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Oil and Gas Update

OIL AND GAS INDUSTRY THINKING LONG TERM; SEEKS 50-YEAR “TAKE” PERMIT UNDER ENDANGERED SPECIES ACT

December 20, 2016

By: Robert G. McLusky

The oil and gas industry is working with the U.S. Fish & Wildlife Service (“USFWS”) to obtain an “incidental take” permit to cover potential effects of industry activities on five bat species located in Ohio, Pennsylvania and West Virginia. Section 9 of the Endangered Species Act prohibits unpermitted “takes” of protected species, but authorizes the USFWS to issue permits for “takes” incidental to otherwise lawful activities. To obtain an “incidental take permit,” applicants must generally implement “Habitat Conservation Plans” or “HCPs” to offset the expected harm from their activities.

Nine oil and gas companies have together sought an “incidental take permit” lasting 50 years for activities incident to pipeline construction and oil and gas development, drilling and pipeline construction activities. The permit would authorize “takes” of two currently protected bat species (the endangered Indiana bat and the threatened Northern Long-eared bat) as well as three species that may be listed in the future (Little Brown bat; Eastern Small-footed bat; and Tri-colored bat).

By Federal Register Notice of 11/25/16, the USFWS announced its intention to prepare an Environmental Impact Statement for the proposed issuance of the permit. The National Environmental Protection Act (NEPA) requires federal agencies to conduct environmental assessments of the impact of federal projects or permits. The USFWS is at the start of the NEPA assessment process, and its Federal Register notice advises that it is seeking public comment on the eventual “scope” of its EIS.

More information on the proposed permit is available here:

https://www.fws.gov/northeast/ecologicalservices/hcp/oghcp.html

https://www.fws.gov/northeast/PDF/NEPAProcessFlowChart.pdf

This article was authored by Robert G. McLusky.

 

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