American Oil and Gas Reporter - December 2015 - 108

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USFWS Ponders ESA Petition Reform
By Del Torkelson

NEW ORLEANS-Although the Endangered Species Act has a history of chilling economic activity in areas with critical habitat by severely constraining land
use, it also has proven largely impervious
to reform.
Therefore, a regulatory proposal from
the U.S. Fish & Wildlife Service constitutes an unusually encouraging development, Independent Petroleum Association
of America Director of Government Relations Samantha McDonald told the
group at its 86th annual convention, Nov.
8-10 at the Ritz-Carlton New Orleans. She
offered her remarks during a panel discussion about industry issues alongside IPAA
Senior Vice President of Government
Relations and Political Affairs Dan Naatz
and IPAA Executive Vice President Lee
Fuller.
McDonald explained that USFWS proposed to reform the ESA's petition process,
which she deemed largely responsible
for anti-development groups' success with
sue-and-settle tactics. "The USFWS receives an onslaught of petitions from the
environmental community," she described.
"Because of the sheer volume, the service
is unable to meet the strict statutory deadlines, which eventually lead to closed-door
settlements with environmental groups.
"This proposed rule is a step in the right

direction," she continued. "Among other
things, it would limit each petition to a single species, engage states by notifying their
wildlife agencies, and improve transparency by posting a lot of the science and
commercial data on the Web."
Contrary to many proposed rule makings of recent vintage, McDonald observed, IPAA was eager for the rule to take
effect quickly, but green groups were trying to delay it. "The environmentalists
have pressured USFWS for an extension
on the comment period," she reported.
"Unlike many other rule makings, this is
one I hope the service can improve on and
complete before the end the Obama administration."

Adverse Modification
Unfortunately, McDonald indicated
that not all pending ESA revisions were
as encouraging. On the matter of ESA critical habitats, she pointed to the USFWS's
proposed suite of rule makings on critical
habitat, adverse modification, and a draft
policy that related to the exclusion component.
"With this new authority, USFWS
would be able to designate critical habitat areas that are unoccupied and (do not
have) any biological features. Beyond that,
(the proposal would enable USFWS to
designate habitat based on) what potentially could become habitat under the prem-

Pausing before their panel at the Independent Petroleum Association of America's 2015 annual convention, Nov. 8-10 at the Ritz-Carlton New Orleans, are from left, IPAA Senior Vice
President of Government Relations and Political Affairs Dan Naatz, Executive Vice President Lee Fuller and Director of Government Relations Samantha McDonald. During her remarks, McDonald noted that the U.S. Fish & Wildlife Service had proposed an Endangered
Species Act regulation that could add transparency to the listing process and help staunch
litigation associated with the petition process.

108 THE AMERICAN OIL & GAS REPORTER

ise of climate change," McDonald warned.
"It does not define climate change as anything specific such as wildfire, hurricane
or drought. No matter where your operations are, it likely will affect you and any
critical habitat designations moving forward. This is a very big issue.
"One reason we have to be concerned
about a possible listing for the rusty
patch bumblebee is that the avoidance season is different from that of the northern
long-eared bat, for which the current rule
limits activity in June and July," McDonald detailed. "For the bumblebee, it is October and November."

On Federal Lands
During IPAA's cooperating associations meeting on the convention's second
day, McDonald also mentioned a memorandum from the Obama administration
regarding mitigation policy for numerous
agencies, including the National Oceanic and Atmospheric Administration and the
departments of Defense, Interior and
Agriculture. "Basically, it said there
would be no net loss to key ecosystems,"
she described. "That is a very difficult
threshold to meet."
According to Eric Dillé, government
relations director at EOG Resources, the
memorandum seeks to require compensatory mitigation payments ahead of any
project in such ecosystems. "So if you have
an environmental impact statement for
1,000 wells, you have to pay for the potential damage ahead of time, although you
may never drill all those wells," he explained.
"This is another attack on public lands
multiple use," Naatz characterized. "It is
a flat-out attack on the backbone of Western economies in states such as Wyoming
and Montana, which argue you can have
oil and gas alongside recreation within a
resource management plan. The very
concept of the ability to do all those
things on the same piece of property is
enormous."
The U.S. Bureau of Land Management's proposed revisions covering mineral royalties on federal lands arose
throughout the convention, including during a meeting of IPAA's Land & Royalty Committee. IPAA Director of Government Relations Mallori Miller noted that
IPAA had teamed with other industry
groups, including the Western Energy Alliance and American Petroleum Institute,
to file comments on BLM's three new onshore orders dealing with site security, and
oil and gas measurement.

American Oil and Gas Reporter - December 2015

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