# Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Lesser Prairie-Chicken > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2014-07302 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 10, 2014 - **Citation:** 79 FR 19974 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2012-0071; 4500030113] RIN 1018-AY21 Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Lesser Prairie-Chicken AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service, determine threatened species status for the lesser prairie-chicken ( Tympanuchus pallidicinctus ), a grassland bird known from southeastern Colorado, western Kansas, eastern New Mexico, western Oklahoma, and the Texas Panhandle, under the Endangered Species Act of 1973, as amended (Act). This final rule implements the Federal protections provided by the Act for the lesser prairie-chicken. Critical habitat is prudent but not determinable at this time. Elsewhere in this issue of the Federal Register , we published a final special rule under section 4(d) of the Act for the lesser prairie-chicken. DATES: This rule is effective on May 12, 2014. ADDRESSES: Document availability: You may obtain copies of this final rule on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0071 or by mail from the Oklahoma Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT below). Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Oklahoma Ecological Services Field Office, 9014 East 21st Street, Tulsa, OK 74129; telephone 918-581-7458; facsimile 918-581-7467. FOR FURTHER INFORMATION CONTACT: Alisa Shull, Acting Field Supervisor, Oklahoma Ecological Services Field Office, 9014 East 21st Street, Tulsa, OK 74129; by telephone 918-581-7458 or by facsimile 918-581-7467. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Executive Summary This document consists of: (1) A final rule to list the lesser prairie-chicken as a threatened species; and (2) a finding that critical habitat is prudent but not determinable at this time. Why we need to publish a rule. Under the Endangered Species Act (Act), a species may warrant protection through listing if it is an endangered or threatened species throughout all or a significant portion of its range. The Act sets forth procedures for adding species to, removing species from or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. In this final rule, we explain why the lesser prairie-chicken warrants protection under the Act. This rule lists the lesser prairie-chicken as a threatened species throughout its range. The Act provides the basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The primary factors supporting the determination of threatened status for the lesser prairie-chicken are the ongoing and probable future impacts of cumulative habitat loss and fragmentation. These impacts are the result of: Conversion of grasslands to agricultural uses; encroachment by invasive, woody plants; wind energy development; petroleum production; and presence of roads and manmade vertical structures including towers, utility lines, fences, turbines, wells, and buildings. We requested peer review of the methods used in making our final determination. We obtained opinions from knowledgeable individuals having scientific expertise in this species or related fields (such as range and fire ecology, shrub management and grouse management) and solicited review of the scientific information and methods that we used in developing the proposal. We obtained opinions from two knowledgeable individuals with scientific expertise to review our technical assumptions, analysis, adherence to regulations, and whether we had used the best available information. These peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final listing rule. We sought public comment on the proposed listing rule and the proposed special rule under section 4(d) of the Act. During the first comment period, we received 879 comment letters directly addressing the proposed listing and critical habitat designation. During the second comment period, we received 56,344 comment letters addressing the proposed listing rule, proposed special rule, and related rangewide conservation plan. During the third comment period, we received 12 comments regarding the proposed listing. During the fourth comment period, we received 74 comments, primarily related to the proposed revised special rule. Previous Federal Actions In 1973, the Service's Office of Endangered Species published a list of threatened wildlife of the United States in Resource Publication 114, often referred to as the “Red Book.” While this publication did not, by itself, provide any special protections, the publication served, in part, to solicit additional information regarding the status of the identified taxa. The lesser prairie-chicken was one of 70 birds included in this publication (Service 1973, pp. 134-135), but little Federal regulatory action occurred on the lesser prairie-chicken until 1995. On October 6, 1995, we received a petition, dated October 5, 1995, from the Biodiversity Legal Foundation, Boulder, Colorado, and Marie E. Morrissey (petitioners). The petitioners requested that we list the lesser prairie-chicken as threatened throughout its known historical range in the United States. The petitioners defined the historical range to encompass west-central Texas north through eastern New Mexico and western Oklahoma to southeastern Colorado and western Kansas, and they stated that there may have been small populations in northeastern Colorado and northwestern Nebraska. The petitioners also requested that critical habitat be designated as soon as the needs of the species are sufficiently well known. However, from October 1995 through April 1996, we were under a moratorium on listing actions as a result of Public Law 104-6, which, along with a series of continuing budget resolutions, eliminated or severely reduced our listing budget through April 1996. We were unable to act on the petition during that period. On July 8, 1997 (62 FR 36482), we announced our 90-day finding that the petition presented substantial information indicating that the petitioned action may be warranted. In that notice, we requested additional information on the status, trend, distribution, and habitat requirements of the species for use in conducting a status review. We requested that information be submitted to us by September 8, 1997. In response to a request by the Lesser Prairie-Chicken Interstate Working Group dated September 3, 1997, we reopened the comment period for an additional 30 days, beginning on November 3, 1997 (62 FR 59334). We subsequently published our 12-month finding for the lesser prairie-chicken on June 9, 1998 (63 FR 31400), concluding that the petitioned action was warranted but precluded by other higher priority listing actions. The 12-month finding initially identified the lesser prairie-chicken as a candidate for listing with a listing priority number (LPN) of 8. Our policy (48 FR 43098; September 21, 1983) requires the assignment of an LPN to all candidate species. This listing priority system was developed to ensure that we have a rational system for allocating limited resources in a way that ensures those species in greatest need of protection are the first to receive such protection. The listing priority system considers magnitude of threat, immediacy of threat, and taxonomic distinctiveness in assigning species numerical listing priorities on a scale from 1 to 12. In general, a smaller LPN reflects a greater need for protection than a larger LPN. The lesser prairie-chicken was assigned an LPN of 8, indicating that the magnitude of threats was moderate and the immediacy of the threats to the species was high. On January 8, 2001 (66 FR 1295), we published our resubmitted petition findings for 25 animal species, including the lesser prairie-chicken, having outstanding “warranted-but-precluded” petition findings as well as notice of one candidate removal. The lesser prairie-chicken remained a candidate with an LPN of 8 in our October 30, 2001 (66 FR 54808); June 13, 2002 (67 FR 40657); May 4, 2004 (69 FR 24876); May 11, 2005 (70 FR 24870); September 12, 2006 (71 FR 53756); and December 6, 2007 (72 FR 69034) candidate notices of review. In our December 10, 2008 (73 FR 75176), candidate notice of review, we changed the LPN for the lesser prairie-chicken from an 8 to a 2. This change in LPN reflected a change in the magnitude of the threats from moderate to high primarily due to an anticipated increase in the development of wind energy and associated placement of transmission lines throughout the estimated occupied range of the lesser prairie-chicken. Our June 9, 1998, 12-month finding (63 FR 31400) did not recognize wind energy and transmission line development as a threat because such development within the known range was almost nonexistent at that time. Changes in the magnitude of other threats, such as conversion of certain Conservation Reserve Program (CRP) lands from native grass cover to cropland or other less ecologically valuable habitat and observed increases in oil and gas development, also were important considerations in our decision to change the LPN. The immediacy of the threats to the species did not change and continued to be high. Our November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), and October 26, 2011 (76 FR 66370) candidate notices of review retained an LPN of 2 for the lesser prairie-chicken. Since making our 12-month finding, we have received several 60-day notices of intent to sue from WildEarth Guardians (formerly Forest Guardians) and several other parties for failure to make expeditious progress toward listing of the lesser prairie-chicken. These notices were dated August 13, 2001; July 23, 2003; November 23, 2004; and May 11, 2010. WildEarth Guardians subsequently filed suit on September 1, 2010, in the U.S. District Court for the District of Colorado. A revised notice of intent to sue dated January 24, 2011, in response to motions from New Mexico Oil and Gas Association, New Mexico Cattle Growers Association, and Independent Petroleum Association of New Mexico to intervene on behalf of the Secretary of the Interior, also was received from WildEarth Guardians. This complaint was subsequently consolidated in the U.S. District Court for the District of Columbia along with several other cases filed by the Center for Biological Diversity or WildEarth Guardians relating to petition finding deadlines and expeditious progress toward listing. A settlement agreement in In re Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011) was reached with WildEarth Guardians in which we agreed to submit a proposed listing rule for the lesser prairie-chicken to the Federal Register for publication by September 30, 2012. On September 27, 2012, the settlement agreement was modified to require that the proposed listing rule be submitted to the Federal Register on or before November 29, 2012. On December 11, 2012, we published a proposed rule (77 FR 73828) to list the lesser prairie-chicken as a threatened species under the Act (16 U.S.C. 1531 et seq. ). Publication of the proposed rule opened a 90-day comment period that closed on March 11, 2013. We held a public meeting and hearing in Woodward, Oklahoma, on February 5, 2013; in Garden City, Kansas, on February 7, 2013; in Lubbock, Texas, on February 11, 2013; and in Roswell, New Mexico, on February 12, 2013. On May 6, 2013, we announced the publication of a proposed special rule under the authority of section 4(d) of the Act. At this time, we reopened the comment period on the proposed listing rule (77 FR 73828) to provide an opportunity for the public to simultaneously provide comments on the proposed listing rule, the proposed special rule, and a draft rangewide conservation plan for the lesser prairie-chicken. This comment period was open from May 6 to June 20, 2013. On July 9, 2013, we announced a 6-month extension (78 FR 41022) of the final listing determination based on our finding that there was substantial disagreement regarding the sufficiency or accuracy of the available data relevant to our determination regarding the proposed listing rule. We again reopened the comment period to solicit additional information. This comment period closed on August 8, 2013. We reopened the comment period again on December 11, 2013 (78 FR 75306), to solicit comments on a revised proposed special rule and our December 11, 2012, proposed listing rule. This comment period closed on January 10, 2014. However, the endorsed version of the Western Association of Fish and Wildlife Agencies' Lesser Prairie-Chicken Range-wide Conservation Plan was not available on the Web sites, as stated in the December 11, 2013, revised proposed special 4(d) rule (78 FR 75306), at that time. We subsequently reopened the comment period on January 29, 2014 (79 FR 4652), to allow the public the opportunity to have access to this rangewide plan and submit comments on the revised proposed special rule and our December 11, 2012, proposed listing rule. This comment period closed on February 12, 2014. Summary of Comments and Recommendations We requested written comments from the public on the proposed listing of the lesser prairie-chicken during five comment periods: December 11, 2012, to March 11, 2013; May 6 to June 20, 2013; July 9 to August 8, 2013; December 11, 2013, to January 10, 2014; and January 29 to February 12, 2014. Additionally four public hearings were held in February 2013; February 5th in Woodward, Oklahoma; February 7th in Garden City, Kansas; February 11th in Lubbock, Texas; and February 12th in Roswell, New Mexico. We also contacted appropriate Federal, Tribal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule, proposed special rule, draft rangewide conservation plan, and final rangewide conservation plan during the respective comment periods. Over the course of the five comment periods, we received approximately 57,350 comment submissions. Of these, approximately 56,800 were form letters. Additionally, during the February 2013 public hearings, 85 individuals or organizations provided comments on the proposed rule. All substantive information provided during these comment periods, including the public hearings, has either been incorporated directly into this final determination or is addressed below. Comments from peer reviewers and State agencies are grouped separately. In addition to the comments, some commenters submitted additional reports and references for our consideration, which we reviewed and incorporated into this final rule as appropriate. Peer Reviewer Comments In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from nine knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occur, and conservation biology principles. We received responses from two of the nine peer reviewers we contacted. We reviewed all comments received from the two peer reviewers regarding the analysis of threats to the lesser prairie-chicken and our proposed threatened listing determination. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule, as appropriate. (1) Comment: Conservation efforts to date have not been adequate to address known threats. Our Response: While considerable effort has been expended over the past several years to address some of the known threats throughout portions or all of the species' estimated occupied range, threats to the continued viability of the lesser prairie-chicken into the future remain. Recent development of conservation plans has highlighted the importance of not only habitat restoration and enhancement but also the role of the States and other partners in reducing many of the known threats to the lesser prairie-chicken. Consequently, we proposed a special rule under section 4(d) of the Act that facilitates conservation implementation and threat reduction through development or implementation of certain types of conservation plans and efforts. Such plans will help provide the ongoing, targeted implementation of appropriate conservation actions that are an important aspect of collaborative efforts to improve the status of the species. We discuss the various conservation efforts occurring within the estimated occupied range of the lesser prairie-chicken in more detail in the Summary of Ongoing and Future Conservation Efforts, below. (2) Comment: Grain crops may be used by lesser prairie-chickens more extensively than indicated in the rule, particularly considering that conversion of the prairies to crop production led to expansion, at least temporarily, of lesser prairie-chicken populations. Our Response: Grain crops are used by lesser prairie-chickens and may have temporarily led to range expansion, but the best available information does not detail how extensively grains are used by lesser prairie-chickens. Considering food is likely rarely limiting for lesser prairie-chickens, grains are likely used advantageously and are not necessary for survival. However, lesser prairie-chickens may be more dependent upon waste grain during drought or prolonged periods of extreme winter weather. Lesser prairie-chickens tend to predominantly rely on cultivated grains when production of natural foods, such as acorns and grass and forb seeds, are deficient (Copelin 1963, p. 47). Therefore, agricultural grain crops, particularly when irrigated and with additional nutrient inputs, can be a more reliable, but temporary, food source than native foods that fluctuate with environmental conditions. However, there is a cost to the species associated with using grain fields in terms of exposure to predation, energy expenditure, and weather. Copelin (1963, entire) indicates that lesser prairie-chickens will occasionally use grain crops, but it appears that native foods are generally preferred. Additionally, as the extent of agricultural lands increases within the landscape, native grass and shrubland habitats that are used by lesser prairie-chickens for all life-history stages, not limited to foraging, decline. Kukal (2010, pp. 22, 24) found that lesser prairie-chickens did not move long distances to access grain fields and may spend the fall and winter exclusively in grasslands even when grain fields, primarily wheat, are available. While this likely indicates that wheat is not a preferred grain source, or that grains are not readily available on winter wheat fields, the best scientific information indicates that crop fields are less important to lesser prairie-chicken survival than are native grasslands in good condition because native grasslands are more likely to provide necessary habitat for lekking, nesting, brood rearing, feeding for young, and feeding for adults, among other things. Accordingly, this rule characterizes waste grains and grain agriculture as important during prolonged periods of adverse winter weather but unnecessary for lesser prairie-chicken survival during most years and in most regions. A more detailed discussion of lesser prairie-chicken use of grain crops is provided in the “Life-History Characteristics” section, below. (3) Comment: The Service should not list population segments of the lesser prairie-chicken in Kansas, where those populations meet or exceed population thresholds established by an objective and independent team of species experts. Specifically, the Service could designate a distinct population segment in Kansas and exclude it from any listing action. Our Response: The Act allows us to list only species, subspecies, or distinct population segments of a species or subspecies, as section 3(16) of the Act defines species to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” The Service and the National Marine Fisheries Service jointly published a “Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act” (DPS Policy) in the Federal Register on February 7, 1996 (61 FR 4722). Under the DPS Policy, three factors are considered in a decision concerning whether to establish and classify a possible DPS. The first two factors, (1) discreteness of the population segment in relation to the remainder of the taxon and (2) the significance of the population segment to the taxon to which it belongs, bear on whether the population segment can be a possible DPS. The third factor bears on answering the question of whether the population segment, when treated as if it were a species, is endangered or threatened. In order to establish a DPS, all three factors must be met. Under the DPS Policy, a population may be considered discrete if (1) it is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries with differences in control of exploitation, management of habitat, conservation status, or relevant regulatory mechanisms. The best scientific and commercial information available does not indicate that lesser prairie-chicken populations in Kansas are discrete from the populations in the neighboring States of Colorado or Oklahoma because there is no marked separation from other populations. Thus, we do not have the discretion to exclude populations in Kansas from the listing because they do not meet the definition of a listable (or delistable) entity. Please refer to the Determination section of this final listing rule for further discussion. (4) Comment: A recovery team should be established and critical habitat proposed as quickly as possible following the final listing decision. Our Response: Under section 4(f)(1) of the Act, we are required to develop and implement plans for the conservation and survival of endangered and threatened species, unless the Secretary of the Interior finds that such a plan will not promote the conservation of the species. We will move to accomplish these tasks as soon as feasible. We have determined in this final rule that critical habitat is not determinable at this time; however, we are required under section 4(b)(6)(C)(ii) of the Act to make our critical habitat determination within one year from the publication date of this final rule. (5) Comment: Speciation in members of the genus Tympanuchus may be incomplete, and statements regarding taxonomy should be revised to more fully disclose the current state of genetic and taxonomic information. Electronic copies of several publications were provided to aid the Service's review of this information. Our Response: As stated in the final rule, we agree that there is some uncertainty regarding the taxonomic status of the lesser prairie-chicken and other related members of the genus. For example, Johnsgard (1983, p. 316) initially considered the greater and lesser prairie-chickens to be allopatric subspecies, meaning that they originated as the same species but populations became isolated from each other to an extent that prevented genetic interchange, causing speciation. However, the American Ornithologists Union recognizes the lesser prairie-chicken as a species, and we have concluded that the lesser prairie-chicken is sufficiently distinct from other members of the genus to meet the Act's definition of a species. The American Ornithologists Union considers the lesser prairie-chicken to be distinct from the greater prairie-chicken based on known differences in behavior, habitat affiliation, and social aggregation (Ellsworth et al. 1994, p. 662). We have revised the rule to include a more thorough discussion of prairie grouse phylogeny (the evolutionary history of taxonomic groups). (6) Comment: Under conditions of high production and large population size, lesser prairie-chickens would be able to disperse up to 48 kilometers (km) (30 miles (mi)) annually and be able to recolonize areas fairly quickly. Similarly, if birds were at least partially migratory in the past, recolonization could occur more rapidly than indicated in the proposed rule. Our Response: There is limited information available on the dispersal capabilities of lesser prairie-chickens, but the best scientific information available to us supports that lesser prairie-chickens exhibit limited dispersal tendencies and do not disperse over long distances. In Texas, Haukos (1988, p. 46) recorded daily movements of 0.1 km (0.06 mi) to greater than 6 km (3.7 mi) by female lesser prairie-chickens prior to onset of incubation. Taylor and Guthery (1980b, p. 522) documented a single male moving 12.8 km (8 mi) in 4 days, which they considered to be a dispersal movement. This information does not support the conclusion that individuals have or could disperse up to 48 km (30 mi). Due to their heavy wing loading, they are relatively poor fliers. For these reasons, we do not consider lesser prairie-chickens to be good dispersers. The existence of large-scale migration movements of lesser prairie-chickens is not known, but it is possible that the species was at least partially migratory in the past. Both Bent (1932, pp. 284-285) and Sharpe (1968, pp. 41-42) thought that the species, at least historically, might have been migratory with separate breeding and wintering ranges. Taylor and Guthery (1980a, p. 10) also thought the species was migratory prior to widespread settlement of the High Plains, but migratory movements have not recently been documented. The lesser prairie-chicken is now thought to be nonmigratory. The species' limited dispersal and migration capabilities are unlikely to significantly contribute to recolonization under current conditions, particularly considering the fragmented nature of the occupied range. Recolonization of former lesser prairie-chicken habitat is most likely to occur in habitats that are located in close proximity to existing populations, particularly considering the extent of habitat fragmentation that exists within the occupied range and reduced population size. Due to the lesser prairie chicken's relatively limited movements, their site fidelity, and difficulty in translocating individuals, management efforts are best concentrated on improving habitat conditions in areas adjacent to existing populations and allowing individuals to recolonize those habitats naturally. Under appropriate conditions, populations can recolonize these adjacent areas relatively quickly, provided surplus numbers exist to support dispersal. As evidenced by the reoccupation of former range in Kansas, where large blocks of high-quality habitat were created through the CRP, recolonization is possible but is most likely to occur over the long term (8 to 12 years) in habitats within close proximity to existing populations. As conservation efforts for this species continue and recovery planning would be initiated post-listing, conservation actions such as habitat improvement may include areas that are most likely to support population expansion. (7) Comment: The extent of the historical range provides little information with regard to density of lesser prairie-chickens, and some portions of the historical range may not have been suitable for lesser prairie-chickens even 100 years ago. The extent of the historical range is a somewhat arbitrary benchmark and should not be used when making comparisons with respect to currently occupied range. Our Response: We recognize that not all of the Service's defined historical range was optimal habitat, and very little information regarding historical densities of lesser prairie-chickens exists. However, one of the factors we must consider in our listing determination relates to the present or threatened destruction, modification, or curtailment of a species' habitat or range. Accordingly, comparing the likely extent of historical range with currently occupied range provides insight into whether the range of a species has been lost or reduced over time. We agree that the extent of the historical range is an estimate and use this term, and the term “approximate,” in referring to the historical range. We also recognize that the extent of historical range may have fluctuated over time, based on habitat conditions evident at any one period, and the estimated historical range may represent the maximum range that was occupied during historical times. The information we present in this rule serves to reflect the estimated extent of the historical range based on the best available information and provides some context with which we can discuss the estimated occupied range. While our calculations of the loss of historical range are an estimate and not an exact value, they demonstrate that the range of the lesser prairie-chicken likely has contracted substantially since pre-European settlement. (8) Comment: The rule fails to consider that the occupied range of the lesser prairie-chicken has expanded to include portions of northwest Kansas and may be larger than in the recent past. Our Response: Our proposed rule clearly states that the lesser prairie-chicken occupies areas in Ellis, Graham, Sheridan, and Trego Counties in Kansas that extend beyond the previously delineated historical range. Our calculations of the estimated occupied range and the estimated occupied range plus a 16-km (10-mi) buffer also recognize the existence of populations in those counties. However, the best scientific and commercial information available indicates the range in northwestern Kansas does not represent a range expansion for lesser prairie-chicken; instead, we consider this to be a reoccupation of former range. (9) Comment: The extent of agricultural land within the range of the lesser prairie-chicken may decline, particularly considering the High Plains (Ogallala) Aquifer may be economically depleted in 20 years. Our Response: The best scientific and commercial information available does not indicate that the extent of agricultural land will decline significantly in the near future, even if the level of the High Plains Aquifer declines. Terrell et al. (2002, p. 35), Sophocleous (2005, p. 361), and Drummond (2007, p. 142) all concluded that, while declining water levels in the High Plains Aquifer may cause some areas of cropland to revert to grassland, most of the irrigated land likely will transition to dryland agriculture, despite the increased use of more efficient methods of irrigation in response to declining water supplies for irrigation. This information has been incorporated into this final rule. (10) Comment: Work by Hovick et al. (unpublished manuscript in review) on anthropogenic structures and grouse that has been submitted for publication should be considered. This work shows a consistent and negative relationship between grouse and certain manmade structures, including oil and gas infrastructure, power lines, and wind turbines. Our Response: We agree with this comment and have incorporated the findings of this study into this rule. This study examined the effect of 23 different types of anthropogenic structures on grouse displacement behavior and found that all structure types examined resulted in displacement, but oil structures and roads had the greatest impact on grouse avoidance behavior (Hovick et al. unpublished manuscript under review, p. 11). They also examined the effect of 17 of these structures on survival and found all of the structures examined also decreased survival in grouse, with lek attendance declining at a greater magnitude than other survival parameters measured (Hovick et al. unpublished manuscript under review, p. 12). This information supports our conclusion that the presence of vertical structures contributes to functional fragmentation of lesser prairie-chicken habitat. (11) Comment: Statements regarding the impact of recreational viewing, particularly with respect to the size of the lek, are speculative and more information should be provided. Our Response: There is little direct evidence regarding impacts of recreational viewing at lesser prairie-chicken leks. Consequently, we cannot provide more definitive information within this section than the discussion in the proposed and final rules. Based on the best scientific and commercial information available at this time, we do not consider recreational viewing to be a significant impact to the species as a whole. Please refer to the Hunting and Other Forms of Recreational, Educational, or Scientific Use section, below, for our discussion of potential impacts from recreational viewing. (12) Comment: In the section on hybridization, the Service incorrectly describes the lesser prairie-chicken populations in Kansas that occur north of the Arkansas River as low density. Our Response: We have revised that discussion to more clearly reflect observed densities in the area of hybridization. (13) Comment: The section on hybridization should be expanded and clarified with respect to the fertility of hybrids. Populations within the zone of overlap are not low density or ephemeral, and the zone of overlap is more extensive than indicated by Bain and Farley (2000). The hybridization issue, combined with information on speciation and possibility of introgression, should be a high priority for research. Our Response: We have expanded the section on hybridization to include discussion related to fertility of first and second generation hybrids. We have concerns with respect to the implications of hybridization, but the best available information at this time does not indicate that hybridization is a threat at current levels. Comments From States Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for [her] failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the States of Colorado, Kansas, New Mexico, Oklahoma, and Texas regarding the proposal to list the lesser prairie-chicken as a threatened species are addressed below. (14) Comment: Evidence shows that the lesser prairie-chicken population is not only surviving, but has stabilized or increased, despite other conditions, including drought in much of the region. This conclusion is supported by Hagen 2012. Lesser prairie-chicken populations can experience large fluctuations in numbers, but they have remained within normal limits given annual precipitation over the past 12 years with no significant decrease; further, they have demonstrated the ability to recover from similar drought episodes in the past. Our Response: In June 2012, we were provided with the referenced interim assessment of lesser prairie-chicken population trends since 1997 (Hagen 2012, entire). While the results of this analysis suggest that lesser prairie-chicken population trends have increased since 1997, we are reluctant to place considerable weight on the interim assessment for a number of reasons as discussed in the rule. The “Rangewide Population Estimates” section of this final listing rule includes a full discussion of these reasons, in addition to a full discussion of population estimates for the species. In summary, Hagen's preliminary analysis evaluates lesser prairie-chicken population trends from 1997 to 2012, whereas the Service's analysis of population estimates as presented in the final rule dates back as far as records are available. Although lesser prairie-chicken populations can fluctuate considerably from year to year in response to variable weather and habitat conditions, generally the overall population size has continued to decline from the estimates of population size available in the early 1900s (Robb and Schroeder 2005, p. 13). The ability of any species to recover from an event, such as drought, is fully dependent upon the density of individuals, the environmental conditions, the time that those environmental conditions persist, and, most importantly, the habitat quality and quantity available (including connectivity of that habitat). An examination of anecdotal information on historical numbers of lesser prairie-chickens indicates that numbers likely have declined from possibly millions of birds to current estimates of thousands of birds. Further, examination of the trends in the five lesser prairie-chicken States for most indicator variables, such as males per lek and lek density, over the last 3 years are indicative of declining populations. The total estimated abundance of lesser prairie-chickens in 2012 was 34,440 individuals (90 percent upper and lower confidence intervals of 52,076 and 21,718 individuals, respectively; McDonald et al. 2013, p. 24). The total estimated abundance of lesser prairie-chickens in 2013 dropped to 17,616 individuals (90 percent upper and lower confidence intervals of 20,978 and 8,442 individuals, respectively) (McDonald et al. 2013, p. 24). The best scientific and commercial information available supports that lesser prairie-chicken populations have declined since pre-European settlement. (15) Comment: Listing the lesser prairie-chicken is contrary to the best available science and current information. Current research and conservation efforts support that the species does not warrant listing. Our Response: As required by section 4(b) of the Act, we used the best scientific and commercial data available in making this final determination. We solicited peer review from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles to ensure that our listing is based on scientifically sound data, assumptions, and analysis. Additionally, we requested comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties concerning the proposed rule. Comments and information we received helped inform this final rule. We used multiple sources of information including: Results of numerous surveys, peer-reviewed literature, unpublished reports by scientists and biological consultants, geospatial analysis, and expert opinion from biologists with extensive experience studying the lesser prairie-chicken and its habitat. The commenter provides no rationale (e.g., literature or scientific evidence) to indicate the species does not meet the definition of a threatened species under the Act. Please refer to the Determination section of this final listing rule for further discussion on whether or not the species meets the definition of an endangered or threatened species. (16) Comment: A final determination to list the species as endangered or threatened would have negative impacts on economics, communities, and private landowners. Economic impacts may affect agriculture (farming and ranching), oil and gas, potash, dairy, wind energy, electricity generation, mineral royalties, and transportation. Many industries may incur additional project costs and delays due to the regulatory and economic burden created by the listing. As industry experiences economic impacts, commenters stated that additional impacts could include decreased tax revenues; a reduction in jobs; effects to school, hospital, and county government operations; increased development pressure; and greater land fragmentation. Our Response: For listing actions, the Act requires that we make determinations “solely on the basis of the best available scientific and commercial data available” (16 U.S.C. 1533(b)(1)(A)). Therefore, we do not consider information concerning economic impacts when making listing determinations. However, section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. Therefore, we will consider the provisions of 4(b)(2) when we designate critical habitat for the species in the future. (17) Comment: The proposed listing is premature. Adequate time must be provided to determine if conservation efforts, such as the candidate conservation agreements with assurances (CCAAs) and the Lesser Prairie-Chicken Range-wide Conservation Plan, are sufficient to maintain a viable lesser prairie-chicken population. Our Response: We recognize the significant efforts of all of our partners in the conservation of the lesser prairie-chicken, and these conservation efforts and the manner in which they are helping to ameliorate threats to the species are considered in our final listing determination. Section 4(b)(1)(A) of the Act requires us to take into account those efforts being made by a State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, and we fully recognize the contributions of the State and local programs. However, the Act requires us to make determinations based on the best scientific and commercial data available “at the time of listing” after conducting a review of the status of the species and after taking into account those efforts, if any, being made to protect such species. The lesser prairie-chicken has been identified as a candidate species since 1998. Since that time, annual candidate notices of review have been conducted, and the scientific literature and data continued to indicate that the lesser prairie-chicken is detrimentally impacted by ongoing threats, and we continued to find that listing the species was warranted. Our determination is guided by the Act and its implementing regulations, considering the five listing factors and using the best available scientific and commercial information. (18) Comment: The Lesser Prairie-Chicken Range-wide Conservation Plan effectively addresses the threats being faced by the species throughout the range. By using voluntary, incentive-based programs, the Range-wide Conservation Plan encourages effective management on private lands for the lesser prairie-chicken and implements mechanisms for industry to avoid, minimize, and mitigate impacts to the species' habitat. These efforts effectively ameliorate the threats identified in the proposed rule for listing and, therefore, support a not-warranted finding. Our Response: The Service supports the efforts of the Western Association of Fish and Wildlife Agencies (WAFWA) in the development of the rangewide plan and has recognized it as a landmark effort in collaborative, rangewide planning for conservation of an at-risk species. On October 23, 2013, the Service announced its endorsement of the plan as a comprehensive conservation program that reflects a sound conservation design and strategy that, when implemented, will provide a net conservation benefit to lesser prairie-chicken. The plan includes a strategy to address threats to the prairie-chicken throughout its range, establishes measurable biological goals and objectives for population and habitat, provides the framework to achieve these goals and objectives, demonstrates the administrative and financial mechanisms necessary for successful implementation, and includes adequate monitoring and adaptive management provisions. For these reasons, elsewhere in today's Federal Register , we are finalizing a special rule under section 4(d) of the Act that, among other things, specifically exempts from regulation the take of lesser prairie-chicken if that take is incidental to carrying out the rangewide plan. The Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) provides guidance on how to evaluate conservation efforts that have not yet been fully implemented or have not yet demonstrated effectiveness. The policy presents criteria for evaluating the certainty of implementation and the certainty of effectiveness for such conservation efforts. The Service has evaluated the rangewide plan under the PECE criteria. A summary of that evaluation follows. At the time of the listing decision, based upon the criteria in PECE, the Service is uncertain concerning availability of funding and the level of voluntary participation in the rangewide plan in the future. At this time, the measures in the rangewide plan do not allow the Service to conclude that the lesser prairie-chicken no longer meets the Act's definition of a threatened or endangered species. Additionally, due to the flexibility that is necessarily built into the implementation of the rangewide plan, there is uncertainty about when and where impacts and offsets will occur. Most importantly, even if the plan is implemented in the future as written and is effective at achieving its goals, we must be able to show that the plan has contributed to the elimination of one or more threats to the species identified through the 4(a)(1) analysis at the time of the listing determination such that the species no longer meets the definition of threatened or endangered. Largely as a result of the degree of coordination and adaptive management built into the rangewide plan, there is a high degree of certainty that the plan will achieve its stated purposes of creating a net conservation benefit to the species and moving the species towards its population goals if there is sufficient participation and enrollment from landowners and industry. However, generally owing to the uncertainty of the timing of conservation delivery and the funds generated by current industry enrollment, the rangewide plan has not eliminated or adequately reduced the threats identified such that the species no longer meets the Act's definition of threatened or endangered at this time, as discussed below. The conservation strategy employed in the rangewide plan (1) complements and builds on existing conservation efforts (e.g., CRP), (2) uses an “avoid, minimize, and mitigate” strategy to address industry impacts, and (3) provides financial incentives to landowners to manage lands to benefit lesser prairie-chickens. Through the mitigation framework and application of adaptive management principles, the rangewide plan, if enrollment is sufficient and if the plan is appropriately managed, will provide a net conservation benefit to the species and result in incremental improvements to the level and quality of suitable habitat over time. Lands to be enrolled as offsets to impacts are not necessarily currently occupied high quality habitats, and the location of offset units is entirely driven by the willingness of landowners to participate. They are lands where management practices are to be implemented that would improve the suitability of those lands for lesser prairie-chickens. These landowners are not required to implement identical management practices, but are rather provided a suite of management options for their lands. Until those practices are identified for each parcel combined with the length of the contract and the quality and location of the lands, we have little certainty about how much conservation uplift can be expected or in what timeframe the benefit will accrue. Even if there would be significant enrollment of lands into the rangewide plan in the short term, it will still take several years for habitat improvement practices to take effect for some of the conservation practices and for lesser prairie-chicken populations to improve. The effectiveness of the rangewide plan is further complicated by the impact of continued drought on the landscape. If the current drought subsides, the rangewide plan's improved management on lands could result in an upturn in the status of the species. However, if the drought persists, the rangewide plan will not create additional usable habitat necessary for the species quickly or at all. This particular threat is largely outside of the ability of management actions to address; therefore, it is a threat that is not addressed by the rangewide plan, at least over the short term. Given the particularly dire status of the lesser prairie-chicken in 2013 due to ongoing drought (approximately 17,000 birds estimated), this threat is of high magnitude and immediacy. Over the longer term, the rangewide plan may ameliorate the threat of drought by creating additional habitat so that the birds can rebound to higher numbers that can better withstand this threat. Finally, the Service is uncertain concerning the potential for a lag time between authorizing impacts, securing contracts with landowners to apply conservation to mitigate for those impacts, and implementing the conservation actions through those contracts. While mitigation fees must be paid and conservation contracts must be in place prior to impacts occurring, the rangewide plan does not require habitat improvement or creation of suitable habitat prior to impacts occurring. The rangewide plan grants a waiver period for the oil and gas industry wherein while all impacts must ultimately be mitigated for, the waiver grants oil and gas impacters the ability to develop enrolled lands in advance of conservation delivery. The mitigation metrics are set up such that over the life of the plan, we anticipate improvement in the status of the species, but that some of the conservation delivery will take at least a few years to start being realized. At the time of the listing decision, we do not have certainty of the timeframe and the extent of the habitat improvement. In conclusion, we have a high level of certainty that the rangewide plan will improve the status of the species into the future if sufficient enrollment occurs and the plan is implemented accordingly. However, the rangewide plan has not contributed to the elimination or adequate reduction of the threats to the species at the current time to the point that the species does not meet the definition of threatened or endangered. Public Comments Species' Populations (19) Comment: The proposed rule states that very little information is available regarding lesser prairie-chicken population size prior to 1900 and further states that rangewide population estimates were almost nonexistent until the 1960s. The lack of practical baseline population estimates and historical population studies result in considerable data gaps regarding the significance of population fluctuations as well as the establishment of a trend-line on the actual population estimates of the species. Commenters question how the Service can make a reasonable determination that listing is warranted without historical information prior to 1900. Our Response: We recognize that data gaps exist in the estimated historical population size of the species and in the development of population trends for the species, but we are required by the Act to determine whether or not the species meets the definition of an endangered or threatened species on the basis of the best scientific and commercial data available. We recognize that population fluctuations are common for the lesser prairie-chicken in response to variable weather and habitat conditions, but the best available science supports that the overall population size has likely declined from possibly millions of birds to current estimates of thousands of birds. We present the best available information on population sizes in the “Rangewide Population Estimates” and “State-by-State Information on Population Status” sections of this final determination. Under section 4(a)(1) of the Act, we determine whether a species is an endangered or threatened species because of any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. We examined the best scientific and commercial information available regarding present and future threats faced by the lesser prairie-chicken in the Summary of Factors Affecting the Species. Please refer to the Determination section of this final listing rule for further discussion. (20) Comment: The Service incorrectly points to the effects of inconsistent data, methods, and effort levels in existing survey and trend data and then dismisses a study that scientifically addresses these flaws. The Interim Assessment of Lesser Prairie-Chicken Trends since 1997 (Hagen 2012) standardizes inconsistencies among previous survey studies and calculates the population trend of the species from the standardized survey data. At a minimum, the Service should explain why it dismissed this study. Our Response: We discuss the Hagen (2012) interim assessment in the “Rangewide Population Estimates” of this final listing determination. We are reluctant to place considerable weight on this interim assessment for several reasons, as discussed below in that section. We evaluated all sources of the best scientific and commercial data available and found other lines of evidence more compelling. More specifically, the rangewide aerial survey results show that the total estimated abundance of lesser prairie-chickens dropped from 34,440 individuals (90 percent upper and lower confidence intervals of 52,076 and 21,718 individuals, respectively) in 2012, to 17,616 individuals (90 percent upper and lower confidence intervals of 20,978 and 8,442 individuals, respectively) in 2013 (McDonald et al. 2013, p. 24). (21) Comment: The Service needs a scientifically sound estimate of current lesser prairie-chicken populations and habitats to use as a baseline to determine future population increases and to delineate critical habitat. Similarly, the Service should define a population threshold necessary to be considered recovered post-listing. Our Response: In the springs of 2012 and 2013, the States, in conjunction with the Western Association of Fish and Wildlife Agencies, implemented a rangewide sampling framework and survey methodology. This aerial survey protocol was developed to provide a more consistent approach for detecting rangewide trends in lesser prairie-chicken. The aerial surveys conducted in 2012 and 2013 provide the best estimate of current rangewide population size of the lesser prairie-chicken. The results of the aerial surveys are discussed in more detail in the “Rangewide Population Estimates” section of this final listing determination. Recovery planning, as outlined in more detail in section 4(f)(1) of the Act, is the mechanism by which the Service determines what is necessary for the conservation and survival of the species. Recovery plans must include objective, measurable criteria that, when met, would result in a determination that the species be removed from the List of Endangered and Threatened Wildlife. As mentioned above, recovery planning for the lesser prairie-chicken will be initiated after the listing determination is finalized. Species' Habitat (22) Comment: The Service inaccurately identified the lesser prairie-chicken's historical range in the proposed rule. Some areas identified as historical range have never been lesser prairie-chicken habitat. Our Response: As required by section 4(b) of the Act, we used the best scientific and commercial data available in this final listing determination. The commenters provided no indication of specific areas they believe were inaccurately identified as part of the historical range and, similarly, provided no rationale (e.g., literature or scientific evidence) to indicate any specific areas that should be removed from the historical range. Please refer to the “Historical Range and Distribution” section for a discussion of the best scientific and commercial data available regarding the historical range of the lesser prairie-chicken. In addition, please refer to our response to comment 7 in Peer Reviewer Comments, above. (23) Comment: Based on anecdotal evidence and specimen collections, the actual historical range of the lesser prairie-chicken for a period from at least 1877 through 1925 may have included from southwestern Nebraska (northern limits) and southeastward to southwestern Missouri (eastern limits). Given this information, the apparent “increased range expansion” in Kansas is really movement back into its previous range, and not an expansion. Additionally, this reestablishment back to its former range appears to be within artificial habitat (i.e., CRP grasslands). Our Response: The extent of the historical range is an estimate, and we, therefore, use this term and the term “approximate” in referring to the historical range in this final listing rule. We also recognize that the extent of the historical range may have fluctuated over time, based on habitat conditions evident at any one period. The information we present in our rule serves to reflect the estimated extent of the historical range and provides some context with which we can discuss the estimated occupied range. We recognize that lesser prairie-chickens have been documented from Nebraska based on specimens collected during the 1920s. Sharpe (1968, pp. 51, 174) considered the occurrence of lesser prairie-chickens in Nebraska to be the result of a short-lived range expansion facilitated by settlement and cultivation of grain crops. Sharpe did not report any confirmed observations since the 1920s (Sharpe 1968, entire), and no sightings have been documented despite searches over the last 5 years in southwestern Nebraska (Walker 2011, entire). Therefore, Nebraska is not included in the delineated historical range of the species; further, the best scientific and commercial information available does not indicate that lesser prairie-chickens currently occur in Nebraska. Lawrence (1877), as cited in the comment, documented finding 30 lesser prairie-chicken specimens for sale in New York that he ascertained had originated from southern Missouri; however, the origin of these birds is questionable (Sharpe 1968, p. 42). This anecdotal evidence is the only evidence that the species may have one time occurred in Missouri; therefore, there is not enough evidence to support that Missouri was within the historical range of the species. Thus, Nebraska and Missouri are not included in the estimated historical range of the species. However, as discussed in our response to comment 8 above, given the historical records, we agree that the currently occupied range in northwestern Kansas does not represent a range expansion for lesser prairie-chicken. Instead, we consider this to be a reoccupation of former range. (24) Comment: The data cited and relied upon by the Service show that previous declines in lesser prairie-chicken range have stabilized. The Service argues that range occupation trends are key indicators in determining whether the lesser prairie-chicken is a threatened species; however, the data provided and utilized by Service show that, between 1980 and 2007, the occupied range increased 159 percent. The increase over that period totaled more than 43,253 square kilometers (sq km) (16,700 square miles (sq mi)). In its evaluation of whether the lesser prairie-chicken range is increasing, the Service examined the period preceding European settlement of the United States to 1980. The Service failed to consider all range-occupancy trend data after 1980. The Service should explain its decision to base range decline estimates on the time period from pre-European settlement to 1980 when more recent and reliable data were available. Our Response: The total maximum historically occupied range prior to European settlement is estimated to be about 466,998 sq km (180,309 sq mi), whereas the total estimated occupied range is now estimated to encompass 70,602 sq km (27,259 sq mi) as of 2007. The currently occupied range now represents roughly 16 percent of the estimated historical range. This value is a close approximation because a small portion of the range in Kansas lies outside the estimated maximum historical range and was not included in this analysis. This is further explained in the “Historical Range and Distribution” and “Current Range and Distribution” sections of the rule. Thus, we based our range decline estimates on the time period from pre-European settlement to 2007. At stated in the response to comment 7 under Peer Reviewer Comments, above, our calculations of the loss of historical range are an estimate and not an exact value, but they demonstrate that the range of the lesser prairie-chicken likely has contracted substantially since historical times. In the Summary of Factors Affecting the Species, we provide evidence to support that the species is imperiled throughout all of its range due to ongoing and future impacts of cumulative habitat loss and fragmentation as a result of conversion of grasslands to agricultural uses; encroachment by invasive, woody plants; wind energy development; petroleum production; roads; and the presence of manmade vertical structures. These threats are currently impacting lesser prairie-chickens throughout their range and are projected to continue and to increase in severity into the future. (25) Comment: The lesser prairie-chicken does not naturally exist in Deaf Smith County, Texas, and was incorrectly identified in the area occupied by the species. Our Response: In March 2007, the Texas Parks and Wildlife Department (TPWD) reported that lesser prairie-chickens were suspected in portions of Deaf Smith County. Aerial and road surveys conducted in 2010 and 2011 did not detect lesser prairie-chickens in Deaf Smith County; however, in 2012, Timmer (2012, pp. 36, 125-131) observed lesser prairie-chickens in Deaf Smith County. The western portion of Deaf Smith County is included in the Lesser Prairie-Chicken Range-wide Conservation Plan as part of the shinnery oak prairie (Van Pelt et al. 2013, p. 87). Based upon a review of the best scientific and commercial information available, Deaf Smith County is included as part of the estimated occupied range of the species. (26) Comment: Southwest Quay County, New Mexico, is incorrectly identified in the lesser prairie-chicken ecoregion map as being comprised of shinnery oak prairie. There are no shinnery oak vegetative sites within the Southwest Quay Soil and Water Conservation District. Our Response: On http://www.regulations.gov, we provided an estimated occupied range map as supporting information for the proposed listing rule; although Quay County is identified in the map as part of the estimated historical range, the current estimated occupied range includes only very small portions of southeastern Quay County. The ecoregion map referenced by the commenter is provided in the Lesser Prairie-Chicken Range-wide Conservation Plan. Southeastern Quay County is identified as part of the shinnery oak prairie in the figures provided in the Lesser Prairie-Chicken Range-wide Conservation Plan, but the southwestern portion of the county is not included (Van Pelt et al. 2013, p. 80). As stated in the proposed rule, the New Mexico Department of Game and Fish (NMDGF) reports that no leks have been detected in northeastern New Mexico, where Quay County occurs. However, habitat in this area appears capable of supporting lesser prairie-chicken, but the lack of any known leks in this region since 2003 suggests that lesser prairie-chicken populations in northeastern New Mexico, if still present, are very small. (27) Comment: The outer extent of the currently defined range is drawn, especially in the southeast quadrant, based on references to places where prairie-chickens were reported to have been seen with no documentation to indicate the resident or transient status of the birds. Thus, the potential range of the species needs to be better defined. Our Response: In the “Current Range and Distribution” section, we discuss the currently occupied range as provided by a cooperative mapping effort between the Playa Lakes Joint Venture and the five State wildlife agencies within the range of the lesser prairie-chicken. The resulting map was provided on http://www.regulations.gov as supplemental information to the proposed rule. We consider this mapping effort the best scientific and commercial data available regarding the estimated current occupied range. The commenter provided no rationale (e.g., literature or scientific evidence) to indicate which specific areas they believe should or should not be included in the range map. (28) Comment: Grain production in certain areas has provided desirable, though unnatural, feeding habitat for lesser prairie-chickens in the past. However, changes in farming practices and decline in grain production, rather than habitat degradation, has caused the appearance of lesser prairie-chicken population declines. Our Response: The Service recognizes that, when available, lesser prairie-chickens will use cultivated grains, such as grain sorghum ( Sorghum vulgare ) and corn ( Zea mays ), during the fall and winter months (Snyder 1967, p. 123; Campbell 1972, p. 698; Crawford and Bolen 1976c, pp. 143-144; Ahlborn 1980, p. 53; Salter et al. 2005, pp. 4-6). However, lesser prairie-chickens tend to predominantly rely on cultivated grains when production of natural foods, such as acorns and grass and forb seeds, are deficient, particularly during drought and severe winters (Copelin 1963, p. 47; Ahlborn 1980, p. 57). Overall, the amount of land used for crop production nationally has remained relatively stable over the last 100 years, although the distribution and composition have varied (Lubowski et al. 2006, p. 6; Sylvester et al. 2013, p. 13). Despite the stability in crop production, the availability of grains has not slowed the decline of the species since pre-European settlement. As some cropland is transitioned to non-agricultural uses, new land is being brought into cultivation helping to sustain the relatively constant amount of cropland in existence over that period. Nationally, the amount of cropland that was converted to urban uses between 1982 and 1997 was about 1.5 percent (Lubowski et al. 2006, p. 3). During that same period nationally, about 24 percent of cultivated cropland was converted to less intensive uses such as pasture, forest, and CRP (Lubowski et al. 2006, p. 3). Thus, a decline in grain production is not directly associated with lesser prairie-chicken population declines. Threats (29) Comment: Members of the public stated that hunting is driving the species to extinction and should be banned before listing is enacted. Others simply stated that hunting (or overutilization) is not a significant issue for the species or a cause for overutilization. Our Response: Hunting programs are administered by State wildlife agencies. Currently, lesser prairie-chicken harvest is allowed only in Kansas. As discussed in the Hunting and Other Forms of Recreation, Educational, or Scientific Use section of the rule, we do not consider hunting to be a threat to the species at this time. However, as populations become smaller and more isolated by habitat fragmentation, their resiliency to the influence of any additional sources of mortality will decline. Intentional hunting of the lesser prairie-chicken will be prohibited when this listing goes into effect. Please refer to the final 4(d) special rule published elsewhere in today's Federal Register for an explanation of the prohibited actions, and exceptions to those prohibitions, that are necessary and advisable for the conservation of the lesser prairie-chicken. (30) Comment: The proposed rule indicates that collisions with fences are an important source of mortality, but no actual data or numbers killed were given. Further, any risk posed by fences should be discounted because ranchers will remove or replace fences in the future, which could benefit lesser prairie-chickens. The most recent data do not support that fence collision takes a significant number of birds (Hagen 2012, entire; Grisham et al. 2012, entire). Additionally, the Service fails to acknowledge the amount of fence removal conducted through conservation efforts like the Wildlife Habitat Incentive Program (WHIP). Our Response: We provide a complete discussion of the impacts associated with fence collisions in the Collision Mortality section of the Summary of Factors Affecting the Species. This section also includes metrics on collision mortality associated with fences and other manmade structures; however, precisely quantifying the scope of the impact of fence collisions rangewide is largely unquantified due to a lack of relevant information. However, the prevalence of fences and power lines within the species' range suggests these structures may have at least localized, if not widespread, detrimental effects. While some conservation programs, including WHIP, have emphasized removal of unneeded fences, it is likely that a majority of existing fences will remain on the landscape indefinitely without substantially increased removal efforts. Existing fences likely operate cumulatively with other mechanisms described in this rule to diminish the ability of the lesser prairie-chicken to persist, particularly in areas with a high density of fences. (31) Comment: Disease and predation are not significant issues for the lesser prairie-chicken. Our Response: We do not consider disease or parasite infections to be a significant factor in the decline of the lesser prairie-chicken. However, should populations continue to decline or become more isolated by fragmentation, even small changes in habitat abundance or quality could have a more significant influence on the impact of parasites and diseases. Alternatively, predation has a strong relationship with certain anthropogenic factors, such as fragmentation, vertical structures, and roads, and continued development is likely to increase the effects of predation on lesser prairie-chickens beyond natural levels. As a result, predation is likely to contribute to the declining status of the species. This is discussed further in the Predation section of the final rule. The commenter provides no rationale (e.g., literature or scientific evidence) to support his assertion that predation is not a threat to the lesser prairie-chicken. (32) Comment: The broad statement regarding the avian toxicity of dimethoate (an insecticide) to lesser prairie-chickens made by the Service is not scientifically defensible. The statement was based on a single study that was outdated and of questionable quality and the Service's conclusion attributing sage grouse mortality to the chemical is not supported by the study. First, the study was on sage grouse, which have very different behavior patterns than lesser prairie-chickens; this makes data from a sage grouse field study a poor surrogate for assessing risks to lesser prairie-chickens. Second, it is unclear from the study if the source of toxicity was the application of the insecticide to the alfalfa field or a different insecticide applied to a nearby field prior to initiation of the study. Our Response: We stated in the proposed rule that in the absence of more conclusive evidence, we do not currently consider application of insecticides for most agricultural purposes to be a threat to the species. However, we also state the primary conclusion of the only study we are aware of that has evaluated the use of dimethoate on grouse species. The study finds that, of approximately 200 greater sage grouse known to be feeding in a block of alfalfa sprayed with dimethoate, 63 were soon found dead, and many others exhibited intoxication and other negative symptoms (Blus et al. 1989, p. 1139). Because lesser prairie-chickens are known to selectively feed in alfalfa fields (Hagen et al. 2004, p. 72), there is cause for concern that similar impacts could occur. Although we acknowledge that greater sage grouse have different behavior patterns than the lesser prairie-chicken, there are no peer-reviewed studies available to us that specifically analyze the effects of insecticides on lesser prairie-chickens. Therefore, it is reasonable to use this study to draw a broad conclusion that similar impacts to the lesser prairie-chicken are possible. The researchers note that a flock of about 200 sage grouse occupied a field that was sprayed with the insecticide on August 1; about 30 intoxicated and dead grouse were observed the following day with the last verified insecticide-related mortality occurring on August 12 (Blus et al. 1989, p. 1142). The study further verifies, through brain chemistry analysis of the greater sage grouse, that at least 10 deaths directly resulted from dimethoate (Blus et al. 1989, p. 1142). Therefore, this study represents the best available science and provides evidence to support that insecticides may present a concern for the lesser prairie-chicken; however, we also recognize that there is not enough evidence provided to determine that insecticides present a threat to the species as a whole. (33) Comment: The proposed rule states the distance that the lesser prairie-chicken avoids around manmade infrastructure, including a wind turbine, is more than 1.6 km (1 mi). The Service should provide conclusive evidence or studies that birds entirely disappear from a habitat area due to manmade structures. The science is unclear on whether or not individual birds will return to areas where wind and transmission lines have been developed after initial construction ceases. Our Response: In the “Causes of Habitat Fragmentation Within Lesser Prairie-Chicken Range” section, we present the results of the following studies to provide evidence that natural vertical features like trees and artificial above ground vertical structures such as power poles, fence posts, oil and gas wells, towers, and similar developments can cause general habitat avoidance and displacement in lesser prairie-chickens and other prairie grouse: Anderson 1969, entire; Robel 2002, entire; Robel et al. 2004, entire; Hagen et al. 2004, entire; Pitman et al. 2005, entire; Pruett et al. 2009a, entire; and Hagen et al. 2011 entire. This avoidance behavior is presumably a behavioral response that serves to limit exposure to predation. The observed avoidance distances vary depending upon the type of structure and are likely also influenced by disturbances such as noise and visual obstruction associated with these features. According to Robel (2002, p. 23), a single commercial-scale wind turbine creates a habitat avoidance zone for the greater prairie-chicken that extends as far as 1.6 km (1 mi) from the structure. Pitman et al. 2005 (pp. 1267-1268) provides evidence to support that lesser prairie-chickens likely exhibit a similar response to tall structures like wind turbines. These studies do not indicate that lesser prairie-chickens will never occur within 1.6 km (1 mi) of a manmade structure, but they provide evidence to support that observed avoidance distances can be much larger than the actual footprint of the structure. Thus, these structures can have significant negative impacts by contributing to further fragmentation of otherwise suitable habitats. As human-made structures continue to be developed across the landscape, other factors contributing to habitat loss and fragmentation include conversion of grasslands to agricultural uses; encroachment by invasive, woody plants; wind energy development; petroleum production; and roads. The cumulative effect of these factors is readily apparent at the regional scale, causing isolation of populations at regional, landscape, and local levels. (34) Comment: Vodenhal et al. (2011, entire) found greater prairie-chickens to lek, nest, brood, and remain in the proximity of a Nebraska wind farm despite the presence of localized, towering structures. This study is at odds with the notion of site fidelity. Our Response: Male lesser prairie-chickens have high site fidelity and consistently return to a particular lek site (Copelin 1963, pp. 29-30; Hoffman 1963, p. 731; Campbell 1972, pp. 698-699). Once a lek site is selected, males persistently return to that lek year after year (Wiley 1974, pp. 203-204). They often will continue to use these traditional areas even when the surrounding habitat has declined in value (for example, concerning greater sage-grouse; see Harju et al. 2010, entire). The Service recognizes that Vodenhal et al. (2011, unpaginated) observed greater prairie-chickens lekking near the Ainsworth Wind Energy Facility in Nebraska since 2006. The average distance of the observed display grounds to the nearest wind turbine tower was 1,430 m (4,689 ft) for greater prairie-chickens. The Vodenhal et al. (2011, unpaginated) study appears to indicate that greater prairie-chickens may be more tolerant of wind turbine towers than other species of prairie grouse because they continued to use areas near the wind facility despite presence of the towers. Occurrence near these structures may actually be due to strong site fidelity or continued use of suitable habitat remnants, though these populations may not be able to sustain themselves without immigration from surrounding populations (i.e., population sink) (Hagen 2004, p. 101). Thus, we conclude that this study supports the concept of site fidelity, as birds appear to return to the area despite the diminished habitat quality. Other recent research supports that vertical features, including wind turbines, cause general habitat avoidance and displacement in lesser prairie-chickens and other prairie grouse (Anderson 1969, entire; Robel 2002, entire; Robel et al. 2004, entire; Hagen et al. 2004, entire; Pitman et al. 2005, entire; Pruett et al. 2009a, entire; Hagen et al. 2011, entire; Hovick et al. unpublished manuscript, entire). (35) Comment: The Service relies heavily on the potential for predation facilitated by tall structures like wind turbines without substantial research. Predation is hypothesized to be a reason for lesser prairie-chicken avoidance of tall structures, but this hypothesis has not been adequately studied. Our Response: Recent research, as cited in the final rule, demonstrates that natural vertical features like trees and artificial, aboveground vertical structures (such as power poles, fence posts, oil and gas wells, towers, and similar developments) can cause general habitat avoidance and displacement in lesser prairie-chickens and other prairie grouse (Anderson 1969, entire; Fuhlendorf et al. 2002a, pp. 622-625; Robel 2002, entire; Robel et al. 2004, entire; Hagen et al. 2004, entire; Pitman et al. 2005, entire; Pruett et al. 2009a, entire; Hagen et al. 2011 entire). This avoidance behavior is presumed to be a behavioral response that serves to limit exposure to predation. We are concerned not only with an actual increase in the impact of avian predation, but also, and even more so, with the avoidance behavior of the lesser prairie-chicken causing individuals to leave fragmented areas of otherwise suitable habitats. Further discussion is provided in the Predation and “Causes of Habitat Fragmentation within Lesser Prairie-Chicken Range” sections. (36) Comment: Studies including Toepfer and Vodehnal (2009) and Sandercock et al. (2012) require further analysis in the listing rule. These studies bring into question the Service's central premise that fragmented habitat causes the species to be in danger of extinction in the foreseeable future. Our Response: We have added a discussion of these studies in the Wind Power and Energy Transmission Operation and Development section, below. The most significant impact of wind energy development on lesser prairie-chickens is caused by the avoidance of useable space due the presence of vertical structures (turbine towers and transmission lines) within suitable habitat. The noise produced by wind turbines also is anticipated to contribute to behavioral avoidance of these structures. Avoidance of these vertical structures by lesser prairie-chickens can be as much as 1.6 km (1 mi), resulting in large areas (814 hectares (ha) (2,011 acres (ac)) for a single turbine) of unsuitable habitat relative to the overall footprint of a single turbine. Where such development has occurred or is likely to occur, these areas are no longer suitable for lesser prairie-chicken even though many of the typical habitat components used by lesser prairie-chicken remain. Therefore, the significant avoidance response of the species to these developments and the scale of current and future wind development likely to occur within the range of the lesser prairie-chicken leads us to conclude that wind energy development is a threat to the species, especially when considered in combination with other habitat-fragmenting activities. (37) Comment: In its assessment of risks from herbicides, the Service never acknowledges current limited use of herbicides to remove shinnery oak and also fails to acknowledge that the New Mexico and Texas CCAAs require reductions in herbicide use. The Service never addresses the Grisham (2012) 10- year study, which “. . . ultimately suggests that reduced rates of herbicide and short-duration grazing treatments are not detrimental to lesser prairie-chicken nesting ecology.” Our Response: Grisham (2012, p. 115) states that the low dose of herbicide used in the study was designed to reduce, not eliminate, shrubs; most nests maintained some form of shrub component. Grisham caveats his management implications by stating that higher doses may be detrimental to nesting lesser prairie-chickens because high doses completely eliminate shinnery oak from the community (Peterson and Boyd 1998, as cited in Grisham 2012, p. 115). In their analysis of the status of the species, the Service considered the conservation measures currently implemented to reduce herbicide use. (38) Comment: Although the Service seems to acknowledge that climate change is not presently harming the lesser prairie-chicken and will occur over the next 60 years, the available data do not support a conclusion that any of those potential effects are foreseeable. Alternatively, other commenters assert that the effects of climate change needs to be more thoroughly included in the future threats that are challenging this species, otherwise the disturbances to the species' habitat is under-represented. Our Response: We used the best scientific and commercial information available to develop the analysis of climate change presented in the proposed rule. Since the publication of the proposed rule, Grisham et al. (2013, entire) published a new study evaluating the influence of drought and projected climate change on the reproductive ecology of the lesser prairie-chicken in the Southern High Plains. They hypothesized that average daily survival would decrease dramatically under all climatic scenarios they examined. Nest survival from onset of incubation through hatching were predicted to be less than or equal to 10 percent in this region within 40 years. Modeling results indicated that nest survival would fall well below the threshold for population persistence during that time (Grisham et al. 2013, p. 8). We have incorporated a discussion of Grisham et al. (2013, entire) in this final rule. Although estimates of persistence of lesser prairie-chickens provided by Garton (2012, pp. 15-16) indicated that lesser prairie-chickens in the Shinnery Oak Prairie Region had a relatively high likelihood of persisting over the next 30 years, the implications of climate change were not fully considered in his analysis, as little information evaluating the effects of climate change on the species and its habitat was available at that time. Predictions provided by Grisham et al. (2013, p. 8) indicate that the prognosis for persistence of lesser prairie-chickens within this isolated region on the southwestern periphery of the range is considerably worse than previously predicted. This provides further evidence that climate change is likely to contribute to the current and future threats affecting the lesser prairie-chicken. This new information has been added to the rule and further supports that these impacts are likely to occur in the foreseeable future. We anticipate that climate-induced changes in ecosystems, including grassland ecosystems used by lesser prairie-chickens, coupled with ongoing habitat loss and fragmentation, will interact in ways that will amplify the individual negative effects of these and other threats identified in this final rule (Cushman et al. 2010, p. 8). Furthermore, ongoing and future habitat fragmentation is likely to negatively affect the species' ability to respond to climate change. Conservation Efforts (39) Comment: The effect of the Wind Energy Habitat Conservation Plan (HCP) on the need to list the species is not adequately discussed. The Service failed to analyze the expected positive impact of the HCP on lesser prairie-chicken populations. Our Response: The Service anticipates that the conservation program of the Great Plains Wind Energy HCP could involve measures such as acquisition and setting aside of conservation or mitigation lands. A draft HCP was submitted for review by the Service and State agency partners in November of 2013, but is not expected to be completed until the fall of 2015. Thus, this conservation effort is still in the development phase, and the HCP has not yet been formalized. The future of the HCP and its potential contribution to lesser prairie-chicken conservation is unclear at this time, and we cannot conclude that these efforts will be finalized as they are in draft form at this time. The HCP is further discussed in the Multi-State Conservation Efforts section of this final rule. (40) Comment: The proposal for listing should better recognize current and ongoing voluntary conservation efforts in addition to conservation measures that are in place to minimize potential adverse effects resulting from activities including livestock grazing, pesticide use, and oil and gas development. Our Response: We analyzed the best scientific and commercial information available on both conservation efforts and conservation measures intended to minimize potential adverse effects to the species and its habitat. Where commenters provided additional specific information for us to consider, we have included that information in our consideration of the status of the species in the development of this final rule. In most instances, however, the commenters did not provide specific information on additional conservation efforts and measures that warrant further consideration. Without this information, we cannot specifically address these concerns. Service Policy (41) Comment: An environmental impact statement should be prepared to assess the social and economic impact of endangered or threatened listing. Our Response: As stated in the proposed rule, we have determined that environmental assessments and environmental impact statements need not be prepared in connection with regulations adopted under section 4(a)(1) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). (42) Comment: The Service has not adequately defined “foreseeable future” as it relates to the status of the lesser prairie-chicken. The Service needs to establish the “foreseeable future” as a period of years. In addition, the Service's discussion of foreseeable future and the status of the lesser prairie-chicken uses vague terms (e.g., “near term,” “near future”) that suggest an undefined future point in time marks the point where the species passes from not being on the brink of extinction to being on the brink of extinction. Our Response: The Act does not define the term “foreseeable future,” and the Act and its implementing regulations do not require the Service to quantify the time period of foreseeable future. Further, in a 2009 memorandum (M-37021, January 16, 2009) addressed to the Acting Director of the Service, the Office of the Solicitor, Department of the Interior, concluded that “as used in the [Act], Congress intended the term `foreseeable future' to describe the extent to which the Secretary can reasonably rely on predictions about the future in making determinations about the future conservation status of the species.” The memorandum (M-37021, January 16, 2009) goes on to state, “the foreseeable future is not necessarily reducible to a particular number of years. Rather, it relates to the predictability of the impact or outcome for the specific species in question. . . . Such definitive quantification, however, is rarely possible and not required for a `foreseeable future' analysis.” In assessing the status of the lesser prairie-chicken, we applied the general understanding of “in danger of extinction” discussed in the December 22, 2010, memo to the polar bear listing determination file, “Supplemental Explanation for the Legal Basis of the Department's May 15, 2008, Determination of Threatened Status for the Polar Bear,” signed by then Acting Director Dan Ashe (hereafter referred to as Polar Bear Memo). A complete discussion of how the Service has applied these terms to the lesser prairie-chicken is provided in the Determination section. (43) Comment: The Service failed to evaluate whether the species is endangered within any significant portion of its range. The lesser prairie-chicken's 81-percent decline in Texas, from 236,000 sq km to 12,000 sq km (91,120 sq mi to 4,633 sq mi) and 94 percent in New Mexico (mostly in the mixed grass prairie Bird Conservation Region) clearly qualifies the species for protection as endangered based on threats within a significant portion of its range. Our Response: Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. To determine whether or not a species is endangered or threatened, we evaluate the five listing factors, which include “the present or threatened destruction, modification, or curtailment of its habitat or range.” The historical decline of the species' range, while highly relevant in considering the existence or effect of threats to the species in its current range, cannot itself be the basis for listing. In the Determination section, below, we outline that the ongoing and future impacts of cumulative habitat loss and fragmentation are the primary threats to the species. These impacts are the result of conversion of grasslands to agricultural uses; encroachment by invasive, woody plants; wind energy development; petroleum production; roads; and presence of manmade vertical structures, including towers, utility lines, fences, turbines, wells, and buildings. The threats to the survival of the lesser prairie-chicken occur with equal force throughout all of the species' remaining range and are not restricted to any particular portion of its currently occupied range. In other words, there is no indication that the threat of fragmentation occurs with greater or lesser force in any portion of the species' range. Accordingly, our assessments and determinations apply to this species throughout its entire range. (44) Comment: The Service should revise its listing proposal to establish several distinct population segments (DPSs) of the lesser prairie-chicken in the final rule and list each DPS as endangered, threatened, or not warranted depending on the best available science. Our Response: Commenters generally did not provide specific information as to what populations they felt meet the definition of a DPS; thus, we cannot analyze what the commenter presumes to be a DPS. We specifically discuss this issue as it relates to the Kansas population of lesser prairie-chicken in our response to comment 3 in Peer Reviewer Comments, above. Please refer to the Determination section of this final listing rule for further discussion. (45) Comment: Prohibiting actions on private lands as a result of listing the species as threatened or endangered will constitute an uncompensated taking under the Eminent Domain Law and would impair private property rights. The Service should include better data on the social and economic values of private enterprise and private property rights. Our Response: Listing a species as threatened or endangered does not affect constitutionally protected property rights (see the Fifth Amendment to the U.S. Constitution). Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights) requires that we analyze the potential takings implications of designating critical habitat for a species in a takings implications assessment. However, the listing of a species does not affect property rights, and, therefore, an assessment of potential takings of land is not necessary. (46) Comment: The proposed rule is devoid of a discussion of whether the lesser prairie-chicken is still warranted-but-precluded from listing due to higher priority listing actions and what changed since earlier warranted but precluded findings for this species that now led to the issuance of a proposed rule. The Service should consider and document examples of changes in the basis that would justify not continuing to make a warranted-but-precluded finding. Such examples would include scientific information that indicates increased threats to the viability of the species, a change in the Service's resources to address listing decisions since the date of the 2011 candidate notice of review (76 FR 66370, October 26, 2011), and the absence of other candidate species that have the same or a lower listing priority number. Our Response: The lesser prairie-chicken was originally identified as a candidate for listing with a listing priority number (LPN) of 8 (63 FR 31400, June 9, 1998). In 2008, we changed the LPN for the lesser prairie-chicken from an 8 to a 2 due to a change in the magnitude of threats from moderate to high (73 FR 75176, December 10, 2008). The changes in threats was primarily due to an anticipated increase in the development of wind energy and associated placement of transmission lines throughout the estimated occupied range of the lesser prairie-chicken. Conversion of certain CRP lands from native grass cover to cropland or other less ecologically valuable habitat and observed increases in oil and gas development also were important considerations in our decision to change the LPN. Our December 10, 2008 (73 FR 75176), candidate notice of review, provides the factual or scientific basis for changing the listing priority number. (47) Comment: The proposed rule summarily dismisses conservation measures without fairly addressing their breadth, effectiveness, and chance of success. The Service must evaluate the conservation measures through, among other things, PECE, and must fully consider how conservation measures will reduce or remove threats. A fair evaluation of the conservation efforts will demonstrate that they are sufficient to protect the lesser prairie-chicken. Our Response: We recognize the numerous conservation actions within the historical range of the lesser prairie-chicken, with many focused primarily on the currently occupied portion of the range, during the last 10 to 15 years. See the Summary of Ongoing and Future Conservation Actions section of this rule. PECE applies to formalized conservation efforts that have not yet been implemented or those that have been implemented, but have not yet demonstrated whether they are effective at the time of listing. Conservation efforts that are being implemented and have demonstrated effectiveness are not within the scope of PECE. The effect of such conservation efforts on the status of a species is considered as part of the analysis of the five listing factors in section 4(a)(1) of the Act. The PECE states that conservation efforts that have not yet been implemented or those that have been implemented, but have not yet demonstrated whether they are effective, must have reduced the threat at the time of listing, rather than reducing the threat in the future. To consider if a formalized conservation effort contributes to forming a basis for not listing a species or for listing a species as threatened rather than endangered, we must find that the conservation effort is sufficiently certain to be implemented and effective so as to have contributed to the elimination or adequate reduction of one or more threats to the species identified through the analysis of the five listing factors in section 4(a)(1) of the Act. PECE states that the Service must have a high level of certainty that the conservation effort will be implemented and effective, and has resulted in reduction or elimination of one or more threats at the time of listing. In this final rule, we considered whether formalized conservation efforts are included as part of the baseline through the analysis of the five listing factors, or are appropriate for consideration under the PECE policy. (48) Comment: The Service's application of the categories of species “in danger of extinction” identified in the Polar Bear Memo when determining whether to list the lesser prairie-chicken is inappropriate in several respects. First, the Service's definition of categories of species “in danger of extinction” constitutes an improper rulemaking without adequate opportunity for notice and comment. Second, the Service's reliance on this general categorization is inconsistent with the Act, which requires individual analyses of the factors affecting each species when evaluating whether listing is warranted, and is therefore arbitrary and capricious. Our Response: As required by section 4(a)(1) of the Act, the Service determined whether the lesser prairie-chicken is an endangered or threatened species based on the five listing factors. See the Summary of Factors Affecting the Species section of this rule for our analysis. As outlined in our response to comment 42, above, the Polar Bear Memo provides further guidance on the statutory difference between a threatened species and an endangered species. This memo was not a rulemaking document that required the opportunity for notice and comment—its categorizations are not binding; they are merely a helpful analytical tool. As explained more fully in the rule, the Polar Bear Memo clarifies that if a species is in danger of extinction now, it is an endangered species. In contrast, if it is in danger of extinction in the foreseeable future, it is a threatened species. Moreover, we provided the public the opportunity to comment on the use of the Polar Bear Memo as it applies to the lesser prairie-chicken through the publication of the proposed listing rule. We did not receive any substantive comments providing evidence contrary to our application of the memo to the lesser prairie-chicken. Thus, this is an appropriate use of our guidance. (49) Comment: Individuals requested the Service provide land management recommendations for post-listing conservation of the species and its habitat. Specifically, the public requested details on compatible grazing management, predator control plans, relocation of birds, etc. Our Response: Management recommendations as may be necessary to achieve conservation and survival of the species will be addressed through recovery planning efforts. Under section 4(f)(1) of the Act, we are required to develop and implement plans for the conservation and survival of endangered and threatened species, unless the Secretary of the Interior finds that such a plan will not promote the conservation of the species. We will move to accomplish these tasks as soon as feasible. (50) Comment: The Service should use the same standard of review and documentation of science as outlined in the 1994 Interagency Cooperative Policy on Information Standards under the Act (59 FR 34271, July 1, 1994); in many instances in the proposed rule, the Service cites a supporting source, which cites another source as the original scientific information. Our Response: Without specific identification of the instances in the proposed rule where the Service cites other sources than the original scientific information, we are unable to provide a specific response. However, we acknowledge that in five instances we reference information that was cited in another document. We clearly identified each of these five instances within the proposed rule, as well as the final rule. In four of the five instances, we provided at least one additional citation to support the information provided. (51) Comment: The Service cites multiple masters' theses in the proposed rule, and these documents are not peer-reviewed, published literature. Therefore, they do not represent the best available science. Our Response: Our policy on information standards under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. Information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge. Despite the fact that these theses were not published, they still contain credible scientific information and represent the best scientific and commercial data available. (52) Comment: The science for the proposed rule should be peer-reviewed based on National Academy of Science standards for conflicts of interest, and the Service should provide specific questions to be addressed in the peer review. Our Response: In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), we sought the expert opinions of at least three appropriate and independent specialists regarding the proposed rule. The purpose of such review is to ensure that our determination of status for this species is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment, during the public comment period, on our use and interpretation of the science used in developing our proposal to list the lesser prairie-chicken. Comments from these peer reviewers have been reviewed, considered, and incorporated into this final rule, as appropriate. Summary of Changes From the Proposed Rule Based upon our review of the public comments, comments from other Federal and State agencies, peer review comments, issues addressed at the public hearings, and any new relevant information that may have become available since the publication of the proposal, we reevaluated our proposed rule and made changes as appropriate. Other than minor clarifications and incorporation of additional information on the species' biology, this determination differs from the proposal by: (1) Based on comments and our analyses of the available literature, we have added a section on Taxonomy of the genus Tympanuchus, with particular emphasis on the lesser prairie-chicken. (2) We have updated the Summary of Ongoing and Future Conservation Efforts section below and included an evaluation of conservation efforts pursuant to our Policy for Evaluation of Conservation Efforts When Making Listing Decisions (68 FR 15100, March 28, 2003). (3) We have added a section on the influence of noise associated with development activities. (4) We have added information on wing loading in grouse and a section on conservation genetics. (5) We have also updated the “Rangewide Population Estimates” section to reflect the most current State survey information. Summary of Ongoing and Future Conservation Efforts In this section we review current efforts that are providing some conservation benefits to the lesser prairie-chicken and describe any significant conservation efforts that appear likely to occur in the future. We also completed an analysis of the Western Association of Fish and Wildlife Agencies' Lesser Prairie-Chicken Range-wide Conservation Plan (rangewide plan), developed in association with the Interstate Working Group, pursuant to PECE. Numerous conservation actions have been implemented within the historical range of the lesser prairie-chicken, many focused primarily on the currently occupied portion of the range, during the last 10 to 15 years. In the past, prairie grouse translocation efforts have been implemented for both conservation and recreation purposes. Releases of prairie chickens in Hawaii may have been one of the first attempts at relocation outside of the historical range in North America (Phillips 1928, p. 16; see “Historical Range and Distribution” section below). Most releases of lesser prairie-chickens have been in an attempt to repatriate portions of the historical range. Kansas began efforts to raise lesser prairie-chickens in captivity during the 1950s in an effort to secure sufficient numbers for limited releases (Coats 1955, p. 3). Toepfer et al. (1990, entire) summarized historical attempts to supplement or reestablish populations of prairie grouse; most met with poor success. Prior to 1970, there had been few attempts to supplement or reestablish populations of lesser prairie-chickens (Toepfer et al. 1990, p. 570). Kruse (1973, as cited in Toepfer et al. 1990, p. 570) reported on a release of lesser prairie-chickens in Colorado during 1962 that was unsuccessful. Snyder et al. (1999, entire) summarized more recent attempts to translocate prairie grouse in the United States. They reported on two separate releases of lesser prairie-chickens, one in Texas and one in Colorado, during the 1980s, both of which were unsuccessful (Snyder et al. 1999, p. 429). Despite the lack of success, translocations are becoming increasingly popular as a means of conserving populations of rare and declining species (Bouzat et al. 2009, p. 192). Although the best available information does not indicate any current efforts to propagate or translocate lesser prairie-chickens, future conservation efforts may involve such measures. The State conservation agencies have taken a primary role in implementation of the conservation actions described below, but several Federal agencies and private conservation organizations have played an important supporting role in many of these efforts. Recently, several multi-State efforts have been initiated, and the following section discusses the known conservation efforts for the lesser prairie-chicken. Multi-State Conservation Efforts The Conservation Reserve Program (CRP), administered by the U.S. Department of Agriculture's (USDA) Farm Service Agency (FSA) and focused on certain agricultural landowners, has provided short-term protection and enhancement of millions of acres within the range of the lesser prairie-chicken. The CRP is a voluntary program that allows eligible landowners to receive annual rental payments and cost-share assistance to remove land from agricultural production and establish vegetative cover for the term of the contract. Contract terms are for 10 to 15 years, and the amount and dispersion of land enrolled in CRP fluctuates as contracts expire and new lands are enrolled. All five States within the range of the lesser prairie-chicken have lands enrolled in CRP. Initially, many enrolled CRP lands, except those in Kansas, were planted in nonnative grasses as the predominant cover type. In the State of Kansas, enrolled lands were planted in native species of grasses as the cover type, resulting in a considerable benefit to lesser prairie-chicken conservation. As the program has evolved since its inception in 1985, the FSA and their conservation partners have encouraged the use of native grasses as the predominant cover type in CRP lands, resulting in improved conservation benefits for lesser prairie-chickens. Use of native grasses in the CRP helps create suitable nesting, wintering, and brood rearing habitat for the lesser prairie-chicken. In accordance with general CRP guidelines, crop producers can voluntarily enroll eligible lands in 10- to 15-year contracts in exchange for payments, incentives, and cost-share assistance to establish appropriate vegetation on enrolled lands. Program administrators may focus efforts on certain environmentally sensitive lands under a continuous signup process. The State Acres for Wildlife Enhancement program (SAFE) is a specific conservation practice utilized under CRP to benefit high-priority wildlife species including the lesser prairie-chicken. Landowners may elect to enroll in this program at any time under continuous sign-up provisions. Beginning in 2008, the SAFE program was implemented in Colorado, Kansas, New Mexico, Oklahoma, and Texas to target grassland habitat improvement measures within the range of the lesser prairie-chicken. These measures help improve suitability of existing grasslands for nesting and brood rearing by lesser prairie-chickens. Currently, there are almost 86,603 hectares (ha) (214,000 acres (ac)) allocated for the lesser prairie-chicken SAFE program (CP-38E) in Colorado, Kansas, New Mexico, Oklahoma, and Texas. Allocated acres for the SAFE program vary by State and are as follows: Colorado 8,700 ha (21,500 ac); Kansas 21,084 ha (52,100 ac); New Mexico 1,052 ha (2,600 ac); Oklahoma 6,111 ha (15,100 ac); and Texas 49,655 ha (122,700 ac). The current status of the SAFE program, organized by State, is provided in the State-Specific Conservation Efforts section, below. In 2012, the FSA announced another CRP initiative addressing highly erodible lands. This nationwide initiative, the CRP Highly Erodible Land Initiative, is intended to protect certain environmentally sensitive lands by allowing landowners nationally to enroll up to 303,500 ha (750,000 ac) of lands having an erodibility index of 20 or greater. The initiative may further contribute to the short-term protection and enhancement of additional acres within the range of the lesser prairie-chicken. On average, lands with an erodibility index of 20 or greater have an erosion rate that exceeds 20 tons of soil eroded per acre per year. The term of these contracts is a 10 year period. The FSA, based on an analysis by Playa Lakes Joint Venture, estimates that there are 278,829 ha (689,000 ac) of active cropland with an erodibility index of 20 or higher remaining within the estimated occupied range of the lesser prairie-chicken (FSA 2013, p. 41). The vast majority of these lands occur in eastern New Mexico, the west Texas panhandle, western Oklahoma, and southwestern Kansas. More detailed information on the CRP is provided in the “Conservation Reserve Program (CRP)” section below. In 2010, the USDA Natural Resources Conservation Service (NRCS) began implementation of the Lesser Prairie-Chicken Initiative (LPCI). The LPCI strategically provides conservation assistance, both technical and financial, to landowners throughout the LPCI's action area, which encompasses the lesser prairie-chicken's estimated occupied range plus a 16-km (10-mi) buffer. The LPCI focuses on maintenance and enhancement of suitable habitat while benefiting agricultural producers by maintaining the farming and ranching operations throughout the region. Twenty-seven different practices, under the core conservation practice Upland Wildlife Habitat Management (645), are used in implementation of the LPCI. Examples of the various practices, which are explained in more detail in the November 22, 2013, conference opinion described below, include prescribed grazing, prescribed burning, and the management or removal of woody plants including invasive species. These practices are applied or maintained annually for the life of the practice, typically 1 to 15 years, to treat or manage habitat for lesser prairie-chickens. The LPCI and related NRCS activities were the focus on the November 22, 2013, conference opinion that the NRCS developed in coordination with the Service. In the conference opinion, the Service states that implementation of the NRCS conservation practices and their associated conservation measures described in the conference opinion are anticipated to result in a positive population response by the species by reducing or eliminating adverse effects. Furthermore, the Service states that overwhelming conservation benefits of implementation of the proposed action within selected priority areas, maintenance of existing habitat, and enhancement of marginal habitat will outweigh short-term negative impacts to individual lesser prairie-chickens. Implementation of the LPCI is expected to result in: Management of threats that adversely affect populations, an increase in habitat under the appropriate management prescriptions, and the development and dissemination of information on the compatibility of sustainable ranching operations with the persistence of this species across the landscape. Through the conference opinion, the Service found that effective implementation of conservation practice standards and associated conservation measures for the LPCI are anticipated to result in a positive population response by the species. The NRCS has partnered with other stakeholders to fund, through the Strategic Watershed Action Teams program, additional staff positions dedicated to providing accelerated and targeted technical assistance to landowners within the current range of the lesser prairie-chicken. Technical assistance is voluntary help provided by NRCS that is intended to assist non-federal land users in addressing opportunities, concerns, and problems related to the use of natural resources and to help land users make sound natural resource management decisions on private, tribal, and other non-federal land. This assistance may be in the form of resource assessment, practice design, resource monitoring, or follow-up of installed practices. Numerous partners are involved in the multi-state LPCI, including the State conservation agencies, the Playa Lakes Joint Venture, and the Wood Foundation. The Environmental Quality Incentives Program (EQIP) and the Wildlife Habitat Incentives Program (WHIP), through the Working Lands for Wildlife partnership, are the primary programs used to provide for conservation through the LPCI. The lesser prairie-chicken is one of seven focal species being addressed by the Working Lands for Wildlife partnership. Through the Working Lands for Wildlife Partnership, participating landowners and other cooperators who agree to adhere to the requirements of the program are provided with regulatory predictability; they are exempted from the Act's “take” prohibition of listed species for up to 30 years, as long as the covered conservation practices are maintained and take is incidental to the implementation of these conservation practices. The EQIP is a voluntary program that provides financial and technical assistance to agricultural producers through contracts up to a maximum term of 10 years in length. These contracts provide financial assistance to help plan and implement conservation practices that address natural resource concerns and opportunities to improve soil, water, plant, animal, air, and related resources on agricultural land. Similarly, WHIP is a voluntary program designed for landowners who want to develop and improve wildlife habitat on agricultural land, including tribal lands. Through WHIP, NRCS may provide both technical assistance and up to 75 percent cost-share assistance to establish and improve fish and wildlife habitat. Cost-share agreements between NRCS and the landowner may extend up to 15 years from the date the agreement is signed. By entering into a contract with NRCS, the landowner agrees to implement specified conservation actions through provisions of the applicable Farm Bill conservation program, such as WHIP or EQIP. Between the LPCI's inception in 2010 and the close of 2012, NRCS has established 701 contracts on over 381,000 ha (942,572 ac), with the majority of contracts (65 percent) and area (46 percent) under contract occurring in Texas (Shaughnessy 2013, pp. 29-30). Over $24.5 million in funding has been committed to implementation of the LPCI between 2010 and the close of 2012. In 2013, an additional 67 contracts were established on about 89,272 ha (220,598 ac) (Ungerer 2013a). The majority of the 2013 contracts were established in the estimated occupied range in Kansas (37 contracts totaling 14,672 ha (36,256.1 ac)), although New Mexico had the largest acreage (11 contracts on 53,522 ha (132,255.8 ac)) placed under contract in 2013. The NRCS also jointly administers the Grassland Reserve Program with the FSA. The Grassland Reserve Program is a voluntary conservation easement program that emphasizes, among other things, enhancement of plant and animal biodiversity and protection of grasslands under threat of conversion to other uses. Participants may choose a 10-, 15-, or 20-year contract, or they may opt to establish a permanent/perpetual conservation easement. Participants voluntarily limit future development and cropping uses of the easement land while retaining the right to conduct common grazing practices, through development of a grazing management plan, and operations related to the production of forage and seeding, subject to restrictions during nesting seasons. Within the five lesser prairie-chicken States, there were a total of two parcels totaling 494.5 ha (1,221.9 ac) under permanent easement, both in Texas (Ungerer 2013b). Only one of these parcels was within a county that included portions of the estimated occupied range. The other, located in Armstrong County, lies within the historical range in Texas. There also are several Wetland Reserve Program easements within the five lesser prairie-chicken States that may include some areas of grassland adjacent to the identified wetland resource. Several of these parcels are within or adjacent to the estimated occupied range, but most of these parcels are small, generally less than [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2014-07302. Public record. Not legal advice.