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Polar bear
Law360, March 14, 2011

FWS Plans To Renew Polar Bear Take Rule
By Melissa Lipman

The U.S. Fish and Wildlife Service on Fridayproposed renewing a rule that allows oil companies to take small numbers of polar bears and walruses while working in Alaska, continuing a policy that survived a court challenge in 2009.

The proposed rule — published in the Federal Register on Friday — would allow the "nonlethal, incidental, unintentional take" of the animals during oil and gas exploration, development production in the Beaufort Sea and nearby Alaskan coast. The regulations are similar to the current rule, which expires Aug. 2, and covers all of the same activities that have been allowed since it went into effect in August 2006, according to the proposal.

The agency said it did not expect the take of polar bears and walruses under the regulations to have any more than a "negligible impact" on the species and said it would not have "an unmitigable adverse impact" on the animals' availability to Alaskan natives who rely on the them.

The proposed finding is based on "17 years of data on the encounters and interactions between polar bears, Pacific walruses, and industry" as well as a bevy of recent studies, oil spill risk assessments and other data, the agency said.

The previous incarnation of the take regulations, which expire every five years and were first put in place in 1993, survived a court challenge from environmental groups that argued that the agency had failed to consider how global warning had weakened the bear population.

The U.S. Court of Appeals for the Ninth Circuit rejected the Center for Biological Diversity's latest suit seeking to block the takes in December 2009, ruling that despite the possibility that global warming has harmed the bears, it was not sufficiently established that oil and gas activities in the Beaufort Sea area would hurt them any further.

The center plans to file a response to the agency's latest proposal, which is open for public comment until April 11, according to CBD attorney Brendan R. Cummings.

Cummings said that regardless of the legality of the previous regulations, enough has changed in recent years to make it impossible for the agency to lawfully reach similar conclusions for the renewed rule.

"A lot has changed since 2006," Cummings said. "The polar bear is now listed [under the Endangered Species Act], we have seen oil spills can and do occur from exploration drilling and that there exists no capability to deal with a spill in an Arctic ... but perhaps most importantly the sea ice has retreated dramatically and that's changed the behavior of bears and walruses in significant ways."

In particular, a number of the agency's claims in the previous regulations that are largely duplicated in the proposed version that the drilling activities would not expose the animals to dangerous sounds are based on the idea that polar bears don't spend a lot of time swimming in the water, according to Cummings.

But because of the melting of the sea ice, polar bears have recently been seen going on 10-day-long swims, he said.

The explosion on the Deepwater Horizon in the Gulf and the resulting oil spill also demonstrate that blow-outs can occur during exploration drilling activities, and the resulting scrutiny of oil companies has emphasized that the industry is not prepared to handle a spill under more treacherous conditions in the Artic, Cummings said.

"Five years ago when the service issued the original regulations, they relied on the fiction that blow-outs don't happen so they don't have to worry about it," Cummings said. "Obviously they do have to worry about it. We don't see how they can make a negligible impact assessment that's at all reasonable based on what they've seen."

--Additional reporting by Richard Vanderford. Editing by John Quinn.

Photo © Paul S. Hamilton