Even though every oil well in North Dakota must be permitted by the North Dakota Industrial Commission, or NDIC, the state of North Dakota has no jurisdiction over federal wildlife laws and has no authority to require companies to comply with such federal laws.
Alison Ritter, public information officer for the Oil and Gas Division of the Department of Mineral Resources within NDIC, says the division cannot impose federal wildlife requirements in its permitting process and says that it is the responsibility of the operator to ensure its activities will not violate federal wildlife laws.
However, Ritter says the Oil and Gas Division encourages operators to consult with the U.S. Fish and Wildlife Service as part of their due diligence. “We encourage it but it’s not a requirement on our part,” she says. “It’s all the responsibility of the operator as to who they need to contact and where. I think that may be the big thing that may be missed.”
If an operator is in violation on the federal side, Ritter continues, then that is simply something the operator will have to take up with the federal agency. “We want them to talk to Fish and Wildlife. We want them to get that letter. We want them to get that approval. We don’t want them going into an area and encroaching on any species. Nobody wants that. We want them to do everything they need to do on a federal level, but we can’t require them to do what they need to do on a federal level.”
Adding time to the process?
Ritter says that while the State of North Dakota tries to make the permitting process thorough, at the same time the state tries to make that process operator friendly. “There’s that fine balance you have to walk.”
On the federal permitting side, she says, there are “a lot more hoops,” and it takes more time to get a federal drilling permit than a state drilling permit. Adding an additional step of getting a letter from Fish and Wildlife, Ritter says, “is only going to increase that permitting process time.”
Ritter says that DMR Director Lynn Helms has expressed concerned that if one person has to approve every individual drilling permit, then that could significantly slow down the permitting process. “How much more time is the federal government going to tie up with the process if one person needs to look at every single permit,” Ritter says. And there is the question of whether Fish and Wildlife has sufficient staff to evaluate each individual permit application.
Jeff Towner, who is the ecological services field supervisor for Fish and Wildlife in Bismarck, says his agency does not have sufficient staff to review individual development proposals, but he adds that reviewing each application is not an approach he is suggesting. Instead, Towner says, the approach is to evaluate operations at a program level. “The conservation benefits are actually greater when we look at these things in a programmatic way.”
Towner says he has sufficient staff for that type of programmatic approach. In addition, he says, that type of approach is actually a priority for his office because, as he says, if a company is willing to work with his office and allow his office to look at the company’s plans of development and lease holdings across the board, “then I think we can have some conservation gains and we can minimize the impacts to the companies and the impacts to us in terms of the time that would have to be invested.”
Alaskans say “beware”
After part one of this article appeared in the Feb. 17 edition of Petroleum News Bakken, the newspaper’s headquarters in Anchorage, Alaska received a number of phone calls praising Helms for being willing to stand up to Fish and Wildlife.
One State of Alaska agency official said, “North Dakota ought to give him a medal, because if you want to see unnecessary delays designed to stop oil and gas development or drastically increase its cost, get EPA or Fish and Wildlife involved. … This Towner sounds like he’s just trying to do his job, but what about the guy who takes his place? There are a lot of anti-development folks in both EPA and Fish and Wildlife. Good science, the facts, are meaningless to them.”
In preparation for this article Petroleum News Bakken interviewed three well-respected individuals who have done oil and gas permitting for at least a decade each in Alaska and are considered experts in their field. Like the people who called in praising Helms, they did not want to be identified in this article, but they all said Helms was right to be concerned.
One of the three, a long-time, solid source for Petroleum News in Alaska, had this suggestion for companies doing business in the Bakken play in North Dakota and Montana: “The wildlife official (Towner) is correct. Including federal wildlife reviews of planned activities, and mitigating plans to avoid breaking the law and harming the environment and wildlife is an excellent idea. What we do is hire people who have worked in federal agencies; who are familiar with applicable federal law and task them with the responsibility. Frankly, it’s less scary than dealing with agency employees who may have hidden agendas. … We see way too much of that.”
Another said he had “never seen federal involvement advance projects … to help them meet target dates, or speed things up. In almost every case, it meant slowing things down by weeks … sometimes by months or years, especially when a federal agency is the lead on permitting.”
The third expert said he would advise taking Towner up on his offer: “It’s a free consulting service and it’s a sign of good faith. … If it doesn’t work out, hire someone who can do it for you. An ex-U.S. Fish and Wildlife Service enforcement supervisor, for example.”
—Mike Ellerd & Kay Cashman
