ENERGY POLICY

FWS moves to regulate bird kills from oil wells, power lines

The Obama administration is considering a new program to permit and mitigate accidental bird kills from drilling pits, gas flares, power lines and communications towers, a move aimed at reducing major sources of avian mortality that was cheered by bird advocates.

The Fish and Wildlife Service today released a notice of intent to prepare a programmatic environmental impact statement that could establish a permitting regime under the Migratory Bird Treaty Act requiring that such incidental take be mitigated and potentially offset by habitat restoration or protection.

The service plans to take 60 days of public comments and will hold open houses in Sacramento, Calif.; Denver; St. Louis; and Arlington, Va., in the coming months. It has also scheduled a July 8 webinar to discuss the proposal.

At issue is how the agency enforces the 1918 migratory bird law, which prohibits the harming of any of 1,027 covered bird species, even, according to some interpretations, if the harm is accidental.

FWS already permits hunting of migratory birds as long as harvest levels allow bird populations to sustain themselves. It also permits the killing of certain migratory species that prey on other wildlife, including blackbirds, cowbirds, grackles, crows and magpies.

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But there is currently no mechanism for industry sectors to obtain the right to unintentionally kill migratory birds, which happens frequently when birds collide with or are electrocuted by power lines, for example, or when birds try to land in oil and gas disposal pits.

FWS said it wants to create legal assurances for companies that face liabilities under the migratory bird law, while offering a means for impacts to be mitigated.

The proposal is still in a very early stage, so it is unclear whether it will extend to the wind sector or cover building collisions, two other major sources of bird mortality.

"An incidental take authorization program alone will not address all of the conservation needs of bird populations, but it could provide a framework to reduce existing human-caused mortality of birds and help avoid future impacts by promoting practical actions or conservation measures that will help industries and agencies avoid and minimize their impacts on birds," the agency said in its notice.

Specifically, the issuance of permits "could create a regulatory mechanism to obtain meaningful compensatory mitigation for bird mortality that cannot be avoided or minimized through best practices or technologies."

Such mitigation, particularly if implemented on a watershed or landscape basis, could significantly benefit bird populations through funding of habitat replacement, restoration or acquisition, the agency noted.

But the agency said it does not anticipate all businesses will participate, nor does it intend to increase its enforcement of entities that continue to unintentionally kill migratory birds.

The agency's past enforcement under MBTA has focused only on projects that "chronically kill birds," and prosecution is typically only sought after notifying industry of its concerns.

The permitting regime, if implemented, would only focus on sectors whose impacts on migratory birds are well-known and where practical avoidance measures are possible, FWS said.

Those could include oil, gas and wastewater disposal pits, which birds sometimes mistake for ponds and try to land on, resulting in drowning, exhaustion or fatal exposure to oil. Closed containment systems or netting can prevent this from happening.

It may also cover methane flaring, which poses a burning or entrapment hazard at oil and gas sites; communications towers, a collision risk particularly for birds migrating at night; and power lines, a major collision and electrocution risk.

The agency's PEIS will also consider a memorandum of understanding with other federal agencies to consider impacts to migratory birds in their actions and require mitigation, FWS said. The agency may also craft voluntary guidance for industry sectors on best operating or technological approaches to avoid or minimize incidental take.

The National Audubon Society praised the government's move, saying it could reduce some of the estimated "millions of grisly and unnecessary bird deaths" that occur each year.

"Every day, countless death traps across America needlessly kill birds in horrible ways, from electrocution to drowning in oil," said Audubon President David Yarnold. "In many cases, the tools and technology to save birds have already been developed. It's time to make sure everyone plays by the same rules."

The administration has been considering such a permitting regime for at least a year.

According to multiple sources, FWS Director Dan Ashe announced plans to develop incidental take permits for migratory birds in a keynote speech last June before the Avian Power Line Interaction Committee (APLIC), a coalition of electric utilities and FWS that develops guidance for minimizing avian electrocutions and collisions with power lines.

Utilities believe a permitting regime holds promise, particularly if it offers companies the ability to obtain programmatic permits covering their entire system.

MBTA was passed primarily to stop the "indiscriminate slaughter" of migratory birds by market hunters and others, according to FWS.

While it clearly prohibits intentional take, federal circuit courts have come to different conclusions over whether it bars the accidental taking of birds by otherwise legal oil and gas production facilities, wind turbines and telecommunications towers, logging operations, and airports, according to a March 2014 legal review by attorneys for Crowell & Moring.

A bill introduced this year by House Republicans would exempt energy companies and others that unintentionally kill or harm migratory birds from criminal penalties under MBTA (E&ENews PM, Jan. 23).

Twitter: @philipataylor | Email: ptaylor@eenews.net

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