Northern Pintail by Owen Deutsch

(Washington, D.C., January 3, 2013) According to a recently released policy document from the Interior Department's Bureau of Land Management (BLM), migratory bird deaths at oil and gas operation waste pits have been reduced by 50 -75 percent in the last 15 years, saving an estimated one to one and a half million birds from grisly deaths caused by their landing in chemical-laden waste water pits associated with oil and gas operations. The policy document says that bird mortality has been reduced from about two million per year in 1997 to between five hundred thousand and one million per year today.

“Seeing this downward trend in bird mortality is great news. Enforcement of the Migratory Bird Treaty Act by dedicated staff of the Fish and Wildlife Service (FWS) and implementation of Best Management Practices by BLM is obviously making a difference. And the willingness of the Department of Justice (DOJ) to prosecute offenses clearly provides the needed incentive to make sure that the industry shows diligence in following the law,” said Dr. George Fenwick, President of American Bird Conservancy, one of the nation's leading bird conservation organizations.

Fenwick said further that “I have every reason to believe that with continued persistence by the feds, that this downward trend in the oil and gas industry will continue. In the meantime ABC is still deeply concerned about birds killed by the fast-growing wind power industry, as it continues to rely on unenforceable voluntary guidelines for its operations.”

The reduced bird mortality for traditional energy developers was reported in BLM Instruction Memorandum — IM 2013-033 — which establishes policy for reducing preventable causes of direct wildlife mortality associated with fluid mineral facilities authorized by the agency. Fluid mineral facilities include oil, gas, and geothermal facilities and associated structures authorized by the BLM. The IM also addresses Best Management Practices (BMP) for reducing the risk of direct wildlife mortality from various fluid mineral practices on public lands.

The policy seeks to establish a consistent approach to management practices designed to ensure BLM and operator compliance with wildlife protection laws and regulations. Toward that end, the IM directs that all BLM field offices will ensure that new fluid mineral-related permit approvals contain appropriate BMPs for reducing the risk of harm to wildlife species protected under law, regulation, or BLM policy.

During inspections and site visits, BLM will ensure operator implementation and maintenance of effective wildlife protection measures. The operator is expected to notify the nearest FWS law enforcement office upon discovery of a dead or injured migratory bird, bald or golden eagle, or Endangered Species Act of 1973 (ESA)-listed or other species protected under Federal statute. If the BLM becomes aware of such mortality or injury, the BLM will contact the operator. If the operator is unable or unwilling to make the notification, the BLM field office will notify the FWS Law Enforcement office or the nearest FWS Ecological Services office. The BLM field office and the FWS, will attempt to determine the cause of mortality and the BLM, in coordination with the FWS, will evaluate and identify appropriate mitigation measures to avoid future occurrences.

The IM targets a common bird mortality threat in oil and gas operations – open, fluid-filled pits. It references the Wyoming Ecological Services Field Office of the FWS who states that “Deterrents (to birds landing in these deadly, chemical-laden pits) such as flagging, strobe lights, metal reflectors and noise makers are not effective at preventing bird mortalities from occurring in oil pits.”

The FWS office has stated further that “Oil industry regulators that recommend flagging to oil operators as a bird deterrent for oil pits place the oil operators at risk for prosecution under the Migratory Bird Treaty Act.” The FWS recommends solutions to the open pit problem and states that “…netting appears to be the most effective method of keeping birds from entering wastewater evaporation ponds and skim pits.”

Just last month, because of efforts by BLM, FWS and DOJ, a Denver-based oil and gas company was fined $22,500 in connection with the deaths of birds at the company's drilling facilities in Montana, Wyoming and Nebraska. The fine was imposed after SM Energy Company pled guilty to three misdemeanor violations of the Migratory Bird Treaty Act. In addition to the fine, U.S. Magistrate Judge Carolyn S. Ostby placed the company on probation for one year and ordered it to pay $7,500 toward improvement of migratory bird habitat. Ostby also ordered the company to continue implementing a $300,000 remediation program intended to prevent future bird deaths at the company's facilities.