ESA Watch Special Report

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ESA Watch Special Report

Over the past year, the IPAA team has continued its efforts to advocate for the appropriate and effective use of the Endangered Species Act (ESA), balancing the protection of critical species and habitats with economic development and sound science. With the New Year now underway, let’s take a look back at some of the top issues from 2015 and key issues on the horizon that IPAA will be following in 2016.

A Look Back at 2015

From the greater sage-grouse to new procedural rule-makings, IPAA has been at the forefront of advocacy and education efforts around the ESA. The following provides a report of some of the major issues from the last year.

  • Greater Sage-Grouse. This past September, the Secretary of the Interior decided not to list the greater sage-grouse under the Endangered Species Act (ESA). In doing so, the Secretary announced new plans to limit land use activities on 10 million acres of sagebrush habitat in the West. IPAA President and CEO Barry Russell responded with an Op-Ed in The Hill, warning of the economic impacts these federal restrictions would place on the western economy while highlighting the benefits of a carefully balanced approach to conservation currently employed by local stakeholders and state officials throughout the West. IPAA’s Russell has also been featured in the Salt Lake Tribune and Casper Star-Tribune, highlighting the key role of states in the conservation of the sage-grouse.

In addition, IPAA supported efforts to ensure the inclusion of language on the sage-grouse and other species in the Fiscal Year 2016 Interior Appropriations bill by defeating an amendment from Congresswoman Niki Tsongas (D-MA) that would have stripped the provisions from the bill. The Tsongas amendment failed 186-243 with only nine Republicans and 177 Democrats supporting the amendment. IPAA also supported Congressman Frank Lucas’ (R-OK) amendment to the National Defense Authorization Act that would reverse and delay for five years the listing of the lesser prairie chicken, delay the listing of the greater sage-grouse for ten years, and delist the American burying beetle. The Lucas amendment passed 229-190 with strong bipartisan support.

  • Northern Long-Eared Bat. IPAA joined with numerous other industry groups inJanuary 2014August 2014December 2014, and March 2015 urging the U.S. Fish and Wildlife Service (FWS or the Service) not to list the northern long-eared bat as endangered. In their March 2015 comments, IPAA and the American Petroleum Institute (API) specifically requested that all oil and gas development activities be exempted from the prohibition against incidental take of the bat through the proposed special rule. In July 2015, the associations again urged the Service to amend the Interim 4(d) Rule for the northern long-eared bat to reflect the fact that oil and gas development activities do not pose a significant threat to the existence of the bat. In June 2015, IPAA also took the lead in coordinating a congressional staff briefing on the bat with the House Natural Resources Committee. The meeting focused on the current stipulations included in the Interim 4(d) Rule, the treatment of oil and natural gas activities, and the potential impacts the rule will have on energy and economic development if the final language is not altered.
  • Lesser Prairie Chicken. In September, a Senior U.S. District Judge in Texas overturned the Service’s decision to list the lesser prairie chicken as threatened under the ESA. Permian Basin Petroleum Association President Ben Sheppard hailed the decision, telling the Associated Press the ruling “serves as vindication of the unprecedented stakeholder participation across the lesser prairie chicken range.” Despite the Court’s decision, FWS has asked the judge to reconsider the ruling, warning that there was a “serious possibility” that the Agency would arrive at the same threatened conclusion it had reached in 2014, even after re-evaluating the conservation plan in the manner prescribed by the Court. Federal attorneys are now fighting the decision in court, arguing that state-led plans have been unsuccessful. IPAA continues to monitor the situation and what it means for operators within the bird’s habitat range.
  • Meetings with Administration and Congressional Leaders on ESA. IPAA led a number of high-profile meetings with senior Interior Department officials in 2015, including U.S. Fish and Wildlife Service Director Dan Ashe and Bureau of Land Management Director Neil Kornze. Additionally, IPAA led meetings with FWS officials in multiple regions, including organizing a rig tour for officials in Pennsylvania as part of advocacy efforts in relation to the northern long-eared bat. IPAA has also worked with Members of Congress and congressional staff on drafting and providing feedback on policy and legal defensibility for dozens of bills and amendments.
  • ESA Reform: Critical Habitat Designations and Modifications. Throughout the year, IPAA has actively engaged with the federal government on several proposed changes to critical habitat designations that could potentially affect America’s independent producers. The first proposal would give the U.S. Fish and Wildlife Service vast new authority to designate new areas as “critical habitat” that are not currently (and never have been) occupied by a listed species. The second proposal would change the definition of “destruction or adverse modification.” The third proposal is a draft policy that would clarify how the Service exercises its authority to exclude certain areas from designation, even though the areas may qualify for such designation. These proposed changes would result in a significant expansion of the Service’s authority to designate and control habitat under the ESA.

IPAA’s senior vice president of government relations and political affairs Dan Naatz discussed these proposed rule changes in the Casper Star Tribune last November in an effort to increase awareness around the proposal and its impact. IPAA also has a new fact sheet on the issue, available HERE.

  • ESA Reform: Petitions & Settlements. IPAA and API submitted joint comments in September on proposed revisions to the regulations for petitions under the ESA. IPAA suggested that petitions should be limited to a single species, require consultation with states prior to submission, and require petitioners to attach all relevant information to their petition, including information that may support a finding that the petitioned action is not warranted. In May, IPAA and five other associations also wrote a letter to Senator John Cornyn (R-TX) expressing their support for S. 293, a bill to amend the Endangered Species Act to establish a procedure for the approval of certain settlements. The letter highlights how the legislation would improve the legal framework of the ESA by increasing transparency and accountability during settlement negotiations in lawsuits that challenge the Services’ failure to meet deadlines.
  • Migratory Bird Treaty Act (MBTA). IPAA is engaged in the U.S. Fish and Wildlife Service’s process as it looks at permitting incidental take under the Migratory Bird Treaty Act, submitting joint comments to the Service in July 2015. The comments question whether the approaches described in the Service’s Notice of Intent are authorized by or consistent with the intent of the statute upon which the Service relies. The associations are also concerned with the efficacy of the program proposed, and whether it singles out activities of the oil and gas industry over a more comprehensive assessment of the threats that avian species face.
  • Monarch Butterfly. In March 2015, IPAA submitted joint comments with API to the Fish and Wildlife Service in response to a request for comment on the status of the monarch butterfly, highlighting the negligible impact of oil and gas operations on the butterfly’s population and its expansive habitat range. According to the comments, “no evidence exists in the literature of adverse effects from oil and gas industry operations on the species itself or on the destruction, modification, or curtailment of the species’ habitat or range.” In June, the Environmental Protection Agency (EPA) announced a proposed plan to protect the butterfly just months after the Natural Resources Defense Council filed a suit alleging EPA did not sufficiently take warnings about the impact of a widely used herbicide on the species. The Service has also announced $3.2 million in funding to help protect the monarch population.

In addition to these key issues from 2015, IPAA has analyzed and submitted comments on a variety of species and issues as they are proposed to be listed or finalized, including co-signing a petition requesting that the U.S. Fish and Wildlife Service delist the American burying beetle from the ESA and responding to a petition to list the Bryde’s whale in the Gulf of Mexico.

Issues to Watch in 2016

Building off of IPAA’s efforts in 2015, below are some of the key issues to watch for as we head into the New Year.

  • Pollinator Petitions on the Rise. Going into 2016, IPAA expects to see additional proposals to list pollinator species on the Endangered Species Act. To date, the Service has issued a 90-day finding for the rusty-patched bumble bee following a 2013 petition from the Xerces Society and partners. IPAA submitted comments with API to the Service, noting the petition to list the bee relies on incomplete data and does not present sufficient information to warrant listing the bee at this time. The bee occupies an extensive range across 25 states from the East Coast to North Dakota.

Last fall, Defenders of Wildlife also sent a petition to FWS to list the western bumble bee under the ESA, citing concerns over the impacts of disease on the bee and reduced population levels at historic sites. According to the petition, the bee’s historic range includes northern California, Oregon, Washington, Alaska, Idaho, Montana, western Nebraska, western North Dakota, western South Dakota, Wyoming, Utah, Colorado, northern Arizona, and New Mexico. The Service will now decide whether to proceed with a 90-day determination period to consider if the listing might be warranted.

  • Split over Migratory Bird Treaty Act (MBTA). In addition to IPAA’s existing comments around the MBTA, a current court split around the theory of unintentional take under the act stands to pose new changes to how industry is treated under the law. In September 2015, the Fifth Circuit rejected the United States’ theory of unintentional take under the 1918 Migratory Bird Treaty Act, reversing a Citgo Petroleum Corporation’s conviction related to proposed violations of the Clean Air Act and the Migratory Bird Treaty Act at a facility in Corpus Christi. According to the Fifth Circuit panel, the scope of takings under MBTA only prohibits intentional acts that directly kill migratory birds. The decision splits the circuit courts on the issue of enforcement of MBTA in the oil and natural gas sector, placing the Fifth Circuit in agreement with the Eighth and Ninth Circuits, both of which have limited “takes” to hunting and poaching activities and have stated that “taking” is limited to deliberate, intentional acts to migratory birds. Meanwhile, the Second and Tenth Circuits “have read the MBTA broadly” and “hold that because the MBTA imposes strict liability, it must forbid acts that accidentally or indirectly kill birds.” This court split over the implementation of the MBTA will continue to be an important issue for the oil and gas industry to monitor heading into 2016.
  • ESA Reform Efforts Continue. Building off the previous work in 2015, IPAA will continue to monitor and advocate for effective, common sense reform of the Endangered Species Act, notably the importance of using sound science and appropriate regulatory powers to make decisions. IPAA will continue to support Senator Cornyn’s bill (S. 293) establish a procedure for the approval of certain settlements and will track any additional legislative proposals that are introduced in Congress.
  • FWS Releases Candidate Species List. On December 24, 2015, FWS released its Candidate Notice of Review, a yearly status appraisal of plants and animals that are candidates for protection under the ESA. The list highlights 60 species recognized by the Service as candidates for ESA protection and, most importantly, are species being monitored by the Service. Read the full document in the Federal Register HERE.
  • Turtles and Mussels to Watch. In May 2015, the Service announced a final rule designating 1,920 river miles of critical habitat across 12 states for two mussel species—the rabbitsfoot and the Neosho mucket. Both species occur in waters where many oil and natural gas companies conduct operations, notably in Arkansas, and the critical habitat listing will affect any Section 7 consultations that occur for projects with a federal nexus in the listed region. The Service also recently listed two mussels found in Florida, including the Florida bristle fern and the Suwannee moccasinshell mussel, as endangered and threatened respectively under the ESA.

Last month, the Center for Biological Diversity also issued notices of intent to sue the Service for failing to act in a timely manner on its petitions to list the wood turtle, found in the Northeast and Midwest, and the alligator snapping turtle, found in the Southeast, under the ESA. The Service issued affirmative 90-day findings on both species this summer, and proposed listing decisions for both species may arise in the next 6-12 months.

Efforts & Education Continues

IPAA is continuing its educational outreach to the public through its ESA Watch campaign and website IPAA has been an ESA thought leader, working with the Administration and Congress and hosting numerous briefings, meetings, tours and workshops. Over the past year, IPAA has served as a leading voice on ESA issues, calling for thoughtful, common sense decision-making in prominent publications around the country, including the Casper Star-Tribune in Wyoming, The Billings Gazette in Montana, the Pittsburgh Post-Gazette in Pennsylvania, the Wall Street Journal in New York, the Salt Lake Tribune in Utah, and The Hill in Washington, D.C. IPAA looks forward to continuing engagement on the ESA in 2016 and will continue to serve as a leading resource for those monitoring these critical issues.

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