The US Fish & Wildlife Service intends to prepare a programmatic environmental impact statement to evaluate possible steps for reducing accidental migratory bird deaths from oil and gas and other industrial activities. The anticipated rulemaking would establish regulations requiring appropriate mitigation steps, FWS said in a notice scheduled to appear in the May 26 Federal Register.
The notice specifically identified methane or other natural gas burner pipes at production sites and elsewhere, and open oil, gas, and wastewater disposal pits as problems, along with communication towers and power transmission and distribution lines.
FWS is looking for ways it can protect migratory birds from ongoing unintentional, or incidental, harm from certain human activities, an FWS spokeswoman told OGJ by e-mail on May 22.
“An ‘incidental take’ authorization system under the Migratory Bird Treaty Act could provide a means to reduce some bird mortality and mitigate for other unavoidable [deaths], benefiting bird species from raptors to songbirds,” she said.
FWS will seek public participation in exploring proposals with scoping meetings June 16 in Sacramento, June 18 in Denver, June 30 in St. Louis, and July 2 in Arlington, Va.; a nationally available webinar on July 8; and a 60-day comment period commencing with the notice’s May 26 Federal Register publication.
“We are now considering establishing more general authority to permit incidental take through general authorizations, individual permits, or interagency memoranda of understanding,” the notice said. “This regulatory process would provide greater certainty for entities that have taken efforts to reduce incidental take and significantly benefit bird conservation by promoting implementation of appropriate conservation measures to avoid or reduce avian mortality.”
The process also would create regulations to obtain meaningful compensation for bird deaths that cannot be avoided or minimized through best practices, risk management processes, or technologies, it said.
“We are considering approaches that will minimize the administrative burden of compliance with this regulatory process for industry, other federal agencies, and [FWS], and will also consider continuation of our current efforts to work with interested industry sectors to develop voluntary guidance for avoiding or minimizing incidental take of migratory birds,” the notice said.
It said that should FWS develop an incidental take permit system, it would not expect every person or business that would accidentally kill birds to get a permit. The agency said it also does not expect to expand its enforcement activity under the MBTA, since that normally involves industries or activities that chronically kill birds.
In those cases, it said it notifies the industry of FWS’s avian mortality concerns, works with the industry to find solutions, and proactively educates industries about ways to avoid or mitigate migratory bird takes. “Similarly, our permit program, if implemented, will focus on industries and activities that involve significant avian mortality and for which reasonable and effective measures to avoid or minimize take exist,” the notice said.
Possible oil and gas steps
For the two oil and gas problem areas it specified, it proposed using closed containment systems or properly maintained netting to keep birds from entering storage sites; and removing perches, installing perch deterrents, and covering openings to keep birds from being trapped and burned in methane and other gas pipes.
The American Petroleum Institute has not had an opportunity to study FWS’s new proposal in any detail, but expects to give it careful consideration during the comment period, API Senior Upstream Policy Advisor Richard Ranger told OGJ by e-mail.
“Projects to explore for and develop oil and gas resources are designed to minimize impacts on the surrounding environment and to animals—including birds—that share that environment,” he said. “Our members are familiar with—and comply with—incidental take authorizations issued by [FWS] in a variety of contexts, and we will be speaking from that experience of compliance and minimal interference in any comments we provide.”
The National Audubon Society, which initially disclosed FWS’s plans, said federal action under the MBTA was long overdue. “It’s time to end this terrible and unnecessary slaughter,” said NAS Pres. David Yarnold. “There is hope: In many cases, the tools and technology to save birds have already been developed. It’s time to make sure everyone plays by the same rules.”
Contact Nick Snow at [email protected].