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March 04, 2013
Special rule for polar bears

The U.S. Fish and Wildlife Service (FWS) has issued a final special rule that maintains protections for the polar bear. These protections have been in effect since the species was listed as threatened in 2008.  The action results from a U.S. District Court order that remanded an earlier special rule the FWS published in December 2008.

The court found that the FWS failed to conduct a required National Environmental Policy Act (NEPA) analysis for that rule.  NEPA analyses must include assessments of alternatives to a proposed federal action that may affect the environment or a protected species, including taking no action.  After completing the NEPA analysis as ordered, the FWS has returned with essentially the same regulation that was remanded by the court.

Marine Mammal Protection Act

Under Section 4(d) of the Endangered Species Act (ESA), the FWS may develop specific prohibitions and exceptions tailored to the particular conservation needs of a threatened species.  In such cases, the FWS issues a special rule that may include some of the prohibitions and authorizations set out in the ESA, but which may also be more or less restrictive than the ESA general provisions.  Specifically, the current Section 4(d) special rule adopts existing conservation regulatory requirements under the Marine Mammal Protection Act (MMPA) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as the primary regulatory provisions for the polar bear rather than the comparable ESA protections. 

The difference lies in different definitions of take under the two statutes.  Under the ESA, for non-Federal actions, a take may not appreciably reduce the likelihood of the survival and recovery of the species in the wild; for federal actions, there may be no likelihood that the activity will jeopardize the continued existence of the species.

The standard for issuing incidental take under the MMPA is ‘‘negligible impact’’– defined under the statute as an impact that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.  Additionally, the MMPA specifies that incidental take may be authorized only for ‘‘small numbers’’ of marine mammals.

“The MMPA’s definition of ‘take’ is, overall, more protective,” states the FWS.  “Thus, we have determined that applying the provisions on take of a polar bear as defined under the MMPA is appropriate for the species.”

O&G activities

The primary concern underlying FWS’s special rule is the interaction of the polar bear and oil and gas development in the Arctic, particularly since the species’ summer habitat is reportedly diminishing from the warming effects of climate change.  The FWS has partially addressed the problem by requiring that energy companies obtain MMPA permits that outline the steps the applicant must take to minimize effects on polar bears, such as garbage disposal and snow management procedures to reduce the attraction of polar bears, an outlined chain-of-command for responding to any polar bear sighting, and polar bear awareness training for employees.

Additional mitigation measures are also required on a case-by-case basis, depending on the location, timing, and type of specific activity.  For example, the FWS says it may require trained marine mammal observers for offshore activities; preactivity surveys (e.g., aerial surveys, infrared thermal aerial surveys, or polar bear scent-trained dogs) to determine the presence or absence of dens or denning activity; measures to protect pregnant polar bears during denning activities (den selection, birthing, and maturation of cubs), including incorporation of a 1-mile buffer surrounding known dens; and enhanced monitoring or flight restrictions.

According to the FWS, data provided by the required monitoring and reporting programs in the Beaufort Sea and the Chukchi Sea show that these types of mitigation measures have successfully minimized effects on polar bears.

FWS’s final special rule was published in the February 20, 2013, FR.

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