[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Proposed Rules]
[Pages 73827-73888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29331]

[[Page 73827]]

Vol. 77


No. 238

December 11, 2012

Part IV

Department of the Interior


Fish and Wildlife Service


50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Listing the Lesser 
Prairie-Chicken as a Threatened Species; Proposed Rule

Federal Register / Vol. 77 , No. 238 / Tuesday, December 11, 2012 / 
Proposed Rules

[[Page 73828]]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0071: 4500030113]
RIN 1018-AV21

Endangered and Threatened Wildlife and Plants; Listing the Lesser 
Prairie-Chicken as a Threatened Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the 
lesser prairie-chicken (Tympanuchus pallidicinctus), a grassland bird 
known from southeastern Colorado, western Kansas, eastern New Mexico, 
western Oklahoma, and the Texas Panhandle, as a threatened species 
under the Endangered Species Act of 1973, as amended (Act). If we 
finalize the rule as proposed, it would extend the Act's protection to 
this species. We have determined that designation of critical habitat 
for the lesser prairie-chicken under the Act is prudent but not 
determinable at this time. We are seeking information and comments from 
the public regarding the lesser prairie-chicken and this proposed rule.

DATES: We will accept comments received or postmarked on or before 
March 11, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date.
    Public Hearings: We will hold four public hearings on this proposed 
rule. The public hearings will be held in Woodward, Oklahoma, on 
Tuesday, February 5; Garden City, Kansas, on Thursday, February 7; 
Lubbock, Texas, on Monday, February 11; and Roswell, New Mexico, on 
Tuesday, February 12. The public hearings will be held from 6:30 p.m. 
to 8:30 p.m.

ADDRESSES: Document availability: You may obtain copies of the proposed 
rule on the Internet at http://www.regulations.gov at Docket No. FWS-
R2-ES-2012-0071 or by mail from the Oklahoma Ecological Services Field 
    Written Comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R2-ES-2012-0071. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2012-0071; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    Public hearings: The public hearings will be held at the following 
    (1) Woodward, Oklahoma: High Plains Technology Center Seminar 
Center, 3921 34th Street, Woodward, OK 73801.
    (2) Garden City, Kansas: Garden City Community College, 801 N. 
Campus Drive, Garden City, KS 67846.
    (3) Lubbock, Texas: Lubbock Civic Center, 1501 Mac Davis Lane, 
Lubbock, TX 79401.
    (4) Roswell, New Mexico: Eastern New Mexico University Fine Arts 
Auditorium, 64 University Boulevard, Roswell, NM 88203.
    People needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Dixie Porter, Field 
Supervisor, Oklahoma Ecological Services Field Office, as soon as 

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


Executive Summary

    This document consists of: (1) A proposed rule to list the lesser 
prairie-chicken as a threatened species; and (2) a finding that 
critical habitat is prudent but not determinable at this time.
    Why we need to publish a rule. Under the Endangered Species Act, a 
species may warrant protection through listing if it is an endangered 
or threatened species throughout all or a significant portion of its 
range. In this proposal, we are explaining why the lesser prairie-
chicken warrants protection under the Endangered Species Act. This rule 
proposes to list the lesser prairie-chicken as a threatened species 
throughout its range.
    The Endangered Species Act provides the basis for our action. Under 
the Endangered Species Act, we can determine that a species is an 
endangered or threatened species based on any of five factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. The primary factors 
supporting the proposed threatened status for lesser prairie-chicken 
are the historical, ongoing, and probable future impacts of cumulative 
habitat loss and fragmentation. These impacts are the result of: 
conversion of grasslands to agricultural uses; encroachment by invasive 
woody plants; wind energy development; petroleum production; and 
presence of roads and manmade vertical structures including towers, 
utility lines, fences, turbines, wells, and buildings.
    We will request peer review of the methods used in our proposal. We 
will specifically request that several knowledgeable individuals with 
scientific expertise in this species or related fields review the 
scientific information and methods that we used in developing this 
    We are seeking public comment on this proposed rule. Anyone is 
welcome to comment on our proposal or provide additional information on 
the proposal that we can use in making a final determination on the 
status of this species. Please submit your comments and materials 
concerning this proposed rule by one of the methods listed in the 
ADDRESSES section. Within 1 year following the publication of this 
proposal, we will publish in the Federal Register a final determination 
concerning the listing of the species or withdraw the proposal if new 
information is provided that supports that decision.

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, general 
public, or any other interested parties concerning

[[Page 73829]]

this proposed rule. We particularly seek comments regarding:
    (1) The historical and current status and distribution of the 
lesser prairie-chicken, its biology and ecology, specific threats (or 
lack thereof) and regulations that may be addressing those threats and 
ongoing conservation measures for the species and its habitat.
    (2) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' 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 and threats to the species or its habitat.
    (3) Which areas would be appropriate as critical habitat for the 
species and why areas should or should not be proposed for designation 
as critical habitat, including whether there are threats to the species 
from human activity that would be expected to increase due to the 
designation and whether that increase in threat would outweigh the 
benefit of designation such that the designation of critical habitat 
may not be prudent.
    (4) Specific information on:
     The amount and distribution of habitat for the lesser 
     What may constitute ``physical or biological features 
essential to the conservation of the species,'' within the geographical 
range currently occupied by the species,
     Where these features are currently found,
     Whether any of these features may require special 
management considerations or protection,
     What areas, that were occupied at the time of listing (or 
are currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
     What areas not occupied at the time of listing are 
essential for the conservation of the species and why.
    (5) Information on the projected and reasonably likely impacts of 
climate change on the lesser prairie-chicken and its habitat.
    (6) Information as to which prohibitions, and exceptions to those 
prohibitions, are necessary and advisable to provide for the 
conservation of the lesser prairie-chicken pursuant to section 4(d) of 
the Act.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
submission--including any personal identifying information--will be 
posted on the Web site. If your submission is made via a hardcopy that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy comments on http://www.regulations.gov. Please 
include sufficient information with your comments to allow us to verify 
any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R2-ES-2012-0071, or by appointment during normal business hours 
at the Oklahoma Ecological Services Field Office (see FOR FURTHER 

Previous Federal Actions

    On October 6, 1995, we received a petition, dated October 5, 1995, 
from the Biodiversity Legal Foundation, Boulder, Colorado, and Marie E. 
Morrissey (petitioners). The petitioners requested that we list the 
lesser prairie-chicken as threatened throughout its known historical 
range in the United States. The petitioners defined the historical 
range to encompass west-central Texas north through eastern New Mexico 
and western Oklahoma to southeastern Colorado and western Kansas and 
stated that there may have been small populations in northeastern 
Colorado and northwestern Nebraska. The petitioners also requested that 
critical habitat be designated as soon as the needs of the species are 
sufficiently well known. However, from October 1995 through April 1996, 
we were under a moratorium on listing actions as a result of Public Law 
104-6, which, along with a series of continuing budget resolutions, 
eliminated or severely reduced our listing budget through April 1996. 
We were unable to act on the petition during that period. On July 8, 
1997 (62 FR 36482), we announced our 90-day finding that the petition 
presented substantial information indicating that the petitioned action 
may be warranted. In that notice, we requested additional information 
on the status, trend, distribution, and habitat requirements of the 
species for use in conducting a status review. We requested that 
information be submitted to us by September 8, 1997. In response to a 
September 3, 1997, request by the Lesser Prairie-Chicken Interstate 
Working Group, we reopened the comment period for an additional 30 days 
beginning on November 3, 1997 (62 FR 59334). We subsequently published 
our 12-month finding for the lesser prairie-chicken on June 9, 1998 (63 
FR 31400), concluding that the petitioned action was warranted but 
precluded by other higher priority listing actions.
    On October 25, 1999, we published our combined plant and animal 
candidate notice of review, which initially identified the lesser 
prairie-chicken as a candidate for listing with a listing priority 
number (LPN) of 8 (64 FR 57534). Our policy (48 FR 43098; September 21, 
1983) requires the assignment of an LPN to all candidate species. This 
listing priority system was developed to ensure that we have a rational 
system for allocating limited resources in a way that ensures those 
species in greatest need of protection are the first to receive such 
protection. The listing priority system considers magnitude of threat, 
immediacy of threat, and taxonomic distinctiveness in assigning species 
numerical listing priorities on a scale from 1 to 12. In general, a 
smaller LPN reflects a greater need for protection than a larger LPN. 
The lesser prairie-chicken was assigned an LPN of 8 indicating that the 
magnitude of threats was moderate and the immediacy of the threats to 
the species was high.
    On January 8, 2001 (66 FR 1295), we published our resubmitted 
petition findings for 25 animal species, including the lesser prairie-
chicken, having outstanding ``warranted-but-precluded'' petition 
findings as well as notice of one candidate removal. The lesser 
prairie-chicken remained a candidate with an LPN of 8 in our October 
30, 2001 (66 FR 54808); June 13, 2002 (67 FR 40657); May 4, 2004 (69

[[Page 73830]]

FR 24876); May 11, 2005 (70 FR 24870); September 12, 2006 (71 FR 
53755); and December 6, 2007 (72 FR 69033) Candidate Notices of Review. 
In our December 10, 2008 (73 FR 75176), candidate notice of review, we 
changed the LPN for the lesser prairie-chicken from an 8 to a 2. This 
change in LPN reflected a change in the magnitude of the threats from 
moderate to high primarily due to an anticipated increase in the 
development of wind energy and associated placement of transmission 
lines throughout the estimated occupied range of the lesser prairie-
chicken. Our June 9, 1998, 12-month finding (63 FR 31400) did not 
recognize wind energy and transmission line development as a threat 
because such development within the known range was almost nonexistent 
at that time. Changes in the magnitude of other threats, such as 
conversion of certain Conservation Reserve Program (CRP) lands from 
native grass cover to cropland or other less ecologically valuable 
habitat and observed increases in oil and gas development, also were 
important considerations in our decision to change the LPN. The 
immediacy of the threats to the species did not change and continued to 
be high. Our November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 
69222), and October 26, 2011 (76 FR 66370) Candidate Notices of Review 
retained an LPN of 2 for the lesser prairie-chicken.
    Since making our 12-month finding, we have received several 60-day 
notices of intent to sue from WildEarth Guardians (then Forest 
Guardians) and several other parties for failure to make expeditious 
progress toward listing of the lesser prairie-chicken. These notices 
were dated August 13, 2001; July 23, 2003; November 23, 2004; and May 
11, 2010. WildEarth Guardians subsequently filed suit on September 1, 
2010, in the U.S. District Court for the District of Colorado. A 
revised notice of intent to sue dated January 24, 2011, in response to 
motions from New Mexico Oil and Gas Association, New Mexico Cattle 
Growers Association, and Independent Petroleum Association of New 
Mexico to intervene on behalf of the Secretary of Interior, also was 
received from WildEarth Guardians.
    This complaint was subsequently consolidated in the U.S. District 
Court for the District of Columbia along with several other cases filed 
by the Center for Biological Diversity or WildEarth Guardians relating 
to petition finding deadlines and expeditious progress toward listing. 
A settlement agreement in In re Endangered Species Act Section 4 
Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 
10, 2011) was reached with WildEarth Guardians in which we agreed to 
submit a proposed listing rule for the lesser prairie-chicken to the 
Federal Register for publication by September 30, 2012.

Summary of Recent and Ongoing Conservation Actions

    Numerous conservation actions have been implemented within the 
historical range of the lesser prairie-chicken, many focused primarily 
on the currently occupied portion of the range, during the last 10 to 
15 years. The State conservation agencies have taken a lead role in 
implementation of these actions, but several Federal agencies and 
private conservation organizations have played an important supporting 
role in many of these efforts. Recently, several multi-State efforts 
have been initiated, and the following section briefly discusses many 
of the known conservation efforts for the lesser prairie-chicken.

Multi-State Conservation Efforts

    The CRP administered by the U.S. Department of Agriculture's (USDA) 
Farm Services Agency and targeted at agricultural landowners has 
provided short-term protection and enhancement of millions of acres 
within the range of the lesser prairie-chicken. The CRP is a voluntary 
program that allows eligible landowners to receive annual rental 
payments and cost-share assistance to remove land from agricultural 
production and establish vegetative cover for the term of the contract. 
Contract terms are for 10 to 15 years, and the amount and dispersion of 
land enrolled in CRP fluctuates as contracts expire and new lands are 
enrolled. All five States within the range of the lesser prairie-
chicken have lands enrolled in CRP. Many of the States, with the 
exception of Kansas, initially used nonnative grasses as the 
predominant cover type established on enrolled lands. Kansas chose to 
use native species of grasses as the cover type for many of their 
enrolled lands, resulting in a considerable benefit to lesser prairie-
chicken conservation. As the program has evolved since its inception in 
1985, use of native grasses as the predominant cover type has been 
encouraged, resulting in even greater benefit for lesser prairie-
chickens. Use of native grasses in the CRP helps create suitable 
nesting and brood rearing habitat for the lesser prairie-chicken.
    The State Acres For Wildlife Enhancement program (SAFE) is a 
conservation practice utilized under CRP to benefit high-priority 
species including the lesser prairie-chicken. Beginning in 2008, the 
SAFE program was implemented in Colorado, Kansas, New Mexico, Oklahoma, 
and Texas to target grassland habitat improvement measures within the 
range of the lesser prairie-chicken. These measures help improve 
suitability of existing grasslands for nesting and brood rearing by 
lesser prairie-chickens. In accordance with CRP guidelines, crop 
producers can voluntarily enroll eligible lands in 10- to 15-year 
contracts in exchange for payments, incentives, and cost-share 
assistance to establish natural vegetation on enrolled lands. Areas 
allocated for the SAFE program vary by State and are as follows: 
Colorado 8,700 hectares (ha) (21,500 acres (ac)); Kansas 12,141 (30,000 
ac); New Mexico 1,052 ha (2,600 ac); Oklahoma 6,111 ha (15,100 ac); and 
Texas 31,727 (78,400 ac). Total potential enrollment in SAFE program is 
59,731 ha (147,600 ac) or about 1 percent of the current estimated 
occupied range. The current status of the SAFE program, organized by 
State, is provided in the sections that follow.
    In 2011, the USDA Natural Resources Conservation Service (NRCS) 
began implementation of the Lesser Prairie Chicken Initiative. The 
Lesser Prairie Chicken Initiative provides conservation assistance, 
both technical and financial, to landowners throughout the Lesser 
Prairie Chicken Initiative's administrative boundary. The NRCS has 
partnered with other stakeholders to fund, through the Strategic 
Watershed Action Teams program, additional staff positions dedicated to 
providing accelerated and targeted technical assistance to landowners 
within the current range of the lesser prairie-chicken. Technical 
assistance is voluntary help provided by NRCS that is intended to 
assist non-federal land users in addressing opportunities, concerns, 
and problems related to the use of natural resources and to help land 
users make sound natural resource management decisions on private, 
tribal, and other non-federal land. This assistance may be in the form 
of resource assessment, practice design, resource monitoring, or 
follow-up of installed practices. The Lesser Prairie Chicken Initiative 
focuses on maintenance and enhancement of suitable habitat while 
benefiting agricultural producers by maintaining the farming and 
ranching operations throughout the region. Numerous partners are 
involved in this multi-state initiative including the State 
conservation agencies, the Playa Lakes Joint Venture, and the Wood 
Foundation. The Environmental Quality Incentives Program (EQIP) and the 
Wildlife Habitat Incentives Program (WHIP) are the primary programs 

[[Page 73831]]

to provide for conservation through the Lesser Prairie Chicken 
Initiative. The EQIP is a voluntary program that provides financial and 
technical assistance to agricultural producers through contracts up to 
a maximum term of 10 years in length. These contracts provide financial 
assistance to help plan and implement conservation practices that 
address natural resource concerns and opportunities to improve soil, 
water, plant, animal, air, and related resources on agricultural land. 
Similarly, the WHIP is a voluntary program designed for conservation-
minded landowners who want to develop and improve wildlife habitat on 
agricultural land, including tribal lands. Through WHIP, NRCS may 
provide both technical assistance and up to 75 percent cost-share 
assistance to establish and improve fish and wildlife habitat. Cost-
share agreements between NRCS and the landowner may extend up to 10 
years from the date the agreement is signed. Through these two 
programs, NRCS has committed some $17.5 million to the Lesser Prairie 
Chicken Initiative in Texas alone. In 2010, the identified funds were 
allocated throughout the historical range, with some 33,956 ha (83,907 
ac) placed under contract within those counties that intersected the 
estimated occupied range. By entering into a contract with NRCS, the 
landowner agrees to implement specified conservation actions through 
provisions of the applicable Farm Bill conservation program, such as 
WHIP or EQIP. Another 32,139 ha (79,417 ac) were allocated to contracts 
on lands outside of the estimated occupied range but within unoccupied 
portions of the historical range. In 2011, efforts were undertaken to 
more precisely apply the funds to areas within the estimated occupied 
    The North American Grouse Partnership, in cooperation with the 
National Fish and Wildlife Foundation and multiple State conservation 
agencies and private foundations, have embarked on the preparation of 
the prairie grouse portions of an overarching North American Grouse 
Management Strategy. The Prairie Grouse Conservation Plan, which was 
completed in 2008 (Vodehnal and Haufler 2008, entire), provides 
recovery actions and defines the levels of funding necessary to achieve 
management goals for all species of prairie grouse in North America. 
The prairie grouse portions of this strategy encompass some 26 million 
ha (65 million ac) of grassland habitat in the United States and 
    The Lesser Prairie-Chicken Interstate Working Group was formed in 
1996. This group, composed largely of State agency biologists under the 
oversight of the Western Association of Fish and Wildlife Agencies' 
Grassland Coordinator, meets annually to share information on the 
status of the lesser prairie-chicken, results of new research, and 
ongoing threats to the species. The Working Group has played an 
important role in defining and implementing conservation efforts for 
the lesser prairie-chicken. In 1999, they published a conservation 
strategy for the lesser prairie-chicken (Mote et al. 1999, entire). 
Then, in 2008, the Working Group published a lesser prairie-chicken 
conservation initiative (Davis et al. 2008, entire).
    Since 2004, the Sutton Center has been working to reduce or 
eliminate the mortality of lesser prairie-chickens due to fence 
collisions on their study areas in Oklahoma and Texas. Forceful 
collisions with fences during flight can cause direct mortality of 
lesser prairie-chickens (Wolfe et al. 2007, pp. 96-97, 101). However, 
mortality risk appears to be dependent on factors such as fencing 
design (height, type, number of strands), length, and density, as well 
as landscape topography and proximity of fences to habitats used by 
lesser prairie-chickens. The Sutton Center has used competitive grants 
and other funding sources to either physically remove unnecessary 
fencing or to apply markers of their own design (Wolfe et al. 2009, 
entire) to the top two strands to increase visibility of existing 
fences. To date, approximately 335 kilometers (km) (208 miles (mi)) of 
barbed-wire fence in Oklahoma and Texas have been treated. Treatments 
are typically concentrated within 1.6 km (1 mi) of active lesser 
prairie-chicken leks. Approximately 208 km (129 mi) of unneeded fences 
have been removed. Collectively, these conservation activities have the 
potential to significantly reduce the threat of collision mortality on 
44,110 ha (109,000 ac) of occupied habitat. Our Partners for Fish and 
Wildlife Program (PFW) initiated a similar fence marking effort in New 
Mexico during 2008. Although the amount of marked fences has not been 
quantified, the effort is an important contribution to ongoing 
conservation efforts. However, continued fence construction throughout 
the range of the lesser prairie-chicken and the localized influence of 
these conservation efforts likely limits the effectiveness of such 
measures at the population level.
    The Service and the five State conservation agencies are currently 
working with 19 wind energy development companies to develop a 
programmatic Habitat Conservation Plan (HCP) for several species, 
including the lesser prairie-chicken. An HCP is a planning document 
required as part of an application for a permit for incidental take of 
a Federally listed species. The HCP describes the anticipated effects 
of the proposed taking; how those impacts will be minimized or 
mitigated; and how the HCP is to be funded. The Oklahoma Department of 
Wildlife Conservation (ODWC) received a nontraditional section 6 HCP 
planning grant that is supporting this effort. The HCP is scheduled to 
be finalized in the spring of 2014. We anticipate the conservation 
program of the HCP could involve acquisition and setting aside of 
conservation or mitigation lands.
    Recently the five State conservation agencies developed an 
Internet-based mapping tool as a pilot project under the Western 
Governors' Association Wildlife Council. This tool, known as the 
Southern Great Plains Crucial Habitat Assessment Tool (CHAT), was made 
accessible to the public in September 2011. The CHAT is available for 
use by conservation managers, industry, and the public to aid in 
conservation planning for the lesser prairie-chicken. The tool 
identifies priority habitat for the lesser prairie-chicken including 
possible habitat corridors linking important conservation areas. The 
CHAT classifies areas on a scale of 1 to 5 by their relative value as 
lesser prairie-chicken habitat. The most important category is 
identified as ``irreplaceable'' and is indicative of areas that are 
rare or fragile and considered essential to achieving and maintaining 
population viability. The lowest category is considered ``common'' and 
represents areas that are relatively common and generally less limiting 
to lesser prairie-chicken populations or metapopulations. These areas 
are generally better suited for development uses. The CHAT includes 
other data layers that may facilitate conservation planning, including 
current and historical lesser prairie-chicken range, land cover types, 
oil and gas well density, presence of vertical structures, and 
hexagonal summary polygon to provide users contextual information about 
the surrounding landscape. A revision of the CHAT is planned in the 
coming months, and the tool will be updated annually. Use of the tool 
is currently voluntary but ultimately may play an important role in 
guiding future development and conserving important habitats.
    Candidate Conservation Agreements (CCAs) and Candidate Conservation 
Agreements with Assurances (CCAAs) are formal, voluntary agreements

[[Page 73832]]

between the Service and one or more parties to address the conservation 
needs of one more candidate species or species likely to become 
candidates in the near future. These agreements are intended to reduce 
or remove identified threats to a species. Implementing conservation 
efforts before species are listed increases the likelihood that 
simpler, more cost-effective conservation options are available and 
that conservation efforts will succeed. Development of CCAs and CCAAs 
is guided by regulations at 50 CFR 17.22(d) and 50 CFR 17.32(d).
    Under a CCA, Federal managers and other cooperators (non-
governmental organizations and lease holders) implement conservation 
measures that reduce threats on Federal lands and leases. Under a CCAA, 
non-Federal landowners and lease holders voluntarily provide habitat 
protection or enhancement measures on their lands, thereby reducing 
threats to the species. A section 10(a)(1)(A) Enhancement of Survival 
Permit is issued in association with a CCAA. If the species is later 
listed under the Act, the permit authorizes take that is incidental to 
otherwise lawful activities specified in the agreement, when performed 
in accordance with the terms of the agreement. Further, the CCAA 
provides assurances that if the subject species is later listed under 
the Act, participants who are appropriately implementing certain 
conservation actions under the CCAA will not be required to implement 
additional conservation measures.
    The lesser prairie-chicken is covered by a CCA with the Bureau of 
Land Management (BLM) and two ``umbrella'' CCAAs, one each in Texas and 
New Mexico. A draft umbrella CCAA for Oklahoma was made available for 
public review and comment on June 25, 2012 (77 FR 37917). An additional 
CCAA has been established with a single landowner in southwestern 
Kansas; however, this CCAA has since expired. Under these agreements, 
the participants agree to implement certain conservation measures that 
are anticipated to reduce threats to lesser prairie-chicken and improve 
their population stability, through increases in adult and juvenile 
survivorship, nest success, and recruitment rates and reduced 
mortality. Dependent upon the level of participation, expansion of the 
occupied range may occur. Conservation measures typically focus on 
maintenance, enhancement, or restoration of nesting and brood rearing 
habitat. Some possible conservation measures include removal of 
invasive woody plants such as mesquite and eastern red cedar, 
implementation of prescribed fire, marking of fences, removal of 
unneeded fences, improved grazing management, and similar measures that 
help reduce the impact of the existing threats.
    All of the State conservation agencies and many Federal agencies 
within the range of the lesser prairie-chicken conduct outreach efforts 
intended to inform and educate the public about the conservation status 
of the species. Many of these efforts specifically target landowners 
and other interested stakeholders involved in lesser prairie-chicken 
conservation. Annual festivals focused on the lesser prairie-chicken 
are held in several States (Milnesand, New Mexico; Woodward, Oklahoma; 
and Canadian, Texas) that help inform and raise awareness for the 
public. Often festival participants are able to visit an active lesser 
prairie-chicken breeding area to observe courtship displays.


    The Colorado Parks and Wildlife (CPW) hosted a workshop on the 
conservation of the lesser prairie-chicken in late 2009. This workshop 
provided information to local landowners and other interested parties 
on conservation of the lesser prairie-chicken. Specific management 
actions, such as grassland restoration and enhancement, intended to 
benefit conservation of the lesser prairie-chicken were highlighted.
    The NRCS is using EQIP and WHIP to implement habitat improvement 
projects for the lesser prairie-chicken in Colorado. Colorado also has 
implemented a Habitat Improvement Program (HIP) for the lesser prairie-
chicken that provides cost-sharing to private landowners, subject to 
prior consultation and approval from a CPW biologist, for enrolling 
fields or conducting habitat enhancements beneficial to the species. 
Approximately 2,250 ha (5,560 ac) have been enrolled in this program 
(Verquer and Smith 2011, p. 7). Additionally, Colorado has a Wildlife 
Habitat Protection Program designed to facilitate acquisition of 
conservation easements and purchase of lands for the lesser prairie-
chicken. The lesser prairie-chicken is one of five priorities for 2012, 
and up to $14 million is available in the program.
    Currently about 4,433 ha (10,954 ac) have been enrolled under the 
lesser prairie-chicken CRP SAFE continuous sign-up in Colorado. These 
enrolled areas are typically recently expired CRP lands and contain 
older grass stands in less than optimal habitat condition. In late 
winter 2010 or early spring 2011, one-third of these enrolled lands 
received a forb and legume inter-seeding consisting of dryland alfalfa 
and other species to improve habitat quality. This effort is 
anticipated to result in the establishment of alfalfa and additional 
forbs, resulting in improved nesting and brood-rearing habitat. Some 
4,249 ha (10,500 ac) of the initial 8,701 ha (21,500 ac) allocated for 
SAFE remain to be enrolled. High interest by landowners indicates that 
these additional acres will be enrolled in the near future (Verquer and 
Smith 2011, p. 7).
    Our Partners for Fish and Wildlife Program (PFW) program has 
contributed financial and technical assistance for restoration and 
enhancement activities benefitting the lesser prairie-chicken in 
Colorado. The PFW program has executed 14 private lands agreements 
facilitating habitat restoration and enhancement for the lesser 
prairie-chicken on about 9,307 ha (23,000 ac) of private lands in 
southeastern Colorado.
    A cooperative project between the CPW and the U.S. Forest Service 
(USFS) has established several temporary grazing exclosures adjacent to 
active leks on the Comanche National Grassland in an attempt to improve 
nesting habitat. The efficacy of these treatments is unknown, and 
further monitoring is planned to determine the outcome of these efforts 
(Verquer and Smith 2011, p. 7).
    In addition, more than 4,450 ha (11,000 ac) have been protected by 
perpetual conservation easements held by CPW, The Nature Conservancy, 
and the Greenlands Reserve Land Trust.


    The Kansas Department of Wildlife, Parks, and Tourism (KDWPT) has 
targeted lesser prairie-chicken habitat improvements through various 
means including the Landowner Incentive Program, voluntary mitigation 
projects for energy development, and a state-level WHIP. The Landowner 
Incentive Program improved some 9,118 ha (22,531 ac) for lesser 
prairie-chickens during the period from 2007 to 2011. Since 2008, the 
KDWPT has provided $64,836 in landowner cost-share through the WHIP for 
practices benefitting the lesser prairie-chicken on about 2,364 ha 
(5,844 ac). Currently more than 11,662 ha (28,819 ac) of the original 
allocation have been enrolled under the lesser prairie-chicken CRP SAFE 
continuous signup in Kansas. Primary practices include tree removal, 
prescribed fire, grazing management (including perimeter fencing), and 
native grass establishment that will improve lesser prairie-chicken 
nesting and brood rearing habitat.

[[Page 73833]]

    Funds available through the state wildlife grants program also have 
been used to benefit the lesser prairie-chicken in Kansas. The KDWPT 
was awarded a 5-year state wildlife grant in 2009 focusing on lesser 
prairie-chicken habitat improvements. During the first funding cycle, a 
total of $181,127.34 was allocated to six projects encompassing some 
1,484 ha (3,667 ac). During two subsequent application periods, nine 
more projects were funded at a cost of $180,584, targeting some 1,319 
ha (3,260 ac).
    Like several of the other States within the range of the lesser 
prairie-chicken, the KDWPT partnered with Pheasants Forever and NRCS to 
fund three employee positions that will provide technical assistance to 
private landowners participating in conservation programs with an 
emphasis on practices favorable to the lesser prairie-chicken. These 
employees will primarily assist in the implementation and delivery of 
the NRCS's Lesser Prairie Chicken Initiative in Kansas.
    Additionally, KDWPT has a walk-in hunting program that was 
initiated in 1995 in an effort to enhance the hunting tradition in 
Kansas. The program provides hunters access to private property and has 
become one of the most successful access programs in the country. By 
2004, more than 404,000 ha (1 million ac) have been enrolled in the 
program. Landowners receive a small payment in exchange for allowing 
public hunting access to enrolled lands. Payments vary by the amount of 
acres enrolled and length of contract period. Conservation officers 
monitor the areas, and violators are ticketed or arrested for offenses 
such as vandalism, littering, or failing to comply with hunting or 
fishing regulations.
    The Service's PFW program has contributed financial and technical 
assistance for restoration and enhancement activities that benefit the 
lesser prairie-chicken in Kansas. Primary activities include control of 
invasive woody plant species like eastern red cedar and enhanced use of 
prescribed fire to improve habitat conditions in native grasslands. The 
PFW program has executed 54 private lands agreements on about 51,246 ha 
(126,878 ac) of private lands benefitting conservation of the lesser 
prairie-chicken in Kansas. An approved CCAA was developed on 1,133 ha 
(2,800 ac) in south-central Kansas; however, this CCAA has since 

New Mexico

    In January 2003, a working group composed of local, state, and 
Federal officials, along with private and commercial stakeholders, was 
formed to address conservation and management activities for the lesser 
prairie-chicken and dunes sagebrush lizard (Sceloporus arenicolus) in 
New Mexico. This working group, formally named the New Mexico Lesser 
Prairie-Chicken/Sand Dune Lizard Working Group, published the 
Collaborative Conservation Strategies for the Lesser Prairie-Chicken 
and Sand Dune Lizard in New Mexico (Strategy) in August 2005. This 
Strategy provided guidance in the development of BLM's Special Status 
Species Resource Management Plan Amendment (RMPA), approved in April 
2008, which also addressed the concerns and future management of lesser 
prairie-chicken and dunes sagebrush lizard habitats on BLM lands, and 
established the Lesser Prairie-Chicken Habitat Preservation Area of 
Critical Environmental Concern. Both the Strategy and the RMPA 
prescribe active cooperation among all stakeholders to reduce or 
eliminate threats to these species in New Mexico. As an outcome, the 
land-use prescriptions contained in the RMPA now serve as baseline 
mitigation (for both species) to those operating on Federal lands or 
non-Federal lands with Federal minerals.
    Following approval of the RMPA, a CCA was drafted by a team 
including the Service, BLM, Center of Excellence for Hazardous 
Materials Management, and participating cooperators. The CCA addresses 
the conservation needs of the lesser prairie-chicken and dunes 
sagebrush lizard on BLM lands in New Mexico by undertaking habitat 
restoration and enhancement activities and minimizing habitat 
degradation. These efforts would protect and enhance existing 
populations and habitats, restore degraded habitat, create new habitat, 
augment existing populations of lesser prairie-chickens, restore 
populations, fund research studies, or undertake other activities on 
their Federal leases or allotments that improve the status of the 
lesser prairie-chicken. Through this CCA, Center of Excellence for 
Hazardous Materials Management will work with participating cooperators 
who voluntarily commit to implementing or funding specific conservation 
actions, such as burying powerlines, controlling mesquite, minimizing 
surface disturbances, marking fences, and improving grazing management, 
in an effort to reduce or eliminate threats to both species. The CCA 
builds upon the BLM's RMPA for southeast New Mexico. The RMPA 
established the foundational requirements that will be applied to all 
future Federal activities, regardless of whether a permittee or lessee 
participates in this CCA. The strength of the CCA comes from the 
implementation of additional conservation measures that are additive, 
or above and beyond those foundational requirements established in the 
RMPA. In addition to the CCA, a CCAA has been developed in association 
with the CCA to facilitate conservation actions for the lesser prairie-
chicken and dunes sagebrush lizard on private and State lands in 
southeastern New Mexico.
    Since the CCA and CCAA were finalized in December 2008, 29 oil and 
gas companies have enrolled a total of 330,180 ha (815,890 ac) of 
mineral holdings under the CCA. In addition, 39 private landowners in 
New Mexico have enrolled about 616,571 ha (1,523,573 ac). There 
currently are additional pending mineral and ranching enrollment 
applications being reviewed and processed for inclusion. Recently, BLM 
also has closed 149,910 ha (370,435 ac) to future oil and gas leasing 
and closed some 342,770 ha (847,000 ac) to wind and solar development. 
They have reclaimed 536 ha (1,325 ac) of abandoned well pads and 
associated roads and now require burial of powerlines within 3.2 km (2 
mi) of leks. Some 52 km (32.5 mi) of aboveground powerlines have been 
removed to date. Additionally, BLM has implemented control efforts for 
mesquite (Prosopis glandulosa) on some 148,257 ha (366,350 ac) and has 
plans to do so on an additional 128,375 ha (317,220 ac). More 
discussion of mequite control is addressed in the ``Shrub Control and 
Eradication'' section below.
    Acquisition of land for the protection of lesser prairie-chicken 
habitat also has occurred in New Mexico. The New Mexico Department of 
Game and Fish (NMDGF) currently has designated 29 areas specifically 
for management of the lesser prairie-chickens totaling more than 11,850 
ha (29,282 ac). These areas are closed to the public during the 
breeding and nesting season (March 1 to July 30), each year and 
restrictions are in place to minimize noise and other activities 
associated with oil and gas drilling. In 2007, the State Game 
Commission used New Mexico State Land Conservation Appropriation 
funding to acquire 2,137 ha (5,285 ac) of private ranchland in 
Roosevelt County. This property, the Sandhills Prairie Conservation 
Area (formerly the Lewis Ranch), is located east of Milnesand, New 
Mexico, and adjoins two existing Commission-owned Prairie-Chicken 
Areas. The BLM, on March 3, 2010, also acquired 3,010 ha (7,440 ac) of 
land east of Roswell, New Mexico, to protect key

[[Page 73834]]

habitat for the lesser prairie-chicken. The Nature Conservancy owns and 
manages the 11,331-ha (28,000-ac) Milnesand Prairie Preserve near 
Milnesand, New Mexico.
    The Service's PFW program also has been active in lesser prairie-
chicken conservation efforts in the State of New Mexico. Private lands 
agreements have been executed on 65 properties encompassing some 28,492 
ha (70,404 ac) of lesser prairie-chicken habitat in New Mexico. 
Additionally the entire 3,683 ha (2,600 ac) allotted to the lesser 
prairie-chicken CRP SAFE continuous signup in New Mexico has been 
enrolled in the program.


    The ODWC partnered with the Service, the Oklahoma Secretary of 
Environment, The Nature Conservancy, the Sutton Center, and the Playa 
Lakes Joint Venture to develop the Oklahoma Lesser Prairie-Chicken 
Spatial Planning Tool in 2009. The goal of the Oklahoma Lesser Prairie-
Chicken Spatial Planning Tool is to reduce the impacts of ongoing and 
planned development actions within the range of the lesser prairie-
chicken by guiding development away from sensitive habitats used by the 
species. The Oklahoma Lesser Prairie-Chicken Spatial Planning Tool 
assigns a relative value rank to geographic areas to indicate the value 
of the area to the conservation of the lesser prairie-chicken. The 
higher the rank (on a scale of 1 to 8), the more important the area is 
to the lesser prairie-chicken. The Oklahoma Lesser Prairie-Chicken 
Spatial Planning Tool, therefore, can be used to identify areas that 
provide high-quality habitat and determine where development, such as 
wind power, would have the least impact to the species. The Oklahoma 
Lesser Prairie-Chicken Spatial Planning Tool also can be used to 
determine a voluntary offset payment based on the cost of mitigating 
the impact of the anticipated development through habitat replacement. 
The voluntary offset payment is intended to be used to offset the 
impacts associated with habitat loss. Use of the Oklahoma Lesser 
Prairie-Chicken Spatial Planning Tool and the voluntary offset payment 
is voluntary.
    To date, in excess of $11.1 million has been committed to the ODWC 
through the voluntary offset payment program. Most recently, the ODWC 
entered into a Memorandum of Agreement with Chermac Energy Corporation 
to partially offset potential habitat loss from a planned 88.5-km (55-
mi) high-voltage transmission line. The line would run from near the 
Kansas State line to the Oklahoma Gas and Electric Woodward Extra High 
Voltage substation and will be used to carry up to 900 megawatts of 
wind energy from an existing wind farm in Harper County. The Memorandum 
of Agreement facilitates voluntary offset payments for impacts to the 
lesser prairie-chicken and their habitat. The agreement calls for the 
payment of a total of $2.5 million, with the money being used to help 
leverage additional matching funds from private and Federal entities 
for preservation, enhancement, and acquisition of lesser prairie-
chicken habitat. A large percentage of the voluntary offset payment 
funds have been used to acquire lands for the conservation of the 
lesser prairie-chicken and other fish and wildlife resources.
    In 2008, the ODWC acquired two properties known to be used by the 
lesser prairie-chicken. The Cimarron Bluff Wildlife Management Area 
encompasses 1,388 ha (3,430 ac) in northeastern Harper County, 
Oklahoma. The Cimarron Hills Wildlife Management Area in northwestern 
Woods County, Oklahoma, encompasses 1,526 ha (3,770 ac). The ODWC also 
recently purchased 5,580 ha (13,789 ac) within the range of the lesser 
prairie-chicken to expand both the Beaver River and Packsaddle Wildlife 
Management Areas in Beaver and Ellis Counties, respectively.
    Oklahoma State University hosts prescribed fire field days to help 
inform landowners about the benefits of prescribed fire for controlling 
invasion of woody vegetation in prairies and improving habitat 
conditions for wildlife in grassland ecosystems. Prescribed burning is 
an important tool landowners can use to improve the value of CRP fields 
and native prairie for wildlife, including the lesser prairie-chicken, 
by maintaining and improving vegetative structure, productivity, and 
diversity and by controlling exotic plant species. In 2009, the 
Environmental Defense Fund partnered with Oklahoma State University to 
prepare a report on the management of CRP fields for lesser prairie-
chicken management. The document (Hickman and Elmore 2009, entire) was 
designed to provide a decision tree that would assist agencies and 
landowners with mid-contract management of CRP fields.
    Like the other States, ODWC has partnered in the implemention of a 
State WHIP designed to enhance, create, and manage habitat for all 
wildlife species, including the lesser prairie-chicken. The State WHIP 
recently has targeted money for lesser prairie-chicken habitat 
    Several different ``Ranch Conversations'' have been held in 
northwestern Oklahoma over the past 10 years, most recently hosted by 
the Oklahoma High Plains Resource Development and Conservation Office. 
These meetings invited private landowners and the general public to 
discuss lesser prairie-chicken conservation and management, receive 
information, and provide input on programs and incentives that are 
available for managing the lesser prairie-chicken on privately owned 
    In an effort to address ongoing development of oil and gas 
resources, the Oklahoma Wildlife Conservation Commission voted to 
approve a Memorandum of Understanding with the Oklahoma Independent 
Petroleum Association in February 2012 to establish a collaborative 
working relationship for lesser prairie-chicken conservation. Through 
this Memorandum of Understanding, the ODWC and Oklahoma Independent 
Petroleum Association will identify and develop voluntary steps (Best 
Management Practices) that can be taken by the Oklahoma Independent 
Petroleum Association's members to avoid and minimize the impacts of 
their operations on the lesser prairie-chicken. These Best Management 
Practices are currently under development.
    Oklahoma received a USDA Conservation Innovation Grant to develop a 
wildlife credits trading program. When completed, the credit trading 
program will provide incentives to landowners who manage their lands 
for conservation of the lesser prairie-chicken. Currently, about 2,819 
ha (6,965 ac) have been enrolled under the lesser prairie-chicken CRP 
SAFE continuous signup in Beaver, Beckham, Ellis, and Harper Counties.
    The ODWC, in early 2012, entered into a contract with Ecosystem 
Management Research Institute to develop a conservation plan for the 
lesser prairie-chicken in Oklahoma. The primary goal of the Oklahoma 
Lesser Prairie Chicken Conservation Plan is to develop an overall 
strategy for conservation of the lesser prairie-chicken in Oklahoma. 
Development of the Oklahoma Lesser Prairie Chicken Conservation Plan 
will involve synthesis of all pertinent information currently available 
and input from diverse stakeholders. The Oklahoma Lesser Prairie 
Chicken Conservation Plan will identify priority conservation areas, 
population goals, and conservation strategies and actions; it also will 
link conservation actions to appropriate entities and contain an 
implementation timeline. A draft document is currently available, 
public comments were solicited through

[[Page 73835]]

August 30, 2012, and the final plan is anticipated in September of 
    As discussed above, the ODWC has applied for an enhancement of 
survival permit pursuant to section 10(a)(1)(A) of the Act that 
includes a draft umbrella CCAA between the Service and ODWC for the 
lesser prairie-chicken in 14 Oklahoma counties (77 FR 37917). The draft 
CCAA and associated draft environmental assessment was made available 
for public review and comment in June 2012. The Service and ODWC are 
currently reviewing and addressing public comments, and a permitting 
decision is anticipated in the near future
    The Service's PFW program also has contributed financial and 
technical assistance for restoration and enhancement activities that 
benefit the lesser prairie-chicken in Oklahoma. Important measures 
include control of eastern red cedar and fence marking and removal to 
minimize collision mortality. The Oklahoma PFW program has implemented 
154 private lands agreements on about 38,954 ha (96,258 ac) of private 
lands for the benefit of the lesser prairie-chicken in the State.


    The Texas Parks and Wildlife Department (TPWD) hosted a series of 
landowner meetings and listening sessions in 6 (Hemphill, Wheeler, 
Gray, Bailey, Cochran, and Gaines) of the 13 counties confirmed to be 
occupied by the lesser prairie-chicken in Texas. Private landowners and 
the general public were invited to discuss conservation and management, 
receive information, and provide input on programs and incentives that 
are available for managing the lesser prairie-chicken on privately 
owned lands. In response to these meetings, TPWD worked with the 
Service and landowners to finalize the first statewide umbrella CCAA 
for the lesser prairie-chicken in Texas. The conservation goal of the 
Texas CCAA is to encourage protection and improvement of suitable 
lesser prairie-chicken habitat on non-Federal lands by offering private 
landowners incentives to implement voluntary conservation measures 
through available funding mechanisms and by providing technical 
assistance and regulatory assurances concerning land use restrictions 
that might otherwise apply should the lesser prairie-chicken become 
listed. The conservation measures would generally consist of prescribed 
grazing; prescribed burning; brush management; cropland and residue 
management; range seeding and enrollment in various Farm Bill programs 
such as the CRP, the Grassland Reserve Program, and SAFE program; and 
wildlife habitat treatments through the EQIP. The Texas CCAA covers 50 
counties, largely encompassing the Texas panhandle region, and was 
finalized on May 14, 2009. Currently, 22 private landowners (totaling 
approximately 255,044 ac) are enrolled under this agreement.
    More recently, the TPWD, along with other partners, held five 
meetings in the Texas panhandle region as part of an effort to promote 
lesser prairie-chicken conservation. These meetings were held in May of 
2009 and were intended to inform landowners about financial incentives 
and other resources available to improve habitat for the lesser 
prairie-chicken, including the SAFE program. The objective of the Texas 
SAFE program, administered by the Farm Service Agency, is to restore 
2,093 ha (20,000 ac) of native mixed-grassland habitat for the lesser 
prairie-chicken in Texas. Additional allocations were approved, and 
currently some 31,245 ha (77,209 ac) have been enrolled in the SAFE 
program. Then, in March 2010, TPWD staff conducted a 2-day upland bird 
workshop where lesser prairie-chicken research and management was 
    In 2010, the NRCS and TPWD partnered to create an EQIP focused on 
lesser prairie-chicken conservation. This program provides technical 
and financial assistance to landowners interested in implementing land 
management practices for the lesser prairie-chicken within its 
historical range.
    The Service's PFW program and the TPWD have been actively 
collaborating on range management programs designed to provide cost-
sharing for implementation of habitat improvements for lesser prairie-
chickens. The Service provided funding to TPWD to support a Landscape 
Conservation Coordinator position for the Panhandle and Southern High 
Plains region, as well as funding to support 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 addressed lesser 
prairie-chicken conservation on some 5,693 ha (14,068 ac) under the 
Landowner Incentive Program. Typical conservation measures include 
native plant restoration, control of exotic vegetation, prescribed 
burning, selective brush management, and prescribed grazing. Currently, 
the PFW program has executed 66 private lands agreements on about 
53,091 ha (131,190 ac) of privately owned lands for the benefit of the 
lesser prairie-chicken in Texas.
    The TPWD continues to establish working relationships with wind 
developers and provides review and comment on proposed developments 
whenever requested. Through this voluntary comment process, TPWD 
provides guidance on how to prevent, minimize, and mitigate impacts 
from wind and transmission development on lesser prairie-chicken 
habitat and populations.
    A Lesser Prairie-Chicken Advisory Committee also has been 
established in Texas and functions to provide input and information to 
the State's Interagency Task Force on Economic Growth and Endangered 
Species. The purpose of the task force is to provide policy and 
technical assistance regarding compliance with endangered species laws 
and regulations to local and regional governmental entities and their 
communities engaged in economic development activities so that 
compliance with endangered species laws and regulations is as effective 
and cost efficient as possible. Input provided by the Lesser Prairie-
Chicken Advisory Committee serves to help the Task Force prevent 
listing and minimize harm to economic sectors if listing does occur. 
The advisory committee also assists in outreach and education efforts 
on potential listing decisions and methods to minimize the impact of 
    The TPWD has worked in conjunction with several Texas universities 
to fund several lesser prairie-chicken research projects. In one of 
those projects, TPWD evaluated the use of aerial line transects and 
forward-looking infrared technology to survey for lesser prairie-
chickens. Other ongoing research includes evaluation of lesser prairie-
chicken population response to management of shinnery oak and 
evaluation of relationships among the lesser prairie-chicken, avian 
predators, and oil and gas infrastructure.
    In 2009, the U.S. Department of Energy awarded Texas Tech 
University and the TPWD a collaborative grant to conduct aerial surveys 
on approximately 75 percent of the estimated currently occupied range. 
This project aided in the initial development of a standardized 
protocol for conducting aerial surveys for the lesser prairie-chicken 
across the entire range. All five States are currently participating in 
these surveys; and a complete analysis of the results is expected 
sometime in the summer of 2012 and will be incorporated in the final 

[[Page 73836]]

    Recently, The Nature Conservancy of Texas acquired approximately 
2,428 ha (6,000 ac) of private ranchland in Yoakum and Terry Counties 
for the purpose of protecting and restoring lesser prairie-chicken 
habitat. This acquisition helped secure a geographically important 
lesser prairie-chicken population.
    In addition to participation in annual lesser prairie-chicken 
festivals, the TPWD published an article on the lesser prairie-chicken 
and wind development in Texas in their agency magazine in October of 
2009. The TPWD and the Dorothy Marcille Wood Foundation also produced a 
12-page color brochure in 2009 about the lesser prairie-chicken 
entitled ``A Shared Future.''
    In summary, we recognize the importance of the conservation efforts 
undertaken by all entities across the range of the lesser prairie-
chicken. These actions outlined above have, at least in some instances, 
slowed, but not halted, alteration of lesser prairie-chicken habitat. 
However, continued implementation of these and similar future actions 
is crucial to lesser prairie-chicken conservation. In many instances, 
these efforts have helped reduce the severity of the threats to the 
species, particularly in localized areas. However, our review of 
conservation efforts indicates that the measures identified are not 
adequate to fully address the known threats, including the primary 
threat of habitat fragmentation, in a manner that effectively reduces 
or eliminates the threats (see discussion below). All of the efforts 
are limited in size or duration, and the measures typically are not 
implemented at a scale that would be necessary to effectively reduce 
the threats to this species across its known range. Often the measures 
are voluntary, with little certainty that the measures will be 
implemented. In some instances, mitigation for existing development 
within the range of the lesser prairie-chicken has been secured, but 
the effectiveness of the mitigation is unknown. Conservation of this 
species will require persistent, targeted implementation of appropriate 
actions over the range of the species to sufficiently reduce or 
eliminate the primary threats to the lesser prairie-chicken.

Available Conservation Measures

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

Recovery Planning

    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
soon after a species is listed, preparation of a draft and final 
recovery plan, and periodic revisions to the plan as significant new 
information becomes available. The recovery outline guides the 
immediate implementation of urgently needed recovery actions and 
describes the process to be used to develop a recovery plan. The 
recovery plan identifies site-specific management actions that will 
achieve recovery of the species, measurable criteria that determine 
when a species may be downlisted or delisted, and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (comprised 
of species experts, Federal and State agencies, nongovernment 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our Web site 
(http://www.fws.gov/endangered), or from our Oklahoma Ecological 
    In general, the Service believes conservation and eventual recovery 
of the lesser prairie-chicken should consist of the establishment of 
secure strongholds or core areas of high quality habitat that are at 
least 10,117 ha (25,000 ac) in size and support 6-10 active leks, each 
being used by at least 6 males (Applegate and Riley 1998, p. 14). 
Ideally these areas would contain minimal amounts of habitat 
fragmentation and be managed such that the areas are secure from 
pressures of ongoing development. As fragmentation within these areas 
increases, the total amount of area would need to expand accordingly 
such that the total amount of high quality habitat is at least 10,117 
ha. It is expected that a minimum of four strongholds will be needed, 
distributed across the ecological diversity of the species, in order to 
secure the status of the species. The Service views the species' 
occupied range as a matrix comprising four primary quadrants, each one 
exemplifying a unique combination of precipitation, temperature, and 
vegetation type variables. The quadrants are separated from east to 
west by the boundary between the shortgrass prairie and central-mixed-
grass-prairie Bird Conservation Regions and from north to south by the 
Canadian River. To ensure redundancy, resiliency, and representation 
across the species' range, the Service recommends at least one lesser 
prairie-chicken stronghold be established and maintained in each 
quadrant. Resiliency refers to the capacity of an ecosystem or an 
organism to recover quickly from a disturbance by tolerating or 
adapting to the anticipated alterations caused by the disturbance. 
Redundancy, in this context, refers to the ability of a species to 
compensate for fluctuations in or loss of populations across the 
species' range such that the loss of a single population has little or 
no lasting effect on the structure and functioning of the species as a 
whole. Representation refers to the conservation of the diversity of a 
    While a minimum of four strongholds is recommended in order to 
secure the status of the species, additional strongholds and 
connections between them will be needed in order to conserve the 
species. A more complete explanation of this preliminary conservation 
strategy can be found in the Service's (2012) technical white paper 
titled ``Conservation Needs of the Lesser Prairie-chicken'' (available 
at http://www.regulations.gov).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribal and nongovernmental organizations,

[[Page 73837]]

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

Federal Agency Consultation

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

Prohibitions and Exceptions

    The purposes of the Act are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, to provide a program for the conservation of such 
endangered species and threatened species, and to take such steps as 
may be appropriate to achieve the purposes of the treaties and 
conventions set forth in the Act. The Act is implemented through 
regulations found in the CFR. When a species is listed as endangered, 
certain actions are prohibited under section 9 of the Act, as specified 
in 50 CFR 17.21. These prohibitions, which will be discussed further 
below, include, among others, take within the United States, within the 
territorial seas of the United States, or upon the high seas; import; 
export; and shipment in interstate or foreign commerce in the course of 
a commercial activity.
    The Act does not specify particular prohibitions, or exceptions to 
those prohibitions, for threatened species. Instead, under section 4(d) 
of the Act, the Secretary of the Interior was given the discretion to 
issue such regulations as he deems necessary and advisable to provide 
for the conservation of such species. The Secretary also has the 
discretion to prohibit by regulation with respect to any threatened 
species, any act prohibited under section 9(a)(1) of the Act. 
Exercising this discretion, the Service has developed general 
prohibitions (50 CFR 17.31) and exceptions to those prohibitions (50 
CFR 17.32) under the Act that apply to most threatened species. Under 
50 CFR 17.43, permits may be issued to allow persons to engage in 
otherwise prohibited acts. Alternately, for other threatened species, 
the Service develops specific prohibitions and exceptions that are 
tailored to the specific conservation needs of the species. In such 
cases, some of the prohibitions and authorizations under 50 CFR 17.31 
and 17.32 may be appropriate for the species and incorporated into a 
special rule under section 4(d) of the Act, but the 4(d) special rule 
will also include provisions that are tailored to the specific 
conservation needs of the threatened species and which may be more or 
less restrictive than the general provisions at 50 CFR 17.31.
    For example, for several fish species that are listed as threatened 
species, the Service has prepared a 4(d) special rule. In these 
situations, threatened fish co-occur with other species that are not 
listed as threatened or endangered species. Recreational fishing of the 
non-listed species may occur in these areas, usually under a permit or 
license program managed by the State Conservation Agency. In some of 
these cases, the Service has prepared a 4(d) special rule which 
generally prohibits the activities that are defined in the Act for 
endangered species, but does not prohibit take if it is incidental to 
recreational fishing activities that are conducted pursuant to an 
appropriate State program.
    Similarly, we are considering whether it is appropriate to fashion 
a 4(d) rule that would not prohibit take that is incidental to 
implementing a sector-specific or comprehensive lesser prairie-chicken 
conservation program. We anticipate that conservation programs given 
credit under such a 4(d) rule would need to be developed and 
administered by an entity having jurisdiction or authority over the 
activities in the program; would need to be approved by the Service as 
adequately protective to provide a net conservation benefit to the 
lesser prairie-chicken; and would need to include robust adaptive 
management, monitoring, and reporting components sufficient to 
demonstrate that the conservation objectives of the plan are being met.
    Several ongoing conservation efforts may satisfy or be moving 
toward this end, such as the Lesser Prairie-Chicken

[[Page 73838]]

Initiative, implementation of a multi-State rangewide conservation 
strategy, or individual candidate conservation agreements with 
assurances that currently have permits issued pursuant to section 10 of 
the Act.
    Accordingly, we are soliciting public comment as to which 
prohibitions, and exceptions to those prohibitions, are necessary and 
advisable to provide for the conservation of the lesser prairie-chicken 
(see Public Comments above). After reviewing the initial public 
comments on this topic, we will evaluate whether a 4(d) special rule is 
appropriate for the lesser prairie-chicken, and, if so, publish a 
proposed 4(d) special rule for public comment.
    Currently, we have not proposed a 4(d) special rule for the lesser 
prairie-chicken. If the lesser prairie-chicken is ultimately listed as 
a threatened species without a 4(d) special rule, the general 
prohibitions (50 CFR 17.31) and exceptions to these prohibitions (50 
CFR 17.32) for threatened species would be applied to the lesser 
prairie-chicken, as explained above. The prohibitions of section 
9(a)(2) of the Act, codified at 50 CFR 17.31 for threatened wildlife, 
in part, make it illegal for any person subject to the jurisdiction of 
the United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect; or to attempt any of these), 
import, export, ship in interstate commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 
3371-3378), it is also illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally. 
Certain exceptions apply to agents of the Service and State 
conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.32 for threatened species. A permit must be issued for the following 
purposes: for scientific purposes, to enhance the propagation or 
survival of the species, and for incidental take in connection with 
otherwise lawful activities. We anticipate that we would receive 
requests for all three types of permits, particularly as they relate to 
development of wind power facilities or implementation of Safe Harbor 
Agreements. Requests for copies of the regulations regarding listed 
species and inquiries about prohibitions and permits may be addressed 
to the Field Supervisor at the address in the FOR FURTHER INFORMATION 
CONTACT section.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. The following activities could potentially result 
in a violation of section 9 of the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
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, as previously described in this 
rule. Such activities could include, but are not limited to, the 
removal of native shrub or herbaceous vegetation by any means for any 
infrastructure construction project or direct conversion of native 
shrub or herbaceous vegetation to another land use.
    (3) Actions that would result in the long-term (e.g., greater than 
3 years) alteration of preferred vegetative characteristics of lesser 
prairie-chicken habitat, as previously described in this proposed rule, 
particularly those actions that would cause a reduction or loss in the 
native invertebrate community within those habitats. Such activities 
could include, but are not limited to, inappropriate livestock grazing, 
the application of herbicides or insecticides, and seeding of nonnative 
plant species that would compete with native vegetation for water, 
nutrients, and space.
    (4) Actions that would result in lesser prairie-chicken avoidance 
of an area during one or more seasonal periods. Such activities could 
include, but are not limited to, the construction of vertical 
structures such as power lines, fences, communication towers, and 
buildings; motorized and nonmotorized recreational use; and activities 
such as well drilling, operation, and maintenance, which would entail 
significant human presence, noise, and infrastructure.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Oklahoma 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).


Species Information

    The lesser prairie-chicken (Tympanuchus pallidicinctus) is a 
species of prairie grouse endemic to the southern high plains of the 
United States, commonly recognized for its feathered feet, stout build, 
ground-dwelling habit, and lek mating behavior. The lesser prairie-
chicken is closely related and generally similar, although not 
identical in every aspect of behavior and life history, to other 
species of North American prairie grouse (e.g., greater prairie-chicken 
(T. cupido pinnatus), Attwater's prairie-chicken (T. cupido attwateri), 
sharp-tailed grouse (T. phasianellus), greater sage-grouse 
(Centrocercus urophasianus), and Gunnison's sage-grouse (C. minimus)). 
Plumage of the lesser prairie-chicken is characterized by a cryptic 
pattern of alternating brown and buff-colored barring, and is similar 
in mating behavior and appearance, although somewhat lighter in color, 
to the greater prairie-chicken. Males have long tufts of feathers on 
the sides of the neck, termed pinnae, that are erected during courtship 
displays. Pinnae are smaller and less prominent in females. Males also 
display brilliant yellow supraorbital eyecombs and dull reddish 
esophageal air sacs during courtship displays (Copelin 1963, p. 12; 
Sutton 1977, entire; Johnsgard 1983, p. 318). A more detailed summary 
of the appearance of the lesser prairie-chicken is provided in Hagen 
and Giesen (2005, unpaginated).
    Lesser prairie-chickens are dimorphic in size, with the females 
being smaller than the males (See Table 1 in Hagen and Giesen 2005, 
unpaginated). Adult lesser prairie-chicken body length varies from 38 
to 41 centimeters (cm) (15 to 16 inches (in)) (Johnsgard 1973, p. 275; 
Johnsgard 1983, p. 318), and body mass varies from 734 to 813 grams (g) 
(1.6 to 1.8 pounds (lbs)) for males and 628 to 772 g (1.4 to 1.7 lbs) 
for females (Giesen 1998, p. 14). Adults weigh more than yearling 
    The lesser prairie-chicken is in the Order Galliformes, Family 
Phasianidae, subfamily Tetraoninae, and is recognized as a species 
separate from the greater prairie-chicken (Jones 1964, pp. 65-73; 
American Ornithologist's Union 1998, p. 122). The lesser prairie-
chicken was first described as a subspecies of the greater prairie-
chicken (Ridgway 1873, p. 199) but was later

[[Page 73839]]

named a full species in 1885 (Ridgway 1885, p. 355). Additional 
information on lesser prairie-chicken systematics and taxonomy can be 
found in Hagen and Giesen (2005, unpaginated).
Life-History Characteristics
    Lesser prairie-chickens are polygynous (a mating pattern in which a 
male mates with more than one female in a single breeding season) and 
exhibit a lek mating system. The lek is a place where males 
traditionally gather to conduct a communal, competitive courtship 
display. The males use their specialized plumage and vocalizations to 
attract females for mating. The sequence of vocalizations and posturing 
of males, often described as ``booming, gobbling, yodeling, bubbling, 
or duetting,'' has been described by Johnsgard (1983, p. 336) and 
Haukos (1988, pp. 44-45) and is well summarized by Hagen and Giesen 
(2005, unpaginated). Male lesser prairie-chickens gather to display on 
leks at dawn and dusk beginning as early as late January and continuing 
through mid-May (Copelin 1963, p. 26; Hoffman 1963, p. 730; Crawford 
and Bolen 1976a, p. 97; Sell 1979, p. 10; Merchant 1982, p. 40), 
although fewer numbers of birds generally attend leks during the 
evening (Taylor and Guthery 1980a, p. 8). Male birds may remain on the 
lek for up to 4 hours (Copelin 1963, pp. 27-28; Sharpe 1968, p. 76; 
Crawford and Bolen 1975, pp. 808-810; Giesen 1998, p. 7), with females 
typically departing the lek following successful copulation (Sharpe 
1968, pp. 154, 156). Dominant, usually older, males occupy and defend 
territories near the center of the lek where most of the copulations 
occur, while younger males occupy the periphery and compete for central 
access (Sharpe 1968, pp. 73-89; Wiley 1974, p. 203; Ehrlich et al. 
1988, p. 259). A relatively small number of dominant males account for 
the majority of copulations at each lek (Sharpe 1968, p. 87; Wiley 
1974, p. 203; Locke 1992, p. 1). Young males are rarely successful in 
breeding due to the dominance by older males. The spring display period 
may extend into June (Hoffman 1963, p. 730; Jones 1964, p. 66); 
however, Jones (1964, p. 66) observed some courtship activity even 
during July in Oklahoma.
    Male lesser prairie-chickens exhibit strong site fidelity (loyalty 
to a particular area; philopatry) to their display grounds (Copelin 
1963, pp. 29-30; Hoffman 1963, p. 731; Campbell 1972, pp. 698-699). 
Such behavior is typical for most species of prairie grouse (e.g., 
greater prairie-chicken, lesser prairie-chicken, sharp-tailed grouse, 
greater sage-grouse, and Gunnison's sage-grouse) in North America 
(Schroeder and Robb 2003, pp. 231-232). Once a lek site is selected, 
males persistently return to that lek year after year (Wiley 1974, pp. 
203-204) and may remain faithful to that site for life. They often will 
continue to use these traditional areas even when the surrounding 
habitat has declined in value (for example, concerning greater sage-
grouse; see Harju et al. 2010, entire). Female lesser prairie-chickens, 
due to their tendency to nest within 2.5 km (1.5 mi) of a lek (Giesen 
1994a, p. 97), also may display fidelity to nesting areas but the 
degree of fidelity is not clearly established (Schroeder and Robb 2003, 
p. 292). However, Haukos and Smith (1999, p. 418) observed that female 
lesser prairie-chickens are more likely to visit older, traditionally 
used lek sites than temporary, nontraditional lek sites (those used for 
no more than 2 years). Temporary or satellite leks occasionally may be 
established during the breeding season and appear indicative of 
population fluctuations (e.g., an expanding population has more 
satellite leks than a declining population) (Hamerstrom and Hamerstrom 
1973, pp. 7, 13; Schroeder and Braun 1992, p. 280; Haukos and Smith 
1999, pp. 415, 417) or habitat quality (Cannon and Knopf 1979, p. 44; 
Merrill et al. 1999, pp. 193-194). Lesser prairie-chicken satellite 
leks have been observed to form later in the breeding season and 
coincide with decreased attendance at the permanent leks (Haukos and 
Smith 1999, p. 418). These satellite leks consisted primarily of birds 
that were unable to establish territories on the permanent leks (Haukos 
and Smith 1999, p. 418). Locations of traditional, permanent lek sites 
also may change in response to disturbances (Crawford and Bolen 1976b, 
pp. 238-240; Cannon and Knopf 1979, p. 44).
    Because of this fidelity to breeding areas, prairie grouse may not 
immediately demonstrate a population response when faced with 
environmental change. Considering that landscapes and habitat 
suitability can change rapidly, strong site fidelity can result in a 
lag period between when a landscape degradation occurs and when a 
population response is observed (Gregory et al. 2011, pp. 29-30). In 
some birds exhibiting strong philopatry, Wiens et al. (1986, p. 374) 
thought that the overall response to a particular habitat alteration 
might not become evident until after the most site-tenacious 
individuals had died. Delayed population responses have been observed 
in birds impacted by wind energy development (Stewart et al. 2007, pp. 
5-6) and in greater sage-grouse impacted by oil and gas development 
(Doherty et al. 2010, p. 5). Consequently routine lek count surveys 
typically used to monitor prairie grouse may be slow in revealing 
impacts of environmental change (Gregory et al. 2011, pp. 29-30).
    Leks are normally located on the tops of wind-swept ridges, exposed 
knolls, sparsely vegetated dunes, and similar features in areas having 
low vegetation height or bare soil and enhanced visibility of the 
surrounding area (Copelin 1963, p. 26; Jones 1963a, p. 771; Taylor and 
Guthery 1980a, p. 8). The features associated with lek sites also may 
contribute to the transmission of sounds produced during lekking 
(Butler et al. 2010, entire) and these sounds may aid females in 
locating lek sites (Hagen and Giesen 2005, unpaginated). Background 
noises are known to increase in landscapes altered by human development 
and may interfere with normal behavioral activities (Francis et al. 
2009, p. 1415). Birds may be particularly vulnerable to elevated levels 
of background noise, due to their reliance on acoustic communication, 
and elevated noise levels may negatively impact breeding in some birds 
particularly where acoustic cues are used during the reproductive 
process (Francis et al. 2009, pp. 1415, 1418).
    Areas that have been previously disturbed by humans, such as 
infrequently used roads, abandoned drilling pads, abandoned farmland, 
recently cultivated fields, and livestock watering sites also can be 
used as lek sites (Crawford and Bolen 1976b, pp. 238-239; Davis et al. 
1979, pp. 81, 83; Sell 1979, p. 14; Taylor 1979, p. 707). However, 
ongoing human activity, such as presence of humans or noise, may 
discourage lekking by causing birds to flush, and, in some instances, 
may cause lek sites to be abandoned (Hunt and Best 2004, pp. 2, 124). 
Leks often are surrounded by taller, denser cover that is used for 
escape, thermal cover, and feeding cover. New leks can be formed 
opportunistically at any appropriate site within or adjacent to nesting 
habitat. Evidence of expanding lesser prairie-chicken populations tends 
to be demonstrated by increases in the number of active leks rather 
than by increases in the number of males displaying per lek (Hoffman 
1963, p. 731; Snyder 1967, p. 124; Cannon and Knopf 1981, p. 777; 
Merchant 1982, p. 54; Locke 1992, p. 43).
    Females arrive at the lek in early spring after the males begin 
displaying, with peak hen attendance at leks

[[Page 73840]]

typically occurring in early to mid-April (Copelin 1963, p. 26; Hoffman 
1963, p. 730; Crawford and Bolen 1975, p. 810; Davis et al. 1979, p. 
84; Merchant 1982, p. 41; Haukos 1988, p. 49). Sounds produced by 
courting males serve to advertise the presence of the lek to females in 
proximity to the display ground (Robb and Schroeder 2005, p. 29). 
Within 1 to 2 weeks of successful mating, the hen will select a nest 
site, normally within 1 to 3 km (0.6 to 2 mi) of a lek (Copelin 1963, 
p. 44; Giesen 1994a, p. 97), construct a nest, and lay a clutch of 8 to 
14 eggs (Bent 1932, p. 282; Copelin 1963, p. 34; Merchant 1982, p. 44; 
Fields 2004, pp. 88, 115-116; Hagen and Giesen 2005, unpaginated; 
Pitman et al. 2006a, p. 26). Nesting is generally initiated in mid-
April and concludes in late May (Copelin 1963, p. 35; Snyder 1967, p. 
124; Merchant 1982, p. 42; Haukos 1988, pp. 7-8). Hens most commonly 
lay one egg per day and initiate incubation once the clutch is complete 
(Hagen and Giesen 2005, unpaginated). Incubation lasts 24 to 27 days 
(Coats 1955, p. 18; Sutton 1968, p. 679; Pitman et al. 2006a, p. 26) 
with hatching generally peaking in late May through mid-June (Copelin 
1963, p. 34; Merchant 1982, p. 42; Pitman et al. 2006a, p. 26). Hens 
typically leave the nest within 24 hours after the first egg hatches 
(Hagen and Giesen 2005, unpaginated). Renesting may occur when the 
first attempt is unsuccessful (a successful nest is one in which at 
least one egg hatches) (Johnsgard 1973, pp. 63-64; Merchant 1982, p. 
43; Pitman et al. 2006a, p. 25). Renesting is more likely when nest 
failure occurs early in the nesting season and becomes less common as 
the nesting season progresses (Pitman et al. 2006a, p. 27). Clutches 
associated with renesting attempts tend to be smaller than clutches at 
first nesting (Fields 2004, p. 88; Pitman et al. 2006a, p. 27).
    Nests generally consist of bowl-shaped depressions in the soil 
(Giesen 1998, p. 9). Nests are lined with dried grasses, leaves, and 
feathers, and there is no evidence that nests are reused in subsequent 
years (Giesen 1998, p. 9). Adequate herbaceous cover, including 
residual cover from the previous growing season, is an important factor 
influencing nest success, primarily by providing concealment of the 
nest (Suminski 1977, p. 32; Riley 1978, p. 36; Riley et al. 1992, p. 
386; Giesen 1998, p. 9). Young are precocial (mobile upon hatching) and 
nidifugous (typically leaving the nest within hours of hatching) (Coats 
1955, p. 5). Chicks are usually capable of short flights by 14 days of 
age (Hagen and Giesen 2005, unpaginated). Broods may remain with 
females for up to 18 weeks (Giesen 1998, p. 9; Pitman et al. 2006c, p. 
93), but brood breakup generally occurs by September when the chicks 
are approximately 70 days of age (Taylor and Guthery 1980a, p. 10). 
Males do not incubate the eggs, assist in chick rearing, or provide 
other forms of parental care (Wiley 1974, p. 203). Nest success 
(proportion of nests that hatch at least one egg) varies, but averages 
about 30 percent (range 0-67 percent) (Hagen and Giesen 2005, 
    Availability of food and cover are key factors that affect chick 
and juvenile survival. Chick survival averaged only about 25 percent 
during the first 35 days following hatching (Hagen 2003, p. 135). 
Survival for chicks between 35 days of age and the following spring was 
estimated to be 53.9 percent in southwestern Kansas (Hagen et al. 2009, 
p. 1326). Jamison (2000, p. 57) estimated survival of chicks from 
hatching to early autumn (60 days post-hatching), using late summer 
brood sizes provided in several early studies, to be 27 percent in 
Kansas and 43-65 percent in Oklahoma. These values were considerably 
higher than the 19 percent he observed in his study and may reflect an 
inability in the earlier studies to account for the complete loss of 
broods and inclusion of mixed broods (combined broods from several 
females) when estimating brood size (Jamison 2000, p. 57). Pitman et 
al. (2006b, p. 677) estimated survival of chicks from hatching to 60-
days post-hatching to be 17.7 percent. Recruitment was characterized as 
low with survival of juvenile birds from hatching to the start of the 
first breeding season the following year estimated to be only 12 
percent (Pitman et al. 2006b, pp. 678-680), which may be a significant 
limiting factor in southwestern Kansas. However, the authors cautioned 
that these estimates might not be indicative of survival estimates in 
other areas due to low habitat quality, specifically poor distribution 
of nesting and brood-rearing habitats within the study area (Pitman et 
al. 2006b, p. 680).
    Lesser prairie-chicken home ranges vary both by sex and by season 
and may be influenced by a variety of factors. Males tend to have 
smaller home ranges than do females, with the males generally remaining 
closer to the leks than do the females (Giesen 1998, p. 11). In 
Colorado, Giesen (1998, p. 11) observed that spring and summer home 
ranges for males were 211 ha (512 ac) and for females were 596 ha 
(1,473 ac). In the spring, home ranges are fairly small when daily 
activity focuses on lekking and mating. Home ranges of nesting females 
in New Mexico varied, on average, from 8.5 to 92 ha (21 to 227 ac) 
(Merchant 1982, p. 37; Riley et al. 1994, p. 185). Jamison (2000, p. 
109) observed that range size peaked in October as birds began feeding 
in recently harvested grain fields. Median range size in October was 
229 to 409 ha (566 to 1,400 ac). In Texas, Taylor and Guthery (1980b, 
p. 522) found that winter monthly home ranges for males could be as 
large as 1,945 ha (4,806 ac) and that subadults tended to have larger 
home ranges than did adults. More typically, winter ranges are more 
than 300 ha (740 ac) in size, and the size declines considerably by 
spring. Based on observations from New Mexico and Oklahoma, lesser 
prairie-chicken home ranges increase during periods of drought (Giesen 
1998, p. 11; Merchant 1982, p. 55), possibly because of reduced food 
availability and cover. Davis (2005, p. 3) states that the combined 
home range of all lesser prairie-chickens at a single lek is about 49 
square kilometers (sq km) (19 square miles (sq mi) or 12,100 ac).
    Many grouse species are known to be relatively poor dispersers and 
normally move less than 40 km (25 mi) (Braun et al. 1994, pp. 432-433). 
Dispersal helps maintain healthy, robust populations by contributing to 
population expansion, recolonization, and gene flow (Sutherland et al. 
2000, unpaginated). In lesser prairie-chickens, most movements within a 
given season are less than 10 km (6.2 mi), but Jamison (2000, p. 107) 
thought that movements as large as 44 km (27.3 mi) might occur in 
fragmented landscapes. Recent studies of lesser prairie-chicken in 
Kansas demonstrated some birds may move as much as 50 km (31 mi) from 
their point of capture (Hagen et al. 2004, p. 71). Although recorded 
dispersal movements indicate that lesser prairie-chickens are obviously 
physically capable of longer distance dispersal movements, these longer 
movements appear to be infrequent. Jamison (2000, p. 107) recorded only 
2 of 76 tagged male lesser prairie-chickens left the 5,760 ha (14,233 
ac) primary study area over a 3-year period. He thought site fidelity 
rather than habitat was more important in influencing movements of male 
lesser prairie-chickens (Jamison 2000, p. 111). Environmental factors 
also may influence dispersal patterns, particularly in fragmented 
landscapes where predation rates may be higher and habitat suitability 
may be reduced in smaller sized parcels. Lesser prairie-chickens appear 
to be sensitive to the size of habitat fragments and may avoid using 
parcels below a preferred size

[[Page 73841]]

regardless of habitat type or quality (see separate discussion under 
``Effects of Habitat Fragmentation'' below). As the landscape becomes 
more fragmented, longer dispersal distances over areas of unsuitable 
habitats may be required.
    Daily movements of males tend to increase in fall and winter and 
decrease with onset of spring, with median daily movements typically 
being less than 786 meters per day (Jamison 2000, pp. 106, 112). In 
Texas, Haukos (1988, p. 46) recorded daily movements of 0.1 km (0.06 
mi) to greater than 6 km (3.7 mi) by female lesser prairie-chickens 
prior to onset of incubation. Taylor and Guthery (1980b, p. 522) 
documented a single male moving 12.8 km (8 mi) in 4 days, which they 
considered to be a dispersal movement. Because lesser prairie-chickens 
exhibit limited dispersal ability and do not typically disperse over 
long distances, they do not readily recolonize areas following 
localized extinctions, particularly where the distance between habitat 
patches exceeds their typical dispersal capabilities.
    In general, there is little documentation of historical dispersal 
patterns, and the existence of large-scale migration movements is not 
known. However, both Bent (1932, pp. 284-285) and Sharpe (1968, pp. 41-
42) thought that the species, at least historically, might have been 
migratory with separate breeding and wintering ranges. Taylor and 
Guthery (1980a, p. 10) also thought the species was migratory prior to 
widespread settlement of the High Plains, but migratory movements have 
not recently been documented. The lesser prairie-chicken is now thought 
to be nonmigratory.
    Lesser prairie-chickens forage during the day, usually during the 
early morning and late afternoon, and roost at night (Jones 1964, p. 
69). Diet of the lesser prairie-chicken is very diverse, primarily 
consisting of insects, seeds, leaves, and buds and varies by age, 
location, and season (Giesen 1998, p. 4). They forage on the ground and 
within the vegetation layer (Jones 1963b, p. 22) and are known to 
consume a variety of invertebrate and plant materials. For example, in 
New Mexico, Smith (1979, p. 26) documented 30 different kinds of food 
items consumed by lesser prairie-chickens. In Texas, Crawford and Bolen 
(1976c, p. 143) identified 23 different plants in the lesser prairie-
chicken diet. Jones (1963a, pp. 765-766), in the Artemesia filifolia 
(sand sagebrush) dominated grasslands of Oklahoma, recorded 16 
different plant species eaten by lesser prairie-chickens.
    Lesser prairie-chicken energy demands are almost entirely derived 
from daily foraging activities rather than stored fat reserves (Giesen 
1998, p. 4). Olawsky (1987, p. 59) found that, on average, lesser 
prairie-chicken body fat reserves were less than 4.5 percent of body 
weight. Consequently, quality and quantity of food consumed can have a 
profound effect on the condition of individual birds. Inadequate food 
supplies and reduced nutritional condition can affect survival, 
particularly during harsh winters, and reproductive potential. Poor 
condition can lead to poor performance on display grounds, impact 
nesting success, and reduce overwinter survival. Sufficient nutrients 
and energy levels are important for reproduction and overwintering. 
Males expend energy defending territories and mating while females have 
demands of nesting, incubation, and any renesting. Reduced condition 
can lead to smaller clutch sizes. Because lesser prairie-chicken diets 
vary considerably by age, season, and habitat type and quality, habitat 
alteration can influence availability of certain foods. While not as 
critical for adults, presence of forbs and associated insect 
populations can be very important for proper growth and development of 
chicks and poults.
    Generally, chicks and young juveniles tend to forage almost 
exclusively on insects, such as grasshoppers and beetles, and other 
animal matter while adults tend to consume a higher percentage of 
vegetative material (Giesen 1998, p. 4). The majority of the published 
diet studies have been conducted in the southwestern portions of the 
historical range where the Quercus havardii (shinnery oak) dominated 
grasslands are prevalent. Throughout their range, when available, 
lesser prairie-chickens will use cultivated grains, such as Sorghum 
vulgare (grain sorghum) and Zea mays (corn), during the fall and winter 
months (Snyder 1967, p. 123; Campbell 1972, p. 698; Crawford and Bolen 
1976c, pp. 143-144; Ahlborn 1980, p. 53; Salter et al. 2005, pp. 4-6). 
However, lesser prairie-chickens tend to predominantly rely on 
cultivated grains when production of natural foods, such as acorns and 
grass and forb seeds are deficient (Copelin 1963, p. 47; Ahlborn 1980, 
p. 57).
    Food availability for gamebird young is most critical during the 
first 20 days (3 weeks) post-hatching when rapid growth is occurring 
(Dobson et al. 1988, p. 59). Diet of lesser prairie-chicken chicks less 
than 5 weeks of age is entirely composed of insects and similar animal 
matter. Specifically, diet of chicks in New Mexico that were less than 
2 weeks of age was 80 percent treehoppers (Mebracidae) (Davis et al. 
1979, p. 71; Davis et al. 1980 p. 78). Overall, chicks less than 5 
weeks of age consumed predominantly (87.7 percent) short-horned 
grasshoppers (Acrididae), treehoppers, and long-horned grasshoppers 
(Tettigonidae) (Davis et al. 1980, p. 78). Ants (Formicidae), mantids 
(Mantidae), snout beetles (Curculionidae), darkling beetles 
(Tenebrionidae), robber flies (Asilidae), and cockroaches (Blattidea) 
collectively provided the remaining 12.3 percent of the chicks' diet 
(Davis et al. 1980, p. 78). Similarly Suminski (1977, pp. 59-60) 
examined diet of chicks 2 to 4 weeks of age in New Mexico and found 
that diet was entirely composed of insects. Treehoppers, short-horned 
grasshoppers, and ants were the most significant (95 percent) items 
consumed, by volume. Insects and similar animal matter are a 
particularly prevalent component in the diet of young prairie-chickens 
(Drake 1994, pp. 31, 34, 36). Insects are high in protein (Riley et al. 
1998, p. 42), and a high-protein diet was essential in pheasants for 
normal growth and feather development (Woodward et al. 1977. p. 1500). 
Insects and other arthropods also have been shown to be extremely 
important in the diet of young sage grouse and Attwater's prairie-
chicken (Service 2010, pp. 30-31).
    Older chicks between 5 and 10 weeks of age ate almost entirely 
short-horned grasshoppers (80.4 percent) (Davis et al. 1980, p. 78). 
They also began to consume plant material during this period. Shinnery 
oak acorns, seeds of Lithospermum incisum (narrowleaf stoneseed), and 
foliage and flowers of Commelina erecta (erect dayflower) comprised 
less than 1 percent of the diet (Davis et al. 1980, p. 78). 
Correspondingly, Suminski (1977, pp. 59, 61) observed that chicks 
between 6 and 10 weeks of age had begun to consume very small 
quantities (1.3 percent by volume) of plant material. The remainder of 
the diet was still almost entirely composed of insects. By far the most 
prevalent insect was short-horned grasshoppers (Acrididae), accounting 
for 73.9 percent of the diet (Davis et al. 1980, p. 78). As the birds 
grew, the sizes of insects eaten increased. Analysis of food habits of 
juvenile birds from 20 weeks of age and older, based on samples 
collected between August and December, revealed that 82.6 percent of 
diet was plant material by volume and 17.4 percent was invertebrates 
(Suminski 1977, p. 62). Shinnery oak acorns contributed 67 percent of 
the overall diet, by volume. Key insects included crickets (Gryllidae), 
short-horned grasshoppers,

[[Page 73842]]

mantids, and butterfly (Lepidoptera) larvae.
    Plant materials are a principal component of the diet for adult 
lesser prairie-chickens; however, the composition of the diet tends to 
vary by season and habitat type. The majority of the diet studies 
examined foods contained in the crop (an expanded, muscular pouch 
within the digestive tract of most birds that aids in breakdown and 
digestion of foods) and were conducted in habitats supporting shinnery 
oak. However, Jones (1963b, p. 20) reported on lesser prairie-chicken 
diets from sand sagebrush habitats.
    In the spring (March, April, and May), lesser prairie-chickens fed 
heavily on green vegetation (60 to 79 percent) and mast and seeds (15 
to 28 percent) (Davis et al. (1980, p. 76; Suminski 1977, p. 57). 
Insects comprised less than 13 percent of the diet primarily due to 
their relative scarcity in the spring months. Treehoppers and beetles 
were the most common types of insects found in the spring diet. The 
proportion of vegetative material provided by shinnery oak leaves, 
catkins, and acorns was high. Similarly, Doerr (1980, p. 8) also 
examined the spring diet of lesser prairie-chickens. However, he 
compared diets between areas treated with the herbicide tebuthiuron and 
untreated areas, and it is unclear whether the birds he examined came 
from treated or untreated areas. Birds collected from treated areas 
likely would have limited access to shinnery oak, possibly altering the 
observed occurrence of shinnery oak in the diet. He reported that 
animal matter was the dominant component of the spring diet and largely 
consisted of short-horned grasshoppers and darkling beetles (Doerr 
1980, pp. 30-31). Ants, ground beetles (Carabidae), and stinkbugs 
(Pentatomidae) were slightly less prevalent in the diet. Shinnery oak 
acorns and plant seeds were the least common component, by volume, in 
the diet in the Doerr (1980) studies.
    In the summer, insects become a more important component of the 
diet. In New Mexico, insects comprised over half (55.3 percent) of the 
overall summer (June, July, and August) diet with almost half (49 
percent) of the insects being short- and long-horned grasshoppers and 
treehoppers (Davis et al. 1980, p. 77). Plant material consumed was 
almost equally divided between foliage (leaves and flowers; 23.3 
percent) and mast and seeds (21.4 percent). Shinnery oak parts 
comprised 22.5 percent of the overall diet. Olawsky (1987, pp. 24, 30) 
also examined lesser prairie-chicken diets during the summer season 
(May, June, and July); however, he also compared diets between areas 
treated with tebuthiuron and untreated pastures in Texas and New 
Mexico. While the diets in treated and untreated areas were different, 
the diet from the untreated area should be representative of a typical 
summer diet. Total plant matter from birds collected from the untreated 
areas comprised 68 to 81 percent, by volume (Olawsky 1987, pp. 30-32). 
Foliage comprised 21 to 25 percent, and seeds and mast, 36 to 60 
percent, of the diet from birds collected in the untreated area. 
Shinnery oak acorns were the primary form of seeds and mast consumed. 
Animal matter comprised 19 to 32 percent of the overall diet, and 
almost all of the animal matter consisted of treehoppers and short-
horned grasshoppers (Olawsky 1987, pp. 30-32).
    Several studies have reported on the fall and winter diets of 
lesser prairie-chickens. Davis et al. (1979, pp. 70-80), Smith (1979, 
pp. 24-32), and Riley et al. (1993, pp. 186-189) all reported on lesser 
prairie-chicken food habits from southeastern New Mexico (Chaves 
County), where the birds had no access to grain fields (Smith 1979, p. 
31). They generally found that fall (October to early December) and 
winter (January and February) diets generally consist of a mixture of 
seeds, vegetative material, and insects.
    The fall diet differed between years primarily due to reduced 
availability of shinnery oak acorns (Smith 1979, p. 25). Reduced 
precipitation in the fall of 1976 was thought to have influenced acorn 
production in 1977 (Riley et al. 1993, pp. 188). When acorns were 
available, shinnery oak acorns comprised almost 62 percent, by volume, 
of the diet but less than 17 percent during a year when the acorn crop 
failed (Smith 1979, p. 26). On average, total mast and seeds consumed 
was 43 percent, vegetative material was 39 percent, and animal matter 
was 18 percent by volume of the fall diet (Davis et al. 1979, p. 76). 
Over 81 percent of the animal matter consumed was short-horned 
grasshoppers (Davis et al. 1979, p. 76).
    Crawford (1974, pp. 19-20, 35-36) and Crawford and Bolen (1976c, 
pp. 142-144) reported on the fall (mid-October) diet of lesser prairie-
chickens in west Texas over a 3-year period. Twenty-three species of 
plants were identified from the crops over the course of the study. 
Plant matter accounted for 90 percent of the food present by weight and 
81 percent by volume. Grain sorghum also was prevalent, comprising 63 
percent by weight and 43 percent by volume of total diet. Alhborn 
(1980, pp. 53-58) also documented use of grain sorghum during the fall 
and winter in eastern New Mexico. The remainder of the diet (10 percent 
by weight and 19 percent by volume) was animal matter (insects only). 
Over 62 percent, by volume, of the animal matter was composed of short-
horned grasshoppers. Other insects that were important in the diet 
included darkling beetles, walking sticks (Phasmidae), and wingless 
long-horned grasshoppers (Gryllacrididae). During the fall and winter 
in eastern New Mexico, Alhborn (1980, pp. 53-58) reported that 
vegetative material from shinnery oak constituted 21 percent of the 
total diet.
    Similarly, Doerr (1980, p. 32) reported on the lesser prairie-
chickens from west Texas in the fall (October). The diet largely 
comprised animal matter (86 percent by volume) with short-horned 
grasshoppers contributing 81 percent by volume of the total diet. 
Stinkbugs also were prevalent in the diet. Foliage was the least 
important component, consisting of only 2.5 percent by volume. Seeds 
and acorns comprised 11 percent of the diet and consisted entirely of 
shinnery oak acorns and seeds of Linum rigidum (stiffstem flax).
    Shinnery oak acorns (69 percent) and annual buckwheat (14 percent) 
were the primary components of the winter (January and February) diet 
of lesser prairie-chickens in southeastern New Mexico (Riley et al. 
1993, p. 188). Heavy selection for acorns in winter was attributed to 
need for a high energy source to help sustain body temperature in cold 
weather (Smith 1979, p. 28). Vegetative matter was about 26 percent of 
overall diet, by volume, with 5 percent of the diet consisting of 
animal matter, almost entirely comprising ground beetles (Carabidae) 
(Davis et al. 1979, p. 78).
    In contrast to the above studies, Jones (1963b, p. 20) and Doerr 
(1980, p. 8) examined food items present in the droppings rather than 
from the crops. Although this approach is valid, differential digestion 
of the food items likely overemphasizes the importance of indigestible 
items and underrepresents occurrence of foods that are highly 
digestible (Jones 1963b, p. 21; Doerr 1980, pp. 27, 33). Jones' study 
site was located in the sand sagebrush dominated grasslands in the more 
northern portion of the historical range where shinnery oak was 
unavailable. However, Doerr's study site was located in the shinnery 
oak dominated grasslands of the southwest Texas panhandle.
    In the winter (December through February), where Rhus trilobata 
(skunkbush sumac) was present, Jones (1963b, pp. 30, 34) found lesser 
prairie-chickens primarily used sumac buds

[[Page 73843]]

and foliage of sumac, sand sagebrush, and Gutierrezia sarothrae (broom 
snakeweed), particularly when snow was on the ground. Small annual 
plants present in the diet were Vulpia (Festuca) octoflora (sixweeks 
fescue), annual buckwheat, and Evax prolifera (big-headed evax; 
bigheaded pygmycudweed) (Jones 1963b, p. 30). Grain sorghum wasn't used 
to any appreciable extent, particularly when skunkbush sumac was 
present, but was eaten when available. Relatively few insects were 
available during the winter period. However, beetles were consumed 
throughout the winter season and grasshoppers were important in 
December. Doerr (1980, p. 28) found grasshoppers, crickets, ants, and 
wasps were the most commonly observed insects in the winter diet. 
Foliage from sand sagebrush and Cryptantha cinerea (James' cryptantha) 
was prevalent, but shinnery oak acorns were by far the most significant 
plant component detected in the winter diet.
    In the spring (March through May), lesser prairie-chickens used 
seeds and foliage of early spring annuals such as Viola bicolor (johnny 
jumpup) and Silene antirrhina (sleepy catchfly) (Jones 1963b, p. 49). 
Skunkbush sumac continued to be an important component of the diet. 
Insect use increased as the spring season progressed. Doerr (1980, p. 
29) also observed that grasshoppers and crickets were prevalent in the 
spring diet. However, foliage and acorns of shinnery oak were more 
abundant in the diet than any other food item.
    In the summer (June through August), lesser prairie-chickens 
continued to use sumac and other plant material, but insects dominated 
the diet (Jones 1963b. pp. 64-65). Grasshoppers were the principal item 
found in the diet, but beetles were particularly favored in shrubby 
habitats. Similarly, Doerr (1980, p. 25) found grasshoppers and 
crickets were the most important component of the summer diet followed 
in importance by beetles. Jones (1963b, pp. 64-65) reported fruits from 
skunkbush sumac to be the most favored plant material in the diet. 
Doerr (1980, p. 25) found James cryptantha and erect dayflower were the 
two most important plants in the diet in his study. Insects remained a 
principal food item in the fall (September through November), at least 
until November when plant foods, such as Cyperus schweinitzii 
(flatsedge) and Ambrosia psilostachya (western ragweed) became more 
prevalent in the diet (Jones 1963b, pp. 80-81).
    Little is known regarding the specific water requirements of the 
lesser prairie-chicken, but their distribution does not appear to be 
influenced by the presence of surface water. Total annual precipitation 
across the range of the lesser prairie-chicken varies, on average, from 
roughly 63 cm (25 in) in the eastern portions of the historical range 
to as little as 25 cm (10 in) in the western portions of the range. 
Consequently, few sources of free-standing surface water existed in 
lesser prairie-chicken historical range prior to settlement. Lesser 
prairie-chickens likely rely on food sources and consumption of dew to 
satisfy their metabolic moisture requirement (Snyder 1967, p. 123; 
Hagen and Giesen 2005, unpaginated; Bidwell et al. 2002, p. 6) but will 
use surface water when it is available. Because much of the 
historically occupied range is now used for domestic livestock 
production, numerous artificial sources of surface water, such as stock 
ponds and stock tanks, have been developed throughout the region. 
Several studies have documented use of these water sources by lesser 
prairie-chickens during the spring, late summer, and fall seasons 
(Copelin 1963, p. 20; Jones 1964, p. 70; Crawford and Bolen 1973, pp. 
471-472; Crawford 1974, p. 41; Sell 1979, p. 31), and they may be 
particularly important during periods of drought (Crawford and Bolen 
1973, p. 472; Crawford 1974, p. 41). Hoffman (1963, p. 732) supported 
development of supplemental water sources (i.e., guzzlers) as a 
potential habitat improvement tool. Others, such as Davis et al. (1979, 
pp. 127-128) and Applegate and Riley (1998, p. 15) cautioned that 
creating additional surface water sources will influence grazing 
pressure and possibly contribute to degradation of habitat conditions 
for lesser prairie-chickens. Some livestock watering facilities may 
create hazardous conditions (e.g., drowning; Sell 1979, p. 30), but the 
frequency of these incidents is unknown.
    Lesser prairie-chickens have a relatively short lifespan and high 
annual mortality. Campbell (1972, p. 694) estimated a 5-year maximum 
lifespan, although an individual nearly 7 years old has been documented 
in the wild by the Sutton Avian Research Center (Sutton Center) (Wolfe 
2010). Differences in survival may be associated with sex, weather, 
harvest (where allowed), age, and habitat quality. Campbell (1972, p. 
689), using 9 years of band recovery data from New Mexico, estimated 
annual mortality for males to be 65 percent. Hagen et al. (2005, p. 82) 
specifically examined survival in male lesser prairie-chickens in 
Kansas and found apparent survival varied by year and declined with 
age. Annual mortality was estimated to be 55 percent (Hagen et al. 
2005, p. 83). Male survival may be lower during the breeding season due 
to increased predation or costs associated with territorial defense 
while lekking (Hagen et al. 2005, p. 83). In female lesser prairie-
chickens, Hagen et al. (2007, p. 522) estimated that annual mortality 
in two remnant patches of native sand sagebrush prairie near Garden 
City, Finney County, Kansas was about 50 percent at a study site 
southwest of Garden City and about 65 percent at a study site southeast 
of Garden City).
    Adult annual survival in Texas apparently varied by habitat type. 
In sand sagebrush habitat, survival was estimated to be 0.52, whereas 
survival was only 0.31 in shinnery oak habitat (Lyons et al. 2009, p. 
93). For both areas, survival was about 4 percent lower during the 
breeding season than during the nonbreeding period (Lyons et al. 2009, 
p. 93). Hagen et al. (2007, p. 522) also reported lower survival during 
the reproductive season (31 percent mortality) compared to the 
nonbreeding season (23 percent mortality) in Kansas. However, survival 
times did not differ between sand sagebrush habitats in Oklahoma and 
shinnery oak habitats in New Mexico (Patten et al. 2005a, p. 1274). 
Birds occupying sites with greater than 20 percent shrub cover survived 
longer than those in areas with less dense shrub cover (Patten et al. 
2005a, p. 1275).
    The preferred habitat of the lesser prairie-chicken is native 
short- and mixed-grass prairies having a shrub component dominated by 
Artemesia filifolia (sand sagebrush) or Quercus havardii (shinnery oak) 
(hereafter described as native rangeland) (Donaldson 1969, pp. 56, 62; 
Taylor and Guthery 1980a, p. 6; Giesen 1998, pp. 3-4). Small shrubs 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). Historically, trees and other tall woody vegetation were 
largely absent from these grassland ecosystems, except in canyons and 
along water courses. Landscapes supporting less than 63 percent native 
rangeland appear incapable of supporting self-sustaining lesser 
prairie-chicken populations (Crawford and Bolen 1976a, p. 102).
    Outside of the grasslands in Kansas, lesser prairie-chickens are 
primarily found in the sand sagebrush dominated rangelands of Colorado, 
Kansas, Oklahoma, and Texas, and in the shinnery oak-bluestem 
grasslands of

[[Page 73844]]

New Mexico, Oklahoma, and Texas. Sand sagebrush is a 0.6- to 1.8-m (2- 
to 6-ft) tall shrub that occurs in 11 States of the central and western 
United States (Shultz 2006, p. 508). Within the central and southern 
Great Plains, sand sagebrush is often a dominant species on sandy soils 
and may exhibit a foliar cover of 20 to 50 percent (Collins et al. 
1987, p. 94; Vermeire 2002, p. 1). Sand-sage shrublands have been 
estimated to occupy some 4.8 million ha (11.8 million ac) in the 
central and southern Great Plains (Berg 1994, p. 99).
    The shinnery oak vegetation type is endemic to the southern great 
plains and is estimated to have historically covered an area of 2.3 
million ha (over 5.6 million ac), although its current range has been 
considerably reduced through eradication (Mayes et al. 1998, p. 1609). 
The distribution of shinnery oak overlaps much of the historical lesser 
prairie-chicken range in New Mexico, Oklahoma, and Texas (Peterson and 
Boyd 1998, p. 2). Shinnery oak is a rhizomatous (a horizontal, usually 
underground stem that often sends out roots and shoots from its nodes) 
shrub that reproduces slowly and does not invade previously unoccupied 
areas (Dhillion et al. 1994, p. 52). Mayes et al. (1998, p. 1611) 
documented that a single rhizomatous shinnery oak can occupy an area 
exceeding 7,000 square meters (sq m) (75,300 square feet (sq ft)). 
While not confirmed through extensive research throughout the plant's 
range, it has been observed that shinnery oak in some areas multiplies 
by slow rhizomatous spread and eventual fracturing of underground stems 
from the original plant. In this way, single clones have been 
documented to occupy up to 81 ha (200 ac) over an estimated timeframe 
of 13,000 years (Cook 1985, p. 264; Anonymous 1997, p. 483), making 
shinnery oak possibly the largest and longest-lived plant species in 
the world.
    Within the historical range of the species, the USDA's CRP, 
administered by the Farm Services Administration, has promoted the 
establishment and conservation of certain grassland habitats. 
Originally funded as a mechanism to reduce erosion from highly erodible 
soils, the program has since become a means to at least temporarily 
retire any environmentally sensitive cropland from production and 
establish vegetative cover on that land. Initially, many types of 
grasses were approved for use as permanent vegetative cover, including 
several that are introduced or nonnative. As the program changed and 
efforts to establish more environmentally beneficial grasses gained 
momentum, the use of native grasses became more prevalent. In Kansas in 
particular, much of the vegetative cover established through the CRP 
within the historical range of the lesser prairie-chicken was a mix of 
native warm-season grasses such as Schizachyrium scoparium (little 
bluestem), Bouteloua curtipendula (sideoats grama), and Panicum 
virgatum (switchgrass) (Rodgers and Hoffman 2005, p. 120). These 
grasses are important components of lesser prairie-chicken habitat and 
have led to reoccupation of large areas of the historical range in 
western Kansas by lesser prairie-chickens, particularly north of the 
Arkansas River.
    In other areas, nonnative grasses were used that provided limited 
to no habitat value for the lesser prairie-chicken. Exotic old world 
bluestems and Eragrostis curvula (weeping lovegrass) were extensively 
seeded in CRP tracts in Texas, New Mexico, and Oklahoma (Haufler et al. 
2012, p. 17). For example, about 70 to 80 percent of the original CRP 
seedings in eastern New Mexico consisted of dense, single-species 
stands of weeping lovegrass, Bothriochloa bladhii (Caucasian bluestem), 
or B. ischaemum (yellow bluestem) (Rodgers and Hoffman 2005, p. 122). 
Consequently these areas contributed very little to lesser prairie-
chicken conservation as they provide poor-quality nesting habitat. As 
these nonnative grasslands have matured, some species of native grasses 
and shrubs are beginning to reestablish within these fields. Although 
these areas still have limited habitat value for lesser prairie-
chickens, the species is occasionally using these older stands of grass 
for roosting and nesting (Rodgers and Hoffman 2005, p. 122). Where CRP 
lands support the suitable vegetative structure and composition 
required by lesser prairie-chickens, these fields can provide suitable, 
but likely temporary, habitat. More information on the CRP program is 
provided in the sections that follow.
    Leks are characterized by areas of sparse vegetation and are 
generally located on elevated features, such as ridges or grassy knolls 
(Giesen 1998, p. 4). Vegetative cover characteristics, primarily height 
and density, may have a greater influence on lek establishment than 
elevation (Giesen 1998, p. 4). Copelin (1963, p. 26) observed display 
grounds within short grass meadows of valleys where sand sagebrush was 
tall and dense on the adjacent ridges. Early spring fires also 
encouraged lek establishment when vegetation likely was too high (0.6 
to 1.0 m (2.0 to 3.3 ft)) to facilitate displays (Cannon and Knopf 
1979, pp. 44-45). Several authors, as discussed in Giesen (1998, p. 4), 
observed that roads, oil and gas pads, and similar forms of human 
disturbance create habitat conditions that may encourage lek 
establishment. However, Taylor (1979, p. 707) emphasized that human 
disturbance, which is often associated with these artificial lek sites, 
is detrimental during the breeding season and did not encourage 
construction of potential lek sites in areas subject to human 
disturbance. Giesen (1998, p. 9) reported that hens usually nest and 
rear broods within 3.4 km (1.7 mi) of leks and may return to nest in 
areas of previously successful nests (Riley 1978, p. 36). Giesen 
(1994a, pp. 97-98) and Hagen and Giesen (2005, unpaginated) also 
reported that hens often nest closer to a lek other than the one on 
which they mated.
    Typical nesting habitat can be described as native rangeland, 
although there is some evidence that the height and density of forbs 
(broad-leaved herb other than a grass) and residual grasses is greater 
at nesting locations than on adjacent rangeland (Giesen 1998, p. 9). 
Nests are often located on north and northeast facing slopes as 
protection from direct sunlight and the prevailing southwest winds 
(Giesen 1998, p. 9). Giesen (1998, p. 9) reports that habitat used by 
young is similar to that of adults, and the daily movement of the 
broods is usually 300 m (984 ft) or less. After the broods break up, 
the juveniles form mixed flocks with adult birds (Giesen 1998, p. 9), 
and juvenile habitat use is similar to that of adult birds. Giesen 
(1998, p. 4) reports that wintering habitat is similar to that used for 
breeding with the exception that small grain fields are used more 
heavily during this period than during the breeding season. Habitats 
used by broods had greater total biomass of invertebrates and forb 
cover than areas not frequented by broods in Kansas, emphasizing the 
importance of forbs in providing the invertebrate populations used by 
young lesser prairie-chickens (Jamison et al. 2002, pp. 520, 524).
    Home range and dispersal distances of lesser prairie-chickens are 
indicative of their requirement for large blocks of interconnected, 
ecologically diverse native grassland. As reported by Giesen (1998, p. 
11) and Taylor and Guthery (1980b, p. 522), a single lesser prairie-
chicken may have a home range (geographic area to which an organism 
typically confines its activity) of 211 ha (512 ac) to 1,945 ha (4,806 
ac). More recently, studies in Kansas demonstrated some birds may move 
as much as 50 km (31 mi) from their point of capture (Hagen et al. 
2004, p. 71). While some overlap in home ranges is

[[Page 73845]]

expected, rarely would those home ranges overlap completely due to 
competition for space, food, and other resources. Taylor and Guthery 
(1980a, p. 11) used lesser prairie-chicken movements in west Texas to 
estimate the area needed to meet the minimum requirements of a lek 
population. A contiguous area of suitable habitat encompassing at least 
32 sq km (12 sq mi or 7,900 ac) would support about 90 percent of the 
annual activity associated with a given lek and an area of 72 sq km (28 
sq mi or 17,791 ac) would include all of the annual activity associated 
with a lek except for some movements of juveniles (Taylor and Guthery 
(1980a, p. 11). Bidwell et al. (2002. p. 3) conclude that at least 
101.2 sq km (39 sq mi or 25,000 ac) of contiguous high-quality habitat 
is needed to maintain a sustainable population of lesser prairie-
chickens. Because lesser prairie-chickens typically nest and rear their 
broods in proximity to a lek other than the one used for mating (Giesen 
1998, p. 9), a complex of two or more leks is likely the very minimum 
required to sustain a viable lesser prairie-chicken population. Hagen 
et al. (2004, p. 76) recommended that lesser prairie-chicken management 
areas be at least 4,096 sq km (1,581 sq mi or 1,012,140 ac) in size. 
Management areas of this size would incorporate the longest-known 
movements of individual birds and be large enough to maintain healthy 
lesser prairie-chicken populations despite the presence of potentially 
large areas of unsuitable habitat.
Historical Range and Distribution
    Prior to description by Ridgeway in 1885, most observers did not 
differentiate between the lesser and greater prairie-chicken. 
Consequently, estimating historical abundance and occupied range is 
difficult. Historically, the lesser prairie-chicken is known to have 
occupied native rangeland in portions of southeastern Colorado (Giesen 
1994b, pp. 175-182), southwestern Kansas (Baker 1953, p. 9; Schwilling 
1955, p. 10), western Oklahoma (Duck and Fletcher 1944, p. 68), the 
Texas panhandle (Henika 1940, p. 15; Oberholser 1974, p. 268), and 
eastern New Mexico (Ligon 1927, pp. 123-127).
    Lesser prairie-chickens also have been documented from Nebraska, 
based on at least four specimens known to have been collected near 
Danbury in Red Willow County during the 1920s (Sharpe 1968, p. 50). 
Sharpe (1968, pp. 51, 174) considered the occurrence of lesser prairie-
chickens in Nebraska to be the result of a short-lived range expansion 
facilitated by settlement and cultivation of grain crops. Lesser 
prairie-chickens are not currently believed to occur in Nebraska. 
Sharpe did not report any confirmed observations since the 1920s 
(Sharpe 1968, entire), and no sightings have been documented despite 
searches over the last 5 years in southwestern Nebraska (Walker 2011). 
Therefore, Nebraska is generally considered outside the historical 
range of the species.
    Based on a single source, Crawford (1974, p. 4) reported that the 
lesser prairie-chicken was successfully introduced to the island of 
Niihau in the State of Hawaii. Prairie-chickens were known to have been 
released on Niihau, a privately owned island, in 1934 (Fisher 1951, p. 
37), but the taxonomic identity of those birds has not ever been 
confirmed. Schwartz and Schwartz (1949, p. 120) believed that these 
birds were indeed lesser prairie-chickens. Fisher and members of his 
expedition did observe at least eight individual prairie-chickens 
during a visit to Niihau in 1947, but no specimens were collected due 
to their scarcity and the landowner's requests (Fisher 1951, pp. 33-34, 
37). Consequently, the specific identity of these birds could not be 
confirmed, and their current status on the island remains unknown 
(Pratt et al. 1987, p. 324; Pyle and Pyle 2009, p. 5). Similarly, 
Jeschke and Strayer (2008, p. 127) indicate that both lesser and 
greater prairie-chickens were introduced to parts of Europe, but both 
species failed to become established there. Although we do not believe 
that either greater or lesser prairie-chickens still persist in Hawaii 
or Europe, we request that any recent information on the status of 
lesser prairie-chickens in either Hawaii or Europe be provided to us 
during the comment period.
    Johnsgard (2002, p. 32) estimated the maximum historical range of 
the lesser prairie-chicken to have encompassed some 260,000 to 388,500 
sq km (100,000 to 150,000 sq mi), with about two-thirds of the 
historical range occurring in Texas. Taylor and Guthery (1980a, p. 1, 
based on Aldrich 1963, p. 537) estimated that, by the 1880s, the area 
occupied by lesser prairie-chicken was about 358,000 sq km (138,225 sq 
mi), and, by 1969, they estimated the occupied range had declined to 
roughly 125,000 sq km (48,263 sq mi) due to widespread conversion of 
native prairie to cultivated cropland. Taylor and Cuthery (1980a, p. 4) 
estimated that, by 1980, the occupied range encompassed only 27,300 sq 
km (10,541 sq mi), representing a 90 to 93 percent reduction in 
occupied range since pre-European settlement and a 92 percent reduction 
in the occupied range since the 1880s.
    In 2007, cooperative mapping efforts by species experts from the 
Colorado Parks and Wildlife (CPW) (formerly Colorado Division of 
Wildlife), Kansas Department of Wildlife, Parks and Tourism (KDWPT) 
(formerly Kansas Department of Wildlife and Parks), New Mexico 
Department of Game and Fish (NMDGF), Oklahoma Department of Wildlife 
Conservation (ODWC), and Texas Parks and Wildlife Department (TPWD), in 
cooperation with the Playa Lakes Joint Venture, reestimated the maximum 
historical and occupied ranges. They determined the maximum occupied 
range, prior to European settlement, to have been approximately 456,087 
sq km (176,096 sq mi) (Playa Lakes Joint Venture 2007, p. 1). The 
approximate historical range, by State, based on this cooperative 
mapping effort is the following: 21,911 sq km (8,460 sq mi) in 
Colorado; 76,757 sq km (29,636 sq mi) in Kansas; 52,571 sq km (20,298 
sq mi) in New Mexico; 68,452 sq km (26,430 sq mi) in Oklahoma; and 
236,396 sq km (91,273 sq mi) in Texas. Since 2007, the CPW slightly 
expanded the historical range in Colorado, based on new information. 
The total maximum historically occupied range, based on this 
adjustment, is now estimated to be about 466,998 sq km (180,309 sq mi).
Current Range and Distribution
    The lesser prairie-chicken still occurs within the States of 
Colorado, Kansas, New Mexico, Oklahoma, and Texas (Giesen 1998, p. 3). 
During the 2007 mapping effort (Playa Lakes Joint Venture 2007, p. 1; 
Davis et al. 2008, p 19), the State conservation agencies estimated the 
current occupied range encompassed 65,012 sq km (25,101 sq mi). The 
approximate occupied range, by State, based on this cooperative mapping 
effort is 4,216 sq km (1,628 sq mi) in Colorado; 29,130 sq km (11,247 
sq mi) in Kansas; 8,570 sq km (3,309 sq mi) in New Mexico; 10,969 sq km 
(4,235 sq mi) in Oklahoma; and 12,126 sq km (4,682 sq mi) in Texas.
    Since 2007, the occupied and historical range in Colorado and the 
occupied range in Kansas have been adjusted to reflect new information. 
The currently occupied range in Colorado is now estimated to be 4,456 
sq km (1,720 sq mi), and, in Kansas, the lesser prairie-chicken is now 
thought to occupy about 34,479 sq km (13,312 sq mi). In Kansas, the 
adjustment was due to expansion of lesser prairie-chicken populations 
in Ellis, Graham, Sheridan, and Trego Counties. The total estimated 
occupied range is now believed to encompass

[[Page 73846]]

some 70,601 sq km (27,259 sq mi). The currently occupied range now 
represents roughly 16 percent of the revised historical range. This 
value is a close approximation because a small portion of the expanded 
range in Kansas lies outside the estimated maximum historical range and 
was not included in this analysis. Considering there are historical 
records from Nebraska, the maximum historical range currently in use is 
likely smaller than the maximum that would exist if the temporarily 
occupied range in Nebraska was included in the analysis.
    The overall distribution of lesser prairie-chicken within all 
States except Kansas has declined sharply, and the species is generally 
restricted to variously sized, often highly fragmented parcels of 
untilled native rangeland (Taylor and Guthery 1980a, pp. 2-5) or areas 
with significant CRP enrollments that were initially seeded with native 
grasses (Rodgers and Hoffman 2005, pp. 122-123). The estimated current 
occupied range, based on cooperative mapping efforts described above, 
and as derived from calculations of the area of each mapped polygon 
using geographical information software, represents about an 84 percent 
reduction in overall occupied range since pre-European settlement.

            Table 1--Estimated Historical and Current Occupied Lesser Prairie-Chicken Range by State
             State                Historical range     Current range   -----------------------------------------
                                                                             Historical            Current
Colorado.......................  6 counties........  4 counties.......       21,910.9 sq km        4,216.5 sq km
                                                                            (8,459.8 sq mi)      (1,628.0 sq mi)
Kansas.........................  38 counties.......  35 counties......       76,757.4 sq km       29,130.2 sq km
                                                                           (29,636.2 sq mi)     (11,247.2 sq mi)
New Mexico.....................  12 counties.......  7 counties.......       52,571.2 sq km        8,570.1 sq km
                                                                           (20,297.9 sq mi)      (3,308.9 sq mi)
Oklahoma.......................  22 counties.......  8 counties.......       68,452.1 sq km       10,969.1 sq km
                                                                           (26,429.5 sq mi)      (4,235.2 sq mi)
Texas..........................  34 counties.......  13 counties *....      236,396.2 sq km       12,126.5 sq km
                                 (1940s-50s).......                        (91,273.1 sq mi)      (4,682.1 sq mi)
    TOTAL......................  107 counties......  67 counties......      456,087.8 sq km       65,012.4 sq km
                                                                          (176,096.5 sq mi)     (25,101.4 sq mi)
* Timmer (2012, p. 36) only observed lesser prairie-chickens in 12 counties.

Population Estimates
    Very little information is available regarding the size of lesser 
prairie-chicken populations prior to 1900. Once the five States 
supporting lesser prairie-chickens were officially opened for 
settlement beginning in the late 1800s, settlement occurred quickly and 
the landscape began to change rapidly. Numbers of lesser prairie-
chickens likely changed rapidly as well. Despite the lack of conclusive 
information on population size, the lesser prairie-chicken was 
reportedly quite common throughout its range in Colorado, Kansas, New 
Mexico, Oklahoma, and Texas in the early twentieth century (Bent 1932, 
pp. 280-281,283; Baker 1953, p. 8; Bailey and Niedrach 1965, p. 51; 
Sands 1968, p. 454; Fleharty 1995, pp. 38-44; Robb and Schroeder 2005, 
p. 13). Litton (1978, p. 1) suggested that as many as two million birds 
may have occurred in Texas alone prior to 1900. By the 1930s, the 
species had begun to disappear from areas where it had been considered 
abundant, and the decline was attributed to extensive cultivation, 
overgrazing by livestock, and drought (Bent 1932, p. 280). Populations 
were nearly extirpated from Colorado, Kansas, and New Mexico, and were 
markedly reduced in Oklahoma and Texas (Baker 1953, p. 8; Crawford 
1980, p. 2).
    Rangewide estimates of population size were almost nonexistent 
until the 1960s and likely corresponded with more frequent and 
consistent efforts by the States to monitor lesser prairie-chicken 
populations. Although lesser prairie-chicken populations can fluctuate 
considerably from year to year in response to variable weather and 
habitat conditions, generally the overall population size has continued 
to decline from the estimates of population size available in the early 
1900s (Robb and Schroeder 2005, p. 13). By the mid-1960s, Johnsgard 
(1973, p. 281) estimated the total rangewide population to be between 
36,000 and 43,000 individuals. In 1980, the estimated rangewide fall 
population size was thought to be between 44,400 and 52,900 birds 
(Crawford 1980, p. 3). Population size in the fall is likely to be 
larger than population estimates derived from spring counts due to 
recruitment that occurs following the nesting season. By 2003, the 
estimated total rangewide population was 32,000 birds, based on 
information provided by the Lesser Prairie-Chicken Working Group (Rich 
et al. 2004, unpaginated). Prior to the implementation of a rangewide 
survey effort in 2012, the best available population estimates indicate 
that the lesser prairie-chicken population likely would be 
approximately 45,000 birds or less (see Table 2). This estimate is a 
rough approximation of the maximum population size and should not be 
considered as the actual current population size. Although the estimate 
uses the most current information available, population estimates for 
some States have not been determined in several years and reported 
values may not represent actual population sizes. For example, the 
values reported for Colorado and Oklahoma were published in 2000 and 
recent estimates of total population size for these States have not 
been determined. The aerial surveys conducted in 2012, as explained 
below, provide the best estimate of current population size.

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

[[Page 73847]]

    In the spring (March 30 to May 3) of 2012, the States, in 
conjunction with the Western Association of Fish and Wildlife Agencies, 
implemented a rangewide sampling framework and survey methodology using 
small aircraft. This aerial survey protocol was developed to provide a 
more consistent approach for detecting rangewide trends in lesser 
prairie-chicken population abundance across the occupied range. The 
goal of this survey was to estimate the abundance of active leks and 
provide information that could be used to detect trends in lek 
abundance over time. The sampling framework used 15-by-15-km (9-by-9-
mi) grid cells overlapping the estimated occupied range, as existed in 
2011, plus a 7.5-km (4.6-mi) buffer. Additional information on the 
survey approach is provided in McDonald et al. 2011, entire. Another 
survey is planned for the spring of 2013, provided funding is 
available. We intend to incorporate those results, subject to 
availability, into our final determination.
    The aerial survey study area was divided into four regions that 
encompassed the estimated occupied range of the lesser prairie-chicken. 
These regions were delineated based on habitat type and results grouped 
by individual State were not provided. The four regional groupings were 
the Shinnery Oak Prairie Region of eastern New Mexico and southwest 
Texas; the Sand Sagebrush Prairie Region located in southeastern 
Colorado, southwestern Kansas, and western Oklahoma Panhandle; the 
Mixed Grass Prairie Region located in the northeastern Texas panhandle, 
northwestern Oklahoma, and south-central Kansas; and the Short Grass/
CRP Mosaic in northwestern Kansas and eastern Colorado. During surveys 
of the 264 blocks selected, 40 lesser prairie-chicken leks, 6 mixed 
leks comprised of both lesser and greater prairie-chickens, and 100 
non-lek aggregations of lesser prairie-chickens were observed (McDonald 
et al. 2012, p. 15). For this study, an active lek was defined as 
having five or more birds per lek. If fewer than five individual birds 
were observed, ground surveys were conducted of those bird groups to 
determine if lekking birds were present. If not, those areas were 
classified as ``non-leks''. After the survey observations were adjusted 
to account for probability of detection, some 3,174 lesser prairie-
chicken leks were estimated to occur over the entire occupied range 
(McDonald et al. 2012, p. 18). Another 441 mixed leks, consisting of 
both lesser and greater prairie-chickens, were estimated to occur 
within the occupied range. These mixed leks were limited to the Short 
Grass/CRP Mosaic region where the range of the two species overlaps. 
Using the respective average group size, by each identified region, an 
estimate of the total number of lesser prairie-chickens and lesser/
greater prairie-chicken hybrids could be derived (McDonald et al. 2012, 
p. 20). The total estimated abundance of lesser prairie-chickens was 
37,170 individuals, with the number of hybrids estimated to be 309 
birds (McDonald et al. 2012, p. 21). The estimated total number of 
lesser prairie-chicken leks and population size, by habitat region, are 
as follows: Shinnery Oak Prairie Region--428 leks and 3,699 birds; Sand 
Sagebrush Prairie Region--105 leks and 1,299 birds; Mixed Grass Prairie 
Region--877 leks and 8,444 birds; and the Short Grass/CRP Mosaic 
Region--1,764 leks and 23,728 birds (McDonald et al. 2012, pp. 20, 23).
State-by-State Information on Population Status
    Each of the State conservation agencies within the occupied range 
of the lesser prairie-chicken provided us with information regarding 
the current status of the lesser prairie-chicken within their 
respective States, and most of the following information was taken 
directly from agency reports, memos, and other status documents. 
Population survey data are collected from spring lek surveys in the 
form of one or both of the following indices: Average lek size (i.e., 
number of males or total birds per lek); or density of birds or leks 
within a given area. Most typically, the data are collected along fixed 
survey routes where the number of displaying males counted is assumed 
to be proportional to the population size, or the number of leks 
documented is assumed to be an index of population size or occupied 
range. These techniques are useful in evaluating long-term trends and 
determining occupancy and distribution but are very limited in their 
usefulness for reliably estimating population size (Johnson and Rowland 
2007, pp. 17-20). However, given existing constraints, such as 
available staff and funding, they provide the best opportunity to 
assess lesser prairie-chicken populations.
    Although each State annually conducts lesser prairie-chicken 
surveys according to standardized protocols, those protocols vary by 
State. Thus, each State can provide information relative to lesser 
prairie-chicken numbers and trends by State, but obtaining consistent 
information across the entire range is difficult given the current 
approach to population monitoring. However, in the absence of more 
reliable estimators of bird density, total counts of active leks over 
large areas were recommended as the most reliable trend index for 
prairie grouse populations such as lesser prairie-chickens (Cannon and 
Knopf 1981, p. 777; Hagen et al. 2004, p. 79). About 95 percent of the 
currently estimated occupied range occurs on privately owned land, as 
determined using the Protected Areas Database of the United States 
hosted by the U.S. Geological Survey Gap Analysis Program. This 
database describes land areas that are under public ownership and the 
extent of private ownership can be determined by subtracting the amount 
of public lands from the total land base encompassed by the occupied 
    Colorado--Lesser prairie-chickens were likely resident in six 
counties (Baca, Bent, Cheyenne, Kiowa, Kit Carson, and Prowers 
Counties) in Colorado prior to European settlement (Giesen 2000, p. 
140). At present, lesser prairie-chickens are known to occupy portions 
of Baca, Cheyenne, Prowers, and Kiowa Counties, but are not known to 
persist in Bent and Kit Carson Counties. Present delineated range 
includes portions of eastern Lincoln County although breeding birds 
have not been documented from this county. Populations in Kiowa and 
Cheyenne Counties number fewer than 100 individuals and appear to be 
isolated from other populations in Colorado and adjacent States (Giesen 
2000, p. 144). The lesser prairie-chicken has been State-listed as 
threatened in Colorado since 1973. Colorado Department of Wildlife (now 
CPW) estimated 800 to 1,000 lesser prairie-chicken in the State in 
1997. Giesen (2000, p. 137) estimated the population size, as of 2000, 
to be fewer than 1,500 breeding individuals.
    CPW has been monitoring leks annually since 1959, primarily by 
using standard survey routes (Hoffman 1963, p. 729). A new survey 
method was initiated in 2004, designed to cover a much broader range of 
habitat types and a larger geographic area, particularly to include 
lands enrolled in the CRP. The new methodology resulted in the 
discovery of more leks and the documented use of CRP fields by lesser 
prairie-chickens in Colorado. In 2011, CPW used aerial surveys in 
addition to the more traditional ground surveys in an attempt to 
identify new leks in Cheyenne County (Remington 2011).
    A total count of 161 birds and 17 active leks were detected in 2011 
(Verquer and Smith 2011, pp. 1-2). A lek is considered active when at 
least three males are observed displaying on

[[Page 73848]]

the lek. There were six active leks in Baca County, nine active leks in 
Prowers County, and two active leks in Cheyenne County. No active leks 
were detected in Kiowa County although leks have been active in this 
county as recently as 2008 (Verquer 2008, p. 1). No new active leks 
were detected in Cheyenne County. Habitat provided by CRP continues to 
be very important to persistence of birds in Prowers County.
    Since 1977, the total number of birds observed during routine 
survey efforts has varied from a high of 448 birds in 1990 to a low of 
74 birds in 2007. The general population trajectory, based on number of 
birds observed on active leks during the breeding season is declining, 
excluding information from 1992 when limited survey data were 
collected. The number of active leks remained fairly stable between 
1999 and 2006. During this period, the highest number of active leks 
recorded, 34, occurred in 2004 and again in 2006. The fewest number of 
active leks observed occurred in 2002 when 24 leks were observed. The 
average number of active leks observed between 1999 and 2006 was 30.1.
    Beginning in 2007 and continuing to present, the number of active 
leks observed has remained fairly stable. Since 2007, the highest 
recorded number of active leks was 18, which occurred in 2007. The 
fewest number of active leks observed was 13 recorded in 2009. The 
average number of active leks over this period was 16.4, roughly half 
of the average number of active leks (30) observed during the period 
between 1999 and 2006. Drought conditions observed in 2006, followed by 
severe winter weather, probably account for the decline in the number 
of lesser prairie-chickens observed in 2007 (Verquer 2007, pp. 2-3). In 
the winter of 2006-2007, heavy snowfall severely reduced food and cover 
in Prowers, southern Kiowa, and most of Baca Counties for over 60 days. 
Then, in the spring of 2008, nesting and brood rearing conditions were 
unfavorable due to drought conditions in southeastern Colorado (Verquer 
2009, p. 5).
    As a complement to CPW surveys, counts are completed on the USFS 
Comanche National Grassland in Baca County. On the Comanche National 
Grassland, the estimated area occupied by the lesser prairie-chicken 
over the past 20 years was approximately 27,373 ha (65,168 ac) 
(Augustine 2005, p. 2). Surveys conducted during 1984 to 2005 
identified 53 different leks on or immediately adjacent to USFS lands. 
Leks were identified based on the presence of at least three birds on 
the lek. Lek censuses conducted from 1980 to 2005 showed the number of 
males counted per lek since 1989 has steadily declined (Augustine 2006, 
p. 4). The corresponding population estimate, based on number of males 
observed at leks, on the Comanche National Grassland was highest in 
1988 with 348 birds and lowest in 2005 with approximately 64 birds and 
only 8 active leks (Augustine 2006, p. 4). The estimate of males per 
lek in 2005 declined more than 80 percent from that of 1988, from 174 
males per lek to 32 males per lek, respectively. In 2009, each 
historical lek was surveyed 2 to 3 times, and 4 active leks were 
observed (Shively 2009b, p. 1). A high count of 25 males was observed 
using these four leks. In the spring of 2008, five active leks and 34 
birds were observed (Shively 2009a, p. 3).
    Kansas--In the early part of the last century, lesser prairie-
chicken historical range included all or part of 38 counties, but by 
1977, the species was known to exist in only 17 counties, all located 
south of the Arkansas River (Waddell and Hanzlick 1978, pp. 22-23). 
Since 1999, biologists have documented lesser prairie-chicken expansion 
and reoccupation of 17 counties north of the Arkansas River, primarily 
attributable to favorable habitat conditions (e.g., native grasslands) 
created by implementation of the CRP in those counties. Currently, 
lesser prairie-chickens occupy approximately 34,479 sq km (13,312 sq 
mi) within all or portions of 35 counties in western Kansas. Greater 
prairie-chickens in Kansas also have expanded their range, and, as a 
result, mixed leks of both lesser prairie-chickens and greater prairie-
chickens occur within an overlap zone covering portions of 7 counties 
(2,500 sq km (965 sq mi)) in western Kansas (Bain and Farley 2002, p. 
684). Within this zone, apparent hybridization between lesser prairie-
chickens and greater prairie-chickens is now evident (Bain and Farley 
2002, p. 684). Two survey routes used by KDWPT are located within this 
overlap zone; however, hybrids have been observed on only one of those 
routes. Although hybrid individuals are included in the counts, the 
number of hybrids observed is typically less than 1 percent, or 2 to 7 
birds, of the total number of birds observed on the surveyed areas.
    Since inception of standard lesser prairie-chicken survey routes in 
1967, the number of standard survey routes has gradually increased. The 
number of standard routes currently surveyed in Kansas for lesser 
prairie-chickens is 14 and encompasses an area of 627.5 sq km (242.3 sq 
mi). Flush counts are taken twice at each lek located during the 
standard survey routes. An estimated population density is calculated 
for each route by taking the higher of the two flush counts, doubling 
that count primarily to account for females, and then dividing the 
estimated number of birds by the total area surveyed per route. The 
current statewide trend in lesser prairie-chicken abundance between 
2004 and 2009 indicates a declining population (Pitman 2011, p. 15).
    In 2006, KDWPT estimated the breeding population of lesser prairie-
chickens in the State to be between 19,700 and 31,100 individuals 
(Rodgers 2007a, p. 1). The total breeding population estimates were 
derived using the National Gap Analysis Program, where the population 
indices from each habitat type along 15 survey routes were extrapolated 
for similar habitat types throughout total occupied lesser prairie-
chicken range statewide.
    New Mexico--In the 1920s and 1930s, the former range of the lesser 
prairie-chicken in New Mexico was described as all of the sand hill 
rangeland of eastern New Mexico, from Texas to Colorado, and as far 
west as Buchanan in DeBaca County. Ligon (1927, pp. 123-127) mapped the 
breeding range at that time as encompassing portions of seven counties, 
a small subset of what he described as former range. Ligon (1927, pp. 
123-127) depicted the historical range in New Mexico as encompassing 
all or portions of 12 counties. In the 1950s and 1960s, occupied range 
was more extensive than the known occupied range in 1927 (Davis 2005, 
p. 6), indicating reoccupation of some areas since the late 1920s. 
Presently, the NMDGF reports that lesser prairie-chickens are known 
from six counties (Chaves, Curry, DeBaca, Lea, Roosevelt and Quay 
Counties) and suspected from one additional county (Eddy County). The 
occupied range of the lesser prairie-chicken in New Mexico is 
conservatively estimated to encompass approximately 5,698 sq km (2,200 
sq mi) (Davis 2006, p. 7) compared with its historical range of 22,390 
sq km (8,645 sq mi). Based on the cooperative mapping efforts conducted 
by the Playa Lakes Joint Venture and the Lesser Prairie-Chicken 
Interstate Working Group, occupied range in New Mexico was estimated to 
be 8,570 sq km (3,309 sq mi), considerably larger than the conservative 
estimate used by Davis (2006, p. 7). One possible reason for the 
difference in occupied range is that Davis (2006, p. 7) did not 
consider the known distribution to encompass any portion of Eddy County 
or southern Lea County. Approximately 59 percent of the historical 
lesser prairie-chicken

[[Page 73849]]

range in New Mexico is privately held, with the remaining historical 
and occupied range occurring on lands managed by the BLM, USFS, and New 
Mexico State Land Office (Davis 2005, p. 12).
    In the 1950s, the lesser prairie-chicken population was estimated 
at 40,000 to 50,000 individuals, but, by 1968, the population had 
declined to an estimated 8,000 to 10,000 individuals (Sands 1968, p. 
456). Johnsgard (2002, p. 51) estimated the number of lesser prairie-
chickens in New Mexico at fewer than 1,000 individuals by 2001. 
Similarly, the Sutton Center estimated the New Mexico lesser prairie-
chicken population to number between 1,500 and 3,000 individuals, based 
on observations made over a 7-year period (Wolfe 2008). Using lek 
survey data, NMDGF currently estimates the statewide lesser prairie-
chicken population to be about 6,130 birds (Beauprez 2011, p. 22). 
Based on the estimated population sizes in New Mexico since 2001, the 
population appears to be increasing slightly (Beauprez 2011, p. 22). 
Longer term trends are not available as roadside listening routes did 
not become established until 1998. Prior to that date, counts were 
conducted on some of the NMDGF Prairie-Chicken Areas or on lands under 
the jurisdiction of the BLM. The current roadside survey uses 29 
standard routes established since 1999, 10 additional routes 
established in 2003 within the northeastern part of lesser prairie-
chicken historical range, and 41 routes randomly selected from within 
the 382 townships located within the survey boundary.
    Since initiating the 10 additional northeastern routes in 2003, 
NMDGF reports that no leks have been detected in northeastern New 
Mexico. Results provide strong evidence that lesser prairie-chickens no 
longer occupy their historical range within Union, Harding, and 
portions of northern Quay Counties (Beauprez 2009, p. 8). However, a 
solitary male lesser prairie-chicken was observed and photographed in 
northeastern New Mexico by a local wildlife law enforcement agent in 
December 2007. Habitat in northeastern New Mexico appears capable of 
supporting lesser prairie-chicken, but the lack of any known leks in 
this region since 2003 suggests that lesser prairie-chicken populations 
in northeastern New Mexico, if still present, are very small.
    The core of occupied lesser prairie-chicken range in this State 
lies in east-central New Mexico (Chaves, Curry, DeBaca, Lea, and 
Roosevelt Counties). Populations in southeastern New Mexico, defined as 
the area south of U.S. Highway 380, remain low and continue to decline. 
The majority of historically occupied lesser prairie-chicken habitat in 
southeastern New Mexico occurs primarily on BLM land. Snyder (1967, p. 
121) suggested that this region is only marginally populated except 
during favorable climatic periods. Best et al. (2003, p. 232) concluded 
anthropogenic factors have, in part, rendered lesser prairie-chicken 
habitat south of U.S. Highway 380 inhospitable for long-term survival 
of lesser prairie-chickens in southeastern New Mexico. Similarly, NMDGF 
suggests that habitat quality likely limits recovery of populations in 
southeastern New Mexico (Beauprez 2009, p. 13).
    The New Mexico State Game Commission owns and manages 29 Prairie-
chicken Areas ranging in size from 10 to 3,171 ha (29 to 7,800 ac) 
within the core of occupied range in east central New Mexico. These 
Prairie-chicken Areas total 109 sq km (42 sq mi), or roughly 1.6 
percent of the total occupied lesser prairie-chicken range in New 
Mexico. Instead of the typical roadside counts, the NMDGF conducts 
``saturation'' surveys on each individual Prairie-chicken Area to 
determine the presence of lesser prairie-chicken leks and individual 
birds over the entire Prairie-chicken Area (Beauprez 2009, p. 7). 
Adjacent lands are included within these surveys, including other State 
Trust Lands, some adjacent BLM lands, and adjacent private lands. The 
Prairie-chicken Areas are important to persistence of the lesser 
prairie-chicken in New Mexico. However, considering the overall areal 
extent of the Prairie-chicken Areas and that many Prairie-chicken Areas 
are small and isolated, continued management of the surrounding private 
and Federal lands is integral to viability of the lesser prairie-
chicken in New Mexico.
    Oklahoma--Lesser prairie-chickens historically occurred in 22 
Oklahoma counties. By 1961, Copelin (1963, p. 53) reported lesser 
prairie-chickens from only 12 counties. By 1979, lesser prairie-
chickens were verified in eight counties, and the remaining population 
fragments encompassed an estimated area totaling 2,792 sq km (1,078 sq 
mi), a decrease of approximately 72 percent since 1944. At present, the 
ODWC reports lesser prairie-chickens continue to persist in eight 
counties with an estimated occupied range of approximately 950 sq km 
(367 sq mi). Horton (2000, p. 189) estimated the entire Oklahoma lesser 
prairie-chicken population numbered fewer than 3,000 birds in 2000. A 
more recent estimate has not been conducted.
    The ODWC is aware of 96 known historical and currently active leks 
in Oklahoma. During the mid-1990s, all of these leks were active. 
Survey efforts to document the number of active leks over the occupied 
range have recently been completed, but the results are currently 
    The number of roadside listening routes currently surveyed annually 
in Oklahoma has varied from five to seven over the last 20 years, and 
counts of the number of males per lek have been conducted since 1968. 
Beginning with the 2002 survey, male counts at leks were replaced with 
flush counts, which did not differentiate between the sexes of birds 
flushed from the surveyed lek (ODWC 2007, pp. 2, 6). Comparing the 
total number of males observed during survey efforts between the years 
1977 through 2001 reveals a declining trend. However, examination of 
the overall density of leks (number per sq mi), another means of 
evaluating population status of lesser prairie-chickens, over five of 
the standard routes since 1985 is stable to slightly declining. 
Information on lek density prior to 1985 was unavailable. The standard 
route in Roger Mills County was not included in this analysis because 
the lek was rarely active and has not been surveyed since 1994. A 
survey route in Woods County was included in the analysis even though 
surveys on this route did not begin until 2001. However, excluding the 
Woods County route did not alter the apparent trend. The average lek 
density since 2001 is 0.068 leks per sq mi (Schoeling 2010, p. 3). 
Between 1985 and 2000, the average lek density was 0.185 leks per sq 
mi, when the route in Roger Mills County is excluded from the analysis. 
Over the last 10 years, the density of active leks has varied from a 
low of 0.02 leks per sq km (0.05 leks per sq mi) in 2004, 2006, and 
2009, to a high of 0.03 leks per sq km (0.09 leks per sq mi) in 2005 
and 2007 (Schoeling 2010, p. 3).
    Texas--Systematic surveys to identify Texas counties inhabited by 
lesser prairie-chickens began in 1940 (Henika 1940, p. 4). From the 
early 1940s (Henika 1940, p. 15; Sullivan et al. 2000) to mid-1940s 
(Litton 1978, pp. 11-12), to the early 1950s (Seyffert 2001, pp. 108-
112), the range of the lesser prairie-chicken in Texas was estimated to 
encompass all or portions of 34 counties. Species experts considered 
the occupied range at that time to be a reduction from the 
presettlement range. By 1989, TPWD estimated occupied range encompassed 
all or portions of only 12 counties (Sullivan et al. 2000, p. 179). In 
2005, TPWD reported that the number of

[[Page 73850]]

occupied counties likely has not changed since the 1989 estimate. In 
March 2007, TPWD reported that lesser prairie-chickens were confirmed 
from portions of 13 counties (Ochiltree, Lipscomb, Roberts, Hemphill, 
Gray, Wheeler, Donley, Bailey, Lamb, Cochran, Hockley, Yoakum, and 
Terry Counties) and suspected in portions of another eight counties 
(Moore, Carson, Oldham, Deaf Smith, Randall, Swisher, Gaines, and 
Andrews Counties).
    Based on recent aerial and road surveys conducted in 2010 and 2011, 
new leks were detected in Bailey, Cochran, Ochiltree, Roberts, and 
Yoakum Counties, expanding the estimated occupied ranges in those 
counties (TPWD 2011). However, no lesser prairie-chickens were detected 
in Andrews, Carson, Deaf Smith, Oldham, or Randall Counties. Active 
leks were reported from the same 13 counties identified in 2007. 
However, in 2012, Timmer (2012, pp. 36, 125-131) only observed lesser 
prairie-chickens from 12 counties: Bailey, Cochran, Deaf Smith, Donley, 
Gray, Hemphill, Lipscomb, Ochiltree, Roberts, Terry, Wheeler, and 
Yoakum. Lesser prairie-chicken populations in Texas primarily persist 
in two disjunctive regions--the Permian Basin/Western Panhandle region 
and the Northeastern Panhandle region.
    Maximum occupied range in Texas, as of September 2007, was 
estimated to be 12,787 sq km (4,937.1 sq mi), based on habitat 
conditions in 20 panhandle counties (Davis et al. 2008, p. 23). 
Conservatively, based on those portions of the 13 counties where lesser 
prairie-chickens are known to persist, the area occupied by lesser 
prairie-chickens in Texas is 7,234.2 sq km (2,793.1 sq mi). Using an 
estimated mean density of 0.0088 lesser prairie-chickens per ac (range 
0.0034-0.0135 lesser prairie-chickens per ac), the Texas population is 
estimated at a mean of 15,730 individuals in the 13 counties where 
lesser prairie-chickens are known to occur (Davis et al. 2008, p. 24).
    Since 2007, Texas has been evaluating the usefulness of aerial 
surveys as a means of detecting leks and counting the number of birds 
attending the identified lek (McRoberts 2009, pp. 9-10). Initial 
efforts focused on measuring lek detectability and assessing the 
response of lekking birds to disturbance from survey aircraft. More 
recently, scientists at Texas Tech University used aerial surveys to 
estimate the density of lesser prairie-chicken leks and statewide 
abundance of lesser prairie-chickens in Texas. This study conducted an 
inventory of 208 survey blocks measuring 7.2 by 7.2 km (4.5 by 4.5 mi), 
encompassing some 87 percent of the occupied range in Texas during the 
spring of 2010 and 2011 (Timmer 2012, pp. 26-27, 33). Timmer (2012, p. 
34) estimated 2.0 leks per 100 sq km (0.02 leks per sq km). Previously 
reported estimates of rangewide average lek density varied from 0.10 to 
0.43 leks per sq km (Davison 1940, Sell 1979, Giesen 1991, Locke 1992 
as cited in Hagen and Giesen 2005, unpaginated). The total estimate of 
the number of leks was 293.6 and, based on the estimated number of 
birds observed using leks, the statewide population was determined to 
be 1,822.4 lesser prairie-chickens (Timmer 2012, p. 34).
Recent Trends
    In June 2012, we were provided with an interim assessment of lesser 
prairie-chicken population trends since 1997 (Hagen 2012, entire). The 
objective of this analysis was to provide an evaluation of recent 
lesser prairie-chicken population trends both rangewide and within the 
four primary habitat types (CRP-shortgrass prairie dominated landscape, 
mixed grass prairie landscape, sand sagebrush prairie landscape, and 
shinnery oak landscape) that encompass the occupied range of the 
species. The analysis employed modeling techniques intended to provide 
a more unified assessment of population trends, considering that each 
State uses slightly different methods to monitor lesser prairie-
chickens and that sampling effort has varied over time, with sampling 
efforts typically increasing in recent years. The results of this 
analysis suggest that lesser prairie-chicken population trends have 
increased since 1997.
    However, we are reluctant to place considerable weight on this 
interim assessment for several reasons. First, and perhaps most 
important, is that the analysis we were provided is a preliminary 
product. We anticipate that a more complete, and perhaps peer-reviewed, 
product would be submitted during the comment period on this proposed 
rule. Second, we have concerns with the differences in how lek counts 
are conducted and how those differences were addressed. For example, 
when the States conduct flush counts at the leks, all of the States, 
except Oklahoma, count the number of males flushed from the lek. 
However, since 1999, Oklahoma has counted all birds flushed from the 
lek and did not differentiate between males and females. Additionally, 
some of the States use numbers derived from lek counts conducted over 
large areas rather than road side listening routes. We are unsure how 
these differences in sampling methodology would influence the pooled 
trend information presented, particularly for large geographical areas 
where two different sampling methods are used in the analysis. Third, 
the trend information presents only information gathered since 1997 or 
more recently, without considering historical survey information. The 
trends evident from sampling efforts since 1997 likely reflect 
increased sampling effort following publication of the 12-month 
finding, and increased sampling effort could lead to biased results. In 
some instances, sampling methodology by agency likely varied between 
years during this time period as access to some study areas was 
restricted and new areas were established in their place. For example, 
in southwest Texas, two study areas were used until 1999, when an 
additional sampling area in Yoakum County was added. Then in 2007, the 
original Gaines County study area was dropped and a new, smaller Gaines 
County study area was established to replace the original study area. 
Similar changes occurred in the northeastern panhandle of Texas where a 
new study area in Gray County was added in 1998. These changes in 
sampling location can confound efforts to make comparisons between 
years. An explanation regarding how these changes were addressed in the 
assessment would be helpful.
    We also recognize the limitations of using lek counts to derive 
population trends over large areas (see Johnson and Rowland 2007, pp. 
17-20). Consequently, we cautioned against using available data from 
lek counts to derive rangewide population trends for similar reasons. 
Such analyses can be misleading. However, information on historical and 
recent lesser prairie-chicken population trends over large geographical 
areas would improve our analysis of the status of the species and we 
support efforts to provide a reliable, accurate analysis of rangewide 
population trends, particularly if those analytical methods are 
repeatable over time.
Summary of Status Information
    Lesser prairie-chicken populations are distributed over a 
relatively large area, and these populations can fluctuate considerably 
from year to year, a natural response to variable weather and habitat 
conditions. Changes in lesser prairie-chicken breeding populations may 
be indicated by a change in the number of birds attending a lek (lek 
size), the number of active leks, or both. Although each State conducts 
standard surveys for lesser prairie-chickens, the application of survey 
methods and effort

[[Page 73851]]

varies by State. Such factors complicate interpretation of population 
indices for the lesser prairie-chicken and may not reliably represent 
actual populations. Caution should be used in evaluating population 
trajectories, particularly short-term trends. In some instances, short-
term analyses could reveal statistically significant changes from one 
year to the next but actually represent a stable population when 
evaluated over longer periods of time. For example, increased 
attendance of males at leks may be evident while the number of active 
leks actually declined. Some recent survey indices indicate that 
population trends might be stabilizing. However, the numbers of lesser 
prairie-chickens reported per lek are considerably less than the 
numbers of birds reported during the 1970s. Population indices appear 
to have exhibited a steeper decline during these earlier periods than 
is apparent in recent years. Observed lek attendance at many leks is 
low, likely due to reduced population sizes. Where lek attendance is 
low, it is unlikely that populations will recover to historical levels. 
Estimates of historical population size also can be unreliable and lead 
to inaccurate inferences about the populations of interest. However, 
the loss and alteration, including fragmentation, of lesser prairie-
chicken habitat throughout its historical range over the past several 
decades is apparent and likely is more indicative of the status of the 
lesser prairie-chicken.

Summary of Factors Affecting the Species

    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' Thus, a species may be listed as a 
threatened species if it is likely to qualify for endangered status in 
the foreseeable future, or in other words, likely to become ``in danger 
of extinction'' within the foreseeable future. The Act does not define 
the term ``foreseeable future.'' However, in a January 16, 2009, 
memorandum addressed to the Acting Director of the Service, the Office 
of the Solicitor, Department of the Interior, concluded, ``* * * as 
used in the [Act], Congress intended the term `foreseeable future' to 
describe the extent to which the Secretary can reasonably rely on 
predictions about the future in making determinations about the future 
conservation status of the species (M-37021, January 16, 2009).''
    In considering the foreseeable future as it relates to the status 
of the lesser prairie-chicken, we considered the factors acting on the 
species and looked to see if reliable predictions about the status of 
the species in response to those factors could be drawn. We considered 
the historical data to identify any relevant existing trends that might 
allow for reliable prediction of the future (in the form of 
extrapolating the trends). We also considered whether we could reliably 
predict any future events that might affect the status of the species, 
recognizing that our ability to make reliable predictions into the 
future is limited by the variable quantity and quality of available 
    Under section 4(a)(1) of the Act, we determine whether a species is 
an endangered or threatened species because of any of the following 
five factors: (A) The present or threatened destruction, modification, 
or curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; and (E) other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination.
    After a review of the best available scientific information as it 
relates to the status of the species and the five listing factors 
described above, we have determined that the lesser prairie-chicken 
meets the definition of a threatened species (i.e., is likely to become 
in danger of extinction in the foreseeable future throughout all or a 
significant portion of its range). Following, we present a very brief 
explanation of the rationale leading to this conclusion followed by an 
in-depth discussion of the best available scientific information.
    The range of the lesser prairie-chicken has been reduced by an 
estimated 84 percent (see discussion above in ``Current Range and 
Distribution''). The primary factor responsible for the range 
contraction is habitat fragmentation due to a variety of mechanisms 
that contribute to habitat loss and alteration. This habitat loss is a 
significant threat to the lesser prairie-chicken because the species 
requires large parcels of intact native grassland and shrubland to 
maintain self-sustaining populations. Further, the life history of the 
species, primarily its lek breeding system and behavioral avoidance of 
vertical structures that increase predation risk, make it especially 
vulnerable to ongoing impacts on the landscape, especially at its 
currently reduced numbers. Finally, due to its reduced population size 
and ongoing habitat loss and degradation, the species lacks sufficient 
redundancy and resiliency to recover from present and future impacts. 
While the current status of the lesser prairie-chicken has been 
substantially compromised by historical and current threats, there 
appear to be sufficient stable populations to ensure the persistence of 
the species over the near term. Therefore, as a result of continued 
population declines predicted into the foreseeable future, the species 
is likely to become in danger of extinction in the foreseeable future.
    Following, we present our analysis of the best available 
information that has led us to this conclusion.

Habitat Fragmentation

    Spatial habitat fragmentation occurs when some form of disturbance, 
usually habitat alteration or loss, results in the separation or 
splitting apart of larger, previously contiguous, functional components 
of habitat into smaller, often less valuable, noncontiguous parcels 
(Wilcove et al. 1986, p. 237; Johnson and Igl 2001, p. 25; Franklin et 
al. 2002, entire). Fragmentation influences habitat availability in 
three primary ways: total area of available habitat; size of habitat 
patches, including edge effects; and patch isolation (Johnson and Igl 
2001, p. 25; Stephens et al. 2003, p. 101). Initially, reduction in the 
total area of available habitat (i.e., habitat loss) may be more 
significant than fragmentation and can exert a much greater effect of 
extinction (Fahrig (1997, pp. 607, 609). However, as habitat loss 
continues, the effects of fragmentation often compound effects of 
habitat loss and produce even greater population declines than habitat 
loss alone (Bender et al. 1998, pp. 517-518, 525). At the point where 
some or all of the remaining habitat fragments or patches are below 
some minimum required size, the impact of additional habitat loss, when 
it consists of inadequately sized parcels, is minimal (Herkert 1994, p. 
467). In essence, once a block of suitable habitat becomes so 
fragmented that the size of the remaining patches become biologically 
unsuitable, further habitat loss, when it consists of these unusable 
patches, is of little further consequence to the organism (Bender et 
al. 1998, p. 525).
    Both habitat loss and fragmentation correlate with an ecological 
concept known as carrying capacity. Within any given block or patch of 
habitat, carrying capacity is the maximum number of organisms that can 
be supported

[[Page 73852]]

indefinitely within that area, provided sufficient food, space, water, 
and other necessities are available, without causing degradation of the 
habitat within that patch. Theoretically, as habitat loss increases and 
the size of an area shrinks, the maximum number of individuals that 
could inhabit that particular habitat patch also would decline. 
Consequently, a reduction in the total area of available habitat can 
negatively influence biologically important characteristics such as the 
amount of space available for establishing territories and nest sites 
(Fahrig 1997, p. 603). Over time, the continued conversion and loss of 
habitats to other land uses will reduce the ability of the land to 
support historical population levels, causing a decline in population 
sizes. Where the ability to effect restoration of these habitats is 
lost, the observed reduction in fish or wildlife populations is likely 
to be permanent. Within the United States, habitat loss and degradation 
were found to have contributed to the endangerment of 85 percent of the 
species listed either as imperiled by The Nature Conservancy or 
protected under the Act, at the time of their study (Wilcove et al. 
1998, p. 609).
    Fragmentation not only contributes to overall habitat loss but also 
causes a reduction in the size of individual habitat patches and 
influences the proximity of these patches to other patches of similar 
habitat (Stephens et al. 2003, p. 101; Fletcher 2005, p. 342). Habitat 
quality within a fragment may decline as the size of the fragment 
declines, particularly where habitat quality is a function of fragment 
size (Franklin et al. 2002, p. 23). Fahrig and Merriam (1994, p. 53) 
reported that both the size and shape of the fragment have been shown 
to influence population persistence. The size of the fragment can 
influence reproductive success, survival, and movements. As the 
distance between habitat fragments increases, dispersal between the 
habitat patches may cease, impacting population persistence and perhaps 
even leading to both localized and regional extinctions (Harrison and 
Bruna 1999, p. 226; With et al. 2008, p. 3153).
    The proportion of habitat edge to interior habitat increases as the 
size of a fragment declines. The edge is the transition zone between 
the original habitat type and the land use that caused fragmentation of 
the original parcel. In contrast, the core is the area within a 
fragment that remains intact and is largely or completely uninfluenced 
by the margin or edge of the fragment. Edge habitat proliferates with 
increasing fragmentation (Sisk and Battin 2002, p. 31). The response of 
individual species to the presence of edges varies markedly depending 
on their tolerance to the edge and the nature of its effects (Sisk and 
Battin 2002, p. 38). The effects often depend on the degree of contrast 
between the habitat edge and the adjacent land use matrix. The 
transition can be abrupt or something more gradual and less harsh. Most 
typically, edges have been documented to influence movements and 
survival, particularly for species that use interior or core habitats, 
serve as points of entry for predators and parasites (such as presence 
of fences adjacent to grasslands which provide hunting perches for 
avian predators), alter microclimates, subsidize feeding opportunities 
(such as providing access to waste grains in cropland areas), and 
influence species interactions, particularly with cosmopolitan species 
that tend to be habitat generalists (Sisk and Battin 2002, p. 38).
    Fragmentation also can influence the heterogeneity or variation 
within the resulting fragment. Heterogeneity, in turn, influences the 
quality of the habitat within the fragment, with more homogeneous 
fragments generally being less valuable. Grasslands tend to be 
structurally simple and have little vertical layering. Instead, habitat 
heterogeneity tends to be largely expressed horizontally rather than 
vertically (Wiens 1974b, pp. 195-196). Prior to European settlement, 
the interaction of grazing by wild ungulates and fire created a 
shifting mosaic of vegetative patches having various composition and 
structure (Pillsbury et al. 2011, p. 2). Under these conditions, many 
grassland birds distribute their behavioral activities unevenly 
throughout their territories by nesting in one area, displaying in 
another, and foraging in still others (Wiens 1974b, p. 208). Lesser 
prairie-chickens exhibit this pattern and cue in on specific vegetation 
structure and microenvironment features depending on the specific phase 
of their life cycle. Consequently, blocks of habitat that collectively 
or individually encompass multiple successional states that comprise 
tall grasses and shrubs needed for nesting, and are in proximity to 
more open grasslands supporting forbs for brood rearing, and are 
combined with smaller areas of short grass and bare ground used for 
breeding, support all of the habitat types used by lesser prairie-
chickens throughout the year. Considering habitat diversity tends to be 
greater in larger patches, finding the appropriate mosaic of these 
features is more likely in larger fragments rather than smaller 
fragments (Helzer and Jelinski 1999, p. 1456). Such habitat 
heterogeneity is very different from habitat fragmentation. Habitat 
fragmentation occurs when the matrix separating the resulting fragments 
is converted to a use that is not considered habitat whereas habitat 
heterogeneity implies that patches each having different vegetative 
structure exist within the same contiguous block of habitat. Habitat 
heterogeneity may influence habitat quality, but it does not represent 
fragmentation (Franklin et al. 2002, p. 23).
    Isolation is another factor that influences suitability of habitat 
fragments. As habitat loss continues to progress over time, the 
remnants not only become smaller and more fragmented, they become more 
isolated from each other. When habitat patches become more isolated and 
the amount of unusable, unsuitable land use surrounding the islands of 
habitat increases, even patches of suitable quality and size may no 
longer be occupied. As fragmentation progresses, the ability of 
available dispersers to locate suitable fragments will decline. At some 
point, the amount of intervening unusable and unsuitable land 
comprising the matrix between the patches grows so wide that it exceeds 
the organism's dispersal capabilities, rendering the matrix impermeable 
to dispersal. In such instances, colonizers are unavailable to occupy 
the otherwise suitable habitat and reestablish connectivity. These 
patches may remain vacant indefinitely. While extinctions at the local 
level, and subsequent recolonization of the vacant patch, are common 
phenomena, recolonization depends on the availability of dispersing 
individuals and their ability to disperse within the broader landscape 
(Fahrig and Merriam 1994, p. 52). When the number of individuals at the 
landscape or regional level that are available to disperse declines, 
the overall population begins to decline and will, in turn, affect the 
number of individuals available to disperse. Connectivity between 
habitat patches is one means of facilitating dispersal, but the 
appropriate size or configuration of the dispersal corridors needed to 
facilitate connectivity for many species is unknown.
Causes of Habitat Fragmentation Within Lesser Prairie-Chicken Range
    A number of factors can cause or contribute to habitat 
fragmentation. Generally, fragmentation can result from the direct loss 
or alteration of habitat due to conversion to other land uses or

[[Page 73853]]

from habitat alteration which indirectly leaves the habitat in such a 
condition that the remaining habitat no longer functionally provides 
the preferred life-history requisite. Functional habitat impacts can 
include disturbances that alter the existing successional state of a 
given area, create a physical barrier that precludes use of otherwise 
suitable areas, or triggers a behavioral response by the organism such 
that otherwise suitable habitats are abandoned or no longer used. 
Fragmentation tends to be most significant when human developments are 
dispersed across the landscape rather than being concentrated in fewer 
areas. Anthropogenic causes of fragmentation tend to be more 
significant than natural causes because the organism has likely evolved 
in concert with the natural causes.
    Initially, settlement and associated land use changes had the 
greatest influence on fragmentation in the Great Plains. Knopf (1994, 
p. 249) identified four universal changes that occurred in Great Plains 
grasslands postsettlement, based on an evaluation of observations made 
by early explorers. These changes were identified as a change in the 
native grazing community, cultivation, wetland conversion, and 
encroachment of woody vegetation.
    EuroAmerican settlement of much of the Great Plains began in 
earnest with passage of the Homestead Act of 1862. Continued settlement 
and agricultural development of the Great Plains during the late 1800s 
and early 1900s clearly contributed to conversion and fragmentation of 
once open native prairies into a mosaic of varied land uses such as 
cultivated cropland, expanding cedar woodlands, and remnants of 
grassland (NRCS 1999, p. 1; Coppedge et al. 2001, p. 47; Brennan and 
Kuvlesky 2005, pp. 2-3). Changes in agricultural practices and 
advancement of modern machinery combined with an increasing demand for 
agricultural products continued to spur conversion of native prairies 
well into the mid-1900s (NRCS 1999, p. 2). Increasing human population 
densities in rural areas of the Great Plains led to construction of 
housing developments as growing cities began to expand into the 
surrounding suburban landscapes. Development and intensification of 
unsuitable land uses in these urbanizing landscapes also contributed to 
conversion and fragmentation of grasslands, further reducing richness 
and abundance of avian populations (Perlut et al. 2008, p. 3149; Hansen 
et al. 2011, p. 826). See the section on settlement below for related 
    Oil and gas development also began during the mid to late 1800s. 
Eventually, invention of the automobile in the early twentieth century 
and its rise to prominence as the primary mode of personal 
transportation stimulated increased exploration and development of oil 
and gas (Hymel and Wolfsong 2006, p. 4). Habitat loss and fragmentation 
associated with access roads, drill pads, pipelines, waste pits, and 
other components typically connected with exploration and extraction of 
oil and gas are considered to be among the most significant ecological 
impacts from oil and gas development and the impacts often extend 
beyond the actual physical structures (Weller et al. 2002, p. 2). See 
the section on energy development below for related discussion.
    As human populations continued to expand outside of existing 
suburban areas, particularly into rural regions, an increasing array of 
human features such as powerlines, highways, secondary roads, 
communication towers, and other types of infrastructure necessary to 
support these human populations appeared on the landscape (Leu et al. 
2008, p. 1119). Often these developments can degrade ecosystem 
functions and lead to fragmentation even when the overall development 
footprint is relatively small.
    Recent research demonstrates that natural vertical features like 
trees and artificial, above ground vertical structures such as power 
poles, fence posts, oil and gas wells, towers, and similar developments 
can cause general habitat avoidance and displacement in lesser prairie-
chickens and other prairie grouse (Anderson 1969, entire; Robel 2002, 
entire; Robel et al. 2004, entire; Hagen et al. 2004, entire; Pitman et 
al. 2005, entire; Pruett et al. 2009a, entire; Hagen et al. 2011 
entire). This avoidance behavior is presumably a behavioral response 
that serves to limit exposure to predation. The observed avoidance 
distances can be much larger than the actual footprint of the structure 
and appear to vary depending upon the type of structure. These 
structures can have significant negative impacts by contributing to 
further fragmentation of otherwise suitable habitats.
    Prairie grouse, like the lesser prairie-chicken, did not evolve 
with tall, vertical structures present on the landscape and, in 
general, have low tolerance for tall structures. As discussed in 
``Altered Fire Regimes and Encroachment by Invasive Woody Plants'' 
below, encroachment of trees into native grasslands preferred by lesser 
prairie-chickens ultimately renders otherwise suitable habitat 
unsuitable unless steps are taken to remove these trees. Even 
artificially erected trees can cause an avoidance response. Anderson 
(1969, pp. 640-641) observed that greater prairie-chickens abandoned 
lek territories when a 4-m (13-ft) tall coniferous wind break was 
artificially erected 52 m (170 ft) from an active lek.
    Increasingly, artificial vertical structures are appearing in 
landscapes used by lesser prairie-chickens. The placement of these 
vertical structures in open grasslands represents a significant change 
in the species' environment and is a relatively new phenomenon over the 
evolutionary history of this species. The effects of these structures 
on the life history of prairie grouse are only beginning to be 
evaluated, with similar avoidance behaviors also having been observed 
in sage grouse (75 FR 13910, March 23, 2010).
    Robel (2002, p. 23) reported that a single commercial-scale wind 
turbine creates a habitat avoidance zone for the greater prairie-
chicken that extends as far as 1.6 km (1 mi) from the structure. Lesser 
prairie-chickens likely exhibit a similar response to tall structures 
like wind turbines (Pitman et al. 2005, pp. 1267-1268). The Lesser 
Prairie-Chicken Interstate Working Group identified the need for a 
contiguous block of 52 sq km (20 sq mi) of high-quality rangeland 
habitat to successfully maintain a local population of lesser prairie-
chicken; based on this need and the fact that the majority of remaining 
populations are fragmented and isolated into islands of unfragmented, 
open prairie habitat, the Service recommended that an 8-km (5-mi) 
voluntary no-construction buffer be established around prairie grouse 
leks to account for behavioral avoidance and to protect lesser prairie-
chicken populations and habitat corridors needed for future recovery 
(Manville 2004, pp. 3-4). No lesser prairie-chickens were observed 
nesting or lekking within 0.8 km (0.5 mi) of a gas line compressor 
station, and otherwise suitable habitat was avoided within a 1.6-km (1-
mi) radius of a coal-fired power plant (Pitman et al. 2005, pp. 1267-
1268). Pitman et al. (2005, pp. 1267-1268) also observed that female 
lesser prairie-chickens selected nest sites that were significantly 
further from powerlines, roads, buildings, and oil and gas wellheads 
than would be expected at random. Specifically, they observed that 
lesser prairie-chickens seldom nested or reared broods within 
approximately 177 m (580 ft) of oil or gas wellheads, 400 m (1,312 ft) 
of electrical transmission lines, 792 m (2,600 ft) of improved roads, 
and 1,219 m (4,000 ft) of buildings; and, the

[[Page 73854]]

observed avoidance was likely influenced, at least in part, by 
disturbances such as noise and visual obstruction associated with these 
features. Similarly, Hagen et al (2004, p. 75) indicated that areas 
used by lesser prairie-chickens were significantly further from these 
same types of features than areas that were not used by lesser prairie-
chickens. They concluded that the observed avoidance was likely due to 
potential for increased predation by raptors or due to presence of 
visual obstructions on the landscape (Hagen et al. 2004, pp. 74-75).
    Robel et al. (2004, pp. 256-262) determined that habitat 
displacement associated with avoidance of certain structures by lesser 
prairie-chickens can be substantial, collectively exceeding 21,000 ha 
(53,000 ac) in a three-county area of southwestern Kansas. Using 
information on existing oil and gas wells, major powerlines (115 kV and 
larger), and existing wind turbines and proposed wind energy 
development in northwestern Oklahoma, Dusang (2011, p. 61) modeled the 
effect of these anthropogenic structures on lesser prairie-chicken 
habitat in Oklahoma. He estimated that existing and proposed 
development of these structures potentially would eliminate some 
960,917 ha (2,374,468 ac) of nesting habitat for lesser prairie-
chickens, based on what is currently known about their avoidance of 
these structures.
    Avoidance of vertical features such as trees and transmission lines 
likely is due to frequent use of these structures as hunting perches by 
birds of prey (Hagen et al. 2011, p. 72). Raptors actively seek out and 
use power poles and similar aboveground structures in expansive 
grassland areas where natural perches are limited. In typical lesser 
prairie-chicken habitat where vegetation is low and the terrain is 
relatively flat, power lines and power poles provide attractive 
hunting, loafing, and roosting perches for many species of raptors 
(Steenhof et al. 1993, p. 27). The elevated advantage of transmission 
lines and power poles serve to increase a raptor's range of vision, 
allow for greater speed during attacks on prey, and serve as 
territorial markers. While the effect of avian predation on lesser 
prairie-chickens undoubtedly depends on raptor densities, as the number 
of perches or nesting features increase, the impact of avian predation 
will increase (see separate discussion under ``Predation'' below). The 
perception that these vertical structures are associated with predation 
may cause lesser prairie-chickens to avoid areas near these structures 
even when raptor densities are low. Sensitivity to electromagnetic 
fields generated by the transmission lines may be another reason lesser 
prairie-chickens might be avoiding these areas (Fernie and Reynolds 
2005, p. 135) (see separate discussion under ``Wind Power and Energy 
Transmission Operation and Development'' below).
    Where grassland patches remained, overgrazing, drought, lack of 
fire, woody plant and exotic grass invasions, and construction of 
various forms of infrastructure impacted the integrity of the remaining 
fragments (Brennan and Kuvlesky 2005, pp. 4-5). Domestic livestock 
management following settlement tended to promote more uniform grazing 
patterns, facilitated by construction of fences, which led to reduced 
heterogeneity in remaining grassland fragments (Fuhlendorf and Engle 
2001, p. 626; Pillsbury et al. 2011, p. 2). See related discussions in 
the relevant sections below.
    This ever-escalating fragmentation and homogenization of grasslands 
contributed to reductions in the overall diversity and abundance of 
grassland-endemic birds and caused populations of many species of 
grassland-obligate birds, such as the lesser prairie-chicken to decline 
(Coppedge et al. 2001, p. 48; Fuhlendorf and Engle, 2001, p. 626). 
Fragmentation and homogenization of grasslands is particularly 
detrimental for lesser prairie-chickens who typically prefer areas 
where individual habitat needs are in close proximity to each other. 
For example, in suitable habitats, desired vegetation for nesting and 
brood rearing typically occurs within relatively short distances of the 
breeding area.
    Human-caused habitat fragmentation with its associated habitat loss 
and degradation is considered by some to be the leading threat to 
biodiversity (Hunter and Gibbs 2007, p. 182), and grasslands as a whole 
are one of the most endangered ecosystems worldwide with agricultural 
development continuing to be a primary factor (With et al. 2008, p. 
3152). Human disturbances are rapidly increasing the prevalence of 
edges in most terrestrial landscapes, and the process is not abating 
(Samson 1980a, p. 250; Sisk and Battin 2002, p. 41). The continued loss 
and conversion of grassland nesting and breeding habitat remains the 
largest threat to the future of many species of grassland birds (NRCS 
1999, p. 3). As a group, grassland nesting birds have experienced 
greater declines in population size than any other group of birds, and 
some of the most significant causes include habitat loss and 
fragmentation, changes in land use, and habitat degradation (Knopf 
1994, p. 251; Horn and Koford 2006, p. 109).
Effects of Habitat Fragmentation
    While much of the conversion of native grasslands to agriculture in 
the Great Plains was largely completed by the 1940s and has slowed in 
more recent decades, grassland bird populations continue to decline 
(With et al. 2008, p. 3153). Bird populations may initially appear 
resistant to landscape change only to decline inexorably over time 
because remaining grassland fragments may not be sufficient to prevent 
longer term decline in their populations (With et al. 2008, p. 3165). 
The decrease in patch size and increase in edges associated with 
fragmentation are known to have caused reduced abundance, reduced nest 
success, and reduced nest density in many species of grassland birds 
(Pillsbury et al. 2011, p. 2).
    Habitat fragmentation has been shown to negatively impact 
population persistence and influence the species extinction process 
through several mechanisms (Wilcove et al. 1986, p. 246). Once 
fragmented, the remaining habitat fragments may be inadequate to 
support crucial life-history requirements (Samson 1980b, p. 297). The 
land-use matrix surrounding remaining suitable habitat fragments may 
support high densities of predators or brood parasites (organisms that 
rely on the nesting organism to raise their young), and the probability 
of recolonization of unoccupied fragments decreases as distance from 
the nearest suitable habitat patch increases (Wilcove et al. 1986, p. 
248; Sisk and Battin 2002, p. 35). Invasion by undesirable plants and 
animals is often facilitated around the perimeter or edge of the patch, 
particularly where roads are present (Weller et al. 2002, p. 2). 
Additionally, as animal populations become smaller and more isolated, 
they are more susceptible to random (stochastic) events and reduced 
genetic diversity via drift and inbreeding (Keller and Waller 2002, p. 
230). Population viability depends on the size and spacing of remaining 
fragments (Harrison and Bruna 1999, p. 226; With et al. 2008, p. 3153). 
O'Connor et al. (1999, p. 56) concluded that grassland birds, as a 
group, are particularly sensitive to habitat fragmentation, primarily 
due to sensitivity to fragment size. Consequently, the effects of 
fragmentation are the most severe on area-sensitive species (Herkert 
1994, p. 468).
    Area-sensitive species are those species that respond negatively to 
decreasing habitat patch size (Robbins 1979, p. 198; Finch 1991, p. 1); 
the term was initially applied to songbirds

[[Page 73855]]

inhabiting deciduous forests in eastern North America. However, an 
increasing number of studies are showing that many grassland birds also 
are area-sensitive and have different levels of tolerance to 
fragmentation of their habitat (e.g., see Herkert 1994, entire; Winter 
and Faaborg 1999, entire). For species that are area-sensitive, once a 
particular fragment or patch of suitable habitat falls below the 
optimum size, populations decline or disappear entirely even though 
suitable habitat may continue to exist within the larger landscape. 
When the overall amount of suitable habitat within the landscape 
increases, the patch size an individual area-sensitive bird may utilize 
generally tends to be smaller (Horn and Koford 2006, p. 115), but they 
appear to maintain some minimum threshold (Fahrig 1997, p. 608; NRCS 
1999, p. 4). Winter and Faaborg (1999, pp. 1429, 1436) reported that 
the greater prairie-chicken was the most area-sensitive species 
observed during their study, and this species was not documented from 
any fragment of native prairie less than 130 ha (320 ac) in size.
    Franklin et al. (2002, p. 23) described fragmentation in a 
biological context. According to Franklin, habitat fragmentation occurs 
when occupancy, reproduction, or survival of the organism has been 
affected. The effects of fragmentation can be influenced by the extent, 
pattern, scale, and mechanism of fragmentation (Franklin et al. 2002, 
p. 27). Habitat fragmentation also can have positive, negative, or 
neutral effects, depending on the species (Franklin et al. 2002, p. 
27). As a group, grouse are considered to be particularly intolerant of 
extensive habitat fragmentation due to their short dispersal distances, 
specialized food habits, generalized antipredator strategies, and other 
life-history characteristics (Braun et al. 1994, p. 432). Lesser 
prairie-chickens in particular have a low adaptability to habitat 
alteration, particularly activities that fragment suitable habitat into 
smaller, less valuable pieces. Lesser prairie-chickens utilize habitat 
patches with different vegetative structure dependent upon a particular 
phase in their life cycle, and the loss of even one of these structural 
components can significantly reduce the overall value of that habitat 
to lesser prairie-chickens. Fragmentation not only reduces the size of 
a given patch but also can reduce the interspersion or variation within 
a larger habitat patch, possibly eliminating important structural 
features crucial to lesser prairie-chickens.
    Lesser prairie-chickens and other species of prairie grouse require 
large expanses (i.e., 1,024 to 10,000 ha (2,530 to 24,710 ac)) of 
interconnected, ecologically diverse native rangelands to complete 
their life cycles (Woodward et al. 2001, p. 261; Flock 2002, p. 130; 
Fuhlendorf et al. 2002, p. 618; Davis 2005, p. 3), more so than almost 
any other grassland bird (Johnsgard 2002, p. 124). Davis (2005, p. 3) 
states that the combined home range of all lesser prairie-chickens at a 
single lek is about 49 sq km (19 sq mi or 12,100 ac). According to 
Applegate and Riley (1998, p. 14), a viable lek will have at least six 
males accompanied by an almost equal number of females. Because leks 
need to be clustered so that interchange among different leks can occur 
in order to reduce interbreeding problems on any individual lek, they 
considered a healthy population to consist of a complex of six to ten 
viable leks (Applegate and Riley 1998, p. 14). Consequently, most 
grouse experts consider the lesser prairie-chicken to be an area-
sensitive species, and large areas of intact, unfragmented landscapes 
of suitable mixed-grass, short-grass, and shrubland habitats are 
considered essential to sustain functional, self-sustaining populations 
(Giesen 1998, pp. 3-4; Bidwell et al. 2002, pp. 1-3; Hagen et al. 2004, 
pp. 71, 76-77). Therefore, areas of otherwise suitable habitat can 
readily become functionally unusable due to the effects of 
    The lesser prairie-chicken has several life-history traits common 
to most species of grouse that influence its vulnerability to the 
impacts of fragmentation, including short lifespan, low nest success, 
strong site fidelity, low mobility, and a relatively small home range. 
This vulnerability is heightened by the considerable extent of habitat 
loss that has already occurred over the range of the species. The 
resiliency and redundancy of these populations have been reduced as the 
number of populations that formerly occupied the known historical range 
were lost or became more isolated by fragmentation of that range. 
Isolation of remaining populations will continue to the extent these 
populations remain or grow more separated by areas of unsuitable 
habitat, particularly considering their limited dispersal capabilities 
(Robb and Schroeder 2005, p. 36).
    Fragmentation is becoming a particularly significant ecological 
driver in lesser prairie-chicken habitats, and several factors are 
known to be contributing to the observed destruction, modification, or 
curtailment of the lesser prairie-chicken's habitat or range. Extensive 
grassland and untilled rangeland habitats historically used by lesser 
prairie-chickens have become increasingly scarce, and remaining areas 
of these habitat types continue to be degraded or fragmented by 
changing land uses. The loss and fragmentation of the mixed-grass, 
short-grass, and shrubland habitats preferred by lesser prairie-
chickens has contributed to a significant reduction in the extent of 
currently occupied range. Based on the cooperative mapping efforts led 
by the Playa Lakes Joint Venture and Lesser Prairie-Chicken Interstate 
Working Group, lesser prairie-chickens are estimated to now occupy only 
about 16 percent of their estimated historically occupied range. What 
habitat remains is now highly fragmented (Hagen et al. 2011, p. 64).
    Several pervasive factors, such as conversion of native grasslands 
to cultivated agriculture; change in the historical grazing and fire 
regime; tree invasion and brush encroachment; oil, gas, and wind energy 
development; road and highway expansion; and others, have been 
implicated in not only permanently altering the Great Plains landscape 
but in specifically causing much of the observed loss, alteration, and 
fragmentation of lesser prairie-chicken habitat (Hagen and Giesen 2005, 
np.; Elmore et al. 2009, pp. 2, 10-11; Hagen et al. 2011, p. 64). 
Additionally, lesser prairie-chickens actively avoid areas of human 
activity and noise or areas that contain certain vertical features 
(Robel et al. 2004, pp. 260-262; Pitman et al. 2005, pp. 1267-1268; 
Hagen et al. 2011, p. 70-71). Avoidance of vertical features such as 
trees and transmission lines likely is due to frequent use of these 
structures as hunting perches by birds of prey (Hagen et al. 2011, p. 
72). Pitman et al. (2005, pp. 1267-1268) observed that lesser prairie-
chickens seldom nested or reared broods within approximately 177 m (580 
ft) of oil or gas wellheads, 366 m (1,200 ft) of electrical 
transmission lines, 792 m (2,600 ft) of improved roads, and 1,219 m 
(4,000 ft) of buildings. The observed avoidance was likely influenced, 
at least in part, by disturbances such as noise and visual obstruction 
associated with these features. No lesser prairie-chicken nesting or 
lekking was observed within 0.8 km (0.5 mi) of a gas line compressor 
station, and otherwise suitable habitat was avoided within a 1.6-km (1-
mi) radius of a coal-fired power plant (Pitman et al. 2005, pp. 1267-
    Oil and gas development activities, particularly drilling and road 
and highway construction, also contribute to surface fragmentation of 
lesser prairie-

[[Page 73856]]

chicken habitat for many of the same reasons observed with other 
artificial structures (Hunt and Best 2004, p. 92). The incidence of oil 
and gas exploration has been rapidly expanding within the range of the 
lesser prairie-chicken. A more thorough discussion of oil and gas 
activities within the range of the lesser prairie-chicken is discussed 
    Many of the remaining habitat fragments and adjoining land use 
types subsequently fail to meet important habitat requirements for 
lesser prairie-chickens. Other human-induced developments, such as 
buildings, fences, and many types of vertical structures, which may 
have an overall smaller physical development footprint per unit area, 
serve to functionally fragment otherwise seemingly suitable habitat; 
this causes lesser prairie-chickens to cease or considerably reduce 
their use of habitat patches impacted by these developments (Hagen et 
al. 2011 pp. 70-71). As the intervening matrix between the remaining 
fragments of suitable habitat becomes less suitable, dispersal patterns 
can be disrupted, effectively isolating remaining islands of habitat. 
These isolated fragments then become less resilient to the effects of 
change in the overall landscape and likely will be more prone to 
localized extinctions. The collective influence of habitat loss, 
fragmentation, and disturbance effectively reduces the size and 
suitability of the remaining habitat patches. Pitman et al. (2005, p. 
1267) calculated that nesting avoidance at the distances they observed 
would effectively eliminate some 53 percent (7,114 ha; 17,579 ac) of 
otherwise suitable nesting habitat within their study area in 
southwestern Kansas. Once the remaining habitat patches fall below the 
minimum size required by lesser prairie-chickens, these patches become 
uninhabitable even though they may otherwise provide optimum habitat 
characteristics. Although a minimum size has not been established, 
studies and expert opinion, including those regarding greater prairie-
chickens, suggest that the minimum parcel size is likely to exceed 100 
ha (250 acres) (Samson 1980b, p. 295; Winter and Faaborg 1999, pp. 
1429, 1436; Davis 2005, p. 3).
    Fragmentation poses a threat to the persistence of local lesser 
prairie-chicken populations through many of the same mechanisms 
identified for other species of grassland birds. Factors such as 
habitat dispersion and the extent of habitat change, including patch 
size, edge density, and total rate of landscape change influence 
juxtaposition and size of remaining patches of rangeland such that they 
may no longer be large enough to support populations (Samson 1980b, p. 
297; Woodward et al. 2001, pp. 269-272; Fuhlendorf et al. 2002, pp. 
623-626). Additionally, necessary habitat heterogeneity may be lost, 
and habitat patches may accommodate high densities of predators. 
Ultimately lesser prairie-chicken interchange among suitable patches of 
habitat may decrease, possibly affecting population and genetic 
viability (Wilcove et al. 1986, pp. 251-252; Knopf 1996, p. 144). 
Predation can have a major impact on lesser prairie-chicken demography, 
particularly during the nesting and brood-rearing seasons (Hagen et al. 
2007, p. 524). Patten et al. (2005b, p. 247) concluded that habitat 
fragmentation, at least in Oklahoma, markedly decreases the probability 
of long-term population persistence in lesser prairie-chickens.
    Many of the biological factors affecting the persistence of lesser 
prairie-chickens are exacerbated by the effects of habitat 
fragmentation. For example, human population growth and the resultant 
accumulation of infrastructure such as roads, buildings, communication 
towers, and powerlines contribute to fragmentation. We expect that 
construction of vertical infrastructure such as transmission lines will 
continue to increase into the foreseeable future, particularly given 
the increasing development of energy resources and urban areas (see 
``Wind Power and Energy Transmission Operation and Development'' 
below). Where this infrastructure is placed in occupied lesser prairie-
chicken habitats, the lesser prairie-chicken likely will be negatively 
affected. As the density and distribution of human development 
continues in the future, direct and functional fragmentation of the 
landscape will continue. The resultant fragmentation is detrimental to 
lesser prairie-chickens because they rely on large, expansive areas of 
contiguous native grassland to complete their life cycle. Given the 
large areas of contiguous grassland needed by lesser prairie-chickens, 
we expect that many of these types of developments anticipated in the 
future will further fragment remaining blocks of suitable habitat and 
reduce the likelihood of persistence of lesser prairie-chickens over 
the long term. Long-term persistence is reduced when the suitability of 
the remaining habitat patches decline, further contributing to the 
scarcity of suitable contiguous blocks of habitat and resulting in 
increased human disturbance as parcel size declines. Human populations 
are increasing throughout the range of the lesser prairie-chicken, and 
we expect this trend to continue. Given the demographic and economic 
trends observed over the past several decades, residential development 
will continue.
    The cumulative influence of habitat loss and fragmentation on 
lesser prairie-chicken distribution is readily apparent at the regional 
scale. Lesser prairie-chicken populations in eastern New Mexico and the 
western Texas Panhandle are isolated from the remaining populations in 
Colorado, Kansas, and Oklahoma. On a smaller, landscape scale, core 
populations of lesser prairie-chickens within the individual States are 
isolated from other nearby populations by areas of unsuitable land uses 
(Robb and Schroeder 2005, p. 16). Then, at the local level within a 
particular core area of occupied habitat, patches of suitable habitat 
have been isolated from other suitable habitats by varying degrees of 
unsuitable land uses. Very few large, intact patches of suitable 
habitat remain within the historically occupied landscape.
    We conducted a spatial analysis of the extent of fragmentation 
within the estimated occupied range of the lesser prairie-chicken. 
Infrastructure features such as roads, transmission lines, airports, 
cities and similar populated areas, oil and gas wells, and other 
vertical features such as communication towers and wind turbines were 
delineated. These features were buffered by known avoidance distances 
and compared with likely lesser prairie-chicken habitat such as that 
derived from the Southern Great Plains Crucial Habitat Tool and 2008 
LandFire vegetation cover types. Based on this analysis, 99.8 percent 
of the suitable habitat patches were less than 2,023 ha (5,000 ac) in 
size. Our analysis revealed that only some 71 patches that were equal 
to, or larger than, 10,117 ha (25,000 ac) exist within the entire five-
state estimated occupied range. Of the patches over 10,117 ha (25,000 
ac), all were impacted by fragmenting features, just not to the extent 
that the patch was fragmented into a smaller sized patch.
    This analysis is a very conservative estimate of the extent of 
fragmentation within the estimated occupied range. We only used 
reasonably available datasets. Some datasets were unavailable, such as 
the extent of fences, and other infrastructural features were not fully 
captured because our datasets were incomplete for those features. 
Unfortunately, a more precise quantification of the impact of habitat 
loss and alteration on persistence of the

[[Page 73857]]

lesser prairie-chicken is complicated by a variety of factors including 
time lags in response to habitat changes and a lack of detailed 
historical information on habitat conditions.
    In summary, habitat fragmentation is an ongoing threat that is 
occurring throughout the occupied range of the lesser prairie-chicken. 
Similarly, much of the historical range is disjunct and separated by 
large expanses of unsuitable habitat. Once fragmented, most of the 
factors contributing to habitat fragmentation cannot be reversed. Many 
types of human developments likely will exist for extended time periods 
and will have a significant, lasting adverse influence on persistence 
of lesser prairie-chickens. Therefore, current and future habitat 
fragmentation is a threat to the lesser prairie-chicken. In the 
sections that follow, we will examine the various causes of lesser 
prairie-chicken habitat fragmentation in more detail.

Habitat Conversion for Agriculture

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

[[Page 73858]]

previously been undertaken, despite the availability of Landsat 
thematic mapper information since 1984. The 1992 NLCD provides 
information on 21 different land cover classes at a 30-meter 
resolution. Based on the 1992 NLCD, and confining our analysis to just 
the known historical and currently occupied range, we estimated that 
there were 137,073.6 sq km (52,924.4 sq mi) of cultivated cropland in 
the entire historical range and 16,436.9 sq km (6,346.3 sq mi) in the 
currently occupied range. This includes areas planted to row crops, 
such as corn and cotton, small grains like wheat and Hordeum vulgare 
(barley), and fallow cultivated areas that had visible vegetation at 
the time of the imagery.
    Estimating the extent of untilled rangeland is slightly more 
complicated. The extent of grassland areas dominated by native grasses 
and forbs could be determined in a manner similar to that for 
cultivated cropland. We estimated from the 1992 NLCD that there were 
207,846 sq km (80,250 sq mi) of grassland within the entire historical 
range, with only some 49,000 sq km (18,919 sq mi) of grassland in the 
currently occupied range. However, the extent of shrubland also must be 
included in the analysis because areas classified as shrubland (i.e., 
areas having a canopy cover of greater than 25 percent) are used by 
lesser prairie-chicken, such as shinnery oak grasslands, and also may 
be grazed by livestock. We estimated that there were 92,799 sq km 
(35,830 sq mi) of shrubland within the entire historical range with 
some 4,439 sq km (1,714 sq mi) of shrubland in the currently occupied 
range, based on the 1992 NLCD.
    These values can then be compared with those available through the 
2006 NLCD information to provide a rough approximation of the change in 
land use since 1992. In contrast to the 1992 NLCD, the 2006 NLCD 
provides information on only 16 different land cover classes at a 30-
meter resolution. Based on this dataset, and confining our analysis to 
just the known historical and currently occupied range, we estimated 
that there were 126,579 sq km (48,872 sq mi) of cultivated cropland in 
the entire historical range and 19,588 sq km (7,563 sq mi) in the 
currently occupied range. This cover type consists of any areas used 
annually to produce a crop and includes any land that is being actively 
tilled. Estimating the extent of untilled rangeland is conducted 
similarly to that for 1992. Using the 2006 NLCD, we estimated that 
there were 163,011 sq km (62,939 sq mi) of grassland within the entire 
historical range with some 42,728 sq km (16,497 sq mi) of grassland in 
the currently occupied range. In 2006, the shrubland cover type was 
replaced by a shrub-scrub cover type. This new cover type was defined 
as the areas dominated by shrubs less than 5 m (16 ft) tall with a 
canopy cover of greater than 20 percent. We estimated that there were 
146,818 sq km (56,686 sq mi) of shrub/scrub within the entire 
historical range, with some 10,291 sq km (3,973 sq mi) of shrub/scrub 
in the currently occupied range.
    Despite the difference in the classification of land cover between 
1992 and 2006, we were able to make rough comparisons between the two 
datasets. A comparison reveals that apparently the extent of cropland 
within the entire historical range declined between 1992 and 2006. In 
contrast, within the occupied range, the extent of cropland areas 
increased during that same period. A comparison of the grassland and 
untilled rangeland indicates that the amount of grassland declined in 
both the historical range and the occupied range between 1992 and 2006. 
However, the amount of shrub-dominated lands increased in both the 
historical and currently occupied range. Overall, the estimated amount 
of grassland and shrub-dominated land, as an indicator of untilled 
rangelands, increased somewhat over the historical range during that 
period but declined slightly within the occupied range during the same 
period. Based on the definition of shrub/scrub cover type in 2006, the 
observed increases in shrub-dominated cover only could have been due to 
increased abundance of eastern red cedar, an invasive woody species 
that tends to decrease suitability of grasslands and untilled 
rangelands for lesser prairie-chickens (Woodward et al. 2001, pp. 270-
271; Fuhlendorf et al. 2002, p. 625).
    However, direct comparison between the 1992 and 2006 NLCD is 
problematic due to several factors. First, the 1992 NLCD was based on 
an unsupervised classification algorithm (an iterative process used to 
classify or ``cluster'' data obtained using remote sensing), whereas 
NLCD 2001 and later versions were based on a supervised classification 
and regression tree algorithm (data classification in which the data 
analyst uses available information to assist in the classification). 
Second, terrain corrections for the 1992 NLCD were based on digital 
elevation models with a 90-meter spatial resolution, whereas terrain 
correction for NLCD 2001 and later used 30-meter digital elevation 
models. Third, the impervious surface mapping that is part of NLCD 2001 
and later versions resulted in the identification of many more roads 
than could be identified in the 1992 NLCD. However, most of these roads 
were present in 1992. Fourth, the imagery for the 2001 NLCD and later 
versions was corrected for atmospheric effects prior to classification, 
whereas NLCD 1992 imagery was not. Lastly, there are subtle differences 
between the NLCD 1992 and NLCD 2001 land-cover legends. Additionally, 
we did not have an estimated occupied range for 1992. Instead we used 
the occupied range as is currently estimated. The comparison in the 
amount of cropland, grassland, and shrubland could be influenced by a 
change in the amount of occupied range in 1992. Due to the influence of 
CRP grasslands (discussed below) on the distribution of lesser prairie-
chickens in Kansas, the occupied range was much smaller in 1992. One 
would anticipate that the influence of CRP establishment north of the 
Arkansas River in Kansas might have led to considerably more areas of 
grassland in 2006 as compared to 1992. However, the amount of grassland 
was observed to have declined within the occupied range of the lesser 
prairie-chicken between 1992 and 2006, possibly indicating that the 
extent of grasslands continued to decline despite the increase in CRP 
    If we restrict our analysis to Kansas alone, the extent of 
grasslands in 1992 was about 39,381 sq km (15,205 sq mi) within the 
historical range and 22,923 sq km (8850 sq mi) in the occupied range. 
In 2006, the extent of grasslands in Kansas was some 27,351 sq km 
(10,560 sq mi) within the historical range and 18,222 sq km (7,035 sq 
mi) in the occupied range. While not definitive, the analysis indicates 
that the extent of grasslands continued to decline even in Kansas where 
lesser prairie-chicken populations are declining but more robust than 
in other States.
    In summary, conversion of the native grassland habitats used by 
lesser prairie-chickens for agricultural uses has resulted in the 
permanent, and in some limited instances, temporary loss or alteration 
of habitats used for feeding, sheltering, and reproduction. 
Consequently, populations of lesser prairie-chickens likely have been 
extirpated or significantly reduced, underscoring the degree of impact 
that historical conversion of native grasslands has posed to the 
species. We expect a very large proportion of the land area that is 
currently in agricultural production will likely remain so over the 
foreseeable future because we have no information to suggest that 
agricultural practices are likely to

[[Page 73859]]

change. While persistent drought and declining supplies of water for 
irrigation may lead to conversion of some croplands to a noncropland 
state, we anticipate that the majority of cropland will continue to be 
used to produce a crop. Because considerable areas of suitable arable 
lands have already been converted to agricultural production, we do not 
expect significant additional, future habitat conversion to agriculture 
within the range of the lesser prairie-chicken. However, as 
implementation of certain agricultural conservation programs like the 
CRP change programmatically, some continued conversion of grassland 
back into cultivation is still expected to occur. Conservation Reserve 
Program contracts, as authorized and outlined by regulation, are of 
limited, temporary duration, and the program is subject to funding by 
Congress. We also recognize that the historical large-scale conversion 
of grasslands to agricultural production has resulted in fragmented 
grassland and shrubland habitats used by lesser prairie-chickens such 
that currently occupied lands are not adequate to provide for the 
conservation of the species into the foreseeable future, particularly 
when cumulatively considering the threats to the lesser prairie-
Conservation Reserve Program (CRP)
    The loss of lesser prairie-chicken habitat due to conversion of 
native grasslands to cultivated agriculture has been mitigated somewhat 
by the CRP. Authorization and subsequent implementation of the CRP 
began under the 1985 Food Security Act and, since that time, has 
facilitated restoration of millions of acres of marginal and highly 
erosive cropland to grassland, shrubland, and forest habitats (Riffell 
and Burger 2006, p. 6). The CRP is administered by the USDA's Farm 
Service Agency and was established primarily to control soil erosion on 
cropland by converting cropped areas to a vegetative cover such as 
perennial grassland. Under the general signup process, lands are 
enrolled in CRP using a competitive selection process. However, certain 
environmentally desirable lands can be enrolled at any time under a 
continuous signup process. Additional programs, such as the 
Conservation Reserve Enhancement Program and designation as a 
Conservation Priority Area can be used to target enrollment of CRP. 
Participating producers receive an annual rental payment for the 
duration of a multiyear CRP contract. Cost sharing is provided to 
assist in the establishment of the vegetative cover practices. Once the 
CRP contract expires, typically after 10 to 15 years, landowners have 
the option to reenroll in the program, convert lands back to cropland, 
or leave lands in a noncropland state.
    In 2009, the enrollment authority or acreage cap for CRP was 
reduced from 15.9 million ha (39.2 million ac) nationwide to 12.9 
million ha (32.0 million ac) through fiscal year 2012, with 1.8 million 
ha (4.5 million ac) allocated to targeted (continuous) signup programs. 
Future enrollment authority is unknown and dependent on passage of a 
new Farm Bill and subsequent funding by Congress. Within a given 
county, no more than 25 percent of that county's cropland acreage may 
be enrolled in CRP and the Wetland Reserve Program. A waiver of this 
acreage cap may be granted under certain circumstances. These caps 
influence the maximum amounts of cropland that may exist in CRP at any 
one time. Since 2004, midcontract management has been required on 
contracts executed after fiscal year 2004 and is voluntary for 
contracts accepted before that time. Typically these management 
activities, such as prescribed burning, tree thinning, disking, or 
herbicide application to control invasive species, are generally 
prohibited during the primary avian nesting and brood rearing season. 
Under the CRP, several forms of limited harvest, haying, and grazing 
are authorized, including emergency haying and grazing. Emergency 
haying and grazing may be granted on CRP lands to provide relief to 
ranchers in areas affected by drought or other natural disaster to 
minimize loss or culling of livestock herds. Haying and grazing under 
both managed and emergency conditions have the potential to 
significantly negatively impact vegetation if the amount of forage 
removed is excessive and prolonged, or if livestock numbers are 
sufficient to contribute to soil compaction. Additionally, the 
installation of wind turbines, windmills, wind monitoring devices, or 
other wind-powered generation equipment may be installed on CRP acreage 
on a case-by-case basis. Up to 2 ha (5 ac) of wind turbines per 
contract may be approved.
    Lands enrolled in CRP encompasses a significant portion of 
currently occupied range in several lesser prairie-chicken States, but 
particularly in Kansas where an increase in the lesser prairie-chicken 
population is directly related to the amount of land that was enrolled 
in the CRP and planted to native grasses. Enrollment information is 
publically available from the Farm Services Agency at the county level. 
However, specific locations of individual CRP acreages are not 
publically available due to needs to protect privacy of the individual 
landowner. The Playa Lakes Joint Venture has an agreement with the Farm 
Services Agency that allows them to use available data on individual 
CRP allotments for conservation purposes, provided the privacy of the 
landowner is protected. The Playa Lakes Joint Venture, using this 
information, has been able to determine the extent of CRP lands within 
the estimated occupied range of the lesser prairie-chicken over all 
five lesser prairie-chicken States (McLachlan et al. 2011, p. 24). In 
conducting this analysis, they restricted their analysis to only those 
lands that were planted to a grass type of conservation cover and they 
evaluated all lands within the estimated occupied range, including a 16 
km (10 mi) buffer surrounding the occupied areas. Based on this 
analysis, Kansas was determined to have the most land enrolled in CRP 
with a grass cover type. Kansas has some 600,000 ha (1,483,027 ac) 
followed by Texas with some 496,000 ha (1,227,695 ac) of grassland CRP. 
Enrolled acreages in Colorado, New Mexico, and Oklahoma are 193,064 ha 
(477,071 ac), 153,000 ha (379,356 ac), and 166,000 ha (410,279 ac), 
respectively. The amount of grass type CRP within the estimated 
occupied range totals just over 1.6 million ha (3.9 million ac). While 
the extent of CRP may have changed slightly due to recent enrollments 
and re-enrollments and any contract expirations that may have occurred 
since the study was conducted, the figures serve to highlight the 
importance of CRP for lesser prairie-chickens. Based on the estimated 
amount of occupied habitat remaining in these States, CRP fields having 
a grass type of conservation cover in Kansas comprise some 20.6 percent 
of the occupied lesser prairie-chicken range, 45.8 percent of the 
occupied range in Colorado, and 40.9 percent of the occupied range in 
Texas. New Mexico and Oklahoma have smaller percentages of CRP within 
the occupied range, 17.9 and 15.1 percent, respectively. When the sizes 
of the CRP fields were examined, Kansas had some 53 percent, on 
average, of the enrolled lands that constituted large habitat blocks, 
as defined. A large block was defined as areas that were at least 5,000 
acres in size with minimal amounts of woodland, roads, and developed 
areas (McLachlan et al. 2011, p. 14). All of the other States had 15 
percent or less of the enrolled CRP in a large block configuration.

[[Page 73860]]

    The importance of CRP habitat to the status and survival of lesser 
prairie-chicken was recently emphasized by Rodgers and Hoffman (2005, 
pp. 122-123). They determined that the presence of CRP lands planted 
with native species of grasses facilitated the expansion of lesser 
prairie-chicken range in Colorado, Kansas, and New Mexico. The range 
expansion in Kansas resulted in strong population increases there 
(Rodgers and Hoffman 2005, pp. 122-123). However, in Oklahoma, Texas, 
and some portions of New Mexico, many CRP fields were planted with a 
monoculture of introduced grasses. Where introduced grasses were 
planted, lesser prairie-chickens did not demonstrate a range expansion 
or an increase in population size (Rodgers and Hoffman 2005, p. 123). 
An analysis of lesser prairie-chicken habitat quality within a 
subsample of 1,019 CRP contracts across all five lesser prairie-chicken 
States was recently conducted by the Rocky Mountain Bird Observatory 
(Ripper and VerCauteren 2007, entire). They found that, particularly in 
Oklahoma and Texas, contracts executed during earlier signup periods 
allowed planting of monocultures of exotic grasses, such as 
Bothriochloa sp. (old-world bluestem) and Eragrostis curvula (weeping 
lovegrass), which provide poor-quality habitat for lesser prairie-
chicken (Ripper and VerCauteren 2007, p. 11). Correspondingly, a high-
priority conservation recommendation from this study intended to 
benefit lesser prairie-chickens was to convert existing CRP fields 
planted in exotic grasses into fields supporting taller, native grass 
species and to enhance the diversity of native forbs and shrubs used 
under these contracts. Generally, pure stands of grass lack the habitat 
heterogeneity and structure preferred by lesser prairie-chickens. 
Subsequent program adjustments have encouraged the planting of native 
grass species on CRP enrollments.
    Predicting the fate of the CRP and its influence on the lesser 
prairie-chicken into the future is difficult. The expiration of a 
contract does not automatically trigger a change in land use. The 
future of CRP lands is dependent upon three sets of interacting 
factors: The long-term economies of livestock and crop production, the 
characteristics and attitudes of CRP owners and operators, and the 
direct and indirect incentives of existing and future agricultural 
policy (Heimlich and Kula 1990, p. 7). As human populations continue to 
grow, the worldwide demands for livestock and crop production are 
likely to continue to grow. If demand for U.S. wheat and feed grains is 
high, pressure to convert CRP lands back to cropland will be strong. 
However, in 1990, all five States encompassing the historical range of 
the lesser prairie-chicken were among the top 10 States expected to 
retain lands in grass following contract expiration (Heimlich and Kula 
1990, p. 10). A survey of the attitudes of existing CRP contract 
holders in Kansas, where much of the existing CRP land occurs, revealed 
that slightly over 36 percent of landowners with an existing contract 
had made no plans or were uncertain about what they would do once the 
CRP contract expired (Diebel et al. 1993, p. 35). An equal percentage 
stated that they intended to keep lands in grass for livestock grazing 
(Diebel et al. 1993, p. 35). Some 24 percent of enrolled landowners 
expected they would return to annual crop production in accordance with 
existing conservation compliance provisions (Diebel et al. 1993, p. 
35). The participating landowners stated that market prices for crops 
and livestock was the most important factor influencing their decision, 
with availability of cost sharing for fencing and water development for 
livestock also being an important consideration. However, only a small 
percentage, about 15 percent, were willing to leave their CRP acreages 
in permanent cover after contract expiration where incentives were 
lacking (Diebel et al. 1993, p. 8).
    Although demand for agricultural commodities and the opinions of 
the landowners are important, existing and future agricultural policy 
is expected to have the largest influence on the fate of CRP (Heimlich 
and Kula 1990, p. 10). The CRP was most recently renewed under the 
Food, Conservation, and Energy Act of 2008 and is due for 
reauthorization in 2012. The most recent CRP general signup for 
individual landowners began March 12, 2012, and expired April 13, 2012. 
The extent to which existing CRP lands were reenrolled or new lands 
enrolled into the program is unknown. A new Farm Bill, which will 
establish the guidelines for CRP over the next five years, is currently 
under development and the ramifications of this policy on the future of 
CRP are unknown.
    The possibility exists that escalating grain prices due to the 
recent emphasis on generating domestic energy from biofuels, such as 
ethanol from corn, grain sorghum, and switchgrass, combined with 
Federal budget reductions that reduce or eliminate CRP enrollments and 
renewals, will result in an unprecedented conversion of existing CRP 
acreage within the Great Plains back to cropland (Babcock and Hart 
2008, p. 6). In 2006, the USDA Farm Service Agency provided a small 
percentage of current CRP contract holders whose contracts were set to 
expire during 2007 to 2010, with an opportunity (termed REX) to 
reenroll (10-15 year terms) or extend (2-5 year terms) their contracts. 
The opportunity to reenroll or extend their contracts was based on the 
relative environmental benefits of each contract. In March of 2007, the 
USDA expected that some 9.7 million ha (23.9 million ac) out of the 
total 11.3 million ha (28 million ac) of eligible CRP contracts would 
be reenrolled. The remaining 1.7 million ha (4.1 million ac) would be 
eligible for conversion to crop production or other uses.
    Should large-scale loss or reductions in CRP acreages occur, either 
by reduced enrollments or by conversion back to cultivation upon 
expiration of existing contracts, the loss of CRP acreage would further 
diminish the amount of suitable lesser prairie-chicken habitat. This 
concern is particularly relevant in Kansas where CRP acreages planted 
to native grass mixtures facilitated an expansion of the occupied 
lesser prairie-chicken range in that State. In States that planted a 
predominance of CRP to exotic grasses, loss of CRP in those States 
would not be as significant as it would in Kansas where CRP largely was 
planted to native grass and exists in relatively larger habitat blocks. 
A reduction in CRP acreage could lead to contraction of the currently 
occupied range and reduced numbers of lesser prairie-chicken rangewide 
and poses a threat to the status of existing lesser prairie-chicken 
populations. While the CRP program has had a beneficial effect on the 
lesser prairie-chicken, particularly in Kansas, the contracts are short 
term in nature and, given current government efforts to reduce the 
Federal budget deficit, additional significant new enrollments in CRP 
are not anticipated. However, we anticipate that some CRP grassland 
acreages would be reenrolled in the program once contracts expire, 
subject to the established acreage cap.
    A recent analysis of CRP by the National Resources Conservation 
Service (J. Ungerer and C. Hagen, 2012, Personal Communication) 
revealed that between 2008 and 2011, some 675,000 acres of CRP 
contracts expired within the estimated occupied range, the majority 
located in Kansas. However many of those expired lands remained in 
grass. Values varied from a low of 72.4 percent remaining in grass in 
Colorado to a high of 97.5 percent in

[[Page 73861]]

New Mexico. Kansas was estimated to have some 90.2 percent of the 
expired acres during this period still in grass. Values for Oklahoma 
and Texas had not yet been determined. We expect that many of the 
acreages that remain in grass in New Mexico are likely composed of 
exotic species of grasses. Despite a small overall loss in CRP acreage, 
we are encouraged by the relatively high percentage of CRP that remains 
in grass. However, we remain concerned that the potential for 
significant loss of CRP acreages remains, particularly considering the 
attitudes of Kansas landowners as previously discussed above. The 
importance of CRP to lesser prairie-chickens, particularly in Kansas, 
is high and continued loss of CRP within the occupied range would be 
detrimental to lesser prairie-chicken conservation.
    We also remain concerned about the future value of these grasslands 
to the lesser prairie-chicken. We assume that many of these CRP 
grasslands that remain in grass after their contract expires could be 
influenced by factors addressed elsewhere in this proposed rule. 
Encroachment by woody vegetation, fencing, wind power development, and 
construction of associated transmission lines have the potential to 
reduce the value of these areas even if they continue to remain in 
grass. Unless specific efforts are made to target enrollment of CRP in 
areas important to lesser prairie-chickens, future enrollments likely 
will do little to reduce fragmentation or enhance connectivity between 
existing populations. Considering much of the existing CRP in Kansas 
was identified as supporting large blocks of suitable habitat, as 
discussed above, fracturing of these blocks into smaller, less suitable 
parcels by the threats identified in this proposed rule would reduce 
the value of these grasslands for lesser prairie-chickens.
    In summary, we recognize that lands already converted to cultivated 
agriculture are located throughout the current and historical range of 
the lesser prairie-chicken and are, therefore, perpetuating habitat 
fragmentation within the range of the lesser prairie-chicken. We expect 
that CRP will continue to provide a means of temporarily restoring 
cropland to grassland and provide habitat for lesser prairie-chickens 
where planting mixtures and maintenance activities are appropriate. 
However, we expect that, in spite of the at least temporary benefits 
provided by CRP, most of the areas already in agricultural production 
will remain so into the foreseeable future. While CRP has contributed 
to restoration of grassland habitats and has influenced abundance and 
distribution of lesser prairie-chickens in some areas, we expect these 
lands to be subject to conversion back to cropland as economic 
conditions change in the foreseeable future possibly reducing the 
overall benefit of the CRP to the landowner. We do not anticipate that 
CRP, at current and anticipated funding levels, will cause significant, 
permanent increases in the extent of native grassland within the range 
of the lesser prairie-chicken (Coppedge et al. 2001, p. 57). 
Consequently, CRP grasslands alone are not adequate to provide for the 
long-term persistence of the species, particularly when the known 
threats to the lesser prairie-chicken are considered cumulatively.
Livestock Grazing
    Habitats used by the lesser prairie-chicken are dominated naturally 
by a diversity of drought-tolerant perennial grasses and shrubs. 
Grazing has long been an ecological driving force within the ecosystems 
of the Great Plains (Stebbins 1981, p. 84), and much of the untilled 
grasslands within the range of the lesser prairie-chicken continue to 
be grazed by livestock and other animals. The evolutionary history of 
the mixed-grass prairie has produced endemic bird species adapted to an 
ever-changing mosaic of lightly to severely grazed grasslands (Bragg 
and Steuter 1996, p. 54; Knopf and Samson 1997, pp. 277-279, 283). As 
such, grazing by domestic livestock is not inherently detrimental to 
lesser prairie-chicken management. However, recent grazing practices 
have produced habitat conditions that differ in significant ways from 
the historical mosaic, such as by reducing the amount of ungrazed to 
lightly grazed habitat. These altered conditions are less suitable for 
the lesser prairie-chicken (Hamerstrom and Hamerstrom 1961, pp. 289-
290; Davis et al. 1979, pp. 56, 116; Taylor and Guthery 1980a, p. 2; 
Bidwell and Peoples 1991, pp. 1-2).
    Livestock grazing most clearly affects lesser prairie-chickens when 
it alters the composition and structure of mixed-grass habitats used by 
the species. Domestic livestock and native ungulates differentially 
alter native prairie vegetation, in part through different foraging 
preferences (Steuter and Hidinger 1999, pp. 332-333; Towne et al. 2005, 
p. 1557). Additionally, domestic livestock grazing, particularly when 
confined to small pastures, often is managed in ways that produces more 
uniform utilization of forage and greater total utilization of forage, 
in comparison to conditions produced historically by free-ranging 
plains bison (Bison bison) herds. For example, grazing by domestic 
livestock tends to be less patchy, particularly when livestock are 
confined to specific pastures. Such management practices and their 
consequences may actually exceed the effect produced by differences in 
forage preferences (Towne et al. 2005, p. 1558) but, in any case, 
produce an additive effect on plant community characteristics.
    The effects of livestock grazing, particularly overgrazing or 
overutilization, are most readily observed through changes in plant 
community composition and other vegetative characteristics (Fleischner 
1994, pp. 630-631; Stoddart et al. 1975, p. 267). Typical vegetative 
indicators include changes in the composition and proportion of desired 
plant species and overall reductions in forage. Plant height and 
density may decline, particularly when plant regeneration is hindered, 
and community composition shifts to show increased proportions of less 
desirable species.
    Grazing management favorable to persistence of the lesser prairie-
chicken must ensure that a diversity of plants and cover types, 
including shrubs, remain on the landscape (Taylor and Guthery 1980a, p. 
7; Bell 2005, p. 4), and that utilization levels leave sufficient cover 
in the spring to ensure that lesser prairie-chicken nests are 
adequately concealed from predators (Davis et al. 1979, p. 49; Wisdom 
1980, p. 33; Riley et al. 1992, p. 386; Giesen 1994a, p. 98). Where 
grazing regimes leave limited residual cover in the spring, protection 
of lesser prairie-chicken nests may be inadequate and desirable food 
plants can be scarce (Bent 1932, p. 280; Cannon and Knopf 1980, pp. 73-
74; Crawford 1980, p. 3). Because lesser prairie-chickens depend on 
medium and tall grass species that are preferentially grazed by cattle, 
in regions of low rainfall, the habitat is easily overgrazed in regard 
to characteristics needed by lesser prairie-chickens (Hamerstrom and 
Hamerstrom 1961, p. 290). In addition, when grasslands are in a 
deteriorated condition due to overgrazing and overutilization, the 
soils have less water-holding capacity, and the availability of 
succulent vegetation and insects utilized by lesser prairie-chicken 
chicks is reduced. Many effects of overgrazing and overutilization on 
habitat quality are similar to effects produced by drought and likely 
are exacerbated by actual drought conditions (Davis et al. 1979, p. 
122; Merchant 1982, pp. 31-33) (see separate discussion under 
``Drought'' in ``Extreme Weather Events'' below).

[[Page 73862]]

    Fencing is a fundamental tool of livestock management but often 
leads to structural fragmentation of the landscape. Fencing and related 
structural fragmentation can be particularly detrimental to the lesser 
prairie-chicken in areas, such as western Oklahoma, where initial 
settlement patterns favored larger numbers of smaller parcels for 
individual settlers (Patten et al. 2005b, p. 245). Fencing also can 
cause direct mortality through forceful collisions, by creation of 
raptor perch sites, and by creation of enhanced movement corridors for 
predators (Wolfe et al. 2007, pp. 96-97, 101). However, not all fences 
present the same mortality risk to lesser prairie-chickens. Mortality 
risk would appear to be dependent on factors such as fencing design 
(height, type, number of strands), landscape topography, and proximity 
to habitats, particularly leks, used by lesser prairie chickens. Other 
factors such as the length and density of fences also appear to 
influence the effects of these structures on lesser prairie-chickens. 
However, studies on the impacts of different fencing designs and 
locations with respect to collision mortality in lesser prairie-
chickens have not been conducted. Additional discussion related to 
impacts of collisions with fences and similar linear features are found 
in the ``Collision Mortality'' section below.
    Recent rangeland management includes influential elements besides 
livestock species selection, grazing levels, and fencing, such as 
applications of fire (usually to promote forage quality for livestock) 
and water management regimes (usually to provide water supplies for 
livestock). Current grazing management strategies are commonly 
implemented in ways that are vastly different and less variable than 
historical conditions (Knopf and Sampson 1997, pp. 277-79). These 
practices have contributed to overall changes in the composition and 
structure of mixed-grass habitats, often making them less suitable for 
the lesser prairie-chicken.
    Livestock are known to inadvertently flush lesser prairie-chickens 
and trample lesser prairie-chicken nests. This can cause direct 
mortality to lesser prairie-chicken eggs or chicks or may cause adults 
to permanently abandon their nests, again resulting in loss of young. 
For example, Pitman et al. (2006a, pp. 27-29) estimated nest loss from 
trampling by cattle to be about 1.9 percent of known nests. 
Additionally, even brief flushings of adults from nests can expose eggs 
and chicks to predation. Although documented, the significance of 
direct livestock effects on the lesser prairie-chicken is largely 
    Detailed, rangewide information is lacking on the extent, 
intensity, and forms of recent grazing, and associated effects on the 
lesser prairie-chicken. However, livestock grazing occurs over such a 
large portion of the area currently occupied by lesser prairie-chickens 
that any degradation of habitat it causes is likely to produce 
population-level impacts on the lesser prairie-chicken. Where uniform 
grazing regimes have left inadequate residual cover in the spring, 
detrimental effects to lesser prairie-chicken populations have been 
observed (Bent 1932, p. 280; Davis et al. 1979, pp. 56, 116; Cannon and 
Knopf 1980, pp. 73-74; Crawford 1980, p. 3; Bidwell and Peoples 1991, 
pp. 1-2; Riley et al. 1992, p. 387; Giesen 1994a, p. 97). Some studies 
have shown that overgrazing in specific portions of the lesser prairie-
chicken's occupied range has been detrimental to the species. Taylor 
and Guthery (1980a, p. 2) believed overgrazing explained the demise of 
the lesser prairie-chicken in portions of Texas but thought lesser 
prairie-chickens could maintain low populations in some areas with 
high-intensity, long-term grazing. In New Mexico, Patten et al. (2006, 
pp. 11, 16) found that grazing did not have an overall influence on 
where lesser prairie-chickens occurred within their study areas, but 
there was some evidence that the species did not nest in portions of 
the study area subjected to cattle grazing. In some areas within lesser 
prairie-chicken range, long-term high-intensity grazing results in 
reduced availability of lightly grazed habitat available to support 
successful nesting (Jackson and DeArment 1963, p. 737; Davis et al. 
1979, pp. 56, 116; Taylor and Guthery 1980a, p. 12; Davies 1992, pp. 8, 
    In summary, domestic livestock grazing (including management 
practices commonly used to benefit livestock production) has altered 
the composition and structure of mixed-grass habitats historically used 
by the lesser prairie-chicken. Much of the remaining remnants of mixed-
grass prairie and rangeland, while still important to the lesser 
prairie-chicken, exhibit conditions quite different from those that 
prevailed prior to EuroAmerican settlement. These changes have 
considerably reduced the suitability of remnant areas as habitat for 
lesser prairie-chickens. Where habitats are no longer suitable for 
lesser prairie-chicken, these areas can contribute to fragmentation 
within the landscape even though they may remain in native prairie. 
Where improper livestock grazing has degraded native grasslands and 
shrublands, we do not expect those areas to significantly contribute to 
persistence of the lesser prairie-chicken, particularly when considered 
cumulatively with the influence of the other known threats.
Collision Mortality
    Wire fencing is ubiquitous throughout the Great Plains as the 
primary means of confining livestock to ranches and pastures or 
excluding them from areas not intended for grazing, such as CRP lands, 
agricultural fields, and public roads. As a result, thousands of miles 
of fencing, primarily barbed wire, have been constructed throughout 
lesser prairie-chicken range. Like most grassland wildlife throughout 
the Great Plains, the lesser prairie-chicken evolved in open habitats 
free of vertical structures or flight hazards, such as linear wires. 
Until recently, unnatural linear features such as fences, power lines, 
and similar wire structures were seldom perceived as a significant 
threat at the population level (Wolfe et al. 2007, p. 101). Information 
on the influence of vertical structures is provided elsewhere in this 
    Mortality of prairie grouse caused by collisions with power lines 
has been occurring for decades, but the overall extent is largely 
unmonitored. Leopold (1933, p. 353) mentions a two-cable transmission 
line in Iowa where the landowner would find as many as a dozen dead or 
injured greater prairie-chickens beneath the line annually. Prompted by 
recent reports of high collision rates in species of European grouse 
(Petty 1995, p. 3; Baines and Summers 1997, p. 941; Bevanger and 
Broseth 2000, p. 124; Bevanger and Broseth 2004, p. 72) and seemingly 
unnatural rates of mortality in some local populations of lesser 
prairie-chicken, the Sutton Center began to investigate collision 
mortality in lesser prairie-chickens. From 1999 to 2004, researchers 
recovered 322 carcasses of radio-marked lesser prairie-chickens in New 
Mexico, Oklahoma, and portions of the Texas panhandle. For lesser 
prairie-chickens in which the cause of death could be determined, 42 
percent of mortality in Oklahoma was attributable to collisions with 
fences, power lines, or automobiles. In New Mexico, only 14 percent of 
mortality could be traced to collision. The difference in rates of 
observed collision between States was attributed to differences in the 
amount of fencing on the landscape resulting from differential land 
settlement patterns in the two States (Patten et al. 2005b, p. 245).

[[Page 73863]]

    With between 14 and 42 percent of adult lesser prairie-chicken 
mortality currently attributable to collision with human-induced 
structures, Wolfe et al. (2007, p. 101) assert that fence collisions 
will negatively influence long-term population viability for lesser 
prairie-chickens. Precisely quantifying the scope of the impact of 
fence collisions rangewide is difficult due to a lack of relevant 
information. However, we suspect that hundreds of miles of fences are 
constructed annually within the historical range of the lesser prairie-
chicken. Frequently these fences replace existing fence lines and often 
new fences are constructed. We suspect that only rarely are old fences 
removed due to labor involved in removing unneeded fences. While we are 
unable to quantify the amount of new fencing being constructed, 
collision with fences and other linear features is likely an important 
source of mortality for lesser prairie-chicken, particularly in some 
localized areas.
    Fence collisions are known to be a significant source of mortality 
in other grouse. Moss (2001, p. 256) modeled the estimated future 
population of capercaille grouse (Tetrao urogallus) in Scotland and 
found that, by removing fence collision risks, the entire Scotland 
breeding population would consist of 1,300 instead of 40 females by 
2014. Similarly, recent experiments involving fence marking to increase 
visibility resulted in a 71 percent overall reduction in grouse 
collisions in Scotland (Baines and Andrew 2003, p. 174). Additionally, 
proximity to power lines has been associated with extirpations of 
Gunnison and greater sage-grouse (Wisdom et al. 2011, pp. 467-468).
    As previously discussed, collision and mortality risk appears to be 
dependent on factors such as fencing design (height, type, number of 
strands), length, and density, as well as landscape topography and 
proximity of fences to habitats used by lesser prairie-chickens. 
Although single-strand, electric fences may be a suitable substitute 
for barbed-wire fences, we have no information demonstrating such is 
the case. However, marking the top two strands of barbed-wire fences 
increases their visibility and may help minimize incidence of collision 
(Wolfe et al. 2009, entire).
    In summary, power lines and unmarked wire fences are known to cause 
injury and mortality of lesser prairie-chickens, although the specific 
rangewide impact on lesser prairie-chickens is largely unquantified. 
However, the prevalence of fences and power lines within the species' 
range suggests these structures may have at least localized, if not 
widespread, detrimental effects. While some conservation programs have 
emphasized removal of unneeded fences, we believe that, without 
substantially increased removal efforts, a majority of existing fences 
will remain on the landscape indefinitely. Existing fences likely 
operate cumulatively with other mechanisms described in this proposed 
rule to diminish the ability of the lesser prairie-chicken to persist, 
particularly in areas with a high density of fences.
Shrub Control and Eradication
    Shrub control and eradication are additional forms of habitat 
alteration that can influence the availability and suitability of 
habitat for lesser prairie-chickens (Jackson and DeArment 1963, pp. 
736-737). Herbicide applications (primarily 2,4-D and tebuthiuron) to 
reduce or eliminate shrubs from native rangelands is a common ranching 
practice throughout much of lesser prairie-chicken range, primarily 
intended to increase forage production for livestock. Through foliar 
(2,4-D) or pelleted (tebuthiuron) applications, these herbicides are 
designed to suppress or kill, by repeated defoliation, dicotyledonous 
plants such as forbs, shrubs, and trees, while causing no significant 
damage to monocotyledon plants such as grasses.
    As defined here, control includes efforts that are designed to have 
a relatively short-term, temporary effect, generally less than 4 to 5 
years, on the target shrub. Eradication consists of efforts intended to 
have a more long-term or lasting effect on the target shrub. Control 
and eradication efforts have been applied to both shinnery oak and sand 
sagebrush dominated habitats, although most shrub control and 
eradication efforts are primarily focused on shinnery oak. Control or 
eradication of sand sagebrush occurs within the lesser prairie-chicken 
range (Rodgers and Sexson 1990, p. 494), but the extent is unknown. 
Control or eradication of sand sagebrush appears to be more prevalent 
in other parts of the western United States. Other species of shrubs, 
such as skunkbush sumac or Prunus angustifolia (Chicksaw plum), also 
have been the target of treatment efforts.
    Shinnery oak is toxic to cattle when it first produces leaves in 
the spring, and it also competes with more palatable grasses and forbs 
for water and nutrients (Peterson and Boyd 1998, p. 8). In areas where 
Gossypium spp. (cotton) is grown, shinnery oak often is managed for the 
control of boll weevil (Anthonomus grandis), which can destroy cotton 
crops (Slosser et al. 1985, entire). Boll weevils overwinter in areas 
where large amounts of leaf litter accumulate but tend not to 
overwinter in areas where grasses predominate (Slosser et al. 1985, p. 
384). Fire is typically used to remove the leaf litter, and then 
tebuthiuron, an herbicide, is used to remove shinnery oak (Plains 
Cotton Growers 1998, pp. 2-3). Prior to the late 1990s, approximately 
40,469 ha (100,000 ac) of shinnery oak in New Mexico and 404,685 ha 
(1,000,000 ac) of shinnery oak in Texas were lost due to the 
application of tebuthiuron and other herbicides for agriculture and 
range improvement (Peterson and Boyd 1998, p. 2).
    The shinnery oak vegetation type is endemic to the southern Great 
Plains and is estimated to have historically covered an area of 2.3 
million ha (over 5.6 million ac), although its current range has been 
considerably reduced through eradication (Mayes et al. 1998, p. 1609). 
The distribution of shinnery oak overlaps much of the historical lesser 
prairie-chicken range in New Mexico, southwestern Oklahoma, and Texas 
panhandle region (Peterson and Boyd 1998, p. 2). Sand sagebrush tends 
to be the dominant shrub in lesser prairie-chicken range in Kansas and 
Colorado as well as portions of northwestern Oklahoma, the northeast 
Texas panhandle, and northeastern New Mexico.
    Once shinnery oak is eradicated, it is unlikely to recolonize 
treated areas. Shinnery oak is a rhizomatous shrub that reproduces very 
slowly and does not invade previously unoccupied areas (Dhillion et al. 
1994, p. 52). Shinnery oak rhizomes do not appear to be viable in sites 
where the plant was previously eradicated, even decades after 
treatment. While shinnery oak has been germinated successfully in a 
laboratory setting (Pettit 1986, pp. 1, 3), little documentation exists 
that shinnery oak acorns successfully germinate in the wild (Wiedeman 
1960, p. 22; Dhillion et al. 1994, p. 52). In addition, shinnery oak 
produces an acorn crop in only about 3 of every 10 years (Pettit 1986, 
p. 1).
    While lesser prairie-chickens are found in Colorado and Kansas 
where preferred habitats lack shinnery oak, the importance of shinnery 
oak as a component of lesser prairie-chicken habitat has been 
demonstrated by several studies (Fuhlendorf et al. 2002, pp. 624-626; 
Bell 2005, pp. 15, 19-25). In a study conducted in west Texas, Haukos 
and Smith (1989, p. 625) documented strong nesting avoidance by lesser 
prairie-chickens of shinnery oak rangelands that had been treated with 
the herbicide tebuthiuron. Similar

[[Page 73864]]

behavior was confirmed by three recent studies in New Mexico examining 
aspects of lesser prairie-chicken habitat use, survival, and 
reproduction relative to shinnery oak density and herbicide application 
to control shinnery oak.
    First, Bell (2005, pp. 20-21) documented strong thermal selection 
for and dependency of lesser prairie-chicken broods on dominance of 
shinnery oak in shrubland habitats. In this study, lesser prairie-
chicken hens and broods used sites within the shinnery oak community 
that had a statistically higher percent cover and greater density of 
shrubs. Within these sites, microclimate differed statistically between 
occupied and random sites, and lesser prairie-chicken survival was 
statistically higher in microhabitat that was cooler, more humid, and 
less exposed to the wind. Survivorship was statistically higher for 
lesser prairie-chickens that used sites with greater than 20 percent 
cover of shrubs than for those choosing 10-20 percent cover; in turn, 
survivorship was statistically higher for lesser prairie-chickens 
choosing 10-20 percent cover than for those choosing less than 10 
percent cover. Similarly, Copelin (1963, p. 42) stated that he believed 
the reason lesser prairie-chickens occurred in habitats with shrubby 
vegetation was due to the need for summer shade.
    In a second study, Johnson et al. (2004, pp. 338-342) observed that 
shinnery oak was the most common vegetation type in lesser prairie-
chicken hen home ranges. Hens were detected more often than randomly in 
or near pastures that had not been treated to control shinnery oak. 
Although hens were detected in both treated and untreated habitats in 
this study, 13 of 14 nests were located in untreated pastures, and all 
nests were located in areas dominated by shinnery oak. Areas 
immediately surrounding nests also had higher shrub composition than 
the surrounding pastures. This study suggested that herbicide treatment 
to control shinnery oak adversely impacts nesting lesser prairie-
    Finally, a third study showed that over the course of 4 years and 
five nesting seasons, lesser prairie-chicken in the core of occupied 
range in New Mexico distributed themselves non-randomly among shinnery 
oak rangelands treated and untreated with tebuthiuron (Patten et al. 
2005a, pp. 1273-1274). Lesser prairie-chickens strongly avoided habitat 
blocks treated with tebuthiuron but were not influenced by presence of 
cattle grazing. Further, herbicide treatment explained nearly 90 
percent of the variation in occurrence among treated and untreated 
areas. Over time, radio-collared lesser prairie-chickens spent 
progressively less time in treated habitat blocks, with almost no use 
of treated pastures in the fourth year following herbicide application 
(25 percent in 2001, 16 percent in 2002, 3 percent in 2003, and 1 
percent in 2004).
    In contrast, McCleery et al. (2007, pp. 2135-2136) argued that the 
importance of shinnery oak habitats to lesser prairie-chickens has been 
overemphasized, primarily based on occurrence of the species in areas 
outside of shinnery oak dominated habitats. We agree that shinnery oak 
may not be a rigorously required component of lesser prairie-chicken 
habitat rangewide. However, we believe that shrubs are important to 
lesser prairie-chickens. Recently, Timmer (2012, pp. 38, 73-74) found 
that lesser prairie-chicken lek density peaked when approximately 50 
percent of the landscape was composed of shrubland patches consisting 
of shrubs less than 5 m (16 ft) tall and comprising at least 20 percent 
of the total vegetation. Shrubs are an important component of suitable 
habitat and where shinnery oak occurs, lesser prairie-chickens use it 
both for food and cover. We believe that where shinnery oak 
historically, and still currently, occurs, it provides suitable habitat 
for lesser prairie-chickens. The loss of these habitats likely 
contributed to observed population declines in lesser prairie-chickens. 
Mixed-sand sagebrush and shinnery oak rangelands are well documented as 
preferred lesser prairie-chicken habitat, and long-term stability of 
shrubland landscapes has been shown to be particularly important to the 
species (Woodward et al. 2001, p. 271).
    On BLM lands, where the occurrence of the dunes sagebrush lizard 
and lesser prairie-chicken overlaps, their Resource Management Plan 
Amendment (RMPA) states that tebuthiuron may only be used in shinnery 
oak habitat if there is a 500-m (1,600-ft) buffer around dunes, and 
that no chemical treatments should occur in suitable or occupied dunes 
sagebrush lizard habitat (BLM 2008, p. 4-22). In this RMPA (BLM 2008, 
pp. 16-17), BLM will allow spraying of shinnery oak in lesser prairie-
chicken habitat where it does not overlap with the dunes sagebrush 
lizard. Additionally, the New Mexico State Lands Office and private 
land owners continue to use tebuthiuron to remove shinnery oak for 
cattle grazing and other agricultural purposes (75 FR 77809, December 
14, 2010). The NRCS's herbicide spraying has treated shinnery oak in at 
least 39 counties within shinnery oak habitat (Peterson and Boyd 1998, 
p. 4).
    The BLM, through the Restore New Mexico program, also treats 
mesquite with herbicides to restore grasslands to a more natural 
condition by reducing the extent of brush. While some improvement in 
livestock forage occurs, the areas are rested from grazing for two 
growing seasons and no increase in stocking rate is allowed. Because 
mesquite is not readily controlled by fire, herbicides often are 
necessary to treat its invasion. The BLM has treated some 148,257 ha 
(366,350 ac) and has plans to treat an additional 128,375 ha (317,220 
ac). In order to treat encroaching mesquite, BLM aerially treats with a 
mix of the herbicides Remedy (triclopyr) and Reclaim (clopyralid). 
Although these chemicals are used to treat the adjacent mesquite, some 
herbicide drift into shinnery oak habitats can occur during 
application. Oaks are also included on the list of plants controlled by 
Remedy, and one use for the herbicide is treatment specifically for 
sand shinnery oak suppression, as noted on the specimen label (Dow 
AgroSciences 2008, pp. 5, 7). While Remedy can be used to suppress 
shinnery oak, depending on the concentration, the anticipated impacts 
of herbicide drift into non-target areas are expected to be largely 
short-term due to differences in application rates necessary for the 
desired treatments. Forbs are also susceptible to Remedy, according to 
the specimen label, and may be impacted by these treatments, at least 
temporarily (Dow AgroSciences 2008, p. 2). Typically, shinnery oak and 
mesquite occurrences don't overlap due to inherent preferences for 
sandy versus tighter soils. Depending on the density of mesquite, these 
areas may or may not be used by lesser prairie-chickens prior to 
    Lacking germination of shinnery oak acorns, timely recolonization 
of treated areas, or any established propagation or restoration method, 
the application of tebuthiuron at rates approved for use in most States 
can eliminate high-quality lesser prairie-chicken habitat. Large tracts 
of shrubland communities are decreasing, and native shrubs drive 
reproductive output for ground-nesting birds in shinnery oak rangelands 
(Guthery et al. 2001, p. 116).
    In summary, we conclude that the long-term to permanent removal of 
shinnery oak is an ongoing threat to the lesser prairie-chicken in New 
Mexico, Oklahoma, and Texas. Habitat in which shinnery oak is 
permanently removed may fail to meet basic needs of the species, such 
as foraging, nesting, predator avoidance, and

[[Page 73865]]

thermoregulation. Permanent conversion of shinnery oak and other types 
of shrubland to other land uses contributes to habitat fragmentation 
and poses a threat to population persistence.
    To our knowledge, no studies have been conducted examining 
potential effects of agricultural insecticide use on lesser prairie-
chicken populations. However, impacts from pesticides to other prairie 
grouse have been documented. Of approximately 200 greater sage grouse 
known to be feeding in a block of alfalfa sprayed with dimethoate, 63 
were soon found dead, and many others exhibited intoxication and other 
negative symptoms (Blus et al. 1989, p. 1139). Because lesser prairie-
chickens are known to selectively feed in alfalfa fields (Hagen et al. 
2004, p. 72), the Service believes there may be cause for concern that 
similar impacts could occur. Additionally some control efforts, such as 
grasshopper suppression in rangelands by the USDA Animal and Plant 
Health Inspection Service, treat economic infestations of grasshoppers 
with insecticides. Treatment could cause reductions in insect 
populations used by lesser prairie-chickens. However, in the absence of 
more conclusive evidence, we do not currently consider application of 
insecticides for most agricultural purposes to be a threat to the 

Altered Fire Regimes and Encroachment by Invasive Woody Plants

    Preferred lesser prairie-chicken habitat is characterized by 
expansive regions of treeless grasslands interspersed with patches of 
small shrubs (Giesen 1998, pp. 3-4). Prior to extensive EuroAmerican 
settlement, frequent fires and grazing by large, native ungulates 
helped confine trees like Juniperus virginiana (eastern red cedar) to 
river and stream drainages and rocky outcroppings. However, settlement 
of the southern Great Plains altered the historical disturbance regimes 
and contributed to habitat fragmentation and conversion of native 
grasslands. The frequency and intensity of these disturbances directly 
influenced the ecological processes, biological diversity, and 
patchiness typical of Great Plains grassland ecosystems, which evolved 
with frequent fire and ungulate herbivory and that provided ideal 
habitat for lesser prairie-chickens (Collins 1992, pp. 2003-2005; 
Fuhlendorf and Smeins 1999, pp. 732, 737).
    Once these historical fire and grazing regimes were altered, the 
processes which helped maintain extensive areas of grasslands ceased to 
operate effectively. Following EuroAmerican settlement, fire 
suppression allowed trees, like eastern red cedar, to begin invading or 
encroaching upon neighboring grasslands. Increasing fire suppression 
that accompanied settlement, combined with government programs 
promoting eastern red cedar for windbreaks, erosion control, and 
wildlife cover, increased availability of eastern red cedar seeds in 
grassland areas (Owensby et al. 1973, p. 256). Once established, wind 
breaks and cedar plantings for erosion control contribute to 
fragmentation of the prairie landscape. Because eastern red cedar is 
not well adapted to survive most grassland fires due to its thin bark 
and shallow roots (Briggs et al. 2002b, p. 290), the lack of frequent 
fire greatly facilitated encroachment by eastern red cedar. Once trees 
began to invade these formerly treeless prairies, the resulting habitat 
became increasingly unsuitable for lesser prairie-chickens.
    Similar to the effects of artificial vertical structures, the 
presence of trees causes lesser prairie-chickens to cease using areas 
of otherwise suitable habitat. Woodward et al. (2001, pp. 270-271) 
documented a negative association between landscapes with increased 
woody cover and lesser prairie-chicken population indices. Similarly, 
Fuhlendorf et al. (2002, p. 625) examined the effect of landscape 
structure and change on population dynamics of lesser prairie-chicken 
in western Oklahoma and northern Texas. They found that landscapes with 
declining lesser prairie-chicken populations had significantly greater 
increases in tree cover types (riparian, windbreaks, and eastern red 
cedar encroachment) than landscapes with sustained lesser prairie-
chicken populations.
    Tree encroachment into grassland habitats has been occurring for 
numerous decades, but the extent has been increasing rapidly in recent 
years. Tree invasion in native grasslands and rangelands has the 
potential to render significant portions of remaining occupied habitat 
unsuitable within the future. Once a grassland area has been colonized 
by eastern red cedar, the trees are mature within 6 to 7 years and 
provide a plentiful source of seed in which adjacent areas can readily 
become infested. Although specific information documenting the extent 
of eastern red cedar infestation within the historical range of the 
lesser prairie-chicken is unavailable, limited information from 
Oklahoma and portions of Kansas help demonstrate the significance of 
this threat to lesser prairie-chicken habitat.
    In Riley County, Kansas, within the tallgrass prairie region known 
as the Flint Hills, the amount of eastern red cedar coverage increased 
over 380 percent within a 21-year period (Price and Grabow 2010, as 
cited in Beebe et al. 2010, p. 2). In another portion of the Flint 
Hills of Kansas, transition from a tallgrass prairie to a closed canopy 
(where tree canopy is dense enough for tree crowns to fill or nearly 
fill the canopy layer so that light cannot reach the floor beneath the 
trees) eastern red cedar forest occurred in as little as 40 years 
(Briggs et al. 2002a, p. 581). Similarly, the potential for development 
of a closed canopy (crown closure) in western Oklahoma is very high 
(Engle and Kulbeth 1992, p. 304), and eastern red cedar encroachment in 
Oklahoma is occurring at comparable rates. Estimates developed by NRCS 
in Oklahoma revealed that some 121,406 ha (300,000 ac) a year are being 
infested by eastern red cedar (Zhang and Hiziroglu 2010, p. 1033). 
Stritzke and Bidwell (1989, as cited in Zhang and Hiziroglu 2010, p. 
1033) estimated that the area infested by eastern red cedar increased 
from over 600,000 ha (1.5 million ac) in 1950 to over 1.4 million ha 
(3.5 million ac) by 1985. By 2002, the NRCS estimated that eastern red 
cedar had invaded some 3.2 million ha (8 million ac) of prairie and 
cross timbers habitat in Oklahoma (Drake and Todd 2002, p. 24). Eastern 
red cedar encroachment in Oklahoma is expected to exceed 5 million ha 
(12.6 million ac) by 2013 (Zhang and Hiziroglu 2010, p. 1033). While 
the area infested by eastern red cedar in Oklahoma is not restricted to 
the historical or occupied range of the lesser prairie-chicken, the 
problem appears to be the worst in northwestern and southwestern 
Oklahoma (Zhang and Hiziroglu 2010, p. 1032). Considering that 
southwestern Kansas and the northeastern Texas panhandle have 
comparable rates of precipitation, fire exclusion, and grazing pressure 
as western Oklahoma, this rate of infestation is likely occurring in 
many areas of occupied and historical lesser prairie-chicken range.
    Eastern red cedar is not the only woody species known to be 
encroaching in prairies used by lesser prairie-chicken. Within the 
southern- and western-most portions of the historical range in New 
Mexico and Texas, mesquite is the most common woody invader within 
these grasslands and can preclude nesting and brood use by lesser 
prairie-chickens (Riley 1978, p. vii). Mesquite is an ideal woody 
invader in grassland habitats due to its ability to

[[Page 73866]]

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

Climate Change

    The effects of ongoing and projected changes in climate are 
appropriate for consideration in our analyses conducted under the Act. 
The Intergovernmental Panel on Climate Change (IPCC) has concluded that 
warming of the climate in recent decades is unequivocal, as evidenced 
by observations of increases in global average air and ocean 
temperatures, widespread melting of snow and ice, and rising global sea 
level (Solomon et al. 2007, p. 1). The term ``climate'', as defined by 
the IPCC, refers to the mean and variability of different types of 
weather conditions over time, with 30 years being a typical period for 
such measurements, although shorter or longer periods also may be used 
(IPCC 2007a, p. 78). The IPCC defines the term ``climate change'' to 
refer to a change in the mean or variability of one or more measures of 
climate (e.g., temperature or precipitation) that persists for an 
extended period, typically decades or longer, whether the change is due 
to natural variability, human activity, or both (IPCC 2007a, p. 78).
    Scientific measurements spanning several decades demonstrate that 
changes in climate are occurring and that the rate of change has been 
faster since the 1950s. Examples include warming of the global climate 
system and substantial increases in precipitation in some regions of 
the world and decreases in other regions. (For these and other 
examples, see IPCC 2007a, p. 30; and Solomon et al. 2007, pp. 35-54, 
82-85). Results of scientific analyses presented by the IPCC show that 
most of the observed increase in global average temperature since the 
mid-20th century cannot be explained by natural variability in climate, 
and is ``very likely'' (defined by the IPCC as 90 percent or higher 
probability) due to the observed increase in greenhouse gas 
concentrations in the atmosphere as a result of human activities, 
particularly carbon dioxide emissions from use of fossil fuels (IPCC 
2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp. 
21-35). Further confirmation of the role of greenhouse gasses comes 
from analyses by Huber and Knutti (2011, p. 4), who concluded it is 
extremely likely that approximately 75 percent of global warming since 
1950 has been caused by human activities.
    Scientists use a variety of climate models, which include 
consideration of natural processes and variability, as well as various 
scenarios of potential levels and timing of greenhouse gas emissions, 
to evaluate the causes of changes already observed and to project 
future changes in temperature and other climate conditions (e.g., Meehl 
et al. 2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et 
al. 2011, pp. 527, 529). All combinations of models and emissions 
scenarios yield very similar projections of increases in the most 
common measure of climate change, average global surface temperature 
(commonly known as global warming), until about 2030. Although 
projections of the intensity and rate of warming differ after about 
2030, the overall trajectory of all the projections is one of increased 
global warming through the end of this century, even for the 
projections based on scenarios that assume that greenhouse gas 
emissions will stabilize or decline. Thus, there is strong scientific 
support for projections that warming will continue through the 21st 
century and that the extent and rate of change will be influenced 
substantially by the extent of greenhouse gas emissions (IPCC 2007a, 
pp. 44-45; Meehl et al. 2007, pp. 760-764 and 797-811; Ganguly et al. 
2009, pp. 15555-15558; Prinn et al. 2011, pp. 527, 529). (See IPCC 
2007b, p. 8, for a summary of other global projections of climate-
related changes, such as frequency of heat waves and changes in 
precipitation. Also, see IPCC (2012, entire) for a summary of 

[[Page 73867]]

and projections of extreme climate events.)
    Various changes in climate may have direct or indirect effects on 
species. These effects may be positive, neutral, or negative, and they 
may change over time, depending on the species and other relevant 
considerations, such as interactions of climate with other variables 
(e.g., habitat fragmentation) (IPCC 2007a, pp. 8-14, 18-19). 
Identifying likely effects often involves aspects of climate change 
vulnerability analysis. Vulnerability refers to the degree to which a 
species (or system) is susceptible to, and unable to cope with, adverse 
effects of climate change, including climate variability and extremes. 
Vulnerability is a function of the type, intensity, and rate of climate 
change and variation to which a species is exposed, its sensitivity, 
and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al. 
2011, pp. 19-22). There is no single method for conducting such 
analyses that applies to all situations (Glick et al. 2011, p. 3). We 
use our expert judgment and appropriate analytical approaches to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    As is the case with all stressors that we assess, even if we 
conclude that a species is currently affected or is likely to be 
affected in a negative way by one or more climate-related impacts, it 
does not necessarily follow that the species meets the definition of an 
``endangered species'' or a ``threatened species'' under the Act. If a 
species is listed as endangered or threatened, knowledge regarding the 
vulnerability of the species to, and known or anticipated impacts from, 
climate-associated changes in environmental conditions can be used to 
help devise appropriate strategies for its recovery.
    Some species of grouse have already exhibited significant and 
measurable negative impacts attributed to climate change. For example, 
capercaillie grouse in Scotland have been shown to nest earlier than in 
historical periods in response to warmer springs yet reared fewer 
chicks (Moss et al. 2001, p. 58). The resultant lowered breeding 
success as a result of the described climactic change was determined to 
be the major cause of the decline of the Scottish capercaillie (Moss et 
al. 2001, p. 58).
    Within the Great Plains, average temperatures have increased and 
projections indicate this trend will continue over this century (Karl 
et al. 2009, p. 1). Precipitation within the southern portion of the 
Great Plains is expected to decline, with extreme events such as heat 
waves, sustained droughts, and heavy rainfall becoming more frequent 
(Karl et al. 2009, pp. 1-2). Seager et al. (2007, pp. 1181, 1183-1184) 
suggests that `dust bowl' conditions of the 1930s could be the new 
climatology of the American Southwest, with droughts being much more 
extreme than most droughts on record.
    As a result of changing conditions, the distribution and abundance 
of grassland bird species will be affected (Niemuth et al. 2008, p. 
220). Warmer air and surface soil temperatures and decreased soil 
moisture near nest sites have been correlated with lower survival and 
recruitment in some ground-nesting birds such as the bobwhite quail 
(Guthery et al. 2001, pp. 113-115) and the lesser prairie-chicken (Bell 
2005, pp. 16, 21). On average, lesser prairie-chickens avoid sites that 
were hotter, drier, and more exposed to the wind (Patten et al. 2005a, 
p. 1275). Specific to lesser prairie chickens, an increased frequency 
of heavy rainfall events could affect their reproductive success 
(Lehmann 1941 as cited in Peterson and Silvy 1994, p. 223; Morrow et 
al. 1996, p. 599) although the deleterious effects of increased 
precipitation have been disputed by Peterson and Silvy (1994, pp. 227-
    Additionally, more extreme droughts, in combination with existing 
threats, will have detrimental implications for the lesser prairie-
chicken (see Drought discussion in ``Extreme Weather Events'' below). 
Boal et al. (2010, p. 4) suggests that increased temperatures, as 
projected by climate models, may lead to egg death or nest abandonment 
of lesser prairie-chickens. Furthermore, the researchers suggest that 
if lesser prairie-chickens shift timing of reproduction (to later in 
the year) to compensate for lower precipitation, then temperature 
impacts could be exacerbated.
    In 2010, the Service evaluated three different climate change 
vulnerability models to determine their usefulness as potential tools 
for examining the effects of climate change (U.S. Environmental 
Protection Agency 2009, draft review; NatureServe 2010; USDA Rocky 
Mountain Research Station 2010, in development). Outcomes from our 
assessment of each of these models for the lesser prairie-chicken 
suggested that the lesser prairie-chicken is highly vulnerable to, and 
will be negatively affected by, projected climate change. Factors 
identified in the models that increase the vulnerability of the lesser 
prairie chicken to climate change include, but are not limited to the 
following: (1) The species' limited distribution and relatively small 
declining population, (2) the species' physiological sensitivity to 
temperature and precipitation change, (3) specialized habitat 
requirements, and (4) the overall limited ability of the habitats 
occupied by the species to shift at the same rate as the species in 
response to climate change.
    Increasing temperatures, declining precipitation, and extended, 
severe drought events would be expected to adversely alter habitat 
conditions, reproductive success, and survival of the lesser prairie-
chicken. While populations of lesser prairie-chicken in the 
southwestern part of their range are likely to be most acutely 
affected, populations throughout their range into Colorado and Kansas 
likely will be impacted as well. Based on current climate change 
projections of increased temperatures, decreased rainfall, and an 
increase of severe events such as drought and rainfall within the 
southern Great Plains, the lesser prairie-chicken is likely to be 
adversely impacted by the effects of climate changes, especially when 
considered in combination with other known threats and the anticipated 
vulnerability of the species.
    Additionally, many climate scientists predict that numerous species 
will shift their geographical distributions in response to warming of 
the climate (McLaughlin et al. 2002, p. 6070). In mountainous areas, 
species may shift their range altitudinally, in flatter areas, ranges 
may shift lattitudinally (Peterson 2003, p. 647). Such shifts may 
result in localized extinctions over portions of the range, and, in 
other portions of their distributions, the occupied range may expand, 
depending upon habitat suitability. Changes in geographical 
distributions can vary from subtle to more dramatic rearrangements of 
occupied areas (Peterson 2003, p. 650). Species occupying flatland 
areas such as the Great Plains generally were expected to undergo more 
severe range alterations than those in montane areas (Peterson 2003, p. 
651). Additionally, populations occurring in fragmented habitats can be 
more vulnerable to effects of climate change and other threats, 
particularly for species with limited dispersal abilities (McLaughlin 
et al. 2002, p. 6074). Species inhabiting relatively flat lands will 
require corridors that allow north-south movements, presuming suitable 
habitat exists in these areas. Where existing occupied range is bounded 
by areas of unsuitable habitat, the species' ability to move into 
suitable areas is reduced and the amount of occupied habitat could 
shrink accordingly. In some cases, particularly when natural movement 
has a high probability of failure, assisted migration

[[Page 73868]]

may be necessary to ensure populations persist ((McLachlan et al. 2007, 
    We do not currently know how the distribution of lesser prairie-
chickens may change geographically under anticipated climate change 
scenarios. Certainly the presence of suitable grassland habitats 
created under CRP may play a key role in how lesser prairie-chickens 
respond to the effects of climate change. Additionally, species that 
are insectivorous throughout all or a portion of their life cycle, like 
the lesser prairie-chicken, may have increased risks where a 
phenological mismatch exists between their biological needs and shifts 
in insect abundance due to vulnerability of insects to changes in 
thermal regimes (Parmesan 2006, pp. 638, 644, 657; McLachlan et al. 
2011. p. 5). McLachlan et al. (2011, pp. 15, 26) predicted that lesser 
prairie-chicken carrying capacity would decline over the next 60 years 
due to climate change, primarily the result of decreased vegetation 
productivity (reduced biomass); however, they could not specifically 
quantify the extent of the decline. They estimated the current carrying 
capacity to be 49,592 lesser prairie-chickens (McLachlan et al. 2011, 
p. 25). Based on their analysis, McLachlan et al. (2011, p. 29) 
predicted that the lesser prairie-chicken may be facing significant 
challenges to long-term survival over the next 60 years due to climate-
related changes in native grassland habitat. We anticipate that 
climate-induced changes in ecosystems, including grassland ecosystems 
used by lesser prairie-chickens, coupled with ongoing habitat loss and 
fragmentation will interact in ways that will amplify the individual 
negative effects of these and other threats identified in this proposed 
rule (Cushman et al. 2010, p. 8).
Extreme Weather Events
    Weather-related events such as drought and hail storms influence 
habitat quality or result in direct mortality of lesser prairie-
chicken. Although hail storms typically only have a localized effect, 
the effects of snow storms and drought can often be more wide-spread 
and can affect considerable portions of the occupied range.
    Drought--Drought is considered a universal ecological driver across 
the Great Plains (Knopf 1996, p. 147). Annual precipitation within the 
Great Plains is considered highly variable (Wiens 1974a, p. 391) with 
prolonged drought capable of causing local extinctions of annual forbs 
and grasses within stands of perennial species, and recolonization is 
often slow (Tilman and El Haddi 1992, p. 263). Net primary production 
in grasslands is strongly influenced by annual precipitation patterns 
(Sala et al. 1988, pp. 42-44; Weltzin et al. 2003. p. 944) and drought, 
in combination with other factors, is thought to limit the extent of 
shrubby vegetation within grasslands (Briggs et al. 2005, p. 245). 
Grassland bird species, in particular, are impacted by climate extremes 
such as extended drought, which acts as a bottleneck that allows only a 
few species to survive through the relatively harsh conditions (Wiens 
1974a, pp. 388, 397; Zimmerman 1992, p. 92). Drought also can influence 
many of the factors previously addressed in this proposed rule, such as 
exaggerating and prolonging the effect of fires and overgrazing.
    The Palmer Drought Severity Index (Palmer 1965, entire) is a 
measure of the balance between moisture demand (evapotranspiration 
driven by temperature) and moisture supply (precipitation) and is 
widely used as an indicator of the intensity of drought conditions 
(Alley 1984, entire). This index is standardized according to local 
climate (i.e., climate divisions established by the National Oceanic 
and Atmospheric Administration) and is most effective in determining 
magnitude of long-term drought occurring over several months. The index 
uses zero as normal with drought shown in terms of negative numbers. 
Positive numbers imply excess precipitation.
    The droughts of the 1930s and 1950s are some of the most severe on 
record (Schubert et al. 2004, p. 485). During these periods, the Palmer 
Drought Severity Index exceeded negative 4 and 5 in many parts of the 
Great Plains, which would be classified as extreme to exceptional 
drought. The drought that impacted much of the occupied lesser prairie-
chicken range in 2011 also was classified as severe to extreme, 
particularly during the months of May through August (National Climatic 
Data Center 2012). This time period is significant because the period 
of May through September generally overlaps the lesser prairie-chicken 
nesting and brood-rearing season. Review of the available records for 
the Palmer Drought Severity Index during the period from May through 
September 2011, for many of the climate divisions within the lesser 
prairie-chicken occupied range, revealed that the index exceeded 
negative 4 over most of the occupied range. Climate division 4 in 
westcentral Kansas was the least impacted by drought in 2011, with a 
Palmer Drought Severity Index of negative 2.29. The most severe drought 
occurred in the Texas panhandle.
    Based on an evaluation of the Palmer Drought Severity Index for May 
through July of 2012, several of the climate divisions which overlap 
the occupied range are currently experiencing extreme to exceptional 
drought. Colorado, New Mexico, and Texas are experiencing the worst 
conditions, based on index values varying from a low of negative 5.8 in 
Colorado to a high index value of negative 4.1 in Texas and New Mexico. 
Drought is least severe in Oklahoma, although climate division 4 is 
currently at negative 2.4. Index values for Kansas are in the severe 
range and vary from negative 2.7 to negative 3.3. Such persistent 
drought conditions will impact vegetative cover for nesting and can 
reduce insect populations needed by growing chicks. Additionally, 
drought impacts forage needed by livestock and continued grazing under 
such conditions can rapidly degrade native rangeland.
    During times of severe to extreme drought, suitable livestock 
forage may become unavailable or considerably reduced due to a loss of 
forage production on existing range and croplands. Through provisions 
of the CRP, certain lands under existing contract can be used for 
emergency haying and grazing, provided specific conditions are met, to 
help relieve the impacts of drought by temporarily providing livestock 
forage. Typically, emergency haying and grazing is allowed only on 
those lands where appropriate Conservation Practices (CP), already 
approved for managed haying and grazing, have been applied to the CRP 
field. For example, CRP fields planted to either introduced grasses 
(CP-1) or native grasses (CP-2) are eligible. However, during the 
widespread, severe drought of 2012, some additional CPs that were not 
previously eligible to be hayed or grazed were approved for emergency 
haying and grazing only during 2012. Typically any approved emergency 
haying or grazing must occur outside of the primary nesting season. The 
duration of the emergency haying can be no longer than 60 calendar 
days, and the emergency grazing period cannot extend beyond 90 calendar 
days, and both must conclude by September 30th of the current growing 
season. Generally areas that were emergency hayed or grazed in 1 year 
are not eligible the following 2 years. Other restrictions also may 
    In most years, the amounts of land that are hayed or grazed are 
low, typically less than 15 percent of eligible acreage, likely because 
the producer must take a 25 percent reduction in the annual rental 
payment, based on the amount of lands that are hayed or

[[Page 73869]]

grazed. However, during the 2011 drought, requests for emergency haying 
and grazing were larger than previously experienced. For example, in 
Oklahoma, more than 103,200 ha (255,000 ac) or roughly 30 percent of 
the available CRP lands statewide were utilized. Within those counties 
that encompass the occupied range, almost 55,400 ha (137,000 ac) or 
roughly 21 percent of the available CRP in those counties were hayed or 
grazed. In Kansas, there were almost 95,900 ha (237,000 ac) under 
contract for emergency haying or grazing within the occupied range. The 
number of contracts for emergency haying and grazing within occupied 
range is about 18 percent of the total number of contracts within 
occupied range. Within New Mexico in 2011, there were approximately 
25,900 ha (64,100 ac) under contract for emergency grazing, 97 percent 
of which were in counties that are either entirely or partially within 
the historical range of the lesser prairie-chicken. Texas records do 
not differentiate between managed CRP grazing and haying and that 
conducted under emergency provisions. Within the historical range in 
2011, some 65 counties had CRP areas that were either hayed or grazed. 
The average percent of areas used was 22 percent. Within the occupied 
counties, the average percent grazed was the same, 22 percent.
    As of the close of July 2012, the entire occupied and historical 
range of the lesser prairie-chicken was classified as abnormally dry or 
worse (Farm Service Agency 2012, p. 14). The abnormally dry category 
roughly corresponds to a Palmer Drought Index of minus 1.0 to minus 
1.9. Based on new provisions announced by USDA on July 23, 2012, the 
entire historical and currently occupied range of the lesser prairie-
chicken is eligible for emergency haying and grazing. Additionally, the 
reduction in the annual rental payment has been reduced from 25 percent 
to 10 percent. Although the actual extent of emergency haying and 
grazing that occurs will not be known until after September 30, 2012, 
we expect that the effect will be significant. The extent of emergency 
haying in the 2012 season and its impact on lesser prairie-chicken 
habitat will be analyzed as part of our final listing determination. In 
many instances, areas that were grazed or hayed under the emergency 
provisions of 2011 have not recovered due to the influence of the 
ongoing drought. Additionally, current provisions will allow additional 
fields to be eligible for emergency haying and grazing that have 
previously not been eligible, including those classified as rare and 
declining habitat (CP-25). Conservation Practice 25 provides for very 
specific habitat components beneficial to ground-nesting birds such as 
lesser prairie-chickens. The overall extent of relief provided to 
landowners could result in more widespread implementation of the 
emergency provisions than has been observed in previous years. 
Widespread haying and grazing of CRP under drought conditions may 
compromise the ability of these grasslands to provide year-round escape 
cover and thermal cover during winter, at least until normal 
precipitation patterns return (see sections ``Summary of Recent and 
Ongoing Conservation Actions'' and ``Conservation Reserve Program'' for 
additional information related to CRP).
    Although the lesser prairie-chicken has adapted to drought as a 
component of its environment, drought and the accompanying harsh, 
fluctuating conditions have influenced lesser prairie-chicken 
populations. Following extreme droughts of the 1930s and 1950s, lesser 
prairie-chicken population levels declined and a decrease in their 
overall range was observed (Lee 1950, p. 475; Schwilling 1955, pp. 5-6; 
Hamerstrom and Hamerstrom 1961, p. 289; Copelin 1963, p. 49; Crawford 
1980, pp. 2-5; Massey 2001, pp. 5, 12; Hagen and Giessen 2005, 
unpaginated; Ligon 1953 as cited in New Mexico Lesser Prairie Chicken/
Sand Dune Lizard Working Group 2005, p. 19). More recently, a reduction 
in lesser prairie-chicken population indices was documented after 
drought conditions in 2006 followed by severe winter conditions in 2006 
and early 2007. For example, Rodgers (2007b, p. 3) stated that lesser 
prairie-chicken lek indices from surveys conducted in Hamilton County, 
Kansas, declined by nearly 70 percent from 2006 levels and were the 
lowest on record. In comparison to the 2011 drought, the Palmer Drought 
Severity Index for the May through September period in Kansas during 
the 2006 drought was minus 2.83 in climate division 4 and minus 1.51 in 
climate division 7. Based on the Palmer Drought Severity Index, drought 
conditions in 2011 were slightly worse than those observed in 2006.
    Drought impacts the lesser prairie-chicken through several 
mechanisms. Drought affects seasonal growth of vegetation necessary to 
provide suitable nesting and roosting cover, food, and opportunity for 
escape from predators (Copelin 1963, pp. 37, 42; Merchant 1982, pp. 19, 
25, 51; Applegate and Riley 1998, p. 15; Peterson and Silvy 1994, p. 
228; Morrow et al. 1996, pp. 596-597). Lesser prairie-chicken home 
ranges will temporarily expand during drought years (Copelin 1963, p. 
37; Merchant 1982, p. 39) to compensate for scarcity in available 
resources. During these periods, the adult birds expend more energy 
searching for food and tend to move into areas with limited cover in 
order to forage, leaving them more vulnerable to predation and heat 
stress (Merchant 1982, pp. 34-35; Flanders-Wanner et al. 2004, p. 31). 
Chick survival and recruitment may also be depressed by drought 
(Merchant 1982, pp. 43-48; Morrow 1986, p. 597; Giesen 1998, p. 11; 
Massey 2001, p. 12), which likely affects population trends more than 
annual changes in adult survival (Hagen 2003, pp. 176-177). Drought-
induced mechanisms affecting recruitment include decreased 
physiological condition of breeding females (Merchant 1982, p. 45); 
heat stress and water loss of chicks (Merchant 1982, p. 46); and 
effects to hatch success and juvenile survival due to changes in 
microclimate, temperature, and humidity (Patten et al. 2005a, pp. 1274-
1275; Bell 2005, pp. 20-21; Boal et al. 2010, p. 11). Precipitation, or 
lack thereof, appears to affect lesser prairie-chicken adult population 
trends with a potential lag effect (Giesen 2000, p. 145). That is, rain 
in one year promotes more vegetative cover for eggs and chicks in the 
following year, which enhances their survival.
    Although lesser prairie-chickens have persisted through droughts in 
the past, the effects of such droughts are exacerbated by 19th-21st 
century land use practices such as heavy grazing, overutilization, and 
land cultivation (Merchant 1982, p. 51; Hamerstrom and Hamerstrom 1961, 
pp. 288-289; Davis et al. 1979, p. 122; Taylor and Guthery 1980a, p. 
2), which have altered and fragmented existing habitats. In past 
decades, fragmentation of lesser prairie-chicken habitat likely was 
less extensive than current conditions, and connectivity between 
occupied habitats was more prevalent, allowing populations to recover 
more quickly. As lesser prairie-chicken populations decline and become 
more fragmented, their ability to rebound from prolonged drought is 
diminished. This reduced ability to recover from drought is 
particularly concerning given that future climate projections suggest 
that droughts will only become more severe. Projections based on an 
analysis using 19 different climate models revealed that southwestern 
North America, including the entire historical range of the lesser 
prairie-chicken, will consistently become drier throughout

[[Page 73870]]

the 21st century (Seager et al. 2007, p. 1181). Severe droughts should 
continue into the future, particularly during persistent La Ni[ntilde]a 
events, but they are anticipated to be more severe than most droughts 
on record (Seager et al. 2007, pp. 1182-1183).
    Storms--Very little published information is available on the 
effects of certain isolated weather events, like storms, on lesser 
prairie-chicken. However, hail storms are known to cause mortality of 
prairie grouse, particularly during the spring nesting season. Fleharty 
(1995, p. 241) provides an excerpt from the May 1879 Stockton News that 
describes a large hailstorm near Kirwin, Kansas, as responsible for 
killing prairie-chickens (likely greater prairie-chicken) and other 
birds by the hundreds. In May of 2008, a hailstorm was known to have 
killed six lesser prairie-chickens in New Mexico. Although such 
phenomena are undoubtedly rare, the effects can be significant, 
particularly if they occur during the nesting period. We are especially 
interested in documenting the occurrence and significance of such 
events on the lesser prairie-chicken.
    A severe winter snowstorm in 2006, centered over southeastern 
Colorado, resulted in heavy snowfall, no cover, and little food in 
southern Kiowa, Prowers, and most of Baca Counties for over 60 days. 
The storm was so severe that more than 10,000 cattle died in Colorado 
alone from this event, in spite of the efforts of National Guard and 
other flight missions that used cargo planes and helicopters to drop 
hay to stranded cattle (Che et al. 2008, pp. 2, 6). Lesser prairie-
chicken numbers in Colorado experienced a 75 percent decline from 2006 
to 2007, from 296 birds observed to only 74. Active leks also declined 
from 34 leks in 2006 to 18 leks in 2007 (Verquer 2007, p. 2). Most 
strikingly, no active leks have been detected since 2007 in Kiowa 
County, which had six active leks in the several years prior to the 
storm. The impacts of the severe winter weather, coupled with drought 
conditions observed in 2006, probably account for the decline in the 
number of lesser prairie-chickens observed in 2007 in Colorado (Verquer 
2007, pp. 2-3).
    In summary, extreme weather events can have a significant impact on 
individual populations of lesser prairie-chickens. These impacts are 
especially significant in considering the status of the species as a 
whole if the impacted population is isolated from individuals in other 
nearby populations that may be capable of recolonizing or supplementing 
the impacted population.

Wind Power and Energy Transmission Operation and Development

    Wind power is a form of renewable energy that is increasingly being 
used to meet electricity demands in the United States. The U.S. Energy 
Information Administration has estimated that the demand for 
electricity in the United States will grow by 39 percent between 2005 
and 2030 (U.S. Department of Energy (DOE) 2008, p. 1). Wind energy, 
under one scenario, would provide 20 percent of the United States' 
estimated electricity needs by 2030 and require at least 250 gigawatts 
of additional land-based wind power capacity to achieve predicted 
levels (DOE 2008, pp. 1, 7, 10). The forecasted increase in production 
would require some 125,000 turbines based on the existing technology 
and equipment in use and assuming a turbine has a generating capacity 
of 2 megawatts (MW). Achieving these levels also would require 
expansion of the current electrical transmission system. Financial 
incentives, including grants and tax relief, are available to help 
encourage development of renewable energy sources.
    Wind farm development begins with site monitoring and collection of 
meteorological data to characterize the available wind regime. Turbines 
are installed after the meteorological data indicate appropriate siting 
and spacing. The tubular towers of most commercial, utility-scale 
onshore wind turbines are between 65 m (213 ft) and 100 m (328 ft) 
tall. The most common system uses three rotor blades and can have a 
diameter of as much as 100 m (328 ft). The total height of the system 
is measured when a turbine blade is in the 12 o'clock position and will 
vary depending on the length of the blade. With blades in place, a 
typical system will easily exceed 100 m (328 ft) in height. A wind farm 
will vary in size depending on the size of the turbines and amount of 
land available. Typical wind farm arrays consist of 30 to 150 towers 
each supporting a single turbine. The individual permanent footprint of 
a single turbine unit, about 0.3 to 0.4 ha (0.75 to 1 ac), is 
relatively small in comparison with the overall footprint of the entire 
array (DOE 2008, pp. 110-111). Spacing between each turbine is usually 
5 to 10 rotor diameters to avoid interference between turbines. Roads 
are necessary to access the turbine sites for installation and 
maintenance. One or more substations, where the generated electricity 
is collected and transmitted, also may be built depending on the size 
of the wind farm. The service life of a single turbine is at least 20 
years (DOE 2008, p. 16).
    Siting of commercially viable wind energy developments is largely 
based on wind intensity and consistency, and requires the ability to 
transmit generated power to the users. Any discussion of the effects of 
wind energy development on the lesser prairie-chicken also must take 
into consideration the influence of the transmission lines critical to 
distribution of the energy generated by wind turbines. Transmission 
lines can traverse long distances across the landscape and can be both 
above ground and underground. Most of the impacts associated with 
transmission lines are with the aboveground systems. Support structures 
vary in height depending on the size of the line. Most high-voltage 
powerline towers are 30 to 38 m (98 to 125 ft) high but can be higher 
if the need arises. Local distribution lines are usually much shorter 
in height but can still contribute to fragmentation of the landscape. 
Financial investment in the transmission of electrical power has been 
steadily climbing since the late 1990s and includes not only the cost 
of maintaining the existing system but also includes costs associated 
with increasing reliability and development of new transmission lines 
(DOE 2008, p. 94). Manville (2005, p. 1052) reported that there are at 
least 804,500 km (500,000 mi) of transmission lines (lines carrying 
greater than 115 kilovolts (kV)) within the United States. Recent 
transmission-related activities within the historical range include the 
creation of Competitive Renewable Energy Zones in Texas and the ``X 
plan'' under consideration by the Southwest Power Pool.
    All 5 lesser prairie-chicken States are within the top 12 States 
nationally for potential wind capacity, with Texas ranking second for 
potential wind energy capacity and Kansas ranking third (American Wind 
Energy Association 2012b, entire). The potential for wind development 
within the historical range of the lesser prairie-chicken is apparent 
from the wind potential estimates developed by the DOE's National 
Renewable Energy Laboratory and AWS Truewind. These estimates present 
the predicted mean annual wind speeds at a height of 80 m (262 ft). 
Areas with an average wind speed of 6.5 m/s (21.3 ft/s) and greater at 
a height of 80 m (262 ft) are generally considered to have a suitable 
wind resource for development. All of the historical and current range 
of the lesser prairie-chicken occurs in areas determined to have 6.5 m/
s (21.3 ft/s) or higher average windspeed (DOE National Renewable 
Energy Laboratory

[[Page 73871]]

2010b, p. 1). The vast majority of the occupied range lies within areas 
of 7.5 m/s (24.6 ft/s) or higher windspeeds.
    Wind energy developments already exist within the historical range 
of the lesser prairie-chicken, some of which have impacted occupied 
habitat. The 5 lesser prairie-chicken States are all within the top 20 
States nationally for installed wind capacity (American Wind Energy 
Association 2012a, p. 6). By the close of 1999, the installed capacity, 
in MW, of wind power facilities within the five lesser prairie-chicken 
States was 209 MW; the majority, 184 MW, was provided by the State of 
Texas (DOE National Renewable Energy Laboratory 2010a, p. 1). At the 
close of the first quarter of 2012, the installed capacity within the 
five lesser prairie-chicken States had grown to 16,516 MW (American 
Wind Energy Association 2012a, p. 7). Although not all of this 
installed capacity is located within the historical range of the lesser 
prairie-chicken, and includes offshore wind projects in Texas, there is 
considerable overlap between the historical range and those areas 
having good to excellent wind potential, as determined by the DOE's 
National Renewable Energy Laboratory (DOE National Renewable Energy 
Laboratory 2010b, p. 1). Areas having good to excellent wind potential 
represent the highest priority sites for wind power development.
    Within the estimated occupied range in Colorado, existing wind 
projects are located in Baca, Bent, and Prowers Counties. Colorado's 
installed wind capacity grew by 39 percent in 2011 (American Wind 
Energy Association 2012b, entire). In Kansas, Barber, Ford, Gray, 
Kiowa, and Wichita Counties have existing wind projects. Kansas is 
expected to double their existing capacity in 2012 and leads the United 
States with the most wind power under construction (American Wind 
Energy Association 2012b, entire). Curry, Roosevelt, and Quay Counties 
in the New Mexico portion of the estimated occupied range currently 
have operating wind projects. There are some 14,136 MW (roughly 5,654 
2.5 MW turbines) in the queue awaiting construction (American Wind 
Energy Association 2012b, entire). In Oklahoma, Custer, Dewey, Harper, 
Roger Mills, and Woodward Counties have existing wind farms. Some 393 
MW are under construction and there is another 14,667 MW in the queue 
awaiting construction. In Texas, no wind farms have been constructed 
within the currently occupied counties (American Wind Energy 
Association 2012b, entire).
    Most published literature on the effects of wind development on 
birds focuses on the risks of collision with towers or turbine blades. 
Until recently, there was very little published research specific to 
the effects of wind turbines and transmission lines on prairie grouse 
and much of that focuses on avoidance of the infrastructure associated 
with renewable energy development (see previous discussion on vertical 
structures in the ``Causes of Habitat Fragmentation Within Lesser 
Prairie-Chicken Range'' section above and discussion that follows). We 
suspect that many wind power facilities are not monitored consistently 
enough to detect collision mortalities and the observed avoidance of 
and displacement influenced by the vertical infrastructure observed in 
prairie grouse likely minimizes the opportunity for such collisions to 
occur. However, Vodenal et al. (2011, unpaginated) has observed both 
greater prairie-chickens and plains sharp-tailed grouse (Tympanuchus 
phasianellus jamesi) lekking near the Ainsworth Wind Energy Facility in 
Nebraska since 2006. The average distance of the observed display 
grounds to the nearest wind turbine tower was 1,430 m (4,689 ft) for 
greater prairie-chickens and 1,178 m (3,864 ft) for sharp-tailed 
    While both lesser and greater prairie-chickens appear to be more 
tolerant of these structures than some other species of prairie grouse, 
Hagen (2004, p. 101) cautions that occurrence near these structures may 
be due to strong site fidelity or continued use of suitable habitat 
remnants and that these populations actually may not be able to sustain 
themselves without immigration from surrounding populations (i.e., 
population sink).
    Currently, we have no documentation of any collision-related 
mortality in wind farms for lesser prairie-chickens. Similarly, no 
deaths of gallinaceous birds (upland game birds) were reported in a 
comprehensive review of avian collisions and wind farms in the United 
States; the authors hypothesized that the average tower height and 
flight height of grouse minimized the risk of collision (Erickson et 
al. 2001, pp. 8, 11, 14, 15). However, Johnson and Erickson (2011, p. 
17) monitored commercial scale wind farms in the Columbia Plateau of 
Washington and Oregon and observed that about 13 percent of the 
observed collision mortalities were nonnative upland game birds: Ring-
necked pheasant, gray partridge (Perdix perdix), and chukar (Alectoris 
chukar). Although the risk of collision with individual wind turbines 
appears low, commercial wind energy developments can directly alter 
existing habitat, contribute to habitat and population fragmentation, 
and cause more subtle alterations that influence how species use 
habitats in proximity to these developments (National Research Council 
2007, pp. 72-84).
    Electrical transmission lines can directly affect prairie grouse by 
posing a collision hazard (Leopold 1933, p. 353; Connelly et al. 2000, 
p. 974; Patten et al. 2005b, pp. 240, 242) and can indirectly lead to 
decreased lek recruitment, increased predation, and facilitate invasion 
by nonnative plants. The physical footprint of the actual project is 
typically much smaller than the actual impact of the transmission line 
itself. Lesser prairie-chickens exhibit strong avoidance of tall 
vertical features such as utility transmission lines (Pitman et al. 
2005, pp. 1267-1268). In typical lesser prairie-chicken habitat where 
vegetation is low and the terrain is relatively flat, power lines and 
power poles provide attractive hunting, loafing, and roosting perches 
for many species of raptors (Steenhof et al. 1993, p. 27). The elevated 
advantage of transmission lines and power poles serve to increase a 
raptor's range of vision, allow for greater speed during attacks on 
prey, and serve as territorial markers. Raptors actively seek out power 
lines and poles in extensive grassland areas where natural perches are 
limited. While the effect of this predation on lesser prairie-chickens 
undoubtedly depends on raptor densities, as the number of perches or 
nesting features increase, the impact of avian predation will increase. 
Additional discussion concerning the influence of vertical structures 
on predation of lesser prairie-chickens can be found in the ``Causes of 
Habitat Fragmentation Within Lesser Prairie-Chicken Range'' section 
above, and additional information on predation is provided in a 
separate discussion under ``Predation'' below.
    Transmission lines, particularly due to their length, can be a 
significant barrier to dispersal of prairie grouse, disrupting 
movements to feeding, breeding, and roosting areas. Both lesser and 
greater prairie-chickens avoided otherwise suitable habitat near 
transmission lines and crossed these power lines much less often than 
nearby roads, suggesting that power lines are a particularly strong 
barrier to movement (Pruett et al. 2009a, pp. 1255-1257). Because 
lesser prairie-chickens avoid tall vertical structures like 
transmission lines and because transmission lines can increase 
predation rates, leks located in the vicinity of these structures may 
see reduced recruitment of new males to the

[[Page 73872]]

lek (Braun et al. 2002, pp. 339-340, 343-344). Lacking recruitment, 
leks may disappear as the number of older males decline due to death or 
emigration. Linear corridors such as road networks, pipelines, and 
transmission line rights-of-way can create soil conditions conducive to 
the spread of invasive plant species, at least in semiarid sagebrush 
habitats (Knick et al. 2003, p. 619; Gelbard and Belnap 2003, pp. 424-
425), but the scope of this impact within the range of the lesser 
prairie-chicken is unknown. Spread of invasive plants is most critical 
where established populations of invasive plants begin invading areas 
of native grassland vegetation.
    Electromagnetic fields associated with transmission lines alter the 
behavior, physiology, endocrine systems, and immune function in birds, 
with negative consequences on reproduction and development (Fernie and 
Reynolds 2005, p. 135). Birds are diverse in their sensitivities to 
electromagnetic field exposure with domestic chickens known to be very 
sensitive. Although many raptor species are less affected by these 
fields (Fernie and Reynolds 2005, p. 135), no specific studies have 
been conducted on lesser prairie-chickens. However electromagnetic 
fields associated with powerlines and telecommunication towers may 
explain, at least in part, avoidance of such structures by sage grouse 
(Wisdom et al. 2011, pp. 467-468).
    Identification of the actual number of proposed wind energy 
projects that will be built in any future timeframe is difficult to 
accurately discern. An analysis of the Federal Aviation 
Administration's obstacle database provides some insight into the 
number of existing and proposed wind generation towers. The Federal 
Aviation Administration is responsible for ensuring wind towers and 
other vertical structures are constructed in a manner that ensures the 
safety and efficient use of the navigable airspace. In accomplishing 
this mission, they evaluate applications submitted by the party 
responsible for the proposed construction and alteration of these 
structures. Included in the application is information on the precise 
location of the proposed structure. This information can be used, in 
conjunction with other databases, to determine the number of existing 
and proposed wind generation towers within the historical and occupied 
range of the lesser prairie-chicken. Analysis of this information, as 
available in April 2010, reveals that 6,279 constructed towers are 
within the historical range of the lesser prairie-chicken. Some 8,501 
towers have been approved for construction, and another 1,693 towers 
were pending approval within the historical range of the lesser 
prairie-chicken. While not all of these structures are wind generation 
towers, the vast majority are. Other structures included within the 
database are radio, meteorological, telecommunication, and similar 
types of towers.
    A similar analysis was conducted on lesser prairie-chicken occupied 
range. As of April 2010, the occupied range included 173 towers. Some 
1,950 towers had been approved for construction, and another 250 towers 
were awaiting approval. In January of 2012, the Federal Aviation 
Administration's obstacle database showed that there are some 405 
existing wind turbines in or within 1.6 km (1 mi) of the estimated 
occupied range. In March of 2012, there were 4,887 wind turbines 
awaiting construction, based on this database. Additionally, the 
Southwest Power Pool provides public access to its Generation 
Interconnection Queue (https://studies.spp.org/GenInterHomePage.cfm), 
which provides all of the active requests for connection from new 
energy generation sources requiring Southwest Power Pool approval prior 
to connecting with the transmission grid. The Southwest Power Pool is a 
regional transmission organization which overlaps all or portions of 
nine States and functions to ensure reliable supplies of power, 
adequate transmission infrastructure, and competitive wholesale prices 
of electricity exist. In 2010, within the Southwest Power Pool portion 
of Kansas, New Mexico, Oklahoma, and Texas, there were 177 wind 
generation interconnection study requests totaling 31,883 MW awaiting 
approval. A maximum development scenario, assuming all of these 
projects are built and they install all 2.3 MW wind turbines, would 
result in approximately 13,862 wind turbines being erected in these 
four States.
    The possible scope of this anticipated wind energy development on 
the status of the lesser prairie-chicken can readily be seen in 
Oklahoma where the locations of many of the current and historically 
occupied leks are known. Most remaining large tracts of untilled native 
rangeland, and hence lesser prairie-chicken habitat, occur on 
topographic ridges. Leks, the traditional mating grounds of prairie 
grouse, are consistently located on elevated grassland sites with few 
vertical obstructions (Flock 2002, p. 35). Because of the increased 
elevation, these ridges also are prime sites for wind turbine 
development. In cooperation with ODWC, Service personnel in 2005 
quantified the potential degree of wind energy development in relation 
to existing populations of lesser prairie-chicken in Oklahoma. Using 
ArcView mapping software, all active and historical lesser prairie-
chicken lek locations in Oklahoma, as of the mid 1990s (n = 96), and 
the current occupied range, were compared with the Oklahoma Neural Net 
Wind Power Development Potential Model map created by the Oklahoma Wind 
Power Assessment project. The mapping analysis revealed that 35 percent 
of the recently occupied range in Oklahoma is within areas designated 
by the Oklahoma Wind Power Assessment as ``excellent'' for wind energy 
development. When both the ``excellent'' and ``good'' wind energy 
development classes are combined, some 55 percent of the lesser 
prairie-chicken's occupied range in Oklahoma lies within those two 
    When leks were examined, the same analysis revealed a nearly 
complete overlap on all known active and historical lek locations, 
based on the known active leks during the mid 1990s. Roughly 91 percent 
of the known lesser prairie-chicken lek sites in Oklahoma are within 8 
km (5 mi) of land classified as ``excellent'' for wind development 
(O'Meilia 2005). Over half (53 percent) of all known lek sites in 
Oklahoma occur within 1.6 km (1 mi) of lands classified as 
``excellent'' for commercial wind energy development. This second 
metric is particularly relevant given the average home range for a 
lesser prairie-chicken is about 10 sq km (4 sq mi) and that a majority 
of lesser prairie-chicken nesting generally occurs, on average, within 
3.4 km (2.1 mi) of active leks (Hagen and Giesen 2005, p. 2). Using 
Robel's (2002) estimate derived for the greater prairie-chicken of the 
zone of avoidance for a single commercial-scale wind turbine (1.6 km or 
1 mi), development of commercial wind farms likely will have a 
significant adverse influence on reproduction of the lesser prairie-
chicken, provided lesser prairie-chickens avoid nesting within 1.6 km 
(1 mi) of each turbine.
    Unfortunately, similar analyses are not available for the other 
States due to a lack of comparable information on the location of lek 
sites. Considering western Kansas currently supports the largest number 
and distribution of lesser prairie-chickens of all five States, the 
influence of wind energy development on the lesser prairie-chicken in 
Kansas would likely be just as significant. In 2006, the Governor of 
Kansas initiated the Governor's 2015 Renewable Energy Challenge, an 
objective of which is to have 1,000 MW of renewable energy

[[Page 73873]]

capacity in Kansas by 2015 (Cita et al. 2008, p. 1). A cost-benefit 
study (Cita et al. 2008, Appendix B) found that wind power was the most 
likely and most cost effective form of renewable energy resource for 
Kansas. Modestly assuming an average of 2 MW per turbine--most 
commercial scale turbines are between 1.5 and 2.5 MW--some 500 turbines 
would be erected in Kansas if this goal is to be met.
    While not all of those turbines would be placed in occupied 
habitat, and some overlap in avoidance would occur if turbines were 
oriented in a typical wind farm array, the potential impact could be 
significant. First, the best wind potential in Kansas occurs in the 
western two-thirds of the State and largely overlaps the currently 
occupied lesser prairie-chicken range (DOE, National Renewable energy 
Laboratory 2010b, p. 1). Additionally, Kansas has a voluntary 
moratorium on the development of wind power in the Flint Hills of 
eastern Kansas, which likely will shift the focus of development into 
the central and western portions of the State. Taking these two factors 
into consideration, construction of much of the new wind power 
anticipated in the Governor's 2015 Renewable Energy Challenge likely 
would occur in the western two-thirds of Kansas. If we assume that even 
one-half of the estimated 500 turbines are placed in lesser prairie-
chicken range, 250 turbines would individually impact over 101,000 ha 
(250,000 ac), based on an avoidance distance of 1.6 km (1 mi). The 
habitat loss resulting from the above scenario would further reduce the 
extent of large, unfragmented parcels and influence connectivity 
between remaining occupied blocks of habitat, reducing the amount of 
suitable habitat available to the lesser prairie-chicken. Consequently, 
siting of wind energy arrays and associated facilities, including 
electrical transmission lines, appears to be a serious threat to lesser 
prairie-chickens in western Kansas within the near future (Rodgers 
    In Colorado, the DOE, National Renewable Energy Laboratory (2010b, 
p. 1) rated the southeastern corner of Colorado as having good wind 
resources, the largest area of Colorado with that ranking. The area 
almost completely overlaps the currently occupied range of the lesser 
prairie-chicken in Colorado. The CPW reported that commercial wind 
development is occurring in Colorado, but that most of the effort is 
currently centered north of the occupied range of lesser prairie-
chicken in southeastern Colorado.
    Wind energy development in New Mexico is a lower priority than in 
other States within the range of the lesser prairie-chicken. In New 
Mexico, the suitability for wind energy development in the currently 
occupied range of the lesser prairie-chicken is only rated as fair 
(DOE, National Renewable Energy Laboratory 2010b, p. 1). However, some 
parts of northeastern New Mexico within lesser prairie-chicken 
historical range have been rated as excellent. Northeastern New Mexico 
is important to lesser prairie-chicken conservation because this area 
is vital to efforts to reestablish or reconnect the New Mexico lesser 
prairie-chicken population to those in Colorado and the Texas 
    In Texas, the Public Utility Commission recently directed the 
Electric Reliability Council of Texas (ERCOT) to develop transmission 
plans for wind capacity to accommodate between 10,000 and 25,000 MW of 
power (American Wind Energy Association 2007b, pp. 2-3). ERCOT is a 
regional transmission organization with jurisdiction over most of 
Texas. The remainder of Texas, largely the Texas panhandle, lies within 
the jurisdiction of the Southwest Power Pool. A recent assessment from 
ERCOT identified more than 130,000 MW of high-quality wind sites in 
Texas, more electricity than the entire State currently uses. The 
establishment of Competitive Renewable Energy Zones by ERCOT within the 
State of Texas will facilitate wind energy development throughout 
western Texas. The top four Competitive Renewable Energy Zones, based 
on the development priority of each zones are located within occupied 
and historical lesser prairie-chicken habitat in the Texas panhandle. 
There is a high level of overlap between lesser prairie-chicken 
currently occupied range in Texas and the Competitive Renewable Energy 
Zones, which are designated for future wind energy development in the 
Texas panhandle.
    Wind energy and associated transmission line development in the 
Texas panhandle and portions of west Texas represent a threat to extant 
lesser prairie-chicken populations in the State. Once established, wind 
farms and associated transmission features would severely hamper future 
efforts to restore population connectivity and gene flow (transfer of 
genetic information from one population to another) between existing 
populations that are currently separated by incompatible land uses in 
the Texas panhandle.
    Development of high-capacity transmission lines is critical to the 
development of the anticipated wind energy resources in ensuring that 
the generated power can be delivered to the consumer. According to 
ERCOT (American Wind Energy Association 2007a, p. 9), every $1 billion 
invested in new transmission capacity enables the construction of $6 
billion of new wind farms. We estimate, based on a spatial analysis 
prepared by The Nature Conservancy under their license agreement with 
Ventyx Energy Corporation, that there are some 35,220 km (21,885 mi) of 
transmission lines, having a capacity of 69 kilovolts (kV) or larger, 
in service within the historical range of the lesser prairie-chicken. 
Within the estimated currently occupied range, this analysis estimated 
that about 3,610 km (2,243 mi) of transmission lines with a capacity of 
69kV and larger are currently in service. Within the currently occupied 
range, this same analysis revealed that an additional 856 km (532 mi) 
of 69kV or higher transmission line is anticipated to be in service 
within the near future.
    The Southwest Power Pool has information about several proposed 
electric transmission line upgrades. This organization identified 
approximately 423 km (263 mi) of proposed new transmission lines, 
commonly referred to as the ``X Plan'', that were being evaluated 
during the transmission planning process. Transmission planning 
continues to move forward, and numerous alternatives are being 
evaluated, many of which will connect transmission capacity throughout 
all or portions of occupied lesser prairie-chicken range and serve to 
catalyze extensive wind energy development throughout much of the 
remaining occupied lesser prairie-chicken range in Kansas, Oklahoma, 
and Texas. Additionally, Clean Line Energy is planning to build a major 
direct current transmission line that would originate within the 
western portion of the Oklahoma panhandle, travel the length of the 
panhandle region, and then drop south to near Woodward, Oklahoma, 
before continuing eastward across Oklahoma and Arkansas.
    A similar direct current transmission line, known as the Grain Belt 
Express, is planned for Kansas. The line would originate in west-
central Kansas and continue to its endpoint in the upper Midwestern 
United States. Very little opportunity to interconnect with these lines 
exists due to the anticipated high cost associated with development of 
an appropriate interconnecting substation. Consequently, most of the 
anticipated wind power that will be transmitted across the Oklahoma and 
Kansas projects likely will occur near the western terminals associated 
with these two lines. Assuming a fairly realistic build-out scenario 
for these

[[Page 73874]]

transmission lines, in which wind power projects would most likely be 
constructed within 170 km (105 mi) of the western end points of each 
line, would place most of the estimated occupied range in Colorado, 
Kansas, Oklahoma, and northeast Texas within the anticipated 
development zone. Although both of these projects are still relatively 
early in the planning process, and the specific environmental impacts 
have yet to be determined, a reasonably likely wind power development 
scenario would place much of the occupied range at risk of development.
    In summary, wind energy and associated infrastructure development 
is occurring now and is expected to continue into the foreseeable 
future within occupied portions of lesser prairie-chicken habitat. 
Proposed transmission line improvements will serve to facilitate 
further development of additional wind energy resources. Future wind 
energy developments, based on the known locations of areas with 
excellent to good wind energy development potential, likely will have 
substantial overlap with known lesser prairie-chicken populations. 
There is little published information on the specific effects of wind 
power development on lesser prairie-chickens. Most published reports on 
the effects of wind power development on birds focus on the risks of 
collision with towers or turbine blades. However, we do not expect that 
significant numbers of collisions with spinning blades would be likely 
to occur due to avoidance of the wind towers and associated 
transmission lines by lesser prairie-chickens. The most significant 
impact of wind energy development on lesser prairie-chickens is caused 
by the presence of vertical structures (turbine towers and transmission 
lines) within suitable habitat. Avoidance of these vertical structures 
by lesser prairie-chickens can be as much as 1.6 km (1 mi), resulting 
in large areas (814 ha (2,011 ac) for a single turbine) of unsuitable 
habitat relative to the overall footprint of a single turbine. Where 
such development has occurred or is likely to occur, these areas are no 
longer suitable for lesser prairie-chicken even though many of the 
typical habitat components used by lesser prairie-chicken remain. 
Therefore, considering the scale of current and future wind development 
that is likely within the range of the lesser prairie-chicken and the 
significant avoidance response of the species to these developments, we 
conclude that wind energy development is a threat to the species, 
especially when considered in combination with other habitat 
fragmenting activities.

Roads and Other Similar Linear Features

    Similar to transmission lines, roads are a linear feature on the 
landscape that can contribute to loss and fragmentation of suitable 
habitat, and can fragment populations as a result of behavioral 
avoidance. The observed behavioral avoidance associated with roads is 
likely due to noise, visual disturbance, and increased predator 
movements paralleling roads. For example, roads are known to contribute 
to lek abandonment when they disrupt the important habitat features 
associated with lek sites (Crawford and Bolen 1976b, p. 239). The 
presence of roads allows human encroachment into habitats used by 
lesser prairie-chickens, further causing fragmentation of suitable 
habitat patches. Some mammalian species known to prey on lesser 
prairie-chickens, such as red fox, raccoons, and striped skunks, have 
greatly increased their distribution by dispersing along roads (Forman 
and Alexander 1998, p. 212; Forman 2000, p. 33; Frey and Conover 2006, 
pp. 1114-1115).
    Traffic noise from roads may indirectly impact lesser prairie-
chickens. Because lesser prairie-chickens depend on acoustical signals 
to attract females to leks, noise from roads, oil and gas development, 
wind turbines, and similar human activity may interfere with mating 
displays, influencing female attendance at lek sites and causing young 
males not to be drawn to the leks. Within a relatively short period, 
leks can become inactive due to a lack of recruitment of new males to 
the display grounds.
    Roads also may influence lesser prairie-chicken dispersal, likely 
dependent upon the volume of traffic, and thus disturbance, associated 
with the road. However, roads likely do not constitute a significant 
barrier to dispersal. Lesser prairie-chickens have been shown to avoid 
areas of suitable habitat near larger, multiple-lane, paved roads 
(Pruett et al. 2009a, pp. 1256, 1258). Generally, roads were between 
4.1 and 5.3 times less likely to occur in areas used by lesser prairie-
chickens than areas that were not used and can influence habitat and 
nest site selection (Hagen et al. 2011, pp. 68, 71-72). Lesser prairie-
chickens are thought to avoid major roads due to disturbance caused by 
traffic volume and, perhaps behaviorally, to avoid exposure to 
predators that may use roads as travel corridors. Similar behavior has 
been documented in sage grouse (Oyler-McCance et al. 2001, p. 330). 
When factors believed to have contributed to extirpation of sage grouse 
were examined, Wisdom et al. (2011, p. 467) found that extirpated range 
contained almost 27 times the human density, was 60 percent closer to 
highways, and had 25 percent higher density of roads, in contrast to 
occupied range.
    Roads also can cause direct mortality due to collisions with 
automobiles and possibly increased predation. Although individual 
mortality resulting from collisions with moving vehicles does occur, 
the mortalities typically are not monitored or recorded. Therefore we 
cannot determine the importance of direct mortality from roads on 
lesser prairie-chicken populations.
    Using the data layers provided in StreetMap USA, a product of ESRI 
Corporation and intended for use with ArcGIS, we can estimate the scope 
of the impact of roads on lesser prairie-chickens. Within the entire 
historical range, there are 622,061 km (386,581 mi) of roads. This 
figure includes major Federal and state highways as well as county 
highways and smaller roads. Within the currently occupied range, some 
81,874 km (50,874 mi) of roads have been constructed. While we don't 
anticipate significant expansion of the number of existing roads, these 
roads have already contributed to significant habitat fragmentation 
within the historical and occupied range of the lesser prairie-chicken. 
This fragmentation in combination with other causes described in this 
document further reduces the habitat available to support lesser 
prairie-chicken populations. The resultant fragmentation is detrimental 
to lesser prairie-chickens because they rely on large, expansive areas 
of contiguous rangeland and grassland to complete their life cycle.
    In summary, roads occur throughout the range of the lesser prairie-
chicken and contribute to the threat of cumulative habitat 
fragmentation to the species.

Petroleum Production

    Petroleum production, primarily oil and gas development, is 
occurring over much of the historical and current range of the lesser 
prairie-chicken. Oil and gas development involves activities such as 
surface exploration, exploratory drilling, field development, and 
facility construction. Ancillary facilities can include compressor 
stations, pumping stations, and electrical generators. Activities such 
as well pad construction, seismic surveys, access road development, 
power line construction, and pipeline corridors can directly impact 
lesser prairie-chicken

[[Page 73875]]

habitat. Indirect impacts from noise, gaseous emissions, and human 
presence also influence habitat quality in oil and gas development 
areas. These activities affect lesser prairie-chickens by disrupting 
reproductive behavior (Hunt and Best 2004, p. 41) and through habitat 
fragmentation and conversion (Hunt and Best 2004, p. 92). Smith et al. 
(1998, p. 3) observed that almost one-half, 13 of 29, of the abandoned 
leks examined in southeastern New Mexico in an area of intensive oil 
and gas development had a moderate to high level of noise. Hunt and 
Best (2004, p. 92) found that abandoned leks in southeastern New Mexico 
had more active wells, more total wells, and greater length of access 
road than active leks. They concluded that petroleum development at 
intensive levels, with large numbers of wells in close proximity to 
each other necessitating large road networks and an increase in the 
number of power lines, is likely not compatible with life-history 
requirements of lesser prairie-chickens (Hunt and Best 2004, p. 92).
    Impacts from oil and gas development and exploration is the primary 
reason thought to be responsible for the species' near absence 
throughout previously occupied portions of the Carlsbad BLM unit in 
southeastern New Mexico (Belinda 2003, p. 3). This is supported by 
research examining lesser prairie-chicken losses over the past 20 years 
on Carlsbad BLM lands (Hunt and Best 2004, pp. 114-115). In this study, 
factor analysis (a statistical method used to describe variability 
among observed variables in reference to a number of unobserved 
variables) of characters associated with active and abandoned leks was 
conducted to determine which potential causes were associated with the 
population decline. Those variables associated with oil and gas 
development explained 32 percent of observed lek abandonment (Hunt and 
Best 2004) and the consequent population extirpation.
    Although the Service presently lacks the information to 
specifically quantify and analyze drilling activity throughout the 
entire historical and occupied range of the lesser prairie-chicken, 
known activity within certain areas of the historical range 
demonstrates the significance of the threat. For example, the amount of 
habitat fragmentation due to oil and gas extraction in the Texas 
panhandle and western Oklahoma associated with the Buffalo Wallow oil 
and gas field within the Granite Wash formation of the Anadarko Basin 
has steadily increased over time. In 1982, the rules for the Buffalo 
Wallow field allowed one well per 130 ha (320 ac). In late 2004, the 
Texas Railroad Commission changed the field rule regulations for the 
Buffalo Wallow oil and gas field to allow oil and gas well spacing to a 
maximum density of one well per 8 ha (20 ac) (Rothkopf et al. 2011, p. 
1). When fully developed at this density, the region will have 
experienced a 16-fold increase in habitat fragmentation in comparison 
with the rates allowed prior to 2004.
    In the BLM's Special Status Species Record of Decision and approved 
Resource Management Plan Amendment (RMPA), some limited protections for 
the lesser prairie-chicken in New Mexico are provided by reducing the 
number of drilling locations, decreasing the size of well pads, 
reducing the number and length of roads, reducing the number of 
powerlines and pipelines, and implementing best management practices 
for development and reclamation (BLM 2008, pp. 5-31). The RMPA provides 
guidance for management of approximately 344,000 ha (850,000 ac) of 
public land and 121,000 ha (300,000 ac) of Federal minerals in Chaves, 
Eddy, Lea, and Roosevelt Counties in New Mexico. Implementation of 
these restrictions, particularly curtailment of new mineral leases, 
would be concentrated in the Core Management and Primary Population 
Areas (BLM 2008, pp. 9-11). The Core Management and Primary Population 
Areas are located in the core of the lesser prairie-chicken occupied 
range in New Mexico. The effect of these best management practices on 
the status of the lesser prairie-chicken is unknown, particularly 
considering about 60,000 ha (149,000 ac) have already been leased in 
those areas (BLM 2008, p. 8). The plan stipulates that measures 
designed to protect the lesser prairie-chicken and dunes sagebrush 
lizard may not allow approval of all spacing unit locations or full 
development of the lease (BLM 2008, p. 8).
    Oil and gas development and exploration is ongoing in the remaining 
States although the precise extent is currently unknown. Some 
development is anticipated in Baca County, Colorado, although the 
timeframe for initiation of those activities is uncertain (CPW 2007, p. 
2). In Oklahoma, oil and gas exploration statewide continues at a high 
level. Since 2002, the average number of active drilling rigs in 
Oklahoma has steadily risen (Boyd 2009, p. 1). Since 2004, the number 
of active drilling rigs has remained above 150, reflecting the highest 
level of sustained activity since the `boom' years from the late 1970s 
through the mid-1980s in Oklahoma (Boyd 2007, p. 1).
    Wastewater pits associated with energy development are not 
anticipated to be a major threat to lesser prairie-chickens primarily 
due to the presence of infrastructure and the lack of suitable cover 
near these pits. In formations with high levels of hydrogen sulfide 
gas, the presence of this gas can cause mortality.
    In summary, infrastructure associated with current petroleum 
production contributes to the current threat of habitat fragmentation 
to the lesser prairie-chicken. Reliable information about future trends 
for petroleum production is not known for the entire range of the 
species; however, information for portions of Oklahoma, New Mexico, and 
Texas indicate petroleum production is a significant threat to the 
species into the foreseeable future.


    Lesser prairie-chickens have coevolved with a variety of predators, 
but none are lesser prairie-chicken specialists. Prairie falcon (Falco 
mexicanus), northern harrier (Circus cyaneus), Cooper's hawk (Accipiter 
cooperii), great-horned owl (Bubo virginianus), other unspecified birds 
of prey (raptors), and coyote (Canis latrans) have been identified as 
predators of lesser prairie-chicken adults and chicks (Davis et al. 
1979, pp. 84-85; Merchant 1982, p. 49; Haukos and Broda 1989, pp. 182-
183; Giesen 1994a, p. 96). Predators of nests and eggs also include 
Chihuahuan raven (Corvus cryptoleucus), striped skunk (Mephitis 
mephitis), ground squirrels (Spermophilus spp.), and bullsnakes 
(Pituophis melanoleucus), as well as coyotes and badgers (Taxidea 
taxus) (Davis et al. 1979, p. 51; Haukos 1988, p. 9; Giesen 1998, p. 
    Lesser prairie-chicken predation varies in both form and frequency 
throughout the year. In Kansas, Hagen et al. (2007, p. 522) attributed 
some 59 percent of the observed mortality of female lesser prairie-
chickens to mammalian predators and between 11 and 15 percent, 
depending on season, to raptors. Coyotes were reported to be 
responsible for some 64 percent of the nest depredations observed in 
Kansas (Pitman et al. 2006a, p. 27). Observed mortality of male and 
female lesser prairie-chickens associated with raptor predation reached 
53 percent in Oklahoma and 56 percent in New Mexico (Wolfe et al. 2007, 
p. 100). Predation by mammals was reported to be 47 percent in Oklahoma 
and 44 percent in New Mexico (Wolfe et al. 2007, p. 100). In Texas, 
over the course of three nonbreeding seasons, Boal and Pirius (2012, p. 
8) assessed cause-

[[Page 73876]]

specific mortality for 13 lesser prairie-chickens. Avian predation was 
identified as the cause of death in 10 of those individuals, and 
mammalian predation was responsible for 2 deaths. The cause of death 
could not be identified in one of those individuals. Behney et al. 
(2012, p. 294) suspected that mammalian and reptilian predators had a 
greater influence on lesser prairie-chicken mortality during the 
breeding season than raptors.
    Predation is a naturally occurring phenomenon and generally does 
not pose a risk to wildlife populations unless the populations are 
extremely small or have an abnormal level of vulnerability to 
predation. The lesser prairie-chicken's cryptic plumage and behavioral 
adaptations allow the species to persist under normal predation 
pressures. Birds may be most susceptible to predation while on the lek 
when birds are more conspicuous. Both Patten et al. (2005b, p. 240) and 
Wolfe et al. (2007, p. 100) reported that raptor predation increased 
coincident with lek attendance. Patten et al. (2005b, p. 240) stated 
that male lesser prairie-chickens are more vulnerable to predation when 
exposed during lek displays than they are at other times of the year 
and that male lesser prairie-chicken mortality was chiefly associated 
with predation. However, during 650 hours of lek observations in Texas, 
raptor predation at leks was considered to be uncommon and an unlikely 
factor responsible for declines in lesser prairie-chicken populations 
(Behney et al. 2011, pp. 336-337). But Behney et al. (2012, p. 294) 
observed that the timing of lekking activities in their study area 
corresponded with the lowest observed densities of raptors and that 
lesser prairie-chickens contend with a more abundant and diverse 
assemblage of raptors in other seasons.
    Predation and related disturbance of mating activities by predators 
may impact reproduction in lesser prairie-chickens. For females, 
predation during the nesting season likely would have the most 
significant impact on lesser prairie-chicken populations, particularly 
if that predation resulted in total loss of a particular brood. 
Predation on lesser prairie-chicken may be especially significant 
relative to nest success. Nest success and brood survival of greater 
prairie-chickens accounted for most of the variation in population 
finite rate of increase (Wisdom and Mills 1997, p. 308). Bergerud 
(1988, pp. 646, 681, 685) concluded that population changes in many 
grouse species are driven by changes in breeding success. An analysis 
of Attwater's prairie-chicken supported this conclusion (Peterson and 
Silvy 1994, p. 227). Recent demographic research on lesser prairie-
chicken in southwestern Kansas confirmed that changes in nest success 
and chick survival, two factors closely associated with vegetation 
structure, have the largest impact on population growth rates and 
viability (Hagen et al. 2009, p. 1329).
    Rates of predation on lesser prairie-chicken likely are influenced 
by certain aspects of habitat quality such as fragmentation or other 
forms of habitat degradation (Robb and Schroeder 2005, p. 36). As 
habitat fragmentation increases, suitable habitats become more 
spatially restricted and the effects of terrestrial nest predators on 
grouse populations may increase (Braun et al. 1978, p. 316). Nest 
predators typically have a positive response (e.g., increased 
abundance, increased activity, and increased species richness) to 
fragmentation, although the effects are expressed primarily at the 
landscape scale (Stephens et al. 2003, p. 4). Similarly, as habitat 
quality decreases through reduction in vegetative cover due to grazing 
or herbicide application, predation of lesser prairie-chicken nests, 
juveniles, and adults are all expected to increase. For this reason, 
ensuring adequate shrub cover and removing raptor perches such as 
trees, power poles, and fence posts may lower predation more than any 
conventional predator removal methods (Wolfe et al. 2007, p. 101). As 
discussed at several locations within this document, existing and 
foreseeable development of transmission lines, fences, and vertical 
structures will either contribute to additional predation on lesser 
prairie-chickens or cause areas of suitable habitat to be abandoned due 
to behavior avoidance by lesser prairie-chickens. Increases in the 
encroachment of trees into the native prairies also will contribute to 
increased incidence of predation by providing additional perches for 
avian predators. Because predation has a strong relationship with 
certain anthropogenic factors, such as fragmentation, vertical 
structures, and roads, continued development is likely to increase the 
effects of predation on lesser prairie-chickens beyond natural levels. 
As a result, predation is likely to contribute to the declining status 
of the species.


    Giesen (1998, p. 10) provided no information on ectoparasites or 
infectious diseases in lesser prairie-chicken, although several 
endoparasites, including nematodes and cestodes, are known to infect 
the species. In Oklahoma, Emerson (1951, p. 195) documented the 
presence of the external parasites (biting lice-Order Mallophaga) 
Goniodes cupido and Lagopoecus sp. in an undisclosed number of lesser 
prairie-chickens. Between 1997 and 1999, Robel et al. (2003, p. 342) 
conducted a study of helminth parasites in lesser prairie-chicken from 
southwestern Kansas. Of the carcasses examined, 95 percent had eye worm 
(Oxyspirura petrowi), 92 percent had stomach worm (Tetrameres sp.), and 
59 percent had cecal worm (Subulura sp.) (Robel et al. 2003, p. 341). 
No adverse impacts to the lesser prairie-chicken population they 
studied were evident as a result of the observed parasite burden. 
Addison and Anderson (1969, p. 1223) also found eyeworm (O. petrowi) 
from a limited sample of lesser prairie-chickens in Oklahoma. The 
eyeworm also has been reported from lesser prairie-chickens in Texas 
(Pence and Sell 1979, p. 145). Pence and Sell (1979, p. 145) also 
observed the roundworm Heterakis isolonche and the tapeworm Rhabdometra 
odiosa from lesser prairie-chickens in Texas. Smith et al. (2003, p. 
347) reported on the occurrence of blood and fecal parasites in lesser 
prairie-chickens in eastern New Mexico. Eight percent of the examined 
birds were infected with Eimeria tympanuchi, an intestinal parasite, 
and 13 percent were infected with Plasmodium pedioecetii, a hematozoan. 
Stabler (1978, p. 1126) first reported Plasmodium pedioecetii in the 
lesser prairie-chicken from samples collected from New Mexico and 
Texas. In the spring of 1997, a sample of 12 lesser prairie-chickens 
from Hemphill County, Texas, were tested for the presence of disease 
and parasites. No evidence of viral or bacterial diseases, 
hemoparasites, parasitic helminths, or ectoparasites was found (Hughes 
1997, p. 2).
    Peterson et al. (2002, p. 835) reported on an examination of 24 
lesser prairie-chickens from Hemphill County, Texas, for several 
disease agents. Lesser prairie-chickens were seropositive for both the 
Massachusetts and Arkansas serotypes of avian infectious bronchitis, a 
type of coronavirus. All other tests were negative.
    Reticuloendotheliosis is a viral disease documented from poultry, 
which has been found to cause serious mortality in captive Attwater's 
prairie-chickens and greater prairie-chickens. Researchers surveyed 
blood samples from 184 lesser prairie-chickens from three States during 
1999 and 2000, for the presence of reticuloendotheliosis. All samples 
were negative, suggesting that reticuloendotheliosis may not be a

[[Page 73877]]

serious problem for most wild populations of lesser prairie-chicken 
(Wiedenfeld et al. 2002, p. 143).
    The impact of West Nile virus on lesser prairie-chickens is 
unknown. Recently scientists at Texas Tech University detected West 
Nile virus in a small percentage (1.3 percent) of the lesser prairie-
chicken blood samples they analyzed. Other grouse, such as ruffed 
grouse (Bonasa umbellus), have been documented to harbor West Nile 
virus infection rates similar to some corvids (crows, jays, and 
ravens). For 130 ruffed grouse tested in 2000, all distant from known 
West Nile virus epicenters, 21 percent tested positive. This was 
remarkably similar to American crows (Corvus brachyrhynchos) and blue 
jays (Cyanocitta cristata) (23 percent for each species), species with 
known susceptibility to West Nile virus (Bernard et al. 2001, p. 681). 
Recent analysis of the degree of threat to prairie grouse from 
parasites and infectious disease concluded that microparasitic 
infections that cause high mortality across a broad range of galliform 
(wildfowl species such as turkeys, grouse, and chickens) hosts have the 
potential to extirpate small, isolated prairie grouse populations 
(Peterson 2004, p. 35).
    Nonparasitic diseases caused by mycotoxins, as well as pesticides 
and other toxic compounds, also have the potential to influence 
population dynamics. However, the incidence of disease or parasite 
infestations in regulating populations of the lesser prairie-chicken is 
unknown. The Lesser Prairie-Chicken Interstate Working Group (Mote et 
al. 1999, p. 12) concluded that, while density-dependent transmission 
of disease was unlikely to have a significant effect on lesser prairie-
chicken populations, a disease that was transmitted independently of 
density could have drastic effects. Further research is needed to 
establish whether parasites regulate prairie grouse populations. 
Peterson (2004, p. 35) urged natural resource decisionmakers to be 
aware that macro- and micro-parasites cannot be safely ignored as 
populations of species such as the lesser prairie-chicken become 
smaller, more fragmented, and increasingly vulnerable to the effects of 
disease. Some degree of impact of parasites and disease is a naturally 
occurring phenomenon for most species and one element of compensatory 
mortality that occurs among many species. There is no information that 
indicates parasites or disease are causing, or contributing to, the 
decline of any lesser prairie-chicken populations, and, at this time, 
we have no basis for concluding that disease or parasite loads are a 
threat to any lesser prairie-chicken populations. Consequently, we do 
not consider disease or parasite infections to be a significant factor 
in the decline of the lesser prairie-chicken. However, if populations 
continue to decline or become more fragmented, even small changes in 
habitat abundance or quality could have more significant consequences.

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

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

[[Page 73878]]

disperse from the lek and observations are confined to a limited number 
of days and leks. Solitary leks comprising fewer than ten males are 
most likely to be affected by repeated recreational disturbance. 
Suminski (1977, p. 70) strongly encouraged avoidance of activities that 
could disrupt nesting activities. Research is needed to quantify this 
potential threat to local populations of lesser prairie-chickens.
    In summary, it is possible that harvest of lesser prairie-chickens 
through sport hunting might be contributing to a decline of some 
populations, but we have no information that shows whether this is 
actually occurring and no basis on which to estimate whether hunting is 
contributing to decline in some areas. However, as populations continue 
to decline and become more fragmented, the influence of sport harvest 
likely will increase the degree of threat. Public viewing of leks tends 
to be limited, primarily due to a general lack of public knowledge of 
lek locations and difficulty accessing leks located on private lands. 
We expect the States will continue to conduct annual lek counts, which 
contributes to a temporary disturbance when the birds are flushed 
during attempts to count birds attending the leks. However these 
disturbances are intermittent and do not occur repeatedly throughout 
the lekking period. Research on lesser prairie-chickens may result in 
some capture and handling of the species. Capture-induced stress may 
occur and could lead to isolated instances of mortality or injury to 
individual birds. But such research is not widespread and likely does 
not cause significant population-level impacts. Research is not 
anticipated to result in loss of habitat, leading to impacts from 
habitat fragmentation. We are not aware of any other forms of 
utilization that are negatively impacting lesser prairie-chicken 
populations. There is currently no known, imminent threat of take 
attributed to collection or illegal harvest for this species. 
Consequently, we conclude that overutilization at current population 
and harvest levels does not pose a threat to the species.

Other Factors

    A number of other factors, although they do not directly contribute 
to habitat loss or fragmentation, can influence the survival of the 
lesser prairie-chicken. These factors, in combination with habitat loss 
and fragmentation, likely influence the persistence of the species.
Nest Parasitism and Competition by Exotic Species
    Ring-necked pheasants (Phasianus colchicus) are nonnative species 
that overlap the occupied range of the lesser prairie-chicken in Kansas 
and portions of Colorado, Oklahoma, Texas (Johnsgard 1979, p. 121), and 
New Mexico (Allen 1950, p. 106). Hen pheasants have been documented to 
lay eggs in the nests of several bird species, including lesser 
prairie-chicken and greater prairie-chicken (Hagen et al. 2002, pp. 
522-524; Vance and Westemeier 1979, p. 223; Kimmel 1987, p. 257; 
Westemeier et al. 1989, pp. 640-641; Westemeier et al. 1998, 857-858). 
Consequences of nest parasitism vary, and may include abandonment of 
the host nest, reduction in number of host eggs, lower hatching 
success, and parasitic broods (Kimmel 1987, p. 255). Because pheasant 
eggs hatch in about 23 days, the potential exists for lesser prairie-
chicken hens to cease incubation, begin brooding, and abandon the nest 
soon after the first pheasant egg hatches. Nests of greater prairie-
chickens parasitized by pheasants have been shown to have lower egg 
success and higher abandonment than unparasitized nests, suggesting 
that recruitment and abundance may be impacted (Westemeier et al. 1998, 
pp. 860-861). Predation rates also may increase with incidence of nest 
parasitism (Vance and Westemeier 1979, p. 224). Further consequences 
are hypothesized to include the imprinting of the pheasant young from 
the parasitized nest to the host species, and later attempts by male 
pheasants to court females of the host species (Kimmel 1987, pp. 256-
257). Male pheasants have been observed disrupting the breeding 
behavior of greater prairie-chickens on leks (Sharp 1957, pp. 242-243; 
Follen 1966, pp. 16-17; Vance and Westemeier 1979, p. 222). In 
addition, pheasant displays toward female prairie-chickens almost 
always cause the female to leave the lek (Vance and Westemeier 1979, p. 
222). Thus, an attempt by a male pheasant to display on a prairie-
chicken lek could disrupt the normal courtship activities of prairie-
    Few published accounts of lesser prairie-chicken nest parasitism by 
pheasants exist (Hagen et al. 2002, pp. 522-524), although biologists 
from KPWD, ODWC, Sutton Center, TPWD, and the Oklahoma Cooperative Fish 
and Wildlife Research Unit have given more than 10 unpublished accounts 
of such occurrences. Westemeier et al. (1998, p. 858) documented 
statistically that for a small, isolated population of greater prairie-
chickens in Illinois, nest parasitism by pheasants significantly 
reduced the hatchability of nests. Based on their findings, they submit 
that, in areas with high pheasant populations, the survival of 
isolated, remnant flocks of prairie-chicken may be enhanced by 
management intervention to reduce nest parasitism by pheasants 
(Westemeier et al. 1998, p. 861). While Hagen et al. (2002, p. 523) 
documented a rate of only 4 percent parasitism (3 of 75 nests) of 
lesser prairie-chicken nests in Kansas, the sample size was small and 
may not reflect actual impacts across larger time, geographic, and 
precipitation scales. Competition with and parasitism by pheasants may 
be a potential factor that could negatively affect vulnerable lesser 
prairie-chicken populations at the local level, particularly if 
remaining native rangelands become increasingly fragmented (Hagen et 
al. 2002, p. 524). More research is needed to understand and quantify 
impacts of pheasants on lesser prairie-chicken populations range wide.
    The sympatric (overlapping) occupation of habitat and leks by 
greater prairie-chickens and lesser prairie-chickens in portions of 
central and northwestern Kansas may pose a limited but potential threat 
to the species in that region. Hybridization could lead to 
introgression (infiltration of the genes of one species into the gene 
pool of another through repeated backcrossing) and reduced reproductive 
potential; however, hybridization has not been confirmed in these two 
species (Bain and Farley 2002, pp. 684, 686). Historical records 
document that the species' ranges overlapped, but that habitat 
partitioning was clearly evident based on the abundance of sand-adapted 
vegetation. The relative frequency of natural hybridization prior to 
EuroAmerican settlement is unknown. Currently, the incidence of 
hybridization between greater prairie-chickens and lesser prairie-
chickens appears very low, typically less than 1 percent. The 
occurrence of hybridization also is restricted to a small portion, 
about 250,000 ha (617,000 ac), of the overall current range (Bain and 
Farley 2002, p. 684). Because current populations north of the Arkansas 
River in Kansas are generally characterized as low density and very 
dependent upon the residual habitat structure of fragmented tracts of 
CRP lands, those populations may be ephemeral depending on 
implementation of CRP projects and stochastic environmental factors. 
Low population density also may increase

[[Page 73879]]

the susceptibility of lesser prairie-chickens to hybridization and 
exacerbate the potentially negative effects of hybridization. To date, 
the fertility of hybrid individuals throughout subsequent generations 
has not been rigorously tested. The immediate and long-term influence 
of hybridization on the species is unknown and warrants investigation.
Reduced Population Size and Lek Mating System
    A number of harmful effects, such as reduced reproductive success 
and loss of genetic variation and diversity, become more evident as 
population sizes decline. These effects may be exacerbated by the lek 
mating system characteristic of many prairie grouse species. Factors 
such as high visibility, good auditory projection, and lack of ambient 
noise are known to influence selection of lek sites by prairie 
chickens, and such factors likely assist females in locating the mating 
grounds (Gregory et al. 2011, p. 29). Johnsgard (2002, p. 129) stressed 
that the mating system used by prairie grouse works most effectively 
when populations are dense enough to provide the visual and acoustic 
stimuli necessary to attract prebreeding females to the lek. Once 
established, the lek must then be large enough to assure that the 
matings will be performed by the most physically and genetically fit 
males. Lek breeding already tends to promote inbreeding owing to the 
limitations caused by relatively few males siring offspring. The 
tendency of female lesser prairie-chicken and other prairie grouse to 
typically nest near a lek other than the one on which they mated is an 
innate mechanism that can help reduce the effects of inbreeding. The 
remaining small and fragmented lesser prairie-chicken populations which 
exist over portions of the currently occupied range indicate that such 
harmful effects may already be, or soon will be, occurring.
    Anthropogenic habitat deterioration and fragmentation not only 
leads to range contractions and population extinctions but also may 
also have significant genetic and, thus, evolutionary consequences for 
the surviving populations. As populations contract and distances 
between populations increase, opportunities for gene flow are reduced. 
Specifically, Pruett et al. (2009b, p. 258) discussed the influence of 
population connectivity, or lack thereof, on the lesser prairie-
chicken. They concluded that lesser prairie-chicken populations were 
connected historically, as evidenced by the lack of geographic 
variation in morphology and the available genetic information which 
suggests that the populations were contiguous and gene flow occurred 
among the extant populations. However, Johnson (2008, p. 171) reported 
that his results indicate that gene flow is currently restricted 
between lesser prairie-chicken populations in New Mexico and Oklahoma. 
These findings are not unexpected given information on lesser prairie-
chicken movements. Pruett et al. (2009b, p. 258) report findings by the 
Sutton Center that lesser prairie-chickens in Oklahoma were observed to 
move as much as 20 to 30 km (12 to 19 mi), but the extant lesser 
prairie-chicken populations in New Mexico and Oklahoma are separated by 
more than 200 km (124 mi). Given the limited movements of individual 
lesser prairie-chickens and the distance between these two populations, 
Pruett et al. (2009b, p. 258) considered interaction between these 
populations to be highly unlikely. Johnson (2008, p. 171) speculated 
that the observed estimate of gene flow between the New Mexico and 
Oklahoma populations could be due to effects of recent genetic drift 
(change in the genetic composition of a population due to chance 
events) as habitat fragmentation and isolation developed between the 
New Mexico and Oklahoma populations. Further examination of the 
viability of existing lesser prairie-chicken populations will be needed 
to thoroughly describe the effects of small population size and 
isolation on persistence of the lesser prairie-chicken.
Surface Water Impoundments
    Dams have been constructed on streams within the range of the 
lesser prairie-chicken to produce impoundments for flood control, water 
supply, and other purposes. The impounded waters flood not only 
affected stream segments and riparian areas, but also adjacent areas of 
grassland and shrubland habitats. Although lesser prairie-chickens may 
make use of free-standing water, as is retained in surface 
impoundments, its availability is not critical for survival of the 
birds (Giesen 1998, p. 4).
    The historical range of the lesser prairie-chicken contains 
approximately 25 large impoundments with a surface area greater than 
1,618 ha (4,000 ac), the largest 20 of these (and their normal surface 
acreage) are listed from largest to smallest in Table 3, below.

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

[[Page 73880]]

Lake Kickapoo.................  2,439 ha (6,028 ac)...  Texas.
Total.........................  88,129 ha (217,772 ac)  ................
(Sources: Kansas Water Office 2012, New Mexico State Parks 2012, Texas
  Parks and Wildlife Department 2012, Texas State Historical Association
  2012, U.S. Army Corps of Engineers 2012, U.S. Bureau of Reclamation

    In addition, the historical range of the lesser prairie-chicken 
contains many smaller impoundments, such as municipal reservoirs and 
upstream flood control projects. For example, beginning in the mid-
1900s, the USDA constructed hundreds of small impoundments (floodwater 
retarding structures) within the historical range of the lesser 
prairie-chicken, through the Watershed Protection and Flood Prevention 
Program. The program was implemented to its greatest extent in Oklahoma 
(Oklahoma Conservation Commission 2005), and, within the portion of the 
lesser prairie-chicken's historical range in that State, the USDA 
constructed 574 floodwater retarding structures, totaling 6,070 ha 
(15,001 ac) (Elsener 2012). Similarly, within the portion of the lesser 
prairie-chicken's historical range in Texas, the USDA constructed 276 
floodwater retarding structures, totaling 8,293 surface acres (Bednarz 
2012). In Kansas, considerably fewer floodwater retarding structures 
were constructed within the historical range, totaling some 857 ha 
(2,118 ac) (Gross 2012). Even fewer such structures were constructed in 
Colorado and New Mexico.
    Cumulatively, the total area of historical lesser prairie-chicken 
range lost due to construction of large, medium, and small impoundments 
is about 98,413 ha (243,184 ac), yet likely less than the amount of 
habitat lost or degraded by other factors discussed in this proposed 
rule (e.g., conversion of rangeland to cropland and overgrazing). The 
Service expects a large majority of existing reservoirs to be 
maintained over the long term. Therefore, these structures will 
continue to displace former areas of lesser prairie-chicken habitat, as 
well as fragment surrounding lands as habitat for the lesser prairie-
chicken. However, because extensive new dam construction is not 
anticipated within the lesser prairie-chicken's range, the Service 
considers it unlikely that this threat will increase in the future.
    In summary, several other natural or manmade factors are affecting 
the continued existence of the lesser prairie-chicken. Parasitism of 
lesser prairie-chicken nests by pheasants and hybridization with 
greater prairie chickens has been documented but the incidence remains 
low. The influence of the above factors on lesser prairie-chicken 
survival is expected to remain low unless populations continue to 
decline. Low population density can increase the susceptibility of 
lesser prairie-chicken to possible genetic effects and increase the 
negative effects of hybridization, nest parasitism, and competition. 
The effects of certain natural and manmade factors are considered a 
threat to the lesser prairie-chicken.

Effects of Existing Regulatory Mechanisms

    Regulatory mechanisms, such as Federal, state, and local land use 
regulation or laws, may provide protection from some threats provided 
those regulations and laws are not discretionary and are enforceable.
    In 1973, the lesser prairie-chicken was listed as a threatened 
species in Colorado under the State's Nongame and Endangered or 
Threatened Species Conservation Act. While this designation prohibits 
unauthorized take, possession, and transport, no protections are 
provided for destruction or alteration of lesser prairie-chicken 
habitat. In the remaining States, the lesser prairie-chicken is 
classified as a game species, although the legal harvest is now closed 
in New Mexico, Oklahoma, and Texas. Accordingly, the State conservation 
agencies have the authority to regulate possession of the lesser 
prairie-chicken, set hunting seasons, and issue citations for poaching. 
For example, Texas Statute prohibits the destruction of nests or eggs 
of game birds such as the lesser prairie-chicken. These authorities 
provide lesser prairie-chickens with protection from direct mortality 
caused by hunting and prohibit some forms of unauthorized take.
    In July of 1997, the NMDGF received a formal request to commence an 
investigation into the status of the lesser prairie-chicken within New 
Mexico. This request began the process for potential listing of the 
lesser prairie-chicken under New Mexico's Wildlife Conservation Act. In 
1999, the recommendation to list the lesser prairie-chicken as a 
threatened species under the Wildlife Conservation Act was withdrawn 
until more information was collected from landowners, lessees, and land 
resource managers who may be affected by the listing or who may have 
information pertinent to the investigation. In late 2006, NMDGF 
determined that the lesser prairie-chicken would not be State-listed in 
New Mexico. New Mexico's Wildlife Conservation Act, under which the 
lesser prairie-chicken could have been listed, offers little 
opportunity to prevent otherwise lawful activities, including many of 
the activities previously discussed.
    Regardless of each State's listing status, most occupied lesser 
prairie-chicken habitat throughout its current range occurs on private 
land (Taylor and Guthery 1980b, p. 6), where State conservation 
agencies have little authority to protect or direct management of the 
species' habitat. All five States in occupied range have incorporated 
the lesser prairie-chicken as a species of conservation concern and 
management priority in their respective State Wildlife Action Plans. 
While identification of the lesser prairie-chicken as a species of 
conservation concern does help heighten public awareness, this 
designation provides no protection from direct take or habitat 
destruction or alteration.
    Some States, such as Oklahoma, have laws and regulations that 
address use of State school lands, primarily based on maximizing 
financial return from operation of these lands. However, the scattered 
nature of these lands and requirement to maximize financial returns 
minimize the likelihood that these lands will be managed to reduce 
degradation and fragmentation of habitat and ensure the conservation of 
the species.
    Lesser prairie-chickens are not covered or managed under the 
provisions of the Migratory Bird Treaty Act (16 U.S.C. 703-712) because 
they are considered resident game species. The lesser prairie-chicken 
has an

[[Page 73881]]

International Union for Conservation of Nature (IUCN) Red List Category 
of ``vulnerable'' (BirdLife International 2008), and NatureServe 
currently ranks the lesser prairie-chicken as G3--Vulnerable 
(NatureServe 2011, entire). The lesser prairie-chicken also is on the 
National Audubon Society's WatchList 2007 Red Category, which is ``for 
species that are declining rapidly or have very small populations or 
limited ranges, and face major conservation threats.'' However, none of 
these designations provide any regulatory protection.
    There are six National Grasslands located within the historical 
range of the lesser prairie-chicken. The National Grasslands are 
managed by the USFS, have been under Federal ownership since the late 
1930s, and were officially designated as National Grasslands in 1960. 
The Kiowa, Rita Blanca, Black Kettle, and McClellan Creek National 
Grasslands are administered by the Cibola National Forest. The Kiowa 
National Grassland covers 55,659 ha (137,537 ac) and is located within 
Mora, Harding, Union, and Colfax Counties, New Mexico. The Rita Blanca 
National Grassland covers 37,631 ha (92,989 ac) and is located within 
Dallam County, Texas, and Cimarron County, Oklahoma. The Black Kettle 
National Grassland covers 12,661 ha (31,286 ac) and is located within 
Roger Mills County, Oklahoma, and Hemphill County, Texas. The McClellan 
Creek National Grassland covers 586 ha (1,449 ac) and is located in 
Gray County, Texas. No breeding populations of lesser prairie-chickens 
are known to occur on these holdings.
    The Comanche and Cimarron National Grasslands are under the 
administration of the Pike and San Isabel National Forest. The Comanche 
National Grassland covers 179,586 ha (443,765 ac) and is located within 
Baca, Las Animas, and Otero Counties, Colorado. The Cimarron National 
Grassland covers 43,777 ha (108,175 ac) and is located in Morton and 
Stevens Counties, Kansas. Both of these areas are known to support 
breeding lesser prairie-chickens.
    The National Forest Management Act of 1976 and the associated 
planning rule in effect at the time of planning initiation are the 
principal law and regulation governing the planning and management of 
National Forests and National Grasslands by the USFS. In 2008, a new 
National Forest System Land Management Planning Rule (36 CFR Part 219) 
took effect and was used to guide the development of a Land and 
Resource Management Plan for the Comanche and Cimarron National 
Grasslands. That plan was one of the first plans developed and released 
under the 2008 planning rule. The predecisional review version of the 
Cimarron and Comanche National Grasslands Land Management Plan was made 
available to the public on October 17, 2008. The lesser prairie-chicken 
was included as a species-of-concern in accordance with guidance 
available in the existing planning rule (USFS 2008, p. 35). As defined 
in the 2008 planning rule, species-of-concern are species for which the 
Responsible Official determines that management actions may be 
necessary to prevent listing under the Endangered Species Act (36 CFR 
219.16). Identification of the lesser prairie-chicken as a species-of-
concern in the Cimarron and Comanche National Grasslands Land 
Management Plan led to inclusion of planning objectives targeting 
improvement of the species' habitat, as described below.
    Planning for the Kiowa, Rita Blanca, Black Kettle, and McClellan 
Creek National Grasslands was well underway when the 2008 National 
Forest System Land Management Planning Rule was enjoined on June 30, 
2009, by the United States District Court for the Northern District of 
California (Citizens for Better Forestry v. United States Department of 
Agriculture, 632 F. Supp. 2d 968 (N.D. Cal. June 30, 2009)). A new 
planning rule was finalized in 2012 (77 FR 67059) and became effective 
on May 9, 2012. The transition provisions of the 2012 planning rule (36 
CFR 219.17(b)(3)) allow those National Forest System lands that had 
initiated plan development, plan amendments, or plan revisions prior to 
May 9, 2012, to continue using the provisions of the prior planning 
regulation. The Cibola National Forest elected to use the provisions of 
the 1982 planning rule, including the requirement to prepare an 
Environmental Impact Statement, to complete its plan development for 
the Kiowa, Rita Blanca, Black Kettle, and McClellan Creek National 
    The Comanche and Cimarron National Grasslands currently manages the 
Comanche Lesser Prairie-chicken Habitat Zoological Area, now designated 
as a Colorado Natural Area, which encompasses an area of 4,118 ha 
(10,177 ac) that is managed to benefit the lesser prairie-chicken. 
Current conditions on this area include existing oil and gas leases, 
two-track roads, utility corridors, and livestock grazing. Wildfires on 
the area have been suppressed over the last 30 years. The area provides 
a special viewing area for the lesser prairie-chicken, which has been 
closed to protect lekking activities. The plan specifies that the 
desired future condition of the area would be to retain habitat 
conditions suitable for the lesser prairie-chicken. Specifically, the 
objectives of the plan identify steps that would be taken over the next 
15 years to achieve the desired conditions. One objective would be to 
retain a minimum of 6,665 ha (16,470 ac) of sand sagebrush prairie 
ecosystem for the lesser prairie-chicken. Within the Comanche Lesser 
Prairie-chicken Habitat Zoological Area, over the next 15 years, a 
minimum of 202 ha (500 ac) would be treated to increase native plant 
    Design criteria identified in the current Cimarron and Comanche 
National Grasslands Land Management Plan for management of the sand 
sagebrush prairie include: (1) Limited construction of new structures 
or facilities typically within 3.2 km (2 mi) of known lesser prairie-
chicken leks or populations if those structures and facilities would 
negatively impact the lesser prairie-chicken; (2) protection of leks, 
nesting habitat, and brood rearing habitat from surface disturbances 
(e.g., dog training, drilling, and various forms of construction) 
between March 15 to July 15; and (3) provision for adequate residual 
cover during nesting periods. Within the Comanche Lesser Prairie-
Chicken Habitat Zoological Area, design criteria include limiting or 
using livestock grazing in a manner that does not negatively impact 
lesser prairie-chicken nesting habitat. The USFS also committed to 
monitoring any changes in distribution and abundance of the lesser 
prairie-chicken on the National Grasslands.
    Prior planning regulations included a requirement for the USFS to 
identify species as management indicator species, if their population 
changes were believed to be indicative of the effects of management 
activities (36 CFR 219.19). Under the 2008 regulations, the concept of 
management indicator species was not included in the final rule. The 
2008 planning regulations instead chose to use ``species-of-concern''. 
Species that were identified as proposed and candidate species under 
the Endangered Species Act were classified as species-of-concern. The 
primary purpose of identifying species-of-concern was to put in place 
provisions that would have contributed to keeping those species from 
being listed as threatened or endangered species. As explained above, 
the transition provisions (36 CFR 219.17(b)(3)) of the 2012 planning 
rule allow the use of the provisions of the 1982 planning rule, 
including the requirement that management indicator species be 
identified as part of the plan.

[[Page 73882]]

Management indicator species serve multiple functions in forest 
planning: Focusing management direction developed in the alternatives, 
providing a means to analyze effects on biological diversity, and 
serving as a reliable feedback mechanism during plan implementation. 
The latter often is accomplished by monitoring population trends in 
relationship to habitat changes. Although suitable habitat is present, 
no breeding populations of lesser prairie-chickens are known from the 
Kiowa, Rita Blanca, Black Kettle, and McClellan Creek National 
Grasslands. Consequently, the lesser prairie-chicken is not designated 
as a management indicator species in the plan. Instead the lesser 
prairie-chicken is included on the Regional Forester's sensitive 
species list and as an At-Risk species.
    The USFS also contracted with lesser prairie-chicken experts to 
prepare a succinct evaluation of species of potential viability 
concern, addressing eight factors pertinent to species viability. A 
Technical Conservation Assessment for the lesser prairie-chicken (Robb 
and Schroeder 2005, p. 8) was completed and confirms the need to retain 
sensitive species status designation for the lesser prairie-chicken. 
Species conservation assessments produced as part of the Species 
Conservation Project are designed to provide land managers, biologists, 
and the public with a thorough discussion of the biology, ecology, 
conservation, and management of the lesser prairie-chicken based on 
existing scientific knowledge. The assessment goals limit the scope of 
the work to summaries of scientific knowledge, discussion of broad 
implications of that knowledge, and outlines of information needs. The 
assessment does not seek to develop specific prescriptions for 
management of populations and habitats. Instead, it is intended to 
provide the ecological background upon which management should be based 
and focuses on the consequences of changes in the environment that 
result from management (i.e., management implications). This 
comprehensive document can be found on the internet at http://www.fs.fed.us/r2/projects/scp/assessments/lesserprairiechicken.pdf.
    The other primary Federal surface ownership of lands occupied by 
the lesser prairie-chicken is administered by the BLM in New Mexico. In 
New Mexico, roughly 41 percent of the known historical and most of the 
currently occupied lesser prairie-chicken range occurs on BLM land. The 
BLM currently manages approximately 342,969 surface ha (847,491 ac) 
within lesser prairie-chicken range in eastern New Mexico. They also 
oversee another 120,529 ha (297,832 ac) of Federal minerals below 
private surface ownership. The core of currently occupied lesser 
prairie-chicken habitat in New Mexico is within the Roswell BLM 
Resource Area. However, the Carlsbad BLM Resource Area comprised much 
of the historical southern periphery of the species' range in New 
Mexico. The BLM's amended RMPA (BLM 2008, pp. 5-31) provides some 
limited protections for the lesser prairie-chicken in New Mexico by 
reducing the number of drilling locations, decreasing the size of well 
pads, reducing the number and length of roads, reducing the number of 
powerlines and pipelines, and implementing best management practices 
for development and reclamation. Implementation of these protective 
measures, particularly curtailment of new mineral leases, would be 
greatest in the Core Management Area and the Primary Population Area 
habitat management units (BLM 2008, pp. 9-11). The Core Management and 
Primary Population Areas are located in the core of the lesser prairie-
chicken occupied range in New Mexico. The effect of these best 
management practices on the status of the lesser prairie-chicken is 
unknown, particularly considering some 60,000 ha (149,000 ac) have 
already been leased in those areas (BLM 2008, p. 8). The effectiveness 
of the amended RMPA is hampered by a lack of explicit measures designed 
to improve the status of the lesser prairie-chicken, limited certainty 
that resources will be available to carry out the management plan, 
limited regulatory or procedural mechanisms in place to carry out the 
efforts, lack of monitoring efforts, and provision for exceptions to 
the best management practices under certain conditions, which could 
negate the benefit of the conservation measures.
    The amended RMPA stipulates that implementation of measures 
designed to protect the lesser prairie-chicken and dunes sagebrush 
lizard may not allow approval of all spacing unit locations or full 
development of a lease (BLM 2008, p. 8). In addition, the RMPA 
prohibits drilling and exploration in lesser prairie-chicken habitat 
between March 1 and June 15 of each year (BLM 2008, p. 8). No new 
mineral leases will be issued on approximately 32 percent of Federal 
mineral acreage within the RMPA planning area (BLM 2008, p. 8), 
although some exceptions are allowed on a case-by-case basis (BLM 2008, 
pp. 9-11). Within the Core Management Area and Primary Population Area, 
new leases will be restricted in occupied and suitable habitat; 
however, if there is an overall increase in reclaimed to disturbed 
acres over a 5-year period, new leases in these areas will be allowed 
(BLM 2008, p. 11). Considering Hunt and Best (2004, p. 92) concluded 
that petroleum development at intensive levels likely is not compatible 
with populations of lesser prairie-chicken, additional development in 
the Core Management Area and Primary Population Area habitat management 
units may hinder long-term conservation of the species in New Mexico. 
The RMPA allows lease applicants to voluntarily participate in a power 
line removal credit to encourage removal of idle power lines (BLM 2008, 
pp. 2-41). In the southernmost habitat management units, the Sparse and 
Scattered Population Area and the Isolated Population Area, where 
lesser prairie-chickens are now far less common than in previous 
decades (Hunt and Best 2004), new leases will not be allowed within 2.4 
km (1.5 mi) of a lek (BLM 2008, p. 11).
    The ineffectiveness of certain imposed energy development 
stipulations near leks for the purpose of protecting grouse on Federal 
lands has been recently confirmed for sage grouse. Holloran (2005, p. 
57) and Naugle et al. (2006a, p. 3) documented that sage grouse avoid 
energy development (coalbed methane) not only in breeding and nesting 
habitats, but also in wintering habitats. They assert that current best 
management practices in use by Federal land management agencies that 
place timing stipulations or limit surface occupancy near greater sage-
grouse leks result in a human footprint that far exceeds the tolerance 
limits of sage grouse. Ultimately, they recommended that effective 
conservation strategies for grouse must limit the cumulative impact of 
habitat disturbance, modification, and destruction in all habitats and 
at all times of the year (Holloran 2005, p. 58; Naugle et al. 2006b, p. 
12). Additional research on the effect of petroleum development on 
lesser prairie-chicken is needed. However, available information on the 
lesser prairie-chicken (Suminski 1977, p. 70; Hagen et al. 2004, pp. 
74-75; Hunt and Best 2004, p. 92; Pitman et al. 2005, pp. 1267-1268) 
indicates that the effect is often detrimental, particularly during the 
breeding season.
    Because only about 4 percent of the species' overall range occurs 
on Federal lands, the Service recognizes that the lesser prairie-
chicken cannot be fully recovered on Federal lands alone. However, no 
laws or regulations

[[Page 73883]]

currently protect lesser prairie-chicken habitat on private land, aside 
from State harvest restrictions. Therefore, the Service views decisions 
regarding the management and leasing of Federal lands and minerals 
within existing lesser prairie-chicken range as important to the future 
conservation and persistence of the species.
    Since 2004, the construction of commercial wind energy projects 
near and within occupied lesser prairie-chicken habitat has raised 
concerns about the potential negative effects such projects may have on 
the species, if constructed at large scales in occupied range. As 
discussed previously, a rapid expansion of transmission lines and 
associated wind energy development throughout large portions of 
occupied lesser prairie-chicken range is occurring. Because most wind 
development activities are privately funded and are occurring on 
private land, wind energy siting, development, and operation falls 
outside the purview of the National Environmental Policy Act of 1969 
(NEPA) and other Federal conservation statues and regulatory processes. 
As a result, little opportunity for timely and appropriate 
environmental review and consultation by Federal, state, and local 
conservation entities exists.
    The current lack of regulatory oversight and public notice 
requirements for the purchase of wind rights and construction of wind 
generation and related transmission facilities is a concern. 
Specifically, the Service is unaware of any state or Federal mechanisms 
that require potential wind energy producers to disclose the location, 
size, and anticipated construction date for pending projects or require 
analysis under the provisions of the NEPA. Lacking the ability to 
obtain pertinent siting information or analyze alternative siting 
locations, neither the Service nor State conservation agencies have the 
ability to accurately influence the size or timing of wind generation 
construction activities within occupied lesser prairie-chicken habitat.
    In summary, most occupied lesser prairie-chicken habitat occurs on 
private land, where State conservation agencies have little authority 
to protect lesser prairie-chicken or facilitate and monitor management 
of lesser prairie-chicken habitat beyond regulating recreational 
harvest. Because most lesser prairie-chicken habitat destruction and 
modification on private land occurs through otherwise lawful activities 
such as agricultural conversion, livestock grazing, energy development, 
and fire exclusion, few (if any) regulatory mechanisms are in place to 
substantially alter human land uses at a sufficient scale to protect 
lesser prairie-chicken populations and their habitat. While almost no 
regulatory protection is in place for the species, regulatory 
incentives, in the form of county, state, and national legislative 
actions, have been created to facilitate the expansion of activities 
that result in fragmentation of occupied lesser prairie-chicken 
habitat, such as that resulting from oil, gas, and wind energy 
development. For the remaining 4 percent of occupied habitat currently 
under Federal management, habitat quality depends primarily on factors 
related to multiple use mandates, such as livestock grazing and oil, 
gas, and wind power development activities. Because prior leasing 
commitments and management decisions on the majority of occupied 
parcels of Federal land offer little flexibility for reversal, any new 
regulatory protection for uncommitted land units are important and will 
take time to achieve substantial benefits for the species in the long 
    We note that the existing regulatory mechanisms at the Federal and 
State level have not been sufficient to preclude the decline of the 
species. In spite of the existing regulatory mechanisms, the current 
and projected threat from the loss and fragmentation of lesser prairie-
chicken habitat and range is still ongoing.

Proposed Listing Determination

    As required by the Act, we considered the five factors in assessing 
whether the lesser prairie-chicken meets the definition of a threatened 
or endangered species. We examined the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the lesser prairie-chicken. Based on our review of the best 
available scientific and commercial information, we find the lesser 
prairie-chicken is likely to become in danger of extinction in the 
foreseeable future and therefore meets the definition of a threatened 
    The life history and ecology of the lesser prairie-chicken makes it 
exceptionally vulnerable to changes on the landscape. As discussed 
above, the 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 make 
the lesser prairie-chicken vulnerable to habitat impacts, especially at 
its currently reduced numbers. Specifically, its behavioral avoidance 
of vertical structures causes its habitat to be more functionally 
fragmented than another species' habitat would be. For example, a snake 
likely would continue to use habitat underneath a wind turbine, but the 
lesser prairie-chicken's predator avoidance behavior causes it to avoid 
a large area (estimated to be a mile) around a tall vertical object. 
The habitat within that 1.6-km (1-mi) buffer continues to be otherwise 
suitable for lesser prairie-chickens, but the entire area is avoided 
because of the vertical structure. As a result, the impact of any 
individual fragmenting feature is of higher magnitude than the physical 
footprint of that structure would suggest it should be.
    The historical, current, and ongoing threats to the lesser prairie-
chicken are widespread and of high magnitude. The lesser prairie-
chicken is currently imperiled throughout all of its range due to 
historical, ongoing impacts and probable future impacts of the 
cumulative habitat loss and fragmentation. These impacts are the result 
of conversion of grasslands to agricultural uses, encroachment by 
invasive woody plants, wind energy development, petroleum production, 
roads, and presence of manmade vertical structures including towers, 
utility lines, fences, turbines, wells, and buildings. The historical 
and current impact of these fragmenting factors has reduced the status 
of the species to the point that individual populations are vulnerable 
to extirpation as a result of stochastic events such as extreme weather 
events. Additionally, these populations are more vulnerable to the 
effects of climate change, disease, and predation than they would have 
been at historical population levels. These threats are currently 
impacting lesser prairie-chickens throughout their range and are 
projected to continue and to increase in severity into the foreseeable 
    The range of the lesser prairie-chicken has been reduced by an 
estimated 84 percent. The vulnerability of lesser prairie-chickens to 
changes on the landscape is magnified compared to historical times due 
to its reduced population numbers, prevalence of isolated populations, 
and reduced range. There are few areas of large patches of 
unfragmented, suitable grassland remaining. Based on our analysis 
presented earlier, some 99.8 percent of the remaining suitable habitat 
patches were less than 2,023 ha (5,000 ac) in size. In order to thrive 
and colonize unoccupied areas, lesser prairie-chickens require large 
patches of functionally unfragmented habitat that include a variety of 
microhabitats needed to support lekking, nesting,

[[Page 73884]]

brood rearing, feeding for young, and feeding for adults, among other 
things. Habitat patches that do not contain all of these microhabitats 
may support population persistence, but may not support thriving 
populations that can produce surplus males capable of colonizing new 
areas or recolonizing previously extirpated areas.
    Due to its reduced population size and ongoing habitat loss and 
degradation, the species lacks sufficient redundancy and resiliency to 
recover from present and foreseeable future probable threats. As a 
result, the status of the species has been reduced to the point that 
individual populations are vulnerable to extirpation due to a variety 
of stochastic events (e.g., drought, winter storms). These extirpations 
are especially significant because, in many places, there are no 
nearby, connected populations with robust numbers that can rescue the 
extirpated populations (i.e., be a source for recolonization). Without 
intervention, population numbers will continue to decline and the range 
of the species will continue to contract.
    In summary, as a result of the significant reduction in numbers and 
range of lesser prairie-chickens resulting from cumulative ongoing 
habitat fragmentation, combined with the lack of sufficient redundancy 
and resiliency of current populations, we conclude that the lesser 
prairie-chicken is currently at risk of extinction or is likely to be 
in danger of extinction in the foreseeable future.
    We must then assess whether the species is in danger of extinction 
now (i.e., an endangered species) or is likely to become in danger of 
extinction in the foreseeable future (i.e., a threatened species). In 
assessing the status of the lesser prairie-chicken, we applied the 
general understanding of ``in danger of extinction'' as discussed in 
the December 22, 2010, memo to the Polar Bear Listing Determination 
File, ``Supplemental Explanation for the Legal Basis of the 
Department's May 15, 2008, Determination of Threatened Status for the 
Polar Bear'', signed by then Acting Director Dan Ashe (hereafter 
referred to as Polar Bear Memo). As discussed in the Polar Bear Memo, a 
key statutory difference between a threatened species and an endangered 
species is the timing of when a species may be in danger of extinction 
(i.e., currently on the brink of extinction), either now (endangered 
species) or in the foreseeable future (threatened species). A species 
that is in danger of extinction at some point beyond the foreseeable 
future does not meet the definition of either an endangered species or 
a threatened species.
    As discussed in the Polar Bear Memo, because of the fact-specific 
nature of listing determinations, there is no single metric for 
determining if a species is ``in danger of extinction'' now. 
Nonetheless, the practice of the Service over the past four decades has 
been remarkably consistent. Species that the Service has determined to 
be in danger of extinction now, and therefore appropriately listed as 
an endangered species, generally fall into four basic categories. The 
best scientific data available indicates that the lesser prairie-
chicken fits into the category: ``Species with still relatively 
widespread distribution that have nevertheless suffered ongoing major 
reductions in its numbers, range, or both, as a result of factors that 
have not been abated.'' However, the Polar Bear Memo goes on to explain 
that threatened species share some characteristics with this category 
of endangered species, ``Whether a species in this situation is 
ultimately an endangered species or threatened species depends on the 
specific life history and ecology of the species, the natures of the 
threats, and population numbers and trends.''
    As discussed above, the foreseeable future refers to the extent to 
which the Secretary can reasonably rely on predictions about the future 
in making determinations about the future conservation status of the 
species. For the lesser prairie-chicken, information about the primary 
ongoing and future threats is reasonably well-known and reliable. As 
suggested by the Polar Bear Memo, species like the lesser prairie-
chicken that have suffered ongoing major reductions in numbers and 
range due to factors that have not been abated may be classified as a 
threatened species if some populations appear stable, which would 
indicate that the entity as a whole was not in danger of extinction now 
(i.e., not an endangered species). In the case of the lesser prairie-
chicken, the best available information indicates that while there have 
been major range reductions (84 percent) as a result of factors that 
have not been abated (cumulative habitat fragmentation) and while there 
continues to be uncertainty around the current status of the species, 
particularly in the face of significant drought events in 2011 and 
2012, there may be sufficient stable populations to allow the species 
to persist into the near future. The remaining populations are spread 
over a large geographical area and the current range of the species 
includes populations that represent the known diversity of ecological 
settings for the lesser prairie-chicken. As a result, it is unlikely 
that a single stochastic event (e.g., drought, winter storm) will 
affect all known extant populations equally or simultaneously, 
therefore, it would require several stochastic events over a number of 
years to bring the lesser prairie-chicken to the brink of extinction 
due to those factors alone. Similarly, the current and ongoing threats 
of conversion of grasslands to agricultural uses, encroachment by 
invasive woody plants, wind energy development, and petroleum 
production are not likely to impact all remaining populations 
significantly in the near term because these activities either move 
slowly across the landscape or take several years to plan and 
implement. Therefore, because there may be sufficient stable 
populations to allow the lesser prairie-chicken to persist into the 
near future, it is not in danger of extinction throughout all of its 
range now, and more appropriately meets the definition of a threatened 
species (i.e., likely to become in danger of extinction in the 
foreseeable future).
    In conclusion, as described above, the lesser prairie-chicken has 
experienced significant reductions in range and population numbers, is 
especially vulnerable to impacts due to its life history and ecology, 
and is subject to significant current and ongoing threats in the 
foreseeable future. However, there may be sufficient stable populations 
to allow the species to persist into the near future. Therefore, after 
a review of the best available scientific information as it relates to 
the status of the species and the five listing factors, we find the 
lesser prairie-chicken is likely to become in danger of extinction in 
the foreseeable future throughout its range.

Critical Habitat Designation for Lesser Prairie-Chicken


    Critical habitat is defined in section 3 of the Act as:
    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (I) Essential to the conservation of the species, and
    (II) Which may require special management considerations or 
protection; and
    (ii) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.

[[Page 73885]]

    Conservation, as defined under section 3 of the Act, means using 
all methods and procedures deemed necessary to bring an endangered or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Such methods and procedures 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be relieved 
otherwise, may include regulated taking.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the requirement that Federal agencies insure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not alter land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow the government or public to access private lands. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by non-Federal landowners. Instead, where a 
landowner seeks or requests Federal agency funding or authorization for 
an action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the 
obligation of the Federal action agency and the applicant is not to 
restore or recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are the 
elements of physical or biological features that are the specific 
components that provide for a species' life-history processes, are 
essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area formerly occupied by the species but that 
was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in a critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its current occupied range would be inadequate to ensure the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas we should designate as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include articles published in peer-reviewed 
journals, conservation plans developed by States and Counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species, considering additional scientific information 
may become available in the future. For these reasons, a critical 
habitat designation does not signal that habitat outside the designated 
area is unimportant or may not be needed for recovery of the species. 
Areas that are important to the conservation of the species, both 
inside and outside the critical habitat designation, will continue to 
be subject to: (1) Conservation actions implemented under section 
7(a)(1) of the Act; (2) regulatory protections afforded by the 
requirement in section 7(a)(2) of the Act for Federal agencies to 
insure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species; and (3) the 
prohibitions of section 9 of the Act if actions occurring in these 
areas may result in take of the species. Federally funded or permitted 
projects affecting listed species outside their designated critical 
habitat areas may still result in jeopardy findings in some cases. 
These protections and conservation tools will continue to contribute to 
recovery of this species. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, HCPs, or other species conservation planning efforts if 
new information available at the time of these planning efforts calls 
for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time a species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the 
designation of critical habitat is not prudent when one or both of the 
following situations exist: (1) The species is threatened by taking or 
other human activity, and the identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is currently no operative threat to lesser prairie-chickens 
attributed to unauthorized collection or vandalism, and identification 
and mapping of critical habitat is not expected to initiate

[[Page 73886]]

any such threat. Thus, we conclude designating critical habitat for the 
lesser prairie-chicken is not expected to create or increase the degree 
of threat to the species due to taking.
    Conservation of lesser prairie-chickens and their essential 
habitats will focus on, among other things, habitat management, 
protection, and restoration, which will be aided by knowledge of 
habitat locations and the physical or biological features of the 
habitat. In the absence of finding that the designation of critical 
habitat would increase threats to a species, if there are any benefits 
to a critical habitat designation, then a prudent finding is warranted. 
We conclude that the designation of critical habitat for the lesser 
prairie-chicken will benefit the species by serving to focus 
conservation efforts on the restoration and maintenance of ecosystem 
functions within those areas considered essential for achieving its 
recovery and long-term viability. Other potential benefits include: (1) 
Triggering consultation under section 7(a)(2) of the Act in new areas 
for actions in which there may be a Federal nexus where it would not 
otherwise occur because, for example, it is or has become unoccupied or 
the occupancy is in question; (2) focusing conservation activities on 
the most essential features and areas; (3) providing educational 
benefits to State or County governments or private entities; and (4) 
preventing inadvertent harm to the species.
    Therefore, because we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and may provide some benefit, we find that designation of 
critical habitat is prudent for the lesser prairie-chicken.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat. When 
critical habitat is not determinable, the Act allows the Service an 
additional year following publication of a final listing rule to 
publish a final critical habitat designation (16 U.S.C. 
    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
the regulations at 50 CFR 424.12, in determining which areas occupied 
by the species at the time of listing to designate as critical habitat, 
we consider the physical and biological features essential to the 
conservation of the species which may require special management 
considerations or protection. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.
    We are currently unable to identify critical habitat for the lesser 
prairie-chicken because important information on the geographical area 
occupied by the species, the physical and biological habitat features 
that are essential to the conservation of the species, and the 
unoccupied areas that are essential to the conservation of the species 
is not known at this time. A specific shortcoming of the currently 
available information is the lack of data about: (1) The specific 
physical and biological features essential to the conservation of the 
species; (2) how much habitat may ultimately be needed to conserve the 
species; (3) where the habitat patches occur that have the best chance 
of rehabilitation; and (4) where linkages between current and future 
populations may occur. Additionally, while we have reasonable general 
information about habitat features in areas occupied by lesser prairie-
chickens, we do not know what specific features, or combinations of 
features, are needed to ensure persistence of stable, secure 
    Several conservation actions are currently underway that will help 
inform this process and reduce some of the current uncertainty. 
Incorporation of the information from these conservation actions will 
give us a better understanding of the species' biological requirements 
and what areas are needed to support the conservation of the species.
    The five State Conservation Agencies within the occupied range of 
the lesser prairie-chicken, through coordination with the Western 
Association of Fish and Wildlife Agencies Grassland Initiative, have 
been funded to develop a rangewide survey sampling framework and to 
implement aerial surveys during the spring (March through May) of 2012, 
and continuing into 2013. Implementation of these aerial surveys is 
important as they will enable biologists to determine location of leks 
that are too distant from public roads to be detected during standard 
survey efforts. Our critical habitat determination will benefit from 
this additional information and allow us to consider the most recent 
and best science in making our critical habitat determination.
    Similarly, all five State Conservation Agencies within the occupied 
range of the lesser prairie-chicken have partnered with the Service and 
Playa Lakes Joint Venture, using funding from the DOE and the Western 
Governor's Association, to develop a decision support system that 
assists in evaluation of lesser prairie-chicken habitat, assists 
industry with nonregulatory siting decisions, and facilitates targeting 
of conservation activities for the species. The first iteration of that 
product, Phase I, went online in September 2011 (http://kars.ku.edu/geodata/maps/sgpchat/). This decision support system is still being 
refined, and a second iteration of the product (Phase II), under 
oversight of the Western Association of Fish and Wildlife Agencies, 
will provide additional information that will help improve evaluation 
of lesser prairie-chicken habitat. The Steering Committee of the Great 
Plains Landscape Conservation Cooperative has made completion of Phase 
II one of their highest priorities for over the next 18 months. The 
Lesser Prairie-chicken Interstate Working Group will be identifying the 
research and data needs for moving Phase II forward. Outputs derived 
from this decision support tool will help us more precisely identify 
the location and distribution of features essential to the conservation 
of the lesser prairie-chicken.
    Additionally, the Service is actively pursuing the development of a 
population viability analysis that we anticipate will significantly 
inform the development of a critical habitat proposal. A population 
viability analysis is a modeling effort that is intended to estimate 
the likelihood of persistence of a population or species into the 
future. The analysis can be used to assess appropriate population 
targets that would be expected to support long term persistence, and 
can be used to compare and contrast a variety of potential management 
    Finally, the five State Conservation Agencies also are working to 
develop a

[[Page 73887]]

multi-State rangewide conservation strategy that likely will provide 
information on the location of focal areas where targeted conservation 
is anticipated to contribute significantly to long-term viability of 
the lesser prairie-chicken.
    Consequently, while we recognize that the Act requires us to use 
the best available scientific information available at any given time 
when developing a critical habitat designation, we believe these 
additional efforts that are ongoing over the next 6 months or more will 
be vital pieces of information that will support a more well-reasoned 
critical habitat designation that will better contribute to the 
conservation of the species. Therefore, we have concluded that critical 
habitat is not determinable for the lesser prairie-chicken at this 

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our determination of status for this species is based on 
scientifically sound data, assumptions, and analyses. We will send peer 
reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the public comment period, on our use and 
interpretation of the science used in developing our proposal to list 
the lesser prairie-chicken.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

    Four public hearings have been scheduled on this proposal (see in 
formation in DATES and ADDRESSES sections above). Persons needing 
reasonable accommodations to attend and participate in a public hearing 
should contact the Oklahoma Ecological Services Field Office at 918-
581-7458, as soon as possible. To allow sufficient time to process 
requests, please call no later than 1 week before the hearing date. 
Information regarding this proposed rule is available in alternative 
formats upon request.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by Office of Management and Budget under the Paperwork 
Reduction Act. This rule will not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid Office of Management and Budget control 

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a)(1) 
of the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 

Government-to-Government Relationship With Tribes

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

References Cited

    A complete list of all references cited in this proposed rule is 
available on the internet at http://www.regulations.gov, or upon 
request from the Field Supervisor, Oklahoma Ecological Services Field 


    The primary authors of this proposed rule are the staff members of 
the Oklahoma Ecological Services Field Office (see FOR FURTHER 

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise 

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

[[Page 73888]]

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

* * * * *

    Dated: November 26, 2012.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
[FR Doc. 2012-29331 Filed 12-10-12; 8:45 am]