American Oil and Gas Reporter - July 2015 - 168

to the point of saying we absolutely
won't permit a project in a particular area,
but no company in its right mind is going
to go after a resource that, while it certainly is worth developing under standard circumstances, now is not, given the numerous thresholds required to do so," she reasons.
McDonald notes that by her calculation,
the 14 sage grouse land use plans delineate 11 million acres as no surface occupancy without exceptions, 35 million
acres as no surface occupancy with some
exceptions, and collectively, 66 million
acres with some type of limitation or restriction. "That is a breathtaking number,"
she poses.

Next Step
The Western Energy Alliance also
doesn't agree with the premise that the
BLM plans are the best alternative to an
endangered listing for the sage grouse, according to Sgamma. "We see these plans
as being as bad, if not worse, than a listing," she states.
"Frankly, our team has been making the
point for some time that these plans are
more restrictive than the limitations one
would have if the bird actually was listed,"
Johnson confirms.
Stakeholders had until June 29 to file
protests; governors had an additional 30
days to complete consistency reviews.
Wagner says PAW anticipates records of

decision on the plans in August.
"We will be protesting all the plans that
do not conform with state plans," Sgamma promised in mid-June.
Beyond that, McDonald predicts, "I
suspect that whether it is states, trade associations or others, there likely will be litigation."
The ultimate arbiter, however, may be
the marketplace, she suggests. "I suspect
that, in a lot of ways, these plans simply
mean that every company will try to
thread the needle relative to investments
it already has in place, and will maximize
what it can in those areas. But as for future projects," she predicts, "I don't know
that they will be all that interested." ❒

USFWS Starts Incidental Take Revision

WASHINGTON-The U.S. Fish &
Wildlife Service has issued a notice of intent that initiates an environmental review
of a proposal to regulate the incidental take
of most bird species found in the United
States. USFWS announced a 30-day comment period, which closes July 27.
According to the agency's Federal
Register notice, it has long issued permits
to take migratory birds for a range of purposes, including bird banding, scientific
collection and rehabilitation, and incidental takes by the military.
"We now are considering establishing
more general authority to permit incidental take through general authorizations, individual permits, or interagency memoranda of understanding," the agency says.
"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 proposed permitting program will
operate under the Migratory Bird Treaty
Act (MBTA), which controls poaching and
commercial hunting. The act makes it a federal crime to pursue, hunt, take or kill any
migratory bird, unless the take is covered
by a Department of the Interior permit.
The agency adds the proposed process
also would create regulatory mechanisms
to provide meaningful compensatory mitigation for bird mortality that cannot be
avoided or minimized through best practices, risk management processes or technologies. The agency adds it is considering approaches that will minimize the administrative burden of compliance for
industry and federal agencies.
USFWS says it will prepare a program-

matic environmental impact statement to
consider proposals to regulate incidental
take of migratory birds, including:
* Issuing general incidental take authorizations for some types of hazards to
birds associated with particular industry
sectors;
* Issuing individual permits authorizing incidental takes from projects or activities; and
* Developing voluntary guidance for
industry sectors regarding operational
techniques or technologies that could
avoid or minimize incidental take.
Permitting Framework
Published reports quote USFWS as saying it is building on its work with several industry sectors to develop voluntary
guidance that uses best management practices to avoid or minimize bird mortality.
According to media sources, complying
with the resulting guidance would not provide legal authorization to take migratory birds, but would be taken into account
if enforcement action was taken.
Continued reliance on enforcement
discretion is being considered as preferable
to a permitting program for at least some
sectors and activities, media reports say.
The focus of USFWS enforcement activities will be on industries or activities that
chronically kill birds, they point out.
USFWS proposes to use a threepronged permitting framework to manage
incidental take of migratory birds. According to a legal analysis of the USFWS notice:
* A general conditional authorization will develop impact reduction measures. Sectors that USFWS is considering
including in the general permit include oil
and gas reserve pits and wastewater

168 THE AMERICAN OIL & GAS REPORTER

ponds; flares, exhaust pipes and vents at
production sites; communication towers;
and transmissions lines. The agency says
it also is considering whether wind energy generation projects could be included
in the general conditional authorization
framework by building on land-based
wind energy guidelines it issued in 2012.
* Individual incidental take permits
and site-specific National Environmental
Policy Act reviews will be required for activities that "present complexities or siting considerations that inherently require
site-specific considerations, or for which
there is limited information regarding
adverse effects."
* Incidental takes may be authorized
for federal agencies that enter in a memorandum of understanding with USFWS.
The agency adds it will consider using such
MOUs to extend take authorization to private parties regulated by the other federal agencies.
Legal Implications
A new incidental take rule almost certainly will prompt legal challenges, given
the number of industries affected, a legal
analysis by Marten Law predicts. It adds
the challenges will focus on the question
of whether the MBTA even applies to incidental take.
One federal circuit court agrees with the
agency that the act is a strict liability statute
triggered by bird deaths that incidentally
result from otherwise lawful activities.
However, Marten Law notes, two other circuit courts hold the opposite view, and see
the statute as applying only to purposeful
actions directed against migratory birds,
such as hunting.
Assuming it survives threshold legal
challenges, the act's incidental take pro-

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