By Karen Edelstein, Eastern Program Coordinator, FracTracker Alliance
In an apparent move to step around compliance with comprehensive regulations outlined in the Endangered Species Act (ESA), a coalition of nine oil and gas corporations has filed a draft plan entitled the Oil & Gas Coalition Multi-State Habitat Conservation Plan (O&G HCP). The proposed plan, which would relax regulations on five species of bats, is unprecedented in scope in the eastern United States, both temporally and spatially. If approved, it would be in effect for 50 years, and cover oil and gas operations throughout the states of Ohio, Pennsylvania, and West Virginia—covering over 110,000 square miles. The oil and gas companies see the plan as a means of “streamlining” the permit processes associated with oil and gas exploration, production, and maintenance activities. Others outside of industry may wonder whether the requested permit is a broad over-reach of an existing loophole in the ESA.
Habitat fragmentation, air, and noise pollution that comes with oil and gas extraction and fossil fuel delivery activities have the potential to incidentally injure or kill bat species in the three-State plan area that are currently protected by the Endangered Species Act (ESA) of 1973. In essence, the requested “incidental take permit”, or ITP, would acknowledge that these companies would not be held to the same comprehensive regulations that are designed to safeguard the environment, particularly the flora and fauna at most risk to extirpation. Rather, they would simply be asked to insure that their impacts are “minimized and mitigated to the maximum extent practicable.”
Section 10(a)(2)(B) of the ESA contains provisions for issuing an ITP to a non-Federal entity for the take of endangered and threatened species, provided the following criteria are met:
- The taking will be incidental
- The applicant will, to the maximum extent practicable, minimize and mitigate the impact of such taking
- The applicant will develop an HCP and ensure that adequate funding for the plan will be provided
- The taking will not appreciably reduce the likelihood of survival and recovery of the species in the wild
- The applicant will carry out any other measures that the Secretary may require as being necessary or appropriate for the purposes of the HCP
What activities would be involved?
The proposed plan, which would seek to exempt both upstream development activities (oil & gas wells) and midstream development activities (pipelines). Upstream activities include the creation of access roads, staging areas, seismic operations, land clearing, explosives; the development and construction of well fields, including drilling, well pad construction, disposal wells, water impoundments, communication towers; and other operations, including gas flaring and soil disturbance; and decommissioning and reclamation activities, including more land moving and excavation.
Midstream activities include the construction of gathering, transmission, and distribution pipeline, including land grading and stream construction, construction of compressor stations, meter stations, electric substations, storage facilities, and processing plants, and installation of roads, culverts, and ditches, to name just a few.
Companies involved in the proposed “Conservation Plan” represent the major players in fossil fuel extraction, refinement, and delivery in the region, and include:
- Antero Resources Corporation
- Ascent Resources, LLC
- Chesapeake Energy Corporation
- EnLink Midstream L.P.
- EQT Corporation
- MarkWest Energy Partners, L.P., MPLX L.P., and Marathon Petroleum Corporation (all part of same corporate enterprise)
- Rice Energy, Inc.
- Southwestern Energy Company
- The Williams Companies, Inc.
Focal species of the request
The five species listed in the ITP include the Indiana Bat (a federally-listed endangered species) and Northern Long-eared Bat (a federally-listed threatened species), the Eastern Small-footed Bat (a threatened species protected under Pennsylvania’s Game and Wildlife Code), as well as the Little Brown Bat and Tri-colored Bat. Populations of all five species are already under dire threats due to white-nose syndrome, a devastating disease that, since 2008, has killed an estimated 5.7 million bats in North America. In some cases, entire local populations have succumbed to this deadly disease. Because bats already have a naturally low birthrate, bat populations that do survive this epidemic will be slow to rebound. Only recently, wildlife biologists have begun to see hope for a treatment in a beneficial bacterium that may save affected bats. However, production and deployment details of this treatment are still under development. Best summarized in a recent article in the Pittsburgh Post-Gazette:
This [ITP] would be a huge deal because we are dealing with species in a precipitous decline,” said Jared Margolis, an attorney with the Center for Biological Diversity, a national nonprofit conservation organization headquartered in Tucson, Ariz. “I don’t see how it could be biologically defensible. Even without the drilling and energy development we don’t know if these species will survive.
In 2012, Bat Conservation International produced a report for Delaware Riverkeeper, entitled Impacts of Shale Gas Development on Bat Populations in the Northeastern United States. The report focuses on landscape scale impacts that range from water quality threats, to disruption of winter hibernacula, the locations where bats hibernate during the winter, en masse. In addition, because bats have strong site fidelity to roosting trees or groups of trees, forest clearing for pipelines, well pads or other facilities may disproportionately impact local populations.
The below map, developed by FracTracker Alliance, shows the population ranges of all five bat species, as well as the current areas impacted by existing development by the oil and gas industry through well sites, pipelines, and other facilities.
To learn more details about the extensive oil and gas development in each of the impacted states, follow these links:
- Oil and gas threat map for Pennsylvania. Currently, there are ~104,000 oil and gas wells, compressors, and other related facilities here.
- Oil and gas threat map for Ohio. Currently, there are ~90,000 oil and gas wells, compressors, and other related facilities here.
- Oil and gas threat map for West Virginia. Currently, there are ~16,000 oil and gas wells, compressors, and other related facilities here.
Public input options
The U.S. Fish and Wildlife Service (USFWS) announced in the Federal Register in late November 2016 its intent to prepare an environmental impact statement (EIS) and hold five public scoping sessions about the permit, as well as an informational webinar. In keeping with the parameters of an environmental impact statement, USFWS is particularly interested in input and information about:
- Aspects of the human environment that warrant examination such as baseline information that could inform the analyses.
- Information concerning the range, distribution, population size, and population trends concerning the covered species in the plan area.
- Additional biological information concerning the covered species or other federally listed species that occur in the plan area.
- Direct, indirect, and/or cumulative impacts that implementation of the proposed action (i.e., covered activities) will have on the covered species or other federally listed species.
- Information about measures that can be implemented to avoid, minimize, and mitigate impacts to the covered species.
- Other possible alternatives to the proposed action that the Service should consider.
- Whether there are connected, similar, or reasonably foreseeable cumulative actions (i.e., current or planned activities) and their potential impacts on covered species or other federally listed species in the plan area.
- The presence of archaeological sites, buildings and structures, historic events, sacred and traditional areas, and other historic preservation concerns within the plan area that are required to be considered in project planning by the National Historic Preservation Act.
- Any other environmental issues that should be considered with regard to the proposed HCP and potential permit issuance.
The public comment period ends on December 27, 2016. Links to more information about locations of the public hearings, as well as instructions about how to sign up for the December 20, 2016 informational webinar can be found at this website. In addition, you can electronically submit comments about the “conservation plan” by following this link.