Caution: Wildlife Crossing – Hydraulic Fracturing and Endangered Species


Hydraulic fracturing, or “fracking,” has become a hot button issue for environmental groups.  Most reported environmental issues pertaining to fracking involve water use and water and air quality.  However, over the past few years there has been increased attention to the intersection of fracking and the Endangered Species Act (ESA).

In 2011, the U.S. Fish and Wildlife Service (Service) finalized a settlement agreement with two national environmental groups regarding the timely listing of species as endangered or threatened under the ESA.  The result of this “Listing Settlement” is that more than 250 species throughout the United States are being considered for listing at a quicker pace.  Once a species is listed, “take” of the species is prohibited and subject to enforcement.  Take can be lethal (e.g., poisoning, collisions) or sub-lethal (e.g., habitat fragmentation).  As the use of fracking expands and more species are listed, the chance for overlap with endangered species increases.

In Michigan, the Bureau of Land Management’s issuance of oil and gas drilling permits has been the subject of litigation for failure to consult under ESA Section 7 for the impacts to Karner Blue Butterfly and Indiana Bat.  State and federal guidelines for the Indiana bat require presence/absence surveys and that activities, in some instances, be limited to certain months of the year to avoid take.  At least two other species of wide-ranging bats may be listed in the next couple of years.  Recent Service proposals to list several mussels and at least one fish species cite to fracking threats such as water withdrawals, sedimentation, and land disturbance. It will be important for the oil and gas industry to monitor these listings and identify where species may require further consideration.

In this same vein, the oil and gas industry has supported some innovations in conservation.  A General Conservation Plan is currently being processed for oil and gas activity in the American Burying Beetle range.  The Dunes Sagebrush Lizard (DSL) and the Lesser Prairie Chicken (LEPC) are species with Listing Settlement deadlines potentially impacted by fracking in West Texas.  The Texas Conservation Plan (TCP) provides a two-pronged approach to the DSL for the oil and gas industry – conservation measures to ward off a listing and take authorization should the DSL be listed.  The Service relied on the TCP in its determination not to list the DSL.  The no-list decision and the Service’s reliance on the TCP is currently the subject of a lawsuit in federal district court in D.C. 

The LEPC listing decision is due March 31, 2014.  In November 2012, the Service announced its proposed rule to list the LEPC as threatened and subsequently proposed a 4(d) rule based upon a conservation plan developed by the five-state wildlife agencies within the LEPC range.  Included in this plan is coverage for oil and gas activities.  The oil and gas industry has made several other efforts to address a potential listing of the LEPC.  Most recently, in February 2014, the Service approved a Candidate Conservation Agreement with Assurances for the oil and gas industry.  Similar efforts will likely follow in the West with the potential listing of the greater sage grouse.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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