Wednesday, August 2, 2017

Shale Law in the Spotlight: Endangered Species Act - Impacts on Shale Gas Development

Written by Torin Miller - Research Assistant
        A few weeks ago, we took a look at the impacts of shale gas drilling on both forest songbirds and bats, with a focus on habitat fragmentation, greenhouse gas emissions, water consumption and contamination, and noise pollution. This week, we’ll take a closer look at the legal implications of shale gas development with regard to wildlife and wildlife habitat. Specifically, this article will focus on the Endangered Species Act of 1973 (ESA) as it relates to the Indiana bats (Myotis sodalis) and northern long-eared bats (Myotis septentrionalis) and the impacts the ESA has on modern shale gas development.
        The purposes of the Endangered Species Act of 1973 “are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in . . . this section.” There are five factors to be considered when determining if a species is endangered or threatened:
A.    the present or threatened destruction, modification, or curtailment of its habitat or range;
B.     overutilization for commercial, recreational, scientific, or educational purposes;
C.     disease or predation;
D.    the inadequacy of existing regulatory mechanisms; or
E.     other natural or manmade factors affecting its continued existence.
Further, the decision to list a species as endangered or threatened must be made “solely on the basis of the best scientific and commercial data available.”
Section 9 of the act makes it “unlawful for any person subject to the jurisdiction of the United States to . . .  take any such species within the United States or the territorial sea of the United States,” where the term ‘person’ includes individuals, corporations, or other private entities and ‘take’ “means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
The term ‘take’ includes ‘incidental take,’ which is a take that results from, but is not the primary purpose of, the activity being conducted. Incidental take may be authorized by the United States Department of the Interior (DOI) so long as conditions are in place to minimize the impact the incidental take will have on a species. With respect to shale gas development, incidental take is a primary focus. From endangered reptiles like the eastern massasauga rattlesnake and bog turtle, to a host of endangered mussels, shale gas operators in Pennsylvania and throughout the Marcellus Shale region must be aware of take limitations and authorization requirements before altering or destroying habitat of listed species.
Bats might provide the most prevalent wildlife-related legal obstacles for shale gas developers. The Marcellus Shale region is home to two species of bats with ESA protection: the endangered Indiana bat and the threatened northern long-eared bat. The listing status is important to note, as incidental take requirements vary between endangered and threatened statuses. Incidental take permits are required for any species listed as endangered under the ESA, including the endangered Indiana bat. Incidental take is still permitted for endangered species, but permit applicants are required to “design, implement, and secure funding for a conservation plan that minimizes and mitigates harm to the impacted species during the proposed project.” The plans, known as a Habitat Conservation Plans (HCPs), are “legally binding agreements between the Secretary of the Interior and the permit holder.”
The threatened status of the northern long-eared bat results in some unique legal quirks. Under Section 4(d) of the ESA, “[w]henever any species is listed as a threatened species . . .  the Secretary [of the Interior] shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.” As a result, the DOI and the United States Fish and Wildlife Service (FWS) have some flexibility for managing and regulating species listed as threatened.
The northern long-eared bat, which was listed as threatened in April 2015 by FWS, is a medium-sized bat that ranges throughout the eastern and north central United States, covering most of the country’s prominent shale gas regions, according to FWS. These bats hibernate in caves and mines and spend summers “underneath bark, in cavities or in crevices of both live trees and snags (dead trees),” FWS notes. The ESA listing of the northern long-eared bat was “primarily due to the threat posed by white-nose syndrome, a fungal disease that has devastated many bat populations,” according to a FWS press release.
After listing the northern long-eared bat as threatened under the ESA, FWS announced final protections that utilized the flexibilities of section 4(d); “The final 4(d) rule for the northern long-eared bat removes prohibitions that would otherwise be in place on ‘incidental take’ of the bat in areas of the country not affected by white-nose syndrome.” The announcement notes, “Incidental take includes harm, harassment or mortality that occurs incidental to an otherwise lawful activity, such as clearing trees for a construction project.”
Under the final 4(d) rule, in areas where white-nose syndrome is present, incidental take is prohibited if it:
A.    Occurs within a hibernation site for the northern long-eared bat
B.     Results from tree removal activities within a quarter-mile of a hibernaculum or from activities that cut down or destroy known occupied maternity roost trees, or any other trees within 150 feet of that maternity roost tree
C.     Occurs during the pup-rearing season (June 1 through July 31)
Some exceptions do apply. Namely, “[o]ccupied roost trees may be removed when necessary to address a direct threat to human life and property. In other cases, a permit for incidental take may be needed,” according to the announcement. Additionally, “intentionally harming, harassing or killing the northern long-eared bat is prohibited throughout the species’ range, except for removal of northern long-eared bats from human structures, and when necessary to protect human health and safety.”
        The 4(d) provisions are beneficial to shale gas developers in the Marcellus Shale region where white-nose syndrome is present. Rather than the ESA blanketing the species’ entire range, or the impact zone of white-nosed syndrome, with take regulations requiring permitting, the 4(d) rule “is designed to protect the bat while minimizing regulatory requirements for landowners, land managers, government agencies and others within the species’ range,” according to FWS announcement. Shale gas development can continue throughout the white-nose syndrome impact range without take permits so long as the activities meet the 4(d) provisions.
        However, white-nose syndrome is a serious threat to bats across the Marcellus Shale region. Northern long-eared bats are not out of the woods yet; “As white-nose syndrome continues to affect this species, the bat’s status may decline to the point that it becomes endangered.” If that happens, the 4(d) rule would no longer apply, and “all regulatory prohibitions under the ESA would take effect,” the announcement noted. In that instance, “most intentional and incidental take throughout the range of the northern long-eared bat would be prohibited unless permitted.”

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