Editor & Publisher, Marcellus Drilling News (MDN)
The USFWS issues a midnight ruling and puts the Rusty Patched Bumble Bee on the endangered species list, impacting drillers and mid-streamers.
Back on October 3, 2016, I posted a story on MDN about the potential listing of endangered species, which impacts drillers and midstreamers. Most notably in the northeast has been the northern long-eared bat. The U.S. Fish and Wildlife Service (USFWS) is responsible for recommending and listing varies species, empowered to do so under the Endangered Species Act (ESA).
USFWS admitted the long-eared bat is threatened because of something called white nose syndrome, which has nothing to do with habitat destruction. Yet drillers and midstreamers are hamstrung with regulations to “save the bats”, even though they are not the ones causing harm to the bats. Now, the agency has done the same thing with the Rusty Patched Bumble Bee, one of 46 species of Bumble Bees in the US., taking another whack at oil and gas and any other type of development.
It’s a typical Washington solution: “fix” the wrong problem. The USFWS has done it again, this time with the lowly bumble bee. listing the Rusty Patched Bumble Bee (Bombus affinis) as “endangered” under the ESA. The Rusty Patched Bumble Bee is found in the Midwest and eastern parts of the country (see map below). It will have significant impacts on drillers and mid-streamers, according to the lawyers at top international law firm Locke Lord (written before the actual listing).
If enacted, the proposed rule would make the rusty patched bumble bee the first bee species listed as federally endangered in the United States. The listing could have significant implications for developers of both energy and real estate projects as well as those in other industries…
Numerous Causes for Decline
Once broadly distributed across a geographic range that included 28 states along the eastern U.S. and upper Midwest, according to a 2016 Species Status Assessment the rusty patched bumble bee’s abundance and distribution has declined by about 91% since the mid to late 1990s. Since 2000, the bee has only been reported in 12 states: Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin. While the exact cause of the rusty patched bumble bee’s population decline is uncertain, the Service attributes it to a collection of factors including pathogens, pesticides, habitat loss and degradation, and the dynamics of small populations….
Implications of a Listing
If listed as endangered [now done], “take” of the rusty patched bumble bee without a permit would be prohibited. “Take” is defined under the ESA to include harassing, harming, hunting, capturing or killing any member of the species. When listing a species, the ESA also requires the Service to designate critical habitat for the species “to the maximum extent prudent and determinable.” The Service indicated in the proposed rule that the biological needs of the rusty patched bumble bee are not sufficiently well known to permit identification of critical habitat at this time. However, that does not mean that rusty patched bumble bee habitat would not receive some protection under the ESA. By rule, the Service interprets the term “harm” in the ESA’s definition of “take” to include “significant habitat modification or degradation [not limited to critical habitat] where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
The rusty patched bumble bee occurs in a variety of habitats including prairies, woodlands, marshes, and agricultural landscapes. As the Service highlighted in the proposed rule, unauthorized modification, removal, or destruction of such habitat where the rusty patched bumble bee is known to occur, including both the vegetation in which it feeds and pollinates and the soils in which it nests and overwinters, could result in a violation of the ESA. Violations could also result from the discharge of chemicals or fill material into wetlands in which the rusty patched bumble bee occurs, or the release into occupied habitat of biological agents such as herbicides, pesticides, or other chemicals that attack any life stage of the bee.
Accordingly, even though development and habitat loss are not identified as the principal reason for the declining status of the rusty patched bumble bee, if the listing is finalized many activities associated with the development, operation and maintenance of energy, industrial and real estate projects could be at risk of causing a take and violating the ESA if those activities take place in or near occupied rusty patched bumble bee habitat. Even though its range has been drastically reduced over the last 20 years, because the rusty patched bumble bee is known to occur in 12 states, a decision by the Service to list the species would have significant implications for a broad range of industries. Industries as diverse as timber harvesting, wind energy development, and oil and gas exploration (including fracking), and linear energy and infrastructure projects such as pipelines, transmission lines and highways, are all likely to be impacted.
Avoiding the Sting of a Listing
If the proposed listing is finalized [now done], developers and operators of these and other projects would be required to avoid all unauthorized take of rusty patched bumble bees to comply with the ESA. The first step would be to determine whether a particular project is located in or would impact known rusty patched bumble bee habitat. That would involve consultation with the Service, but also could involve costly surveys which might be subject to seasonal timing requirements, potentially delaying the start of construction. If the bee or its habitat are present, avoidance may be difficult or impossible depending upon the nature of the activity and the location of the habitat. That could result in a need to obtain take authorization, most likely through a Section 7 consultation and incidental take statement, in the case of projects with a federal nexus, or a Section 10 incidental take permit for purely private projects. The take authorization process is typically extremely lengthy and costly, particularly for newly listed species, and often requires restrictions on development and operations that drive up the cost of a project and/or complicate operation or maintenance. It also requires identification and implementation of mitigation projects, typically requiring preservation or restoration of habitat, to offset the impact of the take. These projects further add to the cost of compliance and can be a source of additional delay if suitable mitigation strategies or opportunities cannot be identified…
As the ignominious rule of this administration draws to a close on January 20, government agencies that are part of the Executive Branch, such as the EPA and the USFWS, continue to issue “midnight” rulings and edicts that will have tragic consequences.
The USFWS are a (police) force unto themselves, kind of like the old East German Stasi. The agency is responsible for recommending and listing varies species, empowered to do so under the Endangered Species Act (ESA). They have way too much power under dictatorial rulers like Obama. With just a few days left in Obama’s reign, they’ve pulled the trigger and done it.
The legal beagles at the energy law firm Vorys provide this quick summary of the listing, offering their perspective on the now adopted regulations:
On January 11, 2017, the U.S. Fish and Wildlife Service (“Service”) published a final rule listing the Rusty Patched Bumble Bee as an endangered species under the Endangered Species Act of the 1973 (“ESA”). Pursuant to Section 4 of the ESA, the Service is required to make listing decisions – relying on the best scientific and commercial data available – based on (a) the present or threatened destruction, modification or curtailment of habitat, (b) species overutilization, (c) disease or predation, (d) inadequate existing regulatory mechanisms, or (e) other natural or manmade factors affecting the species continued existence. The Service’s decision to list the bee as endangered is based on a study of the species’ overall viability in which the Service found that the resiliency, representation, and redundancy of the species have all declined since the late 1990s and are projected to decline over the next several decades. The study showed an 88 percent decline in bee populations along with a decrease in range and distribution since 2000. The Service sites several past and ongoing stressors as likely causes of the decline in the bee’s population, including disease, pesticides, and habitat loss.
The final rule becomes effective on February 10, 2017.
The USFWS issued an ebullient press release announcing the latest thuggish move, calling the listing a “race against extinction” (nothing like over-the-top hyperbole to get the juices flowing):
Just 20 years ago, the rusty patched bumble bee was a common sight, so ordinary that it went almost unnoticed as it moved from flower to flower, collecting nectar and pollen. But the species, now balancing precariously on the brink of extinction, has become the first-ever bumble bee in the United States — and the first bee of any kind in the contiguous 48 states — to be declared endangered.
The endangered designation is made by the U.S. Fish and Wildlife Service under the Endangered Species Act for species that are in danger of becoming extinct throughout all or a portion of their range. Service Midwest Regional Director Tom Melius said, “Our top priority is to act quickly to prevent extinction of the rusty patched bumble bee. Listing the bee as endangered will help us mobilize partners and focus resources on finding ways right now to stop the decline.”
Here is the official listing, found in the January 11, 2017 Federal Register:
Editor’s Note: Jim is correct to focus on this stinging of the industry. The ESA is one of the most abused pieces of legislation imaginable and the listing of various species has endangered the ability of the human species to house, feed and warm itself as we spend billions of dollars in irrational expenditures trying to save obscure species with questionable policies. Meanwhile, no one notices how some species are encouraged by development and how many species simply disappear in the natural course of things. The ESA is a club in the hands of anti-growth groups and individuals who want to play God and stop everything.