: As discussed in our response to Comment 19, ground-
based survey efforts are not designed to produce population estimates. 
Even if the ground-based survey estimates provided precise annual 
population estimates and the population was relatively stable, the 
extent of the total range decline leads us to conclude that the lesser 
prairie-chicken in the Shinnery Oak Ecoregion faces an elevated 
extirpation risk due to the negative effects of reduction in 
potentially usable area, which has negatively affected redundancy.
    Comment 21: Multiple commenters, including two State wildlife 
agencies, stated that listing of the lesser prairie-chicken would 
undermine existing conservation efforts and create a disincentive for 
participation in conservation efforts. Some commenters suggested that 
rather than listing the Service should continue to work with partners 
and landowners to develop conservation agreements. One commenter stated 
that conservation efforts are more likely to increase and improve 
without a listing as these voluntary programs provide flexibility in 
determining how best to conserve the species.
    Our response: In compliance with the requirements of the Act and 
its implementing regulations, we determined that the Northern and 
Southern DPSs of the lesser prairie-chicken warrant listing based on 
our assessment of the best available scientific and commercial data. We 
recognize that the lesser prairie-chicken remains primarily on lands 
where habitat management has supported survival, due in large part to 
voluntary actions incorporating good land stewardship, and we want to 
continue to encourage land management practices that support the 
species. We recognize the need to work collaboratively with private 
landowners to conserve and recover the lesser prairie-chicken.
    Comment 22: Multiple commenters, including one State wildlife 
agency, submitted comments related to the effectiveness of conservation 
efforts. Some commenters stated that existing efforts were not 
effective at addressing the conservation needs of the species while 
others stated that existing efforts are effective at addressing the 
conservation needs of the lesser prairie-chicken. Additionally, some 
commenters stated that while we acknowledged existing efforts, we then 
disregarded them and did not fully factor in their effectiveness.
    Our response: We included all existing conservation efforts within 
our analysis in the SSA report. We described each conservation effort 
individually and then analyzed how effective those efforts were at 
addressing the threats to the lesser prairie-chicken. This analysis 
showed that the overarching limiting factor to the lesser prairie-
chicken is habitat availability and that the primary threat is habitat 
loss and fragmentation. Our analysis indicates that, despite 
conservation efforts, habitat loss and fragmentation continues to 
negatively impact viability for the species. Additionally, our analysis 
indicated that despite the projected level of conservation efforts 
moving forward, habitat loss and fragmentation is expected to outpace 
habitat restoration efforts, resulting in further decreases in 
viability in the future. As discussed in the SSA report, there are 
additional threats to the lesser prairie-chicken that will continue to 
impact the species, which are not addressed or ameliorated by existing 
conservation efforts to the extent that the species does not warrant 
listing.
    Comment 23: One State wildlife agency stated that decreasing 
groundwater aquifer levels are likely to lead to restoration of 
cropland acres to native grasses in the Sand Sagebrush Ecoregion in the 
future, which will increase habitat availability and populations in the 
future but the extent will be hard to quantify.
    Our response: While we agree that decreasing aquifer levels may 
impact the agricultural practices within the Sand Sagebrush Ecoregion, 
there is no information to indicate that landowners will convert those 
areas back to vegetative composition that will support the lesser 
prairie-chicken or that they will manage it in a way that is compatible 
with the habitat needs of the lesser prairie-chicken.
    Comment 24: One State commented that there must be more and 
improved coordination among Federal agencies because the Service failed 
to acquire CRP data from USDA for use in the SSA.
    Our response: We used the best available information in our 
analyses. Access to geospatial conservation practices information is 
available to entities such as other Federal agencies only through a 
signed agreement with USDA (Rissman et al. 2017). As stated in Appendix 
B, Part 5. Supplemental Analysis: Evaluation of CRP, due to privacy 
concerns associated with sharing these data, we were not able to 
establish an agreement with FSA to provide the CRP data for our use. 
Because we were not able to acquire the spatially explicit data for CRP 
enrollment, we worked with FSA to complete an analysis to understand 
the implications of not having CRP data included in our spatial model. 
The results of this analysis indicated up to a 1.33 percent increase in 
potentially

[[Page 72715]]

usable space if we had CRP data for our model. We found this minor 
difference in potentially usable space to be negligible in the scope of 
the SSA analysis.
    Comment 25: Multiple commenters, including four State wildlife 
agencies, submitted comments requesting that the 4(d) rule for the 
Northern DPS of the lesser prairie-chicken include an exception for 
take resulting from grazing activities. Some commenters requested a 
4(d) exception for all grazing activities, some requested a 4(d) 
exception for grazing that was being managed in ways that were 
compatible with the conservation of the species, and other commenters 
requested clarity on what would be considered compatible grazing 
management.
    Our response: After evaluating all comments from States and from 
public commenters, we have included in the 4(d) rule an exception for 
take that would be associated with routine grazing activities when the 
landowner or land manager is following a site-specific grazing plan 
that was developed by an entity that has been approved by the Service. 
Please see Provisions of the 4(d) Rule for more details.
    Comment 26: Four State agencies and multiple public commenters 
requested that activities conducted pursuant to the WAFWA Range-wide 
Plan be excepted from take prohibitions under the 4(d) rule for the 
Northern DPS. They stated that we had approved a 4(d) provision for the 
plan previously and that including such a provision would provide an 
overall benefit to the conservation of the species. Several commenters, 
however, stated it was inappropriate to include an exception from take 
prohibitions for activities conducted pursuant to the WAFWA Range-wide 
Plan, given issues revealed in the recent audit and the lack of clarity 
on how these issues will be resolved.
    Our response: We did not find that a provision excepting activities 
conducted under the mitigation framework within the RWP implemented by 
WAFWA is necessary and advisable for the conservation of the species at 
this time. We acknowledge that our previous 4(d) rule had excepted 
these activities from take. However, we have reevaluated that decision 
based on the updated status of the species and recent information 
regarding the mitigation program. A July 2019 audit of the mitigation 
program found a variety of deficiencies with the program. These 
deficiencies include concerns regarding the financial management, 
accounting, compliance, and conservation delivery. After the audit was 
completed, WAFWA hired a consultant to assist them with evaluating 
options to address any deficiencies with the oil and gas CCAA. The 
consultant focused on the oil and gas CCAA, which has the same 
mitigation framework as the RWP. This consultant led a focused 
conversation with the WAFWA, the State fish and wildlife agencies, the 
Service, and representatives of the oil and gas industry enrolled in 
the program. This process culminated with a report titled ``Range-wide 
Oil and Gas Candidate Conservation Agreement with Assurances 
Realignment Phase 1 Findings and Recommendations'' finalized in 
December 2020. This report reaffirms the deficiencies identified in the 
2019 program audit and identifies steps to address those concerns.
    While this realignment process was directly related to the CCAA, 
because the same mitigation framework is included in both the RWP and 
the CCAA, the concerns outlined in the Findings and Recommendations 
Report are directly applicable to the mitigation program within the 
RWP. The WAFWA has made some changes, but most of the noted 
deficiencies with relation to the mitigation framework and other 
aspects directly related to the RWP have not been remedied. 
Specifically, due to the identified deficiencies, we are concerned that 
the implementation of the mitigation framework is not offsetting 
impacts to the species.
    Comment 27: One State noted that the 4(d) rule excepted prescribed 
fire from take prohibitions. They asked that, given the importance of 
prescribed fire, that it be added to the list of actions unlikely to 
result in a violation of section 9 for the Southern DPS.
    Our response: While fire plays an important role, potential exists 
for some short-term negative impacts to the lesser prairie-chicken 
while implementing prescribed fire. The potential impacts depend upon 
what time of the year the fire occurs; extent of habitat burned; and 
burn severity including, but not limited to, disturbance of 
individuals, destruction of nests, and impacts to available cover for 
nesting and concealment from predators. Section 9(a)(1) of the Act, 
codified at 50 CFR 17.21, sets out the prohibitions related to 
endangered species. While section 4(d) of the Act allows alteration of 
prohibitions for actions likely to result in take of threatened 
species, neither the Act nor its implementing regulations have such a 
mechanism for endangered species. For parties interested in 
implementing any action that may result in take of a listed species, 
the Service has multiple mechanisms under the Act to permit those 
actions and interested parties can reach out to their local Service 
office for further assistance.
    Comment 28: Two State agencies and several commenters asked for 
additional vegetation removal, treatment, and management actions to be 
added to the 4(d) rule. For example, commenters asked that all removal 
of nonnative and invasive native vegetation be included as an exception 
from take in the 4(d) rule (for example, Eastern red cedar, honey 
mesquite, Russian olive, black locust, Siberian elm). Additionally, 
multiple commenters (including both State agencies) asked that 
herbicide application for control of these species be included in the 
4(d) rule.
    Our response: As outlined in the Available Conservation Measures 
section of the rule, actions that could result in a section 9 violation 
would be those that would result in sustained alteration of preferred 
vegetative characteristics of lesser prairie-chicken habitat. 
Application of herbicides for removal of invasive brush species 
identified would not fall into this category. Areas dominated by those 
species are not considered lesser prairie-chicken habitat; thus, 
applying herbicides would not alter preferred vegetative 
characteristics of lesser prairie-chicken habitat. It is not necessary 
to create an exemption to the take prohibition for removal of nonnative 
or invasive vegetation identified in the comments because these 
activities will not be occurring in occupied habitat.
    Comment 29: One State agency requested clarification on 
restrictions on farming in the Southern DPS. The commenter asked if 
farming activities would be prohibited in the Southern DPS, and noted 
that because those areas do not support lesser prairie-chickens, that 
take would likely not occur.
    Our response: Any action that would result in ``take,'' as defined 
in the Act, of a listed species would be prohibited under section 9 of 
the Act. Farming activities in areas where lesser prairie-chickens are 
not present would not be prohibited because they would not result in 
take. However, in other (likely limited) situations where lesser 
prairie-chickens are using cultivated lands during certain times, 
farming activities could result in take of the species. We suggest that 
interested parties discuss reach out to their local Service office to 
discuss specific situations and get further details.

[[Page 72716]]

Public Comments

Comments on Endangered Species Act and Service Policies
    Comment 30: Multiple commenters stated that we had not used the 
best available information in the SSA report and/or the proposed rule. 
They pointed to our conclusions on drought, climate change, and 
population trends, and estimates of impact distances for various energy 
projects or the impacts of grazing. One commenter thought the rule used 
too many estimates and assumptions overall. They stated that the data 
we used are uncertain and inconclusive.
    Our response: Section 4(b)(1)(A) of the Act requires that we make 
our determinations solely on the basis of the best scientific and 
commercial data available. Additionally, 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 (https://www.fws.gov/program/information-quality), provide 
criteria and guidance, and establish procedures 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 list a 
species as an endangered or threatened species. In preparing our SSA 
report and this final rule, we used information from many different 
sources, including articles in peer-reviewed journals, scientific 
status surveys and studies completed by qualified individuals, Master's 
thesis research that has been reviewed but not published in a journal, 
other unpublished governmental and nongovernmental reports, reports 
prepared by industry, personal communication about management or other 
relevant topics, conservation plans developed by States and counties, 
biological assessments, other unpublished materials, experts' opinions 
or personal knowledge, and other sources. We have relied on published 
articles, unpublished research, habitat modeling reports, digital data 
publicly available on the internet, and the expert opinion of subject 
biologists to aid in our determination.
    Also, in accordance with our peer review policy published on July 
1, 1994 (59 FR 34270) and our 2016 memo on peer review, we solicited 
peer review of the lesser prairie-chicken SSA report from knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles; their feedback was incorporated into 
the SSA report (Service 2022, entire), which remains the foundation of 
our research along with our 2021 proposed rule and this final rule. 
Additionally, we requested comments or information from other concerned 
governmental agencies, Native American Tribes, the scientific 
community, industry, and any other interested parties during the 
comment period for the proposed rule. Comments and information we 
received helped inform this final rule. We found that the best 
available science indicates that the two DPSs of the lesser prairie-
chicken warrant listing under the Act.
    Comment 31: Multiple commenters argued that we should have come to 
a variety of different conclusions on the DPSs: that the Northern DPS 
should have been endangered rather than threatened, that the Southern 
DPS should have been threatened rather than endangered, or that the 
whole range should have been either endangered or not warranted for 
listing.
    Our response: Sections 3(6) and 3(20) of the Act, respectively, 
define an endangered species as one that is in danger of extinction 
throughout all or a significant portion of its range, and a threatened 
species as one that is likely to become an endangered species within 
the foreseeable future throughout all or a significant portion of its 
range. We have thoroughly assessed the best available scientific and 
commercial data for the species, as laid out in our SSA report and this 
final rule. We have determined that the primary threat impacting both 
DPSs is the ongoing loss of large, connected blocks of grassland and 
shrubland habitat. The Southern DPS has low resiliency, redundancy, and 
representation and is particularly vulnerable to severe droughts due to 
its location in the dryer and hotter southwestern portion of the range. 
Because the Southern DPS is currently at risk of extinction, we are 
listing it as endangered.
    In the Northern DPS, as a result of habitat loss and fragmentation, 
resiliency has been reduced across two of the ecoregions when compared 
to historical conditions. However, this DPS still has redundancy across 
the three ecoregions and genetic and environmental representation. We 
expect habitat loss and fragmentation across the Northern DPS to 
continue into the foreseeable future, resulting in even further reduced 
resiliency. Because the Northern DPS is at risk of extinction in the 
foreseeable future, we are listing it as threatened.
    Comment 32: Multiple commenters requested additional time to 
provide public comments on the proposed rule, requesting between 90 
days and 6 months of additional time. The commenters pointed to the 
large amount of data available on the species and the difficulty of the 
issues. One commenter noted that the Service has the obligation to 
consider the best available data at any time, and others noted that 
multiple new studies would be published in the months following the 
closing of the public comment period.
    Our response: We acknowledge the public/stakeholder interest 
surrounding this species and thus we extended the public comment period 
by an additional 30 days to give a total of 90 days for public review 
and comments. We consider the comment period described in the ``Summary 
of Comments and Recommendations'' of this final rule to have provided 
the public a sufficient opportunity for submitting both written and 
oral public comments. We followed Service practice and policy in 
managing the public comment process. We provided multiple opportunities 
and avenues for public involvement. Notifications of the comment 
period, meetings, and hearings were provided in the proposed rule, 
which was published in the Federal Register, posted on our website, and 
publicized in newspapers. The public comment period on the proposed 
rule was open for a total of 90 days, during which time we received 
more than 32,000 comments. We offered a variety of options for 
submitting comments; the public could submit their comments 
electronically, using a specified website, via U.S. mail, or orally at 
our two online public hearings. In addition, the Act requires the 
Service to publish a final rule within 1 year from the date we propose 
to list a species, unless there is substantial disagreement regarding 
the sufficiency or accuracy of the available data relevant to the 
determination. During development of this final rule, we did not 
receive any substantial new data that would necessitate us reopening 
the public comment period or necessitate us taking a 6-month extension 
due to substantial disagreement.
    Comment 33: Several commenters asked why there was no NEPA analysis 
of the proposed listing rule. Some added that even if the Service holds 
the position that NEPA is not needed for a

[[Page 72717]]

listing rule that it is needed for a 4(d) rule.
    Our response: The courts have ruled that NEPA does not apply to 
listing decisions under section 4(a) of the Act, nor to 4(d) rules 
issued concurrent with listing (see Pacific Legal Foundation v. Andrus, 
657 F.2d 829 (6th Cir. 1981); and Center for Biological Diversity v. 
U.S. Fish and Wildlife Service, No. 04-4324, 2005 WL 2000928, at *12 
(N.D. Cal. Aug. 19, 2005).
    Comment 34: Several comments asked why there was no regulatory 
flexibility analysis prepared for the listing and 4(d) rule; some 
stated that the Service was required to complete those analyses.
    Our response: In 1982, Congress added to the Act the requirement 
that classification decisions be made solely on the basis of the best 
scientific and commercial data available. In addition, the Conference 
Report accompanying those amendments made clear that one purpose of 
adding that language was to ensure that requirements like those in E.O. 
12866 do not apply to classification decisions. Specifically, it states 
that ``[E]conomic considerations have no relevance to determinations 
regarding the status of species and the economic analysis requirements 
of Executive Order 12291 [the predecessor of E.O. 12866], and such 
statutes as the Regulatory Flexibility Act and the Paperwork Reduction 
Act, will not apply to any phase of the listing process'' (H.R. Conf. 
Rep. No. 97-835, at 20). We consider the 4(d) rule a necessary phase of 
the listing process to put in place protections for threatened species.
    Comment 35: One commenter asked why the peer review comments were 
not made available at the time of the proposed rule, and requested that 
we make them available now.
    Our response: In our August 22, 2016, memorandum updating and 
clarifying the role of peer review of listing actions under the Act, we 
state that we will summarize the opinions of all peer reviewers in the 
final decision document, and that our general practice will be to also 
post the peer review letters on https://www.regulations.gov. We have 
provided those reviews in the supplemental materials for this final 
rule that we have uploaded at this final rule's docket on https://www.regulations.gov.
    Comment 36: Multiple commenters stated that we should assess the 
economic costs of listing. Some also stated that we should not list the 
lesser prairie-chicken because of the harm it would cause to local 
economies, including ranchers, farmers, and other small businesses.
    Our response: 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, the Secretary 
may determine whether any 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; 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. The Act does not provide any language allowing the 
consideration of economic impacts when making listing decisions for 
species; listing decisions must be made solely on the basis of the best 
scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)) 
pertaining to the biological status of and threats to the persistence 
of the species in question.
    Comment 37: Three commenters stated that the 4(d) rule cannot be 
``necessary and advisable'' because it does not discuss the effects on 
private landowners. Two of those commenters stated that the necessary 
and advisable standard of the Act requires economic analysis of the 
costs of 4(d) rules on landowners, assessment of previous conservation 
provided by landowners and other groups, and calculation of what 
incentives for conservation 4(d) rules provide.
    Our response: As discussed in our response to the previous comment, 
the Act clearly prohibits us from considering economic or similar 
information when making listing, delisting, or reclassification 
decisions. Congress added this prohibition in the 1982 amendments to 
the Act when it introduced into section 4(b)(1) an explicit requirement 
that all decisions under section 4(a)(1) of the Act be based ``solely 
on the basis of the best scientific and commercial data available.'' 
Congress further explained this prohibition in the Conference Report 
accompanying the 1982 Amendments: ``The principal purpose of these 
amendments is to ensure that decisions in every phase of the process 
pertaining to the listing or delisting of species are based solely upon 
biological criteria and to prevent non-biological considerations from 
affecting such decisions. These amendments are intended to expedite the 
decision-making process and to ensure prompt action in determining the 
status of the many species which may require the protections of the 
Act.'' (H.R. Conf. Rep. No. 97-835, at 19 (1982).)
    Therefore, following statutory framework and congressional intent, 
we do not conduct or develop economic impact analyses for 
classification decisions. Additionally, 4(d) rules concurrently issued 
with a revised classification rule are inherently a part of a 
classification decision for a threatened species and are similarly 
exempt from any consideration of economic impacts.
    Comment 38: One commenter stated that the Service did not attempt 
to reproduce all scientific information and data on the lesser prairie-
chicken, in accordance with the Data Quality Act, and did not state 
which data were reproduced, and that this lack of explanation raises 
uncertainty in the SSA and listing process for the species, 
particularly where proxy species were used.
    Our response: We strove to summarize the key findings of past 
research and publications, as they relate to the future viability of 
the lesser prairie-chicken and our decisions under the Endangered 
Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) (Service 
2022, pp. 2-3). The response to Comment 30 lays out our policies and 
procedures for assessing information in our scientific documents. We 
affirm that we have complied with the policies laid out in that 
comment, and that we have provided a full and complete accounting of 
the data we used and the areas where we relied upon proxy species.
    Comment 39: One commenter stated that the Service should provide 
statements from each peer reviewer regarding what data were reproduced, 
and on the degree of imprecision used in the SSA.
    Our response: Our peer review policy published on July 1, 1994 (59 
FR 34270), states that, for listing actions, we must solicit peer 
review regarding pertinent scientific or commercial data and 
assumptions relating to the taxonomy, population models, and supportive 
biological and ecological information for species under consideration 
for listing. We have solicited complete and thorough peer review of our 
SSA in accordance with these policies.
    Comment 40: One commenter asserted that we did not consider the 
appropriate factors in making our listing determination. They stated 
that we (1) inappropriately focused on the population trends of the 
species rather than determining whether the species met the definition 
of endangered or

[[Page 72718]]

threatened, that we inappropriately focused on a decline in habitat, 
and that we inappropriately focused on whether conservation measures 
offset habitat loss. They added that courts have found that declines in 
habitat alone are not sufficient to make a threatened or endangered 
finding, and that a failure to offset habitat loss is not a required 
finding.
    Our response: As discussed in our response to Comment 36, we must 
make listing determinations solely on the basis of the five factors and 
on the basis of the best scientific and commercial data available 
pertaining to the biological status of and threats to the persistence 
of the species in question. Data such as population trends and declines 
in habitat can help us understand the current status of the species and 
whether or not it meets the definition of an endangered or threatened 
species under the Act. However, as we describe in our response to 
Comment 31 and the Final Listing Determination sections for both 
species, we are not listing simply due to declines in habitat or 
declines in populations, but on the combined effect of threats 
associated with the five factors and our conclusion that the Northern 
DPS is at risk of extinction in the foreseeable future and that the 
Southern DPS is currently at risk of extinction.
    Comment 41: One commenter noted that the proposed rule did not set 
forth any procedures for its implementation. The commenter suggested 
that a group of interested parties and stakeholders be assembled to 
discuss procedures for implementation and their effects on landowners, 
and that separate groups be formed for the Northern and Southern DPSs.
    Our response: The proposed rule and this final rule describe ways 
in which the provisions of the Act will be implemented. In Available 
Conservation Measures, we set out requirements under section 7 of the 
Act for Federal Agencies, describe issuance of permits, and list 
activities that would or would not constitute a violation of section 9 
for the Southern DPS. For the Northern DPS, under Final Rule Issued 
Under Section 4(d) of the Act, we describe prohibitions and exceptions 
to those prohibitions that affect that DPS. Any additional questions 
regarding implementation of this final rule should be directed to the 
Southwest Regional Office (see FOR FURTHER INFORMATION CONTACT).
    Throughout its work on the species, the Service has placed an 
emphasis on working with stakeholders to develop conservation options 
that are beneficial to both the species and stakeholders. We will 
continue to work with all stakeholders and realize that conservation of 
the lesser prairie-chicken cannot happen without this approach. Section 
4(f) of the Act calls for the Service to develop and implement recovery 
plans for the conservation of endangered and threatened species. The 
recovery planning process begins with development of a recovery outline 
made available to the public soon after a final listing determination; 
see Available Conservation Measures for more details. The Act 
encourages cooperation with the States; we will continue to work with 
our partners, stakeholders, and the public throughout the recovery 
planning process.
    Comment 42: Two commenters noted that the Service's definition of 
foreseeable future extended to only those effects we can reasonably 
forecast. They noted that one population trend analysis (Hagen et al. 
2011) stated it could only be forecast 5 years into the future. The 
commenters concluded that the Service should thus only consider the 
foreseeable future to be the next 5 years. Another commenter stated 
that if we were to list any species with any chance at all to someday 
become extirpated, we would list nearly all species.
    Our response: The Act does not define the term ``foreseeable 
future,'' which appears in the statutory definition of ``threatened 
species.'' Our implementing regulations at 50 CFR 424.11(d) set forth a 
framework for evaluating the foreseeable future on a case-by-case 
basis. The term ``foreseeable future'' extends only so far into the 
future as the Service can reasonably determine that both the future 
threats and the species' responses to those threats are likely. In 
other words, the foreseeable future is the period of time in which we 
can make reliable predictions. ``Reliable'' does not mean ``certain''; 
it means sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    As discussed in ``Threats Influencing Future Condition,'' we 
consider the foreseeable future to be the amount of time on which we 
can reasonably determine a likely threat's anticipated trajectory and 
the anticipated response of the species to those threats. We used all 
of the available data in creating our determination of the length of 
the foreseeable future. While the study quoted by the commenters only 
projects 5 years into the future, we used multiple other reliable data 
sources to project conditions of the species further into the future. 
Our judgment of foreseeable future was based on available data related 
to habitat conditions, threats, and our geospatial analysis; we have a 
reasonable degree of confidence in projecting the future condition of 
the species beyond a 5-year timeframe.
    Comment 43: One commenter asserted that the Service must not simply 
err on the side of caution when listing a species. They stated that if 
we were to list any species with any chance at all to someday become 
extirpated, we would list all nearly species.
    Our response: As discussed in our response to Comment 30, we have 
made our determination solely on the basis of the best available 
information. As discussed in our response to Comment 42, for impacts in 
the foreseeable future, a prediction is reliable if it is reasonable to 
depend on it when making decisions. Therefore, we list any species 
where we reach the conclusion that it meets the definition of 
threatened or endangered, not any species that may have a chance to be 
extirpated at some unknown point in the future.
    Comment 44: Multiple commenters provided input on future threats 
and the Southern DPS. Two commenters stated that future forecast 
climate trends in the Southern DPS did not support an endangered 
finding. Three commenters stated that our future projection analysis 
does not support endangered status for the Southern DPS, and that 
Scenario 5 is too pessimistic in regard to the Southern DPS.
    Our response: As discussed in our response to Comment 31, the Act 
defines an endangered species as one that is in danger of extinction 
throughout all or a significant portion of its range. Under the Act, 
the statutory definition of ``endangered species'' as a species that 
``is in danger of extinction'' clearly connotes an established, present 
condition. In contrast, the definition of a ``threatened species'' as 
one that is ``likely to become an endangered species within the 
foreseeable future'' equally clearly connotes a predicted or expected 
future condition. Thus, in the context of the Act, an ``endangered 
species'' may be viewed as a species that is presently at risk of 
extinction. A ``threatened species,'' on the other hand, is not 
currently at risk of extinction, but is likely to become so. In other 
words, a key statutory difference between a threatened and endangered 
species is the timing of when a species may be in danger of extinction, 
either now (endangered) or in the foreseeable future (threatened). 
Given that we concluded that the Southern DPS is in danger of 
extinction now, in the current condition, this determination is not

[[Page 72719]]

based on future scenarios or future projections of climate trends or 
other threats.
    Comment 45: One commenter asserted that if we considered the future 
effects of climate change, which were not included in our geospatial 
model, we would definitely conclude that the Northern DPS was 
endangered.
    Our response: As discussed in our SSA report, the implications of 
climate change were not incorporated into the geospatial analysis 
related to habitat availability as there is no available data to inform 
specific land cover changes predicted to result from future climate 
change. However, our analysis of the status of the Northern DPS was not 
limited to the geospatial model. We fully considered all potential 
future effects of climate change in making our determination regarding 
the Northern DPS. Additionally, as noted in Comment 44, we consider 
only the current condition of a species when making an endangered 
finding.
    Comment 46: Two commenters asserted that the Service had 
inappropriately identified actions that may result in a violation of 
section 9; specifically, actions that might alter lesser prairie-
chicken habitat such as shrub removal and energy infrastructure/power 
lines that could cause seasonal avoidance. The commenters state that 
neither of these actions meet the statutory definition of take under 
the Act.
    Our response: While identifying actions that may result in a 
violation of the prohibitions outlined in section 9 of the Act, we 
understand that the prohibitions on take apply to the individual and 
not necessarily its habitat. However, there are instances where impacts 
to habitat would result in negative effects to individuals that rise to 
the level of take. Specifically, impacts that result in modifications 
to habitat would constitute a taking of a listed species under the 
definition of ``harm'' if the action results in significant 
modification of habitat that significantly impairs an essential 
behavioral pattern that would likely result in killing or injuring that 
species. This approach is consistent with judicial interpretations of 
the Act, as explained in Babbitt v. Sweet Home Chapter of Communities 
for a Greater Oregon, 515 U.S. 687 (1995) and Arizona Cattle Growers' 
Association v. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir. 
2001).
    After reviewing the best available science and reviewing the 
statutory definitions within the Act, we have determined that actions 
that would result in sustained alteration of preferred habitat for the 
lesser prairie-chicken, such as conversion of native vegetation to 
other land uses or the construction of anthropogenic features that 
result in direct removal of habitat and avoidance of otherwise suitable 
areas, could significantly modify habitat to the point where essential 
behavioral patterns could be disrupted resulting in harm of individual 
lesser prairie-chickens.
    Comment 47: One commenter requested that, given the wide range of 
the lesser prairie-chicken and the number of land uses affected by this 
final rule, the Service provide a much more precise description of the 
activities that would be prohibited by the final listing.
    Our response: The Act and its implementing regulations set forth a 
series of general prohibitions and exceptions that apply to endangered 
wildlife: The prohibitions of section 9(a)(1) of the Act, codified at 
50 CFR 17.21. We list some examples of activities in Available 
Conservation Measures that are and are not likely to result in a 
violation of section 9. However, it is impossible to create an 
exhaustive list of activities that would result in take because it is 
highly site-specific for each action as to whether take would occur. 
For those activities not covered in this final rule, we will assist the 
public in determining whether they would constitute a prohibited act 
under section 9 of the Act. Interested parties may contact their local 
U.S. Fish and Wildlife Service Ecological Services Field Office for any 
assistance.
    Comment 48: One commenter was surprised that we listed the Southern 
DPS as endangered given that we listed the entire species as threatened 
in 2014. They argued that, since that time, populations have increased 
and many more conservation measures have been implemented.
    Our response: This listing determination is a stand-alone 
determination, based on the most recent analysis of the status of the 
species. This determination benefitted from the SSA and the in-depth 
analysis, peer review, and partner review that went into that analysis. 
We acknowledge that significant habitat protection and restoration has 
been underway for the past 8 years. These efforts were fully evaluated 
within the SSA report and thus were fully considered when making our 
listing determination. As detailed in the response to Comment 17, 
conclusions cannot be drawn regarding lesser prairie-chicken 
populations based upon short-term trends.
    Comment 49: Several commenters stated that, if listing was 
warranted, we should ``follow precedent'' and find that it was 
warranted but precluded. One stated it was inappropriate for the 
Service to have withdrawn that option in litigation. One commenter 
stated that the Service should have used the warranted but precluded 
option given that we have discretion to prioritize critically impaired 
species, while giving lower priority to those species for which 
conservation efforts are in place. They noted because there are already 
extensive conservation efforts by States, landowners, and stakeholders 
underway or being developed that benefit the lesser prairie-chicken, it 
should be a low priority species for the Service.
    Our response: The Act requires that we make a determination that 
listing is warranted, warranted but work to complete the determination 
is precluded by other listing proposals, or not warranted. The 
stipulated settlement agreement for lesser prairie-chicken only 
established a date by which we were to make 12-month petition finding, 
it did not remove the option of ``warranted but precluded.'' While 
making a finding, we may consider using the ``warranted but precluded'' 
option where appropriate. We recognize the extensive conservation 
efforts in place by States, landowners, and other stakeholders. 
However, in this instance, we conclude that listing is warranted for 
both the Northern and Southern DPSs of the lesser prairie-chicken, and 
that completing this determination is not precluded by work on other 
pending proposals.
    Comment 50: Two commenters asserted that the listing rule should 
apply only to areas that meet the definition of habitat as stated in 
the SSA report. They also stated that project managers should not have 
to undergo section 7 consultation in areas that did not meet the 
definition of habitat for the lesser prairie-chicken. One example 
commenters provided was that companies should not have to consult on 
existing infrastructure, roads, or similar structures, as they do not 
provide habitat for the lesser prairie-chicken.
    Our response: This rule would apply the prohibitions established 
under section 9 of the Act and outlined in the section 4(d) rule for 
the Northern DPS wherever take of the species may occur. Consultation 
under section 7 of the Act is required if a Federal agency has a 
discretionary Federal action that may affect a listed species. Actions 
that do not result in effects to a listed species would not require 
consultation under section 7 of the Act. This may include activities 
taking place in areas that are not habitat for the species, where there

[[Page 72720]]

will be no direct or indirect effects to the species.
    Comment 51: One commenter asked if additional data would be used to 
supplement the habitat quality analysis between the proposed and final 
rule. They also asked if field data collected as part of the mitigation 
framework could be used to provide more information on habitat quality 
conditions.
    Our response: No additional data has become available at the scale 
or resolution necessary to evaluate habitat quality for the lesser 
prairie-chicken for incorporation into our spatial analysis. While 
there are some data available on properties enrolled in conservation 
programs (including the mitigation framework associated with the 
Rangewide plan), the monitoring and data collection is not standardized 
across programs, making it not possible to compare across programs. 
Additionally, this data is not collected at a scale that would be 
informative for an evaluation at the ecoregion or DPS scale. Because 
these data are selectively collected on properties being managed for 
the lesser prairie-chicken, they would not be representative of habitat 
quality across the larger landscape. While spatial data were not 
available to include habitat quality in our spatial analysis, this does 
not mean that we ignored or did not incorporate efforts by conservation 
programs to increase habitat quality. Within chapters 3 and 4 of the 
SSA report, we include past and current benefits of conservation 
programs. We also project the likely future benefits of these efforts 
to improve habitat quality.
    Comment 52: One commenter asked how we will regulate land use 
within the designated occupied range of the lesser prairie-chicken, 
given that it only occupies patchy areas within the larger occupied 
range.
    Our response: The Act does not allow the FWS to regulate land use. 
Instead, the Act establishes prohibited actions in order to promote the 
conservation of listed species. In furtherance of this objective, we 
maintain a map depicting the current range of the species on publicly 
accessible websites. We suggest that project proponents contact U.S. 
Fish and Wildlife Service Ecological Services Field Offices within 
their State for specific information for their locality and assistance 
in evaluating potential impacts of their projects. As discussed within 
the SSA report, many acres included in the EOR are not lesser prairie-
chicken habitat because either they are impacted by anthropogenic 
features, or they do not possess the vegetative composition and 
structure necessary to support the species.
    Comment 53: Two commenters asked us to describe what recovery would 
look like for the lesser prairie-chicken; one of them noted that we had 
not described preferred conservation areas, goals, or objectives.
    Our response: Section 4(f) of the Act calls for the Service to 
develop and implement recovery plans for the conservation of endangered 
and threatened species; however, this planning process begins after we 
make final the listing of a species. The recovery planning process then 
begins with development of a recovery outline made available to the 
public soon after a final listing determination; see Available 
Conservation Measures for more details. The Act encourages cooperation 
with the States and other countries. We will continue to work with our 
partners and the public throughout the recovery planning process.
    Comment 54: Two commenters asked about how E.O. 13985 (Advancing 
Racial Equity and Support for Underserved Communities) would affect 
implementation of the proposed rule and small electric cooperatives or 
individual landowners. One of those commenters asked us to make sure we 
distinguish between large-scale energy transmission projects and 
smaller transmission lines that support rural land and homeowners. The 
other commenter was concerned that the listing proposal would cause too 
much cost to those landowners and not provide enough benefit to 
landowners.
    Our response: We acknowledge that some economic impacts are a 
possible consequence of listing a species under the Act; for example, 
there may be costs to a landowner to avoid potential impacts to the 
species or associated with the development of a habitat conservation 
plan. In other cases, if the landowner does not acquire a permit for 
incidental take, the landowner may choose to forego certain activities 
on their property to avoid violating the Act, resulting in potential 
lost income. However, as noted in our response to Comment 36 above, the 
statute does not provide for the consideration of such impacts when 
making a listing decision, nor would it be affected by E.O. 13985. 
Section 4(b)(1)(A) of the Act specifies that listing determinations be 
made solely on the basis of the best scientific and commercial data 
available. Such costs are therefore precluded from consideration in 
association with a listing determination.
    Comment 55: One commenter stated that, because the lesser prairie-
chicken is hybridizing with the greater prairie-chicken, the 
distinctness of both species is questionable, and the listing should be 
reconsidered.
    Our response: We have included a review of the best available 
scientific information around the taxonomy of the lesser prairie-
chicken in chapter 2 of the SSA report. For the SSA report and our 
listing determination, we followed the American Ornithologist's Union 
taxonomic classification for the lesser prairie-chicken, which is based 
on observed differences in appearance, morphology, behavior, social 
interaction, and habitat affinities. The simple fact that hybridization 
can or does occur is not an indication that the lesser and greater 
prairie-chicken are not distinct species. The best available science 
clearly indicates they are separate species.
Comments on Population Trends and Analysis
    Comment 56: Multiple commenters submitted statements asserting that 
the lesser prairie-chicken had survived many threats over the past two 
thousand years. They made reference to the species surviving the Dust 
Bowl and the severe drought of the 1950s. The commenters concluded that 
because the species has survived these threats before, it will be able 
to continue to survive them into the future.
    Our response: As discussed in response to Comment 17, the lesser 
prairie-chicken is a boom-bust species. This population characteristic 
highlights the need for habitat conditions to support large population 
growth events during favorable climatic conditions so they can 
withstand the declines during poor climatic conditions without a high 
risk of extirpation. Since the 1930s and 1950s, the lesser prairie-
chicken has seen a significant amount of habitat loss and fragmentation 
resulting in population declines. This reduction in redundancy and 
representation has resulted in a decrease in population resiliency. In 
past decades, fragmentation of lesser prairie-chicken habitat was less 
extensive than it is today, connectivity between occupied areas was 
more prevalent, and populations were larger, allowing populations to 
recover more quickly. In other words, lesser prairie-chicken 
populations were more resilient to the effects of stochastic events 
such as drought. As lesser prairie-chicken population abundances 
decline and usable habitat declines and becomes more fragmented, their 
ability to rebound from prolonged drought is diminished. Because lesser 
prairie-chicken carrying capacities have already been much reduced, if 
isolated populations are extirpated due to

[[Page 72721]]

seasonal weather conditions, they cannot be repopulated due to the lack 
of nearby populations. An evaluation of the resiliency of populations 
(ability to withstand stochastic events) within these four ecoregions 
takes into account the already reduced species' range and associated 
reduction in redundancy and representation compared to historical 
conditions. Population resiliency has been reduced in the remaining 
areas making the species more susceptible to extirpation.
    Comment 57: One comment stated that because the proposed rule did 
not include figures showing raw data from all survey efforts, including 
maps, GPS locations, and flight paths, the proposed rule could not be 
fully or accurately evaluated by the public.
    Our response: The Service does not have access to some raw data 
that is considered confidential; therefore, we made our determination 
based on the best available scientific information as required by the 
statute. The commenters did not explain how access to the raw data 
associated with surveys would have led to different conclusions 
relative to population trends within either DPS.
    Comment 58: One commenter stated that the lesser prairie-chicken is 
a boom-bust species, but the proposed listing focused only on the 
population decreases and disregarded the population increases.
    Our response: In our response to Comment 17, we outlined the boom-
bust cycle of the lesser prairie-chicken. Within the analysis presented 
in the SSA report we present the best available scientific information 
regarding population abundance and trends. Population declines are an 
important metric because risk of extirpation and extinction increase as 
population abundance decreases. While populations will increase during 
years with increased precipitation, long-term population trends 
indicate continual declines in abundance, to the point that the species 
warrants listing.
    Comment 59: One commenter noted that the proposed listing stated 
that loss of the Shinnery Oak Ecoregion would result in loss of the 
entire southwestern portion of the species' range; that commenter 
stated that there is no threat of loss of the entire Shinnery Oak 
Ecoregion.
    Our response: As outlined in the SSA report, the Shinnery Oak 
Ecoregion has experienced a significant amount of habitat loss and 
fragmentation, which has resulted in depleted lesser prairie-chicken 
populations. With the existing level of habitat loss and fragmentation 
resulting in such low population numbers, under current climactic 
conditions, another wide-scale severe drought could occur in this 
ecoregion at any time, and the species may not be able to recover due 
to the reduced and fragmented nature of the remaining habitat. 
Therefore, we determined that the species in danger of extinction in 
the Shinnery Oak Ecoregion.
    Comment 60: One commenter stated that the listing should be delayed 
until further unbiased analysis could be completed by both State 
agencies and outside parties with regard to populations.
    Our response: The SSA report includes the best available scientific 
information regarding past, current, and likely future population 
trends for the lesser prairie-chicken. While we compiled this 
information as part of our SSA report, it is important to note that all 
of these data were collected and analyzed by the State fish and 
wildlife agencies, including contractors working on their behalf, and 
outside experts. Additionally, after compiling this information into 
the SSA report, with which the State fish and wildlife agencies 
contributed, the State fish and wildlife agencies and independent 
experts reviewed the report prior to finalization of the report and our 
proposed listing. The SSA report includes an unbiased view of the best 
available science with regard to past, current, and likely future 
population trends.
    Comment 61: Two commenters stated that the validity of the 
population data presented in the SSA report and the proposed rule, 
including the aerial survey results and population reconstruction data 
from Hagen et al. (2017), are questionable. They also stated that we 
made arbitrary decisions about which part of the data to use and that 
we manipulated data to support our position.
    Our response: The SSA report contains the best available scientific 
information regarding past, current, and future populations for the 
lesser prairie-chicken. The SSA report is explicit about the 
limitations associated with the information. The data for past and 
current lesser prairie-chicken populations largely fall into three 
categories.
    First, the most robust and statistically sound abundance estimates 
for the species are the result of the aerial surveys that have been 
conducted annually since 2012 (with the exception of 2019). These 
surveys were designed to provide a statistically valid method to 
evaluate long-term population trends for the species. Again, there are 
limitations associated with this data as the survey was designed to 
track long-term trends and has been conducted for only 10 years. Since 
the aerial surveys were not conducted prior to 2012, we also provide 
the best available scientific information for the species prior to 
2012.
    Prior to 2012 the only surveys conducted for lesser prairie-
chickens were ground-based surveys conducted by each State wildlife 
agency. Hagen et al. (2017) compiled and analyzed the ground-based 
survey data in the period 1965-2016 using population reconstruction 
techniques. Again, these data have limitations, as discussed in the SSA 
report, but represent the best available scientific information for 
populations from 1965 through 2012. Lastly, the only information on 
populations prior to 1965 consists of anecdotal observations, which we 
also provided within the SSA report. All of these data have 
limitations, and we make any interpretations of that information with 
those limitations in mind. We used the best available scientific 
information for each time period to describe population trends. 
However, we did not ``manipulate'' any data, or make arbitrary 
decisions about what data to use. The SSA report contains an accurate 
representation of the best available science and acknowledges the 
limitations associated with those data. Our characterization of the 
population data (and the larger SSA report) has undergone peer review 
and review by the State wildlife agencies to ensure we have accurately 
characterized the best available scientific information. All 
interpretations and conclusions drawn by the Service were done so with 
the assumptions and limitations of all data regarding population 
abundance estimates fully considered.
    Comment 62: One commenter noted that the SSA report says that 
currently the population in the Shinnery Oak Ecoregion makes up 
approximately 11 percent of the rangewide population estimate then goes 
on to state that the rangewide population estimate in 1960 was 50,000 
birds. The commenter then asserted that, assuming that the Shinnery Oak 
Ecoregion made up 11 percent of the population in 1960, that would mean 
that the Shinnery Oak population would have been 5,500 individuals, 
which is not much different than the population estimate in 2020 from 
the aerial surveys.
    Our response: The assumption that an ecoregion's current percentage 
of the rangewide population would be representative of the percentage 
from 1960 is not supported by the science. For example, historically 
lesser prairie-chicken populations in the Sand

[[Page 72722]]

Sagebrush Ecoregion were among the highest in the range and currently 
the Sand Sagebrush has the lowest population estimates for any 
ecoregion. Additionally, historically the Short-Grass/CRP Ecoregion 
contained few if any lesser prairie-chickens. Today it has the largest 
population of any ecoregion. Similarly, there is no scientific evidence 
to support the assumption that the Shinnery Oak ecoregions current 
percent of the rangewide population would represent the same percentage 
that it did in the 1960s.
    Second, the comment places too great an emphasis on the population 
estimate for 1960. As noted previously, the survey effort used to 
estimate population abundance in 1960 was very limited. This led to 
population reconstruction data that is imprecise for specific years. It 
is crucial that these limitations be considered in any analysis of the 
data. Third, even assuming that the population estimates from 1960 were 
accurate, those are estimated numbers of males only, while the 2020 
survey was a total population estimate. Thus, if one were to assume a 
1:1 sex ratio, the total population estimate would be 100,000 birds in 
1960 (not 50,000). As discussed in our responses to Comments 17 and 18, 
the best use of the population data is not to focus on any given year 
but instead to focus on long-term trends.
    Comment 63: Two commenters stated that, according to the aerial 
survey results from 2020, lesser prairie-chicken populations are 
increasing in the Shinnery Oak Ecoregion.
    Our response: As discussed in our responses to Comments 17 and 18, 
evaluating population health of the lesser prairie-chicken based upon 
short-term trends is not an appropriate use of the data to analyze 
long-term viability. When viewed in context of precipitation patterns 
as discussed in the response to Comment 17, from 2013-2020 we would 
expect populations to increase. The results of the aerial surveys show 
a significant decline in the Shinnery Oak Ecoregion in both 2021 and 
2022 from an estimated 4,881 birds in 2020 to an estimated 1,569 birds 
in 2021 and an estimated 519 birds in 2022. This decline occurred due 
to a drought in the southern portion of the species' range, which 
negatively impacted populations. These new data from the 2021 and 2022 
aerial surveys illustrate the influence of precipitation on annual 
abundance estimates and demonstrate the importance of analyzing long-
term population trends. According to the most recent aerial survey 
results, lesser prairie-chicken populations in the Shinnery Oak 
Ecoregion have declined from an estimated 2,967 birds in 2012 to an 
estimated 519 birds in 2022 but more telling is the evaluation included 
in the SSA report of long-term population declines.
    Comment 64: One commenter stated that, because the Short-Grass/CRP 
Ecoregion supports the largest population of lesser prairie-chickens 
and the USGS modeling efforts projected the highest level of risk for 
that ecoregion, the Northern DPS should be listed as endangered.
    Our response: Although the demographic model from Cummings et al. 
2017, which the commenter refers to as the USGS modeling efforts, 
projected the Short-Grass Ecoregion had the lowest median growth rate 
among the ecoregions, it also has the greatest uncertainty in projected 
abundance. This uncertainty is likely due to the fewer years of 
demographic observations available in this ecoregion, making it 
difficult to infer a clear trend. We considered these modeling results, 
including the associated uncertainties and limitations, as part of our 
larger analysis and as one source of information. We evaluated all 
available science regarding modeling of future populations and conclude 
that while the declines may not be as drastic as predicted in the 
Cummings et al. (2017) report, multiple lines of evidence support 
likely declines in lesser prairie-chicken abundance in the future. 
While we considered the results of Cummings et al. (2017), we also 
incorporated all of the best available information to inform our 
decision. After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
find that the lesser prairie-chicken maintains populations in all three 
ecoregions in the Northern DPS, and has genetic and ecological 
representation in those ecoregions, as well as population redundancy 
across the entirety of the DPS. Thus, lesser prairie-chickens in the 
Northern DPS are not currently in danger of extinction, and thus the 
Northern DPS does not meet the definition of endangered. Our future 
projections do indicate that habitat will become increasingly 
fragmented and less able to support lesser prairie-chickens. Overall, 
after assessing the best available information, we conclude that the 
Northern DPS of the lesser prairie-chicken is not currently in danger 
of extinction but is likely to become in danger of extinction within 
the foreseeable future throughout all of its range.
    Comment 65: One commenter noted that populations in the Shinnery 
Oak and Sand Sagebrush Ecoregions have shown limited ability to 
increase in numbers recently following drought periods.
    Our response: As discussed in our response to Comment 17, the 
lesser prairie-chicken is a boom-bust species. As outlined in the SSA 
report, habitat loss and fragmentation has resulted in boom years that 
have lower overall population abundance over time, and during the bust 
years population abundance is continually getting lower. In some 
ecoregions, like the Shinnery Oak Ecoregion in particular, the 
population abundance in bust years is dangerously close to zero. As 
relevant to the Sand Sagebrush Ecoregion, we project the increased 
impacts of threats on the species will continue to drive the population 
abundance in bust years closer to zero.
    Comment 66: One commenter cited an interim assessment of lesser 
prairie-chicken population trends from 1997 through 2011 that was 
completed in 2012 for the Lesser Prairie-Chicken Interstate Working 
Group and noted that this assessment concluded largely increasing 
numbers with low extinction risks.
    Our response: We considered the 2012 interim report in the SSA 
report (see the citation to Garton et al. 2016). This report has been 
updated and refined since that time. The updated information was 
included in chapter 4 of the SSA report (see the citation to Hagen et 
al. 2017). It is important to note that this analysis does have some 
limitations in that it was based only on simulating demographic 
variability of populations and did not incorporate changing 
environmental conditions related to habitat or climate. This 
information, including its limitations, was included in the overall 
analysis and considered as part of the decision.
    Comment 67: One commenter stated that, due to northward expansion, 
stable rangewide populations, and extraordinary conservation efforts, 
the lesser prairie should not be listed.
    Our response: As detailed in responses to Comments 17, 18, and 61, 
the Service fully considered the best available scientific information 
regarding past, current, and future population trends for the lesser 
prairie-chicken. We also fully detailed and considered the expansion of 
the lesser prairie-chicken in the Short-Grass/CRP Ecoregion in the SSA 
report. Lastly, we worked directly with conservation entities 
delivering the conservation efforts for the species to ensure we 
accurately characterized those efforts within our SSA report. In 
summary, the Service fully considered population trends, the northern 
expansion in the

[[Page 72723]]

Short-Grass/CRP Ecoregion, and the benefits of conservation efforts in 
our analysis and decision.
    Comment 68: One commenter stated that, due to changes in survey 
protocols over time, direct comparison across time is not possible and 
the proposed listing is based upon assumptions, opinions, and 
speculation as opposed to the best available science.
    Our response: As detailed in response to Comment 61, the Service 
included and fully considered the best available scientific information 
on past, current, and future population trends. In recognition of the 
fact that there have been advancements in survey methodology and 
increased survey efforts since the 1960s, we used the best available 
science for each time period to characterize population trends for the 
species.
    Comment 69: Multiple commenters provided statements relating 
rangewide and ecoregional precipitation patterns to annual and short-
term population fluctuations. Specifically, the comments stated that 
the Service did not give enough consideration to the effects of drought 
related to population trends.
    Our response: As discussed in our responses to Comments 17 and 18, 
precipitation patterns play a significant role in annual fluctuations 
in the estimated abundance of lesser prairie-chickens at both the 
rangewide and ecoregional scales. The analysis included in the SSA 
report accounts for this relationship and bases our conclusions 
regarding population status on long-term trends.
    Comment 70: One commenter stated that populations of the lesser 
prairie-chicken have been stable to increasing over the past 60 years.
    Our response: The SSA report provides a detailed summary of the 
best available scientific information with regard to historical and 
current population estimates and a summary of long-term population 
trends. This information was reviewed by independent peer reviewers as 
well as State and Federal partners. This information clearly indicates 
that the lesser prairie-chicken has experienced population declines 
over the last 60 years. While Hagen et al. (2017) estimated the minimum 
number of male lesser prairie-chicken annually based upon ground-based 
survey estimates as far back as 1960, those estimates for the years of 
1960-1961 were based upon very limited survey efforts and thus not 
reliable. It was not until approximately 1970 that survey efforts had 
increased. In 1970 it was estimated that there was a total of 
approximately 350,000 (assuming a 1:1 sex ratio) total lesser prairie-
chickens and the most recent aerial surveys indicate total abundance in 
2022, across all four ecoregions, of approximately 26,600 birds.
    Comment 71: One commenter noted evidence that populations are 
declining and stated that populations are well short of the 10-year 
average population size established as part of the Range-wide Lesser 
Prairie-Chicken Conservation Plan.
    Our response: We acknowledge that the current population levels are 
less than the 10-year average population goal established for each 
Ecoregion in the RWP. However, we evaluated the best available science 
regarding past, current, and likely future population trends for the 
lesser prairie-chicken. The determination of whether the species 
warrants listing under the Act was informed by an evaluation of the 
species' viability as presented in the SSA report, which does not 
establish defined population targets. We have not made any 
determination as to whether achieving the population goals established 
in the Range-wide Lesser Prairie-Chicken Conservation Plan would mean 
that the species would not warrant listing under the Act.
    Comment 72: One commenter stated that, due to uncertainties 
associated with population estimates, the data are insufficient to 
determine that the populations have declined.
    Our response: As discussed in response to Comment 61, the SSA and 
our determination used the best available scientific information 
regarding past, current, and likely future population trends for the 
lesser prairie-chicken. As with any science, there are limitations 
associated with these data and the Service has been explicit about 
these limitations for transparency and to ensure that these limitations 
were fully considered while making our decision regarding the status of 
the species under the Act. We did not only consider population trends 
but also used our analysis of threats, conservation efforts, and 
habitat to inform our listing determination.
    Comment 73: One commenter stated that the Service ignored the 2020 
aerial survey results and relied too heavily upon the Hagen et al. 2017 
study of quasi-extinction risks and pointed out limitations associated 
with that analysis.
    Our response: We included the results of the aerial surveys, 
including the 2020 aerial survey, within our SSA report, and those 
survey results were fully considered in making our determination. While 
the Service considered the results of the Hagen et al. 2017 study in 
our analysis, we explicitly acknowledged the limitations associated 
with that study. One key limitation is that the analyses were based 
only on simulating demographic variability of populations and did not 
incorporate changing environmental conditions related to habitat or 
climate. Other limitations include the challenges of these data 
resulting from ground-based survey efforts as noted in Zavaleta and 
Haukos (2013, p. 545) and Cummings et al. (2017, pp. 29-30). While 
summarizing the information on the likely future population trends of 
the lesser prairie-chicken, we provide a summary of all available 
studies that project future trends. Each of these studies has specific 
limitations associated with them, and those limitations were fully 
considered while making our determination with regard to the status of 
the species.
    Comment 74: Multiple commenters stated that using the 5-year 
average to report the current population estimate is misleading and 
that by doing so the Service precluded the aerial survey results from 
prior to 2015.
    Our response: As stated in the SSA report, the results of the 
aerial survey efforts should not be taken as precise estimates of the 
annual lesser prairie-chicken population abundance, as indicated by the 
large confidence intervals. The best use of this data is for long-term 
trend analysis, and conclusions should not be drawn based upon annual 
fluctuations. This is why we report the population estimate for the 
current condition as the average of the past 5 years of surveys. The 
decision on how to best present the aerial survey data was made in 
close coordination with the State wildlife agencies who recommended 
this approach to the Service. While we use the 5-year average to 
estimate current population abundance for each ecoregion, this does not 
mean that we precluded the inclusion of aerial survey results prior to 
2015 from our analysis. The figures in chapter 3 of the SSA report 
include the annual results from aerial survey efforts since 2012 when 
the surveys began, and this information was fully considered as part of 
our decision.
    Comment 75: One commenter stated that Garton et al. (2016) 
concluded that populations are unlikely to fall below critical 
thresholds in the next 30 years, and that Hagen et al. 2017 concluded 
that the lesser prairie-chicken now occupies areas in northern Kansas 
that previously did not support the lesser prairie-chicken. The 
commenter concluded that these studies indicate that the species is 
healthy and that the Service must therefore revise the SSA.

[[Page 72724]]

    Our response: Garton et al. (2016) used data collected through 
2012, but Hagen et al. 2017 has since been updated to include data 
collected through 2016 and is included in the SSA report. The 
documented occupancy of areas that previously supported very limited 
numbers of lesser prairie-chicken in the Short-Grass/CRP Ecoregion was 
fully discussed in the SSA report, included in our analysis, and fully 
considered as part of our determination. We have concluded that the 
best available science does not support the commenter's assertion that 
the species is healthy, and we are finalizing the proposal to list the 
species under the Act.
    Comment 76: Multiple commenters noted that since 2013 the number of 
estimated leks included as part of the aerial survey report has nearly 
doubled. The commenters stated that the Service must revise the SSA 
report to include this information.
    Our response: The abundance estimates included in the aerial survey 
report are a function of the estimated number of leks and the average 
number of birds per lek. The number of estimated leks will fluctuate 
annually depending upon precipitation. The inclusion of this metric in 
the SSA would not be a metric that would further inform our decision 
with regard to the status of the species under the Act because it does 
not accurately reflect the population health of the species.
    Comment 77: One commenter stated that the Shinnery Oak Ecoregion 
historically had lower populations as compared to other ecoregions 
because it contained less preferable habitat, and when analyzing 
population trends the Service should use the 2012 aerial survey results 
as our baseline for this ecoregion to determine if populations have 
declines.
    Our response: The best available science indicates that the 
Shinnery Oak Ecoregion did not historically have lower population 
estimates as compared to other ecoregions. Estimates for the Shinnery 
Oak Ecoregion included in the SSA report show that in the mid-1980s 
there were an estimated 20,000 males (40,000 total birds if one assumes 
a 1:1 sex ratio) in this ecoregion. For comparison purposes, the Short-
Grass/CRP Ecoregion, which now supports the largest population of 
lesser prairie-chickens, historically supported few, if any, lesser 
prairie-chickens. The SSA report provides a detailed summary of the 
best available scientific information with regard to habitat 
preferences by the lesser prairie-chicken in each ecoregion and 
provides a summary of the best available information related to 
population abundance per ecoregion. As discussed in response to 
Comments 17 and 18, the best available science does not support 
evaluating population status based upon annual fluctuations or short-
term trends.
    Comment 78: One commenter discussed the 50/500 rule introduced by 
Franklin (1980) and noted that the effective population sizes of the 
lesser prairie-chicken both rangewide and in each specific ecoregion 
are unlikely to fall below 50 or 500 individuals and thus the data 
indicate that current populations of lesser prairie-chicken are more 
than sufficient to perpetuate the species.
    Our response: We note that the 50/500 rule is a general rule and 
should not be conflated with meeting the definition of a threatened or 
endangered species under the Act. The 50/500 rule is a theory that 
states that any population with an effective breeding size of less than 
50 is at immediate risk of extinction purely due to demographic 
fluctuations, which occur in all populations. The theory also outlines 
that populations of less than 500 are at long-term risk of extinction 
due to loss of genetic variation resulting in loss of ability to 
respond to environmental variation. It is also important to note that 
many authors have questioned whether 500 individuals is adequate to 
prevent loss of genetic variation. For example, Lande (1995, entire), 
suggested that populations of less than 5,000 individuals would be 
subject to loss of genetic variation and increased risk of extinction. 
There is no single minimum population size number for all taxa, and 
extinction risk depends on a complex interaction between life-history 
strategies, environmental context, and threat (Flather et al. 2011, 
entire). As referenced in the SSA report, the data and methodology used 
Hagen et al. (2017) to both calculate population abundance estimates in 
the past as well as to project future populations and extinction risks 
has limitations. A key limitation associated with this study is that 
the analysis was based only on simulating demographic variability of 
populations and did not incorporate changing environmental conditions 
related to habitat or climate. We consider all of the context presented 
with each study, and we make our listing determination based on all 
factors evaluated.
    Comment 79: One comment stated that the Service should not be 
considering the lesser prairie-chicken for listing as the Service has 
analyzed listing for nearly two decades and found the species to be not 
warranted for listing in the past despite previous populations being 
lower than current numbers.
    Our response: Beginning in 1998, we annually determined that the 
species warranted listing but was precluded by higher priority actions 
until 2012, when we proposed the lesser prairie-chicken for listing. On 
April 10, 2014, we published a final rule listing the lesser prairie-
chicken as a threatened species under the Act (79 FR 19974) and 
concurrently published a final 4(d) rule for the lesser prairie-chicken 
(79 FR 20073). However, on September 1, 2015, the final listing rule 
for the lesser prairie-chicken was vacated by the United States 
District Court for the Western District of Texas, which also mooted the 
final 4(d) rule. We received a new petition to list in 2016 and on 
November 30, 2016, we published a substantial 90-day finding (81 FR 
86315) and have been evaluating the status of the species since that 
time. Please see the Previous Federal Actions section of the proposed 
listing rule for more details on the listing history of the lesser 
prairie-chicken (86 FR 29432, June 1, 2021). Regardless, any past 
decisions regarding the status of the species do not have any impact on 
the current decision. This listing determination is made based on the 
best available information.
    Comment 80: One commenter stated that based upon current estimates 
from the aerial survey efforts, population abundance is similar to 
levels observed in 2003 and the 1960s.
    Our response: As discussed in our response to Comment 62, the SSA 
report and our determination used the best available scientific 
information regarding past, current, and likely future population 
trends for the lesser prairie-chicken. As with any science, there are 
limitations with this information and any interpretations of those data 
must be made with those limitations in mind. One specific limitation 
associated with the population reconstruction data is that survey 
effort used to estimate population abundance in 1960 was very limited, 
and it was not until approximately 1970 that survey effort increased. 
In 1964 those data estimated approximately 50,000 males (100,000 total 
birds if a 1:1 sex ratio), by 1967 estimates were greater than 100,000 
males (200,000 total birds if assume 1:1 sex ratio is assumed), and in 
the early 2000s there were greater than 50,000 males (100,000 total 
birds if a 1:1 sex ration is assumed). Current aerial survey estimates 
indicate the 5-year average range-wide population of 32,210 total 
birds. The best available scientific information does not support the 
statement that lesser prairie-chicken

[[Page 72725]]

population abundance is similar today to what was estimated for the 
1960s and 2003.
    Comment 81: Multiple commenters discussed the methodology used in 
the Garton et al. (2016) and Hagen et al. (2017) population 
reconstruction effort. They stated that this information is incomplete 
and misleading due to concerns with the methodology and lack of 
availability of underlying data. Additionally, multiple commenters 
noted that the population reconstruction estimates provided by Hagen et 
al. 2017 for the years of 1963-1969 indicate a rapid population 
increase and that precipitation patterns for those same periods show 
drought conditions. The commenters concluded that this estimate would 
indicate that the population data in that data set are not reliable.
    Our response: As discussed in our response to Comment 30, we must 
make listing determinations based upon the best available scientific 
data. Additionally, as discussed in response to Comment 61, the SSA and 
this final rule used the best available scientific information 
regarding past, current, and likely future population trends for the 
lesser prairie-chicken. As with any scientific analysis, there are 
limitations with this information and any interpretations of those data 
must be made with those limitations in mind. While the data and 
methodology used to produce the population reconstruction estimates 
provided by Garton et al. (2016) and Hagen et al. (2017) certainly have 
limitations, they still represent the best available scientific 
information regarding past population estimates. Within the SSA report, 
we explicitly identify these limitations by noting, ``The Service has 
identified concerns in the past with some of the methodologies and 
assumptions made in this analysis which largely still remain,'' and the 
challenges of these data are noted in Cummings et al. (2017, pp. 29-30) 
and Zavaleta and Haukos (2013, p. 545). While these concerns remain, 
including the very low sample sizes particularly in the 1960s, Garton 
et al. (2016) and Hagen et al. (2017) represent the only attempts to 
compile the extensive historical ground lek count data collected by 
State agencies to estimate rangewide population sizes. We fully 
considered these limitations within our evaluation and this final rule.
    Comment 82: Two commenters suggested that the Service should 
combine survey data from the various methodologies and data sets used 
to estimate population abundances in the period 1995-2020 to analyze 
trends for the Shinnery Oak Ecoregion.
    Our response: As discussed in response to Comment 61, the SSA 
report and our determination used the best available scientific 
information regarding past, current, and likely future population 
trends for the lesser prairie-chicken. As with any scientific analysis, 
there are limitations associated with these data. While these studies 
represent the best available data for those timeframes, each 
methodology contains assumptions and limitations specific to that 
specific study and thus it is not appropriate to combine estimates from 
across methodologies into one graphic or table. When evaluating 
populations, we use these data only to compare trends. These trends 
consistently reveal declining populations.
    Comment 83: Three commenters provided their own population 
projections based upon their assumption that a percentage of habitat 
loss would result in an equivalent decrease in populations. They both 
concluded that the lesser prairie-chicken would fall below the critical 
thresholds of 50 or 500.
    Our response: As discussed in our response to Comment 1, there is 
not scientific support to indicate that a loss of a certain percentage 
of habitat would result in an equivalent loss of that same percentage 
of the population. While we agree that there is a direct relationship 
between habitat availability and population trends, the location of 
additional habitat losses or gains will dictate the magnitude of 
population response to those changes. Thus, while we can conclude there 
is a direct relationship between population trends and habitat 
availability, we cannot conclude that a given percent reduction of 
habitat will result in a given percent reduction in population 
abundance. Additionally, as discussed in our response to Comment 78, it 
is important to note that the 50/500 rule is a general rule that was 
intended to project future risk of populations falling below a certain 
level. This concept should not be conflated with meeting the definition 
of a threatened or endangered species under the Act.
Comments on Conservation Efforts
    Comment 84: One commenter stated that, instead of listing, the 
Service should work with USDA to get wildlife food plots included as a 
part of CRP, as this effort would benefit the lesser prairie-chicken.
    Our response: The CRP already provides substantial benefits to the 
lesser prairie-chicken as outlined throughout the SSA report. We are 
not aware of any evidence that inclusion of wildlife food plots as part 
of CRP would result in additional conservation benefits for the lesser 
prairie-chicken, nor did the commenter provide any data to support this 
suggestion.
    Comment 85: Multiple commenters stated that the Service did not 
consider conservation efforts as required by PECE (our policy for 
evaluation of conservation efforts when making listing decisions). They 
stated that we did not conduct a rigorous analysis of conservation 
efforts as required by PECE of each conservation effort and thus that 
we had not given adequate consideration or weight to those existing 
efforts. Commenters also noted that we did perform a PECE analysis for 
the existing conservation banks.
    Our response: PECE is inapplicable in this situation because the 
purpose of PECE (68 FR 15100, March 28, 2003) is to ensure consistent 
and adequate evaluation of recently formalized conservation efforts 
when making listing decisions. The policy provides guidance on how to 
evaluate conservation efforts that have not yet been implemented or 
have not yet demonstrated effectiveness. The evaluation focuses on the 
certainty that the conservation efforts will be implemented and the 
certainty of effectiveness of the conservation efforts. The policy 
presents nine criteria for evaluating the certainty of implementation 
and six criteria for evaluating the certainty of effectiveness for 
conservation efforts. The result of a PECE analysis is that either 
there is adequate certainty that the new effort can be considered in 
the listing determination or there is not adequate certainty that the 
effort will be implemented and effective and thus it should not be 
considered.
    The conservation efforts cited are ongoing (not new) and have a 
track record of implementation and effectiveness. Because these have 
already been in place and have a track record regarding effectiveness, 
we did not conduct a PECE analysis. Rather, the current and projected 
future effects of these conservation measures are fully included in our 
SSA. Because these conservation measures were fully considered within 
the SSA, they are also fully incorporated into the resulting listing 
determination. Therefore, separate analyses for these efforts are not 
needed under PECE.
    Comment 86: One commenter stated that, in addition to the existing 
conservation efforts currently in place, other programs that have not 
been given an opportunity to operate can further encourage and enhance 
lesser prairie-chicken conservation efforts. Programs

[[Page 72726]]

such as the Stakeholder Conservation Plan that was developed by a 
coalition of oil and gas, agriculture, and environmental groups have 
not been given the opportunity to be introduced to landowners.
    Our response: We are not aware of any other conservation efforts 
that are reasonably certain to occur and have beneficial impacts to the 
species. Specifically, the Stakeholder Conservation Plan is not a 
formalized plan or effort. This strategy was being developed for the 
purposes of seeking a section 10(a)(1)(B) permit under the Act. The 
strategy has not yet been finalized and thus is not considered in our 
analysis.
    Comment 87: Multiple commenters noted deficiencies and corrections 
that are needed to the Range-Wide Conservation Plan for the Lesser 
Prairie-Chicken administered by the Western Association of Fish and 
Wildlife Agencies. Some commenters simply noted their concerns while 
others noted that the Service should not rely upon the plan while 
making determinations around the status or 4(d) rule.
    Our response: While we fully incorporated the current and likely 
future conservation benefits being provided by the Range-Wide 
Conservation Plan for the Lesser Prairie-Chicken, we acknowledge the 
uncertainties associated with the plan and the potential effects of 
those uncertainties on the current and likely future benefits within 
the SSA report. These uncertainties were considered as part of the 
listing determination.
    Comment 88: Two commenters stated that listing the lesser prairie-
chicken would not provide any additional conservation for the species 
beyond what already exists.
    Our response: The Act requires the Service to make a listing 
determination using the best available scientific and commercial data 
after conducting a review of the status of the species and after taking 
into account those efforts, if any, being made by any State or foreign 
nation, or any political subdivision of a State or foreign nation to 
protect such species. Listing of the lesser prairie-chicken will result 
in significant new conservation for the species. The prohibitions 
outlined in this listing rule will now provide additional protections 
for the lesser prairie-chicken and its habitat beyond what is already 
outlined within the existing regulatory mechanisms section of the SSA 
report and this rule. Additionally, conservation measures provided to 
species listed as endangered or threatened species under the Act 
include recognition as a listed species, planning and implementation of 
recovery actions, requirements for Federal protection, and prohibitions 
against certain practices. Recognition through listing results in 
public awareness, and conservation by Federal, State, Tribal, and local 
agencies, private organizations, and individuals. The Act encourages 
cooperation with the States and other countries and calls for recovery 
actions to be carried out for listed species. The protection required 
by Federal agencies, including the Service, and the prohibitions 
against certain activities are discussed, in part, in the Available 
Conservation Measures section of this document.
    Voluntary programs, such as the Service's Partners for Fish and 
Wildlife program and the Natural Resources Conservation Service's Farm 
Bill programs offer opportunities for private landowners to enroll 
their lands and receive cost-sharing and planning assistance to reach 
their management goals while providing take coverage. The recovery of 
endangered and threatened species to the point that they are no longer 
in danger of extinction now or in the future is the ultimate objective 
of the Act, and the Service recognizes the vital importance of 
voluntary, nonregulatory conservation measures that provide incentives 
for landowners in achieving that objective. We are committed to working 
with landowners to conserve this species and develop workable 
solutions.
    Comment 89: One commenter cited a report generated by Defenders of 
Wildlife, which estimated the amount of habitat lost since the 2015 
court decision that removed the protections of the Act for the lesser 
prairie-chicken, and stated that this is evidence that conservation 
efforts have not adequately protected the species.
    Our response: We are aware of the report and cited it in our SSA 
report. Pursuant to the requirements of the Act, we used the best 
available information to complete a thorough analysis of existing 
impacts and existing conservation efforts, and we considered the likely 
future implications of impacts and conservation efforts on the lesser 
prairie-chicken. The Defenders report includes some limitations; for 
example, much of their analysis areas falls outside of the lesser 
prairie-chicken estimated range (Defenders of Wildlife 2020, entire). 
Thus, it is not directly comparable to our analysis of habitat loss.
    Comment 90: One commenter stated that NRCS and FSA did not provide 
formal comments on the SSA report and noted that NRCS and FSA could 
have provided input to inform the conservation projections included in 
the SSA.
    Our response: We provided the opportunity for Federal partners 
delivering conservation programs benefiting the lesser prairie-chicken 
and the State wildlife agencies an opportunity to review the draft SSA 
report. While neither NRCS nor FSA provided comments related to the SSA 
report during the public comment period, the agencies did previously 
provide input that was used to inform the conservation projections in 
the SSA analysis. Specifically, while characterizing the past, current, 
and likely future benefits of the programs administered by NRCS and 
FSA, we worked directly with staff from both agencies. Employees from 
both agencies first assisted us by providing the detailed information 
presented in chapter 3 of the SSA report regarding past and current 
benefits of their programs. Next, they assisted the Service in 
detailing the assumptions around the likely future benefits of the 
programs by providing the Service with program-specific information and 
discussing the likely future expected benefits of those programs.
    Comment 91: One commenter asked how much long-term conservation has 
been achieved, how effective that conservation has been, and how much 
more is needed to achieve recovery.
    Our response: We detail all conservation efforts within chapter 3 
of the SSA report, including long-term conservation, for the lesser 
prairie-chicken. After a final listing determination, the Service will 
begin the recovery planning process where we identify conservation 
goals that could lead to either downlisting or delisting.
    Comment 92: One commenter stated that our assumption around no net 
change in acreage under CRP fails to take into account the number of 
new acres of CRP that will likely convert cropland to grassland as a 
result of increased CRP payments under E.O. 14008 section 216.
    Our response: From discussions with conservation partners within 
the range of the lesser prairie-chicken, the increase in rental payment 
included under E.O. 14008 will simply prevent declines in program 
participation, not result in increased acreage within the range of the 
lesser prairie-chicken. We do not expect that E.O. 14008 would result 
in increased participation over the next 25 years to a level that would 
impact our assumptions around no net change in future CRP acreage 
within the range of the lesser prairie-chicken.
    Comment 93: Multiple commenters stated that the Service did not 
fully

[[Page 72727]]

consider conservation efforts designed for industry enrollment. 
Specifically, comments noted that one of the key principles of 
agreements such as the Range-Wide Conservation Plan for the Lesser 
Prairie-Chicken and the associated oil and gas CCAA is to create 
financial incentives to minimize impacts to the species by minimizing 
new acreage impacted through co-location of development.
    Our response: We fully considered efforts to co-locate impacts from 
conservation efforts designed for industry enrollment and specifically 
the industry enrollment in the efforts administered by WAFWA. We 
accomplished this by including assumptions, detailed below, which were 
informed by analyses conducted by WAFWA, within our analysis projecting 
the future effects of oil and gas development within the SSA report. 
For details on this, please see appendix C of the SSA report (Service 
2022). After projecting the number of new wells that will be drilled 
per ecoregion that would impact potentially usable space for the lesser 
prairie-chicken, we then converted the number of wells to the number of 
acres that will be impacted by those wells. To calculate the actual 
estimated impacts, we begin with 69.9 ac (28.3 ha) per well, which is 
the area of a circle with a 984-ft (300-m) radius, which we concluded 
for this analysis is the impact of an individual well on the lesser 
prairie-chicken. We then estimated how much of the area for each well 
is likely to be already impacted by existing features. WAFWA estimated 
that, on average, new wells mitigated through their mitigation strategy 
overlapped existing features by 56.7 percent. Additionally, WAFWA had 
previously estimated that, prior to the range-wide conservation plan 
implementation, wells overlapped existing features by 42 percent. In 
February 2019, WAFWA also estimated that approximately 25 percent of 
wells drilled within the range of the lesser prairie-chicken were being 
mitigated for under their mitigation strategy in 2017. Based on that 
information, we concluded that 25 percent of new wells would have an 
overlap of 56.7 percent with existing infrastructure, and 75 percent of 
new wells would have an overlap of 42 percent. Using the weighted 
average, we estimated that, when overlap is considered, each new well 
would impact 38 acres. We fully incorporated the efforts to co-locate 
infrastructure while projecting the likely future impacts of oil and 
gas development within the SSA report and thus we fully considered 
those efforts in our decision.
    Comment 94: Multiple commenters stated that we did not fully 
consider that the CHAT (crucial habitat assessment tool) categories 
that were included under the Range-Wide Plan implemented as part of the 
oil and gas CCAA administered by WAFWA have created avoidance of those 
priority conservation areas and that industry is avoiding high-quality 
habitat.
    Our response: The best available information that we have does not 
indicate that the Range-Wide Plan and the associated oil and gas CCAA 
have resulted in industry avoiding higher quality lesser prairie-
chicken habitat and placing wells in spaces of less value to the lesser 
prairie-chicken. To evaluate this assertion, a comprehensive analysis 
is needed of wells being processed under the mitigation framework and 
also those wells for which companies are choosing not to mitigate. 
WAFWA provided a snapshot of this scenario when they analyzed all the 
wells drilled in the range of the lesser prairie-chicken in 2017 and 
provided a summary of their findings to the Advisory Committee of the 
RWP in February of 2019. This analysis indicated that a total of 656 
wells were drilled across the lesser prairie-chicken range in 2017. Of 
those, 308 were drilled by companies enrolled in the rangewide plan or 
CCAA, and the remaining 348 wells were drilled by companies not 
participating in those agreements. Of those 308 wells drilled by 
participating companies, only 161, or less than 25 percent of the total 
number of drilled wells, were enrolled in the mitigation program. This 
information, while limited in its scope, represents the best available 
information regarding this issue, and we fully considered it in making 
our determination.
    WAFWA also produced a habitat quality index, which combined the 
habitat quality and the CHAT category, and found that wells that were 
drilled by participating companies that were not mitigated for had a 
higher habitat quality index, which would have resulted in increased 
mitigation costs as compared to wells that the same enrolled companies 
did mitigate. Based upon this finding, WAFWA concludes, ``Oil and gas 
companies appear to be making a conscious choice to avoid mitigating 
for wells in higher quality habitat,'' and ``Wells drilled by 
participants that were not mitigated under the plan had the highest 
habitat quality and per well mitigation costs'' (WAFWA 2019, 
unpaginated). While there are financial incentives to minimize impacts 
on wells mitigated for going through the mitigation framework, there is 
no evidence to support the assertions that the industry is completely 
avoiding high-priority CHAT areas or areas with higher habitat quality.
    Comment 95: One comment stated that having two DPSs will reverse 
the gains that have been made by the WAFWA CCAA to work on increased 
dispersal between and amongst ecoregions using focal areas and 
connectivity zones.
    Our response: The CCAA covering oil and gas development 
administered by WAFWA adopted a mitigation framework outlined in the 
Range-wide Conservation Plan for the Lesser Prairie-Chicken, which was 
also developed by WAFWA. While this mitigation strategy incorporates 
focal areas and connectivity zones, it is important to note that there 
are no focal areas or connectivity zones connecting the Southern DPS 
(Shinnery Oak Ecoregion) to the Northern DPS (Mixed-Grass, Sand 
Sagebrush, and Short-Grass/CRP Ecoregions). Through this effort, there 
has been no attempt at reestablishing dispersal between the Shinnery 
Oak Ecoregion and the rest of the range and thus there have been no 
gains that would be reversed.
    Comment 96: One comment stated we ignored conservation efforts by 
private entities. In regard to the removal of infrastructure by private 
entities, the commenter notes that we stated we do not have data but 
points out that we did project future well drilling based upon past 
rates.
    Our response: We only project restoration efforts for the removal 
of energy infrastructure occurring through the identified entities 
delivering conservation. We acknowledge that some removal of 
infrastructure likely occurs outside of the entities identified, but no 
data exist to provide an estimate specific to the likely future efforts 
on lesser prairie-chicken usable area within our analysis area. As 
accurately noted in the comment, we were able to project future 
drilling of oil and gas wells but we did not project future removal of 
infrastructure. Data are available to evaluate past trends and rates 
with regard to drilling of new oil and gas wells, and thus we were able 
to evaluate those data and project future development. However, no data 
are available to evaluate past trends and rates with regard to 
voluntary removal of infrastructure across our analysis area, and the 
commenter provides no data or source of information that could further 
inform our analysis, so we have no basis to project future rates of 
removal. This situation was explicitly

[[Page 72728]]

acknowledged in our SSA report and was fully considered while making 
our listing determination.
    Comment 97: One comment stated that the Service failed to quantify 
or estimate the positive effect the cessation of hunting had on the 
population.
    Our response: As described in the SSA report, the lesser prairie-
chicken has not been hunted since 1973 in Colorado, 1996 in New Mexico, 
1998 in Oklahoma, 2009 in Texas, and 2014 in Kansas. The positive 
benefits of the cessation of hunting restrictions are already reflected 
in the current condition status of the species, and we do not expect 
any additional benefits to arise.
    Comment 98: One comment stated that the Service dismissed existing 
efforts and the proposed rule provides insight that conservation 
efforts are not worthwhile because they are ``targeted toward 
voluntary, incentive-based actions in cooperation with private 
landowners'' and that the ``level of future voluntary participation in 
these programs can be highly variable depending on available funding 
opportunities for other revenue sources, and many other 
circumstances.''
    Our response: The quoted statements were included in the SSA report 
and the proposed rule to acknowledge the uncertainty associated with 
projecting the likely future benefit of conservation actions. It is 
because of this uncertainty that we project a range of plausible 
outcomes (low, medium, and high projections for each conservation 
effort). This uncertainty is important for the Service to consider 
while evaluating the status of the species as well as making a listing 
determination. These statements in the SSA do not imply that these 
efforts are not worthwhile or beneficial.
    Comment 99: One comment stated that the Service failed to consider 
the Service's Land-Based Wind Energy Guidelines (LWEG) as a 
conservation effort and its effects on how wind energy development 
impacts the lesser prairie-chicken.
    Our response: Our analysis of current condition accounts for all 
existing wind energy developments in and adjacent to the lesser 
prairie-chicken range. These include wind developments that were 
constructed before and after the creation of the LWEG. The extent of 
avoidance of impacts to lesser prairie-chickens from proactive 
conservation and subsequent use of the LWEG by wind energy developers 
is reflected in the degree of impacts identified in the current 
condition. The SSA fully analyzed and considered these efforts within 
our analysis of the current condition in chapter 3 of the SSA report as 
we evaluated the actual effects of constructed projects. For future 
impacts, we projected acres of future development based upon past rates 
and realized impacts of past development and thus we have incorporated 
any realized minimization resulting from voluntary siting 
considerations (including the LWEG) on the lesser prairie-chicken.
    Comment 100: One commenter stated that the renewable energy 
industry has addressed lesser prairie-chicken conservation through 
voluntary research and mitigation. The commenter stated that these 
efforts support reducing ongoing and future threats to the species, 
thereby obviating the need for listing.
    Our response: A variety of conservation efforts have considered 
impacts to the lesser prairie-chicken. We note that while funding for 
research can advance the understanding of impacts to the species, it 
does not necessarily result in conserving the species. Within the SSA 
report, our analysis indicates that, despite conservation efforts, the 
lesser prairie-chicken has experienced habitat loss and fragmentation 
that has negatively impacted viability of the species. Additionally, 
our analysis indicated that despite the level of conservation efforts 
in the future, habitat loss and fragmentation is expected to outpace 
habitat restoration efforts, resulting in further decreases in 
viability. As discussed in the SSA report, additional threats to the 
lesser prairie-chicken will further impact the species' status.
    Comment 101: One commenter stated that, to allow for independent 
evaluation of program effectiveness to inform the conservation status 
of the species, spatial data for mitigation areas for programs like the 
RWP needs to be publicly available.
    Our response: The spatial data associated with mitigation areas 
within programs like the RWP and the associated Oil and Gas CCAA are 
not publicly available due to privacy concerns of both surface 
landowners and mineral development companies. Each agreement 
establishes how data will be managed. The relevant data is summarized, 
without information identifying specific parcels or mineral interests, 
to both provide privacy for private landowners and allow an evaluation 
of the effectiveness of the program. We determined that the data that 
are publicly available for these programs provide both the public and 
the Service enough detail to evaluate the program while still 
protecting privacy concerns of landowners and development companies.
    Comment 102: One commenter quoted from the proposed rule that the 
actual conservation benefit provided to the lesser prairie-chicken by 
voluntary conservation programs varies greatly and is difficult to 
summarize because it depends on the location and the specific actions 
being carried out for each individual agreement. The commenter went on 
to say that this statement means that voluntary conservation 
agreements, while possibly helpful for conservation, provide no 
certainty of success due to their very nature. They stated that there 
is no secured funding and no guarantee that participants will enroll in 
programs, and programs may need to be severely modified in order to 
attract participants.
    Our response: We have found voluntary conservation agreements, 
based upon their track record, are providing conservation benefits for 
the lesser prairie-chicken, and we have no information to indicate 
those included in our analysis will not continue to provide benefits. 
Within the SSA report we state, ``the actual conservation benefit 
provided to the lesser prairie-chicken by programs varies greatly and 
is difficult to summarize because it depends on the location and the 
specific actions being carried out for each individual agreement'' 
(Service 2022, p. 96). This statement acknowledges that simply a total 
number of acres where conservation efforts are implemented would not be 
informative for a biological evaluation of the species. For that 
reason, we did not provide the total acres of conservation within 
chapter 4 of the SSA report or this final rule. We believe that the 
voluntary conservation efforts we discuss in the SSA report and this 
rule have demonstrated a history of effectiveness and a certainty to 
remain in place. That is why we incorporated the beneficial results of 
these efforts into the analysis for the listing determination.
    Comment 103: One commenter stated that habitat avoidance by 
companies enrolled in the New Mexico CCA/CCAA should be considered. The 
comment also stated that because of the New Mexico CCA/CCAA there has 
been no loss of habitat to cropland or wind energy development because 
private landowners have agreed not to implement these land uses.
    Our response: The conservation benefits of the New Mexico CCA/CCAA 
were fully considered within the SSA report and the listing 
determination. The New Mexico CCA/CCAA does not require avoidance of 
lesser prairie-chicken habitat by industry participants

[[Page 72729]]

but does charge a fee to participants for impacts in areas that may 
impact the lesser prairie-chicken. These fees are then used to 
implement conservation actions to benefit the species. We worked with 
the administrator of the New Mexico CCAA to ensure that we accurately 
characterized the conservation benefits arising from the program. While 
landowners enrolled in the CCAA are prohibited from converting lesser 
prairie-chicken habitat to cropland or wind energy development, this 
does not mean there has been no additional habitat loss in New Mexico 
as not all acres of lesser prairie-chicken habitat in New Mexico are 
enrolled. We are aware of multiple impacts, such as energy development 
from both wind development and petroleum extraction, which have 
resulted in additional habitat loss and fragmentation. Additionally, 
impacts to the lesser prairie-chicken beyond cropland and wind energy 
development, such as mesquite encroachment, have resulted and will 
continue to result in habitat loss for the species as discussed in the 
SSA report.
    Comment 104: Two commenters stated that the Service incorrectly 
discounted the restoration efforts completed by WAFWA within the Sand 
Shinnery Oak Ecoregion by not counting efforts to chemically suppress 
sand shinnery oak as restoration efforts.
    Our response: We define restoration efforts as activities that 
convert nonusable area to usable area for the lesser prairie-chicken. 
We define enhancement efforts as those activities that enhance area 
that is already habitat for the lesser prairie-chicken; these efforts 
serve to maintain or increase habitat quality for the lesser prairie-
chicken. While evaluating the benefits being provided by WAFWA through 
the RWP and the associated Oil and Gas CCAA, we did not include efforts 
to chemically suppress sand shinnery oak as restoration efforts, even 
though within their annual reports WAFWA terms these actions as 
restoration. We did not include those acres as restoration because 
these actions are occurring on acres that are already lesser prairie-
chicken habitat and because the purpose of these efforts is to enhance 
or optimize the quality of existing habitat by manipulating the 
vegetative composition to reduce the percentage of sand shinnery oak 
and increase the percentage of grasses and forbs. As a result, we 
considered these actions as enhancement efforts in the SSA analysis.
    Comment 105: One commenter stated that the Oil and Gas CCAA 
administered by WAFWA has been successful. The comment stated that the 
July 2019 audit found no conservation deficiencies and that the Service 
provided no indication that steps should be taken to reduce or 
eliminate the possibility of listing the lesser prairie-chicken.
    Our response: The audit completed in July 2019 found a variety of 
deficiencies with the program. These deficiencies included concerns 
regarding financial management, accounting, compliance, and 
conservation delivery. Since the audit was completed, WAFWA hired a 
consultant to assist them with evaluating options to address any 
deficiencies with the CCAA. This process culminated with a report 
titled ``Range-wide Oil and Gas Candidate Conservation Agreement with 
Assurances Realignment Phase 1 Findings and Recommendations'' finalized 
in December 2020. This report reaffirms the deficiencies identified in 
the 2019 program audit and identifies steps that address those 
concerns. This report contains a summary of the financial concerns and 
CCAA compliance concerns associated with the CCAA. Additionally, the 
Findings and Recommendations report also provides a summary of concerns 
that the Service identified regarding the effectiveness of the 
mitigation program and the Service' recommended solutions in section 
2.5.2. These concerns are related to the lack of emphasis on 
restoration efforts, needed increase in the proportion of permanent 
mitigation required by the program, adjustments needed to the metrics 
used to quantify impacts and offsets, and adjustments needed to the 
impact radii assigned to various anthropogenic features. Additionally, 
within section 3.3 the Findings and Recommendation report states, 
``After extensive review, ICF concurs with the four defensibility 
concerns identified by USFWS staff'' and recommends that WAFWA amend 
the mitigation framework and adopt the changes recommended by the 
Service.
    Comment 106: One commenter stated that the grazing analysis is 
incomplete. The comment stated that, within the proposed rule, the 
Service recognizes that grazing is a dominant land use within the 
lesser prairie-chicken range; however, the proposed rule states there 
are no data. The comment points out that the Service has annual reports 
resulting from two agriculture CCAAs and states that it is wrong for 
the Service to make the statement that data do not exist to quantify 
rangewide extent of grazing practices and their effects on habitat.
    Our response: Within the SSA report we state, ``while domestic 
livestock grazing is a dominant land use on untilled range land within 
the lesser prairie-chicken analysis area, geospatial data do not exist 
at a scale and resolution necessary to calculate the total amount of 
livestock grazing that is being managed in a way that results in 
habitat conditions that are not compatible with the needs of the lesser 
prairie-chicken'' (Service 2022, p. 39). We have annual reports 
summarizing the enrollment and actions implemented on enrolled acres 
for the agricultural CCAAs to assist us in summarizing the conservation 
benefits provide by these programs, which were included within the SSA 
report and our determination. We do not have spatially explicit data at 
the scale and resolution needed to determine which grazed areas possess 
the vegetative composition and structure necessary to support the 
lesser prairie-chicken.
    Comment 107: One commenter detailed the excess mitigation credits 
which are currently enrolled through the mitigation framework being 
administered by the Western Association of Fish and Wildlife Agencies 
as evidence that the oil and gas industry is committed to the 
conservation of the lesser prairie-chicken and thus listing is not 
warranted.
    Our response: We are aware that in the past the WAFWA has had 
excess mitigation credits enrolled through their mitigation framework. 
Specifically, WAWFA had more conservation acres enrolled than what was 
needed to offset the impacts realized through their mitigation 
framework. The conservation benefit provided by these acres providing 
the excess mitigation were fully evaluated and considered in chapter 3 
of the SSA report. The WAFWA recently completed a process to ``right-
size'' the mitigation program to ensure that program is financially 
stable. The end result of this process was a reduction in the amount of 
excess mitigation enrolled and thus a decrease in the number of 
enrolled conservation acres reported in the ``Conservation Efforts'' 
section and section 3.4.1.1 of the SSA report (Service 2022). The 
unimpacted acres enrolled to provide mitigation decreased from 128,230 
acres to a total of 49,717 acres across all five states. This includes 
17,000 acres in the mixed grass ecoregion (with 2,708 of those acres 
under permanent conservation), 17,708 acres in the sand sagebrush 
ecoregion (with 15,810 of those acres under permanent conservation), 
6,036 acres in the short grass ecoregion (with 2,915 of those acres 
under permanent conservation), and 8,973 acres in the shinnery oak 
ecoregion (with 1,208 of those acres

[[Page 72730]]

under permanent conservation). After fully evaluating and considering 
the benefits of the conservation programs (this includes the benefits 
of the excess mitigation as referenced in the comment) we have 
concluded that the best available science does not support the 
commenter's assertion that listing is not warranted, and we are 
finalizing the proposal to list the species under the Act.
    Comment 108: One commenter asserted that, due to success of the 
RWP, the species is now more resilient to drought as evidenced by the 
relative rates of population decrease during two recent drought 
periods. Specifically, the comment stated during the drought period 
from 2012 to 2013 (i.e., before the RWP was in effect), there was a 
substantial population decline of approximately 47 percent. More 
recently, in 2019 to 2020, there was another drought period over some 
of the lesser prairie-chicken range; however, there was much less of a 
decrease in lesser prairie-chicken populations at approximately 14 
percent. The commenter believes this data validates that the 
conservation strategy is working and the species is now more resilient 
to stochastic events.
    Our response: Within the SSA report, we fully evaluated the 
benefits being provided by existing conservation efforts, including the 
Range-Wide Conservation Plan and associated Oil and Gas CCAA, and thus 
those benefits were fully considered within our decision. The drought 
occurring from 2019 to 2020 was not as severe or as widespread as the 
drought from 2012 to 2013, so we do not expect the effect on abundance 
of lesser prairie-chickens to be as extensive. There is no evidence to 
support the conclusion that population response to the recent drought 
was less severe due to the success of the rangewide conservation plan.
    Comment 109: One commenter noted a new conservation program that 
could potentially benefit the lesser prairie-chicken. The Southern 
Plains Grassland Program through the National Fish and Wildlife 
Foundation seeks to work closely with nonprofit and government partners 
and the ranching community to bring important financial and technical 
resources to address the health and resilience of the grasslands of the 
Southern Great Plains with plans to make more than $10 million in 
grants available over the next 5 years.
    Our response: We added information about this effort to chapter 3 
of the SSA report, but we did not make changes to future projections 
because no data is available on what actions will be implemented and 
where those actions will occur. The actual benefits of this program 
will depend upon what applications are submitted and chosen for 
funding. This program is a grassland conservation program and not 
focused solely on the lesser prairie-chicken, and thus projects will 
focus on all grasslands in the Southern Great Plains (not restricted to 
lesser prairie-chicken habitat). We acknowledge that the program will 
likely result in some future benefits to the lesser prairie-chicken and 
considered this idea while making our listing determination but were 
not able to quantify the future benefits to the lesser prairie-chicken.
    Comment 110: One commenter stated that the Service failed to 
consider the benefits of the Dunes Sagebrush Lizard Conservation 
Agreements in Texas and the Nationwide Monarch Butterfly CCAA for 
Energy and Transportation Lands within our analysis.
    Our response: While these conservation programs are being 
implemented, we do not believe they are providing or will provide 
conservation for the lesser prairie-chicken such that they will impact 
the overall viability of the species. While the Dunes Sagebrush Lizard 
Conservation Agreements in Texas are being implemented in areas that 
overlap with portions of the historical range of the lesser prairie-
chicken, there is no overlap with areas that are currently or have 
recently been known to be occupied by the lesser prairie-chicken. The 
Nationwide Monarch Butterfly CCAA for Energy and Transportation Lands 
largely implements conservation measures to benefit monarch butterflies 
within the rights-of-way of existing anthropogenic features. As 
discussed in the SSA report, the lesser prairie-chicken largely avoids 
areas adjacent to anthropogenic disturbances and these areas are not 
considered lesser prairie-chicken habitat. Thus, any conservation 
within these areas would not provide conservation benefits for the 
lesser prairie-chicken that would affect our analysis related to 
species viability.
Comments on Lesser Prairie-Chicken Biology and Threats
    Comment 111: Multiple commenters noted the increased populations 
and expanded range of the species in the Short-Grass/CRP Ecoregion and 
concluded that resilience and adaptability of the species was reflected 
by the success of this ecoregion.
    Our response: We fully evaluated and considered the increase in 
lesser prairie-chicken populations in the Kansas portion of the Short-
Grass/CRP Ecoregion. As discussed in the SSA report, extensive planting 
of native mixed- and tall-grass plant species starting in the mid-1980s 
resulted in an increase of suitable habitat for the species and an 
increase in population abundance. The continued existence of these 
newly expanded populations is almost exclusively reliant upon continued 
implementation of voluntary, short-term conservation efforts, primarily 
CRP. Within our analysis included in the SSA report, we project that 
habitat in the Short-Grass/CRP Ecoregion and in the Northern DPS will 
decrease. A review of the best available scientific information 
indicates that, despite the recent population increases in this one 
ecoregion, habitat will continue to decrease across the Northern DPS 
and viability of the lesser prairie-chicken in this area will continue 
to decrease.
    Comment 112: One commenter stated we should have executed more 
searches for the species in southwest Nebraska.
    Our response: We recognize that lesser prairie-chickens have been 
documented in 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. We 
coordinated with the State fish and wildlife agencies related to our 
analysis area and determined that there is not enough evidence to 
indicate that areas within Nebraska are occupied by the lesser prairie-
chicken; thus, we did not include those areas within our analysis.
    Comment 113: One commenter disagreed with our decision to define 
usable habitat as areas with at least 60 percent potential usable, 
unimpacted land cover within 1 mile. The commenter asserted that lesser 
prairie-chickens can carry out their life cycle in areas with a lower 
percentage of suitable habitat. They quoted several studies (Hagen and 
Elmore 2016; Ross 2016a; Spencer et al. 2017; Sullins et al. 2018) and 
concluded that these studies showed that lesser prairie-chickens use 
areas with less suitable habitat. The commenter also noted that many 
leks currently containing lesser prairie-chickens fall outside the 
analysis area defined by these parameters. The commenter concluded that 
it was inappropriate for the Service to use the 60 percent number to 
define habitat.
    Our response: As identified by many authors (Ross et al. 2016a, 
entire; Hagen and Elmore 2016, entire; Spencer et al. 2017, entire; 
Sullins et al. 2019, entire), maintaining grassland in large blocks is 
vital to conservation of the lesser prairie-chicken. Multiple analyses

[[Page 72731]]

support our conclusion that landscapes consisting of greater than 60 
percent grassland are required to support lesser prairie-chicken 
populations.
    Appendix B, part 3 of the SSA report provides a comparison of 
publicly available lek data and the areas that met the 60 percent 
threshold. This analysis indicates that 90 percent of current leks 
detected over the previous 5 years occurred on areas that met the 60 
percent potential usable habitat within 1 mile. This analysis is not 
used for specific determinations of habitat suitability. We used this 
information only as a rough guide to determine if our model captured 
the majority of known leks. We interpret this information with caution 
as the lek data have limitations, specifically the fact that the 
presence of a known lek does not indicate anything about the current 
condition of the landscape as all leks from the past 5 years are 
considered active. Additionally, the presence of a lek within the past 
5 years does not indicate anything about local population health. For 
example, lesser prairie-chicken may still be attending a lek site in a 
highly fragmented landscape, but those populations may be in the midst 
of long-term declines and no longer be capable of maintaining 
themselves. This is because lesser prairie-chicken populations will not 
disappear immediately but instead would see declines over an extended 
period of time before eventually becoming extirpated.
    Comment 114: One commenter asked how the lesser prairie-chicken 
could be endangered when the Service had stated that only 25,000 ac 
(10,120 ha) were needed for conservation of the species, and yet we 
have stated that over a million acres are present across the range of 
the species.
    Our response: Neither the SSA report nor the listing determination 
state that only 25,000 ac are needed for the conservation of the 
species. The commenter may be referring to a 2012 white paper that 
references the need for a minimum of one stronghold per ecoregion that 
is a minimum of 25,000 ac, has an easement that addresses both surface 
and subsurface management, and is connected to other strongholds 
(Service 2012). However, this white paper does not state that only 
25,000 ac are needed for the species as a whole, nor does the paper 
state that conserving this amount would prevent the need to list the 
species as endangered or threatened. We simply recommended that 
conservation partners incorporate these concepts into their 
conservation planning and delivery efforts for the species. We have not 
established a minimum number of acres needed to conserve the species.
    Comment 115: One commenter stated that listing was not warranted 
because habitat loss has decreased in recent years.
    Our response: The comment does not provide any support for this 
statement, and we are not aware of any analysis that indicates habitat 
loss has decreased in recent years. Our analysis presented in the SSA 
report indicates the lesser prairie-chicken has experienced significant 
habitat loss and fragmentation and the remaining habitat is highly 
fragmented, which has resulted in decreased species viability. 
Additionally, we evaluated likely future impacts of habitat loss and 
conservation efforts on lesser prairie-chicken habitat and concluded 
that habitat loss is likely to outpace efforts to restore habitat and 
that we expect the landscape to become more fragmented in the future.
    Comment 116: Two commenters asked that we describe what has changed 
between the 2013 listing decision and the current listing decision, 
including trends in habitat loss.
    Our response: We have conducted a comprehensive analysis of the 
status of the species that includes new data and new projects on the 
impact of conservation efforts. This new analysis, captured in the SSA 
report, includes a comprehensive discussion of trends in habitat loss.
    Comment 117: One commenter noted that we had stated that (1) areas 
containing 20-37 percent cropland negatively affects lesser prairie-
chickens, and (2) per our numbers in the proposed listing rule, we 
reported that 2 percent of the total area in the Sand Sagebrush 
Ecoregion, 13 percent of the total area in the Mixed-Grass Ecoregion, 
and 14 percent of the total area in the Shinnery Oak Ecoregion of 
grassland had been converted to cropland in the analysis area of the 
lesser prairie-chicken. The commenter concluded that, because all 
regions had below 20 percent cropland, agriculture should not be a risk 
in these areas.
    Our response: The SSA report summarizes recent studies that have 
found a response to the gradient of cropland-to-grassland land cover. 
Specifically, the studies found that abundances of lesser prairie-
chicken increased with increasing cropland until a threshold of 10 
percent cropland was reached and then abundance declined with 
increasing cropland cover (Service 2022, pp. 26-27). Also, it is 
important to note that we did not conclude that conversion of grassland 
to agriculture on its own is the primary concern for the lesser 
prairie-chicken but instead we indicate that conversion of grassland to 
cropland is one of several activities that contribute to habitat loss 
and fragmentation, which has and will continue to result in decreased 
viability for populations of lesser prairie-chicken.
    Comment 118: Several commenters noted that 2021 was a good rain 
year, and they expected that the lesser prairie-chicken populations 
would recover as a result of that rain, and thus the two DPSs should 
not be listed. Some suggested we needed an additional year of data 
post-rain, and another requested we conduct a count to monitor 
population trends post-rain.
    Our response: As discussed in previous comments, the Act requires 
that we use the best available scientific and commercial data when we 
make decisions to list a species. Although additional years of data 
will be useful in monitoring the status of the species, the Act does 
not require us to meet a certain threshold of data before we can list, 
and it does not require that we produce new science to fill knowledge 
gaps. We affirm that we have used the best available data to make our 
listing determination. In addition, as discussed in our response to 
Comment 17, we should not evaluate the status of the lesser prairie-
chicken based upon short-term population trends but instead we focus on 
long-term population trends tied to habitat availability. One 
additional year of survey data would not immediately change our overall 
analysis related to the long-term viability of the species.
    Comment 119: One commenter stated that the proposed rule had not 
provided any information that conversion of lands to agriculture 
continues to occur, nor did it assess the impact of increased food 
sources from agricultural crops.
    Our response: Within section 4.3.1.1 of the SSA report, we include 
an extended discussion regarding the future impacts of conversion of 
grassland to cropland and we explicitly project the likely future 
impacts of this action to the lesser prairie-chicken.
    Comment 120: One commenter asserted that our decision to list both 
DPSs was based solely on future projections related to habitat loss and 
that the Service assumed that population trends would decline to 
historical lows.
    Our response: As we detail in the SSA report, long-term population 
trends for the lesser prairie-chicken that span multiple precipitation 
cycles are the best measure of population health as they will better 
reflect the true trajectory of the population. While we do analyze and 
consider all future impacts and

[[Page 72732]]

conservation efforts within the SSA report, we detail that long-term 
population trends for this species are largely tied to habitat 
availability and thus analyzing habitat availability is the best index 
for species viability based upon the best available scientific 
information. Additionally, as noted in Comment 44 in regard to the 
Southern DPS, we found that this DPS meets the definition of an 
endangered species based on our review of its current condition.
    Comment 121: Multiple commenters felt the assessment of predation 
in the proposed rule and the effect on lesser prairie-chicken was 
understated and inadequate, and research needs to be done into the 
effect of predation on lesser prairie-chicken or how to ameliorate the 
threat of predation.
    Our response: We reviewed the best available scientific information 
with regard to predation in the SSA report (Service 2022, p. 43). We 
conclude that the potential influence of predation on lesser prairie-
chicken, beyond natural levels, is primarily tied to habitat quantity 
and quality; thus, the habitat quantity and quality factors discussed 
in the SSA report are likely to influence future predation risk for the 
lesser prairie-chicken. Further discussion is in the Predation section 
of the SSA report. While additional research could be conducted on all 
of the threats to the lesser prairie-chicken, as discussed in our 
response to Comments 30 and 118, we must make listing decisions based 
solely upon the information available to us at the time of the 
decision. We cannot wait for additional science to become available.
    Comment 122: One commenter disputed the fact that predation from 
raptors is a threat and mentioned a study stating that only one percent 
of lesser prairie-chicken mortality was due to raptors; however, they 
did not specify which study they were referring to. The commenter 
stated that our conclusion on avian predators as a threat was contrary 
to that study and to another by Behney et al (2012).
    Our response: In the SSA report, we review the best available 
science, including the Behney et al. (2012) study related to predation 
and the lesser prairie-chicken, and note that raptor predation is 
likely not a large influence on the species. It is important to note 
that we use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. As discussed in Regulatory and 
Analytical Framework, the term ``threat'' includes actions or 
conditions that have a direct impact on individuals (direct impacts), 
as well as those that affect individuals through alteration of their 
habitat or required resources (stressors). A negative impact on an 
animal does not need to meet a certain threshold of harm to a species 
or its habitat in order to be considered a threat, and the mere 
identification of any threat(s) necessarily mean that the species meets 
the statutory definition of an endangered species or a threatened 
species.
    The potential influence of predation on lesser prairie-chicken, 
beyond natural levels, is primarily tied to habitat quality; thus, the 
factors that we discussed in the SSA report that are likely to 
influence habitat quality or influence predators in a way that 
increases predation risk for the lesser prairie-chicken could have an 
influence on the lesser prairie-chicken in the future. As more 
thoroughly discussed in section 3.3.2.6 of the SSA report, some level 
of predation, including by raptors, is natural and would not affect the 
lesser prairie-chicken at a population level (Service 2022, pp. 43-44). 
For the lesser prairie-chicken the primary concerns related to 
predation are associated with increases in raptors associated with 
anthropogenic disturbances and habitat degradation resulting increased 
exposure of individual to predators. Within the SSA report, we do not 
quantify any of the potential future effects associated with predation 
and simply acknowledge that they could influence the lesser prairie-
chicken in the future.
    Comment 123: One commenter stated that, because lesser prairie-
chicken populations are small and isolated, disease could not be a 
threat as it could not spread easily.
    Our response: Within the SSA report we reviewed the best available 
science related to disease and concluded that, currently, no 
information exists to suggest that parasites or diseases play a 
significant role in the population trends for the lesser prairie-
chicken (Service 2022, p. 44).
    Comment 124: One commenter asked about a statement in the SSA 
report that impacts from collision could not be quantified, then 
mentioned a study that provides some quantification of fence mortality; 
however, they did not specify which study they meant. The commenter 
then noted that the impact from collisions was very small.
    Our response: The commenter did not provide a specific page number, 
but they may have been quoting the general statement in the SSA report 
that there were several factors that could not be quantified as a part 
of our geospatial model (Service 2022, p. 21). This does not mean that 
quantitative data do not exist on collision, but that they do not exist 
on the scale that would allow us to include them in our geospatial 
model. We concur with the commenter that the impact from fences is 
likely small and will continue to be small into the future, except for 
localized effects in areas with high densities of fences (Service 2022, 
p. 43, 92).
    Comment 125: Several commenters stated that cultivated grain seems 
important for lesser prairie-chicken, and asked if the decline of the 
species may be related to less available sorghum, milo, and other 
cultivated grains.
    Our response: The role of cultivated grains is considered within 
chapter 3 of the SSA report. Specifically, grain crops are used by 
lesser prairie-chickens, but the best available information does not 
indicate that they are necessary for the species. We found that food is 
likely rarely limiting for lesser prairie-chickens, and grains are 
likely used opportunistically and are not necessary for survival. 
Because cultivated grain crops may have provided increased or more 
dependable winter food supplies for lesser prairie-chicken (Braun et 
al. 1994, p. 429), the initial conversion of smaller patches of 
grassland to cultivation may have been temporarily beneficial to the 
short-term needs of the species as agricultural practices made grain 
available as a food source (Rodgers 2016, p. 18). However, as 
agricultural conversion of native prairie to cropland increased, more 
recent information suggests that landscapes having greater than 20 to 
37 percent cultivated grains may not support stable lesser prairie-
chicken populations (Crawford and Bolen 1976a, p. 102). More recently, 
Ross et al. (2016b, entire) found a response to the gradient of 
cropland-to-grassland land cover. Specifically, they found abundances 
of lesser prairie-chicken increased with increasing cropland until a 
threshold of 10 percent cropland was reached and then abundance 
declined with increasing cropland cover. While lesser prairie-chicken 
may forage in agricultural croplands, croplands do not provide for the 
habitat requirements of the species' life cycle (cover for nesting and 
thermoregulation), and thus lesser prairie-chickens avoid landscapes 
dominated by cultivated agriculture, particularly where small grains 
are not the dominant crop (Crawford and Bolen 1976a, p. 102).
    Comment 126: One commenter stated the impact of farming has been 
overstated in the proposed rule, that little conversion has occurred in 
recent decades, and in fact, woody vegetation

[[Page 72733]]

has much greater projected future impacts.
    Our response: Within chapter 3 of the SSA report, we quantify how 
many acres have been converted from grassland to cropland. We 
acknowledge in the SSA report that conversion associated with farming 
was mostly historical in nature and that is no longer occurring at the 
same rates. While projecting future impacts related to the conversion 
of grassland to cropland, we conclude that, based upon the best 
available science, we do not expect conversion to occur at the same 
rates that were historically witnessed. We project future rates based 
upon the best available data regarding recent rates of conversion. We 
also analyzed the impacts of woody vegetation encroachment in our SSA 
report. Our analysis indicates that while historically impacts from 
conversion to cropland has outpaced woody vegetation encroachment, 
overall, the future impacts from woody vegetation encroachment are 
likely to be greater than future conversion of grassland to cropland.
    Comment 127: Multiple commenters asserted that drought and/or 
climate change are the primary threats impacting the lesser prairie-
chicken, and, because there is no way for humans to affect the 
magnitude and severity of drought, listing the species would not change 
drought, and therefore the species should not be listed. Additional 
commenters argued that the Service should focus on various natural 
threats overall rather than human-caused threats. For example, some 
stated that the Service should address predation or drought first 
rather than limiting human activities like oil and gas.
    Our response: Within the SSA report and the listing rule, we 
provide information regarding the implications of both drought and 
climate change to the lesser prairie-chicken, and we identified habitat 
loss and fragmentation as the primary threat to the lesser prairie-
chicken. As discussed in our responses to Comments 30 and 36, we must 
make listing determinations solely on the five factors identified in 
the Act, and on the best scientific and commercial data available. We 
cannot consider other factors such as whether a species can easily be 
recovered or the source of threats.
    Once the DPSs are listed as endangered or threatened, we then begin 
the recovery planning process where we fully evaluate what conservation 
actions are needed to address the threats to each DPS. Section 4(f) of 
the Act calls for the Service to develop and implement recovery plans 
for the conservation of endangered and threatened species. The recovery 
planning process begins with development of a recovery outline made 
available to the public soon after a final listing determination; see 
Available Conservation Measures for more details. We will continue to 
work with our partners and the public throughout the recovery planning 
process.
    Comment 128: Two commenters stated that the Service did not 
consider the positive effects of climate change on lesser prairie-
chickens. They asserted that one of the main food items for lesser 
prairie-chickens, grasshoppers, do much better in hot, dry weather, and 
continued that this increase in grasshoppers during drought periods 
would increase chick survival. They concluded that the Service needs to 
consider positive effects of climate change with the same rigor as 
negative ones.
    Our response: Chapter 4.3.2 of the SSA report contains a summary of 
the best available science related to the implications of climate 
change on the lesser prairie-chicken. The best available scientific 
information related to drought and lesser prairie-chicken is included 
throughout the SSA report, and we discuss prolonged and extreme drought 
in section 3.3.3 of the SSA report. One of the primary points outlined 
in the SSA report is that in past decades, fragmentation of lesser 
prairie-chicken habitat was less extensive than it is today, 
connectivity between occupied areas was more prevalent, and populations 
were larger, allowing populations to recover more quickly. In other 
words, lesser prairie-chicken populations were more resilient to the 
effects of stochastic events such as drought. As lesser prairie-chicken 
population abundances decline and usable habitat declines and becomes 
more fragmented, their ability to rebound from prolonged drought is 
diminished.
    Our SSA report further acknowledges that periods with favorable 
climatic conditions will support times of high reproductive success 
(Service 2022, p. 91); we fully considered increased incidence of these 
favorable boom years and other potential favorable effects of climate 
change (such as increases in grasshopper populations) in examining the 
status of the species. However, a shift in climatic conditions to more 
frequent and intense drought cycles is expected to result in more 
frequent and extreme bust years for the lesser prairie-chicken and 
fewer boom years. As the frequency and intensity of droughts increase 
in the Southern Great Plains region, there will be diminishing 
opportunity for boom years with above-average precipitation. Overall, 
this may lessen the intensity of boom-and-bust lesser prairie-chicken 
population cycles in the future (Ross et al. 2018, entire). These 
changes will reduce the overall resiliency of lesser prairie-chicken 
populations and exacerbate the effects of habitat loss and 
fragmentation.
    Comment 129: One commenter asked if protections of the Act would 
extend to parasites and viruses of the lesser prairie-chicken, as they 
affect the breeding behavior of the species.
    Our response: No. This final rule relates solely to the Northern 
and Southern DPSs of the lesser prairie-chicken, and not to any other 
species.
    Comment 130: One commenter asked if the listing would require 
sources of collisions, such as fences and power lines, to be removed.
    Our response: The prohibitions set forth in section 9 of the Act, 
and included under our section 4(d) rule for the Northern DPS, would 
prohibit any individual implementing an action after the effective date 
of this listing that results in ``take'' of lesser prairie-chickens, as 
defined in the Act. The installation of features such as fences or 
powerlines has the potential to impact the species and, in some cases, 
result in take. Continued operations and maintenance of existing 
features that the lesser prairie-chicken are known to avoid is unlikely 
to result in take as the impacts to species primarily occur upon 
construction. For those features that the lesser prairie-chicken do not 
avoid, collisions with those features which cause death or injury would 
meet the definition of ``take.'' In the case where infrastructure is 
causing take, we will work with operators to reduce such take through 
section 7 or 10 of the Act.
    Comment 131: One commenter noted that the research on noise impacts 
from wind energy on lesser prairie-chickens is not settled, and that 
the effects are poorly understood. They urged us not to base the 
listing of the lesser prairie-chicken on noise impacts.
    Our response: We agree that further research on the specific 
impacts of noise, from wind energy development and other sources, to 
lesser prairie-chickens would be beneficial. Our discussion of noise as 
a threat to the lesser prairie-chicken uses information to the extent 
it is available to acknowledge our consideration of possible impacts. 
While we analyzed the potential effects of noise on the lesser prairie-
chicken, we are not listing based effects of noise on the lesser 
prairie-chicken.
    Comment 132: One commenter referenced a study which stated that, in

[[Page 72734]]

past times of changing climate, species had shifted their ranges as a 
result of changing temperatures. They stated it was likely that the 
lesser prairie-chicken would continue to move north as climate 
conditions became unsuitable in their current range and as habitat is 
destroyed by other factors.
    Our response: The commenter did not provide a reference to the 
specific study quoted; however, it appears to be, ``Glaciation as a 
migratory switch'' published in Science Advances in 2017 (Zink and 
Gardner 2017). That study examines the shifting ranges of migratory 
tropical birds. However, the lesser prairie-chicken is not a migratory 
or tropical species. Regardless, such shifts in range usually occur 
over a scale of tens of thousands of years as a species adapts to new 
habitat types and conditions. Our estimates on the extinction risk of 
the species indicates that extinction of the species will occur well 
before the time necessary for a nonmigratory species to adapt to 
changing conditions. Additionally, were the lesser prairie-chicken to 
shift north, it would encounter additional land converted for 
agriculture, which is not suitable habitat for the species.
    Comment 133: One commenter argued that the Service overstated the 
effects of climate change. They provided a graph of forecast rain in 
the United States that demonstrates that average rain across the 
country had increased in the period 1901-2020. They then asserted that 
it was inappropriate to examine climate effects at the ecoregion level.
    Our response: In conducting our analysis of the effects of climate 
change on the lesser prairie-chicken and its habitat, we used data that 
have been ``downscaled'' to an appropriate regional or local level, as 
these techniques yield higher resolution projections at a scale 
typically more appropriate for species analysis than nationwide 
forecasts. We consider downscaled data, where available, to constitute 
the best available information concerning a changing climate. Our 
downscaled analysis using Multimodel systems projects complicated 
forecasts of future precipitation patterns that we find are more 
accurate and useful to our assessment than nationwide yearly annual 
precipitation. We conclude that our approach satisfies the requirement 
to use the best available scientific data. For our complete analysis of 
downscaled climate models for the range of the lesser prairie-chicken, 
please see chapter 4.3.2 of our SSA report (Service 2022).
    Comment 134: Two commenters stated that our forecasted climate/
drought impacts were speculative and that our findings were 
speculative, arbitrary, and capricious. They stated that scientific 
studies could not accurately predict how forecast impacts from climate 
change (drought, fire, storms) could adversely affect the lesser 
prairie-chicken such that it would meet the definition of threatened or 
endangered. They also argued that the Service had based forecasted 
drought on assumptions rather than evidence, and that we had not 
defined what the length of an extended drought or its geographical 
extent would be.
    Our response: As discussed in our responses to previous comments, 
the Act requires that we use the best scientific data available when we 
make decisions to list a species, and we followed all Service policies 
and standards on data and information quality in our SSA report and 
this final rule. In regard to defining the length or extent of a 
drought, those numbers are indeed uncertain; however, we have presented 
a thorough assessment of likely future impacts of climate change and 
likely characteristics of future droughts in chapter 4.3.2 of our SSA 
report and in our response to Comment 128 above. We acknowledge that 
there is uncertainty inherent in any future predictions. In light of 
that uncertainty, we made certain assumptions and provided 
justification for these assumptions. We conclude that our approach 
satisfies the requirement to use the best available scientific data. 
Additionally, climate change is one of many threats currently impacting 
the lesser prairie-chicken and its habitat causing the DPSs to meet the 
definition of threatened (Northern DPS) and endangered (Southern DPS).
    Comment 135: One commenter argued that the lesser prairie-chicken 
life cycle is closely tied to drought; they provided information that 
they state demonstrates that drought is linked to population 
fluctuations in other grassland bird species. They provided graphs 
demonstrating the changes in rainfall over time in the contiguous 
United States alongside graphs showing trends from 1995 through 2015 in 
grassland bird species, including the lesser prairie-chicken. They 
concluded that these graphs showed that the lesser prairie-chicken 
could survive future droughts.
    Our response: The best available scientific information related to 
drought and lesser prairie-chicken is included throughout the SSA 
report, and we discuss prolonged and extreme drought in section 3.3.3 
of the SSA report. One of the primary points outlined in the SSA report 
is that, in past decades, fragmentation of lesser prairie-chicken 
habitat was less extensive than it is today, connectivity between 
occupied areas was more prevalent, and populations were larger, 
allowing populations to recover more quickly. In other words, lesser 
prairie-chicken populations were more resilient to the effects of 
stochastic events such as drought. As lesser prairie-chicken population 
abundances decline and usable habitat declines and becomes more 
fragmented, the species' ability to rebound from prolonged drought is 
diminished.
    Comment 136: As further support for their rationale as described in 
Comments 132, 133, 134, and 135 above that climate change is the 
primary threat impacting the lesser prairie-chicken, a commenter 
submitted a graph depicting a regression analysis of the lesser 
prairie-chicken and January-June rainfall in the Mixed-Grass Ecoregion. 
They interpret the results of their analysis to be that rainfall 
explains 25 percent of lesser prairie-chicken population trends. The 
commenter concluded that this graph shows that there is a definitive 
link between rain and lesser prairie-chicken population growth.
    Our response: As discussed in our responses to Comments 16 and 17 
as well as in our SSA report, there is a strong relationship between 
precipitation patterns and lesser prairie-chicken population trends 
(Service 2022, p. 48). The model provided by the commenter looks at 
only one possible driver for lesser prairie-chicken population trends 
and does not consider the multiple other potential explanatory 
variables that have been documented in the best available science as 
impacting the species, and does not provide a full documentation or 
list of assumptions used in the creation of their analysis. They also 
do not provide any supporting information for us or others to assess 
whether the scale of population and weather stations are geographically 
aligned. Finally, a regression analysis does not show cause and effect 
relationships. Instead, the regression analysis indicates a correlation 
between the two variables without any information on causation. 
Finally, the commenter's conclusion that rainfall explains 25 percent 
of the response variable (lesser prairie-chicken population 
fluctuations) is not statistically significant.
Comments Related to the Geospatial Analysis in the SSA Report
    Comment 137: Multiple commenters disagreed with impact radii that 
we applied to anthropogenic features, such as wind turbines and oil 
wells, within

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our spatial analysis to account for the indirect effects of those 
features. Some comments stated that the lesser prairie-chicken still 
uses those spaces and so it is not accurate to characterize the areas 
as habitat loss. Others simply stated we should have used the impact 
radii used within WAFWA's Range-Wide Plan.
    Our response: We analyzed the best available scientific 
information, which is summarized in chapter 3.3 of the SSA report, to 
determine the direct and indirect impacts associated with anthropogenic 
features. For the lesser prairie-chicken, the primary concern is 
related to avoidance of features. Thus, our determination of impact 
radii is based upon an evaluation of impacts that result in avoidance 
of otherwise suitable habitat by the species during all or portions of 
the life cycle of the species. Many of these features do not result in 
complete avoidance. Instead, the best available scientific information 
suggests that the lesser prairie-chicken avoids these features during 
certain critical periods of their life cycle. While some limited use of 
portions of areas occurring within these impact radii may occur, these 
areas no longer have the ability to provide for all the life history 
needs of the species. As a result, we do not consider these areas to 
support the full needs of the species in their current state for the 
purposes of our SSA analysis and listing determination. While multiple 
commenters stated that they do not agree with the impact radii 
assigned, they did not provide additional data or studies that were not 
included in our analysis or did not provide any evidence that we 
misrepresented those studies. No single study can be used to determine 
what the appropriate impact radii is; therefore, we analyzed all of the 
available literature, which is summarized in the SSA report, and 
determined the impact radii within the context of all of these studies 
and considering all information and limitations.
    Comment 138: Multiple commenters stated the Service did not account 
for overlap of impact features when calculating the area of habitat 
affected by impact radii.
    Our response: In chapter 3 of the SSA report, when summarizing the 
acres of impact by individual source we state, ``Impacts are not 
necessarily cumulative because of overlap of some impacted areas by 
more than one impact source.'' This method of reporting impacts by 
individual source is accurate and does not result in double counting. 
The areas of overlap mean that there are places where multiple features 
occur on the landscape. Because of the areas of overlap, readers should 
not add up the acres impacted across all of the sources to get a total 
area impacted, which is why we do not report total acres impacted from 
all sources within the current condition impact tables of the SSA 
report (e.g., table 3.4). In our estimates of total potential usable 
area, we do not double-count acres of impact. For future condition 
projections, we documented our methods for estimating rates and amounts 
of impacts from past data and their application across the low, 
continuation, and high scenarios in section 4.3 and Appendix C. Within 
our projections we account for overlap with existing infrastructure and 
project future impacts only to unimpacted usable space, so these were 
new non-overlapping impacts. Our estimates for rates and amounts 
accounted for the overlap from existing data.
    Comment 139: Several commenters stated that the Service's 
geospatial model is flawed and not capable of modeling current lesser 
prairie-chicken population and habitat status or potential future 
scenarios on a scale relevant to the Service's listing analysis. 
Comments specifically noted resolution issues with land cover data sets 
and questioned our analysis area which defined the spatial extent of 
our geospatial analysis.
    Our response: We used the best available information in our 
analyses. The geospatial model portion of the SSA report is a 
transparent application of concepts of conservation biology with the 
best available commercial and scientific information and a robust 
discussion of limitations and constraints of the data and model. 
Commenters did not provide alternative analytical approaches. The 
LandFire land cover data that was the foundation for the analysis is a 
30-meter spatial resolution dataset (i.e., the data comprised cells 
that measured 30 meters by 30 meters). We used the spatial extent of 
the EOR as defined by the States and WAFWA's Interstate Working Group 
as the maximum spatial extent of the analysis. Both of these elements 
of scale were considered and implemented in a manner that informs the 
statutory decision by the Service. All information was processed and 
aggregated as described in appendix B and appendix C of the SSA report, 
which allowed us to summarize the results by ecoregion and rangewide.
    Comment 140: One commenter stated the change from 40 percent to 60 
percent potential usable unimpacted land cover within 1 mile as cited 
between the 2021 SSA report and the 2017 USGS report is not explained 
and has an outsized effect on the results.
    Our response: We discuss the basis for our use of a 60 percent 
threshold used for our geospatial analysis in the SSA report (3.2 
Geospatial Analysis Summary, p. 22, and Appendix B, Part 4. 
Supplemental Analysis: Frequency Analysis of Usable Area Blocks) to 
understand the importance of the size of habitat areas and their 
connectivity to conservation of lesser prairie-chicken. One critical 
factor requiring us to change from 40 percent potential usable 
unimpacted land cover within 1 mile to 60 percent is the inclusion of 
new scientific information (e.g., Ross et al. 2019, entire; Hagen and 
Elmore 2016, entire; Spencer et al. 2017, entire; Sullins et al. 2019, 
entire), further emphasizing that larger blocks of habitat are 
important for conservation of the species. The 40 percent threshold was 
part of an early analysis for the SSA initiated in 2015. This approach 
allowed for large landscapes with 40 percent nonusable area due to 
habitat loss and fragmentation to be considered potentially usable 
area. The change in threshold was suggested during the review of the 
SSA report by one of our independent peer reviewers of the earlier 
version of the SSA report. As a result of our review of the new 
information, we determined that 60 percent potential usable unimpacted 
land cover within 1 mile was supported by the best available science 
and incorporated it into our SSA report.
    Comment 141: One commenter stated the unexplained use of the EOR 
instead of the EOR+10 affects the amount of habitat that could be 
listed as potentially available for the species by the SSA analysis.
    Our response: The EOR+10 for the lesser prairie-chicken originated 
in WAFWA's Lesser Prairie-Chicken Range-wide Conservation Plan in 2013 
(see Covered Area, Van Pelt et al. 2013, p. 26). This was implemented 
by WAFWA because the exact occupancy of the lesser prairie-chicken is 
not known. The EOR encompasses approximately 21.8 million acres. The 
addition of the 10-mile buffer increases the area by approximately 20.5 
million acres. Since 2012, WAFWA has been implementing rangewide aerial 
surveys, in addition to other surveys by participants in the RWP, 
agency biologists, and conservation partners. The most recent analysis 
indicates that there are only 13 known leks in the 10-mile buffer area. 
In contrast, the EOR (without the 10-mile buffer) contains 734 leks in 
the same time period. The EOR is the primary occupied range of the 
species, as is shown by WAFWA's survey data. We can no longer support, 
based on the available survey and

[[Page 72736]]

occupancy data, adding an additional 20.5 million acres to the analysis 
area since there is very little supporting information that the larger 
extent of the EOR+10 is potential usable area based on a decade of 
additional survey and conservation work for the species. Our model 
extent included greater than 98 percent of current known leks for the 
species. After considering the information above and consulting the 
State fish and wildlife agencies, we determined that we should use the 
EOR as our analysis area as it much more accurately represents the area 
in which lesser prairie chickens are currently found.
    Comment 142: One commenter stated the Service's use of one-word 
descriptors (low, continuation, high) as categorization of future 
conservation efforts does not meet the best scientific and commercial 
data available standard.
    Our response: In the SSA report, we used categorical descriptors 
(low, continuation, high) for the modeled range of projected future 
scenarios. These one-word descriptions were simply used as shorthand to 
create categories for summarizing the information. The input data that 
were used to establish the conservation efforts were extensive and 
developed in close coordination with the entities implementing those 
conservation efforts. Additionally, the SSA report, which contains the 
characterization of the future conservation efforts was reviewed by 
independent peer reviewers as well as our State and Federal 
conservation partners to ensure accuracy. We provide the full 
explanation of what each term means (low, continuation, high) within 
the SSA report (Service 20222, Appendix C). We used the best available 
data regarding conservation efforts to inform our projections that were 
included in each category. For a detailed description regarding the 
data and processed used to project these efforts please see Appendix C 
of the SSA report.
    Comment 143: Several commenters indicated the Service should have 
used USDA land use data called Cropland Data Layer (CDL) instead of 
other sources, and the Service's use of data from FSA (2012) was 
inappropriate to use instead of CDL.
    Our response: We used the best available information in our 
analyses, including within the spatial analysis of the SSA. Multiple 
land use and land cover datasets were considered for our work, 
including National Land Cover Database, CDL, and LandFire. While we did 
not use Cropland Data Layer CDL for our base land cover data, we did 
use CDL as processed by Lark (2020) to support projections of a range 
of scenarios of rates and amount of grassland conversion to cropland 
(see 4.3.1.1 and appendix C). We did not use CDL for the base landcover 
because of the known error rates associated with the unprocessed non-
cropland portions of the classification (see Reitsma et al. 2016) and 
the CDL accuracy assessment information available from USDA (USDA 2020, 
entire). The date of the product is not the sole determinant of best 
available information.
Comments Related to Oil and Gas Development
    Comment 144: Multiple commenters stated that the Service 
overestimated the impacts of oil and gas development because we failed 
to consider advancements in technology, such as directional drilling, 
which has resulted in reduced impacts to the lesser prairie-chicken. 
Specifically, some commenters stated that the Service should have used 
only data from the years of 2016-2019 to inform assumptions around 
rates of development because of technological advancements that are 
currently in place and that reduced surface disturbance but were not 
being used prior to 2016.
    Our response: We agree that there have been technological 
advancements in oil and gas exploration, development, and extraction. 
However, we determined that projecting the future oil and gas 
development based only upon impacts occurring from 2016 through 2019 
(as opposed to including the years from 2004 through 2019 as the 
Service did) would not provide a representative view of likely future 
development, as the number of new wells drilled annually is not tied 
only to technology but also to many other variables such as oil prices. 
During the period of 2016-2019, fewer wells were drilled within the 
analysis area. However, that fact cannot be attributed only to 
technological advancements because the price of oil was low during that 
period. To this point, within our analysis area in the Sand Shinnery 
Oak Ecoregion in 2016, 2017, and 2018 (after technological 
advancements) more wells were drilled annually than in 2004 and 2005 
(prior to technological advancements) indicating that a variety of 
factors drive the number of wells drilled each year beyond the 
technology being employed. While we do not agree that we should have 
based the projections of the number of new wells drilled each year from 
past development rates limited to the 2016-2019 timeframe, we did 
incorporate aspects of development patterns that have resulted in 
reduced surface disturbance when assuming how many acres per well would 
be impacted as discussed in appendix C of the SSA report (Service 
2022).
    Comment 145: One commenter stated that the Service overestimated 
the impacts from oil and gas development because of the participation 
from the oil and gas industry in existing conservation plans that 
require implementation of conservation measures to minimize impacts to 
the lesser prairie-chicken.
    Our response: We did consider the fact that a portion of the wells 
drilled within the range of the species, are participating in existing 
conservation agreements and we fully considered the benefits of that 
participation. Existing conservation efforts primarily implement two 
types of measures to minimize impacts to the lesser prairie-chicken. 
First, they implement measures such as noise and timing stipulations 
meant to reduce disruption to breeding activities. These types of 
measures were considered in our determination. However, these types of 
measures, while beneficial to the species, were not shown to decrease 
habitat loss and fragmentation, the primary threats driving the risk of 
extinction. Second, some conservation efforts avoid or minimize surface 
disturbance by co-locating anthropogenic features, which results in 
fewer acres of habitat loss. We directly incorporated those efforts to 
reduce surface disturbance into our projections of the future impacts 
of oil and gas development. Specifically, we reduced the number of new 
wells being drilled to account for the fact that the majority of these 
wells are drilled in areas that are not impacting the lesser prairie-
chicken. We also factored in that when a well is drilled in an area 
that may impact the species there are efforts to minimize impacts by 
co-locating these disturbances with existing impacts, which resulted in 
an assumption that fewer acres of habitat will be impacted per well. 
These assumptions are further detailed in appendix C of the SSA report. 
Thus, we have fully incorporated efforts of industry to minimize 
impacts of development through participation in existing conservation 
efforts.
    Comment 146: One commenter stated that the Service ignored the 
benefits of oil and gas development to the lesser prairie-chicken. 
Specifically, the commenter stated that oil and gas development can 
create an alternative financial opportunity for landowners, which could 
reduce the possibility that the landowner would seek other financial 
interests such as residential or commercial development.

[[Page 72737]]

    Our response: In this final rule, we fully considered all impacts 
of threats to the lesser prairie-chicken. Though their impacts on 
habitat would be different, both oil and gas development and 
residential development occurring within habitat would cause negative 
impacts to the species and population declines, and they would both 
result in incidental take of the species. In regard to the commenter's 
point about financial opportunities, as discussed in our response to 
Comment 36, we cannot consider economic impacts when determining 
whether to list a species. We recognize that the lesser prairie-chicken 
is found primarily on private lands, and that listing may result in 
impacts to landowners. We want to continue to encourage land management 
practices that support the species. Many existing conservation programs 
provide landowners the opportunity to receive financial assistance to 
implement conservation measures and provide additional revenue streams. 
As discussed throughout this comment section and particularly in 
response to Comment 21, we recognize the need to work collaboratively 
with private landowners to conserve and recover the lesser prairie-
chicken. The recovery of endangered and threatened species to the point 
that they are no longer in danger of extinction now or in the future is 
the ultimate objective of the Act, and the Service recognizes the vital 
importance of voluntary, nonregulatory conservation measures that 
provide incentives for landowners in achieving that objective. We are 
committed to working with landowners to conserve this species and 
develop workable solutions.
    Comment 147: One commenter stated that the Service was silent on 
the conservation efforts employed by BLM in concert with the oil and 
gas industry.
    Our response: We fully considered the impacts of all efforts 
implemented by BLM, both individually and in concert with the oil and 
gas industry, within the SSA report and they were fully carried forward 
to the final listing decision. Within chapter 3 of the SSA report, we 
discuss the conservation efforts on lands managed by BLM, and we 
provide even further detail in appendix D to section D.2.2.
    Comment 148: Multiple commenters stated that the Service 
overestimated the impacts of oil and gas development because we failed 
to account for the temporary nature of the impacts. Specifically, the 
commenters stated that the impacts were only temporary because the 
human disturbance associated with oil and gas development largely 
occurs only during the drilling phase and after that there is very 
little human presence for the remainder of the life of the well.
    Our response: Within chapter 3 of the SSA report we summarize the 
best available science regarding the impacts of oil and gas development 
on the lesser prairie-chicken. That science indicates that the primary 
concern related to oil and gas development is not human presence but 
instead the direct and indirect impacts that result in habitat loss and 
fragmentation. The studies that were conducted on lesser prairie-
chicken and oil and gas development and documented avoidance were not 
conducted during the drilling phase but occurred after completion when 
there was limited human presence (Hunt and Best 2004, pp. 99-104; 
Pitman et al. 2005, entire; Hagen 2010, entire; Hagen et al. 2011, pp. 
69-73; Plumb et al. 2019, pp. 224-227; Sullins et al. 2019, pp. 5-8; 
Peterson et al. 2020, entire).
Comments Regarding Wind Energy
    Comment 149: Several commenters stated that the impact radius 
applied by the Service to commercial wind energy turbines is 
unreasonable, overstates impacts to the species, and is unsupported by 
best available and cited data. In using 1.12 mi (1.8 km), the Service 
did not use the impact radius recommendation of State wildlife agency 
biologists of 0.41 mi (667 m). Commenters asserted that the treatment 
of impacts from wind energy turbines was an unsubstantiated hypothesis 
based on impacts from other structures (e.g., oil and gas), and the 
species does not show the degree of avoidance applied in the proposed 
rule and SSA report. In contrast, several other commenters indicated 
support for applying a 1.12-mi (1.8-km) impact radii to commercial wind 
energy turbines, and suggested occupancy by the species be assumed for 
all areas within 2.98 mi (4.8 km) of current active leks (i.e., within 
the last 5 years).
    Our response: We have reviewed all available information related to 
prairie grouse and wind energy development. Because there are a limited 
number of original research projects and associated information on the 
topic specific to lesser prairie-chickens (Coppes et al. 2020, entire), 
we have relied on information for other similar prairie grouse species. 
The results of these studies indicate a range of effects to different 
aspects of the species (Marques et al. 2021, p. 469). These results 
range from demonstrating no statistically significant response related 
to survival to significant indirect effects extending 5 miles (8.05 
km), as discussed in the SSA report and this final rule. The findings 
of relevant studies are not always directly comparable due to different 
research designs and reported metrics. As discussed in our response to 
Comment 30, we have made this determination on the basis of the best 
scientific and commercial data, and in accordance with our information 
quality standards. As discussed in our response to Comment 137, 
construction of anthropogenic features results in avoidance of 
otherwise suitable habitat during all or a portion of the species' life 
cycle. While some limited use may occur, these areas can no longer 
support the needs for the species and thus are not considered habitat.
    Comment 150: One commenter indicated the Service did not hold all 
information evaluating grouse and wind energy to the same standards and 
incorrectly dismissed one paper, while not doing the same thing with 
other topics and associated citations (e.g., population 
reconstruction).
    Our response: This rule and our SSA report extensively discuss the 
available information on the topic of the likely impacts of wind 
energy. All information was evaluated and considered within the context 
of the cited publication and the Service's ability to evaluate the 
quality and rigor of the provided data and the corresponding assertions 
against all available information on the topic. In regard to the paper 
to which the comment refers (LeBeau et al. 2020), we did not dismiss 
the paper but presented the results that there is no evidence of: (1) 
lesser prairie-chicken displacement during multiple seasons and at 
multiple scales; (2) negative effects on nest survival; and (3) barrier 
effects to local-scale movements. Survival of lesser prairie-chicken 
was reported at higher rates closer to the wind turbines. We then 
discussed the limitations associated with the study, including that 
significant fragmentation already existed on the landscape prior to 
wind turbine construction, the study was of short duration (3 years), 
and there were no pre-construction lesser prairie-chicken data for 
comparison (Service 2022, p. 32). This example is one of many 
treatments of similar papers in chapter 3.3.1.3, where we outline 
results from available scientific information and limitations 
associated with each study. Overall, this rule and our SSA report 
acknowledge the limited amount of information directly addressing 
prairie grouse and wind energy development, and we reviewed all 
available material in the manner laid out in comment 30.
    Comment 151: One commenter stated support for the application of an 
impact radius for wind turbines and asserted

[[Page 72738]]

that this impact should be considered in context of lesser prairie-
chicken leks, while asking for prohibition of future developments 
within 2.98 mi (4.8 km) of current leks.
    Our response: To meet the complete habitat needs of the full life 
cycle of the species, habitat that provides for breeding, feeding, 
sheltering, and connectivity for movement between these areas is 
necessary. Areas within 2.98 mi (4.8 km) of leks have been shown to 
provide the majority of use by the species, but individuals also move 
between leks across areas of habitat and non-habitat outside of 2.98 mi 
(4.8 km) from leks (e.g., Peterson et al. 2020, entire). The potential 
impacts of development in these movement areas requires understanding 
the site's context and juxtaposition relative to known leks, and other 
potentially suitable habitat with no documented leks. The prohibitions 
under the Act will prohibit any take of the lesser prairie-chicken by 
wind energy development. Regardless, we cannot assume that any wind 
energy development with 2.98 mi (4.8 km) of current leks would 
necessarily result in take. We will need to evaluate the site-specific 
information of the landscape and evaluate the effects of all activities 
associated with the development for each project to determine if take 
would occur for a potential wind development activity.
Comments Regarding Overhead Power Lines
    Comment 152: Two commenters identified the Service's statements in 
the preamble to the proposed rule, ``no data were available to quantify 
the potential independent impacts of distribution lines on habitat loss 
and fragmentation'' and ``distribution lines are another important 
source of habitat loss and fragmentation,'' as contradictory and a 
reason to remove distribution lines as a cause of habitat loss and 
fragmentation from the assessment of the status of the species.
    Our response: Distribution lines have been identified as impacting 
lesser prairie-chickens and their habitat (resulting in habitat loss 
and fragmentation) in the scientific literature (see Service 2022, pp. 
36-38 for a review of the subject). However, we were unable to 
incorporate an analysis of this threat within the SSA geospatial model 
because representative datasets for distribution level power lines do 
not exist rangewide or are not available to us.
    Comment 153: Several commenters stated that the variation in size, 
classes, and types of power line structures should be assessed 
differently than the two classes, distribution and transmission, used 
by the Service and assigned different impact radii.
    Our response: The available literature on power lines and prairie 
grouse and the wide variety in size and structure types used in 
different classes of power lines on the landscape does not provide 
sufficient data to create different classes of impact radii. The 
commenters did not provide new scientific information on power line 
structures or impact radii for us to consider. In the future, if 
additional new information becomes available with sufficient 
distinction in the classes of power lines, we could reevaluate our 
current impact radii recommendations if appropriate.
Comments on the Significant Portion of the Range Analysis
    Comment 154: One commenter stated that the Service should have 
concluded that the Sand Sagebrush Ecoregion is a significant portion of 
the range because, without that portion, the rest of the DPS would lose 
redundancy and representation and would be endangered.
    Our response: In Desert Survivors v. U.S. Department of the 
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 
2017), the courts invalidated the definition of significant that the 
commenter uses here; that is, making a conclusion about the overall 
status of the remainder of the range without the portion in question. 
Therefore, the commenter's suggested method of analyzing the 
significance of the Sand Sagebrush Ecoregion is not allowed by the 
courts.
    Comment 155: One commenter stated that, in our analysis of 
significant portion of the range of the Northern DPS, we wrote that the 
Sand Sagebrush Ecoregion ``may meet the definition of endangered'' and 
did not come to a conclusion as to whether or not it actually does. The 
commenter also argued that the Service should have concluded that the 
Sand Sagebrush Ecoregion met the definition of endangered as a 
significant portion of the Northern DPS's range. They stated that the 
ecoregion has a higher concentration of threat from drought, severe 
storms, incompatible grazing, and effects associated with small 
population size. They concluded that the Service should conclude that 
region is endangered, and thus list the entire Northern DPS as 
endangered.
    Our response: Based on this and other public comments, we have 
expanded our discussion in Status of the Northern DPS of the Lesser 
Prairie-Chicken Throughout a Significant Portion of Its Range to 
analyze the significance of the Sand Sagebrush Ecoregion. Based on our 
expanded analysis, we affirm that we did not identify any threats that 
were concentrated in the Sand Sagebrush Ecoregion that were not at 
similar levels in the remainder of the range at a biologically 
meaningful scale, and also that the Sand Sagebrush Ecoregion is not 
significant to the remainder of the range. We conclude that no portion 
of the species' range provides a basis for determining that the 
Northern DPS is in danger of extinction in a significant portion of its 
range, and we determine that the DPS is likely to become in danger of 
extinction within the foreseeable future throughout all of its range.
Comments on the Distinct Population Segment Analysis
    Comment 156: Multiple commenters stated that, if the same fact 
pattern was followed for discreteness and significance as for listing 
of the lesser prairie-chicken, more species would be listed as DPSs. 
They presented an example of a common species with unique alleles in 
one population to support their argument.
    Our response: As discussed in our response to Comment 30, each 
listing decision we make must be in accordance with the factors in 
section 4(a)(1) of the Act, but is also informed by the species' life 
history and response of the species to the identified threats. 
Additionally, each DPS analysis must be made based on the elements set 
out in our 1996 DPS policy. In this instance, as discussed under 
Distinct Population Segment Evaluation above, we found that both parts 
of the range are discrete due to being markedly separated from each 
other based on geographical distance. We also found that they are 
significant due to differing markedly from each other in their genetic 
characteristics, and because the loss of either would result in a 
significant gap in the range. We then determined that the Northern DPS 
meets the definition of a threatened species, and that the Southern DPS 
meets the definition of an endangered species. Accordingly, we are 
finalizing the listing of both DPSs.
    Comment 157: Multiple commenters asked why the Service was just now 
separating the range into DPSs, when previously it had never done so, 
particularly not in the 2014 rule. One stated that the Service had 
never before indicated that the species could be divided into DPSs. 
Another commenter said that there had always been historical population 
separation and differences in environment. Another

[[Page 72739]]

noted that when we received comments in 2012 indicating we should 
divide the range into DPSs, we rejected that option. They also noted 
that the 90-day finding did not discuss the DPSs, and only indicated 
the rangewide entity as the subject of the petition finding.
    Our response: In making a 90-day finding, we consider only the 
information in the petition and information that is readily available, 
and we evaluate whether that information constitutes substantial 
information such that a reasonable person conducting an impartial 
scientific review would conclude that the petitioned action may be 
warranted. In a 12-month finding, we must complete a thorough status 
review of the species and evaluate the best scientific and commercial 
data available to determine whether a petitioned action is warranted. 
We were petitioned to evaluate whether any DPSs might also warrant 
listing; we conducted that evaluation and found that the Northern DPS 
of the lesser prairie-chicken meets the definition of a threatened 
species and the Southern DPS of the lesser prairie-chicken meets the 
definition of an endangered species. We have the discretion to propose 
listing of species and DPS configurations that we find to be the most 
appropriate application of the Act. These determinations were based on 
our review of the best available information, updated survey results, 
and additional genetics information since the 2014 final listing rule.
    Comment 158: One commenter asked why the SSA report did not discuss 
the DPS finding.
    Our response: The objective of the SSA is to evaluate the viability 
of the lesser prairie-chicken based on the best scientific and 
commercial information available. In conducting this analysis, we took 
into consideration the likely changes that are happening in the 
environment--past, current, and future--to help us understand what 
factors drive the viability of the species. Through the SSA report, we 
described what the species needs to support viable populations, its 
current condition in terms of those needs, and its forecasted future 
condition under plausible future scenarios. The SSA does not make any 
analysis or conclusions with regard to policy decisions, such as DPS 
findings. Instead, the SSA report provides the biological information 
that our decisionmakers can then use to inform those policy decisions. 
Thus, all of the policy decisions and the rationale for those decisions 
are contained within the Federal Register documents and are not 
included within the SSA report.
    Comment 159: One commenter stated that the Service had not provided 
enough documentation (additional technical support or record materials) 
regarding the decision to designate DPSs. The commenter also said they 
had provided materials (genetic data and legal analyses) regarding the 
potential for DPS designations in response to the Services 2016 90-day 
petition finding and they say the Service did not respond to this in 
our proposed listing rule. The commenter concluded it was inappropriate 
for the Service to designate DPSs without more documentation. Finally, 
they stated that the Service did not ask for information related to 
potential DPSs after our 2016 90-day finding, and that we should have.
    Our response: We fully considered all material submitted by 
commenters from 2014 to the present. In our 90-day finding, we 
requested information on a number of topics related to the ecology of 
the species and the threats impacting it. In our DPS finding, we 
presented only information relevant to the finding itself; that is, we 
did not analyze legal arguments, as those are outside the scope of the 
three criteria for determining if a part of a species meets the 
definition of a Distinct Population Segment.
    Comment 160: Several commenters stated that the Service had not 
properly determined that the two DPSs were discrete. Other commenters 
asked how a bird species could ever be considered discrete, given their 
ability to fly, and the recorded movement of lesser prairie-chickens 
flying long distances. They cited a single report of a bird nesting 35 
miles away from a lek, and a study by Berigan (2019) showing long-
distance movement of translocated birds. Another noted that Earl et al. 
(2016) had recorded movements up to 44 mi (71 km). Those commenters 
concluded that it strains credulity that birds could not and have not 
crossed the distance between the DPSs. Another commenter asked us to 
state the information we considered to conclude that there had been no 
movement; another stated that we had not proven there was no barrier to 
movement between ecoregions. Another said that we had ignored evidence 
of gene flow as demonstrated in Oyler-McCance et al. (2016) and others.
    Our response: Our DPS policy states that a population may be 
considered discrete if it is markedly separated from other populations 
of the same taxon as a consequence of physical, physiological, 
ecological, or behavioral factors. The policy additionally notes that 
we do not consider it appropriate to require absolute reproductive 
isolation as a prerequisite to recognizing a distinct population 
segment. As the policy states, this would be an impracticably stringent 
standard, and one that would not be satisfied even by some recognized 
species that are known to sustain a low frequency of interbreeding with 
related species.
    We acknowledge that movement between ecoregions is possible, and 
that gene flow does occur between some ecoregions. However, that 
movement is not frequent or common. For example, though one study did 
record movements up to 41 mi (71 km), the average net displacement was 
9.9 mi (16 km), and more study is needed to understand what landscape 
features might act as barriers to movement (Earl et al. 2016, p. 10). 
Additionally, the most recent genetic study found no movement between 
the ecoregions in the Northern DPS and the Shinnery Oak Ecoregion that 
makes up the Southern DPS (Oyler-McCance et al. 2016, p. 653). 
Therefore, based on the best available information, we affirm that the 
Northern DPS and the Southern DPS are markedly separated from each 
other, and are therefore discrete under the DPS policy.
    Comment 161: One commenter noted that the National Marine Fisheries 
Service defines significant gap in the range as the loss of a 
populations between two other populations. The commenter pointed to a 
90-day finding for the Iliamna Lake harbor seal (Phoca vitulina 
richardii) that concluded that the petition did not present substantial 
information that a DPS finding may be warranted because it was not an 
interstitial population of harbor seals whose loss would isolate 
another population from the main group. The commenter concluded that, 
using that logic, the loss of the Shinnery Oak Ecoregion that makes up 
the Southern DPS would be a range contraction, not a gap in the range.
    Another commenter disputed the importance of the statement that the 
loss of one half of the population would result in a loss in a gap in 
the range because they believe that could apply to any species. The 
commenter quoted a response to a public comment in the 1996 DPS policy 
that used an example of an interstitial population and the importance 
of gene flow, and concluded from that response that the gap in the 
range was meant to apply to interstitial populations only. 
Additionally, one commenter interpreted the DPS policy to state that a 
population could not be both entirely separate from the remainder of 
the range and significant to the rangewide entity because there would 
be no significant gap in its range.

[[Page 72740]]

    Our response: In regard to the Iliamna Lake harbor seal, the 
petition finding states that the harbor seal taxon is broadly 
distributed, ranging from Alaska to the Baja Peninsula, and that the 
estimated number of seals in Iliamna Lake accounts for roughly 0.1 
percent of the total population (Boveng et al. 2016, p. 40; 81 FR 
81074, November 17, 2016). The petition finding further quotes Boveng 
et al. (2016, p. 40): ``Because Iliamna Lake is not a part of the 
continuous coastal range of the marine population of harbor seals, the 
loss of the Iliamna Lake segment could not produce a gap in that range, 
and therefore would not reduce or preclude dispersal between segments 
of the marine population.'' Thus, the finding regarding the Iliamna 
Lake harbor seal is not relevant to this DPS finding, as the loss of a 
small percentage of the harbor seal population also does not amount to 
a range contraction.
    Furthermore, the DPS policy can apply to populations at the edge of 
a species' range. For example, the northern bog turtle and the western 
yellow-billed cuckoo were listed as DPSs that were not interstitial 
populations. Courts have affirmed that it is appropriate for DPS 
findings to apply to populations on the edge of a species' range, as 
long as it is a geographic area that amounts to a substantial reduction 
of a taxon's range (National Association of Homebuilders v. Norton, 340 
F.3d 835, 852 (9th Cir. 2003). Given that the Shinnery Oak Ecoregion 
makes up 25 percent of the species' range, we consider that its loss 
would result in a significant gap in the range of the lesser prairie-
chicken.
    Comment 162: Several commenters stated that the Service had not 
appropriately used the DPS authority as designated by Congress and the 
1996 policy, and stated that the Service had manipulated the policy in 
order to find that listing the lesser prairie-chicken was warranted. 
Another commenter stated that using a single study to support a DPS 
determination was contrary to the instruction to use the DPS policy 
sparingly.
    Our response: Our 1996 DPS policy stated that the application of 
the policy framework would lead to consistent and sparing exercise of 
the authority to address DPSs, in accord with congressional 
instruction. Further, because we are to use the best available 
information to make all findings, including the finding on the marked 
genetic differences between the Shinnery Oak Ecoregion and other three 
ecoregions, at times we may have only one study to inform our decision. 
In this instance, we used the best available scientific information 
regarding genetic differences. Specifically, for our DPS determinations 
within this rule we cite the genetic information provided by Oyler-
McCance et al. (2016), which represents the most up to date and 
complete information on the genetics of the lesser prairie-chicken. 
While we believe this study represents the best available science, we 
also considered all other available genetic information for the lesser 
prairie-chicken (Service 2022, pp. 14-15).
    Comment 163: Several commenters argued that the Service has not 
shown that genetic differences between lesser prairie-chicken DPSs 
equal differences in physical or behavioral characteristics, or that 
they result in any adaptive capacity for the birds; one commenter 
stated that a lesser prairie-chicken in one ecoregion was 
indistinguishable from a lesser prairie-chicken in another part of the 
range, and that a lesser prairie-chicken could survive equally well in 
any ecoregion. These commenters concluded that the Service had not 
proven the genetic differences were significant.
    Our response: The DPS policy states that, for any population 
segment found to be discrete, we consider available scientific evidence 
of the discrete population segment's importance to the taxon to which 
it belongs. This consideration may include, but is not limited to, 
evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics. The 
policy does not require that those genetic characteristics must result 
in physical or biological differences or any other adaptive capacity. 
The stated purpose of the DPS policy is to support the Act's goals of 
conserving genetic resources and maintaining natural systems and 
biodiversity over a representative portion of their historical 
occurrence. Our DPS findings for the lesser prairie-chicken are in line 
with that stated purpose.
    Comment 164: Multiple commenters submitted questions about the 2016 
Oyler-McCance et al. study on lesser prairie-chicken genetics, which we 
reference in our DPS determination. Supposed flaws stated by the 
commenters included that the study: was not intended for use in a DPS 
analysis; was not meant to be a landscape genetic analysis, had not 
taken samples from lesser prairie-chickens in Eddy, Chaves, or Lea 
Counties in New Mexico, had not accounted for long-range dispersals, 
and was meant only to inform efforts to increase connectivity. One 
commenter said that one genetic study (Pruett et al. 2011) had shown 
that genetic variation in the lesser prairie-chicken was mostly 
explained by geography. Some commenters stated that the study does not 
prove more genetic variation besides that typically found in 
metapopulations, and that we had ignored evidence of gene flow and that 
we did not have information on the timing of when the populations 
diverged. One commenter noted that the study stated that more data were 
needed to understand the genetic structure of the lesser prairie-
chicken. Commenters noted that any wide-ranging species with isolated 
populations would have ``marked genetic differences.''
    Our response: As discussed in our response to Comment 30, we must 
use the best available scientific and commercial data to make our 
findings. Additionally, the DPS policy does not require that a finding 
be based on a landscape genetic analysis or on time since separation, 
only that significance can include evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics. The Pruett et al. (2011) study 
did note that lesser prairie-chicken in Oklahoma and New Mexico were 
genetically differentiated but did not make any conclusions about 
geography being the cause of the distinctiveness. The 2016 Oyler-
McCance et al. study represents the most up-to-date and complete 
information on the genetics of the lesser prairie-chicken, and found 
that there was genetic structuring within ecoregions, and that there 
was limited gene flow between them (Oyler-McCance et al. 2016, p. 657). 
The study also found that the Shinnery Oak Ecoregion was a genetically 
distinct population with ``large and significant FST 
values'' (Oyler-McCance et al. 2016, p. 653) (FST values are 
the proportion of total genetic variance in a population relative to 
the total genetic variance). Overall, in considering whether a 
population meets the discreteness criteria in the DPS policy, we 
consider solely whether it is markedly separate from other populations 
of the same species, not whether it is genetically distinct in 
comparison to other species' populations.
    Comment 165: Two commenters considered the location of the bounding 
line between DPSs to be arbitrary. One stated that the location of the 
line cutting through Texas would make statewide management and private 
landowner conservation efforts difficult. Another stated that there is 
not even scientific consensus as to the number of ecoregions supporting 
the lesser prairie-chicken, or on their boundaries; that

[[Page 72741]]

commenter concluded that we should not use ecoregions for DPSs because 
of that uncertainty. Another commenter said that the ecoregions were 
designed for conservation and management purposes and should not be 
used for DPS determinations.
    Our response: The ecoregions are used regularly by State management 
agencies and scientists for management, and we are not aware of any of 
any alternative ecoregion boundaries being used by experts or 
management agencies. The designations of these ecoregions were made for 
the purposes of lesser prairie-chicken management based upon the 
scientific information. Our placement of the line between the Northern 
DPS and Southern DPS of the lesser prairie-chicken was not an arbitrary 
decision. Using the analysis area identified in the SSA report, which 
represents the best estimate of the species range, we placed the line 
between the Northern DPS and the Southern DPS at approximately the 
geographic mid-way point between the southernmost part of the Northern 
DPS and northeastern most part of the Southern DPS. Within the State of 
Texas, the areas occupied by the lesser prairie-chicken are already 
being managed as two different ecoregions as outlined by the Western 
Association of Fish and Wildlife Agencies. While evaluating the lesser 
prairie-chicken under our DPS policy, we did not rely solely on the 
ecoregion boundaries to determine that there were two DPSs. Overall, we 
used the best available science regarding the lesser prairie-chicken 
ecoregions and lesser prairie-chicken populations in identifying the 
boundary between the two DPSs.
    Comment 166: Two commenters believed the Service conflated the 
discussions of significance and discreteness by using the same genetics 
study for both determinations. One stated we had not fully explained 
how the genetic evidence translated to them both being significant due 
to evidence that the population segments differed markedly due to 
genetic characteristics. They concluded that there was no evidence to 
prove any genetic differences translated to adaptive capacity.
    Our response: We use the best available scientific data for all 
analysis under the Act, even if that requires use of the same study for 
multiple determinations related to a species. There is no requirement 
that separate genetic data be used for discreteness and significance 
criteria in the DPS policy. As discussed in our response to Comment 
164, Oyler-McCance et al. (2016, p. 653) found significant 
FST values between the Shinnery Oak Ecoregion and the 
Northern DPS. This and other genetic evidence demonstrate that the 
population segments do indeed differ markedly due to genetic 
characteristics and that they are markedly separate based on genetics; 
that is, that genetic evidence provides support that the DPSs are both 
discrete and significant.
    Comment 167: Several commenters stated that the methodology used in 
Oyler-McCance et al. (2016) was not appropriate for determining marked 
separation. One commenter noted that microsatellite loci have a low 
likelihood of uncovering recent genetic structure, and that 
microsatellites often show high variation, particularly in populations 
that are close to each other. They also said that the loci in the study 
had not been selected randomly. They concluded that although the study 
says that the populations are genetically distinct, this does not 
necessarily translate to them differing markedly due to genetic 
characteristics in accordance with the DPS policy.
    Our response: Microsatellites are commonly used by researchers to 
examine genetic characteristics of species and populations; in fact, 
the detection of variation is often suitable for detecting population 
structure. It is also common in genetic studies for loci not to be 
selected at random. Additional genetic information would be useful; 
however, as discussed in our response to Comment 118, we must use the 
best available science, and we cannot wait for additional studies to be 
completed. We have evaluated this study and all of the other best 
available information on genetic data to support our conclusion that 
the Southern DPS has marked genetic separation from the Northern DPS.
    Comment 168: Three commenters stated that the genetic diversity 
found in Oyler-McCance et al. (2016) is too small, and that the methods 
are otherwise inappropriate. They say the study found that only 3.4 of 
total genetic variance is explained by geographic area. The commenters 
considered that too small of a difference. One of the commenters added 
that the information could also not be used to support discreteness, as 
they said that the DPS policy interprets discreteness to mean genetic 
variation that is identifiable to a certain geographic area. One 
commenter provided a study that they said showed that the methods used 
in Oyler-McCance et al. (2016) are too sensitive or too good at finding 
diversity. The commenter said these differences were contrary to 
Congress's instruction to use the policy sparingly. The commenters 
concluded that there was not sufficient evidence that the genetic 
characteristics were important to the taxon or that the Southern DPS 
met the criteria for significance.
    Our response: It appears that the commenters have misunderstood the 
FST value mentioned in Oyler-McCance et al. (2016). 
FST values are not percentages and do not simply explain 
genetic variance by geographic area. Instead they are the proportion of 
total genetic variance in a population relative to the total genetic 
variance. High FST values demonstrate a significant degree 
of differentiation among populations. It is also important to note that 
the FST value is only one of several analyses presented in 
Oyler-McCance et al. (2016), and that all of the analyses support the 
Shinnery Oak Ecoregion as being genetically distinct from the remainder 
of the lesser prairie-chicken range and that genetic evidence provides 
support that the DPSs are both discrete and significant. Additionally, 
as discussed in our response to Comment 164, we look solely at whether 
the population is markedly separate from other populations of the same 
species, not whether it is genetically distinct in comparison to other 
species.
    Comment 169: One commenter argued that the Sand Sagebrush Ecoregion 
was discrete from the remainder of the Northern DPS. They stated that 
the ecoregion is discrete because the Oyler-McCance study shows that 
the Sand Sagebrush population is distinct from other populations, and 
because the movement of the birds between the Sand Sagebrush and the 
Short-Grass/CRP Ecoregions appears to go in only one direction; that 
is, birds move only out of the Sand Sagebrush Ecoregion. The commenter 
added that lesser prairie-chickens rarely move far in their lifetime 
and often stay near their leks and that habitat fragmentation is 
increasing the isolation of the lesser prairie-chicken in the Sand 
Sagebrush Ecoregion. Based on those lines of evidence, they concluded 
that we should consider the Sand Sagebrush Ecoregion to be discrete 
from other populations of the lesser prairie-chicken.
    The commenter further argued that the Sand Sagebrush Ecoregion met 
the definition of significant under the DPS policy, and that it met the 
definition of endangered. They concluded that we should list the Sand 
Sagebrush Ecoregion as a DPS separate from the remainder of the 
Northern DPS.
    Our response: Our 1996 DPS policy states that a population segment 
of a vertebrate species may be considered discrete if it satisfies 
either one of the

[[Page 72742]]

following conditions: (1) It is markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors. Quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation, or (2) It is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the Act. 
There are no international boundaries separating any of the ecoregions, 
so we then consider if the Sand Sagebrush Ecoregion meets the first 
criterion.
    According to the most recent genetic data, studies of neutral 
markers indicate that, although lesser prairie-chicken from the Sand 
Sagebrush Ecoregion form a distinct genetic cluster from other 
ecoregions, they have also likely contributed some individuals to the 
Short-Grass/CRP Ecoregion through dispersal, and some low levels of 
ongoing gene flow occurs from the Sand Sagebrush Ecoregion into the 
Short-Grass/CRP Ecoregion (Oyler-McCance et al. 2016, p. 653). This 
finding demonstrates that the Sand Sagebrush Ecoregion is not discrete 
from the Short-Grass/CRP Ecoregion. Therefore, we conclude that the 
Sand Sagebrush Ecoregion is not discrete as it is not markedly 
separated due to physical or genetic factors from other lesser prairie-
chicken populations as a consequence of physical, physiological, 
ecological, or behavioral factors.
    In regard to the commenter's point about the significance of the 
Sand Sagebrush Ecoregion, our DPS policy states that we consider 
significance of a population segment only if it is considered discrete. 
Because we do not have evidence that the Sand Sagebrush Ecoregion is 
discrete from the remainder of the Northern DPS, we do not consider if 
it meets the definition of significance under the policy.
    Comment 170: One commenter expressed confusion on how the 
separation of the species into two DPSs would help improve connectivity 
between the two areas and added that separating them taxonomically 
would not improve connectivity either. That commenter and another noted 
that many conservation efforts had gone toward increasing connectivity 
between those areas, and that designating separated DPSs would be a 
barrier toward encouraging connectivity in the future. The commenter 
concluded that the Service should not divide the lesser prairie-chicken 
into two taxa.
    Our response: Regarding existing effects to connectivity, please 
see the response to Comment 95. The creation of DPSs is solely a policy 
consideration, not a biological division. Designating DPSs does not 
alter or modify existing species taxonomy. Rather, it identifies one or 
more segments of a population that are discrete from and significant to 
the taxon as a whole, and that may or may not require protection under 
the Act. Thus, designation of the species as two DPSs would also not 
hinder future conservation efforts that could be aimed at encouraging 
connectivity.
    Comment 171: One commenter claimed that the Service was designating 
DPSs solely because it had detected genetic diversity in the species, 
which they said was contrary to the stated purpose of the DPS policy to 
``concentrate conservation efforts undertaken under the Act on avoiding 
important losses of genetic diversity.''
    Our response: We affirm that our designation of the two DPSs is in 
alignment with the goals of the DPS policy and the Act to conserving 
genetic resources and maintaining natural systems and biodiversity over 
a representative portion of their historic occurrence, and with the 
Congressional intent to use the policy sparingly. Additionally, we are 
listing the Northern DPS because it meets the definition of a 
threatened species and the Southern DPS because it meets the definition 
of an endangered species.
Comments on the 4(d) Rule
    Comment 172: Multiple commenters stated that the 4(d) rule should 
include provisions allowing incidental take of lesser prairie-chickens 
as a result of development and operation of oil and gas production, 
renewable energy facilities, and transmission lines. They argued that, 
without those provisions, those industries would have no incentive to 
participate in conservation of the species.
    Our response: We do not find that provisions under a 4(d) rule for 
these sectors would be necessary and advisable for the conservation of 
the lesser prairie-chicken. These activities have been identified as 
sources contributing to the primary threat of habitat loss and 
fragmentation to the lesser prairie-chicken currently and into the 
future (see the SSA report for further details), and continued 
unmitigated impacts are likely to result in an additional decline in 
the status of the species. As a result, these sectors are better 
addressed through other compliance mechanisms under the Act, such as 
sections 7 and 10 as appropriate.
    Comment 173: Multiple commenters asserted that a provision should 
be developed in the 4(d) rule that would serve to exempt or 
``grandfather'' projects that are pending or otherwise in progress.
    Our response: While we recognize that the period following the 
listing of a species can be challenging with regard to incidental take 
coverage, we do not find that such a provision would meet the 
definition of a 4(d) rule that is necessary and advisable for the 
conservation of the lesser prairie-chicken. The Service is committed to 
reviewing section 10 permit applications as quickly as possible in 
conjunction with project proponents.
    Comment 174: Two commenters asserted that 5 years was too short for 
the agricultural provision, and that agricultural practices change more 
frequently than that. They concluded that the timeframe was too 
burdensome for farmers, particularly as some lands may not be 
maintained for more than 5 years for a variety of reasons, including 
drought or market factors. One commenter asked that we increase the 
timeframe to 10 years.
    Our response: While developing the exception for routine 
agricultural practices on existing cultivated lands, we recognized the 
need to define ``existed cultivated lands.'' The intent is to be clear 
that areas currently in cropland do not possess the vegetative 
structure and composition necessary to support most life history 
functions for the lesser prairie-chicken, and, while there may be some 
very limited use for activities such as opportunistic feeding and 
lekking, prohibiting take on these areas is not necessary for the 
conservation of the species. We first looked to the definition of 
cropland as defined in the CFR but then realized that just because an 
area was cultivated in the past does not mean that it currently is not 
lesser prairie-chicken habitat. Thus, we then added a second 
requirement, that not only does the area meet the definition of 
cropland but also that it has been tilled within the previous 5 years. 
For cropland that has gone fallow, we would not expect those areas to 
reach a successional state that would support the lesser prairie-
chicken prior to 5 years. We do not find that a longer period of time, 
such as 10 years, would be necessary and advisable for the conservation 
of the lesser prairie-chicken because, after 5 years, fallow lands may 
have reached a successional state that could support lesser prairie-
chickens.
    Comment 175: Multiple commenters requested that activities such as 
new construction in areas that are already

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impacted, be excluded from take prohibitions. Other commenters 
requested that general operations and maintenance as well as emergency 
operations occurring on existing infrastructure be excluded from take 
prohibitions.
    Our response: We do not find that provisions under a 4(d) rule for 
activities in areas that are already impacted (this includes the direct 
and indirect impacts) are necessary and advisable for the species. 
These activities are taking place in areas that are not suitable 
habitat for lesser prairie-chicken because the species avoids existing 
development. As a result, it is unlikely that take of the species would 
be occurring from these activities. Therefore, no exception from the 
prohibitions is needed.
    Comment 176: Multiple commenters requested that the existing CCAAs 
be included in the 4(d) rule.
    Our response: A provision under a 4(d) rule for an existing CCAA is 
not necessary as any take associated with activities covered within 
those agreements would be covered by the associated section 10(a)(1)(A) 
permit.
    Comment 177: Several commenters stated that any projects or project 
proponents following voluntary conservation measures be covered by the 
4(d) rule. Several commenters asked that projects contributing to 
certain conservation banks and other conservation actions be included 
in the 4(d) rule. One commenter stated that mitigation measures and 
proactive conservation be used in place of a 4(d) rule.
    Our response: The fact that a project proponent has voluntarily 
implemented conservation measures or has contributed to a conservation 
bank is not an indication the voluntary measures implemented will 
provide benefits that are commensurate with realized impacts to the 
species. We cannot conclude that project proponents implementing an 
unknown amount of future impacts and applying undefined conservation 
measures would be adequate to conserve the lesser prairie-chicken 
without a structured mechanism in place to allow for an accurate 
assessment of those impacts and a structured way to determine how to 
adequately offset those impacts. Thus, we do not find that blanket 
provisions for these actions under a 4(d) rule are necessary and 
advisable for the conservation of the species.
    Comment 178: Multiple commenters stated that, if surveys do not 
detect lesser prairie-chicken in an area, then that project should be 
excepted from take under section 4(d) of the Act.
    Our response: Due to the cryptic nature of the lesser prairie-
chicken, existing survey efforts have relatively poor detection 
probabilities and thus negative survey results for the species may not 
necessarily indicate the absence of the species. We do not advise that 
project proponents make evaluations of the effects of a project on the 
lesser prairie-chicken based on survey results. For project proponents 
needing assistance in evaluating the impacts of their projects, please 
contact your local Service Field Office. Because of these issues, we do 
not find that blanket provisions for a project area with a negative 
survey result under a 4(d) rule are necessary and advisable for the 
conservation of the species.
    Comment 179: Several commenters stated that renewable energy 
projects should be excepted from take in the 4(d) rule because 
renewable energy reduces climate change, a major threat to the lesser 
prairie-chicken, or because renewable energy has lower impacts on the 
lesser prairie-chicken than other threats. One commenter stated that 
renewable energy also provides grassland preservation. They concluded 
that renewable energy was thus necessary and advisable to the 
conservation of the species.
    Our response: We do not find that provisions under a 4(d) rule for 
these sectors would be necessary and advisable for the conservation of 
the lesser prairie-chicken. These activities have been identified as 
sources contributing to the primary threat of habitat loss and 
fragmentation to the lesser prairie-chicken currently and into the 
future (see the SSA report for further details), and continued 
unmitigated impacts are likely to result in an additional decline in 
the status of the species. As a result, these sectors are better 
addressed through other ESA compliance mechanisms such as sections 7 
and 10, as appropriate.
    Comment 180: One commenter asked the Service to clarify the 
regulatory 4(d) text to include the statement from the preamble that 
the provision does not include take coverage for any new conversion of 
grasslands into agriculture. The commenter stated that including that 
text would improve clarity and avoid confusion.
    Our response: We reviewed the 4(d) and regulatory text to ensure 
clarity around this point and we do not find that adding language to 
the regulatory text would provide any additional clarity. Along with 
this final listing determination, we developed answers to frequently 
asked questions that address conversion of grasslands into agriculture; 
this document is available on our website at https://www.fws.gov/lpc 
and posted to https://www.regulations.gov. This document reemphasizes 
the fact that the provision of the section 4(d) rule for the Northern 
DPS does not except from take any new conversion of grassland to 
cropland.
    Comment 181: One commenter stated that the 4(d) rule impermissibly 
amends the definition of cropland in 7 CFR 718.2 by adding the 5-year 
requirement. The commenter stated that a rulemaking must take place to 
amend the definition of cropland.
    Our response: We are not amending the definition of cropland in 7 
CFR 718.2. The 4(d) rule simply outlines that, to qualify for the 
exception for routine agricultural practices on existing cultivated 
lands, the land must not only meet the definition of cropland as 
defined in 7 CFR 718.2, but the land must also have been tilled within 
the previous 5 years.
    Comment 182: One commenter asked that the 4(d) rule clarify if 
addition of windmills to the landscape would be excepted from take 
prohibitions, given that removal of windmills is covered.
    Our response: We do not find that a blanket provision allowing an 
exception of take resulting from the construction of windmills under 
the 4(d) rule is necessary and advisable for the conservation of the 
lesser prairie-chicken. Construction of vertical features has been 
identified as a threat for the lesser prairie-chicken as outlined in 
the SSA report as they can serve as potential predator perches. 
Additionally, we note that the removal of windmills is not an excepted 
activity but rather we determined that no exception in the Northern DPS 
4(d) rule is needed because the removal of a windmill would not result 
in take of the species.
    Comment 183: One commenter requested that the Service provide a 
4(d) exception for renewable energy facilities that implement the Land-
Based Wind Energy Guidelines developed by the Service in 2012.
    Our response: The Land-Based Wind Energy Guidelines were not 
developed to fully mitigate the impacts of wind energy development on 
the lesser prairie-chicken. Implementation of these guidelines may 
assist developers to minimize impacts to wildlife while siting 
projects, but implementation of the guidelines does not indicate that 
the developer has fully evaluated the extent of their impacts on the 
lesser prairie-chicken or mitigated for those impacts (habitat loss and 
fragmentation). The LWEG does not provide species-specific assessment 
of effects from wind energy developments and therefore does not

[[Page 72744]]

provide sufficient information to inform adequacy of mitigation for the 
lesser prairie-chicken. Thus, we do not find that a blanket provision 
allowing renewable energy facilities that implement the Land-Based Wind 
Energy Guidelines under the 4(d) rule is necessary and advisable for 
the conservation of the lesser prairie-chicken.
    Comment 184: One commenter asserted that the proposed 4(d) 
regulations meant that the Northern DPS and Southern DPS would have the 
same protections and prohibitions, and that this was inappropriate.
    Our response: The two DPSs do not have the same prohibitions. The 
Available Conservation Measures section below lays out examples of 
activities that may potentially result in violations of section 9 that 
are covered under our section 4(d) rule, such as removal of native 
shrub or herbaceous vegetation. As outlined under our section 4(d) 
rule, we have crafted three exceptions from the general take 
prohibitions that were adopted for the Northern DPS. More details on 
exceptions from prohibitions only applicable to the Northern DPS are 
laid out in our Provisions of the 4(d) Rule section, below.

Determination of Lesser Prairie-Chicken Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of endangered species 
or threatened species because of any of the following 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.

Status of the Southern DPS of the Lesser Prairie-Chicken Throughout All 
of Its Range

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Southern DPS of the lesser prairie-chicken and its habitat. We 
analyzed effects associated with habitat degradation, loss, and 
fragmentation, including conversion of grassland to cropland (Factor 
A), petroleum production (Factor A), wind energy development and 
transmission (Factor A), woody vegetation encroachment (Factor A), and 
roads and electrical distribution lines (Factor A); other factors, such 
as livestock grazing (Factor A), shrub control and eradication (Factor 
A), collision mortality from fences (Factor E), predation (Factor C), 
influence of anthropogenic noise (Factor E), and fire (Factor A); and 
extreme weather events (Factor E). We also analyzed the effects of 
existing regulatory mechanisms (Factor D) and ongoing conservation 
measures. In the SSA report, we also considered three additional 
threats: hunting and other recreational, educational, and scientific 
use (Factor B); parasites and diseases (Factor C); and insecticides 
(Factor E). We consider all of these impacts now in analyzing the 
status of the Southern DPS.
    Over the past several decades, habitat loss, fragmentation, and 
degradation have resulted in the loss of large areas of the habitat 
that supports the lesser prairie-chicken in the Southern DPS. Suitable 
habitat has been lost as grasslands are converted to cropland, and as 
petroleum and natural gas production and wind energy development have 
resulted in further loss of habitat. The lesser prairie-chicken is 
particularly vulnerable to changes on the landscape, as it requires 
large blocks of suitable habitat to complete its life-history needs. 
This includes its 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. In 
the case of petroleum and wind energy production, the extent of the 
impact from the threat is not just the original site, but also all 
roads, power lines, and other infrastructure associated with the sites, 
and noise associated with those areas that may interfere with 
communication between male and female birds.
    In the Southern DPS, woody vegetation encroachment by honey 
mesquite has played a significant role in limiting available space for 
the lesser prairie-chicken and is one of the primary threats to the 
species in this DPS. Fire, incompatible grazing management, and drought 
associated with climate change also continue to degrade habitat. The 
size of fires, especially in areas dominated by woody vegetation, is 
increasing. When managed compatibly, fire and grazing can improve 
habitat quality. However, fire management efforts are currently 
occurring on only a limited portion of the lesser prairie-chicken 
range.
    The Southern DPS is particularly vulnerable to effects associated 
with climate change and drought, as it is already warmer and drier than 
it was historically. That warmer and drier trend is expected to 
continue (Grisham et al. 2013, entire; Grisham et al. 2016c, p. 742). 
Given the needs of lesser prairie-chicken for cool microclimates to 
find appropriate nest sites and rear broods, droughts like those that 
have recently occurred on the landscape could further impact already 
declining population growth rates in this DPS.
    Conservation measures and regulatory mechanisms are acting to 
reduce the magnitude of threats impacting the lesser prairie-chicken 
and its habitat. However, our analysis demonstrates that the 
restoration efforts have not been enough to offset the impacts of 
habitat loss and fragmentation and conservation efforts focused on 
localized management to affect habitat quality, are not addressing the 
overarching limiting factor of habitat loss and fragmentation, and are 
not addressing the long-term population needs for the lesser prairie-
chicken. Thus, these measures are only minimally ameliorating the 
threats acting throughout the DPS.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
conclude that the Southern DPS is continuing to experience ongoing 
habitat loss and fragmentation, and additional threats from influence 
of anthropogenic noise and extreme weather events, particularly 
droughts. We have estimated that currently, only 27 percent of this 
ecoregion is potentially usable habitat for the lesser prairie-chicken. 
Based on mean population estimates, the Southern DPS has very low 
resiliency to stochastic events. It may have as few as 5,000 birds 
remaining. The population counts have dropped to fewer than 1,000 birds 
in 2015 and 2022 following drought conditions. Under current climactic 
conditions, another wide-scale severe drought could occur in this 
ecoregion at any time, and the species may not be able to recover. 
Overall, the lesser prairie-chickens in the Southern DPS are likely to 
continue to experience declines in resiliency, redundancy, and genetic 
representation. Thus, after assessing the best available information,

[[Page 72745]]

we determine that the Southern DPS of the lesser prairie-chicken is in 
danger of extinction throughout all of its range. We find that a 
threatened species status is not appropriate for the Southern DPS 
because the magnitude and imminence of the threats acting on the DPS 
now result in the species meeting the definition of an endangered 
species.

Status of the Southern DPS of the Lesser Prairie-Chicken Throughout a 
Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the Southern DPS of the lesser 
prairie-chicken is in danger of extinction throughout all of its range 
and accordingly did not undertake an analysis of any significant 
portions of its range. Because the Southern DPS of the lesser prairie-
chicken warrants listing as endangered throughout all of its range, our 
determination does not conflict with the decision in Center for 
Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), 
because that decision related to significant portion of the range 
analyses for species that warrant listing as threatened, not 
endangered, throughout all of their range.

Determination of Status of the Southern DPS of the Lesser Prairie-
Chicken

    Our review of the best available scientific and commercial 
information indicates that the Southern DPS of the lesser prairie-
chicken meets the definition of an endangered species. Therefore, we 
are listing the Southern DPS of the lesser prairie-chicken as an 
endangered species in accordance with sections 3(6) and 4(a)(1) of the 
Act.

Status of the Northern DPS of the Lesser Prairie-Chicken Throughout All 
of Its Range

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Northern DPS of the lesser prairie-chicken and its habitat. We 
analyzed effects associated with habitat degradation, loss, and 
fragmentation, including conversion of grassland to cropland (Factor 
A), petroleum production (Factor A), wind energy development and 
transmission (Factor A), woody vegetation encroachment (Factor A), and 
roads and electrical distribution lines (Factor A); other factors, such 
as livestock grazing (Factor A), shrub control and eradication (Factor 
A), collision mortality from fences (Factor E), predation (Factor C), 
influence of anthropogenic noise (Factor E), and fire (Factor A); and 
extreme weather events (Factor E). We also analyzed existing regulatory 
mechanisms (Factor D) and ongoing conservation measures. In the SSA 
report, we also considered three additional threats: hunting and other 
recreational, educational, and scientific use (Factor B); parasites and 
diseases (Factor C); and insecticides (Factor E). As with the Southern 
DPS, we consider all of these impacts now in analyzing the status of 
the Northern DPS.
    As is the case in the Southern DPS, habitat degradation, loss, and 
fragmentation is the primary threat to the lesser prairie-chicken in 
this DPS, with other threats such as fire, incompatible livestock 
grazing, and extreme weather events further decreasing population 
resiliency and species redundancy. The largest impacts in this DPS are 
cropland conversion and woody vegetation encroachment. The Sand 
Sagebrush Ecoregion is also experiencing habitat degradation due to 
incompatible grazing management. The Short-Grass/CRP region has the 
highest number of birds, with a 5-year estimate of approximately 23,000 
birds. Other portions of the range have lower population resiliency. In 
particular, the Sand Sagebrush Ecoregion has approximately 1,000 birds 
remaining (table 2).
    Resiliency of populations throughout the Northern DPS has decreased 
from historical levels, although the DPS still has redundancy across 
the three ecoregions and genetic and environmental representation. 
However, our future scenario analysis demonstrates that the current 
threats acting on the landscape are expected either to continue at the 
same levels or increase in severity in the foreseeable future. Habitat 
loss is projected to outpace conservation efforts to restore habitat. 
Although we do not expect rates of habitat conversion to cropland to be 
equivalent to historical rates, we expect any additional conversion 
that does occur will have a disproportionately large effect on 
resiliency and redundancy due to the limited amount of remaining large 
intact grasslands. Conversion of habitat due to oil, gas, and wind 
energy will continue to occur, although the rates of development are 
uncertain. Woody vegetation encroachment is also expected to continue, 
particularly in the Mixed-Grass Ecoregion. Increased drought and severe 
weather events associated with climate change are expected to decrease 
population resiliency and redundancy into the foreseeable future, and 
as habitat availability continues to decline, and available habitat 
blocks decrease in size, populations may decline to below quasi-
extinction levels. Our future scenarios project that over the next 25 
years usable habitat will decrease from between 3 to 25 percent within 
the Northern DPS (5-24 percent in the Short-Grass/CRP Ecoregion, 2-37 
percent in the Mixed-Grass Ecoregion, and 3-14 percent in the Sand 
Sagebrush Ecoregion) due to projected impacts from conversion to 
cropland, energy development, and woody vegetation encroachment.
    Conservation measures and regulatory mechanisms are acting to 
reduce the magnitude of threats impacting the lesser prairie-chicken 
and its habitat. However, our analysis demonstrates that future 
restoration efforts will not be enough to offset the impacts of habitat 
loss and fragmentation, and conservation efforts focused on localized 
management to affect habitat quality are not addressing the overarching 
limiting factor of habitat loss and fragmentation, and are not 
addressing the long-term population needs for the lesser prairie-
chicken. Thus, these measures are having only minimal impacts on 
threats acting throughout the DPS.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
find that the lesser prairie-chicken maintains populations in all three 
ecoregions in the Northern DPS, and has genetic and ecological 
representation in those ecoregions, as well as population redundancy 
across the entirety of the DPS. Thus, lesser prairie-chickens in the 
Northern DPS are not currently in danger of extinction, and thus the 
Northern DPS does not meet the definition of endangered. However, our 
future projections indicate that habitat will become increasingly 
fragmented and less able to support lesser prairie-chickens. Thus, 
after assessing the best available information, we conclude that the 
Northern DPS of the lesser prairie-chicken is not currently in danger 
of extinction but is likely to become in danger of extinction within 
the foreseeable future throughout all of its range.

Status of the Northern DPS of the Lesser Prairie-Chicken Throughout a 
Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020

[[Page 72746]]

WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological Diversity), 
vacated the aspect of the Final Policy on Interpretation of the Phrase 
``Significant Portion of Its Range'' in the Endangered Species Act's 
Definitions of ``Endangered Species'' and ``Threatened Species'' (Final 
Policy) (79 FR 37578; July 1, 2014) that provided that the Service does 
not undertake an analysis of significant portions of a species' range 
if the species warrants listing as threatened throughout all of its 
range. Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (i.e., 
endangered). In undertaking this analysis for the Northern DPS of the 
lesser prairie-chicken, we choose to address the status question 
first--we consider information pertaining to the geographic 
distribution of (a) individuals of the species, (b) the threats that 
the species faces, and (c) the resiliency condition of populations. We 
evaluated all parts of the Northern DPS, including the Sand Sagebrush 
Ecoregion, the Mixed-Grass Ecoregion, and the Short-Grass/CRP 
Ecoregion. We identified one portion, the Sand Sagebrush Ecoregion, 
that may meet the definition of endangered, as population estimates 
have shown the greatest declines in that portion of the range.
    For the Northern DPS, we considered whether the threats or their 
effects on the species are greater in any biologically meaningful 
portion of the species' range than in other portions such that the 
species is in danger of extinction now or likely to become so in the 
foreseeable future in that portion. In this final rule, we examined 
threats associated with habitat degradation, loss, and fragmentation, 
including conversion of grassland to cropland; petroleum production; 
wind energy development and transmission; woody vegetation 
encroachment; and roads and electrical distribution lines. We also 
examined threats associated with other factors, such as livestock 
grazing; shrub control and eradication; collision mortality from 
fences; predation; influence of anthropogenic noise; fire; and extreme 
weather events. We also considered cumulative effects associated with 
all those threats. However, we did not identify any threats that were 
concentrated in the Sand Sagebrush Ecoregion that were not at similar 
levels in the remainder of the range of the Northern DPS at a 
biologically meaningful scale.
    As explained in the response to public comments, we considered for 
this final rule if the Sand Sagebrush Ecoregion is significant in 
relation to the remainder of the range as an alternative approach to 
the significant portion of the range analysis. Because Desert Survivors 
v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. 
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 
3d 946, 959 (D. Ariz. 2017) have invalidated the definition of 
``significant'' set forth in the Final Policy, we determine 
significance on a case-by-case basis using a reasonable interpretation 
of significance and providing a rational basis for our determination. 
For the purposes of this rule, we considered whether the Sand Sagebrush 
Ecoregion constitutes habitat of high quality relative to the remaining 
portions of the Northern DPS' range and whether the Sand Sagebrush 
Ecoregion constitutes high or unique value habitat for the Northern 
DPS. One way in which we may consider significance is if the identified 
portion constitutes high or unique value habitat for the species; for 
example, a portion that provides habitat used by the species to support 
a life history stage. The Sand Sagebrush Ecoregion does not constitute 
a portion of the range where limiting life history stages, such as 
breeding or nesting, are concentrated, as the lesser prairie-chicken is 
currently carrying out all important life history stages in each 
portion of the Northern DPS. The lesser prairie-chicken reproduces and 
nests throughout the Northern DPS, regardless of ecoregion. We also 
considered if the Sand Sagebrush Ecoregion is a high-quality area that 
is also the only area that has remained intact where other areas in the 
range have been impacted by particular threats. Although the Sand 
Sagebrush Ecoregion is important habitat for the lesser prairie-
chicken, it has been degraded due to incompatible grazing, historical 
conversion of grassland to cropland, woody vegetation encroachment, and 
roads and electrical distribution lines. When we consider the current 
condition of the habitat in the Sand Sagebrush Ecoregion relative to 
the Short-Grass/CRP Ecoregion and Mixed Grass Ecoregion, we find that 
the habitat in all three ecoregions has been degraded. Thus, after 
reviewing the Sand Sagebrush Ecoregion portion relative to the range of 
the Northern DPS, we conclude that the Sand Sagebrush Ecoregion is not 
significant.
    Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This does not conflict with the courts' 
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not apply the aspects of the Final 
Policy's definition of ``significant'' that those court decisions held 
were invalid.

Determination of Status of the Northern DPS of the Lesser Prairie-
Chicken

    Our review of the best scientific and commercial data available 
indicates that the Northern DPS of the lesser prairie-chicken meets the 
definition of a threatened species. Therefore, we are listing the 
Northern DPS of the lesser prairie-chicken as a threatened species in 
accordance with sections 3(20) and 4(a)(1) of the Act.

Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as: (i) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed 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 by the Secretary 
that such areas are essential for the conservation of the species.
    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that we designate critical habitat at the time a 
species is determined to be an endangered or threatened species, to the 
maximum extent prudent and determinable. In the proposed listing rule 
(86 FR 29432, June 1, 2021), we determined that designation of critical 
habitat was prudent but not determinable because specific information 
needed to analyze the impacts of designation was lacking.

[[Page 72747]]

We are still in the process of obtaining this information. As a result, 
we reaffirm our finding that critical habitat is not determinable for 
the lesser prairie-chicken at this time.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    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. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. 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.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), 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. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (http://www.fws.gov/lpc), or from 
our Southwest Regional 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, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. 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. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Following publication of this final rule, 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, pursuant to 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 or 
recovery of the lesser prairie-chicken. Information on our grant 
programs that are available to aid species recovery can be found at: 
https://www.fws.gov/service/financial-assistance.
    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).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat. 
Regulations implementing this interagency cooperation provision of the 
Act are codified at 50 CFR part 402. 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 any endangered or threatened species or destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
consultation with the Service.
    Some examples of Federal agency actions within the species' habitat 
that may require consultation, 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, the State Wildlife Grant Program, and the 
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 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; or Federal habitat restoration programs such as the 
Environmental Quality Incentive Program and CRP; and development of 
Federal minerals, such as oil and gas.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under

[[Page 72748]]

certain circumstances. Regulations governing permits are codified at 50 
CFR 17.22. With regard to endangered wildlife, a permit may 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. The statute also contains 
certain exemptions from the prohibitions, which are found in sections 9 
and 10 of the Act.
    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 final listing 
on proposed and ongoing activities within the range of a listed 
species. For the Northern DPS of the lesser prairie-chicken, which we 
are listing as threatened, the discussion below in section II regarding 
protective regulations under section 4(d) of the Act complies with our 
policy.
    We now discuss specific activities related to the Southern DPS, 
which we are listing as endangered. Based on the best available 
information, the following actions are unlikely to result in a 
violation of section 9, if these activities are carried out in 
accordance with existing regulations and permit requirements; this list 
is not comprehensive. As identified in the SSA report, restoration 
actions are essential for conservation of the lesser prairie-chicken. 
Restoration actions will not constitute a violation of section 9 as 
those actions are implemented on lands that are not currently lesser 
prairie-chicken habitat. These restoration actions include:
    (1) Planting previously tilled or no till croplands to grasses;
    (2) Removal of nonnative or invasive trees and shrubs, not 
including shinnery oak or sand sagebrush; and
    (3) Removal of existing infrastructure including oil and gas 
infrastructure, electrical transmission and distribution lines, 
windmills, existing fences, and other anthropogenic features impacting 
the landscape.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act in the 
Southern DPS of the lesser prairie-chicken if they are not authorized 
in accordance with applicable law; 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 
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' habitat. 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 
the direct conversion of native shrub or herbaceous vegetation to 
another land use.
    (3) Actions that would result in sustained alteration of preferred 
vegetative characteristics of lesser prairie-chicken habitat, 
particularly those actions that would cause a reduction or loss in the 
native invertebrate community within those habitats or alterations to 
vegetative composition and structure. Such activities could include, 
but are not limited to, incompatible 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, communication towers, buildings, 
infrastructure to support energy development, roads, and other 
anthropogenic features; 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 in regard to the Southern DPS of the 
lesser prairie-chicken should be directed to the Southwest Regional 
Office (see FOR FURTHER INFORMATION CONTACT).

II. Final Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in 
the Act to mean the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
Thus, the combination of the two sentences of section 4(d) provides the 
Secretary with wide latitude of discretion to select and promulgate 
appropriate regulations tailored to the specific conservation needs of 
the threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting one or more of the prohibitions 
under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this 4(d) rule will promote conservation of the 
Northern DPS of the lesser prairie-chicken by encouraging essential 
conservation efforts and management that enhance habitat quantity and 
quality for the lesser prairie-chicken. The provisions of

[[Page 72749]]

this rule are one of many tools that we will use to promote the 
conservation of the Northern DPS of the lesser prairie-chicken.
    As mentioned previously in Available Conservation Measures, section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they fund, authorize, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of Federal actions that are subject to 
the section 7 consultation process are actions on State, Tribal, local, 
or private lands that require a Federal permit (such as a permit from 
the U.S. Army Corps of Engineers under section 404 of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 
10 of the Act) or that involve some other Federal action (such as 
funding from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    These requirements are the same for a threatened species with a 
species-specific 4(d) rule. For example, a Federal agency's 
determination that an action is ``not likely to adversely affect'' a 
threatened species will require the Service's written concurrence. 
Similarly, a Federal agency's determination that an action is ``likely 
to adversely affect'' a threatened species will require formal 
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

    Exercising this authority under section 4(d), we have developed a 
final rule that is designed to address the specific threats and 
conservation needs of the Northern DPS of the lesser prairie-chicken. 
As discussed above under Summary of Biological Status and Threats, 
threats including habitat loss, fragmentation, and degradation are 
affecting the status of the Northern DPS of the lesser prairie-chicken. 
A range of activities have the potential to affect the Northern DPS of 
the lesser prairie-chicken, including actions that would result in the 
unauthorized destruction or alteration of the species' habitat. 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; actions that would result in the long-
term alteration of preferred vegetative characteristics of lesser 
prairie-chicken habitat, particularly those actions that would cause a 
reduction or loss in the native invertebrate community within those 
habitats.
    Activities that may result in long-term alteration of lesser 
prairie-chicken habitat could include, but are not limited to, 
incompatible livestock grazing; the application of herbicides or 
insecticides; seeding of nonnative plant species that would compete 
with native vegetation for water, nutrients, and space; and actions 
that would result in lesser prairie-chicken avoidance of an area during 
one or more seasonal periods. Activities that may result in lesser 
prairie-chicken avoidance of an area include, but are not limited to, 
the construction of vertical structures such as power lines; 
communication towers; buildings; infrastructure to support energy 
development, roads, and other anthropogenic features; motorized and 
nonmotorized recreational use; and activities such as well drilling, 
operation, and maintenance, which would entail significant human 
presence, noise, and infrastructure; and 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. Regulating these activities would slow the rate of 
habitat loss, fragmentation, and degradation and decrease synergistic, 
negative effects from other threats.
    Section 4(d) requires the Secretary to issue such regulations as 
she deems necessary and advisable to provide for the conservation of 
each threatened species and authorizes the Secretary to include among 
those protective regulations any of the prohibitions that section 
9(a)(2) of the Act prescribes for endangered species. We find that the 
protections, prohibitions, and exceptions in this final rule as a whole 
satisfy the requirement in section 4(d) of the Act to issue regulations 
deemed necessary and advisable to provide for the conservation of the 
Northern DPS of the lesser prairie-chicken.
    The protective regulations we are finalizing for the Northern DPS 
of the lesser prairie-chicken incorporate prohibitions from section 
9(a)(1) to address the threats to the species. Section 9(a)(1) 
prohibits the following activities for endangered wildlife: importing 
or exporting; take; possession and other acts with unlawfully taken 
specimens; delivering, receiving, transporting, or shipping in 
interstate or foreign commerce in the course of commercial activity; or 
selling or offering for sale in interstate or foreign commerce. This 
protective regulation includes all of these prohibitions for the 
Northern DPS of the lesser prairie-chicken because the DPS is at risk 
of extinction in the foreseeable future and putting these prohibitions 
in place will help to prevent further declines, preserve the species' 
remaining populations, slow its rate of decline, and decrease 
synergistic, negative effects from other ongoing or future threats.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
take would help preserve the species' remaining populations, slow their 
rate of decline, and decrease synergistic, negative effects from other 
ongoing or future threats. Therefore, we prohibit take of the Northern 
DPS of the lesser prairie-chicken, except for take resulting from those 
actions and activities specifically excepted by the 4(d) rule.
    It is appropriate to extend the standard section 9 prohibitions for 
endangered species to the Northern DPS of the lesser prairie-chicken in 
order to conserve the species, with several exceptions, which we found 
are necessary and advisable to provide for the conservation of the DPS. 
While developing this 4(d) rule, the Service considered exceptions to 
the standard section 9 prohibitions for endangered species that would 
facilitate essential conservation actions needed for the Northern DPS. 
We consider essential conservation actions to include restoration 
actions, use of prescribed fire, and compatible grazing management as 
the primary essential conservation actions needed to conserve the 
lesser prairie-chicken.
    For the purposes of this rule and our SSA analysis, we consider 
restoration actions to be actions that convert areas that are currently 
not habitat for lesser prairie-chickens to areas that are habitat for 
lesser prairie-chicken. These actions are essential for the 
conservation of the

[[Page 72750]]

species as this is the only way to reverse past and current trends of 
habitat loss and fragmentation. For the lesser prairie-chicken, the 
primary restoration actions consist of woody vegetation removal in and 
adjacent to grasslands (this does not include the removal of sand 
shinnery oak (specifically, Quercus havardii species) or sand sagebrush 
(specifically, Artemisia filifolia species)). Other restoration actions 
include removal of existing anthropogenic features (such as existing 
energy infrastructure, roads, fences, windmills, and other 
anthropogenic features), and converting cropland to grassland. We have 
determined that an exception under this 4(d) rule is not needed for 
these restoration actions as they occur on lands already impacted or 
altered in ways such that they no longer represent lesser prairie-
chicken habitat and thus there is no potential for a section 9 
violation.
    We also considered the value provided by the implementation of 
prescribed fire on the landscape. Prior to extensive Euro-American 
settlement, frequent fires helped confine trees (and other woody 
vegetation) like eastern red cedar to river and stream drainages and 
rocky outcroppings. However, settlement of the Southern Great Plains 
altered the historical ecological context and disturbance regimes. 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 
that helped to maintain prairie habitat for lesser prairie-chicken 
(Collins 1992, pp. 2003-2005; Fuhlendorf and Smeins 1999, pp. 732, 
737).
    Following Euro-American settlement, fire suppression allowed trees, 
such as eastern red cedar, to begin invading or encroaching upon 
neighboring grasslands. Implementation of prescribed fire is often the 
best method to control or preclude tree invasion of grasslands. 
However, to some landowners and land managers, burning of grassland can 
be perceived as unnecessary for meeting their management goals, costly 
and burdensome to enact, undesirable for optimizing production for 
cattle, and likely to create wind erosion or ``blowouts'' in sandy 
soils. Consequently, wildfire suppression is common, and relatively 
little prescribed burning occurs on private land. Often, prescribed 
fire is employed only after significant tree invasion has already 
occurred and landowners consider forage production for cattle to have 
diminished. Preclusion of woody vegetation encroachment on grasslands 
of the southern Great Plains using fire requires implementing fire at a 
frequency that mimics historical fire frequencies of 2-14 years 
(Guyette et al. 2012, p. 330) and thus further limits the number of 
landowners implementing fire in a manner that would truly preclude 
future encroachment. We have determined that while there is a potential 
for short-term adverse impacts to lesser prairie-chicken, we want to 
encourage the use of prescribed fire on the landscape; thus, we provide 
an exception for take resulting from this action in the 4(d) rule.
    Finally, we considered the need for grazing activities that result 
in the vegetation structure and composition needed to support the 
lesser prairie-chicken. The habitat needs for the lesser prairie-
chicken vary across the range, and grazing can affect these habitats in 
different ways. It is important that grazing be managed at a given site 
to account for a variety of factors specific to the local ecological 
site including past management, soils, precipitation, and other 
factors. This management will ensure that the resulting vegetative 
composition and structure will support the lesser prairie-chicken. 
Grazing management that alters the vegetation community to a point 
where the composition and structure are no longer suitable for lesser 
prairie-chicken can contribute to habitat loss and fragmentation within 
the landscape, even though these areas may remain as prairie or 
grassland. Livestock grazing, however, is not inherently detrimental to 
the lesser prairie-chicken, provided that grazing management results in 
a plant community with species and structural diversity suitable for 
the lesser prairie-chicken. When livestock grazing is managed 
compatibly, it can be an invaluable tool necessary for managing healthy 
grasslands benefiting the lesser prairie-chicken.
    While developing this 4(d) rule, we found that determining how to 
manage grazing in a manner compatible with the Northern DPS of the 
lesser prairie-chicken is highly site-specific based on conditions at 
the local level; thus, broad and prescriptive determinations within 
this 4(d) rule would not be beneficial to the species or local land 
managers. To ensure grazing management is compatible with lesser 
prairie-chicken conservation, land managers should follow a site-
specific grazing management plan that was developed to account for a 
variety of factors specific to the local ecological site, including 
past management, soils, precipitation, and other factors. Although we 
have determined that there is a potential for adverse impacts 
associated with grazing, we recognize the value that livestock grazing 
provides when managed compatibly and we want to encourage compatible 
grazing management. Thus, our 4(d) rule provides an exception for take 
associated with grazing management when land managers are following a 
site-specific grazing plan developed by a ``Service-approved party.'' 
For the purposes of this rule, to be considered as a ``Service-approved 
party,'' the individual or entity must possess adequate training or 
experience, typically 5 years or more, in the fields of wildlife 
management, biology, or range ecology. A ``Service-approved party'' 
must also have demonstrated the ability to develop a grazing management 
plan that incorporates all the site-specific conditions discussed 
above. Finally, a ``Service-approved party'' must have demonstrated the 
ability to work with landowners to develop site-specific plans which 
ensure grazing activities result in the vegetative characteristics 
compatible with the habitat needs for the lesser prairie-chicken or 
similar species. Prior to the effective date of this rule, the Service 
will post a list of approved parties to our regional lesser prairie-
chicken web page (https://www.fws.gov/lpc). This list will be updated 
as appropriate as additional parties request approval. We may also 
update these initial requirements for a ``Service-approved party'' and 
will provide any updated qualifications on our regional lesser prairie-
chicken web page (https://www.fws.gov/lpc).
    Overall, the 4(d) rule will also provide for the conservation of 
the species by allowing exceptions that incentivize conservation 
actions or that, while they may have some minimal level of take of the 
Northern DPS of the lesser prairie-chicken, are not expected to rise to 
the level that would have a negative impact (i.e., would have only de 
minimis impacts) on the species' conservation. The exceptions to these 
prohibitions include the following three items, which along with the 
prohibitions, are set forth in the rule portion of this document:
    (1) Continuation of routine agricultural practices on existing 
cultivated lands.
    This 4(d) rule provides that take of the lesser prairie-chicken 
will not be prohibited provided the take is incidental to activities 
that are conducted during the continuation of routine agricultural 
practices, as specified below, on cultivated lands that are in row 
crop, seed-drilled untilled crop, hay, or forage production. These 
lands must meet the definition of

[[Page 72751]]

cropland as defined in 7 CFR 718.2, and, in addition, must have been 
cultivated, meaning tilled, planted, or harvested, within the 5 years 
preceding the proposed routine agricultural practice that may otherwise 
result in take. Thus, this provision does not include take coverage for 
any new conversion of grasslands into agriculture.
    Lesser prairie-chickens may travel from native rangeland and CRP 
lands, which provide cover types that support lesser prairie-chicken 
nesting and brood-rearing, to forage within cultivated fields 
supporting small grains, alfalfa, and hay production. Lesser prairie-
chickens also may maintain lek sites within these cultivated areas, and 
they may be present during farming operations. Thus, existing 
cultivated lands, although not a native habitat type, may provide food 
resources for lesser prairie-chickens.
    Routine agricultural activities covered by this provision include:
    (a) Plowing, drilling, disking, mowing, or other mechanical 
manipulation and management of lands.
    (b) Routine activities in direct support of cultivated agriculture, 
including replacement, upgrades, maintenance, and operation of existing 
infrastructure such as buildings, irrigation conveyance structures, 
fences, and roads.
    (c) Use of chemicals in direct support of cultivated agriculture 
when done in accordance with label recommendations.
    We do not view regulating incidental take resulting from these 
activities as necessary and advisable for the conservation of the 
lesser prairie-chicken as, while there may be limited opportunistic use 
by the species for opportunistic foraging and lekking sites, these 
lands do not support the vegetative composition and structure necessary 
to support the full suite of life history functions of the species. 
None of the provisions in 50 CFR 17.21 would apply to take incidental 
to activities associated with the continuation of routine agricultural 
practices, as specified above, on existing cultivated lands that are in 
row crop, seed-drilled untilled crop, hay, or forage production. These 
lands must meet the definition of cropland as defined in 7 CFR 718.2, 
and, in addition, must have been cultivated, meaning tilled, planted, 
or harvested, within the previous 5 years.
    (2) Implementation of prescribed fire for the purposes of grassland 
management.
    This 4(d) rule provides that take of the Northern DPS of the lesser 
prairie-chicken will not be prohibited provided the take is incidental 
to activities that are conducted during the implementation of 
prescribed fire, as specified below, for the purpose of grassland and 
shrubland management.
    As discussed above, fire plays an essential role in maintaining 
healthy grasslands and shrublands, preventing woody vegetation 
encroachment, and encouraging the structural and species diversity of 
the plant community required by the lesser prairie-chicken. The 
intensity, scale, and frequency of fire regimes in the southern Great 
Plains has been drastically altered due to human suppression of 
wildfire resulting in widespread degradation and loss of grasslands. 
While fire plays an important role, potential exists for some short-
term negative impacts to the lesser prairie-chicken while implementing 
prescribed fire. The potential impacts depend upon what time of the 
year the fire occurs, extent of habitat burned, and burn severity and 
include, but are not limited to, disturbance of individuals, 
destruction of nests, and impacts to available cover for nesting and 
concealment from predators.
    Prescribed fire activities covered by this provision include:
    (a) Construction and maintenance of fuel breaks.
    (b) Planning needed for application of prescribed fire.
    (c) Implementation of the fire and all associated actions.
    (d) Any necessary monitoring and followup actions.
    Implementation of prescribed fire is essential to managing for 
healthy grasslands and shrublands, but currently use of prescribed fire 
is minimal or restricted to frequent use in small local areas within 
the range of the lesser prairie-chicken. While prescribed fire has the 
potential for some limited negative short-term effects on the lesser 
prairie-chicken, we have concluded that the long-term benefits of 
implementing prescribed fire drastically outweigh the short-term 
negative effects. None of the provisions in 50 CFR 17.21 apply to the 
implementation of prescribed fire as discussed above.
    (3) Implementation of prescribed grazing following a site-specific 
grazing management plan developed by a Service-approved party.
    This 4(d) rule provides that take of the Northern DPS of the lesser 
prairie-chicken will not be prohibited provided the take is incidental 
to grazing management that is conducted by a land manager who is 
implementing a grazing management plan developed by a qualified party 
that has been approved by the Service for the specific purposes of this 
4(d) rule. These grazing management plans must be reviewed and adjusted 
to account for the current ecological conditions by the author at a 
minimum every 5 years, must prescribe actions based upon site-specific 
conditions including but not limited to soils, precipitation, and past 
management, and must contain drought management measures. This 
provision applies only to site-specific grazing management plans 
developed by a qualified party that has been approved by the Service 
for the specific purposes of this 4(d) rule.
    This provision applies to potential impacts resulting from the 
following:
    (a) Physical impact of cattle to vegetative composition and 
structure;
    (b) Trampling of lesser prairie-chicken nests;
    (c) Construction and maintenance of required infrastructure for 
grazing management, including but not limited to fences and water 
sources; and
    (d) Other routine activities required to implement managed grazing, 
including but not limited to feeding, monitoring, and moving of 
livestock.
    We find this exception is necessary and advisable for the 
conservation of the species because compatible grazing is essential to 
managing for healthy grasslands and shrublands, which provide habitat 
for the lesser prairie-chicken. While compatible grazing management has 
the potential for some limited negative short-term effects on the 
lesser prairie-chicken, we have concluded that the long-term benefits 
of implementing compatible grazing management that follows a site-
specific prescribed grazing plan developed by a qualified party that 
has been approved by the Service for the specific purposes of this 4(d) 
rule drastically outweigh the short-term negative effects. Furthermore, 
as discussed in the background section of this 4(d) rule, compatibly 
managed grazing is a necessary component for the management and 
maintenance of healthy grassland for the lesser prairie-chicken. None 
of the provisions in 50 CFR 17.21 apply to grazing management that is 
conducted by a land manager who is implementing a site-specific grazing 
management plan developed by a qualified party who has been approved by 
the U.S. Fish and Wildlife Service for the specific purposes of this 
4(d) rule as discussed above.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a

[[Page 72752]]

permit authorizing any activity otherwise prohibited with regard to 
threatened species. These include permits issued for the following 
purposes: for scientific purposes, to enhance propagation or survival, 
for economic hardship, for zoological exhibition, for educational 
purposes, for incidental taking, or for special purposes consistent 
with the purposes of the Act (50 CFR 17.32). The statute also contains 
certain exemptions from the prohibitions, which are found in sections 9 
and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, would be able to conduct 
activities designed to conserve the Northern DPS of the lesser prairie-
chicken that may result in otherwise prohibited take without additional 
authorization.
    Nothing in this 4(d) rule changes in any way the recovery planning 
provisions of section 4(f) of the Act, the consultation requirements 
under section 7 of the Act, or our ability to enter into partnerships 
for the management and protection of the Northern DPS of the lesser 
prairie-chicken. However, interagency cooperation may be further 
streamlined through planned programmatic consultations between us and 
other Federal agencies, where appropriate.

Required Determinations

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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. We also provided these Tribes the 
opportunity to review a draft of the SSA report, to provide input prior 
to making our proposed determination on the status of the lesser 
prairie-chicken, and during the open comment period, but did not 
receive any responses.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Southwest Regional Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
U.S. Fish and Wildlife Service's Species Assessment Team and the 
Southwest Regional Office.

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:

[[Page 72753]]

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. In Sec.  17.11 amend the table in paragraph (h) by adding an entry 
for ``Prairie-chicken, lesser [Northern DPS]'' and an entry for 
``Prairie-chicken, lesser [Southern DPS]'' to the List of Endangered 
and Threatened Wildlife in alphabetical order under Birds to read as 
set forth below:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
          Common name             Scientific name        Where listed          Status        applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                      Birds
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Prairie-chicken, lesser          Tympanuchus        U.S.A. (All lesser      T             87 FR [Insert Federal
 [Northern DPS].                  pallidicinctus.    prairie-chickens                      Register page where
                                                     north of a line                       the document begins],
                                                     starting at 37.9868                   11/25/2022;
                                                     N, 105.0133 W, and                   50 CFR 17.41(k).\4d\
                                                     ending at 31.7351 N,
                                                     98.3773 W, NAD83; see
                                                     map at Sec.
                                                     17.41(k)).
Prairie-chicken, lesser          Tympanuchus        U.S.A. (All lesser      E             87 FR [Insert Federal
 [Southern DPS].                  pallidicinctus.    prairie-chickens                      Register page where
                                                     south of a line                       the document begins],
                                                     starting at 37.9868                   11/25/2022.
                                                     N, 105.0133 W, and
                                                     ending at 31.7351 N,
                                                     98.3773 W, NAD83; see
                                                     map at Sec.
                                                     17.41(k)).
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.41 by adding paragraphs (g) through (k) to read as 
follows:


Sec.  17.41   Special rules--birds.

* * * * *
    (g) through (j) [Reserved]
    (k) Lesser prairie-chicken (Tympanuchus pallidicinctus), Northern 
Distinct Population Segment (DPS). The Northern DPS of the lesser 
prairie-chicken pertains to lesser prairie-chickens found northeast of 
a line starting in Colorado at 37.9868 N, 105.0133 W, going through 
northeastern New Mexico, and ending in Texas at 31.7351 N, 98.3773 W, 
NAD83, as shown in the map:
Figure 1 to paragraph (k)

[[Page 72754]]

[GRAPHIC] [TIFF OMITTED] TR25NO22.032

    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of a commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Take as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Continuation of routine agricultural practices on existing 
cultivated lands, including:
    (1) Plowing, drilling, disking, mowing, or other mechanical 
manipulation and management of lands;
    (2) Routine activities in direct support of cultivated agriculture, 
including replacement, upgrades, maintenance, and operation of existing 
infrastructure such as buildings, irrigation conveyance structures, 
fences, and roads; and
    (3) Use of chemicals in direct support of cultivated agriculture 
when done in accordance with label recommendations.
    (B) Implementation of prescribed fire for the purposes of grassland 
management, including:
    (1) Construction and maintenance of fuel breaks;
    (2) Planning needed for application of prescribed fire;
    (3) Implementation of the fire and all associated actions; and

[[Page 72755]]

    (4) Any necessary monitoring and followup actions.
    (C) Implementation of prescribed grazing following a site-specific 
grazing management plan developed by a Service-approved party, 
including:
    (1) Physical impact of cattle to vegetative composition and 
structure;
    (2) Trampling of lesser prairie-chicken nests;
    (3) Construction and maintenance of required infrastructure for 
grazing management, including but not limited to fences and water 
sources; and
    (4) Other routine activities required to implement managed grazing, 
including but not limited to feeding, monitoring, and moving of 
livestock.

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-25214 Filed 11-18-22; 8:45 am]
BILLING CODE 4333-15-P