Two new slides have appeared in Lynn Helms’ presentation packet — slides with information that he thinks indicate an attempt by the U.S. Fish & Wildlife Service to take over oil and gas permitting in North Dakota.
One is a map backing up his agency’s recent analysis that shows 83 percent of North Dakota’s oil and gas spacing units have some federal land ownership, surface and/or minerals.
Helms, director of the North Dakota Industrial Commission’s Department of Minerals, Oil and Gas Division, told North Dakota lawmakers in January, “It was really surprising to me when we did this analysis to find out that 83 percent of our spacing units have some federals lands in them, even though only 10 percent of the land in North Dakota is federal.”
The second slide contained an undated letter sent via email from a U.S. Fish and Wildlife Service official dealing with, among other things, the U.S. Endangered Species Act, which Helms thinks “is equal to or even worse than what could happen” to North Dakota’s oil industry and new-found state wealth should the U.S. Bureau of Land Management enact its proposed hydraulic fracturing rules.
Neither Helms’ office nor Fish and Wildlife could find the original email but from its contents it appears it was sent in the last half of 2012.
“Basically the desire of U.S. Fish and Wildlife is to force every drilling permit through their office, and have final drilling approval on every drilling permit. Using the whooping crane, using the golden eagles and the bald eagles and all of that. And there’s a new little bird that they are talking about (putting on the endangered species list) — it’s called the Sprague’s pipit. He lives over most of western North Dakota and he won’t cross roads, so he has the ability, if he gets listed, to make us stop building roads,” Helms said.
The email, from Jeff Towner, field supervisor for Ecological Services, U.S. Fish and Wildlife Service, in North Dakota, “really highlights the issue,” Helms said, pointing to a paragraph he highlighted in red on the slide, which reads, “Oil companies and any other entity must ensure that their activities do not result in a violation of the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and the Refuge Improvement Act. The only way an entity can be assured that they will not incur a violation from their proposed development in North Dakota is to receive a letter signed by me to that effect, or to apply for and receive a permit to take a protected species.”
Towner told Petroleum News Bakken that Helms’ accusation is “ridiculous and misinformed. Our agency has no such intention to become involved in the state permitting process, nor do we even have the authority to do so.”
But Helms sees things differently: “As you see in the letter,” he told the House Appropriations Committee in January … “our local director of U.S. Fish and Wildlife would like to have final approval on every drilling permit because we have whooping cranes that overfly the state.”
Towner’s letter did not actually mention whooping cranes, but the big birds’ annual migration through North Dakota is part of the federal agency’s jurisdiction, and mandate to protect.
Executive order gone wrong?
Helms is concerned about the danger Fish and Wildlife and other federal agencies pose to North Dakota’s oil and gas industry because of the longer permitting process demanded by federal law and regulation — a process that he says can lengthen permitting from its current 18 days with the state to well over a year. And although some oil companies will weather that delay and still drill, the restrictions demanded by the various federal agencies and the time delay can be costly, making North Dakota a less competitive place to do business.
He points to the impact of a presidential order released by the White House last year, “asking the federal agencies to … get together and figure out where their authorities were over oil and gas and hydraulic fracturing” as an instigator.
The order from President Barack Obama, “got everybody involved,” including the U.S. Geological Survey, or USGS, looking at earthquakes and everything else,” triggering a possible need for North Dakota to take legal action against one or more federal agencies, Helms said, should they make a move that results in a longer, more onerous permitting process for oil and gas activities.
The Executive Order, or EO, Helms referred to in his presentation was issued in mid-April, in what supporters described as an attempt by Obama to coordinate the efforts of many federal agencies so the federal government could speak with one voice on the topic of hydraulic fracturing.
The American Petroleum Institute issued a press release supporting the action.
The new EO, dubbed “Supporting Safe and Responsible Development of Unconventional Domestic Natural Gas Resources,” created a working group of 13 executive branch departments or agencies, with the option to throw in anyone else they deemed necessary.
The group was tasked with coordinating policies between the departments and agencies, sharing research and information on fracking, and in general guaranteeing the federal government could speak with one voice on the subject.
“We’re pleased that the White House recognizes the need to coordinate the efforts of the 10 federal agencies that are reviewing, studying or proposing new regulations on natural gas development and hydraulic fracturing,” Jack Gerard, API president and chief executive officer, said after attending an April 13 White House meeting on the EO.
“We have called on the White House to rein in these uncoordinated activities to avoid unnecessary and overlapping federal regulatory efforts and are pleased to see forward progress.”
But some political experts speculated that with the Environmental Protection Agency, or EPA, about to release new air pollution regulations for shale gas drillers and a draft permitting guidance for using diesel in oil and gas hydraulic fracturing, and with the Department of the Interior working on new fracking regulations for drilling on public lands, that the Obama administration made the move in an election year to tone down the activist tendencies of the executive branch — at least until the election was over.
Helms’ statement ‘ridiculous and misinformed’
So what does Fish and Wildlife’s Jeff Towner have to say about Helms’ accusation that he wants final approval on every drilling permit in North Dakota?
“It’s one of the most ridiculous and misinformed series of statements I have heard in my entire 34-year federal career,” Towner said Feb. 12 in response to Helms’ charge and related statements the state official made in front of the House Appropriations Committee in Bismarck.
In his letter to Helms, Towner expressed frustration with the North Dakota Industrial Commission, or NDIC, and its “nearly complete lack of understanding … of the Fish & Wildlife Service’s authorities” and, in a case cited in the correspondence, giving “a false impression that a simple screening of areas where piper plover critical habitat occurs is all that a company needs to worry about.”
In the case of issuing a permit to take a member, or members, of a protected species in the event such a thing occurred as a result of oil and gas activities, Towner said Fish and Wildlife provides comments and advice “on a daily basis for innumerable companies and federal permitting agencies. …In my nine and a half year tenure in this job, I have not received a single request from an oil company for a review of their proposed development and confirmation that their activities are in accordance with the federal laws we implement where there was not a federal nexus” — i.e. a federal licensing, permitting, or funding agency.
He also said he found it “increasingly difficult to understand” why Helms continues “to insist that there is some sort of effective system in place by which NDIC refers companies to the Fish and Wildlife Service and further that we are actually being contacted by companies, because neither point is accurate.”
And while Towner said he appreciated one instance of cooperation from NDIC via a “Mr. Holweger,” that “if NDIC wanted to be effective in advising companies of our program, and their need to coordinate their plans with the Fish and Wildlife Service, that you would routinely refer companies to this office so that we can advise them vis-ŕ-vis all relevant federal wildlife laws, regardless of the presence or absence of piping plover critical habitat.”
Fish and Wildlife starts reaching out
Towner began talking to industry two years ago in a series of meetings initiated by the North Dakota Petroleum Council.
Towner also sent a letter in late September to more than 300 oil, gas and pipeline operators, asking companies to “cooperate” with Fish and Wildlife Service, “so we can get a handle on what the impacts are and head off those impacts.”
In that letter it explains there is a “common misperception” among oil companies and their consultants about the “applicability of federal wildlife law.”
“It is a common misperception that if there is no federal nexus … and in particular, if activities occur on private land and/or with private minerals, that federal wildlife law does not apply. This is incorrect,” Towner wrote in the letter. “Any party is liable for the unauthorized take of any trust resources covered by the above laws, and it is incumbent on any party to ensure that their activities do not result in a violation of these laws, regardless of surface ownership, mineral ownership or involvement by a federal surface owner or licensing, permitting or funding agency.”
And best management practices, or BMPs, are “not a substitute for coordination and does not ensure that federal wildlife laws have been complied with,” he said.
In order for companies to protect themselves from “potential liability for activities without a federal nexus, and to assist in the long-term conservation of fish and wildlife resources,” Towner encouraged the oil and gas industry to “share their plans with us well in advance of project implementation.”
Fish and Wildlife Service would be “able to provide species information and recommendations to avoid, minimize, and where appropriate, mitigate for any impacts. Protection from liability for unauthorized take of federal trust species can only be obtained by written confirmation from this office, or issuance of a permit to take, as appropriate,” Towner said in the letter.
Any information that a company considers proprietary would be kept confidential, he said.
Towner said he recognized that “project-by-project reviews would involve significant workload implications” both for the companies and Fish and Wildlife, so he suggested a “programmatic approach,” which would be “more efficient and effective.”
Towner told Petroleum News Bakken that Fish and Wildlife is “urging the companies to share their development plans for all leases that are not yet developed, so that we can make an assessment, together with the companies, of the anticipated fish and wildlife impacts, and to cooperatively craft wildlife protection plans on a programmatic, forward-looking basis.”
In his email to Helms, Towner said his office had “recently begun discussions with one oil company in looking at their future development plans, and jointly preparing a wildlife conservation plan.”
He said hoped it would “serve as an example to other companies.”
However, Towner told Petroleum News Bakken earlier in February that although preliminary discussions have been held with a handful of companies, to date no oil and gas company has followed through with an agreement to work together.
