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Final F&WS rule allows non-lethal incidental take to continue
Alan Bailey for Petroleum News
The U.S. Fish and Wildlife Service has published regulations allowing the unintentional minor disturbance of polar bears and walruses during oil industry activities in the Beaufort Sea and the adjacent northern coast of Alaska for a period of five years, beginning on Aug. 5, 2021. The new regulations represent a continuation, albeit with modifications, of regulations that were applied for five years from Aug. 5, 2016. Referred to as incidental take regulations, the rules do not authorize any lethal take of the animals.
Fish and Wildlife says that in June 2020 the Alaska Oil and Gas Association, on behalf of its members and other participating companies, had requested the preparation and issuance of the new regulations.
“The new regulations allow for oil and gas development to continue on the North Slope for the foreseeable future,” said U.S. Sen. Lisa Murkowski, who had secured a commitment from Fish and Wildlife to publish the new regulations in a timely manner. “I thank the Fish and Wildlife Service, in particular their career staff, technical experts, and Assistant Secretary Estenoz, for conducting a robust public comment period and meeting the August deadline that we had previously established.”
Permitting needed Although, in broad terms, the regulations do allow the incidental take of the relevant marine mammals, the regulations do not remove the need for companies to obtain the relevant permits for proposed operations. For example, permits for industrial activities in the region covered by the new regulations are required from agencies that may include the Bureau of Ocean Energy Management, the Bureau of Safety and Environmental Enforcement, the Bureau of Land Management and agencies of the State of Alaska. Permitting criteria include measures for environmental protection. Because polar bears are protected under the terms of the Endangered Species Act, any potential impact on the bears is subject to specific scrutiny during the permitting of industrial activities.
In addition, a company planning to conduct industrial activities in the region covered by the new regulations will apply to Fish and Wildlife for a letter of authorization for the incidental take of polar bears and walruses. Although an agency authorization for the incidental take of marine mammals is not strictly a legal requirement, a company will always apply for an authorization, since disturbing the animals without an authorization would constitute a violation of the Marine Mammal Protection Act.
The issuance of a letter of authorization involves the review and approval of the methods that the applicant will use to prevent significant disturbance to the protected animals. Methods typically include the use of marine mammal observers and the establishment of rules for actions to be taken if animals are observed at locations where they may be disturbed.
Environmentalist concerns On Aug. 4 the Center for Biological Diversity issued a statement arguing that the new regulations do not adequately consider the harm that oil and gas activities can cause to polar bears’ ability to hunt, den and travel. Walruses are also sensitive to disturbance - forced ashore by the loss of summer sea ice, walruses can be trampled to death in stampedes when startled by noise, the Center for Biological Diversity said.
“It’s disturbing to see the Biden administration letting oil companies continue their assault on polar bears, walruses and our climate,” said Kristen Monsell, an attorney with the Center for Biological Diversity. “The Arctic should be protected, not turned into a noisy, dirty oil field.”
- ALAN BAILEY
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