The U.S. Fish and Wildlife Service (Service) published proposed regulations today (January 28, 1999) to allow the incidental take of polar bears and walrus during oil and gas operations on Alaskas North Slope and the Beaufort Sea. As in the past, regulations cover exploration, development and on-shore production; new activities such as subsea pipelines are not covered at this time. The recent request to develop incidental take regulations included offshore oil production using subsea pipelines to transport oil. The Services main concern is the potential oiling of polar bears in the event of a spill. Subsea pipelines have not been used in the Arctic previously, and information concerning the probabilities of a spill and predicted levels of impact to polar bears are still being developed through environmental impact statements.
The regulations may be issued for up to a five-year period. However, the Service chose to issue one-year regulations for activities covered in the past with an option of extending them for an additional four-year period. At that time, a revised rule will follow the established rule-making process, which includes a public comment period.
Incidental take (infrequent, unavoidable, or accidental encounters) primarily involves unintentional, passive encounters between humans and marine mammals. In the past thirty years, three polar bear deaths occurred due to industrial activities, but since regulations were passed five years ago, no lethal take has occurred. Normally, encounters between industry and marine mammals are short-term and do not result in a negative effect to the animal.
"This is the first time a subsea pipeline would be built in the Arctic. We are obligated and fully intend to evaluate possible affects to polar bears," said Dave Allen, the Regional Director in Alaska. "Once the Environmental Impact Statements are complete, we will have the information we need to make our assessment of potential impacts to polar bears."
In Alaska the Fish and Wildlife Service is responsible for the management of polar bears, walrus and sea otters. Marine mammals are protected under the Marine Mammal Protection Act (MMPA) and no "takes" including unintentional takes are allowed unless specific exemptions or regulations apply. A special provision of the Act allows the oil and gas industry to apply for marine mammal incidental take regulations. Industry is required by the regulations to develop employee/polar bear educational materials, a bear/human interaction plan, and a plan to monitor the effects of industrial activities on polar bears.
"The U.S. Fish and Wildlife Service protects marine mammals such as polar bears and walrus through this process of reviewing petitions for regulations authorizing incidental take of small numbers of marine mammals," Allen said. "This process is beneficial for the bears, walrus, and for the industry."
Polar bears and walrus
Polar bears are found throughout the Arctic. In Alaska, they have been observed as far south as St. Matthew and the Pribilof Islands, but they are most commonly found close to the Alaskan coast of the Chukchi and Beaufort Seas, from the Bering Strait to the Canadian border. Around 1,800 polar bears inhabit the Beaufort Sea and adjacent land areas. They use this area for feeding, migration, and denning. Nearshore marine habitats with active ice are used extensively. Although the Beaufort Sea population remains stable at a healthy level, it has a low reproductive potential and grows slowly. For these reasons, any habitat alteration and mortality are areas of concern.
The Pacific walrus population occurs primarily in the Bering and Chukchi seas. Occasionally, walrus may move into the Beaufort Sea during the summer open water season. Due to the infrequent occurrence of walrus near industrial activities, their incidental take is of lesser concern than that of the polar bear.
The U.S. Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting, and enhancing fish and wildlife and their habitats for the continuing benefit of the American people. The Service manages the 93-million-acre National Wildlife Refuge System comprised of more than 500 national wildlife refuges, thousands of small wetlands, and other special management areas. It also operates 66 national fish hatcheries and 78 ecological services field stations. The agency enforces Federal wildlife laws, administers the Endangered Species Act, manages migratory bird populations, restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their conservation efforts. It also oversees the Federal Aid program that distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to state wildlife agencies.
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Beaufort Sea Incidental Take Regulations
Questions and Answers
1. What is the U.S. Fish and Wildlife Service proposing to do?
3The Fish and Wildlife Service is responding to a petition by BP Corporation to establish regulations for incidental take of marine mammals in Beaufort Sea and adjacent land areas, during oil and gas activities. The previous Incidental Take regulations expired on December 16, 1998. The petition is to establish similar regulations for the next five years with the exception that the petition did include subsea pipelines, a new type of activity. The new Incidental Take regulations are essentially identical to the regulations that the industry has operated under for the past five years; however, the Final Incidental Take Rule is issued for only one year and does not include subsea pipelines.
2. What does incidental take actually mean?
"Take" means to harass, hunt, capture or kill, or attempt to harass, hunt, capture or kill. "Incidental Take" means takings which are infrequent, unavoidable, or accidental. It does not mean that the taking must be unexpected. Past encounters under the recent regulations (in place for the last five years) have been passive, short-term, and have not resulted in impacts to the population.
3. Is this action supported by scientific evidence?
The Service did an Environmental Assessment of the applicants proposed activities and concluded that take associated with subsea pipelines, based on the best scientific information available at the time of this decision, may not be incidental. Presently, Environmental Impact Statements are being developed concerning two projects that propose transporting crude oil via a subsea pipeline. Detailed information about oil spill probabilities and potential spill extent will be included in the EISs. This detailed information from the EISs will then be used to evaluate subsea pipelines and reevaluate the scope and duration of future regulations. The current one-year regulations allow the Service to issue Letters of Authorization for activities similar to those of the previous five years.
4. Why does the Fish and Wildlife Service issue regulations to take polar bears (marine mammals)?
Section 101(a)(5)(A) of the Marine Mammal Protection Act requires the Secretary (through the Fish and Wildlife Service) to allow incidental take of marine mammals (polar bears) under certain conditions. First, the take is in connection with a specific type of activity (in this case, oil and gas exploration and development) within a specific region (the North Slope and adjacent marine area, excluding the Arctic National Wildlife Refuge). Equally important, the take causes no harm to the population and does not restrict potential subsistence harvest. The regulations identify what types of activities are permissible (for example, ice roads, seismic surveys, gravel construction). People conducting any type of permissible activity then obtain a Letter of Authorization from the Service that identifies ways to avoid and minimize interactions with polar bears as well as specific monitoring and reporting requirements. The purpose of the monitoring and reporting is to measure how well procedures were followed, how effective the procedures were, and to provide a record of all encounters. The information from the monitoring and reporting is used to evaluate future requests for Letters of Authorization and to monitor total impacts from all operations on polar bears.
5. What is the area covered under these Incidental Take Regulations?
The specified geographic area is defined by a North/South line at Barrow, Alaska, and includes all Alaska coastal areas, State waters, and Outer Continental Shelf waters east of that line to the Canadian border and an area 25 miles inland from Barrow on the west to the Canning River on the east. The Arctic National Wildlife Refuge is excluded from the Incidental Take regulations.
6. Is the Arctic National Wildlife Refuge included in these regulations?
No. The Arctic National Wildlife Refuge is specifically excluded from these regulations. No oil and gas activities are permitted on the coastal plain of the refuge.
7. Should protection extend into the Beaufort Sea offshore area as well as "Important Habitat" as defined in the Polar Bear Habitat Conservation Strategy?
We believe the Letters of Authorization do provide protection in the offshore areas. The Letters identify ways to avoid and minimize interactions with polar bears as well as specific monitoring and reporting requirements. Without the information and guidance provided in these Letters, operators may inadvertently disturb or harass bears. Therefore, we believe the mitigation offered by these Letters directly benefits polar bears throughout the Beaufort region.
8. Does issuance of the Incidental Take regulations violate the International Agreement on the Conservation of Polar Bears?
Lethal take of polar bears under the Incidental Take regulations could be inconsistent with the intent of the International Agreement. However, in the last 30 years, only three polar bear deaths may be attributed to oil and gas industry activities in Alaska; two of these bears were killed in defense of life and one from eating a toxic substance. In 1988, a biologist of the Alaska Fish and Wildlife Research Center, U.S. Fish and Wildlife Service, discovered the remains of a dead polar bear on Leavitt Island. The bear apparently consumed a large dose of ethylene glycol. The source of the contamination was not determined. Defense of life is considered consistent with the guidelines of the Agreement. Also, the Incidental Take regulations do not allow "intentional take" of polar bears or Pacific walrus, which would be inconsistent with the Agreement. During the last five years, when Incidental Take regulations were in place, no bears have been killed.
9. Should an Environmental Impact Statement be required for this rulemaking?
The Service prepared an Environmental Assessment of the regulations. The assessment found that the Final Incidental Take Rule will not significantly affect the quality of the human environment, and therefore, no EIS is required. Basically, the Final EA found that these regulations, which exclude subsea pipelines, would not have a significant impact on a species or stock.
A one year Final Rule anticipates that two Final EISs, Northstar and Liberty, will provide additional information for reconsideration of the scope and duration of the regulations.
10. Why was the comment period so short?
The length of the comment period was necessary to avoid a lapse in coverage when existing Incidental Take regulations expire on December 16, 1998. The previous Incidental Take regulations have governed the incidental take of polar bear and Pacific walrus in the Beaufort Sea and adjacent coast of Alaska since November 1993. The new Incidental Take regulations are essentially identical to the regulations that the industry has operated under for the past five years. Please note that the Final Incidental Take Rule is issued for only one year. Within a year, we will conduct another rulemaking process with renewed opportunity for public review.
