Petroleum production is an important industry in North Dakota. North Dakota is now among the top oil producing States in the Nation, and new development is occurring rapidly. The U.S. Fish and Wildlife Service supports the responsible development of energy resources. However, unless done carefully and in conjunction with wildlife professionals, energy development can have undesirable and potentially significant negative cumulative impacts to fish and wildlife.
Certain wildlife resources are held in trust by the Fish and Wildlife Service for the future enjoyment of the American people; these include threatened and endangered species, migratory birds, bald and golden eagles, interjurisdictional fish, and units of the national wildlife refuge system, including easements on private land. In North Dakota and elsewhere, the Fish and Wildlife Service has documented a range of petroleum development impacts on wildlife resources. North Dakota oil and gas operators are working with the Fish and Wildlife Service to address certain oilfield impacts, such as netting reserve pits and covering heater-treaters to protect migratory birds. However, much remains to be done. The following information is provided in the spirit of fostering continued and improved cooperative wildlife protection between companies and the Federal government in the oilfields of North Dakota.
Migratory Bird Treaty Act
The Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) (MBTA) prohibits the taking, killing, possession, and transportation, (among other actions) of migratory birds, their eggs, parts, and nests, except when specifically permitted by regulations. While the MBTA has no provision for allowing unauthorized take, the Fish and Wildlife Service realizes that some birds may be killed during well pad and access road construction and operation even if all known reasonable and effective measures to protect birds are used. The Fish and Wildlife Service Office of Law Enforcement carries out its mission to protect migratory birds through investigations and enforcement, as well as by fostering relationships with individuals, companies, and agencies that have taken effective steps to avoid take of migratory birds, and by encouraging others to implement measures to avoid take of migratory birds. It is not possible to absolve individuals, companies, or agencies from liability even if they implement bird mortality avoidance or other similar protective measures. However, the Fish and Wildlife Service’s Office of Law Enforcement focuses its resources on investigating and prosecuting individuals and companies that take migratory birds without identifying and implementing all reasonable, prudent and effective measures to avoid that take. Companies are encouraged to work closely with Fish and Wildlife Service biologists to identify available protective measures when developing project plans and/or avian protection plans, and to implement those measures prior to/during construction and operation or similar activities.
Violations of the Migratory Bird Treaty Act are a Class B Misdemeanor, carrying a maximum corporate penalty of 6 months incarceration, a $15,000.00 fine, or both.
Bald and Golden Eagle Protection Act
The Bald and Golden Eagle Protection Act (16 U.S.C. 668 – 668d, 54 Stat. 250) prohibits anyone, without a permit issued by the Secretary of the Interior, from taking bald eagles, including their parts, nests, or eggs. The Act defines the term “take” as “to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” The Act defines the term “disturb” as “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior." In addition to immediate impacts, this definition also covers impacts that result from human-induced alterations initiated around a previously used nest site during a time when eagles are not present, if, upon the eagles return, such alterations agitate or bother an eagle to a degree that injures an eagle or substantially interferes with normal breeding, feeding, or sheltering habits and causes, or is likely to cause, a loss of productivity or nest abandonment. Permits to take bald or golden eagles are available only for legitimate emergencies, or when the permitted activity is part of an overall conservation plan that benefits eagles.
First offense violations of the Bald and Golden Eagle Protection Act are a Class A Misdemeanor, carrying a maximum corporate penalty of 1 year incarceration, a $200,000.00 fine, or both. Second offense violations of the Bald and Golden Eagle Protection Act are a Class E Felony, carrying a maximum corporate penalty of 2 years incarceration, a $500,000 fine, or both.
Endangered Species Act
The Endangered Species Act (16 U.S.C. 1531 et seq.) prohibits anyone, without a permit issued by the Secretary of the Interior, from taking any federally-listed threatened or endangered species. The Act defines the term “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Section 10(a)(1)(B) of the Act allows non-Federal parties planning activities that have no Federal nexus, but which could result in the incidental taking of listed animals, to apply to the Fish and Wildlife Service for an incidental take permit. A Federal nexus exists whenever an activity is conducted, funded, or licensed or permitted by a Federal agency. The application must include a habitat conservation plan (HCP) outlining the proposed actions, determining the effects of those actions on federally listed fish and wildlife species and their habitats (and may include proposed or candidate species), and defining measures to minimize and mitigate adverse effects. Violations of the Endangered Species Act are a Class A Misdemeanor, carrying a maximum corporate penalty of 1 year incarceration, a $200,000.00 fine, or both.
National Wildlife Refuge System Improvement Act
The National Wildlife Refuge System Improvement Act (16 U.S.C. 668dd) provides for administration of "a network of lands and waters for the conservation, management, and, where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." Refuge managers are required by the Act to evaluate all general public, recreational, and economic uses proposed or occurring on a refuge, even those occurring to further Refuge habitat management goals, for appropriateness and compatibility with wildlife conservation, management, and recovery. The Fish and Wildlife Service administers Waterfowl Production Areas owned in fee title as well as wetland and grassland easements throughout North Dakota. Wetland easements are legal agreements with private landowners that permanently protect wetland basins from being drained, burned, leveled, or filled. Grassland easements are legal agreements with landowners that permanently protect grassland vegetation, primarily native prairie, from being destroyed or developed. The primary responsibility in protecting these interests is to review all proposed uses to ensure that the requests are compatible with Fish and Wildlife Service easement regulations and various laws and policies. These comments and suggestions are made in an attempt to accomplish three goals: (1) avoid impacts to Service grassland and wetland easements in the project area as much as possible; (2) if unavoidable, ensure that any proposed well and associated infrastructure impacts (roads, pipelines, electrical lines, sub-stations, etc.) on any Fish and Wildlife Service easement areas are kept to an absolute minimum; and (3) investigate all potential alternatives to eliminate or reduce impacts to easement areas to protect the integrity of the easement.
Violations of the National Wildlife Refuge System Administration Act are a Class A Misdemeanor, carrying a maximum corporate penalty of 1 year incarceration, a $200,000.00 fine, or both.
The North Dakota Ecological Services Field Office is charged with reviewing and coordinating all proposed Federal, State, Tribal, local, and private party activities that have the potential to impact trust resources, and coordinating input from other FWS divisions. The North Dakota Field Office, Jeff Towner, Field Supervisor, can be reached at (701) 250-4402 or email@example.com.