Issues

BLM issues new policy eliminating compensatory mitigation. Earlier this week, the Bureau of Land Management (BLM) released a memo outlining a plan to end the policy of compensatory mitigation. Under the new policy set out by BLM, energy companies, miners and other industries will no longer be required to compensate for impact imposed on public lands during their permitted project. In defense of the change, Interior Department spokeswoman Faith Vander Voort called the prior policy, “a practice that raises serious policy concerns,” and noted that some even view it to be extortion. Without the policy in place, the process for development on federal lands can be made more efficient and cost effective for energy companies, particularly small independent producers.

The Army Corps for Engineers, however, will still be allowed to use mitigation as a permitting tool when approving applicants for land use. Republican Sen. Lisa Murkowski of Alaska, chairwoman of the Senate Energy and Natural Resources Committee, called the shift “another step toward establishing a regulatory environment that will allow the responsible use of our public lands and produce better outcomes for fish and wildlife.”

The Independent Petroleum Association of America also welcomed the decision as a prudent action that brings necessary reforms to the mitigation process. Oil and natural gas companies begin mitigation from the very beginning of a project, and utilize various types of avoidance strategies before the agency is approached for permitting including avoidance and site selection.  This policy revision recognizes these efforts and provides for more flexibility for producers and land managers.

FWS is withdrawing its mitigation policies effective Monday. (See more: Endangered and Threatened Species: Endangered Species Act Compensatory Mitigation Policy  Fish and Wildlife Service Mitigation Policy)

ESA changes proposed by Legislative and Executive branch receive widespread support. The Trump administration recently announced plans to revise portions of the Endangered Species Act (ESA) to improve its clarity and the effectiveness of the listing and delisting process. The proposal from the administration joins a surge of legislation making its way through both chambers of Congress in an effort to overhaul a bill long overdue for modernization.

Between the House and Senate bill packages, support has been received across the board from numerous groups that are in favor of ESA changes. Groups supporting the House Western Caucus package designed to streamline the delisting process include the American Exploration and Mining Association, the American Farm Bureau, American Petroleum Institute and the Independent Petroleum Association of America (IPAA).

On the Trump administration’s revision plans for the ESA, IPAA stated in the Oil and Gas Journal,  “We’re optimistic that these modest improvements to the ESA will continue to promote the conservation of protected species and their habitats, while allowing our member companies the flexibility and business certainty needed for the safe and responsible development of America’s public lands.”

Samantha McDonald, Director of Government Relations for IPAA, also made it clear that the ESA changes would have a minimal impact on the oil and gas industry, saying “in the interim, this won’t change anything too significantly.” She added that the organization has heard from “various environmental groups that this is a huge overhaul and weakens protections, but I would argue that it doesn’t do that at all. Quite frankly, the removal of the blanket 4(d) protections won’t change anything for members’ perspective in terms of conservation.”

McDonald noted the conservation efforts of several IPAA members that have been instrumental at the state level in protecting the dune sagebrush lizard, the lesser prairie chicken and three species of bats in the Northeast. “The thought is to do what we can now to incentivize conservation and promote the species that live in those environments,” she said.

When eighteen states filed lawsuits following Obama administration changes to the ESA in 2016, McDonald said IPAA members were alarmed by the lack of regulatory consistency. “The [Obama] administration was able to designate critical habitat based not only on unoccupied areas, but also areas that lacked biological features under the premise of climate change. The ability to do that with the stroke of a pen made long-term planning for our members very difficult and very concerning.”

Though the new rules proposed by the Trump Administration are not expected to significantly impact the oil and gas industry directly, it will provide a consistent expectation for regulation.

Pentagon walks back NDAA rider opposition, rider tossed out in conference days later. This week, in the conclusion of the committee conference deciding the final draft of the NDAA, lawmakers negotiated a defense bill that excluded the provision that would have prohibited the Interior Department from placing the sage-grouse on the endangered species list for a decade. The full text of the conference report is here; a joint explanatory statement accompanying the bill is here.

Of note, shortly after a memo was leaked describing the Pentagon’s opposition to the sage grouse provisions in the House version of the National Defense Authorization Act (NDAA) last week, the Pentagon released a statement clarifying its position on the rider.

“The Administration, the Defense Department, and the Interior Department support the provision in question and believe that it could help the Department avoid any negative readiness impacts on military facilities should the species be listed as endangered under the Endangered Species Act,” said Pete Giambastiani, Principle Deputy Assistant Secretary of Defense for legislative affairs.

In the News

Colo. governor wants habitat removed from lease sale. E&E News, (Sub req’d). Colorado Gov. John Hickenlooper (D) has asked the Bureau of Land Management to defer more than 108,000 acres of greater sage grouse habitat from a planned December oil and gas lease sale, amid ongoing efforts by the Trump administration to revise grouse management plans and increase leasing on public lands. Hickenlooper also expressed concerns in a letter sent this week to acting BLM Colorado Director Gregory Shoop about recent revisions to agency oil and gas leasing policies that he said have “created significant barriers for us to efficiently review the parcels under consideration for sale.” The Dec. 6 lease sale proposes to offer 227 parcels covering 236,000 acres for oil and gas leasing. Hickenlooper is most concerned about potential impacts to sage grouse habitat, noting that 143 of the 227 parcels cover 108,600 acres identified by BLM as priority and general habitat for sage grouse.

Changing the Endangered Species Act could actually help conservation. Washington Post. When the Endangered Species Act passed in the Senate 45 years ago this month, not one member voted against it. As University of California at Berkeley law professor Holly Doremus has chronicled, the bill’s 1973 passage “went almost unnoticed by the national press” and was seen as a unanimous win for conservation. Today the act is a perpetual source of conflict among landowners, environmentalists, states and the federal government. That could begin to change with a proposal to “improve and modernize” the law unveiled last week by the Department of the Interior. The changes, which would alter the way the Fish and Wildlife Service lists certain species and designates critical habitat, could help accord win out over acrimony in disputes over imperiled species.

Judge sides with Trump admin on Yellowstone River project. E&E News, (Sub req’d). A federal judge is allowing a $59 million dam project that conservationists say threatens a prehistoric fish species on Montana’s Yellowstone River. At issue are plans by the Army Corps of Engineers and the Bureau of Reclamation to replace a wooden diversion weir with a concrete dam near Glendive, Mont. Defenders of Wildlife and other groups have sought to block the project, contending it would hurt the endangered pallid sturgeon. The species dates back 78 million years; there are about 125 of the fish left. Judge Brian Morris for the federal district court in Montana rejected several of those claims at the end of last week. Morris had twice sided with the greens and blocked the project. But in April, the 9th U.S. Circuit Court of Appeals overturned his rulings and sent the case back for further deliberations. The greens are challenging the Army Corps’ operation of the Fort Peck Dam, as well as Reclamation’s management of the Intake Dam about 70 miles upriver of the confluence of the Yellowstone and Missouri rivers.

Wyoming Gov. Mead argues against stay on sage grouse listing. Wyoming News. Gov. Matt Mead says tucking a 10-year stay on listing sage grouse as an endangered species into a defense bill could damage a diverse Western alliance formed to protect the bird and “encourage apathy” toward keeping its work alive. Mead made the statement in a letter to Congressional leaders on the Armed Services Committee. Rep. Rob Bishop of Utah has made a habit of trying to include the sage grouse rider in the National Defense Authorization Act every year, arguing that a listing for the bird would hamper military training operations and hinder military readiness. Bishop’s approach to sage grouse is on the far end of the spectrum compared to Mead. The moderate Wyoming governor has become the political axle around which Western sage grouse partners revolve. Mead was in D.C. on Tuesday lobbying in favor of recently proposed changes to the Endangered Species Act. Congress acting on individual species is a “red flag” that the underlying conservation law is flawed, he said.

ESA combatants: Touch gloves, come out swinging. E&E News, (Sub req’d). The most concentrated and consequential Endangered Species Act fight in a generation starts tomorrow. The opening bell rings with the formal publication of far-reaching proposals from NOAA Fisheries and the Fish and Wildlife Service to reform enforcement of the law. Over the next 60 days, tens of thousands of public comments will flood in. Many will be heated; many already have been. “In proposing to undermine key, time-tested ESA processes and protections, [Interior Secretary Ryan] Zinke is pandering to fringe elements of the extraction industry that consider any protection for wildlife an unacceptable constraint on profits,” former Deputy Interior Secretary David Hayes declared yesterday. The agencies will weigh the public comments, although it’s not a ballot measure where majority rules or even matters much. Then, the agencies will act, significantly rewriting ESA regulations for the first time since 1986.

Lawmakers, Lobbyists and the Administration Join Forces to Overhaul the Endangered Species Act. New York Times. The Endangered Species Act, which for 45 years has safeguarded fragile wildlife while blocking ranching, logging and oil drilling on protected habitats, is coming under attack from lawmakers, the White House and industry on a scale not seen in decades, driven partly by fears that the Republicans will lose ground in November’s midterm elections. In the past two weeks, more than two dozen pieces of legislation, policy initiatives and amendments designed to weaken the law have been either introduced or voted on in Congress or proposed by the Trump administration. The actions included a bill to strip protections from the gray wolf in Wyoming and along the western Great Lakes; a plan to keep the sage grouse, a chicken-size bird that inhabits millions of oil-rich acres in the West, from being listed as endangered for the next decade; and a measure to remove from the endangered list the American burying beetle, an orange-flecked insect that has long been the bane of oil companies that would like to drill on the land where it lives.