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About the “License to Kill” Imperiled Bats: Some Additional Context

Ohio Environmental Council, December 22, 2016

Nine oil and gas companies have applied with the U.S. Fish & Wildlife Service (FWS) for an “incidental take permit” (ITP) that would absolve them from legal liability under the Endangered Species Act (ESA) for the “taking” of bats, i.e., the killing or harming of bats (including through habitat destruction).

The permit would cover the gamut of construction and operation of fracking facilities and infrastructure, including: clearing forestland, well pad construction, pipeline construction, fracking, production operations, wastewater pits, noise and air pollution from compressor stations, and on and on.

As part of the permit review process, the nine oil and gas companies will have to submit a proposed “Habitat Conservation Plan” (HCP) that outlines mitigation measures that will theoretically reduce oil and gas impacts to the bat species in question. A draft HCP is not yet available, but will be submitted for public review and comment at a later date.The permit would cover operations in Ohio, Pennsylvania, and West Virginia and would provide exemption from the ESA for fifty years. Under the “no surprises rule,” the terms of the permit would remain valid for fifty years even if it were determined – say, five years into the permit – that the permitted activities were harming and killing significant numbers of bats.

The OEC feels strongly that HCP measures will be largely ineffective (not to mention, unlawful) in this scenario. Here are some important reasons why:

Even without the added threats of fracking, our bats are already in very serious trouble.

Bat populations have declined dramatically in recent years in the Northeast and Midwest. Pressures such as habitat loss and the ravages of the fungal disease “white-nose syndrome” are chiefly to blame for these severe population drops. According to the FWS, white-nose syndrome is the cause of “the most precipitous decline in North American wildlife in our history.” Recent studies have estimated an 88% decrease in the total number of hibernating bats ‒ with 98% and 72% declines in hibernating northern long-eared and Indiana bats, respectively ‒ and have concluded that these declines are due to the combined impact of white-nose syndrome and human-induced environmental stressors.

Oil and gas activities pose significant risk of harm to bat species.

It is well known that oil and gas wastewater pits can often act as death traps that attract bats. Once attracted, bats may become exposed to toxic chemicals, or entangled in netting covering the pit’s surface. In addition, oil and gas operations degrade, destroy, and fragment forest habitat that provides important areas for foraging and roosting. Continuous air, light, and noise pollution from compressor stations and other production facilities can disrupt breeding, feeding, and sleeping. Fracking-related spills and contamination also present risks to streams and other bodies of water that bats rely on.

A fifty-year ITP for such a broad range of oil and gas activities over such a broad geographic region is unreasonable and unlawful.

The Endangered Species Act (ESA) prohibits the issuance of ITPs if the proposed taking will “reduce the likelihood of survival and recovery of the species in the wild.” 16 U.S.C. § 1539(a)(2)(B)(iv). Further habitat loss and fragmentation from oil and gas activities could reduce the likelihood of the survival and recovery of these already dramatically impacted species. The issuance of an ITP for take of these bats would consequently violate the ESA and the FWS implementing regulations, and should be denied. Our bats are in trouble. FWS should do everything it can to protect them from further harm.

Why are we asking you to take action now?

FWS has initiated a review of the ITP application under the National Environmental Policy Act (NEPA). NEPA requires federal agencies to conduct environmental reviews of proposed government actions that could have a significant impact on the environment (in this case, the issuance of the ITP in question). The NEPA process is multi-staged, and includes a number of formal public comment opportunities.

We are now in the initial public comment period, called the “Scoping” period. Public comments are especially valuable at this stage. This is the ground floor of the planning and review process, when FWS will take ideas from the public to help chart its course in thinking about the permit’s environmental repercussions.

Scoping comments are due December 27th. On that date, we will file your submitted petition signatures and comments along with our organizational comments in FWS’s official docket. We will keep you apprised of future public comment opportunities and any major developments as they arise.

You can access the official docket here for more information.

Our bats need your help. Thank you for taking action to protect them.