Issues
IPAA hosts NLEB briefing on Capitol Hill. This week, the Independent Petroleum Association of America held a congressional briefing on the northern long-eared bat and the interim 4(d) rule for the species. The briefing focused on the impacts of the rule on the oil and natural gas industry, and included IPAA’s Samantha McDonald, Richard Ranger from the American Petroleum Institute, W. Parker Moore of Beveridge and Diamond, and David Bernhart of Brownstein Hyatt Farber Schreck. The meeting focused on the current stipulations included in the interim 4 (d) rule, the treatment of oil and natural gas, and the potential impacts the rule will have on energy and economic development if the final language is not altered. The interim rule went into place on May 4, and comments on the final rule are open until July 1, 2015.
As highlighted in the briefing, the current interim rule exempts take from certain activities, including forest management practices (less than 2 percent of the bat’s habitat), maintenance and limited expansion of transportation and utility rights-of-way (100 feet), prairie habitat management, and limited tree removal projects, all provided these activities protect known roosts and species habitat (less than one acre) and abide by certain distance and time parameters. Unfortunately, as currently listed the rule does not exempt oil and gas activities from incidental take of the bat, despite the limited impact of these activities on the species and the spread of white-nose syndrome.
Various panelists also noted that while the rule will have an impact on energy development in the habitat region, notably in areas that overlay the Marcellus and Utica shale, there will also be a negative ripple effect throughout the economy and local communities that are supported by increased activity in the region. Panelists urged the audience to submit comments on the rule, to ensure these impacts are well voiced to the Fish and Wildlife Service before a final rule is implemented. To learn more about the northern long-eared bat visit ESA Watch’s new species page HERE.
Industry submits comments in response to Bryde’s whale petition. Last week, the Independent Petroleum Association of America, American Petroleum Institute, and International Association of Geophysical Contractors submitted public comments in response to the National Marine Fisheries Service’s (NMFS) request for information and public comment on the Natural Resource Defense Council’s (NRDC) petition to list Bryde’s whales in the Gulf of Mexico (GoM) as a Distinct Population Segment (DPS) under the Endangered Species Act (ESA). The NMFS recently issued a 90-day finding that the NRDC petition presented substantial scientific or commercial information and will seek data to inform its more rigorous 12-month review, under which it will determine if the petition designation of the DPS is warranted.
The NRDC petition also called on NMFS to separately list the Bryde’s whale population in the GoM as an endangered DPS. Bryde’s whales are a species of baleen whales that are found in tropical and warm waters in the Atlantic, Pacific, and Indian Oceans. Unlike other whale species, Bryde’s whales do not surface in linear or predictable patterns, limiting the ability of surveyors to track them for additional observation or to confirm their identity.
As highlighted in the association’s comments, the NRDC petition is not permissible under the ESA or its implementing regulations. As mentioned, the ESA applies to distinct taxonomic species, yet the NRDC petition is requesting the Service create a DPS from one species and two recognized subspecies. From the comments:
“The NRDC Petition, however, requests that NMFS create a DPS from one species and two recognized subspecies: (1) worldwide population of Bryde’s whales (B. edeni); (2) B. e. brydei; (the larger, ‘offshore type’) and, (3) B. e. edeni (the smaller, ‘inshore type’). While the ESA allows NMFS to designate discrete populations of a single species, the statute does not permit NMFS to create, nor permit NRDC to petition to create, an entirely new species or subspecies not recognized in any scientific literature simply for the purpose of listing it on the ESA.
“Even if the NRDC Petition identified a single species from which NMFS could designate a discrete population, the best available information strongly suggests that Bryde’s whales in the GoM can (and do) move freely in and out of the GoM, are genetically, physiologically, and morphologically indistinct from contiguous populations, and are not markedly discrete from the abundant worldwide population of Bryde’s whales. Moreover, even if NMFS were to analyze a subset of Bryde’s whales found in or passing through the GoM under the ESA’s listing factors, the best available information does not support the NRDC Petition’s conclusions of peril.”
Currently, Bryde’s whales and other marine species are protected domestically and internationally under a number of regulations, including the Marine Mammal Protection Act. As the Associations highlight, oil and gas companies also continue to work with federal regulators to mitigate any potential effects their activities may have on surrounding wildlife, while ensuring continued economic growth and job creation in the GoM and surrounding areas. To read the Associations’ full comments on the whale visit ESA Watch HERE.
ESA amendments included in NDAA language. Earlier this month, the House of Representatives voted to pass the 2016 National Defense Authorization Act (NDAA), which includes amendments from Congressman Frank Lucas (OK-3) to prohibit listing the lesser prairie chicken as a threatened species under the Endangered Species Act (ESA) until 2021 and to delist the American burying beetle. The defense measure also includes an amendment from Rep. Rob Bishop (UT-01) that would provide a 10-year delay for a listing decision on the greater sage-grouse.
Meanwhile, as the Senate works to finalize its own version of the NDAA, Senator Mike Lee (R-UT) and others have submitted an amendment featuring the House language to delay a listing for the lesser prairie chicken, as well as an amendment to delay a listing of the greater sage-grouse to ensure states are able to implement conservation plans and to protect military training bases from a potential listing.
The debate over the NDAA continues to generate varying opinions on both sides of the aisle, as Chairman of Senate Armed Services John McCain has expressed opposition to many of the additional amendments proposed for the Defense Act, while the Obama administration has also threatened to veto the bill. Meanwhile, a group of conservation groups sent a letter to members of Congress urging the defeat of these ESA amendments in the final Senate draft.
In the News
Subcommittee approves Interior-EPA spending bill. E&E News (sub req’d). A House Appropriations subcommittee today approved a fiscal 2016 spending plan for the Interior Department and U.S. EPA that would cut below current funding and contains about two dozen policy riders aimed at Obama administration regulations. It would also bar the Fish and Wildlife Service from preparing a potential Endangered Species Act listing rule for sage grouse, legislatively delist wolves in the Great Lakes and Wyoming, and limit the government’s ability to regulate ivory and the use of lead in ammunition and fishing tackle. NOTE: USA Today also reports.
BLM reopens range to ranchers who defied grazing ban. E&E News (sub req’d). The Western Watersheds Project and Public Employees for Environmental Responsibility today blasted the Battle Mountain agreement, accusing BLM of sanctioning “rogue grazing” and threatening the health of land the agency has designated as priority habitat for the greater sage grouse. “Just two weeks after the new greater sage grouse land use plans were released, the BLM once again shows us how little commitment they have to protecting important land and wildlife habitat when pressured by industry,” said Ken Cole, Western Watersheds Project’s Idaho director.
New Report Highlights Ranchers Restoring Habitat for Sage Grouse. USDA (Press Release). Today, the Sand County Foundation, a non-profit organization named for Leopold’s signature book, “A Sand County Almanac,” released a report showcasing the dedication of private landowners in conserving this at-risk species that is currently being considered for listing under the Endangered Species Act. The Sage Grouse Initiative (SGI), a partnership led by USDA’s Natural Resources Conservation Service (NRCS), has been the driving force in private lands conservation efforts for sage grouse.
Legal fight over prairie dog could chew hole in ESA. E&E News (sub req’d). The Utah prairie dog — tawny-furred, with black eyebrows and white-tipped tails — looks like it hopped out of a Disney cartoon. “Go talk to five people who live here and ask about the prairie dogs, and you’re going to get an earful,” said Matt Munson, a lawyer leading opposition here to federal efforts to protect the prairie dog under the Endangered Species Act. “Everyone has been impacted. People have lost businesses, people have lost their homes. People have been bitten. Their dogs have died. You name it, there have been all types of issues.”
Sage grouse collaboration is the best outcome. Idaho Statesman (Editorial). Amid all the complications and drama surrounding sage grouse habitat, there are several points on which Western governors, federal agencies, congressional/state legislative delegations and many a stakeholder can begin and continue the conversation. Nobody wants to see the bird’s status changed from being “warranted” for listing to actually being listed as a threatened or endangered species under the Endangered Species Act.
Massive wind project aims to save the sage grouse. E&E News (sub req’d). The Fish and Wildlife Service is evaluating the bird and must decide whether to propose listing it for protection under the Endangered Species Act by Sept. 30. The possibility of an ESA listing has sparked an unprecedented effort among federal and state regulators, local governments, and private landowners to protect and restore what’s left of the bird’s habitat across its 11-state Western range.
Bird protection law could spark spending battle with big consequences for energy companies. E&E News (sub req’d). Last week, Rep. Jeff Duncan (R-S.C.) added an amendment to a $51 billion spending bill that would temporarily block DOJ from prosecuting companies or individuals who violate the Migratory Bird Treaty Act, one of the nation’s most protective wildlife laws.
BLM moves forward with controversial Utah lease. E&E News (sub req’d). The Bureau of Land Management is closer to a decision on whether to lease more than 3,500 acres of federal coal near Bryce Canyon National Park in Utah. The National Park Service, Fish and Wildlife Service and U.S. EPA have expressed concerns. Worries include water and air quality and the imperiled sage grouse.
