|
Court requires IHA revisions Judge Sharon Gleason mostly upholds National Marine Fisheries Service IHA for Apache but requires a change on take estimates Eric Lidji For Petroleum News
The federal District Court in Alaska is giving the National Marine Fisheries Service and a coalition of environmental groups three weeks to propose how the agency should handle a regulatory inadequacy in its oversight of an ongoing Apache Corp. seismic campaign.
In a May 28 ruling, District Court Judge Sharon Gleason partially upheld an appeal of the incidental harassment authorization that the NMFS issued to Apache for its work in Cook Inlet last year. The appeal came from the Native Village of Chickaloon, the Natural Resources Defense Council, the Center for Biological Diversity and the Center for Water Advocacy. Gleason gave the parties 21 days to jointly or separately file motions.
The motions are required because the IHA under appeal expired earlier this year, when the NMFS issued an amended IHA for the work Apache plans to conduct this year.
An IHA spells out mitigation measures a company must take to minimize wildlife disturbance. The authorization governs how many animals within a species a company can “take” during its work. Although the definition of “take” varies under the context of different federal laws, it generally refers to disturbing or attempting to disturb a certain animal accidentally through industrial work. The disturbance can range from simple harassment to death, but is defined more specifically for each individual authorization.
The NMFS can allow for an “incidental take” of a “small number” of a given species associated with regular activities, but only under certain situations and to certain degrees.
Before allowing a company to go ahead with activities, the NMFS must determine what take would have a “negligible impact” on the population of each effected species.
For its determination of the proposed Apache application, the NMFS allowed an incidental take of 30 Beluga whales per year for the three-year seismic program, and defined harassment as being industrial noise levels exceeding 160 decibels.
Generally, Gleason upheld the IHA on the majority of the claims made against it by the coalition of environmental groups, but she upheld their appeal in one crucial regard.
What is a “small number?” In its first claim, the plaintiffs said the NMFS violated the Marine Mammals Protection Act by wrongly defining several key terms involved in determining “incidental take.”
First, the plaintiffs claim the NMFS used identical factors to analyze “small numbers” and “negligible impact” for the Beluga whale population in Cook Inlet. The NMFS disagreed, saying it used two distinct analyses to define each term for the species, but listed them under the same heading in its ruling, which may have caused confusion.
Specifically, the NMFS decided that the incidental take Apache proposed for its operations would account for some 10 percent of the 284 total Beluga whales believed to live in the Cook Inlet, and therefore represented a “small number” as defined by the law.
As for “negligible impact,” NMFS said it expected no “injuries or mortalities” and only minor harassment as a result of the exploration work, largely because the whales would be dispersed at the time of year when Apache planned to conduct its seismic activities.
The court sided with the NMFS on the claim.
Second, the plaintiffs also accused the NMFS of gauging “small numbers” incorrectly.
Specifically, the NMFS said it expected the actual take to be smaller than the allowed take because of the proposed mitigation measures Apache would be required to take during its work, but the plaintiffs believe the NMFS defined what would represent a “small number” of the Beluga whales before it actually considered the mitigation measures.
In other words, the plaintiffs believe the 10 percent figure was somewhat arbitrary, while the NMFS said it came up with the figure after considering available information about the Beluga whales and the nature of the activity that Apache proposed to undertake.
Because of that the court again sided with the NMFS.
The upheld point of appeal Third, in addition to challenging the allowed take, the plaintiffs also challenged the estimated take, or the amount of whales Apache can reasonably be expected to harass.
Specifically, the plaintiffs said the density estimates failed to consider the whales swimming below the surface and those missed by human error. The NMFS challenged the claim both procedurally and logistically. The NMFS said the plaintiffs failed to bring up the point in their comments on the application and therefore waived it on appeal. And the NMFS said the density estimate was somewhat irrelevant because the incidental take allowance would limit how many whales Apache could harass, regardless of density.
The court challenged the NMFS on this point. The same factors keeping the NMFS from getting an accurate population count — such as the opacity of the waters in Cook Inlet — would theoretically keep the monitors Apache used from being able to gauge how many whales are in the vicinity and being harassed by activities, according to the court.
The court noted that the actual population of Beluga whales often differs from early estimates by one half or one third. The court also noted that the NMFS gave Apache more lenient regulations for nighttime monitoring activities than for daytime monitoring.
As a result, the court called the incidental take calculations “arbitrary and capricious.”
The court required all the parties to the case to file proposals within 21 days.
What is harassment? Fourth, as well as the challenging size of the take, the plaintiffs also challenged the criteria the NMFS used to determine “harassment,” a sound level of 160 decibels.
The issue came down to various reviews of the available scientific literature, and the court ultimately decided that the NMFS made a “reasoned decision” about the criteria.
The plaintiffs also challenged how the NMFS determined the impact Apache’s proposed activities would have on the whale population and on subsistence use in the region, but in both instances the court said the NMFS followed established criteria for both decisions.
Violating the ESA? Next, the plaintiffs claimed the NMFS violated the Endangered Species Act.
For each application, the NMFS must use expert opinion to determine whether a proposed activity would harm a listed species or its habitat, such as the Beluga whale.
First, the plaintiffs said the law requires the NMFS to consider how a given activity would impact the “recovery” of a listed species, not simply its “survival.” The NMFS said it considered recovery as part of its consideration of survival and found that the proposed activity was unlikely to impact the recovery of the Beluga whale population.
The court sided with the NMFS.
Second, the plaintiffs contend that the Beluga whale is “already in jeopardy,” which would mean that any activity that causes additional harm to the species would be illegal.
The NMFS said the plaintiffs misrepresented the relevant statutes.
The court said the law didn’t require the NMFS to determine whether a species is in jeopardy and the NMFS determination appropriately considered the state of the whales.
However, third, the plaintiffs said the facts in the determination failed to support the conclusion. Specifically, if the NMFS believes the proposed seismic work would disrupt almost a third of the Beluga whale population in some way, how could it then conclude that the work would have no consequences on the survival or recovery of the species?
The NMFS claims that its determination made no such claim about the disruption and the court agreed with the explanation the NMFS gave for the apparent misreading of the law.
Fourth, the plaintiffs said the NMFS did not use the best available science in determining the appropriate sound threshold for the whales and it failed to consider research into the impact of seismic activity on cod in Norway, but the court sided with the NMFS on both.
Finally, the plaintiffs claim the NMFS actually allowed three times the take it considered in its analysis, because of a quirk in studying a three-year program. The court disagreed.
The plaintiffs also claim the NMFS violated the National Environmental Policy Act.
The NEPA requires a federal agency to conduct an environmental impact statement for some activities, and a smaller environmental assessment for others. The NMFS conducted the EA, and determined that it did not need to conduct an EIS of the program.
The plaintiffs said the NMFS should have conducted an EIS, and that even if turned out the EIS wasn’t required, the NMFS failed to do its due diligence to determine as much.
The plaintiffs made this argument based on five points, all of which the court denied.
| 