The lesser prairie-chicken,¹ a bird species that is native to the Great Plains region of the United States, has been classified as threatened or endangered under the Endangered Species Act (ESA) by the US Fish and Wildlife Service.² Lesser prairie-chickens require a significant range to live and to breed in the native short grass prairie, which is rapidly disappearing due to development and agricultural practices.

According to the Audubon Society, populations of the lesser prairie-chicken have declined 97 percent across their range since the 1960s. This steep decline also signals an overall degradation of habitat health, which is a troubling sign for other species that dwell in the grasslands, and a signal that our prairie lands are on a downturn. This is why the lesser prairie-chicken may be referred to as an umbrella species, as its protection ultimately helps other imperiled species that also live within its habitat.

The ESA provides legal protection to endangered and threatened species, which includes restrictions on activities that can harm the species or their habitat. Land developers must adhere to these regulations when planning and conducting development activities in areas inhabited by the lesser prairie-chicken.

The states covered under the ESA regulations for the lesser prairie-chicken include Texas, Oklahoma, Kansas, Colorado, and New Mexico. Developers in these states must obtain permits and follow strict guidelines before conducting any activities that may affect the habitat of the lesser prairie-chicken. The two subspecies of lesser prairie-chicken protected under the ESA are the Tympanuchus pallidicinctus and the Tympanuchus cupido attwateri.

Before beginning any development projects in areas inhabited by the lesser prairie-chicken, developers must conduct a habitat assessment and impact study to determine the potential effects of their activities on the species and their habitat. These studies must analyze the potential impact on the built environment and the species’ food supply, nesting areas, and breeding sites called leks. Lek identification surveys must be conducted during the period of mid-March into early May by certified biologists with documented experience in bird counting studies.

If the study determines that the new, or planned, development activities may negatively impact the species, the developer may be required to make changes to their plans or provide mitigation measures to minimize the harm to the lesser prairie-chicken and their habitat.

If you are looking to develop or expand your operations in a covered region, keep in mind that you will likely need to conduct impact studies to identify potential risks and potentially mitigate these risks. Apex can help you determine if you need to conduct impact studies, and if any other regulations may apply to your project. Contact us today for more information, or to connect with one of our subject matter experts!

¹ National Audubon Society. 2023. Audubon Guide to North American Birds, Lesser Prairie-Chicken. https://www.audubon.org/field-guide/bird/lesser-prairie-chicken
² United States Fish and Wildlife Service (FWS). November 2022. U.S. Fish and Wildlife Service Lists the Lesser Prairie-Chicken Under the Endangered Species Act. https://www.fws.gov/press-release/2022-11/lesser-prairie-chicken-listed-under-endangered-species-act

On May 25, 2023, the Supreme Court¹ delivered a decision limiting the Environmental Protection Agency’s (EPA) jurisdiction to enforce the Clean Water Act (CWA) as it relates to wetlands in the United States. The specific case, Sackett v. EPA, involved a couple who were fined for filling in a wetland without a permit on a residential property they purchased in 2003.

The Clean Water Act was amended in 1972 to safeguard the country’s waters, including wetlands, from pollution and degradation. These waters are commonly referred to as Waters of the United States or WOTUS. The Act’s stated objective was to “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”² Wetlands, traditionally included in the definition of WOTUS, play a vital role in supporting the ecosystem and are home to a diverse range of plant and animal species, including migratory birds, fish, and amphibians. Additionally, they purify water and reduce the impact of floods and storms.

Wetlands are those environmental features that include the following elements:

• Wetlands contain saturated soils within their upper 12 inches, either permanently or seasonally.
• Hydric soils; these are soils that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part.
• Plants that are adapted to saturated soils. These commonly include cattails, bulrushes, sedges, and many leafy herbaceous plants as well as trees tolerant of seasonally ponded or flooded conditions such as willows, red maples, and black gums.

In its most recent court decision, the Supreme Court adopted the plurality view in Rapanos v. United States, 547 U.S. 715, that wetlands are WOTUS only if they have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.” In other words, wetlands that are separated by an earthen berm or other feature from a WOTUS are no longer subject to protections under the CWA, even though their subsurface connections often ensure that they do have an impact on the “chemical, physical, and biological integrity” of nearby WOTUS lacking a “continuous surface connection.” Rapanos v. United States was a 2006 United States Supreme Court ruling on a case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act.³

The Supreme Court’s May 2023 ruling on the CWA and WOTUS could significantly impact wetlands across the United States and have impacts on water quality standards, stormwater regulations, oil spill programs, and other activities that fall under the CWA.

Currently, property developers must still follow a detailed process to determine if their property contains a wetland. This entails conducting a wetland delineation study which includes a site visit by a qualified professional to determine the presence and extent of wetland features. The results must be submitted to the appropriate regulatory agency, typically the EPA or the US Army Corps of Engineers. If the study determines that the property includes a wetland, property developers must obtain a permit from the Army Corps of Engineers before conducting any activities that may impact the wetland. If you suspect that a site that you are developing contains a wetland, Apex can help. To learn more about our natural resources solutions, including wetland delineation, reach out to us today and we will connect you with a subject matter expert who can help with your specific needs.

¹ Supreme Court of the United States. May 2023. 21-454 Sackett ET UX. v. Environmental Protection Agency ET Al. https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
² EPA (US Environmental Protection Agency). October 2016. EPA History: Water—The Challenge of the Environment: A Primer on EPA’s Statutory Authority. https://www.epa.gov/archive/epa/aboutepa/epa-history-water-challenge-environment-primer-epas-statutory-authority.html
³ EPA (US Environmental Protection Agency). May 2023. Rapanos v. United States & Carabell v. United States. https://www.epa.gov/wotus/rapanos-v-united-states-carabell-v-united-states